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Judge Erred in Striking Answer as Sanction, Ordering $2.5 Million Judgment—C.A.
Opinion Does Not Discuss Rationale Set Forth by Trial Court in Taking Its Action
By a MetNews Staff Writer
A judge, in imposing a terminating sanction, wrongly punished an apparently faultless defendant for shoddy performance by his attorney, Div. Three of the Fourth District Court of Appeal has declared, reversing a default judgment for more than $2.5 million.
Justice Thomas M. Goethals authored the unpublished opinion, filed Friday. It revives litigation brought by Ron Tovella for wrongful termination and fraud against venture capitalist Michael Megarit, who headed an Irvine company that formerly employed the plaintiff, and against that company and related entities.
Orange Superior Court Judge Richard Y. Lee struck the defendants’ answer after their lawyer, Jennifer Bradford, and Megarit failed to show up for a mandatory settlement conference on Jan. 24, 2020, and Bradford then made no appearance at a Feb. 6, 2020 hearing on an order to show cause why a terminating sanction should not be imposed. Lee subsequently set damages at $2,533,727.65.
However, the opinion does not reflect Lee’s reasoning.
Contention on Appeal
Megarit’s opening brief on appeal sets forth:
“Megarit declared attorney Bradford had emailed him notice of the mandatory settlement conference but had not informed him he needed to appear….He had appeared for the trial date, but was informed by the clerk his presence was not required because the answer had been stricken.”
Declaring that Lee abused his discretion, Goethals said:
“Trial courts should reserve terminating sanctions for those situations in which the offending conduct was clear and deliberate, where no lesser alternative would remedy the harm, and where the record indicates the fault lies with the party, not the attorney….
“Here, there is no indication in the record the court considered a lesser sanction prior to striking the answer. Nor is there evidence a lesser sanction would not have resulted in Megarit’s attendance and compliance. There was also no evidence the failure to appear at the mandatory settlement conference was the fault of Megarit, rather than his attorney.”
Megarit put forth other assaults on Lee’s actions, one of which was that the judge improperly set damages at a higher amount than that sought by the complaint. Goethals said in a footnote:
“Because we hold the court erred in striking the answer, Megarit’s remaining contentions are moot.”
Lee’s View
The opinion does not address Lee’s factual finding, pointed out in the respondent’s brief, that prior to the nonappearances by Bradford in 2020, Megarit was aware that Bradford had abandoned him and the other defendants.
Tovella had presented evidence that on March 27, 2019, in a filing in the Superior Court, Megarit had represented that “Ms. Bradford, his current attorney of record, has abandoned the representation” of him.
Lee held, in ordering the striking of the answer (which was preceded by a failure to make discovery after it was ordered):
“Defendants were aware as early as March 2019, that their attorney Ms. Bradford had abandoned them, yet they did not take any action to rectify the situation, such as substituting new counsel or seeking relief from the Court until well over a year later….
“A reasonably prudent litigant having such knowledge of his or her attorney’s neglect would have immediately retained a new attorney to represent their interests.”
Lee added:
“Defendants also fail to meet their burden by not providing evidence of any efforts that were made by them to contact attorney Bradford throughout the case.”
The case is Tovella v. Megarit, G061468.
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