On March 7, 2022, the Supreme Court of California published a unanimous decision regarding the hearsay exception discussed in Evidence Code section 1291, subdivision (a)(2) (“section 1291(a)(2)”) concerning testimony taken in an earlier proceeding and offered against a party to that former proceeding.
In Berroteran v. Superior Court (S229522, March 7, 2022), plaintiff sought to introduce 10 videotaped deposition testimonies in his case against defendant motor vehicle company. The dispute stemmed from a diesel engine used in several of defendant’s vehicles in the mid-2000’s. While the dispute was subject to a federal class action, plaintiff and several others opted out of the class to pursue their own cases against defendant.
The class action eventually settled, but many of the independent civil actions moved forward. Before his trial, plaintiff proposed to introduce 10 separate deposition testimonies of witnesses that had been deposed in other out of state matters, pertaining to the same diesel engine at issue in his case. Plaintiff argued that this testimony was subject to the section 1291(a)(2) exception to the hearsay rule, as defendant was a party in those depositions, and had the opportunity to either defend those depositions or ask their own questions. Defendant objected based on the interpretation of the rule in Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, which essentially concluded that the exception is inapplicable to testimony arising from a discovery deposition. The trial court agreed and barred the testimony.
The Court of Appeal directed the trial court to issue a new order reversing their prior decision. In the appellate court’s interpretation of the exception, defendant had an “interest and motive” to disprove the allegations of misconduct concerning the diesel engine. This interpretation put the burden on defendant to show that the testimony being introduced “lacked a similar interest and motive” as required by section 1291(a)(2).
The Supreme Court disagreed. While the Court of Appeal put the burden on the party opposing the introduction of the testimony to prove that it did not fall within the exception, the Supreme Court placed the burden on the party seeking to introduce the testimony. When section 1291 was enacted by the legislature in 1965, they issued unusually specific official commentary. The legislature laid out specific instances in which testimony given during a discovery deposition can be used in subsequent trials. The Supreme Court discussed the commentary in detail, and evaluated specific instances in which a deposition taken in the discovery phase of litigation may be admissible in a separate trial.
The Court gave clear instructions to trial courts to determine whether or not to allow testimony under the section 1291(a)(2) hearsay exception. The evidence code states that the party against whom the testimony is being offered must have had the “right and opportunity to cross-examine the declarant with an interest and motive similar to that which” they would have at the present trial. In making that determination, the trial court should examine the following points:
- Did the parties intend at the outset, that the deposition would serve as trial testimony?
- Had the parties in that case reached an agreement concerning use of the deposition at trial?
The trial court may also consider a number of “practical factors,” including the timing of the deposition, the relationship of the deponent and the opposing party, the availability of the deponent at trial, and the particular designated testimony, among other considerations.
In summary, a party may potentially introduce deposition testimony taken in prior cases against the same defendant, assuming it falls within the parameters discussed by the Supreme Court here.
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