In Berroteran v. Superior Court, the Supreme Court today holds a statutory hearsay-rule exception that makes admissible some “former testimony” normally doesn’t allow a deposition from an earlier lawsuit to be used against a party who was also a party in the prior action. The statute conditions the former testimony’s admissibility on the party having had in the previous lawsuit “the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
Observing that “[a] discovery deposition . . . is normally intended as a precursor to trial testimony — not as
a substitute for such testimony,” the court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that “the statute articulates a general rule (not a categorical bar) against admission at trial of prior testimony from a typical discovery deposition.”
A party wanting to introduce former deposition testimony can overcome the general rule by “submit[ting] evidence to the court that the deposition sought to be introduced, unlike a typical discovery deposition, featured circumstances that provided the party opponent with an interest and motive for cross-examination similar to that at trial.” Such evidence could include the parties in the prior action having “manifested an intent to take the deposition for the purpose of preserving the witness’s testimony as a proxy for trial testimony,” or other “practical considerations,” which the court discusses at length.
The court declines to address the applicability of a discovery statute that specifically concerns the admissibility of deposition testimony, rather than of “former testimony” broadly.
The court issued its opinion despite being notified a week after oral argument that the parties had settled. “In light of the important issues presented, we exercise our discretion to proceed to decide the matter,” the court explained. (Related: see here, here, here, here, and here.)
The court reverses the published opinion of the Second District, Division One, Court of Appeal, which had disagreed with the Fourth District, Division Two, decision in Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543.
[Update: I forget to mention, as I’ve done in earlier posts about the case, that Horvitz & Levy represents the party who prevailed in today’s opinion.]