Preview
1 GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
2 jnevin@braytonlaw.com
BRAYTON˜PURCELL LLP ELECTRONICALLY
3 Attorneys at Law
222 Rush Landing Road
F I L E D
Superior Court of California,
4 P.O. Box 6169 County of San Francisco
Novato, California 94948 12/28/2021
5 (415) 898-1555 Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
6 Attorneys for Plaintiffs Deputy Clerk
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 CAROL CHULICK, as Successor-in- ) ASBESTOS
Interest to and as Wrongful Death Heir of ) No. CGC-19-276757
12 JOHN CHULICK, Deceased; and )
NOVATO, CALIFORNIA 94948-6169
DEBORAH HAGEN and JOLEEN ) PLAINTIFFS’ TRIAL BRIEF ON THE
BRAYTON˜PURCELL LLP
222 RUSH LANDING ROAD
13 HAGLER, as Wrongful Death Heirs of ) ADMISSIBILITY OF DEFENDANTS’
ATTORNEYS AT LAW
JOHN CHULICK, Deceased, ) PRIOR TESTIMONY AS PARTY
(415) 898-1555
P O BOX 6169
14 ) ADMISSIONS PURSUANT TO
Plaintiffs, ) CALIFORNIA EVIDENCE CODE §§ 1220
15 vs. ) AND 1222
)
16 RILEY POWER INC., et al., )
) Trial Date: December 27, 2021
17 Defendants. ) Dept.: 502; Honorable Jeffrey S. Ross
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 I. INTRODUCTION
2 As is the case with the plaintiffs, the defendants in this matter have been deposed in
3 order to obtain and preserve their sworn testimony. With corporate defendants this has long
4 been accomplished pursuant to a deposition notice that requires the defendant to identify,
5 prepare, and produce a person most knowledgeable (or custodian of records) to testify to the
6 topics identified in the notice. Given the nature of mass torts, a number of depositions are
7 oftentimes in existence for a given defendant which was previously noticed and taken in a prior
8 case. For a number of reasons, including efficiency and cost, it is common for testimony
9 obtained in the deposition of a defendant in another case on topics relevant to the present matter
10 to be presented in evidence at trial. That is likely to occur in the present case.
11 Excerpts from these prior depositions are admissible in the present trial under both the
12 California Code of Civil Procedure (“C.C.P.”) and the under California Evidence Code
13 (“C.E.C.”) as party admissions. The deposition excerpts are party admissions under C.E.C.
14 section 1220, inter alia. Under this section, any statement made by a declarant or deponent who
15 is a party, or the agent of a party, to a lawsuit, which is offered as evidence against that party, is
16 admissible in any lawsuit. (See also 1 Witkin, Cal. Evid, Hearsay § 91(2).) The designations
17 will be relevant to this matter, and they will not be inadmissible hearsay as they will meet the
18 requirements of the former testimony hearsay exception. Additionally, they are all adverse
19 party depositions, which can be used as substantive evidence against that party (i.e., as an
20 admission) under California Code of Civil Procedure (“C.C.P.”) section 2025.620(b).
21 Defendants will often rely on Wahlgren v. Coleco Industries, Inc. (1984) 151
22 Cal.App.3d 543 for the blanket proposition that a party has a different motive at a deposition
23 than at trial and that such deposition testimony is limited to discovery and has a “limited
24 purpose and utility.” (Id. at 546.) The assumptions about deposition testimony made by the
25 Wahlgren court were recently laid to rest by the court in Berroteran v Superior Court (2019) 41
26 Cal.App.5th 518 which held that “these assumptions, however, are unsupported by legal
27 authority, inconsistent with modern trials and the omnipresence of videotaped depositions
28 ///
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 during trail, and contrary to persuasive federal law interpreting an analogous hearsay exception
2 [Federal Rules of Evidence (28 U.S.C.)].” (Id. at 521.)
3 Furthermore, defendants’ usual arguments that the transcripts will be prejudicial,
4 confusing and misleading typically include nothing more than bare assertions that fail to
5 substantiate how they are prejudicial, confusing or misleading under C.E.C. section 352.
6 Finally, whether a notice was provided, or whether the designations include testimony that was
7 within either the explicit or implicit scope of the notice has no bearing on the admissibility of
8 the designations that plaintiffs intend to offer.
9 II. ARGUMENT
10 A. THE PRIOR DEPOSITION TESTIMONY OF A DEFENDANT’S PERSON
MOST KNOWLEDGEABLE IS ADMISSIBLE AS A PARTY ADMISSION
11
12 An “admission” is a statement made by a party to a proceeding suggesting an inference
13 as to any fact in dispute or relevant to any such fact, and to be admissible it must tend to prove
14 or have a material bearing on the issues in the case. (C.E.C. § 1220; Legg v. United Ben. Life
15 Ins. Co. (1951) 103 Cal.App.2d 228.) Evidence of a statement is not made inadmissible by the
16 hearsay rule when offered against the declarant in an action to which he/she is a party in either
17 his/her individual or representative capacity, regardless of whether the statement was made in
18 his/her individual or representative capacity. (C.E.C. § 1220.) If the deponent named is not a
19 natural person . . . the deponent shall designate and produce at the deposition those of it
20 officers, directors, managing agents, employees, or agents who are most qualified to testify on
21 its behalf as to those matters to the extent of any information known or reasonably available to
22 the deponent. (C.C.P. § 2025.230.)
23 Defendants cannot avoid the receipt in evidence of party admissions made by their own
24 corporate representatives. Defendants typically object to the introduction of this testimony in its
25 entirety pursuant to C.E.C. sections 1291 and 1292, claiming that the party admission prior
26 deposition testimony is inadmissible hearsay, because either: (1) the deponent may not be
27 unavailable; and/or, (2) in the former (asbestos) action (virtually identical to this one), the same
28 defendant somehow did not have the right and opportunity to cross-examine the deponent with
2
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 an interest and motive similar to that which the defendant has in our present case. However,
2 C.E.C. sections 1291 and 1292 are clearly not applicable here.1 This is clear from a plain
3 reading of the statutes. For example, C.E.C. section 1292 provides: “(a) Evidence of former
4 testimony is not made inadmissible by the hearsay rule if . . .” But C.E.C. section already
5 provides that evidence of a statement by a party “is not made inadmissible by the hearsay rule.”
6 Therefore, it is apparent that since a “party admission” is admissible in any event, the section
7 1292 “exception” is neither necessary nor applicable.
8 While hearsay is generally inadmissible, it is subject to several exceptions. One of
9 those exceptions is C.E.C. section 1220. The testimony plaintiffs will seek to introduce
10 here is subject to the party admission exception under the California rules governing
11 hearsay and therefore should be admitted. This is basic statutory law. For example, in
12 Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 524 (emphasis added), the court held:
13 Any statement, oral or written, made by him was admissible as to
him under the hearsay exception for party admissions. (See
14 Evid. Code, § 1220.) That includes prior testimony, whether
given in a deposition, during the arbitration hearing, in judgment
15 debtor proceedings, or in another matter. And because [the
deponent] was the manager ..., his statements were admissible as
16 to [the defendant entity] under the exceptions for party or
authorized admissions.... Testimony by other ... company
17 employees was admissible as authorized admissions, whether in
the form of declarations or depositions.
18
19 As noted above, Greenspan holds that not only is a person most knowledgeable’s former
20 testimony a party admission, but also the testimony of any company employee is a party
21 admission. Therefore, at a minimum, pursuant to C.E.C. section 1220 and Greenspan, in the
22 present case a defendant cannot avoid the receipt into evidence of party admissions made by its
23 own corporate representative that a defendant designated at the time of the deposition as its
24 person most knowledgeable. This sort of testimony is highly relevant. What is not relevant is
25 whether the deponent might be available or not, or whether similar interest or motive existed at
26
1
Defendants’ objections also typically rest on the assumption that the only purpose for which plaintiffs
27 would be offering prior deposition testimony is to prove the truth of the matter asserted.
Prior testimony may be
admissible under any hearsay exception, and it may be offered for non-hearsay purposes such as impeachment
28 and/or to prove bias of experts, to name only a few.
3
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 the time of the examination as defendants often argue misconstruing C.E.C. sections 1291 and
2 1292.2
3 The testimony that plaintiffs will seek to introduce are party admissions and therefore
4 admissible under C.E.C. section 1220. Furthermore, the excerpts are also admissible pursuant
5 to C.E.C. section 1222:
6 Evidence of a statement offered against a party is not made inadmissible by the
hearsay rule if:
7
(a) The statement was made by a person authorized by the party to
8 make a statement or statements for him concerning the subject
matter of the statement;
9 and
10 (b) The evidence is offered either after admission of evidence sufficient
to sustain a finding of such authority or, in the court’s discretion as to the
11 order of proof, subject to the admission of such evidence.
12 Thus, prior testimony of a person a defendant authorized to speak on its behalf is
13 admissible to prove the truth of the matters asserted, regardless of whether or not the declarant
14 is available. By definition, a defendant’s person most knowledgeable is authorized by the
15 defendant to speak on its behalf, and any prior testimony by the defendant’s person most
16 knowledgeable falls within the authorized admissions exception to the hearsay rule.3
17 ///
18
2
Even if such an objection was applicable (it is not), the deponents are deceased or located outside of
19 California and are in fact thus unavailable.Moreover, under C.E.C. § 1291, the defendant's interests and motive
for cross-examination in both proceedings need not be identical, only similar.(People v. Ogen (1985) 168
20 Cal.App.3d 611; People v. Harris, 118 P.3d 545 (2005); People v. Seijas, 114 P.3d 742 (2005); People v. Rice,
131 Cal.Rptr. 330 (1976).
21
3
Prior testimony may also be admissible if it constitutes a declaration against interest under Evidence
22 Code § 1230. A declaration against interest is admissible against any party to the litigation to the extent it is
relevant to an issue in the case.
(Estate of Huntington (1976) 58 Cal.App.3d 197, 211.) So long as plaintiffs
23 demonstrate that the witness has personal knowledge of the subject matter, and made a statement that was “so far
contrary to his/her interest that a reasonable person in his/her position would not have made the statement unless
24 he/she believed it to be true,” then plaintiffs are entitled to introduce any such statements as substantive proof.
(C.E.C. § 1230.)
25 Plaintiffs are also entitled to introduce prior deposition testimony of a defense corporate witness, as
substantive proof. (See C.E.C. § 1235.) Moreover, in the event that defendant’s corporate representative(s) do
26 testify live at trial, prior inconsistent statements are undoubtedly admissible for impeachment purposes.
Moreover,
if the requirements of § 1235 are met, the testimony is admissible anyway as substantive evidence – i.e., to prove
27 the truth of the matters asserted.
(See People v. Zapien (1993) 4 Cal.4th 929, 951; State of California v. Green
(1970) 399 U.S. 149, 150-151; see also People v. Sanders (1990) 221 Cal.App.3d 350, 402, fn. 10 [as substantive
28 evidence, prior inconsistent statement can support finding or judgment directly opposite witness’s trial testimony].)
4
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 Whether the former testimony was taken pursuant to a notice, whether a notice was
2 provided, or whether the designations include testimony that was within either the explicit or
3 implicit scope of the notice, all has no bearing on the admissibility of the designations. In
4 addressing this exact issue regarding Federal Rule 30(b)(6), which is substantially similar to
5 C.C.P. section 2025.230, the American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton,
6 96 Cal.App.4th 1017, 1042-1043 (2002) (emphasis added), court held:
7 THE RULE IS BEST READ AS FOLLOWS:
8 1) Rule 30(b)(6) obligates the responding corporation to provide a
witness who can answer questions regarding the subject matter
9 listed in the notice.
10 2) If the designated deponent cannot answer those questions, then
the corporation has failed to comply with its Rule 30(b)(6)
11 obligations and may be subject to sanctions, etc. The corporation
has an affirmative duty to produce a representative who can
12 answer questions that are both within the scope of the matters
described in the notice and are 'known or reasonably available' to
13 the corporation. Rule 30(b)(6) delineates this affirmative duty.
14 3) If the examining party asks questions outside the scope of
the matters described in the notice, the general deposition
15 rules govern (i.e. Fed.R. Civ.P. 26(b)(1)), so that relevant
questions may be asked and no special protection is conferred
16 on a deponent by virtue of the fact that the deposition was
noticed under 30(b)(6).
17
4) However, if the deponent does not know the answer to
18 questions outside the scope of the matters described in the notice,
then that is the examining party's problem.
19
This interpretation does not render the 'describe with
20 reasonable particularity' language 'superfluous'; rather, it
imposes an obligation on a corporation to provide someone
21 who can indeed answer the particular questions presaged by
the notice. Rule 30(b)(6) does not limit what can be asked at
22 deposition.
23 Since there is no specific limitation of what can be asked at
deposition, the general deposition standards govern. The
24 reason for adopting Rule 30(b)(6) was not to provide greater
notice or protections to corporate deponents, but rather to
25 have the right person present at deposition. The Rule is not
one of limitation but rather of specification within the broad
26 parameters of the discovery rules. This is made clear by both
the Advisory Committee's statement that 30(b)(6) 'should be
27 viewed as an added facility for discovery . . .' and the Rule's final
sentence: 'This subdivision (b)(6) does not preclude taking a
28 deposition by any other procedure authorized in these rules.'
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 Fed.R. Civ.P. 30(b)(6) advisory committee's note. This Court
sees no harm in allowing all relevant questions to be asked at
2 a Rule 30(b)(6) deposition or any incentive for an examining
party to somehow abuse this process.
3
In sum, this Court concludes that Rule 30(b)(6) cannot be used
4 to limit what is asked of a designated witness at a deposition.
Rather, the Rule simply defines a corporation's obligations
5 regarding whom they are obligated to produce for such a
deposition and what that witness is obligated to be able to
6 answer.’ (King v. Pratt & Whitney, supra, 161 F.R.D. 475, 476,
but see Paparelli v. Prudential Ins. Co. of America (D.Mass.
7 1985) 108 F.R.D. 727 [party must confine deposition to matters
stated "with reasonable particularity" in notice of deposition, but
8 counsel for other party could not properly instruct witness
not to answer questions on ground they went beyond subject
9 matter listed in notice of deposition].
10 B. DEFENDANTS TYPICALLY MISREPRESENT THE STATE OF THE LAW
REGARDING PRIOR DEPOSITIONS
11
12 Defendants typically misrepresent the state of the law in California regarding prior
13 depositions. The testimony that plaintiffs will seek to admit is admissible under both C.E.C.
14 sections 1291 and 1292.
15 C.E.C. section 1291 - Transcripts: Former Testimony Offered Against Party to Former
16 Proceeding states that:
17 (a) Evidence of former testimony is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and:
18 (1) The former testimony is offered against a person who offered
it in evidence in his own behalf on the former occasion or against
19 the successor-in-interest of such person; or (2) The party against
whom the former testimony is offered was a party to the
20 action or proceeding in which the testimony was given and
had the right and opportunity to cross-examine the declarant
21 with an interest and motive similar to that which he has at the
hearing. (b) The admissibility of former testimony under this
22 section is subject to the same limitations and objections as though
the declarant were testifying at the hearing, except that former
23 testimony offered under this section is not subject to:
(1) Objections to the form of the question which were not made at
24 the time the former testimony was given. (2) Objections based on
competency or privilege which did not exist at the time the former
25 testimony was given.
26 Moreover, C.E.C. section 240 - Unavailable as a Witness - provides for the use of
27 deposition testimony from declarants who are deceased, ill, or residents of a state other than
28 California:
6
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 (a) Except as otherwise provided in subdivision (b), "unavailable as a witness"
means that the declarant is any of the following:
2
(1) Exempted or precluded on the ground of privilege from testifying
3 concerning the matter to which his or her statement is relevant.
4 (2) Disqualified from testifying to the matter.
5 (3) Dead or unable to attend or to testify at the hearing because of then
existing physical or mental illness or infirmity.
6
(4) Absent from the hearing and the court is unable to compel his or her
7 attendance by its process.
8 (5) Absent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her
9 attendance by the court's process.
10 Finally, with regard to subsection (4), California Code of Civil Procedure section 1989
11 states: “A witness ... is not obliged to attend as a witness before any court, judge, justice or any
12 other officer, unless the witness is a resident within the state at the time of service.” Here, the
13 vast majority of defendants’ persons most knowledgeable are not residents of California and
14 many of them are no longer alive.
15 Further, the prior deposition testimony is admissible under C.E.C. section 1292 -
16 Transcripts: Former Testimony Offered Against A Person Not a Party to Former Proceeding,
17 which states:
18 (a) Evidence of former testimony is not made inadmissible by the
hearsay rule if: (1) The declarant is unavailable as a witness;
19 (2) The former testimony is offered in a civil action; and (3) The
issue is such that the party to the action or proceeding in
20 which the former testimony was given had the right and
opportunity to cross-examine the declarant with an interest
21 and motive similar to that which the party against whom the
testimony is offered has at the hearing. (b) The admissibility of
22 former testimony under this section is subject to the same
limitations and objections as though the declarant were testifying
23 at the hearing, except that former testimony offered under this
section is not subject to objections based on competency or
24 privilege which did not exist at the time the former testimony was
given.
25
26 Contrary to defendants’ usual contentions that their interests are actually adverse to the
27 parties in the prior action under Proposition 51, for the purpose of admitting prior testimony of
28 unavailable witnesses, a defendant’s interests and motive for cross-examination in both
7
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 proceedings need not be identical, only similar. (People v. Ogen (1985) 168 Cal.App.3d 611,
2 617; People v. Harris (2005) 37 Cal.4th 310, 333; People v. Seijas (2005) 36 Cal.4th 291, 303;
3 People v. Rice (1976) 59 Cal.App.3d 998, 1006.)
4 In Ogen, the defendant attempted to exclude his victim’s testimony against him in an
5 earlier rape and kidnaping case from his subsequent trial for her murder. Despite offering
6 different defenses, the court affirmed that the defendant’s motive of exoneration was
7 sufficiently “similar.” (Id. at 615.) Defendants in the prior actions share a similar interest with
8 defendants in this action in getting at the truth of the alleged exposures to asbestos at the
9 relevant jobsites. Defendants need not have asked the exact questions that would be asked in
10 this case: “[a]s long as defendant was given the opportunity for effective cross-examination, the
11 statutory requirements were satisfied; the admissibility of this evidence did not depend on
12 whether defendant availed himself fully of that opportunity.” (People v. Zapien, 4 Cal.4th 929,
13 975.)
14 Defendants often rely on Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d
15 543 for the blanket proposition that a party has a different motive at a deposition than at trial
16 and that deposition testimony is limited to discovery and has a “limited purpose and utility.” (Id.
17 at 546.) The assumptions about deposition testimony made by the Wahlgren court were recently
18 laid to rest by the court in Berroteran v Superior Court (2019) 41 Cal.App.5th 518 which held
19 that “these assumptions, however, are unsupported by legal authority, inconsistent with modern
20 trials and the omnipresence of videotaped depositions during trail, and contrary to persuasive
21 federal law interpreting an analogous hearsay exception [Federal Rules of Evidence (28
22 U.S.C.)].” (Id. at 521.)
23 Berroteran was a case involving the Ford Motor Company and a defect involving “the
24 6.0-liter diesel engine that Ford installed in a range of pickup trucks, sports utility vehicles, vans
25 and ambulances between 2003 and 2007.” (Id. at 522.) The plaintiff in Berroteran “alleged that
26 on March 25, 2006, he purchased a new model Ford F-250 truck. The truck had a defective 6.0-
27 liter diesel engine supplied by [Ford].” (Id. at 521.) Berroteran sought to introduce deposition
28 testimony from “prior litigations in which plaintiffs deposed Ford’s employees and former
8
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 employees involv[ing] allegations that Ford’s 6.0-liter diesel engine was defective.4 (Id. at
2 522.) In overruling the lower court’s granting of a motion in limine to exclude the videotaped
3 deposition testimony of nine of Ford’s employees and former employees, the Berroteran court
4 stated:
5 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,
6 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
7 witness in certain particulars. The “motives need not be identical, only similar.’”
(Id. at 532-533 [citing People v Harris supra at 333].)
8
***
9
Wahlgren – a 1984 case – cites no support for its assertions that a deposition is at
10 best outdated given the prevalence of videotaped deposition testimony in modern
trial practice. Wahlgren cites no authority for the proposition that examination of
11 one’s “client is to be avoided.” (Wahlgren, supra, 151 Cal.App.3d at p. 546.)
That blanket assumption appears inconsistent with the reality of often
12 overlapping lawsuits in different jurisdictions and the prospect that an important
witness could retire or otherwise becomes unavailable. Wahlgren’s analysis also
13 conflicts with the plain language of section 1291, subdivision (a)(2), which, on
its face is unqualified: The statute states that it applies to “the former testimony”
14 and is not limited to former “trial testimony.” (§ 1291, subd. (a(2).)” (Id. at 533-
534.)
15
16 The Berroteran court ultimately held that it was “undisputed that the depositions have
17 been admitted at trial in multiple cases, and thus did not serve only discovery purposes. For all
18 these reasons, the trial court abused its discretion in granting Ford’s motion to exclude the
19 [depositions].” (Id at. 536.)
20 Defendants have already explored the witness’s memory of its asbestos- containing
21 products, attempting to limit its liability. No conceivable alternative interest or motive exists.
22 Even if a defendant could point to a specific deposition, it should not be excluded if the witness
23 is unavailable, the deposition was taken in a civil action, and defendant cross-examined the
24 witness. Plaintiff only intends to offer depositions that meet the criteria of C.E.C. section 1292.
25
26 4
The prior litigation involved both federal multidistrict litigation as well as cases from other state courts
including: In re Navistar 6.0-Liter Diesel Engine Products Liability Litigation (MDL No. 2223); Brown v. Ford
27 Motor Co. (Super. Ct. Butte County, No. 160060); Preston v. Ford Motor Co. (Super. Ct. El Dorado County, No.
SC20130071; and, Williams A. Ambulance, Inc. v. Ford Motor Co. (E.D. Tex., No. 1:06-CV-00776). (Berroteran
28 at 522-526.)
9
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 C. DEFENDANTS WILL BE UNABLE TO DEMONSTRATE HOW THE
RELEVANT FORMER TESTIMONY IS UNDULY PREJUDICIAL,
2 CONFUSING OR MISLEADING UNDER EVIDENCE CODE § 352
3 Defendants’ typical objections as to “undue prejudice” go to the weight of the evidence,
4 not its admissibility. California Evidence Code section 352 does not require the exclusion of
5 any evidence that defendant considers to be prejudicial or misleading; the test is whether any
6 alleged dangers of undue prejudice or misleading the jury substantially outweigh the probative
7 value of the evidence. California Evidence Code section 352 provides that the Court, in its
8 discretion, may exclude evidence when its probative value is substantially outweighed by the
9 danger that its introduction will result in undue prejudice, consumption of time, or misleading
10 the jury. Defendants will be unable to meet this high bar in this instance.
11 CONCLUSION
12 For the reasons stated herein, the Court should allow plaintiffs to introduce and admit
13 into evidence certain excerpts from the prior deposition testimony of certain defendants’
14 persons most knowledgeable because the designated testimony are party admissions under
15 C.E.C. sections 1220 and 1222, whether or not the testimony was within the scope of any
16 notice, and C.E.C. sections 1291and 1292 are inapplicable.
17 In sum, party admissions in the form of duly sworn answers to questions at the
18 deposition of a corporate representative are admissible – indeed they are sometimes preferable
19 sources of relevant evidence for the jury. In the same way that we ask jurors to regard
20 corporations the same way they do individuals for their decisions, what better way to
21 demonstrate the corporations’ admissions than the through the testimony of its persons most
22 knowledgeable that plaintiffs seek to introduce, regardless of when or where it was confirmed
23 under oath.
24 Dated: 12/28/21 BRAYTON˜PURCELL LLP
25
26 By: /s/ James P. Nevin
James P. Nevin
27 Attorneys for Plaintiffs
28
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
1 PROOF OF SERVICE BY FILE & SERVEXPRESS
2 I am employed in the County of Marin, State of California. I am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
3 P.O. Box 6169, Novato, California, 94948-6169.
4 On December 28, 2021, I electronically served (E-Service) the following documents:
5 PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR
TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE
6 CODE §§ 1220 AND 1222
7 on the interested parties in this action by causing File & ServeXpress E-service program to
transmit a true copy thereof to the following party(ies):
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9 SEE ATTACHED SERVICE LIST
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11 The above document was transmitted by File & ServeXpress E-Service and the
transmission was reported as complete and without error.
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Executed on December 28, 2021, at Santa Rosa, California.
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14 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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18 ___________________________
Angela Porterfield
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26 Carol Chulick, et al. v. Riley Power Inc., et al.
San Francisco Superior Court Case No. CGC-19-276757
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PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT
TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222
Brayton-Purcell Service List
Date Created: 12/27/2021 01:33 PM
Matter Numbers: 26244.006-Carol Louise Chulick
Run by: Angela Porterfield
Foley & Mansfield PLLP - Walnut
Preview
1 GILBERT L. PURCELL, ESQ., S.B. #113603 JAMES P. NEVIN, ESQ., S.B. #220816 2 jnevin@braytonlaw.com BRAYTON˜PURCELL LLP ELECTRONICALLY 3 Attorneys at Law 222 Rush Landing Road F I L E D Superior Court of California, 4 P.O. Box 6169 County of San Francisco Novato, California 94948 12/28/2021 5 (415) 898-1555 Clerk of the Court BY: YOLANDA TABO-RAMIREZ 6 Attorneys for Plaintiffs Deputy Clerk 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 CAROL CHULICK, as Successor-in- ) ASBESTOS Interest to and as Wrongful Death Heir of ) No. CGC-19-276757 12 JOHN CHULICK, Deceased; and ) NOVATO, CALIFORNIA 94948-6169 DEBORAH HAGEN and JOLEEN ) PLAINTIFFS’ TRIAL BRIEF ON THE BRAYTON˜PURCELL LLP 222 RUSH LANDING ROAD 13 HAGLER, as Wrongful Death Heirs of ) ADMISSIBILITY OF DEFENDANTS’ ATTORNEYS AT LAW JOHN CHULICK, Deceased, ) PRIOR TESTIMONY AS PARTY (415) 898-1555 P O BOX 6169 14 ) ADMISSIONS PURSUANT TO Plaintiffs, ) CALIFORNIA EVIDENCE CODE §§ 1220 15 vs. ) AND 1222 ) 16 RILEY POWER INC., et al., ) ) Trial Date: December 27, 2021 17 Defendants. ) Dept.: 502; Honorable Jeffrey S. Ross 18 19 20 21 22 23 24 25 26 27 28 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 I. INTRODUCTION 2 As is the case with the plaintiffs, the defendants in this matter have been deposed in 3 order to obtain and preserve their sworn testimony. With corporate defendants this has long 4 been accomplished pursuant to a deposition notice that requires the defendant to identify, 5 prepare, and produce a person most knowledgeable (or custodian of records) to testify to the 6 topics identified in the notice. Given the nature of mass torts, a number of depositions are 7 oftentimes in existence for a given defendant which was previously noticed and taken in a prior 8 case. For a number of reasons, including efficiency and cost, it is common for testimony 9 obtained in the deposition of a defendant in another case on topics relevant to the present matter 10 to be presented in evidence at trial. That is likely to occur in the present case. 11 Excerpts from these prior depositions are admissible in the present trial under both the 12 California Code of Civil Procedure (“C.C.P.”) and the under California Evidence Code 13 (“C.E.C.”) as party admissions. The deposition excerpts are party admissions under C.E.C. 14 section 1220, inter alia. Under this section, any statement made by a declarant or deponent who 15 is a party, or the agent of a party, to a lawsuit, which is offered as evidence against that party, is 16 admissible in any lawsuit. (See also 1 Witkin, Cal. Evid, Hearsay § 91(2).) The designations 17 will be relevant to this matter, and they will not be inadmissible hearsay as they will meet the 18 requirements of the former testimony hearsay exception. Additionally, they are all adverse 19 party depositions, which can be used as substantive evidence against that party (i.e., as an 20 admission) under California Code of Civil Procedure (“C.C.P.”) section 2025.620(b). 21 Defendants will often rely on Wahlgren v. Coleco Industries, Inc. (1984) 151 22 Cal.App.3d 543 for the blanket proposition that a party has a different motive at a deposition 23 than at trial and that such deposition testimony is limited to discovery and has a “limited 24 purpose and utility.” (Id. at 546.) The assumptions about deposition testimony made by the 25 Wahlgren court were recently laid to rest by the court in Berroteran v Superior Court (2019) 41 26 Cal.App.5th 518 which held that “these assumptions, however, are unsupported by legal 27 authority, inconsistent with modern trials and the omnipresence of videotaped depositions 28 /// 1 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 during trail, and contrary to persuasive federal law interpreting an analogous hearsay exception 2 [Federal Rules of Evidence (28 U.S.C.)].” (Id. at 521.) 3 Furthermore, defendants’ usual arguments that the transcripts will be prejudicial, 4 confusing and misleading typically include nothing more than bare assertions that fail to 5 substantiate how they are prejudicial, confusing or misleading under C.E.C. section 352. 6 Finally, whether a notice was provided, or whether the designations include testimony that was 7 within either the explicit or implicit scope of the notice has no bearing on the admissibility of 8 the designations that plaintiffs intend to offer. 9 II. ARGUMENT 10 A. THE PRIOR DEPOSITION TESTIMONY OF A DEFENDANT’S PERSON MOST KNOWLEDGEABLE IS ADMISSIBLE AS A PARTY ADMISSION 11 12 An “admission” is a statement made by a party to a proceeding suggesting an inference 13 as to any fact in dispute or relevant to any such fact, and to be admissible it must tend to prove 14 or have a material bearing on the issues in the case. (C.E.C. § 1220; Legg v. United Ben. Life 15 Ins. Co. (1951) 103 Cal.App.2d 228.) Evidence of a statement is not made inadmissible by the 16 hearsay rule when offered against the declarant in an action to which he/she is a party in either 17 his/her individual or representative capacity, regardless of whether the statement was made in 18 his/her individual or representative capacity. (C.E.C. § 1220.) If the deponent named is not a 19 natural person . . . the deponent shall designate and produce at the deposition those of it 20 officers, directors, managing agents, employees, or agents who are most qualified to testify on 21 its behalf as to those matters to the extent of any information known or reasonably available to 22 the deponent. (C.C.P. § 2025.230.) 23 Defendants cannot avoid the receipt in evidence of party admissions made by their own 24 corporate representatives. Defendants typically object to the introduction of this testimony in its 25 entirety pursuant to C.E.C. sections 1291 and 1292, claiming that the party admission prior 26 deposition testimony is inadmissible hearsay, because either: (1) the deponent may not be 27 unavailable; and/or, (2) in the former (asbestos) action (virtually identical to this one), the same 28 defendant somehow did not have the right and opportunity to cross-examine the deponent with 2 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 an interest and motive similar to that which the defendant has in our present case. However, 2 C.E.C. sections 1291 and 1292 are clearly not applicable here.1 This is clear from a plain 3 reading of the statutes. For example, C.E.C. section 1292 provides: “(a) Evidence of former 4 testimony is not made inadmissible by the hearsay rule if . . .” But C.E.C. section already 5 provides that evidence of a statement by a party “is not made inadmissible by the hearsay rule.” 6 Therefore, it is apparent that since a “party admission” is admissible in any event, the section 7 1292 “exception” is neither necessary nor applicable. 8 While hearsay is generally inadmissible, it is subject to several exceptions. One of 9 those exceptions is C.E.C. section 1220. The testimony plaintiffs will seek to introduce 10 here is subject to the party admission exception under the California rules governing 11 hearsay and therefore should be admitted. This is basic statutory law. For example, in 12 Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 524 (emphasis added), the court held: 13 Any statement, oral or written, made by him was admissible as to him under the hearsay exception for party admissions. (See 14 Evid. Code, § 1220.) That includes prior testimony, whether given in a deposition, during the arbitration hearing, in judgment 15 debtor proceedings, or in another matter. And because [the deponent] was the manager ..., his statements were admissible as 16 to [the defendant entity] under the exceptions for party or authorized admissions.... Testimony by other ... company 17 employees was admissible as authorized admissions, whether in the form of declarations or depositions. 18 19 As noted above, Greenspan holds that not only is a person most knowledgeable’s former 20 testimony a party admission, but also the testimony of any company employee is a party 21 admission. Therefore, at a minimum, pursuant to C.E.C. section 1220 and Greenspan, in the 22 present case a defendant cannot avoid the receipt into evidence of party admissions made by its 23 own corporate representative that a defendant designated at the time of the deposition as its 24 person most knowledgeable. This sort of testimony is highly relevant. What is not relevant is 25 whether the deponent might be available or not, or whether similar interest or motive existed at 26 1 Defendants’ objections also typically rest on the assumption that the only purpose for which plaintiffs 27 would be offering prior deposition testimony is to prove the truth of the matter asserted. Prior testimony may be admissible under any hearsay exception, and it may be offered for non-hearsay purposes such as impeachment 28 and/or to prove bias of experts, to name only a few. 3 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 the time of the examination as defendants often argue misconstruing C.E.C. sections 1291 and 2 1292.2 3 The testimony that plaintiffs will seek to introduce are party admissions and therefore 4 admissible under C.E.C. section 1220. Furthermore, the excerpts are also admissible pursuant 5 to C.E.C. section 1222: 6 Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: 7 (a) The statement was made by a person authorized by the party to 8 make a statement or statements for him concerning the subject matter of the statement; 9 and 10 (b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the 11 order of proof, subject to the admission of such evidence. 12 Thus, prior testimony of a person a defendant authorized to speak on its behalf is 13 admissible to prove the truth of the matters asserted, regardless of whether or not the declarant 14 is available. By definition, a defendant’s person most knowledgeable is authorized by the 15 defendant to speak on its behalf, and any prior testimony by the defendant’s person most 16 knowledgeable falls within the authorized admissions exception to the hearsay rule.3 17 /// 18 2 Even if such an objection was applicable (it is not), the deponents are deceased or located outside of 19 California and are in fact thus unavailable.Moreover, under C.E.C. § 1291, the defendant's interests and motive for cross-examination in both proceedings need not be identical, only similar.(People v. Ogen (1985) 168 20 Cal.App.3d 611; People v. Harris, 118 P.3d 545 (2005); People v. Seijas, 114 P.3d 742 (2005); People v. Rice, 131 Cal.Rptr. 330 (1976). 21 3 Prior testimony may also be admissible if it constitutes a declaration against interest under Evidence 22 Code § 1230. A declaration against interest is admissible against any party to the litigation to the extent it is relevant to an issue in the case. (Estate of Huntington (1976) 58 Cal.App.3d 197, 211.) So long as plaintiffs 23 demonstrate that the witness has personal knowledge of the subject matter, and made a statement that was “so far contrary to his/her interest that a reasonable person in his/her position would not have made the statement unless 24 he/she believed it to be true,” then plaintiffs are entitled to introduce any such statements as substantive proof. (C.E.C. § 1230.) 25 Plaintiffs are also entitled to introduce prior deposition testimony of a defense corporate witness, as substantive proof. (See C.E.C. § 1235.) Moreover, in the event that defendant’s corporate representative(s) do 26 testify live at trial, prior inconsistent statements are undoubtedly admissible for impeachment purposes. Moreover, if the requirements of § 1235 are met, the testimony is admissible anyway as substantive evidence – i.e., to prove 27 the truth of the matters asserted. (See People v. Zapien (1993) 4 Cal.4th 929, 951; State of California v. Green (1970) 399 U.S. 149, 150-151; see also People v. Sanders (1990) 221 Cal.App.3d 350, 402, fn. 10 [as substantive 28 evidence, prior inconsistent statement can support finding or judgment directly opposite witness’s trial testimony].) 4 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 Whether the former testimony was taken pursuant to a notice, whether a notice was 2 provided, or whether the designations include testimony that was within either the explicit or 3 implicit scope of the notice, all has no bearing on the admissibility of the designations. In 4 addressing this exact issue regarding Federal Rule 30(b)(6), which is substantially similar to 5 C.C.P. section 2025.230, the American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 6 96 Cal.App.4th 1017, 1042-1043 (2002) (emphasis added), court held: 7 THE RULE IS BEST READ AS FOLLOWS: 8 1) Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter 9 listed in the notice. 10 2) If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) 11 obligations and may be subject to sanctions, etc. The corporation has an affirmative duty to produce a representative who can 12 answer questions that are both within the scope of the matters described in the notice and are 'known or reasonably available' to 13 the corporation. Rule 30(b)(6) delineates this affirmative duty. 14 3) If the examining party asks questions outside the scope of the matters described in the notice, the general deposition 15 rules govern (i.e. Fed.R. Civ.P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred 16 on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6). 17 4) However, if the deponent does not know the answer to 18 questions outside the scope of the matters described in the notice, then that is the examining party's problem. 19 This interpretation does not render the 'describe with 20 reasonable particularity' language 'superfluous'; rather, it imposes an obligation on a corporation to provide someone 21 who can indeed answer the particular questions presaged by the notice. Rule 30(b)(6) does not limit what can be asked at 22 deposition. 23 Since there is no specific limitation of what can be asked at deposition, the general deposition standards govern. The 24 reason for adopting Rule 30(b)(6) was not to provide greater notice or protections to corporate deponents, but rather to 25 have the right person present at deposition. The Rule is not one of limitation but rather of specification within the broad 26 parameters of the discovery rules. This is made clear by both the Advisory Committee's statement that 30(b)(6) 'should be 27 viewed as an added facility for discovery . . .' and the Rule's final sentence: 'This subdivision (b)(6) does not preclude taking a 28 deposition by any other procedure authorized in these rules.' 5 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 Fed.R. Civ.P. 30(b)(6) advisory committee's note. This Court sees no harm in allowing all relevant questions to be asked at 2 a Rule 30(b)(6) deposition or any incentive for an examining party to somehow abuse this process. 3 In sum, this Court concludes that Rule 30(b)(6) cannot be used 4 to limit what is asked of a designated witness at a deposition. Rather, the Rule simply defines a corporation's obligations 5 regarding whom they are obligated to produce for such a deposition and what that witness is obligated to be able to 6 answer.’ (King v. Pratt & Whitney, supra, 161 F.R.D. 475, 476, but see Paparelli v. Prudential Ins. Co. of America (D.Mass. 7 1985) 108 F.R.D. 727 [party must confine deposition to matters stated "with reasonable particularity" in notice of deposition, but 8 counsel for other party could not properly instruct witness not to answer questions on ground they went beyond subject 9 matter listed in notice of deposition]. 10 B. DEFENDANTS TYPICALLY MISREPRESENT THE STATE OF THE LAW REGARDING PRIOR DEPOSITIONS 11 12 Defendants typically misrepresent the state of the law in California regarding prior 13 depositions. The testimony that plaintiffs will seek to admit is admissible under both C.E.C. 14 sections 1291 and 1292. 15 C.E.C. section 1291 - Transcripts: Former Testimony Offered Against Party to Former 16 Proceeding states that: 17 (a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: 18 (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against 19 the successor-in-interest of such person; or (2) The party against whom the former testimony is offered was a party to the 20 action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant 21 with an interest and motive similar to that which he has at the hearing. (b) The admissibility of former testimony under this 22 section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former 23 testimony offered under this section is not subject to: (1) Objections to the form of the question which were not made at 24 the time the former testimony was given. (2) Objections based on competency or privilege which did not exist at the time the former 25 testimony was given. 26 Moreover, C.E.C. section 240 - Unavailable as a Witness - provides for the use of 27 deposition testimony from declarants who are deceased, ill, or residents of a state other than 28 California: 6 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 (a) Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following: 2 (1) Exempted or precluded on the ground of privilege from testifying 3 concerning the matter to which his or her statement is relevant. 4 (2) Disqualified from testifying to the matter. 5 (3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity. 6 (4) Absent from the hearing and the court is unable to compel his or her 7 attendance by its process. 8 (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her 9 attendance by the court's process. 10 Finally, with regard to subsection (4), California Code of Civil Procedure section 1989 11 states: “A witness ... is not obliged to attend as a witness before any court, judge, justice or any 12 other officer, unless the witness is a resident within the state at the time of service.” Here, the 13 vast majority of defendants’ persons most knowledgeable are not residents of California and 14 many of them are no longer alive. 15 Further, the prior deposition testimony is admissible under C.E.C. section 1292 - 16 Transcripts: Former Testimony Offered Against A Person Not a Party to Former Proceeding, 17 which states: 18 (a) Evidence of former testimony is not made inadmissible by the hearsay rule if: (1) The declarant is unavailable as a witness; 19 (2) The former testimony is offered in a civil action; and (3) The issue is such that the party to the action or proceeding in 20 which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest 21 and motive similar to that which the party against whom the testimony is offered has at the hearing. (b) The admissibility of 22 former testimony under this section is subject to the same limitations and objections as though the declarant were testifying 23 at the hearing, except that former testimony offered under this section is not subject to objections based on competency or 24 privilege which did not exist at the time the former testimony was given. 25 26 Contrary to defendants’ usual contentions that their interests are actually adverse to the 27 parties in the prior action under Proposition 51, for the purpose of admitting prior testimony of 28 unavailable witnesses, a defendant’s interests and motive for cross-examination in both 7 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 proceedings need not be identical, only similar. (People v. Ogen (1985) 168 Cal.App.3d 611, 2 617; People v. Harris (2005) 37 Cal.4th 310, 333; People v. Seijas (2005) 36 Cal.4th 291, 303; 3 People v. Rice (1976) 59 Cal.App.3d 998, 1006.) 4 In Ogen, the defendant attempted to exclude his victim’s testimony against him in an 5 earlier rape and kidnaping case from his subsequent trial for her murder. Despite offering 6 different defenses, the court affirmed that the defendant’s motive of exoneration was 7 sufficiently “similar.” (Id. at 615.) Defendants in the prior actions share a similar interest with 8 defendants in this action in getting at the truth of the alleged exposures to asbestos at the 9 relevant jobsites. Defendants need not have asked the exact questions that would be asked in 10 this case: “[a]s long as defendant was given the opportunity for effective cross-examination, the 11 statutory requirements were satisfied; the admissibility of this evidence did not depend on 12 whether defendant availed himself fully of that opportunity.” (People v. Zapien, 4 Cal.4th 929, 13 975.) 14 Defendants often rely on Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 15 543 for the blanket proposition that a party has a different motive at a deposition than at trial 16 and that deposition testimony is limited to discovery and has a “limited purpose and utility.” (Id. 17 at 546.) The assumptions about deposition testimony made by the Wahlgren court were recently 18 laid to rest by the court in Berroteran v Superior Court (2019) 41 Cal.App.5th 518 which held 19 that “these assumptions, however, are unsupported by legal authority, inconsistent with modern 20 trials and the omnipresence of videotaped depositions during trail, and contrary to persuasive 21 federal law interpreting an analogous hearsay exception [Federal Rules of Evidence (28 22 U.S.C.)].” (Id. at 521.) 23 Berroteran was a case involving the Ford Motor Company and a defect involving “the 24 6.0-liter diesel engine that Ford installed in a range of pickup trucks, sports utility vehicles, vans 25 and ambulances between 2003 and 2007.” (Id. at 522.) The plaintiff in Berroteran “alleged that 26 on March 25, 2006, he purchased a new model Ford F-250 truck. The truck had a defective 6.0- 27 liter diesel engine supplied by [Ford].” (Id. at 521.) Berroteran sought to introduce deposition 28 testimony from “prior litigations in which plaintiffs deposed Ford’s employees and former 8 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 employees involv[ing] allegations that Ford’s 6.0-liter diesel engine was defective.4 (Id. at 2 522.) In overruling the lower court’s granting of a motion in limine to exclude the videotaped 3 deposition testimony of nine of Ford’s employees and former employees, the Berroteran court 4 stated: 5 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, 6 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 7 witness in certain particulars. The “motives need not be identical, only similar.’” (Id. at 532-533 [citing People v Harris supra at 333].) 8 *** 9 Wahlgren – a 1984 case – cites no support for its assertions that a deposition is at 10 best outdated given the prevalence of videotaped deposition testimony in modern trial practice. Wahlgren cites no authority for the proposition that examination of 11 one’s “client is to be avoided.” (Wahlgren, supra, 151 Cal.App.3d at p. 546.) That blanket assumption appears inconsistent with the reality of often 12 overlapping lawsuits in different jurisdictions and the prospect that an important witness could retire or otherwise becomes unavailable. Wahlgren’s analysis also 13 conflicts with the plain language of section 1291, subdivision (a)(2), which, on its face is unqualified: The statute states that it applies to “the former testimony” 14 and is not limited to former “trial testimony.” (§ 1291, subd. (a(2).)” (Id. at 533- 534.) 15 16 The Berroteran court ultimately held that it was “undisputed that the depositions have 17 been admitted at trial in multiple cases, and thus did not serve only discovery purposes. For all 18 these reasons, the trial court abused its discretion in granting Ford’s motion to exclude the 19 [depositions].” (Id at. 536.) 20 Defendants have already explored the witness’s memory of its asbestos- containing 21 products, attempting to limit its liability. No conceivable alternative interest or motive exists. 22 Even if a defendant could point to a specific deposition, it should not be excluded if the witness 23 is unavailable, the deposition was taken in a civil action, and defendant cross-examined the 24 witness. Plaintiff only intends to offer depositions that meet the criteria of C.E.C. section 1292. 25 26 4 The prior litigation involved both federal multidistrict litigation as well as cases from other state courts including: In re Navistar 6.0-Liter Diesel Engine Products Liability Litigation (MDL No. 2223); Brown v. Ford 27 Motor Co. (Super. Ct. Butte County, No. 160060); Preston v. Ford Motor Co. (Super. Ct. El Dorado County, No. SC20130071; and, Williams A. Ambulance, Inc. v. Ford Motor Co. (E.D. Tex., No. 1:06-CV-00776). (Berroteran 28 at 522-526.) 9 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 C. DEFENDANTS WILL BE UNABLE TO DEMONSTRATE HOW THE RELEVANT FORMER TESTIMONY IS UNDULY PREJUDICIAL, 2 CONFUSING OR MISLEADING UNDER EVIDENCE CODE § 352 3 Defendants’ typical objections as to “undue prejudice” go to the weight of the evidence, 4 not its admissibility. California Evidence Code section 352 does not require the exclusion of 5 any evidence that defendant considers to be prejudicial or misleading; the test is whether any 6 alleged dangers of undue prejudice or misleading the jury substantially outweigh the probative 7 value of the evidence. California Evidence Code section 352 provides that the Court, in its 8 discretion, may exclude evidence when its probative value is substantially outweighed by the 9 danger that its introduction will result in undue prejudice, consumption of time, or misleading 10 the jury. Defendants will be unable to meet this high bar in this instance. 11 CONCLUSION 12 For the reasons stated herein, the Court should allow plaintiffs to introduce and admit 13 into evidence certain excerpts from the prior deposition testimony of certain defendants’ 14 persons most knowledgeable because the designated testimony are party admissions under 15 C.E.C. sections 1220 and 1222, whether or not the testimony was within the scope of any 16 notice, and C.E.C. sections 1291and 1292 are inapplicable. 17 In sum, party admissions in the form of duly sworn answers to questions at the 18 deposition of a corporate representative are admissible – indeed they are sometimes preferable 19 sources of relevant evidence for the jury. In the same way that we ask jurors to regard 20 corporations the same way they do individuals for their decisions, what better way to 21 demonstrate the corporations’ admissions than the through the testimony of its persons most 22 knowledgeable that plaintiffs seek to introduce, regardless of when or where it was confirmed 23 under oath. 24 Dated: 12/28/21 BRAYTON˜PURCELL LLP 25 26 By: /s/ James P. Nevin James P. Nevin 27 Attorneys for Plaintiffs 28 10 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 1 PROOF OF SERVICE BY FILE & SERVEXPRESS 2 I am employed in the County of Marin, State of California. I am over the age of 18 years and am not a party to the within action. My business address is 222 Rush Landing Road, 3 P.O. Box 6169, Novato, California, 94948-6169. 4 On December 28, 2021, I electronically served (E-Service) the following documents: 5 PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE 6 CODE §§ 1220 AND 1222 7 on the interested parties in this action by causing File & ServeXpress E-service program to transmit a true copy thereof to the following party(ies): 8 9 SEE ATTACHED SERVICE LIST 10 11 The above document was transmitted by File & ServeXpress E-Service and the transmission was reported as complete and without error. 12 Executed on December 28, 2021, at Santa Rosa, California. 13 14 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 15 16 A 17 18 ___________________________ Angela Porterfield 19 20 21 22 23 24 25 26 Carol Chulick, et al. v. Riley Power Inc., et al. San Francisco Superior Court Case No. CGC-19-276757 27 28 11 K:\Injured\26244\TRIAL\brf pmk depo as 1220 1222 party admission.wpd JPN PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF DEFENDANTS’ PRIOR TESTIMONY AS PARTY ADMISSIONS PURSUANT TO CALIFORNIA EVIDENCE CODE §§ 1220 AND 1222 Brayton-Purcell Service List Date Created: 12/27/2021 01:33 PM Matter Numbers: 26244.006-Carol Louise Chulick Run by: Angela Porterfield Foley & Mansfield PLLP - Walnut