Dorsett v. Experience Hendrix

Filed 7/23/07 Dorsett v. Experience Hendrix CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard Strauss, Judge. Reversed and remanded with directions.

Plaintiff Gregory Dorsett, doing business as Rock Stars Guitars (Dorsett), appeals a judgment entered in favor of defendant Experience Hendrix, LLC (Company) after the trial court granted Company's motion for a nonsuit judgment in his defamation action against it. Dorsett contends the trial court erred by: (1) denying his request for a statement of decision; (2) granting Company's motion in limine to exclude testimony by his expert witness on the authenticity and value of the item of personal property in issue; (3) granting Company's motion for a nonsuit after his opening statement; and (4) denying his motion for summary adjudication.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Jimi Hendrix died in 1970. He was a prominent left-handed guitar player who bought standard right-handed Fender Stratocaster guitars, restrung them and made other adjustments for left-handed playing. Company owns all of Hendrix's music and personalty rights.

Dorsett and David Brewis entered into a partnership called Rock Stars Guitars to deal in guitars and other memorabilia associated with famous guitarists. In 1999 Brewis, on behalf of that partnership, bought a guitar from Tappy Wright for about $60,000. Wright gave Brewis a signed letter explaining how he obtained the guitar. The letter stated that as an assistant to Hendrix's manager, Wright "became very much a part of the Jimi Hendrix management team, [and became] a personal friend to Jimi until his death in 1970." The letter continued:

"When we were working with Jimi Hendrix in the USA on tour in the late '60's, Jimi obtained a new batch of Fender guitars, and then gave me this used sunburst Fender Stratocaster, serial number 213078, as a gift. He had set it up and strung it left-handed, and it was used by him mostly for songwriting and recording, as I recall. It is the actual guitar played by Jimi in a series of black & white photos of him writing lyrics in a hotel in Hawaii in 1968. [] . . . []

"During my time with Jimi and Mike [Hendrix's manager], I received many other personal effects as gifts, including Jimi's own personal record awards, clothes, jewellery [sic], furniture, and some of his other guitars which are currently on display in various branches of the Hard Rock Cafe. [] . . . []

"I confirm that it is authentic and original, and that it was owned and played by Jimi Hendrix."

Brewis requested the letter from Wright for use when he and Dorsett resold the guitar.^[2]

In February 2001 Dorsett, on behalf of the partnership, entered into an agreement with eBay Inc. (eBay) to list the guitar for sale on eBay's high-profile auction website. The website auction was scheduled to begin on March 12 and end on March 22.

On March 12 eBay's website auction of the guitar began. Dorsett and Brewis attached copies of Wright's letter and other documents to the guitar's website listing for potential bidders to review. By March 16, 160 bids had been received (apparently with a then-high bid of $190,100), but eBay stopped the auction on that day in response to an e-mail it received from Linda Acosta, Company's business affairs manager. That e-mail stated:

"To: eBay Customer Support Subject: Infringement Notice Hello: By virtue of my position I am familiar with the matters herein, and hereby certify under penalty of perjury the following. I am Business Affairs Manager for [Company] . . . owned and managed by the family of, and heirs to, the late Jimi Hendrix. I am writing to advise you of my good faith belief that a seller utilizing eBay's auction services . . . is thereby engaging in an activity which infringes upon the rights of James ('Al') Hendrix, Chairman of the Board of [Company] and the father of Jimi Hendrix, and his sole heir. The seller, located in the U.S. and going by the screen name 'wwwrockstarscom,' [sic] has placed for sale a purportedly original guitar which the listing claims once belonged to Jimi Hendrix. The listing states that a Mr. Tappy Wright is offering the guitar for sale. James 'Al' Hendrix is the father [of] and rightful sole heir to Jimi Hendrix and by law, has a claim to the item advertised for sale. Following Jimi Hendrix's unexpected death in 1970, most of his personal belongings, including his guitars, were stolen from his apartments and music studio. In addition, subsequently, Al's home in Seattle was broken into and a number of items inherited from Jimi were stolen. Insofar as I am unable to contact 'wwwrockstarscom' [sic] directly without registering with eBay and agreeing to terms and conditions which may dilute our rights in this matter, I am requesting that eBay immediately cease and desist from receiving, copying or transmitting 'wwwrockstarscom' [sic] auctions featuring guitars advertised as formerly belonging to Jimi Hendrix, and to remove immediately from eBay's servers any such auctions before a sale is concluded. In addition, I would request that you either provide a copy of this notice directly to 'wwwrockstarscom' [sic] and furnish to me independently verifiable information that same was in fact done, or provide me 'wwwrockstarscom' 's physical and e-mail address[es] so that that I may contact him or her directly. We have not and will not knowingly waive any rights we may have against eBay in such matters. eBay provides auctioneers a very convenient way to traffic in infringing goods, in that they can conduct business under assumed names and are effectively protected by your policies from having their real identities revealed. eBay also benefits financially from these questionable transactions."

eBay reinstated the auction about four hours later. On March 21 Reed Wasson, Company's general counsel, sent an e-mail to eBay following up on eBay's subsequent communications with Acosta. Wasson stated that it was the opinion of John McDermott, Company's production and acquisition manager and author of a book on Hendrix, that "the guitar now offered for sale by Tappy Wright [sic] is either a guitar stolen from Jimi's estate, or (more likely) a guitar which was never owned or played by Jimi, and is now being offered with a fraudulent provenance." Wasson further stated: "Upon close reading, none of the provenance documents displayed with the auction materials, other than the seller's own self-serving statement, confirm that the guitar was gifted to the seller by Jimi, or set forth any factual basis supporting the claim that the guitar is related to Jimi." His e-mail concluded: "[I]t is [Company's] policy to object to public auctions of claimed Jimi Hendrix property when there is reason to believe that the property was stolen from Jimi's estate, or that the name of Jimi Hendrix is being used falsely and improperly in connection with the property. By this letter you are on notice that we believe this is the case in the present offering. For the reasons set forth above, we request that [eBay] cancel this auction." During the auction's remaining six days, only six additional bids were received, apparently with a high bid of about $191,000. Because that bid did not meet the minimum reserve price of $200,000 set by Dorsett and Brewis, a sale was not made.

Dorsett filed an action against Company alleging causes of action for defamation and interference with contractual relations.^[3] After a trial, the jury returned special verdicts finding Company liable and awarding Dorsett general damages of $1 and special damages of $130,100 on his defamation cause of action and $1,000 in economic damages on his contractual interference cause of action.

Company filed motions for a new trial and JNOV. The trial court granted Company's new trial motion and denied its JNOV motion. Dorsett appealed the order granting Company's new trial motion. Company cross-appealed the order denying its JNOV motion.

In Dorsett, supra, D042579, we concluded the trial court did not abuse its discretion by granting Company's new trial motion based on its (the trial court's) independent weighing of the evidence and finding there was insufficient evidence to support the amount of damages awarded by the jury. (Id. at pp. 10-14.) However, we concluded the trial court erred by ruling no new witnesses would be allowed to testify at the new trial. (Id. at pp. 14-17.) We further concluded the trial court did not err by denying Company's JNOV motion. (Id. at pp. 17-23.) We remanded the matter to the trial court with directions that "in the event a new trial is held, the parties are entitled to introduce evidence and call witnesses, including expert witnesses, as though there had been no prior trial; but otherwise subject to the provisions of the Code of Civil Procedure regulating pretrial matters." (Id. at p. 24.)

In June 2005, Dorsett filed a motion for summary adjudication, arguing there was no triable issue that the facts set forth in Acosta's e-mail were false.^[4] Apparently on August 19, the trial court denied that motion, finding there were triable issues of fact whether Acosta's e-mail was defamatory and, if so, who had been defamed.^[5]

On January 13, 2006, Company filed five in limine motions. Its third in limine motion requested an order precluding Dorsett from presenting expert witness opinions on the authenticity and value of the guitar because the only basis for those opinions were the unreliable hearsay statements of Wright, who would not testify at trial. On February 6, following an Evidence Code section 402 hearing at which Brewis, Dorsett's designated expert, testified regarding his opinions on the authenticity and value of the guitar and the bases for those opinions, the trial court granted Company's third in limine motion.

On February 16, Dorsett presented an opening statement to the court (prior to the selection of a jury). Company moved for a nonsuit judgment, apparently arguing Dorsett had no evidence to show the amount of damages he suffered as a result of its alleged defamation. The trial court granted the motion for nonsuit.

On April 19, the trial court entered judgment for Company.

Dorsett timely filed a notice of appeal.

DISCUSSION

I

Statement of Decision

Dorsett contends the trial court erred by denying his request for a statement of decision.

A

At the February 16, 2006 hearing, after Dorsett presented his opening statement, he requested that the trial court issue a statement of decision.^[6] The court denied that request, stating:

"Seems to me that the best way to state the decision is to use the transcript. I mean, we spent a long time talking about the intricacies of this. I don't know if it can be stated better than the way it was in the hearing that we had."

At a hearing on March 24, the trial court confirmed its ruling that a statement of decision was not required, stating: "I think you're both going to be best served by the transcript of the long discussion that we had."

B

Code of Civil Procedure section 632 requires a trial court to issue a written statement of decision in certain circumstances:

"In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify the controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision.

"The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties." (Italics added.)

Dorsett acknowledges that a statement of decision is required only on a trial of a question of fact. (Southern Cal. Gas Co. v. City of Vernon (1995) 41 Cal.App.4th 209, 220-221.) However, citing Kindt v. Kauffman (1976) 57 Cal.App.3d 845 (disapproved on another ground in Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401, fn. 8), he argues the trial court in this case conducted a "trial" by granting Company's nonsuit motion, thereby requiring a statement of decision.

Assuming arguendo the trial court conducted a "trial" by granting Company's nonsuit motion, we nevertheless conclude the trial court in this case did not conduct a trial of a question of fact. Rather, in considering and granting Company's nonsuit motion, the trial court necessarily assumed all of the facts stated by Dorsett in his opening statement were true. "A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his [or her] favor. [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291, italics added; Code Civ. Proc.,  581c.) "In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give 'to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor . . . .' [Citation.]" (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) Therefore, in the circumstances of this case, the trial court did not decide any questions of fact. It only assumed the facts were as Dorsett stated in his opening statement and, based on those facts, Company was entitled to judgment as a matter of law. (Nally, supra, at p. 291; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458.) When a trial court decides only a question of law, no statement of decision is required. (City of San Diego v. Rancho Penasquitos Partnership (2003) 105 Cal.App.4th 1013, 1045; Southern Cal. Gas Co. v. City of Vernon, supra, 41 Cal.App.4th at p. 221.) The trial court in this case did not err by denying Dorsett's request for a statement of decision.

II

Exclusion of Testimony by Dorsett's Expert Witness

Dorsett contends the trial court erred by granting Company's third in limine motion to exclude testimony by his expert witness on the authenticity and value of the guitar.

A

Company's third in limine motion argued Dorsett should be precluded from presenting expert witness opinions on the authenticity and value of the guitar because the only basis for those opinions were the unreliable hearsay statements of Wright, who would not testify at trial. It argued the sole basis for testimony by Dorsett's expert(s) that the guitar was worth more than Dorsett paid was Wright's hearsay "story" that Hendrix gave the guitar to him (Wright). Arguing Wright's hearsay statements were unreliable, Company requested that the trial court preclude Dorsett's expert(s) from testifying on the authenticity and value of the guitar based on that unreliable hearsay.

At a January 30, 2006 hearing on its in limine motions, Company represented to the trial court that John McDermott, its expert witness, testified at his deposition in this case that after the first trial Wright in effect told him he was disgusted with Dorsett and would not help him.^[7] Company argued Wright would not testify at trial and therefore would not directly corroborate the "authenticity" of the guitar. The trial court reserved ruling on the motion pending an Evidence Code section 402 hearing at which Dorsett's expert witness would testify.

At the Evidence Code section 402 hearing on February 6, Brewis, Dorsett's designated expert on the authenticity and value of the guitar, testified Wright told him he had a Hendrix guitar and showed it to him. Brewis inspected the guitar, taking some time. Based on his initial five-minute inspection of the Fender Stratocaster guitar, he believed the guitar was manufactured in late 1967. He then spent about 90 minutes inspecting the guitar "with a finetooth comb, just looking for signature marks of Jimi Hendrix . . . [i.e.,] the alterations he would have made." Brewis testified that Hendrix made his own modifications and alterations. Hendrix bought right-handed guitars and modified them for his left-handed playing. One of the signature marks of a Hendrix guitar that this guitar had was the placement of the magnets (i.e., the pickups) out of the way so they would not interfere with his fingernails while playing. Brewis also described other signature marks indicating the guitar had been modified and played by Hendrix. When Brewis purchased the guitar from Wright about one week later, he asked Wright to write a letter and be filmed telling the history of the guitar (i.e., that he received it from Hendrix), which would help Brewis market the guitar. However, Brewis testified that Wright's letter did not contribute in any way to his opinion that the guitar was a Hendrix guitar. Brewis stated "the letter just gives you the history of the guitar. It doesn't make it . . . any more or less Jimi Hendrix's." Brewis did not think the guitar's history (i.e., its gift by Hendrix to Wright) was important to its value, because it was a Hendrix guitar. Brewis stated his opinion that in the current market the guitar would be worth between $350,000 and $500,000 if it were untainted by an accusation regarding its authenticity. He believed the guitar was worthless with Company's statement that the guitar had been stolen because stolen goods have no value at all.

On cross-examination, Brewis admitted he stated at his deposition that before he saw the guitar he had "very little doubt" it would be genuine and a good one based on the story he heard about Wright. However, he testified he could not decide whether the guitar was a genuine Hendrix guitar until he examined it. He admitted he stood to make a lot of money if he could prove the guitar was authentic. Brewis testified he bought the guitar "because the physical evidence showed that it had been played by Jimi Hendrix" and not because Wright told him Hendrix had played it. When asked what the term "provenance" meant in the guitar industry, Brewis explained:

"It's the history of a guitar and the ownership, as it is in the art world or any other collectible field, of where an item has been, who's owned it, when it changed hands, and so forth."

When asked whether the guitar's provenance or history supported his conclusion the guitar was authentic, Brewis replied:

"No, no, that's only part of the picture. What I'm trying to say is that the physical condition and some alterations to the guitar are what to me proves it's Hendrix. The story is the provenance. That has to go with it. That's an integral part as to where the guitar lived. The provenance itself is just a story unless the item is the item."

He stated a guitar's provenance is "a very important part" when it comes time to sell it, but it is not the most important part. He stated "the guitar itself is the most important part." Brewis distinguished a guitar's provenance from its authenticity. He admitted he had read a couple of articles about Hendrix's possessions being stolen after his death. He also admitted Wright told him Mike Jeffrey, Hendrix's manager, gave Wright guitars after Hendrix's death. Wright also stated Jeffrey told him (Wright) and other crew members to "help themselves" to Hendrix's guitars and other property after his (Hendrix's) death. However, Brewis believed Jeffrey had the legal right to give away Hendrix guitars because he (Jeffrey) was Hendrix's business partner. Brewis testified he would not have bought the guitar from Wright had he (Wright) stolen it or not obtained it by legitimate means.

On redirect examination, Brewis testified he did not base his opinion that the guitar was a Hendrix guitar on any provenance documents. Rather, his opinion was based on his physical inspection of the guitar. On questioning by the trial court, Brewis admitted his opinion on the guitar's valuation depended on whether Wright had legitimately obtained the guitar. On further redirect examination, Brewis stated he had never heard from a credible source, and knew of no credible evidence showing, that Wright had stolen or otherwise wrongfully obtained a Hendrix guitar.

Following that Evidence Code section 402 testimony by Brewis, the trial court stated Brewis's opinion regarding the guitar's value would require him to consider whether the guitar was given to Wright by Hendrix or whether it may have been stolen. Because Brewis's valuation was dependent on the guitar not being stolen, the court stated Brewis had to have a basis on which to determine the guitar was not, in fact, stolen. Dorsett argued Brewis did not have to determine whether the guitar was stolen because that issue would be a question for the jury to decide. However, the court stated that it, and not the jury, would decide the reliability of the basis for Brewis's opinion. Dorsett suggested he could ask Brewis a hypothetical question regarding his opinion on the guitar's value based on the assumption it was not stolen.

Regarding the admissibility of Wright's letter, the trial court ruled that it would be admitted solely for the limited purpose of showing Acosta's and Wasson's states of mind when they sent their e-mails to eBay. Company argued that limited admission of Wright's letter would be unduly prejudicial even with a limiting instruction. It also argued Brewis could not rely on Wright's letter regarding the guitar's history because that letter was unreliable hearsay. Company alternatively argued Brewis's testimony at the hearing regarding the basis for his opinion was inconsistent with his deposition testimony on that issue. The trial court stated it had read most of the transcript of Brewis's deposition and "substantially if not all of his opinion has been based upon this hearsay information from Tappy Wright and other people." Specifically, the court stated Brewis's hearing testimony that his opinion on the guitar's value was based on his examination of the guitar was contrary to his deposition testimony. The trial court ruled Brewis would be precluded from testifying as an expert witness at trial, stating:

"I think that there's a prejudicial effect of the Tappy Wright and this other hearsay information that will taint -- it goes to the very heart of what this case is about, and it will taint the case. [] . . . [] [Brewis] says himself in his own deposition that it's something he would take into consideration. [] . . . [] You, I, and everyone else all know what he's relying on, and it's this hearsay information in the Tappy Wright document."

The court commented it did not know how to get around the prejudice of Wright's hearsay statement.

At the February 16 hearing, the trial court confirmed its ruling that Brewis would be precluded from testifying as an expert on the guitar's value, explaining Brewis's opinion on the guitar's value was "all based" on unreliable hearsay. It concluded Wright's letter could not be removed from the basis for Brewis's opinion because it was intertwined with that basis. The court further ruled Brewis also would not be allowed to testify as a lay witness on the guitar's value. The court stated that because Brewis's valuation opinion was based on Wright's unreliable hearsay statement, that opinion would be excluded as unduly prejudicial under Evidence Code section 352. The court summarized its ruling: "Basically, what I'm saying is that because of the unreliability situation and because of my [Evidence Code section] 352 evaluation, I wouldn't allow . . . the evidence of valuation, and therefore the evidence that this has to be a Jimi Hendrix guitar, I wouldn't allow that in."

B

Evidence Code section 801 allows witnesses to testify on their expert opinions in certain circumstances:

"If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

"(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

"(b) 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 of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Italics added.)

Evidence Code section 803 provides:

"The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper." (Italics added.)

"An expert opinion may be based on inadmissible matter provided that the matter provides a reasonable basis for the opinion. [Citations.]" (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563.) However, "[a]lthough experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact. [Citations.]" (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-1525.) Furthermore, "even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert's opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.]" (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) "Therefore, an expert's opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury, does not provide assistance to the jury because the jury is charged with determining what occurred in the case before it, not hypothetical possibilities. [Citation.]" (Ibid.) Furthermore, "[a]lthough the courts have rejected expert opinions '[w]here the basis of the opinion is unreliable hearsay,' [citation], nevertheless, hearsay information of a type reasonably relied upon by professionals in the field in forming an opinion on the subject may be used to support an expert opinion, even though not admissible in court. [Citations.]" (Korsak, at p. 1524.)

"A trial court exercises discretion when ruling on the admissibility of expert testimony under Evidence Code section 801, subdivision (b). If the court excludes expert testimony on the ground that there is no reasonable basis for the opinion, we review the exclusion of evidence under the abuse of discretion standard. [Citations.] To the extent the ruling is based on the trial court's conclusion of law, we review the legal conclusion de novo. [Citation.]" (Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 564.)

C

In granting Company's in limine motion to preclude Brewis from testifying on his expert opinions regarding the authenticity and value of the guitar, the trial court apparently relied on two alternative grounds. First, it initially concluded Brewis's testimony at the Evidence Code section 402 hearing regarding the basis of his opinions contradicted his deposition testimony. Second, it thereafter concluded Brewis's opinions were necessarily based on Wright's letter, which it found was unreliable hearsay and should be excluded as unduly prejudicial under Evidence Code section 352. We separately address those two alternative grounds for the court's exclusionary ruling.

Regarding the trial court's ruling that Brewis could not testify on the expert opinions he expressed at the Evidence Code section 402 hearing because they contradicted the opinions he gave at his deposition, we disagree with the trial court's interpretation of Brewis's deposition testimony and conclude Brewis's opinion testimony cannot be excluded on the ground his Evidence Code section 402 hearing testimony contradicted his prior deposition testimony. Jones v. Moore (2000) 80 Cal.App.4th 557 states:

"When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial." (Id. at p. 565.)

That exclusionary rule is based on "an important goal of [Evidence Code] section 2034 . . . to enable parties to properly prepare for trial, and '[a]llowing new and unexpected testimony for the first time at trial' is contrary to that purpose. [Citation.]" (Jones, supra, at p. 566.)

The record in this case shows Brewis did testify at his deposition that his physical inspection of the guitar provided him with the basis on which he confirmed it was owned or played by Hendrix. On January 12, 2006, Brewis was deposed by Company. He testified it was his expert opinion that the guitar was authentic and had been used by Hendrix. When Company asked him what his basis was for that opinion, Brewis stated there were "two factors." The first factor was the information he obtained regarding the history of the guitar, including Wright's statements to him. The second factor was his physical inspection of the guitar. Brewis described the physical setup of the guitar, including specific modifications that had been made for left-handed playing. Brewis testified that the guitar "conformed exactly to the specifications of the Hendrix guitars that I had seen."

He also described the guitar's provenance, stating it was better than the provenance of other guitars he had purchased. Wright told him the guitar was given to him by Hendrix and never had been in a third party's hands, resulting in a continuous, unbroken line of provenance. Brewis also obtained an independent appraisal confirming that the guitar was an original 1967 Fender Stratocaster. He also compared the guitar to photographs that depicted "Hendrix playing an absolutely identical guitar which could be our guitar" although he could not be 100 percent sure it was the same guitar based solely on those photographs. Brewis summarized his approach in buying the guitar as beginning with its history or provenance and then performing a physical examination of the guitar to determine its authenticity.

Therefore, Brewis did testify at his deposition that his physical examination of the guitar confirmed its authenticity. Although he began his purchasing process by collecting information on the guitar's history or provenance, he did not testify that the guitar's provenance was the basis for his opinion on the guitar's authenticity or value. Accordingly, his deposition testimony did not contradict his subsequent Evidence Code section 402 hearing testimony that he relied solely on his physical examination of the guitar in determining his opinion on its authenticity (i.e., whether Hendrix actually owned or played the guitar) and value (although admitting its marketability may be impacted by provenance documents). We conclude the trial court erred by concluding Brewis's hearing testimony contradicted his prior deposition testimony.^[8] Furthermore, as Dorsett asserts, the Jones exclusionary rule does not apply because Company did not ask Brewis at his deposition whether the opinions he expressed during his deposition were the only opinions he intended to offer at trial. (Cf. Jones v. Moore, supra, 80 Cal.App.4th at p. 565.) Accordingly, Brewis's expert opinions on the authenticity and value of the guitar cannot be excluded on the ground that the opinions he expressed at the Evidence Code section 402 hearing contradicted the opinions he expressed at his prior deposition.

D

Regarding the trial court's second (and apparently primary) ground for excluding Brewis's expert opinions as based on unreliable hearsay, we conclude that ground is insufficient in the unique circumstances of this case to preclude admission of Brewis's opinions on the authenticity and value of the guitar. An expert opinion may be excluded if the trial court, in the exercise of its reasonable discretion, concludes that opinion is based on unreliable hearsay evidence. (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1524.) For purposes of this opinion, we assume, without deciding, the trial court reasonably concluded Wright's hearsay statements (whether expressed in his letter or otherwise) were unreliable and therefore were not "of a type that reasonably may be relied upon by an expert in forming an opinion" on the subjects of the authenticity and value of the guitar.^[9] (Evid. Code,  801, subd. (b).) Based on our review of the record, it is apparent the trial court was concerned the guitar may have been stolen from the Hendrix estate after Hendrix's death, rather than given to Wright by Hendrix during his lifetime. As described above, the court stated Brewis's opinions on the authenticity and value of the guitar were based on the assumption that the guitar was not, in fact, stolen. Therefore, the court believed Brewis could not testify on his opinions absent reliable evidence, whether admissible or not, that the guitar was not stolen. Finding Wright's letter unreliable, the trial court concluded Brewis did not have any reliable evidence that the guitar was not stolen and therefore could not testify on his opinions on the guitar's authenticity and value.

However, the trial court's conclusion is based on a faulty premise. The trial court wrongly assumed it was Dorsett's (and therefore Brewis's) burden to prove the guitar was not stolen. Civil Code section 45 defines libel as: "a false and unprivileged publication by writing, . . . or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Under established case law, it generally is not the plaintiff's burden to prove that the alleged defamatory statement is false. (Dixon v. Allen (1886) 69 Cal. 527, 529 [alleged libelous language "is presumed to be both false and malicious, and no other evidence of falsehood or malice is necessary than the publication itself"]; Adams v. Cameron (1915) 27 Cal.App. 625, 633-634.) Rather, it is the defendant's burden to prove a defense that the statement is true. (Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 233 ["The burden of proof with respect to the issue of truth or falsity is on the defendant. [Citations.]"], superseded by statute on another ground as noted in Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 174, fn. 5.) Lipman cited Code of Civil Procedure section 461, which provides: "[T]he defendant may, in his answer, allege . . . the truth of the matter charged as defamatory . . . ." (Lipman, at p. 233.) Lipman concluded: "It follows that a plaintiff need not allege [or prove] the statements are false. [Citations.]" (Ibid.)

More recently, Smith v. Maldonado (1999) 72 Cal.App.4th 637 noted: "The burden of pleading and proving truth is generally on the defendant. [Citation.] However, in an action initiated by a private person on a matter of public concern, the First Amendment requires that the plaintiff bear the burden of proving falsity. [Citations.]" (Smith, at p. 646, fn. 5, italics added, citing Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767.) We conclude, as a matter of law, that the alleged defamatory statement made by Company regarding the guitar does not involve a matter of public concern within the meaning of Hepps. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [it is a question of law whether a statement involves a matter of public concern].) It cannot reasonably be argued that Company's private claim, as expressed to eBay, that Dorsett's guitar was stolen from the Hendrix estate involves a "matter of political, social, or other concern to the community." (Connick v. Myers (1983) 461 U.S. 138, 146; cf. Nizam-Aldine v. City of Oakland, supra, 47 Cal.App.4th at pp. 375-381; Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1363.)^[10]

Because no exception to the general presumption of falsity applies in this case, Dorsett does not have the burden to prove, much less allege, that Company's statement was false. In this case, because the alleged defamatory statement made by Company was to the effect that the guitar was stolen, it is presumed that statement was false (i.e., that the guitar was, in fact, not stolen). It therefore is Company's burden to prove a defense that its alleged defamatory statement was true (i.e., that the guitar was stolen). Accordingly, in the particular circumstances of this case, because Dorsett is not required to prove the guitar was stolen, it logically follows that Brewis, in expressing his expert opinions on the authenticity and value of the guitar, should be permitted to base his opinions on the assumption that the guitar was not stolen.

Regardless of whether Wright's hearsay statements are excluded from evidence and whether they cannot be relied on by Brewis in forming his opinions, the trial court erred by granting Company's in limine motion to exclude Brewis's expert opinions on the authenticity and value of the guitar. On remand, Brewis should be permitted to testify on the authenticity and value of the guitar (absent other grounds on which to exclude that testimony).^[11]

III

Nonsuit

Dorsett contends the trial court erred by granting Company's motion for a nonsuit judgment after he made his opening statement.

A

At the February 16, 2006 hearing before jury selection, the trial court heard Dorsett's opening statement.^[12] Because of the trial court's exclusionary rulings on Company's in limine motions, Dorsett did not refer to either Wright's letter (or other hearsay statements) or any opinions by Brewis (or any other expert or lay witness) on the authenticity and value of the guitar that would have supported the amount of damages he (Dorsett) claimed he suffered as a result of Company's alleged defamation. The trial court then stated: "So the whole heart and [soul] of this case goes back to provenance, if you will, which is all the hearsay statements of what this guitar is purported to be." It then doubted there was any way the hearsay statements regarding the guitar's provenance could be admitted without being unduly prejudicial under Evidence Code section 352.

Company then moved for a nonsuit. The trial court granted that motion, stating: "I'm going to grant that. We have had a long discussion about this [referring to its previously stated concerns about Dorsett's inability to prove the guitar was not stolen absent admission of Wright's unreliable hearsay statements]."

B

"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his [or her] favor. [Citation.]" (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 281; Code Civ. Proc.,  581c.) "In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give 'to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor . . . .' [Citation.]" (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118.) On appeal, "[w]e independently review the ruling on a motion for nonsuit, guided by the same rules that govern the trial court. [Citations.]" (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1296.)

C

Based on the record in this case, it appears the only element of Dorsett's causes of action (i.e., defamation and interference with contractual relations) that Dorsett's opening statement did not discuss was his expected proof of damages at trial. However, the reason Dorsett did not make any reference to proof of his damages was the trial court's prior exclusionary ruling that he could not present Brewis's opinions (or opinions of any other expert or lay witness) on the authenticity and value of the guitar. Because we concluded in part II, ante, that the trial court erred by excluding that opinion testimony, for purposes of reviewing the trial court's grant of the nonsuit motion, we presume Dorsett would have referred to that opinion testimony in his opening statement had the trial court not erred by granting Company's in limine motion to exclude that testimony. Dorsett does not have the burden to prove the guitar was not, in fact, stolen. Rather, it is presumed the guitar was not stolen and Brewis should be allowed to testify on his opinions on the guitar's authenticity and value. Therefore, absent the trial court's error, it is likely Dorsett's opening statement would have included sufficient evidence to support a finding he suffered damages as a result of Company's alleged defamatory statement.

Independently reviewing Dorsett's opening statement (as it presumably would have been made absent the court's error), we conclude the evidence presented by Dorsett in his opening statement would have been sufficient to support a jury verdict in his favor. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 281; Code Civ. Proc.,  581c.) Accordingly, the trial court erred by granting Company's motion for a nonsuit judgment. (Cf. Dixon v. Allen, supra, 69 Cal. at p. 529 [trial court properly denied nonsuit motion because alleged defamatory statement is presumed to be false].)^[13]

IV

Summary Adjudication

Dorsett contends the trial court erred by denying his motion for summary adjudication.

In June 2005, Dorsett filed a motion for summary adjudication, arguing there was no triable issue that the facts set forth in Acosta's e-mail were false.

Apparently on August 19, the trial court denied that motion, finding there were triable issues of fact whether Acosta's e-mail was defamatory and, if so, who had been defamed.

Code of Civil Procedure section 437c, subdivision (f)(1) provides:

"A party may move for summary adjudication as to one or more causes of action within an action [or] one or more affirmative defenses, . . . , if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action [or] an affirmative defense . . . ."

To the extent Dorsett's motion sought summary adjudication of his entire defamation cause of action, his motion and supporting papers were insufficient to show there were no triable issues on that cause of action and he was entitled to summary adjudication as a matter of law. Rather, his motion, at most, appeared to address only one element or issue (i.e., the falsity of Company's alleged defamatory statement). Accordingly, the trial court properly denied his motion on that basis.

Based on our review of his motion papers, it appears Dorsett primarily sought summary adjudication of Company's affirmative defense of truth to his defamation cause of action. Although summary adjudication of an affirmative defense may be available, we conclude in the circumstances of this case Dorsett did not show there were no triable issues on that defense. In support of his motion, he argued Wasson's e-mail and/or testimony at his deposition and the first trial constituted an effective admission by Company that the facts set forth in Acosta's e-mail stating the guitar was stolen were false. However, without discussing the specific portions of Wasson's e-mail and testimony cited by Dorsett, we conclude they did not, as a matter of law, constitute an admission by Company of the falsity of Acosta's e-mail (or that there otherwise is no triable issue of fact on that defense). Accordingly, the trial court properly denied Dorsett's motion for summary adjudication of Company's affirmative defense of truth.

DISPOSITION

The judgment is reversed. The matter is remanded with directions to the trial court to vacate its orders granting Company's in limine motion to exclude expert opinions on the authenticity and value of the guitar and granting Company's motion for a nonsuit judgment and to issue new orders denying those motions and conduct further proceedings consistent with this opinion.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] This is the second appeal involving Dorsett's action. In the first appeal, we affirmed the trial court's orders granting Company's motion for a new trial after the jury returned a verdict in Dorsett's favor and denying Company's JNOV motion (but reversed the orders to the extent they precluded Dorsett from introducing new evidence at the new trial). (Dorsett v. Experience Hendrix, LLC (Dec. 17, 2004, D042579) [nonpub. opn.] (Dorsett).) To the extent the facts summarized in Dorsett were undisputed by the parties, we refer to them in this opinion solely to provide background information (and not to create any established facts for the new trial).

^[2] At the first trial, Wright's letter was admitted in evidence, but not to prove the truth of its content.

^[3] Although the record on appeal does not contain a copy of Dorsett's complaint, the reporter's transcript in the first trial shows, and the parties do not dispute, that Dorsett's complaint alleged those two causes of action. In the event a third appeal in this case is filed, we expect the record in that appeal will include a copy of Dorsett's complaint.

^[4] Although the copy of Dorsett's motion contained in the record on appeal is not date-stamped as filed with the trial court, the copy of his memorandum of points and authorities in support thereof contained in the record is date-stamped as filed on June 2, 2005 (despite his attorney's signature dated as of June 12).

^[5] The record on appeal contains only a copy of the tentative ruling by the trial court. The record does not contain a minute or other order confirming that tentative ruling.

^[6] That request was made orally. Although the record on appeal also contains an unsigned and undated written request by Dorsett for a statement of decision, that request was not date-stamped as filed with the trial court and therefore we do not consider it.

^[7] An excerpt from McDermott's deposition was lodged with Company's third in limine motion, in which McDermott testified he had spoken by telephone with Wright six to nine months before McDermott's deposition. Wright expressed his disgust toward Rock Stars Guitars (i.e., Dorsett) and was angry that the dispute regarding the guitar had not yet been resolved. Wright thought Dorsett was greedy and did not want anything further to do with him.

^[8] Although Brewis's testimony at the Evidence Code section 402 hearing contained greater detail regarding his physical inspection of the guitar, that greater detail did not contradict his prior testimony at his deposition during which he answered only those questions asked by Company. The fact that Company did not inquire at that deposition regarding the details of his physical inspection of the guitar should not preclude him from testifying regarding those details either at the hearing or at trial.

^[9] Because Dorsett apparently does not challenge on appeal that ruling by the trial court, we assume, without deciding, the court acted within its reasonable discretion in so ruling.

^[10] In determining whether a statement involves a matter of public concern, a court must consider the statement's content, form, and context as revealed by the whole record. (Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 751, 761-762 [credit report sent to five subscribers falsely stating plaintiff had filed for bankruptcy involved only a matter of private concern].)

^[11] To the extent Wright's hearsay statements were "a significant part" of the basis for Brewis's opinions, yet provided an unreliable basis for those opinions as the trial court found, Brewis should nevertheless be permitted to testify on his opinions of the guitar's authenticity and value based on the assumption the guitar was not stolen, after excluding from consideration Wright's hearsay statements. (Evid. Code,  803.)

^[12] Although we doubt the procedural validity of presenting an opening statement to the trial court before jury selection when the plaintiff has not waived his or her right to a jury trial, we need not address that issue because we reverse the judgment on other grounds.

^[13] Because we decide Dorsett's contentions regarding the trial court's exclusion of Brewis's expert opinions and grant of Company's nonsuit motion on other grounds, we need not address Dorsett's argument that certain language in Dorsett, supra, D042579, constituted law of the case.