Tuesday, August 12, 2014

Voluminous Hearsay . . .

Golden State Coring & Pipe Jacking Inc. v. E. Muni. Water Dist., No E054618 (D4d2 July 23, 2104)

This is an appeal of an order granting summary judgment in a construction dispute. It turns on whether there were stoppages of work. In support of its motion, defendants provided a declaration from their attorney, who purported to summarize voluminous records produced in discovery, to the effect that such stoppages did, in fact, occur. The court here finds that sufficient because Evidence Code § 1523(d) permits oral testimony of the contents of writings if “the writing consists of numerous accounts for other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” Further, because the plaintiff did not actually contest that the stoppages happened, even if it was error to admit this evidence, there was no prejudice meriting reversal.

Justice King dissents. He makes the point—well borne out in the case law—that while § 1523(d) might provide a vehicle for secondary proof of the contents of voluminous records, it does not permit an end run around the hearsay rule. If records being summarized are inadmissible hearsay, they are not rendered admissible by summarizing them. So if a party wants to prove the truth of contents of documents that are being summarized, it must also lay foundation that the records themselves are not hearsay or subject to an exception. The most common exception is business records. Because the declaration in this case did not lay that foundation, and because the defendant didn’t otherwise provide foundational evidence that the exception applied—such as a custodian of records declaration under § 1561—the summaries weren’t admissible even if they satisfied the secondary evidence rule. 


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