California Surveyors Forums

Under California Evidence code section 805, expert witnesses may testify to the ultimate issue. According to West's Annotated California Codes this is declarative of existing [case] law. The code was passed in 1965 and became operative in 1967.

West's also states application of law to facts is a legal question which is not a subject of expert testimony and cites some cases such as WRI Opportunity Loans II, LLC v. Cooper, 154 Cal. App. 4th 525 (2007) which states:

>"However, this rule “does not … authorize an ‘expert’ to testify to legal conclusions in the guise of expert opinion. Such legal conclusions do not constitute substantial evidence. Thus, even lawyers may not testify as to legal conclusions, or “ ‘state interpretations of the law, whether it be of a statute, ordinance or safety regulation promulgated pursuant to a statute [citations].’ As the court explained in Downer v. Bramet: “ ‘The manner in which the law should apply to particular facts is a legal question and is not subject to expert opinion.” [Citations removed by me]

Justice Kaufman explains in Downer v. Bramet, 152 Cal. App. 3d 837 (1984) that even Lawyers may not testify to legal conclusions as Experts because that would result in an Oath competition of Attorney Experts on the stand:

>"While in many cases expert opinions that are genuinely needed may happen to embrace the ultimate issue of fact (e.g., a medical opinion whether a physician's actions constitute professional negligence), the calling of lawyers as "expert witnesses" to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury on the law as applicable to the facts, and results in no more than a modern day "trial by oath" in which the side producing the greater number of lawyers able to opine in their favor wins. (See Silving, The Oath (1959) 68 Yale L.J. 1329, 1362-1363.)"

A more recent case, ones v. P.S. Development Co., Inc., 166 Cal. App. 4th 707 (2008), indicates that Experts may express an opinion on the practical construction of a contract:

>Jones contends that Waldo offered inadmissible opinions on questions of law, namely, Lloyd's duties under its contracts with Boeing and Comet. Generally, even lawyers may not testify as to legal conclusions. Nonetheless, in interpreting a contract, courts may properly consider the acts and conduct of the parties following the contract's execution. As Witkin explains, “[t]he conduct of the parties may be, in effect, a practical construction thereof, for they are probably least likely to be mistaken as to the intent.” (1 Witkin, Summary of Cal. Law, supra, Contracts, § 749, p. 838.) Here, Waldo, who was Lloyd's onsite supervisor, described his understanding of Lloyd's contractual duties in the context of his discharge of those duties. In our view, the trial court did not err in consulting Waldo's declaration to resolve Jones's contentions about Lloyd's duties under the contracts. [Citations removed by me]

"What are boundaries is a matter of law; but where they are is a matter of fact." (WHITE v. CLAUS SPRECKELS,, 75 Cal. 610, 1888, citing Bolton v. Lann, 16 Tex. 96). A Land Surveyor expert can testify to where the boundary is located but not what it is. The difficulty is boundaries don't exist without law and their location is closely tied to what they are in law. Often the law will designate the boundary where there is more than one location possible but at the same time the locations that aren't the boundary are non-entities.

I will leave it there because I have an appointment to go to now.

[quote=""What are boundaries is a matter of law"]

Dave,
This portion of your post reminds me of what Jeff Lucas explains in his book ‘Pincushion Effect’ regarding the distinction between “what” and “where” the boundary is. Lucas also has a section on the Ultimate Issue, which you seem to have researched specifically for California. Interesting.
Correct me if I’m wrong: I think your reference to Witkin is a type of California legal encyclopedia? Also, your reference to ‘West's Annotated California Codes’ is new to me. Would you be up for explaining “what” and “where” an annotated code is?

It's not terribly clear but some of those paragraphs are quotes from case cites. Let me do some editing to improve it.

I'm not sure exactly what Witkin is but we can look at it today to find out. That is referred to by the author of the opinion I am quoting.

I don't know how to operate this forum well enough to make things stand out better. On some forums a > will make the paragraph stand out as a quote but it isn't working here.

Dave,
I thought your post was clear enough. The explanation I meant to ask for was: "Where" can one avail themselves of an annotated code reference and "What" is its best use?


Woodcutter,
Witkin sounds interesting, maybe even something that researching surveyors would find valuable to support well reasoned boundary opinions.

Jason,

You can find annotated codes, probably more than one publisher's set, in your local county law library. The commentary will give you a good idea of how a court is likely to interpret the code for both applicability to the facts at hand and then for actual application to the matters before the court.

Annotated codes provide citations to cases in which the codes have been interpreted in different ways, or in which the court explained its interpretation and/or application of the code or principle behind the code in a particularly clear or insightful way.

Witkin's restatements or any of the annotated code sets are excellent sources to use if there is any question as to which codes might be applicable, or how those code sections would most likely be applied to matters you are facing by the courts.

You can also access these things through various online legal research subscription services such as Lexis. There are various levels of access available from free (google scholar, etc.) to several hundred $ per month (way beyond anything a surveyor will ever need). There are a few omline subscription services with fairly nominal cost ($12 to $20/mo) that are quite sufficient for most legal research needs that a surveyor might have.