The Second District holds an attorney’s violations of pre-trial evidentiary rulings warrant a sanction of dismissal.
Rebecca Osborne retained Glenn Murphy to sue Todd Farm Service and Berrington Custom Hay Stacking and Transport, Inc. (Berrington) when she was injured by a hay bale that unexpectedly gave way as she was tossing it. There was scant evidence that the hay bale was supplied by Berrington, and the broker Todd used multiple hay suppliers.
Murphy failed to timely designate experts, and attempted to remedy this error by serving a “supplemental” designation, which Berrington successfully moved to strike. Motions in limine precluded Osborne from testifying as an expert about the supplier of the hay bale, including her opinion about the geographic origin of the hay bale based on its color and texture, or the manner it was cut, harvested, baled, manufactured, stored and moved.
Another in limine ruling precluded Osborne from testifying to hearsay statements made by unidentified Todd employees about the origin of the hay.
Murphy ignored the in limine rulings beginning with opening statement, and throughout the trial despite numerous admonitions from the judge. Eventually the trial court granted Berrington’s motion to dismiss the case with prejudice as a sanction for Murphy’s repeated violation of the in limine rulings.
California courts have authority to issue a terminating sanction for pervasive misconduct. A dismissal sanction is proper if there is substantial evidence to support the order, and the decision is overruled only if there is an abuse of discretion.
The trial court makes all credibility determinations. The court did not credit Murphy’s explanations for his conduct, and believed he acted intentionally.
The in limine rulings were not an abuse of discretion tantamount to a non-suit. Osborne’s opinion testimony that the bale must have come from Berrington was properly excluded as expert testimony or as inadmissible lay opinion. It was also proper to preclude hearsay evidence about the source of the hay bales.
The Court rejected Osborne’s argument that the trial court should have issued monetary or other less severe sanctions prior to the ultimate sanction of dismissal. An initial terminating sanction is not an abuse of discretion when a party willfully violates the court’s orders. Murphy repeatedly disregarded the trial court’s orders when he asked his client questions precluded by the in limine rulings, and then feigned misunderstanding the court’s evidentiary rulings.
It was not an abuse of discretion to dismiss both Berrington and Todd, because Murphy’s misconduct was unduly prejudicial to both respondents. Murphy sought to give jurors the impression that both defendants were hiding the truth, and dismissing Berrington would have placed an undue burden on Todd.
COMMENT: Zealous advocacy has its limits. The conduct described in the opinion demonstrates that the client pays the price when her attorney oversteps its bounds.