Motive and Interest Under EC § 1291

Berroteran v. Superior Court, No. S259522 (Cal. Mar. 7, 2022)

This is Supreme Court decision regarding when deposition testimony taken in a different case is admissible at trial the former testimony hearsay exception under Evidence Code § 1291. I pretty much called the holding here in my write up of the 2019 decision of the Court of Appeal. The takeaway is that deposition testimony from prior cases is not likely admissible at trial, but that is not a per se rule of exclusion. 

Admissibility under § 1291 depends on whether the party against whom the testimony is offered 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 trial. § 1291(a)(2). Here, examining, in particular, the Law Revision Commission’s official commentary, as well as practical advice in practice guides, the Court explains that the non-noticing party of a discovery deposition will rarely have the same interest and motive as it will at trial. That’s because, most of the time, and especially for party-affiliated witnesses, the non-noticing party has no interest in asking questions at a discovery deposition. 

Interestingly, the Court sets out a framework for how to decide otherwise. It creates a three-step test, the third step of which is its own multi-factor balancing test. 

Here's a flowchart, if you are into that kind of thing:

Court of Appeal reversed.