Mediation Message #166


     Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442 provides an introductory law school review of what is hearsay and what is not. The Supreme Court’s additional discussion of authentication requirements is a further benefit of its analysis of two fundamental rules of evidence.

     Hart sued Keenan Properties (Keenan) and other entities for the mesothelioma he claims he contracted after installing pipes containing asbestos. Keenan, the successor company to Keenan Pipe and Supply and Keenan Supply, allegedly distributed pipe manufactured by Johns-Manville to Christeve Corporation, Hart’s employer. The logo for both Keenan Pipe and Supply and Keenan Supply was the letter “K” drawn to resemble a straight pipe and an angled pipe, enclosed in a circle. Neither Keenan nor Christeve retained sales records or invoices for the relevant period. Hart’s supervisor testified that he recalled the pipe which Hart worked on, would check the invoices to make sure the right pipe had been delivered and, if it had been, signed the invoice and turned in a copy to the site office. The supervisor recalled seeing the name Keenan on the invoices, did not see the names of any other suppliers, and that the K logo “stuck in his mind.” The trial court rejected Keenan’s hearsay objection to any reference by the supervisor to Keenan’s invoices because it was merely circumstantial evidence of identity, and not hearsay, and, even if hearsay, the evidence was a party opponent exception to the hearsay rule. The jury found that Hart had been exposed to asbestos from the pipe supplied by Keenan and awarded him damages. The Court of Appeal reversed, concluding that the supervisor’s descriptions of the invoices were hearsay.

     The Supreme Court reversed the Appellate Court judgment, holding that “a witness’s observation of the name and logo was circumstantial evidence of identity, not proof of the truth of matters asserted in the document” (id. at p. 445), and that the trial court had properly rejected the hearsay objection because the supervisor’s testimony was circumstantial evidence of Keenan’s identity as the source of the pipes. The Court did not find it necessary to consider the party opponent exception for the ruling. Hart explained that when words are being admitted for other than to prove their truth, two requirements must be met: “‘The first  … is that the out-of-court statement must be offered for some purpose independent of the truth of the matters it asserts. That means that the statement must be capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true.” (Id. at p. 447; emphasis in the original.) The second requirement is that the “Otherwise competent evidence must also be relevant. …  Evidence is relevant if it has a ‘tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Statute.) Documents and other items found at a location may be relevant to show a person has a connection with that place.” (Id. at p. 448.) In the instant matter, Hart found that the Keenan name and logo were relevant to establish that Keenan supplied pipes for the project the plaintiff had worked on. “It is the combination of some characteristic that makes the document identifiable and the independent evidence connecting Keenan to the identifiable document that establishes the link. The fact that the point of identification is words is not sufficient to make the words hearsay, unless the words are offered to prove the truth of their content.” (Id. at p. 449.)

     Hart rejected the further contention that the supervisor’s testimony was not admissible because the actual invoices had not been available and their contents had not been authenticated. “Although, generally, ‘oral testimony is not admissible to prove the content of a writing’ …, such secondary evidence may be admitted” pursuant to Evid. Code § 1523, subd. (b) where the proponent does not have possession of the writing, the original is lost or destroyed and the proponent has no fraudulent intent involving that loss or destruction. (Id. at p. 450.) “Essentially, … ‘As long as the evidence would support a finding of authenticity (see Evidence Code § 1400 there is “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is”), the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.’” Furthermore, “The means of authenticating a writing are not limited to those specified in the Evidence Code. [Citations.] For example, a writing can be authenticated by circumstantial evidence and by its contents.” (Ibid.)

And so ended the Supreme Court’s lesson on hearsay and authentication.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, June 2020

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