Judge: Laura A. Seigle, Case: 22STCV04682, Date: 2022-12-20 Tentative Ruling
Case Number: 22STCV04682 Hearing Date: December 20, 2022 Dept: 15
[TENTATIVE] ORDER RE OBJECTIONS
At some point in October
2022 Plaintiff identified prior testimony.
Because Plaintiff did not file her list of former testimony, the court
relies on Defendants’ description of that list.
According to various Defendants, when the parties exchanged lists of
prior testimony in October 2022, Plaintiff listed the prior testimony of Keith Lehman, Don Ferry, Henry Mulryan, John Hopkins, Ph.D.,
Karen Abravanel, Karojae Bryan, Lisa Gallo, Gina Grant, Wsewolod Luckewicz,
Vincent Reardon, Janice Teal, Timothy Jefopoulos, Daniella Urbach-Ross, and
Paul Vincenti.
Thereafter, various Defendants
filed general hearsay objections to the transcripts, and on November 30, 2022,
the court issued a ruling on those objections.
The Final Status Conference was on December 5, 2022, which the court
continued to December 12, 2022 and then December 19, 2022 because the parties
were not ready for trial.
On December 9, 2022,
Defendant Whittaker, Clark & Daniels, Inc. (“Defendant”) filed objections to
new designations of former testimony made by Plaintiff. Defendant states that on December 1, 2022,
Plaintiff designated testimony from Paul Vincenti dated August 18, 2020, August
19, 2020, September 24, 2020, and September 30, 2020. On December 6, 2022, Plaintiff designated
former testimony from depositions of Lisa Gallo on August 9, 2021 and February
28, 2022, Jack Linard on February 3-4, 2021 and October 19, 2022, and Mary
Leech on November 16, 2022 in this case.
On December 15, 2022,
Plaintiff filed a response stating Plaintiff had agreements with The Mennen Company
and Avon to bring corporate representatives to testify at trial, and when those
defendants settled, Plaintiff then needed to designate deposition testimony. Plaintiff does not state who Gallo and
Vincenti represent. From earlier
objections filed by other parties, it appears that Gallo previously testified
as Avon’s person most knowledgeable and Vincenti previously testified as Colgate-Palmolive
Company’s person most knowledgeable. (See
Nov. 30, 2022 Order.) Plaintiff states
Linard previously testified as the corporate representative of Conopco, Inc.,
but Plaintiff does not state she had an agreement with Conopco, Inc to bring a
representative to trial. Plaintiff does
not state why she did not timely designate Linard’s prior testimony. Plaintiff has settled with Avon, Colgate, and
Conopco and therefore they will not be parties to the trial.
Defendant objects to the
former testimony of these four witnesses as hearsay and inadmissible under
Evidence Code section 1291 and 1292 and Berroteran v. Superior Court (2002) 12 Cal.5th 867. Section 1291 and 1292 state that former
testimony is not inadmissible hearsay if the declarant is unavailable and Defendant
or a party in the prior action had the right and opportunity to cross-examine
the declarant with an interest and motive similar to that which Defendant has
in this case. The party seeking
admission of former testimony has the burden of proving each of these
elements. (Berroteran, supra, 12 Cal.5th at p. 898.)
In Berroteran, the California Supreme Court explained
that Evidence Code section 1291 treats former deposition testimony differently
than former trial testimony. (Berroteran,
supra, 12 Cal. 5th at p. 891.) “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.” (Id.
at p. 892.) Also, even if an opposing
party has an interest in cross-examination, the opportunity may not be ideal if
discovery is ongoing and the evidentiary record is not yet complete. (Id. at pp. 892-893.) However, sometimes a deposition is intended
to preserve testimony for trial. (Id.
at p. 894.) Therefore, “[t]he party
seeking admission of prior deposition testimony under [section 1291] 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. (Id. at p.
894.) “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.” (Id. at p.
895.)
The Berroteran court outlined
the following factors to consider in determining whether former deposition
testimony is admissible under section 1291:
(a) whether the parties intended at the outset that the deposition serve
as trial testimony; (b) whether the parties subsequently reached agreement to
use the deposition at the trial in that earlier case or in other cases; and (c)
other practical considerations such as the timing of the deposition in the
earlier litigation, whether a mediation or settlement conference was scheduled
for after the deposition, the closeness in relationship between the opposing
party and deponent, the anticipated availability of the deponent in the earlier
case, whether a statutory rule such as Code of Civil Procedure section allowed
the parties to use the deposition at the earlier trial, the extent of
cross-examination in the deposition, the particular designated testimony, and
the similarity of the lawsuits.
Lisa Gallo (August 9, 2021
and February 28, 2022) -- SUSTAINED
Plaintiff states Defendant
was present at these depositions in earlier cases, and the depositions were
videotaped. Plaintiff argues the
videotaping is evidence of “the parties’ intent to take the deposition for the
purpose of preserving the witness’s testimony,” and therefore “an inference exists
that [Defendant] 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.” (Response
at p. 6.)
As an initial matter, Plaintiff
did not prove this witness is unavailable.
Also, Plaintiff provides no evidence of Berroteran factors such as the timing of the depositions in the earlier
litigations, whether a mediation or settlement conference was scheduled for
after the depositions, the closeness in relationship between Defendant and
deponent (for example, whether they were aligned or adverse), the anticipated
availability of the deponent in the earlier cases, the extent of
cross-examination in the depositions and the topics covered, the particular
designated testimony, and the similarity of the lawsuits. Instead, Plaintiff rests her entire argument
on the fact that the depositions were videotaped.
“[V]ideotaping, in itself,
does not affect the decision whether to examine an aligned witness at deposition. The determination to videotape is ordinarily
made by the deposing party . . . . 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.) Here, Plaintiff did not
identify the deposing party in these depositions, although presumably it was
the plaintiffs in those earlier cases. That
the plaintiff in those earlier cases chose to videotape does not prove
Defendant intended the depositions to be used at trial.
Plaintiff also argues the former
testimony is admissible under Evidence Code sections 1220 and 1222 as party
admissions or authorized statements. Section
1220 applies when a statement is “offered against the declarant in an action to
which he is a party.” The deponent is not
a party in this action. Section 1222
applies when a statement is offered against a party who authorized the person
to make the statement. Plaintiff is
offering the statement against Defendant Whittaker, but there is no evidence
Whittaker authorized the deponent to testify on behalf of Whittaker at the
prior depositions.
Plaintiff further argue the
former testimony is admissible as a statement against interest under Evidence
Code section 1230. This section states
that a statement is not inadmissible hearsay if the declarant is unavailable
and the statement was contrary to the declarant’s pecuniary or proprietary
interest, would subject the declarant to liability, or create such a risk that
a reasonable person would not have made the statement unless the person
believed it to be true. Plaintiff did
not submit evidence establishing these elements.
Finally, Plaintiff argues
the former testimony will be used for impeachment. If the deponent testifies at the trial in
this case and makes inconsistent statements, Plaintiff can use the prior
testimony to impeach the witness.
Because Plaintiff did not
satisfy her burden, the objection is sustained.
Paul Vincenti (August 18,
2020, August 19, 2020, September 24, 2020, and September 30, 2020) -- SUSTAINED
Regarding Vincenti, Plaintiff
makes exactly the same arguments – word for word – as for Gallo, but presents
no evidence of the factors as described above.
(Response at p. 5.) For the reasons
stated above, the objections are sustained.
Jack Linard (February 3-4,
2021 and October 19, 2022) -- SUSTAINED
Regarding Linard, Plaintiff
makes exactly the same arguments – word for word – as for Gallo, but presents
no evidence of the factors as described above.
(Response at pp. 5-6.) For the reasons
stated above, the objections are sustained.
Mary Leech (November 16,
2022) -- SUSTAINED
Mary Leech’s deposition was
taken in this case. Defendant objects it
is hearsay, and states she was a corporate representative of some other company. Plaintiff does not mention Leech at all in Plaintiff’s
response to Defendant’s objections.
Under Code of Civil Procedure
section 2025.620, subdivision (b), an adverse party may use a deposition of a
party to the action. Plaintiff did not
show that Leech was testifying as a designee on behalf of Defendant. If Leech was testifying for some other
defendant who has now settled, Plaintiff did not cite any law that the testimony
of a settled defendant who will not be participating in a trial may be used against
a non-settling defendant under section 2025.620, subdivision (b).
Under section 2025.620,
subdivision (c), a deposition transcript may be used if the deponent resides
more than 150 miles away or is otherwise unavailable. Plaintiff did not show that this section
applies to Leech.Because Plaintiff made no
showing at all about Leech, the objection is sustained.
The moving party is to give notice