Tawansy v. RIF Investments-3, LLC CA2/2 ( 2020 )

Filed 10/1/20 Tawansy v. RIF Investments-3, LLC CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
KHALED TAWANSY, B295427
Plaintiff, Cross-defendant (Los Angeles County
and Appellant, Super. Ct. No. BC605613)
v.
RIF INVESTMENTS-3, LLC et
al.,
Defendants, Cross-
complainants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed in part, and
construed as a writ petition and denied in part.
Papazian Law, and Armen F. Papazian for Plaintiff, Cross-
defendant and Appellant.
Law Offices of Saul Reiss, Saul Reiss, and Fay Pugh for
Defendants, Cross-complainants and Respondents.
******
A trial court dismissed a plaintiff’s complaint, struck his
answer to a cross-complaint, and entered a default on the cross-
complaint after he (1) ignored a court order compelling discovery,
(2) prepared none of the mandatory pretrial filings, and (3) did
not attend the final status conference a week before trial. The
plaintiff was representing himself at the time of these events, as
his prior counsel had been relieved several months earlier. The
trial court subsequently denied the plaintiff’s motion to set aside
its order dismissing the complaint, striking the answer to the
cross-complaint and entering a default on the cross-complaint.
Plaintiff appeals the denial of his motion to set aside. We
conclude that the trial court did not abuse its discretion in
declining to set aside its order. We further conclude that we do
not have jurisdiction to entertain the portion of plaintiff’s appeal,
as to one of the opposing parties, challenging the court’s refusal
to set aside the order striking his answer to, and entering a
default on, the cross-complaint because a default judgment on the
cross-complaint has yet to be entered. However, we elect to
exercise our discretion to construe any non-appealable portions of
the orders as a petition for a writ because the analysis underlying
both portions of plaintiff’s appeal is identical. Accordingly, we
affirm in part and deny the writ petition in part.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
This case involves a mixed-used real estate development in
what was once the historic Raymond Theater in Old Town
Pasadena, California. The development is called the Raymond
Renaissance.
2
In 2012, Khaled Tawansy (Tawansy), who is a medical
doctor, purchased three adjacent units within the development in
which to operate a surgery center.
Anxious to expand his center into additional adjacent units,
Tawansy entered into two further agreements. First, in early
2013, Tawansy—through a company called the Raymond
Renaissance Theater, LLC—entered into a five-year lease to rent
units adjacent to his center within the development from RIF
Investments-3, LLC. Tawansy personally guaranteed the lease.
Second, and also in early 2013, Tawansy allegedly entered into
an oral agreement to purchase those same units from RIF
Investments-3, LLC. RIF Investments-3’s two principals are Ron
Farhadi (Farhadi) and Joseph Ghadir (Ghadir).
In August 2015, RIF Investments-3 brought an unlawful
detainer action against Tawansy’s company for nonpayment of
rent.
II. Procedural Background
A. Operative complaints and answers
On December 31, 2015, Tawansy sued RIF Investments-3,
Farhadi and Ghadir (collectively, RIF) on the grounds that RIF
did not honor its oral agreement to sell him the units adjacent to
his surgery center. In the operative First Amended Complaint,
Tawansy sued RIF for (1) specific performance (to sell him those
units at the agreed-upon price of $2.5 million), (2) fraud (for
falsely promising to sell the units in order to get him to rent
those units), and (3) rescission of his personal guaranty of the
lease.
On February 4, 2016, RIF Investments-3 filed a cross-
complaint against Tawansy for breach of his personal guaranty of
3
the lease after Tawansy’s company declared bankruptcy to halt
the unlawful detainer action.
RIF filed an answer to Tawansy’s operative complaint, and
Tawansy filed an answer to RIF Investments-3’s cross-complaint.
B. Litigation and termination of litigation
1. Tawansy’s counsel is relieved
In February 2018, the lawyer who had been representing
Tawansy since the outset of this litigation filed a motion to be
relieved as counsel after Tawansy refused to sign a substitution
of attorney. Among other things, the lawyer’s motion and the
accompanying proposed order contained two “Notice[s] to Client”
regarding what might happen if the motion to be relieved were
granted. The first notice stated, in boldface type, that the
“[f]ailure to retain an attorney may lead to an order striking the
pleading or to the entry of a default judgment.” The second
notice stated, in boldface type, that “[i]f you do not have a new
attorney to represent you in this action or proceeding, . . . you will
be representing yourself. It will be your responsibility to comply
with all court rules and applicable laws. If you fail to do so, or
fail to appear at hearings, action may be taken against you. You
may lose your case.”
Despite being served with the lawyer’s motion to be
relieved, Tawansy did not appear at the February 28, 2018
hearing on the lawyer’s motion.
The trial court granted the motion to be relieved, and
continued the dates for the final status conference and for trial,
respectively, from dates in April 2018 to July 23, 2018, and July
30, 2018.
The lawyer served Tawansy with the trial court’s order,
albeit with some difficulty: The lawyer attempted personal
4
service at one of Tawansy’s medical offices, but Tawansy’s
receptionist refused to accept service and even refused to give her
name. The process server left the order with the receptionist and
also mailed the order to Tawansy.
2. Tawansy engages in discovery misconduct
On April 2, 2018, RIF propounded a Demand for Production
and Inspection of Documents, Set Number Two, upon Tawansy in
its capacity as the defendant in Tawansy’s lawsuit and, as to RIF
Investments-3, the cross-plaintiff in the cross-complaint. The
demand specifically sought documents related to Tawansy’s
complaint.
When Tawansy did not respond to this demand, RIF in late
May 2018 filed a motion to compel a response. Tawansy did not
oppose the motion.
On June 21, 2018, the trial court granted the motion to
compel and also ordered Tawansy to pay $1,285 in sanctions.
Both the discovery responses and the sanctions were due within
20 days.
Tawansy was served with the trial court’s order, but did not
serve the court-ordered responses or pay the sanctions by the
court’s deadline.
3. Tawansy does not file trial documents, in
violation of Los Angeles Superior Court Local Rule 3.25
Although Los Angeles Superior Court Local Rule 3.25(f)(1)
requires that litigants file their exhibit lists, jury instruction
requests, trial witness lists, and proposed statement of the case
“[a]t least five days prior to the final status conference” (Super.
Ct. L.A. County, Local Rules, rule 3.25(f)(1)), Tawansy never filed
these documents.
5
4. Tawansy does not appear at final status
conference, in violation of Los Angeles Superior Court Local Rule
3.25
Although Los Angeles Superior Court Local Rule 3.25(f)
makes attendance by a party’s lawyer or, if the party is self-
represented, the party himself, at the final status conference
mandatory (Super. Ct. L.A. County, Local Rules, rule 3.25(f)),
neither Tawansy nor a lawyer representing Tawansy appeared at
the July 23, 2018 final status conference. Instead, Tawansy sent
a non-lawyer.
The trial court issued two orders to show cause—namely,
(1) an “Order to Show Cause re Dismissal for Plaintiff’s failure to
appear” and (2) an “Order to Show Cause re Striking Answer to
Cross-Complaint/Enter Default.” Both were set for July 30, 2018.
Both orders to show cause were served on Tawansy.
5. Trial court dismisses Tawansy’s complaint and
strikes his answer to the cross-complaint
Tawansy appeared in court on July 30, 2018. The court
“hear[d] oral argument,” although we do not know the content of
that argument because it was unreported. Whatever was said
did not persuade the trial court, and the court dismissed
Tawansy’s First Amended Complaint, struck his answer to the
cross-complaint and entered a default on the cross-complaint.
The court set a default prove-up hearing for September 2018.
C. Tawansy’s motion to set aside orders of dismissal
and striking answer to cross-complaint
Seven weeks later, on September 17, 2018, Tawansy
retained a new lawyer.
Ten days later, Tawansy filed a motion to set aside the trial
court’s July 30, 2018 orders dismissing his operative complaint
6
and striking his answer to the cross-complaint.1 Based entirely
on Code of Civil Procedure section 473, subdivision (b),2 Tawansy
sought relief on the grounds of mistake and excusable neglect. In
support of the motion, Tawansy submitted a declaration in which
he asserted that (1) he labored under a mistake because the only
notice he received about the final status conference was from his
prior lawyer and that notice “did not state it was mandatory for
[him] to appear,” and (2) his absence from the final status
conference was excusable because he has had a bone infection for
some undisclosed period of time and because, on the morning of
the final status conference, he had a “diabetic episode and was in
no condition to attend.” Tawansy did not include any
documentation confirming his medical condition(s). Tawansy was
also not clear on whether his medical condition(s) precluded him
from attending, or whether they merely factored in to his decision
not to attend: At one point, he stated that he “physically could
not appear at the hearing”; elsewhere, however, he stated that “I
never would have missed a hearing I knew to be mandatory” and
alluded to the “potential consequences of [his] failure to force
[him]self to appear.”
After further briefing and a hearing, the trial court issued
an 11-page order denying Tawansy’s motion. The court found
Tawansy’s motion for relief to be “brought . . . within a reasonable
1 Tawansy had filed an ex parte motion to set aside the
court’s orders on September 19, 2018, but the trial court denied
the motion without prejudice to filing a noticed motion.
2 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
7
time” despite his “unexplained 1.5 month delay in securing new
counsel.”
The court denied relief under section 473, subdivision (b)
for two reasons. First, the court observed that Tawansy’s excuses
for not attending the final status conference were somewhat
beside the point because the court’s order dismissing Tawansy’s
operative complaint and striking his answer to RIF Investments-
3’s cross-complaint was “based on” its “distinct” “determination to
impose terminating sanctions” and Tawansy’s “fail[ure] to
persuade the Court” not to enter that order on July 30, 2018—not
merely because of Tawansy’s “absence” from the final status
conference. The court elsewhere in its order cited sections 575.2
and 2023.030 as its statutory basis for imposing terminating
sanctions, and at the hearing commented that termination was
warranted due to Tawansy’s “total failure to do what was
necessary to bring this case to trial.” Second, the court ruled
that, even if the court’s order had been based solely upon
Tawansy’s failure to appear at the final status conference, it was
unpersuaded by either of the excuses Tawansy proffered for that
failure to appear. The court rejected Tawansy’s assertion that he
did not know his attendance at the final status conference was
mandatory because the mandatory nature of attendance was set
forth in the Los Angeles Superior Court’s local rules as well as in
the court orders served upon Tawansy, and because ignorance of
the law is no excuse. The court rejected Tawansy’s assertion that
his illness prevented him from attending because his declaration
“equivocates on his ability to attend the status conference,” and
the court chose to credit those portions suggesting that he would
have “forced” himself to attend had he known attendance was
mandatory.
8
D. Notice of appeal, but without a default judgment
entered on RIF Investments-3’s cross-complaint
On January 18, 2019, Tawansy filed a notice of appeal as to
the trial court’s “Order Dismissing [Plaintiff’s] Complaint and
Order Denying CCP 473 Motion to Vacate Dismissal.”
As of the date of this opinion, the trial court had yet to
enter a default judgment on RIF Investments-3’s cross-complaint
because the court had, by that time, rejected two default prove-up
submissions by RIF Investments-3.
DISCUSSION
Tawansy argues that the trial court erred in denying his
motion to set aside its order (1) dismissing his First Amended
Complaint and (2) striking his answer to RIF Investments-3’s
cross-complaint and entering a default. We ostensibly have
jurisdiction over the first portion of Tawansy’s appeal because an
order denying relief under section 473 is appealable as a post-
judgment order if that order follows entry of judgment (e.g.,
Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61
Cal. App. 4th 1384, 1394), and an order dismissing a plaintiff’s
complaint is deemed to be a judgment if signed by the court and
filed. (§ 581d; In re Sheila B. (1993) 19 Cal. App. 4th 187, 197.)
We do not have jurisdiction over the second portion of Tawansy’s
appeal because the trial court has yet to enter a default judgment
in RIF Investments-3’s cross-action. Until there is a default
judgment, orders striking an answer, orders entering a default
(as opposed to a default judgment), and orders denying relief
under section 473 are not appealable. (Katzenstein v. Chabad v.
Poway (2015) 237 Cal. App. 4th 759, 766 [“an order striking an
answer . . . is not appealable” prior to entry of judgment];
Scognamillo v. Herrick (2003) 106 Cal. App. 4th 1139, 1146 [order
entering default not appealable]; Rappleyea v. Campbell (1994) 8
9
Cal. 4th 975, 981 (Rappleyea) (“[an] order denying [a] motion to
vacate [a] default is not independently appealable” except as part
of “an appeal from the judgment”].)3
Although at first blush this would seem to indicate that we
have jurisdiction over the entire portion of the appeal dealing
with the dismissal of Tawansy’s action, the “one final judgment”
rule dictates a different result as to Tawansy and RIF
Investments-3, between whom RIF Investments-3’s cross-action
3 Because neither party briefed this issue, we requested
supplemental briefing from the parties on the question of
whether we had jurisdiction to entertain Tawansy’s appeal of the
trial court’s order denying relief from the entry of default on the
cross-complaint. In his supplemental letter, Tawansy argued
that (1) RIF waived this issue by not raising it, and (2) we have
jurisdiction because the trial court’s entry of default was
discretionary (that is, based on Tawansy’s noncompliance with
the local rules and discovery rules) rather than ministerial, and
that the entry of default based on a discretionary decision is
appealable. We reject both arguments. As to the first, we have
an independent duty to examine the existence of our own
jurisdiction, and neither that duty nor the statutes delimiting the
scope of our jurisdiction can be waived by a party. (Olson v. Cory
(1983) 35 Cal. 3d 390, 398.) As to the second, none of the cases
Tawansy cites supports his contention that a subset of defaults
are immediately appealable even without a default judgment.
(Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32
Cal. App. 5th 166, 169 [addressing appeal of a dismissal, not a
default]; Daley v. County of Butte (1964) 227 Cal. App. 2d 380, 388-
389 [same]; Peltier v. McCloud River R.R. Co. (1995) 34
Cal. App. 4th 1809, 1813 [same]; Ryan v. Rosenfeld (2017) 3
Cal. 5th 124, 127 [addressing appeal of a motion to vacate a
judgment, not a default].) As between precedent that is not on
point and a California Supreme Court case directly on point (that
is, Rappleyea), we choose to follow the precedent on point.
10
is still pending and thus, as to whom, no part of this appeal is
final. Of course, the “one final judgment” rule does not bar the
portion of the appeal addressing the dismissal of Tawansy’s
action as to Farhadi and Ghadir because an order denying a
motion to vacate a dismissal is appealable and those two
individuals are not parties to RIF Investments-3’s cross-action.
(American National Bank v. Stanfill (1988) 205 Cal. App. 3d 1089,
1095; Sjoberg v. Hastorf (1948) 33 Cal. 2d 116, 118.) However,
because the basis for both portions of Tawansy’s appeal are
identical, we will construe any non-appealable portions of the
appeal as a petition for a writ of mandate and consider that writ
on its merits. (Olson v. Cory (1983) 35 Cal. 2d 390, 400.)
Because a party’s failure to persuade a trial court not to
enter sanctions is not itself a basis to impose sanctions, we
construe the trial court’s order dismissing Tawansy’s operative
complaint, striking his answer to RIF Investments-3’s cross-
complaint, and entering a default on that cross-complaint as
being based on the two statutory provisions the court cited and
the related factual findings it made—that is, (1) for Tawansy’s
violation of the local court rules in not making the required
pretrial filings and in not appearing at the final status
conference, in violation of section 575.2, and (2) for Tawansy’s
violation of the discovery rules in not obeying the court’s June
2018 motion to compel. (See generally Jameson v. Desta (2018) 5
Cal. 5th 594, 608-609 (Jameson) [requiring appellate courts to
“ordinarily presume” trial court orders “to be correct”].)
Tawansy argues that the court’s order is invalid for what
boil down to three reasons. First, the court was wrong to deny
him relief under section 473, subdivision (b). Second, the court
had no basis to impose sanctions under sections 575.2 or
11
2023.030 in the first place. Third, the court did not have the
authority to enter its order because the only sanction available
was to hold the trial in his absence.
I. Denial of Relief under Section 473, Subdivision (b)
Section 473, subdivision (b) grants a trial court the
discretionary authority to set aside a prior order—including an
order dismissing a complaint or striking an answer and entering
default—if the party moving to set aside that order proves, as a
threshold matter, that (1) the order was the product of the party’s
“mistake, inadvertence, surprise or excusable neglect,” and (2)
the party’s application for relief was filed “within a reasonable
time, in no case exceeding six months, after the . . . order [to be
set aside] . . . was” entered. (§ 473, subd. (b); Hopkins & Carley v.
Gens (2011) 200 Cal. App. 4th 1401, 1410 (Hopkins) [burden of
proof lies with moving party]; Gee v. Greyhound Lines, Inc. (2016)
6 Cal. App. 5th 477, 492 [order dismissing complaint may be set
aside under section 473, subdivision (b)]; Matera v. McLeod
(2006) 145 Cal. App. 4th 44, 62, 68 [order striking answer and
entering default may be set aside under section 473, subdivision
(b)].)4 Carrying this threshold burden is a “‘“daunting task.”’”
4 A trial court also has an inherent, equitable power to set
aside its prior orders for “extrinsic fraud” or “extrinsic mistake.”
(Kulchar v. Kulchar (1969) 1 Cal. 3d 467, 470-472.) That power is
not at issue in this case because (1) Tawansy did not seek relief
on this basis before the trial court and does not invoke it on
appeal, and (2) exercise of that power requires a showing that the
moving party “has a meritorious case” (Lee v. An (2008) 168
Cal. App. 4th 558, 566 (Lee)), and, as discussed below, Tawansy
cannot make this showing because his failure to file the required
pretrial documents precluded him from introducing any evidence
in his action or RIF Investments-3’s cross-action.
12
(Grappo v. McMills (2017) 11 Cal. App. 5th 996, 1006.) Once it is
carried, the trial court has “broad” “discretion” whether to
exercise its authority to set aside a prior order. (Minick v. City of
Petaluma (2016) 3 Cal. App. 5th 15, 24.) Because “[t]he general
underlying purpose of section 473(b) is to promote the
determination of actions on their merits” (Evan Zohar
Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
(2015) 61 Cal. 4th 830, 839 (Evan Zohar)), however, the moving
party who “moves promptly” in seeking relief under this section
need only produce “very slight evidence . . . to justify” the exercise
of the court’s discretion (Miller v. City of Hermosa Beach (1993)
13 Cal. App. 4th 1118, 1136; Shamblin v. Brattain (1988) 44
Cal. 3d 474, 478 (Shamblin)) and “any doubts in applying section
473 must be resolved in favor of the [moving] party” (Rogalski v.
Nabers Cadillac (1992) 11 Cal. App. 4th 816, 819-820). We review
a trial court’s denial of a section 473, subdivision (b) motion for
an abuse of discretion, and review any subsidiary factual findings
for substantial evidence. (Zamora v. Clayborn Contracting
Group, Inc. (2002) 28 Cal. 4th 249, 257-258 (Zamora); Shamblin,
at p. 479.)
In this case, the trial court did not abuse its discretion in
concluding that Tawansy had not met his threshold burden of
establishing that the court’s order was due to a “mistake” or
“excusable neglect” by Tawansy.
As pertinent to section 473, subdivision (b), a “mistake”
includes a “mistake of fact” (that is, “when a person understands
the facts to be other than they are”) or a “mistake of law” (that is,
“when a person knows the facts as they really are but has a
mistaken belief as to the legal consequences of those facts”).
(Baratti v. Baratti (1952) 109 Cal. App. 2d 917, 921.) Here,
13
Tawansy’s claim of mistake before the trial court rested entirely
on his assertion that the sole notice he received about attending
the final status conference was a written letter from his lawyer
and that the letter did not explicitly indicate that his presence at
the final status conference was mandatory. The trial court did
not err in concluding that this showing did not qualify as a
mistake. To begin, Tawansy’s showing speaks only to his failure
to appear at the final status conference, and not to his failure to
file any pretrial documents or his failure to comply with the
motion to compel. Further, his showing does not establish
“mistake” even as to his failure to appear. As the trial court
noted, the record contains evidence that Tawansy was actually,
subjectively aware of the potential consequences of not attending
the final status conference because Tawansy had been served
with his prior counsel’s motion to be relieved as counsel and the
accompanying proposed order, which explicitly warned Tawansy
that the court could “strik[e]” “pleading[s],” enter a default
judgment, or cause him to “lose [his] case” if he did not “retain an
attorney,” “comply with all court rules and applicable laws” or
“appear at hearings.” The court acted well within its discretion
in giving greater weight to service of these notices over
Tawansy’s self-serving denial of knowledge. As the trial court
also noted, Tawansy—as a self-represented litigant—was also
required to educate himself about the “court rules” and his
ensuing ignorance of the law was, as the saying goes, no excuse.
(Hopkins, supra, 200 Cal.App.4th at p. 1413 [a self-represented
litigant’s “‘alleged ignorance of legal matters . . . can hardly
constitute “mistake, inadvertence, surprise or excusable
neglect”’”]; People v. Meneses (2008) 165 Cal. App. 4th 1648, 1661
[“ignorance of the law is no excuse”].)
14
As pertinent to section 473, subdivision (b), “excusable”
“neglect” means an error that “a reasonably prudent person
under similar circumstances might have made.” (Austin v. Los
Angeles Unified School Dist. (2016) 244 Cal. App. 4th 918, 929;
Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d
270, 276.) Here, Tawansy’s claim of excusable neglect rested on
his assertion that he did not attend the final status conference
because he had had a “bone infection” for some unspecified period
of time and because he had a “diabetic episode” the morning of
the final status conference. Again, to begin, Tawansy’s showing
speaks only to his failure to appear at the final status conference,
and not to his failure to file any pretrial documents or his failure
to comply with the motion to compel. Further, his showing does
not establish “excusable neglect” even as to his failure to appear
because the trial court acted within its discretion in concluding
that Tawansy was equivocal on whether he could have attended
the final status conference notwithstanding his medical
condition: He stated that his diabetic episode meant he
“physically could not appear at the hearing,” while at the same
time stated that he “never would have missed” a “mandatory”
hearing and, in decrying his ignorance of the “potential
consequences of [his] failure to force [him]self to appear,”
suggested that he might have forced himself to come to court
despite his medical condition had he known the final status
conference was mandatory. Tawansy’s equivocation, coupled
with the lack of a doctor’s note and Tawansy’s ability to appear in
court the very next week, constitutes substantial evidence
supporting the trial court’s finding that Tawansy had not shown
excusable neglect.
15
Tawansy offers three further arguments as to why the trial
court erred in denying him relief under section 473, subdivision
(b).
First, he argues that the trial court erred in its analysis of
whether he established a “mistake” or “excusable neglect.” In
this argument, however, he effectively urges us to give greater
credit and weight to his declaration (or the portions of his
declaration he prefers) over the contrary evidence in the record.
This is beyond what we may do. (Johnson v. Pratt & Whitney
Canada, Inc. (1994) 28 Cal. App. 4th 613, 622-623 [“we do not
reweigh evidence or reassess the credibility of witnesses”].)
Tawansy also argues that his ignorance of the law cannot be
counted against him because he had been a self-represented
litigant “for a short few months.” Tawansy offers no authority for
his proposition that a litigant who has the financial wherewithal
to hire counsel (as Tawansy did for years prior to his counsel’s
excusal and as Tawansy did to file his section 473 motion) may
choose to proceed without counsel and then claim ignorance of
the law. That is undoubtedly because the law is to the contrary.
(Hopkins, supra, 200 Cal.App.4th at p. 1413 [“The law does not
entitle a party to proceed experimentally without counsel and
then turn back the clock if the experiment yields an adverse
result.”].)
Second, Tawansy contends section 473 relief is generally
warranted “if no prejudice to the opposing party will ensue”
(Zamora, supra, 28 Cal.4th at p. 258), that RIF has not proven
any prejudice beyond “the inconvenience” of going to trial in the
action and cross-action, and that only “‘very slight evidence will
be required to justify’” an exercise of a court’s discretion where
the moving party has acted “promptly” and the non-moving party
16
has “‘“ma[de] no showing that [it] has suffered any prejudice or
that injustice will result from the trial of the case upon its
merits”’” (Weitz v. Yankosky (1966) 63 Cal. 2d 849, 857 (Weitz),
quoting Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523, 531;
Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 695). We
reject this contention for several reasons. At the outset, a court is
empowered to exercise its discretion under section 473,
subdivision (b), only when the moving party has made a
threshold showing of “mistake, inadvertence, surprise, or
excusable neglect” (§ 473, subd. (b)), and Tawansy has not made
that showing, as explained above. Moreover, section 473,
subdivision (b)’s underlying policy of favoring “the determination
of actions on their merits” (Evan Zohar, supra, 61 Cal.4th at p.
839; Weitz, at p. 857) would not seem to be implicated where, as
here, the grant of relief under section 473, subdivision (b) would
not result in a trial on the merits. That is because Tawansy’s
failure to file any pretrial documents would, at a minimum, have
led to the preclusion of all of his evidence in his action and in RIF
Investments-3’s cross-action. Thus, a reversal of the trial court’s
ruling would, at best, result in a remand so that the trial court
would enter an order of dismissal on Tawansy’s action (due to the
preclusion of any evidence by Tawansy), and a one-sided trial
(again, due to the preclusion of any evidence by Tawansy) in RIF
Investments-3’s cross-action that would render that trial
functionally indistinguishable from a default prove-up hearing.
Yet this is no different than the effect of the trial court’s ruling
before us now. “‘[R]eviewing courts have consistently declined to
remand cases where doing so would be an idle act that exalts
form over substance . . .’” (People v. Jefferson (2019) 38
Cal. App. 5th 399, 408.)
17
Lastly, Tawansy asserts that the interests of justice favor
going to trial on the merits because he has “fully litigated this
matter for over two years” and suffered dismissal due to a single
incident of “sickness.” Accepting this assertion requires us to
reweigh the evidence and to ignore the analysis we have set forth
above; we decline to do so.
II. No Basis for Sanctions
It is not clear that Tawansy’s arguments regarding the
propriety of the trial court’s order dismissing his operative
complaint, striking his answer to RIF Investments-3’s cross-
complaint, and entering a default on the cross-complaint is
properly before us. Such arguments constitute a direct attack on
the order itself rather than on the trial court’s subsequent ruling
refusing to set aside that order, yet Tawansy has only appealed
the subsequent ruling—not the order itself.5 Nor may we
consider Tawansy’s arguments as a means of establishing that
the order was “void” and hence a basis for relief under section
473, subdivision (d) because Tawansy did not seek relief under
subdivision (d) and because his attacks on the trial court’s order
would render it voidable rather than void. (Lee, supra, 168
Cal.App.4th at pp. 563-566 [trial court’s failure to follow
procedures under section 575.2, subdivision (a) renders order, at
most, voidable]; see Johnson v. E-Z Ins. Brokerage, Inc. (2009)
5 Although Tawansy could have appealed the portion of the
trial court’s order dismissing his complaint as to Farhadi and
Ghadir (§ 581d), he could not have appealed the portion of the
order dismissing his complaint as to RIF Investments-3 or the
order striking his answer to RIF Investments-3’s cross-complaint
and entering a default because no default judgment has been
entered. (First American Title Co. v. Mirzaian (2003) 108
Cal. App. 4th 956, 960.)
18
175 Cal. App. 4th 86, 98 [“a judgment is valid but voidable if it is
the result of the court’s failure to follow proper procedure”]; cf.
Sole Energy Co. v. Hodges (2005) 128 Cal. App. 4th 199, 208 (Sole
Energy) [discovery sanction entered ex parte is void].)
Even if we assume that Tawansy’s attack on the validity of
the trial court’s order is properly before us, it lacks merit because
the court’s imposition of those sanctions in that order was not an
abuse of discretion and is supported by the court’s express and
implied findings. (E.g., Reedy v. Bussell (2007) 148 Cal. App. 4th
1272, 1291; In re Marriage of Arceneaux (1990) 51 Cal. 3d 1130,
1133 [“all intendments and presumptions are indulged in favor of
(an order’s) correctness”].)
The trial court did not abuse its discretion in issuing its
order under section 575.2. In pertinent part, section 575.2
authorizes a court, “on its own motion,” to “dismiss [an] action” or
to “strike out all or any part of any pleading” and “enter”
“default” if “a party . . . in pro se[] fails to comply with” any
requirements of the court’s “[l]ocal rules” as long as the party is
afforded “prior notice . . . and an opportunity to be heard.”
(§ 575.2, subd. (a).) The Los Angeles Superior Court’s local rules
(1) require litigants to “serve and file” an exhibit list, jury
instruction request, trial witness list, and a proposed short
statement of the case “[a]t least five days prior to the final status
conference (Super. Ct. L.A. County, Local Rules, rule 3.25(f)(1)),
(2) require litigants to “attend a final status conference” (Id., rule
3.25(f)), and (3) give notice that the “[f]ailure to exchange and file
these items may result in not being able to call witnesses, present
exhibits at trial, or have a jury trial” at all (Id., rule 3.25(f)(1)).
In this case, substantial evidence supports the trial court’s
finding that Tawansy violated Los Angeles Superior Court’s local
19
rule 3.25 because he did not file any of the documents required by
that rule five days prior to trial (or, for that matter, since then)
and did not appear at the final status conference. Additionally,
Tawansy had notice of the consequences of his noncompliance
because they are set forth in section 575.2 and in Los Angeles
Superior Court’s local rule 3.25(f)(1),6 and because he was also
served with the trial court’s orders to show cause; Tawansy also
had an opportunity to be heard when he offered argument
against the order at the July 30, 2018 hearing. (Accord,
Barrientos v. City of Los Angeles (1994) 30 Cal. App. 4th 63, 70
[due process requires “adequate notice and [an] opportunity to be
heard” prior to imposition of sanctions].)
The trial court did not abuse its discretion in issuing its
order under section 2023.030. In pertinent part, the Civil
Discovery Act (§ 2016.010 et seq.) grants trial courts “broad”
authority to sanction the “misuse[] of the discovery process,”
which includes “[d]isobeying a court order to provide discovery,”
by imposing “terminating” sanctions. (§§ 2023.010, subd. (g),
2023.030, subd. (d).) “When faced with a party’s misuse of the
discovery process, a trial court ‘should’ impose ‘[t]he penalty
. . . appropriate to the dereliction.’ [Citation.].” (Siry Investment,
6 We disagree with Tawansy’s suggestion at oral argument
that the reference in Los Angeles Superior Court local rule
3.25(f)(1) to the sanctions of preclusion of witnesses, exhibits or
the denial of a jury trial precluded the court from dismissing his
action or striking his answer in RIF Investments-3’s cross-action
because (1) section 575.2 that sets out the sanctions for
noncompliance with local court rules specifically lists these
sanctions, and (2) rule 3.25(f)(1)’s reference to the denial of a jury
trial encompasses dismissal and striking an answer, both of
which result in the denial of a jury trial.
20
L.P. v. Farkhondehpour (2020) 45 Cal. App. 5th 1098, 1117 (Siry).)
In assessing what sanction is appropriate, a court should
examine “‘the totality of the circumstances,’ including (1) whether
the party’s noncompliance is the latest chapter in a longer
‘history of abuse,’ which looks to ‘the number of formal and
informal attempts to obtain the discovery’ as well as whether
prior court orders compelling discovery have gone unheeded
[citations]; (2) whether the party’s noncompliance was ‘willful’
[citations]; (3) whether the noncompliance persisted despite
warnings from the court that greater sanctions might follow
[citation]; (4) whether the noncompliance encompasses all or only
some of the issues in the case [citation]; and (5) the extent of the
‘detriment to the propounding party’ that flows from the inability
to obtain the discovery at issue [citation].” (Id. at pp. 1117-1118.)
Because they are the most “‘drastic,’” terminating sanctions are
to be “‘used sparingly’”; they are “typically” a “‘last resort’” but
may be used “‘as a first measure’” in “‘extreme cases’” “where a
litigant violates a court order and ‘persists in the outright refusal
to comply with [its] discovery obligations’ [citation].” (Id. at p.
1118.) In this case, substantial evidence—namely, a declaration
by RIF’s counsel so reported and that report was never
disputed—supports the trial court’s finding that Tawansy
disobeyed the court’s order compelling him to respond to the
discovery RIF propounded in April 2018. Further, the trial court
did not abuse its discretion in imposing terminating sanctions, at
least when it is recognized that the discovery violation
compromised only part of the reason for the court’s order, and in
light of the substantial evidence supporting the trial court’s
findings that Tawansy’s refusal to comply was willful (and he
offers no evidence to the contrary), that the discovery at issue
21
went to the heart of RIF’s defense against Tawansy’s claim, and
that Tawansy—since becoming a self-represented litigant—had
pursued a strategy of “total[ly] fail[ing] to do what [is] necessary
to bring th[e] case to trial.”
Tawansy levels attacks at the procedural and substantive
validity of the trial court’s sanction order.
Tawansy asserts that the court’s order suffers from two
procedural defects. First, he asserts that the trial court could not
impose the sanctions it did because there was no pending motion
by RIF requesting such sanctions. This assertion ignores that
both sections 575.2 and 2023.030 empower a trial court to impose
sanctions on its own motion.7 (§§ 575.2, subd. (a), 2023.030.)
Second, Tawansy asserts that he received inadequate notice of
potential sanctions because (1) the consequences of failing to
appear at the final status conference set forth in the order
relieving his counsel were merely part of a pre-printed form; (2)
he had no advance notice that the trial court was considering his
failure to file pretrial documents as part of the basis for sanctions
(as that was not listed in the pre-printed form or in the court’s
orders to show cause); and (3) he only had seven days to respond
to the trial court’s orders to show cause. We also reject these
assertions. Notice contained in a pre-printed form is still valid
notice. (Lee, supra, 168 Cal.App.4th at pp. 564-565 [so noting].)
Tawansy was not entitled to advance notice of all of the conduct
that might form the basis for a sanctions order. (§ 2023.040
[request for discovery sanctions need only “specify the type of
7 Contrary to what Tawansy argued orally, Tawansy had
ample advance notice that the court could impose sanctions on its
own motion because these statutes so indicate. A further,
express request for sanctions from RIF was not required.
22
sanction sought,” not the conduct underlying it]; Sole Energy,
supra, 128 Cal.App.4th at p. 207-208 [same]; § 575.2 [not
specifying the precise content of the notice]; cf. § 128.7 [request
for sanctions under this provision requires notice of “the specific
conduct alleged to [have] violate[d]” the statute]; Moyal v.
Lanphear (1989) 208 Cal. App. 3d 491, 502-503 [specific notice
that specific conduct may result in dismissal under section 575.2
is required when party is represented by counsel].) And we must
in any event presume (because there is no transcript to the
contrary) that the trial court informed Tawansy at the July 30,
2018 hearing that it was considering sanctions on the additional
ground of his failure to make the required pretrial filings and
then gave him the opportunity to respond. (Jameson, supra, 5
Cal.5th at p. 609 [“‘Failure to provide an adequate record on an
issue requires that the issue be resolved against [the appellant].’
[Citation.].”].) Tawansy lastly does not cite any authority for his
proposition that a week’s notice is insufficient to appear at a
hearing to explain one’s own prior conduct.
Tawansy contends that the sanctions order suffers from
two substantive defects. First, he notes that terminating
sanctions are not appropriate under either section 575.2 or
section 2023.030 unless there has been a previous noncompliance
with a rule or order and “it appears [that] a less severe sanction
would not be effective” (Wantuch v. Davis (1995) 32 Cal. App. 4th
786, 795 (Wantuch) [so noting, as to section 575.2]; Siry, supra,
45 Cal.App.5th at pp. 1117-1118 [so noting, as to section
2023.030]), and contends that these prerequisites are not met
here. This contention ignores that the trial court’s order was
preceded by Tawansy’s noncompliance with Los Angeles Superior
Court’s local rule 3.25’s pretrial filing and appearance-at-final-
23
status-conference requirements and by his noncompliance with
the court’s prior order compelling responses to RIF’s discovery.
Further, there was substantial evidence to support the trial
court’s implicit finding that lesser sanctions would prove
ineffective: Tawansy had declined to file pretrial documents
despite RIF’s repeated attempts to meet and confer with him, and
he refused to do so even after receiving the orders to show cause;
Tawansy continued to ignore the court’s order compelling
discovery and continued to do so even after receiving the orders
to show cause; and Tawansy’s attempt to evade service was
evocative of a person with no interest in litigating and every
interest in forestalling litigation. Tawansy makes the related
contention that the trial court was precluded by section 575.2
from dismissing his operative complaint, striking his answer to
RIF Investments-3’s cross-complaint and entering a default on
that cross-complaint because the sole sanction for failure to file
pretrial documents under Los Angeles Superior Court’s local rule
3.25 is the preclusion of evidence. Not only does this contention
ignore the language of rule 3.25 (which also warns of the
possibility of no “jury trial” at all), but also ignores that the
sanctions in this case rested on more than just his failure to file
pretrial documents. Second, Tawansy contends that no sanction
is warranted under sections 575.2 and 2023.030 unless there is a
willful failure to comply with a prior court order (e.g., Biles v.
Exxon Mobil Corp. (2004) 124 Cal. App. 4th 1315, 1327; Wantuch,
at p. 795), and here his conduct was not willful. This contention
lacks merit because Tawansy offered no evidence as to why his
failure to comply with the court’s order to compel discovery or the
local rule’s requirement to serve pretrial documents was
anything but willful, and because substantial evidence supports
24
the trial court’s finding that he did not prove that his non-
appearance at the final status conference was anything but
willful. (Cf. Wantuch, at p. 795 [failure to appear at final status
conference because party was in prison; sanctions not
warranted].)
III. Sole Sanction is Trial in Tawansy’s Absence
Citing Wilson v. Goldman (1969) 274 Cal. App. 2d 573, 575-
577 (Wilson), Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857,
862, 864 (Heidary), and section 594, subdivision (a), Tawansy
argues that the trial court may not enter a default against a
party for failing to appear on the first day of trial if that party
has filed an answer to the operative complaint. Because he filed
a response to RIF Investments-3’s cross-complaint, Tawansy
continues, the trial court was without power to enter a default
against him when he did not appear on the first day of trial. By
its terms, this argument has no application to the portion of the
trial court’s order dismissing Tawansy’s complaint (because the
court did not enter a default as to that complaint). More to the
point, this argument ignores that the trial court in this case
struck Tawansy’s answer to the cross-complaint prior to entering
a default; this means that there was no answer on file at the time
the court entered default, and thus renders Wilson, Heidary and
section 594 irrelevant. Tawansy’s reliance on this authority
might have some force if we had concluded that the trial court
had erred in striking his answer in the first place, but we have
concluded to the contrary.
* * *
In light of our analysis, we have no occasion to reach
Tawansy’s further attacks on the trial court’s reasoning (e.g.,
Cruz v. Sun World Internat., LLC (2015) 243 Cal. App. 4th 367,
25
373, overruled in part on other grounds as stated in Noel v.
Thrifty Payless, Inc. (2019) 7 Cal. 5th 955, 986) or RIF’s
alternative arguments for affirmance. We also deny RIF’s
request to award attorney fees on appeal because its request is
unsupported by any authority or argument. (Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal. App. 4th 939, 956 [argument
not supported with “reasoned argument” is waived].)
DISPOSITION
The order is affirmed in part (as to the denial of the motion
to set aside the dismissal of plaintiff’s complaint as to Farhadi
and Ghadir) and, as to the remainder, construed as a petition for
a writ of mandate and denied. RIF is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
26