Friday, January 10, 2014

The Discovery Act Is Not a Suicide Pact.

Certainteed Corp. v. Superior Court, No. B253308 (D2d3 Jan 8, 2014)

In a case that spanned barely two weeks from writ petition to writ granted, the court of appeal grants a peremptory writ ruling that the trial court has the discretion to permit a terminally ill plaintiff
’s deposition to extend beyond the newly-imposed fourteen hour limit in Code of Civil Procedure § 2025.290(b)(3).

In this case, the seventy-six-year-old plaintiff sued more than seventy defendants alleging thirty years exposure to asbestos at dozens of job sites and in dozens of products. He obtained a trial preference by submitting a doctors declaration explaining that he had only a few weeks to live. Plaintiff’s attorney took fourteen hours of his own client’s direct deposition testimony to preserve it for trial. He then permitted the defendants to collectively take fourteen additional hours, but suspended the deposition thereafter, citing the fourteen-hour limit contained in § 2025.290(b)(3), part of a new statute that came into effect at the beginning of 2013. Defendants moved for more time.

The trial judge stated on the record that she thought the defendants deserved more time, but felt constrained by the fourteen-hour limit in the statute. Subdivision (a) of § 2025.290, which imposes a seven-hour limit in ordinary cases, expressly affords the court the discretion, and indeed, directs the trial to give more time when justice requires it. But there is no similar language in subdivision (b), which addresses exceptions to the rule, including the fourteen-hour limit in cases where the deponent is expected to die within six months. The trial judge denied the motion and certified her order under Code of Civil Procedure § 166.1, indicating her belief that interlocutory review was merited.


The lead defendant sought writ review on Christmas eve, and three days later the court of appeal issued Palma notice that it intended to issue a peremptory writ ordering the trial judge to vacate her order and to exercise her discretion as she saw fit. (Under Palma v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171 (1984), due process requires a court of appeal to give notice and an opportunity to be heard before issuing a writ without issuing an alternative writ and order to show cause permitting briefing on an ordinary schedule.) Briefing was completed ten days later and the court issued this opinion the following day.


The first sentence in § 2025.290(a), limits depositions to seven hours, “except as provided in subdivision (b) or by any court order, including a case management order.” The second sentence says that “the court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent[.]” As relevant here, subdivision (b)(3) contains an exception for cases designated as complex. Which then contains an awkwardly situated proviso to that exception if a licensed physician attests to the deponent’s imminent demise. In that case, the deposition is limited to two seven-hour days, not including the questioning by the deponent’s own attorney. So, the question at hand is whether the court’s discretion to give more time contained in subdivision (a) applies to a case that falls under the fourteen hour limit in subdivision (b)(3).


The court reads that it does, by parsing the language of the second sentence of subdivision (a). That language requires the court to grant more time “beyond any limits imposed by this section.” (Emphasis added). According to the court, the choice of the word “section” over “subdivision” shows that the legislature intended that the discretion to give extensions
afforded by subdivision (a) applies to any of the limits in the section§ 2025.290not just the seven-hour limit in subdivision (a) itself. Thus, the writ would issue, requiring the trial court to vacate its order and reconsider it based on its exercise of discretion, taking into consideration the plaintiff’s health, the impending preferential trail date, and the defendants needs for further examination. 

In sum, the court here did good quick work to get to the right result out of a less than perfectly drafted statute. It also did something that readers of this blog will recognize as a rarity—it gave a definitive construction of one of the scores of ambiguous provisions in the Civil Discovery Act. And it did so in a published opinion. Well done. 

Writ granted.

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