In the recent matter of Berroteran v. Superior Court of Los Angeles, the California Supreme Court issued a decision limiting the circumstances in which deposition testimony obtained in an earlier proceeding can be offered against a party to that former proceeding in a later action.[i] The Supreme Court reversed the Court of Appeal’s decision and concluded the hearsay exception in Evidence Code, section 1291(a)(2) creates a general rule against admission of testimony from a prior civil discovery deposition. The recent ruling creates yet another uphill battle for parties seeking to introduce deposition testimony obtained in previous actions at later trials, even when the witness is unavailable.
Plaintiff was a class member in a federal class action involving alleged defects in a diesel engine against defendant Ford Motor Company. After the class action plaintiffs deposed nine Ford employees, the class action settled. Before the settlement, plaintiff in the case at bar opted out of the class to pursue his own suit. Several years later, plaintiff filed a claim against Ford in the Los Angeles Superior Court, alleging defects to his vehicle for issues raised in the original federal class action. In support of his claim, he listed the depositions of nine unavailable witnesses and proposed introducing selected portions of the depositions previously taken in the federal class action.
According to the court, California Evidence Code section 1291 (a)(2) “permits the use of prior testimony in a proceeding only if the party seeking to exclude the testimony had ‘the right and opportunity to cross-examine the declarant with an interest and motive similar to that which’ the same party will have ‘at the [present] hearing.’”[ii] Pursuant to the hearsay exception in section 1291(a)(2), defendant moved to exclude the proposed deposition testimony. The trial court ruled the testimony was not subject to an exception and therefore was inadmissible hearsay.
Thereafter, plaintiff filed a writ relief from the evidentiary ruling in the Court of Appeals. The Court of Appeals concluded discovery deposition testimony in an earlier action was admissible under the hearsay exception in section 1291(a)(2) and held a litigant in defendant’s position has an interest and motive to examine its own witnesses during their depositions, similar to that which it would have during trial in a later related case. Further, the court suggested defendant bore the burden to show that it lacked a similar interest and motive. However, the California Supreme Court granted a petition for review and, finding the Court of Appeal’s reasoning unpersuasive, overturned the decision.
The California Supreme Court concluded that section 1291(a)(2) creates a general rule against admission of testimony from a prior civil discovery deposition. Therefore, the party seeking to introduce the deposition testimony at a later action cannot satisfy the burden of establishing that conditions for admissibility exist by simply demonstrating that the issues in the two matters are similar.
The court noted that, for strategic reasons, counsel generally do not cross-examine their own witness at a deposition, and a party at a deposition typically does not have the same interest and motive to cross-examine the witness. When ruling on the admissibility of such prior testimony, the trial court should determine: (1) “whether the parties intended, at the outset, that the deposition would serve as trial testimony” and (2) “whether the parties subsequently reached an agreement concerning the use of the deposition at trial in that case.”[iii] In these circumstances, the trial court should consider if, by agreeing to the use of a deposition in future related cases, a party implies that it had the opportunity to examine the witness with the required interest and motive-an interest and motive like that which it would have at trial in the present case.
In all other circumstances, the court should assess “practical considerations” for determining if the opposing party’s interest and motive to cross-examine at the deposition were similar to the type which would be anticipated at the subsequent hearing in which the testimony is sought to be admitted: (1) “the timing of the deposition within the context of the litigation and exceptional circumstances creating an incentive for cross-examination;” (2) “the relationship of the deponent and the opposing party;” (3) “the anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context;” (4) “conduct at, and surrounding, the deposition, and the degree of any examination conducted by the opposing party;” (5) “the particular designated testimony;” (6) “the similarity of position.”[iv]
In its ruling, the Supreme Court recognizes the circumstances surrounding a civil discovery deposition usually do not create an interest and motive for cross-examination by the opposing party like that existing at trial. As noted by the court, the hearsay exception in Evidence Code, section 1291(a)(2) creates a general rule against admission of testimony from a prior civil discovery deposition. The party urging the admission of deposition testimony bears the burden of rebutting the general rule against admission of prior deposition testimony by establishing exceptional circumstances which justify the admissibility of the designated testimony. Absent an intention or agreement among the parties concerning the use of deposition testimony, the proponent of the admission must demonstrate that the opposing party had a similar interest and motive to cross-examine the witness during the deposition as it would at the trial in which the deposition testimony is to be admitted.
Adriana M. Rivero is an Associate in Tyson & Mendes’ San Diego office. Her practice focuses on cases involving construction defect, property, and general liability. Ms. Rivero has experience representing individuals and various types of businesses and has successfully resolved multiple high-value complex claims.
[i] Berroteran v. Superior Court of Los Angeles, (2022) 12 Cal. 5th 867, 505 P.3d 601.
[ii] Berroteran v. Superior Court (2022) 12 Cal.5th 867, 890 [290 Cal.Rptr.3d 805, 821, 505 P.3d 601, 615].
[iii] Id. at 622.
[iv] Id. at 623-24.