New CA Evidence Case (Hearsay and Corporate Representatives)

Uncategorized Feb 28, 2023

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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. 


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Best regards,
Monty A. McIntyre, Esq.
California Case Summaries™
Mediator, Arbitrator & Referee
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.
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