Metropolitan News-Enterprise


Tuesday, May 31, 2011


Page 1


Court Upholds Sanctions for Conduct at Deposition


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal has upheld the imposition of sanctions against a Palo Alto attorney for having instructed his client not to answer deposition questions regarding prior stressors in a lawsuit accusing his client’s former employer of causing various mental and emotional ailments.

Div. Three, in an unpublished decision Thursday, ruled such questions were a permissible line of inquiry and so the order of monetary penalties for misuse of discovery process against Palo Alto attorney Randall M. Widmann and his client were not an abuse of the trial court’s discretion.

Widmann represented Sean Cashman in a wrongful termination action against SWH Corporation, which operates the Mimi’s Café restaurant chain.

Cashman alleged that Mimi’s fraudulently induced him to convert his “for cause” employment contract to an “at will” relationship, thereby causing him to give up his equity position in the company, as part of a scheme targeting him and other similarly situated employees for termination.

He sought damages for lost wages and loss of professional reputation, as well as “in the form of emotional distress and mental anguish.”

In August 2010, attorneys for Mimi’s Café took Cashman’s deposition at his home in the San Francisco Bay area. While under oath, Cashman claimed specific emotional injuries arising from his termination, including ongoing depression, anger, sleeplessness, lethargy, depression and irritability, which he said he had not previously experienced.

Mimi’s attorneys then asked Cashman if he was “experiencing any problems in [his] personal life” in the time leading up to his termination.

Widmann interceded, stating:

“Don’t answer that question. Seeks to invade witness’s right of privacy. Instruct the witness not to answer.”

Opposing counsel objected, insisting “I’m entitled to ask this to explore other sources of emotional distress.”

Widmann countered:

“No, you are not. There is a whole laundry list of cases that say you can’t get into that. The other stressors argument which you are stating to me has been dealt with by the courts repeatedly. You are not entitled to the information.”

Mimi’s attorney again protested, and mentioned the possibility of pursuing a motion to compel. Widmann responded: “[Y]ou know what you can do with your motion; I know what you can do with your motion. Do what you have to do; don’t threaten me. Thank you very much.”

Orange Superior Court Judge Glenda Sanders subsequently granted Mimi’s motion to compel Cashman to appear at another deposition for follow-up questioning. She further ordered Cashman and his attorney to be jointly and severally responsible for attorney’s fees of $3,700 for costs associated with the motion to compel and $2,800 for the Mimi’s estimated travel expenses from the deposition.

Cashman appealed, but Widmann—even though he represented Cashman on the appeal—did not.

Writing for the appellate court, Justice William F. Rylaarsdam explained that an employee who has placed his mental condition into controversy by seeking damages for emotional distress has no constitutional right to privacy regarding his emotional state immediately before his termination.

“By asserting a causal link between his mental distress and Mimi’s conduct, Cashman has placed his emotional condition in controversy and waived his right to privacy as to other emotional stressors as the cause of his mental and emotional difficulties,” Rylaarsdam said.

Rylaarsdam then turned to Cashman’s challenge to the award of sanctions against Widmann, which were based on a purported lack of notice since Mimi’s notice of motion only referred to a motion “sanctioning Plaintiff for his failure to properly answer…questions at his deposition and ordering him to pay attorneys’ fees and costs to Defendant.”

The justice reasoned that “Mimi’s motion to compel belies any claim that attorney Widmann lacked notice that sanctions were being brought against him as well as against his client” since the motion stated in its memorandum of points and authorities and its conclusion, that sanctions were being sought “against plaintiff and/or his counsel for their inappropriate conduct and abuse of the discovery process.”

He further noted that Cashman may not have had standing to appeal the award of sanctions against Widmann, and remarked that it was “doubly ironic that attorney Widmann seeks to piggyback on his client’s appeal, since he takes a crabbed notion of the same close attorney-client relationship in construing Mimi’s notice of motion.”

Justices Kathleen O’Leary and Richard D. Fybel joined Rylaarsdam in his decision.

The case is Cashman v. SWH Corporation, G044531.


 Copyright 2011, Metropolitan News Company