BLEASE, Acting P. J.
This appeal is from a trial court order prohibiting defendant Union Pacific Railroad Company (Union Pacific) from compelling plaintiff Carlyle Pratt to attend a medical examination or conducting a disciplinary hearing to terminate Pratt's employment for refusing to provide it with medical evidence justifying his continued absence from work.
In the underlying suit, Pratt filed suit against his employer, Union Pacific, under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.; FELA)
After Pratt filed the suit and while he was on extended medical leave resulting from his injuries, Union Pacific sought additional medical information from him, which he refused to supply on the advice of counsel. When Union Pacific summoned Pratt to a disciplinary hearing for failure to provide the medical information, Pratt sought a preliminary injunction prohibiting Union Pacific from conducting the hearing or from compelling him to attend an extrajudicial medical examination. The trial court found Union Pacific's actions circumvented the established procedures for civil discovery under California law, granted the preliminary injunction, and awarded Pratt $5,000 in sanctions.
The Railway Labor Act (RLA; 45 U.S.C. § 151 et seq.) requires that a "minor dispute" involving the construction of a collective bargaining agreement between a covered carrier and a union must be resolved in an RLA administrative proceeding. Although the RLA grants exclusive jurisdiction to the National Railroad Adjustment Board (Board) to resolve minor disputes, it does not grant the Board jurisdiction over parallel claims arising from the same facts under state or federal law. The test for determining RLA preemption is whether the plaintiff's statutory claim is based upon a wholly independent state or federal right that does not require using the collective bargaining agreement as a standard for resolving that claim.
At issue in this case is whether the RLA preempted the trial court's authority to prohibit Union Pacific from conducting or compelling certain extrajudicial procedures. In determining that question, we must consider whether the California civil rules of discovery grant plaintiff an independent right to protective relief that can be resolved without considering the terms of the collective bargaining agreement. We find it can.
Union Pacific has failed to identify a provision in the collective bargaining agreement that authorizes its actions. However, even if we assume there is such a provision, Union Pacific has failed to explain why its application is necessary to resolve the discovery dispute. Union Pacific also fails to explain why civil discovery is inadequate to protect its legitimate business interests. These failures, coupled with Union Pacific's position that it is no longer seeking extrajudicial discovery of plaintiff's current medical information while maintaining its right to hold a disciplinary hearing to terminate Pratt solely for failing to provide that information, belie its reliance on the collective bargaining agreement. Under these circumstances, the question
We therefore conclude the trial court had jurisdiction to prohibit extrajudicial discovery because the civil rules of discovery provide independent authority to grant a protective order for misuse of the discovery process. We deem the preliminary injunction a protective order and find the trial court properly granted the requested relief and sanctions.
We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Pratt is a Union Pacific employee who has been employed by the company since 1971 in various capacities, including locomotive engineer. His employment is governed by a collective bargaining agreement
Beginning in February 2006, Pratt was granted a medical leave of absence, which he renewed several times over the next few months, each time furnishing Union Pacific with the necessary updated medical information. His requests for extended medical leave were approved through August 27, 2006. The medical report in support of that request, dated June 16, 2006, indicates Pratt was being referred to physical therapy, his prognosis was classified as "permanent limitations expected," a functional capacity evaluation would be performed to determine his level of permanent impairment, and his anticipated return to work date for "light duty" was "after" the evaluation.
Meanwhile, on August 10, 2006, Pratt filed suit in superior court against Union Pacific to recover damages for personal injuries under the FELA (45 U.S.C. § 51 et seq.) and the Locomotive Inspection Act (49 U.S.C. § 20701 et seq.).
However, on October 3, 2006, prior to any discovery in the FELA action, Union Pacific sent Pratt an ex parte letter advising him that the medical information he had provided was inadequate to support his request for an extension of medical leave. The letter requested updated medical information regarding his current level of function, his treatment plan, prognosis and the results of any diagnostic studies. Receiving no response, Union Pacific sent Pratt a second ex parte request for the same information. Larry Lockshin, Pratt's attorney, objected to the request and informed Union Pacific that Pratt would not provide the medical information and requested that no further letters be sent directly to Pratt as such contact violated the California Rules of Professional Conduct.
Nevertheless, on November 27, 2006, Union Pacific sent Pratt an ex parte "Notice of Investigation" directing him to appear at a disciplinary investigation hearing scheduled for December 7, 2006, to determine whether he had failed to protect his employment status by refusing to provide the requested medical information. Lockshin engaged in several written exchanges with Union Pacific urging it to cancel or continue the hearing until after his request for injunctive relief could be heard in February 2007.
Although Union Pacific rescheduled the hearing several times, it failed to agree to an indefinite postponement of the hearing, which led Pratt to apply for a temporary restraining order, preliminary injunction and monetary sanctions.
The trial court granted the temporary restraining order and on February 28, 2007, it granted a preliminary injunction and awarded $5,000 in sanctions against Union Pacific. The order states that Union Pacific "may neither compel plaintiff to attend a physical [examination] nor commence or maintain disciplinary proceedings against plaintiff for failing to provide documentation to explain his AWOL status. Until after plaintiff's pending FELA lawsuit against UPRR is resolved and this court is divested of its jurisdiction over the parties by entry of a final judgment, the orders of this court shall govern the relationship of the parties. (Smith v. Union Pacific R. Co. (D. C. Colo. 1995)
Railway Labor Act Preemption
Union Pacific contends the trial court lacked subject matter jurisdiction to issue injunctive relief because the RLA preempts California's discovery statutes. It argues that the question of Pratt's obligation to furnish medical information in connection with his medical leave is a "minor dispute" because it requires consideration and interpretation of the terms of the collective bargaining agreement.
Pratt counters that the trial court had jurisdiction to grant the relief because the discovery statutes provide independent authority to protect the integrity of the judicial process. Union Pacific should not be allowed to circumvent the rules of discovery and demand extrajudicial information from a plaintiff by threatening disciplinary action and possible termination of employment.
Before turning to the merits of Union Pacific's appeal, we first address Pratt's argument that Union Pacific waived the issue whether it had the right to seek extrajudicial medical discovery. Pratt argues that Union Pacific failed to raise this question in the trial court and in fact expressly waived it by advising the trial court it was no longer interested in receiving medical discovery from Pratt and considered that issue moot. Union Pacific counters that it did not waive the issue because the broad sweep of the trial court's
Generally, a reviewing court will not consider claims raised for the first time on appeal that could have been but were not presented to the trial court. (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [1 Cal.Rptr.3d 90].) Failure to raise a claim may be forfeited or waived. "`"[F]orfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right.'"'" (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 [58 Cal.Rptr.2d 458, 926 P.2d 438].)
We find Union Pacific neither waived nor forfeited the issue raised on appeal. It is true Union Pacific advised the trial court that it was no longer seeking medical records from Pratt and that that issue was moot. Nevertheless, the question of its right to seek medical records was inherent in its opposition to Pratt's request for injunctive relief and in the trial court's order prohibiting it from maintaining "disciplinary proceedings against plaintiff for failing to provide [medical] documentation to explain his AWOL status." Since the issue was fairly litigated and ruled upon by the trial court, it is properly before us.
B. Railway Labor Act Preemption—Background
There are two classes of disputes subject to the arbitral process. The first class, referred to as "major" disputes, involves "`"the formation of collective [bargaining] agreements or efforts to secure them."'" (Norris, supra, 512 U.S. at p. 252 [129 L.Ed.2d at p. 211], quoting Consol. Rail Corp. v.
Minor disputes must be adjudicated in accordance with RLA grievance procedures, which begin with internal dispute resolution procedures, and if not settled, are then submitted to the Board or a Public Law Board for compulsory arbitration. (45 U.S.C. § 153(i); Atchison T. & S. F. R. Co. v. Buell (1987) 480 U.S. 557, 563 [94 L.Ed.2d 563, 571, 107 S.Ct. 1410] (Buell); Hendley v. Central of Georgia R. Co. (5th Cir. 1980) 609 F.2d 1146, 1151.)
However, the RLA does not vest the Board with exclusive jurisdiction to resolve all disputes that arise between employees and their employer (Buell, supra, 480 U.S. at pp. 564-565 [94 L.Ed.2d at pp. 572-573]) nor does it preempt a state claim merely because the "`same factual considerations'" are involved in resolving both the minor dispute and the state claim. (Norris, supra, 512 U.S. at p. 262 [129 L.Ed.2d at p. 217]; see also Buell, supra, 480 U.S. at p. 559 [94 L.Ed.2d at p. 569].)
Therefore, to determine whether a claim is preempted by the RLA, the court must look to the source of the right asserted by the plaintiff. (Norris, supra, 512 U.S. at pp. 257-258 [129 L.Ed.2d at p. 214], citing Buell, supra, 480 U.S. at pp. 564-565 [94 L.Ed.2d at pp. 572-573].) When a plaintiff
The high court in Norris rejected the argument that the RLA preempts a state law claim if the employer's action is "`arguably justified'" by the terms of the collective bargaining agreement (italics omitted). That standard "was employed only for policing the line between major and minor disputes" and "said nothing about the threshold question whether the dispute was subject to the RLA in the first place." (Norris, supra, 512 U.S. at pp. 265-266 [129 L.Ed.2d at pp. 219-220].)
Norris involved an airline mechanic who refused to certify the safety of a plane he considered unsafe and then reported his safety concerns to the Federal Aviation Administration. His employment was governed by a collective bargaining agreement and the airline terminated him for refusing to sign the record. While pursuing his remedies under the collective bargaining agreement, he also filed a state court complaint for wrongful discharge alleging violations of public police under the Federal Aviation Act of 1958 and Hawaii's Whistleblower Protection Act. (Norris, supra, 512 U.S. at p. 250 [129 L.Ed.2d at pp. 209-210].) In holding the RLA did not preempt the independent state claims, the Supreme Court found that under Hawaii law, the only issue to be determined was whether the mechanic's termination was retaliatory, which was a purely factual question that did not require interpretation or application of the collective bargaining agreement. (Id. at p. 266 [129 L.Ed.2d at p. 220].)
The Norris test also applies to independent rights arising out of federal law and it is now well established that claims brought under the FELA are not preempted by the RLA (Buell, supra, 480 U.S. at p. 565 [94 L.Ed.2d at p. 573]), nor are claims brought under the Americans with Disabilities Act of 1990. (42 U.S.C. § 12111; Saridakis v. United Airlines (9th Cir. 1999) 166 F.3d 1272, 1276-1277.)
C. Pratt's Claim Is Wholly Independent of the Collective Bargaining Agreement
This case raises a corollary to that question: does the RLA preempt California's discovery statutes during the pendency of a FELA action filed in a court of this state so as to deprive the trial court of subject matter jurisdiction to prohibit the employer from engaging in extrajudicial discovery in order to gain an unfair advantage in the FELA suit? To answer that question, we consider whether the issuance of a protective order under California's Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) (the discovery act)
Union Pacific relies on two administrative decisions
Union Pacific also urges us to apply the three-prong test articulated in Miller v. AT & T Network Systems (9th Cir. 1988) 850 F.2d 543 (Miller).
In Smith v. Union Pacific R. Co., supra, 878 F.Supp. 171, the case relied on by the trial court, after a railroad employee filed a FELA action in federal district court, the court issued a protective order that restrained the railroad from compelling the employee to attend a back-to-work physical examination by its doctors or disciplining him under the collective bargaining agreement for failing to do so. The employee argued that the exam was unnecessary because he had already attended two previous physical examinations and the railroad was using the examination to gain unfair advantage in the FELA litigation. The court rejected the railroad's preemption argument. It found the physical exam and the disciplinary proceeding constituted discovery within the meaning of rule 26(b)(1) of the Federal Rules of Civil Procedure (28 U.S.C.) (hereafter federal rules) and these procedures were part of the discovery process, which the court had the authority to manage and control. The court reasoned that "the `back-to-work' physical at issue bears directly on the issues pending in this case. It is entirely possible Smith could say
Similarly, in Riensch v. Union Pacific R. Co. (D.Colo. 1998) 12 F.Supp.2d 1136, a railroad employee was granted a protective order preventing his employer from requiring him to attend a "fitness-for-duty" physical examination and from disciplining him for failing to do so. As a result of his injuries, the employee ceased working in 1997 and was told by his physician that he would be unable to return to work until July 2000. The railroad's demand that the employee attend the scheduled examinations and evaluations was made after the employee filed a FELA action. Relying on Smith v. Union Pacific R. Co., supra, 878 F.Supp. 171, the district court found the "fitness-for-duty" examination raised a "discovery dispute" rather than a "minor dispute" and therefore it had discretion to issue the protective order under rule 26(c)(1) of the federal rules. In the court's view, it was "inconceivable that Congress afforded injured workers the right to seek recovery pursuant to the FELA in federal court but denied to those same injured workers the ability to invoke the Federal Rules . . . during the pendency of their FELA actions. . . . [T]he Federal Rules . . . govern this FELA action . . . [and] provide for discovery in the form of physical examinations under Rule 35 upon a showing of good cause. Thus, [the railroad's] order requiring [the employee] to attend physical examinations circumvents the established procedures for discovery set forth in the federal rules." (Riensch, supra, at p. 1139.) No interpretation of the collective bargaining agreement was required to determine whether the demand for a physical examination violated the federal rules since the railroad's duty to proceed in accordance with those rules was not a right or a duty grounded in the collective bargaining agreement. The court concluded there was good cause for issuance of the protective order because any interest the railroad had in obtaining medical information concerning the plaintiff was adequately protected by the federal rules. (Riensch, at p. 1140.)
In Bernal v. Southern Pacific Transp. Co. (E.D.Cal. 2000) 196 F.R.D. 371, a totally disabled railroad employee who was receiving a disability annuity was granted a protective order during the pendency of his FELA suit. The order prohibited the railroad from taking disciplinary action against him for failing to respond to ex parte written inquiries concerning his current medical condition. The court concluded the employee possessed a right to the protection of the federal rules governing discovery and that the court did not have to look to the collective bargaining agreement to determine whether the railroad's conduct contravened the discovery rules. (Bernal, at p. 373.) The court found the railroad's claim that it was exercising its rights under the
Like Federal Rule 26(b)(1), the scope of discovery under the act extends to nonprivileged matters that are admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence. (§ 2017.010.)
The discovery act vests the trial court with discretion to grant a protective order that limits the scope of discovery if the court determines the "burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." (§ 2017.020, subd. (a).) Nevertheless, Union Pacific claims Pratt's obligation to furnish the requested medical information requires consideration and interpretation of the collective bargaining agreement. We disagree.
First, Union Pacific fails to identify any term of the collective bargaining agreement that authorizes its requests or imposes a duty on the employee to furnish such information.
Second, even assuming the collective bargaining agreement authorizes Union Pacific's requests, the question before us is not whether Union Pacific's requests and orders are authorized by and in conformance with the collective bargaining agreement, but whether its requests and orders violate the state's civil discovery provisions and are merely a pretext for gaining an unfair advantage in this action. That question is one of fact for the court's determination. (Norris, supra, 512 U.S. at p. 266 [129 L.Ed.2d at p. 220]; Hendley v. Central of Georgia R. Co., supra, 609 F.2d at pp. 1150-1151.)
The trial court found Union Pacific's position lacked credibility and we find the evidence supports that finding. Union Pacific's stated purpose in making extrajudicial requests for medical information and a medical examination was to determine whether Pratt's current medical condition supported an extension of his medical leave. While this reason appears on its face to be reasonably related to a legitimate business interest that may be authorized by the collective bargaining agreement, Union Pacific's stated reasons are belied by its failure to explain why civil discovery is inadequate to protect its business interests. In the absence of a credible reason justifying a contrary conclusion, we find civil discovery is adequate because the same information is relevant to determine Pratt's damages in the underlying FELA action and is therefore discoverable. (§ 2017.010.)
Union Pacific's insistence on holding a disciplinary hearing also belies its position. Union Pacific advised the trial court it was no longer seeking
Union Pacific contends the trial court abused its discretion by imposing sanctions of $5,000 because the law is unsettled. It argues that since there is no controlling appellate authority on point and its arguments have only been rejected by federal district courts, sanctions were improper. Pratt contends the sanctions are proper because time and again federal and state courts throughout California have rejected Union Pacific's RLA preemption argument. We find the sanctions did not constitute an abuse of discretion.
In support of his motion for sanctions, Pratt presented documentation establishing that Union Pacific has been told by at least 12 state and federal court judges in previous FELA cases that its position on the question raised in this appeal is without legal basis. It has also been admonished by those courts to cease its illegal ex parte contacts with plaintiffs for the purpose of obtaining medical information, yet Union Pacific continues to engage in these practices. The trial court granted Pratt $5,000 in sanctions after finding Union Pacific's position was not "persuasive or credible."
"`[T]he purpose of discovery sanctions "is not `to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits,'" ... but to prevent abuse of the discovery process and correct the problem presented....'" (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 301 [57 Cal.Rptr.3d 18].) Monetary sanctions encourage "voluntary compliance with discovery procedures by assessing the costs of compelling compliance against the defaulting party." (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1179 [86 Cal.Rptr.2d 917].)
When imposing discovery sanctions, the trial court has broad discretion (Biles v. Exxon Mobile Corp. (2004) 124 Cal.App.4th 1315, 1327 [22 Cal.Rptr.3d 282]) and its order will not be reversed on appeal in the absence of a manifest abuse of discretion that exceeds the bounds of reason, resolving all evidentiary conflicts in favor of its ruling. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [32 Cal.Rptr.3d 717]; Espinoza v. Classic Pizza, Inc. (2003) 114 Cal.App.4th 968, 975 [8 Cal.Rptr.3d 381].)
Citing In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179], which defines frivolous appeals, Union Pacific argues that a court should not impose sanctions for vigorous but proper advocacy when there is no controlling authority on the question raised. Union Pacific applies the wrong standard and ignores the trial court's ruling, which imposed sanctions because it found Union Pacific's position was lacking in credibility and its actions circumvented the discovery process.
As stated, the trial court has discretion to impose monetary sanctions when one party persists, over objection and without substantial justification, in an attempt to obtain information outside the scope of permissible discovery. (§§ 2023.010, subd. (a), 2023.030, subd. (a).) That is precisely what Union Pacific did. Pratt's counsel objected to Union Pacific's ex parte demands for medical information and made every effort to secure Union Pacific's agreement to postpone the disciplinary hearing until the court heard his motion for injunctive relief. Instead, Union Pacific gave equivocal responses while failing to agree to the requested postponement, forcing counsel to seek a temporary restraining order.
This record clearly supports the trial court's finding that Union Pacific's actions circumvented the discovery process and were without substantial
The order for injunctive relief is deemed a protective order and is affirmed as such. The order for sanctions is also affirmed. Costs are awarded to plaintiff.
Robie, J., and Butz, J., concurred.