Cahill Constr. Co. v. Superior Court of Alameda Cnty.

• Decision Date: 19 July 2021
• Docket Number: A162885
• Citation: 281 Cal.Rptr.3d 373,66 Cal.App.5th 777
• Court: California Court of Appeals Court of Appeals
• Parties: CAHILL CONSTRUCTION COMPANY, INC., et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; Edward Richards et al., Real Parties in Interest.

66 Cal.App.5th 777

281 Cal.Rptr.3d 373

CAHILL CONSTRUCTION COMPANY, INC., et al., Petitioners,

v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;Edward Richards et al., Real Parties in Interest.

A162885

Court of Appeal, First District, Division 5, California.

Filed July 19, 2021

Hugo Parker, Edward R. Hugo, James C. Parker, Tina M. Glezakos, San Francisco, Alex G. Taheri, Bina Ghanaat, Oakland, for Petitioners.

Arkin Law Firm, Sharon J. Arkin ; Keller, Fishback, & Jackson, Stephen M. Fishback, Daniel L. Keller for Real Parties in interest.

Rodriguez, J.^* Code of Civil Procedure section 2025.295 caps the amount of time a plaintiff may be deposed when two conditions are met: first, the civil action must be "for injury or illness that results in mesothelioma

" (id. , subd. (a)); and second, a licensed physician must declare the plaintiff "suffers from mesothelioma ..., raising substantial medical doubt of the survival of the [plaintiff] beyond six months."¹ (Ibid .) If both conditions are met, "a deposition examination of the plaintiff by all counsel, other than the plaintiff's counsel of record, shall be limited to seven hours of total testimony." (Ibid .) But the statute permits a trial court to grant up to an additional seven hours—"for no more than 14 hours of total deposition conducted by the defendants"—if more than 20 defendants appear at the deposition, the court determines that the additional time is warranted in the interest of fairness, and the additional time does not appear to endanger the plaintiff's health. (Id ., subds. (b)(2), (c).)

Cahill Construction Company, Inc.’s petition for writ of mandate presents an issue of first impression: may a trial court grant deposition time in excess of the 14-hour cap set forth in section 2025.295, subdivision (b)(2) ?² The answer—based on the unambiguous language of section 2025.295 and the evident legislative purpose underlying its enactment—is no. Indeed, the arguments advanced by Cahill are identical to those considered, and rejected, by the Legislature when it enacted section 2025.295. Other Code of Civil Procedure provisions addressing a court's right to control discovery do not alter our conclusion. Nor are we persuaded that section 2025.295 ’s limitation on deposition time violates Cahill's due process rights under the federal Constitution.

We deny the writ petition.

BACKGROUND

In early 2021, Edward and Linda Richards (collectively, plaintiffs) filed a lawsuit against 105 defendants, including Cahill. The complaint includes 11 causes of action arising out of Richards's alleged asbestos exposure and seeks compensatory and punitive damages. The trial court granted trial preference based on a declaration from Richards's treating physician that Richards, then 72 years old, was suffering from mesothelioma

and had a life expectancy of fewer than six months. Trial is set to begin in August.

Defendants propounded written discovery to plaintiffs. Plaintiffs’ voluminous responses to standard interrogatories identified numerous products, job sites, and employers that plaintiffs claimed were responsible for Richards's exposure to asbestos during his 30-year career as a pipefitter. Plaintiffs provided defendants with the transcript of Richards's prior deposition, taken in asbestos litigation involving Richards's co-worker, during which Richards was questioned about his work history and familiarity with asbestos-containing products. They also produced Richards's employment records.

Thereafter, plaintiffs noticed Richards's deposition. Cahill moved for a protective order under section 2025.420 to extend the presumptive seven-hour limit provided for in section 2025.295, subdivision (a).³ Based on section 2025.295, subdivision (b)(2), the court granted defendants a total of 14 hours to depose Richards. Pursuant to subdivision (c) of the statute, the court determined that giving defendants more than seven hours to depose Richards did not appear to endanger his health and the number of defendants militated in favor of allowing them "the maximum permissible period in which" to depose Richards. But the court declined to grant defendants more than 14 hours. Section 2025.295, the court concluded, imposed a " ‘clear cap’ " of 14 hours of total deposition conducted by defense counsel and "eliminated" the court's discretion to exceed that cap when a physician attests the plaintiff has mesothelioma

and declares a substantial medical doubt of the plaintiff's survival beyond six months.

Plaintiffs’ counsel deposed Richard for between eight and nine hours. Approximately 80 to 90 defendants appeared at the deposition. Defendants deposed Richards for 14 hours. During that time, defendants jointly questioned Richards "regarding issues relevant to all of them" and each defendant briefly questioned Richards as to its own particular product or conduct.

After defendants’ deposition concluded, Cahill renewed its protective order motion, arguing the cap on deposition time deprived defendants of the ability to effectively depose Richards and prepare for trial. To support this argument, Cahill offered declarations from defense counsel and excerpts from Richards's deposition transcript. Plaintiffs opposed the motion. They highlighted the availability of other discovery methods and the uncontroverted evidence that further deposition would endanger Richards's health.⁴

A different judge heard the renewed motion and denied it. In a thorough written order, the court concluded a trial court retains "limited discretion" under section 2025.295 to lengthen a deposition beyond 14 hours. Referring to section 2025.420, the court observed "other provisions of the Discovery Act empower the Court to prevent gamesmanship and sanctionable conduct in deposition, like bullying or improper coaching, and to provide a remedy for such gamesmanship that could include additional deposition time."

But the court declined to exercise its "limited discretion," concluding additional deposition time in excess of the section 2025.295 cap was "not warranted by the facts of the case." It found the deposition transcript was free of "gamesmanship" or "questionable conduct"—such as repeated and frivolous speaking objections or evasive answers—that might warrant a protective order under section 2025.420. It also opined defense counsel "cover[ed] a substantial amount of ground" during common questioning and noted Cahill had failed to show other discovery methods, including depositions of percipient witnesses and contention interrogatories, were inadequate to prepare for trial.

The court also rejected Cahill's due process argument. It questioned whether a party had a constitutional right to discovery in general, or depositions in particular, and then held section 2025.295 "passe[d] muster" under the federal Constitution. The court concluded that in enacting section 2025.295, the Legislature deemed it appropriate to limit deposition time for a "small class of terminally ill witnesses." The court posited a reasonable layperson might reach the same conclusion. Finally, the court opined the statute complied with " ‘fundamental principles of fairness and decency.’ " It certified its ruling for interlocutory appeal ( § 166.1 ).

This writ petition followed. We issued an order to show cause to consider the novel statutory questions outlined in the trial court's certification and other issues pressed in the petition.⁵ ( Paul Blanco's Good Car Company Auto Group v. Superior Court (2020) 56 Cal.App.5th 86, 99, 270 Cal.Rptr.3d 164.) Writ review is appropriate because the petition presents questions of first impression "of general importance to the trial courts and to the profession" that are amenable to the issuance of "general guidelines ... for future cases." ( Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.) The need for writ review is further demonstrated by the fact that two judges in the same superior court reached conflicting interpretations of the statute. ( Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 161, fn. 4, 53 Cal.Rptr.3d 69.) Additionally, Cahill made an adequate showing that it lacked adequate remedies at law and would suffer irreparable harm absent writ review. ( Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 299–300, 125 Cal.Rptr.3d 169.)

DISCUSSION

A. Construction of Section 2025.295

Well-settled principles guide our interpretation of the statute. "Our fundamental task is to ascertain the Legislature's intent and effectuate the law's purpose, giving the statutory language its plain and commonsense meaning. [Citation.] We examine that language in the context of the entire statutory framework to discern its scope and purpose and to harmonize the various parts of the enactment. [Citation.] ‘If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.’ [Citation.] The wider historical circumstances of a law's enactment may also assist in ascertaining legislative intent, supplying context for otherwise ambiguous language." ( Kaanaana v. Barrett Business Services, Inc. (2021) 11 Cal.5th 158, 168–169, 276 Cal.Rptr.3d 417, 483 P.3d 144.) "The interpretation of a statute presents a question of law that this court reviews de novo." ( Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190, 276 Cal.Rptr.3d 746, 483 P.3d 869.)

A party in a civil proceeding has a statutory right to conduct discovery. ( § 2017.010, subd. (a).) One way a party "may obtain" that discovery is by taking an oral deposition. ( § 2019.010, subd. (a).) Until 2019, section 2025.290 governed the length of depositions in cases like the one at issue here. (Stats. 2012, ch. 346, § 1.) That s...