The opinion
Filed 10/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RAUL BERROTERAN II, B296639
Petitioner, (Los Angeles County
Super. Ct. No. BC542525)
v.
OPINION AND ORDER
THE SUPERIOR COURT OF GRANTING PETITION
LOS ANGELES COUNTY, FOR WRIT OF MANDATE
Respondent;
FORD MOTOR COMPANY,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
Gregory Keosian, Judge. Petition granted.
Knight Law Group, Steve B. Mikhov, Lauren A. Ungs;
The Altman Law Group, Bryan C. Altman, Christopher J. Urner;
Greines, Martin, Stein & Richland, Edward L. Xanders and
Cynthia E. Tobisman for Petitioner.
Horvitz & Levy, Frederic D. Cohen, Lisa Perrochet, Allison
W. Meredith; Sanders Roberts, Justin H. Sanders, Darth K.
Vaughn, and Sabrina C. Narain for Real Party in Interest.
This case puts us in the unenviable position of disagreeing
with our sister court as to the admissibility under Evidence Code
section 1291, subdivision (a)(2)1 of former testimony.
Here, the challenged former testimony is from nine
unavailable witnesses, who previously were deposed in other
state and federal litigation. The parties dispute whether real
party in interest, Ford Motor Company (Ford), “had the right and
opportunity to cross-examine the declarant with an interest and
motive similar to that which [it] has at the hearing.” (§ 1291,
subd. (a)(2), italics added.) It is undisputed that petitioner
Raul Berroteran II otherwise satisfied the statutory prerequisites
for admission of the former testimony under section 1291.
We conclude Ford had the right and opportunity to
cross-examine its employees and former employees with a similar
motive and interest as it would have in the instant case. Each
case, including the present one, concerns Ford’s model 6.0-liter
diesel engine, the engine’s alleged deficiencies, Ford’s alleged
knowledge of those deficiencies, and Ford’s strategy regarding
repairing the engines. While a party’s motive and interest to
cross-examine may potentially differ when the prior questioning
occurs in a pre-trial deposition, Ford failed to demonstrate any
such different motive or interest here.
In reaching this conclusion, we disagree with Wahlgren v.
Coleco Industries, Inc. (1984) 151 Cal.App.3d 543 (Wahlgren) to
the extent it espouses a blanket proposition that a party has a
different motive in examining a witness at a deposition than at
trial. Wahlgren assumed that deposition testimony is limited to
discovery and has a “limited purpose and utility.” (Id. at p. 546.)
1Undesignated statutory citations to section 1291 refer to
Evidence Code section 1291.
2
These assumptions, however, are unsupported by legal authority,
inconsistent with modern trials and the omnipresence of
videotaped depositions during trial, and contrary to persuasive
federal law interpreting an analogous hearsay exception.
We grant Berroteran’s petition for writ of mandate and
direct the trial court to enter a new order denying Ford’s motion
in limine excluding the videotaped deposition testimony of nine of
Ford’s employees and former employees. We also direct the
trial court to reconsider the admissibility of documentary
evidence that the trial court may have excluded because it found
the depositions inadmissible.
BACKGROUND
This mandate proceeding challenges the trial court’s grant
of Ford’s motion in limine to exclude the deposition testimony
of the following Ford employees and former employees:
Frank Ligon, Scott Eeley, John Koszewnik, Mike Frommann,
Mark Freeland, Scott Clark, Eric Gillanders, Eric Kalis, and
Robert (also referred to as Bob) Fascetti (motion in limine no. 30).
Clark, Gillanders, and Kalis testified as Ford’s persons most
knowledgeable.
1. Operative Complaint in the Current Litigation
Berroteran’s initial complaint is not included in our record.
On May 22, 2014, Berroteran filed the operative pleading, the
first amended complaint, alleging causes of action for multiple
counts of fraud, negligent misrepresentation, violation of the
Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), and
violation of the Song-Beverly Consumer Warranty Act (id., § 1790
et seq.).
3
Berroteran alleged that on March 25, 2006, he purchased a
new model Ford F-250 truck. The truck had a defective 6.0-liter
diesel engine supplied by Navistar International Transportation
Corporation (Navistar). When he purchased his Ford truck,
Berroteran relied on Ford’s representations that the engine was
reliable and offered superior power. Prior to purchasing the
vehicle, Berroteran read materials prepared by Ford stating that
the engine was “high-quality” and “free from inherent defects,”
and was “ ‘best-in-class: horsepower, gas torque, unsurpassed
diesel horsepower, best conventional towing, and best 5th wheel
towing.’ ” Further, a salesperson assured Berroteran the engine
was Ford’s best.
Berroteran also alleged that while driving his truck, he
experienced numerous breakdowns, “a blown turbo,” and
problems while towing. According to Berroteran, Ford’s attempts
at repairs did not remedy the problems despite Ford’s
representations that it had fixed the engine. Berroteran further
alleged he was unable to use the truck for the purposes for which
he purchased it.
In the operative complaint, Berroteran described Ford’s
purported deceptive repair history regarding his and other
consumers’ 6.0-liter Navistar diesel engines: “Ford: (a) rather
than identifying and eliminating the root cause of these defects,
produced and sold the vehicle to Plaintiff[ ] and other consumers,
knowing it contained a defective engine; (b) adopted through its
dealers a ‘Band-Aid’ strategy of offering minor, limited repair
measures to customers who sought to have the defects remedied,
a strategy that reduced Ford’s warranty expenditures but did not
resolve the underlying defects and, in fact, helped to conceal
the defects until the applicable warranties expired; and (c)
4
intentionally and fraudulently concealed from Plaintiff . . . these
inherent defects prior to the sale or any time thereafter. . . .” In
Berroteran’s words: “At all relevant times, Ford was aware of its
inability to repair the defects in the 6.0-liter Navistar diesel
engine.”
2. Other Litigation Against Ford Related to the
6.0-Liter Diesel Engine
Like the current case, the prior litigations in which
plaintiffs deposed Ford’s employees and former employees
involved allegations that Ford’s 6.0-liter diesel engine was
defective. We summarize below those prior litigations and the
videotaped depositions that are at issue in the mandate
proceeding before us.
a. MDL No. 2223 In re: Navistar 6.0L Diesel
Engine Products Liability Litigation
Federal Multidistrict Litigation2
Berroteran was a putative class member of the federal
lawsuit Burns v. Navistar Inc. and Ford Motor Company filed in
the Southern District of California. The case merged into a
multidistrict class action against Ford related to the 6.0-liter
diesel engine.
Ford accurately characterizes the operative complaint in
the multidistrict litigation as alleging “there were defects in the
6.0-liter diesel engine that Ford installed in a range of pickup
trucks, sports utility vehicles, vans, and ambulances between
2003 and 2007.” Ford accurately states that like in the current
2 In re: Navistar 6.0L Diesel Engine Products Liability
Litigation (In re: Navistar) [MDL No. 2223].
5
proceeding, the multidistrict litigation “deal[t] generally with
alleged 6.0-liter engine problems.” The operative complaint in
the multidistrict litigation included a subclass of persons who
purchased or leased vehicles in the state of California. That
subclass alleged violations of California’s Consumer Legal
Remedies Act (Civ. Code, § 1750 et seq.) and California’s Unfair
Competition Law (Bus. & Prof. Code, § 17200).
The 113-page operative complaint included the following
allegations.3 Ford marketed and sold vehicles equipped with
Ford’s 6.0-liter diesel engine. The 6.0-liter diesel engine was
defectively designed and manufactured. “Ford knew from the
outset that there were severe and pervasive design,
manufacturing, and quality issues plaguing the Ford 6.0L
Engines. Yet, despite this knowledge, Ford never disclosed any of
these issues to consumers.” Ford failed to authorize necessary
major engine repairs during the warranty period, instead
authorizing only inadequate repairs. Plaintiffs sought damages
related to the cost to repair or replace the 6.0-liter diesel engine,
and to the diminution in value as a result of the alleged defective
engine.
The multidistrict litigation ultimately settled after Ford
stipulated to class certification and agreed to the settlement.
Berroteran opted out of the class action settlement. The
deposition testimony Berroteran seeks to introduce was admitted
3 We grant Berroteran’s request for judicial notice of Ford’s
answer to the operative complaint in the multidistrict litigation.
The answer is relevant because it describes allegations in the
federal complaint that were redacted from that complaint. The
answer, filed in federal court, is subject to judicial notice.
(Evid. Code, § 452, subd. (d).)
6
in four lawsuits by other putative plaintiffs who also had opted
out of the settlement in the multidistrict litigation.
In the context of the multidistrict litigation, the following
Ford employees and former employees were deposed: Frank
Ligon, Scott Eeley, John Koszewnik, Mike Frommann, and
Mark Freeland. Ligon, Freeland, and Koszewnik had retired
from Ford before their depositions. Ford’s counsel represented
each deponent during the depositions.
At the time of his videotaped deposition, Eeley was
employed at Ford as a supervisor for computer-aided engineering.
In his deposition, Eeley testified regarding the 6.0-liter diesel
engine, as well as Ford’s position with respect to warranty issues
involving the engine.
In a videotaped deposition, Koszewnik testified that he left
his employment with Ford in 2006, after 29 years. Koszewnik
had many positions at Ford and retired as a chief engineer for
three gasoline engines. The deposition concerned the “6.0-liter
engine that Ford made.” In a videotaped deposition, Frommann
testified that in 2006, he worked at Ford’s customer service
division as a warranty program manager. Plaintiffs’ attorneys
questioned Frommann about his knowledge of defects in Ford’s
6.0-liter diesel engine.
At the time of his videotaped deposition, Ligon had retired
from Ford as the director of service engineering operations. In
preparation for his deposition, Ligon reviewed e-mails about the
6.0-liter diesel engine and met with Ford’s counsel. Ligon
testified about the 6.0-liter diesel engine and testified about
e-mails related to the engine. Freeland also had retired before
his videotaped deposition. Freeland had several positions at
Ford, and prior to his retirement, worked in “engine research.”
7
In his deposition, Freeland testified he understood his deposition
concerned “the work [he] did in conjunction with [a] . . . failure
analysis on injectors on the 6.0 diesel engine.”
b. Brown, et al. v. Ford Motor Company
(Superior Court of California; County of Butte)4
The operative complaint in Brown named Ford as a
defendant and asserted the same causes of action as alleged in
the current case. Brown arose out of the plaintiffs’ purchase of a
Ford truck with a 6.0-liter diesel engine supplied by Navistar. As
in this case, the plaintiffs alleged that the 6.0-liter engine was
defective. Further, as in this case, the plaintiffs described Ford’s
repair strategy for the 6.0-liter diesel engine: “Ford: (a) rather
than identifying and eliminating the root cause of these defects,
produced and sold the vehicle to Plaintiffs and other consumers,
knowing it contained a defective engine; (b) adopted through its
dealers a ‘Band-Aid’ strategy of offering minor, limited repair
measures to customers who sought to have the defects remedied,
a strategy that reduced Ford’s warranty expenditures but did not
resolve the underlying defects and, in fact, helped to conceal the
defects until the applicable warranties expired; and (c)
intentionally and fraudulently concealed from Plaintiffs . . . these
inherent defects prior to the sale or any time thereafter. . . .”
Eric Kalis’s videotaped deposition was taken in the Brown
litigation. At that deposition, Kalis testified as Ford’s person
most knowledgeable on the repair rates for the 6.0-liter diesel
engine and Ford’s analysis of the root causes of the engine’s
problems. Kalis also testified as Ford’s custodian of records.
4Brown, et al. v. Ford Motor Company (Super. Ct. Butte
County, No. 160060).
8
Kalis was an employee of Ford at the time of his deposition in
Ford’s automotive safety office’s design analysis group. Kalis
confirmed that numerous documents were true and correct copies
of documents created in the ordinary course of business. Counsel
for Ford stipulated that for purposes of the Brown litigation, the
videotaped deposition could be used “for any purpose
whatsoever . . . .”5
c. Preston, et al. v. Ford Motor Company
(Superior Court of California, County of
El Dorado)6
The operative complaint in Preston alleges the same causes
of action against Ford as in the current litigation. This lawsuit
also involved allegations of a defective 6.0-liter diesel engine
supplied by Navistar. As in Brown and in the current litigation,
the Prestons alleged: “Ford: (a) rather than identifying and
eliminating the root cause of these defects, produced and sold the
vehicle to Plaintiffs and other consumers, knowing it contained a
defective engine; (b) adopted through its dealers a Band-Aid
strategy of offering minor, limited repair measures to customers
who sought to have the defects remedied, a strategy that reduced
Ford’s warranty expenditures but did not resolve the underlying
defects and, in fact, helped to conceal the defects until the
5 Kalis’s deposition also was taken in Dokken v. Ford
Motor Company, a case filed in Superior Court in Sutter County.
It is undisputed that Dokken involves the same claims as the
current litigation. (Dokken v. Ford Motor Co. (Super. Ct. Sutter
County, No. CVCS13-0001994).)
6Preston, et al. v. Ford Motor Company (Super. Ct.
El Dorado County, No. SC20130071).
9
applicable warranties expired; and (c) intentionally and
fraudulently concealed from Plaintiffs . . . these inherent defects
prior to the sale or any time thereafter. . . .”
In connection with Preston, Eric Gillanders testified in a
videotaped deposition as Ford’s designated person most
knowledgeable regarding Ford’s policies and procedures for the
reduction of warranty claim buybacks under California law from
2003 onward. Gillanders was Ford’s global business process
manager and former dealer operations manager. Gillanders also
testified as a custodian of records. At the end of the deposition,
one of Ford’s attorney’s questioned Gillanders. Among other
things, Gillanders testified that his “testimony” regarding the
categories on which he was the person most qualified would “be
the same in any Ford lemon law case pending in California.”
Scott Clark testified in a videotaped deposition regarding
Ford’s policies and procedures for warranty claim buybacks.
Clark testified as Ford’s designated person most knowledgeable
regarding Ford’s policies, standards and training from 2003
onward regarding California Lemon Law claims and California
consumer complaints to the Better Business Bureau. Counsel for
Ford requested that Ford produce Clark only once for all matters
pending in the state of California concerning the 6.0-liter engine
for which plaintiff’s counsel was counsel of record. Clark had
“oversight over the dispute resolution program, the consumer
affairs team, and the California Lemon Law team,” as well as a
warranty assistance team. He understood that his deposition
concerned matters related to California’s lemon law and Ford’s
procedure in handling lemon law claims. At the end of the
deposition, Ford’s counsel asked Clark questions.
10
d. Williams A. Ambulance Inc., et al. v. Ford Motor
Company (Federal District Court for the
Eastern District of Texas)7
Bob Fascetti’s videotaped deposition was taken in federal
litigation in Texas. The operative complaint is not included in
the record, but it is not disputed that the litigation involved
Ford’s 6.0-liter diesel engine. The parties dispute whether the
complaint identified a specific cause of action for fraud.
In July 2008, at the time of his videotaped deposition,
Fascetti was the director of gas and diesel engineering for Ford.
Fascetti provided an affidavit on Ford’s behalf in Ford’s lawsuit
against Navistar, the supplier of the 6.0-liter diesel engine.
Fascetti testified in his deposition about the 6.0-liter diesel
engine. He acknowledged that the repair rates were “very high.”
It had the highest repair rate “ever experienced by Ford for an
engine in widespread production.”
3. In the Current Litigation, Ford Files Motion in
Limine Number 30 to Exclude Prior Testimony of
Ford’s Witnesses From the Other Litigation
In the trial court, Ford sought to exclude the videotaped
depositions of Scott Clark, Bob Fascetti, Scott Eeley, Mark
Freeland, Eric Gillanders, Mike Frommann, Eric Kalis, Frank
Ligon, and John Koszewnik. Ford argued that the deposition
testimony constituted hearsay, and no exception to the hearsay
rule applied to allow admission of the deposition testimony.
7
Williams A. Ambulance, Inc., et al. v. Ford Motor
Company (E.D. Tx., No. 1:06-CV-00776).
11
With respect to section 1291, Ford argued: “Ford clearly
did not have a similar interest and motive to examine its
employees at those depositions as it will have at trial in this case.
Indeed, it is not established that Ford’s counsel undertook any
re-direct examination at the depositions. As a result, the
deposition testimony of the Ford employees in the former cases is
not admissible under [section] 1291[, subdivision] (a)(2), and the
jury should not hear this testimony.” Beyond these conclusory
assertions, Ford offered no analysis, explanation, or support for
its statements. Instead, Ford relied on Wahlgren in support of its
motion in limine.
4. Opposition to Motion in Limine No. 30
Berroteran opposed the motion in limine no. 30.
Berroteran argued that Ford “does not even describe the
witnesses or testimony it seeks to exclude. . . .” (Underlining
omitted.) According to Berroteran: “The deposition
testimony . . . has been admitted in four jury trials in the past
year, and has been submitted to countless Courts in connection
with summary judgment motions, pretrial motions, discovery
motions. . . .” “It is highly relevant, as it directly concerns the
subject matter of this case. Ford and its army of lawyers had
unlimited opportunities to prepare those ‘Ford company
witnesses’ in advance of their testimony, had every opportunity to
examine those witnesses during the depositions, and had the
same or similar motive as Ford has in this case.”
5. Motion in Limine No. 29 and Opposition
In its motion in limine no. 29, Ford sought to exclude
several of Berroteran’s trial exhibits that had been produced in
the multidistrict litigation. Ford argued among other things:
12
“Without any sponsoring witnesses or context from individuals
with personal knowledge of the events discussed in the
documents, these documents are mere props in Plaintiffs’
attorneys’ conspiracy theory spectacle.”
Berroteran opposed the motion, arguing among other
things: “In arguing that the documents are hearsay, Ford ignores
the fact that its own custodian of records Eric Kalis testified that
they were Ford business records for purposes of California’s
hearsay exception. . . .”
6. Hearing on the Motions in Limine
At the hearing on Ford’s motions in limine, counsel for Ford
relied principally on Wahlgren to argue that Ford did not have a
motive to cross-examine its own witnesses: “We need—not only
an opportunity but a motive to cross-examine. The law—with the
leading case being Wahlgren—is that you don’t have that in
discovery . . . nor would that make sense in a class action where
the issues were limited to class issues over a span of model years
in an uncertified class. It makes no sense.” “How could
we . . . possibly [have] had a motive to cross-examine in a class
action involving different model years where the discovery was
limited to class issues and not merits issues?” Counsel
(incorrectly) argued that the deposition testimony was limited to
certification issues such as commonality and typicality, “not
merits issues.”
Counsel for Berroteran’s counter argument focused on the
identity of the issues regarding the 6.0-liter engine in the current
and former litigations and Ford’s correlating motive to defend its
witnesses because Ford knew the videotaped depositions could
be used in other cases involving the same engine: “It is no
surprise to Ford that the plaintiffs in the class action intended to
13
use these depositions in trials. First of all, that’s the purpose of
the discovery. They are not just exploring the claims. . . . So for
1291, Ford had a motive, the same motive that they have here.
They’re defending themselves in consumer actions revolving
around the 6.0[-]liter engine. They had the opportunity. They
had attorneys present.”
The depositions convey “what Ford knew and when they
knew it about problems with the 6.0[-]liter engine. So it is the
same allegation. Here we’re saying Ford had knowledge of these
problems prior to the date of sale of this truck. That’s what they
alleged in the class action.” Berroteran’s counsel argued that
Ford had the “same motivation . . . They want truthful testimony
from their employees. [¶] If the employee said, we had the
highest warranty rates and that wasn’t true, certainly Ford
would have a motivation to correct that testimony on the record,
just like they would here.”8
8 Berroteran’s counsel also argued that the depositions
taken in the multidistrict litigation were admissible under
Code of Civil Procedure section 2025.620, subdivision (g), which
provides in pertinent part: “When an action has been brought in
any court of the United States or of any state, and another action
involving the same subject matter is subsequently brought
between the same parties . . . , all depositions lawfully taken
and duly filed in the initial action may be used in the subsequent
action as if originally taken in that subsequent action.”
(Code Civ. Proc., § 2025.620, subd. (g).)
Berroteran advances the same argument pursuant to
Code of Civil Procedure, section 2025.620 on appeal and also
argues that the testimony from the persons most qualified is
admissible as a party admission under Evidence Code
section 1222. Because we conclude that the deposition testimony
14
7. Trial Court Findings
The trial court ruled in Ford’s favor. The court’s brief
explanation was as follows: “My ruling would be to grant the
motion in limine [no. 30] and exclude those deposition transcripts
for the reasons argued. In terms of whether or not they are
actual parties—and specifically on just the broadness of the other
cases and lawsuits and specifics of our particular case and
whether or not those cases address the specifics of our particular
case—I just don’t think they [do]. . . .” “[T]hey involve multiple
issues that are not really at issue here.” The court later stated, “I
guess it comes down to whether or not the testimony—and this is
trial testimony or deposition testimony?”
The trial court granted motion in limine no. 30, “excluding
the videotape testimony.” The court also granted motion in
limine no. 29, excluding numerous exhibits referenced in the
deposition testimony. The court stated that without the
deposition testimony, no one would testify that the documents
constituted Ford’s business records.9
This court issued an alternative writ requiring the
trial court either to vacate its ruling granting motion in limine
no. 30 or in the alternative, to show cause why a peremptory writ
of mandate ordering the trial court to vacate its ruling should not
issue. The trial court indicated that it would not vacate its
ruling.
was admissible under section 1291, we need not address
Berroteran’s additional arguments.
9 The trial court additionally stated that the exhibits
constituted hearsay and could not be characterized as
admissions.
15
STANDARD OF REVIEW
The Evidence Code defines hearsay as “evidence of a
statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible
unless it falls within an exception, such as the one provided in
section 1291. (Evid. Code, § 1200, subd. (b).)
“[A] trial court has broad discretion to determine whether a
party has established the foundational requirements for a
hearsay exception [citation] and ‘[a] ruling on the admissibility of
evidence implies whatever finding of fact is prerequisite
thereto . . . .’ [Citation.] We review the trial court’s conclusions
regarding foundational facts for substantial evidence. [Citation.]
We review the trial court’s ultimate ruling for an abuse of
discretion [citation] . . . .” (People v. DeHoyos (2013) 57 Cal.4th
79, 132.)
DISCUSSION
We begin with legal background necessary to assess the
parties’ arguments. We then explain why the trial court abused
its discretion in excluding former deposition testimony of Ford’s
witnesses taken in federal and state litigation regarding Ford’s
6.0-liter diesel engine, the same engine underlying Berroteran’s
lawsuit.
As set forth below, although Wahlgren arguably supported
Ford’s argument and the trial court’s conclusion, we disagree
with Wahlgren’s categorical bar to admitting deposition
testimony under section 1291 based on the unexamined premise
that a party’s motive to examine its witnesses at deposition
always differs from its motive to do so at trial. Our conclusion
16
that no such categorical bar exists is consistent with federal
authority interpreting a similar provision in the Federal Rules of
Evidence.
A. Both section 1291 and rule 804 of the Federal Rules
of Evidence include a hearsay exception for former
testimony.
California and federal exceptions to the hearsay rule for
former testimony are similar. Section 1291, subdivision (a)(2)
provides: “Evidence of former testimony is not made
inadmissible by the hearsay rule if the declarant is unavailable
as a witness and: [¶] (2) The party against whom the former
testimony is offered was a party to the action or proceeding in
which the testimony was given and had the right and opportunity
to cross-examine the declarant with an interest and motive similar
to that which he has at the hearing.” (§ 1291, subd. (a)(2),
italics added.)
Under federal law, testimony that “was given as a witness
at a trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one; and [¶] is now offered
against a party who had . . . an opportunity and similar motive
to develop it by direct, cross, or redirect examination” is
admissible as an exception to the hearsay rule. (Fed. Rules Evid.,
rule 804(b)(1), 28 U.S.C. (rule 804), italics added.) Rule 804
balances the risk of introducing out-of-court testimony against
the risk of excluding critical evidence. (Lloyd v. American Export
Lines, Inc. (1978) 580 F.2d 1179, 1185.)
Whereas section 1291 requires a “motive similar,” rule 804
requires a “similar motive” to examine the witness as a
prerequisite to admission of former testimony. Because rule 804
contains a similarly worded exception to the hearsay rule, federal
17
authority is instructive in interpreting and applying section 1291.
(See In re Joyner (1989) 48 Cal.3d 487, 492; see also People ex rel.
Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 563
[“if the ‘objectives and relevant wording’ of a federal statute are
similar to a state law, California courts ‘often look to federal
decisions’ for assistance in interpreting this state’s legislation”].)
As our high court has explained: “In resolving questions of
statutory construction, the decisions of other jurisdictions
interpreting similarly worded statutes, although not controlling,
can provide insight.” (In re Joyner, at p. 492.)
Ford relies on Smith v. Bayer Corp. (2011) 564 U.S. 299
for the proposition that even if federal and state “ ‘procedural’ ”
statutes are identically worded, a state and a federal court
can interpret their respective statutes differently. (Id. at
pp. 309–310.) The issue before the United States Supreme Court
in Smith was whether the relitigation exception to the federal
Anti-Injunction Act precluded a federal court’s enjoining a
West Virginia state court from considering a class certification
motion after a federal court had denied class certification
involving a different class representative. (Id. at p. 302.) It was
in the course of deciding this issue that the United States
Supreme Court observed West Virginia’s high court had stated its
“independence” from the federal court’s interpretation of the
Federal Rules of Civil Procedure, rule 23(b)(3), 28 U.S.C.A.
governing class certification. We fail to discern the relevance of
Smith to whether section 1291, subdivision (a)(2) and rule 804
should be read in pari materia.
18
B. Federal cases interpreting rule 804 require factual
analysis comparing the motive in the former case to
that of the current case. Similar, not identical
motive, is required.
Federal cases considering rule 804’s critical language—
“similar motive”—require an analysis comparing the existing
case with the one involving the former testimony. Existence of a
similar motive depends on the similarity of the underlying issues
and the context of the questioning. (U.S. v. Salerno (1992)
505 U.S. 317, 326 (conc. opn. of Blackmun, J.).) Whether the
“questioner had a similar motive at both proceedings to show
that the fact had been established (or disproved)” is relevant to
assessing admissibility under rule 804. (U.S. v. DiNapoli
(2d Cir. 1993) 8 F.3d 909, 912.)
Under rule 804, former deposition testimony is not
categorically excluded based on an assumption that a motive to
examine a witness differs during deposition and at trial.
“[P]retrial depositions are not only intended as a means of
discovery, but also serve to preserve relevant testimony that
might otherwise be unavailable for trial.” (Gill v. Westinghouse
Elec. Corp. (11th Cir. 1983) 714 F.2d 1105, 1107.) The relevant
issue is not whether the party had a “tactical or strategic
incentive” to question its witnesses. Instead the relevant
question is whether the party had “an opportunity and similar
motive to develop the testimony.” (U.S. v. Mann (5th Cir. 1998)
161 F.3d 840, 861; DeLuryea v. Winthrop Laboratories, Etc. (8th
Cir. 1983) 697 F.2d 222, 227 (DeLuryea) [“Opportunity and
motivation to cross-examine are the important factors, not the
actual extent of cross-examination]; Murray v. Toyota Motor
Distributors, Inc. (9th Cir. 1982) 664 F.2d 1377, 1379.) “[A]s a
19
general rule, a party’s decision to limit cross-examination in a
discovery deposition is a strategic choice and does not preclude
his adversary’s use of the deposition at a subsequent proceeding.”
(Hendrix v. Raybestos-Manhattan, Inc. (11th Cir. 1985) 776 F.2d
1492, 1506 (Hendrix); see also Pearl v. Keystone Consol.
Industries, Inc. (1989) 884 F.2d 1047, 1052 [party who makes the
decision not to cross-examine witness in deposition cannot
complain that the failure to cross-examine renders the deposition
inadmissible].)
Hendrix involved allegations from consolidated asbestos
cases that the defendants failed to warn plaintiffs to avoid
inhaling asbestos dust in the handling of insulation products.
(Hendrix, supra, 776 F.2d at p. 1492.) On appeal, defendants
argued that it was error to admit portions of Dr. Kenneth Smith’s
deposition testimony concerning his knowledge about the hazards
of asbestos dust and his efforts to warn the officers of one of the
defendants about those hazards. (Id. at p. 1504.) Smith,
the former medical director of one defendant, had testified in
deposition in a different case involving asbestos related injuries.
(Ibid.)
Applying rule 804, the appellate court rejected the
argument that the defendant, who previously employed Smith,
did not have the same motive to examine its witness in a
deposition as at trial. (Hendrix, supra, 776 F.2d at p. 1506.) It
explained that pretrial depositions not only serve as discovery,
but also preserve testimony that might be unavailable at trial.
(Ibid.) Further, the plaintiffs in both cases were asbestosis
victims seeking compensation for exposure to asbestos dust.
(Ibid.)
20
DeLuryea applied rule 804 to hold that the former
testimony in a deposition in a worker’s compensation action was
admissible in a products liability trial involving a pain killer that
allegedly caused serious tissue damage at the injection site. The
former testimony there was of plaintiff’s psychiatrist, who
testified in plaintiff’s workers’ compensation case that plaintiff
was abusing the painkiller, and that he “took her off” the
painkiller but feared she would not be “able to stay away” from
the drug. (DeLuryea, supra, 697 F.2d at p. 226.) The appellate
court held that the deposition testimony was admissible because
the deponent’s testimony concerned matters relevant to both
actions, to wit, whether plaintiff’s “ ‘misconduct’ ” caused her
injuries, and that plaintiff had “a similar motive in the two
actions in disproving the allegations of misconduct.” (Ibid.)
It followed that the plaintiff “had a similar motive for testing
the credibility of the testimony on cross-examination.” (Id.
at pp. 226–227.)
C. Except for Wahlgren, California law is consistent
with federal law.
Section 1291 provides “ ‘no magic test to determine
similarity in interest and motive to cross-examine a declarant.
Factors to be considered are matters such as the similarity of the
party’s position in the two cases, the purpose sought to be
accomplished in the cross-examination, and whether under the
circumstances a thorough cross-examination of declarant by the
party would have been reasonably expected in the former
proceeding.’ ” (People v. Ogen (1985) 168 Cal.App.3d 611, 617
[analyzing the admissibility of preliminary hearing testimony
from a different proceeding]; People v. Samayoa (1997) 15 Cal.4th
795, 850 [comparing motive to cross-examine witness at the
21
preliminary hearing and during penalty phase of trial]; cf. People
v. Sanders (1995) 11 Cal.4th 475, 525 [the People lacked a similar
purpose in cross-examining witness at a suppression hearing as
opposed to at trial].)
A party’s “interest and motive at a second proceeding is not
dissimilar to his interest at a first proceeding within the meaning
of Evidence Code section 1291, subdivision (a)(2), simply because
events occurring after the first proceeding might have led counsel
to alter the nature and scope of cross-examination of the witness
in certain particulars. [Citation.] The ‘ “motives need not be
identical, only ‘similar.’ ” ’ ” (People v. Harris (2005) 37 Cal.4th
310, 333.) Where the party had the same motive to discredit
the witness and challenge the witness’s credibility, the
former testimony would be admissible under section 1291.
(People v. Harris, at p. 333.) Whether evidence is admissible
under section 1291, moreover, depends on whether the party
against whom the former testimony is offered had a motive and
opportunity for cross-examination, not whether counsel actually
cross-examined the witness. (People v. Williams (2008)
43 Cal.4th 584, 626–627.)
In contrast to these cases, Wahlgren appears categorically
to exclude deposition testimony from the section 1291 hearsay
exception. In Wahlgren, the plaintiff filed a personal injury
action against defendants. (Wahlgren, supra, 151 Cal.App.3d
at p. 545.) The plaintiff suffered an injury after diving from a
slide into a swimming pool. (Ibid.) Plaintiff was unsuccessful at
trial, and on appeal, argued that the trial court erred in
excluding former deposition testimony of one of defendant’s
officers. (Ibid.) The testimony concerned the policy of placing
labels on pools to alert users to the dangers of diving. (Ibid.)
22
Affirming the trial court’s decision to exclude the evidence,
in a sparse opinion, the appellate court held the evidence was
inadmissible under section 1291, subdivision (a)(2) because the
defendant did not have the opportunity to cross-examine the
declarant with the interest and motive similar to the current
case. (Wahlgren, supra, 151 Cal.App.3d at p. 546.) As relevant
here, Wahlgren states: “[I]t should be noted that a deposition
hearing normally functions as a discovery device. All respected
authorities, in fact, agree that given the hearing’s limited
purpose and utility, examination of one’s own client is to be
avoided. At best, such examination may clarify issues which
could later be clarified without prejudice. At worst, it may
unnecessarily reveal a weakness in a case or prematurely
disclose a defense.” (Id. at pp. 546–547.)
Wahlgren—a 1984 case—cites no support for its assertions
that a deposition functions only as a discovery device. That
assumption is at best outdated given the prevalence of videotaped
deposition testimony in modern trial practice. Wahlgren cites
no authority for the proposition that examination of one’s
“client is to be avoided.” (Wahlgren, supra, 151 Cal.App.3d at
pp. 546–547.) That blanket assumption appears inconsistent
with the reality of often overlapping lawsuits in different
jurisdictions and the prospect that an important witness could
retire or otherwise become unavailable. Wahlgren’s analysis
also conflicts with the plain language of section 1291,
subdivision (a)(2), which, on its face is unqualified: The statute
states that it applies to “[t]he former testimony” and is not
limited to former “trial testimony.” (§ 1291, subd. (a)(2).)10
10Ford relies on a comment regarding section 1291 from
the Assembly Committee on the Judiciary in the publisher’s
23
D. The trial court abused its discretion in granting
motion in limine no. 30.
In its motion in limine, Ford argued that it “clearly did not
have a similar interest and motive to examine its employees at
those depositions as it will have at trial in this case. Indeed,
it is not established that Ford’s counsel undertook any re-direct
examination at the depositions.” Ford offered no further
explanation why its motive to examine any specific employee or
former employee differed from its motive in the current case.
Ford offered no analysis of the causes of action in the prior
litigation generating the challenged depositions and did not
argue that those causes of action were different from the current
litigation. In essence, Ford’s argument was that a party never
has the same motivation to examine its own witnesses in a
deposition as it has at trial, an argument (as demonstrated
above) that is contrary to the weight of authority and modern
litigation practice.
editor’s note that where “the deposition was taken for discovery
purposes” and the party did not cross-examine its own witness to
“avoid a premature revelation of the weakness in the testimony of
the witness or in the adverse party’s case. . . . the party’s interest
and motive for cross-examination on the previous occasion would
have been substantially different from his present interest and
motive.” (Assem. Com. on Judiciary com., 29B pt. 5 West’s Ann.
Evid. Code (2015 ed.) foll. § 1291, pp. 86–87.) Ford, however, did
not proffer any evidence that there was any strategic reason for
not cross-examining its witnesses at their depositions here.
Absent such a record, we do not address whether this partial
legislative history would dictate a different outcome upon a
proper and different record.
24
As Berroteran argues, Ford made no showing that it lacked
a similar motive to examine its witnesses during their
depositions, and the record demonstrates just the opposite. Ford
had a similar motive to examine each of the nine deponents.11
The videotaped deposition testimony from the former federal and
state litigations was on the same issues Berroteran raises in his
current lawsuit—whether the 6.0-liter engine was defective,
Ford’s knowledge of the alleged defect, and Ford’s repair strategy.
The deponents’ testimony concerned matters relevant to the
former and current actions. Ford had a similar motive to
disprove the allegations of misconduct, and knowledge, all of
which centered around the 6.0-liter diesel engine.
Gillanders’ testimony exemplifies the similarity of the
issues in this litigation and the former litigation. During his
deposition, Gillanders testified that his testimony regarding the
categories on which he was the person most qualified would “be
the same in any Ford lemon law case pending in California.”
Because his testimony would be the same, Ford’s motive to cross-
examine him would be similar, if not the same.
Ford’s additional arguments are unpersuasive. For
example, Ford argues: “Ford had little or no motive in suits that
involved engines produced over a five-year period to question
witnesses about the engine that Berroteran purchased in 2006.”
Ford’s argument ignores Berroteran’s key allegation that:
“Without remedying the defects [identified in 2002], Ford
continued to equip subsequent model years of the[ ] F-250 truck,
including the 2006 model, with the 6.0-liter engine. Regardless of
11It is undisputed that “Ford had an unrestricted
opportunity at these depositions [of the nine witnesses] to
examine each witness.”
25
tweaks made to the 6.0-liter engine by Ford during subsequent
model years, these same defects to the engine persisted
throughout Ford’s production and sale of the trucks.” Even if the
multidistrict litigation spanned a greater time period, it included
2006, the year Berroteran purchased his vehicle, and included
Berroteran as a putative plaintiff.
Ford also argues that it had no incentive to question its
witnesses on “Berroteran’s vehicle, his vehicle purchasing
experience, or his vehicle repair experience—to question
witnesses about the particular problems Berroteran claimed to
have experienced with his 2006 truck.” Taken to its logical
conclusion, Ford’s argument appears to assume an additional
prerequisite to section 1291—the identity of the parties. Clearly,
that assumption is inconsistent with the language in section
1291.
Ford fails to demonstrate that it lacked a similar motive to
examine its witnesses in the former litigation. Each deponent
was represented by Ford’s counsel, and Ford had the same
interest to disprove allegations related to the 6.0-liter diesel
engine. (Compare N.N.V. v. American Assn. of Blood Banks
(1999) 75 Cal.App.4th 1358, 1396 [no similar interest where no
defendant present at deposition had an interest in establishing
the facts relevant to the current litigation].) Although each case
involved a different plaintiff or additional plaintiffs, the
gravamen of each lawsuit was the same or similar. The
undisputable fact that every owner will have a different purchase
and repair history does not negate Ford’s similar motive in
questioning its witnesses on the substantial overlapping
allegations, specifically regarding the 6.0-liter diesel engine. To
recap, section 1291 requires a similar, not an identical, motive.
26
In short, the record does not support the conclusion that
Ford did not have a similar motive to cross-examine its own
witnesses in the prior litigation. Even if the causes of action in
the current and prior cases are not identical, the crux of the
litigation is the same in each case. In the trial court, Ford
inaccurately characterized the depositions as involving only
discovery and only “class issues” such as “commonality, whether
there’s typicality.” As summarized above, in fact, the former
testimony concerned Ford’s 6.0-liter diesel engine, policies and
procedures for warranty claims, and the authentication of
documents from a custodian of records. It is undisputed that the
depositions have been admitted at trial in multiple cases, and
thus did not serve only discovery purposes. For all these reasons,
the trial court abused its discretion in granting Ford’s motion to
exclude the entire depositions of Ligon, Freeland, Frommann,
Eeley, Koszewnik, Clark, Fascetti, Gillanders, and Kalis.12
E. In light of our conclusion that the deposition
testimony is admissible, the trial court should
reconsider whether the documents are admissible.
It appears that the trial court may have excluded many of
Berroteran’s proposed trial exhibits based on its exclusion of the
deposition testimony (motion in limine no. 29). In light of this
court’s conclusion that the trial court erred in excluding the
entirety of the former testimony of Ford’s witnesses, it should
reconsider the admissibility of the documentary evidence it
excluded in response to Ford’s motion in limine no. 29.
12Our holding concerns the admissibility of the deposition
testimony under section 1291. We express no opinion concerning
whether the evidence is objectionable on other grounds.
27
DISPOSITION
The petition for writ of mandate is granted. The trial court
is directed to vacate its orders granting Ford’s motion in limine
no. 30 and issue a new order denying Ford’s motion to bar
Berroteran from presenting the deposition testimony of the nine
Ford witnesses—Ligon, Freeland, Frommann, Eeley, Koszewnik,
Clark, Fascetti, Gillanders, and Kalis. The trial court is directed
to vacate its order granting Ford’s motion in limine no. 29
concerning documentary evidence and to reconsider that order in
light of our ruling vacating the trial court’s order regarding
motion in limine no. 30. Berroteran is entitled to his costs in this
proceeding.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
CHANEY, Acting P. J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
28