The opinion
IN THE SUPREME COURT OF
CALIFORNIA
RAUL BERROTERAN II,
Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
FORD MOTOR COMPANY,
Real Party in Interest.
S259522
Second Appellate District, Division One
B296639
Los Angeles County Superior Court
BC542525
March 7, 2022
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Corrigan, Liu, Kruger, Groban,
Jenkins, and Manella* concurred.
*
Presiding Justice of the Court of Appeal, Second Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
BERROTERAN v. SUPERIOR COURT
S259522
Opinion of the Court by Cantil-Sakauye, C. J.
We granted review to address a conflict in the Courts of
Appeal regarding an exception to the hearsay rule, articulated
in Evidence Code section 1291, subdivision (a)(2) (hereinafter
section 1291(a)(2)), concerning testimony taken in an earlier
proceeding and offered against a party to that former
proceeding.1 Petitioner and plaintiff below, Raul Berroteran II,
had been a putative member of a federal multidistrict
consolidated class action suit against real party in interest and
defendant below, Ford Motor Company (hereinafter Ford),
arising from the diesel engine used in some of Ford’s vehicles in
the early and mid-2000s. The federal matter settled, and
Berroteran, like many others, opted out in order to pursue his
own suit.
In the meantime, nine out-of-state Ford employees or
former employees had given videotaped deposition testimony in
the federal action or in subsequent related California opt-out
litigation. In connection with Berroteran’s ensuing suit in the
Los Angeles County Superior Court, he filed 10 designations of
deposition testimony (one witness having testified twice) listing
depositions of these nine unavailable out-of-state witnesses and
identifying the testimony that he proposed to introduce and
present at trial. As a general matter, each deposition concerned
1
Future undesignated statutory citations are to the
Evidence Code unless otherwise indicated.
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BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
Ford’s knowledge of and ability to address defects in the engines,
and its asserted concealment of those defects.
Shortly before trial in Berroteran’s lawsuit was set to
begin, Ford, relying on the interpretation of section 1291(a)(2)
articulated in Wahlgren v. Coleco Industries, Inc. (1984)
151 Cal.App.3d 543 (Wahlgren), moved to exclude all of
Berroteran’s proffered deposition testimony. This aspect of the
statute’s hearsay exception applies 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. (§ 1291(a)(2), italics added.) The official comment
accompanying that provision explains that in determining
similarity of interest and motive under the statute, inquiry
should focus on practical factors, and not simply on any
similarity regarding the position of the party in the two settings.
Interpreting the statute in light of this commentary, Wahlgren
concluded, in essence, that the provision’s hearsay exception is
generally inapplicable to testimony arising from a discovery
deposition.
After the trial court granted Ford’s motion, Berroteran
sought, and the Court of Appeal granted, a writ of mandate,
directing the trial court to issue a new order denying Ford’s
motion. The appellate court viewed section 1291(a)(2) as
reflecting no general rule against introduction of prior discovery
deposition testimony, but rather the opposite: According to the
court, a litigant in Ford’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.
Indeed, the appellate court added, at each of the prior
depositions, Ford had an interest and motive “to disprove” the
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BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
allegations of misconduct and knowledge concerning the diesel
engine. (Berroteran v. Superior Court (2019) 41 Cal.App.5th
518, 534, italics added (Berroteran).) The Court of Appeal
suggested that Ford bore the burden to show that it lacked a
similar interest and motive — and on this record, failed to do so.
(Ibid.)
Following full briefing by the parties and amici curiae, and
a few days after oral argument in this court, the parties filed a
document advising that they had “reached an agreement to
settle the case on terms independent of the outcome of the
opinion from this court,” and that “the settlement will obviate
the need for trial proceedings on the merits that would
otherwise take place on remand.” In light of the important
issues presented, we exercise our discretion to proceed to decide
the matter. (E.g., Marin County Bd. of Realtors v. Palsson
(1976) 16 Cal.3d 920, 929 [“an appeal will not be rendered moot
if the parties raise substantial questions of public interest that
are likely to recur”]; Building a Better Redondo, Inc. v. City of
Redondo Beach (2012) 203 Cal.App.4th 852, 867.) We will
conclude that the appellate court’s analysis is incompatible 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 Legislature’s official
comment, reflecting its understanding when it enacted the
provision at issue as part of the Evidence Code in 1965.
Accordingly, we will reverse the judgment, and provide guidance
for future resolution of similar issues.
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BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
I. FACTS AND PROCEDURE
A. The Underlying Complaint
Berroteran’s first amended complaint, filed in mid-2014,
asserted that in early 2006, after relying on Ford’s
representations that its vehicle was reliable and provided
superior power, he purchased a new Ford truck equipped with a
defective 6.0-liter diesel engine supplied by Navistar
(hereinafter Navistar engine). The complaint alleged that
notwithstanding Ford’s representations, when driving the
vehicle, Berroteran experienced breakdowns and lack of power
while towing. Moreover, the complaint alleged, Ford’s attempts
to address these problems were unsuccessful, even though Ford
had represented that it had fixed the engine. Consequently,
Berroteran alleged, he was unable to use the truck for its
intended and advertised purposes.
The complaint further alleged that Ford: “(a) rather than
identifying and eliminating the root cause of these defects,
produced and sold the vehicle to [Berroteran] 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 [Berroteran] . . . these inherent defects prior to
the sale or any time thereafter.” The complaint claimed that
“Ford was aware of its inability to repair the defects” in the
Navistar engine, and asserted causes of action for fraud,
negligent misrepresentation, violation of the Consumers Legal
Remedies Act (Civ. Code, § 1750 et seq., hereinafter CLRA), and
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BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
violation of the Song-Beverly Consumer Warranty Act (id.,
§ 1790 et seq.).
In order to put this complaint and the corresponding
evidentiary issues arising under section 1291(a)(2) into
perspective, we find it useful to briefly describe the relevant
underlying prior federal litigation, and the ensuing California
opt-out litigation that, in turn, spawned the deposition
testimony at issue here.
B. Earlier Litigation Against Ford Concerning the
Navistar Engine, and the Resulting 10
Videotaped Depositions
1. The federal consolidated class action complaint
and the six depositions related to that and
predecessor federal suits
The 2011 operative federal consolidated class action
complaint2 alleged defects in the diesel engine supplied by
Navistar that Ford installed in various vehicles between 2003
and 2007. That complaint, foreshadowing those subsequently
filed by others in California (including Berroteran) who opted out
of the federal consolidated class action, alleged that “Ford knew
from the outset that there were severe and pervasive design,
manufacturing, and quality issues plaguing” the Navistar
2
Berroteran was a putative class member of a federal
lawsuit filed in the Southern District of California (Burns v.
Navistar, Inc. (U.S. Dist. Ct., S.D.Cal., Feb. 23, 2011, Civ.
No. 10-cv-2295-LAB-BGS) 2011 U.S. Dist. LEXIS 18147). That
case, along with others, was subsequently consolidated into a
federal multidistrict class action filed in the Northern District
of Illinois, Eastern Division (In re Navistar 6.0 L Diesel Engine
Products Liability Litigation (U.S. Dist. Ct., N.D.Ill., Aug. 12,
2013, Civ. Case No. 1:11-cv-02496, MDL No. 2223) 2013 WL
4052673 (In re Navistar)).
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engine; yet Ford “never disclosed any of these issues to
consumers” and failed to authorize necessary major engine
repairs for its customers during the warranty period of their
vehicles. In other words, the complaint asserted, Ford “simply
kicked the can down the road” until each warranty expired, so
that “ ‘the customer — not Ford — would pay for repairs.’ ”
The federal consolidated class action ultimately settled —
preliminarily in late 2012, and finally in mid-2013. As noted,
Berroteran, like many others, opted out and pursued separate
suits.
In connection with the federal In re Navistar (see ante,
fn. 2) and related predecessor federal suits in Illinois3 and
Texas,4 various Ford employees and former employees were
deposed. Six of those videotaped depositions, taken in Michigan
and Florida, are among the ten depositions at issue in the
present case. Ford’s counsel consulted with each witness prior
to, and represented that witness at, each deposition. Ford’s
counsel raised objections at each deposition, but asked no
questions of these witnesses. None of these deposition
3
Custom Underground, Inc. v. Ford Motor Company
(N.D.Ill., No. 1:10-cv-00127), concerned the performance of more
than 20 Ford vehicles with Navistar 6.0-liter diesel engines
purchased by that plaintiff. The case was subsequently
consolidated into the federal multidistrict class action, In re
Navistar, supra, 2013 WL 4052673.
4
Years prior to the federal consolidated class action
litigation, In re Navistar, supra, 2013 WL 4052673, a Texas
ambulance service that had purchased Ford vehicles filed
Williams A. Ambulance, Inc. v. Ford Motor Company (E.D.Tex.,
No. 1:06-CV-00776). It is uncontested that the complaint in that
case alleged that Ford equipped ambulances with the defective
Navistar 6.0-liter diesel engine.
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BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
transcripts contains any discussion about the intended future
use of the deposition.
We will briefly describe, as representative, the deposition
of John Koszewnik, conducted in February 2011 in connection
with the Illinois federal litigation (see ante, fn. 3). Koszewnik
had been Ford’s director of North American diesel products,
responsible for investigating “failures in the field” of the
Navistar engine and identifying related “root cause[s] and
corrective actions.” He testified that four troublesome
components had been “injectors, turbochargers, EGR [exhaust
gas recirculation] valves, [and] EGR coolers.” He addressed
related warranty problems with the engine and recounted that,
as of February 2006, Ford had incurred “about 36 million
[dollars] a year,” and “as high as 5 million a month,” in warranty
expenses relating to the engine’s suspect EGR valve. And yet,
he testified, Ford refused to approve a replacement EGR valve
or to notify owners that they should seek such an upgrade.
2. Four depositions of three other Ford employees
arising under three California “opt-out” suits5
The subsequent videotaped depositions were conducted in
California in 2015–2017 — many years after, and indeed, in light
of, the above-described depositions in the federal matters. Each
deponent was designated by Ford as a “person most qualified”
(PMQ). Again Ford’s counsel consulted with each witness prior
5
In each of these California actions, the complaint tracked
the claims asserted in the prior federal consolidated class action
litigation and presaged those set out in Berroteran’s operative
complaint: (1) Preston v. Ford Motor Company (Super. Ct. El
Dorado County, No. SC20130071); (2) Dokken v. Ford Motor Co.
(Super. Ct. Sutter County, No. CVCS131994); and (3) Brown v.
Ford Motor Company (Super. Ct. Butte County, No. 160060).
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Opinion of the Court by Cantil-Sakauye, C. J.
to, and represented that witness at, each deposition. Ford’s
counsel once more raised objections at each deposition — and at
the conclusion of the first two depositions, briefly asked focused
questions of the witness to clarify certain testimony.
The final deposition, conducted in June 2017 in connection
with Brown v. Ford Motor Company (see ante, fn. 5), reflects
substantial discussion about its intended future use. Because
these parts of that transcript particularly implicate the
evidentiary issues in the present case, we review this portion of
the Brown deposition in some detail.
Eric Kalis appeared as Ford’s PMQ concerning various
matters, including the internal review and approval process
conducted by Ford personnel of marketing materials provided by
Ford to its dealers and customers to facilitate vehicle sales. He
further testified as Ford’s custodian of records. When examples
of marketing publications (Ford’s “Frontline Magazine,” “Source
Book,” “Trailer Tow Guide,” and sales brochures) were shown to
him, Kalis confirmed that each appeared to be a Ford business
record. He also presented a USB drive, referred to as “the
compilation,” reflecting search results concerning “12 million
pages” of Ford documents that had been produced in connection
with various prior Navistar engine opt-out lawsuits, and that
had been introduced as trial exhibits in yet another related
California opt-out case, Margeson v. Ford Motor Company.6 The
USB drive included emails by and to Ford employees whose
6
Los Angeles County Superior Court, No. BC549430. At
the time of the deposition in Brown, the Margeson suit had
yielded a substantial jury verdict against Ford. Subsequently,
that verdict was, in most part, recently affirmed on appeal.
(Margeson v. Ford Motor Company (Sept. 22, 2020, B287445)
[nonpub. opn.].)
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Opinion of the Court by Cantil-Sakauye, C. J.
depositions are at issue in the present case. In his testimony
Kalis addressed those same documents and email
communications, along with substantive issues such as effects of
an improperly functioning turbocharger on horsepower and
towing. At the close of Kalis’ deposition, following an extended
off-the-record discussion, counsel for both parties discussed (1) a
stipulation regarding the documents referred to earlier in the
deposition and (2) agreement about future use of Kalis’
deposition testimony.
Regarding the documents, Ford’s counsel stipulated that
all of the marketing materials and, with certain exceptions, most
other files contained within the USB drive — including the
emails by and to Ford employees — were indeed Ford “business
records for California hearsay purposes, and are true and correct
copies of Ford documents.” Next, after conferring with Ford’s
counsel, Kalis certified that these documents were “created in
the normal course of business,” are “true and correct,” and
constitute Ford “business records.” Those exhibits were in turn
made an exhibit to Kalis’ deposition.
The parties then addressed the scope of the stipulation
regarding the Ford documents, and in connection with that
discussion they also addressed the future use of the transcript
and video of the Kalis deposition. Counsel for the plaintiff
sought to clarify that the stipulation would apply generally to
all cases, not only “this case.” Counsel for Ford replied: “I . . .
can’t do the blanket stipulation as to all [Navistar engine]
matters. That doesn’t mean that, . . . if you folks bring it up to
the judge, that you’re going to not get it through easily. It’s just
the onus needs to be on your side of the table in those cases.”
Counsel for the plaintiff responded: “Mr. Kalis is frequently
identified and designated as either an expert or a [person most
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knowledgeable/qualified] — perhaps both — by Ford” and that
use of “these transcripts” should not be limited “to just this
Brown versus Ford case.” At that point, Mr. Scott Erskine, a
principal counsel for Ford, who had been listening to and
participating in the deposition by phone, interjected to reiterate
that he, like defense counsel who was present at the deposition,
had no authority to “bind other counsel.”
After further discussion the parties agreed to “use a copy
of the [deposition] transcript and a copy of the video for all
purposes, for all [Navistar] 6.0[-liter diesel engine] cases in
which [the Erskine] firm” is “currently counsel of record” —
listing, in addition to Brown, a few other then-pending
California opt-out cases (not including or mentioning the
present matter). Defense counsel also reiterated that the
stipulation concerning use of the documents was similarly
circumscribed.7 In response to renewed questioning by the
plaintiff’s counsel, Kalis clarified that, so far as he was aware,
the Ford business records to which he had confirmed
authenticity were relevant to “all [Navistar] 6.0 diesel” engines
“in general,” and his conclusion about authenticity of those
documents would be the same in any case in which the same
issue arose. Finally, all counsel agreed to meet and confer
within two weeks about “expanding this stipulation on the use
of these transcripts and the video for use in all [Navistar] 6.0
7
Defense counsel stated: “[F]or the reasons that
Mr. Erskine stated on the phone, . . . I just don’t have the
authority on that for the other outside counsel. That doesn’t
mean you don’t have a good argument to take to a judge in one
of those cases involving other counsel, it just means that
I personally don’t have the authority to speak on behalf of [other
outside counsel] at all, about their cases.”
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litigation matters, irrespective of” who is counsel of record. And
yet the record reflects, and we are advised of, no such further
agreement.
C. Berroteran’s Designation of Passages from the
10 Video Depositions and Ford’s Motion in
Limine to Exclude
Berroteran designated various passages of the earlier-
described video depositions, stating that he planned to play
them at trial. Relatedly, he also sought to present the Ford
documents and emails that had been produced in the federal
consolidated class action litigation, and more recently
introduced in the California opt-out trial, Margeson v. Ford
Motor Company (see ante, fn. 6). As observed immediately
above, Eric Kalis, Ford’s PMQ and custodian of records, had
certified, in deposition testimony in Brown, that all of these
documents were indeed Ford business records. Ford filed
motions in limine to exclude both categories of materials. The
first, motion No. 29, which is not directly at issue here, sought
to exclude Berroteran’s trial exhibits. The second, motion in
limine No. 30, which is at issue here, sought to exclude each of
the 10 videotaped depositions described earlier as constituting
inadmissible hearsay.
As observed earlier, section 1291(a)(2) recognizes an
exception to the hearsay rule and allows introduction of “former
testimony” if the declarant is unavailable8 and the proponent
8
As alluded to earlier, there is no dispute that all
prospective witnesses at issue in this case are “unavailable”
because, as out-of-state residents, they are beyond the reach of
subpoena power. (See Code Civ. Proc., § 1989 [a witness is not
obliged to appear in a California court unless the witness is a
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Opinion of the Court by Cantil-Sakauye, C. J.
shows that the objecting party had a “right and opportunity to
cross-examine the declarant with an interest and motive similar
to that which” it would have at trial in the present case. (Italics
added.) Ford relied on language in Wahlgren, supra,
151 Cal.App.3d 543, asserting that the inquiry concerning
motive and interest “ ‘should be based on practical
considerations and not merely on the similarity of the party’s
position in the two cases’ ” (id., at 546, italics omitted) — and
argued that Berroteran had failed to carry his burden of
showing that Ford had a similar interest or motive to cross-
examine the deponents as it would at trial in the present case.
In opposition, Berroteran asserted, “[t]he 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.”
D. The Trial Court’s Ruling Excluding the
Depositions, and the Court of Appeal’s Contrary
Determination
In arguing that Ford lacked similarity of interest and
motive to examine the witnesses at the depositions as it would
resident of the state at the time of service]; Evid. Code, § 240,
subd. (a)(4) [“ ‘unavailable as a witness’ means that the
declarant is any of the following: . . . [¶] . . . [¶] Absent from the
hearing and the court is unable to compel his or her attendance
by its process”].)
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Opinion of the Court by Cantil-Sakauye, C. J.
have at trial, counsel for Ford focused on an asserted
dissimilarity between Ford’s position in the depositions and in
the present litigation. In this regard counsel stated repeatedly
that at least some of the depositions at issue arose in the context
of Ford’s own separate lawsuit against “Navistar . . . for breach
of contract.” Based on that, counsel stressed, “it doesn’t make
sense that we would have a motive to cross-examine our own
witnesses in a suit by Ford against Navistar for breach of
contract.” (Italics added.) In fact, however, as our own review of
the 10 depositions sought to be introduced reveals, none arose in
that breach of contract suit setting — and instead all arose in the
context of consumer actions against Ford.
In a similar vein, Ford’s counsel repeatedly argued that
Ford had no motive to cross-examine its own witnesses with
regard to the multidistrict consolidated class action suit because
those depositions were “limited to class issues” over a span of
model years and, counsel asserted, discovery in that litigation
was confined to those “class issues only” and “not merits issues.”
And yet, as we have confirmed by our own review of each
deposition, in none was the testimony limited to class
certification issues such as commonality and typicality — and
instead each repeatedly, and in considerable detail, addressed
“merits issues.” Indeed, as counsel for plaintiff Berroteran
stressed, the operative complaint in the present suit (and also in
all other opt-out suits) was modeled on the federal complaint —
and hence, counsel asserted, the depositions in the prior federal
action covered “the same subject matter.” Relatedly, counsel also
asserted, without opposition, that in each of the four other recent
California opt-out trials at which the depositions had been
admitted, “Ford has [simply] counter-designated from the same
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transcripts,” instead of calling the deponents as live trial
witnesses.
In response, the trial court stated: “My ruling would be to
grant the motion in limine and exclude those deposition
transcripts for the reasons argued. In terms of . . . 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.” Yet, after
counsel for Berroteran indicated that “this is going to be an issue
on appeal,” the trial court asked counsel to resume argument.
Following that further discussion,9 the trial court reaffirmed its
9
The court asked for clarification regarding similarity with
respect to the federal consolidated class action suit, In re
Navistar. In response, counsel for Ford reprised the earlier
assertion that those depositions were “limited to class issues . . .
bearing on whether the class should be certified” and “didn’t even
deal with merits issues.” Later, after again repeating that the
class action depositions were “limited to class discovery,” Ford’s
counsel ultimately conceded, “obviously there’s some cross over
with the merits” — yet counsel maintained that the depositions
addressed “class issues, not merits issues.” Moreover, Ford’s
counsel asserted: “Generally speaking, litigants don’t have
motive to cross-examine their own witness” unless, as counsel
acknowledged, there are case-specific reasons for doing so — for
example, if “our corporate witness is dying of terminal cancer and
we need his testimony and he might not last until trial.”
Counsel for plaintiff Berroteran asserted that all prior
counsel understood that the depositions, each of which
concerned witnesses who were “clearly going to be out of the
subpoena power of many of the courts” where the cases were
being litigated, “were preservation depositions. Why else would
you videotape the deposition?” In this respect, counsel for
Berroteran asserted, contemporaneous comments by the
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original ruling.10
The Court of Appeal issued an alternative writ requiring
the trial court either to vacate its ruling granting the motion to
exclude or 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. After
briefing and argument, the appellate court determined that the
10 prior depositions were admissible under section 1291(a)(2). In
doing so it disagreed with Wahlgren, supra, 151 Cal.App.3d 543,
which it characterized as establishing a “categorical bar to
admitting deposition testimony under section 1291.”
(Berroteran, supra, 41 Cal.App.5th at p. 529, italics added.)
Instead, the appellate court (1) determined that a litigant in
Ford’s position has a similar interest and motive to examine its
own witnesses during their depositions as that party would have
in a later related trial based on similar subject matter, without
considering any differences between the two contexts, and
(2) appeared to place the burden on Ford to disprove any
similarity of interest and motive — and to conclude that Ford
had failed to satisfy this burden. (Id., at p. 534.)11
plaintiffs’ counsel at six of the 10 depositions reflected an
expectation or assumption by that counsel that those videotaped
sessions would be used as evidence at any trial related to that
suit.
10
The trial court likewise reaffirmed its earlier ruling
granting motion in limine No. 29, excluding the numerous
exhibits proffered by Berroteran and referenced in the Kalis
deposition testimony.
11
The appellate court also directed the trial court to “vacate
its order granting Ford’s motion in limine No. 29 [see ante,
fn. 10] concerning documentary evidence and to reconsider that
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Opinion of the Court by Cantil-Sakauye, C. J.
II. THE LEGISLATURE’S COMMENT
CONCERNING SECTION 1291, WAHLGREN, AND
THE COURT OF APPEAL’S DECISION
A. The Comment Concerning Section 1291
The Legislature has provided unusually specific guidance
concerning section 1291, in the form of official commentary that
originated with the California Law Revision Commission
(Commission) and then became an integral aspect of the 1965
legislation enacting the Evidence Code (Stats. 1965, ch. 299).12
order in light of our ruling vacating the trial court’s order
regarding motion in limine No. 30.” (Berroteran, supra,
41 Cal.App.5th at p. 536.)
12
In 1956 the Legislature enlisted the Commission to work
with other interested entities to review existing statutory
provisions, many of which were then in the Code of Civil
Procedure, to draft and recommend a dedicated Evidence Code.
(See Cal. Law Revision Com., Recommendation Proposing an
Evid. Code (Jan. 1965) at p. 29 [describing the history].) Nine
years later, the Commission proposed to the Legislature such a
code. (Ibid.) As recounted in a contemporaneous article by John
R. McDonough, Chairman of the Commission, the Commission
“provided a comment for each code section,” explicating “the
section’s purpose . . . and discuss[ing] some potential problems
of its meaning or application. . . .” (McDonough, The California
Evidence Code: A Précis (1966) 18 Hastings L.J. 89, fn. 4.) As
McDonough explained, and as the Commission’s and
Legislature’s reports reflect, the resulting “comments are of
special significance in the legislative history of the Evidence
Code as a result of the special attention given them by the
legislative committees that considered the code. Both the
Assembly and the Senate Committees on Judiciary issued
special reports on Assembly bill 333 (1965), which became the
California Evidence Code.” (McDonough, supra, 18 Hastings
L.J. at pp. 89–90, fn. 4.) These special committee reports
declared that the Law Revision Commission’s comments
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Opinion of the Court by Cantil-Sakauye, C. J.
(See generally Cal. Law Revision Com., Evid. Code with Official
Comments (Aug. 1965) at p. 1007 [“These Comments are
especially significant in the legislative history of the Evidence
Code because of the consideration given them by the legislative
committees that considered the code”].)
The resulting official comment concerning section 1291 is
set out verbatim in the published codes (at 29B pt. 5 West’s Ann.
Evid. Code (2015 ed.) foll. § 1291, pp. 86–87, and Deering’s Ann.
Evid. Code, vol. 2 (2021 ed.) foll. § 1291, pp. 810–811).13 The
comment reflects a distinction between two major types of
former testimony — that given at a prior trial, and that given in
expressed each “committee’s intent in approving the bill, except
to the extent that new or revised comments were set out by the
committees themselves.” (Id. at p. 90, and legislative sources
cited.) Accordingly, “for each section of the Evidence Code . . .
that was revised or enacted by Assembly bill 333 there is a
comment which is either a legislative committee comment that
was set forth in one of the two legislative committee reports, or
a Law Revision Commission comment, that was approved by the
legislative committees.” (Ibid.) In all respects relevant here,
section 1291’s official comment is taken verbatim from the
January 1965 Commission Recommendation, supra, at pages
251–253. (See Cal. Law Revision Com., Evid. Code with Official
Comments (Aug. 1965) at pp. 1247–1249 [memorializing the
approved final version of the comment concerning section 1291];
see also id., at pp. 1007–1008 [recounting the special
consideration given in April 1965 by the Assembly and Senate
judiciary committees to the Commission’s proposed comments].)
13
West’s designates the matter as “Comment — Assembly
Committee on Judiciary.” Deering’s designates the same as
“Law Revision Commission Comments” and notes at the end,
“As amended in the Legislature.” As observed ante, footnote 12,
in each publication the relevant text of the comment reflects, as
pertinent here, the Law Revision Commission’s January 1965
recommendation, as approved in April 1965 by the Legislature’s
judiciary committees.
17
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
the context of a deposition. The comment first explains, in
general terms: “[I]f a series of cases arises involving several
plaintiffs and but one defendant, Section 1291 permits testimony
given in the first trial to be used against the defendant in a later
trial if the conditions of admissibility stated in the section are
met.” (Com., ¶ 1, italics added.)
In its specific discussion of the statute’s subdivision
(a)(2) — the provision applicable in this case14 — the comment
is considerably more detailed. It states in full: “Paragraph (2)
of subdivision (a) of Section 1291 provides for the admissibility
of former testimony where the party against whom it is now
offered had the right and opportunity in the former proceeding
to cross-examine the declarant with an interest and motive
similar to that which he now has. Since the party has had his
opportunity to cross-examine, the primary objection to hearsay
evidence — lack of opportunity to cross-examine the
declarant — is not applicable. On the other hand, paragraph (2)
does not make the former testimony admissible where the party
against whom it is offered did not have a similar interest and
motive to cross-examine the declarant. The determination of
similarity of interest and motive in cross-examination should be
based on practical considerations and not merely on the
similarity of the party’s position in the two cases. For example,
testimony contained in a deposition that was taken, but not
offered in evidence at the trial, in a different action should be
excluded if the judge determines that the deposition was taken
for discovery purposes and that the party did not subject the
14
Section 1291 also addresses, in subdivision (a)(1),
admission of former testimony submitted against a party “who
offered it in evidence in his own behalf” in a prior proceeding.
18
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
witness to a thorough cross-examination because he sought to
avoid a premature revelation of the weakness in the testimony of
the witness or in the adverse party’s case. In such a situation,
the party’s interest and motive for cross-examination on the
previous occasion would have been substantially different from
his present interest and motive.” (Com., ¶ 4, italics added.)
B. Wahlgren
Nearly 20 years after the adoption of section 1291, the
Court of Appeal in Wahlgren, supra, 151 Cal.App.3d 543, cited
and applied the Legislature’s official comment. In that case the
plaintiff, who had been injured when he dove from a slide into
an above ground swimming pool, sued the pool manufacturer,
among others, and then sought to introduce “two depositions
taken in a prior unrelated action” in which the same defendant
pool manufacturer had been a party. (Id., at p. 545, fn. omitted.)
Relying alternatively on section 1291(a)(2), the trial court
excluded the depositions. (See post, fn. 15.) After a jury found
for the defendants, the plaintiff challenged exclusion of the
deposition evidence on appeal.
Without addressing or describing the nature of the prior
unrelated action in which the depositions had been taken, the
Court of Appeal explained that the deponents were officers of
the pool manufacturer, and “their testimony concerned [the
manufacturer defendant’s] policy of placing labels on pools
which alerted users to the dangers of diving.” (Wahlgren, supra,
151 Cal.App.3d at p. 545.) The appellate court affirmed the trial
court’s order of exclusion, determining that the deposition
testimony was inadmissible under section 1291(a)(2), as
19
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
informed by the section’s comment quoted earlier.15 In the
process, the court asserted that as a general matter, a party’s
interest and motive to cross-examine its own witnesses at a
deposition is different from the party’s interest and motive to do
so at trial.
The key passage from the brief opinion in Wahlgren reads
in full: “ ‘[A] determination of similarity of interest and motive
. . . should be based on practical considerations and not merely
on the similarity of the party’s position in the two cases.’ [Citing
the official comment concerning § 1291, supra.] Bearing this in
mind, it 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. [¶] In
contrast, a trial serves to resolve any issues of liability.
Accordingly, the interest and motive in cross-examination
increases dramatically. Properly exercised, this right serves to
clarify a litigant’s position and may result in his or her complete
exoneration. Given the practical differences between each of the
proceedings involved, it is therefore clear, at least with respect
to [the pool manufacturer defendant, who was aligned with the
15
The trial court had initially denied admission of the
depositions because they were merely notarized photocopies, not
certified copies. The Court of Appeal affirmed on that same
ground, before addressing, in what appears to be dicta, the
“alternative[]” ground that the depositions were properly
excluded as not meeting the requirements of section 1291(a)(2).
(Wahlgren, supra, 151 Cal.App.3d at p. 546; see id., at pp. 546–
547.)
20
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
deposed witnesses], that the trial court acted properly in
excluding the deposition testimony.” (Wahlgren, supra, 151
Cal.App.3d at pp. 546–547.)
In other words, the decision in Wahlgren effectively
construed section 1291(a)(2) as articulating a general rule
against the use of discovery depositions such as were at issue in
that case (of witnesses aligned with the defendant) in a
subsequent proceeding — unless the proponent can show that
the requirements of the statute, as illuminated by the
Legislature’s official comment, are met.16
C. The Court of Appeal Decision Below
In determining that the trial court abused its discretion by
excluding the 10 former depositions, the Court of Appeal
acknowledged that Wahlgren “arguably supported Ford’s
argument and the trial court’s conclusion.” (Berroteran, supra,
41 Cal.App.5th at p. 529.) Yet, the appellate court explained, it
disagreed with what it characterized as “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.” (Ibid., italics added.)
In articulating its disagreement with Wahlgren and
reaching its conclusion that the trial court abused its discretion
in granting Ford’s motion to exclude the proffered depositions,
the Court of Appeal was heavily influenced by the subsequently-
enacted and similarly-worded federal counterpart to section
16
The parties in Wahlgren did not seek review in this court,
and the propriety of its reasoning does not appear to have been
raised here since.
21
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
1291(a)(2) — Federal Rules of Evidence, rule 804(b)(1).17
Indeed, the appellate court reasoned, federal decisions
construing the federal rule should inform interpretation of the
previously-enacted state statute. The court determined, after
surveying some of those cases, that under the federal rule,
“former deposition testimony is not categorically excluded based
on an assumption that a motive to examine a witness differs
during deposition and at trial” (Berroteran, supra,
41 Cal.App.5th at p. 531) — and that “ ‘[a]s a 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.’ ”
(Id., quoting Hendrix v. Raybestos-Manhattan, Inc. (11th Cir.
1985) 776 F.2d 1492, 1506 [observing that pretrial depositions
can serve not only as discovery, but also to preserve testimony
that might be unavailable at trial].)
The Court of Appeal focused on Wahlgren’s assertion that
“[a]ll respected authorities . . . agree that given the [deposition]
hearing’s limited purpose and utility, examination of one’s own
client is to be avoided” (Wahlgren, supra, 151 Cal.App.3d at
p. 546) — and it criticized that decision for failing to cite any
support for that proposition. (Berroteran, supra, 41 Cal.App.5th
17
That rule, adopted in 1975, states: “The following are not
excluded by the rule against hearsay if the declarant is
unavailable as a witness: [¶] (1) Former Testimony. Testimony
that: [¶] (A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or a
different one; and [¶] (B) is now offered against a party who
had — or, in a civil case, whose predecessor in interest had —
an opportunity and similar motive to develop it by direct, cross-,
or redirect examination.” (Fed. Rules Evid., rule 804(b)(1),
28 U.S.C., italics added.)
22
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
at p. 533.) The Court of Appeal characterized Wahlgren as
asserting that “a deposition functions only as a discovery device”
(ibid., italics added) and responded: “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.” (Ibid.) In other words, the appellate court
concluded, Wahlgren is simply out of date, “given the prevalence
of videotaped deposition testimony in modern trial practice.”
(Ibid.)
Ultimately, the Court of Appeal relegated to a footnote the
Legislature’s official comment concerning section 1291. The
court asserted that because Ford did not “proffer any evidence
that there was any strategic reason for not cross-examining its
witnesses at their depositions here,” the court saw no reason to
“address whether this partial legislative history would dictate a
different outcome upon a proper and different record.”
(Berroteran, supra, 41 Cal.App.5th at p. 534, fn. 10, italics
added.)18
18
In this respect, the appellate court wrote, in full: “Ford
relies on a comment regarding section 1291 from the Assembly
Committee on the Judiciary in the publisher’s 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, p. 86.) Ford,
however, did not proffer any evidence that there was any
strategic reason for not cross-examining its witnesses at their
23
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
Having reached this conclusion, the appellate court found
it unnecessary to address other contentions raised by
Berroteran.19
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.” (Berroteran,
supra, 41 Cal.App.5th at p. 534, fn. 10.)
19
Berroteran’s primary argument in the trial court was that
the depositions taken in the federal class action litigation are
admissible under Code of Civil Procedure, section 2025.620,
subdivision (g). That provision states 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. A deposition previously taken may also
be used as permitted by the Evidence Code.” (See also, e.g., id.,
§ 2025.620, subd. (b) [“An adverse party may use for any
purpose, a deposition of a party to the action, or of anyone who
at the time of taking the deposition was an officer, director,
managing agent, employee, agent, or designee under Section
2025.230 of a party. It is not ground for objection to the use of a
deposition of a party under this subdivision by an adverse party
that the deponent is available to testify, has testified, or will
testify at the trial or other hearing,” italics added].) In his trial
briefs, Berroteran quoted the Law Revision Commission’s 1965
comment to the Evidence Code’s definitional section, 1290 (Law
Revision Com., Evid. Code with Official Comments, supra, foll.
§ 1290, p. 1247, now set out in 29B pt. 5 West’s Ann. Evid. Code
(2015 ed.) foll. § 1290, p. 84, and Deering’s Ann. Evid. Code, vol.
2 (2021 ed.) foll. § 1290, p. 807 [listing provisions that, as of then,
“will continue to govern the use of depositions in the action in
which they are taken”]), and he characterized Code of Civil
Procedure, section 2025.620, subdivision (g) as a “standalone
authorization for using depositions as evidence at trial . . .
separate and independent from any Evidence Code provisions.”
24
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISCUSSION
We first consider section 1291(a)(2)’s language in light of
the Legislature’s comment and corresponding observations in
leading practice guides — and conclude that the statute
articulates a general rule (not a categorical bar) against
admission at trial of prior testimony from a typical discovery
deposition. Thereafter, we address the contrary conclusion
reached by the appellate court below — and explain why we find
its reasoning unpersuasive.
A. As Wahlgren Implied, Section 1291(a)(2) Creates
a General Rule Against Admission of Testimony
from a Prior Civil Discovery Deposition
As noted, section 1291(a)(2) permits the use of prior
testimony in a proceeding only if the party seeking to exclude
(Indeed, both of these subdivisions of Code of Civil Procedure,
section 2025.620 — (b) and (g) — can be traced to at least Code
Civil Proc., former § 2016, subd. (d)(2) & (4), par. 2, enacted by
Stats. 1957, ch. 1904, § 2, p. 3323. Those predecessor provisions
were in turn reenacted, substantively unchanged, when former
section 2016 was otherwise amended by the legislation that
enacted the Evidence Code [see Stats. 1965, ch. 299, § 125, at
p. 1365] — and they remain in place, as renumbered, today.)
As the appellate court below observed, Berroteran
advanced his argument grounded on Code of Civil Procedure,
section 2025.620, subdivision (g), in his writ petition — and he
further asserted that the testimony given by the three PMQs in
the opt-out depositions constituted party-authorized admissions
under Evidence Code section 1222. The Court of Appeal
explained that because, in its view, all of the designated
testimony set out in the 10 depositions was admissible under
section 1291(a)(2), it would not address these additional
contentions. (Berroteran, supra, 41 Cal.App.5th at p. 528, fn. 8.)
Likewise, in this opinion, we express no view concerning the
applicability of these other statutory provisions.
25
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
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.” (§ 1291,
subd. (a)(2).) We are of course bound to construe and apply this
statutory language. (Smith v. LoanMe, Inc. (2021) 11 Cal.5th
183, 190.) Doing so here, we must bear in mind that the
Legislature’s judiciary committees attributed special
significance to the statute’s official comment. (Ibid. [when, as
the parties argue here, “ ‘ “ ‘ “statutory language permits more
than one reasonable interpretation, courts may consider other
aids, such as the statute’s . . . legislative history’ ” ’ ” ”].)20
As observed earlier, the comment distinguishes trial
testimony from deposition testimony and recognizes, in effect, a
general rule in favor of introducing prior trial testimony that is
otherwise within the rule: “[I]f a series of cases arises involving
several plaintiffs and but one defendant, Section 1291 permits
testimony given in the first trial to be used against the
defendant in a later trial if the conditions of admissibility stated
20
In Berroteran’s briefing in this court, advancing his view
that section 1291(a)(2), as properly construed, supports the
Court of Appeal’s construction of that provision, he briefly
alludes to Code of Civil Procedure, section 2025.620, subdivision
(g) (quoted ante, fn. 19). Berroteran suggests we should
construe section 1291(a)(2) “in conjunction with” the Code of
Civil Procedure section, in order to avoid any asserted tension
with it. Because our grant of review was limited to Evidence
Code section 1291(a)(2), the Code of Civil Procedure provision
has not been briefed in this court and its application is not before
us now. If, as Berroteran suggests, there exists any significant
tension between Code of Civil Procedure section 2025.620 (key
parts of which, as observed ante, fn. 19, predated the Evidence
Code and were reenacted along with it) and section 1291(a)(2)
as we interpret it, the Legislature can be expected to address
that issue.
26
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
in the section are met.” (Com., ¶ 1.) This is consistent with the
language of the statute’s subdivision (a)(2); the defendant in a
series of trials involving similar claims commonly has both the
opportunity to cross-examine witnesses and a similar interest
and motive to do so in each trial.
By contrast, the comment creates no such clear path
regarding prior deposition testimony. As noted, the comment
explains that determination of similarity of interest and motive
in cross-examination “should be based on practical
considerations and not merely on the similarity of the party’s
position in the two cases.” (Com., ¶ 4.) Moreover, it says,
“testimony contained in a deposition that was taken, but not
offered in evidence at the trial, in a different action should be
excluded if the judge determines that the deposition was taken
for discovery purposes and that the party did not subject the
witness to a thorough cross-examination because he sought to
avoid a premature revelation of the weakness in the testimony
of the witness or in the adverse party’s case. In such a situation,
the party’s interest and motive for cross-examination on the
previous occasion would have been substantially different from
his present interest and motive.” (Ibid., italics added.)
In drawing a distinction between the treatment of prior
trial and deposition testimony, the official comment relies on
and highlights the different functions of trial and deposition
testimony. Trial testimony is presented for the related purposes
of providing an evidentiary foundation for a favorable judgment
and persuading the trier of fact to render such a judgment.
Although depositions are sometimes conducted to preserve the
testimony of a witness for trial, many are commonly conducted
for the purpose of discovery. (Haydock & Herr, Discovery
Practice (2021-1 supp.) Deposition to Preserve Testimony,
27
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
§ 17.01[B] (hereinafter Discovery Practice).) The goal of
discovery depositions is ordinarily twofold: to obtain
information from the witness and to provide a foundation for the
witness’s impeachment, if necessary, at trial. Because a
deposition transcript commits the witness to specific, sworn
testimony on issues of significance to the litigation, it can be
used to cast doubt on a deponent who departs from prior
testimony on the stand. A discovery deposition, in other words,
is normally intended as a precursor to trial testimony — not as
a substitute for such testimony. (Dunne, Dunne on Depositions
in California (2020–2021 ed.) Use of depositions generally,
§ 13:1, p. 478 (hereinafter Depositions in California).)
As these different purposes might suggest, the “interest
and motive” of the party opponent in cross-examination at a
discovery deposition is generally not, as required by section
1291(a)(2), similar to that prevailing at trial. A party commonly
does have an interest and motive to conduct full cross-
examination of an opponent’s witness at trial. To the extent
such a witness presents ostensibly favorable testimony, cross-
examination is the opponent’s primary tool for dispelling that
appearance and, ideally, eliciting testimony favorable to the
cross-examiner. By contrast, there is no fact-finding audience
at a deposition, and persuasion is ordinarily a secondary
consideration. Rather, the goal of an opposing party at a
discovery deposition is typically to “get a ‘fix’ on” adverse
witness testimony to be expected at trial (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group,
2021) Principal Reasons to Take Depositions, ¶ 8:419, p. 8E-3
(hereinafter Civil Procedure Before Trial), without unduly
aiding the deposing party’s discovery efforts (Imwinkelreid &
Blumoff, Pretrial Discovery Strategy & Tactics (2021–2022 ed.)
28
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
Deposition tactics for opposing attorney, In general, § 7:1
(hereinafter Pretrial Discovery Strategy)). In this context,
cross-examination of the witness risks unintentionally
educating and aiding the deposing party because questioning
necessarily reveals information and commits the witness to
particular testimony. The interest and motive of an opposing
party at a discovery deposition is therefore often against cross-
examination of the witness, in order to avoid assisting the
deposing party. (E.g., id., Cross-examination of deponent,
§ 7:26.)
Even if there were an interest and motive for cross-
examination by the opposing party at a discovery deposition, the
opportunity for full and searching cross-examination may, as a
practical matter, be absent. Cross-examination at trial is
typically undertaken only after discovery is complete, when
documents and testimony available to the parties have become
known. Such cross-examination is generally conducted using
the documents produced in discovery, prior trial testimony, and
deposition testimony of both the witness being examined and
other deposed persons. (E.g., Wegner, et al., Cal. Practice Guide:
Civil Trials and Evidence (The Rutter Group 2021) Preparing
for Cross-Examination — A Checklist,¶ 10:163 et seq., pp. 10-37
et seq. (hereinafter Civil Trials and Evidence).) As this
suggests, effective cross-examination benefits from advance
planning and a complete evidentiary record. The deposition
testimony of the witness being cross-examined is an important
tool because, as noted, the deposition transcript reveals the
witness’s likely testimony and provides material for
impeachment if the witness departs from that testimony at trial.
(E.g., Discovery Practice, supra, Rules Governing Use of
Depositions at Trial, § 20.02.) Effective cross-examination at a
29
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
discovery deposition may be hindered by the absence of
comparable circumstances. Accordingly, although the opposing
party at a discovery deposition has an opportunity to cross-
examine the deponent, that opportunity might often not be an
ideal one. This, too, creates less interest and motive for cross-
examination.
For these reasons, as alluded to above, leading treatises
are consistent in discouraging opposing parties from conducting
cross-examination at a discovery deposition, at least when the
witness being deposed is aligned in interest with the opposing
party. For example, Discovery Practice, supra, Questioning the
Deponent, section 18.08, observes: “In what situations should
you question your client deponent? The best question may be no
question — the sooner the deposition is over, the better.
Ordinarily, your preparation of the deponent does not include
any preparation of questions. If you ask questions, you run the
risk of the deponent’s not understanding why you are asking a
question, or responding to it in a fashion different from what you
expected. Further, the more questions you ask, the more
information you provide the other side; the more questions you
ask, the more time the other attorney has to think about what
else to ask; the more questions you ask, the more chance the
other attorney has to ask still more questions.” (Accord,
Depositions in California, supra, Cross-examining own client,
§ 7:40, p. 277 [“Generally, it is not a good idea to cross-examine
one’s own client even though counsel has the right to do so.
[Citation.] Through counsel’s cross-examination, counsel may
give the examining attorney leads or ideas for further areas of
inquiry, and damaging admissions may be made.”]; Civil
Procedure Before Trial, supra, ¶ 8:711, p. 8E-111 [“Attorneys
often decide not to ask questions at depositions of their own
30
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
clients or witnesses favorable to their side. Since there is no
judge or jury present, there is usually nothing to be gained by
bringing out favorable testimony via ‘cross-examination.’
Moreover, it may even do harm by ‘educating’ opposing counsel,
or by allowing them to ask questions about matters they had
forgotten to inquire about”]; Lisnek & Kaufman, Depositions:
Procedure, Strategy & Technique (2021–2022 ed.)
Rehabilitation — Questioning the Deponent, § 11:10 [“When
determining whether questions of one’s own client should be
asked, an attorney must exercise restraint. Any questions
asked by the protecting attorney create a risk of additional
disclosure. Furthermore, the deponent cannot be expected to
respond in a desirable manner. The examiner therefore takes a
risk as to what answers will be given. In general, the protecting
attorney who asks questions sends signals to the examiner that
further information is out there to be gathered”].)
As we have indicated, however, not all depositions are
conducted for discovery purposes, or solely for discovery. Among
other purposes, depositions may preserve testimony when there
is reason to believe the deponent will not later be called at
trial — whether due to ill health or because of statutory
provisions that allow for the use of deposition testimony at trial,
given other considerations about witness availability. (E.g.,
Code Civ. Proc., § 2025.620, subds. (b), (c) & (g).) Practical
guidance therefore acknowledges that cross-examination may
be appropriate when a deposition serves “to preserve the
testimony of a deponent who either will not or may not be
31
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
available at trial” (Discovery Practice, supra, Questioning the
Deponent, § 18.08) and under other circumstances.21
In sum, and for the reasons discussed, the official
comment concerning section 1291(a)(2) articulates what is, in
effect, a general rule against admission at trial, by way of that
statute’s hearsay exception, of prior testimony from a typical
discovery deposition. But it remains merely a general rule —
that is, an approach to be adopted in the absence of persuasive
evidence that the deposition testimony sought to be admitted
satisfies the requirements of section 1291(a)(2). The party
seeking admission of prior deposition testimony under that
provision is free to submit evidence to the court that the
deposition sought to be introduced, unlike a typical discovery
21
Such circumstances may include the following, not all of
which apply concerning depositions of an aligned witness. As
explained in Pretrial Discovery Strategy, supra, Cross-
examination of deponent, section 7:26: (1) “An explanation
offered immediately on cross may be more credible than an
excuse offered at the later trial.” (2) If “[t]he deponent made
several statements favoring your theory of the case, but they are
‘disjointed and spread over many pages’ ” it might be useful to
“conduct a brief cross-examination to elicit a compact
restatement of the favorable passages.” (3) If “[y]ou
contemplate settling the case shortly after the deposition,” then
“reflecting the testimony in the record will improve your
settlement posture.” (4) “If the examining attorney is an
insurance defense attorney and the deponent is the plaintiff,
[that party’s counsel] may want to cross-examine about injuries.
The claims superintendent may review the deposition transcript
and base the pretrial settlement offer in large part on the
deposition. Some credible cross-examination testimony about
damages may lead to a higher settlement offer.” Finally, (5) if
the deponent is “an opposing witness,” cross-examination “is an
opportunity for discovery you might otherwise not have.” (Ibid.,
fns. omitted.)
32
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
deposition, featured circumstances that provided the party
opponent with an interest and motive for cross-examination
similar to that at trial. Properly understood, the official
comment to section 1291 imposes no categorical bar to
admission of deposition testimony from a prior proceeding. It
simply recognizes that the circumstances surrounding a civil
discovery deposition typically do not create an interest and
motive for cross-examination by the party opponent similar to
that existing at trial. The 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.
B. The Court of Appeal’s Contrary Reasoning is
Unpersuasive
As noted, the appellate court’s conclusion was heavily
influenced by its understanding of the similarly-worded federal
counterpart to section 1291(a)(2) — rule 804(b)(1) of the Federal
Rules of Evidence. The language in the two provisions is indeed
similar. Yet the federal rule, which was enacted a decade after
ours, does not come with any official comment similar to that
accompanying California’s 1965 enactment. And in any event,
the interpretation of section 1291(a)(2) that we adopt is not
contrary to what the Court of Appeal regarded as the prevailing
interpretation of the federal rule — namely, that the former
testimony inquiry requires a fact-specific analysis and that a
similar but not identical motive is necessary to come within the
former testimony hearsay exception.22 As has been explained, a
22
We note that federal courts have denied motions to
introduce deposition testimony at trials in subsequent cases
33
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
deposition may be admissible under section 1291(a)(2) in
various situations in which the party against whom it would
presently be introduced did in fact have the opportunity to cross-
examine the witness at the deposition with an interest and
motive similar to those it has at the subsequent hearing. (See
Wahlgren, supra, 151 Cal.App.3d at p. 546.)
But the Court of Appeal derived another rule from federal
law — the proposition that “ ‘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.’ ” (Berroteran, supra, 41 Cal.App.5th at
p. 531, quoting Hendrix v. Raybestos-Manhattan Inc., supra, 776
F.2d at p. 1506, and also citing Pearl v. Keystone Consolidated
Industries, Inc. (7th Cir. 1989) 884 F.2d 1047, 1052.) The Court
of Appeal then cited California law purportedly consistent with
the idea that a party’s motives and interest at trial are likely to
be similar to the party’s motives and interest at an earlier
deposition.23 Notably, however, the appellate court addressed
even when the issues in the two cases were similar — suggesting
that, consistent with our own understanding, similarity of the
issues is not dispositive under the federal rule. (See, e.g., S.E.C.
v. Jasper (9th Cir. 2012) 678 F.3d 1116, 1128 [because the S.E.C.
had a different motivation in examining the witness at an early
“investigat[ive]” proceeding, the transcript of the earlier
testimony could not be offered against the S.E.C. at trial]; see
id., at pp. 1127–1129; Securities Investor v. Bernard L. Madoff
Inv. (S.D.N.Y. 2019) 610 B.R. 197, 228 [finding no similar
interest and motive in the absence of “an ‘interest of
substantially similar intensity to prove . . . the same side of a
substantially similar issue’ ”].)
23
Although, as noted, federal law is not our touchstone here,
it may be questioned whether the two federal cases cited by the
34
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
only decisions applying section 1291(a)(2) in the context of
criminal trials — most affirming trial court decisions permitting
testimony given at a preliminary hearing to be introduced at an
ensuing criminal trial. (41 Cal.App.5th at p. 532, citing People
v. Ogen (1985) 168 Cal.App.3d 611, 617 [affirming admission at
trial of testimony from a preliminary hearing in a different
proceeding, at which defense counsel had conducted extensive
cross-examination]; and People v. Samayoa (1997) 15 Cal.4th
795, 850 [affirming admission at a capital penalty-phase trial of
testimony elicited during a preliminary hearing at which
defense counsel had conducted cross-examination designed to
cast doubt on identification of the defendant].) The Court of
Appeal likewise cited criminal cases stressing that “[a] party’s
‘interest and motive at a second proceeding is not dissimilar to
his interest at a first proceeding within the meaning of . . .
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.” ’ ” ’ ” (Berroteran, supra, 41 Cal.App.5th at
pp. 532–533, quoting People v. Harris (2005) 37 Cal.4th 310,
333.)
These and analogous criminal cases concern testimony
arising in earlier adjudicative hearings at which a defendant,
Court of Appeal below for this proposition in fact support that
view. Indeed, it appears that Hendrix and Pearl simply recited
and applied the unexceptional point that actual cross-
examination is not required for the former testimony exception
to apply. It is not clear that either meant to suggest that a
party’s reasons for limiting cross-examination in a deposition
are categorically irrelevant to the similarity of interest inquiry.
35
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
who may be well-armed with discovery already received from
the prosecution,24 often has an interest and motive to examine
the witness in order to avoid being bound over for trial by the
presiding magistrate. In that setting, there frequently may be
reason to find that similar interest and motive exist at the
preliminary hearing and trial stages. Yet, as the official
comment concerning section 1291(a)(2) implies, and as the court
in Wahlgren recognized, such a general rule does not naturally
or normally apply with respect to civil depositions, which are
never adjudicatory in nature, never subject a party to immediate
jeopardy or loss of freedom, and which are, in practice, often
undertaken purely (or at least primarily) for purposes of
discovery.25
24
See, e.g., People v. Hull (2019) 31 Cal.App.5th 1003, 1034
[independent of state criminal statutory directives, “ ‘a
defendant has a due process right under the California
Constitution and the United States Constitution to disclosure
prior to the preliminary hearing of evidence that is both
favorable and material, in that its disclosure creates a
reasonable probability of a different outcome at the preliminary
hearing’ ”]. By contrast, there is no comparable statutory or due
process right to discovery at any stage of civil litigation.
Although a party might find information in public records, and
some witnesses may be available for informal interview, in civil
cases most important document and witness information needed
by a party, particularly a party plaintiff, frequently is under the
control of the opposing party, and hence can be obtained only by
discovery.
25
Although we discern no fault in our prior decisions
applying section 1291 to preliminary testimony in a criminal
case, our holding concerns civil depositions only; we express no
view regarding admissibility under section 1291 of other types
of former testimony.
36
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
The Court of Appeal discounted Wahlgren’s assertion that
“[a]ll respected authorities . . . agree that given the [deposition]
hearing’s limited purpose and utility, examination of one’s own
client is to be avoided” (Wahlgren, supra, 151 Cal.App.3d at
p. 546) — and it criticized that decision for failing to cite any
support for that proposition. (Berroteran, supra, 41 Cal.App.5th
at p. 533.) As demonstrated above, however, Wahlgren’s
observation about discovery depositions, even if not backed by
citations in that opinion, is correct. There was and remains
overwhelming support for the proposition that defending
counsel at a civil discovery deposition typically have strategic
reasons to avoid questioning an aligned witness. The Court of
Appeal’s conclusion that Wahlgren is wrong or outdated in this
respect is belied by prominent treatises and practice guides such
as those discussed previously.
Moreover, as Ford and its amici curiae correctly observe,
videotaping, in itself, does not affect the decision whether to
examine an aligned witness at deposition. The determination to
videotape is ordinarily made by the deposing party, which must
specify videotaping in the deposition notice (Code Civ. Proc.
§ 2025.220, subd. (a)(5)) and make practical arrangements for
the recording. Standing alone, the videotaping of a deposition
may not trigger a motive and interest to cross-examine,
although it may be a relevant factor in combination with other
circumstances.
Finally, as noted earlier, the Court of Appeal disregarded
the Legislature’s official comment concerning section 1291,
relegating discussion to a footnote. The appellate court
reasoned that because Ford did not “proffer any evidence that
there was any strategic reason for not cross-examining its
witnesses at their depositions,” the court saw no reason to
37
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
“address whether this partial legislative history would dictate a
different outcome upon a proper and different record.”
(Berroteran, supra, 41 Cal.App.5th at p. 534, fn. 10, italics
added.)
There are multiple problems with this analysis. First, as
related ante, part II.A (and fn. 12), in adopting section 1291 the
Legislature did so only after its judiciary committees endorsed
the Law Revision Commission’s comment regarding that
statute, distinguishing between trial and deposition testimony,
and providing cautionary elaboration concerning the use of
deposition testimony under the provision. It is plain that the
Legislature viewed the comment as integral to interpreting and
applying the statute — and indeed, Berroteran does not contend
otherwise. In light of this background, a court may not dismiss
the comment as mere “partial legislative history.” (Berroteran,
supra, 41 Cal.App.5th at p. 534, fn. 10.)26
Second, and fundamentally, the Court of Appeal’s stated
reason for failing to honor the comment fails. Absent 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. (See, e.g., People v. Livaditis
26
The same observation applies concerning the Court of
Appeal’s assertion that “Wahlgren’s analysis . . . conflicts with
the plain language of section 1291, subdivision (a)(2), which, on
its face is unqualified: The statute states that it applies to ‘the
former testimony’ and is not limited to former ‘trial testimony.’ ”
(Berroteran, supra, 41 Cal.App.5th at pp. 533–534, fn. omitted.)
Again, as noted, the Legislature’s official comment explicates
the section’s purpose and addresses its meaning and
application.
38
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
(1992) 2 Cal.4th 759, 778 [“The proponent of hearsay” must
“alert the court to the exception relied upon and has the burden
of laying the proper foundation”], and authorities cited; see also
Civil Trials and Evidence, supra, ¶ 8:1405, p. 8D-114, [“the
proponent must . . . establish that the adverse party’s cross-
examination motives and interests before and now are
sufficiently similar,” first italics added, citing the official
comment concerning section 1291].) As noted, section 1291(a)(2)
makes former testimony hearsay evidence admissible upon
three conditions: The declarant is unavailable; the opposing
party was a party to prior litigation; and the opposing party had
opportunity to cross-examine with a similar motive and interest.
As the cited authorities suggest, it is natural to view the
proponent of admission as bearing the burden of proof on each
of these elements. Yet the appellate court below appears to have
shifted the burden of proof concerning this hearsay exception to
the opponent of the evidence, Ford.27
27
Indeed, this aspect of the Court of Appeal’s reasoning
pervaded and infected its analysis. After setting forth its
criticisms of Wahlgren, the appellate court proceeded to
determine that the trial court abused its discretion in excluding
the proffered video deposition testimony. In the course of its
discussion the appellate court reasoned that “Ford failed to
demonstrate any such different motive or interest here”
(Berroteran, supra, 41 Cal.App.5th at p. 520); “Ford offered no
further explanation why its motive to examine any specific
employee or former employee differed from its motive in the
current case” (id., at p. 534, italics added); “Ford made no
showing that it lacked a similar motive to examine its witnesses
during their depositions” (ibid., italics added); and “Ford fails to
demonstrate that it lacked a similar motive to examine its
witnesses in the former litigation” (id., at p. 535, italics added).
Given this, the appellate court concluded Ford did indeed have
39
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
Ultimately, the Court of Appeal reasoned, because “the
gravamen of each lawsuit was the same or similar,” Ford must
have had a “similar motive in questioning its witnesses on the
substantial overlapping allegations.” (Berroteran, supra,
41 Cal.App.5th at p. 535.)28 In other words, the appellate court
implicitly presumed that because of the similarity of the suits
and Ford’s position in each, Ford had an interest and motive to
cross-examine each aligned witness during each deposition. In
so reasoning, the court appears to have discounted, if not
ignored, the comment’s admonition that “mere[] . . . similarity of
the party’s position in the two cases” (Com., ¶ 4, italics added) is
not dispositive, and instead must yield to other “practical
considerations.” (Ibid.)
Indeed, the appellate court’s undue focus on Ford’s
similarity of position in the various settings also led it to assert,
repeatedly, that at each of the depositions “Ford had a similar
motive to disprove the allegations of misconduct, and
knowledge, all of which centered around the 6.0-liter diesel
engine.” (Berroteran, supra, 41 Cal.App.5th at p. 534, italics
“a similar motive to examine each of the nine deponents.” (Id.,
at p. 534, fn. omitted.) And yet Ford — the opponent of
introduction, which had appeared at the non-adjudicatory civil
deposition representing an aligned witness — bore no burden to
prove that it lacked a similar interest and motive to examine its
witnesses at that deposition. The burden to prove that Ford had
a similar interest and motive rested with the proponent,
Berroteran.
28
Likewise, the appellate court observed, “The videotaped
deposition testimony from the former federal and state
litigations was on the same issues Berroteran raises in his
current lawsuit” — and hence, the court concluded, “Ford had a
similar motive to examine each of the nine deponents.”
(Berroteran, supra, 41 Cal.App.5th at p. 534, fn. omitted.)
40
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
added.)29 And yet 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. For the reasons discussed above, the
contrary views of Berroteran and amici curiae on his behalf are
based on fundamental misconceptions concerning the practical
considerations that must inform the requirements of section
1291.
Perhaps the Court of Appeal below was persuaded by
Berroteran’s repeated assertions that Ford’s litigation position
suggested “gamesmanship”: Although Ford had not objected to
introduction of the designated parts of these depositions in prior
California opt-out cases, in this case, on the eve of trial, Ford
asserted its purported rights under section 1291 to exclude the
materials. Berroteran argues that he would have to incur the
expense of deposing each out-of-state witness in order to obtain
and introduce that same testimony — much of which,
assertedly, consists of uncontroverted historical facts. Yet a
litigant in Berroteran’s position has other means of avoiding
repetitive depositions, and indeed, a trial court can and should
facilitate use of measures to obviate need for repeated
depositions covering the same ground. Confirming uncontested
matters is one purpose of interrogatories (Code Civ. Proc.,
§ 2030.010 et seq.) and requests for admission (id., § 2033.010
et seq.). Both statutes are designed to accommodate enhanced
29
Later, the court reiterated, “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.”
(Id., at p. 535, italics added.)
41
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
use of each device (see id., §§ 2030.040, 2030.050 [propounding
additional interrogatories]; 2033.040, 2033.050 [propounding
additional requests for admission]), and we trust that a trial
court would approve such requests as warranted. Moreover, if
a party fails to comply (see id., § 2023.010, subds. (d)–(h)), a
court may, and we trust will, impose a broad range of
appropriate sanctions (see id., § 2023.030).
Finally, even if, as the Court of Appeal appears to have
suggested, a presumption favoring admitting hearsay under
section 1291 were supportable under the statutory scheme, that
would be an unsuitably blunt tool by which to address the
inefficiencies highlighted by Berroteran. Instead, a proper
application of the fact-sensitive approach that section 1291
requires, and which we outline immediately below, can be
expected to appropriately guide application of this hearsay rule.
IV. APPROACH THAT A TRIAL COURT
SHOULD UNDERTAKE IN THIS SETTING
We now address the process a trial court should undertake
when determining whether, under the exception to the hearsay
rule set out in section 1291(a)(2), a party seeking to exclude prior
deposition 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 trial.
In light of the special significance of the Legislature’s
official comment described ante, part II.A (and fn. 12), a trial
court addressing a motion to exclude under 1291(a)(2) should,
consistently with that comment and the consensus views
expressed in the practice guides described ante, part III, conduct
a factually intensive inquiry, separately as to each designated
deposition, as follows:
42
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
(A.) Determining whether the parties intended, at the
outset, that the deposition serve as trial testimony. As an initial
matter, the court should determine whether the parties
manifested an intent to take the deposition for the purpose of
preserving the witness’s testimony as a proxy for trial
testimony. If such intent is established, it may be inferred that
all counsel had, at that deposition, a right and opportunity to
examine the declarant with an interest and motive similar to
that which the party would have at trial in a future case — and
hence this key requirement of section 1291(a)(2), would, as
general matter, be satisfied. In that situation, the burden would
shift to the party opposing admission to demonstrate
circumstances rebutting that conclusion.
(B.) Determining whether the parties subsequently reached
agreement concerning use of the deposition at trial in that case,
or in other cases. In many circumstances there will be no
express agreement reached at the beginning of the deposition
concerning its future use, or evidence that it was intended to be
anything other than an ordinary discovery deposition. The court
should nevertheless inquire whether the proponent of admission
has shown that the parties subsequently reached agreement
concerning use to which the deposition would be put, as reflected
in, for example, the reporter’s transcript of the deposition, or any
later memorializing document. Moreover, if, as recounted ante,
part I.B.2 (regarding the Kalis deposition taken in the Brown
suit), the parties reach agreement at the close of a deposition
concerning use in other specific related litigation, yet not
regarding the litigation in which introduction is presently
sought, the trial court should consider whether the now-
objecting party, by having agreed to use of the deposition
testimony in some future related case, contemporaneously
43
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
implied that, at the deposition at issue, it did indeed have a right
and opportunity to examine the declarant with an interest and
motive similar to that which it would have at trial in the present
case.30
(C.) Key “practical considerations.” In circumstances not
falling within (A) or (B) above, and hence in which it is not
evident that the parties understood that a deposition was
intended for purposes other than discovery, the resulting
testimony is, as Wahlgren, supra, 151 Cal.App.3d 543, implied,
generally not made admissible by section 1291(a)(2). As noted,
this statute, in essence, mandates that the opposing party have
had “interest and motive” to conduct an examination similar to
the type that would be anticipated at the subsequent hearing in
which the testimony is to be admitted. Deposition testimony
should not be admitted under this provision unless, in the
manner described immediately below, the party proposing to
introduce the testimony carries its burden of demonstrating that
the opposing party had the required interest and motive. In this
respect the proponent, consistently with the Legislature’s
official comment concerning section 1291(a)(2) and the
consensus views expressed in the practice guides described ante,
part III, should inform the court concerning — and the court
should contemplate — various practical considerations,
including the following:
30
In other words: Presumably, counsel for a party would not
agree to a deposition’s use in any future different albeit related
case unless counsel was satisfied that there had been, at that
deposition, a right and opportunity to examine the declarant
with an interest and motive similar to that which the party
would have at trial in a future related case.
44
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
(1.) The timing of the deposition within the context of
the litigation, and special circumstances creating an incentive for
cross-examination. As observed earlier, parties may not be in a
position to conduct cross-examination early in the discovery
process. The same is not necessarily true of depositions taken
after the parties have been educated by discovery conducted in
earlier, similar lawsuits, as is the situation in this case. In
addition, there may be special circumstances that create an
incentive for cross-examination. Anticipating a mediation or
settlement conference, for example, a party may attempt during
a deposition to demonstrate the weaknesses in an opponent’s
case by conducting aggressive cross-examination.
(2.) The relationship of the deponent and the opposing
party. A party rarely has an interest and motive to cross-
examine deponents with whom the party has a close or aligned
relationship, such as officers and employees of a corporation or
family members of an individual — although that interest may
be similarly low or minimal at trial.31 Correspondingly, the
likelihood of a substantial interest in cross-examination may
increase as the strength of the relationship between the
deponent and the opposing party diminishes or if it is
31
Often a party may have reason to conduct limited
examination of its own deposition witness in order to explain,
circumscribe, or correct potentially misleading or damaging
testimony. Standing on its own, such limited examination does
not demonstrate the existence of an interest and motive to
conduct the type of cross-examination that the party would
undertake at trial, as is required by the statute. The proponent
of admission, however, may be able to demonstrate that the
opposing party would have no interest and motive to undertake
a more extensive examination at trial compared with the interest
and motive that existed at the deposition, thereby satisfying this
element of admission.
45
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
antagonistic, as is sometimes the case concerning former
employees of a corporation or estranged friends and relatives of
an individual.
(3.) The anticipated availability of the deponent at trial
in the proceeding in which the deposition was taken, and the
statutory context. If the witness was expected to be available to
testify at trial in the litigation for which the deposition was
taken, this may have diminished the opposing party’s motive to
cross-examine. Conversely, if there was reason to believe that
the witness would be unavailable, for example because the
witness was not amenable to subpoena or was in ill health, the
court should consider whether the now-objecting party would
have had reason to anticipate that the deposition testimony
might serve as a proxy for substantive testimony at trial — and
have a corresponding motive and interest to treat it as such.
Likewise, the motivation and interest in cross-examination may
be enhanced when a statutory rule (such as those set out in Code
of Civil Procedure section 2025.620, quoted ante, fn. 19)
explicitly allows parties to use depositions as substantive
evidence at the subsequent trial between the same parties,
regardless of witness availability.
(4.) Conduct at, and surrounding, the deposition — and
the degree of any examination conducted by the opposing party.
Conduct such as compelling out-of-state witnesses to appear for
a videotaped deposition, and references made at the ensuing
deposition to “testimony for the jury,” particularly by the party
opposing admission, may contribute to a showing that testimony
preservation was among the purposes of a deposition. Relatedly,
if the party opposing admission actually undertook an
apparently searching examination of the deponent, the court
may determine that such conduct suggests an interest and
46
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
motive with respect to cross-examination similar to that which
the party would have at trial in the present case. Conversely,
the absence of any examination of the deponent, or the limited
scope of any such examination, may suggest that the party
lacked the same interest and motive for cross-examination that
would exist at trial in the present case.32
(5.) The particular designated testimony. In some
circumstances, the proponent of admission may claim that the
opposing party had an interest and motive to cross-examine a
deponent concerning specific testimony sought to be admitted.
As suggested above, there are tactical reasons why an opposing
party may elect not to examine a deposition witness about
particular testimony, regardless of its content. Standing alone,
therefore, the adverse or confusing nature of particular
deposition testimony does not necessarily demonstrate an
interest and motive to cross-examine at the deposition.
Assuming, however, that the proponent is able to demonstrate
with respect to particular testimony that the opposing party in
fact had an interest and motive to examine at the deposition
similar to that at trial, the trial court may conclude that this
32
As observed ante, footnote 31, however, the opposing
party’s interest and motive at trial may be to conduct only a
limited cross-examination, and this is particularly so when the
witness is aligned with that party. Under such circumstances,
the proponent of admission may be able to demonstrate that the
limited examination at the deposition was consistent with a
correspondingly limited motive and interest to cross-examine at
trial. Regardless of the circumstances, however, any
consideration of the cross-examination actually undertaken is
merely evidence from which an interest and motive might be
inferred and not an independent factor in the court’s analysis.
47
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
element of admission is satisfied with respect to the designated
testimony.
(6.) “Similarity of position.” When, as appears in the
present case, respective suits are shown to be substantially
parallel, and the substance of the related deposition testimony
correspondingly alike, nevertheless no affirmative presumption
concerning similarity of interest and motive thereby arises.
Instead, and although similarity of a party’s position is a
relevant factor in assessing that party’s interest and motive in
cross-examining at a deposition compared with at a subsequent
trial, it is only a factor. As the Legislature’s official comment
stresses, “[t]he determination of similarity of interest and
motive in cross-examination should be based on practical
considerations” — such as those listed above — “and not merely
on the similarity of the party’s position in the two cases.” (Com.,
¶ 4, italics added.)
Finally, with regard to the trial court’s review and
determination, it should make a record — orally, or preferably
in writing — reflecting its reasoning regarding the key issue of
similarity of motive and interest. (Cf. Facebook, Inc. v. Superior
Court (Touchstone) (2020) 10 Cal.5th 329, 358 [a trial “should
create a record that facilitates meaningful appellate review”].)
V. CONCLUSIONS AND DISPOSITION
The Court of Appeal below construed Wahlgren, supra,
151 Cal.App.3d 543, as establishing a “categorical bar to
admitting deposition testimony under section 1291.”
(Berroteran, supra, 41 Cal.App.5th at p. 529, italics added; see
also id., p. 533.) We do not read Wahlgren as announcing any
such definitive holding. Instead, as explained previously, we
view that case as appropriately construing section 1291(a)(2) to
48
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
articulate a general rule against the use of a discovery
deposition in a subsequent proceeding, unless the proponent can
show that the requirements of the statute, as illuminated by the
Legislature’s official comment, are met. If this understanding
of section 1291(a)(2) is to be reconsidered or revised in the
manner suggested by the Court of Appeal below, the
Legislature, and not a court, should be the agent of any such
change.33
For the reasons set out above, we reverse the Court of
Appeal’s judgment.
33
Likewise, if, as Berroteran suggests, there is any tension
with the Code of Civil Procedure (see ante, fn. 19), that too is a
matter for the Legislature’s attention and consideration.
49
BERROTERAN v. SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
MANELLA, J. *
*
Presiding Justice of the Court of Appeal, Second Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
50
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Berroteran v. Superior Court
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 41 Cal.App.5th 518
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S259522
Date Filed: March 7, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Gregory Keosian
__________________________________________________________
Counsel:
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, Cynthia E. Tobisman and
Nadia A. Sarkis for Petitioner.
The Sturdevant Law Firm and James C. Sturdevant for Consumers for
Automobile Reliability and Safety, Consumer Action, Consumer
Federation of California and California Public Interest Research Group
as Amici Curiae on behalf of Petitioner.
Alan Charles Dell’Ario for Consumer Attorneys of California as Amicus
Curiae on behalf of Petitioner.
No appearance for Respondent.
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.
Fred J. Hiestand for the Civil Justice Association of California as
Amicus Curiae on behalf of Real Party in Interest.
Faegre Drinker Biddle & Reath and Alan J. Lazarus for the Product
Liability Advisory Council, Inc., as Amicus Curiae on behalf of Real
Party in Interest.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Cynthia E. Tobisman
Greines, Martin, Stein & Richland LLP
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90036
(310) 859-7811
Frederic D. Cohen
Horvitz & Levy LLP
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505
(818) 995-0800