Bailey v. Superior Court

• Decision Date: 23 September 1977
• Citation: 19 Cal.3d 970,568 P.2d 394,140 Cal.Rptr. 669
• Court: California Supreme Court
• Parties: , 568 P.2d 394 Paul Sherod BAILEY, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; SEARS, ROEBUCK & COMPANY, Real Party in Interest. L.A. 30746.

Page 669

140 Cal.Rptr. 669

19 Cal.3d 970, 568 P.2d 394

Paul Sherod BAILEY, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent SEARS, ROEBUCK & COMPANY, Real Party in Interest.

L.A. 30746.

Supreme Court of California, In Bank.

Sept. 23, 1977.

Jon E. Stuebbe and Borton, Petrini & Conron, Bakersfield, for petitioner.

No appearance for respondent.

Robert D. Patterson, Jr., Bakersfield, for real party in interest.

Rosalyn M. Chapman Los Angeles and David F. Chavkin, San Francisco, as amici curiae.

BIRD, Chief Justice.

This petition for a writ of prohibition presents a question of first impression in California: Absent a stipulation of the parties, may videotape be used to record and report the proceedings at a deposition? This court concludes that it may not.

I

Petitioner, Paul Sherod Bailey, filed a personal injury complaint against Sears, Roebuck & Company, alleging that Sears had negligently designed and constructed a 'Craftsman' eight-inch radial arm saw which it sold to petitioner. This negligence was alleged to have proximately caused the severing of four fingers on petitioner's right hand while he was operating the saw. In its answer, Sears denied the allegations of negligence and affirmatively alleged that petitioner's injuries resulted from his own negligence.

Sears submitted interrogatories to petitioner asking for a description of the incident and of petitioner's movements before and during the accident. Petitioner responded to the interrogatories, but Sears contended that the responses did not adequately describe the manner in which the accident had occurred. Counsel for Sears requested that a reenactment of the accident be recorded on videotape, but petitioner's counsel would not agree. Sears then filed a motion requesting an oral deposition of petitioner in the traditional manner provided for in Code of Civil Procedure section 2019, ¹ and a special order directing that he reenact his version of the accident, orally respond to questions propounded by Sears' counsel during the reenactment, and permit the reenactment and responses to be recorded on videotape. ² Although a stenographic record was to be prepared, counsel for Sears requested that they be permitted to utilize the videotape recording as part of the deposition. ³

II

Petitioner contends that the trial court exceeded its jurisdiction in granting Sears' request to videotape the deposition. He asserts that unless the parties agree otherwise, the statutes governing the taking of a deposition authorize only stenographic recording and transcription.

Code of Civil Procedure section 2004 defines a 'deposition' as a 'written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine . . .' (Italics added.) Code of Civil Procedure section 2019, subdivision (c), provides in pertinent part: 'The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise.' (Italics added.) Code of Civil Procedure section 2019, subdivision (e), states that the original of the deposition shall be provided to the deponent for 'reading, correcting and signing.' (Italics added.) The language of these sections creates a clear inference that the Legislature intended a deposition to be in written form. A 'writing' is defined in Code of Civil Procedure section 17 as including 'printing and typewriting.' ⁴

The above quoted sections of the Code of Civil Procedure do not expressly proscribe the recording of a deposition by videotaping. However, a review of these code sections leads ineluctably to one conclusion; that is, the Legislature intended that depositions be stenographically recorded and transcribed into a 'writing' (as that term is defined in Code of Civil Procedure section 17) unless the parties agree otherwise. ⁵ In briefs lodged with this court, three arguments are urged by Sears in support of a contrary determination.

First, a New Jersey case, Blumberg v. Dornbusch (1976) 139 N.J.Super. 433, 354 A.2d 351, is cited. The Appellate Division of the New Jersey Superior Court concluded that videotaping as a means of recording a deposition was not prohibited by a New Jersey rule of court which provided that 'testimony (at a deposition) shall be recorded and transcribed on a typewriter unless the parties agree otherwise.' (N.J. Rules of Court, rule 4:14--3(b).) The language of the New Jersey rule differs significantly from that of California Code of Civil Procedure section 2019, subdivision (c). While that section expressly provides that testimony at a deposition shall be 'taken stenographically,' the New Jersey rule merely provides that testimony shall be 'recorded.' Thus, the New Jersey rule does not specifically indicate the Method of recording from which the written transcript is to be prepared. One commentator suggests that the rule was amended to replace the phrase 'taken verbatim' with the word 'recorded' in order that proceedings at depositions might be sound recorded or videotaped, as well as stenographically taken. (See Pressler, Current New Jersey Court Rules (1976 Comment rule 4:14--3(b), pp. 566--567.) Even if there were not this difference in language between the New Jersey rule and the California Code of Civil Procedure, an out-of-state decision, interpreting a particular rule of court of that state, would be of little assistance to a California court attempting to ascertain what procedures the Legislature of this state intended to be followed in recording and reporting depositions.

Next, Sears urges that videotaping is included within the broad definition of 'writing' found in Evidence Code section 250. ⁶ It is urged that this definition of 'writing' applies to a deposition because the Evidence Code is applicable 'in every action' before any court (Evid.Code, § 300), ⁷ and a deposition is an integral part of an action in a trial court. (See Crocker v. Conrey (1903) 140 Cal. 213, 216--217, 73 P. 1006.) As further support for this contention, reliance is placed on Code of Civil Procedure section 2016, subdivision (d), which provides that 'so far as admissible under the rules of evidence,' any part or all of a deposition may be used at trial in particular situations.

Despite the assertions of Sears, the foregoing statutes provide only that in determining the proper use of a deposition at trial, the court must follow the admissibility rules of the Evidence Code. That code does not purport to regulate the procedural aspects of recording and reporting depositions. Furthermore, Evidence Code section 300 provides that the Evidence Code is inapplicable when 'otherwise provided by statute.' The Code of Civil Procedure, which does regulate the procedural aspects of recording and reporting depositions, provides a different definition of a writing than that contained in the Evidence Code. Since the definition of a writing is 'other wise provided by statute,' the Evidence Code definition is inapplicable. ⁸

As its third argument, Sears urges that this court approve the videotaping of deposition proceedings because videotaping is a reliable recording method which offers advantages a stenographic record cannot provide. A rule of court adopted by the Judicial Council of California and an Evidence Code section are cited as authority for this contention. ⁹

Whether this court believes videotaping is as reliable as, or more advantageous than, the traditional means of recording a deposition is not the issue. Rather, the question presented is whether the use of videotape for the recording and reporting of deposition testimony has been Authorized by the Legislature. The fact that the Judicial Council has approved the videotaping of proceedings in a courtroom is no indication that the Legislature has authorized the videotaping of proceedings at a deposition.

As part of this final argument, Sears contends that even if the Evidence Code definition of a writing does not apply to the Code of Civil Procedure provisions concerning depositions, nevertheless this court should approve the videotaping of deposition proceedings since the Legislature, in adopting Evidence Code section 250, indicated its approval of this method of recording. The fact that the Legislature has authorized the use of videotape in other contexts does not indicate that it intended videotaping to be used to record deposition proceedings as well. Indeed, this court may infer that because the Legislature did not respond to the dicta of Voorheis and Hjelm (see fn. 5, Ante) and did not expand the definition of a writing contained in the Code of Civil Procedure when it expanded the Evidence Code definition in 1965, it intended that depositions should continue to be recorded in the traditional manner. ¹⁰

The Legislature has directed that deposition testimony be stenographically recorded and transcribed in writing unless the parties agree otherwise. Whether other methods of recording and reporting depositions should now be authorized is a matter for the Legislature to determine. ¹¹

Let a writ of prohibition issue directing the respondent court to quash its order granting the motion of Sears to videotape the deposition. ¹²

TOBRINER, MOSK, CLARK, RICHARDSON, MANUEL and JEFFERSON (Assigned by the Chairperson of the Judicial Council), JJ., concur

1 Code of Civil Procedure section 2019 provides for the noticing, taking, signing and filing of depositions upon oral examination.

2 Sears proposed that the reenactment be conducted under the same conditions as existed during the accident; that petitioner reenact 'the precise function (petitioner) was performing at the time of his injury,' utilizing not only the same saw at the same location in his home but also wood stock of the same dimensions....