Hart v. Keenan Props., Inc.

• Decision Date: 26 October 2018
• Docket Number: A152692
• Citation: 239 Cal.Rptr.3d 896,29 Cal.App.5th 203
• Court: California Court of Appeals Court of Appeals
• Parties: Frank C. HART et al., Plaintiffs and Respondents, v. KEENAN PROPERTIES, INC., Defendant and Appellant.

29 Cal.App.5th 203

239 Cal.Rptr.3d 896

Frank C. HART et al., Plaintiffs and Respondents,

v.KEENAN PROPERTIES, INC., Defendant and Appellant.

A152692

Court of Appeal, First District, Division 5, California.

Filed October 26, 2018

As Modified November 21, 2018

Maune Raichle Hartley French & Mudd, LLC, David L. Amell and Marissa Y. Uchimura for Plaintiffs and Respondents.

CMBG3 Law, W. Joseph Gunter, Gilliam F. Stewart for Defendant and Appellant

JONES, P.J.

Keenan Properties, Inc. ("Keenan") appeals from the judgment in an asbestos-related personal injury case. Frank C. Hart ("Mr. Hart") and Cynthia Hart ("Mrs. Hart") (collectively, "the Harts") sued Keenan and other entities alleging Mr. Hart developed mesothelioma

as a result of exposure to asbestos-containing products. The jury found Keenan supplied pipes that exposed Mr. Hart to asbestos. This finding was based on a foreman’s testimony regarding invoices purporting to show Keenan supplied asbestos-cement pipes to a worksite in McKinleyville, California in the 1970s. We conclude this testimony was based on inadmissible hearsay, and there was no other evidence Keenan supplied the pipes. Accordingly, we reverse the judgment against Keenan.

FACTUAL AND PROCEDURAL HISTORY

Mr. Hart suffers from mesothelioma

, which is caused by exposure to asbestos. Mr. Hart worked in construction as a pipe layer, and, since 1985, he was a foreman of pipe layers.

The McKinleyville Jobsite

From September 1976 to March 1977, Mr. Hart worked in McKinleyville, and his job involved cutting asbestos-cement pipe. In McKinleyville, Mr. Hart worked for Christeve Corporation ("Christeve"). The project involved installing new sewer lines, and Mr. Hart worked with eight-inch, asbestos-cement pipe manufactured by Johns-Manville Corporation ("Johns-Manville"). Mr. Hart installed thousands of feet of the pipe. The pipe was delivered to the jobsite on flatbed trailers, but Mr. Hart did not know who supplied the pipe. As a pipe layer, Mr. Hart had no access to information regarding the supplier, but the "people that would know would be people who worked in the office or the foremen."

John Glamuzina ("Glamuzina") was one of Mr. Hart’s foremen on the project in McKinleyville.¹ Glamuzina was Mr. Hart’s direct supervisor from January to March 1977. Glamuzina observed Mr. Hart cut and bevel asbestos-cement pipe without any respiratory protection. Glamuzina estimated his crew laid over 4,000 feet of pipe.

Glamuzina knew Johns-Manville manufactured the pipe based on his observation of a stamp on the pipe. Glamuzina believed Keenan supplied the pipe because he signed invoices when truckers delivered loads. Glamuzina checked the invoices to make sure the load matched the information on the invoices. Glamuzina turned in a carbon copy of the invoices to the office at the end of the day. Glamuzina believed Keenan supplied all of the pipe his crew laid in McKinleyville.

Glamuzina could not recall exactly how Keenan was written on the invoices. Glamuzina was working in the field and in a hurry, so he checked the load and the numbers on the invoices, signed them, and gave them back to the truckers. He believed Keenan was the supplier based on "their K and stuff." Glamuzina did not recall the names of any other suppliers. Depending on how fast his crew was laying pipe, Glamuzina received about two or three loads of pipe per week. Other foremen also checked the invoices, and Glamuzina checked about one or two per week.

Olga Mitrovich, Christeve’s bookkeeper in the 1970s, testified that employees, including Glamuzina, were responsible for accepting materials at the jobsite, and they would "initial the ticket," send it to Christeve’s office, and Mitrovich would "compare the invoice with the delivery ticket" before paying the invoice. However, Mitrovich did not know if Keenan supplied asbestos-cement pipe to Christeve in McKinleyville.

Keenan’s corporate representative, Timothy Garfield, acknowledged that Keenan sent its customers invoices. At his deposition, and during trial, he identified a document as a copy of a Keenan invoice.² The document contained Keenan’s logo, which consisted of a "K" in a circle. However, the invoice was for products Keenan sold to an entity called Three D. Const. Co., not to Christeve in McKinleyville. Garfield testified he had "no information whatsoever that Keenan ever sold anything that was used in the McKinleyville work while Mr. Hart was working there."

Complaint, Trial, Verdict, and Damages

On November 6, 2016, the Harts filed a complaint for personal injury and loss of consortium against numerous entities, including Keenan. Keenan answered the complaint and denied the allegations. At trial, which began on July 5, 2017, Keenan was the only remaining defendant.

On July 14, 2017, the jury rendered its verdict, finding, among other things, that Mr. Hart was exposed to asbestos-cement pipe supplied by Keenan. The jury awarded economic damages, non-economic damages, and damages for loss of consortium. The jury allocated fault among ten entities, finding that Keenan was 17% at fault. In its amended judgment, filed September 23, 2017, the court apportioned 45% of prior settlements to potential, future wrongful death claims, and the remaining 55% to the personal injury action. The total net verdict against Keenan was $1,626,517.82. Keenan timely appealed.

DISCUSSION

On appeal, Keenan makes three arguments. First, Keenan contends the court "abused its discretion in allowing ... Glamuzina’s double hearsay testimony regarding the contents of an unavailable, unauthenticated ‘receipt.’ " Second, Keenan argues the testimony of an expert witness regarding Mr. Hart’s medical expenses was inadmissible. Third, Keenan contends the court "erred when it included ... [Mrs. Hart] among the prospective wrongful death heirs in determining the proportion of settlements to set aside for those heirs." We do not address Keenan’s second and third arguments because we conclude there was no admissible evidence showing Keenan supplied asbestos-cement pipe to the McKinleyville jobsite.

I.

The Court Abused Its Discretion by Admitting Glamuzina’s Testimony

Keenan’s first argument challenges the admissibility of Glamuzina’s testimony regarding the supplier of the pipe at the McKinleyville jobsite. We begin with the standard of review.

A. Standard of Review

" ‘ "[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." ’ " ( Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 50, 202 Cal.Rptr.3d 84 ( Osborne ).) A trial court abuses its discretion "only if the trial court’s order exceeds the bounds of reason. [Citation.] ‘Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court.’ [Citation.] We will only interfere with the lower court’s judgment if appellant can show that under the evidence offered, ‘ " ‘no judge could reasonably have made the order that he did.’ " ’ " ( DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679, 69 Cal.Rptr.3d 888 ( DiCola ).)

B. Keenan’s Motion in Limine

Before trial, Keenan moved in limine to exclude Glamuzina’s testimony. Keenan argued the Harts could not authenticate purported Keenan invoices, and Glamuzina’s testimony regarding Keenan invoices was inadmissible hearsay. The Harts argued there was no need to authenticate the invoices because Glamuzina did not testify regarding their content. At the hearing on this motion, the court tentatively denied it. However, the court permitted the Harts to file a supplemental brief addressing Osborne , supra , 247 Cal.App.4th 43, 202 Cal.Rptr.3d 84, a case in which the court excluded evidence purporting to establish the supplier of an item involved in an accident. After considering the additional briefing, the court entered a written order denying the motion in limine.

C. The Court Abused Its Discretion by Denying Keenan’s Motion to Exclude Glamuzina’s Testimony

On appeal, Keenan contends Glamuzina’s testimony that Keenan was the supplier of the pipe used in McKinleyville was inadmissible hearsay. We agree with Keenan. We begin with a more detailed account of Glamuzina’s testimony.

1. Glamuzina’s Testimony

To establish Keenan supplied asbestos-cement pipe to the McKinleyville jobsite, the Harts relied on Glamuzina’s testimony regarding signing invoices when truckers delivered loads of the pipe. Glamuzina testified as follows:

"Q. And how did you know Keenan was the supplier of the asbestos cement pipe that your crew was laying in the City of McKinleyville?

"A. Well, there would be different invoices to sign when the truckers would come up with a load.

"Q. Okay. Did you personally sign any of these invoices?

"A. There was a few. I can’t remember how many.

"[¶] ... [¶]

"Q. The invoices that you mentioned, what exactly did they have? What information did they have on them?

"A. It would just -- the trucker would have an invoice of his load, what he had on his load, and I’d just double-check it, see -- usually it tells you where it came from. That’s all.

"Q. And what do you mean where it came from?

"A. What plant or -- stuff like that, I didn’t -- all I would do is count the load and see what we had and sign it, and it would be off.

"Q. And what sort of materials was Keenan [s]upplying to the City of McKinleyville job?

"A. The transite pipe for the sewer.

"Q. This is the Johns-Manville transite pipe?

"A. Yeah. Yes.

"Q. Did you see the name Keenan on the invoices that you personally signed?

"A. I recall a few times, yes."

Later, when examined by another attorney, Glamuzina was asked:

"Q. You mentioned that some of the materials were supplied by Keenan, and you mentioned that you saw Keenan on some of the invoices; is that right?

"A. I recollect some of it, yes.

"Q. How was Keenan written on the invoices?

"A. I thought it was, if I can remember right, I think it was like a print,

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