So That's What Those Are For

Morgan v. Davidson, No. E068.44 (D4d2 Nov. 27, 2018)

This is a battery case arising from a fight between neighbors. Plaintiff prevailed and obtained a substantial punitive damages award. There’s two procedural issues.

First, Defendant says there’s no substantial evidence to support the award of punitives, because evidence of Defendant’s financial condition was not admitted. Plaintiff says that’s because Defendant refused to respond to a notice to appear and produce under Code of Civil Procedure § 1987(b) and (c), which is basically the equivalent of a subpoena duces tecum for trial. It appears that the notice was timely served, but Defendant never objected or produced documents. Because Plaintiffs failure to admit evidence of financial conduction was the result of Defendant’s failure to comply with her discovery obligations, the Court holds it was excused. 

The second issue is about deposition transcripts. Several times, Defendant’s lawyer tried to impeach witnesses by reading from a photocopy of the witness’s depo transcript. Plaintiff objected because Defendant was not reading from the original bound deposition or a certified copy. That violated a local rule requiring the lodging of originals or certified copies, the point of which was to ensure that any transcript used at trial is of unquestionable authenticity. The trial court sustained several objections.

Defendant argues that the rule violates § 2025.620, which permits the use of deposition testimony at trial. But § 2025.620 just says when the testimony can be used. It’s silent on what form of the physical transcript can be used to prove the content of the testimony. In the face of that silence, the trial court enacted a rule requiring the lodging of the original or a certified copy. The local rule merely filled a gap in the statute; it didn’t contradict it.

Affirmed.