California Court of Appeals, Second District, First Division
Cal.Rptr.3d 340] ORIGINAL PROCEEDING; petition for writ of
mandate. Gregory Keosian, Judge. Petition granted. (Los
Angeles County Super. Ct. No. BC542525)
Law Group, Steve B. Mikhov, Lauren A. Ungs, Los Angeles; The
Altman Law Group, Bryan C. Altman, Christopher J. Urner, Los
Angeles; Greines, Martin, Stein & Richland, Edward L. Xanders
and Cynthia E. Tobisman, Los Angeles, for Petitioner.
& Levy, Frederic D. Cohen, Lisa Perrochet, Allison W.
Meredith, Burbank; Sanders Roberts, Justin H. Sanders, Los
Angeles, Darth K. Vaughn, and Sabrina C. Narain, Mission
Vlejo, for Real Party in Interest.
OPINION AND ORDER GRANTING PETITION FOR WRIT OF
Cal.Rptr.3d 341] 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) of former testimony.
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.
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
reaching this conclusion, we disagree with Wahlgren v.
Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, 198
Cal.Rptr. 715 (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, 198 Cal.Rptr. 715.)
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
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.
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
initial complaint is not included in our record. On May 22,
2014, [254 Cal.Rptr.3d 342] 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
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.
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
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
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.
accurately characterizes the operative complaint in the
multidistrict litigation [254 Cal.Rptr.3d 343] 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).
113-page operative complaint included the following
allegations. 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.
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
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.
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.
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