Yeager v. Thomas CA3 ( 2021 )

Filed 4/15/21 Yeager v. Thomas CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
VICTORIA YEAGER, C085795
Plaintiff and Appellant, (Super. Ct. No. 34-2014-
00169683-CU-PN-GDS)
v.
MICHAEL THOMAS et al.,
Defendants and Respondents.
In this appeal, General Charles E. Yeager and Victoria Yeager challenge the
dismissal of their action for legal malpractice against their former attorney, Michael
Thomas, and Thomas & Associates, a limited liability law partnership.1 In the trial court,
1 Charles E. Yeager died while this appeal was pending. We subsequently granted
Victoria Yeager’s motion for substitution of parties to reflect Charles’s death. As a
result, we have changed the caption to reflect Victoria’s substitution as sole appellant in
this appeal. We refer to the Yeagers individually by their first names due to shared
1
Victoria undertook to represent both herself and Charles even though she is not a licensed
attorney. The Yeagers ignored repeated orders to secure a lawyer or guardian ad litem
for Charles. Consequently, the trial court imposed monetary sanctions for abuse of the
discovery process. After the Yeagers failed to comply with three discovery orders, the
Thomas defendants brought a motion for terminating sanctions. The trial court granted
the unopposed motion.
On appeal, the Yeagers contend (1) the trial court abused its discretion in imposing
terminating sanctions because it did not address other potential lesser sanctions in its
order, (2) the terminating sanctions order was disproportionate to the harm alleged by the
Thomas defendants, (3) the order “appears to have been prompted only by an intent to
punish the Yeagers for their perceived noncompliance” with prior court orders, (4) the
Yeagers “did not simply fail to comply with Thomas’ discovery responses,” and (5) the
case should be remanded to allow the trial court to rule in the first instance on their
motion to vacate the judgment.
We affirm. The trial court is not required to expressly address possible
alternatives to dismissal in a terminating sanctions order. There was no abuse of
discretion in the trial court’s order. The record does not indicate the trial court acted with
any intent to punish the Yeagers. However, the record amply supports the trial court’s
findings that the Yeagers willfully disregarded court orders. We reject the Yeagers’
argument regarding remand for lack of any assertion of reversible error or prejudice.
FACTUAL AND PROCEDURAL HISTORY
The Yeagers’ Action
In October 2014, the Yeagers filed an action for legal malpractice against their
former attorneys, including the Thomas defendants as well as John Gibson and his
surname and for the sake of clarity. We refer to Michael Thomas and his law firm
collectively as the Thomas defendants.
2
limited liability law partnership.2 Shortly after the filing of the original complaint, the
Yeagers filed a first amended complaint that added two more attorneys – Ed Gordon and
Christopher Rolin – as defendants. The Thomas defendants demurred to the first
amended complaint. In response, the Yeagers filed a second amended complaint in
September 2015. In March 2016, the Yeagers were determined to be vexatious litigants.3
Discovery Sanctions Against the Yeagers
On February 18, 2016, the trial court granted the Thomas defendants’ first
discovery motion by compelling further responses to the 14 discovery demands raised in
the motion. The trial court also imposed $2,060 in monetary sanctions. In granting the
motion, the trial court provided five pages of detailed instructions for the Yeagers’
compliance.
On March 3, 2017, the trial court stayed the action to allow the Yeagers to find an
attorney or guardian ad litem for Charles. On April 17, 2017, the trial court lifted the stay
and imposed sanctions on the Yeagers for continued failure to comply with discovery
demands.4 The trial court found the Yeagers had provided responses that were
2 We refer to John Gibson and his limited liability law partnership collectively as
the Gibson defendants.
3 In Yeager v. Rolin (Aug. 29, 2019, C083234 & C083830) (nonpub. opn.), this
court reversed the determination of the trial court that the Yeagers qualified as vexatious
litigants under Code of Civil Procedure section 391. Yeager v. Rolin was an appeal that
arose out of the same action that is being appealed here, but in which the Yeagers
challenged the dismissal of their former attorney, Christopher Rolin. Although this
appeal arises out of the same action, it challenges only the dismissal entered in favor of
the Thomas defendants.
Undesignated statutory citations are to the Code of Civil Procedure.
4 Although the Yeagers refer to discovery “requests,” we use the term “demands” to
be consistent with the applicable discovery statute. (§ 2031.010 [using the term
“demand”]; see also Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.
(2008) 165 Cal.App.4th 1568, 1573, fn. 6.)
3
consistently evasive. Noting the Yeagers’ complaint made “broad allegations of
wrongdoing,” the court admonished the Yeagers they were required to comply with
discovery demands. The trial court imposed $1,260 in monetary sanctions on Victoria.
On April 27, 2017, the trial court considered a motion for terminating sanctions
brought by the Thomas defendants. In ruling on the motion, the trial court found the
Yeagers’ “willful failure to comply with the Court order of Feb[ruary] 18, 201[6]
warrants sanctions.” Rather than imposing terminating sanctions at that time, the trial
court ordered the Yeagers to provide verified, supplemental responses to discovery as
previously ordered. Also, the court again imposed monetary sanctions. And the trial
court warned the Yeagers that “[s]hould the full and complete responses not be received
by that date, the Court will consider a further motion for issue, evidentiary and/or
terminating sanctions for plaintiffs’ willful violation of a Court order.” (Italics added.)
In April 2017, the Gibson defendants moved for a sanctions order against Victoria
for failure to comply with orders issued in September 2016, October 2016, February
2017, and March 2017 relating to the issue of Charles’s competency. These orders all
required the Yeagers to obtain an attorney or guardian ad litem. During the pendency of
this action, Victoria acknowledged Charles is unable to meaningfully participate in the
litigation process. Nonetheless, Victoria engaged in the unauthorized practice of law by
representing not only herself but also Charles.
The trial court found, “Despite [the determination that the Yeagers were vexatious
litigants], and despite their decision to proceed as civil plaintiffs without an appearance
on their behalf by an attorney of record, this Court has been extremely mindful of [the
Yeagers’] non-represented status and has offered ample time for compliance with its
various orders.” The trial court recounted Charles chose to attend an Oak Ridge Boys
concert in Missouri rather than comply with the court-ordered mental health examination.
Thereafter, the Yeagers failed to secure an attorney or guardian ad litem for Charles even
though the court stayed the action in order to allow the Yeagers to comply with its orders.
4
In June 2017, the trial court ordered monetary sanctions against Victoria and evidentiary
sanctions against Charles.
After the Yeagers continued their noncompliance with the trial court’s orders, the
Gibson defendants moved for terminating sanctions. The Thomas defendants joined in
the motion. During a hearing on the Gibson defendants’ motion for terminating
sanctions, the trial court addressed Victoria as follows:
“THE COURT: [¶] . . . [¶] [W]e’ve gone ahead and bent over backwards, not
because of your status or who you are or anything else, but because courts are very
reluctant to terminate plaintiff’s cases except on the merits. And I don’t like procedural
terminations by way of sanction. So I don’t want to terminate anybody, but at the same
time I don’t want anybody to think they can get away with flouting the Court’s orders.
[¶] . . . I don’t like what you’ve done. You treat [Charles] as basically your puppet. And
it appears to me that you’re acting on his behalf more than not, even though you profess
that you are not. That’s why he needs to have his own guardian and his own counsel.”
In June 2017, the trial court granted the motion in part, imposing evidentiary
sanctions on the Yeagers. Because the Yeagers had not availed themselves of the “many
opportunities” to secure counsel or a guardian ad litem for Charles, the trial court barred
Charles from presenting any further written or oral testimony to support his claims in this
action. The trial court determined any additional time would be futile by finding neither
a guardian ad litem or attorney “is likely forthcoming.” The trial court rejected the
Yeagers’ assertion they had “fully complied” with the court’s orders. Instead, the court
found the Yeagers “fail[] to present compelling evidence of wholehearted, good faith
‘endeavoring’ and ‘cooperating’ by [the Yeagers].”
The trial court summed up: Charles’s “failures to comply with the Court’s orders
have prevented discovery as to whether his testimony can be given any evidentiary value
in this case. He has failed to appear for his court-ordered mental examination and has
failed to file a motion for appointment of a [guardian ad litem] and attorney to represent
5
him in this case given concerns about his mental competency, despite this Court’s orders
directing him to do so. He has thereby prevented discovery as to whether his own
discovery responses, and/or other factual representations he might wish to make as this
case progresses, are being made by someone who truly understands what they are
representing and appreciates the seriousness of making such representations under
penalty of perjury.” (Italics omitted.)
As part of the same sanctions order, the trial court imposed a monetary sanction
that required Victoria to pay $2,562.50 to the Gibson defendants. The trial court rejected
Victoria’s contention that “ ‘lawyer tricks’ by defense counsel [citation] occurred, or that
[Victoria]’s failures to comply with the Court’s Orders were caused by misleading
behavior by defense counsel.” The trial court concluded that “[i]n failing to comply with
these orders, [Victoria] opened herself up to sanctions.” Even so, the trial court declined
to impose terminating sanctions because there was no showing that lesser sanctions
would be ineffective as to Victoria. However, the trial court cautioned:
“The Court shares moving Defendants’ concern that [Victoria] is ignoring this
Court’s rules, orders, and California law expressly prohibiting her from litigating this
case as a non-attorney, at least in part, on behalf of her husband. And although this Court
has previously reminded her of the prohibition, she continues to make filings and litigate
this case, at least in part, on behalf of her husband. [Victoria’s] continued practice of
filing legal papers, making legal arguments, completing discovery responses, and the
like, on behalf of her husband, must stop.” (Italics added.)
Terminating Sanctions Imposed by the Trial Court
On June 23, 2017, the Thomas defendants moved for terminating sanctions against
the Yeagers. The motion was based on the Yeagers’ violation of the trial court’s
discovery orders entered on February 18, 2016, April 17, 2017, and April 27, 2017. The
Yeagers did not oppose the motion. The trial court granted the motion for terminating
6
sanctions on August 4, 2017. A judgment of dismissal followed shortly thereafter. The
Yeagers timely filed a notice of appeal.
DISCUSSION
I
Terminating Sanctions
The Yeagers advance four arguments in their claim that the trial court abused its
discretion in imposing terminating sanctions. First, they argue the order itself is defective
because the order does not expressly address the possibility of other lesser remedies than
terminating sanctions. Second, the Yeagers assert the terminating sanctions are
disproportionate to the harm alleged by the Thomas defendants. Third, the order
represents “only” an “intent to punish” them. And, fourth, the Yeagers did not “fail to
comply” with the discovery orders that preceded the terminating sanctions. As we
explain, none of these contentions has merit.
A.
Trial Court Order
The Yeagers fault the trial court because “nowhere in that Order does the lower
court demonstrate that it even considered whether evidentiary sanctions or issue sanctions
would be more appropriate . . . .” (Italics added.) In support of the argument, the
Yeagers offer no authority for the proposition that a terminating sanctions order must
expressly address and reject lesser sanctions.
On appeal, we begin with the presumption the order being challenged on appeal is
correct. As the California Supreme Court has noted, “it is settled that: ‘A judgment or
order of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’ (3 Witkin, Cal.Procedure
(1954) Appeal, § 79, pp. 2238-2239; Minardi v. Collopy [(1957)] 49 Cal.2d 348, 353;
7
Coleman v. Farwell [(1929)] 206 Cal. 740, 742.)” (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) As a corollary to this rule, we also heed the presumption of Evidence
Code section 664, “ ‘that official duty has been regularly performed.’ Thus, where a
statement of reasons is not required and the record is silent, a reviewing court will
presume the trial court had a proper basis for a particular finding or order. (See, e.g.,
People v. Henson (1991) 231 Cal.App.3d 172, 182 [presuming on a silent record that the
trial court properly exercised its discretion in imposing AIDS education as a condition of
probation].)” (People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115, italics added.)
We reject the Yeagers’ assumption that an order granting terminating sanctions
must itself state lesser sanctions were considered and rejected. Section 2023.030
specifically authorizes trial courts to impose terminating sanctions for “a misuse of the
discovery process.” Subdivision (d)(3) of section 2023.030 provides that “[t]he court
may impose a terminating sanction” by “order dismissing the action, or any part of the
action, of that party.” Section 2023.030 does not require any particular form for a
terminating sanction nor does it require that the order dismissing the action contain any
express factual findings.
Section 2023.010 enumerates “[m]isuses of the discovery process” to include such
abusive conduct as “[f]ailing to respond or to submit to an authorized method of
discovery,” “[m]aking, without substantial justification, an unmeritorious objection to
discovery,” [m]aking an evasive response to discovery,” and “[d]isobeying a court order
to provide discovery.” (Id. at subds. (d), (e), (f), (g).) However, section 2023.010 also
does not require any particular express findings in a terminating sanctions order.
Where a statute does not require express findings for a particular order, we do not
imply such a requirement. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242,
1273.) In the absence of any authority for the proposition that a terminating sanctions
order must make express findings about lesser sanctions, we reject the Yeagers’
contention regarding the deficiency of the order in this case. Moreover, nothing in the
8
terminating sanctions order refutes the presumption that the trial court properly
considered lesser penalties. We reject the Yeagers’ claim that the terminating sanctions
order is deficient.
B.
Proportionality of the Terminating Sanction
The Yeagers claim terminating sanctions were “disproportionate to the harm
alleged” by the Thomas defendants. Buried in this claim is the assertion that the trial
court “dismissed their claims” in derogation of their due process rights. We reject these
claims.
This court has previously explained that in determining whether to impose
terminating sanctions, “ ‘[t]he trial court should consider both the conduct being
sanctioned and its effect on the party seeking discovery and, in choosing a sanction,
should “ ‘attempt[] to tailor the sanction to the harm caused by the withheld discovery.’ ”
[Citation.] The trial court cannot impose sanctions for misuse of the discovery process as
a punishment.’ (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)
‘ “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed
that which is required to protect the interests of the party entitled to but denied
discovery.’ ” [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is
warranted: continuing misuses of the discovery process warrant incrementally harsher
sanctions until the sanction is reached that will curb the abuse. “A decision to order
terminating sanctions should not be made lightly. But where a violation is willful,
preceded by a history of abuse, and the evidence shows that less severe sanctions would
not produce compliance with the discovery rules, the trial court is justified in imposing
the ultimate sanction.” ’ (Ibid.)” (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495,
1516 (Van Sickle).)
In reviewing a challenge to terminating sanctions, we do not second guess the
wisdom of the trial court’s order. Instead, we review a challenge to the selection of
9
terminating sanctions under the abuse of discretion standard of review. “ ‘Imposition of
sanctions for misuse of discovery lies within the trial court’s discretion, and is reviewed
only for abuse.’ (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 991.)
‘Sanction orders are “subject to reversal only for arbitrary, capricious or whimsical
action.” ’ (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163
Cal.App.4th 1093, 1102.)” (Van Sickle, supra, 196 Cal.App.4th at p. 1516.)
Contrary to the Yeagers’ assumption that terminating sanctions must be preceded
by sanctions escalating in severity, a trial court has discretion to impose terminating
sanctions when a party has willfully disobeyed one or more discovery orders. (Lang v.
Hochman (2000) 77 Cal.App.4th 1225, 1244-1256 [collecting authority].) “ ‘ “[T]he
question before this court is not whether the trial court should have imposed a lesser
sanction; rather the question is whether the trial court abused its discretion by imposing
the sanction it chose.” ’ ” (Id. at p. 1245, quoting Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1620.)
Here, the trial court did not abuse its discretion in imposing terminating sanctions.
The terminating sanctions order was preceded by three court orders that addressed willful
discovery abuses by the Yeagers. The Yeagers failed to adequately respond to written
discovery demands even after being compelled to do so by court orders issued on
February 18, 2016, April 17, 2017, and April 27, 2017. The trial court’s April 27, 2017,
sanctions order found the Yeagers’ engaged in “willful failure to comply” with its earlier
discovery order. In later addressing the Gibson defendants’ motion for terminating
sanctions, the trial court noted the motion essentially asked Victoria “to stop doing what
she is already prohibited from doing,” namely litigating on behalf of Charles. (Boldface
& underscoring omitted.) Despite being chastised repeatedly for the unauthorized
practice of law, Victoria appeared convinced she could continue to legally represent
Charles. In other words, the trial court found the Yeagers’ discovery abuses had been
willful and Victoria appeared ready to continue violating court orders regarding the
10
unauthorized practice of law. In light of this history, the trial court did not abuse its
discretion in granting terminating sanctions.
We also reject the Yeagers’ claim they were deprived of due process as a result of
the dismissal. “[T]he most basic concept of due process is the right to notice and a
meaningful opportunity to be heard.” (In re J.F. (2011) 196 Cal.App.4th 321, 335.)
Here, the Thomas defendants served notice of the motion for terminating sanctions on the
Yeagers. The Yeagers could have requested a hearing. Instead, they chose not to oppose
the motion for terminating sanctions. Due process does not require more. (Ibid.) To the
extent the Yeagers assert the very act of dismissal deprived them of a right to purse their
case to trial, we reject the assertion. There is no right allowing a litigant to engage in
repeated discovery abuses and the unauthorized practice of law. (§§ 2023.010, subds.
(d), (e), (f), (g), 2023.030, subd. (d)(3).) The Yeagers have not established they were
deprived of due process.
C.
Intent to Punish
The Yeagers argue the terminating sanctions order was “prompted only by an
intent to punish” them for their misuse of the discovery process. (Italics added.) We
reject the argument.
As explained above, we begin with the presumption that the challenged order of
the trial court is correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Thus,
“the appellant has the burden to affirmatively show, based on the record, the trial court’s
commission of reversible error.” (GHK Associates v. Mayer Group, Inc. (1990) 224
Cal.App.3d 856, 872, italics added.) The Yeagers have the task of establishing the trial
court issued terminating sanctions “only” due to its “intent to punish” them. The Yeagers
have not succeeded in meeting this burden.
The order imposing terminating sanctions itself is a model of brevity. It recounts
that the motion for terminating sanctions was unopposed by the Yeagers and that it
11
followed three separate orders in which the Yeagers were found to have engaged in
discovery abuses. Based on both the repeated discovery abuses and the repeated failures
by the Yeagers to comply with court orders, the trial court imposed terminating sanctions.
We discern no intent to punish the Yeagers. Instead the record establishes the
Yeagers’ repeated and willful noncompliance with trial court orders. The order granting
terminating sanctions represents a final response to the Yeagers’ intransigence in the face
of repeated court orders addressed to their discovery abuses. Moreover, the terminating
sanctions order displays no intent to punish by the trial court in granting an unopposed
motion. We reject the Yeagers’ claim the trial court was motivated solely by an intent to
punish them. Indeed, the record does not establish the trial court was motivated even in
part with an intent to punish them.
D.
Compliance with Discovery Orders
The Yeagers next argue they “did not simply fail to comply with” the Thomas
defendants’ discovery responses. This argument is devoid of merit.
On February 18, 2016, the trial court entered an order granting the Thomas
defendants’ motion to compel further responses. In its ruling, the trial court granted all
14 demands to compel by the Thomas defendants and explained in detail how the
Yeagers were required to comply with the specific discovery demands. The Yeagers
served supplemental responses. On April 17, 2017, the trial court entered an order
chastising the Yeagers for inadequate responses to the Thomas defendants’ discovery
demands. In particular, the trial court noted that “[i]n each interrogatory now before the
Court, [Victoria] responded very generally, e.g., ‘All of the documents are already in
propounding party’s possession;’ ‘Thomas defendants already have these documents’;
‘Every document in the [case] docket’, etc.” (Italics added.) The trial court explained the
Thomas defendants were entitled to discover the basis for the “broad allegations of
wrongdoing” in the Yeagers’ complaint. Thus, the trial court ordered that Victoria
12
“provide full and complete, verified Supplemental Responses,” to the Thomas
defendants’ interrogatories.
Victoria served supplemental responses, but these too proved inadequate. The
Thomas defendants again moved for sanctions. In granting sanctions against the
Yeagers, the trial court lamented that “[t]he antecedent procedural history is complex
and, unfortunately, confused.” In the order, the trial court found the Yeagers’ “failure
and refusal to provide full and complete responses to the form interrogatories, special
interrogatories and requests for admission in willful disobedience of the Court Order goes
to the heart of the facts of the case.” (Italics added.) In imposing monetary sanctions, the
court reiterated the willful nature of the Yeagers’ refusal to comply with the discovery
orders.
Against this backdrop of express findings by the trial court that the Yeagers
willfully refused to comply with discovery orders, the Yeagers now assert they complied
with the trial court orders “to the best of their abilities.” Tellingly, the Yeagers’ opening
brief does not recite any specific efforts made to respond to the trial court’s discovery
orders. We reject the Yeagers’ assertion of efforts to comply with the discovery orders.
On appeal, we defer to the factual findings of the trial court. (Minick v. City of Petaluma
(2016) 3 Cal.App.5th 15, 24.) Here, the trial court expressly rejected the Yeagers
assertion they had fully complied with the court’s discovery orders. The record supports
this finding by the trial court.
II
Remand for Ruling on Motion to Vacate the Judgment
Finally, the Yeagers assert this court “should permit reversal and remand with
directions to the trial court to consider the Yeagers’ motion to vacate.” We reject the
assertion.
We may not reverse a judgment unless the appellant demonstrates prejudicial error
in the trial court. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836;
13
People v. Campos (1995) 32 Cal.App.4th 304, 309.) Here, the Yeagers seek remand to
allow the trial court to consider their postjudgment motion for relief. The request for
remand is not based on an assertion of prejudicial error but based on the policy implicit in
section 473 that actions should be decided on their merits. However salutary the policy
of section 473 may be, we may not set aside a judgment in the absence of a showing of
reversible error. (Cal. Const., art. VI, § 13.) As we have explained, we conclude the
Yeagers have not established the trial court committed reversible error in imposing
terminating sanctions. Likewise, we conclude this argument also does not establish – or
even assert – that the trial court committed reversible error.
DISPOSITION
The judgment is affirmed. Michael Thomas and Thomas & Associates shall
recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
14