Cases

Berroteran v. Superior Court (Oct. 29, 2019, B296639) ___ Cal.App.5th ___ [2019 WL 5558830]

In a published decision that disagrees with a sister court decision, Wahlgren v. Coleco Industries, Inv. (1984) 151 Cal.App.3d 543 (Wahlgren), the Court of Appeal granted GMSR’s petition for writ of mandate and directed the trial court to vacate in limine orders that had excluded key deposition testimony and exhibits.

Petitioner, GMSR’s client, was a putative member of a class action brought on behalf of consumers across the country against a vehicle manufacturer for knowingly selling vehicles with defective engines.  Petitioner opted out of the class at the settlement stage and individually sued the manufacturer in California state court, modeling his allegations on the class action.  Petitioner intended to use as trial evidence the videotaped deposition testimony of nine witnesses who were either deposed in the class action or in lawsuits filed by other consumers who had opted out of the class action, the same as petitioner.  Petitioner lacked the ability to compel the deponents to attend trial.  The trial court, however, excluded the depositions and related exhibits at the in limine stage, reasoning that the depositions fell outside Evidence Code section 1291’s hearsay exception for former testimony.  Relying on Wahlgren, the trial court reasoned that the vehicle manufacturer had not had the same interest and motive to cross examine its own current and former employees at those depositions.

GMSR filed a writ petition. The Court of Appeal issued an alternative writ, and the matter was ultimately resolved after full briefing and argument.  The Court of Appeal issued a published opinion, disagreeing with Wahlgren’s categorical bar on admitting deposition testimony under section 1291.  Based on GMSR’s briefing, the Court concluded that Wahlgren’s decades-old reasoning was ”unsupported by legal authority, inconsistent with modern trials and the omnipresence of videotaped depositions during trial, and contrary to persuasive federal law interpreting an analogous hearsay exception.”  In addition to vacating the deposition ruling, the Court of Appeal also vacated an order excluding exhibits and directed the trial court to revisit that issue in light of the opinion.

California Court of Appeal Opinion – View Document