Emerson Electric Co. v. Superior Court

• Decision Date: 01 December 1997
• Docket Number: No. S057119,S057119
• Citation: 16 Cal.4th 1101,68 Cal.Rptr.2d 883,946 P.2d 841
• Court: California Supreme Court
• Parties: , 946 P.2d 841, 97 Cal. Daily Op. Serv. 8946, 97 Daily Journal D.A.R. 14,480 EMERSON ELECTRIC CO. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; William S. GRAYSON et al., Real Parties in Interest

Page 883

68 Cal.Rptr.2d 883

16 Cal.4th 1101, 946 P.2d 841, 97 Cal. Daily Op. Serv. 8946,

97 Daily Journal D.A.R. 14,480

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. S057119.

Dec. 1, 1997.

Hennelly & Grossfeld, John J. Hennelly and Susan J. Williams, Los Angeles, for Petitioners.

Hugh F. Young, Jr., Reston, VA, Jan S. Amundson, Washington, DC, Harvey M. Grossman, Los Angeles, Sherman Joyce, Crowell & Moring, Victor E. Schwartz, Mark A. Behrens, Nabil W. Istafanous, Washington, DC, D. Dudley Oldham, Houston, TX, Pepper, Hamilton & Scheetz, Alfred W. Cortese, Jr., Kathleen L. Blaner, Washington, DC, Sedgwick, Detert, Moran & Arnold and Keven J. Dunne, San Francisco, as Amice Curiae on behalf of Petitioners.

No appearance for Respondent.

Berglund & Johnson and Daniel W. Johnson, Woodland Hills, for Real Parties in Interest.

Ian Herzog, Evan D. Marshall, Santa Monica, Douglas Devries, Sacramento, Roland Wrinkle, Woodland Hills, Harvey R. Levine, San Diego, Robert Steinberg, Thomas G. Stolpman, Long Beach, William D. Turley, San Diego, Mary E. Alexander, San Francisco, Joseph Harbison III, Sacramento, Bruce Broillet, Santa Monica, Wayne McLean, Leonard Sacks, Granada, Tony Tanke, Lea-Ann Tratten, Steven J. Kleifield, David

Rosen, Moses Lebovits, Los Angeles, Christine Spagnoli, Santa Monica, James Sturdevant, San Francisco, Daniel U. Smith, Kentfield, Deborah David, Los Angeles, Lawrence Drivon, Stockton, Thor Emblem, Escondido, Rick Simons, Hayward and David Casey, Jr., San Diego as Amici Curiae on behalf of Real Parties in Interest.

MOSK, Justice.

Code of Civil Procedure section 2025, enacted by the Civil Discovery Act of 1986, permits a party to record testimony at an oral deposition by videotape as well as stenographically. (Id., subd. (l ).) It also provides that if a deponent "fails to answer any question," the court has discretion to order that the answer be given. (Id., subd. (o ).)

In this matter, defendants sought to compel plaintiff, who allegedly was injured while using their product, to demonstrate how the injury occurred. We granted review to resolve a conflict in our Courts of Appeal concerning the authority of the trial court to order such a nonverbal response, pursuant to Code of Civil Procedure section 2025, subdivision (o ). We address two related questions: first, whether "answer," as used in Code of Civil Procedure section 2025, subdivision (o ), includes nonverbal as well as verbal responses at a videotaped deposition; and second, whether the trial court may impose a sanction, including evidence preclusion, if a deponent refuses to comply with an order compelling that a nonverbal "answer" be given.

We conclude that the answer to each question is affirmative. Accordingly, we affirm the judgment of the Court of Appeal in this matter and disapprove Stermer v. Superior Court (1993) 20 Cal.App.4th 777, 24 Cal.Rptr.2d 577, to the extent it holds to the contrary.

I.

Real party in interest William S. Grayson (hereafter Grayson) brought this action against petitioners Emerson Electric Co. and Sears, Roebuck & Co. (hereafter Emerson) after he was allegedly injured while using their product, a radial arm saw. His complaint includes causes of action for strict liability, breach of warranty, and negligence.

Emerson noticed a videotaped deposition of Grayson. At the deposition, Grayson was asked to diagram the location of the saw and his position at the time of the accident. His attorney instructed him to refuse, based on the objection that he could not be required to give a nonverbal response at a deposition. On the same ground, counsel refused to permit him to reenact the accident.

Emerson moved for an order precluding Grayson from reenacting the accident at trial; in the alternative, it moved for an order compelling him to provide nonverbal testimony, including a reenactment, at his videotaped deposition. Grayson opposed the motions.

At the hearing, although expressing strong disagreement with Stermer v. Superior Court, supra, 20 Cal.App.4th 777, 24 Cal.Rptr.2d 577, the superior court concluded that it was bound by the holding therein that a trial court has no authority to order a deponent to give nonverbal testimony: "The appellate case certainly says clearly to me that I don't have the right to order your client to demonstrate how the accident occurred.... I think that should be the law, that an examining attorney would have the right to say at a deposition, please show what you were doing when the accident occurred. And act it out. Reenact it, you know. And I don't know why that shouldn't be possible." Although stating that Grayson's refusal was "ridiculous and not fair," it ruled that Stermer also precluded a discovery sanction: "I can't penalize a man because he did what the law permits him to do or not to do." It denied both motions "without prejudice."

Emerson petitioned for a writ of mandate in the Court of Appeal. The Court of Appeal expressly disagreed with Stermer, holding that a deponent could be required to give nonverbal as well as verbal responses at a videotaped deposition. It ordered that a peremptory writ of mandate issue, commanding the superior court to vacate its original order and hold a new hearing to "exercise its discretion and, based thereon, make such further order as is appropriate." We granted review.

II.

A.

Code of Civil Procedure section 2025 governs oral depositions, including videotaped depositions. Enacted as part of the Civil Discovery of Act of 1986 (id., § 2016 et seq.), it provides, in relevant part: "Unless the parties agree or the court orders otherwise, the testimony, as well as any stated objections, shall be taken stenographically. 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." (Code Civ. Proc., § 2025, subd. (l )(1).)

Code of Civil Procedure section 2025 also permits a party to enforce the discovery right. It thus provides: "If a deponent fails to answer any question ... , the party seeking discovery may move the court for an order compelling that answer...." (Id., subd. (o ).) If a party deponent fails to obey an order to do so, the court may "make those orders that are just against the disobedient party." (Ibid.)

B.

Grayson contends that the Code of Civil Procedure section 2025, subdivision (o )--in referring to a deponent's failure to "answer any question"--"clearly and unambiguously" applies only to a verbal answer. He relies on Stermer v. Superior Court, supra, 20 Cal.App.4th 777, 24 Cal.Rptr.2d 577, which so holds. ¹

The reliance is misplaced. Stermer concluded that requiring a nonverbal response was "beyond the pale of the discovery act." (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 781, 24 Cal.Rptr.2d 577.) It reasons as follows. "The term 'question' is defined as 'an interrogative expression often used to test knowledge.' [Citation.] To 'answer' a question is simply 'to speak or write in reply' thereto. [Citation.] However, 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." (Ibid.)

The reasoning is unpersuasive. The language, context, and legislative history of Code of Civil Procedure section 2025, subdivision (o ), compel a different conclusion.

To "answer" a question is, as Stermer observed, " 'to speak or write in reply' thereto" (20 Cal.App.4th at p. 781, 24 Cal.Rptr.2d 577); but it is not simply that. To "answer" is also "to act in response to a request" (Webster's New Internat. Dict. (3d ed.1961) p. 90); it is a "general term ... and is used without especial suggestion for any action of saying, writing, or doing something called for in return." (Ibid., italics added.) Construing "answer" in Code of Civil Procedure section 2025, subdivision (o ), to include nonverbal as well as verbal responses at a videotaped deposition is thus in accord with the "usual, ordinary" meaning of the word. (Selma Auto Mall II v. Appellate Department (1996) 44 Cal.App.4th 1672, 1685, 52 Cal.Rptr.2d 599 ["In construing a statute ... [w]e look first to the language of the statute and accord the words their usual, ordinary ... meaning in light of the purpose for which the statute was enacted."].)

Construing "answer" in Code of Civil Procedure section 2025, subdivision (o ), to include nonverbal as well as verbal responses at a videotaped deposition also harmonizes the provision with the requirement of Code of Civil Procedure section 2025, subdivision (l )(1) that "[e]xamination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code." It is undisputed that at trial evidence may include a nonverbal answer to a question, including a physical demonstration or reenactment of an incident. (People v. Buttles (1990) 223 Cal.App.3d 1631, 1639, 273 Cal.Rptr. 397; DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1230-1233, 242 Cal.Rptr. 423.)

Construing "answer" in Code of Civil Procedure section 2025, subdivision (o ), to include nonverbal as well as verbal responses at a videotaped deposition also serves what we have previously recognized as one of the legislative purposes of the discovery statutes: principally, to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial. (Greyhound Corp. v. Superior...