Judge: Audra Mori, Case: 21STCV12109, Date: 2022-10-21 Tentative Ruling

Case Number: 21STCV12109    Hearing Date: October 21, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Francisco Torres De La Rosa (“Francisco”) and Maria Aurora Torres (“Maria”) (collectively, “Plaintiffs”) filed this action against defendants the Pasha Group, Pasha Stevedoring & Terminals L.P., Patriot Environmental Services, Daniel Beck, and California Asbestos Consultants for injuries allegedly sustained by Francisco in a workplace accident.  The complaint alleges causes of action for negligence and loss of consortium.    

At this time, Defendants Patriot Environmental Services, Daniel Beck dba California Asbestos Consultants (collectively, “Defendants”) move to compel the further deposition of Francisco and an increase to the time limits to depose Francisco.  Plaintiffs oppose the motion, and Defendants filed a reply.  

2. Motion to Compel Further Deposition

CCP § 2025.610 states:

(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.

Moreover, CCP §2025.290(a) provides, “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.” 

The plain meaning of CCP § 2025.290(a) “makes the seven-hour limit merely presumptive and applicable only if the court does not order otherwise.”  (Certainteed Corp. v. Superior Court (2014) 222 Cal.App.4th 1053, 1060.)  “[T]he language of subdivision (a) indicates unambiguously that the court has the discretion to allow additional time to examine a deponent beyond the seven-hour limit under subdivision (a).”  (Ibid.)

In this case, Defendants provide there are four named defendants in this action represented by three different counsel, and that Defendants deposed Francisco on April 1, 2022, but interpretation and technical difficulties required Defendants to continue the deposition to April 14, 2022.  For example, Defendants state, “For every question, the interpreter was required to translate 1) defense counsel’s question to Plaintiff, 2) Plaintiff counsel’s objections to the Plaintiff, and 3) Plaintiff’s subsequent answer to defense counsel’s questions.”  As to technical difficulties, Defendants assert that Plaintiff’s internet connection was unstable, causing the audio malfunction and making it difficult for him see exhibits, and that the interpreter had internet connection issues significant enough that she ended up having to utilize a call-in line at some point in the deposition.  Defendants state that two and half hours into the continued deposition, Plaintiffs’ counsel unilaterally suspended the deposition on the grounds that the total time on the record approached seven hours.  Defendants contend that the time spent addressing interpretation and technical issues with the remote deposition should not count towards the testimony time of the deposition.  Defendants argue that even if they did count as testimony under CCP § 2025.290, they delayed Francisco’s examination and constitute good cause to allow Defendants additional time to complete the deposition.  Defendants request seven additional hours to depose Francisco. 

In opposition, Plaintiffs contend Defendants wasted seven hours of deposition time asking irrelevant and immaterial questions not calculated to lead to the discovery of admissible evidence and assert that Defendants are at fault for choosing to do a video deposition.  Plaintiffs contend that Defendants are seeking seven hours of additional time to cause unwarranted annoyance, embarrassment, burden, and expense to Plaintiffs.  Further, Plaintiffs argue that the technical issues were caused by Defendants’ own doing and did not amount to a loss of seven hours of testimony.  Plaintiffs contend that Defendants fail to establish good cause for additional time to depose Plaintiff and that Defendants cite no applicable authority to support their claims. 

In reply, Defendants provide the parties were unable to informally resolve this dispute and that the technical difficulties and translation issues warrant additional time to depose Francisco.  They state that this deposition took place earlier this year when COVID-19 precautions were more prevalent and that Plaintiff also took video depositions.  Additionally, Defendants argue their questions were relevant and were not frivolous. 

Defendants provide that the parties were on the record for Francisco’s deposition for a total of approximately seven hours and 26 minutes.  (Mot. at pp. 2:25-26, 3:27-28.)  To the extent that Defendants contend that time on the record does not matter in calculating total testimony time under CCP § 2025.290, they do not specify what constitutes testimony under their interpretation.  For example, depositions normally include time when deponents or counsel ask questions that might not strictly qualify as the deponent’s testimony, but this time is traditionally included within the seven hour time limit.

Nonetheless, Defendants’ evidence shows that there were delays caused by interpretation and technical issues while deposing Francisco.  Plaintiffs do not dispute that there were technical issues or that there were delays involving the interpreter during the deposition.  Defendants, thus, establish good cause for additional time to depose Plaintiff because of the interpretation and technical difficulties, including network connectivity issues, during Francisco’s first deposition.  However, as Plaintiffs assert, Defendants do not establish that an additional seven hours are required to fully depose Francisco because of these issues. 

Therefore, Defendants’ motion for additional time to depose Plaintiff Francisco is granted.  The Court awards Defendants three hours to complete Francisco’s deposition.  Counsel must meet and confer to determine the date and time for the second depositions; if Plaintiffs’ counsel does not meaningfully participate in the meet and confer process, Defendants may unilaterally set the date and time for the deposition with at least ten days’ notice to Francisco (extended per Code if by other than personal service).  The parties are now aware of the issues presented by this deposition and should plan carefully and use their time wisely to minimize them going forward. 

Moving Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 21^st day of October 2022