Opinion
D071960
04-06-2018
SAN DIEGO COUNTY CREDIT UNION, Plaintiff and Respondent, v. CARLTON ROARK, Defendant and Appellant.
Yee & Associates, Yee & Belilove and Steven R. Yee, Eric O. Zeiger, Steve R. Belilove, for Defendant and Appellant. Sheppard, Mullin, Richter & Hampton and Shannon Z. Petersen, Travis J. Anderson, Karin Dougan Vogel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2011-00100322-CU-DF-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Yee & Associates, Yee & Belilove and Steven R. Yee, Eric O. Zeiger, Steve R. Belilove, for Defendant and Appellant. Sheppard, Mullin, Richter & Hampton and Shannon Z. Petersen, Travis J. Anderson, Karin Dougan Vogel for Plaintiff and Respondent.
Carlton Roark appeals the trial court's order granting terminating sanctions and entry of default judgment following his noncompliance with the court's order to preserve evidence. Roark contends the trial court abused its discretion by imposing terminating sanctions against him under Code of Civil Procedure, section 2023.030, subdivision (d). He argues his former employer, San Diego County Credit Union (SDCCU), did not suffer prejudice from his destruction of computer files, which a neutral computer forensic expert recovered; he did not destroy the files willfully or with malice; and the court did not first impose lesser alternative sanctions. Roark further contends the court abused its discretion by ordering him to pay an excessive default judgment that was unjustified because, under the parties' separation agreement, SDCCU was only entitled to a maximum of $30,000 in sanctions. We conclude the court did not abuse its discretion in awarding the terminating sanctions, and sufficient evidence supports the $857,713.21 award. We therefore affirm the judgment.
Further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
SDCCU sued Roark for defamation per se, defamation per quod, breach of employment agreement, breach of separation agreement, misappropriation of trade secrets, and unfair competition. It alleged in its operative third amended complaint that the defamation began while Roark was still employed at SDCCU: "Beginning about December 29, 2011, Roark and Does commenced a campaign of defamation and harassment against SDCCU and its officers, directors and employees. Roark and Does have disseminated their defamatory statements online by creating blogs, posting on consumer review websites, and e-mailing customers and employees of SDCCU. Roark and Does have also sent defamatory e-mails to state and federal regulators falsely accusing SDCCU of fraud and illegal acts. These false accusations have harmed SDCCU's business reputation and otherwise caused damage, including time and effort responding to regulatory inquiries and inspections provoked by the defamatory statements."
In a previous unpublished opinion (San Diego Credit Union v. Roark (Mar. 23, 2015, D065117) [nonpub. opn.]), this court affirmed the trial court's ruling on an anti-SLAPP motion, rejecting "Roark's contention on appeal that SDCCU did not make a prima facie showing linking him to the defamatory statements for the purposes of the anti-SLAPP statute"; and concluding SDCCU had "satisfied its minimal burden to show a probability of prevailing on its defamation causes of action."
SDCCU's prayer for relief included special damages of at least $485,000 plus interest; general damages of $350,000 plus interest; liquidated damages of $30,000 plus interest in connection with the separation agreement; and punitive damages.
SDCCU alleged Roark breached his employment agreement by accessing and using SDCCU's confidential member information and trade secrets to solicit the business of SDCCU members. In particular, after Roark left SDCCU and began working at another credit union, at least 10 commercial loans originated or processed by Roark had been or were in the process of being refinanced by Roark's new employer.
In July 2013, SDCCU applied ex parte for a preservation order. The court issued an order requiring "that Roark protect and preserve all potentially relevant evidence in this action, including but not limited to electronic information stored on his personal and/or work computers, laptops, PDAs, smart phones, tablets and/or other electronic devices."
In May 2014, the parties stipulated to a protocol for examining Roark's personal computer hard drive by the start of June 2014. Roark's forensic expert would examine the hard drive while being monitored by SDCCU's forensic expert. Both experts would also search active files, including e-mail documents and internet browsing history; further, they would search for deleted files and file fragments and metadata. The parties elaborated a list of keywords to use in their search.
In July 2014, SDCCU reported to the court that Roark had violated the stipulated protocol by deleting files from his hard drive. In response, the court ordered the parties to enter into another stipulated protocol. The parties agreed a neutral forensic expert would inspect Roark's hard drive by August 2014 and issue a written report regarding Roark's deletion of files by the following month.
The parties selected Bruce Pixley as the neutral expert. In a first report, Pixley stated he had examined Roark's hard drive and concluded someone used software to wipe data from it. He also pointed out that two USB devices were connected to the computer on May 12, 2014, and possibly a software program, USBOblivion, was used before then to erase traces of USB-connected drives.
Pixley later received a USB drive from Roark for inspection and wrote in a supplemental report that some of its files had been deleted at an unknown date; however, the last written time of the deleted folder was August 16, 2014. Pixley was unable to determine what data had been stored in the deleted files.
In April 2015, Pixley issued a revised report and concluded someone had deleted a folder including all the e-mail messages on Roark's hard drive. Pixley also reported he "indexed the e[-]mail and conducted a search to determine if any of this data was responsive to one or more of the search terms [included in the stipulated protocol]. A preliminary search revealed that the e[-]mail was responsive to 50 of the 87 listed search terms." Pixley stated that although he recovered some files, they "may be partially corrupt as a portion of the deleted file may have been overwritten."
In May 2015, SDCCU moved for sanctions based on Roark's destruction of evidence, alleging Roark violated the protocol by deleting thousands of files before the date set for inspection of the hard drive. Pixley reported some files were permanently deleted and irretrievable.
In opposing the motion, Roark claimed he did not willfully violate the preservation order; the computer evidence was not destroyed as Pixley was able to recover all the deleted data; therefore, "SDCCU can continue prosecuting its case without prejudice." Roark also claimed sanctions were too extreme as lesser alternatives were available. Roark further argued SDCCU was not prejudiced as it had other sources of evidence for the deleted files, specifically, it had subpoenaed documents from the individuals whose loans were mentioned in the third amended complaint; Roark had produced over 10,000 e-mails and other documents pursuant to SDCCU's document requests; and, SDCCU had subpoenaed various website administrators and service providers. Roark argued that if the court decided to issue terminating sanctions, it should limit any monetary award to $30,000 as the separation agreement provides. Roark submitted a declaration denying he defamed SDCCU. He claimed he understood the preservation order to require him to decide what files were potentially relevant to the investigation and preserve those. He maintained he did not delete any relevant files, but simply followed his long-standing practice of periodically deleting personal files or other files necessary to protect his clients' interests.
In finding terminating sanctions were appropriate, the court recounted the extent of Roark's destruction of computer files: "The [first] report of neutral expert, Bruce Pixley, dated August 29, 2014[,] concludes: 'After conducting the analysis of the hard drive image, it was clear that someone intentionally used software to wipe data.' . . . The report concludes that over 210,000 files had been permanently destroyed, many just hours prior to Roark's production of his hard drive. . . . While the expert[] was not able to conclusively determine exactly what data may have been deleted on the hard drive prior to the wiping activity, based on the report, files destroyed included files relating to Internet activity and files found in a folder titled 'C:UsersLOAN OFFICERDownloads folder.' . . . [¶] The evidence points to intentional destruction of files."
The court further outlined Roark's destruction of evidence that occurred after Pixley's first report: "[Pixley] finds that just before production of the hard drive, someone had downloaded data to a USB device, and had then used software known as 'USBOblivion' to try to delete evidence of the USB download. . . . Pixley requested copies of the 4 USB devices that were used for the download. . . . In response, on September 4, 2014, Roark produced one thumb drive. In a supplemental written report dated September 12, 2014, Pixley concluded that wiping software was also used to permanently delete data on this thumb drive, including on September 3, 2014, the day before the production of the thumb drive and several days after Pixley's initial report on August 29, 2014. . . . Pixley was able to recover some 33,000 destroyed files. But he states that Roark destroyed additional data that Pixley cannot recover. . . . [¶] Roark does not dispute that he deleted the 33,000 files, including 11,486 e[-]mails prior to producing the May 2014 [i]mage of his hard drive. His defense is that he did not delete any relevant files. However, Roark does not get to determine unilaterally what is relevant or not to these proceedings. Even so, this Court's order unequivocally required the preservation of 'potentially relevant evidence.' Roark conveniently now states that he determined relevance on his own, but, of course, there is no way to now independently ascertain precisely what was deleted. The Court can infer from the evidence and testimony presented th[at] relevant evidence was deleted. Roark admits that he regularly used his home computer for work, including specifically to solicit borrowers and to work on loan files. . . . He admits to having deleted borrower communications and loan files."
The court added: "Based upon the production of another image of Roark's personal hard drive in January[ ] 2015 (apparently obtained in March[ ] 2014), Pixley prepared another report, which stated: 'During this inspection, I found evidence of the intentional use of wiping software and the deletion of data occurring prior to the creation of the March 7, 2014 forensic image.' . . . The permanently destroyed data included, but was not limited to, internet history, documents found under a folder titled 'LOAN OFFICER,' and over 10,000 e[-]mails. . . . At least some of the destruction occurred on March 6 and 7, 2014, . . . Pixley concludes in this third report that prior to producing the May [i]mage, Roark deleted data responsive to 50 of the 87 stipulated key-word search terms. . . . (Pixley was able to recover a fraction of the data deleted from the March [i]mage)." In light of the above, the court concluded Roark's conduct warranted terminating sanctions and ordered Roark's answer stricken and default entered against him.
SDCCU moved for entry of default judgment and submitted a declaration by its chief operating officer, who detailed that SDCCU had incurred $895,401 in countering the defamatory statements including: $134,260 paid to outside vendors; $318,641 in wage costs resulting from management and other employees spending time addressing the matter; and at least $442,500 in harm to SDCCU's reputation. He concluded: "This is a conservative accounting of the harm caused to SDCCU. For example, it does not include the lost opportunity costs that resulted from the distraction to firm management and employees . . . . Moreover, the calculated harm to reputation is likely only a fraction of the full reputational harm SDCCU suffered."
Following a default prove-up based on the parties' papers, the court granted SDCCU's motion: "As proven by the testimony of SDCCU's CEO Teresa Halleck, COO Tum Vongsawad, and banking expert Brian Kelley, the reputational harm to SDCCU is at least $442,500. [¶] In addition, the evidence proves that SDCCU has also suffered substantial loss of employee time and productivity responding to and addressing the defamatory statements. SDCCU's management and staff have collectively spent over 2,500 hours investigating, mitigating, and otherwise addressing the consequences of the defamatory statements. This has cost SDCCU over $318,641 in wage expenses. SDCCU also incurred over $134,260 for the services of outside vendors and consultants in response to the defamatory statements."
The court ruled: "At the December 16, 2016 hearing, and consistent with its sanctions order, . . . the Court reviewed SDCCU's expert fees and attorneys' fees billing invoices . . . . The Court thus finds good cause to award . . . monetary sanctions against Roark and to SDCCU based on Roark's intentional destruction of evidence." Accordingly, the court entered a default judgment ordering Roark to pay $857,713.21 as follows: $350,000 in general damages; $452,901 in special damages; $1,000 in punitive damages, and $53,812.21 in attorney fees and expert fees. At SDCCU's request, the court dismissed other causes of action against Roark. The court pointed out that Roark and his subsequent employer previously settled SDCCU's misappropriation of trade secrets claim against them and it was dismissed with prejudice.
The court explained its rationale for imposing punitive damages: "In advance of seeking terminating sanctions, SDCCU served on Roark a notice of intent to seek punitive damages up to $2,500,000 as to the defamation causes of action. Roark's malicious, oppressive, and fraudulent creation and dissemination of the defamatory statements warrants an award of punitive damages. Nevertheless, based on Roark's claim of a low net worth, SDCCU requests only a nominal amount of $1,000.00 in punitive damages, representing less than [one percent] of Roark's claimed net worth. The Court grants SDCCU's request and awards $1,000.00 in punitive damages against Roark for his malicious, fraudulent and oppressive conduct in anonymously defaming SDCCU and then intentionally destroying relevant evidence in an attempt to hide his identity as the author of the defamatory statements."
DISCUSSION
I.
Terminating Sanctions
Section 2025.450, subdivision (d) authorizes a trial court to impose an issue, evidence, or terminating sanction under section 2023.030 if a party or party-affiliated deponent "fails to obey an order compelling attendance, testimony, and production." "Section 2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against 'anyone engaging in conduct that is a misuse of the discovery process.' " (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 (Doppes).) Section 2023.030, subdivision (d) provides: "The court may impose a terminating sanction by one of the following orders: [¶] (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [¶] (2) An order staying further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering a judgment by default against that party."
"The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. 'Discovery sanctions "should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." ' [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. 'A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.' " (Doppes, supra, 174 Cal.App.4th at p. 992, fn. omitted, citing Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280, overruled on other grounds in Mileikowsky v. West Hills Hosp. and Medical Center (2009) 45 Cal.4th 1259.)
The trial court may order a terminating sanction for discovery abuse "after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery." (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) "The question before us ' "is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose." ' " (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1105-1106.)
"We review the trial court's order under the abuse of discretion standard and resolve all evidentiary conflicts most favorably to the trial court's ruling. We will reverse only if the trial court's order was arbitrary, capricious, or whimsical. It is appellant's burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court's findings. [Citation.] We presume the trial court's order was correct and indulge all presumptions and intendments in its favor on matters as to which it is silent." (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224.)
Based on the entire record of Roark's destruction of evidence, as summarized above, the court's imposition of terminating sanctions was not arbitrary or capricious. The main component of SDCCU's lawsuit against Roark was that he posted defamatory online statements about SDCCU and its personnel; it also claimed he violated the parties' agreement by accessing SDCUU's electronic trade secrets. Central to SDCCU's ability to prove its case was its need to examine Roark's computer files. By deleting those files in violation of the court's protective order and the parties' protocol for handling his hard drive, Roark diminished SDCCU's ability to pursue its case as it was impossible to ascertain what data Roark had deleted. The record belies Roark's claim that SDCCU was not prejudiced because Pixley recovered all the data that Roark deleted. Pixley stated in his report: "Due to the destructive nature of the wiping on this hard drive, I would not be able to determine exactly what data may have been deleted on the hard drive prior to the wiping activity."
We may infer Roark acted willfully in destroying the files and taking actions to cover up his deletions: he used a software program designed to delete the files; he deleted files from both a hard drive and a USB drive hours before they were to be examined by experts under the protective order; and some of the recovered files included matters responsive to the parties' list of keywords to be searched. Under these circumstances, the court's decision to impose terminating sanctions was not an abuse of discretion.
Roark argues that the court erred by granting terminating sanctions because it did not previously warn him about not wiping his computer or threaten him with the possibility of future sanctions; rather, the court interpreted the preservation order restrictively. He claims that by granting terminating sanctions, the court "deprived" him of an opportunity to prove affirmative defenses such as truth, opinion, or privilege; and he has been "deprived of the opportunity" to demonstrate that SDCCU was not damaged by any alleged defamation. He finally argues that the trial court should have imposed alternative sanctions like monetary sanctions or a jury instruction. However, he would limit the monetary sanctions to $30,000 under the separation agreement. He does not specify what jury instruction would suffice to remedy the harm that his actions caused to SDCCU.
The parties' separation agreement provides: "Employee agrees that he will be obligated for damages . . . to SDCCU for each and every instance in which it is determined that [e]mployee has breached any of those provisions, up to a maximum of . . . $30,000 . . . . In addition to such liquidated damages, SDCCU may pursue any and all other equitable remedies for a breach of these provisions, including but not limited to, injunctive relief."
As this court has held, trial courts should use terminating sanctions sparingly because of the drastic effect of their application. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez); see Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613-616.) Thus, under the statutory scheme, trial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. (Lopez, at p. 604.) Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective. (Lopez, at pp. 604-605; see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516-1519; Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928-929.)
In discussing the harmful effect of spoliation of evidence to a party's case, the California Supreme Court stated it "undermines the search for truth and fairness" "by destroying authentic evidence." (Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 8.) It added, "Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both." (Id. at p. 9.)
We reject Roark's claim the court interpreted the protective order too restrictively. The order required Roark to "protect and preserve all potentially relevant evidence." Its use of the words "all" and "potentially" allowed for an expansive interpretation of the order, and the court did not err in interpreting those plain words. Therefore, the court was not required to specifically warn Roark about not wiping the files or terminating sanctions. The court's ruling is further bolstered by the fact that Pixley concluded from the recovered files that they included materials responsive to more than half of the key words in the parties' stipulated protocol.
We may infer from Roark's failure to offer a remedial jury instruction and his cursory treatment of the issue that he is aware of the futility of an instruction. In any event, we do not believe a jury instruction would suffice to give SDCCU a fair trial. The California Supreme Court has explained that in spoliation of evidence cases, "even if the jury infers from the act of spoliation that the spoliated evidence was somehow unfavorable to the spoliator, there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim's favor. Without knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate as to what the nature of the spoliated evidence was and what effect it might have had on the outcome of the underlying litigation." (Cedars-Sinai Med. Ctr. v. Superior Court, supra, 18 Cal.4th at pp. 13-14.)
We are aware that in the criminal context, CALCRIM No. 371 addresses consciousness of guilt regarding destruction of evidence: "If the defendant tried to hide evidence . . . that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Regarding Roark's proposed cap of monetary sanctions at $30,000, we point out that Roark makes no attempt to tether that proposed amount to the goal of discovery sanctions, which is that they be "appropriate to the dereliction" and an amount "required to protect the interests of the party entitled to but denied discovery." (Doppes, supra, 174 Cal.App.4th at p. 992.) Plainly, $30,000 does not begin to protect SDCCU's interests in this case, as the court found sufficient evidence for its much higher award in the declarations SDCCU submitted outlining its extra costs and fees incurred in order to address Roark's misconduct.
In sum, we conclude this is one of the unusual cases requiring terminating sanctions as a first measure. No lesser remedy would have sufficed to protect SDCCU's interests in the face of Roark's willful efforts to sabotage SDCCU's case against him. Roark cannot be heard to complain that "the court deprived him" of a chance to raise certain defenses at a trial because his own willful actions brought about that result, and the court was not obligated to protected him from those consequences even at SDCCU's expense. Finally, although Roark claims SDCCU was not damaged by the "alleged defamation," what a court said in another case involving terminating sanctions and the difficulty of proof also applies here: "Defendants argue plaintiffs were required to show prejudice from the deletion of the data. . . . But defendants' own actions make that showing difficult, if not impossible." (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1184.)
II.
Default Judgment
Citing no legal authority, Roark argues, "The trial court's decision ordering [him] to pay over $850,000 was excessive and clearly an abuse of discretion" because it did not "carefully take into account the lack of prove[-]up damages." He further argues that if the trial court were to impose monetary sanctions, they should not exceed $30,000, the amount stipulated in the parties' separation agreement. He asks us to reverse the trial court's monetary sanction and limit it to $30,000.
Roark does not deny that SDCCU presented evidence of direct costs for services such as public relation firms, security firms, and financial consulting firms. Instead, he argues that SDCCU "has failed to provide evidence to support its contention that the costs were solely related to the defamatory posts. . . . [It] fails to address [his] claim that on its face, all of the work was in direct response to the defamatory statements. . . . Again, during the time of the lawsuit, SDCCU increased its total assets by more than $1 billion during that time. Many of the consulting firms were hired to increase respondent's brand value, not protect SDCCU against the defamatory statements. This was ignored. Instead, the court decided to punish Roark by awarding over $850,000."
As a general rule, "[a] judgment or order of the lower court is presumed correct [with] [a]ll intendments and presumptions . . . indulged to support it on matters as to which the record is silent." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) To obtain reversal, the appellant must affirmatively demonstrate error on the record before the court. (Ibid.) Further, an appellate court is not required to independently search the record for errors, or "consider alleged errors where the appellant merely complains without a pertinent argument." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) "When an appellant fails to raise a point, or asserts it but fails to support it with a reasoned argument and citations to authority, we treat the point as waived." (Benach, at p. 852.) Nowhere in Roark's opening brief does he discuss the standard of review or applicable law regarding a monetary award order upon a finding of default. He does not point to where in the record he presented evidence rebutting SDCCU's claim for monetary sanctions. Accordingly, we deem his contentions forfeited.
An appellate argument is not merely a rehash of arguments unsuccessful at trial, but a carefully honed assertion of legal error and resulting prejudice. The job of the appellant is to demonstrate to this court the trial court erred in specific ways that resulted in identifiable prejudice to the parties. This court will not presume prejudice; it is Roark's obligation to demonstrate prejudice through reasoned arguments. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106 ["[O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice."].) Roark has not demonstrated error or prejudice sufficient to overcome the presumption of correctness afforded to the trial court's order. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
In any event, the claim fails on the merits. A default is said to admit the material facts alleged by plaintiff, i.e., the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) A prove-up hearing may include live testimony or, in the trial court's discretion, affidavits or declarations setting forth "with particularity" the facts that are "within the personal knowledge" of the declarant. (§ 585, subd. (d).) The damages awarded may not exceed those prayed for in the complaint. (Johnson v. Stanhiser, at p. 362.) Defendants are entitled to challenge the sufficiency of the evidence to support the default judgment. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288.) " '[T]he general rule that the sufficiency of the evidence tendered in a default proceeding cannot be reviewed on an appeal from a default judgment . . . is true as to matters for which no proof is required by virtue of the admission by default of the allegations of the complaint. [Citation.] However, as to damages which, despite default, require proof[,] the general rule does not apply.' " (Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1150.) Thus, an appellate court will reverse damages awarded on a default judgment not only when the award is so excessive that it "shocks the conscience" and is the result of "passion [or] prejudice," but also when "the damages awarded are unsupported by sufficient evidence." (Ibid.) We conclude that substantial evidence supports the trial court's finding of damages based on the default prove-up affidavits presented. Roark points to no evidence to the contrary; he merely makes bare assertions. Further, in light of Roark's willful conduct that caused detriment to SDCCU, the award does not shock the conscience.
As to Roark's claim that the monetary award was to be limited to $30,000 under the separation agreement, we point out the complaint asserted tort causes of action for defamation and not a claim under the separation agreement. "Where the identical act constitutes both a tort and a breach of contract, the injured plaintiff ordinarily can choose which action to pursue." (Pintor v. Ong (1989) 211 Cal.App.3d 837, 842.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.