(dissenting).
I dissent. I disagree with the assertion that Mr. Bivins would have had to actually say, “it is stipulated and agreed that the doctor waives signature.” Both parties were represented at the time the deposition was taken, and both representatives participated in the taking of the deposition after Mr. Bivins stated, “[t]hat this deposition is being taken according to the usual stipulations and the doctor waives signature.”
This Court should not be willing to allow a participant, one who had the opportunity to take part in the deposition, to try to avoid its effects because of a problem in wording. The decision in McBain v. Santa Clara Savings and Loan Association, 241 Cal.App.2d 829, 51 Cal.Rptr. 78 (1966), does not support the proposition for which it is offered. Quite the contrary, the underlying rationale of that decision is that formality is unimportant in the face of apparent acceptance of the stipulations.
If the representative did not understand the phrase, “the usual stipulations” to be equivalent to “it is stipulated and agreed that the doctor waives his signature,” then what did he understand the phrase to mean? He certainly acquiesced to that statement — thus, he is bound by that acquiescence. Logically, the only thing he could have been agreeing to was the waiver. I would hold him to that agreement and would decide the case on its merits.