Under what circumstances can deposition testimony be admitted under Cal. Evid. Code § 1291(a)(2)?

1291. Offered against party who previously proffered it

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or

(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to:

(1) Objections to the form of the question which were not made at the time the former testimony was given.

(2) Objections based on competency or privilege which did not exist at the time the former testimony was given.

1290. "Former testimony"

As used in this article, "former testimony" means testimony given under oath in:

(a) Another action or in a former hearing or trial of the same action;

(b) A proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the United States or a public entity in the United States;

(c) A deposition taken in compliance with law in another action; or

(d) An arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof.

As noted, section 1291(a)(2) permits the use of prior testimony in a proceeding only if the party seeking to exclude the testimony had "the right and opportunity to cross-examine the declarant with an interest and motive similar to that which" the same party will have "at the [present] hearing." (§ 1291, subd. (a)(2).) We are of course bound to construe and apply this statutory language. (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190, 276 Cal.Rptr.3d 746, 483 P.3d 869.) Doing so here, we must bear in mind that the

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Legislature's judiciary committees attributed special significance to the statute's official comment. (Ibid. [when, as the parties argue here, " ‘ " ‘ "statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's ... legislative history" ’ " ’ "].)²⁰

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As observed earlier, the comment distinguishes trial testimony from deposition testimony and recognizes, in effect, a general rule in favor of introducing prior trial testimony that is otherwise within the rule: "[I]f a series of cases arises involving several plaintiffs and but one defendant, Section 1291 permits testimony given in the first trial to be used against the defendant in a later trial if the conditions of admissibility stated in the section are met." (Com., ¶ 1.) This is consistent with the language of the statute's subdivision (a)(2); the defendant in a series of trials involving similar claims commonly has both the opportunity to cross-examine witnesses and a similar interest and motive to do so in each trial.

By contrast, the comment creates no such clear path regarding prior deposition testimony. As noted, the comment explains that determination of similarity of interest and motive in cross-examination "should be based on practical considerations and not merely on the similarity of the party's position in the two cases." (Com., ¶ 4.) Moreover, it says, "testimony contained in a deposition that was taken, but not offered in evidence at the trial, in a different action should be excluded if the judge determines that the deposition was taken for discovery purposes and that the party did not subject the witness to a thorough cross-examination because he sought to avoid a premature revelation of the weakness in the testimony of the witness or in the adverse party's case. In such a situation, the party's interest and motive for cross-examination on the previous occasion would have been substantially different from his present interest and motive." (Ibid., italics added.)

In drawing a distinction between the treatment of prior trial and deposition testimony, the official comment relies on and highlights the different functions of trial and deposition testimony. Trial testimony is presented for the related purposes of providing an evidentiary foundation for

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a favorable judgment and persuading the trier of fact to render such a judgment. Although depositions are sometimes conducted to preserve the testimony of a witness for trial, many are commonly conducted for the purpose of discovery. (Haydock & Herr, Discovery Practice (2021-1 supp.) Deposition to Preserve Testimony, § 17.01[B] (hereinafter Discovery Practice).) The goal of discovery depositions is ordinarily twofold: to obtain information from the witness and to provide a foundation for the witness's impeachment, if necessary, at trial. Because a deposition transcript commits the witness to specific, sworn testimony on issues of significance to the litigation, it can be used to cast doubt on

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a deponent who departs from prior testimony on the stand. A discovery deposition, in other words, is normally intended as a precursor to trial testimony — not as a substitute for such testimony. (Dunne, Dunne on Depositions in California (2020–2021 ed.) Use of depositions generally, § 13:1, p. 478 (hereinafter Depositions in California).)

As these different purposes might suggest, the "interest and motive" of the party opponent in cross-examination at a discovery

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deposition is generally not, as required by section 1291(a)(2), similar to that prevailing at trial. A party commonly does have an interest and motive to conduct full cross-examination of an opponent's witness at trial. To the extent such a witness presents ostensibly favorable testimony, cross-examination is the opponent's primary tool for dispelling that appearance and, ideally, eliciting testimony favorable to the cross-examiner. By contrast, there is no fact-finding audience at a deposition, and persuasion is ordinarily a secondary consideration. Rather, the goal of an opposing party at a discovery deposition is typically to "get a ‘fix’ on" adverse witness testimony to be expected at trial (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2021) Principal Reasons to Take Depositions, ¶ 8:419, p. 8E-3 (hereinafter Civil Procedure Before Trial), without unduly aiding the deposing party's discovery efforts (Imwinkelreid & Blumoff, Pretrial Discovery Strategy & Tactics (2021–2022 ed.) Deposition tactics for opposing attorney, In general, § 7:1 (hereinafter Pretrial Discovery Strategy)). In this context, cross-examination of the witness risks unintentionally educating and aiding the deposing party because questioning necessarily reveals information and commits the witness to particular testimony. The interest and motive of an opposing party at a discovery deposition is therefore often against cross-examination of the witness, in order to avoid assisting the deposing party. (E.g., id., Cross-examination of deponent, § 7:26.)

Even if there were an interest and motive for cross-examination by the opposing party at a discovery deposition, the opportunity for full and searching cross-examination may, as a practical matter, be absent. Cross-examination at trial is typically undertaken only after discovery is complete, when documents and testimony available to the parties have become known. Such cross-examination is generally conducted using the documents produced

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in discovery, prior trial testimony, and deposition testimony of both the witness being examined and other deposed persons. (E.g., Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2021) Preparing for Cross-Examination — A Checklist,¶ 10:163 et seq., pp. 10-37 et seq. (hereinafter Civil Trials and Evidence).) As this suggests, effective cross-examination benefits from advance planning and a complete evidentiary record. The deposition testimony of the witness being cross-examined is an important tool because, as noted, the deposition transcript reveals the witness's likely testimony and provides material for impeachment if the witness departs from that testimony at trial. (E.g., Discovery Practice, supra, Rules Governing Use of Depositions at Trial, § 20.02.) Effective cross-examination at a discovery deposition may be hindered by the absence of comparable circumstances. Accordingly, although the opposing party at a discovery deposition has an opportunity to cross-examine the deponent, that opportunity might often not be an ideal one. This, too, creates less interest and motive for cross-examination.

As we have indicated, however, not all depositions are conducted for discovery purposes, or solely for discovery. Among other purposes, depositions may preserve testimony when there is reason to believe the deponent will not later be called at trial — whether due to ill health or because of statutory provisions that allow for the use of deposition testimony at trial, given other considerations about witness availability. (E.g., Code Civ. Proc., § 2025.620, subds. (b), (c) & (g).) Practical guidance therefore acknowledges that cross-examination may be appropriate when a deposition serves "to preserve the testimony of a deponent who either will not or may not be available at trial" (Discovery Practice, supra, Questioning the Deponent, § 18.08) and under other circumstances.²¹

In sum, and for the reasons discussed, the official comment concerning

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section 1291(a)(2) articulates what is, in effect, a general rule against admission at trial, by way of that statute's hearsay exception, of prior testimony from a typical discovery deposition. But it remains merely a general rule — that is, an approach to be adopted in the absence of persuasive evidence that the deposition testimony sought to be admitted satisfies the requirements of section 1291(a)(2). The party seeking admission of prior deposition testimony under that provision is free to submit 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. Properly

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understood, the official comment to section 1291 imposes no categorical bar to admission of deposition testimony from a prior proceeding. It simply recognizes that the circumstances surrounding a civil discovery deposition typically do not create an interest and motive for cross-examination by the party opponent similar to that existing at trial.

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The party urging admission of deposition testimony bears the burden of rebutting the general rule by submitting appropriate information justifying the admission of designated deposition testimony.

We now address the process a trial court should undertake when determining whether, under the exception to the hearsay rule set out in section 1291(a)(2), a party seeking to exclude prior deposition testimony had "the right and opportunity to cross-examine the declarant with an interest and motive similar to that which" the same party will have at the present trial.

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In light of the special significance of the Legislature's official comment described ante, part II.A (and fn. 12), a trial court addressing a motion to exclude under 1291(a)(2) should, consistently with that comment and the consensus views expressed in the practice guides described ante, part III, conduct a factually intensive inquiry, separately as to each designated deposition, as follows:

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(A.) Determining whether the parties intended, at the outset, that the deposition serve as trial testimony. As an initial matter, the court should determine whether the parties manifested an intent to take the deposition for the purpose of preserving the witness's testimony as a proxy for trial testimony. If such intent is established, it may be inferred that all counsel had, at that deposition, a right and opportunity to examine the declarant with an interest and motive similar to that which the party would have at trial in a future case — and hence this key requirement of section 1291(a)(2), would, as

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general matter, be satisfied. In that situation, the burden would shift to the party opposing admission to demonstrate circumstances rebutting that conclusion

(B.) Determining whether the parties subsequently reached agreement concerning use of the deposition at trial in that case, or in other cases. In many circumstances there will be no express agreement reached at the beginning of the deposition concerning its future use, or evidence that it was intended to be anything other than an ordinary discovery deposition. The court should nevertheless inquire whether the proponent of admission has shown that the parties subsequently reached agreement concerning use to which the deposition would be put, as reflected in, for example, the reporter's transcript of the deposition, or any later memorializing document. Moreover, if, as recounted ante, part I.B.2 (regarding the Kalis deposition taken in the Brown suit), the parties reach agreement at the close of a deposition concerning use in other specific related litigation, yet not regarding the litigation in which introduction is presently sought, the trial court should consider whether the now-objecting party, by having agreed to use of the deposition testimony in some future related case, contemporaneously implied that, at the deposition at issue, it did indeed have a right and opportunity to examine the declarant with an interest and motive similar to that which it would have at trial in the present case.³⁰

(C.) Key "practical considerations. " In circumstances not falling within (A) or (B) above, and hence in which it is not evident that the parties understood that a deposition was intended for purposes other than discovery, the resulting testimony is, as Wahlgren, supra, 151 Cal.App.3d 543, 198 Cal.Rptr. 715, implied, generally not made admissible by section 1291(a)(2). As noted, this statute, in essence,

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mandates that the opposing party have had "interest and motive" to conduct an examination similar to the type that would be anticipated at the subsequent hearing in which the testimony is to be admitted. Deposition testimony should not be admitted under this provision unless, in the manner described immediately below, the party proposing to introduce the testimony carries its burden of demonstrating that the opposing party had the required interest and motive. In this respect the proponent, consistently with the Legislature's official comment concerning section 1291(a)(2) and the consensus views expressed in the practice guides described ante , part III, should inform the court concerning — and the court should contemplate — various practical considerations, including the following:

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(1.) The timing of the deposition within the context of the litigation, and special circumstances creating an incentive for cross-examination. As observed earlier, parties may not be in

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a position to conduct cross-examination early in the discovery process. The same is not necessarily true of depositions taken after the parties have been educated by discovery conducted in earlier, similar lawsuits, as is the situation in this case. In addition, there may be special circumstances that create an incentive for cross-examination. Anticipating a mediation or settlement conference, for example, a party may attempt during a deposition to demonstrate the weaknesses in an opponent's case by conducting aggressive cross-examination.

(2.) The relationship of the deponent and the opposing party. A party rarely has an interest and motive to cross-examine deponents with whom the party has a close or aligned relationship, such as officers and employees of a corporation or family members of an individual — although that interest may be similarly low or minimal at trial.³¹ Correspondingly, the likelihood of a substantial interest in cross-examination may increase as the strength of the relationship between the deponent and the opposing party diminishes or if it is antagonistic, as is sometimes the case concerning former employees of a corporation or estranged friends and relatives of an individual.

(3.) The anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context. If the witness was expected to be available to testify at trial in the litigation for which the deposition was taken, this may have diminished the opposing party's motive to cross-examine. Conversely, if there was reason to believe that the witness

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would be unavailable, for example because the witness was not amenable to subpoena or was in ill health, the court should consider whether the now-objecting party would have had reason to anticipate that the deposition testimony might serve as a proxy for substantive testimony at trial — and have a corresponding motive and interest to treat it as such. Likewise, the motivation and interest in cross-examination may be enhanced when a statutory rule (such as those set out in Code of Civil Procedure section 2025.620, quoted ante , fn. 19) explicitly allows parties to use depositions as substantive evidence at the subsequent trial between the same parties, regardless of witness availability.

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(4.) Conduct at, and surrounding, the deposition — and the degree of any examination conducted by the opposing party. Conduct such as compelling out-of-state witnesses to appear for a videotaped deposition, and references made at the ensuing deposition to "testimony for the jury," particularly by the party opposing admission, may contribute to a showing that testimony preservation was among the purposes of a deposition. Relatedly, if the party opposing admission actually undertook an apparently searching examination of the deponent, the court may determine that such conduct suggests an interest and motive with respect to cross-examination similar to that which the party would have at trial in the present case. Conversely, the absence of any examination of the deponent, or the limited scope of any such examination, may suggest that the party lacked the same interest and motive

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for cross-examination that would exist at trial in the present case.³²

(5.) The particular designated testimony. In some circumstances, the proponent of admission may claim that the opposing party had an interest and motive to cross-examine a deponent concerning specific testimony sought to be admitted. As suggested above, there are tactical reasons why an opposing party may elect not to examine a deposition witness about particular testimony, regardless of its content. Standing alone, therefore, the adverse or confusing nature of particular deposition testimony does not necessarily demonstrate an interest and motive to cross-examine at the deposition. Assuming, however, that the proponent is able to demonstrate with respect to particular testimony that the opposing party in fact had an interest and motive to examine at the deposition similar to that at trial, the trial court may conclude that this element of admission is satisfied with respect to the designated testimony.

(6.) "Similarity of position." When, as appears in the present case, respective

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suits are shown to be substantially parallel, and the substance of the related deposition testimony correspondingly alike, nevertheless no affirmative presumption concerning similarity of interest and motive thereby arises. Instead, and although similarity of a party's position is a relevant factor in assessing that party's interest and motive in cross-examining at a deposition compared with at a subsequent trial, it is only a factor. As the Legislature's official comment stresses, "[t]he determination of similarity of

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interest and motive in cross-examination should be based on practical considerations" — such as those listed above — "and not merely on the similarity of the party's position in the two cases. " (Com., ¶ 4, italics added.)

Here, the parties cited and discussed Wahlgren. Plainly, the trial court was aware of it. Nevertheless, it admitted the depositions. Thus, it must have found that the particular circumstances of the depositions showed that Ford had similar interests and motives in cross-examination. Even though Berroteran had not yet been decided, the factors listed in Berroteran were logically relevant to that decision. Thus, Ford has not asked that we remand the case so the trial court can reconsider the admissibility of the depositions

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in light of the Berroteran factors. Rather, we consider whether its decision was an abuse of discretion under Berroteran.

The depositions here were taken in Florida and Michigan for use in an action then pending in Illinois. It is a reasonable inference that Ford knew that the deponents would be unavailable at trial, and it had to cross-examine them then and there, if at all. (See Fed. Rules Civ. Proc., rule 45(c)(1).) Of course, Eeley and Frommann were then-current Ford employees. It could be argued that Ford expected to be able to order them to appear at trial if it did need to cross-examine them. However, Ford could not order Freeland and Ligon, who were former employees, to appear at trial. Moreover, it could not be sure that Eeley and Frommann would remain current employees.

In addition, the depositions were taken in a class action involving alleged defects of the 6.0L engine. It was reasonably inferable that the class was relatively large, a substantial number of class members would opt out, and more than a handful of opt-outs would file their own separate actions against Ford. This was true even if (as Ford claims) it expected the class action itself to be settled. If Ford could develop favorable testimony through cross-examination, that could help to head off such actions or to settle them; at a minimum, it could reduce costs by eliminating duplicative discovery.

Finally, the depositions were videotaped. Berroteran said: "Standing alone, the videotaping of a deposition may not trigger a motive and interest to cross-examine, although it may be a relevant factor in combination with other circumstances. " (Berroteran, supra , 12 Cal.5th at p. 897, 290 Cal.Rptr.3d 805, 505 P.3d 601, italics added.) Here, the trial court could reasonably view the fact that the depositions were videotaped as corroborating the inference that Ford expected them to be used in opt-out actions.

Admittedly, the fact that Ford did not actually cross-examine the deponents cuts against the trial court's conclusion. Crucially, however, the applicable standard of review is abuse of discretion. (People v. King (1969) 269 Cal.App.2d 40, 48, 74 Cal.Rptr. 679.) "A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773, 149 Cal.Rptr.3d 614, 288 P.3d 1237.) Given the risk that these particular witnesses would be unavailable to Ford at trial, plus the likely benefit to Ford of any favorable testimony by them, the trial court could reasonably conclude

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that Ford had a similar interest and motive to cross-examine them as it did at trial.

Even if the deposition copies utilized by plaintiff are deemed to comply with Code of Civil Procedure section 273, they may alternatively be excluded under Evidence Code section 1291, subdivision (a)(2). This statute provides that "former testimony" is admissible when offered against a party to the proceeding in which the testimony was given. The party must, however, have had a right and opportunity to cross-examine the declarant with an interest and motive similar to that presently held, and the declarant must be unavailable as a witness. In this instance, it is undisputed that Coleco, as a party to the prior proceeding, had a right and opportunity to cross-examine the individuals deposed. It is also undisputed that these individuals were unavailable as witnesses. At issue, however, is the trial court's ruling that Coleco's interest and motive in cross-examination was dissimilar.

"[A] determination of similarity of interest and motive ... should be based on practical considerations and not merely on the similarity of the party's position in the two cases." (Evid. Code, § 1291, subd. (a)(2); Legis. Comm. comments.) Bearing this in mind, it 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 [151 Cal.App.3d 547] without prejudice. At worst, it may unnecessarily reveal a weakness in a case or prematurely disclose a defense.

In contrast, a trial serves to resolve any issues of liability. Accordingly, the interest and motive in cross-examination increases dramatically. Properly exercised, this right serves to clarify a litigant's position and may result in his or her complete exoneration. Given the practical differences between each of the proceedings involved, it is therefore clear, at least with respect to Coleco, that the trial court acted

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properly in excluding the deposition testimony.

Father argues the juvenile court erred when it refused to admit Baraboi'a deposition testimony into evidence. The contention lacks merit.

First, the deposition testimony was cumulative of other evidence, as just discussed. Second, father failed to show it was admissible under section 1291, subdivision (a)(2), which provides that former testimony is not rendered inadmissible by the hearsay rule if "the declarant is unavailable as a witness" and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." Father acknowledges SSA, the petitioner in this proceeding, was not represented at Baraboi's deposition and thus had no opportunity to cross-examine him. That alone defeats father's claim he satisfied section 1291, subdivision (a)(2) and we need not address his contentions he sufficiently showed Baraboi was unavailable.