Tsang Wong Lim v. Grace Yim Yee Siou ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TSANG WONG LIM d/b/a TSANG NO. 70726-4-
WONG LIM & ASSOCIATES,
Respondent,
DIVISION ONE
v.
GRACE YIM YEE SIOU AND STEVIE
YANG HENG SIOU, husband and wife
and the marital community composed
thereof, UNPUBLISHED OPINION
Appellants. FILED: September 28, 2015
Lau, J. — Grace Yim Yee Siou appeals the default judgment entered
against her as a sanction for discovery violations. Because she fails to establish
any abuse of discretion in the trial court's rulings, we affirm.
FACTS
In March 2012, Tsang Wong Lim sued Grace Yim Yee Siou for damages
based on alleged fraud, intentional misrepresentation, fraudulent omissions, and
conversion during the course of Siou's employment as an administrative
No. 70726-4-1/2
assistant in Lim's insurance business. Siou appeared through counsel and filed
an answer responding to Lim's complaint and asserting affirmative defenses.
In September 2012, the trial court granted Lim's motion to compel Siou to
respond to interrogatories, but denied Lim's request for an award of expenses
based on a finding of "legitimate confusion between the parties" as to an
agreement on an extension of time. Clerk's Papers (CP) at 41-42. In November
2012, the court granted Lim's second motion to compel Siou to provide "full"
responses to the same interrogatories, and ordered her to pay Lim "$2033.75 for
costs/fees for having to file this discovery motion." CP at 116-17. In January
2013, the trial court again ordered Siou to provide full responses to the
interrogatories and to pay a sanction of $1796.25 within 10 days for "willfully and
intentionally failing to follow the court's order... to answer interrogatories." CP
at 204-05
In March 2013, the court denied Lim's motion for a default judgment and
sanctions for Siou's violation of discovery orders. However, the court 1) directed
Siou to provide complete interrogatory responses within 5 court days;
2) overruled all her prior objections to Lim's discovery requests; and 3) ordered
Siou to pay all fees and costs previously ordered within 5 court days. In May
2013, Lim again requested sanctions and a default judgment for Siou's violation
of discovery orders and her failure to appear at a deposition.
No. 70726-4-1/3
On June 7, 2013, the trial court granted Lim's motion for a default based
on Siou's violations of discovery orders.1 The court included written findings
describing the prior orders and reciting the following additional facts: Siou filed
supplemental responses in April "which a) reasserted her overruled objections
[and] b) again were incomplete and unresponsive on the same key inquiries;" did
not pay previously ordered sanctions; provided "evasive," "argumentative," and
"demonstrably inaccurate" responses to requests for admission in May; failed to
appear at a deposition; and made "frivolous and completely unfounded
allegations" against Lim's counsel and provided what appeared to the court to be
"fabricated alleged letters" to support her "false claims" and "accusations" against
counsel. Based on these facts, as well as the August 5 trial date and the
summary judgment motion scheduled for July 19, the court concluded:
[Tjhere is no lesser discovery sanctions than the default order the
plaintiff has again requested which would suffice in this case. Ms.
Siou has willfully and deliberately violated not one, but four
discovery orders. She has, for nearly a year now, willfully and
deliberately refused to answer interrogatories on issues central to
this case. She has not been deterred by sanction orders - she
simply has ignored them. (She has not, it appears, ever made any
payment on sanctions ordered to date.) She has willfully and
deliberately failed to appear for her deposition.
It is impossible to see how plaintiff can prepare for trial against Ms.
Siou, given her ongoing refusal to provide essential discovery and
her deliberate failure to attend her deposition. Barely two months
remain before the trial date and she has steadfastly denied critical
discovery to plaintiff, undeterred by any other order or sanction this
1Although Siou attached a copy of each order she challenges to her
notice of appeal, the parties did not designate two of the orders for the record on
appeal. Because neither party appears to object to our considering the copies of
the order granting default and the order denying reconsideration attached to the
notice of appeal, and because they are the only copies before this court, we refer
to those copies.
No. 70726-4-1/4
court can impose. At this point, the prejudice to plaintiff simply
cannot be remedied by any lesser sanction.
Order Granting Default at 4.
On July 1, 2013, the trial court entered judgment against Siou for
$69,850.48. On July 24, the court denied Siou's motion for reconsideration as
untimely.2
Siou appeals.
DISCUSSION
We review a trial court's ruling on sanctions for discovery violations for
abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors,
145 Wash. 2d 674, 684, 41 P.3d 1175 (2002) (trial court has broad discretion in
choice of sanctions for discovery order violation). A trial court abuses its
discretion only if its decision is manifestly unreasonable or exercised on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79
Wash. 2d 12, 26, 482 P.2d 775 (1971).
Washington's civil rules permit broad discovery. Maqana v. Hyundai
Motor America, 167 Wash. 2d 570, 584, 220 P.3d 191 (2009). Parties may not
simply ignore or fail to respond to discovery requests—they must answer, object,
or seek a protective order. CR 37(d);3 Maqana, 167 Wash. 2d at 583. "Trial courts
need not tolerate deliberate and willful discovery abuse." Maqana, 167 Wash. 2d at
2 Although Siou assigns error to the trial court's order denying
reconsideration, she offers no separate argument in support of her assignment.
We therefore do not address it. See RAP 10.3(a)(4), (6).
3 "The failure to act described in this subsection may not be excused on
the ground that discovery sought is objectionable unless the party failing to act
has applied for a protective order as provided by rule 26(c)." CR 37(d)(3).
No. 70726-4-1/5
576. If a party fails to comply with a motion to compel discovery, trial courts may
impose sanctions under CR 37.
Before imposing "one of the harsher remedies" under CR 37,4 the trial
court must explicitly consider on the record whether (1) the refusal to obey the
discovery order was willful or deliberate, (2) the party's actions substantially
prejudiced the opponent's ability to prepare for trial, and (3) a lesser sanction
would have sufficed. Burnet v. Spokane Ambulance. 131 Wash. 2d 484, 494, 933
P.2d 1036 (1997) (quoting Snediqar v. Hodderson, 53 Wash. App. 476, 487, 768
P.2d 1 (1989)); Maqana. 167 Wash. 2d at 584; Rivers, 145 Wash. 2d at 686. The trial
court's reasoning with respect to each factor must be clearly stated for
meaningful review. Rivers. 145 Wash. 2d at 686. We review challenged findings of
fact for substantial evidence, which is evidence "sufficient to persuade a rational,
fair-minded person of the truth of the finding." In re Estate of Jones. 152 Wash. 2d 1,
8, 93 P.3d 147 (2004). We generally will not consider claims unsupported by
citation to authority, references to the record, or meaningful analysis. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Boslev, 118 Wash. 2d 801, 809, 828
P.2d 549 (1992); Saunders v. Lloyd's of London. 113 Wash. 2d 330, 345, 779 P.2d
249 (1989).
4When a party fails to comply with a court order, CR 37(b)(2)(C)
authorizes the trial court to impose sanctions, including default judgment:
"[T]he court in which the action is pending may make such orders in
regard to the failure as are just, and among others the following:
"(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceedings or any part thereof, or rendering a judgment
by default against the disobedient party."
No. 70726-4-1/6
Willful or Deliberate
Without assigning error to the trial court's findings of fact and without
citation to authority, Siou argues that her discovery violations "do not merit a
default judgment" because she "was hampered in compliance" by her family
responsibilities, financial troubles, criminal record, inability to obtain counsel, and
language barrier. Br. of Appellant at 17. But the record reveals that Siou was
represented by counsel when the trial court entered the first two orders directing
full responses to interrogatories and imposing the first monetary sanction.5
Siou also claims that when Lim "noted [her] deposition without
consultation and on short notice," she communicated in "good faith" through her
attorney, "informing Lim's counsel that she could not make that deposition time."
Br. of Appellant at 18. Siou claims that her failure to appear was based on her
understanding that the deposition would be rescheduled, rather than bad faith.
But the trial court specifically rejected Siou's claims regarding the scheduling of
the deposition as apparently "false." Order Granting Default at 4. We do not
review credibility determinations. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d
850(1990).
The trial court found that Siou failed to comply with four discovery orders,
refused to fully answer interrogatories before and after the court overruled her
objections, provided evasive and inaccurate responses to requests for admission,
failed to appear for her deposition, made false allegations against Lim's counsel
regarding discovery, and failed to pay previously imposed sanctions. It is
5 The attorney who initially appeared for Siou and filed her answer
withdrew from the case in December 2012.
No. 70726-4-1/7
undisputed that by the time the court granted the default judgment, Siou had
never (1) complied with the court's discovery orders, (2) submitted to her
deposition, or (3) obtained a protective order. The record clearly supports the
trial court's conclusion that Siou willfully and deliberately refused to submit to her
deposition or comply with discovery orders intended to compel compliance.
Prejudice
Relying on affirmative defenses asserted in her answer, including standing
and the statute of limitations, Siou argues that her failure to fully respond to
discovery could not have prejudiced Lim's ability to prepare for trial because Lim
was already in possession of all evidence relevant to her single viable claim
regarding commissions Lim shared with Siou during her employment. But Siou
did not seek or obtain a ruling on her affirmative defenses before the entry of the
default judgment. And she fails to identify any authority requiring the trial court to
consider the merits of her affirmative defenses when determining prejudice in this
context.
In her complaint, Lim alleged that Siou fraudulently misrepresented her
qualifications to share in commissions, terminated the services of a payroll
company without authorization or notice to Lim, and embezzled funds from Lim's
business. She also alleged that Siou had stolen payroll and employment records
when Lim terminated her employment. In her motions to compel discovery and
for sanctions, Lim provided examples of Siou's limited and evasive answers to
detailed interrogatories designed to reveal evidence relevant to these allegations,
as well as potential witnesses. Substantial evidence supports the trial court's
No. 70726-4-1/8
finding that it was impossible for Lim to prepare for trial when Siou failed to
answer such interrogatories or appear for her deposition. Thus, the trial court
properly concluded that Siou's discovery violations substantially prejudiced Lim's
ability to prepare for trial.
Consideration of Lesser Sanction
Siou does not contend that the trial court failed to explicitly consider lesser
sanctions. Indeed, the record reflects that after imposing monetary sanctions
twice, the trial court denied Lim's first motion for default and ordered immediate
compliance. It was not until Siou "ignored" four orders, reasserted overruled
objections, made apparently false allegations against Lim's attorney, and failed to
appear for her deposition that the trial court found that no lesser sanction would
suffice. Substantial evidence supports the court's finding. By the time the trial
court granted the default, Siou had demonstrated that she would not comply with
the court's discovery orders. There was no reason to believe that less harsh
sanctions would result in compliance.
In sum, Siou fails to demonstrate any abuse of discretion in the trial
court's order granting Lim's motion for default. Cf., Maqana, 167 Wash. 2d at 576.
(Affirming trial court's decision to strike pleadings and enter $8 million default
judgment against defendant in personal injury action based on findings of willful
and deliberate discovery violations resulting in substantial prejudice to plaintiff's
preparation for trial such that lesser sanctions would not suffice).
No. 70726-4-1/9
Default Judgment
Without citation to authority or identification of the applicable standard of
review, Siou next challenges the amount of the default judgment, claiming it is
incorrect and inequitable.
After entry of default, the defaulting party is deemed to have admitted the
allegations of the complaint as to liability. Kave v. Lowe's HIW, Inc.. 158 Wn.
App. 320, 326, 242 P.3d 27 (2010). Whether default judgment will be granted is
within the trial court's discretion and dependent on the circumstances. Kaye, 158
Wash. App. at 326-27. CR 55(b)(1) allows the trial court to enter a default
judgment without findings of fact ifthe claim is for a sum certain. The rule
anticipates a motion for a default judgment accompanied by an affidavit of the
amount due.
In support of her motion citing CR 55(b)(1) and seeking a default judgment
in the amount of $68,504.23, Lim provided an affidavit describing the total
amount of commissions paid to Siou based on her misrepresentations regarding
the status of her licenses between 2004 and 2008. In her affidavit, Lim refers to
a summary of the commissions and handwritten payroll calculations sheets.6
Siou does not argue that the handwritten payroll sheets submitted by Lim
do not accurately reflect the total amount of commissions she received between
2004 and 2008. Instead, Siou contends that Lim 1) miscalculated the number of
6 In her reply brief, Siou argues for the first time that CR 55(b)(2) required
the trial court to conduct a separate evidentiary hearing on the amount of the
judgment because Lim did not request a sum certain, Siou disputed the amount,
and Lim's affidavit was "false." An issue "raised and argued for the first time in a
reply brief is too late to warrant consideration." Cowiche Canyon. 118 Wash. 2d at
809.
No. 70726-4-1/10
commissions requiring a valid license; 2) misstated the dates Siou lacked a valid
license; and 3) failed to reduce her claim by the amount of restitution ordered in
Siou's criminal case. But Lim alleged in her complaint that she paid Siou
commissions between July 2004 and December 2008 based on Siou's
representations and omissions regarding the validity of her licenses. After entry
of the default order, these allegations are deemed admitted. Siou fails to identify
or establish any abuse of discretion in the trial court's acceptance of Lim's sworn
affidavit to establish the amount due. Siou also fails to identify any authority
requiring reduction of the judgment amount based on a restitution order in a
separate criminal proceeding.
We affirm.
WE CONCUR:
\*.AIK*&^
ffi -v
cc
CD -:';,
10