What’s in a name?

“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Evid. Code Section 1200(a). It’s a deceptively simple definition – and one that produces no end of consternation. I’ve always enjoyed hearsay questions, and I hope to grapple with some consternation-causing hearsay issues in this series of columns.

Today’s hearsay issue deals with names as hearsay (or not). The case I’ll focus on is the California Supreme Court’s decision in Hart v. Keenan Properties, 9 Cal.5th 442 (2020).

Hart was a personal-injury action brought against, among others, a purported distributor of asbestos-cement pipes. Frank Hart, one of the plaintiffs, was a construction worker in the 1970s who had developed mesothelioma. A distributor, Keenan Pipe, distributed asbestos-cement pipe during the time in question, but had no sales records or invoices from the relevant period. All invoices had been destroyed or lost.

The logo Keenan had used in the 1970s was a letter K “drawn to resemble a straight pipe and an angled pipe, enclosed in a circle.” Hart, 9 Cal.5th at 445. A foreman who was Hart’s supervisor, John Glamuzina, testified that he would check invoices at the site when pipe was delivered to make sure the deliveries were correct. He testified that he saw the name “Keenan” on the invoices he signed “a few times.” Hart v. Keenan Properties, 29 Cal.App.5th 203, 210 (2018).

Because none of the invoices were retained by any party, there were no physical documents for any witness to point to. When asked why “Keenan sticks out in your mind,” Glamuzina testified “Just the way the – their K and stuff is all – I don’t know. Maybe it’s through the years, maybe it’s worked into my head. I don’t know.” Hart, 29 Cal.App.5th at 211.

At trial, Keenan moved to exclude Glamuzina’s testimony regarding Keenan’s name and/or logo as hearsay. The trial court admitted the testimony, as circumstantial evidence of identity or, alternatively, as the statement of a party opponent. The jury returned a verdict for plaintiffs, with a special finding that Keenan supplied the pipe at issue.

On appeal, the First District reversed the trial court’s ruling on Glamuzina’s testimony. The court observed that “Glamuzina’s belief that Keenan supplied the… pipe was based on his review of invoices… The wording on these invoices… were out-of-court statements offered to prove the truth of the matter asserted: namely that Keenan supplied the pipes. The invoices described by Glamuzina were hearsay.” Hart, 28 Cal.App.5th at 211.

One of the cases relied upon by plaintiffs on appeal was People v. Freeman, 20 Cal.App.3d 488 (1971). In Freeman, a prosecution witness testified that she had heard her daughter greet someone with the words “Hi, Norman.” Id. At 492. The Court in Freeman allowed the testimony to help establish defendant Norman Freeman’s presence at the scene because it was “not offered to prove the statement’s truth or falsity but as evidence of the fact that the statement was made.” Id. The Freeman court concluded the statement was not hearsay but circumstantial evidence of the defendant’s presence. Id. The First District in Hart distinguished Freeman by observing that “unlike in Freeman, we cannot disregard the truth or falsity of the out-of-court statements at issue … Glamuzina’s testimony regarding the content of the invoices was used to prove that Keenan was the vendor. Therefore, the content of the invoices was being offered for the truth of the matter asserted in them.” Hart, 29 Cal.App.5th at 213.

The First District also rejected plaintiffs’ reliance on People v. Williams, 3 Cal.App.4th 1535 (1992), where the court admitted a fishing license and two checks bearing defendant’s name found at a residence to establish that the defendant resided at that location. The Williams court concluded that “regardless of the truth of any express or implied statement contained in [the] documents, they are circumstantial evidence that a person with the same name as the defendant resided in the apartment from which they were seized.” Id. At 1542. The First District noted that, unlike in Williams, here, the invoices had been destroyed or lost, and plaintiffs could not rely on any actual documents to corroborate Glamuzina’s testimony. Hart, 29 Cal.App.5th at 213.

The First District concluded that no hearsay exception applied and that the trial court abused its discretion in admitting Glamuzina’s testimony regarding Keenan. Because “there was no other evidence establishing Keenan supplied [the] pipe,” the court reversed the judgment against Keenan. Hart, 29 Cal.App.5th at 216.

Keenan appealed the First District’s decision to the California Supreme Court. The Supreme Court reversed the First District’s decision, found that the Williams case was persuasive and that Glamuzina’s testimony, like the fishing license and two checks in Williams, was “circumstantial evidence” linking Keenan to the pipes. Hart, 9 Cal.5th at 449. The Supreme Court also pointed to People v. Goodall, 131 Cal.App.3d 129, 143 (1982), where various documents and other items – including a summons, receipts, and defendant’s driver’s license – were found admissible to show that defendant was connected to a home where drugs were manufactured.

Regarding Goodall and Williams, the Court observed “the documents [found at the residences] were relevant regardless of their truth. It was the presence of the documents, not the truth of their content, that linked those documents to the residences. Even if they bore false aliases, they could still be evidence of the disputed link, if it could be established that Goodall and Williams used those false names. The documents were offered to prove the link, not the truth of the words on them.” Hart, 9 Cal.5th at 449.

The crux of the Supreme Court’s reasoning was set out in the following passage: “Here the disputed fact was whether Keenan supplied pipes… To prove that fact, plaintiffs had to establish a link between Keenan and the pipes… The appearance of the name and logo was relevant for that purpose, even if the company name and logo were not expressive of Keenan’s identity as the source. If Keenan did not use its name and had no logo, the appearance of a document that could be shown to be theirs would be relevant evidence if offered to prove the link. Suppose that Glamuzina testified that the pipes were accompanied by a document bearing the legend: “Best Pipes On The Planet,” and the company representative testified that Keenan printed that slogan on their invoices. That evidence, taken together would have a tendency in reason to prove the disputed link. The words would not be admissible to prove that Keenan’s pipes were the best on Earth, as the slogan asserted. They would, however, be admissible as circumstantial evidence that the pipes that were delivered along with the identified invoice came from Keenan. The inference would be valid regardless of whether the assertion in the slogan is true. It is the combination of some characteristic that makes the document identifiable and the independent evidence connecting Keenan to the identifiable document that establishes the link. The fact that the point of identification is words is not sufficient to make the words hearsay, unless the words are offered to prove the truth of their content.” Hart, 9 Cal.5th a 449.

As has been observed by commentators, the distinction between use of a name or logo in these types of situations as either hearsay or circumstantial evidence “is not always readily apparent.” 1 Witkin, Cal.Evidence (5th ed. 2012) Hearsay, § 37, p. 831. The Hart decision seems to further blur this distinction. The First District’s view – that the testimony in question was hearsay because Glamuzina was testifying about an out-of-court statement (the Keenan name/logo) for the purpose of establishing that Keenan had supplied the pipes – seems to fit firmly in the definition of hearsay set out in Evidence Code Section 1200(a). And the situation in Hart does seem distinguishable in several ways from the facts in Goodall and Freeman, where it was not testimony about a remembered statement, but various physical items that were at issue.

The Hart decision is likely to produce some additional uncertainty as to when testimony about remembered names or logos/brands should be excluded or admitted. The core of the Court’s reasoning, about the distinction between the “truth” of a name versus a name as a circumstantial point of identification, is a distinction that seems difficult to apply in practice. The Court’s argument about the hypothetical slogan printed on a document is also slightly perplexing: One could see the argument that the use of a slogan or service mark is a communicative statement, especially if the slogan was pointed to with the company’s logo, both brought in for the purposes of establishing the truth of the matter asserted: the logo and slogan are communicative statements asserting that the products came from Keenan. In some ways, it seems part of the Court’s unspoken reasoning was that the name and/or logo were not true “statements” for the purposes of the hearsay rule.

And perhaps the Hart decision simply reflects an evolving, more flexible and pragmatic – and less formalistic – view of hearsay. In this case, there was no other way to establish the link to the distributor besides Glamuzina’s testimony. While we are all obviously attached to the rules of hearsay we imagined were set in stone when we learned them in law school, views change over time, and the Hart decision may signal a shift in the view of hearsay in this state.