In Berroteran v. Superior Court, No. B296639, 2019 Cal. App. LEXIS 1065 (Ct. App. Oct. 29, 2019), the Court of Appeal permitted admission of prior deposition testimony from an automobile manufacturer’s employee where the manufacturer allegedly had motive and opportunity to examine their own witness in the prior case(s).
Except for Wahlgren, California law is consistent with federal law. Section 1291 provides “‘no magic test to determine similarity in interest and motive to cross-examine a declarant. Factors to be considered are matters such as the similarity of the party’s position in the two cases, the purpose sought to be accomplished in the cross-examination, and whether under the circumstances a thorough cross-examination of declarant by the party would have been reasonably expected in the former proceeding.’” (People v. Ogen (1985) 168 Cal.App.3d 611, 617 [215 Cal. Rptr. 16] [analyzing the admissibility of preliminary hearing testimony from a different proceeding]; People v. Samayoa (1997) 15 Cal.4th 795, 850 [64 Cal. Rptr. 2d 400, 938 P.2d 2] [comparing motive to cross-examine witness at the preliminary hearing and during penalty phase of trial]; cf. People v. Sanders (1995) 11 Cal.4th 475, 525 [46 Cal. Rptr. 2d 751, 905 P.2d 420] [the People lacked a similar purpose in cross-examining witness at a suppression hearing as opposed to at trial].) A party’s “interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. [Citation.] The ‘“motives need not be identical, only ‘similar.’”’” (People v. Harris (2005) 37 Cal.4th 310, 333 [33 Cal. Rptr. 3d 509, 118 P.3d 545].) Where the party had the same motive to discredit the witness and challenge the witness’s credibility, the former testimony would be admissible under section 1291. (People v. Harris, at p. 333.) Whether evidence is admissible under section 1291, moreover, depends on whether the party against whom the former testimony is offered had a motive and opportunity for cross-examination, not whether counsel actually cross-examined the witness. (People v. Williams (2008) 43 Cal.4th 584, 626–627 [75 Cal. Rptr. 3d 691, 181 P.3d 1035].) In contrast to these cases, Wahlgren appears categorically to exclude deposition testimony from the section 1291 hearsay exception. In Wahlgren, the plaintiff filed a personal injury action against defendants. (Wahlgren, supra, 151 Cal.App.3d at p. 545.) The plaintiff suffered an injury after diving from a slide into a swimming pool. (Ibid.) Plaintiff was unsuccessful at trial, and on appeal, argued that the trial court erred in excluding former deposition testimony of one of defendant’s officers. (Ibid.) The testimony concerned the policy of placing labels on pools to alert users to the dangers of diving. (Ibid.) Affirming the trial court’s decision to exclude the evidence, in a sparse opinion, the appellate court held the evidence was inadmissible under section 1291, subdivision (a)(2) because the defendant did not have the opportunity to cross-examine the declarant with the interest and motive similar to the current case. (Wahlgren, supra, 151 Cal.App.3d at p. 546.) As relevant here, Wahlgren states: “[I]t should be noted that a deposition hearing normally functions as a discovery device. All respected authorities, in fact, agree that given the hearing’s limited purpose and utility, examination of one’s own client is to be avoided. At best, such examination may clarify issues which could later be clarified without prejudice. At worst, it may unnecessarily reveal a weakness in a case or prematurely disclose a defense.” (Id. at pp. 546–547.) Wahlgren—a 1984 case—cites no support for its assertions that a deposition functions only as a discovery device. That assumption is at best outdated given the prevalence of videotaped deposition testimony in modern trial practice. Wahlgren cites no authority for the proposition that examination of one’s “client is to be avoided.” (Wahlgren, supra, 151 Cal.App.3d at pp. 546–547.) That blanket assumption appears inconsistent with the reality of often overlapping lawsuits in different jurisdictions and the prospect that an important witness could retire or otherwise become unavailable. Wahlgren’s analysis also conflicts with the plain language of section 1291, subdivision (a)(2), which, on its face is unqualified: The statute states that it applies to “[t]he former testimony” and is not limited to former “trial testimony.” (§ 1291, subd. (a)(2).)10 D. The trial court abused its discretion in granting motion in limine no. 30. In its motion in limine, Ford argued that it “clearly did not have a similar interest and motive to examine its employees at those depositions as it will have at trial in this case. Indeed, it is not established that Ford’s counsel undertook any re-direct examination at the depositions.” Ford offered no further explanation why its motive to examine any specific employee or former employee differed from its motive in the current case. Ford offered no analysis of the causes of action in the prior litigation generating the challenged depositions and did not argue that those causes of action were different from the current litigation. In essence, Ford’s argument was that a party never has the same motivation to examine its own witnesses in a deposition as it has at trial, an argument (as demonstrated above) that is contrary to the weight of authority and modern litigation practice. As Berroteran argues, Ford made no showing that it lacked a similar motive to examine its witnesses during their depositions, and the record demonstrates just the opposite. Ford had a similar motive to examine each of the nine deponents.The videotaped deposition testimony from the former federal and state litigations was on the same issues Berroteran raises in his current lawsuit—whether the 6.0-liter engine was defective, Ford’s knowledge of the alleged defect, and Ford’s repair strategy. The deponents’ testimony concerned matters relevant to the former and current actions. Ford had a similar motive to disprove the allegations of misconduct, and knowledge, all of which centered around the 6.0-liter diesel engine. Gillanders’ testimony exemplifies the similarity of the issues in this litigation and the former litigation. During his deposition, Gillanders testified that his testimony regarding the categories on which he was the person most qualified would “be the same in any Ford lemon law case pending in California.” Because his testimony would be the same, Ford’s motive to cross-examine him would be similar, if not the same. Ford’s additional arguments are unpersuasive. For example, Ford argues: “Ford had little or no motive in suits that involved engines produced over a five-year period to question witnesses about the engine that Berroteran purchased in 2006.” Ford’s argument ignores Berroteran’s key allegation that: “Without remedying the defects [identified in 2002], Ford continued to equip subsequent model years of the F-250 truck, including the 2006 model, with the 6.0-liter engine. Regardless of tweaks made to the 6.0-liter engine by Ford during subsequent model years, these same defects to the engine persisted throughout Ford’s production and sale of the trucks.” Even if the multidistrict litigation spanned a greater time period, it included 2006, the year Berroteran purchased his vehicle, and included Berroteran as a putative plaintiff. Ford also argues that it had no incentive to question its witnesses on “Berroteran’s vehicle, his vehicle purchasing experience, or his vehicle repair experience—to question witnesses about the particular problems Berroteran claimed to have experienced with his 2006 truck.” Taken to its logical conclusion, Ford’s argument appears to assume an additional prerequisite to section 1291—the identity of the parties. Clearly, that assumption is inconsistent with the language in section 1291. Ford fails to demonstrate that it lacked a similar motive to examine its witnesses in the former litigation. Each deponent was represented by Ford’s counsel, and Ford had the same interest to disprove allegations related to the 6.0-liter diesel engine. (Compare N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1396 [89 Cal. Rptr. 2d 885] [no similar interest where no defendant present at deposition had an interest in establishing the facts relevant to the current litigation].) Although each case involved a different plaintiff or additional plaintiffs, the gravamen of each lawsuit was the same or similar. The undisputable fact that every owner will have a different purchase and repair history does not negate Ford’s similar motive in questioning its witnesses on the substantial overlapping allegations, specifically regarding the 6.0-liter diesel engine. To recap, section 1291 requires a similar, not an identical, motive. In short, the record does not support the conclusion that Ford did not have a similar motive to cross-examine its own witnesses in the prior litigation. Even if the causes of action in the current and prior cases are not identical, the crux of the litigation is the same in each case. In the trial court, Ford inaccurately characterized the depositions as involving only discovery and only “class issues” such as “commonality, whether there’s typicality.” As summarized above, in fact, the former testimony concerned Ford’s 6.0-liter diesel engine, policies and procedures for warranty claims, and the authentication of documents from a custodian of records. It is undisputed that the depositions have been admitted at trial in multiple cases, and thus did not serve only discovery purposes. For all these reasons, the trial court abused its discretion in granting Ford’s motion to exclude the entire depositions of Ligon, Freeland, Frommann, Eeley, Koszewnik, Clark, Fascetti, Gillanders, and Kalis.