Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County, No. SC093092 Carolyn B. Kuhl, Judge.
Law Offices of Michael E. Reznick and Michael E. Reznick for Defendants and Appellants.
Saltzburg, Ray & Bergman and Paul T. Dye for Plaintiff and Respondent.
Stutman Treister & Glatt and Gregory K. Jones for Receiver Robb Evans.
JOHNSON, J.
Default judgments were entered against defendants and appellants Galina Kubrak (Kubrak) and Nellis Motel Company, Inc. (Nellis) after plaintiff’s motion for terminating sanctions was granted based on defendants’ repeated and willful discovery abuse. Default judgment was entered against defendant and appellant Tarragon West Entertainment, Inc. (Tarragon) after it failed to respond to the second amended complaint. Kubrak and Nellis contend the trial court erred by issuing terminating sanctions, and Tarragon maintains the court erred in denying its motion to vacate. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and respondent Patti Michaely initiated this action in March 2007 against her former husband Josh Michaely, Kubrak, Josh’s long-time girlfriend, and approximately 30 individual business entities in which Kubrak allegedly held the sole controlling interest (the Kubrak Entities). Only Kubrak and two Kubrak Entities, Nellis and Tarragon are parties to this appeal. The complaint alleged 14 claims for, in essence, conspiracy to breach fiduciary duty, fraud, common counts, equitable relief seeking imposition of a constructive trust, quiet title and to set aside fraudulent transfers, and “causes of action” for injunctive and declaratory relief.
For the sake of clarity, we refer to Patti and Josh Michaely by their first names.
The central focus of the action is that Kubrak, as legal owner of the Kubrak Entities, is simply “window dressing” for real properties and business entities actually controlled by Josh. According to the complaint, Josh, the alleged de facto owner of the properties and entities, and Kubrak fraudulently hid assets in an effort to prevent Patti from collecting on a $50 million judgment obtained against Josh in the Michaely’s marital dissolution action in 2005. (See In re Marriage ofMichaely (2007) 150 Cal.App.4th 802.)
The first 12 months of this action were largely absorbed by jurisdictional disputes. Kubrak, who was served by substituted service in Nevada, moved to quash the summons, arguing the court lacked personal jurisdiction over her and service was void, as she was a resident and citizen of Israel. Nellis and Tarragon also filed motions to quash, asserting that each was a Nevada corporation and lacked minimum contacts with California.
In March 2008, the trial court denied Kubrak’s motion to quash. The court accepted Kubrak’s assertion that she resided in Israel. The court, however, rejected the arguments that Kubrak was not also a resident of Nevada at the time the summons was served, or that Patti failed to comply with applicable service requirements under the Hague Convention. In February 2008, Nellis and Tarragon entered into a stipulation with Patti, agreeing to withdraw their motions to quash and consented to the court’s jurisdiction. In exchange, Patti agreed to withdraw all then-outstanding discovery and to provide the corporate defendants additional time to respond to the complaint.
Discovery issues
On March 26, 2008, shortly after Kubrak’s motion to quash was denied, Patti served Kubrak with special interrogatories (set one), and requests for production of documents (set two). Patti also served a notice of deposition of the person most knowledgeable and request for production of documents (PMK) for Nellis and another Kubrak Entity, defendant Prestige Realty & Developers, Inc. (Prestige), (collectively the March 2008 discovery).
The action against Prestige was stayed in October 2009.
On June 30, 2008, Kubrak, Nellis and Tarragon filed a motion for a protective order (PO motion). They argued the court should require discovery to be conducted in phases, and that Patti should first be required to make a threshold showing that the Michaely marital estate could be traced to Kubrak or the Kubrak Entities, and that Kubrak conspired with Josh to fraudulently transfer his marital property and breach his fiduciary duty to Patti. Kubrak, Nellis and Tarragon also argued the discovery requests were overbroad and burdensome, and constituted an unwarranted invasion of the right of financial privacy of Kubrak and the Kubrak Entities.
The PO motion was argued on September 26, 2008, at the same time as the court heard argument on defendants’ demurrers to the first amended complaint. The demurrers were overruled. With respect to the PO motion, the court rejected defendants’ arguments regarding the need for phased discovery, and the assertion that Patti’s discovery requests were overbroad. With regard to the issue of confidentiality, the court ordered that all discovery “produced, ” including depositions, “gets used in the four corners of this litigation; no place else.” The PO motion was denied in all other respects. Defendants were given 30 days to answer the complaint and 45 days to answer the discovery at issue. The trial court permitted defendants to assert privilege objections, but ordered them to provide a privilege log.
The notice of ruling reflects that Patti’s counsel was ordered to draft a confidentiality order. That order, which was apparently filed with the court on November 6, 2008, is not in either of the appendices.
On August 7, 2008, Patti served Kubrak with additional discovery: requests for admission (set no. 2) and form interrogatories (set no. 2) (the August 2008 discovery). On November 10, 2008, Patti moved to compel responses to the discovery served on Kubrak in August 2008.
On January 16, 2009, after defendants failed to comply with the trial court’s September 26, 2008 order, Patti filed a motion requesting terminating sanctions, in the form of striking defendants’ answers and entering their defaults.
On January 28, 2009, defendants filed an opposition to the motion for terminating sanctions. On the same date, Kubrak served Patti with responses to the special interrogatories and document requests served on Kubrak in March 2008. No responses were provided to discovery served on Nellis.
On July 9, 2009, the operative second amended complaint was filed. In August 2009, Kubrak and Nellis filed a demurrer to and a motion to strike the second amended complaint.
The operative pleading, which names a court-appointed receiver over Josh’s assets, is substantively unchanged from the initial complaint. (The record does not contain a copy of the first amended complaint.)
In August 2009, defaults were entered as to Josh and Tarragon. Default judgment was entered against Tarragon on November 20, 2009.
On December 2, 2009, Tarragon successfully moved to set aside the default judgment.
In November, Patti filed revised versions of the January 2009 motion to strike defendants’ answers (sanctions motion), and November 2008 motion to compel. The sanctions motion was argued, and granted in its entirety, on December 10, 2009, striking Kubrak’s and Nellis’s answers to the complaint, and entering default against each defendant. The motion to compel, mooted by the sanctions order, was taken off calendar. On February 26, 2010, default judgments for approximately $26.5 million each were entered against Kubrak and Nellis. The court subsequently denied Tarragon’s motion for relief from default. Defendants filed timely appeals from judgments entered against them.
DISCUSSION
Appellants contend the trial court abused its discretion by issuing terminating sanctions against Kubrak and Nellis, and also abused its discretion when it refused to vacate the default judgment against Tarragon. We disagree.
Appellants initially claimed the trial court lacked personal jurisdiction over Kubrak, Nellis and Tarragon and erroneously denied their motions to quash. In their reply brief, however, appellants concede they forfeited their jurisdictional arguments by failing to seek a writ of mandate following denial of Kubrak’s motion to quash (or, with regard to Nellis and Tarragon, the withdrawal of their motion), and choosing instead to make general appearances in and defend the merits of this action. “It has long been the rule in California that a defendant who chooses to litigate the merits of a lawsuit after its motion to quash has been denied has no right to raise the jurisdictional question on appeal.” (State Farm General Ins. Co. v. JT’s Frames, Inc. (2010) 181 Cal.App.4th 429, 437.) By contesting the merits, a defendant submits to the jurisdiction of the court, thereby waiving “‘“any right it may have had to insist that jurisdiction of its person had not been obtained.””” (Ibid.; see Code Civ. Proc., § 418.10, subds. (e)(1), (2).
1. Terminating sanctions against Kubrak and Nellis.
Kubrak and Nellis contend the trial court abused its discretion by granting “doomsday” terminating sanctions because: (1) the September 26, 2008 discovery order was premature and they eventually complied with that order; (2) any failure to comply with the discovery order was not willful, and (3) the order granting terminating sanctions placed Patti in a better position than she would have occupied had the discovery been produced. None of these contentions has merit.
a. Standards to impose terminating sanctions and appellate review of sanctions order
The trial court has broad discretion to impose sanctions to compel discovery, impose monetary, issue, evidentiary or even terminating sanctions against a party that has engaged in conduct that constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d); In re Marriage of Michaely, supra, 150 Cal.App.4th at p. 809.) Misuse of discovery includes failing to respond or to submit to an authorized discovery method, evading discovery, disobeying a court order to provide discovery, making an unjustified motion to limit discovery, and failing to engage in a good faith attempt to resolve informally any discovery dispute. (Code Civ. Proc., § 2023.010, subds. (d)-(i).)
To determine the sanction best suited to address a particular discovery abuse, the trial court considers such factors as the willfulness of the conduct, the detriment to the propounding party, and the number of formal and informal attempts to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) The court may impose the sanctions it deems suitable and necessary to enable the party seeking discovery to obtain the objects of that discovery, but may not impose a sanction to punish rather than to accomplish the objects of the discovery. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488, disapproved on other grounds by Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.)
Terminating sanctions are a drastic measure to be imposed with caution. Nevertheless, it is beyond dispute that a court may impose them where a litigant has persistently refused to comply with discovery obligations. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797, superceded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) If the court finds the violation is willful, preceded by a history of abuse of the discovery process, or that less severe sanctions would not produce compliance, it may impose the ultimate terminating sanction. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280.)
We review a trial court’s order imposing sanctions for misuse of the discovery process for abuse of discretion. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) “‘[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. [Citation.]’” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) A judgment entered following a grant of a terminating sanction is subject to reversal only for manifest abuse of that discretion. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388.)
The propriety of terminating sanctions is determined by the totality of the circumstances, including the willfulness of the improper acts and the detriment to the propounding party. (Lang v. Hochman, supra, 77 Cal.App.4th at pp. 1244–1246.) Here, the court found Kubrak and Nellis repeatedly and willfully ignored discovery requests propounded by Patti, and ignored a court order to provide discovery. Only after Patti finally sought terminating sanctions did defendants respond to the discovery requests, and those responses were incomplete at best and asserted objections unavailable to them. The court had an option to impose a lesser sanction, but no obligation to do so. The court need not impose sanctions in a graduated fashion, but may apply the ultimate doomsday (terminating) sanction against a party who persistently has refused to comply with discovery obligations. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793.)
The court ordered defendants to provide objection free responses.
b. The discovery order was not premature
Kubrak maintains the discovery order was premature because the trial court ordered her to “‘answer the discovery at issue’” without first reviewing any allegedly deficient discovery responses, because no responses were due at the time the PO motion was filed.
The discovery at issue in the PO motion involved the March 2008 discovery: Patti’s first set of special interrogatories and her second set of document requests to Kubrak, and two PMK deposition notices and accompanying document requests for Nellis and Prestige.
In May 2008, the parties exchanged “meet and confer” letters. Kubrak asserted privacy and other objections to the discovery requests, and asked Patti to agree to “phased” or bifurcated discovery. Patti rejected Kubrak’s request and assertions, but agreed to “enter into a stipulated protective order, ... [whereby] Kubrak’s... individual, sensitive financial documents would be confidential.” The parties did not resolve their dispute. Rather than respond to the March 2008 discovery, on June 30, 2008, defendants sought a protective order excusing compliance. The PO motion was filed on June 30, 2008, and argued on September 26, 2008.
After reviewing the materials submitted in connection with the PO motion, the court found the discovery inquiring into the finances of Kubrak and the Kubrak Entities and the interrelationship with Josh was “at the heart of and essential to litigation of [Patti’s] claims” regarding alleged fraudulent transfers. It noted that factor “alone would tip the balance of interest in favor of discovery, ” notwithstanding any privacy rights Kubrak or Nellis might have with regard to the information sought. The court found Patti made a “substantial offer of proof” and had “gone beyond the showing that the claims asserted require the discovery.” The court also rejected Kubrak and Nellis’s contention that the discovery requests were overbroad, and their request to have discovery conducted in phases and only after Patti first demonstrated a link between Josh and the Kubrak Entities. The court rejected defendants’ objections and denied the motion for a protective order (apart from imposing a limitation on use of documents produced solely to this litigation). It gave defendants 45 days to answer the discovery. During the hearing the court clarified its intention that defendants had to “answer” the discovery, and not merely “respond.” The court did permit defendants to assert privilege objections, but required them to “furnish a privilege log.” The court’s order was memorialized in a September 30, 2008 notice of ruling.
Appellants are technically correct that the court did not review their responses to the discovery—because they chose to provide none. But they are wrong to say the discovery order was premature. The court reviewed and considered the discovery requests and objections to that discovery, determined no protective order was warranted and denied the motion. Once a court denies a motion for a protective order, it may order that the party seeking a protective order “provide or permit the discovery against which protection was sought on those terms and conditions that are just.” (Code Civ. Proc., §§ 2025.420, subd. (c) [depositions], 2030.090, subd. (c) [interrogatories] and 2031.060, subd. (g) [inspection demands].)
c. Defendants failed to respond to the discovery
Kubrak and Nellis assert the court should not have agreed to strike their answer because they eventually responded to the discovery. The record does not support this claim. Instead of timely complying with the discovery order and providing documents and objection-free answers to the March 2008 discovery, Kubrak and Nellis waited over a year to respond. Then, they did not “answer” the discovery, but instead asserted meritless objections and provided a smattering of responses that were anything but responsive.
Kubrak and Nellis ignored the discovery order. Kubrak also failed to respond to the August 2008 discovery. On November 10, 2008, Patti moved to compel further responses to the August 2008 discovery.
On January 16, 2009, Patti filed a motion to strike Kubrak and Nellis’s answer. That motion and the motion to compel were eventually scheduled for hearing on the same date.
On January 27, 2009, Kubrak served responses to the March 2008 discovery. In violation of the discovery order, Kubrak objected to all 42 interrogatories, and provided partial answers for five interrogatories. With regard to 52 categories of documents Patti requested, Kubrak claimed that she had no documents responsive to 49 of the requests, refused to produce documents for two categories and, as for the remaining request, Kubrak agreed only to provide documents responsive to her interrogatory requests, in which she had not identified any documents. Kubrak did not produce any documents.
The trial court found all five answers defective.
Appellants claim Nellis produced documents at some point prior to January 26, 2009. Patti disputes that claim. The record does not reflect that Nellis provided any response nor did it identify documents in response to its PMK deposition notice.
Patti’s motion to strike was refiled in October 2009, and argued on December 7, 2009. The court found the responses to the March 2008 discovery were a “sham.” The interrogatory “responses” failed to comply with the discovery order. Moreover, Kubrak’s responses to the document request violated the Code of Civil Procedure and were inconsistent with her earlier representations about the existence of responsive documents she now claimed did not exist. The court found the defendants had been given ample opportunity to respond to the discovery, but had “ignored the many attempts, both formal and informal, made by [Patti] to secure fair responses from them.” The court observed again that the outstanding discovery was “essential to [Patti] in the prosecution of this case.” “In light of the wholesale failure to comply with the discovery ordered by the court, ” the court found that neither issue or monetary sanctions would “likely... achieve compliance with the discovery.” As a result, the court found there was no “alternative to terminating sanctions.” Kubrak’s and Nellis’s answer was stricken, and their defaults entered. The ruling on motion to strike rendered the motion to compel moot.
Defendants did not file an opposition to the revised sanctions motion. Instead, they simply sought judicial notice of their opposition to the earlier version of that motion.
Appellants insist the “court had not yet determined whether or not the responses were sufficient” at the time it struck their answers. Again, the record refutes this claim. The court reviewed the only responses Kubrak and Nellis had produced by the time of the hearing and found that they “completely failed to comply with the Discovery Order.” The responses were untimely, misleading and so deficient they were no more than a “sham.” As a result, the court found Kubrak and Nellis had “seriously impeded” and “prejudiced [Patti's] ability to prove her case against Kubrak and the other defendants.” The court observed that defendants “spent many months avoiding and evading discovery.” That obstructionist conduct, coupled with their “willful” failure to comply with the court’s discovery order rendered an “award [order] of terminating sanctions... appropriate in this case.”
Contrary to appellants’ representation, nothing in the record reflects they ever responded to or provided documents in response to the PMK deposition notices and document requests, ever designated any PMK or set dates for those depositions, or ever responded to, let alone answered, either of two sets of requests for admission propounded to Kubrak, either of two sets of form interrogatories propounded, or Patti's first set of document requests.
d. Terminating sanctions did not provide an unfair advantage
We reject the contention that the sanctions order “far exceeded the conduct involved and put [Patti] in a far better position than she would have ever achieved through discovery.”
Evidentiary and terminating sanctions should be used sparingly, and only after the trial court concludes that lesser sanctions would not make the offending party comply with its disclosure duties. (Juarez v. Boy Scouts of America, Inc., supra, 81 Cal.App.4th at p. 388.) That is precisely what occurred here. In ruling on the motion to strike, the court observed it “already [had] determined that the discovery is essential to the plaintiff’s case, ” and defendants’ failure to respond to the discovery severely impeded Patti’s ability to “prosecut[e]... this case....” As a result, it found that no “sanction less than terminating sanctions that would be at all likely to be successful in achieving compliance with the discovery that was ordered.”
Numerous courts have upheld a court’s imposition of issue or terminating sanctions based on the totality of the circumstances in situations no more egregious than this. (See, e.g., Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1292 [terminating sanctions appropriate for defendants’ willful and repeated obstruction of discovery; given ample opportunities provided to defendants to comply, it was reasonable for trial court to conclude that lesser sanctions would be insufficient to curb continued discovery abuses]; Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1219 [affirming issue preclusion sanctions tantamount to terminating sanction for defendant’s persistent refusal to comply with discovery requests]; Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069 [terminating sanctions were justified for plaintiffs’ repeated failure to respond to discovery or to comply with court order; plaintiffs did not respond to discovery until over 10 months after order, and disregarded two interim orders and defendants’ attempts to discuss discovery deficiencies]; Lang v. Hochman, supra, 77 Cal.App.4th at p. 1247 [upholding terminating sanctions where court found defendant’s failure to comply with discovery orders was willful, tactical, egregious and inexcusable, and lesser sanctions had not produced requested documents]; Collisson & Kaplan v. Hartunian, supra, 21 Cal.App.4th at p. 1619 [upholding terminating sanctions where defendants failed to satisfy their discovery obligations, and disregarded an order compelling compliance]; Laguna Auto Body v. Farmers Ins. Exchange, supra, 231 Cal.App.3d at p. 491 [upholding terminating sanctions where no lesser sanctions were previously imposed, where party failed to comply with discovery order, repeatedly failed to meet discovery deadlines, and filed no opposition to a motion to dismiss].) As in these examples, here the court found both that defendants willfully failed to comply with their discovery obligations or a court order, and that no lesser sanction would likely make them meet their discovery obligations. The court found the information requested was critical to Patti’s ability to prosecute the case: “The areas that [Patti] sought to explore through the Discovery dealt with virtually all aspects of this case, including questions about [Josh] as the person who controlled all of the other defendants’ business operations, and questions about [Josh] as the person who really owned all of the assets held by Kubrak and the companies that are or were in her name.” The information was pivotal to analyze Patti’s claims that Kubrak and Josh had intermingled funds, and to resolve the allegations that Kubrak knew Josh was defrauding or breaching his fiduciary duty to Patti, and assisted him in that endeavor. Terminating sanctions were within the trial court’s discretion.
2. The court’s refusal to vacate Tarragon’s default
Tarragon contends the trial court abused its discretion when it denied Tarragon’s motion to set aside the second default judgment entered against it on November 20, 2009. We disagree.
A default judgment against Tarragon was entered on the original complaint. According to Patti, Tarragon moved successfully to have that default judgment set aside based on Kubrak’s declaration that she lived in Israel, was engrossed in the care of her severely disabled son, and had had difficulty locating counsel to represent her in this action.
The second amended complaint was served on Kubrak on July 9, 2009. She was represented by counsel at that time. Those attorneys filed a motion to withdraw as Tarragon’s counsel in early June 2009; the motion was granted on August 10, 2009. Tarragon failed to file an answer to the operative complaint, and Patti took its default on August 26, 2009. Tarragon did not seek relief from entry of the default until December 2009, approximately three and one-half months later.
Tarragon’s motion for relief from default is supported by a December 1, 2009 declaration. In that declaration Kubrak complains that following the withdrawal of Brown & White, she had difficulty finding new counsel due in part to the fact that she “reside[s] in Israel and [is] completely engrossed in the care of [her] handicapped son.” Kubrak claimed she was not aware the second amended complaint had been served, and did not know her prior counsel failed to file an answer on Tarragon’s behalf. Kubrak claimed to have first learned of the default judgment from her current counsel, retained in December 2009.
The court rejected Kubrak’s assertions. The court found Kubrak had failed to explain how Tarragon “was managed and why no one could have acted on behalf of the company to retain counsel while she was in Israel.” As a result, the declaration was “insufficient to provide a basis to set aside the default and to excuse the failure to file” an answer.
Under Code of Civil Procedure section 473, a court may exercise its discretion to relieve a party “upon such terms as may be just... from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Accordingly, if a party promptly seeks relief from default, and the opposing party will suffer no prejudice as a result of setting aside the default and letting the case proceed on the merits, only “‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.]” (Ibid.)
Here the trial court found even such slight evidence lacking. It found Tarragon had failed to demonstrate why no one was available to “act[ ] on behalf of the company to retain counsel while [Kubrak] was in Israel.”
“A motion seeking such relief lies within the sound discretion of the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court’s discretion is not unlimited and must be ‘“exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”’ [Citations.]” (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.) An “order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]” (Id. at pp. 233–234.)
Under “the doctrine of implied findings... the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. [Citations.]” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1271–1272.)
Code of Civil Procedure section 473, subdivision (b) provides two avenues for relief from default: one discretionary, one mandatory. First, the trial court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Second, the trial court “shall” order relief from default based on a sworn affidavit of the defaulting party’s attorney attesting to his or her “mistake, inadvertence, surprise, or neglect, ” so long as such attorney fault caused the default. Here, notably, Tarragon failed to submit an affidavit from her prior attorneys attesting to their neglect and/or inadvertence in failing to respond to the second amended complaint on Tarragon’s behalf. Had counsel been negligent as Kubrak implied, such a declaration would have easily been procured and would have mandated vacation of the default judgment.
Instead, Kubrak relied on her claim that she was personally preoccupied with the care of her son, and surprised to learn no answer had been filed. The trial court rejected Kubrak’s explanation and found the explanation wholly unsatisfactory. Given its lengthy involvement in this action the trial court could reasonably have discredited—and did discredit—Kubrak’s claim of mistake. Moreover, the court could reasonably have found Patti would have been severely prejudiced had the default been set aside. This action has been pending since 2007. Since that time Patti has faced obstacles at every turn, obstacles erected by virtue of the outright refusal of Kubrak, the Kubrak Entities and Josh to participate in this action. On this record we do not agree the trial court abused its discretion in concluding Kubrak’s declaration was too flimsy and failed completely to explain why neither Josh—whom the evidence showed had a “role with respect to running” Tarragon—nor any other corporate representative could have secured representation and filed a responsive pleading. It is exclusively within the province of the trial judge to determine the credibility of affiants and the weight of the evidence adduced. (Sheehan v. Osborn (1903) 138 Cal. 512, 515.) We review for abuse of discretion, and consider whether the court’s decision exceeded the bounds of reason, given the particular circumstances of the case. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) “In doing so, we determine whether the trial court’s factual findings are supported by substantial evidence [citation].” (County of San Diego v. Gorham, supra, at p. 1230.) Here, substantial evidence supports the trial court’s finding that Tarragon failed to justify relief from default. The court did not abuse its discretion in denying the motion to set aside the default.
DISPOSITION
The judgments are affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.