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Filed 10/13/23 Souch v. McCormick CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CHARLOTTE SOUCH et al.,

Plaintiffs and Appellants,

v.

MARTIN McCORMICK et al.,

Defendants and Respondents.

 A163857

 (Sonoma County

 Super. Ct. No. SCV-266109)

Plaintiffs Charlotte Souch and Houses 4 Homes, LLC (H4H) 

(collectively plaintiffs) appeal after the trial court granted defendants’ motion 

for a terminating sanction against Souch due to her failure to comply with 

discovery orders. On appeal, plaintiffs contend the court’s imposition of a 

terminating sanction constituted an abuse of discretion because the sanction 

(1) was punitive; (2) placed defendants in a better position than they would 

have been in had they obtained the sought-after discovery; and (3) deprived 

Souch of due process. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiffs allege that Souch is the sole managing member of H4H, 

which owns two properties on Green Meadow Road and Vista Court in 

1 The records designated by plaintiffs for inclusion in the clerk’s 

transcript do not include key filings, including the operative first amended 

complaint and most of the papers filed in connection with defendants’ 
2

Sebastopol. Defendant Banrion Corporation, doing business as McCormick & 

Co. Homes and Loans (McCormick & Co.), is a mortgage broker and the 

general partner of defendant Max-Y Company, L.P. (Max-Y), a diversified 

financial marketing company engaged in residential mortgage banking. 

Defendant Martin McCormick is the president of McCormick & Co. 

Hereafter we will refer to McCormick, McCormick & Co., and Max-Y 

collectively as defendants.

Plaintiffs’ allegations included all of the following. In January 2019, 

they obtained first and second loans from Max-Y, brokered by McCormick & 

Co., to purchase the Green Meadow Road property, and also refinanced a loan 

on the Vista Court property. Defendants knew that plaintiffs obtained the 

Green Meadow Road property as an investment property to renovate and sell, 

and defendants promised to provide additional funds for the renovation so 

long as plaintiffs could justify the amounts already spent. Defendants also 

promised that the loan on Green Meadow Road would cover the entire 

purchase, and that the loan on Vista Court was a cash-out loan that would 

immediately net Souch at least $80,000. 

These representations were allegedly false, as the loan on Vista Court 

did not net an extra $80,000 in cash after the refinance, and the loan on 

Green Meadow Road was insufficient to cover the purchase price. Needing 

more money for renovations, plaintiffs requested and received two 

construction loans from defendants, but when plaintiffs requested a third 

draw of $119,000, defendants refused to provide more than $75,000 and 

required plaintiffs to put Vista Court up for sale. Defendants further 

sanctions motion. (See Discussion, pt. A, post.) The following details have 

been gleaned from the original complaint, the trial court’s order on the 

sanctions motion, and the respondents’ appendix.
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misrepresented that the loans on Green Meadow Road could not be 

refinanced because they were cross-collateralized, when in fact, they were 

not. Had plaintiffs known this, they would have refinanced those loans. 

Plaintiffs allege that due to a lack of funding, they were unable to 

complete renovations in time for the summer selling season, and they 

eventually defaulted on the loans. In December 2019, defendants recorded 

notices of default on the Green Meadow Road and Vista Court properties. 

Max-Y filed a cross-complaint against plaintiffs, alleging that Souch 

made material misrepresentations in her loan applications regarding H4H’s 

fitness. 

The matter was set for trial on September 3, 2021. 

A. Defendants’ Motion for Sanctions

In June 2021, defendants brought a motion for issue, evidence, 

terminating, and monetary sanctions against Souch.

2 The motion was based 

on Souch’s failure to comply with her discovery obligations and two orders of 

the trial court, as follows.

First, in January 2021, defendants moved to compel Souch to attend a 

second session of her deposition and to produce requested documents after 

the initial session had been adjourned due to Souch’s failure to provide 

responsive documents. In April 2021, the trial court granted the motion and

ordered Souch to appear for deposition and produce responsive documents by 

early May 2021, and awarded defendants $1,620 in monetary sanctions. 

Souch failed to comply with the April 2021 order. 

2 The following month, defendants filed an amended motion requesting 

that sanctions be imposed against H4H as well. However, after granting the 

sanctions motion, the trial court would later clarify that sanctions were 

imposed only on Souch, not H4H.
4

In December 2020, defendants propounded form interrogatories, special 

interrogatories, and document production requests on both plaintiffs, and 

requests for admission on H4H. When plaintiffs failed to provide responses 

by the indicated deadline, defendants moved to compel responses and to have 

the requests for admission deemed admitted by H4H. Prior to the hearing on 

the motion, plaintiffs served responses to the written discovery, but H4H’s 

responses were not verified. 

In June 2021, the trial court denied the motion as moot as to Souch, but 

granted the motion as to H4H and ordered that H4H provide full and 

complete responses to the written discovery no later than June 17, 2021. The 

court ordered Souch and her counsel, jointly and severally, to pay defendants 

$1,035 in monetary sanctions in connection with the motion to compel. 

Additionally, the court ordered that the requests for admissions be deemed 

admitted as to H4H, and that Souch and her counsel pay defendants $892 in 

monetary sanctions. Plaintiffs did not provide timely, verified discovery 

responses as ordered. Furthermore, despite the multiple monetary sanctions 

orders against Souch and her counsel set forth in the April and June 2021 

orders, no sanctions were paid. 

Based on the foregoing, defendants argued that Souch’s willful 

noncompliance with the April and June 2021 orders justified a terminating 

sanction (or alternatively, issue and evidence sanctions), and additional 

monetary sanctions against her. Defendants also noted in their sanctions 

motion that the discovery responses Souch had previously served (which 

rendered the prior motion to compel moot as to her) were “woefully deficient 

and no responsive documents were produced,” and thus, they were bringing a 

separate motion to compel Souch to provide further responses to form 

interrogatories, special interrogatories, and requests for production. 
5

Though the sanctions motion and motion to compel further responses 

were initially calendared for different days, the trial court continued the 

hearing on the sanctions motion to the same day as the motion to compel 

further responses: August 25, 2021. In its ruling continuing the sanctions 

motion, the trial court stated: “Unless Plaintiff starts participating . . . in 

this case forthwith, the Court is inclined to grant this motion [at] the August 

25, 2021 hearing.” The court also continued a motion to withdraw filed by 

plaintiffs’ counsel to the August 25 hearing date. 

Defendants filed notices of plaintiffs’ nonopposition to both the 

sanctions motion and the motion to compel further responses. In advance of 

the continued hearing, defendants’ counsel, Rachel Dollar, filed a declaration 

setting forth her unsuccessful efforts to meet and confer on the motion to 

compel further responses. Dollar noted that she “received no response” to her 

prior attempts to meet and confer, and that “[s]ince that time, [plaintiffs’] 

counsel has moved to withdraw and has advised that the client is 

uncooperative. Souch has not appeared for her court ordered deposition and 

failed to produce court ordered documents. She has also failed to provide 

further responses to the discovery which is the subject of the instant motions. 

No oppositions to the motions were filed. This is not a dispute concerning 

specific discovery responses or objections, but is, rather, an issue of the 

wholesale failure of the plaintiffs to participate in discovery over the past 8 

months despite the upcoming jury trial scheduled to begin on September 3. 

Further efforts to meet and confer would be futile as the plaintiffs are not 

cooperating with their counsel or participating in the litigation.” Dollar 

further noted that after the trial court indicated its inclination to grant the 

sanctions motion, “[n]o further responses have been provided and no 
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documents have been produced since the motions were filed,” and Dollar was 

“not aware of any renewed participation by Plaintiffs in this litigation.” 

B. Hearing and Order

The record on appeal does not contain a reporter’s transcript of the 

August 25 hearing, but a minute order in the clerk’s transcript reflects that 

both sides appeared through counsel, and that the trial court took the matter 

under submission. 

On August 31, 2021, the trial court issued its written order on the 

various motions. First, the court granted the motion of plaintiffs’ counsel to 

withdraw. Second, the court granted defendants’ sanctions motion, finding 

that “terminating sanctions are warranted based on Plaintiff’s history of 

discovery abuses and Plaintiff’s continued failure to comply with the Court’s 

prior discovery orders.” 

Recounting in detail the various discovery disputes that led to the 

issuance of the April and June 2021 orders against Souch, the trial court 

stated, “[b]ased on this history, the Court can reach only one conclusion: 

Plaintiff has repeatedly and willfully misused the discovery process by failing 

to submit to authorized methods of discovery and by willfully failing to 

comply with the Court’s prior orders. Furthermore, the Court gives great 

weight to the fact that Plaintiff’s failure to submit to discovery has caused 

Defendants significant prejudice in their ability to reasonably prepare for 

trial, which commences in just over one week. Finally, the Court concludes 

that a lesser sanction would not be effective to induce compliance based on 

Plaintiff’s history of discovery abuses in this case and in SCV-264915 (which 

involves similar discovery abuses by Souch); because the abuses continue 

despite the Court’s prior sanctions orders; and because the discovery abuses 

encompass all issues in Plaintiff’s complaint and Defendants’ cross-
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complaint. Therefore, because this appears to be an ‘extreme case’ where 

Plaintiff’s discovery abuses persist despite the Court’s prior rulings, the 

motion for terminating sanctions is GRANTED. The Court strikes Plaintiff’s 

complaint and her answer to the cross-complaint and Defendants may seek 

an entry of default.” The court additionally awarded defendants $5,580 in 

monetary sanctions, but denied defendants’ motion to compel further 

responses against Souch as moot. 

Souch timely appealed. 

DISCUSSION

A. Preliminary Matters

We begin by addressing two preliminary matters. The first is plaintiffs’ 

acknowledgment that the notice of appeal incorrectly identifies the appealedfrom judgment. Specifically, the notice of appeal lists the following matters: 

“Judgment after an order granting a summary judgment motion” and “Other 

. . . 1) Defendants[’] new motion dated 10/5/21 on clerical errors.

[¶] 2) Plaintiffs’ performance influenced by poverty, health, and pandemic 

disruptions.” Plaintiffs argue that the notice of appeal should have identified 

the judgment after the August 31 order granting terminating sanctions

(notice of entry of which was served on September 8, 2021), and they request

relief from this error. As there appears to be no issue with regard to the 

timeliness of the appeal, we will construe the notice of appeal to be taken 

from the judgment after the order granting defendants’ motion for 

terminating sanctions. (See Cal. Rules of Court, rules 8.100(a)(2) [notice of 

appeal must be liberally construed].) 

The second preliminary matter relates to deficiencies in the opening 

brief and record on appeal. “An appellant’s opening brief must . . . [p]rovide a 

summary of the significant facts limited to matters in the record.” (Cal. 
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Rules of Court, rule 8.204(a)(2)(C).) Here, the opening brief devotes most of 

its factual and procedural summary to the allegations of the complaint, with 

only a brief mention of the sanctions proceedings, and no discussion of 

Souch’s noncompliance with discovery orders. As such, the opening brief 

hardly presents a complete picture of the circumstances leading to the 

issuance of the terminating sanction in this case.

Additionally, the clerk’s transcript lacks key documents, including most 

of the papers filed in connection with defendants’ sanctions motion. In the 

record before us, the only documents from the sanctions proceedings are 

defendants’ notice of plaintiffs’ nonopposition, the minute order of the August 

25 hearing, and the August 31 order. Plaintiffs did not provide a reporter’s 

transcript of the hearing on the sanctions motion, or a suitable substitute.

(See Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 [“[a] proper record 

includes a reporter’s transcript or a settled statement of any hearing leading 

to the order being challenged on appeal”]; Ballard v. Uribe (1986) 41 Cal.3d 

564, 574 [appellant has burden of providing an adequate record to support 

any claim of error].) Without a proper record, we cannot evaluate the issues 

requiring a factual analysis, and we must presume the evidence is sufficient 

to support the judgment. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 

1003–1004 & fn. 2.)

Having said this, we observe that defendants have filed a respondents’ 

appendix providing the papers filed in connection with the sanctions motions, 

as well as the records from the prior discovery motions.

3 Because 

3 California Rules of Court, rule 8.124(b)(5), provides that a respondent’s 

appendix may contain any document that could have been included in the 

appellant’s appendix or joint appendix. Given that plaintiffs did not elect to 

use an appendix under California Rules of Court, rule 8.124, a more 

appropriate course would have been to serve and file a notice in the superior 
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respondent’s appendix, along with the clerk’s transcript, offer an adequate 

record for us to consider plaintiffs’ contentions, we elect to reach the merits of 

the appeal. (See Goehring v. Chapman University (2004) 121 Cal.App.4th 

353, 363, fn. 7.)

B. Terminating Sanctions

The Civil Discovery Act permits the trial court, “after notice to any 

affected party, person, or attorney, and after opportunity for hearing” to 

impose sanctions “against anyone engaging in conduct that is a misuse of the 

discovery process.” (Code Civ. Proc., § 2023.030.)4 Misuse of the discovery 

process includes “[f]ailing to respond or to submit to an authorized method of 

discovery” and “[d]isobeying a court order to provide discovery” (§ 2023.010, 

subds. (d), (g)). Available sanctions include monetary, issue, evidence, and 

terminating sanctions. (§ 2023.030, subds. (a)–(d).) The court may impose a 

terminating sanction by orders “striking out the pleadings or parts of the 

pleadings of any party engaging in the misuse of the discovery process” and 

“dismissing the action, or any part of the action, of that party.” (Id., 

subd. (d)(1), (3).)

“ ‘The power to impose discovery sanctions is a broad discretion subject 

to reversal only for arbitrary, capricious, or whimsical action.’ 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 

court designating any additional documents defendants wanted included in 

the clerk’s transcript. (See Cal. Rules of Court, rule 8.122(a)(2).)

4 Further unspecified statutory references are to the Code of Civil 

Procedure.
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imposing the ultimate sanction.’ ” (Parker v. Wolters Kluwer United States, 

Inc. (2007) 149 Cal.App.4th 285, 297 (Parker), internal footnotes omitted.) 

In reviewing for abuse of discretion, we draw all reasonable inferences 

in support of the trial court’s ruling. (Karton v. Ari Design & Construction, 

Inc. (2021) 61 Cal.App.5th 734, 749.) “ ‘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.’ [Citations.] The question on appeal ‘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.’ ” (Padron v. Watchtower Bible & Tract Society of New 

York, Inc. (2017) 16 Cal.App.5th 1246, 1259–1260 (Padron).)

Applying these authorities, we conclude the trial court did not abuse its 

discretion in imposing a terminating sanction on Souch. Because the 

sanctions motion was unopposed, the trial court could permissibly find that 

the failure to oppose was an admission of the motion’s merit. (Cal. Rules of 

Court, rule 3.1342(b).) The undisputed facts presented in the moving papers 

demonstrated that Souch failed to comply with the April 2021 order to appear 

for a second session of her deposition, produce responsive documents, and pay 

monetary sanctions to defendants. She also failed to comply with the court’s 

June 2021 order requiring her, as the sole managing member of H4H, to 

provide further verified discovery responses on behalf of H4H and to pay 

monetary sanctions to defendants. Based on this showing, the trial court 
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reasonably and appropriately found there was a history of discovery abuse by 

Souch. (§ 2023.010, subds. (d), (g); Parker, supra, 149 Cal.App.4th at p. 297.)5

Likewise, the trial court did not abuse its discretion in finding that 

Souch’s violations were willful. “A willful failure does not necessarily include 

a wrongful intention to disobey discovery rules. A conscious or intentional 

failure to act, as distinguished from accidental or involuntary noncompliance, 

is sufficient to invoke the penalty,” and “the party on whom [discovery was] 

served has the burden of showing the failure was not willful.” (Deyo v. 

Kilbourne (1978) 84 Cal.App.3d 771, 787–788 (Deyo).) Plaintiffs plainly failed 

to meet their burden of showing that Souch’s disobedience was not willful, as 

they offered no briefing or evidence in opposition to the sanctions motion. 

Consequently, the trial court had no reason to infer that Souch’s 

noncompliance was justified in any way.6 Even on appeal, Souch offers no 

5 The trial court also cited “Plaintiff’s history of discovery abuses . . . in 

SCV-264915 (which involved similar discovery abuses by Souch).” Although 

neither party explains this portion of the court’s order, we observe that 

defendants, in a footnote to their moving brief and a supporting declaration 

to their sanctions motion, requested judicial notice of an order granting 

terminating sanctions against Souch in a separate case, Jesse Villasenor dba 

Green Valley Electric v. Charlotte Souch, et al., Sonoma County Superior 

Court Case No. SCV264915. While we are not aware of the trial court’s 

ruling on the request, the court seems to have implicitly taken judicial notice 

of the Villasenor order given its mention of the case, and plaintiffs do not 

contend it was improper for the court to rely on the Villasenor order to 

support its finding of a history of discovery abuse by Souch. In any event, we 

are satisfied that the record of discovery abuse in the instant case alone 

provided ample support for the terminating sanction.

6 We will not presume that any argument or showing of justification was 

made at the hearing on the sanctions motion. (See Shenefield v. Shenefield

(2022) 75 Cal.App.5th 619, 633, fn. 12 (Shenefield) [when there is no 

reporter’s transcript and error is not evident from face of record, reviewing 

court presumes unreported trial testimony would demonstrate absence of 

error].)
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justification for her failure to comply with the court’s prior discovery orders. 

Although plaintiffs suggested in their notice of appeal that Souch’s 

noncompliance was due to “poverty, health, and pandemic disruptions,” such 

matters were irrelevant to the notice of appeal, and more importantly, they 

were never presented to the trial court with supporting evidence.

Additionally, the trial court did not abuse its discretion in finding that 

less severe sanctions would not prompt Souch’s compliance. The court had 

already issued several orders directing Souch to comply with her discovery 

obligations and pay monetary sanctions to defendants, none of which had an 

effect on Souch’s willingness to cooperate in discovery. Meanwhile, the 

supporting declarations of Dollar provided the court with substantial 

evidence that Souch was no longer participating in the litigation or 

cooperating with her own attorneys, who were moving to withdraw at the 

same time. On this record, the court reasonably concluded that lesser 

sanctions would be ineffective in motivating Souch to comply with the court’s 

prior orders in time for defendants to reasonably prepare for the impending 

trial.

In sum, the available record amply supports the trial court’s findings

that Souch’s noncompliance was willful and preceded by a history of abuse, 

and that less severe sanctions would not produce her compliance. No abuse 

of discretion appears. (Parker, supra, 149 Cal.App.4th at p. 297.)

Plaintiffs’ arguments to the contrary are unavailing. They first contend

the terminating sanction was improperly punitive. It is true that courts 

“ ‘cannot impose sanctions for misuse of the discovery process as a 

punishment. [Citation.] [¶] The discovery statues evince an incremental 

approach to discovery sanctions, starting with monetary sanctions and 

ending with the ultimate sanction of termination.’ ” (Padron, supra, 16 
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Cal.App.5th at p. 1259.) But the record reflects that the trial court took an 

incremental approach to sanctioning Souch, beginning with multiple orders of 

monetary sanctions that proved ineffective in compelling her cooperation. 

After defendants moved for greater sanctions, including a terminating 

sanction, the court took the added step of continuing the hearing on the 

motion while making clear its inclination to grant the motion “[u]nless 

Plaintiff starts participating” in the litigation, all to no avail. Plaintiffs 

meanwhile did not oppose the sanctions motion, and on appeal, they do not 

contend that the court’s findings of past discovery abuse and willful 

noncompliance lacked substantial evidence. On this record, a terminating 

sanction was not a disproportionate or merely punitive consequence for 

Souch’s conduct.

Plaintiffs further contend that the terminating sanction improperly 

placed defendants in a better position than they would have been in had they 

obtained the sought-after discovery. We are not persuaded. The applicable 

principle, as explained in Deyo, is that a discovery sanction “should not 

operate in such a fashion as to put the prevailing party in a better position 

than he would have had if he had obtained the discovery sought and it had 

been completely favorable to his cause.” (Deyo, supra, 84 Cal.App.3d at p. 793, 

italics added.) Plaintiffs’ briefing, however, contains no discussion of the 

discovery responses and documents that Souch withheld by refusing to 

comply with defendants’ requests and the trial court’s orders to provide the 

same. Drawing all reasonable inferences in support of the trial court’s ruling, 

the record supports the conclusion that defendants were denied critical 

discovery until the eve of trial, including a complete deposition of Souch, 

code-compliant responses, and responsive documents to their initial set of 

written discovery. Assuming the withheld discovery would have been 
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favorable to defendants, we cannot agree, based on the record provided, that 

terminating the case as to Souch placed defendants in a better position than 

if they had received the requested discovery.

Souch’s due process argument likewise fails. “ ‘A trial court must be 

cautious when imposing a terminating sanction because the sanction 

eliminates a party’s fundamental right to a trial, thus implicating due 

process rights.’ ” (J.W. v. Watchtower Bible & Tract Society of New York, Inc.

(2018) 29 Cal.App.5th 1142, 1169 (J.W.).) Accordingly, “[d]ue process 

requires adequate notice be provided prior to the imposition of sanctions.” 

(Id. at p. 1167.) Souch does not claim her failure to oppose the sanctions 

motion stemmed from inadequate notice, and from our review of the record, 

we observe the notice and briefing in support of the sanctions motion made 

clear that defendants were seeking a terminating sanction against her. 

There appears no basis for concluding that Souch lacked notice or an 

opportunity to be heard prior to the imposition of a terminating sanction. 

(See § 2023.030.) 

That Souch lost the opportunity to litigate her claims and defend 

against Max-Y’s cross-complaint does not constitute a deprivation of due 

process. As Souch acknowledges, due process of law is “a fundamental 

principle of justice which is not subject to any precise definition but deals 

essentially with the denial of fundamental fairness, shocking to the universal 

sense of justice.” (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 

290.) “The definition in each case depends upon the circumstances varying 

with the subject matter and the necessities of the situation.” (Gray v. 

Whitmore (1971) 17 Cal.App.3d 1, 20.) Under the circumstances presented 

here, which include Souch’s repeated noncompliance with her discovery 
15

obligations and the orders of the court, we may comfortably conclude she was 

not denied fundamental fairness.

Finally, Souch contends that rather than imposing a terminating 

sanction, the trial court should have imposed additional monetary sanctions 

and/or continued the trial date to ensure the parties were able to obtain the 

discovery they needed. However, Souch did not seek such lesser sanctions 

below, so “[w]e cannot conclude the trial court abused its discretion by failing 

to enter an order that was never suggested.” (J.W., supra, 29 Cal.App.5th at 

p. 1170.) And because plaintiffs failed to provide a reporter’s transcript, we 

cannot assume an argument for lesser sanctions was preserved for appeal. 

(Shenefield, supra, 75 Cal.App.5th at p. 633, fn. 12.) In any event, as 

previously discussed, ample evidence supports the trial court’s finding that 

lesser sanctions would not have compelled Souch’s cooperation.

DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on 

appeal.

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Petrou, J.

Souch v. McCormick (A163857)