Dismissing a whole petition for custody because an attorney neglected to provide a witness list is too extreme, the Court of Appeal ruled Sept. 12.
In this case, Elouise Harber and Delores Williams, the maternal and paternal grandmothers of two children, filed competing petitions to gain custody over two of their grandchildren. Harber’s counsel neglected to file a witness list; Harber was going to be the only witness, and the attorney did not believe the requirement applied to party witnesses, according to the appellate ruling.
San Bernardino Superior Court dismissed Harber’s case because of the missing witness list.
The Court of Appeal disagreed. Because it was her attorney’s fault, the court gave her leniency.
The court also found that the mistake was not severe, and that the mistake was minor, because the court could easily continue the hearing.
The Court of Appeal also found that lesser sanctions, such as a $1,500 sanction, would have worked well enough.
Finally, the court ruled that San Bernardino Superior Court’s order to provide a witness list did not allow for any discretion to dismiss the case.
“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 terminating sanction — in an appropriate case. In this case, however, the exclusion of Harber’s testimony was an abuse of discretion,” the court said.
Valerie Ross of Victorville’s Law Offices of Valerie Ross represented Harber on appeal.
Williams represented herself on appeal.
Fourth District Court of Appeal, Division Two, Presiding Justice Manuel Ramirez wrote the opinion, which Associate Justices Art McKinster and Michael Raphael joined.
Appellate Case No. E077036.
San Bernardino Superior Court number GARPS1900182.
Read the ruling here.
