Opinion
No. 37537-1-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-2-01801-3, D. Gary Steiner, J., entered March 21, 2008.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION
Gilbert Juvinall appeals the trial court's limitation of discovery in Rachel Kantola's sexual assault protection order (SAPO) proceeding against him. He argues that the trial court abused its discretion when it denied his requests for interrogatories, production, and a deposition of Kantola; instead it allowed Juvinall to conduct a sworn interview of Kantola in the presence of a court reporter. Because Juvinall has neither undertaken the discovery the trial court granted nor demonstrated it to be deficient, we dismiss this interlocutory appeal as improvidently granted and remand to the trial court for further proceedings.
FACTS
I. Petition for Sexual Assault Protective Order
On June 20, 2007, Kantola petitioned the Pierce County Superior Court for a SAPO against Juvinall under chapter 7.90 RCW. Her petition states, "Petitioner is a victim of nonconsensual sexual conduct or nonconsensual sexual penetration committed by the respondent as described in the statement below." Clerk's Papers (CP) at 1. Kantola's affidavit attached to the petition described Juvinall's nonconsensual sexual conduct in detail. Kantola asked that Juvinall be (1) "restrain[ed] from having any contact with [her]"; (2) "[e]xclude[d] from" Kantola's residence, her workplace, her school, and her children's schools; (3) "[p]rohibit[ed] from knowingly coming within, or knowingly remaining within 100 f[ee]t" of any of these places; and (4) "[d]en[ied] contact with [her] unidentified children as well as any mutual aquaint[a]nces to limit threats and violent or harmful rep[e]r[]cussions." CP at 2 (emphasis omitted).
The superior court issued a temporary SAPO that stated, "The Court [f]inds by a preponderance of the evidence that petitioner is a victim of nonconsensual sexual conduct or nonconsensual sexual penetration." CP at 5. The order set a full hearing for July 3, 2007, and directed that Juvinall "appear and show cause why this temporary sexual assault protection order should not be made effective for up to two years and why the court should not order the relief requested by the petitioner." CP at 7. On July 17, 2007, the superior court extended the temporary SAPO to expire on "the new court hearing date . . . July 31, 2007." CP at 8.
On July 31, 2007, the superior court entered an order directing the parties to appear on August 27, 2007, "for the purpose of assigning this matter to a trial department." This order extended the temporary SAPO "until further order of the court." CP at 10. It also noted that both parties intended to present witnesses at trial — Kantola expected four witnesses and Juvinall Page 3 expected three witnesses — and that the trial was expected to last one day.
On February 19, 2008, the superior court issued another order: (1) ordering the parties to appear on April 28, 2008, "for the purpose of assigning this matter to a trial department" and (2) extending the temporary SAPO "until further order of the court." CP at 14.
II. Discovery Requests
Juvinall served Kantola with interrogatories and requests for production of documents; he also informed her that he was requesting her deposition. On February 14, 2008, Kantola filed a motion for a protective order, asking that she "not be required to respond to any interrogatories and/or requests for production nor to attend any depositions as propounded by [Juvinall]." CP at 12. She further requested that the protective order eliminate her obligation "to participate in any discovery as prescribed under CR 26, et seq." CP at 13. In her attached declaration to her motion, Kantola stated:
[Juvinall], through counsel, served upon [Kantola] interrogatories and requests for production of documents and advised that a deposition of [Kantola] was requested.
. . . Upon information and belief, there is no basis or provision in the law for such a request, and said request for discovery runs afoul of the spirit and policies of the Sexual Assault Protection Order Act . . . This proceeding is a creature of statute and is, by statutory definition, a summary proceeding. There are no provisions in the Act providing for protracted discovery or for a "full blown" trial. In fact, the summary aspects of the Act are inconsistent with CR 26, et seq., in that permitting protracted discovery is inherently inconsistent with a statutory scheme calling for expedited or summary proceedings.
CP at 13.
The superior court ruled on Kantola's motion for a protective order concerning discovery, "grant[ing] in part and den[ying] in part." The court's order stated, "[Juvinall] may interview [Kantola] under oath in the presence of a certified court reporter. The remaining request[] for a protective [order] is granted in that [Kantola] shall not be subjected to interrogatories, requests for production, or formal deposition." CP at 23. Juvinall did not attempt to implement this order allowing him to interview Kantola under oath in the presence of a certified court reporter, nor did he explain to the superior court how this court-approved procedure would preclude him meaningful discovery.
III. Discretionary Review Request
Instead, Juvinall sought our discretionary review of the superior court's discovery orders. Juvinall argued that "[t]he [trial] court[']s order limiting [Juvinall's] use of discovery tools authorized under CR 30, 33 and 34 should be reversed as an abuse of discretion because it was based on the untenable ground that it would delay the proceeding." Motion for Discretionary Review at 2. Kantola opposed discretionary review, arguing that "[d]iscovery is not provided for in the [sexual assault protection order] [s]tatute." Response to Motion for Discretionary Review at 2.
A commissioner of our court granted Juvinall's motion for discretionary review. In the meantime, the parties have been anticipating a "trial," or full hearing; they have delayed the trial date on numerous occasions, from the original date of July 3, 2007, to a final date of April 28, 2008. CP at 14. According to counsel's oral arguments, the temporary SAPO has been extended to cover the time needed for this appeal and for the full hearing pending below.
At oral argument, the parties informed us that a new trial date is set for July 2009.
At oral argument, counsel noted, "As we sit here today, 18 months after this started, [Kantola] is protected under the temporary protection order."
ANALYSIS
Juvinall contends that the superior court abused its discretion when it granted Kantola's motion to limit discovery. He argues that the superior court failed to articulate its reasons for limiting discovery as required by CR 26(c) and "had no legally recognizable reason for denying [Juvinall's discovery] request." Br. of Appellant at 3. Juvinall further asserts that SAPO proceedings are civil and, therefore, the rules of civil procedure apply, including the "'broad right of discovery.'" Br. of Appellant at 3 (quoting John Doe v. Puget Sound Blood Cent., 117 Wn.2d 772, 782, 819 P.2d 370 (1991)). Kantola asks us to rule that the SAPO statute denies the right to discovery and the right to a trial. But we need not decide issues that the trial court did not address. Instead, because Juvinall has not shown that the discovery the superior court allowed was inadequate and because there is a trial scheduled in this matter we dismiss his appeal as improvidently granted.
I. Discretionary Review
RAP 2.3(b) provides that generally
discretionary review may be accepted only in the following circumstances:
(1) The superior court has committed an obvious error which would render further proceedings useless;
(2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act;
(3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court;
(4) The superior court has certified, or that all parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.
Juvinall asserts that "the trial court prohibited all forms of discovery allowed under CR 30-34" and unfairly left him "with no way to prepare for the interview, no means to compel the interview, no means to compel answers to questions asked and ultimately no sanctions if answers were not forthcoming." He further argues that the trial court was "silent as to its reasons" for entering the order. Br. of Appellant at 4-5. But as we explain below, Juvinall's interlocutory appeal meets none of the RAP 2.3(b) criteria for discretionary review.
According to Juvinall, he "can only presume that the trial court granted the protection order based on one or both of [Kantola]'s articulated reasons" for requesting the CR 26(c) protective order. Br. of Appellant at 5. At oral argument, counsel acknowledged that although this hearing had been transcribed, the verbatim report of proceedings was not included in record on appeal.
II. Trial Court's Discretion to Limit Discovery
A. Standard of Review
We "review[] a trial court's discovery order for an abuse of discretion." T.S. v. Boy Scouts of America, 157 Wn.2d 416, 423, 138 P.3d 1053 (2006). A superior court abuses its discretion when its decision is "manifestly unreasonable or based upon untenable grounds or reasons." State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court's discretionary decision "is based 'on untenable grounds' or made 'for untenable reasons' if it rests on facts unsupported in the record or was reached by applying the wrong legal standard." State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).
B. Civil Rule 26(c)
The civil rules relating to discovery make special provision for discovery in matters involving protective orders. CR 26(c) expressly gives the superior court broad discretion to limit discovery in proceedings for protective orders and provides, in pertinent part:
Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that the contents of a deposition not be disclosed or be disclosed only in a designated way; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
(Emphasis omitted.) "The eight types of orders listed in the [above] rule are only examples, and they do not restrict the court's authority to fashion other relief as it deems appropriate." 3A Karl B. Teglund, Washington Practice: Rules Practice CR 26 cmt. 42, at 607 (5th ed. 2006) (emphasis added).
We agree with Kantola that (1) "[t]he [trial] court has broad discretion under CR 26(c) to fashion any remedy it deems necessary to protect a client from annoyance, embarrassment, undue burden, or expense" and (2) under CR 26(c), the trial court "may order any remedy it deems appropriate" once it has determined that there is good cause to limit discovery. Br. of Resp't at 5-6. As our Supreme Court has noted:
In drafting a protective order under CR 26(c), the trial court may order "that the discovery not be had" at all, or it may place conditions or limitations on the requested discovery — for example, by specifying the time or place, restricting the scope of inquiry, or designating the persons who may be present.
T.S., 157 Wn.2d at 424 (quoting CR 26(c)(1)).
Good cause for limiting discovery in SAPO proceedings is established by showing the threat of any of the harms listed in the rule and that these harms can be avoided without impeding the discovery process. See Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 256, 654 P.2d 673 (1982). "The trial court is inarguably in the best position to determine the nature and extent of the burdens and risks" in granting or limiting discovery. Gillett v. Conner, 132 Wn. App. 818, 826, 133 P.3d 960 (2006). It is within the trial court's discretion to fashion suitable protective orders. Doe, 117 Wn.2d at 777-78; Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 556, 815 P.2d 798 (1991).
Rhinehart involved a protection order preventing the defendant from publishing information about the plaintiff that was obtained through discovery. The issue was whether the protective order was an unconstitutional prior restraint on free speech. The court held that, even if it were a prior restraint, the protective order was valid where the plaintiff requesting the order had established "good cause" because publication would result in "annoyance, embarrassment, and even oppression." 92 Wn.2d at 256-57.
C. No Abuse of Discretion
Although the superior court here could have denied discovery altogether under CR 26(c), it did not do so. The superior court entered its discovery order "for good cause shown" based on "the files and records herein" and on the oral arguments of counsel. CP at 23. But, contrary to RAP 9.2(b), Juvinall has not included transcripts of counsel's oral arguments in the record on appeal; thus, he has not carried his burden to show that the trial court abused its discretion in limiting discovery to the sworn interview of Kantola in the presence of a certified court reporter or that the trial court adopted either of Kantola's legal arguments.
Juvinall cites the following as Kantola's reasons for requesting the CR 26(c) protective order: (1) that the civil rules do not apply to SAPO proceedings and (2) that "allow[ing] discovery would thwart the legislative intent to have a 'summary proceeding' conducted quickly." Br. of Appellant at 5-6.
RAP 9.2(b) provides in pertinent part, "A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review." We note, however, that in spite of this lapse by Juvinall in providing an adequate record for our review of the issues he raises on appeal, the record does contain Kantola's original petition for a SAPO, her affidavit, and the declarations attached to her motions for a CR 26(c) protective order, all of which support the trial court's finding of "good cause." Kantola's affidavit, for example, describes Juvinall's having raped her.
To the extent that Juvinall asserts error based on the superior court's "failure to articulate" grounds for finding good cause to deny discovery under the civil rules, it is Juvinall who appears to be responsible for any failure of the record to reflect the superior court's reasoning. Br. of Appellant at 3. Our review of the record on appeal shows that the trial court reviewed the records and files and heard argument of counsel before making its ruling. In any event, Juvinall's failure to provide a sufficient record prevents our full review of this point on appeal.
Juvinall asserts that "[t]he trial court[']s order laying waste to the idea that discovery rules are to be liberally construed is silent as to its reason for doing so." Br. of Appellant at 5 (citation omitted).
Nevertheless, we do have in the record Kantola's uncontroverted affidavit describing Juvinall's past rape of her and the threat that Juvinall posed to her safety. In that affidavit, which was before the trial court, Kantola describes Juvinall as a "violent man" who (1) is "known to carry a gun"; (2) "makes it known that he has mob connections"; (3) "has stated that if he is not able to take care of his business, it's just a quick phone call to get done whatever he needs"; and (4) "has . . . blackmailed female(s) previously." Kantola also explains that she is concerned because "there are always children present at [her] workplace" and Juvinall "knows that [she] ha[s] two young girls and that the only way he can continue to scare and intimidate [her] is by coming after [her] children. CP at 4.
Accordingly, based on the limited record before us in this interlocutory appeal, we hold that the trial court did not abuse its discretion in tailoring the discovery in this manner. Furthermore, this lack of abuse of trial court discretion is especially significant in light of Juvinall's failure (1) to avail himself of the discovery the superior court did provide and (2) after conducting such interview, to seek additional discovery if, in fact, the interview proved to be inadequate or Kantola refused to cooperate.
Finding no obvious or probable error by the superior court in so limiting discovery at this stage and on this record, we dismiss Juvinall's interlocutory appeal under RAP 7.3 as improvidently granted and remand to the superior court for further proceedings.
RAP 7.3 provides, "The appellate court has the authority to determine whether a matter is properly before it, and to perform all acts necessary or appropriate to secure the fair and orderly review of a case."
This remand will provide Juvinall with the full, previously scheduled, but now stayed, hearing to which he claims he is entitled under RCW 7.90.080(2), as contrasted with the preliminary summary proceeding. Br. of Appellant at 5.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and HUNT, JJ., concur.