Metropolitan News-Enterprise


Wednesday, March 6, 2019


Page 1


Court of Appeal:

$2.5 Million Default Judgment Was Excessive Discovery Sanction

Opinion Says Los Angeles Superior Court Judge Barbara Ann Meiers Abused Discretion in Penalizing Man Who Failed to Appear at Deposition Through Mix-Up


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed a default judgment for more than $2.5 million based on the defendant’s failure to produce documents and to show up for a fourth day of his deposition.

Div. Two, in an unpublished opinion by Acting Presiding Justice Judith Ashmann-Gerst, reversed the judgment by Los Angeles Superior Court Judge Barbara Ann Meiers, declaring:

“Based on the totality of the circumstances, we conclude that the trial court abused its discretion.”

The circumstances included the defendant, John Bral, having appeared for three days of his deposition. An agreement was made on the third day by his then-counsel, Lloyd K. Chapman, and counsel for plaintiff Barry A. Beitler to continue the deposition pending further production of documents by Bral.

The deposition was re-set, by court order, for June 22, 2016, but Bral did not show up. However, no one had told him of the deposition being scheduled.

Lawyer’s Declaration

Chapman, who had substituted out—leaving Bral represented by the firm of Samini Scheinberg, PC —explained in a declaration:

“Because I was now out of the case, I did not calendar the [new deposition date]. I was hospitalized at this time and did not see the court’s minute order nor an email from attorney Matthew Hoesly of the Samini firm stating that he presumed that I would be handling the deposition. No one informed Mr. Bral of the newly ordered deposition.”

At a hearing on Aug. 22, 2016, attorney John Whelan of the Samini firm explained to Meier:

“My office made an error and did not coordinate and did not appear with Mr. Bral on June 22.”

He insisted there was not willfulness on the part of Bral, and that the documents had been provided. The judge responded:

“If Mr. Bral was not willful and has his reasons and his excuses, I would expect to hear it from him.”

Orders Answer Stricken

Meier ordered that Bral’s answer be stricken and that the matter proceed as a default. Explaining the reversal of the subsequent judgment for $2,514,631—damages of $1,765,202 plus $749,429 in prejudgment interest—Ashmann-Gerst said:

“The foregoing indicated that Bral’s failure to appear for his deposition and produce documents on June 22, 2016, was the fault of his attorneys, that he did not willfully disobey the trial court’s discovery orders, and that he was committed to giving Beitler discovery. Notably, Beitler’s counsel did not dispute that documents had been produced or that Bral had been made available for his deposition. Rather, Beitler’s counsel merely stated that neither of those things was confirmed by anything in the record. That was not the same thing as a denial of Whelan’s claims. Moreover, the trial court did not make a finding that a less severe sanction would be futile. Nor did the trial court find that Bral had acted in willful violation of a discovery order or that Beitler had suffered detriment that could not be ameliorated. Rather, the trial court essentially punished Bral for failing to file a declaration.”

Chapman’s Illness

The jurist observed that mix-ups had been the result of Chapman’s illness, remarking:

“Thus, there was tragedy rather than willfulness behind Bral’s failures.”

(Although not reflected in the opinion, Chapman has died.)

The case is Beitler v. Bral, B279951.

Attorneys on appeal were Ronald S. Hodges, Gary A. Pemberton, Alan J. Friedman, and Brianna L. Frazier of Shulman Hodges & Bastian for Bral and Tom Lallas and Mark D. Hurwitz of Levy, Small & Lallas for Beitler.


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