Expert Testimony or “Smelly Cat”
By
Svetlana (Lana) Sheshina Plumb, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Published: 01.01.2013
Lisa Kudrow, best known for her role as Phoebe Buffay, an eccentric musical performer/massage therapist on the hit television series, “Friends”, best remembered by her fans for the performance of the “Smelly Cat” song; was recently sued by her former personal manager Scott Howard in a case of Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102.
Howard sued after Kudrow terminated their oral agreement for his services as personal manager in 2007, claiming that he was entitled to commissions on income Kudrow earned following the termination of their relationship, on the engagements entered by Kurdow when Howard was her manager. Howard claimed that it has been a custom and practice in the entertainment industry for a personal manager to be paid such post-termination commissions.
Kudrow filed a motion for summary judgment, claiming that although there was an oral agreement pursuant to which Howard would receive commissions on Kudrow’s earnings, Howard could not establish that she breached the agreement because there was no evidence that the parties agreed to post-termination compensation.
In support of his opposition to Kurdow’s motion for summary judgment, Howard filed a declaration of an expert claiming that it had been the custom and practice in the entertainment industry for a personal manager to be paid post-termination commissions on the services that their clients rendered, and on the engagements that their clients entered into, when the personal manager was representing them. Kudrow objected to the declaration based on the foundation. Howard sought a continuance to supplement declaration, which was denied and later taken on appeal. The Appellate Court remanded for the trial court to exercise its discretion to determine whether Howard was entitled to a continuance to file a supplemental expert declaration.
On remand, the trial court allowed a supplemental expert declaration. Howard filed a supplemental declaration and the court took the matter under submission after the oral hearing. Subsequently, the court issued an order granting the summary judgment and stating that supplemental declaration had the same deficiencies as the original in that it failed to set forth facts that show that Howard’s expert, Martin Bauer has knowledge of, or was familiar with, or was involved in any transaction in which post-termination commissions was paid to personal managers. Thus, the trial court excluded the expert testimony of custom and usage.
Howard appealed. On the appeal the Appellate Court did not establish whether or not the evidentiary rulings at a summary judgment proceeding should be reviewed de novo or under some other lesser standard. However, the Court stated that under any applicable standard of review the trial court erred in excluding the evidence of custom and usage. Id. at 1114.
The Appellate Court proceeded to state that expert testimony is admissible to prove custom and usage in an industry. Ecco-Phoenix Electric Corp. v. Howard J. White, Inc. (1969) 1 Cal.3d 266, 271. However, such testimony is subject to foundational challenges, such as lack of foundation as to expert’s qualifications, validity of the principles or techniques upon which the expert relied, or as to the reliability and relevance of the facts upon which the expert relied. Howard Entertainment, Inc. v. Kudrow, Supra, 208 Cal.App.4th 1114. (Citing Park, Trial Objections Handbook (2d ed. 2012) § 8:29, p. 8077.
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” Howard Entertainment, Inc. v. Kudrow, Supra, 208 Cal.App.4th 1115. (Citing Evidence Code § 720.)
The requisite foundation required to establish that someone is an expert is to show that he or she has knowledge of, or was familiar with, or was involved in a sufficient number of transactions involving the subject matter of the opinion. Id. (internal citations omitted.) Whether someone can qualify as an expert in a particular case depends on the facts of the case and the witness qualifications and whether his/her testimony would be likely to assist jury in the search for truth. Id. (Internal citations omitted.)
An expert may rely on hearsay or other inadmissible matter, if such matter provides a reasonable basis for the particular opinion offered, however, such matters cannot be conjectural or speculative. Id.
Discussing Bauer’s qualifications, the Appellate Court concluded that he was qualified as an expert. Bauer has been in the entertainment industry from 1974 through present as an executive in business affairs, talent agent and personal manager. Id. at 1116. He was the president of a prominent talent agency and obtained employment for actors, directors, writers, and producers. Id. Specifically he represented as talent agent actors who were represented by personal managers and Bauer was familiar with specific instances concerning the payment of personal managers after termination of their representation. Id. He personally was a party to the agreements such as one at issue in the present case and had discussions with attorneys regarding these matters. Id. “The fact that Bauer was not a personal manager in 1991 – the date of the Howard-Kudrow agreement – and cannot point to specific people he talked to then is not fatal.” Id. An experience of a member of industry for a certain period of time together with encounters of the usage of the term on several occasions by industry members is adequate to qualify one as an expert in such matter. Id. As such, the Appellate Court concluded that Bauer has requisite qualifications to qualify as an expert on the issue of compensation of a personal manager after termination. Id. at 1116-1117.
Discussing the facts relied upon by Bauer in his declaration, the Court noted that those were too adequate and gave sufficient foundation for Bauer’s opinion. Specifically, the Court stated that an expert may rely upon experiences and conversations he or she has had and information he or she has obtained without the necessity of providing the specifics of such experiences and conversations. Id. at 1117. Thus, there is no requirement that an expert set forth specific persons, conversations, or dates of such conversations for the formation of the opinion, as was required by the trial court. Id.
The Court proceeded to state that although Bauer’s testimony may have been discounted at trial, if Kudrow offered an expert to contradict Bauer or at cross-examination, it was an error by the trial court to exclude the evidence of Bauer’s testimony as it met the foundational requirements.
Therefore, a witness qualifies as an expert if his or her knowledge, skills, experience, training, or education is applicable to the facts of the case at hand and his or her testimony is likely to assist the jury in the search for truth. Furthermore, an expert may rely on experiences or conversations that are hearsay or otherwise inadmissible without providing the specifics of such experiences and conversations, if such matter provides a reasonable basis for the particular opinion offered, however, such matters cannot be conjectural or speculative. Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102.