Certainteed Corp. v. Superior Court , 222 Cal. App. 4th 1053 ( 2014 )

Filed 1/8/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CERTAINTEED CORPORATION, B253308
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
WILLIAM HART,
Real Party in Interest.
FDCC CALIFORNIA, INC., B253311
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
WILLIAM HART,
Real Party in Interest.
OSCAR ERICKSON, INC., B253316
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
WILLIAM HART,
Real Party in Interest.
FOSTER WHEELER LLC, B253330
Petitioner, (Los Angeles County
Super. Ct. No. BC515681)
v. (JCCP No. 4674)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
WILLIAM HART,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Emilie H. Elias, Judge. Petitions
granted.
McKenna Long & Aldridge, William J. Sayers, Farah S. Nicol and
Margaret I. Johnson for Petitioner Certainteed Corporation.
2
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.
_______________________________________
3
1
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
2
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.
1
Unless otherwise stated, all statutory references are to the Code of Civil
Procedure.
2
As we explain, in reaching this conclusion, we necessarily hold that both the
seven-hour limit and the 14-hour limit are presumptive only and are plainly subject to
the discretionary authority of the trial court to allow additional deposition time, as
provided in the above quoted second sentence of subdivision (a) of section 2025.290.
4
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
5
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 Counties.”
The trial court reaffirmed the order on December 23, 2013, and denied an ex parte
application challenging the order.
Certainteed Corporation filed a petition for writ of mandate or other appropriate
relief in this court on December 24, 2013 (No. B253308), challenging the denial of the
motion and seeking an immediate stay of the trial. Other defendants joined in the
6
petition.3 FDCC California, Inc., Oscar Erickson, Inc., and Foster Wheeler LLC filed
separate petitions seeking the same relief (Nos. B253311, B253316 & B253330).
We consolidated the four petitions and filed an order on December 27, 2013,
notifying the parties that we intended to issue a peremptory writ of mandate in the first
instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma))
directing the trial court (1) to vacate its order of December 10, 2013, which had denied
defendants’ motion for additional time to depose plaintiff, and (2) to enter a new order
granting the motion on such terms as the court, in its discretion, found appropriate. We
declined to stay the trial, however, stating that the trial court should determine whether
it was appropriate to continue the trial date in these circumstances. The trial court
4
notified this court on December 30, 2013, that it declined to vacate its order. Plaintiff
filed a written return on January 3, 2014, and defendants filed a reply four days later on
January 7.
3
Scott Co. of California, Anderson Rowe & Buckley Inc., Golden Gate Drywall,
Inc., BW/IP, Inc., City of Pasadena, City of Burbank, Cleaver Brooks, Inc., The Board
of Trustees of the Leland Stanford Junior University, The Regents of the University of
California, Georgia-Pacific Consumer Products LP, Simpson Timber Company, Hill
Brothers Chemical Company, Monterey Mechanical Company, Consolidated Insulation,
Inc., Ingersoll Rand Company, University Mechanical & Engineering Contractors,
Frank M. Booth, Inc., CSK Auto, Inc., Dillingham Construction N.A., Inc.,
Oscar E. Erickson, Inc., FDCC California, Inc., Crane Co., Timec Company, Inc., and
Owens-Illinois, Inc., all joined in the petition.
4
The trial court stated, in its order of December 30, 2013, “The trial court
respectfully declines to modify its order, as the trial court believes a published opinion
will provide helpful guidance to the legal community.”
7
CONTENTIONS
Petitioners contend section 2025.290, subdivision (a) establishes an exception to
the 14-hour limit imposed by subdivision (b) in the event that additional time is needed
to fairly depose the deponent, and the exception applies here.
DISCUSSION
1. Standard of Review and Rules of Statutory Construction
We independently review the trial court’s construction of a statute. (Pineda v.
Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529.) “Our fundamental task in
construing a statute is to ascertain the legislative intent so as to effectuate the purpose of
the law. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715
[3 Cal.Rptr.3d 623, 74 P.3d 726].) Because the statutory language ordinarily is the most
reliable indicator of legislative intent, we begin by examining the words of the statute.
(Ibid.) We give the words of the statute their ordinary and usual meaning and construe
them in the context of the statute as a whole and the entire scheme of law of which it is
a part. (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029,
1043 [12 Cal.Rptr.3d 343, 88 P.3d 71].) If the language is clear and a literal
construction would not result in absurd consequences that the Legislature did not intend,
we presume that the Legislature meant what it said and the plain meaning governs.
(Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th
733, 737 [21 Cal.Rptr.3d 676, 101 P.3d 563].) If the language is ambiguous, we may
consider a variety of extrinsic aids, including the purpose of the statute, legislative
8
history, and public policy. (Ibid.)” (Frontier Oil Corp. v. RLI Ins. Co. (2007)
153 Cal.App.4th 1436, 1448-1449.)
2. The Trial Court Must Reconsider Defendants’ Motion and
Exercise Its Discretion
Section 2025.290 was added to the Code of Civil Procedure effective January 1,
2013, by Assembly Bill No. 1875 (2011-2012 Reg. Sess.). The relevant portion of
section 2025.290 states:
“(a) Except as provided in subdivision (b), or by any court order, including a case
management order, a deposition examination of the witness by all counsel, other than
the witness’ counsel of record, shall be limited to seven hours of total testimony. 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.
“(b) This section shall not apply under any of the following circumstances:
[¶] . . . [¶] (3) To any case designated as complex by the court pursuant to Rule 3.400 of
the California Rules of Court, unless a licensed physician attests in a declaration served
on the parties that the deponent suffers from an illness or condition that raises
substantial medical doubt of survival of the deponent beyond six months, in which case
the deposition examination of the witness by all counsel, other than the witness’ counsel
9
of record, shall be limited to two days of no more than seven hours of total testimony
5
each day, or 14 hours of total testimony.[ ] [¶] . . . [¶]
“(c) It is the intent of the Legislature that any exclusions made by this section
shall not be construed to create any presumption or any substantive change to existing
law relating to the appropriate time limit for depositions falling within the exclusion.
Nothing in this section shall be construed to affect the existing right of any party to
move for a protective order or the court’s discretion to make any order that justice
requires to limit a deposition in order to protect any party, deponent, or other natural
person or organization from unwarranted annoyance, embarrassment, oppression, undue
burden, or expense.” (Italics added.)
We begin our analysis of section 2025.290 by focusing on the first sentence of
subdivision (a), which states that a seven-hour limit applies “[e]xcept as provided in
subdivision (b), or by any court order, including a case management order.” (Italics
added.) The plain meaning of this language in this context is that any court order in
conflict with a seven-hour limit supersedes the statutory seven-hour limit. This makes
the seven-hour limit merely presumptive and applicable only if the court does not order
otherwise. Thus, the language of subdivision (a) indicates unambiguously that the court
has the discretion to allow additional time to examine a deponent beyond the seven-hour
5
It is undisputed that the trial court has designated this as a complex case and that
a licensed physician has declared that plaintiff suffers from an illness that raises
substantial medical doubt of his survival beyond six months, as provided in
section 2025.290, subdivision (b)(3).
10
limit under subdivision (a). However, there is no comparable language in
subdivision (b). This raises the question whether “any court order” can supersede the
14-hour limit under subdivision (b)(3) and whether the court has the discretion to allow
additional time to examine a deponent beyond the 14-hour limit set out in
subdivision (b)(3). The statute is ambiguous in this regard. We need not resolve this
ambiguity, however, because we conclude that subdivision (b)(3)’s 14-hour limit is also
merely presumptive and is subject to the language in the second sentence of
subdivision (a).
The second sentence of section 2025.290, subdivision (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
6
deponent . . . . ” (Italics added.) 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 not only to the
seven-hour limit in subdivision (a), but also to the 14-hour limit in subdivision (b)(3).
Thus, the statute requires that a court must allow additional time to examine a deponent
6
Again, the entire second sentence of section 2025.290, 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.”
11
beyond the statutory 14-hour limit if it determines that additional time is needed to
fairly examine the deponent.
The legislative history relating to the 14-hour limit is sparse, but it does not
indicate any intention to preclude a court from allowing additional time if additional
time is needed to fairly examine a deponent or if any person or circumstance impedes or
delays the examination. To the contrary, the addition of the 14-hour limit to
subdivision (b)(3) (Sen. Amends. to Assem. Bill No. 1875 (2011-2012 Reg. Sess.)
June 25 and Aug. 14, 2012) followed by the addition of the words “beyond any limits
imposed by this section” to the second sentence of subdivision (a) (id., Aug. 22, 2012)
indicates an intention to make the exception in the second sentence in subdivision (a)
applicable not only to the seven-hour limit of that subdivision, but also to the 14-hour
limit in subdivision (b)(3). Moreover, allowing additional time if additional time is
needed to fairly examine the deponent serves the purpose of the statute to impose
reasonable limits on depositions generally while preserving the trial court’s authority in
each particular case to manage discovery in the interests of justice.
The trial court expressed grave concerns regarding the fairness of denying
defendants additional time to depose plaintiff and impliedly found that defendants
required more than 14 hours to fairly examine plaintiff. The court denied the motion for
additional time based solely on its expressed determination that the statute was
12
ambiguous as to the court’s authority to allow additional time beyond 14 hours and its
7
implied finding that the court had no authority to allow such additional time.
We conclude that section 2025.290 not only authorizes the court to allow
additional time to depose a witness in these circumstances, but requires it to do so
unless the court, in its discretion, determines that the deposition should be limited for
another reason. Subdivision (c) recognizes that the court has the discretion to limit
a deposition in the interests of justice and states that section 2025.290 does not affect
“the court’s discretion to make any order that justice requires to limit a deposition in
order to protect any party, deponent, or other natural person or organization from
8
unwarranted annoyance, embarrassment, oppression, undue burden, or expense.”
3. Immediate Relief Is Warranted
An appellate court may order the issuance of a peremptory writ of mandate in the
first instance without affording the parties an opportunity for oral argument only in
those rare and exceptional cases where the petitioner’s right to relief is so obvious that
no purpose could reasonably be served by plenary consideration of the issue and there is
7
The trial court noted the ambiguity in the statute, but did not expressly resolve
that ambiguity or explain its construction of the statute. In denying the motion based on
the asserted ambiguity, however, the court impliedly determined that it had no authority
to allow additional time for defendants to depose plaintiff, while also suggesting that
such additional time might well otherwise be appropriate.
8
The concerns regarding plaintiff’s health asserted in plaintiff’s return should be
addressed to the trial court and do not justify the denial of writ relief. The trial court
denied the motion for additional time to depose plaintiff based on its construction of the
statute and has not yet exercised its discretion to rule on the defendants’ motion.
13
no factual dispute. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010)
47 Cal.4th 1233, 1242.) The accelerated Palma notice procedure “is ‘reserved for truly
exceptional cases’ ” and “ ‘is permitted only in extremely narrow circumstances’ ”
usually involving some temporal urgency requiring an immediate decision. (Id. at
p. 1243.) We have such circumstances presented in this case.
We conclude that the denial of the motion for additional time to complete
plaintiff’s deposition based on the trial court’s interpretation of the provisions of
section 2025.290, subdivision (b)(3) was clearly erroneous. Instead, the trial court must
reconsider defendants’ motion and exercise its discretion by determining whether and
how to limit plaintiff’s deposition in the interests of justice in light of plaintiff’s current
medical condition and all of the relevant circumstances. The current state of plaintiff’s
health, his right to a trial preference, and the imminent trial date constitute exigent
circumstances justifying immediate relief so as to increase the possibility that plaintiff’s
deposition can be completed without a lengthy postponement of the trial date.
DISPOSITION
The petitions for writ of mandate are granted. Let a peremptory writ of mandate
issue directing the trial court (1) to vacate its order of December 10, 2013, denying the
9
motion for additional time to depose plaintiff and (2) to reconsider and enter a new
9
We did not intend, by the language of our Palma notice of December 27, 2013,
to suggest that the trial court was required to grant the defendants’ motion, but rather to
recognize that it did have the discretionary authority to do so and to authorize it to make
a new ruling on the motion based on its exercise of such discretion.
14
order on, defendants’ motion on such terms as the court, in its discretion, finds
appropriate, taking into full consideration (a) the present health and physical condition
of plaintiff, (b) plaintiff’s statutory right to a preferential trial date, (c) the need of
defendants for further examination of plaintiff as that need may be determined by the
trial court upon its reconsideration of defendants’ motion and (d) any other relevant
circumstances that the interests of justice may require.
Our decision shall be final in this court immediately upon the filing of this
opinion. (Cal. Rules of Court, rule 8.490(b)(3); Ng v. Superior Court (1992) 4 Cal.4th
29, 33-34 and fn. 1.)
CERTIFIED FOR PUBLICATION
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
15