IN THE SUPREME COURT OF 

CALIFORNIA

RAUL BERROTERAN II,

Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

FORD MOTOR COMPANY, 

Real Party in Interest.

S259522

Second Appellate District, Division One

B296639

Los Angeles County Superior Court

BC542525

March 7, 2022

Chief Justice Cantil-Sakauye authored the opinion of the 

Court, in which Justices Corrigan, Liu, Kruger, Groban, 

Jenkins, and Manella*concurred.

* Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Four, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
1

BERROTERAN v. SUPERIOR COURT

S259522

Opinion of the Court by Cantil-Sakauye, C. J.

We granted review to address a conflict in the Courts of 

Appeal regarding an exception to the hearsay rule, articulated 

in Evidence Code section 1291, subdivision (a)(2) (hereinafter 

section 1291(a)(2)), concerning testimony taken in an earlier 

proceeding and offered against a party to that former 

proceeding.

1 Petitioner and plaintiff below, Raul Berroteran II,

had been a putative member of a federal multidistrict 

consolidated class action suit against real party in interest and 

defendant below, Ford Motor Company (hereinafter Ford), 

arising from the diesel engine used in some of Ford’s vehicles in 

the early and mid-2000s. The federal matter settled, and 

Berroteran, like many others, opted out in order to pursue his 

own suit. 

In the meantime, nine out-of-state Ford employees or 

former employees had given videotaped deposition testimony in 

the federal action or in subsequent related California opt-out 

litigation. In connection with Berroteran’s ensuing suit in the 

Los Angeles County Superior Court, he filed 10 designations of 

deposition testimony (one witness having testified twice) listing 

depositions of these nine unavailable out-of-state witnesses and

identifying the testimony that he proposed to introduce and 

present at trial. As a general matter, each deposition concerned 

1 Future undesignated statutory citations are to the 

Evidence Code unless otherwise indicated. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

2

Ford’s knowledge of and ability to address defects in the engines, 

and its asserted concealment of those defects. 

Shortly before trial in Berroteran’s lawsuit was set to 

begin, Ford, relying on the interpretation of section 1291(a)(2)

articulated in Wahlgren v. Coleco Industries, Inc. (1984) 

151 Cal.App.3d 543 (Wahlgren), moved to exclude all of 

Berroteran’s proffered deposition testimony. This aspect of the 

statute’s hearsay exception applies when 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 present 

trial. (§ 1291(a)(2), italics added.) The official comment 

accompanying that provision explains that in determining 

similarity of interest and motive under the statute, inquiry 

should focus on practical factors, and not simply on any 

similarity regarding the position of the party in the two settings. 

Interpreting the statute in light of this commentary, Wahlgren 

concluded, in essence, that the provision’s hearsay exception is

generally inapplicable to testimony arising from a discovery 

deposition. 

After the trial court granted Ford’s motion, Berroteran 

sought, and the Court of Appeal granted, a writ of mandate, 

directing the trial court to issue a new order denying Ford’s 

motion. The appellate court viewed section 1291(a)(2) as

reflecting no general rule against introduction of prior discovery 

deposition testimony, but rather the opposite: According to the 

court, a litigant in Ford’s position has an interest and motive to 

examine its own witnesses during their depositions, similar to 

that which it would have during trial in a later related case. 

Indeed, the appellate court added, at each of the prior 

depositions, Ford had an interest and motive “to disprove” the 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

3

allegations of misconduct and knowledge concerning the diesel 

engine. (Berroteran v. Superior Court (2019) 41 Cal.App.5th 

518, 534, italics added (Berroteran).) The Court of Appeal 

suggested that Ford bore the burden to show that it lacked a 

similar interest and motive — and on this record, failed to do so. 

(Ibid.)

Following full briefing by the parties and amici curiae, and

a few days after oral argument in this court, the parties filed a

document advising that they had “reached an agreement to 

settle the case on terms independent of the outcome of the 

opinion from this court,” and that “the settlement will obviate 

the need for trial proceedings on the merits that would 

otherwise take place on remand.” In light of the important 

issues presented, we exercise our discretion to proceed to decide 

the matter. (E.g., Marin County Bd. of Realtors v. Palsson

(1976) 16 Cal.3d 920, 929 [“an appeal will not be rendered moot

if the parties raise substantial questions of public interest that 

are likely to recur”]; Building a Better Redondo, Inc. v. City of

Redondo Beach (2012) 203 Cal.App.4th 852, 867.) We will

conclude that the appellate court’s analysis is incompatible with 

(1) the established principle that the party proposing to 

introduce evidence under section 1291(a)(2)’s former testimony 

exception to the hearsay rule bears the burden of establishing 

the requirements for admission, and (2) the Legislature’s official 

comment, reflecting its understanding when it enacted the 

provision at issue as part of the Evidence Code in 1965.

Accordingly, we will reverse the judgment, and provide guidance 

for future resolution of similar issues. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

4

I. FACTS AND PROCEDURE 

A. The Underlying Complaint

Berroteran’s first amended complaint, filed in mid-2014, 

asserted that in early 2006, after relying on Ford’s 

representations that its vehicle was reliable and provided 

superior power, he purchased a new Ford truck equipped with a 

defective 6.0-liter diesel engine supplied by Navistar

(hereinafter Navistar engine). The complaint alleged that 

notwithstanding Ford’s representations, when driving the 

vehicle, Berroteran experienced breakdowns and lack of power 

while towing. Moreover, the complaint alleged, Ford’s attempts 

to address these problems were unsuccessful, even though Ford 

had represented that it had fixed the engine. Consequently, 

Berroteran alleged, he was unable to use the truck for its 

intended and advertised purposes. 

The complaint further alleged that Ford: “(a) rather than 

identifying and eliminating the root cause of these defects, 

produced and sold the vehicle to [Berroteran] and other 

consumers, knowing it contained a defective engine; (b) adopted 

through its dealers a ‘Band-Aid’ strategy of offering minor, 

limited repair measures to customers who sought to have the 

defects remedied, a strategy that reduced Ford’s warranty 

expenditures but did not resolve the underlying defects and, in 

fact, helped to conceal the defects until the applicable 

warranties expired; and (c) intentionally and fraudulently 

concealed from [Berroteran] . . . these inherent defects prior to 

the sale or any time thereafter.” The complaint claimed that 

“Ford was aware of its inability to repair the defects” in the 

Navistar engine, and asserted causes of action for fraud, 

negligent misrepresentation, violation of the Consumers Legal 

Remedies Act (Civ. Code, § 1750 et seq., hereinafter CLRA), and 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

5

violation of the Song-Beverly Consumer Warranty Act (id., 

§ 1790 et seq.). 

In order to put this complaint and the corresponding 

evidentiary issues arising under section 1291(a)(2) into 

perspective, we find it useful to briefly describe the relevant 

underlying prior federal litigation, and the ensuing California 

opt-out litigation that, in turn, spawned the deposition 

testimony at issue here. 

B. Earlier Litigation Against Ford Concerning the 

Navistar Engine, and the Resulting 10

Videotaped Depositions

1. The federal consolidated class action complaint 

and the six depositions related to that and 

predecessor federal suits

The 2011 operative federal consolidated class action 

complaint2 alleged defects in the diesel engine supplied by 

Navistar that Ford installed in various vehicles between 2003 

and 2007. That complaint, foreshadowing those subsequently 

filed by others in California (including Berroteran) who opted out 

of the federal consolidated class action, alleged that “Ford knew 

from the outset that there were severe and pervasive design, 

manufacturing, and quality issues plaguing” the Navistar 

2 Berroteran was a putative class member of a federal 

lawsuit filed in the Southern District of California (Burns v. 

Navistar, Inc. (U.S. Dist. Ct., S.D.Cal., Feb. 23, 2011, Civ. 

No. 10-cv-2295-LAB-BGS) 2011 U.S. Dist. LEXIS 18147). That 

case, along with others, was subsequently consolidated into a 

federal multidistrict class action filed in the Northern District 

of Illinois, Eastern Division (In re Navistar 6.0 L Diesel Engine 

Products Liability Litigation (U.S. Dist. Ct., N.D.Ill., Aug. 12, 

2013, Civ. Case No. 1:11-cv-02496, MDL No. 2223) 2013 WL 

4052673 (In re Navistar)).
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

6

engine; yet Ford “never disclosed any of these issues to 

consumers” and failed to authorize necessary major engine 

repairs for its customers during the warranty period of their 

vehicles. In other words, the complaint asserted, Ford “simply 

kicked the can down the road” until each warranty expired, so 

that “ ‘the customer — not Ford — would pay for repairs.’ ” 

The federal consolidated class action ultimately settled —

preliminarily in late 2012, and finally in mid-2013. As noted, 

Berroteran, like many others, opted out and pursued separate 

suits. 

In connection with the federal In re Navistar (see ante, 

fn. 2) and related predecessor federal suits in Illinois3 and 

Texas,

4

various Ford employees and former employees were 

deposed. Six of those videotaped depositions, taken in Michigan

and Florida, are among the ten depositions at issue in the 

present case. Ford’s counsel consulted with each witness prior 

to, and represented that witness at, each deposition. Ford’s 

counsel raised objections at each deposition, but asked no 

questions of these witnesses. None of these deposition 

3 Custom Underground, Inc. v. Ford Motor Company 

(N.D.Ill., No. 1:10-cv-00127), concerned the performance of more 

than 20 Ford vehicles with Navistar 6.0-liter diesel engines 

purchased by that plaintiff. The case was subsequently 

consolidated into the federal multidistrict class action, In re 

Navistar, supra, 2013 WL 4052673.

4 Years prior to the federal consolidated class action 

litigation, In re Navistar, supra, 2013 WL 4052673, a Texas 

ambulance service that had purchased Ford vehicles filed 

Williams A. Ambulance, Inc. v. Ford Motor Company (E.D.Tex.,

No. 1:06-CV-00776). It is uncontested that the complaint in that 

case alleged that Ford equipped ambulances with the defective 

Navistar 6.0-liter diesel engine. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

7

transcripts contains any discussion about the intended future 

use of the deposition. 

We will briefly describe, as representative, the deposition 

of John Koszewnik, conducted in February 2011 in connection 

with the Illinois federal litigation (see ante, fn. 3). Koszewnik

had been Ford’s director of North American diesel products, 

responsible for investigating “failures in the field” of the

Navistar engine and identifying related “root cause[s] and 

corrective actions.” He testified that four troublesome 

components had been “injectors, turbochargers, EGR [exhaust 

gas recirculation] valves, [and] EGR coolers.” He addressed 

related warranty problems with the engine and recounted that, 

as of February 2006, Ford had incurred “about 36 million 

[dollars] a year,” and “as high as 5 million a month,” in warranty 

expenses relating to the engine’s suspect EGR valve. And yet, 

he testified, Ford refused to approve a replacement EGR valve 

or to notify owners that they should seek such an upgrade. 

2. Four depositions of three other Ford employees 

arising under three California “opt-out” suits

5

The subsequent videotaped depositions were conducted in 

California in 2015–2017 — many years after, and indeed, in light 

of, the above-described depositions in the federal matters. Each 

deponent was designated by Ford as a “person most qualified” 

(PMQ). Again Ford’s counsel consulted with each witness prior 

5

 In each of these California actions, the complaint tracked 

the claims asserted in the prior federal consolidated class action 

litigation and presaged those set out in Berroteran’s operative 

complaint: (1) Preston v. Ford Motor Company (Super. Ct. El

Dorado County, No. SC20130071); (2) Dokken v. Ford Motor Co.

(Super. Ct. Sutter County, No. CVCS131994); and (3) Brown v. 

Ford Motor Company (Super. Ct. Butte County, No. 160060). 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

8

to, and represented that witness at, each deposition. Ford’s 

counsel once more raised objections at each deposition — and at 

the conclusion of the first two depositions, briefly asked focused 

questions of the witness to clarify certain testimony. 

The final deposition, conducted in June 2017 in connection 

with Brown v. Ford Motor Company (see ante, fn. 5), reflects 

substantial discussion about its intended future use. Because 

these parts of that transcript particularly implicate the 

evidentiary issues in the present case, we review this portion of 

the Brown deposition in some detail. 

Eric Kalis appeared as Ford’s PMQ concerning various 

matters, including the internal review and approval process 

conducted by Ford personnel of marketing materials provided by 

Ford to its dealers and customers to facilitate vehicle sales. He

further testified as Ford’s custodian of records. When examples 

of marketing publications (Ford’s “Frontline Magazine,” “Source 

Book,” “Trailer Tow Guide,” and sales brochures) were shown to 

him, Kalis confirmed that each appeared to be a Ford business 

record. He also presented a USB drive, referred to as “the 

compilation,” reflecting search results concerning “12 million 

pages” of Ford documents that had been produced in connection

with various prior Navistar engine opt-out lawsuits, and that 

had been introduced as trial exhibits in yet another related 

California opt-out case, Margeson v. Ford Motor Company.

6

 The

USB drive included emails by and to Ford employees whose 

6 Los Angeles County Superior Court, No. BC549430. At 

the time of the deposition in Brown, the Margeson suit had 

yielded a substantial jury verdict against Ford. Subsequently, 

that verdict was, in most part, recently affirmed on appeal. 

(Margeson v. Ford Motor Company (Sept. 22, 2020, B287445)

[nonpub. opn.].)
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

9

depositions are at issue in the present case. In his testimony 

Kalis addressed those same documents and email 

communications, along with substantive issues such as effects of 

an improperly functioning turbocharger on horsepower and 

towing. At the close of Kalis’ deposition, following an extended 

off-the-record discussion, counsel for both parties discussed (1) a 

stipulation regarding the documents referred to earlier in the 

deposition and (2) agreement about future use of Kalis’ 

deposition testimony. 

Regarding the documents, Ford’s counsel stipulated that 

all of the marketing materials and, with certain exceptions, most 

other files contained within the USB drive — including the 

emails by and to Ford employees — were indeed Ford “business 

records for California hearsay purposes, and are true and correct 

copies of Ford documents.” Next, after conferring with Ford’s 

counsel, Kalis certified that these documents were “created in 

the normal course of business,” are “true and correct,” and 

constitute Ford “business records.” Those exhibits were in turn 

made an exhibit to Kalis’ deposition. 

The parties then addressed the scope of the stipulation

regarding the Ford documents, and in connection with that

discussion they also addressed the future use of the transcript 

and video of the Kalis deposition. Counsel for the plaintiff 

sought to clarify that the stipulation would apply generally to 

all cases, not only “this case.” Counsel for Ford replied: “I . . . 

can’t do the blanket stipulation as to all [Navistar engine] 

matters. That doesn’t mean that, . . . if you folks bring it up to 

the judge, that you’re going to not get it through easily. It’s just 

the onus needs to be on your side of the table in those cases.” 

Counsel for the plaintiff responded: “Mr. Kalis is frequently 

identified and designated as either an expert or a [person most 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

10

knowledgeable/qualified] — perhaps both — by Ford” and that 

use of “these transcripts” should not be limited “to just this 

Brown versus Ford case.” At that point, Mr. Scott Erskine, a 

principal counsel for Ford, who had been listening to and 

participating in the deposition by phone, interjected to reiterate 

that he, like defense counsel who was present at the deposition, 

had no authority to “bind other counsel.” 

After further discussion the parties agreed to “use a copy 

of the [deposition] transcript and a copy of the video for all 

purposes, for all [Navistar] 6.0[-liter diesel engine] cases in

which [the Erskine] firm” is “currently counsel of record” —

listing, in addition to Brown, a few other then-pending 

California opt-out cases (not including or mentioning the 

present matter). Defense counsel also reiterated that the 

stipulation concerning use of the documents was similarly 

circumscribed.

7

In response to renewed questioning by the 

plaintiff’s counsel, Kalis clarified that, so far as he was aware, 

the Ford business records to which he had confirmed 

authenticity were relevant to “all [Navistar] 6.0 diesel” engines 

“in general,” and his conclusion about authenticity of those 

documents would be the same in any case in which the same 

issue arose. Finally, all counsel agreed to meet and confer 

within two weeks about “expanding this stipulation on the use 

of these transcripts and the video for use in all [Navistar] 6.0 

7 Defense counsel stated: “[F]or the reasons that 

Mr. Erskine stated on the phone, . . . I just don’t have the 

authority on that for the other outside counsel. That doesn’t 

mean you don’t have a good argument to take to a judge in one 

of those cases involving other counsel, it just means that 

I personally don’t have the authority to speak on behalf of [other 

outside counsel] at all, about their cases.”
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

11

litigation matters, irrespective of” who is counsel of record. And 

yet the record reflects, and we are advised of, no such further 

agreement. 

C. Berroteran’s Designation of Passages from the

10 Video Depositions and Ford’s Motion in 

Limine to Exclude

Berroteran designated various passages of the earlierdescribed video depositions, stating that he planned to play 

them at trial. Relatedly, he also sought to present the Ford 

documents and emails that had been produced in the federal 

consolidated class action litigation, and more recently 

introduced in the California opt-out trial, Margeson v. Ford 

Motor Company (see ante, fn. 6). As observed immediately 

above, Eric Kalis, Ford’s PMQ and custodian of records, had 

certified, in deposition testimony in Brown, that all of these 

documents were indeed Ford business records. Ford filed 

motions in limine to exclude both categories of materials. The 

first, motion No. 29, which is not directly at issue here, sought 

to exclude Berroteran’s trial exhibits. The second, motion in 

limine No. 30, which is at issue here, sought to exclude each of 

the 10 videotaped depositions described earlier as constituting 

inadmissible hearsay. 

As observed earlier, section 1291(a)(2) recognizes an 

exception to the hearsay rule and allows introduction of “former 

testimony” if the declarant is unavailable8 and the proponent 

8 As alluded to earlier, there is no dispute that all 

prospective witnesses at issue in this case are “unavailable” 

because, as out-of-state residents, they are beyond the reach of 

subpoena power. (See Code Civ. Proc., § 1989 [a witness is not 

obliged to appear in a California court unless the witness is a 
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Opinion of the Court by Cantil-Sakauye, C. J.

12

shows that the objecting party had a “right and opportunity to 

cross-examine the declarant with an interest and motive similar 

to that which” it would have at trial in the present case. (Italics 

added.) Ford relied on language in Wahlgren, supra,

151 Cal.App.3d 543, asserting that the inquiry concerning 

motive and interest “ ‘should be based on practical 

considerations and not merely on the similarity of the party’s 

position in the two cases’ ” (id., at 546, italics omitted) — and 

argued that Berroteran had failed to carry his burden of 

showing that Ford had a similar interest or motive to crossexamine the deponents as it would at trial in the present case. 

In opposition, Berroteran asserted, “[t]he deposition 

testimony . . . has been admitted in four jury trials in the past 

year and has been submitted to countless courts in connection 

with summary judgment motions, pretrial motions, discovery 

motions. . . . It is highly relevant, as it directly concerns the 

subject matter of this case. Ford and its army of lawyers had 

unlimited opportunities to prepare those ‘Ford company 

witnesses’ in advance of their testimony, had every opportunity 

to examine those witnesses during the depositions, and had the 

same or similar motive as Ford has in this case.” 

D. The Trial Court’s Ruling Excluding the 

Depositions, and the Court of Appeal’s Contrary 

Determination

In arguing that Ford lacked similarity of interest and 

motive to examine the witnesses at the depositions as it would 

resident of the state at the time of service]; Evid. Code, § 240, 

subd. (a)(4) [“ ‘unavailable as a witness’ means that the

declarant is any of the following: . . . [¶] . . . [¶] Absent from the

hearing and the court is unable to compel his or her attendance

by its process”].)
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Opinion of the Court by Cantil-Sakauye, C. J.

13

have at trial, counsel for Ford focused on an asserted 

dissimilarity between Ford’s position in the depositions and in 

the present litigation. In this regard counsel stated repeatedly 

that at least some of the depositions at issue arose in the context 

of Ford’s own separate lawsuit against “Navistar . . . for breach 

of contract.” Based on that, counsel stressed, “it doesn’t make 

sense that we would have a motive to cross-examine our own 

witnesses in a suit by Ford against Navistar for breach of 

contract.” (Italics added.) In fact, however, as our own review of 

the 10 depositions sought to be introduced reveals, none arose in 

that breach of contract suit setting — and instead all arose in the 

context of consumer actions against Ford. 

In a similar vein, Ford’s counsel repeatedly argued that 

Ford had no motive to cross-examine its own witnesses with 

regard to the multidistrict consolidated class action suit because 

those depositions were “limited to class issues” over a span of 

model years and, counsel asserted, discovery in that litigation 

was confined to those “class issues only” and “not merits issues.” 

And yet, as we have confirmed by our own review of each 

deposition, in none was the testimony limited to class 

certification issues such as commonality and typicality — and

instead each repeatedly, and in considerable detail, addressed 

“merits issues.” Indeed, as counsel for plaintiff Berroteran 

stressed, the operative complaint in the present suit (and also in 

all other opt-out suits) was modeled on the federal complaint —

and hence, counsel asserted, the depositions in the prior federal 

action covered “the same subject matter.” Relatedly, counsel also 

asserted, without opposition, that in each of the four other recent 

California opt-out trials at which the depositions had been 

admitted, “Ford has [simply] counter-designated from the same 
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Opinion of the Court by Cantil-Sakauye, C. J.

14

transcripts,” instead of calling the deponents as live trial 

witnesses. 

In response, the trial court stated: “My ruling would be to 

grant the motion in limine and exclude those deposition 

transcripts for the reasons argued. In terms of . . . the broadness 

of the other cases and lawsuits and specifics of our particular 

case and whether or not those cases address the specifics of our 

particular case — I just don’t think they [do]. . . . [T]hey involve 

multiple issues that are not really at issue here.” Yet, after 

counsel for Berroteran indicated that “this is going to be an issue 

on appeal,” the trial court asked counsel to resume argument. 

Following that further discussion,9the trial court reaffirmed its 

9 The court asked for clarification regarding similarity with 

respect to the federal consolidated class action suit, In re 

Navistar. In response, counsel for Ford reprised the earlier 

assertion that those depositions were “limited to class issues . . . 

bearing on whether the class should be certified” and “didn’t even 

deal with merits issues.” Later, after again repeating that the 

class action depositions were “limited to class discovery,” Ford’s 

counsel ultimately conceded, “obviously there’s some cross over 

with the merits” — yet counsel maintained that the depositions 

addressed “class issues, not merits issues.” Moreover, Ford’s 

counsel asserted: “Generally speaking, litigants don’t have 

motive to cross-examine their own witness” unless, as counsel 

acknowledged, there are case-specific reasons for doing so — for 

example, if “our corporate witness is dying of terminal cancer and 

we need his testimony and he might not last until trial.” 

Counsel for plaintiff Berroteran asserted that all prior 

counsel understood that the depositions, each of which 

concerned witnesses who were “clearly going to be out of the 

subpoena power of many of the courts” where the cases were 

being litigated, “were preservation depositions. Why else would 

you videotape the deposition?” In this respect, counsel for 

Berroteran asserted, contemporaneous comments by the 
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Opinion of the Court by Cantil-Sakauye, C. J.

15

original ruling.

10

 

The Court of Appeal issued an alternative writ requiring 

the trial court either to vacate its ruling granting the motion to 

exclude or show cause why a peremptory writ of mandate 

ordering the trial court to vacate its ruling should not issue. The 

trial court indicated that it would not vacate its ruling. After 

briefing and argument, the appellate court determined that the 

10 prior depositions were admissible under section 1291(a)(2). In 

doing so it disagreed with Wahlgren, supra, 151 Cal.App.3d 543, 

which it characterized as establishing a “categorical bar to 

admitting deposition testimony under section 1291.” 

(Berroteran, supra, 41 Cal.App.5th at p. 529, italics added.) 

Instead, the appellate court (1) determined that a litigant in 

Ford’s position has a similar interest and motive to examine its 

own witnesses during their depositions as that party would have 

in a later related trial based on similar subject matter, without 

considering any differences between the two contexts, and 

(2) appeared to place the burden on Ford to disprove any 

similarity of interest and motive — and to conclude that Ford 

had failed to satisfy this burden. (Id., at p. 534.)11

plaintiffs’ counsel at six of the 10 depositions reflected an 

expectation or assumption by that counsel that those videotaped 

sessions would be used as evidence at any trial related to that 

suit. 

10

 The trial court likewise reaffirmed its earlier ruling 

granting motion in limine No. 29, excluding the numerous 

exhibits proffered by Berroteran and referenced in the Kalis 

deposition testimony. 

11 The appellate court also directed the trial court to “vacate 

its order granting Ford’s motion in limine No. 29 [see ante, 

fn. 10] concerning documentary evidence and to reconsider that 
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Opinion of the Court by Cantil-Sakauye, C. J.

16

II. THE LEGISLATURE’S COMMENT 

CONCERNING SECTION 1291, WAHLGREN, AND 

THE COURT OF APPEAL’S DECISION 

A. The Comment Concerning Section 1291

The Legislature has provided unusually specific guidance

concerning section 1291, in the form of official commentary that 

originated with the California Law Revision Commission

(Commission) and then became an integral aspect of the 1965 

legislation enacting the Evidence Code (Stats. 1965, ch. 299).

12

 

order in light of our ruling vacating the trial court’s order 

regarding motion in limine No. 30.” (Berroteran, supra,

41 Cal.App.5th at p. 536.)

12 In 1956 the Legislature enlisted the Commission to work 

with other interested entities to review existing statutory 

provisions, many of which were then in the Code of Civil 

Procedure, to draft and recommend a dedicated Evidence Code. 

(See Cal. Law Revision Com., Recommendation Proposing an 

Evid. Code (Jan. 1965) at p. 29 [describing the history].) Nine 

years later, the Commission proposed to the Legislature such a 

code. (Ibid.) As recounted in a contemporaneous article by John 

R. McDonough, Chairman of the Commission, the Commission 

“provided a comment for each code section,” explicating “the 

section’s purpose . . . and discuss[ing] some potential problems 

of its meaning or application. . . .” (McDonough, The California 

Evidence Code: A Précis (1966) 18 Hastings L.J. 89, fn. 4.) As 

McDonough explained, and as the Commission’s and 

Legislature’s reports reflect, the resulting “comments are of 

special significance in the legislative history of the Evidence 

Code as a result of the special attention given them by the 

legislative committees that considered the code. Both the 

Assembly and the Senate Committees on Judiciary issued 

special reports on Assembly bill 333 (1965), which became the 

California Evidence Code.” (McDonough, supra, 18 Hastings 

L.J. at pp. 89–90, fn. 4.) These special committee reports 

declared that the Law Revision Commission’s comments 
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Opinion of the Court by Cantil-Sakauye, C. J.

17

(See generally Cal. Law Revision Com., Evid. Code with Official 

Comments (Aug. 1965) at p. 1007 [“These Comments are 

especially significant in the legislative history of the Evidence 

Code because of the consideration given them by the legislative 

committees that considered the code”].) 

The resulting official comment concerning section 1291 is 

set out verbatim in the published codes (at 29B pt. 5 West’s Ann. 

Evid. Code (2015 ed.) foll. § 1291, pp. 86–87, and Deering’s Ann.

Evid. Code, vol. 2 (2021 ed.) foll. § 1291, pp. 810–811).

13 The 

comment reflects a distinction between two major types of 

former testimony — that given at a prior trial, and that given in 

expressed each “committee’s intent in approving the bill, except 

to the extent that new or revised comments were set out by the 

committees themselves.” (Id. at p. 90, and legislative sources 

cited.) Accordingly, “for each section of the Evidence Code . . . 

that was revised or enacted by Assembly bill 333 there is a 

comment which is either a legislative committee comment that 

was set forth in one of the two legislative committee reports, or 

a Law Revision Commission comment, that was approved by the 

legislative committees.” (Ibid.) In all respects relevant here, 

section 1291’s official comment is taken verbatim from the 

January 1965 Commission Recommendation, supra, at pages 

251–253. (See Cal. Law Revision Com., Evid. Code with Official 

Comments (Aug. 1965) at pp. 1247–1249 [memorializing the 

approved final version of the comment concerning section 1291]; 

see also id., at pp. 1007–1008 [recounting the special 

consideration given in April 1965 by the Assembly and Senate 

judiciary committees to the Commission’s proposed comments].)

13 West’s designates the matter as “Comment — Assembly 

Committee on Judiciary.” Deering’s designates the same as 

“Law Revision Commission Comments” and notes at the end, 

“As amended in the Legislature.” As observed ante, footnote 12,

in each publication the relevant text of the comment reflects, as 

pertinent here, the Law Revision Commission’s January 1965 

recommendation, as approved in April 1965 by the Legislature’s 

judiciary committees. 
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Opinion of the Court by Cantil-Sakauye, C. J.

18

the context of a deposition. The comment first explains, in 

general terms: “[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, italics added.) 

In its specific discussion of the statute’s subdivision 

(a)(2) — the provision applicable in this case14 — the comment 

is considerably more detailed. It states in full: “Paragraph (2) 

of subdivision (a) of Section 1291 provides for the admissibility 

of former testimony where the party against whom it is now 

offered had the right and opportunity in the former proceeding 

to cross-examine the declarant with an interest and motive 

similar to that which he now has. Since the party has had his 

opportunity to cross-examine, the primary objection to hearsay 

evidence — lack of opportunity to cross-examine the 

declarant — is not applicable. On the other hand, paragraph (2) 

does not make the former testimony admissible where the party 

against whom it is offered did not have a similar interest and 

motive to cross-examine the declarant. The 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. For example, 

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 

14 Section 1291 also addresses, in subdivision (a)(1), 

admission of former testimony submitted against a party “who 

offered it in evidence in his own behalf” in a prior proceeding. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

19

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.” (Com., ¶ 4, italics added.) 

B. Wahlgren 

Nearly 20 years after the adoption of section 1291, the 

Court of Appeal in Wahlgren, supra, 151 Cal.App.3d 543, cited 

and applied the Legislature’s official comment. In that case the 

plaintiff, who had been injured when he dove from a slide into 

an above ground swimming pool, sued the pool manufacturer, 

among others, and then sought to introduce “two depositions 

taken in a prior unrelated action” in which the same defendant 

pool manufacturer had been a party. (Id., at p. 545, fn. omitted.) 

Relying alternatively on section 1291(a)(2), the trial court 

excluded the depositions. (See post, fn. 15.) After a jury found 

for the defendants, the plaintiff challenged exclusion of the 

deposition evidence on appeal. 

Without addressing or describing the nature of the prior 

unrelated action in which the depositions had been taken, the 

Court of Appeal explained that the deponents were officers of 

the pool manufacturer, and “their testimony concerned [the 

manufacturer defendant’s] policy of placing labels on pools 

which alerted users to the dangers of diving.” (Wahlgren, supra, 

151 Cal.App.3d at p. 545.) The appellate court affirmed the trial 

court’s order of exclusion, determining that the deposition 

testimony was inadmissible under section 1291(a)(2), as 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

20

informed by the section’s comment quoted earlier.

15

 In the 

process, the court asserted that as a general matter, a party’s 

interest and motive to cross-examine its own witnesses at a 

deposition is different from the party’s interest and motive to do 

so at trial. 

The key passage from the brief opinion in Wahlgren reads 

in full: “ ‘[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.’ [Citing 

the official comment concerning § 1291, supra.] 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 

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 [the pool manufacturer defendant, who was aligned with the 

15 The trial court had initially denied admission of the 

depositions because they were merely notarized photocopies, not 

certified copies. The Court of Appeal affirmed on that same 

ground, before addressing, in what appears to be dicta, the 

“alternative[]” ground that the depositions were properly 

excluded as not meeting the requirements of section 1291(a)(2). 

(Wahlgren, supra, 151 Cal.App.3d at p. 546; see id., at pp. 546–

547.)
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

21

deposed witnesses], that the trial court acted properly in 

excluding the deposition testimony.” (Wahlgren, supra, 151 

Cal.App.3d at pp. 546–547.)

In other words, the decision in Wahlgren effectively 

construed section 1291(a)(2) as articulating a general rule

against the use of discovery depositions such as were at issue in 

that case (of witnesses aligned with the defendant) in a 

subsequent proceeding — unless the proponent can show that 

the requirements of the statute, as illuminated by the 

Legislature’s official comment, are met.16 

C. The Court of Appeal Decision Below 

In determining that the trial court abused its discretion by 

excluding the 10 former depositions, the Court of Appeal 

acknowledged that Wahlgren “arguably supported Ford’s 

argument and the trial court’s conclusion.” (Berroteran, supra,

41 Cal.App.5th at p. 529.) Yet, the appellate court explained, it 

disagreed with what it characterized as “Wahlgren’s categorical 

bar to admitting deposition testimony under section 1291 based 

on the unexamined premise that a party’s motive to examine its 

witnesses at deposition always differs from its motive to do so at 

trial.” (Ibid., italics added.) 

In articulating its disagreement with Wahlgren and 

reaching its conclusion that the trial court abused its discretion 

in granting Ford’s motion to exclude the proffered depositions, 

the Court of Appeal was heavily influenced by the subsequentlyenacted and similarly-worded federal counterpart to section 

16 The parties in Wahlgren did not seek review in this court, 

and the propriety of its reasoning does not appear to have been 

raised here since. 
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Opinion of the Court by Cantil-Sakauye, C. J.

22

1291(a)(2) — Federal Rules of Evidence, rule 804(b)(1).17 

Indeed, the appellate court reasoned, federal decisions 

construing the federal rule should inform interpretation of the 

previously-enacted state statute. The court determined, after 

surveying some of those cases, that under the federal rule, 

“former deposition testimony is not categorically excluded based 

on an assumption that a motive to examine a witness differs 

during deposition and at trial” (Berroteran, supra,

41 Cal.App.5th at p. 531) — and that “ ‘[a]s a general rule, a 

party’s decision to limit cross-examination in a discovery 

deposition is a strategic choice and does not preclude his 

adversary’s use of the deposition at a subsequent proceeding.’ ” 

(Id., quoting Hendrix v. Raybestos-Manhattan, Inc. (11th Cir. 

1985) 776 F.2d 1492, 1506 [observing that pretrial depositions 

can serve not only as discovery, but also to preserve testimony 

that might be unavailable at trial].) 

The Court of Appeal focused on Wahlgren’s assertion that 

“[a]ll respected authorities . . . agree that given the [deposition] 

hearing’s limited purpose and utility, examination of one’s own 

client is to be avoided” (Wahlgren, supra, 151 Cal.App.3d at 

p. 546) — and it criticized that decision for failing to cite any 

support for that proposition. (Berroteran, supra, 41 Cal.App.5th 

17 That rule, adopted in 1975, states: “The following are not 

excluded by the rule against hearsay if the declarant is 

unavailable as a witness: [¶] (1) Former Testimony. Testimony 

that: [¶] (A) was given as a witness at a trial, hearing, or lawful 

deposition, whether given during the current proceeding or a 

different one; and [¶] (B) is now offered against a party who 

had — or, in a civil case, whose predecessor in interest had —

an opportunity and similar motive to develop it by direct, cross-, 

or redirect examination.” (Fed. Rules Evid., rule 804(b)(1), 

28 U.S.C., italics added.) 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

23

at p. 533.) The Court of Appeal characterized Wahlgren as 

asserting that “a deposition functions only as a discovery device” 

(ibid., italics added) and responded: “That blanket assumption 

appears inconsistent with the reality of often overlapping 

lawsuits in different jurisdictions and the prospect that an 

important witness could retire or otherwise become 

unavailable.” (Ibid.) In other words, the appellate court 

concluded, Wahlgren is simply out of date, “given the prevalence 

of videotaped deposition testimony in modern trial practice.” 

(Ibid.) 

Ultimately, the Court of Appeal relegated to a footnote the 

Legislature’s official comment concerning section 1291. The 

court asserted that because Ford did not “proffer any evidence 

that there was any strategic reason for not cross-examining its 

witnesses at their depositions here,” the court saw no reason to 

“address whether this partial legislative history would dictate a 

different outcome upon a proper and different record.” 

(Berroteran, supra, 41 Cal.App.5th at p. 534, fn. 10, italics 

added.)18 

18 In this respect, the appellate court wrote, in full: “Ford 

relies on a comment regarding section 1291 from the Assembly 

Committee on the Judiciary in the publisher’s editor’s note that 

where ‘the deposition was taken for discovery purposes’ and the 

party did not cross-examine its own witness to ‘avoid a 

premature revelation of the weakness in the testimony of the 

witness or in the adverse party’s case . . . the party’s interest 

and motive for cross-examination on the previous occasion 

would have been substantially different from his present 

interest and motive.’ (Assem. Com. on Judiciary com., 29B pt. 5 

West’s Ann. Evid. Code (2015 ed.) foll. § 1291, p. 86.) Ford, 

however, did not proffer any evidence that there was any 

strategic reason for not cross-examining its witnesses at their 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

24

Having reached this conclusion, the appellate court found 

it unnecessary to address other contentions raised by 

Berroteran.19 

depositions here. Absent such a record, we do not address 

whether this partial legislative history would dictate a different 

outcome upon a proper and different record.” (Berroteran, 

supra, 41 Cal.App.5th at p. 534, fn. 10.)

19 Berroteran’s primary argument in the trial court was that 

the depositions taken in the federal class action litigation are 

admissible under Code of Civil Procedure, section 2025.620, 

subdivision (g). That provision states in pertinent part: “When 

an action has been brought in any court of the United States or 

of any state, and another action involving the same subject 

matter is subsequently brought between the same parties . . . all 

depositions lawfully taken and duly filed in the initial action 

may be used in the subsequent action as if originally taken in 

that subsequent action. A deposition previously taken may also 

be used as permitted by the Evidence Code.” (See also, e.g., id., 

§ 2025.620, subd. (b) [“An adverse party may use for any 

purpose, a deposition of a party to the action, or of anyone who 

at the time of taking the deposition was an officer, director, 

managing agent, employee, agent, or designee under Section 

2025.230 of a party. It is not ground for objection to the use of a 

deposition of a party under this subdivision by an adverse party 

that the deponent is available to testify, has testified, or will 

testify at the trial or other hearing,” italics added].) In his trial 

briefs, Berroteran quoted the Law Revision Commission’s 1965 

comment to the Evidence Code’s definitional section, 1290 (Law 

Revision Com., Evid. Code with Official Comments, supra, foll. 

§ 1290, p. 1247, now set out in 29B pt. 5 West’s Ann. Evid. Code 

(2015 ed.) foll. § 1290, p. 84, and Deering’s Ann. Evid. Code, vol. 

2 (2021 ed.) foll. § 1290, p. 807 [listing provisions that, as of then, 

“will continue to govern the use of depositions in the action in 

which they are taken”]), and he characterized Code of Civil 

Procedure, section 2025.620, subdivision (g) as a “standalone 

authorization for using depositions as evidence at trial . . . 

separate and independent from any Evidence Code provisions.” 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

25

III. DISCUSSION

We first consider section 1291(a)(2)’s language in light of 

the Legislature’s comment and corresponding observations in 

leading practice guides — and conclude that the statute 

articulates a general rule (not a categorical bar) against 

admission at trial of prior testimony from a typical discovery 

deposition. Thereafter, we address the contrary conclusion 

reached by the appellate court below — and explain why we find 

its reasoning unpersuasive.

A. As Wahlgren Implied, Section 1291(a)(2) Creates 

a General Rule Against Admission of Testimony 

from a Prior Civil Discovery Deposition

As noted, section 1291(a)(2) permits the use of prior 

testimony in a proceeding only if the party seeking to exclude 

(Indeed, both of these subdivisions of Code of Civil Procedure, 

section 2025.620 — (b) and (g) — can be traced to at least Code 

Civil Proc., former § 2016, subd. (d)(2) & (4), par. 2, enacted by 

Stats. 1957, ch. 1904, § 2, p. 3323. Those predecessor provisions 

were in turn reenacted, substantively unchanged, when former 

section 2016 was otherwise amended by the legislation that 

enacted the Evidence Code [see Stats. 1965, ch. 299, § 125, at 

p. 1365] — and they remain in place, as renumbered, today.) 

As the appellate court below observed, Berroteran 

advanced his argument grounded on Code of Civil Procedure, 

section 2025.620, subdivision (g), in his writ petition — and he 

further asserted that the testimony given by the three PMQs in 

the opt-out depositions constituted party-authorized admissions

under Evidence Code section 1222. The Court of Appeal 

explained that because, in its view, all of the designated 

testimony set out in the 10 depositions was admissible under

section 1291(a)(2), it would not address these additional 

contentions. (Berroteran, supra, 41 Cal.App.5th at p. 528, fn. 8.) 

Likewise, in this opinion, we express no view concerning the

applicability of these other statutory provisions. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

26

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.) Doing so here, we must bear in mind that the 

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 

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 

20 In Berroteran’s briefing in this court, advancing his view 

that section 1291(a)(2), as properly construed, supports the 

Court of Appeal’s construction of that provision, he briefly 

alludes to Code of Civil Procedure, section 2025.620, subdivision 

(g) (quoted ante, fn. 19). Berroteran suggests we should 

construe section 1291(a)(2) “in conjunction with” the Code of 

Civil Procedure section, in order to avoid any asserted tension 

with it. Because our grant of review was limited to Evidence 

Code section 1291(a)(2), the Code of Civil Procedure provision 

has not been briefed in this court and its application is not before 

us now. If, as Berroteran suggests, there exists any significant 

tension between Code of Civil Procedure section 2025.620 (key 

parts of which, as observed ante, fn. 19, predated the Evidence 

Code and were reenacted along with it) and section 1291(a)(2) 

as we interpret it, the Legislature can be expected to address 

that issue.
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

27

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 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, 
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Opinion of the Court by Cantil-Sakauye, C. J.

28

§ 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 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 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 crossexamination of an opponent’s witness at trial. To the extent 

such a witness presents ostensibly favorable testimony, crossexamination 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.) 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

29

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 crossexamination 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 crossexamination 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 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 
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Opinion of the Court by Cantil-Sakauye, C. J.

30

discovery deposition may be hindered by the absence of 

comparable circumstances. Accordingly, although the opposing 

party at a discovery deposition has an opportunity to crossexamine the deponent, that opportunity might often not be an 

ideal one. This, too, creates less interest and motive for crossexamination. 

For these reasons, as alluded to above, leading treatises 

are consistent in discouraging opposing parties from conducting 

cross-examination at a discovery deposition, at least when the 

witness being deposed is aligned in interest with the opposing 

party. For example, Discovery Practice, supra, Questioning the 

Deponent, section 18.08, observes: “In what situations should 

you question your client deponent? The best question may be no 

question — the sooner the deposition is over, the better. 

Ordinarily, your preparation of the deponent does not include 

any preparation of questions. If you ask questions, you run the 

risk of the deponent’s not understanding why you are asking a 

question, or responding to it in a fashion different from what you 

expected. Further, the more questions you ask, the more 

information you provide the other side; the more questions you 

ask, the more time the other attorney has to think about what 

else to ask; the more questions you ask, the more chance the 

other attorney has to ask still more questions.” (Accord, 

Depositions in California, supra, Cross-examining own client, 

§ 7:40, p. 277 [“Generally, it is not a good idea to cross-examine

one’s own client even though counsel has the right to do so. 

[Citation.] Through counsel’s cross-examination, counsel may 

give the examining attorney leads or ideas for further areas of 

inquiry, and damaging admissions may be made.”]; Civil 

Procedure Before Trial, supra, ¶ 8:711, p. 8E-111 [“Attorneys 

often decide not to ask questions at depositions of their own
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Opinion of the Court by Cantil-Sakauye, C. J.

31

clients or witnesses favorable to their side. Since there is no 

judge or jury present, there is usually nothing to be gained by 

bringing out favorable testimony via ‘cross-examination.’ 

Moreover, it may even do harm by ‘educating’ opposing counsel, 

or by allowing them to ask questions about matters they had 

forgotten to inquire about”]; Lisnek & Kaufman, Depositions: 

Procedure, Strategy & Technique (2021–2022 ed.) 

Rehabilitation — Questioning the Deponent, § 11:10 [“When 

determining whether questions of one’s own client should be 

asked, an attorney must exercise restraint. Any questions 

asked by the protecting attorney create a risk of additional 

disclosure. Furthermore, the deponent cannot be expected to 

respond in a desirable manner. The examiner therefore takes a 

risk as to what answers will be given. In general, the protecting 

attorney who asks questions sends signals to the examiner that 

further information is out there to be gathered”].)

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 
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Opinion of the Court by Cantil-Sakauye, C. J.

32

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 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 

21 Such circumstances may include the following, not all of 

which apply concerning depositions of an aligned witness. As 

explained in Pretrial Discovery Strategy, supra, Crossexamination of deponent, section 7:26: (1) “An explanation 

offered immediately on cross may be more credible than an 

excuse offered at the later trial.” (2) If “[t]he deponent made 

several statements favoring your theory of the case, but they are 

‘disjointed and spread over many pages’ ” it might be useful to 

“conduct a brief cross-examination to elicit a compact 

restatement of the favorable passages.” (3) If “[y]ou 

contemplate settling the case shortly after the deposition,” then 

“reflecting the testimony in the record will improve your 

settlement posture.” (4) “If the examining attorney is an 

insurance defense attorney and the deponent is the plaintiff, 

[that party’s counsel] may want to cross-examine about injuries. 

The claims superintendent may review the deposition transcript 

and base the pretrial settlement offer in large part on the 

deposition. Some credible cross-examination testimony about 

damages may lead to a higher settlement offer.” Finally, (5) if 

the deponent is “an opposing witness,” cross-examination “is an 

opportunity for discovery you might otherwise not have.” (Ibid., 

fns. omitted.)
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

33

deposition, featured circumstances that provided the party 

opponent with an interest and motive for cross-examination 

similar to that at trial. Properly 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. 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. 

B. The Court of Appeal’s Contrary Reasoning is 

Unpersuasive

As noted, the appellate court’s conclusion was heavily 

influenced by its understanding of the similarly-worded federal 

counterpart to section 1291(a)(2) — rule 804(b)(1) of the Federal 

Rules of Evidence. The language in the two provisions is indeed 

similar. Yet the federal rule, which was enacted a decade after 

ours, does not come with any official comment similar to that 

accompanying California’s 1965 enactment. And in any event, 

the interpretation of section 1291(a)(2) that we adopt is not 

contrary to what the Court of Appeal regarded as the prevailing 

interpretation of the federal rule — namely, that the former 

testimony inquiry requires a fact-specific analysis and that a 

similar but not identical motive is necessary to come within the 

former testimony hearsay exception.

22

 As has been explained, a 

22 We note that federal courts have denied motions to 

introduce deposition testimony at trials in subsequent cases 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

34

deposition may be admissible under section 1291(a)(2) in 

various situations in which the party against whom it would 

presently be introduced did in fact have the opportunity to crossexamine the witness at the deposition with an interest and 

motive similar to those it has at the subsequent hearing. (See 

Wahlgren, supra, 151 Cal.App.3d at p. 546.) 

But the Court of Appeal derived another rule from federal 

law — the proposition that “ ‘a party’s decision to limit crossexamination in a discovery deposition is a strategic choice and 

does not preclude his adversary’s use of the deposition at a 

subsequent proceeding.’ ” (Berroteran, supra, 41 Cal.App.5th at 

p. 531, quoting Hendrix v. Raybestos-Manhattan Inc., supra, 776 

F.2d at p. 1506, and also citing Pearl v. Keystone Consolidated

Industries, Inc. (7th Cir. 1989) 884 F.2d 1047, 1052.) The Court 

of Appeal then cited California law purportedly consistent with 

the idea that a party’s motives and interest at trial are likely to 

be similar to the party’s motives and interest at an earlier 

deposition.

23

 Notably, however, the appellate court addressed 

even when the issues in the two cases were similar — suggesting 

that, consistent with our own understanding, similarity of the 

issues is not dispositive under the federal rule. (See, e.g., S.E.C. 

v. Jasper (9th Cir. 2012) 678 F.3d 1116, 1128 [because the S.E.C. 

had a different motivation in examining the witness at an early 

“investigat[ive]” proceeding, the transcript of the earlier 

testimony could not be offered against the S.E.C. at trial]; see 

id., at pp. 1127–1129; Securities Investor v. Bernard L. Madoff 

Inv. (S.D.N.Y. 2019) 610 B.R. 197, 228 [finding no similar 

interest and motive in the absence of “an ‘interest of 

substantially similar intensity to prove . . . the same side of a 

substantially similar issue’ ”].) 

23 Although, as noted, federal law is not our touchstone here, 

it may be questioned whether the two federal cases cited by the 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

35

only decisions applying section 1291(a)(2) in the context of 

criminal trials — most affirming trial court decisions permitting

testimony given at a preliminary hearing to be introduced at an 

ensuing criminal trial. (41 Cal.App.5th at p. 532, citing People 

v. Ogen (1985) 168 Cal.App.3d 611, 617 [affirming admission at 

trial of testimony from a preliminary hearing in a different 

proceeding, at which defense counsel had conducted extensive 

cross-examination]; and People v. Samayoa (1997) 15 Cal.4th 

795, 850 [affirming admission at a capital penalty-phase trial of 

testimony elicited during a preliminary hearing at which 

defense counsel had conducted cross-examination designed to 

cast doubt on identification of the defendant].) The Court of 

Appeal likewise cited criminal cases stressing that “[a] party’s 

‘interest and motive at a second proceeding is not dissimilar to 

his interest at a first proceeding within the meaning of . . . 

section 1291, 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 witness in certain 

particulars. [Citation.] The “ ‘motives need not be identical, 

only “similar.” ’ ” ’ ” (Berroteran, supra, 41 Cal.App.5th at 

pp. 532–533, quoting People v. Harris (2005) 37 Cal.4th 310, 

333.) 

These and analogous criminal cases concern testimony 

arising in earlier adjudicative hearings at which a defendant, 

Court of Appeal below for this proposition in fact support that 

view. Indeed, it appears that Hendrix and Pearl simply recited 

and applied the unexceptional point that actual crossexamination is not required for the former testimony exception 

to apply. It is not clear that either meant to suggest that a 

party’s reasons for limiting cross-examination in a deposition 

are categorically irrelevant to the similarity of interest inquiry. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

36

who may be well-armed with discovery already received from 

the prosecution,

24 often has an interest and motive to examine 

the witness in order to avoid being bound over for trial by the 

presiding magistrate. In that setting, there frequently may be 

reason to find that similar interest and motive exist at the 

preliminary hearing and trial stages. Yet, as the official 

comment concerning section 1291(a)(2) implies, and as the court 

in Wahlgren recognized, such a general rule does not naturally 

or normally apply with respect to civil depositions, which are 

never adjudicatory in nature, never subject a party to immediate 

jeopardy or loss of freedom, and which are, in practice, often 

undertaken purely (or at least primarily) for purposes of 

discovery.25 

24 See, e.g., People v. Hull (2019) 31 Cal.App.5th 1003, 1034

[independent of state criminal statutory directives, “ ‘a 

defendant has a due process right under the California 

Constitution and the United States Constitution to disclosure

prior to the preliminary hearing of evidence that is both 

favorable and material, in that its disclosure creates a 

reasonable probability of a different outcome at the preliminary

hearing’ ”]. By contrast, there is no comparable statutory or due 

process right to discovery at any stage of civil litigation. 

Although a party might find information in public records, and 

some witnesses may be available for informal interview, in civil 

cases most important document and witness information needed 

by a party, particularly a party plaintiff, frequently is under the 

control of the opposing party, and hence can be obtained only by 

discovery. 

25 Although we discern no fault in our prior decisions 

applying section 1291 to preliminary testimony in a criminal 

case, our holding concerns civil depositions only; we express no 

view regarding admissibility under section 1291 of other types 

of former testimony. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

37

The Court of Appeal discounted Wahlgren’s assertion that 

“[a]ll respected authorities . . . agree that given the [deposition] 

hearing’s limited purpose and utility, examination of one’s own 

client is to be avoided” (Wahlgren, supra, 151 Cal.App.3d at 

p. 546) — and it criticized that decision for failing to cite any 

support for that proposition. (Berroteran, supra, 41 Cal.App.5th 

at p. 533.) As demonstrated above, however, Wahlgren’s 

observation about discovery depositions, even if not backed by 

citations in that opinion, is correct. There was and remains 

overwhelming support for the proposition that defending

counsel at a civil discovery deposition typically have strategic 

reasons to avoid questioning an aligned witness. The Court of 

Appeal’s conclusion that Wahlgren is wrong or outdated in this 

respect is belied by prominent treatises and practice guides such 

as those discussed previously. 

Moreover, as Ford and its amici curiae correctly observe, 

videotaping, 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, which must 

specify videotaping in the deposition notice (Code Civ. Proc. 

§ 2025.220, subd. (a)(5)) and make practical arrangements for 

the recording. 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.

Finally, as noted earlier, the Court of Appeal disregarded 

the Legislature’s official comment concerning section 1291,

relegating discussion to a footnote. The appellate court

reasoned that because Ford did not “proffer any evidence that 

there was any strategic reason for not cross-examining its 

witnesses at their depositions,” the court saw no reason to 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

38

“address whether this partial legislative history would dictate a 

different outcome upon a proper and different record.” 

(Berroteran, supra, 41 Cal.App.5th at p. 534, fn. 10, italics 

added.) 

There are multiple problems with this analysis. First, as 

related ante, part II.A (and fn. 12), in adopting section 1291 the 

Legislature did so only after its judiciary committees endorsed 

the Law Revision Commission’s comment regarding that 

statute, distinguishing between trial and deposition testimony, 

and providing cautionary elaboration concerning the use of 

deposition testimony under the provision. It is plain that the 

Legislature viewed the comment as integral to interpreting and 

applying the statute — and indeed, Berroteran does not contend 

otherwise. In light of this background, a court may not dismiss 

the comment as mere “partial legislative history.” (Berroteran, 

supra, 41 Cal.App.5th at p. 534, fn. 10.)26 

Second, and fundamentally, the Court of Appeal’s stated 

reason for failing to honor the comment fails. Absent an 

agreement among the parties concerning use of the deposition, 

the burden to establish the conditions of the exception to the 

hearsay rule articulated by section 1291(a)(2) rests with the 

proponent of admission — here, Berroteran — and not with 

Ford, the opponent of admission. (See, e.g., People v. Livaditis

26 The same observation applies concerning the Court of 

Appeal’s assertion that “Wahlgren’s analysis . . . 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’ and is not limited to former ‘trial testimony.’ ” 

(Berroteran, supra, 41 Cal.App.5th at pp. 533–534, fn. omitted.) 

Again, as noted, the Legislature’s official comment explicates 

the section’s purpose and addresses its meaning and 

application. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

39

(1992) 2 Cal.4th 759, 778 [“The proponent of hearsay” must 

“alert the court to the exception relied upon and has the burden 

of laying the proper foundation”], and authorities cited; see also 

Civil Trials and Evidence, supra, ¶ 8:1405, p. 8D-114, [“the 

proponent must . . . establish that the adverse party’s crossexamination motives and interests before and now are 

sufficiently similar,” first italics added, citing the official 

comment concerning section 1291].) As noted, section 1291(a)(2) 

makes former testimony hearsay evidence admissible upon 

three conditions: The declarant is unavailable; the opposing 

party was a party to prior litigation; and the opposing party had 

opportunity to cross-examine with a similar motive and interest. 

As the cited authorities suggest, it is natural to view the 

proponent of admission as bearing the burden of proof on each 

of these elements. Yet the appellate court below appears to have 

shifted the burden of proof concerning this hearsay exception to 

the opponent of the evidence, Ford.27

27 Indeed, this aspect of the Court of Appeal’s reasoning 

pervaded and infected its analysis. After setting forth its 

criticisms of Wahlgren, the appellate court proceeded to 

determine that the trial court abused its discretion in excluding 

the proffered video deposition testimony. In the course of its 

discussion the appellate court reasoned that “Ford failed to 

demonstrate any such different motive or interest here” 

(Berroteran, supra, 41 Cal.App.5th at p. 520); “Ford offered no 

further explanation why its motive to examine any specific 

employee or former employee differed from its motive in the 

current case” (id., at p. 534, italics added); “Ford made no 

showing that it lacked a similar motive to examine its witnesses 

during their depositions” (ibid., italics added); and “Ford fails to 

demonstrate that it lacked a similar motive to examine its 

witnesses in the former litigation” (id., at p. 535, italics added). 

Given this, the appellate court concluded Ford did indeed have 
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Opinion of the Court by Cantil-Sakauye, C. J.

40

Ultimately, the Court of Appeal reasoned, because “the 

gravamen of each lawsuit was the same or similar,” Ford must 

have had a “similar motive in questioning its witnesses on the 

substantial overlapping allegations.” (Berroteran, supra,

41 Cal.App.5th at p. 535.)28 In other words, the appellate court 

implicitly presumed that because of the similarity of the suits

and Ford’s position in each, Ford had an interest and motive to 

cross-examine each aligned witness during each deposition. In 

so reasoning, the court appears to have discounted, if not 

ignored, the comment’s admonition that “mere[] . . . similarity of 

the party’s position in the two cases” (Com., ¶ 4, italics added) is 

not dispositive, and instead must yield to other “practical 

considerations.” (Ibid.) 

Indeed, the appellate court’s undue focus on Ford’s 

similarity of position in the various settings also led it to assert, 

repeatedly, that at each of the depositions “Ford had a similar 

motive to disprove the allegations of misconduct, and 

knowledge, all of which centered around the 6.0-liter diesel 

engine.” (Berroteran, supra, 41 Cal.App.5th at p. 534, italics 

“a similar motive to examine each of the nine deponents.” (Id., 

at p. 534, fn. omitted.) And yet Ford — the opponent of 

introduction, which had appeared at the non-adjudicatory civil 

deposition representing an aligned witness — bore no burden to 

prove that it lacked a similar interest and motive to examine its 

witnesses at that deposition. The burden to prove that Ford had

a similar interest and motive rested with the proponent, 

Berroteran. 

28 Likewise, the appellate court observed, “The videotaped 

deposition testimony from the former federal and state 

litigations was on the same issues Berroteran raises in his 

current lawsuit” — and hence, the court concluded, “Ford had a 

similar motive to examine each of the nine deponents.” 

(Berroteran, supra, 41 Cal.App.5th at p. 534, fn. omitted.) 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

41

added.)29 And yet a party would be unlikely to have a motive or 

reason at a deposition of its own witness to disprove anything. 

As Ford and its supporting amici curiae observe, concluding 

otherwise would substantially expand and complicate 

deposition practice, forcing it to take on the character of a fullblown liability trial. For the reasons discussed above, the 

contrary views of Berroteran and amici curiae on his behalf are 

based on fundamental misconceptions concerning the practical 

considerations that must inform the requirements of section 

1291.

Perhaps the Court of Appeal below was persuaded by 

Berroteran’s repeated assertions that Ford’s litigation position 

suggested “gamesmanship”: Although Ford had not objected to 

introduction of the designated parts of these depositions in prior 

California opt-out cases, in this case, on the eve of trial, Ford 

asserted its purported rights under section 1291 to exclude the 

materials. Berroteran argues that he would have to incur the

expense of deposing each out-of-state witness in order to obtain 

and introduce that same testimony — much of which,

assertedly, consists of uncontroverted historical facts. Yet a 

litigant in Berroteran’s position has other means of avoiding 

repetitive depositions, and indeed, a trial court can and should 

facilitate use of measures to obviate need for repeated 

depositions covering the same ground. Confirming uncontested 

matters is one purpose of interrogatories (Code Civ. Proc., 

§ 2030.010 et seq.) and requests for admission (id., § 2033.010 

et seq.). Both statutes are designed to accommodate enhanced 

29 Later, the court reiterated, “Each deponent was 

represented by Ford’s counsel, and Ford had the same interest 

to disprove allegations related to the 6.0-liter diesel engine.” 

(Id., at p. 535, italics added.) 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

42

use of each device (see id., §§ 2030.040, 2030.050 [propounding 

additional interrogatories]; 2033.040, 2033.050 [propounding 

additional requests for admission]), and we trust that a trial 

court would approve such requests as warranted. Moreover, if 

a party fails to comply (see id., § 2023.010, subds. (d)–(h)), a 

court may, and we trust will, impose a broad range of 

appropriate sanctions (see id., § 2023.030). 

Finally, even if, as the Court of Appeal appears to have 

suggested, a presumption favoring admitting hearsay under 

section 1291 were supportable under the statutory scheme, that 

would be an unsuitably blunt tool by which to address the 

inefficiencies highlighted by Berroteran. Instead, a proper 

application of the fact-sensitive approach that section 1291 

requires, and which we outline immediately below, can be 

expected to appropriately guide application of this hearsay rule.

IV. APPROACH THAT A TRIAL COURT 

SHOULD UNDERTAKE IN THIS SETTING

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 crossexamine the declarant with an interest and motive similar to 

that which” the same party will have at the present trial.

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: 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

43

(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 

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 nowobjecting party, by having agreed to use of the deposition 

testimony in some future related case, contemporaneously 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

44

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, implied, 

generally not made admissible by section 1291(a)(2). As noted, 

this statute, in essence, 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: 

30 In other words: Presumably, counsel for a party would not 

agree to a deposition’s use in any future different albeit related 

case unless counsel was satisfied that there had been, 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 related case. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

45

(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 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 crossexamine 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 

31 Often a party may have reason to conduct limited 

examination of its own deposition witness in order to explain,

circumscribe, or correct potentially misleading or damaging 

testimony. Standing on its own, such limited examination does 

not demonstrate the existence of an interest and motive to 

conduct the type of cross-examination that the party would 

undertake at trial, as is required by the statute. The proponent

of admission, however, may be able to demonstrate that the 

opposing party would have no interest and motive to undertake 

a more extensive examination at trial compared with the interest 

and motive that existed at the deposition, thereby satisfying this 

element of admission. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

46

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 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. 

(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 
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Opinion of the Court by Cantil-Sakauye, C. J.

47

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 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 

32 As observed ante, footnote 31, however, the opposing 

party’s interest and motive at trial may be to conduct only a 

limited cross-examination, and this is particularly so when the

witness is aligned with that party. Under such circumstances, 

the proponent of admission may be able to demonstrate that the 

limited examination at the deposition was consistent with a

correspondingly limited motive and interest to cross-examine at 

trial. Regardless of the circumstances, however, any 

consideration of the cross-examination actually undertaken is 

merely evidence from which an interest and motive might be 

inferred and not an independent factor in the court’s analysis.
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

48

element of admission is satisfied with respect to the designated 

testimony.

(6.) “Similarity of position.” When, as appears in the 

present case, respective 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 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.) 

Finally, with regard to the trial court’s review and 

determination, it should make a record — orally, or preferably 

in writing — reflecting its reasoning regarding the key issue of 

similarity of motive and interest. (Cf. Facebook, Inc. v. Superior 

Court (Touchstone) (2020) 10 Cal.5th 329, 358 [a trial “should 

create a record that facilitates meaningful appellate review”].) 

V. CONCLUSIONS AND DISPOSITION

The Court of Appeal below construed Wahlgren, supra,

151 Cal.App.3d 543, as establishing a “categorical bar to 

admitting deposition testimony under section 1291.”

(Berroteran, supra, 41 Cal.App.5th at p. 529, italics added; see 

also id., p. 533.) We do not read Wahlgren as announcing any 

such definitive holding. Instead, as explained previously, we 

view that case as appropriately construing section 1291(a)(2) to 
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Opinion of the Court by Cantil-Sakauye, C. J.

49

articulate a general rule against the use of a discovery 

deposition in a subsequent proceeding, unless the proponent can 

show that the requirements of the statute, as illuminated by the 

Legislature’s official comment, are met. If this understanding

of section 1291(a)(2) is to be reconsidered or revised in the 

manner suggested by the Court of Appeal below, the 

Legislature, and not a court, should be the agent of any such 

change.33 

For the reasons set out above, we reverse the Court of 

Appeal’s judgment. 

33 Likewise, if, as Berroteran suggests, there is any tension 

with the Code of Civil Procedure (see ante, fn. 19), that too is a 

matter for the Legislature’s attention and consideration. 
BERROTERAN v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

50

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

MANELLA, J. *

* Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Four, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Berroteran v. Superior Court

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 41 Cal.App.5th 518

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S259522

Date Filed: March 7, 2022

__________________________________________________________ 

Court: Superior

County: Los Angeles

Judge: Gregory Keosian

__________________________________________________________ 

Counsel:

Knight Law Group, Steve B. Mikhov, Lauren A. Ungs; The Altman 

Law Group, Bryan C. Altman, Christopher J. Urner; Greines, Martin, 

Stein & Richland, Edward L. Xanders, Cynthia E. Tobisman and 

Nadia A. Sarkis for Petitioner.

The Sturdevant Law Firm and James C. Sturdevant for Consumers for 

Automobile Reliability and Safety, Consumer Action, Consumer 

Federation of California and California Public Interest Research Group 

as Amici Curiae on behalf of Petitioner.

Alan Charles Dell’Ario for Consumer Attorneys of California as Amicus 

Curiae on behalf of Petitioner.

No appearance for Respondent.
Horvitz & Levy, Frederic D. Cohen, Lisa Perrochet, Allison W. 

Meredith; Sanders Roberts, Justin H. Sanders, Darth K. Vaughn and 

Sabrina C. Narain for Real Party in Interest.

Fred J. Hiestand for the Civil Justice Association of California as 

Amicus Curiae on behalf of Real Party in Interest.

Faegre Drinker Biddle & Reath and Alan J. Lazarus for the Product 

Liability Advisory Council, Inc., as Amicus Curiae on behalf of Real 

Party in Interest.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Cynthia E. Tobisman

Greines, Martin, Stein & Richland LLP

5900 Wilshire Boulevard, 12th Floor

Los Angeles, CA 90036

(310) 859-7811

Frederic D. Cohen

Horvitz & Levy LLP

3601 West Olive Avenue, 8th Floor

Burbank, CA 91505

(818) 995-0800