Filed 10/1/20 Tawansy v. RIF Investments-3, LLC CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KHALED TAWANSY,

Plaintiff, Cross-defendant

and Appellant,

v.

RIF INVESTMENTS-3, LLC et 

al.,

Defendants, Crosscomplainants and Respondents.

 B295427

 (Los Angeles County

 Super. Ct. No. BC605613)

APPEAL from an order of the Superior Court of Los 

Angeles County, Holly J. Fujie, Judge. Affirmed in part, and 

construed as a writ petition and denied in part.

Papazian Law, and Armen F. Papazian for Plaintiff, Crossdefendant and Appellant. 

Law Offices of Saul Reiss, Saul Reiss, and Fay Pugh for 

Defendants, Cross-complainants and Respondents. 

* * * * * *
2

A trial court dismissed a plaintiff’s complaint, struck his 

answer to a cross-complaint, and entered a default on the crosscomplaint after he (1) ignored a court order compelling discovery, 

(2) prepared none of the mandatory pretrial filings, and (3) did 

not attend the final status conference a week before trial. The 

plaintiff was representing himself at the time of these events, as 

his prior counsel had been relieved several months earlier. The 

trial court subsequently denied the plaintiff’s motion to set aside 

its order dismissing the complaint, striking the answer to the 

cross-complaint and entering a default on the cross-complaint. 

Plaintiff appeals the denial of his motion to set aside. We 

conclude that the trial court did not abuse its discretion in 

declining to set aside its order. We further conclude that we do 

not have jurisdiction to entertain the portion of plaintiff’s appeal, 

as to one of the opposing parties, challenging the court’s refusal 

to set aside the order striking his answer to, and entering a 

default on, the cross-complaint because a default judgment on the 

cross-complaint has yet to be entered. However, we elect to 

exercise our discretion to construe any non-appealable portions of 

the orders as a petition for a writ because the analysis underlying 

both portions of plaintiff’s appeal is identical. Accordingly, we 

affirm in part and deny the writ petition in part.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

This case involves a mixed-used real estate development in 

what was once the historic Raymond Theater in Old Town 

Pasadena, California. The development is called the Raymond 

Renaissance.
3

In 2012, Khaled Tawansy (Tawansy), who is a medical 

doctor, purchased three adjacent units within the development in 

which to operate a surgery center. 

Anxious to expand his center into additional adjacent units, 

Tawansy entered into two further agreements. First, in early 

2013, Tawansy—through a company called the Raymond 

Renaissance Theater, LLC—entered into a five-year lease to rent

units adjacent to his center within the development from RIF 

Investments-3, LLC. Tawansy personally guaranteed the lease. 

Second, and also in early 2013, Tawansy allegedly entered into 

an oral agreement to purchase those same units from RIF 

Investments-3, LLC. RIF Investments-3’s two principals are Ron 

Farhadi (Farhadi) and Joseph Ghadir (Ghadir). 

In August 2015, RIF Investments-3 brought an unlawful 

detainer action against Tawansy’s company for nonpayment of 

rent. 

II. Procedural Background

A. Operative complaints and answers

On December 31, 2015, Tawansy sued RIF Investments-3, 

Farhadi and Ghadir (collectively, RIF) on the grounds that RIF 

did not honor its oral agreement to sell him the units adjacent to 

his surgery center. In the operative First Amended Complaint, 

Tawansy sued RIF for (1) specific performance (to sell him those 

units at the agreed-upon price of $2.5 million), (2) fraud (for 

falsely promising to sell the units in order to get him to rent

those units), and (3) rescission of his personal guaranty of the 

lease. 

On February 4, 2016, RIF Investments-3 filed a crosscomplaint against Tawansy for breach of his personal guaranty of 
4

the lease after Tawansy’s company declared bankruptcy to halt 

the unlawful detainer action. 

RIF filed an answer to Tawansy’s operative complaint, and 

Tawansy filed an answer to RIF Investments-3’s cross-complaint.

B. Litigation and termination of litigation

1. Tawansy’s counsel is relieved

In February 2018, the lawyer who had been representing 

Tawansy since the outset of this litigation filed a motion to be 

relieved as counsel after Tawansy refused to sign a substitution 

of attorney. Among other things, the lawyer’s motion and the 

accompanying proposed order contained two “Notice[s] to Client” 

regarding what might happen if the motion to be relieved were

granted. The first notice stated, in boldface type, that the 

“[f]ailure to retain an attorney may lead to an order striking the 

pleading or to the entry of a default judgment.” The second 

notice stated, in boldface type, that “[i]f you do not have a new 

attorney to represent you in this action or proceeding, . . . you will 

be representing yourself. It will be your responsibility to comply 

with all court rules and applicable laws. If you fail to do so, or 

fail to appear at hearings, action may be taken against you. You 

may lose your case.” 

Despite being served with the lawyer’s motion to be 

relieved, Tawansy did not appear at the February 28, 2018 

hearing on the lawyer’s motion. 

The trial court granted the motion to be relieved, and 

continued the dates for the final status conference and for trial, 

respectively, from dates in April 2018 to July 23, 2018, and July 

30, 2018.

The lawyer served Tawansy with the trial court’s order, 

albeit with some difficulty: The lawyer attempted personal 
5

service at one of Tawansy’s medical offices, but Tawansy’s 

receptionist refused to accept service and even refused to give her 

name. The process server left the order with the receptionist and 

also mailed the order to Tawansy. 

2. Tawansy engages in discovery misconduct

On April 2, 2018, RIF propounded a Demand for Production 

and Inspection of Documents, Set Number Two, upon Tawansy in 

its capacity as the defendant in Tawansy’s lawsuit and, as to RIF 

Investments-3, the cross-plaintiff in the cross-complaint. The 

demand specifically sought documents related to Tawansy’s 

complaint. 

When Tawansy did not respond to this demand, RIF in late 

May 2018 filed a motion to compel a response. Tawansy did not 

oppose the motion. 

On June 21, 2018, the trial court granted the motion to 

compel and also ordered Tawansy to pay $1,285 in sanctions. 

Both the discovery responses and the sanctions were due within 

20 days. 

Tawansy was served with the trial court’s order, but did not 

serve the court-ordered responses or pay the sanctions by the 

court’s deadline. 

3. Tawansy does not file trial documents, in 

violation of Los Angeles Superior Court Local Rule 3.25

Although Los Angeles Superior Court Local Rule 3.25(f)(1) 

requires that litigants file their exhibit lists, jury instruction 

requests, trial witness lists, and proposed statement of the case 

“[a]t least five days prior to the final status conference” (Super. 

Ct. L.A. County, Local Rules, rule 3.25(f)(1)), Tawansy never filed 

these documents. 
6

4. Tawansy does not appear at final status 

conference, in violation of Los Angeles Superior Court Local Rule 

3.25

Although Los Angeles Superior Court Local Rule 3.25(f) 

makes attendance by a party’s lawyer or, if the party is selfrepresented, the party himself, at the final status conference 

mandatory (Super. Ct. L.A. County, Local Rules, rule 3.25(f)), 

neither Tawansy nor a lawyer representing Tawansy appeared at 

the July 23, 2018 final status conference. Instead, Tawansy sent 

a non-lawyer. 

The trial court issued two orders to show cause—namely, 

(1) an “Order to Show Cause re Dismissal for Plaintiff’s failure to 

appear” and (2) an “Order to Show Cause re Striking Answer to 

Cross-Complaint/Enter Default.” Both were set for July 30, 2018. 

Both orders to show cause were served on Tawansy. 

5. Trial court dismisses Tawansy’s complaint and 

strikes his answer to the cross-complaint

Tawansy appeared in court on July 30, 2018. The court 

“hear[d] oral argument,” although we do not know the content of 

that argument because it was unreported. Whatever was said 

did not persuade the trial court, and the court dismissed 

Tawansy’s First Amended Complaint, struck his answer to the 

cross-complaint and entered a default on the cross-complaint. 

The court set a default prove-up hearing for September 2018. 

C. Tawansy’s motion to set aside orders of dismissal 

and striking answer to cross-complaint

Seven weeks later, on September 17, 2018, Tawansy 

retained a new lawyer. 

Ten days later, Tawansy filed a motion to set aside the trial 

court’s July 30, 2018 orders dismissing his operative complaint 
7

and striking his answer to the cross-complaint.1 Based entirely 

on Code of Civil Procedure section 473, subdivision (b),2 Tawansy 

sought relief on the grounds of mistake and excusable neglect. In 

support of the motion, Tawansy submitted a declaration in which 

he asserted that (1) he labored under a mistake because the only

notice he received about the final status conference was from his 

prior lawyer and that notice “did not state it was mandatory for 

[him] to appear,” and (2) his absence from the final status 

conference was excusable because he has had a bone infection for

some undisclosed period of time and because, on the morning of 

the final status conference, he had a “diabetic episode and was in 

no condition to attend.” Tawansy did not include any 

documentation confirming his medical condition(s). Tawansy was 

also not clear on whether his medical condition(s) precluded him 

from attending, or whether they merely factored in to his decision 

not to attend: At one point, he stated that he “physically could 

not appear at the hearing”; elsewhere, however, he stated that “I 

never would have missed a hearing I knew to be mandatory” and 

alluded to the “potential consequences of [his] failure to force 

[him]self to appear.” 

After further briefing and a hearing, the trial court issued 

an 11-page order denying Tawansy’s motion. The court found 

Tawansy’s motion for relief to be “brought . . . within a reasonable 

1 Tawansy had filed an ex parte motion to set aside the 

court’s orders on September 19, 2018, but the trial court denied 

the motion without prejudice to filing a noticed motion.

2 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
8

time” despite his “unexplained 1.5 month delay in securing new 

counsel.” 

The court denied relief under section 473, subdivision (b) 

for two reasons. First, the court observed that Tawansy’s excuses 

for not attending the final status conference were somewhat 

beside the point because the court’s order dismissing Tawansy’s 

operative complaint and striking his answer to RIF Investments3’s cross-complaint was “based on” its “distinct” “determination to 

impose terminating sanctions” and Tawansy’s “fail[ure] to 

persuade the Court” not to enter that order on July 30, 2018—not 

merely because of Tawansy’s “absence” from the final status 

conference. The court elsewhere in its order cited sections 575.2 

and 2023.030 as its statutory basis for imposing terminating 

sanctions, and at the hearing commented that termination was 

warranted due to Tawansy’s “total failure to do what was 

necessary to bring this case to trial.” Second, the court ruled 

that, even if the court’s order had been based solely upon 

Tawansy’s failure to appear at the final status conference, it was 

unpersuaded by either of the excuses Tawansy proffered for that 

failure to appear. The court rejected Tawansy’s assertion that he 

did not know his attendance at the final status conference was 

mandatory because the mandatory nature of attendance was set 

forth in the Los Angeles Superior Court’s local rules as well as in 

the court orders served upon Tawansy, and because ignorance of 

the law is no excuse. The court rejected Tawansy’s assertion that 

his illness prevented him from attending because his declaration 

“equivocates on his ability to attend the status conference,” and 

the court chose to credit those portions suggesting that he would 

have “forced” himself to attend had he known attendance was 

mandatory. 
9

D. Notice of appeal, but without a default judgment 

entered on RIF Investments-3’s cross-complaint

On January 18, 2019, Tawansy filed a notice of appeal as to 

the trial court’s “Order Dismissing [Plaintiff’s] Complaint and 

Order Denying CCP 473 Motion to Vacate Dismissal.” 

As of the date of this opinion, the trial court had yet to 

enter a default judgment on RIF Investments-3’s cross-complaint 

because the court had, by that time, rejected two default prove-up 

submissions by RIF Investments-3. 

DISCUSSION

Tawansy argues that the trial court erred in denying his 

motion to set aside its order (1) dismissing his First Amended 

Complaint and (2) striking his answer to RIF Investments-3’s 

cross-complaint and entering a default. We ostensibly have 

jurisdiction over the first portion of Tawansy’s appeal because an 

order denying relief under section 473 is appealable as a postjudgment order if that order follows entry of judgment (e.g., 

Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 

Cal.App.4th 1384, 1394), and an order dismissing a plaintiff’s 

complaint is deemed to be a judgment if signed by the court and 

filed. (§ 581d; In re Sheila B. (1993) 19 Cal.App.4th 187, 197.) 

We do not have jurisdiction over the second portion of Tawansy’s 

appeal because the trial court has yet to enter a default judgment 

in RIF Investments-3’s cross-action. Until there is a default

judgment, orders striking an answer, orders entering a default 

(as opposed to a default judgment), and orders denying relief 

under section 473 are not appealable. (Katzenstein v. Chabad v. 

Poway (2015) 237 Cal.App.4th 759, 766 [“an order striking an 

answer . . . is not appealable” prior to entry of judgment]; 

Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1146 [order 

entering default not appealable]; Rappleyea v. Campbell (1994) 8 
10

Cal.4th 975, 981 (Rappleyea) (“[an] order denying [a] motion to 

vacate [a] default is not independently appealable” except as part 

of “an appeal from the judgment”].)3

Although at first blush this would seem to indicate that we 

have jurisdiction over the entire portion of the appeal dealing 

with the dismissal of Tawansy’s action, the “one final judgment” 

rule dictates a different result as to Tawansy and RIF 

Investments-3, between whom RIF Investments-3’s cross-action 

3 Because neither party briefed this issue, we requested 

supplemental briefing from the parties on the question of 

whether we had jurisdiction to entertain Tawansy’s appeal of the 

trial court’s order denying relief from the entry of default on the 

cross-complaint. In his supplemental letter, Tawansy argued 

that (1) RIF waived this issue by not raising it, and (2) we have 

jurisdiction because the trial court’s entry of default was 

discretionary (that is, based on Tawansy’s noncompliance with 

the local rules and discovery rules) rather than ministerial, and 

that the entry of default based on a discretionary decision is 

appealable. We reject both arguments. As to the first, we have 

an independent duty to examine the existence of our own

jurisdiction, and neither that duty nor the statutes delimiting the 

scope of our jurisdiction can be waived by a party. (Olson v. Cory

(1983) 35 Cal.3d 390, 398.) As to the second, none of the cases 

Tawansy cites supports his contention that a subset of defaults 

are immediately appealable even without a default judgment. 

(Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 

Cal.App.5th 166, 169 [addressing appeal of a dismissal, not a 

default]; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 388-

389 [same]; Peltier v. McCloud River R.R. Co. (1995) 34 

Cal.App.4th 1809, 1813 [same]; Ryan v. Rosenfeld (2017) 3 

Cal.5th 124, 127 [addressing appeal of a motion to vacate a 

judgment, not a default].) As between precedent that is not on 

point and a California Supreme Court case directly on point (that 

is, Rappleyea), we choose to follow the precedent on point.
11

is still pending and thus, as to whom, no part of this appeal is 

final. Of course, the “one final judgment” rule does not bar the 

portion of the appeal addressing the dismissal of Tawansy’s 

action as to Farhadi and Ghadir because an order denying a 

motion to vacate a dismissal is appealable and those two 

individuals are not parties to RIF Investments-3’s cross-action. 

(American National Bank v. Stanfill (1988) 205 Cal.App.3d 1089, 

1095; Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 118.) However, 

because the basis for both portions of Tawansy’s appeal are 

identical, we will construe any non-appealable portions of the 

appeal as a petition for a writ of mandate and consider that writ 

on its merits. (Olson v. Cory (1983) 35 Cal.2d 390, 400.)

Because a party’s failure to persuade a trial court not to 

enter sanctions is not itself a basis to impose sanctions, we 

construe the trial court’s order dismissing Tawansy’s operative 

complaint, striking his answer to RIF Investments-3’s crosscomplaint, and entering a default on that cross-complaint as 

being based on the two statutory provisions the court cited and 

the related factual findings it made—that is, (1) for Tawansy’s 

violation of the local court rules in not making the required 

pretrial filings and in not appearing at the final status 

conference, in violation of section 575.2, and (2) for Tawansy’s 

violation of the discovery rules in not obeying the court’s June 

2018 motion to compel. (See generally Jameson v. Desta (2018) 5 

Cal.5th 594, 608-609 (Jameson) [requiring appellate courts to 

“ordinarily presume” trial court orders “to be correct”].)

Tawansy argues that the court’s order is invalid for what 

boil down to three reasons. First, the court was wrong to deny 

him relief under section 473, subdivision (b). Second, the court 

had no basis to impose sanctions under sections 575.2 or 
12

2023.030 in the first place. Third, the court did not have the 

authority to enter its order because the only sanction available 

was to hold the trial in his absence. 

I. Denial of Relief under Section 473, Subdivision (b)

Section 473, subdivision (b) grants a trial court the 

discretionary authority to set aside a prior order—including an 

order dismissing a complaint or striking an answer and entering 

default—if the party moving to set aside that order proves, as a 

threshold matter, that (1) the order was the product of the party’s 

“mistake, inadvertence, surprise or excusable neglect,” and (2) 

the party’s application for relief was filed “within a reasonable 

time, in no case exceeding six months, after the . . . order [to be 

set aside] . . . was” entered. (§ 473, subd. (b); Hopkins & Carley v. 

Gens (2011) 200 Cal.App.4th 1401, 1410 (Hopkins) [burden of 

proof lies with moving party]; Gee v. Greyhound Lines, Inc. (2016) 

6 Cal.App.5th 477, 492 [order dismissing complaint may be set 

aside under section 473, subdivision (b)]; Matera v. McLeod

(2006) 145 Cal.App.4th 44, 62, 68 [order striking answer and 

entering default may be set aside under section 473, subdivision 

(b)].)4 Carrying this threshold burden is a “‘“daunting task.”’” 

4 A trial court also has an inherent, equitable power to set 

aside its prior orders for “extrinsic fraud” or “extrinsic mistake.” 

(Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470-472.) That power is 

not at issue in this case because (1) Tawansy did not seek relief 

on this basis before the trial court and does not invoke it on 

appeal, and (2) exercise of that power requires a showing that the 

moving party “has a meritorious case” (Lee v. An (2008) 168 

Cal.App.4th 558, 566 (Lee)), and, as discussed below, Tawansy 

cannot make this showing because his failure to file the required

pretrial documents precluded him from introducing any evidence 

in his action or RIF Investments-3’s cross-action. 
13

(Grappo v. McMills (2017) 11 Cal.App.5th 996, 1006.) Once it is 

carried, the trial court has “broad” “discretion” whether to 

exercise its authority to set aside a prior order. (Minick v. City of 

Petaluma (2016) 3 Cal.App.5th 15, 24.) Because “[t]he general 

underlying purpose of section 473(b) is to promote the 

determination of actions on their merits” (Evan Zohar 

Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC

(2015) 61 Cal.4th 830, 839 (Evan Zohar)), however, the moving 

party who “moves promptly” in seeking relief under this section 

need only produce “very slight evidence . . . to justify” the exercise 

of the court’s discretion (Miller v. City of Hermosa Beach (1993) 

13 Cal.App.4th 1118, 1136; Shamblin v. Brattain (1988) 44 

Cal.3d 474, 478 (Shamblin)) and “any doubts in applying section 

473 must be resolved in favor of the [moving] party” (Rogalski v. 

Nabers Cadillac (1992) 11 Cal.App.4th 816, 819-820). We review 

a trial court’s denial of a section 473, subdivision (b) motion for 

an abuse of discretion, and review any subsidiary factual findings 

for substantial evidence. (Zamora v. Clayborn Contracting 

Group, Inc. (2002) 28 Cal.4th 249, 257-258 (Zamora); Shamblin, 

at p. 479.)

In this case, the trial court did not abuse its discretion in 

concluding that Tawansy had not met his threshold burden of 

establishing that the court’s order was due to a “mistake” or 

“excusable neglect” by Tawansy. 

As pertinent to section 473, subdivision (b), a “mistake” 

includes a “mistake of fact” (that is, “when a person understands 

the facts to be other than they are”) or a “mistake of law” (that is, 

“when a person knows the facts as they really are but has a 

mistaken belief as to the legal consequences of those facts”). 

(Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.) Here, 
14

Tawansy’s claim of mistake before the trial court rested entirely 

on his assertion that the sole notice he received about attending 

the final status conference was a written letter from his lawyer 

and that the letter did not explicitly indicate that his presence at 

the final status conference was mandatory. The trial court did 

not err in concluding that this showing did not qualify as a 

mistake. To begin, Tawansy’s showing speaks only to his failure 

to appear at the final status conference, and not to his failure to 

file any pretrial documents or his failure to comply with the 

motion to compel. Further, his showing does not establish 

“mistake” even as to his failure to appear. As the trial court 

noted, the record contains evidence that Tawansy was actually, 

subjectively aware of the potential consequences of not attending 

the final status conference because Tawansy had been served 

with his prior counsel’s motion to be relieved as counsel and the 

accompanying proposed order, which explicitly warned Tawansy 

that the court could “strik[e]” “pleading[s],” enter a default 

judgment, or cause him to “lose [his] case” if he did not “retain an 

attorney,” “comply with all court rules and applicable laws” or 

“appear at hearings.” The court acted well within its discretion 

in giving greater weight to service of these notices over 

Tawansy’s self-serving denial of knowledge. As the trial court 

also noted, Tawansy—as a self-represented litigant—was also 

required to educate himself about the “court rules” and his 

ensuing ignorance of the law was, as the saying goes, no excuse. 

(Hopkins, supra, 200 Cal.App.4th at p. 1413 [a self-represented 

litigant’s “‘alleged ignorance of legal matters . . . can hardly 

constitute “mistake, inadvertence, surprise or excusable 

neglect”’”]; People v. Meneses (2008) 165 Cal.App.4th 1648, 1661 

[“ignorance of the law is no excuse”].) 
15

As pertinent to section 473, subdivision (b), “excusable”

“neglect” means an error that “a reasonably prudent person 

under similar circumstances might have made.” (Austin v. Los 

Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929; 

Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 

270, 276.) Here, Tawansy’s claim of excusable neglect rested on 

his assertion that he did not attend the final status conference 

because he had had a “bone infection” for some unspecified period 

of time and because he had a “diabetic episode” the morning of 

the final status conference. Again, to begin, Tawansy’s showing 

speaks only to his failure to appear at the final status conference, 

and not to his failure to file any pretrial documents or his failure 

to comply with the motion to compel. Further, his showing does 

not establish “excusable neglect” even as to his failure to appear 

because the trial court acted within its discretion in concluding 

that Tawansy was equivocal on whether he could have attended 

the final status conference notwithstanding his medical 

condition: He stated that his diabetic episode meant he 

“physically could not appear at the hearing,” while at the same 

time stated that he “never would have missed” a “mandatory” 

hearing and, in decrying his ignorance of the “potential 

consequences of [his] failure to force [him]self to appear,” 

suggested that he might have forced himself to come to court 

despite his medical condition had he known the final status 

conference was mandatory. Tawansy’s equivocation, coupled 

with the lack of a doctor’s note and Tawansy’s ability to appear in 

court the very next week, constitutes substantial evidence 

supporting the trial court’s finding that Tawansy had not shown 

excusable neglect.
16

Tawansy offers three further arguments as to why the trial 

court erred in denying him relief under section 473, subdivision 

(b).

First, he argues that the trial court erred in its analysis of 

whether he established a “mistake” or “excusable neglect.” In 

this argument, however, he effectively urges us to give greater 

credit and weight to his declaration (or the portions of his 

declaration he prefers) over the contrary evidence in the record. 

This is beyond what we may do. (Johnson v. Pratt & Whitney 

Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623 [“we do not 

reweigh evidence or reassess the credibility of witnesses”].) 

Tawansy also argues that his ignorance of the law cannot be 

counted against him because he had been a self-represented 

litigant “for a short few months.” Tawansy offers no authority for 

his proposition that a litigant who has the financial wherewithal 

to hire counsel (as Tawansy did for years prior to his counsel’s 

excusal and as Tawansy did to file his section 473 motion) may 

choose to proceed without counsel and then claim ignorance of 

the law. That is undoubtedly because the law is to the contrary. 

(Hopkins, supra, 200 Cal.App.4th at p. 1413 [“The law does not 

entitle a party to proceed experimentally without counsel and 

then turn back the clock if the experiment yields an adverse 

result.”].)

Second, Tawansy contends section 473 relief is generally 

warranted “if no prejudice to the opposing party will ensue” 

(Zamora, supra, 28 Cal.4th at p. 258), that RIF has not proven 

any prejudice beyond “the inconvenience” of going to trial in the 

action and cross-action, and that only “‘very slight evidence will 

be required to justify’” an exercise of a court’s discretion where 

the moving party has acted “promptly” and the non-moving party 
17

has “‘“ma[de] no showing that [it] has suffered any prejudice or 

that injustice will result from the trial of the case upon its 

merits”’” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 857 (Weitz), 

quoting Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 531; 

Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695). We 

reject this contention for several reasons. At the outset, a court is 

empowered to exercise its discretion under section 473, 

subdivision (b), only when the moving party has made a 

threshold showing of “mistake, inadvertence, surprise, or 

excusable neglect” (§ 473, subd. (b)), and Tawansy has not made 

that showing, as explained above. Moreover, section 473, 

subdivision (b)’s underlying policy of favoring “the determination 

of actions on their merits” (Evan Zohar, supra, 61 Cal.4th at p. 

839; Weitz, at p. 857) would not seem to be implicated where, as 

here, the grant of relief under section 473, subdivision (b) would 

not result in a trial on the merits. That is because Tawansy’s 

failure to file any pretrial documents would, at a minimum, have 

led to the preclusion of all of his evidence in his action and in RIF

Investments-3’s cross-action. Thus, a reversal of the trial court’s 

ruling would, at best, result in a remand so that the trial court 

would enter an order of dismissal on Tawansy’s action (due to the 

preclusion of any evidence by Tawansy), and a one-sided trial 

(again, due to the preclusion of any evidence by Tawansy) in RIF

Investments-3’s cross-action that would render that trial

functionally indistinguishable from a default prove-up hearing. 

Yet this is no different than the effect of the trial court’s ruling

before us now. “‘[R]eviewing courts have consistently declined to 

remand cases where doing so would be an idle act that exalts 

form over substance . . .’” (People v. Jefferson (2019) 38 

Cal.App.5th 399, 408.)
18

Lastly, Tawansy asserts that the interests of justice favor 

going to trial on the merits because he has “fully litigated this 

matter for over two years” and suffered dismissal due to a single 

incident of “sickness.” Accepting this assertion requires us to 

reweigh the evidence and to ignore the analysis we have set forth 

above; we decline to do so.

II. No Basis for Sanctions 

It is not clear that Tawansy’s arguments regarding the 

propriety of the trial court’s order dismissing his operative 

complaint, striking his answer to RIF Investments-3’s crosscomplaint, and entering a default on the cross-complaint is 

properly before us. Such arguments constitute a direct attack on 

the order itself rather than on the trial court’s subsequent ruling 

refusing to set aside that order, yet Tawansy has only appealed 

the subsequent ruling—not the order itself.5 Nor may we 

consider Tawansy’s arguments as a means of establishing that 

the order was “void” and hence a basis for relief under section 

473, subdivision (d) because Tawansy did not seek relief under 

subdivision (d) and because his attacks on the trial court’s order 

would render it voidable rather than void. (Lee, supra, 168 

Cal.App.4th at pp. 563-566 [trial court’s failure to follow 

procedures under section 575.2, subdivision (a) renders order, at 

most, voidable]; see Johnson v. E-Z Ins. Brokerage, Inc. (2009) 

5 Although Tawansy could have appealed the portion of the 

trial court’s order dismissing his complaint as to Farhadi and 

Ghadir (§ 581d), he could not have appealed the portion of the 

order dismissing his complaint as to RIF Investments-3 or the 

order striking his answer to RIF Investments-3’s cross-complaint 

and entering a default because no default judgment has been 

entered. (First American Title Co. v. Mirzaian (2003) 108 

Cal.App.4th 956, 960.)
19

175 Cal.App.4th 86, 98 [“a judgment is valid but voidable if it is 

the result of the court’s failure to follow proper procedure”]; cf. 

Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208 (Sole 

Energy) [discovery sanction entered ex parte is void].)

Even if we assume that Tawansy’s attack on the validity of 

the trial court’s order is properly before us, it lacks merit because 

the court’s imposition of those sanctions in that order was not an 

abuse of discretion and is supported by the court’s express and 

implied findings. (E.g., Reedy v. Bussell (2007) 148 Cal.App.4th 

1272, 1291; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 

1133 [“all intendments and presumptions are indulged in favor of 

(an order’s) correctness”].)

The trial court did not abuse its discretion in issuing its 

order under section 575.2. In pertinent part, section 575.2 

authorizes a court, “on its own motion,” to “dismiss [an] action” or 

to “strike out all or any part of any pleading” and “enter” 

“default” if “a party . . . in pro se[] fails to comply with” any 

requirements of the court’s “[l]ocal rules” as long as the party is 

afforded “prior notice . . . and an opportunity to be heard.” 

(§ 575.2, subd. (a).) The Los Angeles Superior Court’s local rules 

(1) require litigants to “serve and file” an exhibit list, jury 

instruction request, trial witness list, and a proposed short 

statement of the case “[a]t least five days prior to the final status 

conference (Super. Ct. L.A. County, Local Rules, rule 3.25(f)(1)), 

(2) require litigants to “attend a final status conference” (Id., rule

3.25(f)), and (3) give notice that the “[f]ailure to exchange and file 

these items may result in not being able to call witnesses, present 

exhibits at trial, or have a jury trial” at all (Id., rule 3.25(f)(1)). 

In this case, substantial evidence supports the trial court’s 

finding that Tawansy violated Los Angeles Superior Court’s local 
20

rule 3.25 because he did not file any of the documents required by 

that rule five days prior to trial (or, for that matter, since then) 

and did not appear at the final status conference. Additionally, 

Tawansy had notice of the consequences of his noncompliance 

because they are set forth in section 575.2 and in Los Angeles 

Superior Court’s local rule 3.25(f)(1),6 and because he was also 

served with the trial court’s orders to show cause; Tawansy also 

had an opportunity to be heard when he offered argument 

against the order at the July 30, 2018 hearing. (Accord, 

Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70 

[due process requires “adequate notice and [an] opportunity to be 

heard” prior to imposition of sanctions].)

The trial court did not abuse its discretion in issuing its 

order under section 2023.030. In pertinent part, the Civil 

Discovery Act (§ 2016.010 et seq.) grants trial courts “broad” 

authority to sanction the “misuse[] of the discovery process,” 

which includes “[d]isobeying a court order to provide discovery,”

by imposing “terminating” sanctions. (§§ 2023.010, subd. (g), 

2023.030, subd. (d).) “When faced with a party’s misuse of the 

discovery process, a trial court ‘should’ impose ‘[t]he penalty 

. . . appropriate to the dereliction.’ [Citation.].” (Siry Investment, 

6 We disagree with Tawansy’s suggestion at oral argument 

that the reference in Los Angeles Superior Court local rule 

3.25(f)(1) to the sanctions of preclusion of witnesses, exhibits or 

the denial of a jury trial precluded the court from dismissing his 

action or striking his answer in RIF Investments-3’s cross-action 

because (1) section 575.2 that sets out the sanctions for 

noncompliance with local court rules specifically lists these 

sanctions, and (2) rule 3.25(f)(1)’s reference to the denial of a jury 

trial encompasses dismissal and striking an answer, both of 

which result in the denial of a jury trial.
21

L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1117 (Siry).) 

In assessing what sanction is appropriate, a court should 

examine “‘the totality of the circumstances,’ including (1) whether 

the party’s noncompliance is the latest chapter in a longer 

‘history of abuse,’ which looks to ‘the number of formal and 

informal attempts to obtain the discovery’ as well as whether 

prior court orders compelling discovery have gone unheeded 

[citations]; (2) whether the party’s noncompliance was ‘willful’ 

[citations]; (3) whether the noncompliance persisted despite 

warnings from the court that greater sanctions might follow 

[citation]; (4) whether the noncompliance encompasses all or only 

some of the issues in the case [citation]; and (5) the extent of the 

‘detriment to the propounding party’ that flows from the inability 

to obtain the discovery at issue [citation].” (Id. at pp. 1117-1118.) 

Because they are the most “‘drastic,’” terminating sanctions are 

to be “‘used sparingly’”; they are “typically” a “‘last resort’” but 

may be used “‘as a first measure’” in “‘extreme cases’” “where a 

litigant violates a court order and ‘persists in the outright refusal 

to comply with [its] discovery obligations’ [citation].” (Id. at p. 

1118.) In this case, substantial evidence—namely, a declaration 

by RIF’s counsel so reported and that report was never 

disputed—supports the trial court’s finding that Tawansy 

disobeyed the court’s order compelling him to respond to the 

discovery RIF propounded in April 2018. Further, the trial court 

did not abuse its discretion in imposing terminating sanctions, at 

least when it is recognized that the discovery violation 

compromised only part of the reason for the court’s order, and in 

light of the substantial evidence supporting the trial court’s 

findings that Tawansy’s refusal to comply was willful (and he 

offers no evidence to the contrary), that the discovery at issue 
22

went to the heart of RIF’s defense against Tawansy’s claim, and 

that Tawansy—since becoming a self-represented litigant—had 

pursued a strategy of “total[ly] fail[ing] to do what [is] necessary 

to bring th[e] case to trial.” 

Tawansy levels attacks at the procedural and substantive 

validity of the trial court’s sanction order.

Tawansy asserts that the court’s order suffers from two 

procedural defects. First, he asserts that the trial court could not 

impose the sanctions it did because there was no pending motion 

by RIF requesting such sanctions. This assertion ignores that 

both sections 575.2 and 2023.030 empower a trial court to impose 

sanctions on its own motion.7 (§§ 575.2, subd. (a), 2023.030.) 

Second, Tawansy asserts that he received inadequate notice of 

potential sanctions because (1) the consequences of failing to 

appear at the final status conference set forth in the order 

relieving his counsel were merely part of a pre-printed form; (2) 

he had no advance notice that the trial court was considering his 

failure to file pretrial documents as part of the basis for sanctions 

(as that was not listed in the pre-printed form or in the court’s 

orders to show cause); and (3) he only had seven days to respond 

to the trial court’s orders to show cause. We also reject these

assertions. Notice contained in a pre-printed form is still valid 

notice. (Lee, supra, 168 Cal.App.4th at pp. 564-565 [so noting].) 

Tawansy was not entitled to advance notice of all of the conduct 

that might form the basis for a sanctions order. (§ 2023.040 

[request for discovery sanctions need only “specify the type of 

7 Contrary to what Tawansy argued orally, Tawansy had 

ample advance notice that the court could impose sanctions on its 

own motion because these statutes so indicate. A further, 

express request for sanctions from RIF was not required. 
23

sanction sought,” not the conduct underlying it]; Sole Energy,

supra, 128 Cal.App.4th at p. 207-208 [same]; § 575.2 [not 

specifying the precise content of the notice]; cf. § 128.7 [request 

for sanctions under this provision requires notice of “the specific 

conduct alleged to [have] violate[d]” the statute]; Moyal v. 

Lanphear (1989) 208 Cal.App.3d 491, 502-503 [specific notice 

that specific conduct may result in dismissal under section 575.2 

is required when party is represented by counsel].) And we must 

in any event presume (because there is no transcript to the 

contrary) that the trial court informed Tawansy at the July 30, 

2018 hearing that it was considering sanctions on the additional 

ground of his failure to make the required pretrial filings and 

then gave him the opportunity to respond. (Jameson, supra, 5 

Cal.5th at p. 609 [“‘Failure to provide an adequate record on an 

issue requires that the issue be resolved against [the appellant].’ 

[Citation.].”].) Tawansy lastly does not cite any authority for his

proposition that a week’s notice is insufficient to appear at a 

hearing to explain one’s own prior conduct. 

Tawansy contends that the sanctions order suffers from 

two substantive defects. First, he notes that terminating 

sanctions are not appropriate under either section 575.2 or 

section 2023.030 unless there has been a previous noncompliance 

with a rule or order and “it appears [that] a less severe sanction 

would not be effective” (Wantuch v. Davis (1995) 32 Cal.App.4th 

786, 795 (Wantuch) [so noting, as to section 575.2]; Siry, supra, 

45 Cal.App.5th at pp. 1117-1118 [so noting, as to section 

2023.030]), and contends that these prerequisites are not met 

here. This contention ignores that the trial court’s order was 

preceded by Tawansy’s noncompliance with Los Angeles Superior 

Court’s local rule 3.25’s pretrial filing and appearance-at-final-
24

status-conference requirements and by his noncompliance with 

the court’s prior order compelling responses to RIF’s discovery. 

Further, there was substantial evidence to support the trial 

court’s implicit finding that lesser sanctions would prove 

ineffective: Tawansy had declined to file pretrial documents 

despite RIF’s repeated attempts to meet and confer with him, and 

he refused to do so even after receiving the orders to show cause; 

Tawansy continued to ignore the court’s order compelling 

discovery and continued to do so even after receiving the orders 

to show cause; and Tawansy’s attempt to evade service was

evocative of a person with no interest in litigating and every 

interest in forestalling litigation. Tawansy makes the related 

contention that the trial court was precluded by section 575.2 

from dismissing his operative complaint, striking his answer to 

RIF Investments-3’s cross-complaint and entering a default on 

that cross-complaint because the sole sanction for failure to file 

pretrial documents under Los Angeles Superior Court’s local rule

3.25 is the preclusion of evidence. Not only does this contention 

ignore the language of rule 3.25 (which also warns of the 

possibility of no “jury trial” at all), but also ignores that the 

sanctions in this case rested on more than just his failure to file 

pretrial documents. Second, Tawansy contends that no sanction 

is warranted under sections 575.2 and 2023.030 unless there is a 

willful failure to comply with a prior court order (e.g., Biles v. 

Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Wantuch, 

at p. 795), and here his conduct was not willful. This contention 

lacks merit because Tawansy offered no evidence as to why his 

failure to comply with the court’s order to compel discovery or the 

local rule’s requirement to serve pretrial documents was 

anything but willful, and because substantial evidence supports 
25

the trial court’s finding that he did not prove that his nonappearance at the final status conference was anything but 

willful. (Cf. Wantuch, at p. 795 [failure to appear at final status 

conference because party was in prison; sanctions not 

warranted].)

III. Sole Sanction is Trial in Tawansy’s Absence

Citing Wilson v. Goldman (1969) 274 Cal.App.2d 573, 575-

577 (Wilson), Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 

862, 864 (Heidary), and section 594, subdivision (a), Tawansy 

argues that the trial court may not enter a default against a 

party for failing to appear on the first day of trial if that party 

has filed an answer to the operative complaint. Because he filed 

a response to RIF Investments-3’s cross-complaint, Tawansy 

continues, the trial court was without power to enter a default 

against him when he did not appear on the first day of trial. By 

its terms, this argument has no application to the portion of the 

trial court’s order dismissing Tawansy’s complaint (because the 

court did not enter a default as to that complaint). More to the 

point, this argument ignores that the trial court in this case 

struck Tawansy’s answer to the cross-complaint prior to entering 

a default; this means that there was no answer on file at the time 

the court entered default, and thus renders Wilson, Heidary and 

section 594 irrelevant. Tawansy’s reliance on this authority 

might have some force if we had concluded that the trial court 

had erred in striking his answer in the first place, but we have 

concluded to the contrary.

* * *

In light of our analysis, we have no occasion to reach 

Tawansy’s further attacks on the trial court’s reasoning (e.g., 

Cruz v. Sun World Internat., LLC (2015) 243 Cal.App.4th 367, 
26

373, overruled in part on other grounds as stated in Noel v. 

Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 986) or RIF’s 

alternative arguments for affirmance. We also deny RIF’s 

request to award attorney fees on appeal because its request is 

unsupported by any authority or argument. (Cahill v. San Diego 

Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [argument 

not supported with “reasoned argument” is waived].)

DISPOSITION

The order is affirmed in part (as to the denial of the motion 

to set aside the dismissal of plaintiff’s complaint as to Farhadi 

and Ghadir) and, as to the remainder, construed as a petition for 

a writ of mandate and denied. RIF is entitled to its costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST