Hart v. Keenan Properties, Inc. ( 2018 )

Filed 11/21/18 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
FRANK C. HART et al., A152692
Plaintiffs and Respondents,
(Alameda County
v. Super. Ct. No. RG16838191)
KEENAN PROPERTIES, INC.,
ORDER MODIFYING
Defendant and Appellant. PUBLICATION ORDER OF
NOVEMBER 19, 2018
THE COURT:
Due to clerical error and inadvertence, the order filed November 19, 2018
directing publication of the opinion in the above-referenced matter attached an incorrect
attorney and trial court listing page. The correct attorney and trial court listing is attached
to this order and shall replace the incorrect listing.
Dated: _____________________ _____________________________, P.J.
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Brad Seligman
Counsel:
Maune Raichle Hartley French & Mudd, LLC, David L. Amell and Marissa Y. Uchimura
for Plaintiffs and Respondents.
CMBG3 Law, W. Joseph Gunter, Gilliam F. Stewart for Defendant and Appellant
Filed 10/26/18; Certified for Publication 11/19/18 (order attached) (unmodified opinion)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
FRANK C. HART et al.,
Plaintiffs and Respondents,
A152692
v.
KEENAN PROPERTIES, INC., (Alameda County
Defendant and Appellant. Super. Ct. No. RG16838191)
Keenan Properties, Inc. (“Keenan”) appeals from the judgment in an asbestos-
related personal injury case. Frank C. Hart (“Mr. Hart”) and Cynthia Hart (“Mrs. Hart”)
(collectively, “the Harts”) sued Keenan and other entities alleging Mr. Hart developed
mesothelioma as a result of exposure to asbestos-containing products. The jury found
Keenan supplied pipes that exposed Mr. Hart to asbestos. This finding was based on a
foreman’s testimony regarding invoices purporting to show Keenan supplied asbestos-
cement pipes to a worksite in McKinleyville, California in the 1970s. We conclude this
testimony was based on inadmissible hearsay, and there was no other evidence Keenan
supplied the pipes. Accordingly, we reverse the judgment against Keenan.
FACTUAL AND PROCEDURAL HISTORY
1
Mr. Hart suffers from mesothelioma, which is caused by exposure to asbestos.
Mr. Hart worked in construction as a pipe layer, and, since 1985, he was a foreman of
pipe layers.
The McKinleyville Jobsite
From September 1976 to March 1977, Mr. Hart worked in McKinleyville, and his
job involved cutting asbestos-cement pipe. In McKinleyville, Mr. Hart worked for
Christeve Corporation (“Christeve”). The project involved installing new sewer lines,
and Mr. Hart worked with eight-inch, asbestos-cement pipe manufactured by Johns-
Manville Corporation (“Johns-Manville”). Mr. Hart installed thousands of feet of the
pipe. The pipe was delivered to the jobsite on flatbed trailers, but Mr. Hart did not know
who supplied the pipe. As a pipe layer, Mr. Hart had no access to information regarding
the supplier, but the “people that would know would be people who worked in the office
or the foremen.”
John Glamuzina (“Glamuzina”) was one of Mr. Hart’s foremen on the project in
McKinleyville. 1 Glamuzina was Mr. Hart’s direct supervisor from January to March
1977. Glamuzina observed Mr. Hart cut and bevel asbestos-cement pipe without any
respiratory protection. Glamuzina estimated his crew laid over 4,000 feet of pipe.
Glamuzina knew Johns-Manville manufactured the pipe based on his observation
of a stamp on the pipe. Glamuzina believed Keenan supplied the pipe because he signed
invoices when truckers delivered loads. Glamuzina checked the invoices to make sure
the load matched the information on the invoices. Glamuzina turned in a carbon copy of
the invoices to the office at the end of the day. Glamuzina believed Keenan supplied all
of the pipe his crew laid in McKinleyville.
1
Due to his unavailability at the time of trial, the jury watched a videotape of
Glamuzina’s deposition, which occurred on March 13, 2017, almost four months prior to
trial. Glamuzina was 81 years old at the time of his deposition.
2
Glamuzina could not recall exactly how Keenan was written on the invoices.
Glamuzina was working in the field and in a hurry, so he checked the load and the
numbers on the invoices, signed them, and gave them back to the truckers. He believed
Keenan was the supplier based on “their K and stuff.” Glamuzina did not recall the
names of any other suppliers. Depending on how fast his crew was laying pipe,
Glamuzina received about two or three loads of pipe per week. Other foremen also
checked the invoices, and Glamuzina checked about one or two per week.
Olga Mitrovich, Christeve’s bookkeeper in the 1970s, testified that employees,
including Glamuzina, were responsible for accepting materials at the jobsite, and they
would “initial the ticket,” send it to Christeve’s office, and Mitrovich would “compare
the invoice with the delivery ticket” before paying the invoice. However, Mitrovich did
not know if Keenan supplied asbestos-cement pipe to Christeve in McKinleyville.
Keenan’s corporate representative, Timothy Garfield, acknowledged that Keenan
sent its customers invoices. At his deposition, and during trial, he identified a document
as a copy of a Keenan invoice. 2 The document contained Keenan’s logo, which consisted
of a “K” in a circle. However, the invoice was for products Keenan sold to an entity
called Three D. Const. Co., not to Christeve in McKinleyville. Garfield testified he had
“no information whatsoever that Keenan ever sold anything that was used in the
McKinleyville work while Mr. Hart was working there.”
Complaint, Trial, Verdict, and Damages
On November 6, 2016, the Harts filed a complaint for personal injury and loss of
consortium against numerous entities, including Keenan. Keenan answered the
complaint and denied the allegations. At trial, which began on July 5, 2017, Keenan was
the only remaining defendant.
2
The court marked this exhibit for identification but did not admit it into evidence,
finding there was not a sufficient foundation to admit it.
3
On July 14, 2017, the jury rendered its verdict, finding, among other things, that
Mr. Hart was exposed to asbestos-cement pipe supplied by Keenan. The jury awarded
economic damages, non-economic damages, and damages for loss of consortium. The
jury allocated fault among ten entities, finding that Keenan was 17% at fault. In its
amended judgment, filed September 23, 2017, the court apportioned 45% of prior
settlements to potential, future wrongful death claims, and the remaining 55% to the
personal injury action. The total net verdict against Keenan was $1,626,517.82. Keenan
timely appealed.
DISCUSSION
On appeal, Keenan makes three arguments. First, Keenan contends the court
“abused its discretion in allowing . . . Glamuzina’s double hearsay testimony regarding
the contents of an unavailable, unauthenticated ‘receipt.’ ” Second, Keenan argues the
testimony of an expert witness regarding Mr. Hart’s medical expenses was inadmissible.
Third, Keenan contends the court “erred when it included . . . [Mrs. Hart] among the
prospective wrongful death heirs in determining the proportion of settlements to set aside
for those heirs.” We do not address Keenan’s second and third arguments because we
conclude there was no admissible evidence showing Keenan supplied asbestos-cement
pipe to the McKinleyville jobsite.
I.
The Court Abused Its Discretion by Admitting Glamuzina’s Testimony
Keenan’s first argument challenges the admissibility of Glamuzina’s testimony
regarding the supplier of the pipe at the McKinleyville jobsite. We begin with the
standard of review.
A. Standard of Review
“ ‘ “[A]n appellate court reviews any ruling by a trial court as to the admissibility
of evidence for abuse of discretion.” ’ ” (Osborne v. Todd Farm Service (2016) 247
4
Cal. App. 4th 43, 50 (Osborne).) A trial court abuses its discretion “only if the trial court’s
order exceeds the bounds of reason. [Citation.] ‘Where a trial court has discretionary
power to decide an issue, an appellate court is not authorized to substitute its judgment of
the correct result for the decision of the trial court.’ [Citation.] We will only interfere
with the lower court’s judgment if appellant can show that under the evidence offered,
‘ “ ‘no judge could reasonably have made the order that he did.’ ” ’ ” (DiCola v. White
Brothers Performance Products, Inc. (2008) 158 Cal. App. 4th 666, 679 (DiCola).)
B. Keenan’s Motion in Limine
Before trial, Keenan moved in limine to exclude Glamuzina’s testimony. Keenan
argued the Harts could not authenticate purported Keenan invoices, and Glamuzina’s
testimony regarding Keenan invoices was inadmissible hearsay. The Harts argued there
was no need to authenticate the invoices because Glamuzina did not testify regarding
their content. At the hearing on this motion, the court tentatively denied it. However, the
court permitted the Harts to file a supplemental brief addressing Osborne, supra, 247
Cal. App. 4th 43, a case in which the court excluded evidence purporting to establish the
supplier of an item involved in an accident. After considering the additional briefing, the
court entered a written order denying the motion in limine.
C. The Court Abused Its Discretion by Denying Keenan’s Motion to Exclude
Glamuzina’s Testimony
On appeal, Keenan contends Glamuzina’s testimony that Keenan was the supplier
of the pipe used in McKinleyville was inadmissible hearsay. We agree with Keenan. We
begin with a more detailed account of Glamuzina’s testimony.
1. Glamuzina’s Testimony
To establish Keenan supplied asbestos-cement pipe to the McKinleyville jobsite,
the Harts relied on Glamuzina’s testimony regarding signing invoices when truckers
delivered loads of the pipe. Glamuzina testified as follows:
5
“Q. And how did you know Keenan was the supplier of the asbestos cement pipe
that your crew was laying in the City of McKinleyville?
“A. Well, there would be different invoices to sign when the truckers would come
up with a load.
“Q. Okay. Did you personally sign any of these invoices?
“A. There was a few. I can’t remember how many.
“[¶] . . . [¶]
“Q. The invoices that you mentioned, what exactly did they have? What
information did they have on them?
“A. It would just -- the trucker would have an invoice of his load, what he had on
his load, and I’d just double-check it, see -- usually it tells you where it came
from. That’s all.
“Q. And what do you mean where it came from?
“A. What plant or -- stuff like that, I didn’t -- all I would do is count the load and
see what we had and sign it, and it would be off.
“Q. And what sort of materials was Keenan [s]upplying to the City of
McKinleyville job?
“A. The transite pipe for the sewer.
“Q. This is the Johns-Manville transite pipe?
“A. Yeah. Yes.
“Q. Did you see the name Keenan on the invoices that you personally signed?
“A. I recall a few times, yes.”
Later, when examined by another attorney, Glamuzina was asked:
“Q. You mentioned that some of the materials were supplied by Keenan, and you
mentioned that you saw Keenan on some of the invoices; is that right?
“A. I recollect some of it, yes.
6
“Q. How was Keenan written on the invoices?
“A. I thought it was, if I can remember right, I think it was like a print, I’m not
positive, like a black print or -- I can’t -- to be honest, I can’t recall exactly.
“Q. Do you know if it just said Keenan or if there were any other words?
“A. I couldn’t answer that.
“Q. The invoices that you would see with Keenan written on there, what types of
materials were being supplied by Keenan?
“A. I would just check the load for my eight-inch pipe, shorts or whatever came on
the pipe, that’s all I would check on that.
“Q. So you were checking the invoices to make sure that the amount of pipe or
whatever materials were being supplied matched what was on the truck?
“A. Yeah, whenever I was there, when they delivered when I was there, I was
always checking.
“Q. And did you ever have to sign any of the invoices indicating that you had done
your check and the invoices matched what was being delivered?
“A. We did sign a trucker’s invoice, yes.
“Q. And then what would you do with the invoice?
“A. I’d take a copy and give it to the office.
“Q. Would the trucker keep a copy of the invoice?
“A. He would keep his, that’s correct.
“Q. Were those like carbon copy invoices?
“A. That’s correct.
“Q. I’m sorry. And who would you give your copy to?
“A. I would turn everything into the office at the end of the day.
“[¶] . . . [¶]
7
“Q. Now, when you were going through these invoices, did you see any other
names of any other suppliers aside from Keenan?
“A. No. I was in a hurry. When you’re working out in the field, you’re in a hurry,
you just sign it and give it back. You look at the top of the load and you look at
the big numbers, and that’s it. That’s what you remember. You don’t look at the
little.
“Q. Why is it that Keenan sticks out in your mind?
“A. Just the way the -- their K and stuff is all -- I don’t know. Maybe it’s through
the years, maybe it’s worked into my head. I don’t know.
“Q. But as you sit here today, you can’t recall the names of any other suppliers on
any of those invoices that you reviewed at McKinleyville?
“[¶] . . . [¶]
“THE WITNESSS: That’s correct.”
2. Glamuzina’s Testimony Was Based on Hearsay Evidence
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) 3 Hearsay evidence is inadmissible, unless it
falls under an exception. (§ 1200, subd. (b).) Invoices, bills, or receipts are inadmissible
hearsay, unless offered for the limited purpose of corroborating a witness’s testimony.
(Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal. 2d 33, 42–43
(Pacific Gas & E.); Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1267.)
3
All undesignated statutory references are to the Evidence Code.
8
Here, there were no invoices or receipts showing Keenan supplied asbestos-
cement pipe to the McKinleyville jobsite. Christeve wound up its business in 2001, and
all of its documents were destroyed in 2002. Keenan either disposed of all its documents
or transferred them to its successor in 1983. Its successor testified that if documents were
transferred to it, they were destroyed. The document shown to Keenan’s corporate
representative was not an invoice from Keenan to Christeve.
Glamuzina’s belief that Keenan supplied the asbestos-cement pipe was based on
his review of invoices or delivery tickets. The wording on these invoices or delivery
tickets were out-of-court statements offered to prove the truth of the matter asserted:
namely, that Keenan supplied the pipes. The invoices described by Glamuzina were
hearsay. (Pacific Gas & E., supra, 69 Cal.2d at pp. 42–43.)
Furthermore, Glamuzina’s testimony, standing alone, was insufficient to prove the
pipe Glamuzina saw on the truckers’ loads was asbestos-cement pipe supplied by
Keenan. Glamuzina believed Keenan supplied the pipes based on his review of invoices
or delivery tickets. Critically, he lacked personal knowledge of who the supplier was.
His testimony was inadmissible for this reason. (§ 702 [“the testimony of a witness
concerning a particular matter is inadmissible unless he has personal knowledge of the
matter.”].) 4
In finding otherwise, the trial court stated it did not consider “a logo, emblem, or
similar designation of identity as testimonial hearsay; rather, it is circumstantial evidence
of identi[t]y.” The trial court made a similar point at the hearing on the motion in limine.
4
As we discuss post, neither is Glamuzina’s oral testimony regarding Keenan’s
name or logo on invoices admissible under section 1523 because his testimony is based
on hearsay. Our dissenting colleague argues Keenan did not object on the ground that
Glamuzina lacked personal knowledge of the identity of the supplier. (Dis. opn., post, at
p. 3.) But Keenan did object to Glamuzina’s testimony on hearsay grounds, and
Glamuzina lacked personal knowledge precisely because his belief regarding the identity
of the supplier was based on words he said he read or saw on invoices or delivery tickets.
9
It stated: “This case is . . . about whether or not somebody can testify he saw a name, or
I’ll even use the word a ‘brand’ on a document and whether that’s circumstantial
evidence of that. [¶] I think that the testimony is not testimonial. It’s not a matter that a
hearsay rule would normally apply to and until the court of appeals addresses that, if I see
a yellow cab, I will allow permission to say it’s a Yellow Cab. [¶] If I have somebody
come in and say I saw a hat that had a big letter on it, I will allow that testimony, and if
someone comes in and says I saw a big K on it, I will permit that testimony. So [the
motion in limine] is denied.”
We are not persuaded by this analysis. Glamuzina also testified Johns-Manville
manufactured the pipes based on his observation of a stamp on them, and there was no
objection to this testimony. Here, we are not called upon to determine the proper basis
for admitting testimony regarding a witness’s observation of a company’s name or logo
on a product. Instead, we must determine whether a witness’s testimony regarding what
he saw on invoices was admissible. The information Glamuzina observed on invoices or
delivery tickets was an out-of-court statement used to show Keenan supplied asbestos
containing pipes; the statement was offered for the truth of that matter. (See Pacific Gas
& E., supra, 69 Cal.2d at p. 43 [“invoices, bills, and receipts . . . are hearsay”].) Thus,
Glamuzina’s testimony about the identity of the supplier of the pipe was based on
hearsay. (DiCola, supra, 158 Cal.App.4th at p. 681 [determining package labeling
reading “Burly Brands” and instruction sheet constitute hearsay when offered to prove
the truth of the matter asserted, namely, that the box contained a “Burly Brands”
product.].)
In arguing otherwise, the Harts rely on Jazayeri v. Mao (2009) 174 Cal. App. 4th
301, but that case is inapposite. In Jazayeri, the court found altered copies of documents
were not hearsay because they were not offered for the truth of the matter asserted. (Id.
at p. 316.) Instead, the documents were offered “as the operative documents establishing
10
the fraud perpetuated on appellants.” (Ibid.) But Glamuzina’s testimony regarding
Keenan invoices was offered for the truth of the matter asserted: namely, that Keenan
supplied the pipes.
Nor are we persuaded by the Harts’s reliance on People v. Freeman (1971) 20
Cal. App. 3d 488 (Freeman). In Freeman, a witness for the prosecution testified she heard
her daughter greet someone using the words, “Hi, Norman.” (Id. at p. 492.) The court
determined the testimony was not hearsay because it was “not offered to prove the
statement’s truth or falsity but as evidence of the fact that the statement was made.”
(Ibid.) The court reasoned the statement was circumstantial evidence of Norman
Freeman’s presence at a particular location at a time when he said he was elsewhere.
(Ibid.) Citing Wigmore on Evidence, the Freeman court noted that “ ‘[u]tterances
serving to identify are admissible as any other circumstance of identification would be.’ ”
(Ibid.)
Here, unlike in Freeman, we cannot disregard the truth or falsity of the out-of-
court statements at issue. According to Glamuzina, the invoices contained the name of
the vendor supplying the material and submitting the invoices for payment. Glamuzina’s
testimony regarding the content of the invoices was used to prove that Keenan was the
vendor. Therefore, the content of the invoices was being offered for the truth of the
matter asserted in them. (See Osborne, supra, 247 Cal.App.4th at pp. 52–53 [testimony
regarding supplier of hay bales was properly excluded as hearsay because it was offered
to prove the truth of the matter asserted].)
Among other decisions, the Harts cite Brown-Forman Distillers Corp. v. Walkup
Drayage & Warehouse Co. (1945) 71 Cal. App. 2d 795, 798, to support their contention
that “California law routinely accepts . . . identifying information as circumstantial
evidence of origin or identification.” At oral argument, the Harts also relied on People v.
Williams (1992) 3 Cal. App. 4th 1535 (Williams), in which the court considered the
11
admissibility of a fishing license and two checks to prove the defendant resided in the
apartment where the documents were found, and concluded that “regardless of the truth
of any express or implied statement contained in those documents, they are circumstantial
evidence that a person with the same name as the defendant resided in the apartment from
which they were seized.” (Id. at p. 1542.)
Here, unlike in Williams, the invoices themselves have been destroyed and the
Harts did not offer any in evidence. Thus, we are not considering the admissibility of
documents. We cannot disregard that Glamuzina’s testimony was offered for the truth of
the matter asserted in an out-of-court statement. When the statement of the supplier’s
name or identity appears in an invoice or on a delivery ticket, then it is an out-of-court
statement. (Pacific Gas & E., supra, 69 Cal.2d at pp. 42–43.) When the statement is
used to prove the truth of the matter asserted, namely, that Keenan supplied pipes to the
McKinleyville jobsite, then it is only admissible if it satisfies a hearsay exception. 5
3. No Hearsay Exception Applies
In denying Keenan’s motion in limine, the trial court stated that if the invoice was
hearsay, then “the invoice bearing the Keenan logo is a statement of a party (or a
statement of one authorized by a party) and accordingly comes within an exception to the
hearsay rule.” On appeal, the Harts make the same argument. We disagree.
“Evidence of a statement is not made inadmissible by the hearsay rule when
offered against the declarant in an action to which he is a party in either his individual or
representative capacity, regardless of whether the statement was made in his individual or
representative capacity.” (§ 1220.) In People v. Lewis (2008) 43 Cal. 4th 415, our
Supreme Court determined drawings found in the defendant’s apartment were not
5
Keenan refers to Glamuzina’s testimony as “double hearsay.” We disagree.
Instead, Glamuzina’s testimony was based on hearsay.
12
admissible as party admissions because there was no evidence the defendant drew them.
(Id. at p. 498.) 6
Similarly here, no copies of Keenan invoices or delivery tickets showing it
supplied pipes to the McKinleyville jobsite were admitted into evidence, and Glamuzina
worked for Christeve, not Keenan. At oral argument, the Harts acknowledged
Glamuzina’s testimony was offered against Keenan. “[I]n order to bring a statement or
declaration within the operation of the rule contended for it must be shown that the
statement or declaration was signed or made by the party against whose interest it is
sought to have it apply; and that is not the situation here presented.” (Pansini v. Weber
(1942) 53 Cal. App. 2d 1, 5.)
We respectfully disagree with the dissent’s view that this hearsay exception
applies because Keenan was the declarant. (Dis. opn., post, at pp. 1–2.) Keenan’s
corporate representative had no information regarding whether Keenan sold pipes used in
McKinleyville, and the Harts did not produce any invoices showing it did. Instead, the
Harts were forced to rely on the testimony of Glamuzina, an employee of Christeve.
Thus, Glamuzina could not be a party-opponent. When ruling on the motion in limine,
the court was considering the admissibility of this testimony, not the admissibility of a
document. Without a document showing Keenan supplied the pipes to the McKinleyville
jobsite, Glamuzina’s testimony was not admissible as an admission by Keenan, and the
Harts do not contend any other hearsay exception applies.
4. Glamuzina’s Testimony Is Not Admissible Under Evidence Code
Section 1523 Because It Is Based on Hearsay
In ruling on Keenan’s motion in limine, the trial court noted “Keenan’s records of
invoices were apparently destroyed by its successor. See [section 1523, subdivision (b)].”
6
Abrogated on other grounds in People v. Black (2014) 58 Cal. 4th 912, 919–920.
13
But this Evidence Code provision does not provide a basis for admitting Glamuzina’s
testimony.
Oral testimony of the content of a writing is admissible “if the proponent does not
have possession or control of a copy of the writing and the original is lost or has been
destroyed without fraudulent intent on the part of the proponent of the evidence.” (§
1523, subd. (b).) Here, Keenan’s records were destroyed by it or its successor. For this
reason, the Harts relied on Glamuzina’s oral testimony to establish Keenan supplied the
pipes in McKinleyville.
But, as explained by our Supreme Court, “[s]econdary evidence . . . must comply
with the rules governing the admissibility of evidence generally, including . . . the
hearsay rule . . . .” (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal. 4th
1059, 1070, fn. 2.) In other words, “[a] writing that passes muster under the secondary
evidence rule is not necessarily admissible. The writing ‘still may be inadmissible
because of other exclusionary rules of evidence, such as hearsay . . . .’ ” (Molenda v.
Department of Motor Vehicles (2009) 172 Cal. App. 4th 974, 994–995.) As explained
ante, Glamuzina’s testimony was based on hearsay, and no hearsay exception applies.
Hence, Glamuzina’s oral testimony regarding the content of the invoices was not
admissible under section 1523, subdivision (b).
5. Glamuzina Could Not Authenticate the Keenan Invoices Because His
Testimony Was Not Otherwise Admissible
In overruling Keenan’s motion in limine, the trial court’s final point was that
Glamuzina’s testimony was sufficient to authenticate the Keenan invoices because it was
his duty to check them, and his description was consistent with an exemplar of a Keenan
invoice. On appeal, the Harts agree, pointing out that “the proponent of secondary
evidence must still satisfy the threshold showing of authenticity.”
A writing must be authenticated before it, or secondary evidence of its content,
may be received in evidence. (§ 1401.) In addition, when the content of a writing is
14
proved by secondary evidence, authentication is required. (§ 1521, subd. (c).) But the
secondary evidence must be “otherwise admissible.” (§ 1521, subd. (a).) Here, as
explained ante, Glamuzina’s testimony regarding Keenan invoices was based on hearsay
and no exception applies. This secondary evidence was not “otherwise admissible,” so
the question of whether the Keenan invoices were properly authenticated does not come
into play.
Even if the authentication requirement did apply, Glamuzina could not
authenticate the purported Keenan invoices. “Authentication of a writing means (a) the
introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts by any other
means provided by law.” (§ 1400.) To introduce a writing, a proponent must establish
that the writing is authentic, which usually means introducing evidence “that the writing
was made or signed by its purported maker.” (Cal. Law Revision Com. com., 29B pt. 4
West’s Ann. Evid. Code (1995 ed.) foll. § 1400, p. 440; see People v. Goldsmith (2014)
59 Cal. 4th 258, 266–267.)
“A writing may be authenticated by anyone who saw the writing made or
executed, including a subscribing witness.” (§ 1413.) The Evidence Code does not limit
the means by which a writing may be authenticated. (§ 1410.) Nonetheless, courts do
not assume “documents are what they purport to be . . . . Generally speaking, documents
must be authenticated in some fashion before they are admissible in evidence.”
(Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 525.)
Here, Glamuzina was a Christeve foreman, so, with regard to the purported
Keenan invoices, he did not see “the writing made or executed . . . .” (§ 1413.) Keenan’s
corporate representative acknowledged Keenan sent its customers invoices, but he had
“no information whatsoever that Keenan ever sold anything that was used in the
McKinleyville work while Mr. Hart was working there.” Christeve’s bookkeeper did not
15
know if Keenan supplied asbestos-cement pipe to Christeve in McKinleyville. If the
Harts were required to authenticate the purported Keenan invoices, then Glamuzina’s
testimony was insufficient to do so. (See Osborne, supra, 247 Cal.App.4th at p. 53
[refusing to admit the plaintiff’s testimony about her observation of delivery tickets
identifying a supplier in part because she “did not possess the physical document to
which her testimony referred and no other witness . . . claimed to have seen it.”].)
Because there was no reasonable basis for admitting Glamuzina’s testimony
regarding Keenan invoices, we conclude the trial court abused its discretion by doing so.
The erroneous admission of this evidence was not harmless because there was no other
evidence establishing Keenan supplied asbestos-cement pipe to the McKinleyville
jobsite. Accordingly, we reverse the judgment against Keenan.
16
DISPOSITION
The judgment against Keenan is reversed. Keenan is entitled to costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
17
JONES, P.J.
I concur.
BRUINIERS, J.
(A145125)
18
Dissent of Needham, J.,
The majority reverses the Harts’ $1.6 million jury verdict against appellant
Keenan Properties, Inc. (Keenan) on the ground that the trial judge abused his discretion
in allowing jurors to hear sworn testimony that invoices accompanying asbestos-
containing pipes bore the name “Keenan.” I respectfully dissent.
At issue is the admissibility of John Glamuzina’s testimony that the invoices and
delivery tickets he personally observed had the name “Keenan” on them. The trial
court’s admission of the evidence is reviewed for an abuse of discretion. “ ‘Where a trial
court has discretionary power to decide an issue, an appellate court is not authorized to
substitute its judgment of the correct result for the decision of the trial court.’ [Citation.]
We will only interfere with the lower court’s judgment if appellant can show that under
the evidence offered, ‘ “no judge could reasonably have made the order that he did. ” ’
[Citation.] [A] showing will be ‘insufficient if it presents a state of facts which simply
affords an opportunity for a difference of opinion.” (DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal. App. 4th 666, 679–680, italics added.)
1. Hearsay
Assuming that the out-of-court statement (pipe invoice with the name “Keenan”)
was offered for its truth (to prove the pipes were provided by Keenan), the statement is
hearsay and the question is whether a hearsay exception applies.
Sufficient evidence supported the hearsay exception for a statement of a party-
opponent. (Evid. Code, § 1220.) The evidence was that Keenan sent invoices to
customers, those invoices bore a circled “K” logo, Glamuzina checked and signed
invoices accompanying the asbestos-containing pipe, he observed “Keenan” on those
invoices, and the word “Keenan” stuck in his mind because of the way the “K” was
written. Upon this state of facts, it would be reasonable to conclude that it was Keenan
19
who authored invoices bearing the name “Keenan,” so that Keenan would be paid for its
pipes. Because it was reasonable to conclude that defendant Keenan was the declarant,
the court did not abuse its discretion in ruling the statement admissible for the plaintiffs
as the statement of a party-opponent. (See Lannes v. CBS Corp. (N.D.Cal. 2013) 2013
U.S. Dist. Lexis 191312, fn. 7 [mesothelioma plaintiff’s testimony, that he saw the
defendant’s name on replacement sheet material and ordering guides for replacement
parts that contained asbestos, was admissible because it pertained to an admission by a
party-opponent under Fed. Rule Evid. 801(d)(2)]; Metro-Goldwyn-Mayer Studios, Inc. v.
Grokster, Ltd. (C.D.Cal. 2006) 454 F. Supp. 2d 966, 974 [“Documents that bear [a party’s]
trade names, logos, and trademarks are statements by [that party] itself, and are
admissible as admissions by a party-opponent under [Fed. Rule Evid. 801(d)(2)]”].)
The majority’s reliance on People v. Lewis (2008) 43 Cal. 4th 415 is misplaced.
(Opn. 12.) In Lewis, the court determined that drawings found in a defendant’s apartment
were not admissible as party admissions because there was no evidence the defendant
drew them and, in fact, the prosecutor’s theory at trial was that someone other than the
defendant had drawn them. (Lewis, at p. 498.) Here, by contrast, the plaintiffs contended
that Keenan created the invoices, and there was at least some evidence to support that
theory. After all, it would make no sense under the facts of this case for anyone other
than Keenan to submit an invoice requiring payment to Keenan.
The majority also suggests that Glamuzina’s testimony was not admissible as a
party admission because Glamuzina did not work for Keenan. (Opn. at 12.) However,
the question is whether the declarant – the one who made the invoice statement – was a
party-opponent, not whether witness Glamuzina was a party-opponent. If defendant
20
Keenan was the declarant, the statement falls within the hearsay exception if offered by
the plaintiffs, no matter what witness the plaintiffs used. 7
7
The majority cites DiCola, supra, 158 Cal. App. 4th 666 for the proposition that the
testimony about the invoice bearing Keenan’s name was hearsay. DiCola specifically
noted, however, that the appellants in that case had not argued any hearsay exception.
(Id. at p. 681.) Here, the Harts argue, and the court ruled, that a hearsay exception
applied.
21
2. Personal Knowledge
The majority contends that Glamuzina lacked personal knowledge of the identity
of the supplier. (Opn. 9.) Its position is unpersuasive. In the first place, appellant
Keenan did not object on that ground. (Evid. Code, § 353.) Moreover, Glamuzina had
personal knowledge of the facts to which he testified – that he personally saw invoices
bearing Keenan’s name. From this testimony, if believed by the jury, the jury could
decide whether to infer that the pipe was indeed from Keenan.
3. Authentication
Although the invoices themselves were not admitted into evidence, the majority
points out that they had to be authenticated for Glamuzina’s secondary evidence to be
admissible. (Opn. 14; see Evid. Code, § 1401.)
“Authentication of a writing means . . . the introduction of evidence sufficient to
sustain a finding that it is the writing that the proponent of the evidence claims it is.”
(Evid. Code, § 1400.) The testimony of a subscribing witness is not required (Evid.
Code, § 1411), and authentication may be established by circumstantial evidence and the
document’s contents (Evid. Code, § 1410; People v. Skiles (2011) 51 Cal. 4th 1178,
1187).
Here, Glamuzina’s testimony suggested that he saw “Keenan” with a distinctive
“K” on the invoices, and Keenan’s corporate representative admitted that Keenan sent its
customers invoices with a distinctive “K.” From this evidence, the jury could conclude
that the invoices Glamuzina saw were, in fact, Keenan invoices, as Hart purported them
to be. This met the threshold for authentication. (Evid. Code, § 403.)
The majority’s reliance on Osborne v. Todd Farm Services (2016) 247
Cal. App. 4th 43 is unavailing. There, it was ruled that a trial court had not abused its
discretion in declining to admit the plaintiff’s testimony that she saw delivery tickets
22
identifying the supplier of hay bales. However, this was not merely because the plaintiff
failed to offer the delivery tickets or a corroborating witness (as the majority notes), but
also because the alleged source of the documents testified that no such receipt ever
existed, he did not segregate hay in his barn by supplier, and he did not document the
supplier of hay included in any delivery. (Id at p. 53.) Here, in stark contrast, Keenan
admitted that it did invoice its customers with invoices. Moreover, the fact the court in
Osborne found that a trial court’s ruling was within its discretion does not by any means
establish that the court in this case exceeded its discretion.
In sum, appellant Keenan fails to show that the trial court abused its discretion in
admitting Glamuzina’s testimony. Of course, it was up to the jury to decide whether to
believe Glamuzina’s testimony and trust his recollection of what he saw on the pipe
invoices, and Keenan’s lawyer was free to present evidence and argue that Glamuzina
was incorrect. But any doubts as to Glamuzina’s recollection went to the weight of the
evidence, not its admissibility. (And as we now know, the jury accepted Glamuzina’s
testimony as true, rendering the reversal of the verdict all the more disturbing.)
23
NEEDHAM, J.
24
(A152692)
25
Filed 11/19/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
FRANK C. HART et al.,
Plaintiffs and Respondents,
A152692
v.
KEENAN PROPERTIES, INC., (Alameda County
Defendant and Appellant. Super. Ct. No. RG16838191)
ORDER CERTIFYING OPINION
FOR PUBLICATION
THE COURT:
The requests for publication, filed November 13, 2018 and November 15, 2018,
are granted. Pursuant to California Rules of Court, rule 8.1105(b), the opinion, filed on
October 26, 2018, is ordered published.
Dated: _______________ _________________________________, P. J.
1
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Winifred Y. Smith
Counsel:
Kazan, McClain, Satterley & Greenwood, Justin Alexander Bosl, Ted W. Pelletier,
Michael T. Stewart for Plaintiff and Appellant.
Horvitz & Levy, Lisa Perrochet, Jason R. Litt; Hugo Parker, James Carl Parker for
Defendant and Respondent.
2