29 Cal. App. 5th 203
Cal. Ct. App. 5th2018Background
- Plaintiff Frank Hart worked as a pipe layer on a McKinleyville sewer project (Sept. 1976–Mar. 1977) and cut large quantities of Johns‑Manville asbestos‑cement pipe; he later developed mesothelioma.
- Hart did not know the supplier; foreman John Glamuzina testified he signed truck delivery invoices/tickets and recalled seeing the name/logo "Keenan" on some invoices, so he believed Keenan supplied the pipe.
- No invoices or delivery tickets from the McKinleyville jobsite were admitted at trial: Christeve (the contractor) dissolved and its records were destroyed; Keenan’s corporate rep identified a Keenan invoice exemplar but had no knowledge that Keenan sold materials to the McKinleyville job.
- The jury found Keenan 17% at fault and awarded approximately $1.6 million; Keenan appealed, arguing key testimony was inadmissible hearsay and other evidentiary errors.
- The Court of Appeal reversed the judgment against Keenan, holding Glamuzina’s testimony about the content of the lost invoices was inadmissible hearsay (no applicable exception) and there was no other admissible evidence Keenan supplied the pipe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Glamuzina’s testimony that invoices bore “Keenan” (hearsay) | Glamuzina personally saw and signed delivery tickets; his testimony identifying Keenan is circumstantial, not hearsay, and corroborated by Keenan’s use of a distinctive “K” logo. | Testimony about the content of invoices/delivery tickets is out‑of‑court hearsay; invoices were destroyed and no invoice was admitted, so the testimony was inadmissible. | Reversed: testimony recounting the invoices’ content was hearsay and no exception applied; trial court abused discretion admitting it. |
| Applicability of party‑opponent admission exception (Evid. Code § 1220) | The invoices bearing Keenan’s name/logo are statements by the party (Keenan) and thus admissible as party admissions. | There was no evidence Keenan authored the specific delivery tickets/invoices at issue; the witness worked for the contractor, not Keenan, so the statements could not be treated as Keenan’s admissions. | Held against plaintiff: insufficient basis to treat the out‑of‑court invoice statements as admissions by Keenan. |
| Use of secondary evidence (§ 1523) to prove contents of destroyed writings | Secondary oral testimony about lost invoices is permissible when originals are destroyed. | Secondary evidence must still satisfy hearsay and authentication rules; here it fails both. | Held: § 1523 did not salvage Glamuzina’s hearsay testimony; secondary‑evidence rule does not override hearsay exclusion. |
| Other evidentiary challenges (e.g., medical expenses expert, settlement allocation) | Various challenges raised by Keenan | Court did not reach merits because reversal on supplier evidence was dispositive | Not addressed on appeal due to reversal on supplier‑evidence ground |
Key Cases Cited
- Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., 69 Cal.2d 33 (Cal. 1968) (invoices, bills, receipts treated as hearsay when offered for their truth but may corroborate witness testimony in limited circumstances)
- Osborne v. Todd Farm Serv., 247 Cal.App.4th 43 (Cal. Ct. App. 2016) (testimony about delivery tickets identifying supplier excluded as hearsay where source documents unavailable)
- DiCola v. White Brothers Performance Products, Inc., 158 Cal.App.4th 666 (Cal. Ct. App. 2008) (analysis of hearsay and labeling as out‑of‑court statements when offered for truth)
- People v. Lewis, 43 Cal.4th 415 (Cal. 2008) (party‑opponent exception requires evidence that the party actually made the out‑of‑court statement)
- Dart Industries, Inc. v. Commercial Union Ins. Co., 28 Cal.4th 1059 (Cal. 2002) (secondary evidence rule does not relieve proponent from complying with hearsay and other evidentiary rules)
- Molenda v. Department of Motor Vehicles, 172 Cal.App.4th 974 (Cal. Ct. App. 2009) (same: admissibility under secondary evidence rule still subject to hearsay constraints)
- Jones v. Dumrichob, 63 Cal.App.4th 1258 (Cal. Ct. App. 1998) (discussing limited use of invoices to corroborate testimony)