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Berroteran v. Superior Court (Ford Motor Company)

California Court of Appeals, Second District, First Division

October 29, 2019

RAUL BERROTERAN II, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent FORD MOTOR COMPANY, Real Party in Interest.

          ORIGINAL PROCEEDING; petition for writ of mandate. Los Angeles County Super. Ct. No. BC542525 Gregory Keosian, Judge. Petition granted.

          Knight Law Group, Steve B. Mikhov, Lauren A. Ungs; The Altman Law Group, Bryan C. Altman, Christopher J. Urner; Greines, Martin, Stein & Richland, Edward L. Xanders and Cynthia E. Tobisman for Petitioner.

          Horvitz & Levy, Frederic D. Cohen, Lisa Perrochet, Allison W. Meredith; Sanders Roberts, Justin H. Sanders, Darth K. Vaughn, and Sabrina C. Narain for Real Party in Interest.

          OPINION AND ORDER GRANTING PETITION FOR WRIT OF MANDATE

          BENDIX, J.

         This case puts us in the unenviable position of disagreeing with our sister court as to the admissibility under Evidence Code section 1291, subdivision (a)(2)[1] of former testimony.

         Here, the challenged former testimony is from nine unavailable witnesses, who previously were deposed in other state and federal litigation. The parties dispute whether real party in interest, Ford Motor Company (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.” (§ 1291, subd. (a)(2), italics added.) It is undisputed that petitioner Raul Berroteran II otherwise satisfied the statutory prerequisites for admission of the former testimony under section 1291.

         We conclude 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. Each case, including the present one, concerns Ford's model 6.0-liter diesel engine, the engine's alleged deficiencies, Ford's alleged knowledge of those deficiencies, and Ford's strategy regarding repairing the engines. 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.

         In reaching this conclusion, we disagree with Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543 (Wahlgren) 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. Wahlgren assumed that deposition testimony is limited to discovery and has a “limited purpose and utility.” (Id. at p. 546.) These assumptions, however, are unsupported by legal authority, inconsistent with modern trials and the omnipresence of videotaped depositions during trial, and contrary to persuasive federal law interpreting an analogous hearsay exception.

         We grant Berroteran's petition for writ of mandate and direct 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. We also direct the trial court to reconsider the admissibility of documentary evidence that the trial court may have excluded because it found the depositions inadmissible.

         BACKGROUND

         This mandate proceeding challenges the trial court's grant of Ford's motion in limine to exclude the deposition testimony of the following Ford employees and former employees: Frank Ligon, Scott Eeley, John Koszewnik, Mike Frommann, Mark Freeland, Scott Clark, Eric Gillanders, Eric Kalis, and Robert (also referred to as Bob) Fascetti (motion in limine no. 30). Clark, Gillanders, and Kalis testified as Ford's persons most knowledgeable.

         1. Operative Complaint in the Current Litigation

         Berroteran's initial complaint is not included in our record. On May 22, 2014, Berroteran filed the operative pleading, the first amended complaint, alleging causes of action for multiple counts of fraud, negligent misrepresentation, violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), and violation of the Song Beverly Consumer Warranty Act (id., § 1790 et seq.).

         Berroteran alleged that on March 25, 2006, he purchased a new model Ford F-250 truck. The truck had a defective 6.0-liter diesel engine supplied by Navistar International Transportation Corporation (Navistar). When he purchased his Ford truck, Berroteran relied on Ford's representations that the engine was reliable and offered superior power. Prior to purchasing the vehicle, Berroteran read materials prepared by Ford stating that the engine was “high-quality” and “free from inherent defects, ” and was “ ‘best in-class: horsepower, gas torque, unsurpassed diesel horsepower, best conventional towing, and best 5th wheel towing.' ” Further, a salesperson assured Berroteran the engine was Ford's best.

         Berroteran also alleged that while driving his truck, he experienced numerous breakdowns, “a blown turbo, ” and problems while towing. According to Berroteran, Ford's attempts at repairs did not remedy the problems despite Ford's representations that it had fixed the engine. Berroteran further alleged he was unable to use the truck for the purposes for which he purchased it.

         In the operative complaint, Berroteran described Ford's purported deceptive repair history regarding his and other consumers' 6.0-liter Navistar diesel engines: “Ford: (a) rather than identifying and eliminating the root cause of these defects, produced and sold the vehicle to Plaintiff[ ] and other consumers, knowing it contained a defective engine; (b) adopted through its dealers a ‘Band-Aid' strategy of offering minor, limited repair measures to customers who sought to have the defects remedied, a strategy that reduced Ford's warranty expenditures but did not resolve the underlying defects and, in fact, helped to conceal the defects until the applicable warranties expired; and (c) intentionally and fraudulently concealed from Plaintiff... these inherent defects prior to the sale or any time thereafter....” In Berroteran's words: “At all relevant times, Ford was aware of its inability to repair the defects in the 6.0-liter Navistar diesel engine.”

         2. Other Litigation Against Ford Related to the 6.0 Liter Diesel Engine

         Like the current case, the prior litigations in which plaintiffs deposed Ford's employees and former employees involved allegations that Ford's 6.0-liter diesel engine was defective. We summarize below those prior litigations and the videotaped depositions that are at issue in the mandate proceeding before us.

         a. MDL No. 2223 In re: Navistar 6.0L Diesel Engine Products Liability Litigation Federal Multidistrict Litigation[2]

         Berroteran was a putative class member of the federal lawsuit Burns v. Navistar Inc. and Ford Motor Company filed in the Southern District of California. The case merged into a multidistrict class action against Ford related to the 6.0-liter diesel engine.

         Ford accurately characterizes the operative complaint in the multidistrict litigation as alleging “there were defects in the 6.0-liter diesel engine that Ford installed in a range of pickup trucks, sports utility vehicles, vans, and ambulances between 2003 and 2007.” Ford accurately states that like in the current proceeding, the multidistrict litigation “deal[t] generally with alleged 6.0-liter engine problems.” The operative complaint in the multidistrict litigation included a subclass of persons who purchased or leased vehicles in the state of California. That subclass alleged violations of California's Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and California's Unfair Competition Law (Bus. & Prof. Code, § 17200).

         The 113-page operative complaint included the following allegations.[3] Ford marketed and sold vehicles equipped with Ford's 6.0-liter diesel engine. The 6.0-liter diesel engine was defectively designed and manufactured. “Ford knew from the outset that there were severe and pervasive design, manufacturing, and quality issues plaguing the Ford 6.0L Engines. Yet, despite this knowledge, Ford never disclosed any of these issues to consumers.” Ford failed to authorize necessary major engine repairs during the warranty period, instead authorizing only inadequate repairs. Plaintiffs sought damages related to the cost to repair or replace the 6.0-liter diesel engine, and to the diminution in value as a result of the alleged defective engine.

         The multidistrict litigation ultimately settled after Ford stipulated to class certification and agreed to the settlement. Berroteran opted out of the class action settlement. The deposition testimony Berroteran seeks to introduce was admitted in four lawsuits by other putative plaintiffs who also had opted out of the settlement in the multidistrict litigation.

         In the context of the multidistrict litigation, the following Ford employees and former employees were deposed: Frank Ligon, Scott Eeley, John Koszewnik, Mike Frommann, and Mark Freeland. Ligon, Freeland, and Koszewnik had retired from Ford before their depositions. Ford's counsel represented each deponent during the depositions.

         At the time of his videotaped deposition, Eeley was employed at Ford as a supervisor for computer-aided engineering. In his deposition, Eeley testified regarding the 6.0-liter diesel engine, as well as Ford's position with respect to warranty issues involving the engine.

         In a videotaped deposition, Koszewnik testified that he left his employment with Ford in 2006, after 29 years. Koszewnik had many positions at Ford and retired as a chief engineer for three gasoline engines. The deposition concerned the “6.0-liter engine that Ford made.” In a videotaped deposition, Frommann testified that in 2006, he worked at Ford's customer service division as a warranty program manager. Plaintiffs' attorneys questioned Frommann about his knowledge of defects in Ford's 6.0-liter diesel engine.

         At the time of his videotaped deposition, Ligon had retired from Ford as the director of service engineering operations. In preparation for his deposition, Ligon reviewed e mails about the 6.0-liter diesel engine and met with Ford's counsel. Ligon testified about the 6.0-liter diesel engine and testified about e mails related to the engine. Freeland also had retired before his videotaped deposition. Freeland had several positions at Ford, and prior to his retirement, worked in “engine research.” In his deposition, Freeland testified he understood his deposition concerned “the work [he] did in conjunction with [a]... failure analysis on injectors on the 6.0 diesel engine.”

         b. Brown, et al. v. Ford Motor Company (Superior Court of California; County of Butte) [4]

         The operative complaint in Brown named Ford as a defendant and asserted the same causes of action as alleged in the current case. Brown arose out of the plaintiffs' purchase of a Ford truck with a 6.0-liter diesel engine supplied by Navistar. As in this case, the plaintiffs alleged that the 6.0-liter engine was defective. Further, as in this case, the plaintiffs described Ford's repair strategy for the 6.0-liter diesel engine: “Ford: (a) rather than identifying and eliminating the root cause of these defects, produced and sold the vehicle to Plaintiffs and other consumers, knowing it contained a defective engine; (b) adopted through its dealers a ‘Band-Aid' strategy of offering minor, limited repair measures to customers who sought to have the defects remedied, a strategy that reduced Ford's warranty expenditures but did not resolve the underlying defects and, in fact, helped to conceal the defects until the applicable warranties expired; and (c) intentionally and fraudulently concealed from Plaintiffs... these inherent defects prior to the sale or any time thereafter....”

         Eric Kalis's videotaped deposition was taken in the Brown litigation. At that deposition, Kalis testified as Ford's person most knowledgeable on the repair rates for the 6.0-liter diesel engine and Ford's analysis of the root causes of the engine's problems. Kalis also testified as Ford's custodian of records. Kalis was an employee of Ford at the time of his deposition in Ford's automotive safety office's design analysis group. Kalis confirmed that numerous documents were true and correct copies of documents created in the ordinary course of business. Counsel for Ford stipulated that for purposes of the Brown litigation, the videotaped deposition could be used “for any purpose whatsoever....”[5]

         c. Preston, et al. v. Ford Motor Company (Superior Court of ...


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