Filed 10/16/26 Stokman v. Vertical Ventures Capital CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
LISA STOKMAN,
Plaintiff and Appellant,
A173017
v.
VERTICAL VENTURES CAPITAL (Alameda County
et al., Super. Ct. No. RG19044523)
Defendants and Respondents.
Lisa Stokman tripped walking out of an elevator at her workplace and
stumbled head-first into a wall. She sued the building manager, a building
management subcontractor, and the elevator maintenance company, claiming
a mis-leveled elevator caused her fall. The case went to trial against all three
defendants.
Partway through the third day of Stokman’s case in chief, when faced
with a delay of about 45 minutes before Stokman could call her next witness,
the court granted defendants’ oral motion to dismiss the case with prejudice.
Neither defendants nor the trial court cited statutory or other legal grounds
for dismissal. Instead, the dismissal appears to be based on Stokman’s
inability to immediately call a witness and the trial court’s concern that they
would “lose the jury” before the trial concluded.
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Stokman contends the trial court lacked authority to dismiss her case
with prejudice or, in the alternative, that it abused its discretion in doing so.
We agree.
BACKGROUND
Stokman worked for Alameda County Adult and Aging Services at the
Eastmont Town Center in Oakland. She alleges that on December 27, 2018,
she tripped exiting an elevator at Eastmont, hitting her head against a wall
and suffering a concussion that had long-lasting effects. Stokman alleges she
stumbled because the elevator was not properly leveled, leaving a tripping
hazard.
Stokman sued building manager Vertical Ventures Capital, LLC
(Vertical) as the owner of the property, then added the company responsible
for elevator maintenance, TK Elevator Corporation (TKE), and building-
management subcontractor Cushman & Wakefield of California, Inc.
(Cushman) as defendants. We refer to Vertical, TKE, and Cushman
collectively as “defendants.”
Trial, originally set for January 2023, was rescheduled several times.
The parties filed motions in limine in March and April 2024. Over the course
of three hearings in April 2024, the court heard extensive, at times repetitive
argument and ruled on some of the motions in limine but deferred ruling on
others, including a motion to exclude the testimony of Stokman’s elevator
expert, Michael Fagan.
Those remaining motions were still unresolved when trial eventually
began in January 2025. The court’s trial schedule was 8:30 a.m. to 1:30 p.m.,
Monday through Thursday. The parties estimated three to four weeks for
trial. The proceedings’ slow pace was apparent early on. Jury selection took
the better part of two weeks, from Tuesday, January 7 until Thursday,
2
January 16, at which point the jury was sworn and instructed to return
Tuesday, January 21, at 8:30 a.m. for trial. The court cautioned the parties
during jury selection that “this is going slowly, and . . . I would like it to move
quicker.” In particular, the court noted it was not feasible for every
conversation to involve Stokman’s counsel “and then five other attorneys on
the other side talking for three parties,” repeating one another.
Despite the court’s warning, trial advanced at a plodding pace. The
parties litigated vigorously, and the court allowed lengthy argument. On
multiple occasions, the jury waited for hours while the parties argued
motions and objections. When defendants objected to Stokman’s opening
slides, the court delayed opening statements by a day and a half to hear
argument and rule on defendants’ objections. In the course of this discussion
on the eve of opening statements, defendants raised new objections to key
surveillance video evidence, and Stokman, expecting the evidence to be
admitted via stipulation, was then unprepared to lay a foundation. The court
excluded the video evidence, which had cascading effects on Stokman’s
witnesses whose testimony relied on the videos, and compounded scheduling
difficulties caused by illness, injury, death, travel, unresolved objections, and
untimely designations by Stokman. After the second day of Stokman’s case
in chief, the jury expressed frustration with the delays and implored the
court and parties to make better use of its time. On the third day of
Stokman’s case in chief, the scheduling issues came to a head: When
Stokman was unable immediately to call her next witness, the court granted
defendants’ motion to dismiss the case with prejudice.
Because the parties dispute whether Stokman’s conduct at trial was
the type of deliberate and egregious misconduct warranting the sanction of
dismissal with prejudice, we recount the events in greater detail below.
3
Saturday, January 18 – Tuesday, January 21
Stokman sent her opening slides to defendants on Saturday, January
18; defendants objected to many of them as improperly argumentative or
violative of the court’s in limine rulings. Stokman revised the slides through
the evening of Monday, January 20. As of Tuesday morning—the planned
start of trial—defendants maintained many of their objections, some of which
were contingent on the outcome of still-pending motions in limine.
The court began working through the objections, again allowing
extensive argument. After about two hours, the court excused the jury for
the day without the jury ever entering the courtroom because it had become
clear there would not be enough time for all parties to give their opening
statements that day. The parties then resumed argument over Stokman’s
slides, toward the end of the session turning to objections to Stokman’s use of
several versions of a surveillance video of the incident.
As background, Stokman obtained surveillance video footage of her exit
from the elevator and fall, apparently through informal channels.
Throughout litigation, all parties relied on the video, including questioning
witnesses about it at deposition and providing it to experts. Each defendant
submitted the video in support of its summary judgment motion, with
Vertical attesting it was “a true and correct copy of a surveillance video from
a camera overlooking the elevator accident of December 27, 2018 that is the
subject of this case,” and the other defendants “join[ing] in, as though fully
set forth” in their own summary judgment papers. A defense motion in
limine sought to exclude Stokman’s biomechanical expert from testifying
about the cause of Stokman’s fall on the basis that the jury could watch the
video and interpret it without expert opinion. Each party listed the video on
its exhibit list for trial, and defendants referenced the video during voir dire.
4
“[Y]ou’re going to see a video in this case,” counsel for TKE told the jury
during his mini-opening.
On Tuesday afternoon, defendants objected to Stokman’s plan to play
slowed and zoomed versions of the video during her opening statement, and
Stokman agreed to omit the altered videos unless she could lay a foundation
for them. The court noted the objection was “the first I’ve heard that there’s
a problem with the videos” and asked why an objection had not been raised
earlier in motions in limine. During argument about the altered video,
defendants suggested for the first time they may object to the original video
as well.
Wednesday, January 22
The next day, the parties resumed argument about Stokman’s opening
slides, eventually returning to the issue of the original surveillance video.
The same TKE attorney who had told the jury it would see a video now
argued the video must be excluded from Stokman’s opening because it “lacks
foundation, lacks authentication, and Plaintiff has not and cannot establish
reliability.” Stokman countered that defendants had never objected to the
video before and suggested one of her witnesses, David Diouf, could lay a
foundation for it. The court excluded the video from the opening but made
clear if Stokman could lay a foundation, it could come in later.
Defendants also objected to Stokman’s failure to submit witness lists
24 hours in advance and to proposed deposition reads for two witnesses,
LaVelle Savoy, who Stokman said had passed away, and defense expert Kelly
Houlihan, who was out of the country. The court cautioned Stokman, “if you
haven’t gotten it from them in writing that they’ve agreed to something, I’d
get ready for that. They’re going to make you fight. This is going to be a
trench war, where you’re going to have to fight for every inch.” Finally,
5
around 11:40 a.m., trial proceeded with preliminary jury instructions and
opening statements.
At 3:36 p.m., Stokman designated three witnesses for the following day:
Trevor Flores, Cathy Barberio, and David Diouf.
Thursday, January 23
The next morning, the court cautioned the parties outside the presence
of the jury, “I think it’s reasonable to say that we’re behind schedule. We are
going to . . . run a tight ship on this, and . . . I’m going to come up with a plan
for how to . . . proceed forward, but expect that there’s a good chance I’m
going to impose time limits and things like that.” The court also noted its
“hope that all the exhibits have been provided to the clerk in a way that the
Court can use, and that you’ve exchanged whatever you need to exchange in
advance. Because most of this should be handled . . . not on the jury’s time,
but between y’all.” This prompted Stokman’s counsel to comment he was
“used to stipulations on things that are absolutely provable” and had been
“scrambling” to lay foundation in response to defendants’ objections. The
court emphasized defendants “want you to lay that foundation . . . which they
are entitled to do,” while also making clear it was “hoping that the parties
would be able to meet and confer and stipulate to” the admission of the video
because “it would be helpful for the jury to see.”
Trial then began about an hour after the jury’s reporting time.
Stokman called her first two witnesses, Flores and Barberio. Each defendant
cross-examined each witness. A third witness, Diouf, who lived in Denver,
was present and agreed to return the following week to testify since there
was not enough time Thursday to address defendants’ objections and
complete his testimony.
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After the jury was dismissed for the day, the parties again returned to
the admissibility of the surveillance video. Stokman admitted she had not
listed a witness to authenticate the video because she “fully expected
professional courtesies in allowing this in without [a foundation].” Contrary
to her prior representations, Stokman announced Diouf would not
authenticate the video and sought the court’s leave to call a previously
undisclosed witness, county employee Michael Nance, to do so. Defendants
objected and the court declined to rule that day.
Friday, January 24
Friday was not a scheduled trial day. That afternoon, Stokman
identified five witnesses for the following Monday: Nance plus Dr. Kristen
Steenerson, Berenice Rodriguez, and deposition reads for Savoy and
Houlihan. About an hour later, at 4:39 p.m., concerned that she would not
have enough witnesses to fill the day, Stokman added herself to the witness
list for Monday.
Saturday, January 25 – Monday, January 27
On Sunday, January 26, Stokman identified four witnesses for
Tuesday, January 28—apparently forgetting a juror had identified conflicts
that day during voir dire, and the court had promised to accommodate them.
The identified witnesses were biomechanics expert Rajeev Kelkar, Ph.D.,
TKE employee James Crume, and Cushman employees Chante Pierce and
Beena Standig.
Over the weekend, defendants objected to the testimony of Nance based
on the court’s prior ruling that undisclosed witnesses could not testify during
a party’s case in chief.
On the morning of Monday, January 27, the court took up defendants’
objections to Nance. Stokman argued her failure to list a witness to
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authenticate the video was “pure inadvertence,” stressed there was no
prejudice since all sides had listed the video as an exhibit, and urged the
court to allow Nance’s testimony in the interest of justice. The court imposed
sanctions on Stokman’s counsel but tentatively decided to allow Nance to
testify, subject to defendants’ deposition of him the following day, when trial
was “dark” to accommodate the juror conflict. The court cautioned Stokman
that it would not allow another substitution if Nance could not authenticate
the video.
The jury was then brought in at 10:25 a.m., about two hours after its
reporting time. Stokman proceeded with her next two witnesses, each of
whom defendants cross-examined. After the court excused the jury for the
day, one of the jurors advised the court, “we as a jury have become a bit
frustrated with the delays every morning, and we would really appreciate
whatever you guys can do to make a better use of our time.”
The parties then discussed scheduling with the court, including for two
Cushman witnesses Stokman intended to call. One of the Cushman
witnesses, Pierce, was scheduled for a double hip replacement and so planned
to appear remotely, and the other, Standig, was elderly and had recently
been in a serious car accident requiring hospitalization and strong pain
medication. Cushman suggested it would have more information about
Standig’s condition on Wednesday and offered several options for her
testimony, including a deposition read, given the uncertainty around her
condition. Both Stokman and defendants noted they were still waiting for
the scheduling of a hearing under Evidence Code section 402 for Fagan,
Stokman’s elevator expert. The court then set that hearing for Wednesday at
2:30 p.m.
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Tuesday, January 28
Defendants deposed Nance on Tuesday, January 28. That morning,
Stokman also identified seven witnesses for Wednesday, January 29: Nance,
Kelkar, Crume, Pierce, Standig, optometrist Andrea Melendez, and Savoy’s
deposition read. Later that afternoon, she revised the witness list to omit
Nance and Kelkar and to shift Standig to be a deposition read to
accommodate the witness’s health condition. Tuesday night, Stokman listed
three witnesses for Thursday, January 30: Nance, Diouf (returning from
Denver), and Dr. Cassie Spalding-Dias, her physical medicine and
rehabilitation expert.
Wednesday, January 29
On Wednesday morning, the court began the day by noting defendants’
objection to Stokman’s frequent changes to witness lists. The court also
cautioned the parties that it wanted “the jury in here to start hearing
evidence because we heard from them as they left on . . . Monday, they’re not
happy. . . . So we need to keep things moving along.”
The parties then argued defendants’ objection to Nance testifying. The
deposition revealed Stokman had obtained a copy of the surveillance video
informally—that is, not by subpoena or through typical county procedures—
and while Nance could authenticate the video of the incident stored on his
computer, he could not authenticate the version the parties had been using
throughout the litigation. Stokman argued the videos were the same and
urged the court to compare them, but the court declined to do so without a
technical analysis. The court then excluded the video and barred Nance from
testifying.
Stokman then alleged TKE unilaterally refused to produce one of its
witnesses, Crume, on Wednesday, as Stokman had requested on Monday.
9
TKE disputed Stokman’s account, pointing out Stokman had subpoenaed
Crume for Tuesday—when trial was “dark”—and Stokman had refused to
confirm her desired timing when TKE asked on Monday, so Crume would not
testify until Thursday morning. Stokman then proposed reading Savoy’s
deposition that day, and defendants responded the court had yet to rule on
their substantive objections to Stokman’s designations of Savoy’s deposition.
At about 9:45 a.m., an hour and fifteen minutes after the jury’s
reporting time, the jury entered the courtroom. Stokman admitted she was
unable to call a witness, and defendants moved to dismiss the case with
prejudice. Stokman attempted to call herself, but defendants objected
because she was not disclosed as a witness for that day. Stokman then
notified the court Dr. Melendez was entering the courthouse, and the court
allowed a 15-minute delay for Dr. Melendez to arrive, commenting, “I’m going
to hold off on dismissing the case at this point.” TKE asked, “Prior to that,
Your Honor, was the Court’s inclination to do so?” and the court responded, “I
am getting there.”
Defendants moved to dismiss several times more before Dr. Melendez
arrived. Dr. Melendez took the stand at 9:57 a.m. Apparently sensing the
court’s inclination to grant their motion if Stokman was unable to call her
next witness, defendants stipulated to Dr. Melendez’s qualification as an
expert and then all declined to cross-examine her, effectively shortening her
time on the stand. Dr. Melendez was excused at 10:24 a.m.
Defendants again renewed their motion to dismiss, and the court held a
conference outside the jury’s presence. Defendants argued it was 10:27 a.m.
and the next witness, Cushman employee Pierce, was not scheduled to
appear by Zoom until 11 a.m. They argued defendants were prejudiced by
the jury’s frustration with delays. Stokman responded she had scheduled
10
Pierce at 11 a.m. as a courtesy so Pierce would not need to stand by—a time
estimate that would have been reasonable had defendants cross-examined
Dr. Melendez as they had every other witness. Stokman also renewed the
suggestion that Stokman herself could take the stand.
In response to Stokman’s argument that the delays were not her fault,
the court observed, “some of this has been your fault.” “[W]e’ve wasted a lot
of time here because you did not have your case prepared.” The court went
on to express frustration with the longwindedness of both TKE’s and
Stokman’s counsel and to muse that “[t]here are things in hindsight that
maybe I could have done better in this case.” It also acknowledged “the idea
of dismissing the case at this point in a trial is an extraordinary thing. It’s
not something that would ordinarily happen. [¶] This is why I’ve been trying
to avoid it, and I don’t really like the idea of doing it, but I also don’t like the
idea of the fact that we’re dragging these folks in here every single day and
we’re having to go through this.” The court added, “we’re going to lose the
jury in a few days.” It then commented, “There’s no way this trial would
finish. I was debating whether to do a mistrial or just dismiss.”
At 10:54 a.m.—six minutes before Pierce was scheduled to appear—the
court granted defendants’ motion to dismiss with prejudice, then excused the
jury.
The court entered judgment for defendants on February 6, 2025.
Stokman timely appealed.
DISCUSSION
We review de novo the scope of a trial court’s legal authority to dismiss
a case with prejudice. (See Estrada v. Royalty Carpet Mills, Inc. (2024) 15
Cal.5th 582, 597–598, 601–605 (Estrada) [analyzing scope of authority as
matter of law]; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155
11
Cal.App.4th 736, 757–765 (Slesinger) [same], disapproved on other ground in
City of Los Angeles v. PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46, 73,
fn. 5 (PricewaterhouseCoopers).) Where a court has authority to dismiss, we
review its exercise of that authority for abuse of discretion, viewing the
record in the light most favorable to the court’s ruling and drawing all
reasonable inferences in support of it. (See, e.g., Lopez v. Watchtower Bible &
Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez);
Slesinger, supra, 155 Cal.App.4th at p. 765.)
“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 central to having his or her day in court.” (Elkins v.
Superior Court (2007) 41 Cal.4th 1337, 1357 (Elkins).) “ ‘Subject to such
obvious qualifications as the court’s power to restrict cumulative and rebuttal
evidence . . . , and to exclude unduly prejudicial matter [citation], denial of
this fundamental right is almost always considered reversible error.’ ” (Ibid.;
see also In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291
[reversible error for court to abruptly end trial midway through a witness’s
testimony during the appellant’s case in chief]; California Crane School, Inc.
v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th
12, 22–23 (California Crane) [“Denying a party the right to testify or offer
evidence deprives him of a fair trial and constitutes reversible error”).]
Because a sanction of dismissal “eliminates a party’s fundamental right
to a trial, thus implicating due process rights” (Lopez, supra, 246 Cal.App.4th
at p. 604), “courts have long recognized a policy favoring a trial on the
merits.” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916 (Lyons); see also
Karras v. Western Title Ins. Co. (1969) 270 Cal.App.2d 753, 758.) The
preference for resolution on the merits generally outweighs policies that seek
12
to prevent unreasonable litigation delays, including those codified in the
dismissal statutes. (Elkins, supra, 41 Cal.4th at p. 1365; Lyons, supra, 42
Cal.3d at p. 916; Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Oliveros
v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395; see also Code
Civ. Proc., § 583.1301 [“the policy favoring trial or other disposition of an
action on the merits [is] generally to be preferred over the policy that requires
dismissal for failure to proceed with reasonable diligence”].)
The Code of Civil Procedure provides for involuntary dismissal in
specific circumstances, such as for certain defined instances of delay in
prosecution (§ 581, subd. (b)(4)), or when a party fails to appear for trial
(§ 581, subd. (b)(5)). It also allows terminating sanctions for misuse of the
discovery process, defined to include actions such as refusing to respond to
discovery. (See PricewaterhouseCoopers, supra, 17 Cal.5th at pp. 61–62.)
The statutory bases for dismissal are not exclusive. (§ 581, subd. (m).)
Courts also possess inherent authority to dismiss with prejudice, but our
Supreme Court repeatedly has emphasized this inherent authority is
“ ‘tightly circumscribed.’ ” (Estrada, supra, 15 Cal.5th at p. 601, quoting
Lyons, supra, 42 Cal.3d at p. 916.) In Lyons, for example, the Court
explained trial courts’ “inherent discretionary power to dismiss claims with
prejudice . . . has in the past been confined to two types of situations: (1) the
plaintiff has failed to prosecute diligently,” now codified in section 583.410,
“or (2) the complaint has been shown to be ‘fictitious or [a] sham’ such that
the plaintiff has no valid cause of action.” (Lyons, supra, 42 Cal.3d at p. 915.)
More recently, in Estrada, the Court rejected a contention that trial
courts possess broad inherent authority to strike claims to preserve judicial
1All undesignated statutory references are to the Code of Civil
Procedure.
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resources and to “ ‘prevent trials from becoming excessively complex and
time-consuming.’ ” (Estrada, supra, 15 Cal.5th at p. 601.) Instead, it
reiterated “trial courts possess only a narrow inherent authority to dismiss
claims based on limited circumstances . . . (e.g., cases involving a failure to
prosecute, frivolous claims, or egregious misconduct).” (Id. at p. 602; see also
Garcia v. McCutchen (1997) 16 Cal.4th 469, 478–482 (Garcia) [trial court
lacks authority to dismiss as sanction for counsel’s failure to comply with
local rules implementing the 1990 Trial Court Delay Reduction Act].)
No party contends the mid-trial dismissal here was granted pursuant
to statute. That leaves the court’s narrow inherent authority. (See Estrada,
supra, 15 Cal.5th at pp. 601–602.) Defendants’ motions and the court’s
comments suggest the driving consideration in dismissing the case was time
management: Stokman was unable immediately to call a witness, the jury
was frustrated with delays, and the trial was unlikely to finish within the
parties’ time estimate. On appeal, defendants advance another ground never
invoked before the trial court: deliberate and egregious misconduct. We
consider each in turn, and we conclude neither supports dismissal in this
case.
Turning first to the ground cited at trial, courts do have an obligation
to manage trials efficiently, and they have a range of tools at their disposal to
perform this task, including the imposition of time limits. (See California
Crane, supra, 226 Cal.App.4th at pp. 19–23; see also People v. ConAgra
Grocery Products Co. (2017) 17 Cal.App.5th 51, 148–151.) A party’s inability
to call a witness, a trial running behind schedule, or the potential loss of a
jury may be grounds for stricter management by the court, including for
imposing sanctions or even declaring a mistrial, depending on the
circumstances. (See Garcia, supra, 16 Cal.4th at pp. 480–481 [identifying
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sanctions as tool for calendar control]; California Crane, supra, 226
Cal.App.4th at pp. 19–20 [discussing court’s obligation to manage trial time
and identifying a trial going dark due to lack of witnesses as “an example of
an unwarranted delay”]; Blumenthal v. Superior Court (2006) 137
Cal.App.4th 672, 684 [suggesting mistrial may be appropriate if trial length
doubles time estimate].)
But case law makes clear that “efficiency is not an end in itself. Delay
reduction and calendar management are required for a purpose: to promote
the just resolution of cases on their merits.” (Elkins, supra, 41 Cal.4th at
p. 1365.) “[D]ismissal is always a drastic remedy to be employed only in the
rarest of circumstances.” (Slesinger, supra, 155 Cal.App.4th at p. 764.) A
trial running behind schedule is not one of those rare circumstances
supporting dismissal with prejudice. (See Estrada, supra, 15 Cal.5th at
pp. 601–602 & fn. 13; see also Garcia, supra, 16 Cal.4th at pp. 479–481
[declining to prioritize a dismissal sanction designed to reduce trial court
delays over court’s obligation to decide cases on the merits].)
Our colleagues in the Fourth District recently addressed a similar
question. In In re Marriage of G.E. and I.D. (2026) 121 Cal.App.5th 1103,
G.E. petitioned for a domestic violence restraining order (DVRO).
“Notwithstanding . . . troubling evidence of domestic violence, the court . . .
summarily dismissed the DVRO petition, without addressing its merits, . . .
because both parties did not fully complete the presentation of their cases
within the two court days allotted to them for the DVRO hearing.” (Id. at
p. 1109.) The Fourth District acknowledged a trial court’s inherent authority
to control proceedings, but it reasoned the court “did not merely regulate the
proceedings before it by excluding or limiting the admission of cumulative or
marginally relevant evidence.” (Id. at p. 1120.) “Nor did it impose and
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enforce time restrictions . . . , which it could have done by providing clear
time limitations at the outset, adjusting those time limitations as needed
considering the realities of trial, and barring the parties from introducing
additional evidence after the time limitations expired.” (Ibid.) “Instead, the
court dismissed the DVRO petition altogether without issuing any decision on
the merits of the petition,” which “undoubtedly exceeded the bounds of [the
court’s] inherent authority to control the case before it.” (Ibid.)
We reach the same conclusion here. The only basis cited by the court or
the parties at trial—time management—does not support discretionary
dismissal with prejudice. We thus turn to the ground defendants defend on
appeal: “ ‘deliberate and egregious misconduct.’ ”
At the outset, we note Stokman objects to defendants’ invocation of “a
ruling never made, on a motion never brought, on a ground never asserted.”
Without disagreeing, we reject defendants’ argument for a more fundamental
reason: the record does not support this characterization of Stokman’s
conduct.
“[W]hen the plaintiff has engaged in misconduct during the course of
the litigation that is deliberate, that is egregious, and that renders any
remedy short of dismissal inadequate to preserve the fairness of the trial, the
trial court has the inherent power to dismiss the action.” (Slesinger, supra,
155 Cal.App.4th at p. 764; see also Estrada, supra, 15 Cal.5th at p. 602
[identifying “egregious misconduct” as ground for dismissal with prejudice].)
In Slesinger, for example, the Second District affirmed the trial court’s
dismissal as a sanction for pervasive misconduct including a private
investigator’s trespass and theft of confidential documents from multiple
offices of the defendant and the plaintiff’s intentional alteration of stolen
16
documents with intent to mislead. (Slesinger, supra, 155 Cal.App.4th at
pp. 756, 767–772, 777.)
In Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43 (Osborne),
the only other case defendants cite involving dismissal for deliberate and
egregious misconduct, the plaintiff repeatedly, intentionally violated court
orders, resulting in prejudicial testimony before the jury. (Id. at pp. 47–50,
52–54.) Specifically, after the court’s rulings in limine made clear the
plaintiff was not to testify she knew which company supplied the hay bale
that caused her injury, her counsel repeatedly referred to excluded material
in his opening statement and asked the plaintiff questions calling for
excluded information. (Id. at pp. 46–49.) The court instructed plaintiff’s
counsel to stop violating its orders, even warning of the potential for a
mistrial (id. at p. 48), but counsel persisted, eventually soliciting testimony
from the plaintiff that the faulty hay bale came from one of the defendants—
testimony squarely precluded by the court’s orders. (Id. at pp. 49–50.) The
trial court dismissed the case as a sanction against plaintiff and her counsel
“ ‘for flagrant and repeated violations of the Court’s order.’ ” (Id. at p. 50.)
Defendants contend Stokman’s conduct at trial was sufficiently
deliberate and egregious to justify dismissal, pointing to her tendency to
disclose witnesses beyond the 24-hour deadline, her attempt to call an
undisclosed witness (Nance), and her general failure to prepare her case for
trial. These transgressions are not the type of deliberate, egregious, and
prejudicial misconduct that would support the drastic sanction of dismissal
mid-trial. These acts bear no resemblance to the trespass, theft and
manipulation of documents, or intentional subversion of in limine rulings
before a jury at issue in Slesinger and Osborne. (See Osborne, supra, 247
Cal.App.4th at pp. 47–50, 52–54; Slesinger, supra, 155 Cal.App.4th at
17
pp. 756, 767–772.) Rather, they are examples of counsel’s shambolic response
to defendants’ unexpected and late-breaking success in getting plaintiff’s
foundational video exhibit excluded, an exhibit that defendants themselves
had vouched for before the court and promoted to the jury. Defendants point
to no substantial evidence that the fairness of their trial was irreparably
jeopardized, as required to support dismissal on this ground. (See Slesinger,
supra, 155 Cal.App.4th at p. 764.) It was Stokman, not defendants, whose
merits case was potentially weakened by her counsel’s shortcomings. To the
extent defendants were required to expend time and effort to respond to
Stokman’s actions, such as by briefing objections to undisclosed witnesses,
the court already awarded sanctions to compensate them, and it had other
tools at its disposal to manage the speed of trial. (See California Crane,
supra, 226 Cal.App.4th at pp. 19–20.) In sum, the record before us does not
support dismissal for deliberate and egregious misconduct, even if the trial
court were to have attempted to ground its ruling on this theory.
Finally, defendants contend any error dismissing the case was
harmless because Stokman admitted the exclusion of the surveillance video
would be “ ‘case-ending’ ” during argument before the trial court, and she
does not challenge that exclusion on appeal. We disagree. While Stokman
did refer to the exclusion of the video as “ ‘case-ending,’ ” we view her
comment as rhetoric meant to convey the gravity of the issue, not as a
binding concession. Indeed, after the exclusion ruling, she went on to take
Dr. Melendez’s testimony and clearly intended to proceed with her case
rather than dismiss it. Stokman’s own testimony about the incident may
have sufficed to send the issue to the jury, and the court’s abrupt dismissal
mid-trial deprived her of her chance to testify. The error was prejudicial.
(See Elkins, supra, 41 Cal.4th at p. 1357.)
18
DISPOSITION
The judgment is reversed and the case is remanded for a new trial.2
Stokman shall recover costs on appeal.
TUCHER, P. J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
Stokman v. Vertical Ventures Capital et al. (A173017)
2 We note that Stokman would be entitled to exercise a peremptory
challenge should the case be reassigned to the same judge on remand. (See
Code Civ. Proc., § 170.6, subd. (a)(2); Geddes v. Superior Court (2005) 126
Cal.App.4th 417, 423–424.)
19