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After Frank Hart developed mesothelioma, he and his

wife, Cynthia, sued Keenan Properties, Inc. (Keenan) and other

entities involved in the distribution and use of pipes containing

asbestos. Only Keenan’s liability is at issue, and turns on

whether sufficient evidence shows it was the source of the pipes.

From September 1976 to March 1977, Hart installed pipes

for Christeve Corporation (Christeve) in McKinleyville. His job

involved cutting and beveling asbestos-cement pipe

manufactured by the Johns-Manville Corporation (JohnsManville). Although the process released dust, Hart worked

without respiratory protection.

Keenan Pipe and Supply, a wholesale distributor, sold

asbestos-cement pipe between 1965 and 1983. In 1977, it

changed its name to Keenan Supply. The logo for both Keenan

Pipe and Supply and Keenan Supply was the letter “K” drawn

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

2

to resemble a straight pipe and an angled pipe, enclosed in a

circle.1

Successor Keenan retained no sales records or invoices

from the relevant period. Its representative testified the

company logo was originally rendered in green and white, then

changed in the 1970s to red and white. The witness also

acknowledged what appeared to be a copy of a Keenan invoice,

which bore Keenan’s name and logo. He agreed that Keenan

would have sent a sales invoice to its customers.

Christeve’s bookkeeper, Olga Mitrovich, testified that

when Christeve closed in 2001, she retained no documents

related to the McKinleyville project. She remembered the logo

of Keenan Pipe and Supply as “the K with a circle around it.”

Asked why, she replied: “Because I know that we dealt with

them, and [the logo] was unique, and I like it.”

Foreman John Glamuzina was Hart’s supervisor from

January to March 1977.

2

He was familiar with asbestos-cement



1

In 1983, Keenan Supply sold its name and most of its

assets to Hajoca Corporation, which continues to use Keenan’s

logo:

(Keenan Supply | Eureka, CA [as

of May 21, 2020]. All internet citations in this opinion are

archived by year, docket number and case name at

.)

2 Glamuzina was unavailable at the time of trial. The jury

was shown video clips from his deposition testimony. (Evid.

Code, § 1291); all further statutory references are to the

Evidence Code.)

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

3

pipe, and recalled that it was used on the McKinleyville project.

Glamuzina explained: “[T]here would be different invoices to

sign when the truckers would come up with a load.” When he

received materials delivered to the worksite, he “would just

check the load for my eight-inch pipe, shorts or whatever came

on the pipe, that’s all I would check on that.” He would also

check the invoices to make sure the supplies listed matched

what was being delivered. If the information was correct, he

signed the invoice and retained a copy, which he turned in to the

site office. He did remember seeing the name “Keenan” on

invoices but could not “recall exactly” how Keenan’s name was

printed or how many times he saw the name on invoices. He

testified he did not see names of any other suppliers and

explained that “[w]hen you’re working out in the field, you’re in

a hurry . . . .” When asked why “Keenan sticks out in your

mind,” he replied: “Just the way the — their K and stuff is all

— I don’t know.”

Keenan moved to exclude any reference by Glamuzina to

Keenan invoices. It argued, inter alia, that any reference to

“Keenan” on the invoices constituted inadmissible hearsay.3

The court rejected Keenan’s hearsay argument, giving two

reasons. First it held the evidence was not hearsay but merely

circumstantial evidence of identity. Second, even if hearsay, the

evidence fell under an exception as the statement of a party

opponent. It admitted Glamuzina’s testimony as to the name

and logo he saw printed on the invoices given to him when pipes



3 Keenan also argued that the invoices did not exist, and if

they did exist, they were not authenticated.

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

4

were delivered. Keenan did not request a limiting instruction

on the permissible consideration of Glamuzina’s testimony.

The jury returned a plaintiff’s verdict, with a special

finding that Hart was exposed to asbestos from pipe supplied by

Keenan. Following apportionment of fault and settlements by

other defendants, a judgment of $1,626,517.82 was entered

against Keenan.

The Court of Appeal reversed, concluding Glamuzina’s

descriptions of the invoices were hearsay. (Hart v. Keenan

Properties, Inc. (2018) 29 Cal.App.5th 203, 213.) We apply a

different analysis to that question and reverse the judgment of

the Court of Appeal.

II. DISCUSSION

Hearsay is an out-of-court statement offered to prove the

truth of its content.4

(People v. Sanchez (2016) 63 Cal.4th 665,

674.) Section 225 defines the term “statement” as either “oral

or written verbal expression” or “nonverbal conduct of a person

intended by him as a substitute for oral or written verbal

expression.” Verbal expression means “relating to, or expressed

in words.” (Garner, Dict. of Modern American Usage (1998) p.

676; see also Black’s Law Dict. (11th ed. 2019) p. 1870.) Nonverbal expression refers to “conduct intended as a substitute for

the actual use of words.” (People v. Gonzalez (2017) 2 Cal.5th

1138, 1143, fn. omitted.) A document is generally a form of

written verbal expression. If it is prepared before trial and

offered to prove the truth of the words it contains, it is hearsay.



4

“ ‘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.” (§ 1200.)

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

5

As noted, the trial court relied on alternate theories to

admit Glamuzina’s testimony about the content of the invoices.

First, it concluded that Glamuzina did not convey hearsay,

because the name and logo were not offered to prove the truth

of any statement contained in the invoice. Instead, his

observations were circumstantial evidence of Keenan’s identity

as the source of the pipes. Based on the facts here, the court was

correct. As a result, we do not further consider the alternative

basis for its ruling.

A. Relevance When Not Offered for Truth of

Content

“When evidence that certain words were spoken or written

is admitted to prove that the words were uttered [or written]

and not to prove their truth, the evidence is not hearsay. (People

v. Smith[ (2002)] 179 Cal.App.4th 986, 1003 . . . .) (Text cited

with approval in People v. Armstrong [ (2019)] 6 Cal.5th 735, 786

. . . .) ‘The first and most basic requirement for applying the notfor-the-truth limitation . . . is that the out-of-court statement

must be offered for some purpose independent of the truth of the

matters it asserts. That means that the statement must be

capable of serving its nonhearsay purpose regardless of whether

the jury believes the matters asserted to be true. [Citations.]’

(People v. Hopson [(2017)] 3 Cal.5th 424, 432 . . . .)” (Simons,

Cal. Evid. Manual (2020) Hearsay Evidence, § 2:5, p. 84.) For

example, suppose A hit B after B said, “You’re stupid.” B’s outof-court statement asserts that A is stupid. If those words are

offered to prove that A is, indeed, stupid, they constitute hearsay

and would be inadmissible unless they fell under a hearsay

exception. However, those same words might be admissible for

a non-hearsay purpose: to prove that A had a motive to assault

B. The distinction turns not on the words themselves, but what

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

6

they are offered to prove. The concept can prove analytically

elusive when the words themselves also make an assertion. (See

1 Witkin, Cal. Evidence (5th ed. 2018) Hearsay, § 37, p. 832

[“The distinction between these two uses of the evidence is not

always readily apparent”].) If the words are admitted for a nonhearsay purpose the jury is not allowed to consider the truth of

any substantive assertion, and is often instructed to that effect.

Otherwise competent evidence must also be relevant. So,

the non-truth purpose for which a statement is offered must be

relevant. Evidence is relevant if it has a “tendency in reason to

prove or disprove any disputed fact that is of consequence to the

determination of the action.” (§ 210.) Documents and other

items found at a location may be relevant to show a person has

a connection with that place. People v. Goodall (1982) 131

Cal.App.3d 129 held that various items, including documents,

were admissible to show Goodall was linked to a home where

drugs were manufactured. Evidence recovered at the site

included a summons, various receipts, and Goodall’s driver’s

license, as well as photographs of her at the residence. The court

held that the documents were relevant regardless of the truth of

their content. “Without considering the documents for the truth

of the matter stated therein, it is relevant that documents

bearing appellant’s name or other items reasonably identifiable

as appellant’s were found at the residence. . . . The jury could

infer that these items would not have been so located unless

[Goodall]” had sufficient connection with the site to exercise

control or was aware of the illicit activity there. (Id. at p. 143.)

The Harts rely principally on the similar case of People v.

Williams (1992) 3 Cal.App.4th 1535 (Williams). Williams

sought to establish standing to challenge an apartment search

by offering proof he lived there. He called the searching officer

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

7

who had recovered a fishing license and a paycheck made out to

him. Both documents, bearing the defendant’s name and the

apartment address, were recovered from a dresser in the

bedroom where contraband was found. “The trial court opined

that the documents were being offered for the truth of the

matter being asserted therein — i.e., that the defendant lived at

the apartment, as indicated by the address on the license and on

the checks.”5

(Id. at p. 1541, fn. omitted.)

The Court of Appeal rejected that analysis. It explained

that even if the documents had not contained the address of the

searched apartment, “the fishing license and two checks at issue

here are more likely to be found in the residence of the person

named on those documents than in the residence of any other

person.” (Williams, supra, 3 Cal.App.4th at p. 1542.) In other

words, the license and checks were not admitted to prove what

the defendant’s name was, that he was permitted to fish in

California waters, or that the issuers of the checks paid him

money in a certain amount. Instead, the fact that documents

bearing his name were found at the apartment was relevant on

a different point. They tended to support an inference that the

person named lived there. The items were “circumstantial

evidence that a person with the same name as the defendant

resided in the apartment from which they were seized.” (Ibid.)

In Goodall and Williams the documents were relevant

regardless of their truth. It was the presence of the documents,

not the truth of their content, that linked those defendants to

the residences. Even if the documents bore false aliases, they

could still be evidence of the disputed link, if it could be



5 A second check made out to Williams was also found, but

apparently did not bear his address.

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

8

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. The same inference of a link could be drawn

from the presence of items containing no hearsay at all, like a

distinctive ring belonging to Goodall or a photo of Williams with

his mother.

Here the disputed fact was whether Keenan supplied

pipes for the McKinleyville project. To prove that fact, plaintiffs

had to establish a link between Keenan and the pipes

Glamuzina recalled being delivered. 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

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

9

the words hearsay, unless the words are offered to prove the

truth of their content.

Here the link between Keenan and the pipes does not

depend on the word “Keenan” being a true statement that

Keenan supplied the pipes. Instead, the link relies on several

circumstances demonstrated by the evidence. The foreman

testified that when the pipes were delivered, he was given an

invoice bearing Keenan’s name and logo and that the invoice

matched the load delivered. Bookkeeper Mitrovich testified she

would not pay for a delivery without receiving paperwork from

the foreman. Keenan’s representative identified its logo and

testified that it was printed on Keenan invoices. He also

confirmed the practice of providing an invoice to customers.

Taken together, the evidence was relevant to prove the disputed

link between Keenan and the pipes, regardless of the content

the words on the invoice might otherwise have asserted.

B. Other Arguments by Keenan

Keenan objects that the actual documents Glamuzina

described were not available, and that their contents were not

authenticated as required by section 1401. Those arguments

are unavailing. The absence of a document does not always

preclude admission of its contents. Although, generally, “oral

testimony is not admissible to prove the content of a writing”

(§ 1523, subd. (a)), such secondary evidence may be admitted “if

the proponent does not have possession or control of a copy of

the writing and the original is lost or has been destroyed without

fraudulent intent on the part of the proponent of the evidence.”

(Id., subd. (b).) Here, the Harts never possessed the documents

and were not responsible for their destruction.

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

10

“Authentication is to be determined by the trial court as a

preliminary fact (§ 403, subd. (a)(3)) and is statutorily defined

as ‘the introduction of evidence sufficient to sustain a finding

that it is the writing that the proponent of the evidence claims

it is’ . . . (§ 1400).” (People v. Goldsmith (2014) 59 Cal.4th 258,

266.) “Essentially, what is necessary is a prima facie case. ‘As

long as the evidence would support a finding of authenticity, the

writing is admissible. The fact conflicting inferences can be

drawn regarding authenticity goes to the document’s weight as

evidence, not its admissibility.’ ” (Id. at p. 267.) “The

determination regarding the sufficiency of the foundational

evidence is a matter left to the court’s discretion. [Citation.]

Such determinations will not be disturbed on appeal unless an

abuse of discretion is shown.” (People v. Brooks (2017) 3 Cal.5th

1, 47.)

“The means of authenticating a writing are not limited to

those specified in the Evidence Code. [Citations.] For example,

a writing can be authenticated by circumstantial evidence and

by its contents.” (People v. Skiles (2011) 51 Cal.4th 1178, 1187

(Skiles).) Section 1410 clarifies: “Nothing in this article shall

be construed to limit the means by which a writing may be

authenticated or proved.” In People v. Gibson (2001) 90

Cal.App.4th 371 (Gibson), manuscripts describing a prostitution

enterprise were found in the appellant’s hotel room and her

home. The Court of Appeal acknowledged that “[t]here was no

evidence presented that appellant actually wrote or typed either

manuscript, nor were any fingerprints obtained from either

document.” (Id. at p. 382.) However, circumstantial evidence

properly authenticated the manuscripts. “There are clear

references to the author being ‘Sasha,’ one of appellant’s aliases.

The evidence clearly showed that appellant was operating as a

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

11

madam, that the manuscripts discussed the prostitution

business, and that the locations where these items were seized

were each a residence of appellant. Moreover, no evidence

showed that these items belonged to anyone else.” (Id. at p.

383.) We note here that authentication is a threshold

admissibility question for the court, which may look to the

document’s content. Whether the trier of fact can consider the

content of an admitted document for its truth in resolving a

disputed fact is a separate question.

Here, evidence showed Keenan was in the business of

selling asbestos-cement pipe and did business with Christeve.

One of Glamuzina’s duties was to check invoices. His

description of the logo was consistent with the exemplar of a

Keenan invoice that its representative acknowledged. The

foundation for authenticity was sufficient.

Keenan seems to assert the invoices could be

authenticated only by someone associated with Keenan. It

urges that Glamuzina was not a party-opponent and “cannot

stand in as a surrogate for Keenan.” The argument fails.

Glamuzina’s testimony did not purport to make representations

on Keenan’s behalf. Rather, he conveyed his own observations

of documents he reviewed when the pipes were delivered.

(People v. Veamatahau (2020) 9 Cal.5th 16, 27.) Although

testimony by Keenan’s agent would have been another way to

authenticate the invoices, it was not the only way.

Keenan also questions the trial court’s reliance on

Glamuzina’s testimony, for several reasons. First, it states the

evidence was provided by “an 81-year-old witness burdened by

all the fallibility of human memory,” and notes that the

testimony related to events occurring 40 years earlier. A

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

12

witness’s memory and credibility may affect how a court

exercises its discretion, but it was for the trial court to evaluate

Glamuzina’s demeanor and testimony in deciding whether a

preliminary fact had been adequately demonstrated.

Second, Keenan complains Glamuzina did not explain

what he meant by “their K and stuff.” However, there was

evidence that Keenan used a distinctive K logo which continues

in use today and which bookkeeper Mitrovich described as

“unique.” It was not unreasonable to infer Glamuzina was

referring to the K logo acknowledged by Keenan’s

representative.

Third, Keenan asserts there were dissimilarities between

Glamuzina’s testimony and the invoice exemplar. In particular,

when asked what information was on the invoices, Glamuzina

responded, “[W]hat [the trucker] had on his load, and I’d just

double-check it, see — usually it tells you where it came from.

That’s all.” Asked what he meant by “where it came from,” he

responded, “What plant or — stuff like that . . . .” Keenan notes

that the sample of a Keenan invoice does not identify a “plant.”

The exemplar does, however, include a street address in Los

Angeles and lists various cities where Keenan apparently had

offices. It is not clear what Glamuzina meant by “plant.” But

whatever ambiguity or dissimilarity is reflected in his

recollection again goes to weight, not admissibility. The trial

court’s conclusion that the foundational evidence of authenticity

was sufficient was neither arbitrary nor capricious.

Fourth, Keenan claims Glamuzina’s testimony was

inconsistent with the Harts’ trial theory that the presence of a

Keenan branch near the McKinleyville worksite supported the

conclusion that the pipe was theirs. Asked how Christeve

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

13

ordered materials for the McKinleyville job, Glamuzina said

Christeve’s owner “would order his pipe down in Southern

California and whatever they did to get it to up north.” He was

then asked, “So to the best of your understanding, he ordered

from someone in Southern California, and Keenan was

delivering it to the jobsite in Northern California?” Glamuzina

confirmed that understanding. Subsequently asked whether

the owner “would get supplies from Southern California,”

Glamuzina responded, “He would order pipe . . . down there, and

it would always come from up north or wherever we were

working, it would always come from a different place.” It is not

clear that Glamuzina’s testimony was inconsistent with the

Harts’ reliance on the proximity of a Keenan branch to the

worksite. But regardless of how any inconsistency might be

weighed by the jury, it does not follow that the trial court abused

its discretion in finding a preliminary showing of authenticity.

In addition to challenging the adequacy of Glamuzina’s

testimony, Keenan contends contrary evidence precludes a

finding of adequate authentication. It cites other invoices

showing that Johns-Manville sold asbestos-cement pipe to

Christeve and shipped it to the McKinleyville site. The court

admitted two invoices from Johns-Manville to Christeve and a

letter from Christeve to Johns-Manville, based on Olga

Mitrovich’s recognition of handwriting on those items, but it

excluded other Johns-Manville invoices. According to

Glamuzina, more than 60,000 feet of asbestos-cement pipe was

installed at the McKinleyville site. While relevant, evidence

that a different company supplied asbestos-cement pipe to the

worksite does not preclude an inference that Keenan did as well.

Keenan also relies on various cases to argue the

authentication evidence was inadequate. It relies principally on

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

14

Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43.

Osborne was injured while moving hay bales. She sought to

establish that Berrington, a hay supplier, had sold a particular

bale to Todd Farm Service. The trial court rejected the

plaintiff’s offer to testify that she saw a delivery person from

Todd Farm Service with a receipt identifying Berrington as the

supplier of the bale. The Court of Appeal upheld the ruling. It

noted the plaintiff did not possess the receipt, no other witness

claimed to have seen it, and Todd Farm Service, “the alleged

source of the document, testified that no such receipt ever

existed. [Todd] did not segregate hay in his barn by supplier

and he did not document the supplier of hay included in any

delivery. Based on this evidence, it was well within the trial

court’s discretion to find that [the plaintiff] failed to prove the

preliminary facts necessary to admit her testimony about the

delivery receipt into evidence.” (Id. at p. 53.)

This case is different from Osborne, where all evidence

except the plaintiff’s recollection showed no such receipt ever

existed. In contrast, Keenan admitted it sent invoices and

acknowledged an exemplar with a Keenan logo on it. Reviewing

invoices was one of Glamuzina’s responsibilities, which lends

weight to his recollection of how the invoices looked. In addition,

the invoices were seen at a worksite accompanying a delivery of

asbestos-cement pipe, a product Keenan sold. Osborne

concluded only that the trial court in that case did not abuse its

discretion in excluding the evidence. That holding does not

preclude a different court, faced with some but not all of the

circumstances present in Osborne, from exercising its discretion

differently.

Finally, Keenan argues that other cases suggest a

document cannot be authenticated if there is no copy before the

HART v. KEENAN PROPERTIES, INC.,

Opinion of the Court by Corrigan, J.

15

court and only one witness testifies to seeing the document. It

points to Skiles, supra, 51 Cal.4th at page 1182; People ex rel.

Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1570-1571;

Gibson, supra, 90 Cal.App.4th at page 379; and Young v.

Sorenson (1975) 47 Cal.App.3d 911, 915-916. Those cases do not

sweep as broadly as Keenan contends. As noted, section 1523,

subdivision (b) provides that the contents of a writing may be

proven by oral testimony when the proponent does not have a

copy and “the original is lost or has been destroyed without

fraudulent intent on the part of the proponent of the evidence.”

The statute does not impose any additional evidentiary

requirement. The strength of authenticity evidence in other

cases does not establish the trial court abused its discretion

here.

The judgment is reversed and the matter remanded to the Court of Appeal for consideration of other contentions left unresolved.