Harber v. Williams (In re A.H.)
| Docket Number | E077036 |
| Decision Date | 12 September 2022 |
| Citation | 83 Cal.App.5th 155,299 Cal.Rptr.3d 307 |
| Parties | GUARDIANSHIP OF A.H. et al., Minors. Elouise Harber, Petitioner and Appellant, v. Delores Williams, Petitioner and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Law Offices of Valerie Ross and Valerie Ross, Victorville, for Petitioner and Appellant.
Delores Williams, in pro. per., for Petitioner and Respondent.
No appearance for minors.
Elouise Harber and Delores Williams filed cross-petitions to be appointed as guardians of two children. The trial court ordered them to exchange lists of the witnesses they intended to call, specifically including party witnesses; it also specifically ordered that they would not be permitted to call a witness who was not on their lists. Harber failed to exchange a witness list. When the case was called for trial, her counsel explained that her only witness was Harber herself, and that counsel mistakenly believed that the pretrial order did not require her to list party witnesses. Pursuant to its pretrial order, the trial court dismissed Harber's petition and granted Williams's petition.
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
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.
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, 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.
Unpublished Text Follows
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
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: " ( § 217, subd (c), italics added.)
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, 230 Cal.Rptr.3d 614 [].) 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
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.
( Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357, 63 Cal.Rptr.3d 483, 163 P.3d 160.)
At the same time, however, " ... "... ’ ( Elkins v. Superior Court, supra , 41 Cal.4th at p. 1351, 63 Cal.Rptr.3d 483, 163 P.3d 160.) ( Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147, 78 Cal.Rptr.2d 488.)
The trial court's inherent power ( Elkins v. Superior Court, supra , 41 Cal.4th at pp. 1357-1358, 63 Cal.Rptr.3d 483, 163 P.3d 160, 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 evidence ...." ( Elkins v. Superior Court, supra , 41 Cal.4th at pp. 1357-1358, 63 Cal.Rptr.3d 483, 163 P.3d 160, 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, 78 Cal.Rptr.2d 488.) ( Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 988, 253 Cal.Rptr.3d 626.)
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.
( Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271, 195 Cal.Rptr.3d 868 ; see...
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