New CA Evidence Case (Hearsay and Corporate Representatives)

I do three things - all CA civil law related:

• I serve as a mediator, arbitrator and referee with ADR Services, Inc. I conduct Zoom and in-person hearings throughout California. 
• I publish California Case Summaries™, preparing one-paragraph summaries of every new case published in California in annual, quarterly and monthly publications. My summaries give subscribers a competitive advantage. They always know the new case law and apply it to their cases to work up their cases better, make better arguments, get bigger settlements and win more trials. 
• Finally, I provide Master Lawyer Mentoring™ services to law firms to train their associates to quickly master essential skills, strategically work up their cases, and obtain excellent results for their clients and the law firm. 

Knowing the new case law makes me an excellent mediator, arbitrator, referee and mentor. In this blog post, I discuss a new civil case that was published last month. 

Corporate Representative Testimony

While a corporation will be bound by the testimony of a corporate representative, what are the rules when a corporation wants to use the testimony of its corporate representative offensively? Last month, the Second District Court of Appeal published a new decision addressing this issue. To find out what they decided, watch the video and read my case summary below.

New CA Code of Evidence Decision  

LAOSD Asbestos Cases (2023) _ Cal.App.5th _ , 2023 WL 354915: The Court of Appeal reversed the trial court’s order granting defendant Avon Products, Inc.’s (defendant) motion for summary judgment against plaintiffs Alicia Ramirez (Alicia)[1] and her husband Fermin Ramirez (collectively plaintiffs) in their complaint for damages against several defendants due to Alicia's development of mesothelioma. Defendant’s motion for summary judgment relied on a declaration from Lisa Gallo (Gallo Declaration), an employee who did not begin work at Avon until 1994, halfway through Alicia’s alleged exposure period. Plaintiffs objected to the Gallo Declaration and attached exhibits on the grounds they lacked foundation, lacked personal knowledge, and contained hearsay. The trial overruled the objections and granted the motion for summary judgment, finding the declaration was the sole evidence which shifted the burden to the plaintiffs to produce evidence sufficient to create a triable issue of material fact. The Court of Appeal disagreed, concluding that the trial court erred in overruling plaintiffs' objections based on lack of foundation, lack of personal knowledge and the hearsay nature of the documents. Because Lisa Gallo was a lay witness, not an expert witness, she was limited to testimony reflecting her personal knowledge and could not testify to hearsay. There is no special category of “corporate representative” witness. Moreover, a person deposed as a corporate person most qualified (PMQ deponent) may only testify at trial according to the rules evidence which apply to ordinary lay witnesses. The rules relating to witness testimony at a trial or hearing apply equally to defendants and plaintiffs. The trial court abused its discretion in admitting the declaration and hearsay documents. Without the Gallo Declaration, defendant did not offer evidence which shifted the burden to plaintiffs. The Court of Appeal rejected defendant’s argument that the summary judgment should still have been granted because plaintiffs’ discovery responses were factually devoid, because defendant failed to adequately develop this theory in the trial court and on appeal. It was therefore forfeited. (C.A. 2nd, January 23, 2023.)

[1] Alicia died while the appeal was pending, and the action was then prosecuted by Fermin in his individual capacity and as Alicia’s successor-in-interest. 

Mediation, Arbitration and Referee Services

I help attorneys and their clients throughout California serving as a mediator, arbitrator and referee at ADR Services, Inc., handling business, commercial, employment, insurance bad faith, insurance coverage, landlord-tenant (commercial and residential), legal malpractice, medical malpractice, personal injury, real property and wrongful death cases. I'm an expert in new California civil case law and using Zoom. I've been a California civil trial lawyer since 1980 and a member of ABOTA since 1995. I've represented both plaintiffs and defendants in a wide variety of civil cases including the areas listed above. To schedule a new matter, please contact my case manager at ADR services, Ins., Haward Cho, [email protected], (213) 683-1600.  

California Case Summaries™

Best regards,
Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
California Case Summaries™
Master Lawyer Mentoring™
CA Civil Trial Attorney Since 1980
ABOTA Member Since 1995
Past President San Diego County Bar Assn., SD ABOTA Chapter
Phone: (619) 990-4312. Email: [email protected]