RSB Vineyards, LLC v. Orsi, No. A143781 (D1d3 Sept. 29, 2017)
In this real estate warranty case, the court affirms a summary judgment in favor of a seller because it didn’t actually know about the defects in the property and thus made no warranty about them. So far as I can tell, all well and good from a real estate perspective. But I’m not here to write about that stuff.
There is, however, a little procedural nugget. Plaintiff’s person-most-qualified witness testified at her deposition that Plaintiff wasn’t aware of any information to suggest that Defendants’ were aware of the defects before the sale. Defendant claims that testimony is a “binding admission” on the fact of the Defendants’ unawareness. But, although there’s not a ton of detail in the analysis, the court here says it’s not.
And the court is right. Lawyers often misconstrue the purpose of the right to take an organization’s person most qualified deposition under Code of Civil Procedure § 2025.230. The statute exists to require the organization identify a witness or witnesses who are knowledgeable (or who can be made knowledgeable) about the information known to the organization collectively. That way, the noticing party doesn’t have to depose a whole bunch of people inside the organization and guess whether or not there are others who might have better access to information.
The point is not, however, that the PMQ deponent speaks ex cathedra, in the sense that whatever he or she testifies to is the unassailable company line that can’t ever be corrected, changed, or contradicted. As a matter of evidence, PMQ testimony is basically just like any other deposition testimony.* When taken from an opponent, it’s a party’s admission in the sense of not being hearsay under Evidence Code §§ 1220 and 1222. But although in the summary judgment context, the testimony can’t be directly contradicted in a decaration without good reason under the D’Amico rule, it’s not a “binding admission” in the sense that an “admitted” response to a request for admission would be.
Affirmed.
*Ok. I’ll cop to the fact that, there’s potentially one way in which PMK testimony is somewhat different, but that’s not at issue here. An organization responding to a PMQ needs to provide testimony about information “reasonably available” to the organization. § 2025.230. To satisfy that requirement, sometimes it will need to produce a witness who does not personally know the information but was “educated” about it for the depo, such as by reviewing records or interviewing others. See generally Maldonado v. Superior Court, 94 Cal. App. 4th 1390, 1395 (2002). Such testimony often won’t satisfy the personal knowledge requirement of Evidence Code § 702.
This doesn’t matter most of the time, because personal knowledge isn’t required for an opposing party’s admissions. See Levy-Zentner Co. v. S. Pac. Trans. Co., 74 Cal. App. 3d 762, 787 (1977). But even a third-party PMQs’ “educated” testimony is usually considered in practice to be competent evidence in the summary judgment context, notwithstanding a lack of personal knowledge. That said, I’m not aware of a published California case that says that. Accord Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (finding Rule 30(b)(6) testimony to be competent summary judgment evidence). And whether it also can be used at trial is an even more open question in California. Accord Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006) (holding that trial testimony on a witness’s 30(b)(6) topics is admissible).
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