$37k in discovery sanctions appealable, but not the related issue sanctions

Timothy Kowal, Esq.
March 29, 2023

Discovery orders can sometimes be devastating. But are they appealable? Rarely. But under the appealability statute, CCP 904.1, sanctions orders greater than $5,000 are appealable.

That gave the defendants in *********************************Deck v. Developers Investment Co., Inc. (D4d3 Mar. 24, 2023 No. G061287) ___ Cal.Rptr.3d ___ an idea. The defendants got hit with issue sanctions for their “blatant disregard of discovery and discovery orders.” Although the issue sanctions were “potentially case-dispositive,” their were not appealable. But the court also had imposed $37,575 in monetary sanctions, which were appealable. And they related to the same conduct, so won’t the Court of Appeal have to resolve all the issues at once?

Close, but no dice.

A discovery order may be reviewed on an appeal from monetary sanctions if the issues are based on the same conduct and inextricably intertwined.

The court noted that “A limited exception has been recognized to permit review of an order granting terminating sanctions as part of an appeal from an order directing payment of monetary sanctions in an amount greater than $5,000 if the monetary sanctions were based on the same conduct that led to the terminating sanctions and “the two are inextricably intertwined.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 276 (Mileikowsky), disapproved on another ground in Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273.)”

But after looking closely, the court concluded it could review the monetary sanctions (that defendant did not have substantial justification for their conduct) without reaching the challenges to the issue sanctions (prejudice to the plaintiffs, whether the sanctions were punitive or resulted in a windfall, the court “rubber stamped” the referee’s report, etc.).

So the issues involved in the two orders, though involving the same conduct, were not “inextricably intertwined.”

“The appeal from the order imposing monetary sanctions therefore can be examined and resolved independently of the order imposing issue sanctions. Put another way, we can, and do, resolve the issue of the propriety of the monetary sanctions without also resolving the propriety of the issue sanctions.”

The defendants urged that public policy supported reviewing the orders together rather than in two separate appeals. The court rejected this: “The right to appeal is entirely statutory: Public policy alone cannot confer the right to an immediate appeal of a statutorily nonappealable order.”

A single judgment may involve separate, severable orders for purposes of appealability.

But were the issue and monetary sanctions all part of the same order? Yes, but a single order or judgment may involve several different orders for purposes of appealability.

“Respondent can move for partial dismissal of a portion of the appeal, as long as the resulting partial appeal would be from severable portions of the judgment.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) ¶ 5:38, p. 5-23.) “ ‘The test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or interdependent upon, the matters or issues which have not been attacked.’ ” (Gonzalez v. R.J. Novick Construction Co., Inc. (1978) 20 Cal.3d 798, 805-806.)

The Upshot:

If you are prepared to seek appellate review of discovery rulings, be prepared to take a writ. But better yet, be prepared to avoid getting sanctioned for discovery abuses. The court-appointed discovery referee here commented that in his almost 20 years of service as a neutral, mediator, arbitrator, and referee he had never seen “such blatant disregard of discovery and discovery orders.”

Courts do not like discovery disputes, and that includes appellate courts. So once something like this has made it into the record, the chances of getting any extraordinary relief from the Court of Appeal are going to be vanishingly remote.

Tim Kowal  is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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