March 8, 2022

Berroteran v. Superior Court (March 7, 2022, S259522)

Evidence Code section 1291(a)(2) provides that deposition testimony taken in one case is not admissible against a party to the earlier proceeding in subsequent litigation unless the party against whom testimony is offered had “the right and opportunity to cross-examine the declarant with an interest and motive similar to that which” the objecting party would have in the later trial. The California Supreme Court held that it should be presumed that no such interest and motive exists where the witness who was being deposed was an employee of or otherwise aligned with the objecting party. Under those circumstances, section 1291(a)(2) creates a general rule against admitting testimony from a prior civil discovery deposition. The burden of establishing that the conditions for admitting deposition testimony exists rests with the party proposing that the testimony be admitted, and that burden cannot be satisfied merely by demonstrating that the issues in the two proceedings are similar.

Note: Horvitz & Levy LLP represented the prevailing party in the Supreme Court.