Friday, January 10, 2014
C.A. Rules Statute Allows Additional Time for Depositions
By a MetNews Staff Writer
The Court of Appeal for this district has ruled that the Code of Civil Procedure §2025.290(a) permits a court to grant additional deposition time if needed to fairly examine a deponent, making the seven-hour limit imposed by subdivision (a) and the 14-hour limit imposed by subdivision (b)(3) merely presumptive.
Div. Three, in an opinion Wednesday by Justice H. Walter Croskey, issued a peremptory writ of mandate directing the trial court to vacate its order denying additional time to depose William Hart, concluding that §2025.290 requires a court to allow for additional deposition time, unless, in its discretion, the deposition should be limited.
Section 2025.290 became effective on Jan. 1 of last year. It generally limits depositions to seven hours, or in some cases to 14 hours, with exceptions permitted by stipulation or court order.
Croskey said the trial court did not exercise its discretion, basing its decision solely on a perceived ambiguity in the code, which it determined did not provide the authority to permit a deposition to exceed 14 hours, Croskey explained.
Los Angeles Superior Court Judge Emilie H. Elias, denying additional time, recognized that the order raised significant due process concerns in a case involving 70 defendants, 30 years of alleged asbestos exposure, and the preservation of trial testimony from a plaintiff, who, at 76 years of age, had a limited life expectancy.
In July 2013, Hart filed a complaint against numerous defendants, including Certainteed Corporation, Scott Company of California, and Douglass Insulation Company, Inc., seeking damages for personal injuries from exposure to asbestos.
On Oct. 9, 2013, the court determined that the plaintiff was entitled to trial preferences based on a physician’s declaration, which raised substantial doubt as to Hart’s health.
Defendants conducted several hours of examination before filing a motion for additional time to complete the deposition. On Nov. 25, the day the motion was to be heard, plaintiff’s counsel suspended the deposition of Hart after he had been deposed for 14 hours.
Elias determined that defendants were limited to 14 hours, and denied the motion. Several defendants sought a writ of mandate.
Croskey said this language “indicates unambiguously that the court has the discretion to allow additional time to examine a deponent beyond the seven-hour limit.”
Subdivision (b)(3), permitting 14 hours of deposition in a complex case or one in which the deponent is terminally ill, does not contain the same language, and the trial judge concluded that the discretion to extend the time did not apply to that subdivision. But Crosky said, because the 14-hour limit is merely presumptive, it too is subject to the language of subdivision (a).
Holding that the court can grant additional time, Crosky wrote:
“[S]ubdivision (a) includes language requiring the court to allow additional time to examine a deponent ‘beyond any limits imposed by this section’ if additional time is ‘needed to fairly examine the deponent….’ We hold that this exception applies not only to the seven-hour limit, but also expressly applies to ‘any limits imposed by this section,’ which necessarily includes the 14-hour limit set out in subdivision(b)(3). The Legislature’s use of the words ‘this section,’ rather than ‘this subdivision,’ and ‘any limits,’ rather than ‘the limit,’ establishes that the exception applies.”
Section 2025.290, Croskey said, “not only authorizes the court to allow additional time to depose a witness in these circumstances, but it requires it to do so unless the court, in its discretion, determines that the deposition should be limited for another reason.”
Allowing additional time if needed to fairly examine a deponent serves the purpose of the statute and the interests of justice, Croskey implied, by giving trial court’s the authority to manage discovery in each case.
The trial for the matter is currently set to begin this Tuesday.
The case is Certainteed Corporation v. Superior Court (Hart), 13 S.O.S. 111.
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