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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

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 d efault j udgment must be vacated

because the court erred in striking his answer

. W e agree

. W e 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 i nterrogatory responses ; he also sought monetary sanctions

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

on procedural grounds. When he r eceiv ed 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 )

re garding wh ether 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

an d enter ed his default

. In the trial court he asserted the court did not enter

his default unti l after a later mandatory settlement conference. Megarit

cannot t ake 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.3

the OSC. T he court then struck Megarit’s answer , and t he court clerk

entered hi s 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

enter ing 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, rule s 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 sanction s 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, t here 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

.

T here 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 t he court abused its d iscretion 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 and4 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.