1

Filed 5/22/24

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

NATHAN K. WILLIAMS,

Plaintiff and Respondent,

v.

J-M MANUFACTURING

COMPANY, INC.,

Defendant and Appellant.

 A162561, A163492

 (Alameda County

 Super. Ct. No. RG19032329)

Before he died from mesothelioma during the pendency of this appeal, 

Cornelius Williams filed a complaint for personal injury based on his 

secondary exposure to asbestos from his brother Nathan’s work with 

asbestos-cement pipe over more than 20 years. Cornelius and Nathan did not 

live together, but had regular close contact during Nathan’s employment.

One of the entities Cornelius sued was J-M Manufacturing Company, Inc. (JMM), a supplier of asbestos-cement pipe to Nathan’s workplaces.

Cornelius’s strict liability cause of action, based on theories of design 

defect and failure to warn, went to verdict. The jury found liability under 

both theories, concluding that Cornelius had proven he was exposed to 

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this 

opinion is certified for publication with the exception of parts II and III of the 

Discussion.
2

asbestos, and that the pipe sold by J-MM was a substantial factor in 

increasing his risk of developing cancer.

J-MM raises three arguments in this appeal. First, J-MM argues it 

was entitled to judgment because, as a matter of law, strict liability does not 

apply in favor of Cornelius, a non-household member of his brother, under

our Supreme Court’s decision in Kesner v. Superior Court (2016) 1 Cal.5th 

1132 (Kesner). Kesner, a negligence case, held that employers and premises 

owners owe a duty of care to prevent secondary exposure to asbestos carried 

by the bodies and clothing of on-site workers, but that the duty extends only 

to members of a worker’s household. (Id. at p. 1140.) J-MM argues that 

Kesner’s limitation on the duty of care for claims based on negligence should 

be applied to strict liability claims against suppliers or sellers of asbestos 

products. Second, J-MM argues the judgment must be reversed because 

there was no substantial evidence that Cornelius was exposed to asbestos 

from pipe supplied by J-MM (rather than another supplier). Third, J-MM 

argues in the alternative that even if it is not entitled to a defense judgment, 

it is entitled to a new trial because the court abused its discretion in 

excluding certain exhibits from trial. We affirm.

BACKGROUND

Cornelius filed a complaint for personal injury against J-MM and 

several other defendants. Among other things, Cornelius asserted causes of 

action for negligence and strict liability, alleging he had been exposed to 

asbestos because Nathan “frequently and regularly worked with” asbestoscement pipe manufactured, sold, supplied, and distributed by defendants

while he was working for the East Bay Municipal Utilities District (EBMUD) 

from 1978 to 1988, and for Daly City from 1989 to 2011. 
3

The negligence and strict liability causes of action proceeded to trial 

against only two defendants: J-MM and A.H. Voss Company (Voss). Voss 

sold asbestos-cement pipe manufactured by Kubota from 1962 to 1975. J-MM

sold asbestos-cement pipe from 1983 to 1988, after acquiring the assets of

Johns-Manville’s domestic asbestos-cement pipe business.

1

At the close of presentation of evidence, J-MM and Voss filed motions

for directed verdict. J-MM asked the trial court to grant a directed verdict on 

the issue of duty, relying on Kesner, where the California Supreme Court had 

limited an employer or property owner’s duty of care for negligence causes of 

action premised on secondary exposure to asbestos to members of an 

employee’s household. J-MM argued that the trial court should “similarly 

find that J-MM owes no legal duty” to Cornelius, because he was not a 

member of Nathan’s household during the alleged secondary exposure to 

asbestos. 

The trial court dismissed the negligence cause of action, but not the 

strict liability cause of action. It explained: “With regard to the application 

of the Kesner case, to this case, the argument does have merit. But only part 

of the way home. [¶] The Kesner case neither says that it does not apply to 

product liability cases or to strict liability cases, nor does it say that it does 

apply to strict liability cases.”

The jury found in favor of Cornelius on his remaining strict liability

cause of action, awarding him $556,700 in economic damages and $2.14 

1 Johns-Manville was a global leader in the manufacturing of asbestoscontaining products. After Johns-Manville declared bankruptcy in 1982, its 

asbestos-cement pipe business was purchased by two companies that began 

operations on January 1, 1983: J-M A/C Pipe Corporation (J-M A/C), which 

manufactured asbestos-cement pipe, and J-MM, which sold asbestos-cement 

pipe that J-M A/C manufactured.
4

million in non-economic damages. It apportioned 50 percent responsibility to 

J-MM, 20 percent to Voss, 10 percent to Johns-Manville, and 20 percent to 

other manufacturers. 

J-MM moved for judgment notwithstanding the verdict (JNOV) and, in 

the alternative, for a new trial, arguing that the trial court erred in its 

interpretation and application of Kesner to preclude only the negligence cause 

of action. The motion was denied. J-MM also moved to tax costs claimed by 

Cornelius. 

J-MM appealed from the judgment and order denying its motion for

JNOV, as well as the order on its motion to tax costs. The appeals were 

consolidated.2 Voss also appealed, but subsequently notified this court that 

the parties were settling the matter and abandoned the appeal. After 

Cornelius’s death, Nathan was substituted as his successor-in-interest. 

DISCUSSION

J-MM challenges the judgment on Cornelius’s strict liability cause of 

action in three respects. J-MM argues that (1) judgment must be entered in 

its favor because, under Kesner, strict liability does not apply to Cornelius; (2)

the judgment must be reversed for lack of substantial evidence; or (3) a new 

trial is necessary because the trial court abused its discretion on certain 

evidentiary rulings. We address, and reject, each argument in turn.

2 The court ordered that J-MM was severally liable for $166,465.52 of 

Cornelius’s expert costs and fees, and jointly and severally liable with Voss 

for the $139,079.34 remainder of Cornelius’s costs. J-MM appears to have 

abandoned its appeal from the order on its motion to tax costs, and we do not 

address the issue further.
5

I. Strict Liability

A. Framework and Standard of Review

We begin with the general framework for understanding Cornelius’s

strict liability cause of action and the legal question presented in this appeal. 

California law recognizes strict liability as a theory under which plaintiffs 

may claim they were harmed by a defective product. (Webb v. Superior Court 

(2016) 63 Cal.4th 167, 181.) Strict liability can be asserted not only against 

the manufacturer of defective products, but also against distributors or 

sellers of defective products. (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 342

[“California law has long provided that manufacturers, distributors, and 

retailers have a duty to ensure the safety of their products and will be held 

strictly liable for injuries caused by a defect in their products”].) Here, 

Cornelius asserted a strict liability cause of action against J-MM for selling 

asbestos-cement pipe.

Strict liability may be invoked to allege three types of product defects: 

(1) manufacturing defects, (2) design defects, and (3) warning defects. (Webb, 

supra, 63 Cal.4th at p. 180.) “Manufacturing defects can arise, for example, 

when a flaw in the manufacturing process creates a product that differs from 

what the manufacturer intended.” (Ibid.) “Design defects appear in products 

that, although properly manufactured, are dangerous because they lack a 

critical feature needed to ensure safe use.” (Ibid.) Warning defects render a 

product “ ‘dangerous because it lacks adequate warnings or instructions.’ ” 

(Ibid.) Plaintiffs alleging product liability claims “often allege both design 

and warning defects.” (Id. at p. 181.) That is what happened in this case;

Cornelius alleged that asbestos-cement pipe sold by J-MM had both design 

and warning defects. 
6

For an alleged design defect, there are two alternative tests to prove 

liability: the consumer expectations test and the risk-benefit test. (Webb, 

supra, 63 Cal.4th at p. 180.) Here, Cornelius sought liability on his design 

defect claim under the consumer expectations test. To satisfy this test, 

Cornelius was required to prove that J-MM’s asbestos-cement pipe “fail[ed] to 

perform as safely as an ordinary consumer would expect” when used or 

misused in an intended or foreseeable way, and that the failure of the pipe to 

perform safely was a substantial factor in causing Cornelius’s harm. (Barker 

v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418; see also CACI No. 1203.)

To establish his alleged warning defect claim, Cornelius was required 

to prove that J-MM’s asbestos-cement pipe had potential risks known or 

“knowable in light of the generally recognized and prevailing best scientific 

and medical knowledge available at the time of manufacture and 

distribution,” that those potential risks presented substantial danger when 

the pipe was used or misused in an intended or reasonably foreseeable way,

that ordinary consumers would not have recognized those potential risks, 

that J-MM failed to adequately warn of those potential risks, and that the 

lack of sufficient warning was a substantial factor in causing Cornelius’s

harm. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 

1002, 993, fn. 5; see also CACI No. 1203.)

The judgment on special verdict makes clear that the jury concluded 

Cornelius had proven both that asbestos-cement pipe sold by J-MM had a

design defect (under the consumer expectations test) and a warning defect to 

support his strict liability cause of action.

J-MM’s subsequent motion for JNOV raised the same question of law

presented in its motion for directed verdict: whether Kesner precluded 

Cornelius’s strict liability cause of action. Our review is de novo. (Sweatman 
7

v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [sole question of 

law on denial of motion for JNOV subject to de novo review].) Neither party 

has cited any authority that directly answers the question.

B. Kesner

In Kesner, our Supreme Court granted review and consolidated two 

cases involving liability for secondary exposure to asbestos. (Kesner, supra, 1 

Cal.5th at p. 1140.) The plaintiff in the first case (Kesner) claimed negligence

through his alleged secondary exposure from his uncle’s work at a

manufacturing plant. (Id. at pp. 1141–1142.) The trial court granted a 

motion for non-suit on the ground that the manufacturing plant (Abex) had 

no duty to protect family members of its workers from secondary exposure to 

asbestos. The appellate court reversed. (Id. at p. 1142.) The plaintiffs in the 

second case (the Havers) claimed premises liability against BNSF Railway 

Company (BNSF), alleging secondary exposure from an employee to his wife. 

(Id. at p. 1141.) The trial court sustained BNSF’s demurrer based on lack of 

duty to household members who suffer secondary exposure to asbestos, and 

the appellate court affirmed. (Id. at p. 1142.) The nonsuit motion filed by 

Kesner and the demurrer filed by the Havers were both based on the thenleading case on whether defendants owed a duty of care to prevent take-home 

or secondary asbestos exposure under California law, Campbell v. Ford Motor

Co. (2012) 206 Cal.App.4th 15. (4 Cetrulo, Toxic Torts Litigation Guide 

(2023) § 42-A.) In Campbell, the Second District reversed a judgment for a 

plaintiff, diagnosed with mesothelioma, who had asserted a premises liability 

claim from secondary exposure to asbestos through laundering her father and 

brother’s clothing. (Campbell at p. 19.) Campbell held that “a property 

owner has no duty to protect family members of workers on its premises from 
8

secondary exposure to asbestos used during the course of the property 

owner’s business.” (Id. at p. 34.)

Describing the different conclusions as to liability reached by the lower 

courts for Kesner and the Havers, our Supreme Court granted review “to 

determine whether an employer has a duty to members of an employee’s 

household to prevent take-home asbestos exposure on a premises liability or 

negligence theory.” (Kesner, supra, 1 Cal.5th at p. 1142.) Kesner explained 

that both theories of liability—negligence (based on the employer’s alleged 

failure to prevent employees from exposing others) and premises liability

(based on the employer’s alleged failure to prevent exposure as owner of the 

property where employees work)—require the element of duty. (Id. at p.

1158.) Accordingly, the scope of review in Kesner was clear: “Here we are 

tasked solely with deciding whether [defendants] had a legal duty to prevent 

the injuries alleged by [plaintiffs].” (Id. at p. 1142.) As we describe below, 

the court reached a conclusion about the scope of this duty and explicitly

disapproved Campbell. (Kesner, at p. 1156.)

“The ‘general rule’ of duty in California is established by statute.” 

(Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1016

(Kuciemba).) Civil Code section 1714, subdivision (a) “ ‘establishes the 

default rule that each person has a duty “to exercise, in his or her activities, 

reasonable care for the safety of others.” ’ ” (Kuciemba, at p. 1016.) While 

section 1714 states the general default rule, exceptions can be created by

statute or by courts “ ‘only where “clearly supported by public policy.” ’ ” 

(Kesner, supra, 1 Cal.5th at p. 1143.) These policy considerations must be 

clear in order to justify “ ‘carving out an entire category of cases from that 

general duty rule.’ ” (Id. at pp. 1143–1144.)
9

To determine whether public policy supports such an exception, courts

look to the seven factors set forth in Rowland v. Christian (1968) 69 Cal.2d 

108 (Rowland): foreseeability of injury, certainty that plaintiff suffered 

injury, connection between injury and defendant’s conduct, moral blame, 

preventing future harm, burden to defendant and the community, and 

availability of insurance. (Kesner, supra, 1 Cal.5th at p. 1143.) The Rowland

factors fall into two categories: the first three consider “the foreseeability of 

the relevant injury,” and the others “take into account public policy concerns 

that might support excluding certain kinds of plaintiffs or injuries from 

relief.” (Kesner, at p. 1145.) The court in Kesner explained that foreseeability 

of injury was “[t]he most important factor,” measured by what a 

“ ‘ “reasonably thoughtful [person] would take account of . . . in guiding 

practical conduct.” ’ ” (Id. at p. 1145.) 

Kesner thus analyzed the seven Rowland factors to decide whether an 

employer owes a duty of care to protect an employee’s household members

from secondary exposure to asbestos. (Kesner, supra, 1 Cal.5th at pp. 1145–

1152.) It determined that the first three factors weighed in favor of finding a 

duty because “it was foreseeable that people who work with or around 

asbestos may carry asbestos fibers home with them and expose members of 

their household,” it was certain that the plaintiffs had suffered injury 

because they had died of mesothelioma, and the purported intervening 

conduct (workers returning home without adequate precautions and bringing 

in asbestos dust) was “predictive and derivative of the alleged misconduct” 

and thus “entirely foreseeable.” (Id. at pp. 1145, 1148–1149.) 

The court then turned to the consideration of the remaining Rowland

factors. It had little difficulty finding that “[n]egligence in [commercial users] 

use of asbestos is morally blameworthy,” legislatures and agencies had 
10

“readily adopted the premise” that imposing liability for asbestos exposure 

would prevent future harm, protection of household members would not 

impose a greater burden than the protection of workers themselves, and that 

the relevant framework for availability of insurance looks to the time of 

exposure. (Kesner, supra, 1 Cal.5th at p. 1151.) 

But Kesner also described defendants’ argument on burden as their 

“most forceful contention.” (Kesner, supra, 1 Cal.5th at p. 1153.) Defendants’ 

“legitimate concerns regarding the unmanageability of claims premised upon 

incidental exposure, as in a restaurant or city bus . . . point to the need for a 

limitation on the scope of the duty here.” (Id. at p. 1154.) Kesner thus held 

that “an employer’s or property owner’s duty to prevent take-home exposure 

extends only to members of a worker’s household, i.e., persons who live with

the worker and are thus foreseeably in close and sustained contact with the

worker over a significant period of time.” (Id. at pp. 1154–1155.)

The court explained that this limitation was consistent with its 

analysis under the Rowland factors: “Our finding of foreseeability turned on 

the fact that a worker can be expected to return home each workday and to 

have close contact with household members on a regular basis over many 

years. Persons whose contact with the worker is more incidental, sporadic, or 

transitory do not, as a class, share the same characteristics as household 

members and are therefore not within the scope of the duty we identify here. 

This rule strikes a workable balance between ensuring that reasonably 

foreseeable injuries are compensated and protecting courts and defendants 

from the costs associated with litigation of disproportionately meritless 

claims.” (Kesner, supra, 1 Cal.5th at p. 1155.) Accordingly, Kesner held that 

“defendants owed the members of their employees’ households a duty of 
11

ordinary care to prevent take-home exposure and that this duty extends no 

further.” (Id. at p. 1156.)

Here, J-MM argues that this holding in Kesner foreclosed Cornelius’s 

strict liability cause of action as a matter of law because he was not a 

household member of his brother Nathan. We disagree. The plaintiffs in 

Kesner alleged negligence and premises liability claims, both of which include 

the element of duty. (Kesner, supra, 1 Cal.5th at p. 1158.) Our Supreme 

Court made clear that it was deciding the scope of that duty owed under 

these legal theories. (Id. at p. 1142.) Unlike the claims in Kesner, Cornelius’s

strict liability cause of action did not require him to prove any element of 

duty. “[S]trict products liability causes of action need not be pled in terms of 

classic negligence elements (duty, breach, causation and damages).” 

(Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 464.) “Unlike 

a negligence theory of liability, a strict products liability theory does not focus 

on the defendant’s duty to use due care; the defendant’s behavior is 

irrelevant.” (Jenkins v. T&N PLC (1996) 45 Cal.App.4th 1224, 1231.) 

J-MM relies on Kesner and other decisions that have “followed Kesner’s

bright line,” but tiptoes around the reality that these are all negligence cases. 

There is no doubt that Kesner has been followed by courts to determine the 

scope of duty for negligence claims. (E.g., Kuciemba, supra, 14 Cal.5th at p.

1004 [employer did not owe duty of care to prevent spread of COVID-19 to 

employee’s household members given “intolerable burden on employers and 

society in contravention of public policy”]; Petitpas v. Ford Motor Co. (2017) 

13 Cal.App.5th 261, 276 [oil company did not have duty to non-household 

member to prevent alleged secondary asbestos exposure].) Indeed, the trial 

court here correctly dismissed Cornelius’s negligence claim on this basis (an 

issue not challenged on appeal). J-MM, however, does not present any 
12

authority concluding that the limitation on duty in Kesner summarily 

precludes a strict liability cause of action asserted by a non-household 

member alleging secondary exposure to asbestos like Cornelius.

C. Strict Liability vs. Negligence

J-MM argues next that, even if Kesner did not address strict liability, it 

should still apply to foreclose Cornelius’s claim as a matter of law because 

strict liability and negligence are shaped by the same elements and

underlying policy considerations.

As for the elements of the two causes of action, J-MM relies heavily on

Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59 (Romito). In that case, 

family members of an electrician brought negligence and strict liability 

claims against a manufacturer of plastic skylights. (Id. at p. 63.) The 

electrician suffered a fatal injury after stumbling and falling through a 

skylight to the concrete floor below while removing cable and wires on a roof 

without wearing a safety line. (Ibid.) The appellate court affirmed summary 

judgment on the negligence claim upon concluding that the skylight 

manufacturer had no duty to protect the electrician against his unforeseeable 

and accidental misuse of the skylight. (Id. at p. 69.) It then affirmed 

summary judgment on the strict liability claim because plaintiffs could not 

show the defect element: failure to perform when the skylight was used or 

misused in an intended or foreseeable way. (Id. at p. 70.)

The appellate court’s analysis thus concerned whether the use or 

misuse of the skylight was foreseeable. (Romito, supra, 38 Cal.App.4th at pp. 

69–70.) We agree that this concept of foreseeability is involved in strict 

liability. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560 [“A 

manufacturer, distributor, or retailer is liable in tort if a defect in the 

manufacture or design of its product causes injury while the product is being 
13

used in a reasonably foreseeable way”]; Milwaukee Electric Tool Corp. v. 

Superior Court (1993) 15 Cal.App.4th 547, 558 [“Even if an injured plaintiff’s 

acts constituted misuse of a product, if those acts were foreseeable, strict 

liability may still apply”].) For his design defect claim under the consumer 

expectations test,3 Cornelius had to prove that the J-MM pipe did not perform 

as safely as an ordinary consumer would have expected it to perform when 

used or misused in an intended or reasonably foreseeable way. (Barker v. 

Lull Engineering Co., supra, 20 Cal.3d at p. 418.) And for his warning defect 

claim, Cornelius had to prove the J-MM pipe had potential risks that 

ordinary consumers would not have recognized and that presented 

substantial danger when the pipe was used or misused in an intended or 

reasonably foreseeable way. (Anderson v. Owens-Corning Fiberglas Corp., 

supra, 53 Cal.3d at p. 993, fn. 5.)

This focus on the foreseeability of use is consistent with the broader 

objectives of strict liability to create incentives that “achieve optimal levels of 

safety in designing and marketing products.” (Rest.3d Torts, § 2, com. (a);

Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 746 (Daly) [explaining 

“products must incorporate and balance safety, utility, competitive merit, and 

practicality under a multitude of intended and foreseeable uses”].) 

“[C]onsumer expectations about product performance and the dangers 

attendant to product use affect how risks are perceived and relate to 

foreseeability and frequency of the risks of harm.” (Rest.3d Torts, § 2, com.

(g).) We see nothing in these elements that categorically excludes a plaintiff 

3 Given it does not appear that Cornelius sought to prove liability at 

trial under the alternative risk-benefit test and the two design defect tests 

“do not serve as defenses to one another” (Chavez v. Glock, Inc. (2012) 207

Cal.App.4th 1283, 1303), we do not address the foreseeability element of the 

risk-benefit test.
14

like Cornelius from seeking to prove his claims that J-MM’s asbestos-cement 

pipe defied consumer expectations and failed to provide adequate warnings 

when used in a foreseeable way.

Romito’s reliance on the same underlying premise (unforeseeable and 

accidental misuse) in its analysis of both (1) the duty element in negligence 

and (2) the defect element in strict liability, however, does not support JMM’s position these two causes of action “meld” together. Indeed, Gilead

Tenofovir Cases (2024) 98 Cal.App.5th 911, review granted May 1, 2024, 

S283862 (Gilead) recently rejected this position. The issue in Gilead was 

whether the plaintiffs were foreclosed from a negligence claim by alleging

that the manufacturer negligently deferred development of a new medication 

with lower risk of adverse effects, and not attempting to prove that the older 

medication was itself defective. (Id. at pp. 916–917.) The appellate court 

determined the plaintiffs were not so foreclosed, explaining that the 

requirement to prove a product defect is “necessary to constrain the reach of 

strict liability” but for negligence claims, “the requirement of a duty of care 

imposes its own limits on the potential scope of liability, governed by an 

array of policy considerations as they bear on a particular context.” (Id. at p. 

924.) The court noted that the limitations of negligence claims prompted the 

development of the strict liability doctrine. (Id. at p. 923.) Gilead concluded: 

“In our view, neither logic nor jurisprudential history compels the conclusion 

that the two concepts must be coextensive in every case in which a plaintiff is 

injured by a product.” (Id. at p. 924.) 

J-MM also relies on Lambert v. General Motors (1998) 67 Cal.App.4th 

1179 to argue that Cornelius’s strict liability and negligence causes of action 

“merged.” In Lambert, a plaintiff injured in a car accident asserted product 

liability claims based on theories of strict liability (defects in roof and seatbelt 
15

design of car) and negligence (manufacturer was negligent in design of car). 

(Id. at pp. 1181–1182.) The jury concluded there was no defect, but that the 

car manufacturer was negligent in the design of the car. (Id. at p. 1182.) The 

appellate court determined that the verdict was inconsistent and remanded 

for a new trial. (Id. at p. 1186.) It reasoned that the manufacturer could not 

be negligent for design if there was no design defect. (Ibid.) It explained 

that, because both product liability claims depended on proof of the defect, 

the claims “merge.” (Id. at p. 1185.) But nothing in Lambert suggests that 

the element of duty in any negligence cause of action merges or is coextensive 

with the defect element in a strict liability cause of action.

As for the policy considerations underlying the two causes of action, we 

again acknowledge the general premise that both doctrines balance the costs 

and benefits of liability. (Kesner, supra, 1 Cal.5th at p. 1143; Daly, supra, 20 

Cal.3d at p. 746.) But these policy considerations are not identical, and in 

any event do not support the inexorable extension of Kesner that J-MM 

advances here as a matter of law.

Strict liability was developed to ensure that costs from defective 

products are borne by manufacturers, retailers, and distributors who put the

products into the stream of commerce (and who can then adjust for those 

associated costs in the course of their business), not individuals “ ‘who are 

powerless to protect themselves’ ” from those defects. (Elmore v. American 

Motors Corp. (1969) 70 Cal.2d 578, 585 (Elmore).) As described above, the 

foreseeability element of Cornelius’s strict liability claims informs this

balancing. Individuals appropriately bear the costs when the product is

being used in an unforeseeable way. (See, e.g., Daly, supra, 20 Cal.3d at p.

733 [“[T]he manufacturer is not deemed responsible when injury results from 

an unforeseeable use of its product”].) Individuals also appropriately bear 
16

the costs for failures or potential risks that are reasonably expected even 

with foreseeable use. If a product is inherently or obviously dangerous, for 

example, a reasonable consumer would have related expectations about

performance and potential risks. But protecting individuals from unexpected 

defects arising from foreseeable use of a protect is consistent with that goal.

Nor are we persuaded by J-MM’s other “policy” reasons to extend 

Kesner. First, J-MM suggests that declining to do so would improperly 

equate strict liability with “absolute liability.” Not so. “[S]trict liability has 

never been, and is not now, absolute liability.” (Daly, supra, 20 Cal.3d at p.

733.) “On the contrary, the plaintiff’s injury must have been caused by a 

‘defect’ in the product.” (Ibid.) “Furthermore, we have recognized that 

though most forms of contributory negligence do not constitute a defense to a 

strict products liability action, plaintiff’s negligence is a complete defense 

when it comprises assumption of risk.” (Ibid.) As Daly makes clear, the 

elements for (and defenses to) a strict liability cause of action prevent it from 

imposing absolute liability. Cornelius was still required to prove the J-MM 

pipe did not perform as safely as an ordinary consumer would have expected 

it to perform and had failures or risks when used in a foreseeable way.

Second, J-MM argues that declining to extend Kesner to strict liability 

causes of action would be “perverse” because product defendants would 

“shoulder all the blame” with no means of warning individuals like Cornelius.

But employers and premises owners are still potentially liable under 

negligence theories for asbestos exposure to workers and household members 

under Kesner and, as described above, non-household members alleging 

secondary exposure to asbestos must still prove the elements of strict liability 

to proceed under that theory against product defendants. Moreover, J-MM’s 

argument assumes that it was found liable based on failure to warn
17

Cornelius. The record does not support this assumption. It was Nathan who 

testified that he never saw any warnings on the asbestos-cement pipe he 

worked on. The jury verdict found only that J-MM (and Voss) had “failed to 

adequately warn of the potential risks of asbestos-cement pipe.” 

Third, J-MM warns that allowing non-household members to pursue 

strict liability causes of action for secondary exposure to asbestos would 

result in “virtually infinite litigation” and lead to consumers being “swamped 

with ineffectual warnings.” But, as explained above, the elements of strict 

liability provide guardrails for such litigation. (Daly, supra, 20 Cal.3d at p.

734.) Nor does J-MM explain how correction of the warning defect alleged 

here (no warning on asbestos-cement pipe) would diminish the efficacy of 

consumer warnings as a whole.

D. Bystander Recovery

Finally, J-MM argues that allowing a plaintiff like Cornelius to proceed 

with a strict liability cause of action would “ignore the limits” placed on 

bystander recovery by the California Supreme Court. For the reasons we 

described above in part I.B., we reject this argument to the extent it relies on 

expanding Kesner’s holding on duty in negligence causes of action to foreclose

strict liability causes of action, which require no element of duty.

J-MM also cites authority regarding bystander recovery on claims for 

negligent infliction of emotional distress (NIED) to support this argument, 

specifically Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 

Cal.App.4th 830. That case provides no support for J-MM. In Fortman, the 

plaintiff asserted a NIED claim after witnessing the death of her brother 

while they were scuba diving. (Id. at p. 832.) The plaintiff thought her 

brother had suffered a heart attack, but later learned his death was caused 

by a component of his scuba equipment that prevented him from getting 
18

enough air. (Ibid.) Citing Thing v. La Chusa (1989) 48 Cal.3d 644, the 

appellate court explained that the plaintiff did not have a viable bystander 

NIED claim because she could not meet one of the required elements: that 

she was “present and contemporaneously perceived the causal connection 

between the accident and the injuries suffered.” (Fortman, at p. 832.) 

Plaintiff argued that this element should not apply to cases, such as hers, 

when a close relative sustains a “product-related injury where strict liability 

principles apply.” (Id. at p. 841.) The court in Fortman rejected that 

argument, doing precisely what we do here: declining to apply elements and

policy considerations underlying one type of action (negligence) to alter those 

in another type of action (strict liability). (Id. at pp. 844–845.)

Instead, we find Elmore instructive on the scope of bystander recovery 

under California law. In that case, the drive shaft of a Rambler American 

station wagon became disconnected, causing the car to fishtail out of control, 

cross over to the other side of the road, and strike the vehicle of 

plaintiff/bystander Waters with such impact that the driver was hurled from 

the Rambler onto an embankment. (Elmore, supra, 70 Cal.2d at pp. 580–

581.) In the subsequent consolidated personal injury and wrongful death 

actions, the trial court granted American Motors Corporation and the 

automobile dealer’s motions for nonsuit. (Id. at p. 580.) Our Supreme Court 

reversed the judgment. (Id. at p. 587.) 

The question presented in Elmore was “whether the doctrine of strict 

liability of the manufacturer and retailer for defects is applicable to third 

parties who are bystanders and who are not purchasers or users of the 

defective chattel.” (Elmore, supra, 70 Cal.2d at p. 585.) At the time Elmore

was decided, “no case had applied strict liability to a person who was not a 

user or consumer.” (Ibid.) But other California Supreme Court cases had 
19

made clear that strict liability “may not be restricted on a theory of privity of 

contract.” (Id. at p. 586.) Instead, “liability has been based upon the 

existence of a defective product which caused injury to a human being, and 

. . . we did not limit the rules stated to consumers and users but instead used 

language applicable to human beings generally.” (Ibid.) Elmore concluded: 

“If anything, bystanders should be entitled to greater protection than the 

consumer or user where injury to bystanders from the defect is reasonably 

foreseeable. Consumers and users, at least, have the opportunity to inspect 

for defects and to limit their purchases to articles manufactured by reputable 

manufacturers and sold by reputable retailers, whereas the bystander 

ordinarily has no such opportunities. In short, the bystander is in greater 

need of protection from defective products which are dangerous, and if any 

distinction should be made between bystanders and users, it should be made, 

contrary to the position of defendants, to extend greater liability in favor of 

the bystanders.” (Id. at p. 586.)

Our conclusion is entirely consistent with the directive in Elmore to err 

on the side of greater protection for bystanders who are “ ‘powerless to protect 

themselves’ “ from those defects.4 (Elmore, supra, 70 Cal.2d at p. 585.)

4 Cases cited by J-MM and amici curiae on bystander recovery under

other state laws are not binding on this court or our interpretation of 

California law. (See Episcopal Church Cases (2009) 45 Cal.4th 467, 490.)

Nor do we find them persuasive. Martin v. Cincinnati Gas and Elec. Co. (6th 

Cir. 2009) 561 F.3d 439, for example, relies on Kentucky law that is contrary 

to the broader conception of bystander recovery set forth in Elmore. (Id. at 

pp. 446–447.) Rohrbaugh v. Owens-Corning Fiberglas Corp. (10th Cir. 1992) 

965 F.2d 844 involves concepts in negligence: specifically, the scope of a 

manufacturer’s duty to warn under Oklahoma law. (Id. at p. 846.) Magoffe v. 

JLG Industries, Inc. (10th Cir. 2010) 375 Fed.Appx. 848 is also inapposite; it 

explains that strict liability for product defects may be limited by 
20

Moreover, the foreseeability element of Cornelius’s design and warning defect 

claims captures the concept of foreseeability described in Elmore, as 

Cornelius was required to prove that J-MM’s asbestos-cement pipe failed in a 

manner that defied consumer expectations and lacked adequate warnings 

when used in a foreseeable way.

In sum, we decline to extend Kesner’s limitation on duty for negligence 

causes of action alleging secondary exposure to asbestos to Cornelius’s strict 

liability cause of action here. The trial court did not err in denying J-MM’s 

motion for JNOV.

II. Substantial Evidence

A. Additional Background

Nathan worked for EBMUD from 1978 to 1988. J-MM supplied 624 

tons of asbestos-cement pipe to EBMUD. Nathan testified that he worked on 

water mains and service lines, including asbestos-cement pipe. He performed 

pipe repairs, pipe drilling, pipe removal, valve replacements, and “hydro 

installations” on asbestos-cement pipe. He saw breakage of asbestos-cement 

pipe caused by various factors, including age, backhoes, service saddles, high 

water pressure, and earthquakes. He agreed that, generally speaking, older 

pipe was more likely to be damaged than new pipe. An EBMUD witness 

testified that age factored in “a little” on asbestos-cement pipe breakage, but

that age “wasn’t as often” the cause “as the other reasons” because asbestoscement pipe is “strong” and “sturdy.”

Nathan testified that his work involved not only damaged asbestoscement pipe, but cutting or drilling into pipe for other reasons (e.g. to replace 

unforeseeable modification of a product under New Mexico law. (Id. at p.

850.)
21

or repair fittings and fixtures), including pipe that had been installed only six 

months prior. 

Nathan testified that he worked on four types of asbestos-cement pipe 

while at EBMUD: J-MM, Johns-Manville, Kubota, and CertainTeed. He 

knew this because he saw brand stencils on the pipe, including “J-M” and 

“Johns-Manville.” He worked on each of these four brands “evenly” over his

10 years at EBMUD.

Nathan worked for Daly City from 1989 to 2018, doing the same type of 

work on asbestos-cement pipe. J-MM did not produce any records of 

asbestos-cement pipe sales to Daly City, but J-MM witnesses testified that its

records were not comprehensive because some were missing or had been 

destroyed. Nathan testified that he worked on three types of asbestos-cement 

pipe while at Daly City: J-MM, Johns-Manville, and CertainTeed. He again 

had identified these brands by their stencil.

In its motion for directed verdict, J-MM argued that Cornelius had 

failed to produce substantial evidence that Nathan had actually worked with 

asbestos-cement pipe supplied by J-MM. It relied on evidence from J-MM 

witnesses to argue that the pipe could have been supplied by Johns-Manville,

because Johns-Manville had also used a “J-M” stencil on some of its asbestoscement pipe. Denying the motion, the trial court stated: “With regard to the 

argument that there’s no substantial evidence of causation, because some 

Johns-Manvillle pipe was labeled the same as J-MM pipe, that’s an argument 

that I believe has no merit whatsoever.” 

B. Framework and Standard of Review

On a substantial evidence challenge, “we are bound by the ‘elementary, 

but often overlooked principle of law that . . . the power of an appellate court

begins and ends with a determination as to whether there is any substantial 
22

evidence, contradicted or uncontradicted,’ to support the findings below.”

(Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 (Jessup), quoting

Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) “We must 

therefore view the evidence in the light most favorable to the prevailing 

party, giving it the benefit of every reasonable inference and resolving all 

conflicts in its favor in accordance with the standard of review so long 

adhered to by this court.” (Jessup, at p. 660.) 

C. Analysis

J-MM argues that Cornelius failed to present substantial evidence to 

support the jury’s finding that he was exposed to asbestos from asbestoscement pipe supplied by J-MM. Relying on Izell v. Union Carbide Corp.

(2014) 231 Cal.App.4th 962 (Izell), J-MM contends that Cornelius only raised 

a “mere possibility” of such exposure.

The evidence presented in Izell is distinguishable from the evidence 

presented here. In Izell, the plaintiff claimed exposure to asbestos from 

visiting jobsites where workers were using four different brands of asbestoscontaining joint compound. (Izell, supra, 231 Cal.App.4th at p. 967.) 

Defendant Union Carbide, a supplier of asbestos to these joint compound 

brands, argued there was insufficient evidence to support the liability

finding. (Id. at p. 970.) The appellate court agreed as to Union Carbide’s 

supply to three of the brands: there was uncontradicted evidence that Union 

Carbide was only a minor supplier for two of them, and that the third could 

not get its Union Carbide supplied product to California (where the jobsites 

were located). (Id. at pp. 971–973.) As to the fourth brand, however, the 

appellate court concluded there was sufficient evidence for liability because 

the plaintiff testified that he had inhaled dust from the specific product, and 
23

the manufacturer confirmed that all asbestos used to make that product was 

from Union Carbide. (Id. at p. 974.)

Here, unlike Izell, there was no additional link in the supply chain that 

created speculation about the source of the asbestos. Nathan testified that he 

worked with J-MM asbestos-cement pipe during his employment at both 

EBMUD and Daly City and that, at least for EBMUD, he worked evenly 

across brands of pipe. “A single witness’s testimony may constitute 

substantial evidence to support a finding.” (Thompson v. Asimos (2016) 6 

Cal.App.5th 970, 981.)

Nor are we persuaded by J-MM’s other arguments that it was more 

likely that Nathan worked on pipe supplied by Johns-Manville (versus pipe 

supplied by J-MM from 1983 to 1988). First, J-MM suggests that Nathan

only worked with “old” pipe. Even though Nathan testified that he replaced 

damaged pipe and agreed that, as a general principle, older pipe was more 

likely to be damaged than new pipe, another EBMUD witness testified that

age was not the most dominant factor in pipe damage. It would have been 

reasonable for the jury to credit this testimony. More importantly, Nathan

testified that he also worked on pipe that was not damaged (to make other 

replacements or repairs), and worked on pipe that had been installed as 

recently as six months prior. 

Second, J-MM argues that Nathan had identified the “J-M” stencil 

before J-MM had ever started supplying asbestos-cement pipe. When asked 

if he saw pipe with a “J-M” stencil in the “early part” of his career, Nathan

responded, “Yes.” He was then asked, “And you also saw pipe in addition to 

having J-M and again, to clarify for the jury, the early part of your career 

included 1978 up before 1983 time period, that would have been part of the 

early part of your career, right?” He responded, “Yes.” Viewing the evidence 
24

in the light most favorable to Cornelius, as we are required to do, this 

testimony proves only that Nathan saw the “J-M” stencil in the “early part” of 

his career, and that part of the “early part” of his career was before 1983. 

(Jessup, supra, 33 Cal.3d at p. 660.) It would have been reasonable for the 

jury to conclude that Nathan still considered years after 1983 (while he was 

still at EBMUD and when J-MM had begun supplying asbestos-cement pipe) 

to also be part of the “early part” of his career.

Third, J-MM suggests that Nathan had no way of distinguishing pipe 

supplied by J-MM versus Johns-Manville, because Johns-Manville also used 

the “J-M” stencil on its smaller four and six-inch diameter pipe. As a 

preliminary matter, the relevance of this point is unclear because there was 

no evidence confirming the size of pipe purchased by EBMUD or Daly City, or 

the size of pipe worked on by Nathan. 

In any event, it is reasonable that the jury would have interpreted the 

evidence on this point as contradictory or not credible. One witness testified 

that Johns-Manville put only “J-M” on its smaller diameter pipe, but its full 

name on larger pipes. Another witness, however, testified that JohnsManville used “J-M” and “Manville” on every pipe. That same witness also 

stated that Johns-Manville used the “JM” stencil with no dash. J-MM asks 

us to infer that these were simply grammatical mistakes by its witnesses, but 

again, that flips the substantial evidence standard on its head. (Jessup,

supra, 33 Cal.3d at p. 660.) We instead conclude it was reasonable for the 

jury to discredit this contradictory evidence and infer that, based on the 

usage of different stencils, Nathan was able to correctly distinguish between 

J-MM and Johns-Manville pipe.
25

In sum, we conclude there was substantial evidence to support the 

jury’s finding that Cornelius had proven exposure from asbestos-cement pipe 

supplied by J-MM.

5

III. Evidentiary Rulings

A. Additional Background

Before the presentation of evidence, the parties raised an issue 

regarding the scope of testimony at trial. The issue was whether hearsay 

evidence that did not fall within a hearsay exception could be presented at 

trial if the witness was designated by an entity as the person most qualified 

(PMQ) to testify on its behalf at deposition under Code of Civil Procedure 

section 2025.030. The trial court issued an order (hereinafter Trial 

Testimony Order) stating that the rules of evidence do not permit hearsay 

evidence at trial unless it falls within a given exception, and do not permit a 

witness to testify at trial to facts not within their personal knowledge. The 

court concluded that those rules apply with equal force to a witness who was 

previously designated as the PMQ for deposition.

At the end of trial, J-MM moved to admit certain exhibits into evidence. 

One exhibit was a document entitled “Phase 1 Asbestos Cement Pipe 

Corrosion Study Technical Report” from EBMUD. The report “discusses the 

current condition of AC pipes within the District” and “summarizes previous 

District AC pipe studies produced by contracted outside consultants as well 

as contemporary industry research for programs addressing aging AC pipe 

infrastructure.” J-MM presented a declaration from one EBMUD employee 

(Antonio Martinez) that purported to authenticate the exhibit. J-MM also 

5 Given this conclusion, we need not address J-MM’s argument that 

Cornelius’s experts did not close the “evidentiary gap” on exposure to 

asbestos-cement pipe supplied by J-MM. 
26

argued that this exhibit was admissible under the business and official 

records hearsay exceptions, citing testimony from another EBMUD employee 

(Carlton Chan) who performed research used for one section of the report. 

Cornelius objected to the admission on multiple grounds, including lack of 

personal knowledge and inadmissible hearsay. The trial court excluded the 

exhibit. It had explained that Martinez lacked personal knowledge and could 

not authenticate the exhibit via declaration, and Chan might have been able

to establish the official records hearsay exception for the section of the report

with his research, but not for its remainder. 

Another exhibit was a PowerPoint presentation entitled “AC Pipe 

Failure Study EBMUD Oakland, CA” from JDH Corrosion Consultants, Inc. 

J-MM again submitted a declaration from Martinez purporting to 

authenticate the exhibit. J-MM also argued that the exhibit was admissible 

under the business and official records hearsay exceptions. J-MM offered a

declaration from J. Darby Howard, Jr., the president of the consulting firm.

Cornelius objected that the declarations were hearsay. The trial court did 

not admit the exhibit.

J-MM also sought to admit various documents purportedly related to 

EBMUD’s purchase requirement contracts with CertainTeed and Manville

for asbestos-cement pipe during the 1980s, as well as a proposal with J-M 

A/C Corporation. J-MM argued that these documents would have been 

authenticated by testimony from EBMUD employee Kelley Smith if he had 

been allowed to testify about matters outside his personal knowledge. Smith 

testified only about his involvement producing records in response to a 

subpoena; the trial court sustained various objections on the grounds that 

Smith did not have personal knowledge as to the creation or maintenance of 

such records. J-MM also argued that the exhibits were admissible under the 
27

business records, official records, and ancient writings hearsay exceptions. 

Cornelius objected that any such exception applied. The trial court excluded 

the exhibits.

B. Framework and Standard of Review

We review rulings regarding the admissibility of evidence at trial for 

abuse of discretion. (Molenda v. Department of Motor Vehicles (2009) 172 

Cal.App.4th 974, 986.) “ ‘[T]he appropriate test of abuse of discretion is 

whether or not the trial court exceeded the bounds of reason, all of the 

circumstances before it being considered.’ ” (Ibid.) “Appellate courts will 

disturb discretionary trial court rulings only upon a showing of a clear case of 

abuse and a miscarriage of justice.” (Ibid.)

C. Analysis

J-MM challenges both the Trial Testimony Order as it relates to 

requiring personal knowledge for witness testimony at trial, as well as the 

exclusion of the report, PowerPoint presentation, and contract exhibits. On 

the Trial Testimony Order, J-MM argues that the trial court had a “warped 

view” and interpreted personal knowledge “too narrowly” for witnesses who 

had been designated as the PMQ for deposition, which prevented J-MM from 

presenting evidence to authenticate the exhibits and establish applicable

hearsay exceptions. We disagree. 

“The Evidence Code recognizes only two types of witnesses: lay 

witnesses and expert witnesses.” (LAOSD Asbestos Cases (2023) 87 

Cal.App.5th 939, 947.) The testimony of a lay witness concerning a 

particular matter is inadmissible unless he has personal knowledge of the 

matter. (Evid. Code, § 702, subd. (a).) “There is no special category of 

‘corporate representative’ witness,” or “ ‘person previously designated as most 

knowledgeable’ witness.” (LAOSD Asbestos Cases, at p. 947.) The term 
28

“person most qualified” is used in the Civil Discovery Act to describe the 

individual who should be designated and produced at deposition when the 

deponent is an entity that is not a natural person. (LAOSD Asbestos Cases,

at p. 948.) “To state what should be obvious, the purpose of discovery is to 

permit a party to learn what information the opposing party possesses on the 

subject matter of the lawsuit, and the scope of discovery is not limited to 

admissible evidence.” (Ibid.) At trial, however, testimony is bound by the 

rules of evidence, including that lay witnesses testify to facts within their 

personal knowledge. (Ibid.) The trial court here did not abuse its discretion 

in issuing an order to that effect.

On the admissibility of the report, J-MM argues that the trial court 

“misapprehended” the official records hearsay exception. Pursuant to 

Evidence Code section 1280, a writing made as a record of an act, condition, 

or event is not inadmissible by the hearsay rule if (a) the writing was “made 

by and within the scope of duty of a public employee,” (b) the writing was 

made “at or near the time of the act, condition, or event,” and (c) “[t]he 

sources of information and method and time of preparation were such as to 

indicate its trustworthiness.” J-MM contends that the trial court improperly

excluded the exhibit on the basis of the third element. 

Citing People v. Dunlap (1993) 18 Cal.App.4th 1468 (Dunlap), J-MM 

argues that the official records hearsay exception can be applied even without 

witness testimony on this third element. But Dunlap observed only that 

court may admit an official record “ ‘without necessarily requiring a witness 

to testify as to its identity and mode of preparation if the court takes judicial 

notice or if sufficient independent evidence shows that the record or report was 

prepared in such a manner as to assure its trustworthiness.’ ” (Id. at p. 1477.) 

J-MM does not identify judicially noticed or independent evidence that
29

trigger this option here. Even if it did, nothing in Dunlap suggests that the 

trial court is required to admit a document in this manner. Nor was the trial 

court required to find this element satisfied pursuant to Evidence Code 

section 664. Section 664 provides that the trial court may rely on a 

rebuttable presumption—that an official duty has been regularly 

performed—as a basis for finding the foundational requirements of official 

records exception are met. (Dunlap, at p. 1477.) There is no categorical rule 

that it do so.

J-MM also argues that the report was admissible under the business 

records exception. “Although similar to the business records exception (Evid. 

Code, § 1271), the official records exception differs in one important respect. 

Evidence Code section 1271 ‘requires a witness to testify as to the identity of 

the record and its mode of preparation in every instance.’ ” (Dunlap, supra,

18 Cal.App.4th at p. 1477.) Here, the trial court reviewed Chan’s testimony 

and concluded that he did not know the sources of information or method 

used beyond his research for one section of the report. The trial court did not 

abuse its discretion in reaching this conclusion.

As for the PowerPoint presentation, J-MM contends that the trial court 

improperly disregarded the Martinez and Howard declarations, and that the 

official and business records hearsay exceptions applied. But even where

records are accompanied by a custodian declaration under Evidence Code 

1561, the rules of evidence regarding hearsay still apply. (Taggart v. Super 

Seer Corp. (1995) 33 Cal.App.4th 1697, 1706 [“It will readily be seen that a 

custodian’s declaration may state all the matters it is required to state under 

section 1561, yet fail to provide a sufficient foundation for admission of the 

records under section 1271”].) As explained above, the official and business 

records hearsay exceptions apply only if the sources of information and 
30

method of preparation of such records indicate their trustworthiness. (Evid. 

Code, §§ 1271, 1280.) J-MM did not present admissible evidence detailing 

the sources of information and method of preparation for the PowerPoint 

presentation.

6 The trial court did not abuse its discretion in excluding the 

exhibit.

As for the contract exhibits, J-MM argues that Smith did not need 

personal knowledge to testify regarding the authenticity of these records.

7

None of the authority cited by J-MM suggests that the trial court abused its 

discretion in following the rule that a lay witness like Smith testify at trial to 

facts within his personal knowledge. (Geary St., P. & O.R. Co. v. Campbell 

(1919) 39 Cal.App. 496, 498 [secretary who had occupied position for many 

years testified that books of company were turned over to him in the ordinary 

course of business when he became such secretary, and identified them as 

such]; People ex rel. Owen v. Media One Direct, LLC (2013) 213 Cal.App.4th 

1480, 1484 [trial court “was entitled to accept [witness’s] assertion of personal 

knowledge” of actions taken, along with review of files].) 

Nor are we persuaded by J-MM’s argument that the authenticity of 

these exhibits should have been presumed under Evidence Code section 643. 

Section 643 provides that a “deed or will or other writing purporting to 

6 J-MM argues that it submitted such evidence through Martinez’s trial 

testimony, but only cites his testimony regarding the report (not the 

PowerPoint presentation). California Rules of Court, rule 8.204(a)(1)(C), 

required J-MM to support its arguments by citation to the volume and page 

number of the record where the relevant matter appears.

7 J-MM argues that Martinez also authenticated these records, but its 

underlying motion relied exclusively on Smith’s trial testimony for

authentication. (See Hewlett-Packard Co. v. Oracle Corp. (2021) 65 

Cal.App.5th 506, 548 [“ ‘ “As a general rule, theories not raised in the trial 

court cannot be asserted for the first time on appeal” ’ ”].)
31

create, terminate, or affect an interest in real or personal property” is 

presumed to be authentic if it (a) is at least 30 years old; (b) is “in such 

condition as to create no suspicion concerning its authenticity,” (c) was “kept, 

or if found was found, in a place where such writing, if authentic, would be 

likely to be kept or found,” and (d) has been “generally acted upon as 

authentic by persons having an interest in the matter.” J-MM offers nothing 

to show that the purchase requirement contracts and proposal are writings

that affect a “real or personal property” interest to trigger this presumption. 

(Evid. Code, § 643.) Nor is it certain that the condition of these records 

created “no suspicion” regarding their authenticity, as Smith testified that

EBMUD does not retain all of its records regarding purchase contracts. The 

trial court did not abuse its discretion in sustaining objections regarding the 

authentication of these exhibits.8

In sum, we conclude that the trial court did not abuse its discretion in

its Trial Testimony Order or its exclusion of the report, PowerPoint 

presentation, and contract exhibits.

9

DISPOSITION

The judgment is affirmed. Respondent is entitled to his costs on 

appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

8 Given this conclusion, we need not address J-MM’s argument that the 

authenticated records satisfied certain hearsay exceptions. 

9 Given this conclusion, we need not address J-MM’s arguments that 

any abuse of discretion was prejudicial. 
32

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Richman, J.

A162561, A163492, Williams v. J-M Manufacturing, Inc.
33

Court: Alameda County Superior Court

Trial Judge: Hon. Frank Roesch

Manning Gross + Massenburg, Carrie S. Lin; Miller Barondess, Nadia A. 

Sarkis; Greines, Martin, Stein & Richland, Kent L. Richland, for Defendant 

and Appellant

Shook, Hardy & Bacon, Andrew Trask; Fred J. Hiestand for Coalition for 

Litigation Justice, Inc. and Civil Justice Association of California as Amicus 

Curiae on behalf of Defendant and Appellant

Elmer Stahl, Robert E. Dunn for Chamber of Commerce of the United States 

of America as Amicus Curiae on behalf of Defendant and Appellant

Maune Raichle Hartley French & Mudd, David L. Amell, Marissa Y. 

Uchimura, for Plaintiff and Respondent

A162561, A163492, Williams v. J-M Manufacturing, Inc.