Order Excluding Party’s Sole Witness Held an Abuse of Discretion

Timothy Kowal, Esq.
September 14, 2022

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented her from testifying, which had the effect of a terminating sanction.

Fortunately for Harbert, the Court of Appeal reversed. In a partially published opinion, the court rejected the Harber’s “maximalist” view that a trial court could never deny a party’s right to present evidence and testify. But the court nonetheless concluded that, here, the trial court had abused its discretion.

Standard for terminating sanctions:

“Courts have the inherent authority to dismiss a case as a sanction. [Citation.]” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271; see also Code Civ. Proc., §§ 128, subd. (a)(4), 581, subd. (m).)

But “dismissal is always a drastic remedy to be employed only in the rarest of circumstances.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 764.)

“[T]here are two important inquiries to be made by trial courts when determining whether a plaintiff's actions warrant a dismissal with prejudice. First, the court must discern whether the plaintiff's pattern of conduct was so ‘severe [and] deliberate’ as to constitute extreme circumstances. [Citation.] Second, the court must look to see whether alternatives less severe than dismissal are available. The ‘sound exercise of discretion requires the judge to consider and use lesser sanctions’ unless the court's authority cannot possibly be otherwise vindicated. [Citation.]” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917.)

The factors here did not establish a pattern of misconduct or the absence of a lesser remedy; thus, terminating sanctions were improper.

The court noted that Harber’s attorney was most at fault for the failure to serve the witness list, and that neglect was not severe or extreme, and there was no indication that it was a tactic. The court also noted that the failure could have been remedied by a trial continuance.

The most interesting of the factors the court identified was the fact that the pre-trial order indicated a “one size fits all” sanction when it stated that “you will not be permitted to call any witnesses not included in the witness statement.” This, the appellate court concluded, indicated the trial court had predetermined it would not consider any lesser sanctions.

“In other words,” the court went on, “the trial court announced, up front, that it would not exercise any discretion. The inherent power to dismiss, however, is a discretionary power. “A trial court's failure to exercise discretion is itself an abuse of discretion. [Citation.]” (Fadeeff v. State Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 104.)”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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