Berroteran v. Superior Court is good news for corporate defendants in California
664719 (Case No. S259522), addresses a conflict in the Courts of Appeal with respect to the former testimony hearsay exception, articulated in California Evidence Code section 1291(a)(2).
The decision is good news for most corporate defendants in California – especially mass tort defendants – who routinely have to fight to keep unrelated corporate witness depositions out of trial.
The Court confirmed the general rule that prior deposition transcripts taken in other cases are not admissible at trial. While narrow exceptions and special circumstances may warrant the admissibility of such testimony, the party seeking to admit the evidence will have an uphill battle demonstrating a defendant had an opportunity, interest and motive to examine its own witness at deposition. The Court, relying largely on legislative intent, recognized the practical reality that, absent an agreement, a party may strategically choose not to examine its own witness at deposition.
About the case
Raul Berroteran II had been a putative member of a federal multidistrict consolidated class action suit against defendant Ford Motor Company, arising from a diesel engine used in some of Ford’s vehicles in the early and mid-2000s. The federal matter settled, and Berroteran opted out in order to pursue his own lawsuit.
Nine out-of-state Ford employees and former employees gave videotaped deposition testimony in the federal action, and in the subsequent, related California opt-out litigation. In Berroteran’s lawsuit in the Los Angeles Superior Court, he filed 10 designations of deposition testimony, listing depositions of the nine unavailable out-of-state witnesses and identifying the testimony that he proposed to introduce at trial. Each deposition pertained to Ford’s alleged knowledge of, and ability to, address “defects” in its engines, as well as Ford’s alleged concealment of those “defects.”
Shortly before Berroteran’s trial was set to commence, Ford moved to exclude the proffered deposition testimony pursuant to Evidence Code section 1291(a)(2). Section 1291(a)(2) exists as an exception to the hearsay rule, when the party against whom testimony is offered “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which” the objecting party would have in the present trial.”
Relying on the decision in Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, Ford argued that the hearsay exception is generally inapplicable to testimony arising from a discovery deposition. The trial court granted Ford’s motion, and Berroteran filed a writ of mandate in the Court of Appeal. The Court of Appeal granted Berroteran’s writ, directing the trial court to issue a new order denying Ford’s motion.
In so doing, the Court of Appeal interpreted section 1291(a)(2) as reflecting no general rule against introduction of prior discovery deposition testimony, but rather the opposite. According to the Court of Appeal, a litigant in Ford’s position has an interest and motive to examine its own witnesses during their depositions to “disprove” the plaintiffs’ allegations, similar to that which it would have during trial in a later related case – thereby putting the burden on Ford, versus the party seeking the admission in the first place. A petition for review was granted by the California Supreme Court.
The California Supreme Court’s holding
Though the parties resolved the case after oral argument, the Supreme Court exercised its discretion to decide the matter “in light of the important issues presented.” It reversed the ruling of the Court of Appeal, finding it inconsistent with (1) the established principle that the party proposing to introduce evidence under section 1291(a)(2)’s former testimony exception to the hearsay rule bears the burden of establishing the requirements for admission and (2) the legislative history and objectives behind the enactment of the statute.
The Court’s rationale
In support of its conclusion, the California Supreme Court offered several important observations.
First, the Court stated that “[t]he party urging admission of deposition testimony bears the burden of rebutting the general rule by submitting appropriate information justifying the admission of designated deposition testimony.” (Berroteran, supra, 2022 WL 664719 at *14.)
Second, the Court held that, “[a]bsent an agreement among the parties concerning use of the deposition, the burden to establish the conditions of the exception to the hearsay rule articulated by section 1291(a)(2) rests with the proponent of admission – here, Berroteran – and not with Ford, the opponent of admission.” (Berroteran, supra, 2022 WL 664719 at *17.)
Third, the Court offered the following analysis: “a party would be unlikely to have a motive or reason at a deposition of its own witness to disprove anything. As Ford and its supporting amici curiae observe, concluding otherwise would substantially expand and complicate deposition practice, forcing it to take on the character of a full-blown liability trial.” (Berroteran, supra, 2022 WL 664719, at *18.)
Practical guidance for trial courts in California
The Supreme Court offered a practical approach that trial courts should undertake in this setting. A trial court should conduct a “factually intensive inquiry,” as follows: (1) determine whether the parties intended, at the outset, that the deposition serve as trial testimony; and (2) determine whether the parties subsequently reached agreement concerning the use of the deposition at trial in that case, or in other cases. In all other circumstances—such as where it is not evident that the parties understood that a deposition was intended for purposes other than discovery – the court concluded that the resulting testimony is generally not made admissible by section 1291(a)(2). (Berroteran, supra, 2022 WL 664719, *19.)
In making this determination, the trial court should assess various “practical considerations,” such as (1) the timing of the deposition within the context of the litigation, and special 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. (Berroteran, supra, 2022 WL 664719, *20-21.)
Lastly, the Court instructed trial courts to make a record, either orally or “preferably in writing,” with respect to the trial court’s review and determination. (Berroteran, supra, 2022 WL 664719, *21.)
Trial courts are already responding
The effect of Berroteran is palpable. In light of this decision, a coordination court in Los Angeles has already issued an interim general order requiring a party to establish the above criteria before seeking to admit former testimony at trial. This will not only alleviate much of the tedious work that goes into drafting and responding to page-line designations but is likely to reduce the length of many trials in California.
Learn more about the implications of this ruling for your company by contacting any of the authors or your DLA Piper relationship attorney.