A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915) supports that consensus.
But the court still reversed. There are limits to what qualifies as evidence that can shift the burden of proof in the summary judgment context to the nonmoving party.
The important thing to take away from the published Ramirez opinion is that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence. As the court put it:
“There is no special category of “corporate representative” witness, as the trial court suggested. There is no exemption from the Evidence Code for a witness who has conducted an “independent review,” whatever the trial court meant by that phrase.”
Comment: The opinion is not clear how the trial court “abused its discretion,” as opposed to merely commit legal error, **in overruling the hearsay and foundation objections to Avon’s evidence—other than that the evidence was, in fact, hearsay and devoid of foundation. The upshot is that the distinction between de novo and abuse of discretion when it comes to evidentiary rulings may come down to more of a mood or nuance than a legally measurable difference.