Rule 3.823. Rules of evidence at arbitration hearing
(a) Presence of arbitrator and parties
All evidence must be taken in the presence of the arbitrator and all parties, except where any of the parties has waived the right to be present or is absent after due notice of the hearing.
(Subd (a) amended effective January 1, 2004.)
(b) Application of civil rules of evidence
The rules of evidence governing civil cases apply to the conduct of the arbitration hearing, except:
(1)Written reports and other documents
Any party may offer written reports of any expert witness, medical records and bills (including physiotherapy, nursing, and prescription bills), documentary evidence of loss of income, property damage repair bills or estimates, police reports concerning an accident that gave rise to the case, other bills and invoices, purchase orders, checks, written contracts, and similar documents prepared and maintained in the ordinary course of business.
(A)The arbitrator must receive them in evidence if copies have been delivered to all opposing parties at least 20 days before the hearing.
(B)Any other party may subpoena the author or custodian of the document as a witness and examine the witness as if under cross-examination.
(C)Any repair estimate offered as an exhibit, and the copies delivered to opposing parties, must be accompanied by:
(i)A statement indicating whether or not the property was repaired, and, if it was, whether the estimated repairs were made in full or in part; and
(ii)A copy of the receipted bill showing the items of repair made and the amount paid.
(D)The arbitrator must not consider any opinion as to ultimate fault expressed in a police report.
The written statements of any other witness may be offered and must be received in evidence if:
(A)They are made by declaration under penalty of perjury;
(B)Copies have been delivered to all opposing parties at least 20 days before the hearing; and
(C)No opposing party has, at least 10 days before the hearing, delivered to the proponent of the evidence a written demand that the witness be produced in person to testify at the hearing. The arbitrator must disregard any portion of a statement received under this rule that would be inadmissible if the witness were testifying in person, but the inclusion of inadmissible matter does not render the entire statement inadmissible.
(A)The deposition of any witness may be offered by any party and must be received in evidence, subject to objections available under Code of Civil Procedure section 2025.410, notwithstanding that the deponent is not "unavailable as a witness" within the meaning of Evidence Code section 240 and no exceptional circumstances exist, if:
(i)The deposition was taken in the manner provided for by law or by stipulation of the parties and within the time provided for in these rules; and
(ii)Not less than 20 days before the hearing the proponent of the deposition delivered to all opposing parties notice of intention to offer the deposition in evidence.
(B)The opposing party, upon receiving the notice, may subpoena the deponent and, at the discretion of the arbitrator, either the deposition may be excluded from evidence or the deposition may be admitted and the deponent may be further cross-examined by the subpoenaing party. These limitations are not applicable to a deposition admissible under the terms of Code of Civil Procedure section 2025.620.
(Subd (b) amended effective January 1, 2008; previously amended effective July 1, 1979, January 1, 1984, January 1, 1988, July 1, 1990, January 1, 2004, and January 1, 2007.)
(1)Compelling witnesses to appear
The attendance of witnesses at arbitration hearings may be compelled through the issuance of subpoenas as provided in the Code of Civil Procedure, in section 1985 and elsewhere in part 4, title 3, chapters 2 and 3. It is the duty of the party requesting the subpoena to modify the form of subpoena so as to show that the appearance is before an arbitrator and to give the time and place set for the arbitration hearing.
(2)Adjournment or continuances
At the discretion of the arbitrator, nonappearance of a properly subpoenaed witness may be a ground for an adjournment or continuance of the hearing.
If any witness properly served with a subpoena fails to appear at the arbitration hearing or, having appeared, refuses to be sworn or to answer, proceedings to compel compliance with the subpoena on penalty of contempt may be had before the superior court as provided in Code of Civil Procedure section 1991 for other instances of refusal to appear and answer before an officer or commissioner out of court.
(Subd (c) amended effective January 1, 2007; previously amended effective July 1, 1979, and January 1, 2004.)
(d) Delivery of documents
For purposes of this rule, "delivery" of a document or notice may be accomplished manually or by mail in the manner provided by Code of Civil Procedure section 1013. If service is by mail, the times prescribed in this rule for delivery of documents, notices, and demands are increased by five days.
(Subd (d) amended effective January 1, 2004; adopted effective January 1, 1988.)
Rule 3.823 amended effective January 1, 2008; adopted as rule 1613 effective July 1, 1976; previously amended effective July 1, 1979, January 1, 1984, January 1, 1988, July 1, 1990, and January 1, 2004; previously amended and renumbered effective January 1, 2007.