Original Proceeding: petition for writ of mandate. Super. Ct. No. MC006881. Hon. Ross W. Amspoker, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Review Granted January 22, 1997 (S057119), (See 16 Cal. 4th 1101).
Vogel (Miriam A.), J.; Spencer, P.j., and Ortega, J., Concurring.
The opinion of the court was delivered by: Vogel
In Stermer v. Superior Court (1993) 20 Cal. App. 4th 777, Division Six of our court held that the trial court has no authority to order a party to perform a physical reenactment of an event at a videotaped deposition. In our view, our colleagues were wrong, and we hold in this case that such authority does exist.
William Grayson cut his hand while using a radial power saw. Grayson sued Emerson Electric Co. and Sears, Roebuck & Co. (collectively "Emerson") for damages on various tort theories. At his duly noticed videotaped deposition, Grayson's lawyer refused to permit his client to draw any diagrams (because, he said, "this is an oral deposition") and refused to permit him to demonstrate the accident using the saw (because, he said again, "this is an oral deposition").
Emerson filed a motion for an order precluding Grayson's introduction at trial of "any evidence consisting of nonverbal testimony demonstrating the circumstances of the accident" or, in the alternative, an order compelling Grayson to "respond to questions at his videotaped deposition which seek nonverbal testimony demonstrating the circumstances of that accident." Relying on Stermer, Grayson opposed the motion. After suggesting the result was "ridiculous," the trial court denied Emerson's motion on the ground that it was required to follow Stermer. Emerson filed a petition for a writ of mandate, asking us to reexamine the issue and to disagree with Stermer or, at a minimum, to distinguish it from this case on the ground that Stermer does not suggest the trial court is without authority to preclude the introduction at trial of nonverbal evidence when a party refuses to make such evidence available during discovery. We issued an order to show cause, received opposition, and heard oral argument, and we now explain why we disagree with our friends in Division Six.
We begin with the relevant portions of a very long statute, section 2025 of the Code of Civil Procedure. *fn1 After identifying the persons who can be deposed ( § 2025, subd. (a)), describing the details of the required notice ( § 2025, subds. (b), (c), (d)), explaining where and when depositions may be held ( § 2025, subds. (e), (f)), and providing for protective orders ( § 2025, subd. (i)), the statute addresses videotaped depositions:
"The party noticing the deposition may also record the testimony by . . . videotape if the notice of deposition stated an intention also to record the testimony by [that] method, or if all the parties agree that the testimony may also be recorded by [that] method. . . . Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code. . . . A party intending to offer a . . . videotaped recording of a deposition in evidence [at trial] shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time for objections to be made and ruled on . . . ." ( § 2025, subds. (1)(1), (1)(2), emphasis added.)
Subdivision (o) of section 2025 covers motions to compel: "If a deponent fails to answer any question . . ., the party seeking discovery may move the court for an order compelling that answer . . . . If a deposition is recorded by . . . videotape, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion. If the court determines that the answer . . . sought is subject to discovery, it shall order the answer be given . . . ." There is more, but none of it is relevant to this case.
II. Stermer v. Superior Court
Stermer is substantively indistinguishable from our case. There, the parents of a child killed in an automobile accident sued the seller and manufacturer of the car seat in which the child was riding. At the mother's videotaped deposition, defense counsel asked her to "perform, before the camera, the manner in which she placed and secured the infant into the car seat. [The defendants] provided . . . a car seat and plastic doll for this demonstration." The mother's attorney instructed her not to comply, and the defendants moved to "compel the reenactment at the deposition . . . ." ( Stermer v. ...