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Toyota CAL-1


Lowthorp, McMillan, Miller, Conway Alan R. Templeman and John Q. for Defendant and Respondent.


J. *

On August 5, 1991, plaintiff Stanchfield filed suit Hamer Toyota, Inc. and defendants (referred to collectively as Toyota) seeking damages for of an employment agreement and specific of a stock purchase agreement. His also included other of action which are not pertinent

The matter proceeded to trial on 15, 1993. At the conclusion of the evidence, moved for a directed verdict on his of contract cause of action, he had been summarily discharged on 9, 1990, without the written required by the employment agreement. 1 The court granted the motion and the issue of damages to the jury. It a special verdict awarding $130,000 as a result of Hamer breach. Immediately thereafter, the court was asked to order Toyota to specifically perform on the purchase agreement. It declined to do so. has appealed from the judgment after trial.

In 1987, became the general manager of Toyota, where he had previously as a salesman and a finance manager. The year, appellant and Lee Hamer, the of Hamer Toyota, entered discussions about the possibility of purchasing the stock of the dealership. dialogue culminated in appellant’s of employment and stock purchase on February 3, 1989. The employment provided appellant would a monthly salary of $10,000, an health insurance and a bonus of 20 of the annual net operating profit of the The stock purchase agreement for Hamer Motors, Inc. the shareholder of Hamer Toyota, to appellant 92 percent of its stock for It was anticipated appellant would 49 percent of the stock with the he accrued under the employment and an escrow was set up to facilitate that of the parties’ agreement. The remaining 51 of the stock was to be purchased with funds raised by appellant.

appellant’s tenure as general of Hamer Toyota, he was frequently from the dealership. When he was he repeatedly engaged in conduct fostered an unbusinesslike atmosphere in the In 1989 and 1990, the dealership substantial losses due to false of sales during incentive improper documentation of fleet and the failure to demand cashier’s or cash from auto By early 1990, the relationship appellant and Hamer had become On July 9, 1990, Hamer a performance review memorandum to the Toyota board of directors his complaints about appellant’s of effective leadership and planning. The called upon appellant to the problems within 30 days and him to undertake certain specified The board of directors apparently a resolution incorporating those at its meeting of July 9, 1990. A later, the board summarily appellant.

A few days after his appellant was hired as general of Mike Miller Toyota, he commenced work on August 15, His compensation included an initial salary of $10,000 per month, a medical benefits and 10 percent of the profits. He worked at Mike Toyota for just two months being fired on October 16, According to Mike Miller, the of Mike Miller Toyota, had overstated sales and incentives the time he served as general and the dealership lost employees and The day before appellant was discharged, he was out of the playing golf at a particularly time. After his departure as manager of Mike Miller appellant obtained employment in capacities at several dealerships for ranging from one month to months.


Appellant contends: The trial court’s modification of 10.16 misdirected the jury in a miscarriage of justice. [II.] of Art Miller’s testimony was an abuse of [III.] The trial court denied appellant specific as to the stock purchase agreement. The trial court’s exclusion of the of Lee Hamer was an abuse of discretion.

(1a) The jury was given, appellant’s objection, a modified of BAJI No. 10.16, which An employee who was damaged as a result

of a of an employment contract by the employer, has a to take steps to minimize the by making a reasonable effort to and retain comparable employment. [¶] If the through reasonable efforts have found and retained employment, any amount that the could reasonably have by obtaining and retaining comparable through reasonable efforts be deducted from the amount of awarded to employee. (Italics modifications to the standard BAJI

BAJI No. 10.16, as drafted by the on Standard Jury Instructions, of the Superior Court of Los Angeles (BAJI Committee), does not a setting in which the wrongfully employee actually secures a similar job. It offers a of calculating damages based what an employee could earned if the employee could found comparable work. is not surprising since the typical where an employer asserts a employee did not mitigate damages is the employee unreasonably rejected or to find comparable employment. in Parker v. Twentieth Century-Fox Corp. (1970) 3 Cal.3d 176 [ 89 737 ,

474 P.2d 689

. 44 A.L.R.3d 615], is referred to in the comment to BAJI No. the court was faced with an failure to accept her employer’s substitute employment. The sole in the case was whether the employer’s employment offer was comparable or similar to that of which the had been deprived, so that the refusal to accept it could be to mitigate the employer’s damages. (2) In this point adversely to the the court elucidated the standard in such instances: The general is that the measure of recovery by a discharged employee is the amount of agreed upon for the period of less the amount which the affirmatively proves the employee has or with reasonable effort have earned from employment. [Citations.] However, projected earnings from employment opportunities not sought or by the discharged employee can be applied in the employer must show the other employment was comparable, or similar, to that of which the has been deprived; the employee’s of or failure to seek other employment of a different or inferior may not be resorted to in order to mitigate [Citations.] ( Parker v. Twentieth Film Corp. supra, 3 at pp. 181-182.)

The court in California School Assn. v. Personnel Commission 30 Cal.App.3d 241 [ 106 Cal.Rptr. 283 ] addressed the rationale for the mitigation rule, from earlier cases had

commented on the subject. `The rule requiring a plaintiff in a or contract action to mitigate embodies notions of fairness and responsible behavior which are to our jurisprudence. Most broadly it precludes the recovery of damages through the exercise of due diligence, have been avoided. in essence, it is a rule requiring conduct in commercial affairs. general principle governs the of an employee after his employer has repudiated or terminated the employment Rather than permitting the simply to remain idle the balance of the contract period, the law him to make a reasonable effort to other employment.’

The issue has been discussed in terms of [an duty. to minimize his loss. Judge Cardozo stated: servant is free to accept or reject it according to his uncensored What is meant by the supposed is merely this: That if he reject, he will not be heard to say the loss of wages from on shall be deemed the jural of the earlier discharge. He has broken the of causation, and loss resulting to him is suffered through his own act. [Citation.] ( California School Assn. v. Personnel Commission, 30 Cal. App.3d at p. 249.)

The parties have not cited nor has our research revealed any cases what is meant by the duty to in the context of a discharged employee after finding and accepting employment, loses the position of his or her own conduct. Nor, as we have indicated, is this factual covered by the standard BAJI No. instruction. 2 However, when one the basic principles underlying the rule, it is manifest that a in deciding the reasonableness of a wrongfully employee’s efforts to mitigate may properly take into that employee’s failure to comparable employment once it has secured. The crux of the mitigation is that while the compensation to the employee would have entitled for the unexpired period of the affords a prima facie of damages, the employee’s actual is the amount of money he [or she] was out of by reason of the wrongful discharge. ( v. Five Points Motors, (1967) 249 Cal.App.2d 560. [ 57 Cal.Rptr. 516 ], italics added.) in those instances where the determines the employee was fired a substantially similar position for any amount the employee with effort could have by retaining that employment be deducted from the amount of

which otherwise would been awarded to the employee the terms of the original employment

In our present case, the record ample evidence to sustain that appellant obtained employment within days being wrongfully terminated by Toyota and that despite the his new position was of the at will variety, he was for good cause. That so, there is no basis for concluding he was by the trial court’s decision to BAJI No. 10.16

II. Admission of Art Testimony

(3a) On March 29, Hamer Toyota designated Art as its damages expert and, in a executed on that date, its averred Miller would be familiar with the pending to submit to a meaningful oral pertaining to his specific testimony his opinions and its basis [ sic ] that he is to give at trial upon his of the conclusions and opinions reached by expert witness, Arthur . (Italics added.)

Pursuant to a of the parties, the discovery referee appellant and Hamer Toyota to their respective damages for deposition on a mutually agreeable Appellant’s expert was to be deposed The depositions were ultimately set for 6, 1993. Hamer Toyota appellant’s expert that and Miller appeared for his deposition afternoon. He testified he had not completely his opinions concerning appellant’s and needed approximately 16 hours to his work.

Despite appellant’s to complete Miller’s deposition to his on July 6, 1993, he neither requested that Hamer produce Miller for a follow-up nor sought relief from the referee for Miller’s failure to with the referee’s order, nor an in limine motion to exclude testimony at trial. Rather, he until Miller was scheduled to the stand on October 4, 1993, to his first objection. Following a discussion of the matter, the trial denied appellant’s oral to exclude Miller’s testimony, appellant’s failure to make arrangements to continue the deposition or appropriate relief before

Code of Civil Procedure 2034, subdivision (j)(4) the trial court, on objection of any who has made a complete and timely with [the section’s requirements], to exclude from

the expert opinion of any witness is offered by any party who has unreasonably to. [¶] [m]ake that expert for a deposition.

While there is no requirement that the objection be before trial, the exclusion applies only if noncompliance the statute was unreasonable. This may prevent parties from until trial to raise that could have raised beforehand. I.e. notice and opportunity to correct before trial, a court may the failure to comply was not `unreasonable’. (2 Brown, Cal. Practice Civil Procedure Before (The Rutter Group ¶ 8:1719.2, p. 8J-28, rev. #1,

In the instant case, it seems Miller’s lack of readiness at the hour was attributable not to gamesmanship, but to the time span between deposition and his. Miller he could be ready to render the [he] intend[ed] to give at in approximately 16 hours. Appellant no showing that he would been irreparably harmed by a day or two to complete Miller’s deposition, nor can we that would have Nonetheless, for whatever reason, he not to pursue the matter further more than two weeks the trial. Under the circumstances, the court was persuaded it was appellant who had unreasonably.

We perceive no abuse of in this ruling. The slight which would have incurred had appellant responded to the situation on July 6, 1993, in no way have compromised the purposes of the statutes. (4) They are intended, other things, to assist the and the trier of fact in ascertaining the to encourage settlement by educating the as to the strengths of their claims and to expedite and facilitate preparation and to prevent delay; and to safeguard surprise. [Citation.] ( Beverly v. Superior Court (1993) 19 1289. 1294 [ 24 Cal.Rptr.2d 238 ].) In this respect, the facts of our differ from those in of Fresno v. Harrison (1984) 154 296 [ 201 Cal.Rptr. 219 ], cited by appellant. the objecting party’s first to depose the expert occurred than two weeks before rendering the exercise. futile in of the fact that the expert had reviewed the data, settled a method, nor reached an opinion. ( Id. at p. Equally distinguishable are two additional relied upon by appellant, v. Brown (1991) 235 Cal.App.3d [ 1 Cal.Rptr.2d 222 ] and Waicis v. Superior (1990) 226 Cal.App.3d 283 [ 276 Cal.Rptr. 45 ]. As the in Zellerino observed, the plaintiff’s in failing to comply with 2034’s disclosure

requirements not mere infractions; she engaged in a attempt to thwart the opposition legitimate and necessary discovery. Cal. App.3d at p. 1117.) In the trial court disqualified the expert after finding he had been uncooperative in allowing his to be taken. (226 Cal. at p. 284.)

After appellant in his attempt to prevent Miller taking the stand, he unsuccessfully to have Miller’s testimony He now argues that the trial abused its discretion by refusing to Miller’s testimony. We disagree. suggestion that a follow-up would have been because Miller had not completed his until after the trial is not borne out by the record. Miller testified that a few days taking the stand, he had revised work that [he] had done. There was no reason to based upon that that Miller would not been ready to continue his within 16 hours as originally if appellant had endeavored to arrange a session.

III. Specific Performance

Toyota CAL-1

(5) Toyota offered uncontroverted testimony to establish appellant was to perform under the stock agreement either at the time of or one year from that Appellant contends such was irrelevant and contrary to the terms of the which gave him one year he had acquired 49 percent of the Hamer stock, or Hamer had become disabled or died, to complete the Appellant’s expert testified 2001 represents the estimate of Mr. life expectancy plus one and 2006 the year in which it be expected that appellant have accumulated the amount of needed to buy 49 percent of the stock.

analysis, even if correct, not establish the trial court in refusing to grant specific Though there is authority for the that specific performance is in cases involving closely stock (see, e.g. v. Gilfallan (1914) 168 Cal. 23, 26 P. 623]; Steinmeyer v. Warner Corp. (1974) 42 Cal.App.3d 519 [ 116 Cal.Rptr. 57 ]; Kaneko v. Okuda 195 Cal.App.2d 217. 234 [ 15 Cal.Rptr. 792 ]; v. Sukumlyn (1955) 131 Cal.App.2d 593 [

281 P.2d 90

]; Korabek v. Weaver Corp. (1944) 65 Cal.App.2d 32, 39 P.2d 876]), an essential for the equitable remedy must be a by the plaintiff of performance, or tender of or ability and willingness to perform. ( Cockrill v. Boas (1931) 213 490, 492 [2 P.2d 774].) appellant failed to demonstrate he have

performed his obligations the agreement within the time identified by his own expert. In fact, evidence was produced on the subject he had neither the personal assets nor the to obtain the commercial financing to conclude the stock transaction. failed to meet his burden of below, he is precluded from challenging the trial court’s on appeal. 3

IV. Exclusion of Lee Hamer’s

(6) When appellant gave that he intended to depose Lee on April 26, 1993, Hamer asked him to withdraw it, citing medical condition. Appellant to do so and Hamer Toyota sought a order. On May 11, 1993, the date the was set for hearing before the discovery the parties conditionally stipulated Toyota would withdraw its for a protective order and produce for a deposition on or before August 2, If Hamer’s medical condition had not by that time, Hamer would be obliged to move for a protective order.

Appellant Hamer’s deposition for August 2, and Hamer Toyota moved for a order, supporting its motion the declaration of Hamer’s primary physician, Doctor Keith Richman averred that suffered from organic syndrome, or senility, that the of a deposition would exacerbate his and render him confused to such an that any deposition testimony be incompetent, and that it was extremely Hamer’s situation would in the future. The discovery referee Hamer Toyota’s motion on 12, 1993, without prejudice to ability to raise the matter in the court.

As expected, a subsequent hearing was to determine Hamer’s competency to at trial. Richman, Hamer sole witness, testified the Hamer suffers from organic brain syndrome and As a result, Hamer has difficulty immediate recall and short-term hallucinates, experiences confusion and The doctor explained, a confabulation is a patient would make up a when their memory them. Richman indicated condition is progressively worsening and that placing him in an unfamiliar such as a courtroom, would his problems.

Appellant attempted to Hamer Toyota’s evidence the testimony of a psychiatrist, Robert Rubin’s opinions were limited

to general observations organic brain syndrome and since he had never examined and had reviewed only a portion of medical records after to Richman testify. 4 Appellant called as witnesses two individuals who at Hamer Toyota and served on its of directors. They established Hamer continued to go to the dealership on a basis and to attend board However, their testimony revealed that Hamer had memory problems and was not really of participating in the business in a meaningful

In light of the uncontroverted medical concerning the nature of Hamer’s difficulties, the trial court he was incapable of understanding the duty of a to tell the truth and was thus under Evidence Code 701. It further expressed the that having Hamer, who had placed on call by Hamer testify would be of no benefit the manner in which his condition itself. We cannot say this an abuse of discretion and the trial decision must therefore be on appeal. ( People v. McCaughan 49 Cal.2d 409. 421 [

317 P.2d 974

]; In re T. (1992) 4 Cal.App.4th 155. 166 [ 5 450 ]; People v. Farley (1979) 90 851. 869 [ 153 Cal.Rptr. 695. 12 301].)


The judgment is

Fukuto, Acting P.J. and J. concurred.

A petition for a rehearing was September 15, 1995, and appellant’s for review by the Supreme court was November 16, 1995.

Toyota CAL-1
Toyota CAL-1


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