On August 5, 1991, plaintiff Philip Stanchfield filed suit against Hamer Toyota, Inc., and other defendants (referred to collectively as Hamer Toyota) seeking damages for breach of an employment agreement and specific performance of a stock purchase agreement. His complaint also included other causes of action which are not pertinent here.
The matter proceeded to trial on September 15, 1993. At the conclusion of the evidence, appellant moved for a directed verdict on his breach of contract cause of action, urging he had been summarily discharged on August 9, 1990, without the written notice required by the employment agreement.
In 1987, appellant became the general manager of Hamer Toyota, where he had previously worked as a salesman and a finance manager. The following year, appellant and Lee Hamer, the president of Hamer Toyota, entered into discussions about the possibility of appellant purchasing the stock of the dealership. Their dialogue culminated in appellant's execution of employment and stock purchase agreements on February 3, 1989. The employment agreement provided appellant would receive a monthly salary of $10,000, an automobile, health insurance and a bonus of 20 percent of the annual net operating profit of the dealership. The stock purchase agreement called for Hamer Motors, Inc., the principal shareholder of Hamer Toyota, to sell appellant 92 percent of its stock for $5,979,991. It was anticipated appellant would procure 49 percent of the stock with the bonuses he accrued under the employment agreement and an escrow was set up to facilitate that aspect of the parties' agreement. The remaining 51 percent of the stock was to be purchased with additional funds raised by appellant.
A few days after his termination, appellant was hired as general manager of Mike Miller Toyota, where he commenced work on August 15, 1990. His compensation included an initial base salary of $10,000 per month, a vehicle, medical benefits and 10 percent of the dealership profits. He worked at Mike Miller Toyota for just two months before being fired on October 16, 1990. According to Mike Miller, the president of Mike Miller Toyota, appellant had overstated sales and incentives during the time he served as general manager and the dealership lost employees and sales. The day before appellant was discharged, he was out of the office playing golf at a particularly critical time. After his departure as general manager of Mike Miller Toyota, appellant obtained employment in other capacities at several dealerships for periods ranging from one month to eight months.
Appellant contends: "[I.] The trial court's modification of BAJI 10.16 misdirected the jury resulting in a miscarriage of justice.... [II.] Admission of Art Miller's testimony was an abuse of discretion.... [III.] The trial court erroneously denied appellant specific performance as to the stock purchase agreement.... [IV.] The trial court's exclusion of the testimony of Lee Hamer was an abuse of discretion."
I. BAJI No. 10.16
BAJI No. 10.16, as drafted by the Committee on Standard Jury Instructions, Civil, of the Superior Court of Los Angeles County (BAJI Committee), does not contemplate a setting in which the wrongfully terminated employee actually secures a substantially similar job. It offers a method of calculating damages based upon what an employee could have earned if the employee could have found comparable work. This is not surprising since the typical inquiry where an employer asserts a former employee did not mitigate damages is whether the employee unreasonably rejected or failed to find comparable employment. Thus, in Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176 [89 Cal.Rptr. 737, 474 P.2d 689, 44 A.L.R.3d 615], which is referred to in the comment to BAJI No. 10.16, the court was faced with an employee's failure to accept her employer's tendered substitute employment. The sole question in the case was whether the employer's alternate employment offer was comparable or substantially similar to that of which the employee had been deprived, so that the employee's refusal to accept it could be used to mitigate the employer's damages.
The court in California School Employees Assn. v. Personnel Commission (1973) 30 Cal.App.3d 241 [106 Cal.Rptr. 283] addressed the underlying rationale for the mitigation rule, quoting from earlier cases which had
"The issue has also been discussed in terms of [an employee's] duty ... to minimize his loss. Thus Judge Cardozo stated: `"The servant is free to accept employment or reject it according to his uncensored pleasure. What is meant by the supposed duty is merely this: That if he unreasonably reject, he will not be heard to say that the loss of wages from then on shall be deemed the jural consequence of the earlier discharge. He has broken the chain of causation, and loss resulting to him thereafter is suffered through his own act." [Citation.]' [Citation.]" (California School Employees Assn. v. Personnel Commission, supra, 30 Cal. App.3d at p. 249.)
In our present case, the record contains ample evidence to sustain findings that appellant obtained comparable employment within days after being wrongfully terminated by Hamer Toyota and that despite the fact his new position was of the "at will" variety, he was fired for good cause. That being so, there is no basis for concluding he was prejudiced by the trial court's decision to modify BAJI No. 10.16
II. Admission of Art Miller's Testimony
Pursuant to a stipulation of the parties, the discovery referee ordered appellant and Hamer Toyota to produce their respective damages experts for deposition on a mutually agreeable date. Appellant's expert was to be deposed first. The depositions were ultimately set for July 6, 1993. Hamer Toyota deposed appellant's expert that morning and Miller appeared for his deposition that afternoon. He testified he had not completely developed his opinions concerning appellant's damages and needed approximately 16 hours to complete his work.
Despite appellant's inability to complete Miller's deposition to his satisfaction on July 6, 1993, he neither informally requested that Hamer Toyota produce Miller for a follow-up deposition, nor sought relief from the discovery referee for Miller's failure to comply with the referee's order, nor made an in limine motion to exclude Miller's testimony at trial. Rather, he waited until Miller was scheduled to take the stand on October 4, 1993, to voice his first objection. Following a full discussion of the matter, the trial court denied appellant's oral motion to exclude Miller's testimony, citing appellant's failure to make reasonable arrangements to continue the deposition or seek appropriate relief before trial.
Code of Civil Procedure section 2034, subdivision (j)(4) requires the trial court, "on objection of any party who has made a complete and timely compliance with [the section's exchange requirements]," to "exclude from
While there is no express requirement that the objection be raised before trial, the exclusion sanction applies only if noncompliance with the statute was "unreasonable." This limitation "may prevent parties from waiting until trial to raise objections that could have been raised beforehand. I.e., without notice and opportunity to correct deficiencies before trial, a court may find the failure to comply was not `unreasonable'...." (2 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1994) ¶ 8:1719.2, p. 8J-28, rev. #1, 1994.)
In the instant case, it seems clear Miller's lack of readiness at the appointed hour was attributable not to gamesmanship, but to the brief time span between Brodshatzer's deposition and his. Miller surmised he could be ready "to render the opinions [he] intend[ed] to give at trial" in approximately 16 hours. Appellant made no showing that he would have been irreparably harmed by waiting a day or two to complete Miller's deposition, nor can we imagine that would have happened. Nonetheless, for whatever reason, he elected not to pursue the matter further until more than two weeks into the trial. Under the circumstances, the trial court was persuaded it was appellant who had acted unreasonably.
We perceive no abuse of discretion in this ruling. The slight delay which would have been incurred had appellant responded promptly to the situation on July 6, 1993, would in no way have compromised the purposes of the discovery statutes.
After appellant failed in his attempt to prevent Miller from taking the stand, he unsuccessfully sought to have Miller's testimony stricken. He now argues that the trial court abused its discretion by refusing to strike Miller's testimony. We disagree. Appellant's suggestion that a follow-up deposition would have been meaningless because Miller had not completed his work until after the trial started is not borne out by the record. Miller merely testified that a few days before taking the stand, he had revised some "work that [he] had already done...." There was no reason to believe based upon that comment that Miller would not have been ready to continue his deposition within 16 hours as originally estimated, if appellant had endeavored to arrange a follow-up session.
III. Specific Performance
Appellant's analysis, even if correct, does not establish the trial court erred in refusing to grant specific performance. Though there is authority for the notion that specific performance is appropriate in cases involving closely held stock (see, e.g., Gilfallan v. Gilfallan (1914) 168 Cal. 23, 26 [141 P. 623]; Steinmeyer v. Warner Cons. Corp. (1974) 42 Cal.App.3d 515, 519 [116 Cal.Rptr. 57]; Kaneko v. Okuda (1961) 195 Cal.App.2d 217, 234 [15 Cal.Rptr. 792]; Glascock v. Sukumlyn (1955) 131 Cal.App.2d 587, 593 [281 P.2d 90]; Korabek v. Weaver Aircraft Corp. (1944) 65 Cal.App.2d 32, 39 [149 P.2d 876]), "an essential basis for the equitable remedy must be a showing by the plaintiff of performance, or tender of performance, or ability and willingness to perform. [Citations.]" (Cockrill v. Boas (1931) 213 Cal. 490, 492 [2 P.2d 774].) Here, appellant failed to demonstrate he could have
IV. Exclusion of Lee Hamer's Testimony
Appellant noticed Hamer's deposition for August 2, 1993, and Hamer Toyota moved for a protective order, supporting its motion with the declaration of Hamer's primary treating physician, Doctor Keith Richman. Richman averred that Hamer suffered from organic brain syndrome, or senility, that the stresses of a deposition would exacerbate his condition "and render him confused to such an extent that any deposition testimony would be incompetent," and that it was "extremely unlikely" Hamer's situation would improve in the future. The discovery referee granted Hamer Toyota's motion on August 12, 1993, without prejudice to appellant's ability to raise the matter in the trial court.
As expected, a subsequent hearing was held to determine Hamer's competency to testify at trial. Richman, Hamer Toyota's sole witness, testified the 82-year-old Hamer suffers from chronic organic brain syndrome and dementia. As a result, Hamer has difficulty with immediate recall and short-term memory, hallucinates, experiences confusion and "confabulates." The doctor explained, "a confabulation is where a patient would make up a story when their memory loses them." Richman indicated Hamer's condition is progressively worsening and opined that placing him in an unfamiliar setting, such as a courtroom, would exacerbate his problems.
Appellant attempted to rebut Hamer Toyota's evidence through the testimony of a psychiatrist, Robert Rubin. Rubin's opinions were largely limited
In light of the uncontroverted medical evidence concerning the nature of Hamer's mental difficulties, the trial court found he was incapable of understanding the duty of a witness to tell the truth and was thus disqualified under Evidence Code section 701. It further expressed the view that having Hamer, who had been placed on call by Hamer Toyota, testify would be of no benefit given the manner in which his condition manifested itself. We cannot say this constituted an abuse of discretion and the trial court's decision must therefore be upheld on appeal. (People v. McCaughan (1957) 49 Cal.2d 409, 421 [317 P.2d 974]; In re Basilio T. (1992) 4 Cal.App.4th 155, 166 [5 Cal.Rptr.2d 450]; People v. Farley (1979) 90 Cal.App.3d 851, 869 [153 Cal.Rptr. 695, 12 A.L.R.4th 301].)
The judgment is affirmed.
Fukuto, Acting P.J., and Nott, J., concurred.
A petition for a rehearing was denied September 15, 1995, and appellant's petition for review by the Supreme court was denied November 16, 1995.