Equihua v. Chausse

Full title: JESSE EQUIHUA et al., Plaintiffs and Respondents, v. MARILYN CHAUSSE et…

Court: California Court of Appeals, Second District, Fourth Division

Date published: Nov 6, 2023

No. B317331 (Cal. Ct. App. Nov. 6, 2023)

Opinion

B317331

11-06-2023

JESSE EQUIHUA et al., Plaintiffs and Respondents, v. MARILYN CHAUSSE et al., Defendants and Appellants; ALLSTATE NORTHBROOK INDEMNITY COMPANY, Intervener and Appellant.

Horvitz & Levy, David M. Axelrad, John F. Querio, Rebecca G. Powell; WFBM, Michael T. McCall, Helen M. Luetto, and Kiersten A. Martindale for Defendants and Appellants Marilyn Chausse and Shayna Nash. Dentons US, Michael Barnes, Andrea Hall for Intervenor and Appellant Allstate Northbrook Indemnity Company. Parris Law Firm, R. Rex Parris, Khail Parris, Daniel Eli, Susan Baker, Eric N. Wilson, Alexander R. Wheeler; Benedon & Serlin, Gerald M. Serlin, Judith E. Posner and Kian Tamaddoni for Plaintiffs and Respondents Jesse Equihua and Barbara Equihua.

COLLINS, ACTING P.J.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19AVCV00071 Wendy W.Y. Chang, Judge. Affirmed.

Horvitz & Levy, David M. Axelrad, John F. Querio, Rebecca G. Powell; WFBM, Michael T. McCall, Helen M. Luetto, and Kiersten A. Martindale for Defendants and Appellants Marilyn Chausse and Shayna Nash.

Dentons US, Michael Barnes, Andrea Hall for Intervenor and Appellant Allstate Northbrook Indemnity Company.

Parris Law Firm, R. Rex Parris, Khail Parris, Daniel Eli, Susan Baker, Eric N. Wilson, Alexander R. Wheeler; Benedon & Serlin, Gerald M. Serlin, Judith E. Posner and Kian Tamaddoni for Plaintiffs and Respondents Jesse Equihua and Barbara Equihua.

COLLINS, ACTING P.J.

INTRODUCTION

Plaintiff Jesse Equihua was injured in a car accident caused by defendant Shayna Nash, after Nash failed to yield the right-of-way at an intersection and collided with Jesse's truck. Jesse and his wife, Barbara Equihua,¹ filed a lawsuit for negligence against Nash and her mother, Marilyn Chausse, who owned the car Nash was driving. Chausse's insurance company, Allstate Northbrook Indemnity Company, hired counsel to defend Nash and Chausse in the litigation. Over the next several years, plaintiffs prevailed on more than a dozen motions to compel discovery after defendants and their counsel failed to provide verified written responses, failed to produce documents, and then failed to pay monetary sanctions ordered by the court as a result of their discovery abuses.

1 Because plaintiffs share a surname, we refer to them by their first names for clarity.

The court denied plaintiffs' first motion for terminating sanctions, but found that issue and evidentiary sanctions were warranted, including a finding of liability in favor of plaintiffs. After defendants continued to violate the court's discovery orders and with trial approaching, plaintiffs filed a second motion for terminating sanctions. At the same time, they served on defendants a statement of damages seeking $158.5 million in damages for Jesse's injuries and pain and suffering, as well as Barbara's loss of consortium.

The court granted the motion for terminating sanctions, striking defendants' answers and entering their defaults. The court then held a prove-up hearing on damages before a jury, at which plaintiffs presented evidence and expert testimony regarding Jesse's spinal and traumatic brain injuries and their effects on his and Barbara's lives. Neither defendants nor their counsel attended the prove-up hearing. The jury returned a verdict of more than $126 million in damages for plaintiffs.

Defendants filed a motion for new trial and to set aside the default judgment pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)),² on the basis that the discovery misconduct was due to their attorney's mistake, inadvertence, or neglect. They included an affidavit of fault from lead defense counsel, Scott Spriggs. Allstate, now represented by separate counsel, filed motions seeking to intervene, to vacate the judgment, and for a new trial.

2 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

The trial court denied the motions, concluding that the discovery failures arose from strategic choices by defense counsel rather than neglect, and that defendants were aware of the mounting issues but failed to act. The court also found that plaintiffs had provided adequate notice of their statement of damages. However, upon consideration of defendants' claim that the damages award was excessive, the court remitted the amount of noneconomic damages to $42 million for Jesse and $10.5 million for Barbara, bringing the total damages amount to more than $58 million plus interest.

Defendants and Allstate appealed. Defendants first argue that the court erred in granting terminating sanctions given the minimal prejudice caused by any remaining discovery issues. Thus, they assert that the overly harsh sanction resulted in a punishment for defendants and a windfall for plaintiffs. They also contend that terminating sanctions are improper where, as here, defendants themselves committed no misconduct and the fault lies with their counsel. Second, defendants challenge the trial court's order denying their motion to vacate the default judgment. They argue that they were entitled to mandatory relief from default under section 473(b) because their attorney submitted a proper affidavit of fault. In addition, they contend that the judgment was void because they did not have adequate notice of plaintiffs' statements of damages. Finally, they assert that they are entitled to a new trial because the award of damages was excessive. Allstate contends that they are entitled to intervene if we do not grant relief to defendants, and that the trial court abused its discretion in denying its motion to vacate the judgment and for new trial.

We conclude that the trial court did not abuse its discretion in denying the post-judgment motions by defendants and Allstate. We therefore affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. The Accident

On the afternoon of February 14, 2018, 21-year-old Nash was driving Chausse's Kia Soul in Lancaster, California. After stopping at a stop sign, she entered an intersection, colliding with Jesse's oncoming Dodge Ram pickup truck. Nash later told police that she incorrectly believed the intersection was a four-way stop and that Jesse's vehicle was going to stop. The impact of the collision caused Jesse's truck to roll several times and slide down the road, coming to rest on its side. According to the accident report, the responding police officers concluded that Nash caused the collision by failing to yield to oncoming traffic.

Jesse testified that he briefly lost consciousness during the accident; when he awoke, the truck was on its side and he was hanging by his seatbelt. He unbuckled his seatbelt and a bystander helped him climb out of the truck. Jesse immediately felt "real bad pain" in his foot, and sustained cuts on his face from broken glass, as well as bruising on his back. However, he declined medical help from paramedics or transportation to the hospital, instead texting Barbara to take him home. Jesse told police officers at the scene that he had been driving approximately 53 to 55 miles per hour. He saw Nash's vehicle enter the intersection but had no time to brake before he was struck.

Lacking health insurance, Jesse sought medical treatment from the local Veterans Administration, but he was told they could not accommodate his injuries. He then retained counsel, who helped him obtain care from a pain management doctor. Based on MRI tests, the doctor diagnosed Jesse with multiple bulging discs in his lumbar spine. The doctor recommended a spinal fusion surgery, but Jesse initially declined. Instead, he had multiple back injections over time to mitigate his pain. Jesse ultimately underwent a fusion surgery on his lumbar spine.

Jesse testified that he has continued to have back pain since the collision and cannot sit or drive for more than an hour without stopping to stand and stretch. As the sole wage earner for his family, he returned to work as a truck driver for Walmart following the collision. Jesse testified that Walmart accommodated his need for frequent rest breaks to stop and stretch.

Nash and Chausse were insured under an automobile liability policy issued by Allstate, with limits of $100,000. On November 27, 2018, Jesse submitted medical expenses of $67,405.93 to Allstate and demanded payment of $100,000, the applicable policy limit. According to Allstate, it determined that the reasonable cost of the medical care Jesse incurred was between $12,000 and $19,000. Therefore, Allstate offered to settle with Jesse for $18,923.04 in December 2018, which Jesse declined.

II. The Complaint

Jesse filed a complaint against defendants on January 24, 2019, alleging claims for negligence and negligent entrustment. He alleged that Nash negligently caused the accident by failing to yield to cross-traffic and that Chausse "knew or should have known" that Nash was "unfit and/or incompetent to drive," but permitted her to do so. The complaint further alleged that defendants' negligence caused significant injuries to Jesse, including severe physical injuries necessitating ongoing medical expenses and a reduction in his capacity to work.

Allstate hired law firm Kinkle, Rodiger and Spriggs (KRS) to defend defendants in the litigation. Spriggs, president of KRS, was lead defense counsel on the case. Defendants filed an answer to the complaint in April 2019.

In October 2019, plaintiffs filed a first amended complaint (FAC) adding a third cause of action by Barbara for loss of consortium.

III. Discovery Disputes

A. First motions to compel verifications

From the start of discovery, defendants failed to properly participate in the process. Chausse failed to verify her responses to the first set of form interrogatories, served on April 15, 2019, even after three extensions of time. After plaintiffs' counsel made several unsuccessful attempts to meet and confer, plaintiffs filed a motion to compel further responses on September 12, 2019. Plaintiffs sought verified responses and sanctions of $1,810.

Defendants provided Chausse's verifications on September 23, 2019 and thereafter argued that the motion to compel was moot. KRS associate Ronald Carlson provided a declaration in opposition to the motion to compel, stating that KRS had not been able to reach defendants and in August 2019, KRS was "forced to obtain the services of a private investigator" in order to locate defendants and obtain verifications. In reply, plaintiffs asserted that sanctions were warranted because defendants waited four months before hiring a private investigator and neither communicated with plaintiffs' counsel to attempt to avoid a motion nor offered to pay the costs of filing the motion.

At the hearing on October 22, 2019, the court denied the motion as moot, but granted sanctions of $1,300 against Chausse individually, to be paid within 30 days.

Defendants subsequently served unverified responses to requests for admission, set one, for Nash and demand for production, set two, for Chausse. On November 19, 2019, plaintiffs filed a motion to compel further verified responses and requested monetary sanctions. Defendants did not file any opposition.

At the motion hearing on January 16, 2020, the court granted the motion as to the missing verifications. The court ordered defendants to provide verifications within 20 days and granted sanctions of $500 against defendants only.

In February 2020, the parties stipulated to continue the trial to May 22, 2020. The trial was subsequently continued to June 2021 by the court due to the COVID-19 pandemic. On June 18, 2020, plaintiffs served on defendants section 998 offers to compromise of $94,999.99 for Jesse and $9,999.99 for Barbara. Defendants did not respond.

B. Nash's deposition and related records

In August 2020, plaintiffs served Nash with a deposition notice and demand for production of documents, including documents related to her cell phone usage on the date of the accident. Nash attended her deposition on September 21, 2020, but failed to produce the requested documents or serve objections to the requests. Nash testified at her deposition that her counsel never provided her with the deposition notice and she did not look for the documents requested, although she had obtained her cell phone records in the past on an unrelated matter. Nash testified that at the time of the collision, she was talking to her fiance on her cell phone using a hands-free Bluetooth system.

Nash also testified that she was not aware the court had issued two sanctions orders against her and Chausse. She had never seen the sanctions orders until plaintiffs' counsel showed them to her during her deposition. She also testified that she told her mother about the orders during a break in the deposition, and Chausse was not aware of them either.

On December 10, 2020, plaintiffs moved to compel Nash to complete her deposition and produce the requested documents. Defendants opposed the motion.

At the hearing on January 12, 2021, at which Spriggs appeared, the court granted the motion, ordering production of the requested documents at Nash's continued deposition within 30 days. The court also imposed $1,460 in sanctions against Nash and her counsel.

However, Nash did not comply with the court's January 2021 order. When Nash appeared for a second session of her deposition on February 10, 2021, she had not produced the court-ordered documents, including her cell phone records and photos of her vehicle after the collision, and had not paid the prior sanctions (due on February 1). At the second deposition session, Nash testified that her attorneys had given her the deposition notice only two days prior, and she had looked for her cell phone records online, but they did not go back far enough in time. Nash then called and requested the records from her carrier's customer service department. During the deposition, KRS attorney Ronald Carlson questioned whether "you really need the [phone] records" if Nash was admitting liability.

When plaintiffs' counsel showed Nash the January 2021 notice of ruling, she testified she had never seen it before and was not aware of the $1,460 in sanctions ordered against her and Chausse. Carlson told plaintiff's counsel at the deposition that he "ha[d] no idea the status" of the payment of the prior sanctions. The parties agreed to a date for payment of the sanctions and production of documents, followed by a third session of Nash's deposition on March 25. But after defendants failed to meet the agreed-upon deadlines, plaintiffs took the deposition off calendar and on March 30, 2021, filed a motion to compel compliance with the court's prior order. Plaintiffs sought $4,713 in sanctions, plus $1,500 in "enhancement" sanctions for failure to pay the prior sanctions amount.

Defendants did not file an opposition to the motion to compel. At the hearing on May 20, 2021, the court asked Carlson why KRS had not complied with the court's January 2021 order for the past four months. Carlson stated he was not familiar with court's prior order.³ The court granted the motion, ordering Nash to attend a third day of deposition by June 3. The court awarded $3,613 in sanctions against Nash and her counsel, due by May 27, 2021, but denied the request for enhancement sanctions. The court also issued an order to show cause (OSC) regarding the status of compliance with the court's order, to be heard on May 27, 2021, and ordered Spriggs and Nash to appear personally at the hearing.

3 This statement by Carlson is not in the court's minute order of the hearing, and there was no court reporter present. It was included in a later declaration by plaintiffs' counsel in support of the motion for terminating sanctions, noting that despite his disclaimer, Carlson had represented Nash at her second deposition session during which that order was discussed. The statement remains undisputed.

On May 25, 2021, Carlson filed a declaration in advance of the scheduled OSC, stating that Spriggs could not attend because he was in trial until May 28. Carlson appeared on behalf of Spriggs and defendants at the hearing on May 27, reporting that the sanctions check was sent to plaintiffs' counsel the previous day. The court continued the OSC to June 2, again ordering Spriggs and Nash to appear.

Carlson submitted another declaration on May 28, 2021, stating that Spriggs was still in trial, which was now expected to last through June 4. Spriggs submitted a declaration stating the same.

Richard McFarlane appeared for KRS at the June 2 hearing. Nash was also present. Plaintiffs' counsel reported that the May sanctions had been paid but the January sanctions remained outstanding. McFarlane told the court that he was unaware of the January sanctions order. He also stated that KRS had subpoenaed Nash's cell phone records. According to the minute order of the hearing,⁴ the court "discusse[d] potential peril for Defendant[s] under current circumstances, the potential effect on trial, and the 17 pending motions to compel Defendant's discovery responses with a July 30 trial date." Plaintiffs' counsel later submitted a declaration recalling that the court "advised Ms. Nash and her counsel of the repeated discovery violations and warned them that there would be consequences for additional violations."

4 There was no court reporter at the hearing.

Plaintiffs indicated that they intended to file a motion for terminating sanctions and requested an expedited hearing. The court set an expedited briefing schedule and a hearing on June 17, 2021. The court continued the OSC to June 9.

C. Motion to compel Nash's handwritten discovery responses

In the meantime, plaintiffs filed another motion to compel on April 7, 2021 seeking further responses to request for production set three, number 20.⁵ That request was based on testimony given by Nash at her first deposition. When plaintiffs' counsel showed Nash her special interrogatory response stating that she "contends she is not responsible for the incident," Nash replied, "I did not say that. That is - that is incorrect. I don't know where that would come from." When shown her response that Jesse "caused the incident after [Nash] stopped to check for traffic and safety and seeing that [Jesse] was stopped," Nash testified that response was "incorrect. I never . . . claimed that he was stopped, no." She also denied claiming that Jesse caused the collision. When shown her verification, signed September 3, 2019, she recalled signing it, but understood it was for "my actual handwritten responses." She denied ever reviewing the typed responses served by KRS and stated that her initial handwritten responses differed from the typed responses. Nash recalled sending her handwritten responses to counsel by email or mail. When plaintiffs' counsel asked defense counsel Qinglan Ye to explain the discrepancy, Ye stated she did not have personal knowledge of how the responses were prepared and would need to "look into" it and speak with the paralegal.

5 In April 2021, plaintiffs also moved ex parte to continue the trial to July 2021, based on the pending discovery issues. The court granted that application.

Plaintiffs subsequently propounded the discovery request at issue, seeking all documents relating to the handwritten discovery responses Nash identified. Nash provided no substantive response, but objected to the request on the basis of attorney-client privilege and work product.

Defendants opposed the motion to compel, arguing that the handwritten document provided by Nash was a draft or notes and therefore privileged. At the hearing on June 3, 2021 the court granted the motion and ordered defendants to produce the documents within seven days. The court also ordered $1,810 in sanctions against KRS.

On June 10, 2021, KRS submitted a declaration from a paralegal, stating that after a search, she had determined that the documents requested "have never existed or been [sic] destroyed, lost, misplaced, or stolen, and are no longer in the possession, custody, or control" of Nash or KRS.

D. May 2021 motions

In May 2021, plaintiffs filed motions to compel 13 sets of discovery, including requests for admission, document requests regarding insurance and any sub rosa documents,⁶ supplemental interrogatories, and supplemental demands for production. These discovery requests were served on defendants on April 7, 2021. As of May 24, 2021, when plaintiffs filed their motions, defendants had neither responded nor requested any extensions. Plaintiffs sought monetary sanctions between $1,110 and $2,160 for each motion.

6 The requests for sub rosa documents sought, for example, details about any photographs or video taken by defendants of Jesse since the accident, or any surveillance of Jesse conducted since the accident.

Defendants did not oppose any of the motions to compel. Plaintiffs ultimately took three of the 13 motions off calendar. As of early June, defendants had yet to provide any responses to the remaining 10 sets of discovery.

The court granted the remaining 10 motions to compel in hearings on June 29, July 13, and July 16, 2021, all attended by McFarlane for KRS. This included two motions to deem requests for admissions admitted, as defendants had never responded. The court also imposed over $12,000 in sanctions on these motions against defendants and counsel.

IV. First Motion for Terminating Sanctions

Plaintiffs filed their first motion for terminating sanctions on June 4, 2021, arguing that defendants had failed to produce records and failed to pay monetary sanctions in violation of multiple court orders. Plaintiffs sought additional monetary sanctions of $4,260.

Plaintiffs outlined the progression of motions and noncompliance over the past several months and reported that as of the date of the motion, Nash had neither produced her cell phone records nor paid the prior sanctions. They argued that defendants' discovery abuse affected plaintiffs' ability to prove causation and damages, because without the cell phone records, "they will be less capable of impeaching [Nash's] rendition of a less severe collision than they otherwise would [be] had Defendant complied."

In opposition, defendants stated that Nash did not dispute liability, "only causation and damages." McFarlane reported that the sanctions had been paid, but Nash "has not been able to comply with the request" seeking her cell phone records. Defendants suggested that evidentiary or issue sanctions regarding negligence would be more appropriate than terminating sanctions. In a supplemental declaration submitted by McFarlane, he stated that KRS had served a subpoena for documents on Nash's cell phone carrier on May 11, 2021, with the production due on June 9, 2021. However, as of June 10, KRS had not received any documents.

In reply, plaintiffs argued that Nash's cell phone records and any corresponding deposition testimony were relevant to "issues beyond liability-namely, causation, damages, and her credibility." Plaintiffs noted that Nash testified in her deposition that she saw Jesse slow in the moments leading up to the collision and believed he was traveling between 30 and 40 miles per hour, under the speed limit of 55. Plaintiffs argued that such testimony "unquestionably goes to causation and the severity of [Jesse's] injuries." Further, plaintiffs asserted that if Nash was talking or texting at the time of the collision, it could affect her ability to observe Jesse's movements and estimate his speed.

McFarlane appeared for KRS at the hearing on June 17, 2021 regarding the terminating sanctions and the OSC. Plaintiffs' counsel confirmed that they received $1,460 in sanctions on June 16, 2021; the court therefore discharged the OSC regarding sanctions. The court indicated it was not inclined to issue terminating sanctions, given that defendants had paid the sanctions "even though they are very, very late," and because KRS had issued a subpoena for Nash's cell phone records. However, the court stated it was considering issue and/or evidentiary sanctions, and asked plaintiffs to submit additional briefing regarding what sanctions would be warranted. On the outstanding issue of the missing handwritten discovery responses from Nash, the court indicated that the paralegal's declaration was insufficient, as it merely parroted the statutory language that the documents "never existed [or were] destroyed, lost, misplaced, or stolen." Instead, the court ordered KRS to provide "a specific explanation of what happened to those notes," including "how your client transmitted those notes to your law firm[, w]hat happened to them at that point . . . and why you can't find them now."

The court also asked about the status of the 13 outstanding motions to compel. McFarlane stated that defendants responded to all of the discovery the day before. The court continued the hearing on two motions to compel to June 29 and directed plaintiffs to review the new responses and determine if the motions should remain on calendar. The court continued the hearing on the motion for terminating sanctions and the OSC regarding the status of compliance with the court's order to July 8, 2021.

Defendants submitted a supplemental brief, stating that they had "fully complied with the court's orders and Plaintiff's discovery requests." Specifically, defendants stated that all monetary sanctions had been paid and discovery responses, including "cell phone bills," had been produced. Defendants also submitted a second declaration by the same KRS paralegal, stating that she had "personally searched our offices and the physical and electronic files and can confirm that no notes from our client Shayna Nash regarding her responses to written discovery [sic]." She also stated that the employees who handled initial discovery "are no longer with the firm and uncontactable." She was unable to confirm or deny whether KRS ever had handwritten responses from Nash, but if the firm did, "I can confirm that they have been lost."

McFarlane appeared for KRS at the continued hearing on July 8, 2021. Reporting on the status of compliance, plaintiffs' counsel stated that they had received some cell phone records but had not been able to depose Nash on the records. He also stated that several of the sanctions had not yet been paid. McFarlane stated that he had tried to follow up regarding payments but had not yet received an answer. The court continued the OSC to July 15 and ordered plaintiffs to provide briefing regarding details on any outstanding sanctions.

Turning to the motion for terminating sanctions, the court stated that it was a "hard question," and recognized the purpose of sanctions to "remedy the discovery abuse and not to punish the offending party." The court found that the case was "replete with a history of misuse of the discovery process," cataloguing the two orders to deem requests for admission admitted, orders granting six separate motions to compel, including a motion to compel compliance with a prior court order, and awarding $8,343 and at least $3,270 in sanctions against Chausse and Nash, respectively. Moreover, "there are eight more discovery motions to compel on calendar, two monetary sanctions orders appear to remain unpaid, and a trial date of July 30, 2021. The fact that the Court needed to impose monetary sanctions in at least five separate orders demonstrates that monetary sanctions do not persuade Defendants to comply with discovery requests."

On the other hand, the court recognized that the cell phone records had been produced. The court also noted defendants' assertion that "there is nothing left to compel," which "proved to be untrue" when, on June 29, 2021, the court granted additional discovery motions against defendants, in addition to the eight motions still pending. The court found that the history of discovery abuse was willful "given the numerous orders that are required to be issued to force the most basic of compliance. The defense, through statements by counsel, insists over and over that they are fully compliant, only to be faced with proof of their continued noncompliance." However, the court found it was unclear the extent to which these issues were attributable to Nash and Chausse, as opposed to their counsel. Based on Nash's deposition testimony regarding her handwritten discovery responses and the paralegal's declaration "that can provide no information at all as to what happened to those handwritten responses, it appears to this Court that there is significant evidence that much, if not all, of the problem may be with counsel." The court therefore stated it was not inclined "to punish defendants for what appears to be acts by their counsel," and concluded that "terminating sanctions are not appropriate at this time (although the court makes this order without prejudice)."

Turning to the issue and evidentiary sanctions, the court considered the missing handwritten discovery responses, noting that it remained unknown "what else may have been addressed in those handwritten discovery responses, and what other formal discovery responses served by counsel on [Nash's] behalf may have been in variance, if any." The court rejected defendants' counsel's assertion that the responses were only relevant to the conceded issue of liability. As the court explained, "The missing handwritten responses, responses that Defense Counsel aggressively defended the production of in deposition, in the opposition papers, and at the hearing on the motion to compel production, are only disclaimed by counsel after the court order for their production, with the assertion they have no ability at all to provide anyone with any information as to what was on them, and what happened to them, other than that they are gone."

The court then issued the following sanctions:

1) Liability is resolved in Plaintiff's favor.

2) No witness from the defense side may proffer evidence on the issue of liability.

3) Nash must sit for a second deposition within the next seven days, with the questions limited to the recently-produced cell phone records.

4) Within seven days, defendants must provide "under the penalty of perjury, the name and last known contact information...of every employe/agent, subcontractor employee/agent, or vendor employee/agent of [KRS] who touched or had any involvement whatsoever in the preparation and/or handling in any way of Defendant Nash's written discovery responses to special and form interrogatories, set number one." 5) The jury will be given a special jury instruction on the willful suppression of evidence (a modified version of CACI 204) regarding the handwritten discovery responses.

6) "The jury will be provided with the two following deemed facts: a. Plaintiff was knocked unconscious by the accident. b. Upon Plaintiff regaining consciousness at the scene of the accident, he was walking around, visibly injured." The court also ordered sanctions of $4,260 against Nash and counsel, payable within 15 days.

V. Additional Discovery Disputes

On July 13, plaintiffs reported that only three of the ten sanctions orders had been paid. The outstanding sanctions included those ordered against Chausse only in October 2019 ($1,300) and Nash only in January 2020 ($500). They also included $6,180 from the order granting four motions to compel on June 29, 2021, and $4,260 from the order on the motion for terminating sanctions, due by July 23, 2021. Plaintiffs also noted that responses to the demand for production, set four were due from Nash by July 9, 2021, following the court's June 29, 2021 order granting the motion to compel on that discovery, but no responses had been received.

On July 19, 2021, plaintiffs filed an ex parte application regarding a motion to compel compliance with a prior court order. They argued that Nash had not provided responses to the demand for production, set four, as ordered by the court on June 29, 2021. Because trial was set for July 30, 2021, plaintiffs sought an expedited briefing and hearing schedule.

At the final status conference on July 21, 2021, the court continued the trial date to August 6, 2021 at plaintiffs' request . The court also set the hearing date on the motion to compel compliance for July 27, 2021. At the July 27 hearing, the court ordered defendants to "comply with all orders" by July 30, 2021.

VI. Second Motion for Terminating Sanctions

Plaintiffs each served a statement of damages on defendants on August 3, 2021 by email. Jesse claimed general damages of $100 million, including $50 million each for pain and suffering and for emotional distress. He also claimed special damages of $8.5 million, including $500,000 for past medical expenses, $6 million for future medical expenses, and $2 million for loss of future earning capacity. Barbara claimed general damages of $50 million for loss of consortium.

Also on August 3, plaintiffs filed a motion to renew terminating sanctions, and an ex parte application for an expedited briefing and hearing schedule. They asked for shortened time due to the trial date of August 6, 2021.

In their motion, plaintiffs argued that defendants refused to comply with three prior court orders compelling discovery. First, on July 13, 2021, the court ordered Chausse to provide responses to demands for production, regarding sub rosa and insurance documents (sets three and four, respectively) by July 23, 2021. However, no responses had been provided. Second, on July 16, 2021, the court ordered Nash to provide verified, amended responses without objections to demand for production, set six regarding insurance by July 26, 2021. On August 3, 2021, Nash provided responses that asserted general objections. The responses also purported to attach responsive documents in exhibit 2, which was not provided. Third, on July 27, 2021 the court ordered Nash to provide responses to demand for production, set four regarding sub rosa documents by July 30, 2021. This order was a result of plaintiffs' motion to compel compliance with a prior court order issued June 29. At the July 27 hearing, according to plaintiffs' counsel, the court asked defense counsel McFarlane to explain why defendants had not complied with the earlier order. McFarlane stated he did not understand why the discovery responses were still required after defendants admitted liability. The court granted the motion, ordering compliance with all prior orders by July 30, 2021 and also told plaintiffs that they could seek further sanctions if defendants did not comply. Defendants did not serve any further responses. Plaintiffs also complained that while Nash had produced her cell phone bills, after three court orders compelling compliance plus issue and evidentiary sanctions, she had not produced the logs that would show whether she was using the hands-free device as she claimed or whether she was on the internet at the time of the collision.

Plaintiffs argued that terminating sanctions were warranted given defendants' repeated failures to comply despite imposition of lesser sanctions by the court, including over $27,000 in monetary sanctions, and multiple orders requiring compliance. They contended that the missing evidence "substantially impacts causation and damages," and therefore they would be prejudiced absent terminating sanctions.

At a hearing on August 4, 2021, the court granted plaintiffs' ex parte application for shortened time. McFarlane, appearing for defendants, told the court that "we've complied, your honor. Everything was sent to them yesterday." Plaintiffs' counsel agreed that they had received responses, but "they are still deficient." The court set the hearing on the motion for August 10 and continued trial to August 13, 2021. The court ordered defendants to file their opposition by August 6. Defendants raised no objection to the briefing schedule or the hearing date.

In opposition, defendants argued terminating sanctions would serve only to punish them, as prior sanctions had already established liability and causation in favor of plaintiffs. Because the evidence requested was only relevant to those issues, the motions to compel were moot. Defendants also stated that they had complied with the court's orders, "albeit late," by serving responses on August 3, 2021.

At the hearing on August 10, 2021, the court asked about the state of compliance, and plaintiffs' counsel responded that the responses were missing documents purportedly attached as exhibit 2, defendants continued to assert general objections as to attorney-client privilege but had not produced a privilege log, and defendants did not provide verified responses regarding the sub rosa requests for production. He also stated that defendants had provided cell phone bills, but no other data including time stamps or information regarding use of a hands-free device, which plaintiffs had requested.

The court indicated its tentative ruling to grant the motion for terminating sanctions, noting that there had been "14 discovery motions and tens of thousands of dollars of monetary sanctions issued," as well as evidentiary and issue sanctions and a jury instruction regarding willful suppression of evidence. The court stated it had been "deeply dismayed" at the time of the original hearing on terminating sanctions, and that hearing was followed by "continued noncompliance," including noncompliance with expert discovery requirements.⁷ The court continued, "[t]he entire tenor of the defendants['] response to all of this has been, 'well, just issue a sanction. Liability is already determined, causation is already determined so what is the big deal?....' But the fact of the matter is, all of this just looks to me like a complete disrespect by the defendant[s] for the necessity of complying with court orders. So I think I have tried to give you lesser sanctions and . . . it has not pressed upon the defendant[s] the importance of complying with court orders."

7 At the time of this hearing, there were also multiple motions in limine pending in which plaintiffs moved to exclude defendants' experts from testifying at trial. In one such motion, plaintiffs claimed that defendants had demanded exchange of expert reports but then failed to produce the reports of their expert witnesses until months later. Plaintiffs also moved to exclude any testimony contrary to the requests for admission that had been deemed admitted, including admissions that Jesse's past medical care was reasonable and necessary and that he would need future care. Plaintiffs argued that defendants were attempting to circumvent the court's order deeming the requests for admissions admitted by offering contrary expert testimony. In opposition to the motions in limine, despite having failed to serve responses or oppose the motions to compel, defendants argued that deeming the requests for admissions admitted at trial "denies defendants due process of law."

The court also noted the prejudice to plaintiffs in the late production of discovery, when "discovery is largely closed" and trial was scheduled to start in three days. The court concluded that it had "no confidence that you - the defendants really had any respect for the discovery process and the order of this court." The court stated it would allow defense counsel to argue and "make your record." McFarlane, appearing for defendants, responded, "Submitted."

The court thus granted the motion for terminating sanctions, striking the answers filed by Chausse and Nash and entering their defaults. The court also granted plaintiffs' request for a default prove-up by jury pursuant to section 585, subdivision (b). The court ordered "the parties . . . to return to court" on August 13, 2021.

VII. Damages Trial and Judgment

Between August 10 and the start of trial on August 13, defendants did not make any request for relief or attempt to continue or stay the trial. The damages trial began with voir dire on Friday, August 13, 2021, plaintiffs presented evidence August 16 through 18, and the jury returned a verdict on August 18. Defendants did not attend the trial, nor did any KRS attorney. A representative from Allstate was present only on the final day at the reading of the verdict.

There was no court reporter present during the trial. Thus, the only information in the record regarding the proceedings is from the court's minute orders, which include a summary of the witnesses who testified and the exhibits introduced, and a declaration submitted by plaintiffs' counsel, which includes a summary of the evidence presented. Defendants adopted that summary in their briefing on appeal.

California Highway Patrol officer Jason Murawski, who responded to the accident, testified regarding the violent nature of the collision, that Jesse's truck rolled over, and that Jesse was visibly injured. Plaintiffs introduced photographs of the scene and the parties' vehicles after the accident, Nash's cell phone bill, and a map of the route. Plaintiffs also played a portion of Nash's deposition for the jury.

Plaintiffs presented testimony from four medical professionals, along with Jesse's medical records. Radiologist Dr. Ray Hashemi testified regarding the injuries to Jesse's brain and spine. He testified that Jesse experienced a traumatic brain injury (TBI) which caused permanent loss of brain tissue. Dr. Hashemi testified that it was common for a TBI to cause loss of executive function, including difficulties with organizing tasks, controlling impulses, and processing changes to daily routines, and that the TBI could also cause confusion, mood changes, memory changes, headaches, poor judgment, and loss of empathy.

Dr. Christopher Stephenson, a physician certified in brain injury medicine, testified that Jesse suffered a TBI with loss of consciousness, post concussive syndrome, PTSD, and post-traumatic anxiety. He also testified about the anticipated progression and deterioration of Jesse's brain injury, and opined that Jesse would need treatment with multiple specialists for the rest of his life. Dr. Stephenson opined that due to Jesse's emotional and mental injuries, it would be detrimental to his mental health to testify at the proceeding.⁸

8 Jesse did not testify.

Pain management specialist Dr. Narinder Grewal, one of Jesse's treating physicians, testified that he agreed with Dr. Hashemi, who found that Jesse ruptured discs at every level of his cervical and lumbar spine. Dr. Grewal opined that the ruptured discs caused Jesse to suffer constant pain in his neck and low back. He testified that he had been treating Jesse with a variety of pain management techniques, devices, and medications, but none completely relieved Jesse's pain. Instead, Jesse could expect that pain would be part of his everyday existence for the rest of his life.

Neurosurgeon Dr. Fardad Mobin testified that he performed a fusion surgery on Jesse's lumbar spine. Dr. Mobin stated that although the surgery was a success and helped stabilize the spine, Jesse would continue to suffer from pain and discomfort in his spine. The fusion surgery also resulted in increased pressure and wear and tear to the discs around the fusion. He opined that Jesse would ultimately require a revision of the fusion due to the significant damage to the discs caused by the collision. Dr. Mobin also testified that Jesse would need two cervical fusions to his neck in the future to address the limitations and symptoms from the compression of nerves. Ultimately, Dr. Mobin testified that Jesse would need to implant a spinal cord stimulator.

Barbara testified regarding the effect of Jesse's injuries on their day-to-day life and their relationship. She stated that due to his back and neck injuries, Jesse had a severely decreased range of motion and was in constant pain. He could not perform many basic self-care tasks and did not sleep well. He was also sensitive to sound, and excessive activity caused him to lose his temper; as a result, their grandchildren could no longer visit the home. Previously easygoing, Jesse now had fits of temper and surliness, and exhibited a general lack of interest in their lives. Barbara testified that Jesse was not the same man she married, and she often felt unloved and invisible in his presence.

After plaintiffs rested, the court granted their motions for directed verdict on liability and causation. The court also found that the evidence of economic damages was presented to the satisfaction of the court, and therefore it granted plaintiffs' motion for directed verdict on economic damages in the amount of $371,113 for past medical expenses and $8.8 million in future medical expenses.

Plaintiffs then presented closing argument. The court instructed the jury that the following facts, among others, as alleged in the FAC were deemed true for the purposes of trial: Nash negligently failed to yield at the intersection, causing the collision; Chausse knew or should have known that Nash was unfit to drive the car; and the injuries Jesse sustained as a result of the collision "have greatly impaired his health, strength, and activity, and have caused and continue to cause him mental, physical, and nervous pain and suffering and [a] shock to his nervous system." It was also deemed true that as a result of the collision, Jesse was required to seek continuing medical care for his injuries, he was "prevented from performing his usual occupation . . . or has otherwise suffered a reduction in his capacity to work," and he was "no longer able to perform the services of a husband he previously rendered" to Barbara.

The jury returned a verdict after less than an hour of deliberations on August 18, 2021. The jury returned a special verdict awarding $96 million to Jesse for noneconomic losses, including pain and suffering and emotional distress, and $24 million to Barbara for loss of consortium. The award for economic damages was reduced to $6,371,113 consistent with Jesse's statement of damages, and the verdict against Chausse was reduced to the statutory maximum liability of $15,000 under Vehicle Code section 17151. Thus, in total, the judgment for Jesse was $102,371,113, plus interest, and the judgment for Barbara was $24 million plus interest. The court entered judgment on August 20, 2021.

VIII. Post-judgment motions

Defendants associated in the law firm of WFBM, LLP as counsel on August 24, 2021.⁹ On September 3, 2021, defendants filed a notice of intention to move for new trial and for judgment notwithstanding the verdict.¹⁰

9 KRS also remained as counsel of record.

10 The motion for JNOV is not at issue in this appeal.

Allstate filed a motion for leave to intervene on September 3, 2021.¹¹ It argued that intervention was warranted to allow Allstate "to present critical evidence of plaintiffs' damages that defendants' default prevented them from presenting." Allstate contended that it had a direct and immediate interest in the action because prevailing plaintiffs could pursue the insurer directly to satisfy the judgment. Allstate also asserted that "as late as July 28, 2021, Allstate understood that plaintiffs purported to value the case at barely more than its $100,000 policy limit."

11 Section 387, subdivision (a) provides: "[I]f the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede the person's ability to protect that interest, unless that person's interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene."

In support of its motion, Allstate submitted the declaration of Suzanne Howard, the claims representative assigned to "oversee [defendants'] defense and settlement opportunities" in the case. Howard stated that she had personal knowledge of defendants' claim, and where she did not, she reviewed Allstate's records, including the "claim diary" relating to this accident. Howard stated that "[b]etween March 2019 and July 2021, I exchanged approximately 60 emails with KRS about the case." She specified that Allstate received plaintiffs' section 998 settlement demand of $104,999.98 from KRS on June 18, 2020. Then, on August 5, 2021, KRS forwarded plaintiffs' statements of damages to Howard, "which was Allstate's first notification that plaintiffs sought damages in excess of $100 million." KRS forwarded the court's order granting terminating sanctions to Allstate on August 10, 2021. Howard stated that "KRS had not previously forwarded to Allstate plaintiffs' original or renewed motion(s) for terminating sanctions," and that Howard was "previously unaware" that the court had partially granted terminating sanctions by striking defendants' answer.

Howard also declared she was "previously unaware of [defendants'] repeated and sustained noncompliance with the Court's discovery orders." According to Howard, Allstate "had no involvement in its insureds' production of documents," which was "handled solely by KRS and the insureds themselves." Howard stated that until August 10, 2021, she was unaware that defendants "would be unable to appear for, or present any defense at, the trial in this case. On the contrary, I understood that the defendants had compelling arguments" challenging Jesse's damages claims. Howard reported that "[a]fter learning the trial would begin August 13, 2021," Allstate engaged new counsel for defendants and its own separate counsel to pursue relief from the judgment.

Plaintiffs filed a motion seeking to conduct discovery as to Allstate, including taking Howard's deposition and for production of the claims file. At the September 14, 2021 hearing on this issue, the court indicated that it agreed with Allstate that the requested discovery sought privileged information. However, the court cautioned counsel for Allstate that "uncorroborated, broad statements are not going to be all that persuasive" as support for Allstate's motion to intervene and forthcoming post-judgment motions. The court suggested that Allstate could provide some information that was not privileged, such as "dates without contents" of email communications. Plaintiffs' counsel observed that Howard's statement in her declaration regarding emails did not address whether there were other forms of communication between Allstate and KRS during that period.

Allstate's counsel argued that until August 10, "there was no reason to believe that the insureds were not going to be able to contest damages at trial." Plaintiffs' counsel disagreed, arguing that Allstate's interest was implicated "much, much earlier on," including the point where the court issued evidentiary sanctions.

The court indicated that it was not going to order further discovery, given the privilege issues, but that plaintiffs could argue in their briefs opposing Allstate's motions regarding the vague statements proffered by Allstate, and Allstate could decide how much more information to provide, and then "we have to just let the chips fall where they may based upon the statements of the proof proffered."

The court held a hearing on September 23, 2021 on Allstate's motion to intervene. Allstate reported that it had retained new counsel for defendants, as well as its own counsel, on August 18, 2021. Indicating its tentative ruling to deny the motion, the court noted that when looking at discretionary intervention, the question was whether there was a reasonable delay before moving to intervene. Here, the court stated that "there was more that might have been done earlier." The court noted that Howard's declaration provided little information, and the information it did contain suggested that KRS "was very prompt" in sending updates and litigation materials, and it was "hard for me on this record to then infer that they weren't doing anything else." The court also noted the language in Howard's declaration that she did not receive any formal statement of damages until it was forwarded by KRS on August 5, but "it doesn't say that you didn't know on August 3rd that there was no phone call, . . . no email, it just says you didn't receive the actual pleading until the 5th."

The court also cited Howard's statement that KRS forwarded the order granting terminating sanctions to Allstate on August 10, but that KRS had not previously sent the underlying motion to Allstate. The court found this wording "strange," as it referenced specific pleadings but did not indicate that Howard "hadn't really been aware of what was going on about the renewed motion." The declaration was also "completely silent on knowledge regarding the prior motion for terminating sanctions where the court . . . issued what I thought at the time were fairly severe evidentiary sanctions and it was my deep . . . hope at the time that somehow the defendants would take the message and do the right thing." The court thus reasoned that "[g]iven the history of this quick forwarding the important issues" from KRS to Allstate, "I can't really find that August 10 was the day" that Allstate was first aware of a danger of terminating sanctions. The court then noted the "delay" after August 10, when Allstate knew default had been entered. The court stated it did not understand why neither defendants nor Allstate had a representative attend the trial until the verdict was read on August 18. Further, Allstate did not file its motion until September 3, which the court found was "a lot of time." The court continued, "in the context of what . . . has happened in this case, I think that was too much time. I don't think it was reasonable."

Allstate's counsel indicated that its motion to intervene was "precautionary," in the event that defendants lost their motions to set aside default and for a new trial. He argued that Allstate moved to intervene "when it realized it was going to be impossible to contest damages," which was on August 10. At the conclusion of the hearing, the court continued the motion to be heard with the post-trial motions forthcoming from defendants.

Defendants filed their motion for new trial pursuant to section 657 on September 23, 2021. They argued that plaintiffs' statements of damages were not served within a reasonable time before the defaults were entered, violating defendants' due process rights. They also argued that terminating sanctions were "too harsh" because the discovery misconduct was not attributable to defendants, the misconduct was not willful, and the outstanding orders "dealt with the moot issue of liability." They contended that there "were other, less drastic discovery and issue sanctions that the Court could (and should) have explored" prior to imposing terminating sanctions. In addition, they asserted that the damages award was excessive.

At the same time, defendants also filed a motion to vacate or set aside the default and default judgment pursuant to section 473(b). They argued that they were entitled to mandatory relief under the statute because their motion was accompanied by an attorney affidavit of fault. Spriggs submitted a declaration as the attorney who was "ultimately responsible for all instances of attorney mistake, inadvertence, and neglect." Spriggs stated that throughout the litigation, he was "preoccupied with other cases, involved in trial, or otherwise unavailable to attend to the needs of this matter." He also stated that he "did not ensure that the matter was properly staffed and receiving proper attention," noting that KRS had a "heavy trial calendar" during the relevant period, his office "suffered significant associate and staff turnover" during the COVID-19 pandemic, and one of the associates assigned to the case, Carlson, had "significant health problems." Spriggs stated that the "failures to respond to discovery catalogued by this Court leading to the issuance of the terminating sanctions were due in large part to my own and my associates' mistakes, inadvertence, and neglect."

Chausse and Nash also filed largely identical declarations supporting their post-trial motions. They stated that they did not know about "the magnitude of discovery issues" that led to the terminating sanctions until after August 20, 2021, and they "never knowingly refused to produce any information requested by Plaintiffs or to comply with any order of the Court." Thus, they stated that the "$140+ million dollar judgment and the events leading up to the judgment, including the extent of the underlying discovery issues and orders, the Court's imposition of issue and evidentiary sanctions, the colossal amount of damages requested in Plaintiffs' Statements of Damages, and Plaintiffs' motions for terminating sanctions, were therefore a devastating shock and complete surprise to me."

Plaintiffs opposed the motions. They argued that they properly served the statements of damages prior to entry of default, and that any surprise "as to the severity of [Jesse's] injuries was due to Defendants' own failures, since they elected to depose only one of Plaintiffs' 14 experts." Plaintiffs also contended that defendants did not meet their burden to show that the damages were excessive.

In opposing the motion to vacate, plaintiffs argued that defendants knew of the discovery violations as early as September 2020. They also argued that the Spriggs declaration was insufficient to establish attorney error warranting relief.

At the hearing on October 27, 2021, the Court asked whether there was discovery outstanding as of the hearing on terminating sanctions. New counsel for defendants largely confirmed plaintiffs' contentions regarding which documents were still missing. She also said she understood that in the written responses to requests for sub rosa documents, defendants stated they had no such documents. Plaintiffs' counsel disputed this, stating that defendants provided only an unverified response, which did not state that there were no sub rosa documents and continued to assert attorney-client privilege.

Plaintiffs' counsel also stated that when they met and conferred, McFarlane refused to confirm whether sub rosa evidence existed and that he would "have to get back" to plaintiffs on the issue. Defense counsel admitted she did not know whether such documents existed, prompting the court to note the continuing pattern of defense counsel at hearings saying they did not know the status of pending discovery.

The court also addressed notice of damages as to both Allstate and defendants. The court noted that Allstate's papers suggested that Allstate felt the claim was overstated even at $100,000, so the court was not sure what Allstate would have done differently with additional notice. Allstate's counsel responded that as soon as it received the statement of damages, Allstate "began taking action to get involved" retaining its own counsel and new counsel for defendants. Plaintiffs' counsel argued that although both Allstate and defendants had actual notice of the damages sought prior to entry of the default judgment, defendants did not ask for more time to oppose the motion for terminating sanctions, Allstate did not seek to intervene prior to the trial, and neither sought to continue the trial.

The court also queried whether Allstate was estopped from arguing that there was no evidence it knew of the escalating issues, because it had asserted privilege to prevent any discovery beyond the Howard declaration. Plaintiffs' counsel agreed and argued that there was no evidence in the record of "what Allstate knew, when it knew it."

The court denied the JNOV and took the rest under submission. The court issued a lengthy written order on November 2, 2021 denying all of the motions. After reviewing the procedural history of the case, the court turned to defendants' motion to vacate default and default judgment. The court found that defendants were not entitled to mandatory relief under section 473(b) because of the exception for intentional wrongdoing. In particular, the court found that the "failures to comply with discovery orders in this case was [sic] not caused by a lack of supervision, but rather, was [sic] the result of Defendants' tactical decisions." The court cited the fact that defense counsel "openly questioned the need to comply with discovery orders because in their opinion, since Defendants were conceding liability, the discovery sought was not relevant," and that defense counsel asserted full compliance with discovery obligations, an assertion that was repeatedly proven false.

Moreover, the court found that "[h]aving failed in this tactic, Defendants did not improve," as defense counsel continued to falsely assert that defendants had fully complied with the court's orders while also arguing alternatively for an additional evidence sanction barring any "allegedly missing discovery," such as any sub rosa evidence. The court found that "counsel knew his statement about Defendants' full compliance was false when he made it." The court also found that defendants had willfully reverted to stating that responsive documents did not exist, which did not comply with statutory requirements. Defendants were well aware of these requirements, as they were the specific subject of the court's rejection of the first declaration submitted by the KRS paralegal. Thus, the court concluded that "the tenor of Defendants' approach to discovery throughout the motions leading up to the terminating sanctions has been that compliance with discovery orders was not necessary because Plaintiffs' discovery sought irrelevant information, and this trial was going to be about disputing damages. As a result, Defendants' approach, argument, and papers have demonstrated that Defendants were willing to take whatever evidentiary and issue sanction the Court might impose - and make repeated inaccurate statements to the Court in that pursuit - because what they thought to be 'tailored' evidentiary or issue sanctions would not ultimately impact their goal - to litigate damages at trial." The court thus found that defendants and their counsel "believe it is not necessary for a party or counsel to comply with . . . a court's discovery orders for information that Defendants unilaterally deem irrelevant."

The court also noted that Spriggs's affidavit of fault was "the first time Defendants assert[ed] that the discovery violations were due to his inattention, because of a heavy trial calendar, COVID-19, employee turnover, and personnel issues." Such inconsistencies "raise the Court's concerns about the credibility of Spriggs' affidavit."

In addition, the court rejected defendants' claims that they did not know about the wrongdoing by Spriggs. Noting that it was not required that defendants have a "wrongful intention to disobey discovery rules," but that an intentional failure to comply could be sufficient, the court observed that it had personally advised Nash at the June 2, 2021 hearing that "the discovery path on which she was treading was perilous to her defense." The court also cited the discussion of sanctions during Nash's deposition and her statement that she had told her mother about them. Pointing out that defendants stated in their declaration that they were unaware of the "magnitude of discovery issues," the court found that defendants thus conceded they knew of some issues. If, "in light of that knowledge, and in the face of having received a direct warning from this Court (and apparently one from Plaintiffs), Defendants took no active steps to ensure the discovery problems would be corrected going forward, Defendants' assertions that they were unaware of the precise magnitude cannot excuse the discovery misconduct." The court found that the burden was on defendants "to show that their failure was not willful," and they had not met that burden, as defendants "understood their obligation, had the ability to comply, and did not comply." The court also found evidence in the record of defendants' "direct, active discovery misconduct," including Nash's failure to comply with the request for cell phone records and the use of a private investigator to coerce cooperation early in the case.

As such, the court did not find the declarations of Nash, Chausse, or Spriggs credible. The court therefore denied the motion to vacate default and default judgment on the basis that "defendants engaged in willful misconduct such that they are barred from mandatory relief" under section 473(b).

The court also denied the motion on the additional ground that it was not in the "proper form." The court found that a party seeking mandatory relief must "also comply with the violated discovery order(s) as part of the request for relief." Here, defendants filed to provide the requisite responses and document production along with their motion. Thus, the court found they had not satisfied the requirements under section 473(b).

Next, the court turned to defendants' argument that the judgment was void because they did not receive sufficient notice of plaintiffs' statements of damages. As the court observed, section 425.11 and due process require "reasonable" notice of the nature and amount of damages being sought before a default is taken. (See Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1589-1590.) The court noted that although defendants had received the statements of damages at the time of the ex parte hearing to set the briefing schedule for the motion for terminating sanctions, they made no mention of it or the amount of notice, nor did they request more time or continuance of the trial. The issue was similarly absent from defendants' opposition to the motion for terminating sanctions. Instead, defendants continued to falsely assert that they were in full compliance with all discovery orders. Defendants then submitted to the court's tentative ruling at the hearing. The court found that defendants waived any objections that they had insufficient time from service of the statements of damages to oppose the motion for terminating sanctions.

The court also rejected defendants' argument that seven days' notice between service of the statement of damages and entry of default was insufficient. The court reasoned that "[a]ctively defending this action would require Defendants to comply with the Court's discovery orders. Yet Defendants long ago decided they had no intention of complying." Thus, defendants' "implied suggestion that once they received the statement of damages on August 3, 2021, more time would have given Defendants an opportunity to choose whether to defend by complying or not complying with this Court's orders is not well taken." The court concluded that "[b]ased on Defendants' conduct throughout this litigation, the Court cannot find that Defendants were deprived of a good faith decision to relinquish or exercise their right to defend."

Further, the court denied defendants' motion for new trial under section 657, refusing to find that terminating sanctions were an abuse of discretion. In addition to its findings regarding defendants' willful failure to comply with the court's discovery orders, the court found that a terminating sanction was not improper punishment. The court found that "numerous discovery orders resulted in monetary sanctions, and they appeared to have zero effect on Defendants' non-compliance," as did "the imposition of severe issue and evidentiary sanctions." Indeed, defendants' insistence that "'ALL of the outstanding discovery orders were completely irrelevant by the time of the August 10 hearing' further illustrates Defendants had and have no intention of complying with any discovery orders, and continues to be patently false." As such, the court found that "there was no other sanction, let alone lesser sanctions, the Court could have issued that would have changed Defendants' misconduct. Further, three days before a continued trial date, there was no way to remedy the misconduct."

The court also found no new trial was warranted based on excessive damages. After reviewing the evidence presented by plaintiff and other recent verdicts in Los Angeles County, the court found that the award of $96 million in noneconomic damages to Jesse was "above the upper range of awards, even taking into account the severity of his injuries." Thus, the court remitted Jesse's noneconomic damages from $96 million to $42 million and Barbara's noneconomic damages from $24 million to $10.5 million. This reduced the total award to $58,871,113 plus interest.

As to Allstate, the court denied the motion to intervene, the motion for a new trial, and the motion to vacate judgment "in light of the Court's rulings above."

Plaintiffs accepted the remittitur and the trial court entered a new judgment reflecting the reduced amount. Defendants and Allstate timely appealed.

DISCUSSION

Defendants appeal from the trial court's order imposing terminating sanctions, arguing that the disproportionate severity of the sanctions resulted in a punishment for defendants and a windfall for plaintiffs. They also challenge the trial court's denial of mandatory relief from default and default judgment under section 473, subdivision (b), the court's refusal to vacate the default judgment based on a finding that defendants had reasonable notice of the statement of damages, and the court's denial of their motion for new trial motion. Allstate similarly contends that the trial court abused its discretion in denying Allstate's motions to vacate the judgment and for new trial, and also argues that the court erred in denying its motion to intervene in the litigation. We find no error in the trial court's orders.

I. Defendants

A. Order imposing terminating sanctions

California discovery law authorizes a range of penalties for a party's misuses of the discovery process, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. (§§ 2023.010, 2023.030; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (Los Defensores); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 (Doppes).) Misuses of the discovery process include: "(d) Failing to respond or to submit to an authorized method of discovery. [¶] (e) Making, without substantial justification, an unmeritorious objection to discovery. [¶] (f) Making an evasive response to discovery. [¶] (g) Disobeying a court order to provide discovery." (§ 2023.010.) Terminating sanctions may take the form of "[a]n order rendering a judgment by default against [the offending] party." (§ 2023.030, subd. (d)(4).)

A court has broad discretion in selecting the appropriate penalty, and we must uphold the court's determination absent an abuse of discretion. (Lopez v. Watchtower Bible &Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez), citing Los Defensores, supra, 223 Cal.App.4th at p. 390.) A trial court's decision is an abuse of discretion if it is based on an error of law or if the court's factual findings are not supported by substantial evidence. (Shapell Socal Rental Properties, LLC v. Chico's FAS, Inc. (2022) 85 Cal.App.5th 198, 213, citations omitted (Shapell).) We defer to the court's credibility decisions and draw all reasonable inferences in support of the court's ruling. (Los Defensores, supra, 223 Cal.App.4th at pp. 390-391.)

Despite this broad discretion, it has long been recognized that the terminating sanction is a drastic penalty. "A decision to impose the ultimate sanction-a judgment in the opposing party's favor-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.'" (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 297 (Parker), quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280, overruled on another point in Mileikowsky v. West Hills Hospital &Medical Center (2009) 45 Cal.4th 1259, 1273.) "'[S]anctions "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."'" (Doppes, supra, 174 Cal.App.4th at p. 992.) The discovery statutes thus "evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination." (Ibid.)

Defendants argue that the imposition of terminating sanctions here was overly harsh and therefore served to punish them, rather than correct past discovery abuses. This ignores the years of discovery misconduct, accompanied by escalating sanctions and warnings from the court, that preceded the terminating sanctions order. As the trial court detailed, at the time of the final order, it had granted tens of thousands of dollars in sanctions; plaintiffs had prevailed on over a dozen motions to compel, as well as follow-up motions after defendants failed to comply with prior court orders; and the court had already issued severe issue and evidence sanctions and authorized a jury instruction on spoliation of evidence. Despite these efforts, defendants never fully complied with the court's prior orders, instead continuing to falsely assert that they had, or insist that compliance was unnecessary.

Repeated failure to respond to discovery and to comply with court orders compelling discovery provides ample grounds for imposition of the ultimate sanction. (See Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069 (Jerry's Shell); see also Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th 262, 275; Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581.) "The court is not required to have infinite patience in these situations. A party who is unwilling to, or whose counsel is incapable of, performing the obligations of litigation with diligence should not be surprised when the right to proceed is lost." (Jerry's Shell, supra, 134 Cal.App.4th at p. 1069.) It was not an abuse of discretion for the court to conclude, given defendants' past and continuing conduct, that continuing to impose lesser sanctions would not result in compliance with their discovery obligations. Moreover, having already continued the trial twice due to discovery issues, the court was entitled to consider the prejudice to plaintiffs absent terminating sanctions-either to face further delay (and likely additional discovery disputes) or proceed with incomplete discovery.

Defendants argue that terminating sanctions were not warranted given the irrelevance of the outstanding discovery to the issues remaining for trial. Moreover, they contend that any prejudice plaintiffs might have suffered from past discovery misconduct had already been cured by the sanctions previously imposed. The trial court disagreed, as do we. As plaintiffs explained, they sought Nash's cell phone records to determine whether she was using her phone with a hands-free device, as she claimed, or was using it in another manner at the time of the accident, such as for texting or using the internet. That information could be relevant to Nash's ability to observe the circumstances of the accident, including her estimation of Jesse's speed at the time, and her credibility more generally. To the extent Nash might seek to downplay the seriousness of the accident or the extent of Jesse's injuries she observed afterward, her credibility would be relevant to damages. Similarly, the existence of any sub rosa evidence could be relevant to the extent of Jesse's injuries. Because defendants would not confirm whether such evidence existed, plaintiffs had no way to know whether any such evidence supported or undercut plaintiffs' damages claims. Thus, given the possibility that sub rosa surveillance could bolster plaintiffs' claims of injury, and therefore damages, defendants' suggested "cure" of barring the use of any sub rosa evidence was not sufficient. Moreover, defendants' suggestion that the court was required to continue to resolve discovery disputes piecemeal by ordering targeted sanctions ignores the burden defendants' conduct placed upon the court and upon plaintiffs to police defendants' misbehavior. As the trial court noted, defendants gave every indication that they would continue down the same path, including seeking to undo the deemed admissions (motions they had not originally opposed) through expert testimony at trial, thus necessitating further motion practice days before trial.

In light of the state of discovery here, the cases cited by defendants for the proposition that terminating sanctions were too harsh are factually distinguishable. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958-959 [reversing terminating sanctions based on a failure to comply with a single motion to compel and where discovery was related only to affirmative defense]; McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 212 [preclusion of expert witness was tantamount to dismissal and improperly punitive where there was no willful misconduct and no prejudice]; Caryl Richards, Inc. v. Superior Court In and For Los Angeles County (1961) 188 Cal.App.2d 300, 303 [abuse of discretion to strike answer based on willful failure to provide sufficient interrogatory response to comply with prior court order]; see also Parker, supra, 149 Cal.App.4th at p. 297 [no error to impose terminating sanctions after two orders imposing monetary sanctions did not change the plaintiff's refusal to participate in discovery].) Moreover, the fact that the court denied the first motion for terminating sanctions does not, as defendants suggest, support their contention that the court should have exercised similar restraint a second time. Rather, it demonstrates the court's recognition of the harshness of that sanction and the efforts extended by the court to avoid entering defendants' defaults. As the court stated, it had hoped that narrowly avoiding terminating sanctions once would have prompted defendants and their counsel to avoid further discovery issues. When that proved ineffective, the court determined it was left with no other alternative. We do not find that conclusion to be an abuse of discretion.

Although defendants complain that plaintiffs received a windfall due to the entry of default, they raise no procedural challenge to the default prove-up on damages, apart from the entry of default itself. Because they were in default, defendants were not entitled to participate in the prove-up hearing. But plaintiffs still bore the burden of proving their entitlement to damages to the jury. (See Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 343 (Siry); see also Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 302; § 585, subd. (b).) Moreover, the trial court "acts as a 'gatekeeper,' not a rubber stamp," and remains obligated to ensure that a plaintiff has established entitlement to damages under "(1) the relevant statute, contract, or legal doctrine, and (2) the well-[pleaded] allegations in its operative complaint." (Siry, supra, 13 Cal.5th at p. 343.) Defendants have not argued that the prove-up proceeded improperly and there is no basis to conclude that plaintiffs received a windfall.

Additionally, defendants contend that terminating sanctions should be limited to instances where the defendants are directly at fault, and that here, the trial court improperly imputed defense counsel's misconduct to defendants. Defendants cite Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789 (Del Junco) for the proposition that terminating sanctions should be issued only where the clients are directly at fault. This reads Del Junco too narrowly. In Del Junco, the court observed that a trial court should exercise its authority to impose terminating sanctions only "in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation [citation], the fault lies with the client and not the attorney [citation], and when the court issues a directive that the party fails to obey." (Id. at p. 799.)

Moreover, we reject defendants' contention that the trial court imputed defense counsel's misconduct to them. Rather, the trial court here found that defendants themselves were partially at fault. Substantial evidence supports that conclusion. At the start of discovery, defendants were unavailable to the extent that their counsel had to hire a private investigator to find them. Later, Nash was informed during her deposition that there had been sanctions issued against her personally as a result of a failure to provide discovery and that her written interrogatory responses had been substantively changed without her consent, including to add a claim, which she denied, that Jesse was stopped prior to the accident. She shared at least some of this information with Chausse. After that, she was ordered to appear personally in court to discuss compliance with discovery orders; once there, she was directly admonished by the court that her case was in peril if defendants continued to violate court orders regarding discovery. As a layperson, Nash was not expected to understand the detailed requirements of the discovery statutes. However, having received multiple indications that defendants were not meeting their obligations, including a direct warning from the court, Nash could no longer claim that she was unaware of the misconduct. Indeed, as the court noted, defendants' declarations stated that they were not aware of the extent of the issues, thus implicitly acknowledging at least some awareness. Defendants' suggestion that they were only "made aware in a very hazy way" of the discovery issues is not supported by citation to the record and is contrary to the trial court's factual findings.¹² It is also telling that even in his affidavit of fault, Spriggs stated that the discovery failures were due "in large part" to the mishandling of the case by KRS. As such, the trial court did not err in finding that defendants' failure to meet their obligations was at least in part their own.

12 Notably, although they argue that the court's warning to Nash at the June 2, 2021 hearing was vague, defendants submitted no evidence controverting the description of this discussion in the minute order of the hearing or in the declaration by plaintiffs' counsel. Of course, the court could also rely on its own recollection of that hearing.

B. Denial of motion to set aside default judgment

Defendants argue that the trial court erred in refusing to grant relief from default pursuant to section 473(b). We disagree.

1. Relief under section 473(b)

"Section 473, subdivision (b), authorizes the trial court to relieve a party from a default judgment entered because of the party's or his or her attorney's mistake, inadvertence, surprise, or neglect. The section provides for both mandatory and discretionary relief." (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 (Carmel).) Mandatory relief is available "whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . ., unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (§ 473(b).)

We review an order granting or denying relief under section 473(b) under the abuse of discretion standard. (Shapell, supra, 85 Cal.App.5th at p. 212, citing McClain v. Kissler (2019) 39 Cal.App.5th 399, 413.) Thus, "[w]here the facts are in dispute as to whether or not the prerequisites of the mandatory relief provision . . . have been met, we review the record to determine whether substantial evidence supports the trial court's findings." (Carmel, supra, 175 Cal.App.4th at p. 399; Martin Potts &Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 437.) However, if the prerequisites for applying the mandatory relief provision exist, the trial court does not have discretion to refuse relief. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) "[T]he party moving to set aside the default has the burden of showing good cause for relief." (Shapell, supra, 85 Cal.App.5th at p. 212.)

2. Defendants' claim for mandatory relief

Defendants challenge the trial court's finding that they are ineligible for mandatory relief under section 473(b) because the defaults were not caused by the mistake, inadvertence, surprise, or neglect of their attorney, Spriggs. They cite Spriggs's declaration as evidence that he "let this case fall through the cracks" and acted with inexcusable neglect and contend that this evidence triggers mandatory relief for defendants. But the trial court found Spriggs was not credible and that rather than inattention or hardships due to COVID-19, staff turnover, or a large caseload, the discovery misconduct here was a strategic approach to ignore discovery because any issue or evidentiary sanctions as to liability or causation would not affect damages, the only issue defendants intended to meaningfully dispute.

Substantial evidence supports this finding. As the trial court noted, until seeking post-judgment relief, neither Spriggs nor any other KRS attorney ever cited any hardships-health concerns, COVID-19, staff turnover, caseloads-as a basis for defendants' failures to comply with discovery. Instead, they made repeated misrepresentations to the court regarding compliance while also arguing that the discovery they had failed to provide was irrelevant. Notably, after losing the fight over production of Nash's handwritten discovery responses, a KRS paralegal claimed that they could not be produced because they were lost, destroyed, stolen, or did not exist, and then, following a second court order, declared that they were lost and the KRS employees who handled those responses were "uncontactable."

Defendants rely on Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003 (Solv-All) in support of their argument that even intentional neglect by an attorney triggers mandatory relief under section 473(b). In Solv-All, the defendant sought relief from the default judgment entered against it after failing to file an answer. (Id. at p. 1006.) Solv-All's attorney submitted an affidavit stating that "the failure to answer was not accidental or inadvertent, but was the calculated result of his mistaken" belief that the plaintiff intended to continue settlement negotiations. (Id. at p. 1009.)

The appellate court held that Solv-All was entitled to relief from default. The court reasoned that mandatory relief should be granted when the attorney at issue claims negligence due to gross carelessness or bad strategy, because "either way, the client is the one stuck with the judgment resulting from the attorney's error." (Solve-All, supra, 131 Cal.App.4th at p. 1010.). Additionally, the court concluded that Solv-All did not share the responsibility for the default, as there was no evidence that Solv-All was aware of the attorney's decision to delay filing an answer, or that they suggested or agreed that he should do so. (Id. at pp. 1011, 1013.)

By contrast, in Jerry's Shell, the trial court granted terminating sanctions after appellants' attorney "regularly failed to respond to discovery when it was due, without informing the other side or seeking an extension," ignored all attempts to meet and confer, failed to oppose or concede on the resulting motions to compel, thus "wasting judicial resources," and then failed to comply with the court's order compelling responses, "leading to a second go round of each of these wearying steps." (Jerry's Shell, supra, 134 Cal.App.4th at p. 1073.) The trial court found appellants were not entitled to mandatory relief from default. (Id. at p. 1066.)

A different panel of this court affirmed, explaining that the appellants' counsel's intentional conduct "resulted in the attorneys having considerable supplemental time to respond to discovery not available to practitioners who follow the rules, while generally risking nothing more severe than an order compelling responses that should have been provided months earlier or an issue sanction on a topic that might never have been proven at trial." (Jerry's Shell, supra, 134 Cal.App.4th at p.1073.) As such, "if we were to hold that counsel's actions were subject to automatic, mandatory relief, we would be rewarding and encouraging this wholly improper conduct. A party cannot justly be permitted to seek relief under section 473(b) from sanctions imposed for deliberate failure to respond to discovery or oppose discovery motions." (Id. at p. 1074.) The court also distinguished Solv-All, noting that "the attorney there was mistaken about whether plaintiff expected a response to the complaint given that settlement discussions were underway, even if his decision not to file an answer can be seen as deliberate or intentional." (Ibid.)

We find this case more akin to Jerry's Shell than Solv-All. Other than Spriggs's declaration, which the trial court found not credible, there is no evidence that KRS's conduct was based on neglect or a mistaken belief. Instead, its actions reflect a failed strategy to delay and avoid discovery with the primary consequence being restriction of issues that defendants already planned to concede.

Moreover, even if we were to adopt defendants' argument that Solv-All stands for the proposition that mandatory relief is warranted for any attorney misconduct, such relief would not apply here. The mandatory relief provision of section 473(b) "'protects only the innocent client [and] provides no relief for the culpable client who participates in [the] conduct which led to the default.' [Citation.]" (Carmel, supra, 175 Cal.App.4th at p. 400.) As we have discussed, the trial court here found that defendants themselves were also culpable, thereby excluding them from relief.

The parties note a split in authority regarding whether mandatory relief is available only where attorney misconduct is the sole cause of the default and the client is "totally innocent of any wrongdoing" (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248) or if relief is also available where both the attorney and client are at fault. (See Martin Potts &Associates, Inc. v. Corsair, LLC, supra, 244 Cal.App.4th at p. 442 [detailing split]; Gutierrez v. G &M Oil Co, Inc. (2010) 184 Cal.App.4th 551, 557-558 [same].) We need not wade into this split, as even under the latter, more lenient approach, relief is not available where the client committed intentional misconduct.

For example, in Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 929 (Benedict), on which defendants rely, the appellate court upheld the granting of mandatory relief where default was entered based on conduct by the attorney and client, but the court found that the client's contributory conduct was a "mistake." Benedict expressly distinguished cases denying mandatory relief where "the client's intentional misconduct was found to be responsible, at least in part, for the dismissal or entry of default." (Ibid., citing Lang v. Hochman, supra, 77 Cal.App.4th 1225; Johnson v. Pratt &Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.)

Here, defendants do not qualify for relief, as the trial court found that their willful misconduct was a cause of the default. The court noted that a finding of willfulness does not require "a wrongful intention to disobey discovery rules"; rather, a "conscious or intentional failure to act, as distinguished from accidental or involuntary non-compliance, is sufficient to invoke a penalty." (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788, superceded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444, citing Snyder v. Superior Court (1970) 9 Cal.App.3d 579, 587.) In light of the warnings defendants received, the court here concluded that defendants "understood their obligation, had the ability to comply, and did not comply." We find no error in that conclusion. Thus, we find no abuse of discretion by the trial court in denying defendants' motion to vacate the default and default judgment under the mandatory relief provision of section 473(b) ¹³

13 We need not reach defendants' additional challenge to the court's finding that the motion was not in "proper form."

3. Notice of statement of damages

Defendants also contend that the court should have vacated the default judgment because they did not receive sufficient notice of plaintiffs' statements of damages.

In general, a complaint must state the amount of money damages or other relief it seeks. (§ 425.10.) An exception applies for cases seeking damages for personal injury-section 425.10, subdivision (b) mandates that a complaint for damages resulting from personal injuries shall not state the amount of damages sought. Instead, under section 425.11, a personal injury plaintiff must give notice to the defendant of the amount of special and general damages sought to be recovered "before a default may be taken." (§ 425.11, subd. (c).) Section 425.11 was designed to give defendants "one last clear chance" to respond to allegations of complaints by providing them with "actual" notice of their exact potential liability. (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 928-929.)

"There is no language in section 425.11 stating or suggesting the exact amount of notice that a plaintiff must give a defendant concerning the amount of damages sought before seeking default." (Connelly v. Castillo, supra, 190 Cal.App.3d at p. 1588.) Our Supreme Court has held that due process requires "actual notice of the liability to which he or she may be subjected, a reasonable period of time before default may be entered.'" (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435; see also Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 10 (Behm); Matera v. McLeod (2006) 145 Cal.App.4th 44, 61 (Matera).) "Such notice enables a defendant to exercise his right to choose-at any point before trial, even after discovery has begun-between (1) giving up his right to defend in exchange for the certainty that he cannot be held liable for more than a known amount, and (2) exercising his right to defend at the cost of exposing himself to greater liability." (Greenup v. Rodman (1986) 42 Cal.3d 822, 829.)

Courts employ a case-by-case approach to determine whether minimum standards of due process have been met. (California Novelties, Inc. v. Sokoloff (1992) 6 Cal.App.4th 936, 945, disapproved on other grounds by Sass v. Cohen (2020) 10 Cal.5th 861, 877, fn. 12.) Our sister courts have found that notice of damages two or three days before entry of default was not enough. (See Matera, supra, at p. 62 ["two days before the entry of default was not a reasonable period of time to apprise the defendants of their substantial potential liability for purposes of due process"]; Twine v. Compton Supermarket (1986) 179 Cal.App.3d 514, 517 [three days notice by mail].) However, 15 or more days has been found to satisfy the requirement of reasonable notice. (See Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1322-1323, disapproved on other grounds by Sass v. Cohen, supra, 10 Cal.5th at p. 877, fn. 12 [15 days]; California Novelties, Inc. v. Sokoloff, supra, 6 Cal.App.4th at p. 945 [17 days].)

Here, the trial court rejected the use of "a bare-bones counting of days approach" and considered whether, under the circumstances of this case, the seven days between service of the statements of damages and entry of default was reasonable notice. This was proper. We also agree with the trial court that the court's analysis in Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161 (Electronic Funds) is instructive. There, the court found notice timely where the plaintiffs filed a motion for terminating sanctions at the same time they served the defendants with a statement of punitive damages pursuant to section 425.15.¹⁴ (Id. at pp. 1172, 1178.) The appellate court rejected the defendants' argument that this service violated their due process rights because it occurred after defendants had decided to erase evidence from computer hard drives: "[D]efendants argue they would not have misused the discovery process had they known their liability could reach $24 million.... There is a significant difference between choosing not to defend a lawsuit at all, and defending a lawsuit by willfully disobeying lawful discovery orders. Defendants willing to accept known liability may properly elect to watch from the sidelines. But if a defendant chooses to participate, he or she must play by the rules. Here, defendants' destruction of evidence violated the court's discovery order and deliberately thwarted plaintiffs' legitimate efforts to obtain information about damages. Defendants' obligation to obey court orders to produce documents exists whether or not they have received notice of the amount of damages plaintiffs seek." (Id. at p. 1178.)

14 Like section 425.11, section 425.15 requires service of a statement of punitive damages prior to entry of default. (§ 425.15, subd. (f).)

By contrast, in Behm, supra, 241 Cal.App.4th at p. 12, the court found the statement of punitive damages was untimely where it was served after the motion for terminating sanctions was briefed. The Behm court concluded, "[w]e agree with Electronic Funds that a notice of punitive damages filed concurrently with a motion for terminating sanctions provides parties sufficient notice. A concurrent notice of punitive damages would fully apprise parties of the potential liability they may face should they choose not to oppose the motion and terminating sanctions are ordered." (Id. at p. 11.)

Here, plaintiffs electronically served their statements of damages on the same day that they filed their renewed motion for terminating sanctions. Because of the impending trial date, at a hearing the following day, the court granted plaintiffs' unopposed request to shorten time for briefing and hearing on the motion. Under the circumstances of this case, we find no error in the trial court's conclusion that the notice was reasonable. Defendants claim that more time would have allowed them to determine "whether to continue down the current path or rectify the alleged discovery wrongs." But as the trial court found, they gave no indication of any intention to change course; indeed, in their opposition to the motion for terminating sanctions, filed after the statement of damages was served, they continued to argue that they had fulfilled their discovery obligations and, conversely, that any outstanding discovery was irrelevant. Neither statement was true and both evidenced defendants' intentions to continue as they had been. Whether they could have sufficiently corrected years of discovery misconduct with 15 days' rather than seven days' notice is meaningless when defendants gave no indication that they would do so. Indeed, defendants knew that the court was considering terminating sanctions after the first motion by plaintiffs seeking that relief, but continued to engage in misconduct.

Moreover, defendants' claim that plaintiffs were able to "sandbag" them with a last-minute statement of damages rings hollow. Although defendants complain that their opposition to the terminating sanctions motion was due three days after receipt of the statement of damages, they did not oppose the shortened briefing or hearing schedule, nor did they ever seek more time or raise any objection. At the hearing on terminating sanctions, defense counsel submitted without further argument or objection.

C. Denial of motion for new trial

Finally, defendants contend they are entitled to a new trial because the noneconomic damages award, even as remitted by the trial court, was excessive. We find no error.

"'"Noneconomic damages compensate an injured plaintiff for nonpecuniary injuries...." [Citation.] Such injuries include pain and suffering, emotional distress, as well as "such items as invasion of a person's bodily integrity (i.e., the fact of the injury itself), . . . disability, impaired enjoyment of life, susceptibility to future harm or injury, and a shortened life expectancy."'" (Phipps v. Copeland Corporation LLC (2021) 64 Cal.App.5th 319, 337, 338 (Phipps), quoting Burchell v. Faculty Physicians &Surgeons (2020) 54 Cal.App.5th 515, 526 (Burchell).) "'Such injuries are subjective, and the determination of the amount of damages by the trier of fact is equally subjective. [Citation.] There is no fixed standard to determine the amount of noneconomic damages. [Citation.]'" (Phipps, supra, 64 Cal.App.5th at p. 338.)

Thus, "'[t]he amount of [noneconomic] damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial.'" (Burchell, supra, 54 Cal.App.5th at p. 527; accord, Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506 (Seffert); see § 657.) The jury and the trial judge "see and hear the witnesses and frequently . . . see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court." (Seffert, at pp. 506-507; accord, Bigler-Engler v. Breg, Inc.(2017) 7 Cal.App.5th 276, 299.) "'[W]here the trial court has required a remission as a condition to denying a new trial "a verdict is reviewed on appeal as if it had been returned in the first instance by the jury in the reduced amount."'" (West v. Johnson &Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 877.)

Appellate review of the jury's determination of noneconomic damages is "'very narrow.'" (Phipps, supra, 64 Cal.App.5th at p. 342, citation omitted; see also Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614.) "The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." (Seffert, supra, 56 Cal.2d at p. 507; see Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 985 ["The jury 'is entrusted with vast discretion in determining the amount of damages to be awarded,' and a reviewing court will reverse or reduce the award only '"'where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice.'""].)

Accordingly, we "will not disturb the trial court's ruling on a motion for new trial unless the record reveals a manifest and unmistakable abuse of discretion." (Soto v. BorgWarner Morse (2015) 239 Cal.App.4th 165, 200; see Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475, 486 ["We review the trial court's use of its power of remittitur to reduce excessive damages for abuse of discretion."].) "We review the jury's damages award for substantial evidence, giving due deference to the jury's verdict and the trial court's denial of the new trial motion.'" (Burchell, supra, 54 Cal.App.5th at p. 527.) We "consider the whole record, view the evidence in the light most favorable to the judgment, presume every fact the trier of fact could reasonably deduce from the evidence, and defer to the trier of fact's determination of the weight and credibility of the evidence." (Rufo, supra, 86 Cal.App.4th at p. 614.)

Defendants' central argument is that the damages in this case are excessive in comparison to another case, Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525. Defendants contend that the plaintiff in Buell-Wilson, who suffered catastrophic injuries including paraplegia, was ultimately awarded $18 million; thus Jesse, whose "injuries are significantly less severe," should not be entitled to a greater amount.

"This method of attacking a verdict was disapproved by our Supreme Court in Bertero v. National General Corp. [(1974)] 13 Cal.3d 43, 65, footnote 12, where it said, 'Defendants have compiled a lengthy list of judgments awarding damages which have been reversed on appeal as excessive. Those cases do not, in and of themselves, mandate a reversal here. The vast variety of and disparity between awards in other cases demonstrate that injuries can seldom be measured on the same scale. The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact. For a reviewing court to upset a jury's factual determination on the basis of what other juries awarded to other plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of factfinding.... Thus, we adhere to the previously announced and historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorably to the judgment, indicates were rendered as the result of passion and prejudice on the part of the jurors.'" (Rufo, supra, 86 Cal.App.4th at p. 616.) We decline to directly compare the award here to a single award elsewhere. Moreover, defendants have not attempted to demonstrate that the trial court's lengthy analysis, resulting in a significant remission of the noneconomic damages award, was otherwise in error.

Defendants also assert the noneconomic damages award was "animated by passion or prejudice," but do not cite anything to suggest improper considerations influenced the award. (See Bigler-Engler v. Breg, supra, 7 Cal.App.5th at p. 299 ["relevant considerations include inflammatory evidence, misleading jury instructions, improper argument by counsel, or other misconduct"].) We therefore find no basis to reverse the order denying a new trial.

II. Allstate

Allstate contends the trial court erred in denying its motion to intervene and subsequent motions to vacate the judgment and for a new trial. It contends that it was denied its statutory right to protect its interests as the insurer, and requests that we remand the matter to allow it to defend a contested trial on damages. We find no error in the trial court's order denying Allstate's motions.

A. Intervention

Allstate sought to intervene in the litigation in the event that the trial court denied defendants' post-judgment motions to vacate the default and default judgment and for a new trial. It argues that it has an interest in the subject of the action that defendants could not adequately protect once they were in default, and therefore that it had a statutory right to intervention under section 387, subdivision (d)(1). As discussed further below, we conclude that the trial court did not err in denying Allstate's motion to set aside the default judgment and motion for new trial.¹⁵ Accordingly, there are no further proceedings in which Allstate may intervene. We therefore affirm the trial court's denial of the motion to intervene.

15 There is no dispute that Allstate did not need to intervene to move for post-judgment relief under section 473 or 657. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 13421343; Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 886.)

B. Denial of motion to set aside default judgment

Allstate moved to set aside the default judgment under the discretionary relief provision of section 473(b). It argues that the trial court's denial of this motion was an abuse of discretion, as the court failed to separately consider whether Allstate had demonstrated excusable neglect.

Under the discretionary provision of section 473(b), "[t]he 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." To determine whether the mistake or neglect was excusable, we inquire whether "'a reasonably prudent person under the same or similar circumstances' might have made the same error." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, citations omitted.)

"A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof, the exercise of that discretion will not be disturbed on appeal." (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398-1399 (Generale), citing Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898.)

Allstate contends that the trial court failed to consider its motion independently of the arguments made by defendants, as it summarily denied Allstate's motions without making any express findings. We follow the general principles of appellate review that "an order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) "The burden of affirmatively demonstrating error is on the appellant." (Generale, supra, 61 Cal.App.4th at p. 1398, citing Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)

Here, Allstate has not met its burden to establish that the trial court did not exercise its discretion under section 473. The record indicates that the court was well aware of the issue, as the court and the parties discussed at length during several hearings Allstate's knowledge of the proceedings and when it acquired that knowledge. The court also made several comments indicating that it did not consider Allstate's evidence-consisting of the vague statements made by Howard in her declaration-to be sufficient to meet its burden. Initially, the court warned Allstate that although it could shield communications from discovery, it would not consider Howard's "broad statements" to be convincing, and suggested ways Allstate could provide further, nonprivileged information. Allstate did not supplement the declaration, and the court later noted again that Allstate's evidence was silent as to what it knew about the initial motion for terminating sanctions, despite the fact that the court at that time "issued what I thought . . . were fairly severe evidentiary sanctions." The court also made multiple comments indicating its astonishment that Allstate waited to act until after the damages trial had concluded, and did not even send a representative to attend the trial, conduct the court found unreasonable. Although the court made no express findings, we may imply from the record that the court concluded that Allstate failed to establish "mistake, inadvertence, surprise, or excusable neglect" under the discretionary relief provision of section 473(b).

Further, we find no abuse of discretion in the trial court's conclusion that Allstate was not entitled to relief. Allstate contends that between the time it appointed KRS to defend Nash and Chausse and August 10, 2021, when defendants' answers were stricken, it was "unaware anything was amiss." The record does not support that contention. In her declaration, Howard stated that she exchanged 60 emails with KRS between March 2019 and July 2021. Of course, that number does not include any communications other than email. Howard also confirmed that she received several key case-related documents promptly from KRS, including plaintiffs' section 998 settlement demand in June 2020, the statements of damages on August 5, 2021, and the order granting terminating sanctions on August 10, 2021. She also expressed her understanding that, prior to August 10, she understood that defendants had "compelling arguments" for defending the damages claims, suggesting that she was aware of the defense strategy focusing on damages. Although she declared that she did not receive plaintiffs' original or renewed motion for terminating sanctions from KRS, she does not state that she was not aware that plaintiffs had filed them, or that the court had imposed numerous sanctions against KRS and defendants over the course of the litigation. There is also at least one suggestion in the record that Allstate was responsible for issuing payment for sanctions-Carlson's statement during a deposition that KRS should have received a check for payment from the "insurance company" and then forwarded payment on to plaintiffs. Allstate's filings are silent as to whether or not they knew of the monetary sanctions orders or were involved in their payment. On this record, we conclude the trial court did not abuse its discretion in its implied determination that Allstate did not act with excusable neglect when it did nothing in the face of ongoing discovery misconduct until it was too late to avoid the default of its insureds.

C. Denial of motion for new trial

We are similarly unpersuaded by Allstate's claim of error regarding its motion for new trial. Allstate contends it was entitled to a new trial because it was "genuinely surprised" that defendants were foreclosed from presenting a defense as to damages once default was entered. Allstate further contends that the court denied the motion "arbitrarily" without considering Allstate's showing of surprise.

To grant a motion for new trial under section 657 based on surprise, the moving party must not have been able to prevent the surprise by the exercise of ordinary prudence and the surprise must have detrimentally impacted, or prejudiced, that party. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 305.) We review an order denying a motion for new trial for an abuse of discretion. (Id. at p. 303.)

Once again, the trial court made no express findings in its order denying Allstate's motion. However, during the hearings on the post-judgment motions, the court expressly considered Allstate's arguments and record independently of those raised by defendants. The court also commented that it did not believe Allstate acted reasonably in taking no action between August 5, when it received the plaintiffs' statements of damages and August 18, when it retained new counsel. As discussed above, the court implicitly found that Allstate failed to establish surprise, given its communications with KRS about the litigation. As such, we find that the trial court's denial of Allstate's motion was not arbitrary, but was supported by the record. Allstate has therefore failed to establish an abuse of discretion.

DISPOSITION

The judgment is affirmed. Plaintiffs are entitled to their costs of appeal.

We concur: MORI, J. RUBIN, J. ^[*]

[*] Justice of the Court of Appeal, Second Appellate District, Division 5, assigned to Division Four, by the Chief Justice pursuant to article VI, section 6 of the California Constitution.