California Court of Appeals, Second District, Third Division
ORIGINAL PROCEEDINGS in mandate. Los Angeles County Super. Ct. No. BC515681 (JCCP No. 4674) Emilie H. Elias, Judge.
McKenna Long & Aldridge, William J. Sayers, Farah S. Nicol and Margaret I. Johnson for Petitioner Certainteed Corporation.
Walsworth, Franklin, Bevins & McCall, Florence A. McClain, Jennifer A. Cornier, David J. Kestenbaum and Elizabeth N. Branham for Petitioners FDCC California, Inc., and Oscar E. Erickson, Inc.
Brydon Hugo & Parker, Edward R. Hugo, Shaghig D. Agopian and Thomas J. Moses for Petitioner Foster Wheeler LLC.
No appearance for Respondent.
Keller, Fishback & Jackson, Steven M. Fishback and Tenny Mirzayan for Real Party in Interest.
Code of Civil Procedure section 2025.290 limits the deposition of a witness by counsel other than the witness’s counsel of record to “seven hours of total testimony” (id., subd. (a)) or “14 hours of total testimony” (id., subd. (b)(3)), with certain exceptions. The second sentence of subdivision (a) states, “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” We conclude that this provision requiring additional time applies not only to the seven-hour limit imposed by subdivision (a) but also the 14-hour limit imposed by subdivision (b)(3). The trial court, however, retains the discretion to limit a deposition in the interests of justice.
FACTUAL AND PROCEDURAL BACKGROUND
William Hart filed a complaint in July 2013 against numerous defendants seeking damages for personal injuries arising from exposure to asbestos. The trial court determined, in an order filed on October 9, 2013, that plaintiff, then 76 years old, was entitled to trial preference (§ 36, subd. (a)) based on a physician’s declaration that there was “ ‘substantial medical doubt of [plaintiff’s] survival beyond even a few weeks’ time.’ ” The trial is currently set to begin on January 14, 2014.
Plaintiff’s counsel noticed plaintiff’s deposition and conducted a direct examination lasting approximately 14 hours over several days. Defendants then conducted several hours of examination before defendants Scott Company of California and Douglass Insulation Company, Inc., filed a noticed motion, on shortened time, for additional time to complete the deposition. Defendant Certainteed Corporation and other defendants joined in the motion. On November 25, 2013, the day before the hearing on the motion, plaintiff’s counsel suspended the deposition of his client after defendants had completed 14 hours of examination.
In ruling on the defendants’ motion, the trial court determined that defendants were limited to a total of 14 hours of examination pursuant to section 2025.290, subdivision (b)(3) and therefore denied the motion in a minute order filed on November 26, 2013. The court filed a signed order on December 10, 2013, explaining its ruling as follows:
“Limiting Defendants’ ability to depose plaintiff for only fourteen (14) hours raises significant due process concerns for Defendants, for the reasons stated at the hearing, including, but not limited to, the fact that the case began with over seventy (70) defendants, involves thirty (30) years of alleged exposure to asbestos, with dozens of jobsites and dozens of products at issue, and when this is the only opportunity for defendants to examine plaintiff in a deposition that is the preservation of trial testimony. However, the Court is denying the Application while not determining the deposition is complete, because Code of Civil Procedure Section 2025.290 is ambiguous as to whether subdivision (a) allows the Court to exercise discretion to grant additional time to depose a plaintiff where the Court finds additional time ‘is needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination’ when there has been a prior finding in the case that ‘the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months’ as described in subdivision (b). Thus, this ruling is based solely on the ambiguity of Code of Civil Procedure Section 2025.290, not based on the Court’s exercise of discretion.” We read this order as reflecting the trial court’s determination that it did not have the discretionary authority to permit the deposition of a deponent described in subdivision (b)(3) to exceed 14 hours.
The trial court’s order also stated, quoting section 166.1, that the ruling presented “ ‘a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of th[is] litigation’ and all similarly situated cases handled by the Court as Coordinating Judge for all asbestos cases pending in Los Angeles, Orange, and San Diego ...