St. Paul Fire & Marine Insurance v. Superior Court

Opinion

BARRY-DEAL, J.

These two petitions, decided together for convenience, arise out of the same superior court action, a suit by homeowners against two insurance companies for failure to pay mudslide damage claims.

[84]

These petitions challenge a ruling terminating the defense deposition of one of the plaintiffs (Code Civ. Proc., § 2019, subd. (d)), barring deposition of the other plaintiff without a court order, and permitting plaintiffs to proceed with depositions of other witnesses. We conclude that the court erred in issuing its order upon an ex parte application and without a hearing.

The details of the lawsuit are not important to these petitions. Of importance is the fact that the parties had agreed that plaintiffs’ depositions would be taken first, followed immediately by the depositions of “defendants’ representatives” noticed by plaintiffs. The first deposition, that of Mrs. Mary Jo Borak, began April 5th, and continued in 12 separate full- or half-day sessions through April 25, 1984. At the conclusion of the April 25th session, the parties agreed to reconvene on Friday, April 27th, at 10 a.m.

Late Thursday, April 26th, plaintiffs’ counsel advised defense counsel by phone that he would appear in court to seek a protective order concluding or suspending the deposition, rather than attend the scheduled session of the deposition. In support of what plaintiffs called an “ex parte request for protective order,” they filed a memorandum of points and authorities and a declaration by counsel. The declaration stated that the continued deposition of Mrs. Borak was causing severe hardship in her relationship with her nursing infant and that she had to make special arrangements for babysitters during the deposition sessions (she has a three-year-old and a six-month-old child). In general, the declaration described difficulties encountered in trying to speed up the deposition and to secure an estimate of the time required to complete the deposition. The declaration suggested that hardship to Mr. Peter Borak would occur if he were required to attend a similarly protracted deposition.

Friday morning, April 27, 1984, defense counsel appeared to oppose the ex