In the published portion of this opinion, we will hold that, under the circumstances
of this case, the trial court abused its discretion by imposing a terminating sanction.
I
STATEMENT OF THE CASE
On April 18, 2019, Harber filed a petition to be appointed as guardian of two
children, A.H. and M.W. She alleged that she was their maternal grandmother. She was
represented by counsel.
On May 23, 2019, Williams filed a petition to be appointed as guardian of A.H.
and M.W. She alleged that she was M.W.’s paternal grandmother; she had been told that
she was also A.H.’s paternal grandmother, and she had acted as such, though recently she
had been told that she actually was not. Two older siblings of A.H. and M.W. lived with
her. She was in propria persona.
2
On July 29, 2020, the trial court held a trial setting conference. Harber’s counsel
was present, but Harber was not. Using a check-the-box form preprinted with the trial
judge’s name, the trial court ordered the parties to exchange, among other things, “list[s]
of witnesses you intend to call, including parties . . . .” The exchange was to occur by
February 3, 2021. The order also stated, “EXCEPT AS OTHERWISE PROVIDED
BY LAW, YOU WILL NOT BE PERMITTED TO CALL ANY WITNESSES OR
INTRODUCE ANY EVIDENCE NOT INCLUDED IN THE STATEMENTS THE
COURT HEREBY ORDERS YOU TO SERVE.” A written copy of the order was
provided to those present. The case was set for trial on March 3 and 4, 2021.
On February 17, 2021, Williams filed a declaration stating that Harber had failed
to exchange a witness list.
On March 4, 2021, counsel for Harber conceded that she had not exchanged a
witness list. She argued, “It’s not noncompliance. We had no witnesses other than my
client.” The trial court pointed out that its pretrial order expressly applied to party
witnesses. Harber’s counsel responded, “I missed that.” “It’s my mistake that I failed to
list my own client as a witness.”
The trial court found that there was no “[m]istake, inadvertence, surprise or
excusable neglect.” Based on Harber’s failure to comply with the pretrial order, it
dismissed her petition and overruled her objections to Williams’ petition. Thus, it
granted Williams’ petition and issued letters of guardianship to her.
3
II
MOOTNESS
Williams suggests that this appeal is moot because the children are living with
their father, albeit in her home.
She does not claim that the guardianship has been terminated. We take judicial
notice of the superior court’s register of actions. It shows that Williams is still the duly
appointed guardian. The father has not been given custody, and the guardianship has not
been terminated. (See Prob. Code, § 1601.) While it may have become more difficult for
Harber to prove that she is the appropriate guardian, it is still possible for the trial court to
remove Williams and to appoint Harber. Thus, the appeal is not moot.
III
FAMILY CODE SECTION 217
Harber contends that the pretrial order was invalid because it was inconsistent with
Family Code section 217 (section 217). Section 217, as relevant here, says: “A party
seeking to present live testimony from witnesses other than the parties shall, prior to the
hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a
brief continuance and may make appropriate temporary orders pending the continued
hearing.” (§ 217, subd (c), italics added.)
“Courts . . . have the authority to adopt local rules, so long as those rules are
consistent with statutory procedures adopted by the Legislature and the Rules of Court
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adopted by the Judicial Council. [Citations.] . . . [W]hen no procedure is specified by
statute or rule, judges may fashion nonstatutory procedures suitable to the specific cases
before them. [Citation.] Courts, however, do not have the authority to adopt procedures
or policies that conflict with statutory law or the Rules of Court. [Citation.]” (Weiss v.
People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 857.)
Section 217, however, applies only “[a]t a hearing on any order to show cause or
notice of motion brought pursuant to this code” — i.e., the Family Code. (§ 217, subd.
(a); see generally In re Marriage of Swain (2018) 21 Cal.App.5th 830, 839-840
[discussing legislative history of § 217].) A guardianship proceeding is not a proceeding
under the Family Code. Rather, it a proceeding under the Probate Code — specifically,
Probate Code section 1500 et seq. Harber has not pointed to any similar provision that
would apply in a guardianship proceeding, and we have found none.
We therefore conclude that the pretrial order did not conflict with section 217.
IV
THE RIGHT TO PRESENT EVIDENCE AND THE RIGHT TO TESTIFY
Harber contends that the trial court violated her right to present evidence and to
testify at trial.
She seems to take the maximalist position that a trial court can never deny a party
the right to present evidence and to testify. If so, we disagree.
“Ordinarily, parties have the right to testify in their own behalf [citation], and a
party’s opportunity to call witnesses to testify and to proffer admissible evidence is
5
central to having his or her day in court. [Citations.]” (Elkins v. Superior Court (2007)
41 Cal.4th 1337, 1357.)
At the same time, however, “‘[i]t is . . . well established that courts have . . .
inherent power to control litigation before them. [Citation.] . . . “ . . . That inherent power
entitles trial courts to exercise reasonable control over all proceedings connected with
pending litigation . . . in order to insure the orderly administration of justice. [Citation.]”’
[Citation.]” (Elkins v. Superior Court, supra, 41 Cal.4th at p. 1351.) “The state’s strong
interest in prompt and efficient trials permits the non-arbitrary exclusion of evidence
[citation] . . . . [Citations.]” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138,
1146-1147.)
The trial court’s inherent power “‘ . . . should never be directed in such manner as
to prevent a full and fair opportunity to the parties to present all competent, relevant, and
material evidence bearing upon any issue properly presented for determination. . . .’
[Citation.]” (Elkins v. Superior Court, supra, 41 Cal.4th at pp. 1357-1358, italics
omitted.)
Requiring an exchange of witness lists is conducive to orderly procedure. It
promotes a fair trial by enabling the parties and counsel to prepare for trial and by
preventing surprise. For the requirement to have teeth, there must be some sanctions if it
is violated. Those sanctions may include the exclusion of evidence, unless that would
“prevent a full and fair opportunity . . . to present all competent, relevant, and material
6
evidence . . . .” (Elkins v. Superior Court, supra, 41 Cal.4th at pp. 1357-1358, italics
added, italics omitted.)
Harber had precisely such an opportunity. All she had to do was exchange a
witness list. She was given ample notice that she needed to do this; she was specifically
given notice that her witness list had to include party witnesses. Because a witness list
exchange requirement is reasonable to insure the orderly administration of justice, and
because Harber had a full and fair opportunity to comply with that requirement, she did
not have an absolute right to present evidence and to testify.
Harber’s maximalist position, however, subsumes the argument that, under the
circumstances of this case, the trial court erred by denying her the right to present
evidence and to testify. As to that, we agree.
As noted, the trial court can exclude evidence — even when its purpose is to
promote the interest in prompt and efficient trials — only if the exclusion is not arbitrary.
(Maricela C. v. Superior Court, supra, 66 Cal.App.4th at pp. 1146-1147.) “We review a
trial court’s decision to admit or exclude evidence under an abuse of discretion standard.
[Citation.]” (Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 988.)
Significantly, in this case, Harber was her own only witness. Thus, excluding her
evidence was a terminating sanction; it was the basis for the dismissal of her petition and
the granting of Williams’ petition. This is not a case in which a party does exchange a
witness list but later, at trial, seeks to call a witness who was not on the list.
7
“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.)
Five factors, taken in combination, render the order here an abuse of discretion.
First, it was Harber’s attorney, not Harber, who was at fault. The fact that “the
fault lies with the client and not the attorney” militates against using the inherent
authority to dismiss. (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799; cf.
United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158 [trial
court could properly sanction both client and attorney when there was “joint
misconduct”].)
Harber was not at the trial setting conference at which the trial court made the
order; there is no indication that it was ever personally served on her. Even if she were
8
aware of the order, it would normally be an attorney’s responsibility to prepare and to
exchange a witness list (and to meet the deadline for doing so). Harber’s counsel stepped
up and accepted responsibility, saying, “I missed that.” “It’s my mistake that I failed to
list my own client as a witness.” The trial court found that Harber’s “attorney . . . failed
to comply to the pretrial orders”; it ordered, “[A]ny and all objections are overruled as
counsel failed to comply with pretrial orders.” (Capitalization altered.)
Second, the misconduct of Harber’s attorney was not severe or extreme. She
claimed that she mistakenly believed that the witness list requirement did not apply to
party witnesses. That mistake was at least negligent; the pretrial order said, in bold,
capital letters, that this requirement did apply to party witnesses. Arguably, because the
order was so clear, the trial court could have found that she was not credible and that she
actually violated the pretrial order knowingly. Even then, however, there was no
evidence that her failure to exchange a witness list had some deliberate tactical purpose.
Likewise, there was no evidence that it was defiant or disrespectful. It was not part of
any pattern of violations.
Third, the prejudice to Williams was negligible. Once Harber failed to exchange a
witness list, Williams was entitled to rely on that failure by not preparing to cross-
examine her or to rebut her testimony. This prejudice, however, could easily be remedied
9
by a continuance. 1 The children were already living with Williams, so a continuance
would not have postponed or impaired her interest in custody.
That ties into the fourth factor: Lesser sanctions were adequate to vindicate the
trial court’s authority. In addition to ordering a continuance, it could have imposed
monetary sanctions up to $1,500. (Code Civ. Proc., § 177.5.) If it found that the
violation was willful, it could even have sanctioned it as contempt. (See generally In re
Ivey (2000) 85 Cal.App.4th 793, 798.)
Which ties into the fifth factor: The trial court’s form order did not allow for any
lesser sanctions. No matter what the circumstances, it was one size fits all: “YOU
WILL NOT BE PERMITTED TO CALL ANY WITNESSES NOT INCLUDED IN
THE [WITNESS] STATEMENT[] . . . .” In other words, 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.)
In sum, we conclude that a trial court can exclude evidence as a sanction for the
violation of an order to exchange witness lists — even when the exclusion amounts to a
1 Discovery is available in a guardianship proceeding. (Prob. Code, § 1000; Mota v. Superior Court (2007) 156 Cal.App.4th 351, 355.) Here, however, the witness list exchange was due on February 3, 2021, and the case was set for trial on March 3, 2021. Thus, the 30-day discovery cutoff had already run. (Code Civ. Proc., § 2024.020, subd. (a).) It follows that Williams was not deprived of the opportunity to depose Harber.
10
terminating sanction — in an appropriate case. In this case, however, the exclusion of
Harber’s testimony was an abuse of discretion. 2
V
DISPOSITION
The order appealed from is reversed. In the interests of justice, we do not award
costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION RAMIREZ P. J.
We concur:
McKINSTER J.
RAPHAEL J.
2 Harber also contends that the pretrial order was a local rule and, as such, it was not validly adopted. Because we are reversing on other grounds, we do not reach this contention.
11
AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion by imposing a terminating sanction for a failure to exchange a witness list, as the sanction was disproportionate to the attorney's non-severe misconduct and the court failed to consider less drastic alternatives.
Issues
Whether a trial court may impose a terminating sanction for failure to comply with a pretrial order to exchange a witness list.
Whether the trial court abused its discretion by failing to consider lesser sanctions before dismissing the petition.
Whether the pretrial order conflicted with Family Code section 217.
Disposition. reversed
Quotations verified verbatim against the opinion
“the trial court abused its discretion by imposing a terminating sanction.”
“dismissal is always a drastic remedy to be employed only in the rarest of circumstances.”
“A trial court’s failure to exercise discretion is itself an abuse of discretion.”