Filed 6/24/24 Chang v. Fire Insurance Exchange CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WILD CHANG et al.,

Plaintiffs and Appellants,

v.

FIRE INSURANCE EXCHANGE 

et al.,

Defendants and Respondents.

 B326896

 (Los Angeles County

 Super. Ct. No. BC650876)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Teresa A. Beaudet, Judge. Affirmed.

Wild Chang, in pro. per., Kenneth Lo, in pro. per., 

Wild Chang, Jr., in pro. per., for Plaintiffs and Appellants. 

Woolls Peer Dollinger & Scher, Gregory B. Scher and 

H. Douglas Galt for Defendants and Respondents.

________________________
2

INTRODUCTION

Wild Chang and Kenneth Lo were insured under a policy 

issued by defendant Fire Insurance Exchange. They submitted a 

claim under the policy, which they alleged was handled in bad 

faith. Chang, Lo, and Chang’s son, Wild Chang, Jr. (Chang Jr.), 

sued Farmers Insurance Company, Inc. (Farmers), Fire 

Insurance Exchange, and agent Stacy Chern for breach of 

contract, breach of the implied covenant of good faith and fair 

dealing, fraud, and other related causes of action. In their 

operative third amended complaint, filed in propria persona, 

Chang, Lo, and Chang Jr. also sued the law firm of Woolls Peer 

Dollinger & Scher (Woolls Peer), alleging it engaged in fraud 

while representing other defendants in this consolidated 

litigation. The trial court sustained Farmers’ demurrer to the 

third amended complaint without leave to amend and entered a 

judgment of dismissal in Farmers’ favor, which this court 

affirmed on appeal. (See Chang v. Farmers Insurance Company, 

Inc. (June 16, 2023, B321411) [nonpub. opn.].) Woolls Peer filed a 

special motion to strike under Code of Civil Procedure section 

425.16, which the trial court granted and this court also affirmed 

on appeal. (See Chang v. Farmers Insurance Company, Inc.

(June 14, 2023, B317518) [nonpub. opn.].)

While the previous two appeals were pending, the trial 

court issued several discovery orders with which Chang and Lo 

(the remaining plaintiffs) did not comply. The trial court 

subsequently granted a motion for terminating sanctions filed by 

Fire Insurance Exchange and Chern (the only remaining 

defendants) and entered judgment against Chang and Lo. We 

affirm.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs’ Insurance Claim and Consolidated Actions

These consolidated actions arise out of an insurance claim 

that plaintiffs submitted for losses caused by a fire in their home 

in December 2014. In February 2017, plaintiffs Chang and Lo 

filed their original complaint against Farmers, Fire Insurance 

Exchange, Stacy Chern Insurance Agency, and Chern. 

In August 2017, Chang and Lo filed a second amended 

complaint that substituted Farmers Insurance Group of 

Companies for Farmers. In January 2018, plaintiffs voluntarily 

dismissed the action with prejudice as to Farmers Insurance 

Group of Companies.

In January 2021, plaintiffs Chang, Lo, and Chang Jr. filed 

a second action against Farmers, Fire Insurance Exchange, Stacy 

Chern, and Woolls Peer. The actions were consolidated and the 

operative third amended complaint deemed filed in July 2021.

In the third amended complaint, plaintiffs alleged causes of 

action for fraud, breach of the covenant of good faith and fair 

dealing, breach of contract, unfair business practices, professional 

negligence, and emotional distress against all defendants. 

Plaintiffs alleged Farmers and Fire Insurance Exchange, acting 

in bad faith, made a grossly deficient settlement offer for the 

claim plaintiffs submitted for their fire loss. Plaintiffs also 

alleged Farmers, Fire Insurance Exchange, and Chern engaged 

in a fraudulent scheme to “convert the ‘insurance’” plaintiffs 

allegedly purchased from Farmers “into a mere ‘self-owned 

membership’ in an unincorporated association, i.e., [Fire 

Insurance Exchange] . . . in order to insulate [Farmers] and its 

agents from all of the legal liabilities arising from the deceptive 

and non-conforming insurance sold to [p]laintiffs.”
4

Plaintiffs alleged that Farmers acted as the 

“principal/agent” of other defendants, including Fire Insurance 

Exchange, and that Fire Insurance Exchange “act[ed] as a ‘veil’” 

so that Farmers could limit its liability. Plaintiffs also alleged 

Chern acted as an agent of Farmers, not Fire Insurance 

Exchange.

Plaintiffs alleged that, after the fire, defendants failed to 

properly investigate the damage caused by the fire, failed to 

provide temporary housing as required by the policy, and failed to 

provide adequate compensation for the claim. Plaintiffs also 

alleged defendants threatened to terminate the policy at a time 

they knew plaintiffs could not obtain coverage elsewhere. 

Defendants took more than a year to complete their investigation 

and finally issued a check for the allegedly grossly deficient 

amount of $19,925.91, even though estimates for repairs 

exceeded $150,000. Plaintiffs alleged the offer to pay $19,925.91 

was made in bad faith. Plaintiffs rejected the offer and sued.

Plaintiffs also alleged that stress from the experience 

caused Chang to suffer a stroke, the aftermath of which his minor 

son, Chang Jr., witnessed.

Plaintiffs alleged defendants’ counsel Woolls Peer 

participated in the alleged fraud through actions taken in the 

litigation, including by representing Fire Insurance Exchange, 

which plaintiffs characterize as a “non-party”; moving to dismiss 

Farmers on the ground that Farmers was not the insurer; and 

filing various other motions. Plaintiffs alleged that Woolls Peer 

made false representations in court filings and in 

communications with opposing counsel and that Woolls Peer 

failed to conduct sufficient due diligence before agreeing to 

represent Farmers and Fire Insurance Exchange. Plaintiffs 

alleged Woolls Peer’s litigation activities constituted a “form of 

malicious prosecution.” 
5

Woolls Peer filed a special motion to strike (anti-SLAPP 

motion) under Code of Civil Procedure section 425.16, which the 

trial court granted in October 2021, and this court affirmed on 

appeal. (Chang v. Farmers Insurance Company, Inc., supra,

B317518.)

Farmers demurred to the third amended complaint on 

numerous grounds, including that Farmers was not a party to the 

insurance contract and did not owe plaintiffs any duty. The trial 

court sustained Farmers’ demurrer without leave to amend in

October 2021, and entered a judgment of dismissal in Farmers’

favor in May 2022, which this court affirmed on appeal. 

(Chang v. Farmers Insurance Company, Inc., supra, B321411.) 

The trial court also sustained demurrers by Fire Insurance 

Exchange and Chern to the fraud and emotional distress causes 

of action, including those of Chang Jr. Plaintiffs filed a petition 

for writ of mandamus seeking to vacate the trial court’s order 

sustaining the demurrers without leave to amend, which this 

court denied. (Chang v. Superior Court (January 5, 2022, 

B317135).) That left Chang and Lo as the only remaining 

plaintiffs. 

At the time of the motion for terminating sanctions at issue 

in this appeal, the remaining defendants were Fire Insurance 

Exchange and Chern, and the remaining causes of action were 

breach of the covenant of good faith and fair dealing, breach of 

contract, and unfair business practices against Fire Insurance 

Exchange, and professional negligence against Chern.
6

B. Relevant Discovery History and Events Leading to the 

Terminating Sanctions Against Chang and Lo

1. Written discovery requests, and orders to compel

responses and sanctions

In May and August 2019, defendants served Chang and Lo

each with sets of special interrogatories, requests for production 

of documents, and requests for admission. Defendants 

propounded additional written discovery requests on Chang and 

Lo in May 2020, including form interrogatories, additional sets of 

special interrogatories, and additional requests for production.

Chang and Lo did not provide substantive responses nor 

did they respond at all to the May and August 2019 discovery 

requests. In June 2020, defendants filed motions to compel

responses or supplemental responses to these discovery requests, 

with requests for monetary sanctions in conjunction with each 

motion.

On October 28, 2020, the trial court granted defendants’

motions to compel further responses to special interrogatories

(Set 2) to Chang, further responses to requests for production 

(Set 2) to Chang, responses to special interrogatories (Set 3) each 

to Chang and Lo, and responses to requests for production (Set 3) 

each to Chang and Lo.

1 The trial court ordered plaintiffs to 

provide verified responses and supplemental responses within 

30 days, and further ordered Chang and Lo to pay sanctions 

totaling $2,748 within 60 days. At plaintiffs’ request, the court 

extended the deadline to pay the sanctions to March 2021.

1 The court initially stated its intent to grant defendants’ 

motions to deem admitted requests for admission served on

Chang and Lo, but ultimately denied these motions as moot 

because Chang and Lo each filed responses on October 27, 2020.
7

Plaintiffs did not comply with the October 28, 2020 order to 

provide verified and supplemental responses within 30 days and 

instead served objections to the discovery requests in January 

2021. Contemporaneously, plaintiffs served their initial 

responses to the discovery propounded in May 2020; these 

responses were six months late and consisted solely of objections.

Defendants filed several motions to compel responses from

Chang and Lo to the discovery propounded in May 2020 and to 

compel supplemental responses to the discovery propounded in 

May and August 2019, with requests for monetary sanctions. 

The trial court granted these motions in four separate orders.

First, on February 25, 2021, the court ordered Chang and 

Lo each to provide verified supplemental responses, without 

objections, to form interrogatories (Set 1); it further ordered each 

of them to pay sanctions in the amount of $669.65.

Next, on February 26, 2021, the court ordered Chang and 

Lo each to provide verified supplemental responses, without 

objections, to special interrogatories (Set 4); it further ordered 

each of them to pay sanctions in the amount of $479.65.

Third, on March 1, 2021, the court ordered Chang and Lo to 

produce responsive documents and provide verified supplemental 

responses, without objections, to requests for production of 

documents (Set 4); it further ordered each of them to pay 

sanctions in the amount of $517.65.

Finally, on March 4, 2021, the court ordered Chang to 

produce responsive documents and to provide verified 

supplemental responses, without objections, to special 

interrogatories (Set 2) and further responses to requests for 

production of documents (Set 2); it further ordered Chang to pay 

additional sanctions in the amount of $1,301.30. The court 
8

admonished both plaintiffs that “[f]urther failure to provide code 

compliant responses and document production may result in 

further sanctions, including exclusion orders.”

One year later, plaintiffs still had not complied with any of 

the court’s discovery and sanctions orders.

2

In March 2022, Fire Insurance Exchange and Chern moved 

for terminating sanctions or, in the alternative, evidentiary 

sanctions precluding plaintiffs from introducing at trial evidence 

they failed to produce. They also sought monetary sanctions in 

the amount of fees and costs incurred to bring the motion.

On April 20, 2022, the court granted defendants’ motion in 

part by imposing evidentiary and monetary sanctions against 

plaintiffs. The court granted evidentiary sanctions precluding: 

(1) evidence that Fire Insurance Exchange or Chern breached 

their duties to plaintiffs, (2) evidence of tort damages, and (3) 

evidence regarding any work that had been done or needed to be 

completed on the property. The court noted that 

“[n]otwithstanding the court orders dated February 25, 2021, 

February 26, 2021, March 1, 2021, and March 4, 2021 requiring 

Plaintiffs to serve supplemental responses to discovery within 

30 days, no additional responses have been served, nor have any 

sanctions been paid.” The court declined to impose terminating 

2 Unrelated to this appeal, in March 2022, the trial court 

denied several motions to compel by plaintiffs, and it ordered 

plaintiffs to redraft certain of their discovery requests, granted in 

part a motion for protective order filed by defendants, and further 

ordered plaintiffs to pay $1,030.65 in sanctions for unsuccessfully

opposing the motion for protective order. (Code Civ. Proc.,

§§ 2019.030, subd. (c), 2017.020, subd. (b).). Plaintiffs did not

comply with this order either, but it was not a basis for 

defendants’ motion for terminating sanctions.
9

sanctions but stated that “it is appropriate to issue evidentiary 

sanctions at this time in order to produce Plaintiffs’ compliance 

with the discovery rules.” The court also determined “monetary 

sanctions are warranted for Plaintiff’s [sic] failure to comply with 

the Court’s October 28, 2020, February 25, 2021, February 26, 

2021, March 1, 2021, and March 4, 2021 orders,” and ordered 

plaintiffs to pay $2,279 for misuse of the discovery process. (See 

Code Civ. Proc., § 2023.030, subd. (a).)

In June 2022, plaintiffs filed several petitions for writ of 

mandate seeking to vacate the trial court’s orders of October 28, 

2020, February 25, 2021, February 26, 2021, March 1, 2021, 

March 4, 2021, March 8, 2022, and April 20, 2022, all of which 

this court denied. (Chang v. Superior Court (June 8, 2022, 

B320676, B320682, B320683, B320684, B320685, B320686, 

B320687.) 

2. Attempts to depose Chang and Lo, and further court 

orders and sanctions

In March 2022, Fire Insurance Exchange and Chern sought 

to depose plaintiffs in advance of trial but Chang and Lo did not

respond to requests for available dates. Defendants noticed 

plaintiffs’ depositions for April 6 and 7, offering that defendants 

would re-notice them for different dates if plaintiffs provided 

alternative deposition dates. Plaintiffs did not respond or appear 

for their noticed depositions.

Defendants moved to compel the depositions of Chang and 

Lo. Plaintiffs opposed, arguing that defendants “have exhausted 

all the legitimate questions” about the fire incident and 

“Plaintiffs will not oblige to Defendants’ manipulations designed 

to trap Plaintiff Lo” through discovery requests, depositions, and 

“wrongful sanctions by the court.” Defendants argued that
10

plaintiffs’ opposition provided no justification for not appearing at 

their noticed depositions or for not providing alternative

deposition dates.

On October 14, 2022, the trial court granted the motion to 

compel the depositions, ordering Chang to appear remotely for

deposition on October 27 and Lo on November 1; it further 

ordered each to pay monetary sanctions in the amount of 

$1,466.15.

Chang cancelled his court-ordered October 27 deposition by 

email on October 26 stating, “‘I have had a flare-up of my 

poststroke medical condition, causing severe numbness and 

impairing my already limited ability to speak,’” and asking to 

reschedule the deposition to November 7. Given the 

November 14 trial date, defendants’ counsel requested an earlier 

date; Chang suggested November 4, and defendants’ counsel renoticed Chang’s deposition for November 4.

On October 28, plaintiffs filed a motion to stay the trial 

court proceedings arguing their then-pending appeals in this 

court required an automatic stay. Plaintiffs filed an ex parte 

application to advance the hearing on their motion for stay, 

which the court denied.

On October 31, plaintiffs notified the defendants that Lo 

would not be appearing at his court-ordered deposition on 

November 1 because Lo would be appearing at the ex parte 

hearing on the application that plaintiffs had just filed.

On November 2, plaintiffs filed an amended motion for 

stay, and once again applied ex parte to advance the hearing on 

their amended motion for stay, which the court denied “for lack of 

good cause.”
11

On November 3, plaintiffs notified the defendants that 

Chang would not be appearing at his rescheduled deposition on 

November 4 because he had “‘not recovered well enough.’”

3. Plaintiffs’ failure to file pretrial documents

Defendants also attempted to confer with plaintiffs about 

whether plaintiffs would participate in filing joint pre-trial 

documents, as required by local rule, but received no response.3

Defendants thereafter filed their own pre-trial documents. 

Plaintiffs filed only an exhibit list.

On November 4, 2022, the trial court ordered that because 

plaintiffs had not filed a witness list or jury instructions before

the final status conference, they were precluded from calling any 

witnesses at trial, and the trial would be a court trial.

C. The Trial Court Grants Terminating Sanctions

Fire Insurance Exchange and Chern again moved for 

terminating sanctions against Chang and Lo. Plaintiffs opposed, 

arguing that their rescheduling of depositions was for “medical 

and conflicts reasons” and that they had offered to be deposed 

November 10 or 11; no orders specified they had to supply

pretrial documents such as jury instructions or witness lists by a 

3 Los Angeles Superior Court Local Rule 3.25(f)(1) provides

in relevant part: “At least five days prior to the final status 

conference, counsel must serve and file lists of pre-marked 

exhibits to be used at trial (Local Rules 3.151, 3.53, and 3.149), 

jury instruction requests, trial witness lists, and a proposed short 

statement of the case to be read to the jury panel explaining the 

case. Failure to exchange and file these items may result in not 

being able to call witnesses, present exhibits at trial, or have a 

jury trial.”
12

certain date before trial; and, they had complied with discovery 

orders “until discovery of fraud” allegedly perpetrated by

Farmers, Wools Peer, Fire Insurance Exchange, and Chern.

Defendants argued in their reply brief that plaintiffs provided no 

support for Chang’s claim of medical inability to attend the courtordered depositions; plaintiffs suggested the November 10 and 11 

dates only after the motion for terminating sanctions was filed;

and the court had issued an order specifying the requisite 

pretrial documents and identifying the applicable local rules.

On November 14, 2022, the first day of trial, the trial court 

heard argument on the terminating sanctions motion. Plaintiffs 

did not appear. The trial court granted the motion for 

terminating sanctions and struck the third amended complaint. 

The court ruled that “terminating sanctions are warranted here” 

due to “Chang and Lo’s failures to answer discovery, to appear for 

Court-ordered depositions, and to pay monetary sanctions as 

ordered.”

The court found that Chang’s and Lo’s failure to appear for 

their depositions was “willful” because: Lo set an ex parte 

hearing on the date of his court-ordered deposition; Chang failed

to appear at his rescheduled deposition on a date he suggested; 

and Chang failed to provide a medical note attesting to his 

medical inability to appear remotely for deposition. The court 

also noted that lesser sanctions—in the form of its prior discovery 

and sanctions orders—were “ineffective in mandating Chang and 

Lo’s compliance with discovery rules.” The court determined the 

current violations were “preceded by a history of abuse, and the 

Court agrees with Defendants that the evidence shows that less 

severe sanctions would not produce compliance with the 
13

discovery rules.” The court also ordered Chang and Lo to pay 

defendants $2,314.15 in monetary sanctions.

The court entered judgment against Chang and Lo and in 

favor of Fire Insurance Exchange and Chern on November 30, 

2022.

Plaintiffs timely appealed.

DISCUSSION

A. Governing Law and Standard of Review

To enforce discovery obligations and curtail misuse of the 

discovery process, Code of Civil Procedure section 2023.030 

provides that courts may impose monetary sanctions, issue 

sanctions, evidence sanctions, contempt sanctions, or terminating 

sanctions (including by dismissing the offending party’s action or 

rendering judgment by default against that party). (See Code 

Civ. Proc, § 2023.030, subds. (a)-(e); New Albertsons, Inc. v. 

Superior Court (2008) 168 Cal.App.4th 1403, 1422

[“Section 2023.030 describes the types of sanctions that a court 

may impose, including monetary, issue, evidence, terminating, 

and contempt sanctions.”].) “If a monetary sanction is authorized 

by any provision of this title, the court shall impose that sanction 

unless it finds that the one subject to the sanction acted with 

substantial justification or that other circumstances make the 

imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, 

subd. (a); accord, Manlin v. Milner (2022) 82 Cal.App.5th 1004, 

1023.) Courts may issue monetary sanctions for misuse of the 

discovery process against parties, counsel, or both, in the amount 

of “the reasonable expenses, including attorney’s fees, incurred by 

anyone as a result of that conduct.” (Code Civ. Proc., § 2023.30, 
14

subd. (a); see City of Los Angeles v. PricewaterhouseCoopers, LLC

(2022) 84 Cal.App.5th 466, 502.) “An issue sanction is an order 

that designated facts are deemed established in favor of the party 

adversely affected by the misuse of the discovery process, or an 

order prohibiting the sanctioned party from supporting or 

opposing designated claims or defenses. ([Code Civ. Proc, 

§ 2023.030], subd. (b).) An evidence sanction is an order 

prohibiting designated matters from being introduced in 

evidence. (Id., subd. (c).)” (New Albertsons, Inc., at p. 1422.) 

Misuse of the discovery process includes, among other 

things, failing to respond or submit to discovery, disobeying a 

court order to provide discovery, and making an unmeritorious 

objection or evasive response to discovery. (See Code Civ. Proc., 

§ 2023.010, subds. (d)-(g); Los Defensores, Inc. v. Gomez (2014) 

223 Cal.App.4th 377, 390 (Los Defensores).) “Notwithstanding 

the outcome of the particular discovery motion,” monetary 

sanctions shall also be imposed for failure to confer as required 

on a discovery motion, in the amount of the “reasonable expenses, 

including attorney’s fees, incurred by anyone as a result of that 

conduct.” (Code Civ. Proc., § 2023.020; see Safechuck v. MJJ 

Productions, Inc. (2023) 94 Cal.App.5th 675, 700, fn. 4.) “The 

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.”’” (Doppes v. Bentley Motors 

Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes).)

“The discovery statutes evince an incremental approach to 

discovery sanctions, starting with monetary sanctions and ending 

with the ultimate sanction of termination.” (Doppes, supra, 

174 Cal.App.4th at p. 992.) “If a lesser sanction fails to curb 
15

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.” (Ibid.) 

“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.’” (Los Defensores, 

supra, 223 Cal.App.4th at p. 390.)

“We review a trial court’s decision to impose terminating 

sanctions for abuse of discretion, drawing all reasonable 

inferences in support of the court’s ruling.” (Karton v. Ari Design 

& Construction, Inc. (2021) 61 Cal.App.5th 734, 749.) “‘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 

imposing the ultimate sanction.’” (Parker v. Wolters Kluwer 

United States, Inc. (2007) 149 Cal.App.4th 285, 297 (Parker).) 

“The appellant bears the burden on appeal of 

demonstrating that the trial court abused its discretion in 

imposing a discovery sanction.” (Rutledge v. Hewlett-Packard Co.

(2015) 238 Cal.App.4th 1164, 1191.) Likewise, on appeal “[t]he 

burden of proving ‘substantial justification’ for failing to comply 

with a discovery order” is on the losing party. (Doe v. United 

States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435; 
16

accord, Padron v. Watchtower Bible & Tract Society of New York, 

Inc. (2017) 16 Cal.App.5th 1246, 1269 (Padron).)

B. The Trial Court Did Not Abuse Its Discretion by Imposing 

Terminating Sanctions

Although it is plaintiffs’ burden to demonstrate the trial 

court abused its discretion in imposing terminating sanctions (see 

Rutledge v. Hewlett-Packard Co., supra, 238 Cal.App.4th at 

p. 1191), plaintiffs’ opening brief makes virtually no mention of

the parties’ discovery history; does not address the court’s 

numerous discovery and deposition orders; and provides no 

discernible argument why the trial court abused its discretion in 

imposing terminating sanctions. Plaintiffs also do not challenge 

the underlying discovery orders that led to terminating sanctions. 

Instead, plaintiffs reargue the merits of this court’s prior two 

appeals.

We conclude the trial court did not abuse its discretion in 

issuing terminating sanctions because the record reflects 

plaintiffs’ repeated willful failure to comply with discovery 

requests and several court orders.

4 As detailed above, the record

demonstrates that despite the trial court’s orders: plaintiffs

failed to provide responsive or timely written discovery; failed to 

appear at their noticed depositions; violated the trial court’s

orders to provide verified responses, supplemental responses, 

responsive documents, and other written discovery; violated the 

4 Although the trial court based its terminating sanctions 

order in part on plaintiffs’ failure to pay monetary sanctions and 

to file certain pretrial documents, we do not affirm the trial 

court’s order on the basis of plaintiffs’ failure to pay monetary 

sanctions or their failure to file pretrial documents. 
17

court’s orders to submit to deposition; and failed to confer with 

opposing counsel regarding discovery requests and deposition 

scheduling. (See Los Defensores, supra, 223 Cal.App.4th at 

p. 390; Parker, supra, 149 Cal.App.4th at p. 297.)

The trial court’s orders were appropriately tailored, and it

imposed orders of increasing severity designed to obtain 

plaintiffs’ compliance. “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.” (Doppes, supra, 

174 Cal.App.4th at p. 992.) When plaintiffs did not comply with 

orders directing compliance with discovery obligations, the trial 

imposed lesser sanctions in the form of monetary sanctions and 

then turned to the greater sanction of three evidentiary 

sanctions. These orders of increasing severity, however, did not 

appear to change plaintiffs’ unwillingness to cooperate in the 

discovery process. Indeed, only the threat of terminating 

sanctions appeared to prompt any response from plaintiffs. 

Here, “the record is replete with evidence of [plaintiffs’]

failures to answer discovery requests . . . . Time and again, [they]

refused to respond despite the issuance of court orders and 

monetary sanctions.” (Mileikowsky v. Tenet Healthsystem (2005) 

128 Cal.App.4th 262, 280 (Mileikowsky).) When the trial court 

was considering terminating sanctions, plaintiffs had not 

complied with the court’s prior discovery orders and lesser 

sanctions had been ineffective to induce plaintiffs to comply with 

their discovery obligations. Further, the trial court found this 

refusal was willful, a finding plaintiffs do not challenge. The 

record before us supports the trial court’s finding that plaintiffs’ 

noncompliance was willful. Among other things, plaintiffs 
18

repeatedly failed to provide answers to several discovery requests 

despite court orders directing them to respond, Chang 

rescheduled his court-ordered deposition and then failed to 

appear, and Lo did not appear for a deposition because it 

conflicted with a hearing on an ex parte application he set. This 

refusal to respond to discovery, to follow discovery orders, or to 

appear for depositions over three years of litigation amply 

supports the trial court’s imposition of terminating sanctions. 

“[T]he sanctioned party’s history as a repeat offender is not only 

relevant but also significant, in deciding whether to impose 

terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. LcL 

Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “The 

court was not required to allow this pattern of abuse to continue 

ad infinitum.” (Mileikowsky, supra, 128 Cal.App.4th at p. 280.) 

For the first time on reply, plaintiffs argue that they 

“complied with the court order[s], providing all responses without 

objection,” until January 2021 when they discovered the alleged 

fraudulent conspiracy among the defendants that became the 

central focus of their complaint. Thereafter, plaintiffs objected to 

discovery requests they believed were designed to trap them into 

agreement with fraudulent factual assertions by defendants. 

Plaintiffs further argue that “[a]s a matter of fact on the record, it 

is Respondents/Defendants that have consistently refused to 

respond to all of discovery requests by Appellants/Plaintiffs.”

Plaintiffs have forfeited these arguments because they did 

not support them with record citations or legal authority, let 

alone explain how their assertions demonstrate the trial court 

abused its discretion in imposing terminating sanctions. (See 

United Grand Corp. v. Malibu Hillbillies, LLC (2019) 

36 Cal.App.5th 142, 158 [“‘We will not ordinarily consider issues 
19

raised for the first time in a reply brief. . . . Fairness militates 

against allowing an appellant to raise an issue for the first time 

in a reply brief because consideration of the issue deprives the 

respondent of the opportunity to counter the appellant by raising 

opposing arguments about the new issue.’”]; Los Angeles Unified 

School District v. Torres Construction Corp. (2020) 

57 Cal.App.5th 480, 497 (Torres) [“‘“to demonstrate error, an 

appellant must supply the reviewing court with some cogent 

argument supported by legal analysis and citation to the 

record”’”; “failure to supply record citations or a fully developed 

argument” forfeits claim of error]; Hernandez v. First Student, 

Inc. (2019) 37 Cal.App.5th 270, 277 [courts may disregard 

conclusory arguments that are not supported by pertinent legal 

authority or fail to disclose the reasoning by which the appellant 

reached the conclusions he wants court to adopt].)

Plaintiffs present no separate argument regarding the 

terminating sanctions order imposing $2,314.15 in monetary 

sanctions beyond attacking the order itself. “Because we do not 

agree the underlying order was invalid, we affirm the monetary 

sanctions assessed.” (Mileikowsky, supra,128 Cal.App.4th at 

p. 280.)

C. A Stay of Trial Court Proceedings Was Not Warranted 

During the Pendency of the Two Prior Appeals Involving 

Different Defendants

Plaintiffs also contend the trial court erred in not 

automatically staying all trial court proceedings under Code of 

Civil Procedure section 916 while their appeals involving 

Farmers and Woolls Peers were pending. Plaintiffs argue that 

upon the perfecting of these appeals, the trial court lost subject 
20

matter jurisdiction, all proceedings should have been stayed, and 

subsequent trial court rulings—including the terminating 

sanctions order—were void.

Defects in subject matter jurisdiction “‘“may be raised at 

any point in a proceeding, including for the first time on appeal”’ 

[citation], and may be raised through any available procedural 

vehicle.” (Corrales v. California Gambling Control Com. (2023) 

93 Cal.App.5th 286, 300.) We review de novo whether a ruling is 

void for lack of subject matter jurisdiction. (See LAOSD Asbestos 

Cases (2018) 28 Cal.App.5th 862, 871.)

Generally, “‘the perfecting of an appeal stays proceedings in 

the trial court upon the judgment or order appealed from or upon 

the matters embraced therein or affected thereby, including 

enforcement of the judgment or order, but the trial court may 

proceed upon any other matter embraced in the action and not 

affected by the judgment or order.’” (Varian Medical Systems, 

Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian); Code Civ. 

Proc, § 916, subd. (a).) A stay pursuant to Code of Civil 

Procedure section 916 divests the trial court of subject matter 

jurisdiction over the affected matters. (See Varian, at p. 198.)

But “the automatic stay does not suspend trial court proceedings 

on the remaining components of the litigation, for example, 

claims against other parties[,] . . . not resolved by the judgment 

or order under appeal.” (Hedwall v. PCMV, LLC (2018) 

22 Cal.App.5th 564, 580, fn. 11 (Hedwall).)

To determine if a proceeding is “embraced in” or “affected 

by” an appeal, we “consider the appeal and its possible outcomes 

in relation to the proceeding and its possible results.” (Varian, 

supra, 35 Cal.4th at p. 189; see Elsea v. Saberi (1992) 

4 Cal.App.4th 625, 629 [“[W]hether a matter is ‘embraced’ in or 
21

‘affected’ by a judgment within the meaning of section 916 

depends upon whether postjudgment trial court proceedings on 

the particular matter would have any impact on the 

‘effectiveness’ of the appeal. If so, the proceedings are stayed; if 

not, the proceedings are permitted.”].) The purpose of an 

automatic stay is to preserve the appellate court’s jurisdiction 

and “‘prevent[] the trial court from rendering an appeal futile by 

altering the appealed judgment or order by conducting other 

proceedings that may affect it.’” (Varian, at p. 189; accord, 

Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 51.)

The prior pending appeals dealt only with Woolls Peer and 

Farmers. By contrast, the proceedings before the trial court here 

dealt with the remaining causes of action against Fire Insurance 

Exchange and Chern, constituting “claims against other 

parties[,] . . . not resolved by the judgment or order under 

appeal.” (Hedwall, supra, 22 Cal.App.5th at p. 580, fn. 11.) Trial 

court proceedings involving Fire Insurance Exchange and Chern 

would not have any impact on the appeals involving Woolls Peer 

and Farmers and thus did not “embrace” the issues presented in 

those appeals or necessitate a stay. Accordingly, the trial court 

had jurisdiction to issue the discovery orders and the terminating 

sanctions.5

5 We deny plaintiffs’ “request that any of the justices or 

judges that have adjudicated on the other two appeals (B317518 

and B321411) be recused from this appeal and from any 

discussion with the justices and judges to be assigned to this 

appeal,” in order “[t]o avoid . . . any potential, predisposition or 

bias that is unfair and prejudicial to this appeal.” A party’s 

“subjective, unilateral perception of bias” is not a recognized

ground for disqualification. (Haas v. County of San Bernardino
22

DISPOSITION

The judgment is affirmed, and the order granting 

terminating sanctions is also affirmed. Fire Insurance Exchange 

and Chern are entitled to recover their costs on appeal.

MARTINEZ, P. J.

We concur:

SEGAL, J.

FEUER, J.

(2002) 27 Cal.4th 1017, 1034.) And to the extent plaintiffs’ 

request is based on rulings against them, it has long been the law 

that “rulings against a litigant . . . do not [support] a charge of 

bias and prejudice.” (Dietrich v. Litton Industries, Inc. (1970) 

12 Cal.App.3d 704, 719.)