41 Cal.App.5th 518
Cal. Ct. App.2019Background
- Petitioner Raul Berroteran sued Ford over a defective 6.0‑liter Navistar diesel engine in his 2006 Ford F‑250, alleging fraud, negligent misrepresentation, CLRA and Song‑Beverly Act claims.
- Nine former/current Ford employees (including persons most knowledgeable) had been deposed in prior state and federal cases about the same 6.0‑liter engine; those videotaped depositions were offered at trial.
- Ford moved in limine to exclude those depositions under the hearsay rule, arguing Evidence Code §1291(a)(2) did not apply because Ford lacked a similar motive to cross‑examine at the prior depositions.
- The trial court granted Ford’s motions in limine, and also excluded many documentary exhibits that were authenticated or tied to the depositions.
- The Court of Appeal granted petitioner’s writ, concluding Ford had a similar motive and opportunity to cross‑examine in the prior proceedings and that the trial court abused its discretion by excluding the depositions; it remanded to reconsider the excluded documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior videotaped depositions under Evid. Code §1291(a)(2) (former testimony) | Depositions arose from litigation about the same engine, issues, and Ford knowledge/repair strategy; Ford had counsel and opportunity and the same motive to disprove allegations. | Depositions were discovery/class proceedings with limited purpose; Ford had no similar motive to cross‑examine at those depositions as it would at trial (relying on Wahlgren). | Court held Ford had the requisite similar motive and opportunity; §1291 covers the depositions and the trial court abused its discretion excluding them. |
| Admissibility of documentary exhibits previously tied to excluded depositions | Many exhibits were authenticated or shown to be business records in the depositions; exclusion turned on exclusion of depositions. | Documents were hearsay or unsupported without sponsoring testimony. | Court directed the trial court to reconsider excluded documentary evidence in light of admitting the depositions; no opinion on other objections. |
Key Cases Cited
- Wahlgren v. Coleco Indus., 151 Cal.App.3d 543 (1984) (court below relied on a categorical rule excluding depositions under §1291)
- Hendrix v. Raybestos‑Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985) (party’s tactical choice not to cross‑examine in deposition does not bar later use under rule 804)
- DeLuryea v. Winthrop Labs., 697 F.2d 222 (8th Cir. 1983) (similar motive to challenge testimony across proceedings supports admission)
- Gill v. Westinghouse Elec. Corp., 714 F.2d 1105 (11th Cir. 1983) (depositions preserve testimony and are not solely discovery tools)
- Murray v. Toyota Motor Distribs., Inc., 664 F.2d 1377 (9th Cir. 1982) (opportunity and motive, not extent of cross‑examination, govern admissibility)
- Smith v. Bayer Corp., 564 U.S. 299 (2011) (federal/state statutes may be interpreted differently—court discusses but does not control this §1291 analysis)
- In re Joyner, 48 Cal.3d 487 (1989) (state courts may look to federal decisions interpreting similarly worded provisions)
- People v. Williams, 43 Cal.4th 584 (2008) (motive/opportunity inquiry under §1291 does not depend on whether cross‑examination actually occurred)
- People v. Harris, 37 Cal.4th 310 (2005) (motive need only be similar, not identical, under §1291)