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Date: 05-26-2020
Case Style:
Frank C. Hart v. Keenan Properties, Inc.
Case Number: S253295
Judge: Justice Corrigan
Court: Supreme Court of California
Plaintiff's Attorney: William F. Ruiz, Marissa Y. Uchimura, Denyse F. Clancy and Ted W. Pelletier
Defendant's Attorney: William F. Ruiz, Marissa Y. Uchimura, Denyse F. Clancy, Ted W. Pelletier, W. Joseph Gunter and Gilliam Fipp Stewart
Description:
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After Frank Hart developed mesothelioma, he and his
wife, Cynthia, sued Keenan Properties, Inc. (Keenan) and other
entities involved in the distribution and use of pipes containing
asbestos. Only Keenan’s liability is at issue, and turns on
whether sufficient evidence shows it was the source of the pipes.
From September 1976 to March 1977, Hart installed pipes
for Christeve Corporation (Christeve) in McKinleyville. His job
involved cutting and beveling asbestos-cement pipe
manufactured by the Johns-Manville Corporation (JohnsManville). Although the process released dust, Hart worked
without respiratory protection.
Keenan Pipe and Supply, a wholesale distributor, sold
asbestos-cement pipe between 1965 and 1983. In 1977, it
changed its name to Keenan Supply. The logo for both Keenan
Pipe and Supply and Keenan Supply was the letter “K” drawn
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
2
to resemble a straight pipe and an angled pipe, enclosed in a
circle.1
Successor Keenan retained no sales records or invoices
from the relevant period. Its representative testified the
company logo was originally rendered in green and white, then
changed in the 1970s to red and white. The witness also
acknowledged what appeared to be a copy of a Keenan invoice,
which bore Keenan’s name and logo. He agreed that Keenan
would have sent a sales invoice to its customers.
Christeve’s bookkeeper, Olga Mitrovich, testified that
when Christeve closed in 2001, she retained no documents
related to the McKinleyville project. She remembered the logo
of Keenan Pipe and Supply as “the K with a circle around it.”
Asked why, she replied: “Because I know that we dealt with
them, and [the logo] was unique, and I like it.”
Foreman John Glamuzina was Hart’s supervisor from
January to March 1977.
2
He was familiar with asbestos-cement
1
In 1983, Keenan Supply sold its name and most of its
assets to Hajoca Corporation, which continues to use Keenan’s
logo:
(Keenan Supply | Eureka, CA
[as
of May 21, 2020]. All internet citations in this opinion are
archived by year, docket number and case name at
.)
2 Glamuzina was unavailable at the time of trial. The jury
was shown video clips from his deposition testimony. (Evid.
Code, § 1291); all further statutory references are to the
Evidence Code.)
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
3
pipe, and recalled that it was used on the McKinleyville project.
Glamuzina explained: “[T]here would be different invoices to
sign when the truckers would come up with a load.” When he
received materials delivered to the worksite, he “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.” He would also
check the invoices to make sure the supplies listed matched
what was being delivered. If the information was correct, he
signed the invoice and retained a copy, which he turned in to the
site office. He did remember seeing the name “Keenan” on
invoices but could not “recall exactly” how Keenan’s name was
printed or how many times he saw the name on invoices. He
testified he did not see names of any other suppliers and
explained that “[w]hen you’re working out in the field, you’re in
a hurry . . . .” When asked why “Keenan sticks out in your
mind,” he replied: “Just the way the — their K and stuff is all
— I don’t know.”
Keenan moved to exclude any reference by Glamuzina to
Keenan invoices. It argued, inter alia, that any reference to
“Keenan” on the invoices constituted inadmissible hearsay.3
The court rejected Keenan’s hearsay argument, giving two
reasons. First it held the evidence was not hearsay but merely
circumstantial evidence of identity. Second, even if hearsay, the
evidence fell under an exception as the statement of a party
opponent. It admitted Glamuzina’s testimony as to the name
and logo he saw printed on the invoices given to him when pipes
3 Keenan also argued that the invoices did not exist, and if
they did exist, they were not authenticated.
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
4
were delivered. Keenan did not request a limiting instruction
on the permissible consideration of Glamuzina’s testimony.
The jury returned a plaintiff’s verdict, with a special
finding that Hart was exposed to asbestos from pipe supplied by
Keenan. Following apportionment of fault and settlements by
other defendants, a judgment of $1,626,517.82 was entered
against Keenan.
The Court of Appeal reversed, concluding Glamuzina’s
descriptions of the invoices were hearsay. (Hart v. Keenan
Properties, Inc. (2018) 29 Cal.App.5th 203, 213.) We apply a
different analysis to that question and reverse the judgment of
the Court of Appeal.
II. DISCUSSION
Hearsay is an out-of-court statement offered to prove the
truth of its content.4
(People v. Sanchez (2016) 63 Cal.4th 665,
674.) Section 225 defines the term “statement” as either “oral
or written verbal expression” or “nonverbal conduct of a person
intended by him as a substitute for oral or written verbal
expression.” Verbal expression means “relating to, or expressed
in words.” (Garner, Dict. of Modern American Usage (1998) p.
676; see also Black’s Law Dict. (11th ed. 2019) p. 1870.) Nonverbal expression refers to “conduct intended as a substitute for
the actual use of words.” (People v. Gonzalez (2017) 2 Cal.5th
1138, 1143, fn. omitted.) A document is generally a form of
written verbal expression. If it is prepared before trial and
offered to prove the truth of the words it contains, it is hearsay.
4
“ ‘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.” (§ 1200.)
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
5
As noted, the trial court relied on alternate theories to
admit Glamuzina’s testimony about the content of the invoices.
First, it concluded that Glamuzina did not convey hearsay,
because the name and logo were not offered to prove the truth
of any statement contained in the invoice. Instead, his
observations were circumstantial evidence of Keenan’s identity
as the source of the pipes. Based on the facts here, the court was
correct. As a result, we do not further consider the alternative
basis for its ruling.
A. Relevance When Not Offered for Truth of
Content
“When evidence that certain words were spoken or written
is admitted to prove that the words were uttered [or written]
and not to prove their truth, the evidence is not hearsay. (People
v. Smith[ (2002)] 179 Cal.App.4th 986, 1003 . . . .) (Text cited
with approval in People v. Armstrong [ (2019)] 6 Cal.5th 735, 786
. . . .) ‘The first and most basic requirement for applying the notfor-the-truth limitation . . . 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. [Citations.]’
(People v. Hopson [(2017)] 3 Cal.5th 424, 432 . . . .)” (Simons,
Cal. Evid. Manual (2020) Hearsay Evidence, § 2:5, p. 84.) For
example, suppose A hit B after B said, “You’re stupid.” B’s outof-court statement asserts that A is stupid. If those words are
offered to prove that A is, indeed, stupid, they constitute hearsay
and would be inadmissible unless they fell under a hearsay
exception. However, those same words might be admissible for
a non-hearsay purpose: to prove that A had a motive to assault
B. The distinction turns not on the words themselves, but what
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
6
they are offered to prove. The concept can prove analytically
elusive when the words themselves also make an assertion. (See
1 Witkin, Cal. Evidence (5th ed. 2018) Hearsay, § 37, p. 832
[“The distinction between these two uses of the evidence is not
always readily apparent”].) If the words are admitted for a nonhearsay purpose the jury is not allowed to consider the truth of
any substantive assertion, and is often instructed to that effect.
Otherwise competent evidence must also be relevant. So,
the non-truth purpose for which a statement is offered must 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.” (§ 210.) Documents and other
items found at a location may be relevant to show a person has
a connection with that place. People v. Goodall (1982) 131
Cal.App.3d 129 held that various items, including documents,
were admissible to show Goodall was linked to a home where
drugs were manufactured. Evidence recovered at the site
included a summons, various receipts, and Goodall’s driver’s
license, as well as photographs of her at the residence. The court
held that the documents were relevant regardless of the truth of
their content. “Without considering the documents for the truth
of the matter stated therein, it is relevant that documents
bearing appellant’s name or other items reasonably identifiable
as appellant’s were found at the residence. . . . The jury could
infer that these items would not have been so located unless
[Goodall]” had sufficient connection with the site to exercise
control or was aware of the illicit activity there. (Id. at p. 143.)
The Harts rely principally on the similar case of People v.
Williams (1992) 3 Cal.App.4th 1535 (Williams). Williams
sought to establish standing to challenge an apartment search
by offering proof he lived there. He called the searching officer
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
7
who had recovered a fishing license and a paycheck made out to
him. Both documents, bearing the defendant’s name and the
apartment address, were recovered from a dresser in the
bedroom where contraband was found. “The trial court opined
that the documents were being offered for the truth of the
matter being asserted therein — i.e., that the defendant lived at
the apartment, as indicated by the address on the license and on
the checks.”5
(Id. at p. 1541, fn. omitted.)
The Court of Appeal rejected that analysis. It explained
that even if the documents had not contained the address of the
searched apartment, “the fishing license and two checks at issue
here are more likely to be found in the residence of the person
named on those documents than in the residence of any other
person.” (Williams, supra, 3 Cal.App.4th at p. 1542.) In other
words, the license and checks were not admitted to prove what
the defendant’s name was, that he was permitted to fish in
California waters, or that the issuers of the checks paid him
money in a certain amount. Instead, the fact that documents
bearing his name were found at the apartment was relevant on
a different point. They tended to support an inference that the
person named lived there. The items were “circumstantial
evidence that a person with the same name as the defendant
resided in the apartment from which they were seized.” (Ibid.)
In Goodall and Williams the documents were relevant
regardless of their truth. It was the presence of the documents,
not the truth of their content, that linked those defendants to
the residences. Even if the documents bore false aliases, they
could still be evidence of the disputed link, if it could be
5 A second check made out to Williams was also found, but
apparently did not bear his address.
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
8
established that Goodall and Williams used those false names.
The documents were offered to prove the link, not the truth of
the words on them. The same inference of a link could be drawn
from the presence of items containing no hearsay at all, like a
distinctive ring belonging to Goodall or a photo of Williams with
his mother.
Here the disputed fact was whether Keenan supplied
pipes for the McKinleyville project. To prove that fact, plaintiffs
had to establish a link between Keenan and the pipes
Glamuzina recalled being delivered. The appearance of the
name and logo was relevant for that purpose, even if the
company name and logo were not expressive of Keenan’s
identity as the source. If Keenan did not use its name and had
no logo, the appearance of a document that could be shown to be
theirs would be relevant evidence if offered to prove the link.
Suppose that Glamuzina testified that the pipes were
accompanied by a document bearing the legend: “Best Pipes On
The Planet,” and the company representative testified that
Keenan printed that slogan on their invoices. That evidence,
taken together would have a tendency in reason to prove the
disputed link. The words would not be admissible to prove that
Keenan’s pipes were the best on Earth, as the slogan asserted.
They would, however, be admissible as circumstantial evidence
that the pipes that were delivered along with the identified
invoice came from Keenan. The inference would be valid
regardless of whether the assertion in the slogan is true. 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
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
9
the words hearsay, unless the words are offered to prove the
truth of their content.
Here the link between Keenan and the pipes does not
depend on the word “Keenan” being a true statement that
Keenan supplied the pipes. Instead, the link relies on several
circumstances demonstrated by the evidence. The foreman
testified that when the pipes were delivered, he was given an
invoice bearing Keenan’s name and logo and that the invoice
matched the load delivered. Bookkeeper Mitrovich testified she
would not pay for a delivery without receiving paperwork from
the foreman. Keenan’s representative identified its logo and
testified that it was printed on Keenan invoices. He also
confirmed the practice of providing an invoice to customers.
Taken together, the evidence was relevant to prove the disputed
link between Keenan and the pipes, regardless of the content
the words on the invoice might otherwise have asserted.
B. Other Arguments by Keenan
Keenan objects that the actual documents Glamuzina
described were not available, and that their contents were not
authenticated as required by section 1401. Those arguments
are unavailing. The absence of a document does not always
preclude admission of its contents. Although, generally, “oral
testimony is not admissible to prove the content of a writing”
(§ 1523, subd. (a)), such secondary evidence may be admitted “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.”
(Id., subd. (b).) Here, the Harts never possessed the documents
and were not responsible for their destruction.
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
10
“Authentication is to be determined by the trial court as a
preliminary fact (§ 403, subd. (a)(3)) and is statutorily defined
as ‘the introduction of evidence sufficient to sustain a finding
that it is the writing that the proponent of the evidence claims
it is’ . . . (§ 1400).” (People v. Goldsmith (2014) 59 Cal.4th 258,
266.) “Essentially, what is necessary is a prima facie case. ‘As
long as the evidence would support a finding of authenticity, the
writing is admissible. The fact conflicting inferences can be
drawn regarding authenticity goes to the document’s weight as
evidence, not its admissibility.’ ” (Id. at p. 267.) “The
determination regarding the sufficiency of the foundational
evidence is a matter left to the court’s discretion. [Citation.]
Such determinations will not be disturbed on appeal unless an
abuse of discretion is shown.” (People v. Brooks (2017) 3 Cal.5th
1, 47.)
“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.” (People v. Skiles (2011) 51 Cal.4th 1178, 1187
(Skiles).) Section 1410 clarifies: “Nothing in this article shall
be construed to limit the means by which a writing may be
authenticated or proved.” In People v. Gibson (2001) 90
Cal.App.4th 371 (Gibson), manuscripts describing a prostitution
enterprise were found in the appellant’s hotel room and her
home. The Court of Appeal acknowledged that “[t]here was no
evidence presented that appellant actually wrote or typed either
manuscript, nor were any fingerprints obtained from either
document.” (Id. at p. 382.) However, circumstantial evidence
properly authenticated the manuscripts. “There are clear
references to the author being ‘Sasha,’ one of appellant’s aliases.
The evidence clearly showed that appellant was operating as a
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
11
madam, that the manuscripts discussed the prostitution
business, and that the locations where these items were seized
were each a residence of appellant. Moreover, no evidence
showed that these items belonged to anyone else.” (Id. at p.
383.) We note here that authentication is a threshold
admissibility question for the court, which may look to the
document’s content. Whether the trier of fact can consider the
content of an admitted document for its truth in resolving a
disputed fact is a separate question.
Here, evidence showed Keenan was in the business of
selling asbestos-cement pipe and did business with Christeve.
One of Glamuzina’s duties was to check invoices. His
description of the logo was consistent with the exemplar of a
Keenan invoice that its representative acknowledged. The
foundation for authenticity was sufficient.
Keenan seems to assert the invoices could be
authenticated only by someone associated with Keenan. It
urges that Glamuzina was not a party-opponent and “cannot
stand in as a surrogate for Keenan.” The argument fails.
Glamuzina’s testimony did not purport to make representations
on Keenan’s behalf. Rather, he conveyed his own observations
of documents he reviewed when the pipes were delivered.
(People v. Veamatahau (2020) 9 Cal.5th 16, 27.) Although
testimony by Keenan’s agent would have been another way to
authenticate the invoices, it was not the only way.
Keenan also questions the trial court’s reliance on
Glamuzina’s testimony, for several reasons. First, it states the
evidence was provided by “an 81-year-old witness burdened by
all the fallibility of human memory,” and notes that the
testimony related to events occurring 40 years earlier. A
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
12
witness’s memory and credibility may affect how a court
exercises its discretion, but it was for the trial court to evaluate
Glamuzina’s demeanor and testimony in deciding whether a
preliminary fact had been adequately demonstrated.
Second, Keenan complains Glamuzina did not explain
what he meant by “their K and stuff.” However, there was
evidence that Keenan used a distinctive K logo which continues
in use today and which bookkeeper Mitrovich described as
“unique.” It was not unreasonable to infer Glamuzina was
referring to the K logo acknowledged by Keenan’s
representative.
Third, Keenan asserts there were dissimilarities between
Glamuzina’s testimony and the invoice exemplar. In particular,
when asked what information was on the invoices, Glamuzina
responded, “[W]hat [the trucker] had on his load, and I’d just
double-check it, see — usually it tells you where it came from.
That’s all.” Asked what he meant by “where it came from,” he
responded, “What plant or — stuff like that . . . .” Keenan notes
that the sample of a Keenan invoice does not identify a “plant.”
The exemplar does, however, include a street address in Los
Angeles and lists various cities where Keenan apparently had
offices. It is not clear what Glamuzina meant by “plant.” But
whatever ambiguity or dissimilarity is reflected in his
recollection again goes to weight, not admissibility. The trial
court’s conclusion that the foundational evidence of authenticity
was sufficient was neither arbitrary nor capricious.
Fourth, Keenan claims Glamuzina’s testimony was
inconsistent with the Harts’ trial theory that the presence of a
Keenan branch near the McKinleyville worksite supported the
conclusion that the pipe was theirs. Asked how Christeve
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
13
ordered materials for the McKinleyville job, Glamuzina said
Christeve’s owner “would order his pipe down in Southern
California and whatever they did to get it to up north.” He was
then asked, “So to the best of your understanding, he ordered
from someone in Southern California, and Keenan was
delivering it to the jobsite in Northern California?” Glamuzina
confirmed that understanding. Subsequently asked whether
the owner “would get supplies from Southern California,”
Glamuzina responded, “He would order pipe . . . down there, and
it would always come from up north or wherever we were
working, it would always come from a different place.” It is not
clear that Glamuzina’s testimony was inconsistent with the
Harts’ reliance on the proximity of a Keenan branch to the
worksite. But regardless of how any inconsistency might be
weighed by the jury, it does not follow that the trial court abused
its discretion in finding a preliminary showing of authenticity.
In addition to challenging the adequacy of Glamuzina’s
testimony, Keenan contends contrary evidence precludes a
finding of adequate authentication. It cites other invoices
showing that Johns-Manville sold asbestos-cement pipe to
Christeve and shipped it to the McKinleyville site. The court
admitted two invoices from Johns-Manville to Christeve and a
letter from Christeve to Johns-Manville, based on Olga
Mitrovich’s recognition of handwriting on those items, but it
excluded other Johns-Manville invoices. According to
Glamuzina, more than 60,000 feet of asbestos-cement pipe was
installed at the McKinleyville site. While relevant, evidence
that a different company supplied asbestos-cement pipe to the
worksite does not preclude an inference that Keenan did as well.
Keenan also relies on various cases to argue the
authentication evidence was inadequate. It relies principally on
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
14
Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43.
Osborne was injured while moving hay bales. She sought to
establish that Berrington, a hay supplier, had sold a particular
bale to Todd Farm Service. The trial court rejected the
plaintiff’s offer to testify that she saw a delivery person from
Todd Farm Service with a receipt identifying Berrington as the
supplier of the bale. The Court of Appeal upheld the ruling. It
noted the plaintiff did not possess the receipt, no other witness
claimed to have seen it, and Todd Farm Service, “the alleged
source of the document, testified that no such receipt ever
existed. [Todd] did not segregate hay in his barn by supplier
and he did not document the supplier of hay included in any
delivery. Based on this evidence, it was well within the trial
court’s discretion to find that [the plaintiff] failed to prove the
preliminary facts necessary to admit her testimony about the
delivery receipt into evidence.” (Id. at p. 53.)
This case is different from Osborne, where all evidence
except the plaintiff’s recollection showed no such receipt ever
existed. In contrast, Keenan admitted it sent invoices and
acknowledged an exemplar with a Keenan logo on it. Reviewing
invoices was one of Glamuzina’s responsibilities, which lends
weight to his recollection of how the invoices looked. In addition,
the invoices were seen at a worksite accompanying a delivery of
asbestos-cement pipe, a product Keenan sold. Osborne
concluded only that the trial court in that case did not abuse its
discretion in excluding the evidence. That holding does not
preclude a different court, faced with some but not all of the
circumstances present in Osborne, from exercising its discretion
differently.
Finally, Keenan argues that other cases suggest a
document cannot be authenticated if there is no copy before the
HART v. KEENAN PROPERTIES, INC.,
Opinion of the Court by Corrigan, J.
15
court and only one witness testifies to seeing the document. It
points to Skiles, supra, 51 Cal.4th at page 1182; People ex rel.
Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1570-1571;
Gibson, supra, 90 Cal.App.4th at page 379; and Young v.
Sorenson (1975) 47 Cal.App.3d 911, 915-916. Those cases do not
sweep as broadly as Keenan contends. As noted, section 1523,
subdivision (b) provides that the contents of a writing may be
proven by oral testimony when the proponent does not have a
copy and “the original is lost or has been destroyed without
fraudulent intent on the part of the proponent of the evidence.”
The statute does not impose any additional evidentiary
requirement. The strength of authenticity evidence in other
cases does not establish the trial court abused its discretion
here.
Outcome: The judgment is reversed and the matter remanded to the Court of Appeal for consideration of other contentions left unresolved.
Plaintiff's Experts:
Defendant's Experts:
Comments: