Key Decisions

September 2012 – A Witness Qualified As An Expert Established Foundation For His Opinions

(filed under: Key Decisions Archive | September 26, 2012)

A Witness Qualified As An Expert And His Declaration Established A Sufficient Foundation For His Opinions

Howard Entertainment, Inc. v. Kudrow
(Cal. Ct. of App., 2d Dist.), filed August 22, 2012


Actress Lisa Kudrow entered into an oral agreement with Scott Howard under which Howard would be her personal manager. For his services, Howard would receive a percentage of Kudrow’s income.

Kudrow terminated Howard’s services. However, Howard claimed that he should continue to receive payment for engagements that Kudrow undertook while he was her personal manager. Howard relied upon custom and usage in the industry to support his claim.

Kudrow moved for summary judgment. She asserted that there was no agreement that Howard would receive compensation once his engagement as personal manager ended.

Howard opposed Kudrow’s motion. To show a triable issue of material fact, Howard attempted to show that the custom and usage in the industry was that personal managers would receive post-termination compensation for engagements undertaken during the term of their employment. To show custom and usage in the industry, Howard submitted a declaration of Martin Bauer. Bauer purported to be an expert on such matters.

Kudrow objected to much of Bauer’s declaration, claiming it lacked foundation. The trial court sustained her objections and granted her motion.


The Court of Appeal reversed. It held that Bauer’s declaration should have been admitted in evidence.

Custom and usage may be looked to, both to explain the meaning of language and to imply terms, where no contrary intent appears from the terms of the contract. Thus, custom and usage in the entertainment industry could become part of the oral agreement between Kudrow and Howard to explain whether Howard was entitled to receive post-termination compensation.

Expert testimony is admissible to prove custom and usage in an industry. However, such testimony can be challenged for lack of foundation. The lack of foundation for an expert’s testimony can be based on things such as the expert not being qualified, the invalidity of the principles or techniques upon which the expert relied, or as to the lack of reliability and relevance of the facts upon which the expert relied.

The foundation required to establish the expert’s qualifications is a showing that the expert has the requisite knowledge of, or was familiar with, or was involved in a sufficient number of transactions involving the subject matter of the opinion.

The court found that Bauer’s declaration established his qualifications as an expert. It found that the fact that Bauer was not a personal manager at the time Howard and Kudrow made their oral agreement was not fatal to his qualifications as an expert. It noted:

[W]e conclude the additional Bauer declaration demonstrated, for purposes of opposing Kudrow’s motion for summary judgment, that Bauer had the requisite knowledge of, or was familiar with, or was involved in a sufficient number of transactions to establish a sufficient foundation for his qualifications to opine that it was the custom and usage during the relevant period of time to pay to personal managers post-termination commissions on engagements entered into and services rendered during the representation.

An expert may rely upon experiences and conversations he or she has had and information he or she has obtained without the necessity of providing the specifics of such experiences and conversations. For example, a gang expert may rely on conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. Therefore, the trial court improperly concluded that Bauer’s lack of specificity as to his experiences rendered his opinions inadmissible.

The court noted that “Bauer’s testimony might be discounted at trial;” but that it was admissible and something the trier of fact was entitled to consider.


The admissibility of expert opinions may be critical at trial, or earlier in conjunction, with summary judgment motions. This opinion helps clarify the acceptable basis for some expert opinions.