Good Enough for Real Docs

Hooked Media Grp. v. Apple Inc., No. H044395 (D6 Sept. 30, 2020) 

The Court of Appeal here affirms a trial court’s summary judgment in a case alleging that a certain computer company poached some engineers from a company it had previously considered acquiring. For anyone who practices in this space, it’s a useful opinion delimiting the typical causes of action. (There’s also a weird concurrence that, so far as I can tell, basically agrees with the Court’s opinion in every essential respect.)

A few things of procedural note, however. First, the Court makes a point on authentication that, in the early days of this blog, I once complained was unaddressed in a published case. (Although I later discussed a case that resolved the issue.) Namely that an attorney declaration attesting that documents were received from the opposing party in discovery is adequate to authenticate those documents when they bear facial indica that they actually came from the producing party. 

Second, the Court affirms the trial court’s refusal to tax almost $100k in e-discovery costs. Although the appellant raised some cogent points as to why the costs were unnecessary, they weren’t enough to overcome the deference given to the trial court on cost issues.

Affirmed.

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.

Doctor, this One Was Clearly You

Espejo v. S. Cal. Permanente Med. Grp., No. B262717 (D2d4 Apr. 22, 2016)

In an employment dispute between a doctor and a hospital group, Hospital petitioned to compel arbitration based on an arb clause in Doctor’s employment contract. The arbitration question comes down to whether Doctor actually executed the agreement.

A declaration in support of Hospital’s original petition to compel attached the agreements containing the arb clause. The declaration said that Doctor had been sent hyperlinks to the agreements and required to sign them electronically. It was, however, rather vague about they way this process worked. But then—in response to the recently issued decision in Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal. App. 4th 869 (2014), which addressed how to authenticate electronic signatures under Civil Code § 1633.7—the Hospital submitted a supplemental declaration providing additional detail on the mechanics of the e-signature process. The supplemental declaration was filed several days before Doctor’s opposition was filed.

Doctor challenged the petition with his own declaration that somewhat disputed the merits. He also moved to strike the supplemental declaration as untimely under Code of Civil Procedure § 1005(b), which requires motion papers to be filed sixteen court days before the hearing. The court agreed and struck the declaration. Then, relying on Ruiz, it found that the Hospital failed to sufficiently authenticate the e-signed arb contract, and denied the petition for lack of a binding agreement. Hospital appealed.

Hospital more or less concedes that its initial declaration doesn’t satisfy the Ruiz standard. So the whole appeal basically comes down to whether it was proper to strike of the supplemental declaration. There are two potential arguments for why it was error for the trial court to do so.

The easy one is that the declaration was a response to the post-motion-filing decision in Ruiz. Particularly since the trial court relied on Ruiz to deny the motion, it was only fair to permit Hospital to respond to new authority on a relatively first impression issue. Perhaps the trial court should have kicked the hearing and given everyone a little more time to address Ruiz. For some inexplicable reason, however, the Hospital never made the argument in its AOB. So it was forfeited on appeal.

The other argument deals with who bears the burden on authentication. If Hospital didn’t bear the burden to authenticate the e-signed docs in the first instance, doing so as an offer of proof on reply in response to an objection from Doctor would have been sufficient. And if it would have been fine to do it on reply, it follows that a supplemental filing provided before the opp even came in might have been early, but it clearly wasn’t too late.

So far as the burden goes, petitions to compel are a little different than ordinary motions. Some cases, based on § 1281.2 of the Code of Civil Procedure and Rule of Court 3.1330, hold that to petition to compel, you just need to come forward with a copy of the agreement. There’s no evidentiary obligation to authenticate the agreement from the outset. Even though, if challenged, the petitioner bears the ultimate burden. Under these cases, Hospital didn’t bear the burden to authenticate the contract in its opening papers. So the court erred in striking the supplemental declaration.

The court goes on to file that the supplemental declaration would have been enough to verify the e-signed agreement. The agreement in Ruiz didn’t make the cut because the moving party failed to come forward with any evidence that the signing of the agreement could be attributed to any volitional act by Mr. Ruiz. But here, the supplemental declaration showed that Doctor needed to sign in to a password-protected site. There was thus ample evidence that the arbitration contract was, in fact, e-signed by the Doctor himself and not by some other person.

Reversed.

Fake Decks up in the Files?

Kim v. Toyota Motor Corp., No. B247672 (D2d7, as modified Feb. 8, 2016)

This is an automotive products liability case mostly about when plaintiffs can admit evidence of industry custom to show a defect under the risk-benefit test. (The answer, according to the court, is sometimes,  parting ways with other courts that have said always and never.) The court also, however, briefly tackles two points of procedural interest.
 

Foundation!

People v. Goldsmith, No. S201443 (Cal. June 5, 2014)

In a unanimous opinion in a criminal appeal of a $450 red light camera ticket, Chief Justice Cantil-Sakauye explains in detail the Evidence Code’s law regarding the authentication of photographs. Suffice it to say, you really don’t need very much to authenticate a photo. Here, authentication was satisfied in part by a statutory presumption from Evidence Code §§ 1552 and 1553, which say that a printout of stored digital image is an accurate depiction of the recorded image. Along with some testimony from a police investigator about where the camera was located and how the red light camera system operated to connect the remaining dots, that’s all that was needed. The court also rejects the defendant’s argument that the photograph was hearsay, based on the relevant definitions in the Evidence Code. Viz: To be hearsay, evidence needs to be in the form of a statement. § 1200(a)(defining of hearsay). A statement can only be made by a person. § 225 (defining statement). And a computerized camera is not a person. § 175 (defining person).

Affirmed.