CASE PROCESSING PROCEDURES; EVIDENCE – Opinion Evidence and Expert Testimony

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1105.09000 – Opinion Evidence and Expert Testimony

Neither Evidence Code section 801 nor PERB regulations support the City’s proffer of, and request for a continuance to adduce, expert witness testimony. Evidence Code section 801 provides, in pertinent 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: (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. The proffered expert testimony was not appropriate under Evidence Code section 801 (a). The question before the ALJ was the statutory construction of MMBA section 3507, as to which the City’s proffered expert testimony was neither “material” nor “relevant” within PERB Regulation 32176. Therefore, the ALJ properly excluded the proffered expert testimony and did not abuse his discretion thereby.