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Filed 4/15/21 Yeager v. Thomas CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

VICTORIA YEAGER,

Plaintiff and Appellant,

v.

MICHAEL THOMAS et al.,

Defendants and Respondents.

C085795

(Super. Ct. No. 34-2014-

00169683-CU-PN-GDS)

In this appeal, General Charles E. Yeager and Victoria Yeager challenge the 

dismissal of their action for legal malpractice against their former attorney, Michael 

Thomas, and Thomas & Associates, a limited liability law partnership.1 In the trial court, 

1 Charles E. Yeager died while this appeal was pending. We subsequently granted 

Victoria Yeager’s motion for substitution of parties to reflect Charles’s death. As a 

result, we have changed the caption to reflect Victoria’s substitution as sole appellant in 

this appeal. We refer to the Yeagers individually by their first names due to shared 
2

Victoria undertook to represent both herself and Charles even though she is not a licensed 

attorney. The Yeagers ignored repeated orders to secure a lawyer or guardian ad litem 

for Charles. Consequently, the trial court imposed monetary sanctions for abuse of the 

discovery process. After the Yeagers failed to comply with three discovery orders, the 

Thomas defendants brought a motion for terminating sanctions. The trial court granted 

the unopposed motion.

On appeal, the Yeagers contend (1) the trial court abused its discretion in imposing 

terminating sanctions because it did not address other potential lesser sanctions in its 

order, (2) the terminating sanctions order was disproportionate to the harm alleged by the 

Thomas defendants, (3) the order “appears to have been prompted only by an intent to 

punish the Yeagers for their perceived noncompliance” with prior court orders, (4) the 

Yeagers “did not simply fail to comply with Thomas’ discovery responses,” and (5) the 

case should be remanded to allow the trial court to rule in the first instance on their 

motion to vacate the judgment.

We affirm. The trial court is not required to expressly address possible 

alternatives to dismissal in a terminating sanctions order. There was no abuse of 

discretion in the trial court’s order. The record does not indicate the trial court acted with 

any intent to punish the Yeagers. However, the record amply supports the trial court’s 

findings that the Yeagers willfully disregarded court orders. We reject the Yeagers’ 

argument regarding remand for lack of any assertion of reversible error or prejudice.

FACTUAL AND PROCEDURAL HISTORY

The Yeagers’ Action

In October 2014, the Yeagers filed an action for legal malpractice against their 

former attorneys, including the Thomas defendants as well as John Gibson and his 

surname and for the sake of clarity. We refer to Michael Thomas and his law firm 

collectively as the Thomas defendants.
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limited liability law partnership.2 Shortly after the filing of the original complaint, the 

Yeagers filed a first amended complaint that added two more attorneys – Ed Gordon and 

Christopher Rolin – as defendants. The Thomas defendants demurred to the first 

amended complaint. In response, the Yeagers filed a second amended complaint in 

September 2015. In March 2016, the Yeagers were determined to be vexatious litigants.3

Discovery Sanctions Against the Yeagers

On February 18, 2016, the trial court granted the Thomas defendants’ first 

discovery motion by compelling further responses to the 14 discovery demands raised in

the motion. The trial court also imposed $2,060 in monetary sanctions. In granting the 

motion, the trial court provided five pages of detailed instructions for the Yeagers’

compliance.

On March 3, 2017, the trial court stayed the action to allow the Yeagers to find an 

attorney or guardian ad litem for Charles. On April 17, 2017, the trial court lifted the stay 

and imposed sanctions on the Yeagers for continued failure to comply with discovery 

demands.

4

 The trial court found the Yeagers had provided responses that were 

2 We refer to John Gibson and his limited liability law partnership collectively as 

the Gibson defendants.

3

In Yeager v. Rolin (Aug. 29, 2019, C083234 & C083830) (nonpub. opn.), this 

court reversed the determination of the trial court that the Yeagers qualified as vexatious 

litigants under Code of Civil Procedure section 391. Yeager v. Rolin was an appeal that 

arose out of the same action that is being appealed here, but in which the Yeagers 

challenged the dismissal of their former attorney, Christopher Rolin. Although this 

appeal arises out of the same action, it challenges only the dismissal entered in favor of 

the Thomas defendants.

Undesignated statutory citations are to the Code of Civil Procedure.

4 Although the Yeagers refer to discovery “requests,” we use the term “demands” to 

be consistent with the applicable discovery statute. (§ 2031.010 [using the term 

“demand”]; see also Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. 

(2008) 165 Cal.App.4th 1568, 1573, fn. 6.)
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consistently evasive. Noting the Yeagers’ complaint made “broad allegations of 

wrongdoing,” the court admonished the Yeagers they were required to comply with 

discovery demands. The trial court imposed $1,260 in monetary sanctions on Victoria.

On April 27, 2017, the trial court considered a motion for terminating sanctions 

brought by the Thomas defendants. In ruling on the motion, the trial court found the 

Yeagers’ “willful failure to comply with the Court order of Feb[ruary] 18, 201[6]

warrants sanctions.” Rather than imposing terminating sanctions at that time, the trial 

court ordered the Yeagers to provide verified, supplemental responses to discovery as 

previously ordered. Also, the court again imposed monetary sanctions. And the trial 

court warned the Yeagers that “[s]hould the full and complete responses not be received 

by that date, the Court will consider a further motion for issue, evidentiary and/or 

terminating sanctions for plaintiffs’ willful violation of a Court order.” (Italics added.)

In April 2017, the Gibson defendants moved for a sanctions order against Victoria 

for failure to comply with orders issued in September 2016, October 2016, February 

2017, and March 2017 relating to the issue of Charles’s competency. These orders all 

required the Yeagers to obtain an attorney or guardian ad litem. During the pendency of 

this action, Victoria acknowledged Charles is unable to meaningfully participate in the 

litigation process. Nonetheless, Victoria engaged in the unauthorized practice of law by 

representing not only herself but also Charles. 

The trial court found, “Despite [the determination that the Yeagers were vexatious 

litigants], and despite their decision to proceed as civil plaintiffs without an appearance 

on their behalf by an attorney of record, this Court has been extremely mindful of [the 

Yeagers’] non-represented status and has offered ample time for compliance with its 

various orders.” The trial court recounted Charles chose to attend an Oak Ridge Boys 

concert in Missouri rather than comply with the court-ordered mental health examination. 

Thereafter, the Yeagers failed to secure an attorney or guardian ad litem for Charles even 

though the court stayed the action in order to allow the Yeagers to comply with its orders. 
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In June 2017, the trial court ordered monetary sanctions against Victoria and evidentiary 

sanctions against Charles.

After the Yeagers continued their noncompliance with the trial court’s orders, the 

Gibson defendants moved for terminating sanctions. The Thomas defendants joined in 

the motion. During a hearing on the Gibson defendants’ motion for terminating 

sanctions, the trial court addressed Victoria as follows:

“THE COURT: [¶] . . . [¶] [W]e’ve gone ahead and bent over backwards, not 

because of your status or who you are or anything else, but because courts are very 

reluctant to terminate plaintiff’s cases except on the merits. And I don’t like procedural 

terminations by way of sanction. So I don’t want to terminate anybody, but at the same 

time I don’t want anybody to think they can get away with flouting the Court’s orders. 

[¶] . . . I don’t like what you’ve done. You treat [Charles] as basically your puppet. And 

it appears to me that you’re acting on his behalf more than not, even though you profess 

that you are not. That’s why he needs to have his own guardian and his own counsel.” 

In June 2017, the trial court granted the motion in part, imposing evidentiary 

sanctions on the Yeagers. Because the Yeagers had not availed themselves of the “many

opportunities” to secure counsel or a guardian ad litem for Charles, the trial court barred 

Charles from presenting any further written or oral testimony to support his claims in this 

action. The trial court determined any additional time would be futile by finding neither 

a guardian ad litem or attorney “is likely forthcoming.” The trial court rejected the 

Yeagers’ assertion they had “fully complied” with the court’s orders. Instead, the court 

found the Yeagers “fail[] to present compelling evidence of wholehearted, good faith 

‘endeavoring’ and ‘cooperating’ by [the Yeagers].”

The trial court summed up: Charles’s “failures to comply with the Court’s orders 

have prevented discovery as to whether his testimony can be given any evidentiary value 

in this case. He has failed to appear for his court-ordered mental examination and has 

failed to file a motion for appointment of a [guardian ad litem] and attorney to represent 
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him in this case given concerns about his mental competency, despite this Court’s orders 

directing him to do so. He has thereby prevented discovery as to whether his own 

discovery responses, and/or other factual representations he might wish to make as this 

case progresses, are being made by someone who truly understands what they are 

representing and appreciates the seriousness of making such representations under 

penalty of perjury.” (Italics omitted.)

As part of the same sanctions order, the trial court imposed a monetary sanction 

that required Victoria to pay $2,562.50 to the Gibson defendants. The trial court rejected 

Victoria’s contention that “ ‘lawyer tricks’ by defense counsel [citation] occurred, or that 

[Victoria]’s failures to comply with the Court’s Orders were caused by misleading 

behavior by defense counsel.” The trial court concluded that “[i]n failing to comply with 

these orders, [Victoria] opened herself up to sanctions.” Even so, the trial court declined 

to impose terminating sanctions because there was no showing that lesser sanctions 

would be ineffective as to Victoria. However, the trial court cautioned: 

“The Court shares moving Defendants’ concern that [Victoria] is ignoring this 

Court’s rules, orders, and California law expressly prohibiting her from litigating this 

case as a non-attorney, at least in part, on behalf of her husband. And although this Court 

has previously reminded her of the prohibition, she continues to make filings and litigate 

this case, at least in part, on behalf of her husband. [Victoria’s] continued practice of 

filing legal papers, making legal arguments, completing discovery responses, and the 

like, on behalf of her husband, must stop.” (Italics added.)

Terminating Sanctions Imposed by the Trial Court

On June 23, 2017, the Thomas defendants moved for terminating sanctions against 

the Yeagers. The motion was based on the Yeagers’ violation of the trial court’s 

discovery orders entered on February 18, 2016, April 17, 2017, and April 27, 2017. The 

Yeagers did not oppose the motion. The trial court granted the motion for terminating 
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sanctions on August 4, 2017. A judgment of dismissal followed shortly thereafter. The 

Yeagers timely filed a notice of appeal.

DISCUSSION

I

Terminating Sanctions

The Yeagers advance four arguments in their claim that the trial court abused its 

discretion in imposing terminating sanctions. First, they argue the order itself is defective 

because the order does not expressly address the possibility of other lesser remedies than 

terminating sanctions. Second, the Yeagers assert the terminating sanctions are

disproportionate to the harm alleged by the Thomas defendants. Third, the order

represents “only” an “intent to punish” them. And, fourth, the Yeagers did not “fail to 

comply” with the discovery orders that preceded the terminating sanctions. As we 

explain, none of these contentions has merit.

A.

Trial Court Order

The Yeagers fault the trial court because “nowhere in that Order does the lower 

court demonstrate that it even considered whether evidentiary sanctions or issue sanctions 

would be more appropriate . . . .” (Italics added.) In support of the argument, the 

Yeagers offer no authority for the proposition that a terminating sanctions order must 

expressly address and reject lesser sanctions.

On appeal, we begin with the presumption the order being challenged on appeal is 

correct. As the California Supreme Court has noted, “it is settled that: ‘A judgment or 

order of the lower court is presumed correct. All intendments and presumptions are 

indulged to support it on matters as to which the record is silent, and error must be 

affirmatively shown. This is not only a general principle of appellate practice but an 

ingredient of the constitutional doctrine of reversible error.’ (3 Witkin, Cal.Procedure 

(1954) Appeal, § 79, pp. 2238-2239; Minardi v. Collopy [(1957)] 49 Cal.2d 348, 353; 
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Coleman v. Farwell [(1929)] 206 Cal. 740, 742.)” (Denham v. Superior Court (1970) 2 

Cal.3d 557, 564.) As a corollary to this rule, we also heed the presumption of Evidence 

Code section 664, “ ‘that official duty has been regularly performed.’ Thus, where a

statement of reasons is not required and the record is silent, a reviewing court will 

presume the trial court had a proper basis for a particular finding or order. (See, e.g., 

People v. Henson (1991) 231 Cal.App.3d 172, 182 [presuming on a silent record that the 

trial court properly exercised its discretion in imposing AIDS education as a condition of 

probation].)” (People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115, italics added.)

We reject the Yeagers’ assumption that an order granting terminating sanctions 

must itself state lesser sanctions were considered and rejected. Section 2023.030 

specifically authorizes trial courts to impose terminating sanctions for “a misuse of the 

discovery process.” Subdivision (d)(3) of section 2023.030 provides that “[t]he court 

may impose a terminating sanction” by “order dismissing the action, or any part of the 

action, of that party.” Section 2023.030 does not require any particular form for a 

terminating sanction nor does it require that the order dismissing the action contain any 

express factual findings. 

Section 2023.010 enumerates “[m]isuses of the discovery process” to include such 

abusive conduct as “[f]ailing to respond or to submit to an authorized method of 

discovery,” “[m]aking, without substantial justification, an unmeritorious objection to 

discovery,” [m]aking an evasive response to discovery,” and “[d]isobeying a court order 

to provide discovery.” (Id. at subds. (d), (e), (f), (g).) However, section 2023.010 also 

does not require any particular express findings in a terminating sanctions order.

Where a statute does not require express findings for a particular order, we do not 

imply such a requirement. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 

1273.) In the absence of any authority for the proposition that a terminating sanctions 

order must make express findings about lesser sanctions, we reject the Yeagers’ 

contention regarding the deficiency of the order in this case. Moreover, nothing in the 
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terminating sanctions order refutes the presumption that the trial court properly 

considered lesser penalties. We reject the Yeagers’ claim that the terminating sanctions 

order is deficient.

B.

Proportionality of the Terminating Sanction

The Yeagers claim terminating sanctions were “disproportionate to the harm 

alleged” by the Thomas defendants. Buried in this claim is the assertion that the trial 

court “dismissed their claims” in derogation of their due process rights. We reject these 

claims.

This court has previously explained that in determining whether to impose 

terminating sanctions, “ ‘[t]he trial court should consider both the conduct being 

sanctioned and its effect on the party seeking discovery and, in choosing a sanction, 

should “ ‘attempt[] to tailor the sanction to the harm caused by the withheld discovery.’ ” 

[Citation.] The trial court cannot impose sanctions for misuse of the discovery process as 

a punishment.’ (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) 

‘ “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed 

that which is required to protect the interests of the party entitled to but denied 

discovery.’ ” [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is 

warranted: continuing misuses of the discovery process warrant incrementally harsher 

sanctions until the sanction is reached that will curb the abuse. “A decision to order 

terminating sanctions should not be made lightly. But where a violation is willful, 

preceded by a history of abuse, and the evidence shows that less severe sanctions would 

not produce compliance with the discovery rules, the trial court is justified in imposing 

the ultimate sanction.” ’ (Ibid.)” (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 

1516 (Van Sickle).)

In reviewing a challenge to terminating sanctions, we do not second guess the 

wisdom of the trial court’s order. Instead, we review a challenge to the selection of 
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terminating sanctions under the abuse of discretion standard of review. “ ‘Imposition of 

sanctions for misuse of discovery lies within the trial court’s discretion, and is reviewed 

only for abuse.’ (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 991.) 

‘Sanction orders are “subject to reversal only for arbitrary, capricious or whimsical 

action.” ’ (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 

Cal.App.4th 1093, 1102.)” (Van Sickle, supra, 196 Cal.App.4th at p. 1516.)

Contrary to the Yeagers’ assumption that terminating sanctions must be preceded 

by sanctions escalating in severity, a trial court has discretion to impose terminating 

sanctions when a party has willfully disobeyed one or more discovery orders. (Lang v. 

Hochman (2000) 77 Cal.App.4th 1225, 1244-1256 [collecting authority].) “ ‘ “[T]he 

question before this court is not whether the trial court should have imposed a lesser 

sanction; rather the question is whether the trial court abused its discretion by imposing 

the sanction it chose.” ’ ” (Id. at p. 1245, quoting Collisson & Kaplan v. Hartunian

(1994) 21 Cal.App.4th 1611, 1620.)

Here, the trial court did not abuse its discretion in imposing terminating sanctions. 

The terminating sanctions order was preceded by three court orders that addressed willful 

discovery abuses by the Yeagers. The Yeagers failed to adequately respond to written 

discovery demands even after being compelled to do so by court orders issued on 

February 18, 2016, April 17, 2017, and April 27, 2017. The trial court’s April 27, 2017, 

sanctions order found the Yeagers’ engaged in “willful failure to comply” with its earlier 

discovery order. In later addressing the Gibson defendants’ motion for terminating 

sanctions, the trial court noted the motion essentially asked Victoria “to stop doing what 

she is already prohibited from doing,” namely litigating on behalf of Charles. (Boldface 

& underscoring omitted.) Despite being chastised repeatedly for the unauthorized 

practice of law, Victoria appeared convinced she could continue to legally represent 

Charles. In other words, the trial court found the Yeagers’ discovery abuses had been 

willful and Victoria appeared ready to continue violating court orders regarding the 
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unauthorized practice of law. In light of this history, the trial court did not abuse its 

discretion in granting terminating sanctions.

We also reject the Yeagers’ claim they were deprived of due process as a result of 

the dismissal. “[T]he most basic concept of due process is the right to notice and a 

meaningful opportunity to be heard.” (In re J.F. (2011) 196 Cal.App.4th 321, 335.) 

Here, the Thomas defendants served notice of the motion for terminating sanctions on the 

Yeagers. The Yeagers could have requested a hearing. Instead, they chose not to oppose 

the motion for terminating sanctions. Due process does not require more. (Ibid.) To the 

extent the Yeagers assert the very act of dismissal deprived them of a right to purse their 

case to trial, we reject the assertion. There is no right allowing a litigant to engage in 

repeated discovery abuses and the unauthorized practice of law. (§§ 2023.010, subds. 

(d), (e), (f), (g), 2023.030, subd. (d)(3).) The Yeagers have not established they were 

deprived of due process.

C.

Intent to Punish

The Yeagers argue the terminating sanctions order was “prompted only by an 

intent to punish” them for their misuse of the discovery process. (Italics added.) We 

reject the argument.

As explained above, we begin with the presumption that the challenged order of 

the trial court is correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Thus, 

“the appellant has the burden to affirmatively show, based on the record, the trial court’s 

commission of reversible error.” (GHK Associates v. Mayer Group, Inc. (1990) 224 

Cal.App.3d 856, 872, italics added.) The Yeagers have the task of establishing the trial 

court issued terminating sanctions “only” due to its “intent to punish” them. The Yeagers 

have not succeeded in meeting this burden.

The order imposing terminating sanctions itself is a model of brevity. It recounts 

that the motion for terminating sanctions was unopposed by the Yeagers and that it 
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followed three separate orders in which the Yeagers were found to have engaged in 

discovery abuses. Based on both the repeated discovery abuses and the repeated failures 

by the Yeagers to comply with court orders, the trial court imposed terminating sanctions.

We discern no intent to punish the Yeagers. Instead the record establishes the 

Yeagers’ repeated and willful noncompliance with trial court orders. The order granting 

terminating sanctions represents a final response to the Yeagers’ intransigence in the face 

of repeated court orders addressed to their discovery abuses. Moreover, the terminating 

sanctions order displays no intent to punish by the trial court in granting an unopposed

motion. We reject the Yeagers’ claim the trial court was motivated solely by an intent to 

punish them. Indeed, the record does not establish the trial court was motivated even in 

part with an intent to punish them.

D.

Compliance with Discovery Orders

The Yeagers next argue they “did not simply fail to comply with” the Thomas 

defendants’ discovery responses. This argument is devoid of merit.

On February 18, 2016, the trial court entered an order granting the Thomas 

defendants’ motion to compel further responses. In its ruling, the trial court granted all 

14 demands to compel by the Thomas defendants and explained in detail how the 

Yeagers were required to comply with the specific discovery demands. The Yeagers 

served supplemental responses. On April 17, 2017, the trial court entered an order 

chastising the Yeagers for inadequate responses to the Thomas defendants’ discovery 

demands. In particular, the trial court noted that “[i]n each interrogatory now before the 

Court, [Victoria] responded very generally, e.g., ‘All of the documents are already in 

propounding party’s possession;’ ‘Thomas defendants already have these documents’; 

‘Every document in the [case] docket’, etc.” (Italics added.) The trial court explained the 

Thomas defendants were entitled to discover the basis for the “broad allegations of 

wrongdoing” in the Yeagers’ complaint. Thus, the trial court ordered that Victoria 
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“provide full and complete, verified Supplemental Responses,” to the Thomas 

defendants’ interrogatories.

Victoria served supplemental responses, but these too proved inadequate. The 

Thomas defendants again moved for sanctions. In granting sanctions against the 

Yeagers, the trial court lamented that “[t]he antecedent procedural history is complex 

and, unfortunately, confused.” In the order, the trial court found the Yeagers’ “failure 

and refusal to provide full and complete responses to the form interrogatories, special 

interrogatories and requests for admission in willful disobedience of the Court Order goes 

to the heart of the facts of the case.” (Italics added.) In imposing monetary sanctions, the 

court reiterated the willful nature of the Yeagers’ refusal to comply with the discovery 

orders.

Against this backdrop of express findings by the trial court that the Yeagers 

willfully refused to comply with discovery orders, the Yeagers now assert they complied 

with the trial court orders “to the best of their abilities.” Tellingly, the Yeagers’ opening 

brief does not recite any specific efforts made to respond to the trial court’s discovery 

orders. We reject the Yeagers’ assertion of efforts to comply with the discovery orders. 

On appeal, we defer to the factual findings of the trial court. (Minick v. City of Petaluma

(2016) 3 Cal.App.5th 15, 24.) Here, the trial court expressly rejected the Yeagers 

assertion they had fully complied with the court’s discovery orders. The record supports 

this finding by the trial court. 

II

Remand for Ruling on Motion to Vacate the Judgment

Finally, the Yeagers assert this court “should permit reversal and remand with 

directions to the trial court to consider the Yeagers’ motion to vacate.” We reject the 

assertion.

We may not reverse a judgment unless the appellant demonstrates prejudicial error 

in the trial court. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836;
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People v. Campos (1995) 32 Cal.App.4th 304, 309.) Here, the Yeagers seek remand to 

allow the trial court to consider their postjudgment motion for relief. The request for 

remand is not based on an assertion of prejudicial error but based on the policy implicit in

section 473 that actions should be decided on their merits. However salutary the policy 

of section 473 may be, we may not set aside a judgment in the absence of a showing of 

reversible error. (Cal. Const., art. VI, § 13.) As we have explained, we conclude the 

Yeagers have not established the trial court committed reversible error in imposing 

terminating sanctions. Likewise, we conclude this argument also does not establish – or 

even assert – that the trial court committed reversible error.

DISPOSITION

The judgment is affirmed. Michael Thomas and Thomas & Associates shall 

recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

 /s/

HOCH, J.

We concur:

 /s/

MAURO, Acting P. J.

 /s/

KRAUSE, J.