McCrary v. United Airlines

Filed 10/29/07 McCrary v. United Airlines CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Mel Red Recana, Judge. Affirmed.

Law Offices of Joseph M. Lovretovich, Joseph Lovretovich and Nicholas W. Sarris for Plaintiff and Appellant.

Littler Mendelson, Craig G. Staub and Janel R. Ablon for Defendant and Respondent.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint

Appellant Donald McCrary brought suit against Miguel Rivera and respondent United Air Lines, Inc. in March 2005. According to the complaint, on February 27, 2004, appellant, then employed by respondent, became involved in an altercation at work with Rivera, a fellow employee who held a supervisory position. During the incident, Rivera allegedly yelled at appellant, grabbed his arm, and pushed him. As a result, appellant became dizzy and began experiencing chest pain. In addition, his blood pressure rose to dangerous levels. On May 18, 2004, after an administrative hearing, respondent terminated appellants employment.

Appellants complaint contained claims for assault, battery, intentional infliction of emotional distress, and disability discrimination under the Fair Employment and Housing Act based on appellants medical problems.^[1] Respondent answered the complaint in April 2005.

Respondents Early Attempts to Depose Appellant

Respondent first attempted to take appellants deposition in April 2005, by serving a notice of a deposition to be held on June 23. A week prior to the scheduled date, appellants attorney asked for a continuance. The deposition was re-scheduled to August 9. The parties thereafter mutually agreed to continue that date to September 13. A few days prior to September 13, counsel for appellant informed respondents counsel that appellant could not attend because he had undergone surgery two weeks earlier and was not sufficiently recovered.

By this time, the originally-scheduled trial date was imminent. Accordingly, the parties stipulated to continue the trial date. The court agreed to the stipulation, and the trial date was continued to October 16, 2006.

After obtaining the continuance, the parties discussed when appellant would be available and well enough to undergo deposition questioning. In February 2006, appellants counsel said that appellants condition was sufficiently improved, and the parties mutually selected the date of March 28. However, a few days prior to March 28 -- by letter dated March 24, 2006 -- counsel for appellant informed respondents counsel that appellant could not attend because [his] health has not recovered to the point where he is able to sit for his deposition . . . . Respondents counsel tried unsuccessfully for several weeks to contact appellants counsel to discuss appellants availability and health. In late April, respondents counsel sent a new notice, scheduling appellants deposition for May 12, and a letter stating that if appellant did not appear on that date, respondent would move to compel appellants attendance or, in the alternative, for terminating sanctions. On May 11, the day before the scheduled deposition, counsel for appellant informed counsel for respondent that appellant would not be attending, again citing appellants medical condition.

Respondents Motion to Compel

On May 15, 2006, with the trial date again approaching, respondent moved ex parte for an order compelling appellants deposition. Appellant opposed the motion. The opposition included a declaration from counsel stating that appellant had had a liver transplant in August 2005 and was suffering from a chronic kidney condition. The opposition memorandum contended that due to appellants health, he would be unable to sit for a deposition for at least six months. In support of this contention, he attached a completed Statement of Health Care Provider form, dated May 17, 2006 and signed by Dr. Raphael Toutounjian. The form contained a series of boxes which had been checked to indicate restrictions on appellants activities, including climbing stairs, lifting over 15 pounds and standing for five minutes, and stated appellant would be disabled from working until December 2006.^[2] The boxes for driving a personal vehicle and sitting had not been checked, indicating no limitations on those activities. The opposition memorandum asked the court to consider staying the action and vacating the trial date in lieu of granting the motion to compel.

At the hearing on May 31, 2006, the court granted the motion to compel and awarded monetary sanctions of $750 to respondent. The court further ordered that deposition sessions be limited to two-and-a-half hours, but did not set a specific date or dates for the deposition. Respondent re-noticed appellants deposition for June 14, 2006. On June 7, counsel for appellant informed respondents counsel that appellant would not be attending.

Appellants Motion for Relief from Order Compelling Attendance and Motion to Continue Trial Date

On June 14, 2006 -- the date set for his deposition -- appellant moved ex parte for relief from the court order compelling his attendance and also requested continuance of the trial date based on his inability to participate and aid in the prosecution of his case due to illness. To support the motion, appellant attached a letter dated June 12, 2006 written by his physician, Dr. Toutounjian, explaining that appellant had been hospitalized from August 2005 to February 2006. Since his release, he had been hospitalized on three separate occasions and his last hospital stay had ended only a few days earlier. The letter further stated: Due to his current medical condition, [appellant] is unable to give deposition as requested by the court. I anticipate approximately 3-4 months duration of recuperation prior to being able to respond to the courts [sic] request for deposition.

Respondent opposed, calling appellants motion a transparent effort to preempt [respondents anticipated] motion for terminating sanctions. Respondent argued that the doctors letter was insufficient and contradict[ed] all statements to date regarding [appellants] work restrictions. The opposition questioned why information concerning appellants alleged hospitalizations was not brought to respondents or the courts attention until after the court ordered his deposition. The court denied appellants motion.

Respondents Motion for Terminating Sanctions

On June 16, 2006, respondent moved for terminating sanctions based on appellants failure to comply with the court order to attend his deposition. Respondent pointed out that Dr. Toutounjians letter was vague as to appellants physical limitations and was not signed under penalty of perjury.

Appellant opposed, contending his failure to attend his deposition was not willful and that his medical condition prevented his attendance. He presented no new evidence but relied on the May 2006 Statement of Health Care Provider and the June 2006 letter attached to his June 14 ex parte motion.

The court granted the motion and dismissed appellants action without prejudice. At the hearing, respondent argued: [T]he evidence before the court is . . . not sufficient as [the court has] already noted. Its the same doctors note they submitted several weeks ago in support of their ex parte that [the court] denied. Theyve had several weeks to obtain additional information, another doctors note, something under penalty of perjury. They havent bothered to do that, and there . . . continues to be no certainty, no explanation of limitations why he cant sit for a couple of hours . . .  . The court agreed, finding that appellant has not provided adequate evidence of [his] inability to appear for deposition or any further evidence of his inability to sit for deposition . . .  limited to two-and-a-half hours each session. Judgment was entered and this appeal followed.

DISCUSSION

Appellant concedes that trial courts have the power to impose sanctions for failure to submit to discovery or for disobeying a court order to provide discovery. (See Code Civ. Proc., 2023.010, subd. (d) and (g), 2023.030.) He further concedes that appellate courts review discovery sanction orders under the deferential abuse of discretion standard. (See, e.g., Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) He does not dispute that, as set forth above, he failed repeatedly to submit to deposition and disobeyed a court order compelling attendance. Appellants sole contention is that the court went too far by terminating the litigation. We disagree.

Section 2023.030 of the Code of Civil Procedure lists a range of penalties that may be imposed by trial courts to prevent misuse of discovery and failure to respond to discovery, including monetary sanctions, issue sanctions, and terminating sanctions. In choosing among its various options for imposing a discovery sanction, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason. (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988; accord, Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928.) A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

It is true that [d]iscovery sanctions must be tailored in order to remedy the offending partys discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party. (Karlsson v. Fort Motor Co., supra, 140 Cal.App.4th at p. 1217; accord, Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545, quoting Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487-488 [Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. [Citations.]]; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293 [trial court should tailor[] the sanctions to fit the crime].) But if the totality of the circumstances -- including the conduct of the [offending] party, the willfulness of his actions, the number of formal and informal attempts to obtain the discovery, and the time spent avoiding or evading discovery -- indicates persistent intransigence, the trial court may be justified in imposing the ultimate penalty. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Here, the record shows that appellant refused either to submit to a deposition of limited duration or to provide a satisfactory explanation why his medical condition prevented him from doing so. Respondent had informally attempted to schedule appellants deposition for over a year. During this period, appellant never informed respondent that he was suffering from a condition which compromised indefinitely his ability to sit for a deposition. Nor did he affirmatively move for a stay of the litigation or a protective order. Instead, after representing that he was sufficiently recovered to be deposed, he permitted respondents counsel to repeatedly schedule and prepare for depositions, only to cancel them at the last minute. It was not until respondent was forced to file a motion to compel that appellant provided any meaningful information about his physical condition and limitations. Even that information was far from complete.

Presuming the truth of the unsworn allegation that he was hospitalized from August 2005 to February 2006,^[3]we note that the notice immediately preceding the courts order to compel set appellants deposition for May 12, 2006 -- three months later. The courts order to compel was not issued until May 31. The evidence appellant provided at that time -- the May 2006 Statement of Health Care Provider -- indicated no restrictions on appellants ability to sit for any period or to drive his personal vehicle. Nonetheless, the court, in ordering appellants attendance, restricted the deposition to a single two-and-a-half hour session per day to minimize any impact on appellants health. Appellants sole support for his contention that he could not submit to questioning for even that short period was the June 12, 2006 letter from Dr. Toutounjian, submitted to the court on the day his deposition was to take place. This was, as respondent pointed out, both unsworn and vague as to the condition that prevented appellant from sitting and answering questions for a few hours. Moreover, nothing in the letter indicated that Dr. Toutounjian understood what undergoing a deposition entailed or whether he had been informed of the courts order limiting the duration of the sessions. Finally, when the court rejected appellants ex parte motion for relief, finding the information in Dr. Toutounjians letter insufficient to justify appellants noncompliance, appellant made no effort in his opposition to the motion for sanctions to provide additional evidence or a more comprehensive explanation. Under these circumstances, the trial court was justified in dismissing the complaint.

Appellant contends that less severe alternatives were available, primarily a continuance of the trial and other dates. We disagree. Monetary sanctions had already been imposed, with no effect. And while trial courts are admonished to tailor[] the sanctions to fit the crime (Reedy v. Bussell, supra, 148 Cal.App.4th at p. 1293), here appellants outright refusal to submit to a deposition did not lend itself to a limited sanction. Due to the nature of the claims, appellants testimony was key to both liability and damages. His refusal to submit to a deposition undermined respondents ability to prepare a defense to all of his claims.

Appellant contends his refusal to comply with the court order was not willful. The trial court reasonably found otherwise.^[4] Appellant announced his refusal to attend the June 14, 2006 deposition session in defiance of the May 31 order, prior to seeking relief. When he moved, ex parte, on the day scheduled for the deposition, his sole rationale for its cancellation was the information set forth in Dr. Toutounjians letter. But the medical conditions alluded to by Dr. Toutounjian -- appellants hospitalization following the 2005 transplant surgery and his chronic kidney condition -- were already known to the court and taken into account in the May 31 order. The court had previously concluded that these conditions did not preclude appellants deposition, and the letter supplied no evidence of significantly changed circumstances. As appellant repeatedly refused to submit to a deposition based on evidence the court reasonably found insufficient to support his action, and ultimately defied a court order to do so, we find no abuse of discretion in the courts decision to dismiss the complaint.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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^[1] Appellant claimed to have been suffering from coronary artery disease, hypertension, and hyperlipidemia, and to have undergone a double bypass.

^[2] The document appears to be a status report intended for appellants employer.

^[3] In a declaration submitted by appellants counsel in December 2005, he represented that appellant was discharged from the hospital after the surgery in mid-November 2005.

^[4] See Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 287 (to the extent the trial courts exercise of discretion relies on factual determinations, we review the record for substantial evidence to support them).