To Prove, or not to Prove: Circumstantial Evidence of Identity as an Exception the Hearsay Rule

SHCP on Hearsay

As most people know, “hearsay” is an out-of-court statement offered to prove the truth of its content. The hearsay objection is invoked by a party to keep testimony or documents of an opposing party out of evidence. In the 2018 case of Hart v. Keenan Properties, Inc., the court clarified an exception to the hearsay rule.

Hart sued Keenan alleging he contracted mesothelioma as a result of installing Keenan’s pipes (which contained asbestos) while working for his employer. But in their responses to discovery, neither Keenan nor Hart’s employer could produce records or invoices for the sale of Keenan’s pipes to the employer.

At trial, Hart’s supervisor testified he recalled seeing Keenan’s name and logo on the invoices for the pipes at issue. Keenan objected to the supervisor’s testimony arguing any reference to “Keenan” on the invoices constituted inadmissible hearsay. The trial court denied the objection, ruling the reference was circumstantial evidence of identity.

On appeal, the appellate court reversed, holding the testimony was hearsay. However, the California Supreme Court ultimately held the testimony referencing the documents is not hearsay because 1) the reference to invoices was not made to prove the contents of the invoices, but as circumstantial evidence of the sale of pipes based on a recollection of the invoices identifying Keenan purchased the pipes, and 2) the evidence was relevant because it had a tendency in reason to prove or disprove a disputed fact.

The Supreme Court also held oral testimony describing an absent writing is admissible where a copy of the writing cannot be produced, and the original writing was not fraudulently destroyed by the proponent of the evidence. In view of the Supreme Court’s findings, parties should not only perform discovery to determine exactly whether documents exist (and any reasons they don’t exist), but also determine what exactly witnesses recall about documents that are no longer available.

As a practical matter, where documents proving identity are not available, lay the foundation for the hearsay exception.

ACA Benefits and MediCal Service Discounts Admissible at Trial as Evidence of Market Value of Future Medical Benefits

In a case certified for publication by the first Appellate District, division one (Contra Costa County), the appellate court determined the trial court erred in ruling that evidence of future ACA benefits is inadmissible.

Continue reading “ACA Benefits and MediCal Service Discounts Admissible at Trial as Evidence of Market Value of Future Medical Benefits”

Hands Off!

On January 1, 2017 a new law regarding the use of cell phones goes into effect, all with hope it will reduce vehicular accidents. Before its enactment, the law only proscribed handheld cellphone calls or handheld texting. The new law makes all handheld use of a cellphone while operating a vehicle illegal. No more handheld cellphone selfies, and no more handheld GPS searches.

Continue reading “Hands Off!”

Code of Civil Procedure, §998 Revisited

After SHCP’s August 14, 2015 blog entry discussing Statutory Offers, Assembly Bill No. 1141 was signed into law by Governor Brown. AB 1141, effective January 1, 2016, amends CCP, §998 to equalize the treatment of expert witness costs awarded to a prevailing party. AB 1141 states, “This bill would clarify that this provision [CCP, §998] requires a plaintiff to cover only expert witness costs that arose postoffer.” AB 1141 will result in both parties being exposed to the same expert fee penalties for turning down a statutory offer and not doing better at trial.

Continue reading “Code of Civil Procedure, §998 Revisited”

Reptile Within

Callaghan, a licensed concrete subcontractor, acted as owner-builder for his home improvement project, which included construction of a pool/spa. To minimize noise, the pool equipment was to be installed in an underground vault. The property did not have natural gas service so propane lines were run to the house and backyard. Callaghan did not know installing a propane fueled heater underground is dangerous.

Continue reading “Reptile Within”

Minor’s Compromise

A minor’s compromise is always required for settlement of a minor’s claim/lawsuit according to California law. You may have heard of the “below $5,000.00” exception, purportedly allowing for settlement of a minor’s claim/lawsuit without a minor’s compromise hearing. That is not only wrong, it is a dangerous cost-cutting method of attempting to settle a minor’s claim. The “below $5,000.00” exception has arisen from attorneys misconstruing the option which allows a judge to order minor’s settlements below $5,000.00 be managed by the minor’s parents without further supervision of the court.

Continue reading “Minor’s Compromise”


Small, Henstridge, Cabodi & Pyles recently had the privilege of participating in a mock mediation for habitability claims developed by The Travelers Insurance Company=s large loss claims department in Denver, Colorado. The participants included several major law firms in California as well as a number of experienced claim representatives.


Assumption of the Risk Doctrine Still Alive and Well in California

Summer is fast approaching which means families will be flocking to amusement parks and carnivals throughout the state.  A recent California appellate case entitled Griffin v. The Haunted Hotel, Inc. (2015) WL 7355112, affirmed the age-old Assumption of the Risk Doctrine in California tort law.
Continue reading “Assumption of the Risk Doctrine Still Alive and Well in California”

Attorney’s Fees Clause- A Second Thought

It may be wise to think twice before including prevailing party attorney’s fees clauses in standard residential and/or commercial lease agreements.  Under established law, each party to an agreement is responsible for paying its own attorney’s fees unless provided by statute or the language of the contract.  The attorney’s fees clause is usually standard language in all real estate lease agreements we encounter.

Continue reading “Attorney’s Fees Clause- A Second Thought”