Berroteran v. Superior Court (2022) 12 Cal.5th 867

A car consumer sued a vehicle manufacturer for fraud, negligent misrepresentation, violation of the Consumers Legal Remedies Act, and violation of the Song-Beverly Warranty Act arising from his purchase of a truck that allegedly had a defective 6.0-liter diesel engine.  Shortly before trial was scheduled to begin, the manufacturer moved in limine to exclude all of the consumer plaintiff’s proffered deposition testimony under Evidence Code section 1291(a)(2).  Section 1291(a)(2) recognizes an exception to the hearsay rule and allows introduction of “former testimony” if the declarant is unavailable and the proponent 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.  The trial court granted the car manufacturer’s motion.

The consumer then sought, and the Court of Appeal granted, a writ of mandate, directing the trial court to issue a new order denying the manufacturer’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 the car manufacturer’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.

The California Supreme Court granted review, and reversed the Court of Appeal.  It concluded that the appellate court’s analysis was 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.

California Supreme Court Opinion – View Document

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