Case Number: EC055245    Hearing Date: November 07, 2014    Dept: B

NOTICE: Department B will be dark on November 7, 2014. Please review the following tentative ruling. If you wish to have oral argument, please contact opposing counsel and agree upon one of the following dates for argument: November 21 or December 5. Then, please send an email to lmcfarlane@lacourt.org stating your case number, the agreed upon date for argument, and which party will give notice. The email must be received by 4:30 p.m. on November 7, 2014, or the Court’s tentative ruling will be the ruling and order of the Court. You may also send an email if you submit to the tentative ruling.

TENTATIVE RULING:

Motion to File Second Amended Complaint

Motion for Seven Hour Time Limit for Deposition

This case arises from the Plaintiffs’ claim that the Defendants breached insurance contracts under which the Defendants provided workers’ compensation coverage to the Plaintiffs. The Plaintiffs provide janitorial and maintenance services for offices and other commercial buildings. The Defendants, Zurich American Insurance Company and American Zurich Insurance Company provide the insurance policies. The Defendant, Zurich Services Corp., handles claims made under the insurance policies. The Defendant, Sander A. Kessler & Associates, was the insurance broker.
Trial is set for June 15, 2015.

This hearing concerns the Plaintiffs’ motion for leave to file a Second Amended Complaint and the Defendants’ motion for an order regarding the deposition of Ronald Bloom.

1. Plaintiffs’ Motion for Leave to Amend

The Plaintiffs seek to file a Second Amended Complaint that would add a cause of action for breach of contract against the Defendant, Sander A. Kessler & Associates, Inc. (“Kessler”). Kessler was the insurance broker for the Plaintiffs and the Plaintiffs have already pleaded a negligence claim against Kessler based on allegations that it negligently reviewed and monitored the workers’ insurance program.

CCP section 473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.

The Plaintiffs’ attorney, Nicholas Roxborough, states in his declaration that Kessler produced 1,256 pages of documents on September 2, 2014 in which the Plaintiffs discovered sufficient facts to claim that there was a written contractual relationship between the Plaintiffs and Kessler. Mr. Roxborough states in paragraph 5 that he requested a stipulation to add a cause of action for breach of contract, but that he did not receive any response. The Plaintiffs filed the motion on October 8, 2014, which was timely made after the discovery of the facts underlying the new claim.

Trial is set for June 15, 2015. The Defendants will have seven months after the hearing to prepare a defense to the new breach of contract claim. Since this is sufficient time to prepare a defense, there are no grounds to find that granting leave to amend will prejudice the Defendants’ ability for trial.

In their opposition, the Defendant argues that the Plaintiffs have known of the contract. However, as discussed above, the Plaintiffs’ attorney stated that he did not obtain sufficient facts to plead a claim for breach of the contract until he received the document production on September 2, 2014.

Further, the Defendants argue that the Plaintiffs do not plead a cause of action for breach of contract. Generally, the Court does not consider the validity of the proposed amended pleading when determining whether to grant leave to amend. Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1045. This is because the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings. Id.

In the pending case, since the trial date is seven months after this hearing, the Defendants will have sufficient time to test the legal sufficiency of the new cause of action for breach of contract by filing the appropriate motion. Accordingly, this is not grounds to deny the motion.

Therefore, the Court grants the Plaintiff’s motion for leave to amend.

2. Defendants’ Motion Re: Time Allocation for deposition of Ronald Bloom

The Defendants seek an order regarding the allocation of time for the deposition of Ronald Bloom. Ronald Bloom is an insurance broker who is an employee of the Defendant, Sander A. Kessler & Associates. Both the Plaintiffs and Defendants, Zurich American Insurance Co. and American Zurich Insurance Company seek to depose Mr. Bloom. The Defendants suggest that the Court order that the 7 hour time be divided evenly, i.e., that each side have 3.5 hours to depose Mr. Bloom.

The deposition is limited to seven hours under CCP section 2025.290, which states:

“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.”

Section 2025.290(b) creates exceptions for the following:

1) when the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.
2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.
3) To any case designated as complex;
4) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.
5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.
6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.

The seven-hour limit in CCP section 2025.290 is merely presumptive and applicable only if the Court does not order otherwise. Certainteed Corp. v. Superior Court (2014) 222 Cal. App. 4th 1053, 1060. The language of section 2025.290(a) indicates unambiguously that the Court has the discretion to allow additional time to examine a deponent beyond the seven-hour limit. Id.

In the pending case, both the Plaintiffs and Defendants, Zurich American Insurance Co. and American Zurich Insurance Company, filed notices for the deposition of Mr. Bloom. The Defendants filed this motion to seek a Court order dividing up the seven hours between the two sides.

The Court declines to divide up the seven-hour time limit in such a manner. This is complex litigation which reasonably requires consideration of exceptions to the 7 hour rule. CCP section 2025.290(a) authorizes the Court to allow additional time, if needed to fairly examine the deponent. This deposition concerns an insurance broker employed by Sander A. Kessler & Associates, which operated the workers compensation program at issue in this case. In light of the complexity of this case and the importance of deposing an insurance broker from Sander A. Kessler & Associates, the Court orders additional time for the deposition of Mr. Bloom. Each side shall have seven hours for the depositions of Mr. Bloom, i.e., the Plaintiffs have seven hours and then the Defendants have seven hours. If this is unacceptable to the parties, the Court will make a further determination at the hearing as to the amount of additional time to grant the parties to depose Mr. Bloom.