Daily Blast January 8, 2014

The California Court of Appeal, Second Appellate District, Division Three (Los Angeles), issued an opinion in Certainteed Corporation v. The Superior Court of Los Angeles (Jan. 8, 2014, B253308) __ Cal.App.4th___, analyzing the exceptions to the time limits in deposing a witness imposed by Code of Civil Procedure section 2025.290 (“section 2025.290”). (Slip opn., p. 4.) The Court of Appeal held that subdivision (a) of the statute allowing additional time applied not only to the seven-hour limit, but also to the 14-hour limit imposed by subdivision (b)(3) in designated complex cases where survival of the deponent beyond six months was medically doubtful. (Ibid.)

The case arose from personal injuries sustained as a result of exposure to asbestos. There were multiple defendants involved in the case. (Slip opn., p. 4.) Plaintiff’s counsel noticed plaintiff’s deposition and conducted a direct examination lasting 14 hours over several days. (Id. at p. 5.) The defendants moved for additional time to complete the deposition. (Ibid.) The court found the defendants were limited to a total of 14 hours of examination pursuant to section 2025.290, subdivision (b)(3) and denied the motion. (Ibid.) The courts reading of section 2025.290, subdivision (b)(3) of the statute found that it was ambiguous whether the court had discretion to exceed the 14-hours time limit. Defendant Certainteed Corporation petitioned for writ of mandate challenging the denial of the motion. (Id. at p. 6.)

The Court of Appeal ordered the trial court to reconsider defendants’ motion and exercise its discretion. (Slip opn., p. 9.) In making its determination, the Court of Appeal analyzed section 2025.290, subdivision (a), which 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. (Id. at p. 11.) This exception, the court held, applies not only to the seven-hour limit referred to in subdivision (a), but also to the 14-hour limit set out in subdivision (b)(3). The court reasoned that the Legislature used the words “this section,” rather that “this subdivision.” Further, the Legislature used the words “any limits” rather than “the limit.” (Ibid.) Therefore, the Court of Appeal directed the trial court to enter a new order on such terms as the court finds appropriate in its discretion. (Id. at pp. 14-15.)

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