EMERSON ELECTRIC CO v. GRAYSON

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Court of Appeal, Second District, Division 1, California.

EMERSON ELECTRIC CO. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; William S. GRAYSON et al., Real Parties in Interest.

No. B103375.

Decided: September 26, 1996

Hennelly & Grossfeld, John J. Hennelly and Susan J. Williams, Pacific Palisades, for Petitioners. No appearance for Respondent. Daniel W. Johnson, Woodland Hills, for Real Parties in Interest.

In Stermer v. Superior Court (1993) 20 Cal.App.4th 777, 24 Cal.Rptr.2d 577, Division Six of our court held that the trial court has no authority to order a party to perform a physical reenactment of an event at a videotaped deposition.   In our view, our colleagues were wrong, and we hold in this case that such authority does exist.

BACKGROUND

William Grayson cut his hand while using a radial power saw.   Grayson sued Emerson Electric Co. and Sears, Roebuck & Co. (collectively “Emerson”) for damages on various tort theories.   At his duly noticed videotaped deposition, Grayson's lawyer refused to permit his client to draw any diagrams (because, he said, “[t]his is an oral deposition”) and refused to permit him to demonstrate the accident using the saw (because, he said again, “[t]his is an oral deposition”).

Emerson filed a motion for an order precluding Grayson's introduction at trial of “any evidence consisting of nonverbal testimony demonstrating the circumstances of the accident” or, in the alternative, an order compelling Grayson to “respond to questions at his videotaped deposition which seek nonverbal testimony demonstrating the circumstances of that accident.”   Relying on Stermer, Grayson opposed the motion.   After suggesting the result was “ridiculous,” the trial court denied Emerson's motion on the ground that it was required to follow Stermer.   Emerson filed a petition for a writ of mandate, asking us to reexamine the issue and to disagree with Stermer or, at a minimum, to distinguish it from this case on the ground that Stermer does not suggest the trial court is without authority to preclude the introduction at trial of nonverbal evidence when a party refuses to make such evidence available during discovery.   We issued an order to show cause, received opposition, and heard oral argument, and we now explain why we disagree with our friends in Division Six.

DISCUSSION

I. The Statute

We begin with the relevant portions of a very long statute, section 2025 of the Code of Civil Procedure.1  After identifying the persons who can be deposed (§ 2025, subd. (a)), describing the details of the required notice (§ 2025, subds. (b), (c), (d)), explaining where and when depositions may be held (§ 2025, subds.(e), (f)), and providing for protective orders (§ 2025, subd. (i)), the statute addresses videotaped depositions:

“The party noticing the deposition may also record the testimony by ․ videotape if the notice of deposition stated an intention also to record the testimony by [that] method[ ], or if all the parties agree that the testimony may also be recorded by [that] method[ ]․  Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code. ․ [¶] (I) A party intending to offer a[ ] ․ videotaped recording of a deposition in evidence [at trial] shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time for objections to be made and ruled on․” (§ 2025, subds. (l )(1), (l )(2)(I), emphasis added.)

Subdivision (o) of section 2025 covers motions to compel:  “If a deponent fails to answer any question ․, the party seeking discovery may move the court for an order compelling that answer․   If a deposition is recorded by ․ videotape, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.   If the court determines that the answer ․ sought is subject to discovery, it shall order the answer be given․”   There is more, but none of it is relevant to this case.

II. Stermer v. Superior Court

Stermer is substantively indistinguishable from our case.   There, the parents of a child killed in an automobile accident sued the seller and manufacturer of the car seat in which the child was riding.   At the mother's videotaped deposition, defense counsel asked her to “perform, before the camera, the manner in which she placed and secured the infant into the car seat.  [The defendants] provided ․ a car seat and plastic doll for this demonstration.”   The mother's attorney instructed her not to comply, and the defendants moved to “compel the reenactment at the deposition․”  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 779, 24 Cal.Rptr.2d 577.) 2  The trial court granted the motion and the parents filed a petition for a writ of mandate.  (Ibid.)

Division Six began with “the proposition that the courts are without the power to expand the methods of discovery beyond those authorized by statute․   As a corollary to [that] proposition, the power to compel discovery is circumscribed by statute and a trial court is without jurisdiction to compel a party to perform acts that are beyond the pale of the discovery act․”  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 781, 24 Cal.Rptr.2d 577.)   The court then went directly to subdivision (o) of section 2025, and focused on its specific words:  “Subdivision (o) of section 2025 provides, in part, that, ‘[i]f a deponent fails to answer any question ... the party seeking discovery may move the court for an order compelling that answer . ․ If the court determines that the answer ․ is subject to discovery, it shall order that the answer be given․’ ”  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 781, 24 Cal.Rptr.2d 577, emphasis by the Stermer court.)

Based on this narrow view of section 2025, the court in Stermer quoted dictionary definitions of “question” (“ ‘an interrogative expression often used to test knowledge’ ”) and “answer” (“ ‘to speak or write in reply’ ” to a question), then concluded that “a reenactment at a deposition requires something more than a mere answer—it requires that the deponent perform a host of nonverbal actions that go well beyond answering questions.   In other words, the reenactment necessarily includes a series of acts by the deponent which are not of a verbal nature.”  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 781, 24 Cal.Rptr.2d 577.)

This result was compelled, said Division Six, by the plain meaning of section 2025, subdivision (o), and a statute clear on its face, they concluded, does not admit of judicial interpretation or construction, and exceptions should not be read into it.   Or, as Justice Stone paraphrased Fred C. Dobbs, “the Legislature ‘don't say nuthin’ [it] don't mean.'  (B. Traven, The Treasure of Sierra Madre.)”  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 781, 24 Cal.Rptr.2d 577.)

III.

We decline to follow Stermer's lead, in part because we believe litigants (even those who don't come from Missouri), have the right to say to each other, “You have got to show me.”  (Willard Duncan Vandiver, in a speech at a naval banquet in Philadelphia (1899).) 3  In addition, we think there are a few points that weren't considered in Stermer that, had they been examined, would have compelled Division Six to conclude that subdivision (o) of section 2025 cannot be read in a vacuum;  that the statute, as a whole, requires a judicial interpretation;  and that the proper interpretation authorizes a court to order a party deponent to participate in a demonstration at a videotaped deposition.  (Irvington–Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738–739, 18 Cal.Rptr.2d 49 [discovery statutes must be liberally construed in favor of discovery, not in a way that is inconsistent with the purposes of discovery or which extends the statutory limitations beyond those expressed by the Legislature].)  It is our consideration of these points that persuades us to reach a different result than that reached in Stermer.4

A.

First, Stermer does not consider subdivision (l ) of section 2025 which, quite plainly, says that, at a videotaped deposition, “[e]xamination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code.” (Emphasis added.)   Since it is undisputed that diagrams, demonstrations and reconstructions are permitted at trial (Evid.Code, § 352;  DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1230–1233, 242 Cal.Rptr. 423 [videotape recreating accident properly admitted];  People v. Jacobs (1987) 195 Cal.App.3d 1636, 1656, 241 Cal.Rptr. 550 [demonstration important to a full understanding of witness' testimony admissible within the discretion of trial court];  People v. Buttles (1990) 223 Cal.App.3d 1631, 1639–1640, 273 Cal.Rptr. 397), it is clear that subdivision (l ) of section 2025 is inconsistent with Stermer's interpretation of subdivision (o) of the same statute.

Simply put, we do not believe the Legislature gave with one hand (by authorizing the “[e]xamination and cross-examination of the deponent ․ as permitted at trial under the provisions of the Evidence Code”) and took with the other (by depriving the trial court of authority to enforce compliance with proper “examination” requiring something other than a literal verbal response).

B.

Second, Calinotion of trial by ambush, by providing pretrial discovery procedures designed to minimize the opportunities for fabrication and forgetfulness and to eliminate the need for guesswork about the other side's evidence.  (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 364 P.2d 266;  Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1294–1295, 24 Cal.Rptr.2d 238.)   To this end, any party may, unless limited by order of the court, obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the lawsuit if the matter is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (§ 2017, subd. (a);  Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, 39 Cal.Rptr.2d 896.)   Since any doubt is resolved in favor of permitting discovery (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, 183 Cal.Rptr. 810, 647 P.2d 86), we view the policy underpinnings of the discovery law as a legislative command to interpret section 2025 to favor subdivision (l ) over Stermer's interpretation of subdivision (o), as discussed in Part II, ante.5

Moreover, juxtaposition of the admissibility at trial of demonstrations and reenactments with the anti-gamesmanship goal of the Discovery Act reinforces our conclusion that Stermer is wrong.   Although Stermer mentions in passing that reenactments may be permitted at trial, the point was dismissed as irrelevant because the only question considered was whether a court has the authority to order a deponent to respond in a nonverbal manner at a videotaped deposition.  (Stermer v. Superior Court, supra, 20 Cal.App.4th at pp. 780–781, 24 Cal.Rptr.2d 577.)   The point cannot be so easily dismissed In our case.   After Grayson refused at his videotaped deposition to participate in the reenactment, Emerson moved for an order either compelling him to participate or, in the alternative, precluding Grayson's use of a reenactment during the presentation of his case at trial.   Relying on Stermer, the trial court held that it was without authority to make either order.

In our view, the Legislature could not have intended this result.   If Stermer's analysis of legislative intent is correct and ours is not, it seems to us that the trial court must have the authority to prohibit a party from using at trial that which he is unwilling to disclose during discovery.   At a minimum, therefore, we believe Grayson's refusal to participate in a pretrial reenactment of his accident confers upon the trial court the authority to grant Emerson's motion for an evidence preclusion order prohibiting Grayson's use of a reenactment at trial, so that Grayson does not obtain an unfair advantage.   For authority, we need look no further than the law developed in the area of privilege—where a party who refuses to disclose information on the ground that he is entitled to claim the benefit of a privilege is precluded from using that information at trial.  (A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566, 142 Cal.Rptr. 390 [affirming an order precluding testimony at trial on matters about which the party had justifiably asserted in discovery his privilege against self-incrimination, because a “litigant cannot be permitted to blow hot and cold”];  cf.  Kennemur v. State of California (1982) 133 Cal.App.3d 907, 914, 184 Cal.Rptr. 393;  see also Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287–288, 245 Cal.Rptr. 873 [the trial court has inherent power to preclude evidence when necessary to promote fair process].) 6

For the time being, however, the point is moot––since we hold in this case that Grayson can be compelled to participate in a reenactment at his videotaped deposition.7

C.

Third, the Legislative history of the California Civil Discovery Act of 1986 (§ 2016 et seq.), including section 2025, teaches that one of the purposes of recodification was to “bring California law closer to the discovery provisions of the Federal Rules of Civil Procedure.”  (Sen. Com. on Judiciary, Analysis of Assem.   Bill No. 169 (1985–1986 Reg. Sess.).)   For this reason, federal law as it existed at the time section 2025 was adopted serves as a divining rod to guide us to the well of legislative intent.  (Moreland v. Department of Corporations (1987) 194 Cal.App.3d 506, 512, 239 Cal.Rptr. 558;  Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1117–1118, 33 Cal.Rptr.2d 904.)

When section 2025 was adopted in 1986 (Stats.1986, ch. 1334, § 2, pp. 4708–4720), rule 30(b)(4) of the Federal Rules of Civil Procedure authorized videotaped depositions upon notice given in the same manner required by section 2025.  (Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide:  Federal Civil Procedure Before Trial (Rutter 1996) ¶ 11:453 et seq.)   As interpreted by the federal courts, rule 30(b)(4) permits reenactments at videotaped depositions and authorizes the courts to compel an unwilling party deponent to participate in a reenactment.   Thus, in Carson v. Burlington Northern Inc. (D.Neb.1971) 52 F.R.D. 492, a plaintiff was ordered to participate at his deposition in a reenactment of the injury he sustained while using a steel press, “for the purpose of showing the manner in which plaintiff approached and operated the machine immediately prior to and at the time of the alleged accident.”  (Id. at p. 493.)   And in Roberts v. Homelite Div. of Textron, Inc. (N.D.Ind.1986) 109 F.R.D. 664, the plaintiff was ordered to participate at his deposition in a reenactment of his lawn mower accident, because the facts were “such that videotaping the deposition will assist the parties in a better understanding of what occurred” at the time of the accident.  (Id. at p. 668;  see also Rice's Toyota World v. Southeast Toyota Dist. (M.D.N.C.1987) 114 F.R.D. 647;  Kiraly v. Berkel, Inc. (E.D.Pa.1988) 122 F.R.D. 186, 187;  Carotenuto v. Emerson Electric Co. (E.D.Pa.1990) 1990 WL 198820 [compelled videotaped reenactment at deposition of accident with radial power saw];  Moncrief v. Fecken–Kipfel America, Inc. (E.D.Pa.1988) 1988 WL 68088 [compelled videotaped reenactment at deposition of accident with vertical cutting machine];  Brown v. Bridges (Fla.App.1976) 327 So.2d 874, 875–876 [compelled videotaped demonstration at deposition of karate maneuver alleged to have caused injury].) 8

As far as we can tell, Stermer stands alone in refusing to compel a party deponent to participate in a videotaped reenactment of the accident at issue in the lawsuit.

IV.

For these reasons, we conclude (1) that a party may ask another party at his videotaped deposition to participate in a demonstration or reenactment of the injury causing event, or to draw a diagram in aid of the deponent's answers to questions;  (2) that if the party deponent refuses to comply with the request, the trial court may, in an exercise of its sound discretion––taking into account the same factors it would consider if the reenactment was offered at trial (accuracy, safety, feasibility, etc.) and such other factors as may be appropriate under the circumstances of the particular case––compel the party deponent to comply with the request;  and (3) that if the party deponent continues to refuse to comply, the trial court may make such additional orders as are appropriate, including an evidence preclusion order.9

DISPOSITION

Let a peremptory writ of mandate issue commanding the trial court (1) to vacate its order of May 8, 1996, and (2) to hold a new hearing at which the trial court is to exercise its discretion and, based thereon, make such further order as is appropriate.   The parties are to pay their own costs of these writ proceedings.

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Code of Civil Procedure.

2.   In our case, Emerson asked for a “demonstration.”  Stermer sometimes refers to a “demonstration,” other times to a “reenactment.”   The cases discussed below use both terms, and also talk about experiments.   In this case, any distinction is irrelevant, and our use of these terms is intended to include whatever sort of demonstration, reenactment or similar exercise that might arguably become an issue at a videotaped deposition.   For a discussion of demonstrative evidence generally, see 2 Witkin, California Evidence (3d ed.   1986) Demonstrative, Experimental and Scientific Evidence, section 832 et seq.;   Wegner, Fairbank, Epstein & Chernow, California Practice Guide:  Civil Trials and Evidence (Rutter 1995) section 8:470 et seq.

3.   Or, in context:  “I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me.   I am from Missouri.   You have got to show me.”

4.   We summarily reject Grayson's suggestion that we are bound by Stermer.  (Bridges v. Bridges (1978) 82 Cal.App.3d 976, 978, 147 Cal.Rptr. 471;  People v. Yeats (1977) 66 Cal.App.3d 874, 879, 136 Cal.Rptr. 243;  In re Marriage of Hayden (1981) 124 Cal.App.3d 72, 77, fn. 1, 177 Cal.Rptr. 183.) We similarly reject Grayson's contention that the Supreme Court's refusal to review the decision in Stermer means anything other than the Supreme Court denied review, notwithstanding that two justices voted to grant review.  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 782, 24 Cal.Rptr.2d 577;  see People v. Davis (1905) 147 Cal. 346, 350, 81 P. 718 [the denial of review should “not be taken as an expression of ․ affirmative approval by [the Supreme Court] of the propositions of law laid down in such opinion”];  9 Witkin, Cal. Procedure (3d ed.   1985) Appeal, § 776, p. 747.)

5.   In our view, Stermer put too much emphasis on the literal meaning of a few words of the statute, forgetting that “words are inexact tools at best” and that this is the “reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how ‘clear the words may appear on “superficial examination.” ’ ”  (Harrison v. Northern Trust Co. (1943) 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407.)

6.   According to Grayson, the rule announced in Peat, Marwick does not apply to him because he has not “abused” the litigation process (as did the offending party in the cited case).  (Peat, Marwick, Mitchell & Co. v. Superior Court, supra, 200 Cal.App.3d at p. 285, 245 Cal.Rptr. 873.)   Grayson misses the point.   When a party rightfully claiming a privilege refuses to disclose information, he is not abusing the litigation process—but he is nevertheless estopped from using that information at trial.  Peat, Marwick simply confirms the trial court's inherent power to issue evidence preclusion orders.

7.   Of course, we recognize that our refusal to follow Stermer creates a direct conflict, and we therefore view this opinion as necessarily short-lived.   Since the issue is one of considerable importance to the bench and bar, we hope this conflict will be resolved by the Supreme Court.

8.   We note with some irony that two of the federal cases (Roberts and Carson ) are cited in Stermer in a concluding footnote where Division Six suggested that the question whether “reenactments at depositions are an efficient and helpful means of conducting discovery ․ is a matter for the Legislature to consider, and not the courts.”  (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 782, fn. 2, 24 Cal.Rptr.2d 577.) Stermer does not consider the fact that our section 2025 is based upon the same Federal Rule of Civil Procedure at issue in Roberts and Carson.

9.   The parties in our case spend a lot of time discussing Bailey v. Superior Court (1977) 19 Cal.3d 970, 140 Cal.Rptr. 669, 568 P.2d 394 (Bailey I ), and Bailey v. Superior Court (1978) 79 Cal.App.3d 444, 144 Cal.Rptr. 875 (Bailey II ), both of which are discussed in Stermer.   As even Stermer noted, however, Bailey I and Bailey II both predate the Civil Discovery Act of 1986, and thus were decided at a time when videotaped depositions were not authorized by statute.   In our view, the Bailey cases add nothing to a discussion of the issue now before us.

MIRIAM A. VOGEL, Associate Justice.

SPENCER, P.J., and ORTEGA, J., concur.