Trial Guide: Using Depositions of Entity Defendants

When trying a case against a company or public entity, one will often arrive at trial with multiple depositions of employees, managers, and former employees of the defendant. This is a practical guide one how to use these depositions at trial.

CCP § 2025.620 is the procedural gateway for allowing the use of a deposition at trial. While this provides the first step in the analysis, the party seeking to introduce the deposition testimony must also overcome the Hearsay rule.

CCP § 2025.620 states the following:

At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:

(a) Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code.

(b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing.

(c) Any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:

(1) The deponent resides more than 150 miles from the place of the trial or other hearing.

(2) The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following:

(A) Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant.

(B) Disqualified from testifying.

(C) Dead or unable to attend or testify because of existing physical or mental illness or infirmity.

(D) Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process.

(E) Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process.

(3) Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

(d) Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.

(e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.

(f) Substitution of parties does not affect the right to use depositions previously taken.

(g) When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in that subsequent action. A deposition previously taken may also be used as permitted by the Evidence Code.

Step 1: CCP Analysis:

Entity defendant’s speak through specially designated Persons Most Knowledgeable (“PMKs”). The process for this is set forth in CCP 2025.230.

A Plaintiff may always use the depositions of these Persons Most Knowledgeable (“PMKs”) (also called “Persons Most Qualified” or “PMQs”) as party admissions, meaning they can always be used for any purpose. [CCP § 2025.620(b)]

Step 2: Hearsay Analysis:

PMK/PMQ testimony is admissible as an exception hearsay, as PMKs are treated as parties.

Evidence Code § 1220 states:

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

Step 1: CCP Analysis:

An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent. [CCP § 2025.620(b).]

Managing Agent Definition: Whether a person is a Managing Agent is often determined on a case by case basis. The court explained that an agent can be considered a Managing Agent when their “systematic application of policies” realistically determines corporate policy, even if such policies are not formally adopted by the corporation. [Mazik v. Geico General Ins. Co. (2019) 35 Cal.App.5th 455.]

Step 2: Hearsay Analysis:

Officers, Directors, and Managing Agents are often allowed to made admissions on behalf of the company/entity. The higher up they are and the more authority they have, the more likely they can speak on behalf of the entity.

Evidence Code 1222 States:

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and

(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.

Only Prima Facie Evidence of Agency Needed

A party attempting to introduce an authorized admission only needs to submit a prima facie case of agency. This requires an examination of the employee’s usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement. (O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570.) The employee’s job responsibilities are an important factor in the authorized admission analysis. (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 169-170.) 

Importantly, the proponent need only show that the employee was authorized to speak on the subject matter in question; the proponent is not required to prove that the employee was authorized to make the specific statements in question. (W.T. Grant Co. v. Sup.Ct. (People) (1972) 23 Cal.App.3d 284, 286-287.) This authority may be implied or express. (O’Mary, supra, 59 Cal.App.4th at 570.) For example, in O’Mary, a vice president’s statements that the defendant was talking about getting rid of older managers was admissible as an authorized admission against the defendant. (Id.) The vice president’s authority was implied from usual and customary responsibilities. (Id.) 

In Levy-Zenter Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, the Court of Appeal affirmed the trial court’s admission of accidents reports written by the defendant and offered against the defendant under Evidence Code sections 1221 and 1222, the authorized and adopted admissions exceptions to the hearsay rule. (Id. at, 786.) Levy-Zenter Co. rejected an argument that the conclusions in the accident reports were inadmissible opinions, finding that the rule against opinion testimony does not apply to out of court statements by a party opponent. (Id. at 787.) Likewise, the court rejected an argument that the reports were inadmissible because the author lacked personal knowledge. “The usual requirement of personal knowledge is dispensed with in the case of admissions (Witkin, Evid. § 499; McCormick, Evid. § 263, and cases cited therein).” (Id.)  

In Bowser v. Ford Motor Company (2022) 78 Cal.App.5th 587this Court analyzed two different interpretations of the authorized admission exception:

Different jurisdictions have adopted two different versions of an authorized admission exception. In the older, narrower, now-minority version, it must be shown that the agent’s authority included the authority to speak for the principal—that the agent was “a so-called ‘speaking agent.’” (2 McCormick on Evid., supra, § 259; accord, 4 Jones on Evidence (Dec. 2020 update) § 27.18; e.g., Fed. Rules Evid., rule 801(d)(2)(C), 28 U.S.C.) In the newer, “expansive,” now-majority version, it need only be shown that the agent’s statement “concerned a matter within the scope of the declarant’s employment and was made before that relationship was terminated.” (2 McCormick on Evid., supra, § 259; accord, 4 Jones on Evidence, supra, § 27.18; e.g., Fed. Rules Evid., rule 801(d)(2)(D), 28 U.S.C.) (Id. at 612.)

The Bowser court held that while the wording of Evidence Code section 1222 might seem to adopt a narrower version of the rule, “the California Supreme Court has endorsed the more expansive version.

“The rule is that ‘ “ ‘whatever is said by an agent, either in the making of a contract for his principal, or at the time, and accompanying the performance of any act, within the scope of his authority, … of the particular contract or transaction in which he is then engaged, is, in legal effect, said by his principal, and admissible as evidence …. But declarations or admissions by an agent, of his own authority, and not accompanying the making of a contract, or the doing of an act, on behalf of his principal, … are not binding upon his principal … and are not admissible …’ ” (Ibid. (quoting Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059,1072).)

This majority interpretation does not reserve authority for adoptive admissions to high level organizational agents, but rather to lower-ranking agents where the admission is within the duties or responsibilities of that agent. (Id. at 612; See e.g. Consolidated Management Group, LLC v. Department of Corporations (2008) 162 Cal.App.4th 598, 604, 614 (held a salesman’s promotional materials was authorized admission); W.T. Grant Co. v. Superior Court (1972) 23 Cal.App.3d 284, 286-287 (held manager of one store of large chain made authorized admission when making statement to subordinate about store corporate policy); but see Crawford v. County of Sacramento (1966) 239 Cal.App.2d 791, 799-801 (held not authorized admission where employee “was neither high in the hospital’s hierarchy and therefore its spokesman to make admissions, nor did the alleged admission concern a matter within the scope of his agency”).)

Other Relevant Cases

O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563

• “The authority of a declarant employee to make a statement ‘for’ an employer “concerning the subject matter of the statement” can be implied, as well as express.”
• Corporate management statements were admissible as admissions.
• Court emphasized managerial authority and role in decision-making.

W. T. Grant Co. v. Superior Court (1972) 23 Cal.App.3d 284

• The court looked to the “usual and customary” authority for a store manager.

Johnson v. Bimini Hot Springs (1943) 56 Cal.App.2d 892

Declarant manager’s high place in the employer’s hierarchy plus the nature of his duties as manager of the operation allowed the court to conclude he was speaking “for” his employer.

Rank-and-file employees can still bind the company, if they are speaking on an area in which they are authorized to speak on behalf the company.

California Law is Restrictive. The fact an employee is authorized to act “does not authorize that agent to make statements” for the employer.

Step 1: CCP Analysis:

An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party.

Set 2: Hearsay Analysis

This is the same analysis as for managers, discussed above, but the areas in which a lower level employee is authorized to speak will be more narrow.

There are three pathways to admissibility.

1. Express authority (e.g., spokesperson, investigator assigned to speak).
2. Implied authority from position (rare for rank-and-file employees).
3. Adoptive conduct by the employer. Ratification by the employer of the employee’s statements.

Step 1: CCP Analysis:

It may be possible to use the deposition of a now former employee, as long as they were an employee at the time of the deposition.

An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing. [CCP § 2025.620(b)]

Set 2: Hearsay Analysis

If the witness was an employee at the time of deposition, use analysis described in (3) or (4) above.

Any party may use for any purpose the deposition of any person or organization if the witness is unavailable, meaning:

• The deponent is distant: (They live more that 150 miles away); OR
• The deponent can’t testify: (They are privileged from testifying, disqualified, dead, absent & cannot be compelled, absent & proponent exercised reasonable diligence to procure their attendance).
• There are exceptional circumstances: (“Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court”)

[CCP § 2025.620(c)]

Step 1: CCP Analysis

Any party may always use a deposition to impeach the testimony of a testifying witness. [CCP § 2025.620(a).]

Step 2: Hearsay Analysis

Evidence Code § 1235 states:

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.

Note: Be sure to comply with Evidence Code § 770 and ensure that the witness has not yet be excused from trial:

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or

(b) The witness has not been excused from giving further testimony in the action.

Final note: if the purpose of the deposition testimony is not for the truth of the matter, but rather to show notice/knowledge, then the testimony is non-hearsay, and the hearsay analysis can be skipped. For example, in a Labor Code 1102.5 Whistleblower case, if an employee of the defendant heard the plaintiff make a protected complaint, that is non-hearsay.

Operative Facts Doctrine

As explained in People v. Fields (1998) 61 Cal.App.4th 1063 , a declarant’s statement may become relevant on some issue in a case merely because the words were spoken or written, and irrespective of the truth or falsity of any assertions contained in the statement. If a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as non-hearsay evidence. Often, such evidence is referred to as “operative facts.” 

Operative Facts Doctrine Cases

Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511 – redevelopment agency minutes as to conflict of interest not hearsay.

People v. Dell (1991) 232 Cal.App.3d 248, 258 – statements by prostitutes to undercover vice officers were operative facts and not hearsay.

People v. Burnham (1996) 176 Cal.App.3d 1134, 1144, fn. 10 – Proof of the victim’s consent by her out-of-court statement indicating consent is admissible, under the prevailing theory, as a nonhearsay ‘operative fact.

Zumwalt v. Trustees of Cal. State Colleges (1973) 33 Cal.App.3d 665, 679, fn. 13 – Newspaper publicity was not offered for a hearsay purpose but as circumstantial evidence of wide notoriety harmful to the plaintiff’s reputation.

As originally articulated, the operative fact doctrine was as follows: “There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence.” (People v. Henry (1948) 86 Cal.App.2d 785, 789; see also People v. Rosson (1962) 202 Cal.App.2d 480, 486-487.) In these situations, the words themselves, written or oral, are “operative facts,” and an issue in the case is whether they were uttered or written. (People v. Rosson, supra.)” (Am-Cal Investment Co. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, 541 .)