Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2010-00353395, Glenda Sanders, Judge.
Law Offices of Randall M. Widmann, Randall M. Widmann; McQueen & Ashman, Phillip Ashman and Brian A. Kumamoto for Plaintiff and Appellant.
Littler Mendelson, Alaya B. Meyers and Muizz K. Rafique for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
We affirm the trial court’s discretionary imposition of sanctions against plaintiff and his attorney for discovery abuse arising from the attorney’s instruction not to answer deposition questions regarding prior stressors in a lawsuit accusing his former employer of causing various mental and emotional ailments. Such questions are clearly permissible under controlling authority of the California Supreme Court. (Vinson v. Superior Court (1987) 43 Cal.3d 833 (Vinson).)
Facts and Procedural History
Defendant SWH Corporation operates Mimi’s Café, a chain of casual dining restaurants. Plaintiff Sean Cashman was a long-term employee at Mimi’s, where he supervised a number of Mimi’s restaurants, until he was fired. In his wrongful termination lawsuit, Cashman claimed Mimi’s fraudulently induced him to convert his “for cause” employment contract to an “at will” relationship, thereby causing him to give up his equity position in the company. Cashman alleged this was part of a scheme to target him and other similarly situated employees for termination. In addition to monetary damages for lost wages and loss of professional reputation, he sought damages “in the form of emotional distress and mental anguish.”
In August 2010, Mimi’s took Cashman’s deposition at his home in the San Francisco Bay area. He claimed specific emotional injuries arising from his termination, including ongoing depression, anger, sleeplessness, lethargy, depression and irritability, which he said he had not previously experienced.
This then led to the following exchange:
“Q. In 2009, in the time period leading up to your termination, were you experiencing any problems in your personal life ?
MR. WIDMANN [Cashman’s counsel]: Don’t answer that question. Seeks to invade witness’s right of privacy. Instruct the witness not to answer.
MR. MEYERS [Mimi’s counsel]: Well, I’m entitled to ask this to explore other sources of emotional distress.
MR. WIDMANN: No, you are not. There is a whole laundry list of cases that say you can’t get into that. The other stressors argument which you are stating to me has been dealt with by the courts repeatedly. You are not entitled to the information.”
During an ensuing colloquy, Mimi’s attorney reiterated the relevancy of the requested information, and the possibility of a motion to compel. Attorney Widmann twice asserted “And you know what you can do with your motion; I know what you can do with your motion. Do what you have to do; don’t threaten me. Thank you very much.”
Mimi’s filed a motion to compel Cashman to appear at another deposition for follow-up questions. The trial court ordered Cashman to answer questions about problems in his personal life during 2009, but not about psychiatric consultations. The court further ordered Cashman and his attorney to be jointly and severally responsible for attorney’s fees of $3,700 for costs and fees associated with the motion to compel. The court also ordered them to pay $2,880, representing Mimi’s estimated costs to travel to Northern California to take the deposition.
Cashman has appealed from the sanctions order, which is directly appealable since it exceeds $5,000. (Code Civ. Proc., § 904.1, subd. (a)(12); see Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1559 (Tucker).)
Discussion
1. The Abuse of Discretion Standard and the Instruction Not to Answer
Trial courts may impose monetary sanctions for “misuse of the discovery process.” (Code Civ. Proc., § 2023.030.) Such sanctions, in the form of fees or expenses, are imposed against the offending litigant or “any attorney advising that conduct, ” or both, unless the court determines “that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, subd. (a).)
There is no requirement for a willful or intentionally evasive violation, nor is there a free pass until the prevailing party secures a court order compelling discovery. To the contrary, there is a presumption in favor of sanctions if the requesting party requires judicial intervention. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286-1287 (Clement).)
We review the sanctions order under the abuse of discretion standard, resolving all evidentiary conflicts against Cashman, the losing party, who has the burden of establishing error. We set aside the order only if irrational, arbitrary, capricious or whimsical. (Tucker, supra, 186 Cal.App.4th at p. 1561.)
Cashman asserts he has a constitutional privacy right to refuse to answer any questions about his emotional state immediately before his termination. He is wrong.
The seminal case, Vinson, supra, 43 Cal.3d 833 holds the opposite. In Vinson, an employee in a wrongful termination lawsuit petitioned for a writ of mandate to prevent an independent medical and psychological examination. The Supreme Court held the employee placed her mental condition into controversy by seeking damages for emotional distress, precluding her blanket privacy objection: “[B]y asserting a causal link between her mental distress and defendants’ conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress. We thus conclude that her mental state is in controversy.” (Id. at pp. 839-840.)
Here, too, as in Vinson, Cashman has created a controversy about his mental state by expressly pleading a cause of action for intentional infliction of emotional distress and by accusing Mimi’s of causing his emotional ailments. By asserting a causal link between his mental distress and Mimi’s conduct, Cashman has placed his emotional condition in controversy and waived his right to privacy as to other emotional stressors as the cause of his mental and emotional difficulties. As the trial court asked at the hearing, “[H]ow is a defendant able to investigate alternate causes of emotional distress if he or she or it cannot inquire into those potential alternate causes and simply ask questions such as ‘Did you suffer depression on any date or a date in the year prior to this incident?’”
It is true that Vinson imposed additional discovery limitations on an employer’s questions concerning an employee’s past sexual conduct, but no such questions were posed by Mimi’s at the August 5, 2010 deposition. We find Vinson to be dispositive whether Cashman’s mental and emotional condition is in controversy in this lawsuit.
Cashman’s reliance on Davis v. Superior Court (1992) 7 Cal.App.4th 1008 (Davis) is misplaced. Davis involved a “garden-variety motor vehicle personal injury action, ” where the injured plaintiff claimed damages for pain and suffering associated with the injuries to her wrist, arm, shoulder, neck, back and knee. (Id. at p. 1015.) “‘The plaintiff... makes no claim for damages for “mental and emotional distress” apart from her claim for damages for pain and suffering associated with the injuries sustained in the subject automobile accident....’” (Ibid.) Under these circumstances, the Court of Appeal issued a writ of mandate to preclude discovery of the plaintiff’s psychotherapy records because she had not placed her emotional distress in issue in her “garden-variety” personal injury action seeking damages for pain and suffering. (Id. at pp. 1015-1016.) Here, in contrast to Davis, Cashman specifically seeks damages for mental and emotional anguish.
2. The Meet-and-Confer Requirement
Plaintiff argues the trial court abused its discretion in determining that Mimi’s counsel had engaged in a good faith effort to meet-and-confer to informally resolve the discovery dispute. This procedure is designed to promote the informal resolution of discovery disputes through discussion rather than bickering, thereby forestalling wasteful motions to compel and preserving judicial resources. (See Clement, supra, 177 Cal.App.4th at p. 1281.)
The trial court has broad discretion to determine whether the parties have undertaken the appropriate steps to meet-and-confer. This, in large part, depends upon circumstances. While complex disputes may require post-deposition meetings or telephonic conferences, simpler disagreements may only call more modest attempts, including discussions at the deposition itself. We will not second-guess a trial judge’s reasonable determination, based upon his or her view of the litigation history, discovery scope, and the parties’ willingness to compromise, about what is likely to bear fruit. (See discussion in Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016-1017 (Stewart).)
The trial court’s resolution of disputed facts may be based on affidavits or declarations, not just oral testimony, and our deference to such credibility determinations is the same as for oral testimony. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.) Under the case law, the trial court’s “‘inherently factual’” determinations regarding attorney Widmann’s apparent unwillingness to compromise are not be “‘lightly disturbed.’” (Stewart, supra, 87 Cal.App.4th at p. 1016.)
We find no abuse of discretion in the trial court’s determination that Mimi’s satisfied the statutory meet-and-confer requirement. At the August 5, 2010 deposition, the court found, “it was clear” that Mimi’s “(1) was seeking an informal resolution while all parties were present at a deposition that would be costly to resume at a later date; (2) intended to bring a motion to compel on a narrow issue (whether [Mimi’s] could obtain discovery re alternate sources of emotional distress); and (3) [plaintiff’s] attorney’s position was uncompromising and, indeed, rude.”
Cashman challenges the trial court’s view of what happened at his deposition because he and his counsel were there, and the trial court was not. Cashman relies upon a declaration he filed in conjunction with an unsuccessful petition for writ of mandate in this court, where he challenges the trial court’s characterization of his conduct at the deposition.
This is improper. Not only has Cashman failed to follow the proper motion procedures for requesting judicial notice (Cal. Rules of Court, rule 8.252(a)(1)), but the declaration upon which he relies was never presented to the trial court, which is the factfinder on discovery motions, not us.
3. The Attorney Fees Award
Cashman challenges the award of attorney fees against attorney Widmann, since Mimi’s notice of motion only referred to a motion “sanctioning Plaintiff for his failure to properly answer these questions at his deposition and ordering him to pay attorneys’ fees and costs to Defendant....” (Italics added.)
Mimi’s motion to compel belies any claim that attorney Widmann lacked notice that sanctions were being brought against him as well as against his client. The motion itself, in its memorandum of points and authorities and its conclusion, that sanctions were being sought “against plaintiff and/or his counsel for their inappropriate conduct and abuse of the discovery process.” (Italics added.) Mimi’s reiterated both these targets in its reply. (Contrast In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1077 (Fuller), italics added [“nothing in the notice, pleading, declaration or memorandum of points and authorities can be construed as notice to appellant that sanctions would be sought against him individually for something he did or failed to do”].)
This is not surprising since Cashman’s refusal to respond came as a result of attorney Widmann’s directive. In Fuller, supra, 163 Cal.App.3d at page 1077, upon which Cashman relies, the sanctioned attorney, far from causing the discovery abuse, repeatedly attempted to have his client supply the requested information.
It also appears that Cashman may lack standing to appeal the award of sanctions against attorney Widmann, who did not himself appeal, even though he was statutorily authorized to do so. (Code Civ. Proc., § 904.1, subd. (b); see Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42 [client has no standing to challenge a sanction order against his attorney]; but see Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974 [client’s notice of appeal from sanctions order liberally construed to encompass order against attorney].) Here, it is doubly ironic that attorney Widmann seeks to piggyback on his client’s appeal, since he takes a crabbed notion of the same close attorney-client relationship in construing Mimi’s notice of motion.
Finally, Cashman questions the inclusion of Mimi’s future costs and fees to travel to a future San Jose deposition session. Cashman contends such sanction components are improper because they were not “incurred” by Mimi’s at the time of its motion to compel. (See Tucker, supra, 186 Cal.App.4th at p. 1564 [“A trial court does not have the authority to award the costs of a future deposition as a discovery sanction where the individual has not yet ‘incurred’ those costs.]”)
But Cashman did not raise any objections before the trial court to Mimi’s attempts to recover sanctions for costs and fees yet incurred. Because Cashman did not present this point to the trial court, we will not consider it for the first time on appeal, and deem it to have been waived. (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 107.)
Disposition
The order is affirmed. Costs on appeal are awarded to defendant.
WE CONCUR: O’LEARY, J., FYBEL, J.