¶62 (dissenting) — The majority holds that the evidence does not support the trial court’s finding that Jesse Magana was prejudiced by Hyundai’s discovery violations in his ability to prepare for trial. Majority at 515. And therefore, the majority does not examine the appropriateness of the sanction. But I would agree not only that Hyundai’s discovery violations were willful, but also that Hyundai’s discovery violations were prejudicial and that the default judgment was an appropriate sanction. Because I would affirm the default judgment, I respectfully disagree with the majority.30
¶63 I nevertheless agree with the majority that the record must show three things: (1) the willfulness of the discovery violation; (2) the prejudice to the opposing party’s ability to prepare for trial; and (3) whether a lesser sanction would have sufficed. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494-95, 933 P.2d 1036 (1997); Snedigar v. Hoddersen, 114 Wn.2d 153, 169, 786 P.2d 781 (1990); Smith v. Behr Process Corp., 113 Wn. App. 306, 325, 54 P.3d 665 (2002). And I agree with the majority that we should not disturb the trial court’s decision absent a clear abuse of discretion. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006); Burnet, 131 Wn.2d at 494.
¶64 But an abuse of discretion occurs only when a decision is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558, review denied, 87 Wn.2d 1006 (1976). The trial court’s decision rests on “untenable grounds” or is based on “untenable reasons” if the trial court relies on *525unsupported facts or applies the wrong legal standard.31 State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). The trial court’s decision is “manifestly unreasonable” if “the court, despite applying the correct legal standard to the supported facts, adopts a view ‘that no reasonable person would take.’ ” Rohrich, 149 Wn.2d at 654 (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)).
¶65 Here, where the trial court has weighed the evidence, our review is limited to examining whether the trial court’s decision rests on tenable grounds, i.e., whether substantial evidence supports the findings of fact.32 Holland v. Boeing Co., 90 Wn.2d 384, 390, 583 P.2d 621 (1978); see Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 545 P.2d 1193 (1976). “Substantial evidence” is a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the declared premise. Holland, 90 Wn.2d at 390-91. Finally, and most importantly, we should not substitute our judgment for that of the trial court. Seattle-First Nat’l Bank v. Brommers, 89 Wn.2d 190, 199, 570 P.2d 1035 (1977).
¶66 Thus, I disagree with the majority’s conclusion that there is insufficient evidence to support the trial court’s findings of fact that Hyundai’s willful discovery violations prejudiced Magana’s ability to prepare for trial.
¶67 The majority faults Magana for requesting that Hyundai update its original discovery responses five months after our mandate issued and only four months before the scheduled trial date. Majority at 516. While neither I nor the majority know why Magana took this action when he did, we do know that he took this action only after finding a similar-looking recliner mechanism from *526another Hyundai vehicle. CP at 4032-33. In fact, Magana notified Hyundai Motor America (HMA) that
Interrogatory No. 12 seeks identification of Hyundai vehicles that use the same or substantially similar seat as the 1996 Hyundai. The response is that no other vehicles use a seat that is substantially similar. We have a recliner mechanism from another Hyundai vehicle that looks identical. It appears therefore that HMA’s response was not accurate. Please check and update as necessary.
[Request for Production] no. 20 seeks documents relating to incidents of alleged seat back failure on Hyundai products. The response that I have is now more than 5 years old. Moreover, it is limited to the 1995-1996 Accent. For purposes of discovery, it should not be so limited, especially since it is clear that other Hyundai vehicles used the same recliner mechanism. Please check and update or amend the response as necessary.
CP at 4032 (emphasis added). And Magana’s counsel notified Hyundai Motor Company (HMC) that
Interrogatory No. 11 seeks identification of Hyundai vehicles that use the same or substantially similar seat as the 1996 Hyundai. The response is that no other vehicles use a seat that is substantially similar. We have a recliner mechanism from another Hyundai vehicle that looks identical. HMC’s response is not accurate. Please check.
[Request for Production] No. 20 seeks documents relating to incidents of alleged seat back failure on Hyundai products. The response that I have is now more than 5 years old. Moreover, it is limited to the 1995-1996 Accent. For purposes of discovery, it should not be so limited, especially since it is clear that other Hyundai vehicles used the same recliner mechanism. Please check and update or amend the response as necessary.
CP at 4033 (emphasis added).
¶68 Ultimately, in response to Magana’s requests, Hyundai produced two documents relating to claims of alleged seat back failure: (1) a 2002 complaint, filed in California, in which plaintiffs claimed that they were in*527jured in part by an allegedly defective 1999 Hyundai33 front passenger seat and (2) a 2000 notice of claim letter, in which an attorney notified Hyundai that his client, a rear seat passenger in a 1985 Hyundai Excel,34 was injured by an allegedly defective driver’s seat. CP at 4054-60. These documents are summarized as follows:
Date [35] Name Model Year Model
09/08/2000 Dowling 1995 Elantra
07/24/2002 Bobbitt 1999 Accent
¶69 But clearly, Hyundai’s responses and answers to Magana’s discovery requests were misleading, evasive, and incomplete. After all, in response to the trial court’s order, Hyundai then produced numerous other documents relating to legal claims and consumer complaints. CP at 1027, 2354; Ex. 48. These documents are summarized as follows:
Date Name Model Year Model
12/04/1987 Contini 1987 Excel
04/25/1988 Hogle 1988 Excel
05/04/1988 Mak 1987 Excel
12/05/1988 Reed 1987 Excel
06/03/1992 McElligatt 1990 Sonata
08/04/1992 Gowanny 1986 Excel
10/27/1993 Hams 1987 Excel
04/23/1994 Stewart 1989 Excel
04/25/1994 Zhang Ni 1988 Excel
04/28/1994 Guy 1990 Excel
05/19/1994 Vincent 1988 Excel
10/07/1995 Schiller 1989 Excel
11/08/1995 Enriquez 1989 Sonata
11/09/1995 Nunez 1992 Excel
11/21/1995 Miller 1989 Excel
*528Date Name Model Year Model
12/18/1995 DeJesus 1994 Excel
06/03/1996 Chittick 1994 Excel
10/31/1996 Holcomb 1992 Excel
12/16/1996 Cain 1993 Scoupe
07/10/1997 Randall 1993 Sonata
09/04/1997 Salizar[36] 1995 Accent
02/06/1998 Martinez 1995 Accent
03/09/1998 McQuary 1997 Accent
05/04/1999 Trudeau 1993 Sonata
04/29/2000 Urice 1994 Elantra
09/01/2000 Wagner 1999 Accent
12/18/2001 Pockrus 1999 Accent
01/19/2002 Powell 1999 Accent
12/10/2002 McKinney 1998 Sonata
06/28/2002 Whittiker 1996 Accent
04/16/2003 McDaniel 2000 Elantra
09/23/2003 Ironside 2000 Elantra
01/08/2004 Sanchez 2000 Elantra
06/09/2004 Harper 1999 Accent
CP at 2354; Ex. 48.
¶70 Thus, the fault should lie with Hyundai, not Magana. Under CR 26(e)(2), Hyundai had the duty to fully disclose its documents. See Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 462, 105 P.3d 378 (2005); Seals v. Seals, 22 Wn. App. 652, 654, 590 P.2d 1301 (1979). After all, CR 26(e)(2)(A) requires a party who obtains information that a discovery response was incorrect when made to amend the response to reflect the correction. Thompson, 153 Wn.2d at 462; Seals, 22 Wn. App. at 654. And CR 26(e)(2)(B) requires a party who obtains information that a discovery response is no longer true to amend the response to reflect the truth. Thompson, 153 Wn.2d at 462; Seals, 22 Wn. App. at 654. Finally, under CR 26(e)(2)(B), “a failure to amend the response [may be] in substance a knowing concealment.”
*529¶71 And if a party disagrees with the scope of production, or wishes not to respond, it must move for a protective order. Johnson v. Mermis, 91 Wn. App. 127, 133, 955 P.2d 826 (1998). It cannot withhold discoverable materials. Wash. State Physicians Inc. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 354, 858 P.2d 1054 (1993); Johnson, 91 Wn. App. at 133. A party’s failure to comply with these rules may not be excused on grounds that the discovery sought is objectionable. CR 37(d); see also Johnson, 91 Wn. App. at 133-34. Under CR 37(a)(3), “an evasive or incomplete answer is to be treated as a failure to answer.” (Emphasis added.) And under CR 37(d), “an evasive or misleading answer is to be treated as a failure to answer.” (Emphasis added.)
¶72 Here, Hyundai never supplemented its responses, even though they were either incorrect when made or no longer true. And while the majority questions Magana’s motives for requesting that Hyundai update its original discovery responses five months after our mandate issued and only four months before the scheduled trial date, majority at 516, our Supreme Court has stated the following rule:
[WJhere a party to an action, in clear and unambiguous terms under oath, asserts the existence or nonexistence of a fact whereof such party has knowledge, or in the ordinary course of affairs would be expected to have knowledge, the adverse party may rely on such statements and, in the exercise of reasonable diligence, is not required to look behind the statements.
Kurtz v. Fels, 63 Wn.2d 871, 875, 389 P.2d 659 (1964); see also Seals, 22 Wn. App. at 656. Thus, we can hardly fault Magana for relying on Hyundai’s unambiguous, albeit evasive and/or incomplete, responses from 2000 until 2005. The majority claims, “It was Magana’s choice to pursue additional discovery shortly before trial.” Majority at 519. But it was Hyundai’s responsibility to timely answer and supplement its discovery answers. See Gammon v. Clark Equip. Co., 38 Wn. App. 274, 282, 686 P.2d 1102 (1984), aff’d, 104 Wn.2d 613, 707 P.2d 685 (1985). If Hyundai had fulfilled its *530responsibilities and duties under CR 26 and CR 37, even after our remand, the majority would not be questioning Magana’s actions.
¶73 But in determining whether Magana was prejudiced by Hyundai’s actions, the majority once again questions Magana’s actions, stating, “[W]e must take into account the plaintiff’s choice of strategy in pursuing the case.... It was Magana’s choice to pursue additional discovery shortly before trial. ... [I] t is unclear why he requested additional evidence if the time required to investigate would have substantially prejudiced his case.” Majority at 518-19 (footnote omitted).
¶74 And again, the majority faults Magana when it should fault Hyundai. Hyundai failed to disclose its documents before the second trial. Hyundai failed to disclose its documents after Magana requested it to do so. And, even after the trial court’s order, Hyundai failed to timely and fully disclose its documents.37 CP at 1027, 2354; Ex. 48.
¶75 Nevertheless, the majority still notes, “Hyundai complied with the trial court’s order to compel production.” Majority at 517 n.19. And the majority seems to imply that absent a failure to comply with a trial court’s discovery order, sanctions against Hyundai are inappropriate. Majority at 517 n.19. But I note that Washington law holds otherwise.
¶76 A discovery order as provided in CR 37(a) and (b) is not necessarily a prerequisite to enforcement of the sanctions in CR 37(d). See Pamelin Indus., Inc. v. Sheen-U.S.A., Inc., 95 Wn.2d 398, 401, 622 P.2d 1270 (1981). Our Supreme Court has summarized CR 37 as follows:
Thus, it can be seen the rule provides two alternative sources of authority for granting sanctions under CR 37(b)(2). They are: (1) failure of a party to comply with an order entered pursuant to CR 37(a); and (2) failure of a party to respond to a request for discovery under CR 33 or CR 34.
*531Pamelin, 95 Wn.2d at 401; see also Charter House Ins. Brokers, Ltd. v. N.H. Ins. Co., 667 F.2d 600, 604 (7th Cir. 1981) (under Fed. R. Civ. P. 37(d), the court may impose sanctions directly, without first issuing an order to compel discovery); Robison v. Transamerica Ins. Co., 368 F.2d 37, 39 (10th Cir. 1966) (it is generally agreed that Fed R. Civ. P. 37(d) permits an immediate sanction against parties for their willful failure to respond to discovery requests).
¶77 While fair and reasoned resistance to discovery is not sanctionable, it is the misleading nature of Hyundai’s responses that is contrary to the purposes of discovery and most damaging to the fairness of the litigation process. See Fisons, 122 Wn.2d at 346. And requiring Magana to disrupt his trial presentation to accommodate Hyundai would reward noncompliance. Gammon, 38 Wn. App. at 282.
¶78 In fact, in support of his motion for a default judgment, Magana argued:
Obviously plaintiffs in this case have little time to develop the evidence that has been supplied to them just weeks before trial. There is little chance to obtain the available information from the injured people or from their attorneys. There is little time for experts in this case to do a thorough review of the accidents produced to date or data assembled by plaintiff’s attorneys. There is no time to note up depositions of the injured parties. Indeed, the discovery cutoff in this case has already run—and ran just days after the initial documents were produced to plaintiff. All of this puts plaintiff at a serious and perhaps insurmountable disadvantage.
CP at 2335.
¶79 This case is not one where Hyundai’s evasive and/or incomplete answers affected only one or two issues on remand. On remand, the sole issue was whether Hyundai was liable for the allegedly defective occupant restraint system. Magana v. Hyundai Motor Am., 123 Wn. App. 306, 319, 94 P.3d 987 (2004). Thus, Magana’s trial preparation necessarily centered around investigating the requested *532documents.38 And many factors in this case support the trial court’s finding that Magana was prejudiced by Hyundai’s actions. These factors include (1) the evasive and/or incomplete nature of Hyundai’s answers to Magana’s discovery requests; (2) the proximity of the trial date and the effect Hyundai’s answers would have on Magana’s claims and Hyundai’s defenses; (3) the requested documents were primarily within Hyundai’s knowledge and control; (4) the nature of the action, i.e., simply whether Hyundai was liable for the allegedly defective occupant restraint system; and (5) the materiality of these documents to Magana’s proper preparation for trial. See, e.g., Associated Mortgage Investors, 15 Wn. App. at 229-30.39 In other words, Hyundai’s actions prevented Magana from timely discovering essential facts and evidence pertaining to the litigation. See, e.g., Associated Mortgage Investors, 15 Wn. App. at 230.
¶80 Hyundai even suggests that “there is a very good chance that most—perhaps all—of the OSI’s (other similar incidents) at issue would not be admissible at trial.” Br. of Appellant at 79. While Hyundai focuses on whether its discovery violations were material, i.e., would probably change the result of the trial, the trial court properly focused on whether Hyundai’s discovery violations “substantially prejudiced the opponent’s ability to prepare for trial.” Burnet, 131 Wn.2d at 494; Roberson v. Perez, 123 Wn. App. 320, 336, 96 P.3d 420 (2004), review denied, 155 Wn.2d 1002 (2005).
¶81 It may very well be that timely and complete answers to Magana’s interrogatories and requests for production would have made no difference. And it may very well be that effective investigation would have made no difference. *533But that is not for us to decide.40 See Gammon, 38 Wn. App. at 282.
¶82 In Behr, a case in which we found that the trial court properly entered a default judgment against a defendant for failing to disclose documents and information, we quoted with approval the trial court’s explanation for finding that the plaintiffs were prejudiced:
“I conclude that the discovery violations complained of suppressed evidence that was relevant, because it goes to the heart of the plaintiffs’ claims, and it supports them. It’s relevant in that it goes to the heart of the defenses raised by Behr, because it undermines them. The discovery violations here prevented the plaintiffs from doing what the law really allows them to do, and that’s to follow up on leads from developed facts. They were off in one direction when they should have been working in another, and the only reason is they didn’t know that the other existed.
“The evidence that has been discovered and the implications from that evidence that has been discovered in the last week or so is highly important. As I said, it bolsters the plaintiffs’ case, it undermines positions that the defendant has taken, it suggests that the plaintiffs’ problems may have a more particular cause, ... it casts doubt on the discovery that has gone on before, it affects the work that the experts have done, at least the plaintiffs’ experts.
“. . . Perhaps nothing in the discovery of this case is as important as what was not disclosed.”
*534Behr, 113 Wn. App. at 325-26 (first and third alterations in original) (quoting Report of Proceedings (May 15, 2000) at 3, 5).
¶83 Here, I would similarly conclude that Hyundai’s actions suppressed documents and information that were relevant, as they go to the heart of the issue on remand, i.e., whether Hyundai was liable for the allegedly defective occupant restraint system. Hyundai’s actions have prevented Magana from “ ‘doing what the law really allows [him] to do, and that’s to follow up on leads from developed facts.’ ” Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). Magana was “ ‘off in one direction when [he] should have been working in another [direction].’” Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). The documents potentially bolster Magana’s case while potentially undermining Hyundai’s case. “ ‘[They] cast[ ] doubt on the discovery that has gone on before.’ ” Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). And, given the number of documents that were suppressed, “ ‘[p]erhaps nothing in the discovery of this case is as important as what was not [initially] disclosed.’ ” Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). Finally, even if Magana were able to begin an investigation into these documents, it still does not alleviate the prejudice that Hyundai caused by withholding information that was relevant to Magana’s theory of causation.41 See Behr, 113 Wn. App. at 326.
¶84 Nevertheless, the majority concludes that “further investigation is likely to assist in resolving the merits of Magana’s case.” Majority at 519. Thus, the majority faults the trial court for imposing a default judgment, suggesting *535that it should have imposed a continuance. Majority at 519-20. Essentially, the majority questions the trial court’s discretion in imposing a default judgment.
¶85 But the question, of course, is not whether we would have dismissed the action; it is whether the trial court abused its discretion in so doing. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976). It is proper to leave that determination to the trial court because it has “ ‘tasted the flavor’ ” of the litigation and is in the best position to make that determination.42 Burnet, 131 Wn.2d at 509 (Talmadge, J., dissenting) (internal quotation marks omitted) (quoting Watson v. Maier, 64 Wn. App. 889, 896, 827 P.2d 311, review denied, 120 Wn.2d 1015 (1992)). And in making that determination, the trial court should consider whether the requested documents go to a dispositive issue in the case and whether the party seeking discovery may be protected by imposition of a sanction short of dismissal. See Vickers v. City of Kansas City, 216 Kan. 84, 93, 531 P.2d 113 (1975).
¶86 While the trial court should impose the least severe sanction sufficient to serve the purpose of the particular sanction, Burnet, 131 Wn.2d at 494, 497-98, we should not require the trial court to sequentially impose lesser sanctions before imposing the ultimate sanction of dismissal. See Mallard’s Pointe Condo. Ass’n v. L&L Investors Group, LLC, 859 N.E.2d 360, 364 (Ind. Ct. App. 2006). Instead, the sanction simply should be proportional to the nature of the discovery violation and the surrounding circumstances. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 695, 41 P.3d 1175 (2002). “[Burnet] establishes a gauge for determining disproportionate sanctions.” Rivers, 145 Wn.2d at 695.
*536¶87 Here, the trial court noted that a continuance would be unfair to Magana and would not punish Hyundai. CP at 5333. The trial court explained:
69. Continuance. The second possible sanction, which was the sole sanction proposed by defendants, is a continuance. Sanctions for discovery violations are not intended to reward the party who has committed the violations. Defendant Hyundai has sought a continuance in this case previously, which has been denied by the Court. The motion for a continuance would not remedy the staleness of the evidence in question; it would not remedy the difficulty of the Court in addressing these issues; it would involve further substantial costs to the parties in terms of analyzing the evidence with respect to their experts; it would involve substantial duplication of effort which . . . previously had been done in preparation and re-preparation for this trial. A continuance would only exacerbate that situation. It would not benefit the plaintiff, it would benefit the defendant. Therefore, a continuance is not an appropriate remedy.
CP at 5333.
¶88 Certainly, there is “a clear record of delay or contumacious conduct” by Hyundai. Durham v. Fla. E. Coast Ry., 385 F.2d 366, 368 (5th Cir. 1967). After all, the facts show that Hyundai’s noncompliance was due to its callous disregard for Magana’s discovery requests, not due to its inability to comply. And I agree with the trial court that granting a continuance is not an appropriate remedy.
¶89 Here, a continuance places the burden on Magana, the innocent party, who must prepare again for a lengthy trial. See Lampard v. Roth, 38 Wn. App. 198, 201, 684 P.2d 1353 (1984). “Such preparation is costly to the parties, risks the loss of much of the original trial preparation, and burdens the other litigants on the court’s trial calendar.” Lampard, 38 Wn. App. at 201. Thus, a continuance that would allow Magana to investigate the documents and information would hardly be a satisfactory resolution of the problem. Lampard, 38 Wn. App. at 201; see also Behr, 113 Wn. App. at 329-30.
*537¶90 Moreover, a continuance effectively rewards Hyundai’s noncompliance by allowing it a further opportunity to investigate the documents and refine its own trial strategy.43 But such a result would go against the very purposes of discovery sanctions. As our Supreme Court stated in Fisons, “The purposes of sanctions orders are to deter, to punish, to compensate and to educate.” Fisons, 122 Wn.2d at 356. “The sanction should insure that the wrongdoer does not profit from the wrong.” Fisons, 122 Wn.2d at 356. And “[i]n fashioning an appropriate sanction, the trial judge must of necessity determine priorities in light of the deterrent, punitive, compensatory, and educational aspects of sanctions as required by the particular circumstances.” Miller v. Badgley, 51 Wn. App. 285, 303, 753 P.2d 530 (emphasis added), review denied, 111 Wn.2d 1007 (1988).
¶91 Clearly, given the particular circumstances in this case, the trial court determined that a continuance would not deter, punish, or educate Hyundai.44 CP at 5333. And the trial court’s decision is fully supported by the record. Therefore, because “[Resolution of these matters lies within the informed discretion of the trial court,” Miller, 51 Wn. App. at 304, we should not disturb the tRal court’s decision. See Associated Mortgage Investors, 15 Wn. App. at 229.
¶92 Moreover, the trial court also considered imposing other lesser sanctions; but ultimately, it rejected each in favor of a default judgment. CP at 5332-35. The trial court explained, as follows, why it did not impose a financial sanction:
*53867. Monetary Fine. A monetary fine is a sanction considered by this Court. It would in some sense address the costs that have been incurred in connection with these proceedings regarding discovery violations and could serve the purposes of punishment and the other purposes of sanctions. It is very difficult to know what monetary amount would be appropriate in such case. Hyundai is a multi-billion dollar corporation. This is documented in Exhibit 23 to Peter O’Neil’s declaration.
68. A monetary sanction would not in any way address the prejudice to the plaintiff or to the judicial system. Much of the OSI seat back failure evidence is irretrievable at this point, and there is no way that it can be adequately addressed by either the experts or by the Court or by a jury if it were to review it. A monetary fine would do nothing to serve the search for truth and justice, which is the purpose of this Court. The Court rejects this as an adequate sanction.
CP at 5332-33. Essentially, the trial court found that a monetary fine would not rectify Hyundai’s wrong; instead, it would simply set a price on it.45
¶93 And we have agreed that a financial sanction may not always be a sufficient sanction, considering the nature of the discovery violation and the surrounding circumstances. In Behr, we relied on the trial court’s explanation that a financial sanction “ ‘punishes the defendant to some extent, but it doesn’t determine the plaintiffs’ damages. It doesn’t do anything to resolve the reason the plaintiffs came to court in the first place.’ ” Behr, 113 Wn. App. at 329 (quoting Report of Proceedings (May 15, 2000) at 23); see also Gammon, 38 Wn. App. at 282 (“Far from insuring that a wrongdoer not profit from his wrong, minimal terms *539would simply encourage litigants to embrace tactics of evasion and delay.”).46
¶94 The trial court also explained, as follows, why it did not impose other sanctions:
70. Other Sanctions Short of Default. There are cases in which a number of other sanctions have been appropriate to the particular facts of the case. The Court ultimately determined that neither party was suggesting that other remedies would be particularly appropriate or workable in this case. . . . There are no counterclaims in this case and many issues, such as the allegation of contributory fault by plaintiff, were already decided and affirmed by the Court of Appeals. The Court has analyzed whether it might be appropriate to admit into evidence the OSIs in some manner or to admit some of them. Proceeding to trial as scheduled would be highly prejudiced by the admission of some or all of the evidence which has now been disclosed. It would be difficult to discuss this evidence. Plaintiff has not had the time to develop it; it cannot be developed as to many of the facts and circumstances involved in OSIs of seat back failures. Hyundai has asserted the defendant should have the opportunity to challenge those OSIs, to conduct discovery and, at the very least, to examine the facts of those OSIs, and to address this newly disclosed information. Ultimately both plaintiffs and defendants agreed that admitting OSI evidence without examination or challenge would not be a workable or appropriate remedy in this case. ... It is therefore not an adequate or workable sanction.
CP at 5333-34.
¶95 Again, I agree with the trial court that these other sanctions are not an appropriate remedy.47 At the evidentiary hearing, Magana’s counsel dismissed the feasibility of simply admitting into evidence all or some of the *540OSIs, arguing that “[the] experts do not have adequate time to prepare and analyze and testify about these OSIs. They come in, sure, but then what? An expert can’t really analyze them in relationship to the accident in this case, doesn’t have time.” RP (Jan. 19, 2006) at 41. Magana’s counsel continued, “Only Hyundai’s version of events is available.” RP (Jan. 19, 2006) at 41. Finally, Magana’s counsel emphasized, “So, these only show Hyundai’s version of events, essentially are their Hyundai documents, not documents we could independently obtain. That’s not going to be available to this jury, even if you tell them these facts are established.” RP (Jan. 19, 2006) at 42.
¶96 And even Hyundai’s counsel argued against simply admitting into evidence all or some of the OSIs. RP (Jan. 19, 2006) at 87-88, 92. Hyundai’s counsel argued, “Let’s take this again. All OSIs go into evidence? All OSIs? Were there Rule 403 risks involved here? You’re willing to let all of these in,... where they make no attempt to demonstrate— and we didn’t hide these facts from them about, you know, engineering facts.” RP (Jan. 19, 2006) at 87. Hyundai’s counsel continued:
Let’s take their theory of the gold standard seriously. If this is the gold standard, you guarantee an unfair trial. You guarantee it. The risk of confusion isn’t a risk any more. It’s guaranteed. I don’t see how they can be managed. .. . We don’t get to challenge foundation or anything else.
If that can’t work, they say no defense cross-examination argument or ability to contradict OSI evidence or seat back test evidence. And they say the Court is to instruct the jury that Hyundai violated its discovery obligations by withholding OSI documents? Stop. What has that got to do with the gold standard?
RP (Jan. 19, 2006) at 87-88. Finally, Hyundai’s counsel clearly stated, “I think admitting this massive OSI evidence is a guarantee that the problems under Evidence Rule 403 are going to occur. It’s tantamount to a default, Your Honor. Admitting all the OSI evidence is tantamount to a default. We might as well skip the trial.” RP (Jan. 19, 2006) at 92.
*541¶97 Here, the trial court “ ‘tasted the flavor’ ” of the litigation and its decision not to impose these other sanctions is fully supported by the record. Burnet, 131 Wn.2d at 509 (Talmadge, J., dissenting) (internal quotation marks omitted) (quoting Watson, 64 Wn. App. at 896). “As the trial court properly set forth its reasons on the record and those reasons are neither unreasonable nor untenable, its decision to grant the default judgment was within its broad discretion.” Behr, 113 Wn. App. at 330 (emphasis added). I note:
Trial courts are on the front lines of our civil justice system, dealing with sometimes recalcitrant attorneys and the myriad considerations of prosecuting a case. The trial courts develop intimate knowledge of cases from such involvement and they should be permitted to manage the discovery process. We should not disturb such management unless the record indicates the trial court has clearly abused its discretion.
Burnet, 131 Wn.2d at 512 (Talmadge, J., dissenting).
¶98 Furthermore, the Supreme Court has warned against substituting our judgment for that of the trial court:
There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such an order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal he will nonetheless comply promptly with future discovery orders of the district court.
But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. If the decision of the Court of Appeals remained undisturbed in this case, it might well be that these respondents would faithfully comply with all future discovery orders entered by the District Court in *542this case. But other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts.
Nat’l Hockey League, 427 U.S. at 642-43.
¶99 Finally, I note that:
Too often, cases in which trial court judges exercise firm case management are reversed by this Court or other appellate courts. Unfortunately, the majority opinion sends the message to trial court judges that this Court gives only lip service to strong case management by trial judges. This Court should instead send a resounding message to trial courts, lawyers, and parties: we do not condone “obstreperous” conduct of counsel, we support firm case management by Washington’s trial judges, and we will not permit litigation to languish forever in our courts.
Burnet, 131 Wn. App. at 513 (Talmadge, J., dissenting).
¶100 Therefore, based on the egregious nature of Hyundai’s willful and evasive tactics in responding to Magana’s discovery requests, I would find that the trial court was well within its discretion to grant the default judgment. Thus, I would affirm the default judgment.
Review granted at 164 Wn.2d 1020 (2008).
I agree with the majority’s analysis that interest on the damages in this case should run from the date of the verdict in the first trial.
A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law. Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
And erroneous findings that do not affect the validity of the court’s legal conclusions are harmless. See Armstrong v. State, 61 Wn.2d 116, 118 n.3, 377 P.2d 409 (1962).
Hyundai’s counsel noted that this vehicle was an Accent. CP at 4053.
Hyundai’s counsel noted this vehicle was actually a 1995 Elantra. CP at 4053.
In some unknown number of cases, these dates may refer to when the other similar incidents occurred, not when Hyundai became aware of the other similar incidents. CP at 4866-67; Ex. 48.
Hyundai notes that the vehicle identification number is actually for a non-Accent car. Br. of Appellant at 40.
Hyundai finished producing the documents on January 6,2006, after Magana had moved for a default judgment. CP at 1027, 2307-46, 2354, 4792-93; Ex. 48.
The parties refer to this discovery evidence as “[o]ther similar incidents” or OSI. As Hyundai notes, it “is a term of art in the products liability field familiar to practitioners.” Br. of Appellant at 12 n.6.
Although the majority is correct that we used these factors in Associated Mortgage Investors to consider the appropriateness of a sanction, majority at 517 n.19, these factors are just as relevant here in considering whether Magana was prejudiced by Hyundai’s actions.
As Washington courts have repeatedly stated in affirming a trial court’s order of a new trial as a remedy for a discovery violation:
“[I]t cannot be stated with certainty that all of this would have changed the result of the case. But, as said by the Supreme Court, a litigant who has engaged in misconduct is not entitled to ‘the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.’ Minneapolis, St. Paul & [Sault Ste.] Marie Ry. Co. v. Moquin, [ ] 283 U.S. 520, 521-522, 51 S.Ct. 501, [ ] 75 L.Ed 1243 [(1931)].”
Gammon, 38 Wn. App. at 282 (first alteration in original) (quoting Seaboldt v. Pa. R.R., 290 F.2d 296, 300 (3d Cir. 1961)).
The majority implies that Hyundai timely produced the documents in compliance with the trial court’s order. Majority at 517 n.19. But belated compliance with discovery orders does not necessarily preclude the imposition of sanctions. See N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986). “Last-minute tender of documents does not cure the prejudice to opponents nor does it restore to other litigants on a crowded docket the opportunity to use the courts.” N. Am. Watch Corp., 786 F.2d at 1451.
The language of CR 37 compels the conclusion that the trial court has the discretion to choose the most appropriate sanction suitable to the history and circumstances of the case before it. See Vickers v. City of Kansas City, 216 Kan. 84, 91, 531 P.2d 113 (1975).
And a continuance would effectively overrule the trial court’s earlier decision denying Hyundai’s motion for a continuance, in which Hyundai noted that one of its trial attorneys, who had been selected because of his experience in accident reconstruction, occupant kinematics, and seat back design issues, was unable to prepare for trial because of family problems. RP (Jan. 13, 2006) at 63-64, 70.
It is true that Magana sought to amend his complaint to add additional claims against Hyundai. CP at 4293-94. But Magana sought to amend his complaint only after Hyundai disclosed its documents in response to the trial court’s order. CP at 4293-94. And when it became clear that Hyundai was seeking a continuance on account of its previous actions, Magana withdrew his motion to amend his complaint. RP (Jan. 13, 2006) at 62.
I also note that Hyundai did not assign error to or challenge the damages award after the first trial, even though the damages award was for over eight million dollars. Magana, 123 Wn. App. at 313-14. It is hard to imagine Hyundai being concerned about any financial sanction if it was not concerned about a damages award for over eight million dollars. Otherwise, any financial sanction less than eight million dollars, which was the result of the default judgment in this case, would simply encourage Hyundai to embrace its tactics of evasion and delay.
See also G-K Props. v. Redevelopment Agency, 577 F.2d 645, 647 (9th Cir. 1978), wherein the Ninth Circuit Court of Appeals relied on the district court in noting that “to impose a fine would merely ‘introduce into litigation a sporting chance theory encouraging parties to withhold vital information from the other side with the hope that the withholding may not be discovered and, if so, that it would only result in a fine.’ ”
The imposition of a lesser sanction would merely add to the frustration and delay. See Mulroe v. Angerman, 492 N.E.2d 1077, 1079 (Ind. Ct. App. 1986).