New Ca Supreme Court Evidence Case

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A question that can arise during trial is whether a party can use a discovery deposition, taken in an earlier action, under the hearsay exception in Evidence Code section 1291(a)(2). Last month, the California Supreme Court published a new decision addressing this issue. In the video above I briefly discuss this new case. Below is my summary of the case.

New Evidence Decision 

Berroteran v. Superior Court (2022) _ Cal.5th _ , 2022 WL 664719: The California Supreme Court reversed the Court Appeal's decision concluding that discovery deposition testimony in an earlier action was admissible under the hearsay exception in Evidence Code, section 1291(a)(2). Although the parties had settled the case, the California Supreme Court exercised its discretion to proceed to decide the matter. Finding the Court of Appeal's reasoning to be unpersuasive, the California Supreme Court concluded that section 1291(a)(2) creates a general rule against admission of testimony from a prior civil discovery deposition. When ruling on the admissibility of such prior testimony, the trial court should take the following approach. It should determine whether the parties intended, at the outset, that the deposition would serve as trial testimony. It should determine whether the parties subsequently reached agreement concerning use of the deposition at trial in that case, or in other cases. Other key practical considerations are the timing of the deposition within the context of the litigation and special circumstances creating an incentive for cross-examination; the relationship of the deponent and the opposing party, the anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context; conduct at, and surrounding, the deposition — and the degree of any examination conducted by the opposing party; the particular designated testimony; and the similarity of position. (March 7, 2022.)

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