Wahlgren v. Coleco Industries, Inc.

Opinion

RICKLES, J.

Plaintiff Wahlgren filed a personal injury action against defendants Coleco et al., asserting negligence, strict liability, and breach of warranty as alternative theories of recovery. A jury found for defendants, and plaintiff appeals contending that the trial court erred in excluding former deposition testimony.

Facts

Plaintiff was rendered quadriplegic when he dove from a free-standing slide into an above-ground swimming pool. The slide was manufactured by defendant Aquaslide ‘N’ Dive Corporation. The pool was manufactured by defendant Coleco Industries, Inc., and sold by defendant Montgomery Ward and Co., Inc. Both products were in the possession of another defendant not a party to this appeal when plaintiff’s injury occurred.

At trial, plaintiff sought to admit notarized photocopies of two depositions taken in a prior unrelated action.

1

The subjects deposed were Coleco officers; their testimony concerned Coleco’s policy of placing labels on pools which alerted users to the dangers of diving. Relying on Code of Civil

[546]

Procedure section 273 and Evidence Code section 1291, subdivision (a)(2), the trial court denied plaintiff’s request for admission.

Discussion

I

Authentication of “former testimony” is governed by Code of Civil Procedure section 273. (See

Redwing

v.

Moncravie

(1934) 138 Cal.App. 432, 434 [21 P.2d 986].) This statute provides that the report of the official reporter, when transcribed and certified as correct, constitutes prima facie evidence of testimony. Because plaintiff sought, in this instance, to introduce

photocopies

of depositions rather than certified copies or duplicate originals, the trial court acted properly in excluding any testimony contained therein. The fact that plaintiff’s copies were notarized does not change this result. Aside from the fact that the notary certificates were themselves photocopies, notaries, unlike official reporters, are not charged with custody of transcripts and cannot attest to the accuracy of the original or any copy.