Trademarks and Testimony

Hart v. Keenan Props., Inc. No. S253295 (Cal. May 21, 2020)

I thought the Court of Appeal opinion on this one was kind of hinky when I wrote on it back in 2018. The Supreme Court granted review, and agrees. Justice Corrigan’s unanimous analysis on the hearsay issue is a little different than mine, but it gets to the same place. 

Basically, the issue is whether a construction foreman could testify about seeing a logo on a bill for asbestos-containing pipe for product ID purposes. The trial court let it in over hearsay, secondary evidence, and authentication objections. The Court of Appeal, in a divided opinion, reversed, mostly finding that the testimony was hearsay. 

Justice Corrigan, writing for a unanimous court, finds that the testimony about the invoices wasn’t offered for its truth, so there was no hearsay issue. In order to come in as nonhearsay, there must be some relevance independent of the truth of the statement. According to the Court, the witness’s testimony about the logo was not offered to say that the invoice is true, but instead as circumstantial evidence of a link between plaintiff’s workplace and the identity of the manufacturer of the pipe. It is relevant as such even if the quantities and costs of the pipe reflected in the invoice are wrong. 

In getting to that result, the Court analogizes to criminal cases where mail or other documents bearing a criminal defendant’s name has been admitted, not to show the truth of whatever the document says (e.g., that the defendant is, in fact licensed to drive or that she owes $43 to the electric company), but to show a connection between the defendant and the premises. So here, the relevance of the evidence didn’t turn on the truth of the company’s name and logo being the source of the pipe. Instead, it was one fact that, along with many others, formed an inferential link between the company and the pipe.

The Court also dispenses with the other arguments that managed mix up the Court of Appeal. Testimony about the invoice was permissible under the secondary evidence rule, notwithstanding its unavailability, because it was lost or destroying without any fault on the part of the plaintiff. Evid. Code § 1523(b). 

Nor was authenticity an impediment to admissibility. All that’s needed to show authenticity is a prima facie case that, if believed by the trier of fact, shows the document is what it purports to be. See §§ 403(a)(3), 1400. Testimony by the author of the document is not required. Generally, circumstantial evidence, including the document itself, and a lack of any basis to believe inauthenticity will be enough. Here, that standard was met by the testimony of the witness,’ given his familiarly with receiving materials at the work site and related paperwork, and in particular his knowledge of the pipe manufacturer and its logo. To the extent there were vagaries or inconsistencies in the testimony of an eighty-year-old man about the contents of a document he saw forty years ago, those go weight, not admissibility.  

Court of Appeal reversed.

K and Stuff Testimony Flummoxes Hearsay Ruling

Hart v. Keenan Props., Inc., No. A152692 (D1d5 Nov. 19, 2018)

The trial in this asbestos case presented a classic product ID question: Was the Defendant the distributor of asbestos-containing pipe product that Plaintiff used on jobs where he worked as a pipe layer? The evidence was thin. Plaintiff knew the pipes were asbestos cement pipes made by a particular manufacturer. But he didn’t know the distributor. And there were no records from the time to show that Defendant was, in fact, the distributor.

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. 
 
Affirmed.