Leo v. Golfsmith
Filed 6/14/13 Leo v. Golfsmith CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ED LEO et al.,
Plaintiffs,
v.
GOLFSMITH GP, LLC, et al.,
Defendants and Respondents;
JANET E. SOBEL,
Objector and Appellant.
D062262
(Super. Ct.
No. 37-2010-00095326-CU-CR-CTL)
APPEAL from
an order of the Superior Court
of
County, William S. Dato, Judge. Affirmed.
Janet E.
Sobel, in pro. per., for Objector and Appellant.
Littler
Mendelson, James E. Hart, Alaya B. Meyers, Heather M. Peck and Muizz Rafique for
Defendants and Respondents.
The former plaintiffs' attorney in this action, Janet E.
Sobel, appeals from an order imposing $6,150 in sanctions against her for
opposing a motion to compel arising
from her instructions to her clients not to answer deposition questions. As we will explain, we conclude that Sobel's
contentions lack merit, and accordingly we affirm the order.
I
FACTUAL
AND PROCEDURAL BACKGROUND
This action
was filed by Ed Leo, Steve Surrey, Elton Campbell and Steve Frye (plaintiffs) —
who allege they are members of the National Coalition for Men. Plaintiffs allege that they suffered gender
discrimination when the Golfsmith retail stores, including those in California,
held a "Women's Night" event on March 25, 2010.
According to the complaint, Golfsmith excluded plaintiffs and other men
from the stores on Women's Night, and women were given special discounts and
benefits. Leo and Surrey
allege that they were discriminated against when they attempted to shop and
attend the Women's Night event at the Mission
Valley store in San
Diego. Campbell
and Frye contend they were discriminated against at the Santa
Ana store. The
complaint named several Golfsmith entities as defendants,
well as numerous equipment vendors who sponsored the Women's Night event. The complaint alleged violations of the Unruh
Civil Rights Act (Civ. Code, §§ 51, 51.5); violations of the Gender Tax
Repeal Act of 1995 (id.,
§ 51.6); unfair and unlawful conduct under Business and Professions Code
section 17200 et seq.; and negligence.
Golfsmith
noticed the depositions of Surrey and Leo. Prior to the depositions, Sobel and counsel
for Golfsmith engaged in extensive written dialogue about the upcoming
depositions, which was primarily focused on the length of the depositions and
whether plaintiffs would provide information about their prior litigation
history.
During
Surrey's deposition, Sobel objected to numerous questions and instructed Surrey
not to answer. Sobel objected to
questions about other litigation in which Surrey was a plaintiff;
whether he had spoken to anyone about his deposition; basic background
information such as his date of birth and where he lives and works; basic
information about his membership in the National Coalition of Men; whether he
had discussions with anyone before attending Golfsmith's Women's Night, why he
attended, and how he learned of the event;
his activities immediately before and after traveling to the Golfsmith store;
his coordination with his co‑plaintiff, Leo, including their
conversations while at Women's Night; his interest in golf, prior purchases at
Golfsmith, and intention to buy something at Golfsmith during Women's Night;
whether there was a particular part of the Golfsmith store or a product he
wanted to access during Women's Night; and whether he had ever discussed his
recollection of the Women's Night event with anybody. In a typical objection, Sobel invoked
"the constitutional right of privacy, association, free speech, and
redress and petition" and stated, "we're just going to limit this
deposition only to those things that you can establish are directly relevant to
the case."
title="">[5]
During
Leo's deposition, Sobel asserted the same constitutional objections as she made
at Surrey's deposition and instructed Leo not to answer several questions. Sobel objected to questions about Leo's
litigation history; Leo's conversations with Surrey prior to entering the
store; and whether Leo had previously shopped at Golfsmith. According to Sobel, the objections were based
on "privacy" and "all the same constitutional reasons."
After the
depositions, counsel for Golfsmith wrote to Sobel to meet and confer about her
objections and instructions to her clients not to answer. Counsel for Golfsmith explained, among other
things, that the information sought during the depositions was not privileged
and thus Sobel had improperly instructed her clients not to answer. In Sobel's response, she continued to assert
that her clients had certain constitutional objections which justified their
refusal to answer the questions unless Golfsmith could establish that the
information it sought was directly relevant to its defense of the
litigation. The tone of Sobel's letter
was unprofessional and argumentative.
After
another round of correspondence between Sobel and Golfsmith's counsel that
failed to resolve the discovery dispute,
Golfsmith filed a motion to compel further deposition responses and sought the
imposition of $8,479.40 in monetary sanctions against Sobel.
Sobel
argued in opposition to the motion that because her clients had asserted
constitutional objections to all of the questions at issue, they were not
required to provide responses unless Golfsmith established the direct relevancy
of the information it sought. As Sobel
explained, "Given plaintiffs [sic]
clearly stated constitutional objections, Defendants were obligated before
filing this motion to explain how asking questions . . . could be
directly relevant to this lawsuit . . . ." Despite Sobel's claim that her instructions
not to answer were justified because the questions intruded on Surrey's and
Leo's constitutional rights, she did not clearly explain which constitutional
rights were at issue in specific questions, instead referring broadly to the
constitutional rights of association, petition and privacy.
At the
hearing on the motion to compel and
request for sanctions, Sobel took the position that regardless of whether the
trial court ultimately ruled that a
deposition question implicated a constitutional privilege, her mere assertion
of a constitutional objection during the deposition —whether or not it was
well-founded — justified her clients in refusing to answer unless Golfsmith
could establish that the information it sought was directly relevant to the
issues in the litigation.
The trial
court granted the motion to compel and imposed sanctions against Sobel in the
amount of $6,150. The trial court
rejected Sobel's contention, as characterized by the trial court, "that
the mere assertion of a privacy or associational interest is sufficient to
invoke the 'directly relevant' standard."
The trial court explained that the directly relevant standard
"applies only when the court determines
that the challenged discovery actually seeks the disclosure of constitutionally
protected information." Rejecting
Sobel's claim that constitutional rights
were implicated by the deposition questions, the court explained that
"[i]t is difficult to see what privacy or associational interests are
threatened by questions such as 'Did you come straight from work?' and 'So is
it fair, then, to say you parked the car around 6:30?" As the court explained, "Much of the
information sought here may ultimately prove irrelevant, but absent
constitutional protection plaintiffs are not at liberty to refuse to
answer."
Immediately
after the trial court's ruling, plaintiffs substituted new counsel in place of
Sobel, and Sobel appealed from the order imposing sanctions. (Code Civ. Proc., § 904.1, subd.
(a)(12) [allowing immediate appeal of discovery
II
DISCUSSION
A. Applicable Legal
Principles
The
applicable authority for the imposition of sanctions in this case is Code of
Civil Procedure section 2025.480, subdivision (j). Under that provision, "[t]he court
against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel an answer or production, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust." (Ibid.,
italics added.) "[T]he phrase
'substantial justification' has been understood to mean that a justification is
clearly reasonable because it is well grounded in both law and fact." (Doe v.
United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.) Here, because Sobel unsuccessfully opposed
Golfsmith's motion to compel, the imposition of sanctions was required unless
Sobel established that she acted with substantial justification or that
sanctions are otherwise unjust. (
proving substantial justification is on the party opposing the imposition of
sanctions]; Kohan v. Cohan (1991) 229
Cal.App.3d 967, 971 [discovery statute requiring imposition of sanctions in the
absence of substantial justification "allows one against whom sanctions
are sought to show substantial justification to avoid the imposition of
sanctions"].)
title="">[8]
We apply an abuse of discretion
standard of review to the trial court's order imposing discovery
sanctions. (Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th
390, 401.) Further, in the absence of an
express finding by the trial court, we imply a finding that Sobel did not
establish substantial justification. (
(2007) 149 Cal.App.4th 285, 294 [a finding that the sanctioned party lacked
substantial justification "is implied in the order awarding
sanctions"].)
B. Sanctions
Were Warranted Because Sobel Did Not
Establish That She Acted with
Substantial
Justification in Opposing the Motion to Compel
Sobel's
central appellate argument is that the trial court improperly focused on
whether Sobel made any valid
constitutional objections to the questions asked at Surrey's and Leo's
depositions. Sobel contends that as long
as she asserted a constitutional
objection at deposition, the normal broad scope of discovery was supplanted by
a much more demanding requirement that opposing counsel establish the
sought. Sobel argues that the trial
court accordingly erred by stating that a higher standard of relevancy applies
only if "the challenged discovery actually
seeks the disclosure of constitutionally protected information." (Italics added.) According to Sobel, "no case dealing
with the process for compelling litigants to answer questions they believe are
protected by the right of privacy has discussed requiring the litigant to
demonstrate as a pre-condition of protection that the 'discovery actually seeks
the disclosure of constitutionally protected information' as this trial court
concluded." She claims that
"even a [sic] undefined and
vague claim for constitutional protection" is sufficient to require
opposing counsel to satisfy the standard of direct relevance. As we will explain, Sobel's position lacks
merit. The trial court properly examined
and rejected the validity of Sobel's constitutional objections.
We begin
our analysis by observing that, in the absence of a privilege or intrusion on
constitutional rights, a party is entitled to pursue a broad scope of
discovery, under which the lack of relevance of the information sought is not a
valid basis for instructing a client not to answer a deposition question. Pursuant to Code of Civil Procedure section
2017.010, "[u]nless otherwise limited by order of the court . . . , any
party may obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action . . . if the
matter either is itself admissible in evidence or appears reasonably calculated
to lead to the discovery of admissible evidence." (Ibid.) "For discovery purposes, information is
relevant if it 'might reasonably assist a party in evaluating the case, preparing
for trial, or facilitating
settlement. . . .'
[Citation.] Admissibility is not the test and information, unless
privileged, is discoverable if it might reasonably lead to admissible evidence.
[Citation.] These rules are
applied liberally in favor of discovery [citation]
. . . ." (
Cal.App.4th 1539, 1546, italics deleted.)
"[D]eponent's counsel should not even raise an objection to a
question counsel believes will elicit irrelevant testimony at the
deposition. Relevance objections should
be held in abeyance until an attempt is made to use the testimony at
trial." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th
1006, 1014.)
Sobel
supports her argument for a more restrictive scope of discovery in this case by
relying primarily on Britt v. Superior
Court (1978) 20 Cal.3d 844 (Britt). The Britt
court explained that an exception to the normally broad scope of discovery
arises when the deponent's constitutional right of associational privacy would
be infringed were he forced to supply information about the groups to which he
belongs. This is because " 'compelled disclosure of
affiliation with groups engaged in advocacy may constitute (an) effective . . . restraint on freedom of
association.' " (Id.
at pp. 852-853.) In such a case,
only "[w]hen such associational activities are directly relevant to
the plaintiff's claim, and disclosure of the plaintiff's affiliations is
essential to the fair resolution of the lawsuit" may "a trial court
. . . properly compel such disclosure." (Id.
at p. 859.) Here, Sobel contends
that many of Golfsmith's deposition questions invaded her clients' right to
associational privacy. We disagree. Golfsmith asked Surrey a few basic questions
about his membership in the National Coalition for Men, but those questions did
not intrude on Surrey's associational privacy because his membership was not a
private matter within the context of this lawsuit. Surrey's own
complaint in this action alleges that he is a member of the National
Coalition of Men and describes the activities and goals of that
organization. (Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 230 (
protected by the right to privacy].)
Sobel
contends that her clients' constitutional right to redress of grievances and
their right to privacy are also implicated by some of the questions posed by
Golfsmith. Relying on the principle set
forth in Britt, Sobel argues that the
same "directly relevant" standard applies to questions implicating
her client's right to petition for a redress of grievances or the right to
privacy. (See Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387 (
"[t]he party seeking the constitutionally protected information has the
burden of establishing that the information sought is directly relevant to the
claims"].) As we will explain, we
reject Sobel's argument because none of Golfsmith's questions implicated those
constitutional rights.
name="_ftnref9" title="">[9]
According
to Sobel, the right to petition for a redress of grievances is implicated by
Golfsmith's questions about other litigation in which Surrey and Leo were involved
because it restricts their right of access to the courts. (Church
of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647-648 ["The
right of access to the courts is an aspect of the First Amendment right to
petition the government for redress of grievances."].) However, asking about prior involvement in
litigation does not restrict Surrey's or Leo's access to the courts, and Sobel
cannot identify any way in which her clients' right of access to the courts
would be restricted were they to answer Golfsmith's questions.
not implicate the right to privacy because the litigation is part of the public
record. (Gill, supra,
Although
Sobel takes the position that Golfsmith's questions also infringed on her
clients' right to privacy, our review of the deposition transcripts reveals no
question that threatens to intrude into private matters protected by a
constitutional right to privacy. Cases
recognizing a right to privacy in a discovery context have involved sensitive
private subjects such as marital difficulties (Tylo, supra, 55
Cal.App.4th 1379), medical procedures (Lantz
v. Superior Court (1994) 28 Cal.App.4th 1839), personal finances (
Cal.App.4th 661, 664), sexual relationships (Morales v. Superior Court
(1979) 99 Cal.App.3d 283, 289-290) and the contents of a party's workplace
personnel file (El Dorado Savings & Loan Assn. v. Superior Court
(1987) 190 Cal.App.3d 342, 345). No such
matters were inquired about in this case.
Instead, Sobel invoked the right of privacy to object to questions on
such basic and unobtrusive subject matter as Surrey or Leo's interest in golf
and golf equipment; what their activities were immediately before and after
traveling to the Golfsmith store; whether they discussed the events at the
Golfsmith store with anyone else; their date of birth; place of employment; and
the neighborhood in which they live.
Sobel had no reasonable basis for believing that those questions — or
others like them — called for information protected by the constitutional right
to privacy.
Because the
trial court properly concluded Sobel had not asserted a valid constitutional
objection, it correctly rejected Sobel's contention that Golfsmith was required
to establish that the information sought was directly relevant to the
litigation. We find no support in the case law for Sobel's contention that a
mere claimed infringement of an
associational right to privacy is sufficient to require the opposing party to
establish that the information it seeks is directly relevant. Any such rule is nonsensical because it would
restrict the normally broad scope of discovery, even when such a restriction is
not warranted to protect intrusion on constitutional rights. Such a rule is also contrary to the basic
analytical approach applied in Britt and
all of the other cases that consider whether certain private information was
required to be disclosed in discovery.
In Britt, for example, the
court analyzed as
associational right to privacy was implicated by the discovery requests at
issue, and then it proceeded to
determine whether that information was directly relevant to the
litigation. (Britt, supra, 20 Cal.3d
at p. 852.)
Sobel claims
that Planned Parenthood Golden Gate
347 establishes that "the mere claim of a constitutional right can rise to
protection." Planned Parenthood does not support Sobel's argument. On the contrary, that case extensively
analyzes the preliminary issue of whether the challenged discovery implicated
the constitutional right to privacy, rejecting the suggestion that "no
constitutional issue is presented by this case." (Id.
at p. 358.) Only
valid constitutionally-based objection to the discovery does
whether a response to the discovery is nevertheless warranted because of the
issues presented in the litigation. (
not justified in believing that a mere assertion of a constitutional objection
— even if legally unfounded — could
require Golfsmith to establish the direct relevancy of the information it
sought.
In sum, the
trial court properly analyzed whether the information sought by Golfsmith
implicated Surrey and Leo's constitutional rights. Having determined that no valid
constitutional objections applied in this case, the trial court was well within
its discretion to conclude that sanctions were warranted because Sobel was not
substantially justified in instructing her clients not to answer the deposition
questions on the basis of her legally unfounded objections.
DISPOSITION
The order imposing sanctions on Sobel is affirmed.
IRION, J.
WE CONCUR:
NARES,
Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] The Golfsmith entities are Golfsmith GP, LLC; Golfsmith USA,
LLC; and Golfsmith International, Inc. (collectively, Golfsmith).
Business and Professions Code section 17200 et seq. and negligence were
dismissed by plaintiffs without prejudice while the relevant motions to compel
and to impose sanctions were pending.
