SWICKARD v. Jerry L. Rowley, Objector and Appellant.

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Court of Appeal, Third District, California.

Ronald SWICKARD and Merrilee Swickard, Plaintiffs and Appellants, v. CRECELIUS RANCHES, INC., and Leonard Frisk, Defendants and Respondents, Jerry L. Rowley, Objector and Appellant.

Civ. 23173.

Decided: February 25, 1985

Jerry L. Rowley, Loomis, for plaintiffs and appellants. Steven H. Gurnee, George E. Murphy, and Bolling, Walter & Gawthrop, Sacramento, for defendants and respondents.

This matter comes to us as a combined appeal.   Objector Jerry Rowley (hereafter Rowley) appeals from the order imposing sanctions for his failure to comply with ordered discovery.   Plaintiffs Ronald and Merrilee Swickard appeal from an adverse judgment in their action seeking damages for loss of honeybees.   We affirm the order and judgment.

Plaintiffs' complaint alleged, as a basis of damages, breach of an oral contract, negligent management of bailed property, negligent application of pesticides, and strict liability;  they also sought damages pursuant to Civil Code section 1956, asserting an agreement in which plaintiffs, who are apiarists, rented bees in hives to defendants for the purpose of pollinating defendants' almond orchard.

In June 1981, defendants served plaintiffs with a demand for mutual disclosure of expert witnesses.  (Code Civ.Proc., § 2037.)   Several months later, plaintiffs disclosed a list of 16 designated experts.   Defendants noticed the depositions of these experts;  the depositions were an exercise of futility as Rowley, plaintiffs' attorney, failed to provide the experts with any information about the case.   Rowley contended the burden rested on defense counsel to propound hypothetical questions based upon his knowledge of the case, and in that way draw out the experts' opinions.   At a hearing on a motion for a protective order, Superior Court Judge Richard Couzens informed Rowley of his obligation to prepare his experts for deposition.   Rowley agreed to provide the witnesses with facts he deemed relevant to their testimony.   The matter was continued and reset for trial on June 7, 1983.

On April 14, 1983, Rowley served defendants with a new list of eight designated expert witnesses.   The document contained a disclaimer stating in part:  “In designating the foregoing persons as potential expert witnesses, plaintiff does not represent that such persons have or do not have personal knowledge of the facts of this case.”   Defendants sought an order precluding plaintiffs from using those experts at trial and asked for sanctions.   At the ensuing hearing, Rowley argued he was not required by statute to disclose the facts of the case to the experts.   The court ordered him to produce the experts for deposition with any and all records or documents relied on by them, and ordered Rowley to provide them with sufficient facts of the case.   He was warned sanctions would be imposed if he failed to do so.

Rowley and his clients decided to withdraw the experts rather than subject them to deposition;  however, they failed to communicate that decision to defense counsel until the latter had incurred substantial expenses in subpoenaing the experts.   The court found Rowley had indulged in harassment and imposed a sanction of $1,000.

The matter subsequently proceeded to trial.   After plaintiffs had concluded their case-in-chief, defendants moved for a nonsuit.   Plaintiffs voluntarily abandoned counts IV and V (strict liability, failure to bear naturally foreseeable expenses), and the court granted the motion for nonsuit on those counts as well as for count III and denied the motion as to counts I and II (breach of contract and negligent management of bailed property).   Following trial the jury rendered a verdict in favor of defendants.

I

On appeal from the imposition of sanctions, Rowley argued that (1) disruptive conduct of an attorney cannot form the basis for imposition of sanctions;  (2) sanctions for a violation of Code of Civil Procedure section 2037 1 cannot be based upon section 2034;  (3) the only sanction available in this matter would have been to bar plaintiffs' experts from testifying;  (4) sanctions may not be imposed for failure to produce records;  (5) defendants failed to tender fees to the experts;  (6) the trial court failed to serve him with a written order outlining the reasons for the imposition of sanctions prior to the time they were to be paid (§ 128.5, subd. (b));  and (7) requiring an attorney to provide facts of the case to an expert for purposes of a deposition by an opposing party violates the work product privilege.   We find his arguments frivolous.

The order imposing the sanctions sets forth the following fact determinations:  (1) by disclosing a list of experts without preparing them with the facts of the case, Rowley acted in bad faith;  (2) Rowley was ordered to produce his experts prepared for deposition;  (3) defendants incurred expenses in subpoenaing the experts;  Rowley knew of this circumstance but failed to notify defense counsel of his decision to withdraw the experts;  his actions constituted bad faith and was in violation of common notions of courtesy and professionalism;  and (4) Rowley willfully engaged in tactics which were obstructive, harassing, and contrary to the spirit and intent of discovery.

 “When it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause.   At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others.   Such evaluation properly includes appropriate pretrial discovery.”  (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 203, 41 Cal.Rptr. 721.)   The work product privilege (Hickman v. Taylor (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451;  § 2016) is not applicable to the discovery of an expert's testimony, as it is based upon the thought, research, and effort of the expert, not the attorney.  (Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 129, 3 Cal.Rptr. 621.)

 Rowley's argument that he was attempting to protect his thoughts and impressions, while perfectly willing to disclose those of his experts, is sophomoric and specious.   The purpose of pretrial discovery is to eliminate any element of gamesmanship and inject fairness, which requires the disclosure of basic facts and issues.  (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 364 P.2d 266.)  “The right to engage in discovery of the opinion of the experts who will appear as witnesses for one's opponent at the trial of the case is not at all contingent on a showing that the one seeking discovery does not have equal access to the facts upon which such expert's opinion is based.   Rather it stems from the necessity of preparing to cope with that expert when he does take the witness stand at trial.   The decision that a particular consultant will be called to the witness stand means that the other side must gear up for the cross-examination of that expert and must marshal evidence to rebut his opinion.   If anything, the need for pretrial discovery as an aid to the preparation of cross-examination and rebuttal is greater with respect to the expert witness than it is in the case of an ordinary fact witness.”  (2 Hogan, Modern Cal. Discovery (3d ed. 1981) § 12.12, p. 421;  fn. omitted.)

 Following appropriate demand for exchange of expert witness lists, section 2037.3 requires the party to disclose not only the name, address, and qualification of the witness, but the general substance of the testimony the expert is expected to give at trial.   In this instance, counsel for plaintiff designated eight potential witnesses, but inserted a caveat in his designation of experts which stated that those listed may not have personal knowledge of the facts of the case.   Counsel further indicated that discovery of their opinions, which may be relevant in the case, would require the questioner or the opposing party to supply the necessary hypothetical facts to elicit the expert opinion sought.   Such caveat flies in the face of the clear, concise, and unambiguous language of the statute.   The party must disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list or in his deposition, or both.   Only by such disclosure will the opposing party have the notice required by the discovery statutes of the specific areas of investigation by the expert, the opinions he has reached, and his reasons supporting the opinion to the end the opposing party may prepare for cross-examination and rebuttal of the expert's testimony.

 An expert not familiar with the facts of the specific case can offer no more than general statements in his area of expertise, many of which may not be relevant to the subject matter.   The purpose of retaining an expert is to secure from him or her a knowledgeable opinion about that case.   Equally specious is the contention an expert can be “prepared” for deposition by having the examining attorney pose hypothetical questions based upon his or her understanding of the case.   Such procedure with an unprepared designated expert does not meet the requirements of discovery.  (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 918–919, 184 Cal.Rptr. 393.)

Section 128.5 permits a trial court to order a party or the party's attorney to pay any reasonable expenses incurred by another party “as a result of tactics or actions not based on good faith which are frivolous or which cause unnecessary delay.”   Rowley's conduct falls directly in the frivolous category, as his actions were obviously made in bad faith for reasons of pure harassment.  “A trial court is empowered to exercise its supervisory power in such a manner as to provide for the orderly conduct of the court's business and to ‘guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of its proceedings.’   (People v. Mattson (1959) 51 Cal.2d 777, 792 [336 P.2d 937].)”  (Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 648–649, 192 Cal.Rptr. 57.)

 Rowley was given notice of defendants' intention to seek sanctions.   Although the written notice did not specifically state that defendants would seek the sanctions directly from Rowley, as opposed to plaintiffs, it was made perfectly clear at the hearing that defendants and the court were abused by Rowley's actions, not those of plaintiffs.

 Moreover, section 2034, subdivision (a), also establishes a basis for sanctions in this case.   That section provides for the payment of costs and attorney fees where a party or his attorney has frustrated the purposes of the discovery act.  (See In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 782–783, 170 Cal.Rptr. 642.)   Rowley's argument that the statute is limited to failure to answer interrogatories or questions during depositions and does not apply to a failure to prepare a witness for deposition exalts form over substance.   An unprepared expert will necessarily be unable to answer most questions pertinent to the case.   Here, because of Rowley's actions, not plaintiffs', the experts would have been unable to answer questions about the plaintiffs' case.

 Finally, section 2034 is not inconsistent with the more specific statutes regarding expert witnesses (see §§ 2037–2037.9), and is applicable to the matter before us.  (Tahoe Forest Inn v. Superior Court (1979) 99 Cal.App.3d 509, 512–513, 160 Cal.Rptr. 314.)

 We note Rowley's assertion that no written notice of the imposition of sanctions pursuant to section 128.5 was filed prior to the time payment was due has some procedural merit.   Section 128.5, subdivision (b), states “․ An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”   The oral order made on June 1, 1983, required Rowley to pay $1,000 by the first day of trial.   On June 8, the day trial commenced, Rowley filed a motion seeking to overturn an order to delay trial until the sanctions had been paid.   As the basis for his motion, he cited the lack of a written order.   On that day, a written order was filed.   However, the order required the impossible, as it declared “such payment shall be made not later than the commencement of the first day of trial of this case,” a time which had passed by the time the order was filed.   Although the written order was technically in error, we find any error to be harmless.   The trial court had not specified what section it was relying upon in imposing the sanctions.   The order was proper under section 2034.   Moreover, the technical error was totally harmless;  the trial was not delayed except for a short period to accommodate argument on the motion.

 We also reject Rowley's argument he was not required to produce his experts prepared for deposition as defendants did not tender expert witness fees prior to the depositions, a condition precedent to production.  (Tahoe Forest Inn v. Superior Court, supra, 99 Cal.App.3d at p. 512, 160 Cal.Rptr. 314.)   Rowley's gamesmanship negated that prerequisite.   Since the “experts” set forth in his list had no knowledge of the case, they could not form an opinion and had no value as expert witnesses.   It would have been patently unfair for the trial court, knowing Rowley's strategy, to require defendants to tender the fees prior to taking the alleged experts' deposition, only to discover they knew nothing about the case and as a consequence were unable to tender any opinion on the merit of the action.

We need not address Rowley's argument that the trial court lacked jurisdiction to impose sanctions for failure to produce records, as that was not the stated basis for imposition of the sanctions.

Defendants have requested attorney fees for the necessity of responding to Rowley's appeal, describing it as frivolous.

II

For the reasons previously stated, we reject plaintiffs' spurious argument they were forced to withdraw their experts because of the order requiring Rowley to prepare them for deposition.

III

Plaintiffs' assertion as error that the trial court's refusal to give an instruction which would have shifted the burden of proof to defendants to establish the cause of the loss of the bees, and that they were not negligent requires the following summary of the evidence.

Defendants and plaintiffs entered into an oral agreement predicated upon a written contract, pursuant to which plaintiffs agreed to supply bees for the purpose of pollinating defendants' almond orchard.   In a separate agreement, defendant Leonard Frisk, the ranch manager, agreed to transport the bees to and from plaintiffs' property.   Although plaintiffs usually transported their own bees, they elected to have Frisk do it because of time constraints.   Frisk apparently knew how to check the hives for frames of bees, a method used to calculate the population of the hive, but was not otherwise trained to care for the bees.   He spot-checked, as required, plaintiffs' hives, and noticed they were less populated than they should have been, but determined they met the contract average.   During the time the bees were in the orchard, a fungicide (Benlate) and a weed killer (Paraquat) were sprayed.   It was established that neither is harmful to bees.

It is standard practice among apiarists for the beekeeper to tend the bees while they are pollinating.   In this instance Frisk, the ranch manager, did not agree to, nor did he undertake, the tasks of feeding, maintaining, or caring for the bees.   That activity had not been discussed by the parties in coming to their agreement.   Frisk had an understanding with all the beekeepers from whom he hired bees that the beekeeper was responsible for the care of the bees.   In prior years when plaintiffs had pollination contracts with defendants, Ronald Swickard had come to the ranch and personally cared for the bees.   For purposes of the 1980 agreement, plaintiffs expected Frisk to check only to see if the hives had tipped over or the coves had come off.

When the hives were returned to plaintiffs three weeks later, the majority of them were underpopulated to such an extent they were no longer useful.

Plaintiffs had the hives inspected by a field assistant from the department of agriculture;  he was unable to determine the cause of damage or the reason for the death of the bees.   No symptoms of pesticide poisoning were found.   Plaintiffs' beekeeping assistant testified that he did not detect any evidence of disease or starvation in the hives when they were returned.

A pesticide specialist from the Stanislaus County Agriculture Department testified he inspected the hives at defendants' ranch and found no evidence of a pesticide kill.   Another agricultural inspector testified sudden changes in temperature or rain can kill bees if they are out of the hive.

A beekeeper, who also supplied defendants with bees during the time plaintiffs' bees were on defendants' ranch, testified he lost 50 percent of his bees due to adverse weather conditions.   Several beekeepers testified that it is strictly the responsibility of the apiarist to care for the bees during pollination.

The issue of burden of proof was argued strenuously throughout the trial.   Plaintiffs contended there, as they do here, that once they established a prima facie case of a bailment (contract, delivery of item in good condition, return of goods in damaged condition) the burden shifts to the bailee (defendants) to prove the cause of damage and that it was not due to a failure to exercise ordinary care, citing as support for the contention Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732, 152 Cal.Rptr. 850.  Vilner, which dealt with the loss of a deposit placed in a bank's night depository, is factually and legally inapposite.

 The unique nature of the items contracted for in this instance removed the case from the ambit of a typical bailment of an inanimate object case.   Defendants contracted for the pollination services of the bees.   Uncontradicted evidence established that custom requires the beekeeper to care for and feed the bees while they are pollinating.   In this case it is the beekeeper or bailor who is in the position to explain the loss of the population.   Plaintiffs may not shift the burden of proof of cause of loss to defendants as they failed to monitor or care for their bees during the pollinating period.   Defendants were required only to show they acted with reasonable care to the extent agreed to.

 In counts II and III of the complaint, plaintiffs alleged the loss of bees was caused by the application of pesticides.   They contend the evidence shows that Orthophos, a substance which may be toxic to bees, was sprayed while the bees were in the orchard.   The evidence relating to the spraying of Orthophos while the bees were in the orchard was conflicting, and that conflict was resolved against the plaintiffs.   We fail to find any reason to alter that finding.  (McAllister v. George (1977) 73 Cal.App.3d 258, 265, 140 Cal.Rptr. 702.)   The ranch's pesticide program records showed Orthophos was sprayed in January 1980.   The bees did not arrive until February 20, 1980.   Bees may be brought into an area sprayed with Orthophos after a minimum of two days, but general practice is after seven days.   Ronald Wyatt, a licensed pest control applicator, testified he applied Orthophos to defendants' trees from January 22 through January 28.   The bees arrived more than 20 days later.

IV

 For similar reasons, we reject plaintiffs' argument the trial court erred in granting a nonsuit on the third cause of action, entitled “NEGLIGENT USE AND APPLICATION OF PESTICIDES.”  “It is well settled that on appeal from a nonsuit judgment, we must indulge every legitimate inference which can be drawn from the evidence in plaintiff's favor, and we will sustain the trial court's ruling only if there is no evidence to support a jury verdict for the plaintiff.  [Citations.]”  (Spaid v. Cal-Western States Life Ins. Co. (1982) 130 Cal.App.3d 803, 806, 182 Cal.Rptr. 3.)   Plaintiffs failed to present any evidence prior to the motion for nonsuit that pesticides were sprayed;  that fact was admitted by plaintiffs' counsel during argument on the nonsuit motion.   The trial court did not abuse its discretion or err.

V

 Next, plaintiffs argue, without benefit of authority, that the trial court erred in instructing the jury it may not hold defendants responsible for damage to the bees as a result of pesticides applied or used by persons other than defendants, their employees, agent, or persons working on their behalf.   They are wrong.   A party is not liable for poisoning by pesticide where the bees trespass onto the land of another who has used a pesticide.  (Lenk v. Spezia (1949) 95 Cal.App.2d 296, 302–303, 213 P.2d 47.)

VI

Finally, plaintiffs argue the trial court erred in awarding defendants costs for four particular expenses.

 First, they contend the depositions of designated defense experts Hains and Davis were unnecessary.  “The necessity for a deposition and for the related expenditures is a question for the trial court's sound discretion.”   (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113, 194 Cal.Rptr. 512;  see also § 1032.7.)   Both witnesses provided relevant testimony on the alleged cause of damage, and defense counsel acted reasonably and prudently in taking their depositions.

 Second, plaintiffs make a vague reference to subpoena preparation, photocopy, and investigation expenses as being an improper cover for attorney and investigation fees.   Without further explanation, they deem the above to be “Expenses, incurred as a matter of convenience.”   In any event, “[t]he determination of items allowable as costs is largely a question within the discretion of the trial court.”  (Meder v. Safeway Stores, Inc. (1979) 98 Cal.App.3d 497, 506, 159 Cal.Rptr. 609.)   We find no abuse of that discretion.

 Third, they complain of travel expenses awarded for those costs incurred for defense witness Randall Johnson.   Johnson testified he was appearing as a volunteer witness.   The expenses listed are only those for the cost of travel—there is no indication Johnson received a fee for his testimony.   Again, this is a matter within the discretion of the trial court.   Moreover, plaintiffs are incorrect in stating the travel expenses should have been limited to the statutory rate of 20 cents per mile.  (Gov.Code, § 68093.)   That section applies to only persons under subpoena.   Johnson testified he was not subpoenaed.

 Finally, they contend the court abused its discretion in awarding expert witness fees, arguing they were not unreasonable in refusing a statutory offer to settle for $5,000.   The reference is apparently to section 998, which awards a defendant costs if the plaintiff refuses an offer and fails to obtain a more favorable judgment.   First, that section does not state that costs may be recovered by the prevailing party after an offer to settle is unreasonably rejected;  it makes no mention of reasonableness.   Second, “[t]he trial court has discretion under Code of Civil Procedure section 998 to allow a prevailing party ․ a reasonable sum to cover the costs of the services of expert witnesses.  [Citation.]  The trial court was in a far better position, ․ to exercise this discretion and determine what was a reasonable amount and what was reasonably necessary.”  (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 315, 136 Cal.Rptr. 603;  Balfour, Guthrie & Co. v. Gourmet Farms (1980) 108 Cal.App.3d 181, 192, 166 Cal.Rptr. 422.)

 We have concluded that Rowley's appeal is frivolous.   An appeal is frivolous “when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.”  (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.)   As we have demonstrated, Rowley's appeal from the order imposing sanctions is utterly meritless.   For these reasons, following oral argument we issued an order to plaintiffs' attorney, Jerry L. Rowley, to show cause why sanctions for a frivolous appeal should not be filed.   We conclude that a penalty of $2,500 should be imposed upon plaintiffs' counsel Rowley.

The judgment is affirmed;  the trial court order imposing sanctions on plaintiffs' attorney, Jerry L. Rowley, is affirmed.

A penalty of $2,500 is imposed on Rowley for pursuing his frivolous appeal.   This penalty will be recovered as costs by defendants.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

EVANS, Acting Presiding Justice.

BLEASE and CARR, JJ., concur.

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