Filed 8/2/24 Tovella v. Megarit CA4/3

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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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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RON TOVELLA,

 Plaintiff and Respondent,

v.

MICHAEL MEGARIT,

 Defendant and Appellant.

 G061468

 (Super. Ct. No. 30-2018-00965245)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Richard Y. Lee, Judge. Reversed and remanded.

John L. Dodd & Associates and John L. Dodd for Defendant and 

Appellant.

RMO and Sean D. Muntz and Phillip J. Szachowicz for Plaintiff 

and Respondent.

* * *
2

Michael Megarit appeals from a default judgment entered in 

favor of Ron Tovella. Megarit contends the default judgment must be vacated 

because the court erred in striking his answer. We agree. We therefore 

reverse the judgment with instructions to vacate the orders entering default 

and striking the answer.

FACTS

Tovella filed a complaint against Megarit alleging causes of 

action including for breach of contract, fraud, conversion, and unjust 

enrichment. Megarit filed an answer. Following discovery, Tovella filed a 

motion to compel interrogatory responses; he also sought monetary sanctions.

The court granted the discovery motion but denied the request for sanctions 

on procedural grounds. When he received no further discovery responses, 

Tovella filed a motion to strike Megarit’s answer and enter his default. 

Tovella again requested monetary sanctions. The court granted the motion

and ordered Megarit to pay sanctions and provide discovery responses.1

The trial court ordered a mandatory settlement conference;

Megarit did not appear. The court calendared an order to show cause (OSC)

regarding whether it should strike Megarit’s answer. The order stated,

“[f]ailure to appear at the [OSC] . . . will result in sanctions including striking 

the answer and possible entry of default.” Megarit again failed to appear at 

1 On appeal, Megarit contends the court then struck his answer 

and entered his default. In the trial court he asserted the court did not enter 

his default until after a later mandatory settlement conference. Megarit 

cannot take a different position on appeal. (In re Marriage of Eben-King 

& King (2000) 80 Cal.App.4th 92, 110–111.) Accordingly, we assume for 

purposes of this appeal that the court did not strike his answer as a discovery 

sanction.
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the OSC. The court then struck Megarit’s answer, and the court clerk 

entered his default on May 26, 2020. The court later entered a default 

judgment against Megarit.

DISCUSSION

Megarit claims the court erred in striking his answer and

entering his default as a sanction for his failure to attend the mandatory 

settlement conference. We agree. As Tovella correctly points out, the court 

has the discretion to issue a terminating sanction for a party’s failure to 

appear at a mandatory settlement conference. (Super. Ct. Orange County, 

Local Rules, rules 316 & 381.) On appeal, we decide whether the court 

abused its discretion. (Ellerbee v. County of Los Angeles (2010) 

187 Cal.App.4th 1206, 1217.) 

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. (Del Junco v. Hufnagel (2007) 

150 Cal.App.4th 789, 799.)

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. Accordingly, 

based on the record before us we find the court abused its discretion in 

striking the answer; the subsequent default and default judgment must 

therefore be vacated.

2

 (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863.)

2 Megarit raises other grounds for reversing the default and 
4

DISPOSITION

We reverse the judgment and instruct the trial court to vacate 

the orders entering Megarit’s default and striking Megarit’s answer. Megarit 

shall recover his costs incurred on appeal.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.

default judgment. Because we hold the court erred in striking the answer, 

Megarit’s remaining contentions are moot.