Filed 2/10/20 Vavala v. Mandala CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

BRUNO VAVALA, JR.,

Plaintiff, Cross-defendant

and Appellant,

v.

GAETANO MANDALA,

Defendant, Cross-complainant

and Respondent.

B286050

(Los Angeles County

Super. Ct. No. BC545593)

APPEAL from an order of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. Affirmed.

Leo Fasen; Schiffer & Buus and Eric M. Schiffer for Plaintiff, Cross-defendant and Appellant.

The Yarnall Firm and Delores A. Yarnall for Defendant, Cross-complainant and Respondent.

INTRODUCTION

On May 24, 2013, appellant Bruno Vavala, Jr., and respondent Gaetano Mandala, patrons of Chaya — a restaurant located in Venice, California — were involved in a fight on the street outside of the restaurant. On May 13, 2014, Vavala filed a complaint for premises liability and general negligence, naming as defendants Eugene & Associates dba Chaya Venice, its insurer, and Does 1 and 2. Vavala alleged Chaya’s security failed to intervene in his fight with Mandala, resulting in injury to Vavala. Chaya answered Vavala’s complaint and cross-complained against Mandala for equitable indemnity, comparative contribution/partial indemnification, and declaratory relief. Mandala answered Chaya’s cross-complaint and cross-complained himself, alleging a cause of action against Vavala for assault and battery, a cause of action against Chaya for negligence/premises liability, and causes of action against both for equitable indemnity, contribution/partial indemnification, and declaratory relief. Vavala and Chaya both answered Mandala’s cross-complaint. The parties commenced discovery.

As one of Vavala’s appellate counsel concedes in his reply brief: “To say that Appellant Vavala behaved poorly in this case would be an understatement. Unguided by any meaningful counsel of record . . . Vavala took liberties with the discovery process causing unnecessary delay and expense.” Vavala failed to diligently locate and produce requested documents even after court orders to do so; deliberately spoliated evidence by discarding responsive documents and washing the shirt he was wearing the night of the incident; refused to produce the shirt as evidence; canceled deposition dates and failed to meet and confer about new dates; and refused to answer or evaded legitimate questions asked in deposition, or gave contradictory answers from one minute to the next.

On October 12, 2017, the court granted Chaya and Mandala’s motion to dismiss “for failure to obey court orders and . . . submit to legitimate discovery processes” and also granted their motion for terminating, issue, evidence, and monetary sanctions “for Vavala’s willful misuses of discovery, willful violations of the court orders, and intentional and willful spoliation of key evidence.” The court struck Vavala’s operative complaint and his answer to Mandala’s cross-complaint and entered his default thereto. The court further awarded a total of $50,000 in monetary sanctions in favor of both Chaya and Mandala. Upon submission of a default prove-up package, the court entered default judgment against Vavala on October 16, 2017, awarding Mandala $200,000 in general damages, $200,000 in punitive damages, $6,212.58 in costs, and $109.59 of interest per day, until the judgment was paid. On December 7, 2017, the court also entered a judgment against Vavala on his complaint.

On October 18, 2017, Vavala filed a notice of appeal indicating he was appealing the monetary sanctions portion of the order entered on October 12, 2017. Additionally, both his October 26, 2017 notice designating a record on appeal and his November 9, 2017 civil case information statement indicated his appeal was from the monetary sanctions portion of the October 12 order.

On December 19, 2017, Vavala filed an “Amended” civil case information statement in which he indicated he had also appealed the October 16, 2017 default judgment. But it is undisputed Vavala never filed a notice of appeal specifying an appeal from the default judgment.

In his opening brief, Vavala argues the trial court erred by: (1) dismissing his complaint and entering his default as to Mandala’s cross-complaint; (2) finding he intentionally spoliated and destroyed critical evidence; (3) entering a default judgment against him on Mandala’s cross-complaint; and (4) imposing $50,000 in sanctions against him. In his reply brief, he asserts for the first time that evidence of Vavala’s financial condition is insufficient to support the award of punitive damages.

As detailed below, the scope of Vavala’s appeal is limited to whether the court erred in imposing $50,000 in monetary sanctions. We affirm.

STATEMENT OF RELEVANT FACTS

A. Vavala and Mandala Get into a Fight at Chaya
B.
On May 24, 2013, Vavala and Mandala were involved in an altercation at Chaya. The two had previously argued about seating at Chaya’s bar, and whether Vavala and his friend would move one seat over so Mandala could sit with his friend. Vavala claimed that sometime after the argument he went outside for a cigarette and Mandala rushed to exit before him. Mandala allegedly tackled Vavala as he exited Chaya, and both fell through a plate-glass window. Vavala further claimed Mandala then began pummeling him while Chaya security failed to intervene. The police report stated Vavala sustained “numerous minor cuts and a two-inch laceration which required five stitches” and also noted Vavala “refused . . . medical attention at the scene.”

Mandala’s version of events differed markedly from Vavala’s. Mandala claimed that sometime after the argument over seating he exited Chaya to use his phone, and then, having turned around to chat with the security guard standing outside, saw Vavala exiting and aggressively approaching him. Mandala testified Vavala grabbed his shirt and Mandala reacted by putting Vavala in a bear hug so Vavala could not punch him. As Vavala struggled to free himself, Mandala lost his footing and the two fell through the plate glass window. Because Mandala was concerned about Vavala punching him, Mandala continued holding him in a bear hug until bystanders separated them. Mandala denied ever punching Vavala.

According to the police report, Chaya’s security guard identified Vavala as “the main person who started the altercation.” One of the responding police officers stated Mandala was “the calmest and most reasonable party at the location and even volunteered to pay for the broken plate glass window.”

C. Litigation Ensues
D.
1. Vavala Files a Complaint
2.
Neither party pressed charges the night of the incident. Almost a year later, on May 13, 2014, Vavala filed a form complaint in propria persona, alleging causes of action for general negligence and premises liability. The defendants were Chaya, its insurer, and Does 1 and 2. Vavala claimed Chaya security failed to help when “one of Chaya’s other patrons” attacked him. Vavala further claimed Chaya’s insurer refused to pay for his injuries and expenses because Vavala “willingly went outside of Chaya’s bar to engage in a mutual combat with his attacker.” Despite the fact that the police report from the year before identified Mandala by name and stated Vavala “was given a copy of the report,” Vavala initially failed to name Mandala as a defendant, and the complaint referred to him only anonymously (e.g., as a “patron” or “man”).

On October 30, 2014, Marvin Levy substituted in as counsel for Vavala. On February 25, 2015, Vavala dismissed Chaya’s insurer with prejudice. On October 6, 2015, Vavala amended his complaint to name Mandala as “Doe 1” (i.e., “the agent[] or employee[] of other named defendants”). It is undisputed that Vavala never served Mandala with a summons or complaint.

On April 11, 2016, Chaya answered Vavala’s first amended complaint. It simultaneously filed a cross-complaint against Mandala for equitable indemnity, comparative contribution/partial indemnification, and declaratory relief. On September 14, 2016, Mandala answered Chaya’s cross-complaint and filed his own cross-complaint, alleging a cause of action against Vavala for assault and battery, a cause of action against Chaya for negligence/premises liability, and causes of action against both for equitable indemnity, contribution/partial indemnification, and declaratory relief. Mandala alleged Chaya failed to expel Vavala and continued serving him alcohol even though he was drunk and acting aggressively and, as a result, Vavala physically injured Mandala. Mandala mailed these pleadings to both Vavala and Chaya on September 13, 2016, along with a statement of damages, listing $100,000 in pain and suffering, $100,000 in emotional distress, and $200,000 in punitive damages. On October 21, 2016, Vavala answered Mandala’s cross-complaint. On November 16, 2016, Chaya’s demurrer to Mandala’s cause of action for negligence/premises liability was sustained without leave to amend. Chaya answered the cross-complaint on February 1, 2017.

E. Vavala Abuses the Discovery Process
F.
1. The Many Dates of Vavala’s Deposition
2.
(a) The First Scheduled Date of the First Day of Vavala’s Deposition
(b)
Chaya noticed Vavala’s deposition for July 7, 2017. Chaya’s counsel claimed he previously cleared this date with Vavala’s counsel, and Vavala does not dispute this. However, on July 3, 2017, the office of Vavala’s counsel informed Chaya’s counsel that Vavala was “unavailable for deposition for July 7, 2017, as he has a previously set appointment on that date and time which he could no longer cancel.” Vavala offered to reschedule to July 17, 2017. Chaya’s counsel stated he was unavailable on July 17 and suggested other dates for the deposition, but Vavala’s counsel did not respond. Having not secured an agreement for a different day for Vavala’s deposition, Chaya proceeded with the July 7 deposition and obtained a certificate of non-appearance. After meeting and conferring, the parties agreed to hold the deposition on July 11, 2017.

(c) The Second Scheduled Date of the First Day of Vavala’s Deposition
(d)
On July 10, 2017, one day before the second scheduled date of the first day of Vavala’s deposition, Vavala’s counsel e-mailed some documents to Chaya’s counsel, stating they were “the documents you requested for Mr. Vavala’s depo for tomorrow.” However, on July 11, 2017, after Vavala physically appeared for his deposition, Vavala’s counsel revealed he was appearing telephonically. Vavala then refused to proceed with the deposition without his attorney physically present. After a discussion on the record, the parties agreed to hold the deposition on Saturday, July 15, 2017, under the condition that Vavala “commits that no matter what the situation he will be here at 11:00 a.m. on Saturday . . . and he will sit for his deposition and actually answer questions at the deposition if he makes that personal commitment under oath . . . .” Vavala agreed, stating: “I will answer questions to the best of my ability, to the best of my recollection.” The parties agreed to reconvene at 11:00 a.m. on July 15.

(e) The Third Scheduled Date of the First Day of Vavala’s Deposition
(f)
On July 15, 2017, Vavala appeared for the third scheduled date of the first day of his deposition. The record reflects that Chaya’s attorney appears to have finished his questioning around 4:50 p.m., and the parties took a short break before Mandala’s counsel began her questioning. Approximately 45 minutes into questioning by Mandala’s counsel, Vavala stated he needed to “wrap it up” and both he and his counsel walked out of the deposition without conferring about, much less agreeing on, when the deposition could resume.

Chaya’s counsel then called and wrote to Vavala’s counsel regarding dates to finish Vavala’s deposition but received no response. But while Vavala’s counsel was not responding to opposing counsel’s meet-and-confer efforts, Vavala began personally appearing at third-party depositions. Finally, on July 25, 2017, at the deposition of a third-party police officer, Chaya’s counsel noted Vavala’s presence on the record and stated that while counsel was not permitted to speak directly to Vavala, he did not know whether Vavala was present to finish his deposition, as “we had offered today at 10:00 o’clock to finish his deposition.” Vavala responded: “No, I’m not here for the purpose of my deposition. My deposition was already taken by you and completed, and your partner attorney here had her bite at the apple as well. I am done with my deposition.” Two days later, on July 27, 2017, Chaya and Mandala moved to compel Vavala’s deposition on an ex parte basis. Vavala failed to appear at the hearing and the court granted the application, ordering Vavala’s deposition to resume on August 3, 2017, and for Vavala to produce all responsive documents at that time. The court denied the moving parties’ request for sanctions but stated sanctions could be requested in separate motions.

(g) The First Scheduled Date of the Second Day of Vavala’s Deposition
(h)
On July 31, 2017, counsel for Vavala e-mailed opposing counsel to state Vavala was unable to attend the court-ordered August 4 deposition date because he had “a pre[ ]paid vacation and will be on an airplane.” Despite requests from opposing counsel that Vavala delay his vacation, the parties ultimately agreed to move Vavala’s deposition to August 15, 2017. Because Vavala refused to stipulate to certain sanctions should he fail to appear, Chaya and Mandala again moved on an ex parte basis for the court to continue the deposition date to August 15, 2017. On August 4, 2017, the court granted the application to continue the August 4 deposition date to August 15 and ordered Vavala to produce documents required to be produced or, if no documents existed, to provide a declaration so stating.

(i) The Second and Third Scheduled Dates of the Second Day of Vavala’s Deposition
(j)
On August 15, 2017, Vavala appeared for his deposition but claimed to be unable to proceed because he was suffering from a migraine. The parties agreed to reconvene on August 24, 2017. On August 24, 2017, the parties completed their questioning, subject to the right to recall Vavala to question him about unproduced documents.

3. Vavala Fails to Produce Requested Documents and Spoliates Evidence
4.
Chaya’s notice of deposition contained 21 requests for documents. Counsel reviewed these requests with Vavala on the first day of his deposition. As detailed below, Vavala gave differing responses as to whether he had responsive documents, and also testified to spoliating responsive documents and other evidence.

(a) Request No. 1
(b)
Request No. 1 called for “Any and all WRITINGS constituting a visual depiction of any of the persons, places, things, or objects involved in the INCIDENT, including, but not limited to photographs and video.” On the first day of his deposition, Vavala stated he had nothing responsive to this request. But on the second day of his deposition, he stated he remembered “providing photographs of the scars” from the wounds he suffered during the incident to “[p]aralegal Moses” and expressed surprise that opposing counsel did not have such photographs. After returning from the lunch break, Vavala’s attorney stated on the record: “Before we get started, I had some pictures e-mailed to my phone depicting the plaintiff’s injuries. I will e-mail the pictures to both counsel later this afternoon.” Vavala’s attorney stated he “never saw the photos until they appeared on my phone” and “had no idea they were even there.” He stated he “believe[d] plaintiff sent them to me, but when or where or how, I haven’t the faintest idea.” Despite the promise of Vavala’s attorney to send the photos to opposing counsel, none were received.

(c) Request No. 7
(d)
Request No. 7 called for “Any and all WRITINGS constituting medical records pertaining to examinations, treatment and consultations by a healthcare provider that YOU underwent as a result of the INCIDENT.” At his August 24, 2017 deposition, Vavala admitted to consulting with three medical professionals where he “actually attended some physical meeting with them where they examined” him. But he made no effort to obtain any records from the doctors.

(e) Request No. 9
(f)
Request No. 9 called for “Any and all WRITINGS and things which in any way support YOUR claims in this lawsuit.” At his July 15, 2017 deposition, Vavala brought a folder containing certain papers. When asked what they were, he responded they were “personal notes” that he made at the time of the incident, which he made because his “recollection is poor.” Literally six minutes later, when Chaya’s counsel asked him to produce the notes being discussed, Vavala responded, “I don’t have that here today.” When counsel pointed out, “You just said you have them [the notes] in the folder,” Vavala simply repeated, “No, I don’t have that.” Later in the deposition, Vavala apparently realized he did have the notes, and asserted they supported his claims. But he refused to produce them, stating: “you may be entitled to it, but you’re not going to get it. Okay? Period.” He then claimed he had “incorporated some embarrassing personal notes” in the papers “about a romantic relationship [he was] having with a woman.” When counsel offered to let him redact those portions, he still refused to produce the notes, saying “[y]ou’re not going to get the document, period, unless you physically jump over here and take it from me. So can you please do that? I don’t know how much more clearer I can get to it. You’re not going to get that document, period.” At his August 24, 2017 deposition, when asked about the notes, Vavala claimed, “I don’t even recall creating notes. I don’t know even know when I created them or if I even created them.” But he did claim to know that he “just threw them away . . . right after I left the session here.”

At his August 24, 2017 deposition, Vavala also testified as to the existence of various documents supporting his claim for damages, which he failed to produce. Specifically, he claimed to have tax returns that would show his income from the past few years (he claimed his earnings had decreased due to the incident). He stated he could call a previous employer to get a copy of a Form W-2 showing his income, but had made no effort to do so. He stated he had Form 1099s from AirBnB showing the rental income he received from renting his real property. None of these documents were ever produced. When asked to estimate his wage loss, he responded: “I can’t give you estimates. As I stated to you, I can get back to you with documentation.” Nothing in the record reflects he ever produced such documentation.

(g) Request No. 15
(h)
Request No. 15 called for “The actual clothing YOU were wearing at the time of the INCIDENT.” At his July 15, 2017 deposition, Vavala stated the shirt he was wearing that night was “drenched in blood” but he could not find it and was unsure whether he had discarded it. Then, at his August 15, 2017 deposition — the deposition where he was unable to proceed because of a migraine — Vavala brought the shirt in question. His attorney stated, “My client’s preference would be to hold on to the shirt after photographs are taken. I understand counsel wants to hold on to it. [¶] No objection from counsel — from plaintiff’s counsel.” After having the shirt photographed, Chaya’s counsel attempted to have the shirt marked as Exhibit W1 and asked Vavala to sign the seal on the bag containing the shirt. Vavala responded, “So I’ve already stated that I’m holding on to my shirt. I don’t know what part of that wasn’t clear.” When his lawyer advised Vavala “to leave [the shirt] with [Chaya’s counsel],” Vavala refused. Opposing counsel informed Vavala that removing the shirt was a discovery violation, but requested that he at least bring it to the next deposition session if he refused to leave it as an exhibit. Vavala stated he understood. At his August 24 deposition, Vavala testified he had brought the shirt but it was in his car. Vavala also testified to having washed the shirt. Ultimately, nothing in the record indicates the shirt was ever produced, aside from the few minutes in which opposing counsel was permitted to photograph it on August 15, 2017.

5. Other Improper Behavior
6.
Aside from the issues discussed above, the record reveals numerous other examples of Vavala’s combative behavior at deposition, quibbling over word choices or refusing to answer legitimate questions. For example, in his first amended complaint which he filed in propria persona, Vavala alleged a cause of action for defamation, claiming he was defamed because Chaya told its patrons that Vavala had “lost the fight” with Mandala. But at his July 15, 2017 deposition, after answering questions regarding other altercations he had been in, he suddenly objected to the word “fight” and insisted that certain incidents were “attacks” not “fight[s].” When asked whether he got into a fight with Mandala, Vavala claimed, “Absolutely not. That was an attack, a clear attack.”

At the same deposition, Vavala answered “no” when asked whether a certain document he was refusing to produce was a “typed document.” When counsel pointed out a video camera was filming the document and showed it was a typed document, Vavala stated, “[n]o, it wasn’t typed. It wasn’t typed on a typewriter. It’s something that’s print[ed] up . . . . It was printed on a computer.”

On August 24, 2017, Vavala appeared for his deposition wearing sunglasses. When asked to remove them, he stated he could, but claimed, “I can’t guarantee my migraines are not going to fire up in 30 minutes or an hour and I’m going to have to exit the deposition.” When counsel pointed out Vavala was not wearing sunglasses when he arrived for the deposition, Vavala responded, “I was not sitting under bright fl[u]orescent lights. I’m now sitting under bright fl[u]orescent lights.” The parties continued with the deposition without requiring Vavala to remove his sunglasses. But when later asked whether he had worn his sunglasses to lunch, Vavala responded, “I don’t wear them in the sunlight because it’s too bright.”

At the same deposition, counsel asked Vavala, “Did you see any medical doctor through your HMO for treatment of any type for the injuries that you alleged in this Chaya case?” He answered: “Sure.” Counsel then inquired, “Which doctor did you see through your HMO?” The following colloquy took place:

“[Vavala:] Are you clear of when I had an HMO and when I didn’t have an HMO? Perhaps you should be more specific when you ask the question of what time period and when I had an HMO and when I had a PPO.

“[Counsel:] I just need you to answer the question.

“[Vavala:] Your question doesn’t make sense, okay. You’re going to have to be more specific with your question during a time period of an HMO, that I had an HMO. When did I have an HMO? When did I have a PPO?

“[Counsel:] My question was to you: Did you see any medical doctor through your HMO? [¶] And your answer was yes. And my question was what doctor —

“[Vavala:] What HMO? I had a PPO during the time of the incident. I had a PPO, then I had an HMO. So the HMO, I just got back on the HMO. [¶] Do you want to talk about the HMO now or do you want to talk about the HMO before the PPO, which I don’t even know if the incident had occurred at that point. [¶] So I think you’re going to have to do a little better in phrasing your question. I can’t answer it.”

Other examples of Vavala’s pugnacious behavior abound in the record.

G. The Court Strikes Vavala’s Complaint and Answer and Enters Default Judgment Against Him
H.
On August 28, 2017, Chaya and Mandala moved to dismiss Vavala’s complaint on three grounds: (1) failure to bring the case to trial within either two or three years of the commencement of the action; (2) as to Mandala only, improperly using a “Doe” amendment procedure to name him as a party, and failing to serve him; and (3) violating court orders and spoliating evidence. Vavala opposed the motion. The hearing was set for October 12, 2017.

On September 19, 2017, Chaya and Mandala moved for an order imposing terminating, issue, evidence, and monetary sanctions of $112,670.03 for Vavala’s abuses of the discovery process. Vavala opposed the motion. The hearing on the motion also was set for October 12, 2017.

On October 12, 2017, the court granted the motion to dismiss “for failure to obey court orders and . . . submit to legitimate discovery processes” and also granted the motion for terminating sanctions “for Vavala’s willful misuses of discovery, willful violations of the court orders, and intentional and willful spoliation of key evidence.” The court struck Vavala’s operative complaint and his answer to Mandala’s cross-complaint and entered his default thereto. The court further awarded “compensatory monetary sanctions as against Vavala, and in favor of Mandala and in favor of Eugene & Assoc. Inc., dba Chaya Venice, for fees and costs, in the total amount of $50,000.” Finally, the court ordered Mandala to “proceed on his cross-complaint by following the appropriate default prove-up procedures” and set a “status conference to manage the default procedures for 11-6-17 . . . .” The court made the following findings:

• Vavala “engaged in a pattern and practice of discovery abuse, and . . . misused the discovery process” by failing to respond or submit to discovery; making unmeritorious objections to discovery; and giving evasive responses in discovery.
•

• Vavala’s counsel failed to meet and confer in a reasonable and good faith attempt to informally resolve a discovery dispute.
•

• “Vavala willfully disobeyed three court orders” issued on July 27, August 3, and August 8, 2017 to provide discovery.
•

• “Vavala willfully spoliated critical evidence in the case in disobedience to the court order that required him to produce such evidence to opposing parties.” In particular, he “[i]ntentionally altered the condition of the shirt that [he] wore on the night of the incident by washing it”; he “[i]ntentionally threw away his personal notes that [he] made about the incident” and he “[i]ntentionally threw away the original ‘source’ documents that [he] used to create a list of alleged massages and charges that [he] sought to and did present as evidence of his medical damages.”
•

• “Vavala willfully failed [to] properly . . . submit to his deposition, and when he did attend . . . he made evasive and argumentative responses, at times refused to answer legitimate questions, and he refused to allow the deposition to proceed . . . without dark sunglasses being worn . . . .”
•

• “Vavala willfully failed to produce responsive documents to opposing parties although those documents were in [his] possession, custody, or control, and although [he] knew the documents were subject to the court order to produce.” Specifically, he failed to produce wage documents, many medical records, many medical billings, and photographs that showed the injuries he claimed to have suffered.
•

• Chaya and Mandala suffered undue prejudice from Vavala’s actions, and no remedy short of striking Vavala’s pleadings could substitute for having the spoliated evidence.
•

• Vavala failed to diligently prosecute the case, and failed to bring the case to trial within two or three years.
•

• Vavala could not properly use the Doe amendment procedure because he knew Mandala’s identity before he filed the complaint and, in any case, failed to serve Mandala with the summons and complaint.
•

On October 16, 2017, Mandala submitted a default prove-up package. The court entered default judgment that day, awarding Mandala $200,000 in general damages, $200,000 in punitive damages, $6,212.58 in costs, and $109.59 in interest per day, until the judgment was paid. The judgment also reflected that on October 16, 2017, Chaya and Mandala dismissed their cross-complaints against each other.

Vavala claims in his opening brief that on November 6, 2017, he appeared before the court for the previously set “status conference to manage the default procedures” and was informed the status conference had been taken off calendar because the court had already signed the default judgment on October 16, 2017. Vavala claims that on November 8, 2017, he received a copy of the notice of entry of judgment enclosing the October 16, 2017, default judgment. On December 7, 2017, the court entered judgment against Vavala on his complaint.

On December 29, 2017, Vavala moved to vacate the default judgment on Mandala’s cross-complaint. On April 26, 2018, the court denied the motion.

I. Vavala Files a Single Notice of Appeal
J.
On October 18, 2017, Vavala filed a notice of appeal, using Judicial Council Form APP-002. The notice states that Vavala “appeals from the following judgment or order in this case, which was entered on (date): 10/12/2017.” In the portion of the form where the appellant is to check the box next to the category that describes the appealable order, Vavala checked two: “[a]n order after judgment under Code of Civil Procedure, § 904.1(a)(2)” and “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13).” This is the sole notice of appeal Vavala filed.

On October 26, 2017, Vavala filed a notice designating record on appeal, using Judicial Council Form APP-003. Vavala elected to use a clerk’s transcript and under Section 4 “Notice Designating Clerk’s Transcript,” next to “(3) Judgment or order appealed from,” Vavala typed “10/12/2017” as the date the judgment or order was filed. Among the “Additional documents” he sought to include in the record, he listed “(8) Default Judgment” which he stated was filed “10/16/2017.” Vavala also elected to proceed without a reporter’s transcript, marking the box that he understood “without a record of the oral proceedings in the superior court, . . . the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.” (Capitalization omitted.)

On November 9, 2017, Vavala filed his civil case information statement. Under Part 1.A.1. which asks the appellant to check a box indicating what the “[a]ppeal is from,” Vavala again checked two boxes: “[a]n order after judgment under Code of Civ[il] Proc[edure], § 904.1(a)(2)” and “[a]n order or judgment under Code of Civ[il] Proc[edure], § 904.1(a)(3)-(13).” He claimed the judgment or order appealed from was entered “Oct 12, 2017.” Attached to the civil case information statement was a pleading entitled “Notice of Entry of Order Dismissing Vavala’s Complaint, Striking Vavala’s Answer to the Mandala Cross-Complaint and Entering Vavala’s Default on the Cross-Complaint, and Issuing $50,000[] in Monetary Sanctions Against Vavala and in Favor of Gaetano Mandala and Eugene & Assoc., Inc. dba Chaya.” (Capitalization omitted.)

On December 19, 2017, Vavala filed an “Amended” civil case information statement. On this civil case information statement, under Part 1.A.1. asking the appellant to check the box indicating what the “[a]ppeal is from,” Vavala checked three boxes, this time including “Default judgment” along with the two previously selected categories. Under the section provided to list the dates of the entered judgments or orders appealed from, he added “11/03/2017 (Default Judgment).” He also attached a copy of the notice of entry of the default judgment (which included the October 16, 2017 default judgment). Other than on October 18, 2017, Vavala filed no notice of appeal.

K. Post-Appellate Motions
L.
On June 13, 2018, Vavala moved to augment the record. The motion listed 21 pleadings Vavala requested we add to the record but attached none of them. On July 18, 2018, Mandala opposed Vavala’s motion on three grounds: (1) the entire appeal should be dismissed; (2) there was no good cause to augment the record; and (3) Vavala’s motion was defective, in part because it failed to include the pleadings. Vavala did not file a reply. On August 31, 2018, we deferred ruling on the motion until the matter was fully briefed.

On October 26, 2018, Vavala dismissed Chaya from the appeal with prejudice. On January 7, 2019, Vavala filed his opening brief. On February 27, 2019, Mandala filed a motion to dismiss Vavala’s appeal, in part because Vavala’s opening brief “addresses issues that are not subject to review on this appeal” and because “[t]his Court lacks jurisdiction to address any other issue [other than the imposition of $50,000 in sanctions] because . . . Vavala failed to notice appeals to either judgment . . . .” On March 18, 2019, we denied Mandala’s motion without prejudice to Mandala’s addressing the issues in his brief.

On May 28, 2019, Mandala filed his respondent’s brief along with a request that we judicially notice seven pleadings, relating primarily to our determination of the scope of Vavala’s appeal and the adequacy of the record. We granted Mandala’s request.

On October 3, 2019, Vavala filed his reply brief, along with a request that we judicially notice the declaration of Delores Yarnall (Mandala’s counsel) in support of Mandala’s default prove-up package. A copy of the declaration — without the exhibits referenced therein — was attached to the motion. On October 9, 2019, Mandala filed a pleading entitled “Respondents’ Opposition to Appellant Bruno Vavala, Jr.’s Request for Judicial Notice and Motion to Strike Portions of Vavala’s Reply Brief.” On October 11, 2019, Vavala filed a pleading entitled “Appellant’s Opposition to Respondent’s Motion to Strike Portions of Appellant’s Reply Brief and Reply to Respondent’s Opposition to Appellant’s Request for Judicial Notice.” On October 15, 2019, Mandala filed his reply in support of his motion to strike portions of Vavala’s reply.

DISCUSSION

A. The Pending Motions Are Denied
B.
1. Vavala’s June 13, 2018 Motion to Augment
2.
“A party must attach to its motion [to augment the record] a copy, if available, of any document or transcript that it wants added to the record.” (Cal. Rules of Court, rule 8.155(a)(2).) “A motion to augment or correct the clerk’s transcript shall be accompanied by the documents requested. If the documents are not provided, the motion must identify them with specificity and contain an explanation for their omission.” (Ct. App., Second Dist., Local Rules of Ct., rule 2(c), Augmentation of record and correction of omissions from record.) “Appellant should file requests for augmentation in one motion within 40 days of the filing of the record or the appointment of counsel.” (Ct. App., Second Dist., Local Rules of Ct., rule 2(b), Augmentation of record and correction of omissions from record.)

On June 13, 2018, Vavala moved to augment the record with 21 pleadings, but attached none of them. He filed the motion 230 days after his initial designation of the record, and 190 days after the deadline specified in Local Rule 2(b), with no explanation for its tardiness. Nor did Vavala explain why he failed to attach the pleadings with which he sought to augment the record. Mandala’s July 18, 2018 opposition to Vavala’s motion pointed out this defect but Vavala neither filed a reply justifying the absence of the pleadings nor submitted a new motion attaching the pleadings or explaining his inability to do so. We therefore deny Vavala’s motion to augment.

3. Vavala’s Request for Judicial Notice
4.
On October 3, 2019, concurrently with his reply brief, Vavala asked us to judicially notice the Declaration of Delores Yarnall, filed in support of Mandala’s request for default judgment because “the part of [Mandala’s] default proveup package supporting the imposition of punitive damages as a component of the judgment against Vavala is relevant.” We deny his request for three reasons. First, as discussed herein, the scope of Vavala’s appeal is limited to whether the court erred in imposing $50,000 in monetary sanctions. Yarnall’s declaration is unnecessary for our consideration of this issue.

Second, the issue whether sufficient evidence of Vavala’s financial condition supports the imposition of punitive damages was first raised in his reply brief. “‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’” (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477.) “‘“[P]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.”’” (Id. at p. 1478.) No such reason has been presented.

Finally, the declaration references several exhibits, none of which were included in the request for judicial notice. Even were we permitted to address Vavala’s contention of the impropriety of imposing punitive damages given the alleged insufficiency of the evidence demonstrating his financial condition, we would be unable to determine the sufficiency of the evidence presented in Yarnall’s declaration without the exhibits referenced therein.

5. Mandala’s Motion to Strike
6.
For the reasons set forth below, we affirm the court’s order. Accordingly, we deny as moot Mandala’s motion to strike portions of Vavala’s reply brief.

C. Vavala’s Appeal Is Limited to the Court’s Order Imposing $50,000 in Monetary Sanctions
D.
“‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170, quoting Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) When a notice of appeal designates a non-appealable order, we may construe the notice as an appeal from the underlying judgment only if two requirements are met: (1) “‘“it is reasonably clear what appellant was trying to appeal from’””; and (2) “‘no prejudice would accrue to the respondent.’” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) “[A]lthough we may ‘liberally construe’ a notice of appeal in favor of a right to appeal, we cannot do so where every indication in the record is that [appellant] intended to appeal” from another judgment or order. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 841; see also id. at p. 846 [when “notice of appeal listed and attached only the March 18, 2013 judgment” the court could not find appellant intended also to appeal from a May 15, 2013 judgment].)

Here, Vavala filed a single notice of appeal. It specifically stated the appeal was from a judgment or order entered October 12, 2017. In the portion of the form that describes the appealable order or judgment, Vavala did not check “Default judgment” or “Judgment of dismissal under Code of Civil Procedure, §§ 581d, 583.250, 583.360, or 583.430” or even “Other.” Instead, he checked: “[a]n order after judgment under Code of Civil Procedure, § 904.1(a)(2)” and “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13).”

Code of Civil Procedure section 904.1, subdivision (a)(2), permits an appeal “[f]rom an order made after a judgment made appealable by paragraph (1).” “[P]aragraph (1)” permits an appeal “[f]rom a judgment, except an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or a judgment of contempt that is made final and conclusive by Section 1222.” The October 16, 2017 default judgment is self-evidently not “an order made after a judgment made appealable by paragraph (1).”

Similarly, Code of Civil Procedure section 904.1, subdivisions (a)(3)-(13) list 11 appealable orders and judgments, none of which describes the October 16, 2017 default judgment. However, subdivision (a)(12) permits an appeal “[f]rom an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).” The October 12, 2017 order imposing $50,000 in sanctions was thus appealable under this subdivision.

Additionally, Vavala’s notice designating record on appeal demonstrates that, by October 26, 2017, when he filed his record designation, he knew that a default judgment had been entered on October 16, 2017. Yet under “Date of Filing” for the “Judgment or order appealed from” he listed “10/12/2017.”

Further, Vavala himself argues in his opening brief that, when he filed his notice of appeal on October 18, 2017, “neither Vavala nor [his counsel] Mr. Levy knew that the trial court had already signed the Default Judgment on October 16, 2017.” If Vavala was unaware of the default judgment when he filed the notice of appeal, he could not have intended to appeal from it. If further confirmation were needed, Vavala provides it. He argues that, “immediately upon receipt of Mandala’s Default Judgment prove-up package, Vavala filed his Notice of Appeal with the court, for the purpose of preventing the court from entering a default judgment against Vavala on Mandala’s Default Judgment prove-up package.” It is self-evident that Vavala could not have intended the notice of appeal to appeal from a judgment whose entry he believed he had prevented.

Finally, Vavala admits in his opening brief that by November 6, 2017, he was aware the trial court had entered a default judgment in Mandala’s favor. He further admits that on November 8, 2017, he received a copy of the default judgment, along with notice of its entry. Yet when he filed his civil case information statement on November 9, 2017, he confirmed he was appealing from “[a]n order after judgment under Code of Civil Procedure, § 904.1(a)(2)” and “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13),” and that the order appealed was entered “Oct 12, 2017.” Thus, every indication is that Vavala intended to appeal from the October 12, 2017 order imposing $50,000 in sanctions, and nothing else. We cannot “liberally construe” his notice of appeal otherwise.

On December 19, 2017, Vavala filed an “Amended” civil case information statement, which purported to describe the appeal as one also from the default judgment. To the extent Vavala suggests this “Amended” civil case information statement served as a notice of appeal of the default judgment, he is mistaken. Statements in a civil case information statement are no substitute for a properly filed notice of appeal, and do not confer jurisdiction upon us. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 [“Despite appellant’s statement to the contrary in the civil case information statement, he has not appealed the judgment granting the petition for an injunction. His Notice of Appeal identifies only the order denying the motion for reconsideration and designating him a vexatious litigant as the order from which the appeal is taken. While a Notice of Appeal must be liberally construed, it is the Notice of Appeal that defines the scope of the appeal by identifying the particular judgment or order being appealed”].) Thus, Vavala’s “Amended” civil case information statement is insufficient to confer jurisdiction upon us to consider his contentions regarding the entry of default judgment against him, or the entry of judgment against him on his complaint.

Vavala argues the portion of the October 12, 2017 order striking his complaint and answer to Mandala’s cross-complaint “is appealable because it finally disposed of the action as to Appellant on his complaint against Respondents and his defense on Mandala’s cross-complaint . . . .” As authority, he cites Howe v. Key System Transit Co. (1926) 198 Cal. 525 (Howe) and Woman’s Athletic Club v. Anglo Cal. Nat. Bank (1949) 90 Cal. App. 2d 850. Neither case assists him.

In Howe, the plaintiffs in a train collision sued the two train companies involved, along with 40 Doe defendants, ten of whom allegedly “were in charge of and were negligent in the operation of” one of the trains. (Howe, supra, 198 Cal. at p. 527.) Four members of the train crew of one of the trains alleged themselves to be four of the ten Does, answered the complaint filed by the plaintiffs, then cross-complained against the other railroad company, alleging they, too, suffered injuries from the crash, and the crash was the fault of the other rail company. (Id. at pp. 527-528.) The trial court granted the plaintiffs’ motion to strike these cross-complaints and the four train crewmembers appealed. (Id. at p. 528.) The plaintiffs moved to dismiss the appeals, contending the orders striking the cross-complaints were not appealable. (Ibid.) The California Supreme Court found the orders appealable because “[b]y its action the trial court has, in effect, dismissed the appealing defendants from the actions in so far as they have a right to have their claims for affirmative relief determined therein and adjudicated by single judgments. In that regard the cases are ended as to them and they are no longer before the court. In effect, their dismissal is complete.” (Id. at p. 534.) The Court held it to be “wholly unreasonable” to require these potential cross-complainants to wait until a final judgment was entered in the underlying cases — to which they were no longer parties – before appealing the dismissal of their cross-complaints. (Ibid., italics omitted.)

Howe is distinguishable from the instant case, because when the court struck Vavala’s complaint, he was still a party to the action, and later proceedings would — and did — involve him, such as the entry of default judgment on Mandala’s cross-complaint on October 16, 2017, and the entry of judgment against Vavala on his complaint on December 7, 2017. Thus, while the order imposing monetary sanctions was appealable, the order striking Mandala’s complaint was not — appeal lay from the later judgments. (See Yandell v. Los Angeles (1931) 214 Cal. 234, 235-236 [Howe does not render order striking cross-complaint appealable because in Howe, “the cross-complaint was filed by several defendants against other defendants and the parties in the cross-action were of course not identical with those in the main action. The court held that as to the cross-complaining defendants the order was a final determination of their cause of action against the other defendants, and that it was severable from the judgment in the main action. In the instant case we have no such situation. Where the parties to both actions are the same, it cannot be said that such an order is a complete determination of the cause” (italics omitted)].)

Woman’s Athletic Club v. Anglo California Nat’l Bank, supra, 90 Cal.App.2d 850, on which Vavala also relies, is inapposite. There, the trial court granted a motion for judgment on the pleadings as to a cross-complaint brought by the defendant and entered a judgment to that effect. (Id. at p. 852.) The defendant and cross-complainant appealed from the judgment. (Ibid.) Nowhere did the Court of Appeal address whether the order granting the motion for judgment on the pleadings would have been appealable.

Citing rule 8.104(d)(1) of the California Rules of Court, Vavala argues “there is good cause for this court to exercise its discretion to save Appellant’s premature appeal because Appellant’s notice of appeal of October 18, 2017, was entered after the Default Judgment was rendered (October 16, 2017 . . .), but before the Notice of Entry of Judgment was entered (November 3, 2017 . . .).” Vavala misreads the rule of court. The rule states: “A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.014(d)(1), italics added.) By all accounts the default judgment was entered October 16, 2017, prior to Vavala’s filing his notice of appeal. Thus, rule 8.104(d)(1) is inapplicable.

In sum, while Vavala urges us to “save” his appeal by “construing the notice of appeal as an appeal from the underlying judgment,” he concedes we can do so only “so long as it is ‘reasonably clear’ that the appellant . . . was trying to appeal from the judgment . . . .” As explained above, it is not “reasonably clear” Vavala was trying to appeal from the underlying judgment; the reasonable conclusion is that Vavala sought to appeal the portion of the October 12, 2017 order imposing $50,000 in sanctions against him. Therefore, that is the only issue we have jurisdiction to consider.

E. The Court Did Not Abuse Its Discretion in Imposing $50,000 in Monetary Sanctions
F.
“We review the trial court’s order [imposing sanctions] under the abuse of discretion standard and resolve all evidentiary conflicts most favorably to the trial court’s ruling. We will reverse only if the trial court’s order was arbitrary, capricious, or whimsical. It is appellant’s burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court’s findings.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224; see also Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102 [“We review discovery orders for an abuse of discretion”].)

On October 12, 2017, the trial court found Vavala had committed “willful misuse[s] of discovery, willful violations of the court orders, and intentional and willful spoliation of key evidence.” It found Vavala “engaged in a pattern and practice of discovery abuse, and . . . misused the discovery process”; failed to meet and confer in good faith; “willfully disobeyed three court orders”; “willfully spoliated critical evidence in the case in disobedience to the court order that required him to produce such evidence to opposing parties”; “willfully failed [to] properly submit to his deposition, and when he did attend . . . he made evasive and argumentative responses, at times refused to answer legitimate questions, and he refused to allow the deposition to proceed . . . without dark sunglasses being worn . . . .”; and “willfully failed to produce responsive documents to opposing parties although those documents were in [his] possession, custody, or control, and although [he] knew the documents were subject to the court order to produce.” Out of the $112,670.03 the moving parties sought in monetary sanctions, the court awarded a total of $50,000 in favor of both Chaya and Mandala. As illustrated above, the record amply supports the award of monetary sanctions to compensate Chaya and Mandala for the fees and costs incurred as a result of Vavala’s misconduct.

Vavala does not argue Chaya and Mandala did not incur the requested fees and costs due to his discovery abuses. Nor does he argue the fees incurred were excessive, or the rates charged by opposing counsel were unreasonable. He makes only two arguments to advance his contention that the sanctions were unwarranted: (a) “there was no reason for [Chaya and Mandala] to incur unnecessary expenses and costs for [taking a non-appearance at] the July 7th deposition, because [Chaya’s counsel] Mr. Hart was advised way beforehand regarding Vavala’s inability to attend the deposition”; and (b) there was no need for the August 3, 2017 ex parte hearing because “Mr. Hart was again advised way beforehand [of] Vavala’s inability to attend the August 4th deposition, due to travel to Cuba, and Vavala requested for rescheduling of same, but once again Mr. Hart chose to file another ex parte just to request that [the] August 4 deposition be moved to another date, which could have been discussed and accomplished between attorneys.” We disagree.

First, it was not improper or unnecessary for Chaya and Mandala to take Vavala’s non-appearance on July 7 or to file an ex parte application on August 3. Chaya properly noticed Vavala’s deposition for July 7, having first obtained agreement from Vavala’s counsel for this date. Only three business days before the deposition was to occur, Vavala claimed to be unable to attend because he had scheduled an appointment that he could not move but failed to respond to requests to agree to another date. Nothing in the record demonstrates Chaya ever excused Vavala from attending the properly noticed deposition. In the absence of an agreement prior to July 7 for when a continued deposition would take place, it was reasonable for Chaya to insist the July 7 deposition go forward, and to obtain a certificate of non-appearance when Vavala failed to appear. Similarly, given Vavala’s previous shenanigans regarding deposition dates, including his refusal to appear at a court-ordered deposition date on August 4, 2017, because he was going on vacation, it was reasonable for Chaya and Mandala to request a court order for Vavala to appear on another day. Because the parties could not agree on the terms of a stipulation to obtain that order, it was reasonable for Chaya and Mandala to appear on an ex parte basis to seek it.

Moreover, Chaya and Mandala’s motion for sanctions also requested an award of fees and costs incurred for events other than the July 7 deposition or the August 3 ex parte hearing. For example, Chaya requested fees for the numerous meet-and-confer efforts its counsel was forced to undertake regarding the scheduling of Vavala’s deposition, as well as the court reporter fees incurred for the July 11 deposition (when Vavala refused to proceed because his counsel was not physically present) and the August 15 deposition (when Vavala claimed to be unable to proceed because he had a migraine). Mandala requested fees for the meet-and-confer efforts; preparing for and attending the aborted July 11 and August 15 depositions; drafting and serving the papers for the July 27 ex parte hearing and attending the hearing; and drafting the motion to dismiss as well as the motion for sanctions. In fact, the total amount of fees and costs requested was more than twice what the court awarded. Thus, even discounting the fees and costs incurred relating to the taking of his non-appearance on July 7, and the filing of an ex parte application on August 3, the other fees and costs — to which Vavala does not object — still exceed $50,000. We find no abuse of discretion in the court’s award of $50,000 in sanctions against Vavala.

DISPOSITION

The court’s order is affirmed. Respondent Mandala is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.