Berroteran v. Superior Court
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At issue in this case was whether Ford had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which it has at the hearing. It was undisputed that petitioner otherwise satisfied the statutory prerequisites for admission of the former testimony under Evidence Code section 1291.
The Court of Appeal held that Ford had the right and opportunity to cross-examine its employees and former employees with a similar motive and interest as it would have in the instant case. The court held that, while a party's motive and interest to cross-examine may potentially differ when the prior questioning occurs in a pre-trial deposition, Ford failed to demonstrate any such different motive or interest here. Therefore, the court disagreed with Wahlgren v. Coleco Industries, Inc., (1984) 151 Cal.App.3d 543, to the extent it espouses a blanket proposition that a party has a different motive in examining a witness at a deposition than at trial. Accordingly, the court granted the petition for writ of mandate and directed the trial court to enter a new order denying Ford's motion in limine excluding the videotaped deposition testimony of nine of Ford's employees and former employees. The court also directed the trial court to reconsider the admissibility of documentary evidence that the trial court may have excluded because it found the depositions inadmissible.
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