SAMPLE – Memorandum of Points and Authorities Re: Vocational Evaluation and People v Sanchez (204 Cal. Rptr. 3d 102)

Michael Royer
Law Student
123 Newport Ave
Newport Beach, CA 92495









Case No. 15 P 000 001


Date: June 18, 2019
Time: 08:30 AM
Court: Department L-11
Trial Date:


PETITIONER OPPOSES THE OBJECTION TO THE VOCATIONAL EVALUATION made by respondent, because Evidence Code section 801 permits such expert opinions. People v Sanchez (204 Cal. Rptr. 3d 102) should not apply and was not intended to be applied to vocational evaluation experts in Family Law cases. Further, under the facts of this case, hearsay exceptions apply to the various hearsay relied upon by the vocational evaluation expert.


Petitioner and Respondent have stipulated that they are the parents of a Child, Sydney Doe born 4/1/12. Child custody has also been stipulated. Respondent will have sole physical custody, and the parties will share joint legal custody. Petitioner will have visitation with the child two weekends per month, from even numbered Friday at 6 pm to Sunday evening at 6 pm. Additionally, Petitioner will have the Child for three full weeks during the summer, one-half of Christmas break, alternating spring breaks, and alternating Thanksgiving vacations.
Petitioner earns $25,000 per month in W-2 income and has several deductions. Respondent has been out of the workforce for seven years, and does not earn an income. A vocational evaluation was conducted by Michael Smith for the purposes of having income imputed to Respondent. Respondent has objected to the admission of the vocational evaluation on the grounds that it is inadmissible expert opinion under the ruling in People v Sanchez.


A. The General Rule

Evidence code 801 provides, in part: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is… Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible that is a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” (Emphasis added.) Expert opinion may be based on hearsay so long as the hearsay is reasonably reliable. (1 Witkin, Cal. Evid. 5th, Opinion Evid § 32 (2012)).

B. Type Reasonably Relied Upon
Experts may rely on hearsay and other inadmissible evidence, if it is the type of evidence that experts in that field would reasonably rely upon. Vocational evaluation experts rely on job postings and party disclosures to formulate their opinions on a party’s earning capacity. In order to formulate an opinion on a party’s earning capacity, it is essential that a vocational evaluator relies on job postings to determine what potential jobs are available in the job market, and what those jobs are paying. It is also essential for the vocational evaluator to rely on information the party has disclosed about their education and personal work experience. If for instance, a party tells a vocational evaluator that they have worked as a neurosurgeon, which usually makes $500,000 a year, but there are no jobs in that field, it would be unfair to impute $500,000 to the party. However, the evaluator knows the party could earn a job as an ER doctor making $250,000 a year, as an alternative.
In Arellano v. Moreno (1973) 33 C.A.3d 877, 109 C.R. 421, plaintiff was helping his friend push a stalled car out of the road when he was struck by a vehicle driven by the defendant. A police officer then spoke to the defendant and the friend who told the officer the location. “The location of the point of impact used by the officer was apparently agreed to by the owners of both cars involved in the accident immediately after its occurrence. It, therefore, would appear to be, at worst, reasonably reliable hearsay and, accordingly, under Evidence Code section 801, subdivision (b), a proper basis for the officer’s expert opinion.” Id. at 886.
The information relied on in a vocational evaluation is reasonably reliable. It comes from disinterested parties, specifically websites where businesses who are looking to hire employees post jobs. The information is reliable, because it comes from disinterested third parties, and therefore a proper basis for the experts opinion. Many of the jobs posting websites require verification before allowing job posting, and also charge a fee to post job openings. (, This increases the reliability of these job postings. An expert vocational evaluator also has personal knowledge of the job market from being involved in it for years. This makes the expert a second layer of protection, vetting job postings for reliability on top of the job posting websites. As in Arellano, the evaluator has reasonably reliable information to make his expert opinion.
Vocational evaluators rely on job postings. This information is reliable because it comes from disinterested parties and job posting websites verify postings, the hearsay is the type reasonably relied upon in the field and should be admissible.

C. Family Code Sections 4053 & 4058
Family code section 4053 subdivision (d) states “each parent should pay for the support of the children according to his or her ability.” (emphasis added). This indicates the intent of the legislature to not merely focus on the actual income of a party but on the party’s ability to earn income. Therefore, courts must be able to impute income to a party.
Family Code section 4058 subdivision (b) states “the court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income.” The legislature clearly intended for courts to be able to impute income for a parent. Vocational evaluation expert opinions based on current job availability is the best method for determining a parents earning capacity. There is no other logical way to determine such earning capacity. In order to effectuate the intent of the legislature, this court must allow vocational evaluation experts to make recommendations as to earning capacity and rely on job postings to formulate such opinions.
This is precisely the conclusion the court reached in In re Marriage of LaBass & Munsse, 66 Cal.Rptr. 2d 393. There the court held that trial courts may substitute earning capacity for actual income, and may base the earning capacity on expert opinion based on help wanted ads. Similarly, this court should allow the vocational evaluation as evidence to determine Respondents earning capacity.

D. Conclusion
The vocational evaluation is the most practical and reliable way to effectuate the legislature’s intent to allow a court to impute earning capacity to a party. In conclusion, based on the type of reasonably reliable hearsay that is relied on in the field of vocational evaluations, this vocational evaluation, which is the expert opinion of Mr. Smith, a specialist in the field, is admissible as an expert opinion.


The California Supreme Court recently handed down a decision regarding expert opinions based on hearsay in People v. Sanchez. Sanchez was a criminal case involving an alleged gang member who was charged with possession of a firearm by a felon, possession of drugs while armed with a loaded firearm, active participation in the “Delhi” street gang, and commission of a felony for the benefit of the Delhi gang. Id. at 107. At the trial, the prosecution used a gang expert to prove the defendant was a member of a gang, and committed the offences for the benefit of the gang. The gang expert was a detective with 24 years on the force, he relied upon his skill and knowledge as well as STEP notices and field identification cards. Both FI cards and STEP notices are filled out by police officers to gather information on suspected and known gang members. The CA Supreme Court, ruled in Sanchez that an expert cannot rely on such information in formulating their opinion.
The Court first analyzed the general rule that experts may make opinions based on inadmissible evidence, namely hearsay. The court stated that “the hearsay rule has traditionally not barred an expert’s testimony regarding his general knowledge in his field of expertise” but that “an expert has traditionally been precluded from relating case specific facts about which the expert has no independent knowledge.” Id. at 111. The Court alluded to the fact that the expert opinion exception which allows experts to rely on hearsay had become too broad.
The Court then went on to discuss the Sixth Amendment’s right to confrontation which was implicated because it was a criminal case. “The admission of expert testimony is government not only by state evidence law, but also by the Sixth Amendment’s confrontation clause.” Id. at 113. The Court recited much of the history of US Supreme Court opinions involving the Sixth Amendment right to confrontation, which won’t be recounted here. The Court reasoned that a jury must accept as true, any inadmissible hearsay which an expert relied on, and therefore such hearsay is constructively being offered for the truth of the matter asserted. The Sixth Amendment then requires the defendant have a right to confront such testimonial evidence and cross examine it.
The rule the Court formulated for expert opinions was “when any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay… If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination.” Thus giving us two aspects, 1) experts can’t relate case-specific facts, and 2) the Sixth Amendment bars an expert’s reliance on hearsay unless the declarant is unavailable and the defendant has been cross examined.
In People ex rel. Reisig v. Acuna, The Third District Court of Appeal found that Sanchez applies in a gang injunction case, which is a civil case. The Court stated “the California Supreme Court held a gang expert cannot base an opinion on the assumed truth of case-specific facts that are inadmissible hearsay for which no independent competent evidence is adduced. This aspect of Sanchez concerning state evidentiary rules for expert testimony applies in civil cases such as this nuisance lawsuit.”
In Acuna, the District Attorney filed a public nuisance lawsuit against a criminal street gang. The District Attorney relied on a gang specialist, who relied on the same type of evidence the gang expert relied on in Sanchez. The Court in Acuna concluded that Sanchez applied to the case and barred the expert’s reliance on case-specific hearsay from FI cards. Such a conclusion makes sense; despite the fact the case is a civil case in which no right to confrontation applies, Sanchez barred an expert from supplying case-specific hearsay.
Nonetheless, these cases should not affect the admissibility of vocational evaluations in family law courts. Both cases were gang cases and involved gang experts relying on arguably unreliable hearsay about specific incidents involving the defendants. The hearsay involved in a vocational evaluation is far more reliable as it comes from disinterested third parties, as opposed to police officers who are interested in the case by the mere fact that it is their job to fight crime and stop gang activity. There is no indication in Sanchez nor Acuna, that the rule should apply to family law cases, let alone vocational evaluations that contain reliable hearsay. Sanchez focused on how juries would be forced to accept such hearsay for the truth of the matter stated, focusing on cases involving a jury. Unlike family law cases which are heard before a judge.
In Acuna, the Court hinted at this proposition when it stated “Sanchez reversed the street gang enhancements because of the confrontation clause violation, not because of the state Evidence Code.” (Acuna, 214 Cal. Rptr. at 813). In Acuna, the court did not reverse the lower court, holding that although some of the gang experts opinion was based on inadmissible hearsay, it did not affect the outcome of the case.

A. The Hearsay Relied on Is Not Case-Specific
Assuming arguendo Sanchez was intended to apply to vocational evaluations, the job postings are not case-specific facts. The vocational evaluation relies on job postings from websites such as and Such job postings are not case-specific. “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, 63 Cal.4th at 686). In both Sanchez and Acuna, the hearsay that was inadmissible had to do with statements a third party declarant made about a specific defendant in the lawsuit.
Job postings and other information relied upon by vocational evaluators do not make any statements about the parties in the lawsuit. They simply state that a job is available for hire. In Sanchez when discussing acceptable hearsay an expert may rely on the court recognized that “experts frequently derived their knowledge by both custom and necessity from sources that were technically hearsay – price lists, newspapers, information about comparable sales, or other secondary sources.” (citing In re Cliquot’s Champagne (1865) 70 U.S. 114). Job postings are similar to such hearsay. Therefore Sanchez should not render a vocational evaluation as inadmissible because of its reliance on that information.


In Sanchez the court held that an expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (63 C.4th 686.)
Assuming arguendo, this court finds that People v Sanchez applies to the vocational evaluation, several hearsay exceptions apply to the information relied on by the evaluation and therefore it should be admitted.
The expert, Mr. Smith, relied on two main pieces of evidence in formulating his opinion 1) Respondents disclosures about her prior work experience, and 2) job postings from various online job websites.

Evidence Code section 1120 provides “evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” Here, the statement was made by Respondent and is being used by Petitioners, through the expert’s opinion, to prove that income should be imputed to Respondent. It is therefore being used against Respondent and Respondent is a party to this proceeding. The elements of the hearsay exception of party admission are applicable to all the statements Respondent made to Mr. Smith about her prior work experience.
Respondent’s statements to the expert may also fall under evidence code section 1224, a hearsay exception for declarants whose obligation in a civil action is being used against the party. Here, the statements of Respondent are being used to prove that Respondent has an obligation to provide some support for the Child, based on her ability to earn income. The code states “when the… obligation… of a party to a civil action is based in whole or in part upon the…obligation… of the declarant,…evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that…obligation.”

In the case In Marriage of LeBass & Munsee, the court faced the issue of whether help wanted ads could be relied on to formulate an opinion on a parties earning capacity. The Third District Court of Appeal held that such hearsay might be used to arrive at an opinion the opinion. “The court properly ruled the ads were admissible for the nonhearsay purpose of showing that offers to bargain existed. (In Marriage of LeBass & Munsee, citing Lonergan v. Scolnick, 129 Cal.App. 2d 179, (1954)). Job postings on websites such as and are the 21st century equivalent of help wanted ads in newspapers. These websites post jobs for companies that are looking to hire employees to fill those jobs, just as help wanted ads do in the newspaper, except now it is also online which is used more. Such job postings are offers to hire an employee, and therefore acts of legal independence and not hearsay.
Job postings are not hearsay at all. The job postings are not being used to prove the “truth of the matter stated” (evidence code 1200), but rather for another purpose. That other purpose is as an offer to hire someone, an offer to enter into an employment contract. This type of hearsay is similar to an expert valuating real property and relying on inquiries made by others, commercial reports, market quotations, and relevant sales. (Comments to evidence code section 801). Such evidence is nonassertive, and therefore not hearsay.
If the job postings are considered hearsay, they fall under the business records exception. They are a record of an act, by the website. The act is the offer to hire by the company looking to hire someone. They are made at the time the company posts the for hire ad, they are made in the regular course of business for the websites, and as discussed above, the job postings are trustworthy. They therefore fall under the business records exception to hearsay.

Having shown that hearsay exceptions applies to the information the expert used in his vocational evaluation, the evaluation in and of itself should be admitted under the business records exception. Section 1271 states “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: a) the writing was made in the regular course of a business, b) the writing was made at or near the time of the act, condition, or event, c) the custodian or other qualified witness testifies to its identity and the mode of its preparation, and d) the sources of information and method and time of preparation were such as to indicate its trustworthiness.”
Here, Mr. Smith is in the business of creating vocational evaluation reports. They are records of his interview with the individual and his analysis of the job market at that time. The reports are created near the time of the event. And the report is trustworthy. Therefore, the vocational evaluation falls under the business records exception to hearsay and should be admitted into evidence.


Evidence Code section 801 allows an expert to rely on hearsay that is reasonably reliable. All hearsay used in the vocational evaluation is reliable, and therefore the vocational evaluation should be admissible. Furthermore, there is no other logical and fair way to effectuate the legislature’s intent to allow earning capacity to be imputed to a party in a family law proceeding.
People v. Sanchez was not intended to apply in family law cases where there is no jury, but rather a judge sitting as the fact finder. The risk of a jury accepting certain underlying hearsay used by an expert to formulate his or her opinion as the truth of the matter asserted, is not present when the opinion is presented to a judge. Sanchez also had strong Sixth Amendment implications which are not present in the case at hand. Furthermore, the hearsay relied upon in the vocational evaluation is not case-specific, as is required under Sanchez to affect the admissibility of the expert’s opinion.
If this court does find that Sanchez applies to the vocational evaluation in this case, then hearsay exceptions apply to the information the expert relied upon. Specifically, the party admission applies to statements made by Respondent and the acts of legal significance exception apply to the job postings. Because hearsay exceptions apply to the information relied on in the vocational evaluation, it should still be admitted if Sanchez applies.
For the foregoing reasons, the vocational evaluation by Mr. Smith should be admitted into evidence.


Dated this 17th day of May, 2018 Respectfully submitted,

Michael Royer

By _____________________________


DISCLAIMER: This sample memorandum was NOT drafter by an attorney. This was an assignment by a law student for a law school class based on hypothetical facts. Do not reproduce this or any part of it for any legal purposes. If you are facing any legal issues or have any legal questions in regard to the above reproduced class room assignment consult a lawyer ASAP.

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