Glad You Noticed: Courts' Consideration of Deposition Testimony / September 01, 1997
by Jeffrey Huron
Los Angeles Daily Journal

Code of Civil Procedure Section 430.30(a) specifically authorizes courts to consider by way of a demurrer any matter the court must or may judicially notice. Demurrers are often sustained because of judicial notice taken of admissions or inconsistent statements made by pleaders in the following:

• Discovery responses. Stencel v. Aero Engr. Corp. v. Superior Ct., 56 Cal.App.3d 978, 987 n.6 (1976).
• Prior pleadings. Owens v. Kings Supermarket, 198 Cal.App.3d 379, 383- 84 (1988).
• Declarations. Del E. Webb Corp. v. Structural Materials Co., 123 Cal.App.3d 593, 604-605 (1981).

California courts disagree whether judicial notice may be taken of a pleader’s deposition testimony.

For example, in Garcia v. Sterling, 176 Cal.App.3d 17 (1985), a plaintiff moved to strike portions of an answer that were inconsistent with the defendant’s deposition testimony. The trial court denied the motion and imposed monetary sanctions against the plaintiff for making what it considered a frivolous motion. The Court of Appeal agreed that the motion to strike was frivolous because the truth of statements made during a deposition were not subject to judicial notice. Id. at 22.

In support of its ruling, the Garcia court cited the California Evidence Benchbook for the proposition that a court cannot take judicial notice of hearsay allegations simply because they are contained in a court record. 2 Bernard S. Jefferson, Cal. Evidence Benchbook, Section 47.2, at 1757 (2d ed. 1982). Garcia also referred to decisions affirming judicial notice of inconsistent statements made by pleaders in discovery responses and sworn statements as examples of the “widespread misunderstanding of scope of judicial notice of court records.” 176 Cal.App.3d at 22.

Significantly, however, the Garcia court did not consider whether the pleader’s inconsistent deposition testimony was subject to judicial notice under the exception to the hearsay rule for admissions by a party. Evidence Code Section 1220. Nor did it address the principle of truthful pleading. See Cantu v. Resolution Trust Corp., 4 Cal.App.4th 857, 877 (1992). This principle provides that a pleader may not avoid a demurrer by pleading facts inconsistent with prior pleadings or by suppressing facts that prove the pleaded facts false. Id. The principle of truthful pleading, also referred to as judicial estoppel, is intended to protect the dignity of the courts and innocent litigants. See In re Marriage of Dekker, 17 Cal.App.4th 842, 850 (1993).

Joslin v. H.A.S. Ins. Brokerage, 184 Cal.App.3d 369, 375 (1986), disagreed withGarcia and ruled that courts may take judicial notice of deposition testimony which is not or cannot be disputed. In Joslin, H.A.S. Insurance Brokerage demurred to an amendment substituting it for a fictitiously named defendant. H.A.S. contended the Doe amendment was time-barred and did not relate back to the original complaint because the plaintiffs knew of its identity when they filed the complaint.

As support for its demurrer, H.A.S. relied on admissions made by one plaintiff at her deposition. She said that before filing the complaint she received a brochure identifying H.A.S., and contacted a H.A.S. employee concerning her claim. The trial court sustained the demurrer without leave to amend based on this deposition evidence.

The Joslin court reversed. It identified three standards used by courts to determine whether to accept the truth of statements contained in documents subject to judicial notice:

• Courts can only consider the truth of facts within orders, statements of decision and judgments — that is, the standard applied in Garcia.
• Courts may accept as true a pleader’s statements, but not statements of others. This is the approach used by courts to take judicial notice of a pleader’s discovery responses, prior pleadings and declarations.
• “Judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” Id. (citing Cruz v. County of Los Angeles, 173 Cal.App.3d 1131, 1134 (1985) ).

The Joslin court was unwilling to hold that a court, in considering a demurrer, may never accept deposition testimony and therefore rejected the first approach applied inGarcia. Joslin, 184 Cal.App.3d at 375 n.1. As for the second and third standards, theJoslin court observed that either may be successfully used in many cases, but it concluded that the third approach is better because it provides “maximum flexibility while insisting that disputed factual issues cannot be resolved on demurrer.” Id. (emphasis added). Applying the third approach, the Joslin court found that the deposition evidence the trial court considered was subject to dispute. The plaintiffs did not dispute that they received the brochure identifying H.A.S. and that they spoke with an employee of H.A.S. However, the plaintiffs contended that they did not know H.A.S. was responsible for handling their claim or that the person with whom they spoke regarding their claim was a H.A.S. employee until after they filed their complaint.

The plaintiffs’ contentions were therefore not inconsistent with the deposition evidence. In the words of the Joslin court, “If [the plaintiffs’ contentions] were presented by appropriate testimony and the deposition testimony were offered in impeachment, the question of when [the] plaintiffs acquired the knowledge in question could not be determined as a matter of law.” Id. at 376.

Joslin’s ruling that a court may, in considering a demurrer, take judicial notice of a pleader’s deposition evidence that is undisputed or indisputable is consistent with cases taking judicial notice of written discovery responses. Although responses to requests for admissions are conclusively established under C.C.P. Section 2033(n), a party may change his written interrogatory responses, just as he may change his deposition testimony. See C. C. P. Sections 2030(m) and 2025(u)(1). Thus, there is no reason for treating a pleader’s deposition testimony differently from interrogatory responses, which are subject to judicial notice on demurrer. See Stencel, 56 Cal.App.3d at 987, n.6.

Further, Joslin is consistent with the principle of truthful pleading. See Cantu, 4 Cal.App.4th at 877. A pleader whose deposition testimony contradicts his allegations should not be immune from this principle while other pleaders attempting to play fast and loose with the judicial process are not.

Joslin is not alone in recognizing that a court may take judicial notice of a pleader’s deposition testimony in evaluating the sufficiency of his allegations. The court in Del E. Webb also ruled that courts may properly take judicial notice of such deposition evidence. But, as was the case in Joslin, the Del E. Webb court did not agree with the trial court that the deposition evidence was inconsistent with the allegations in the complaint.

So long as a pleader’s deposition testimony is inconsistent with his allegations, there is sound precedent for taking judicial notice of such testimony in connection with demurrers. Over-ruling demurrers to pleadings contradicted by the pleader’s own deposition testimony is contrary to the principle of truthful pleading and to cases taking judicial notice of a pleader’s declarations and interrogatory responses. Consequently, a pleader’s deposition testimony should be subject to judicial notice on demurrer as much as his declarations and interrogatory responses.