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Appeals Court Affirms Injury Suit's Dismissal Over Misbehaving Atty

May 2, 2016 – Law360

Law360, Los Angeles (May 2, 2016, 8:53 PM ET) -- A California appeals court on Monday said a trial judge properly dismissed a personal injury suit brought by a stable worker against hale bay suppliers over injuries sustained in a fall, saying the woman’s attorney “repeatedly disregarded” the court’s orders and warranted the sanction.

 Christine Osborne fell from a bale of hay 11 feet off the ground while climbing on a stack as she was working at the Ojai Valley School in California in May 2010. A three-judge Second Appellate District panel Monday said her attorney, Glenn A. Murphy, disobeyed the trial court judge’s repeated warnings not to elicit opinions from his client regarding who delivered bales or have her offer hearsay testimony during trial on what deliverymen said about where the hay came from.

“An attorney is an officer of the court. He or she must respect and follow court orders whether they are right or wrong,” the panel said, affirming the lower court's dismissal. “These time honored rules were lost upon counsel.”

The underlying suit relates to claims Osborne brought against hale bay manufacturer Todd Farm Service and supply company Berrington Custom Hay Stacking and Transport Inc. and its owners. Osborne, a horse stable maintenance worker, claims that Todd Farm, which delivered the shipment of hay to the school, received defectively arranged bales from Nevada-based Berrington.

 Since Todd Farm kept no record of which company supplied which of its hay bales and which bales were delivered to any particular customer, the origin of the bale involved in Osborne’s fall was unknown.

 The trouble for Osborne began ahead of her jury trial, when her attorney, Murphy, did not designate expert witnesses on time, according to the appellate ruling. Todd Farm and Berrington then moved to prevent Osborne from testifying that she thought Berrington was the source of the hay based on the hay’s color and texture or, for that matter, testifying about anything Todd Farm delivery workers may have told her about the origin of the hay before her accident.

 Ventura County Superior Court Judge Vincent J. O’Neill granted both of these motions in limine and ruled that testimony about the origin of the hay bale at issue was inadmissible.

 Yet Murphy "disregarded these admonitions in his opening statement,” telling jurors the hay bale at issue was supplied by Berrington, that his client would testify based on its appearance and her expertise that the bale came from Berrington since she knew the school’s horses “loved the Berrington hay” and because she “saw a delivery receipt” indicating as much, the appeals panel said.

 Lawyers for Todd Farm and Berrington objected, and Judge O’Neill gave Murphy a warning.

 At one point at trial, Judge O'Neill told Murphy he was “flirting with [a mistrial]” if he continued to violate the ruling or make further mention of a supposed receipt Osborne had for the bale of hay.

 Nevertheless, Murphy asked his client five times on direct examination whether her supervisor told her where the hay bale deliveries came from, which prompted further objections that the judge sustained.

 During trial recesses, Murphy continued to object to the court’s motions in limine, but the trial judge refused to revise his order.

 The final straw was when Murphy asked Osborne on redirect where the bay of hale she was moving when the twine broke apart came from and she replied, “Berrington.”

Judge O’Neill then excused the jury, told Murphy he demonstrated “flagrant, flagrant misconduct” in violation of the court’s “repeated rulings” and ordered the case dismissed with prejudice as a sanction, according to the appellate court.

 On appeal, Osborne argued that the trial court issued a “hasty” dismissal and abused its discretion through the pretrial orders which, she argued, excluded all evidence needed to prove an essential element of her causes of action to render it a “nonsuit.”

But on Monday the appeals court disagreed, saying Osborne could have avoided violating the judge’s order by questioning Todd Farm about the quantity of hay purchased from suppliers and its storage practices, record keeping and delivery practices.

 It said that her counsel “repeatedly disregarded the trial court’s orders” and that this misconduct was “unduly prejudicial” to both Todd Farm and Berrington and attempted to give jurors the impression that the manufacturers were hiding the truth behind the origin of the improperly packaged bale of hay.

 The panel said it was proper to exclude Osborne’s hearsay testimony because there was no evidence the Todd delivery people were authorized by Todd to make statements on its behalf and that any receipt Osborne has must be authenticated before it could be admitted into evidence.

“Trial courts have inherent authority to control the proceedings before them,” the panel said. “This includes the authority to impose a terminating sanction where a party willfully violates the court’s orders.”

Representatives for the parties couldn’t immediately be reached for comment Monday.

 Justices Kenneth Yegan, Arthur Gilbert and Steven Z. Perren sat on the panel for the Second Appellate District.

 Osborne is represented by Glenn A. Murphy.

 Todd Farm Service is represented by Paul B. Blatz of Blatz Law Firm.

 Berrington Custom Haystacking & Transport is represented by James J. Yukevich, Cristina M. Cimineli and Patrick J. Cimmarusti of Yukevich Cavanaugh.

 Gary Berrington and Phyllis Berrington are represented by Robert E. Henke of Diederich & Associates.

 The case is Rebecca Osborne v. Todd Farm Service et al., case number B260280, in the Court of Appeal of the State of California, Second Appellate District.

The written opinion can be viewed here:

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