An order of contempt is not directly appealable. (Code Civ. Proc., § 1222.) It is reviewable only by writ. But what about an order of fees following a contempt order? The statute does not provide for appellate review or writ review, and the factors for writ review just do not apply to a cost order. The right to appeal is statutory, and the statutory limits, as we have seen, are an absolute jurisdictional bar to appellate review.
But the Sixth District Court of Appeal recently held (in an unpublished opinion) that contempt cost orders are appealable anyway in C.H. Reynolds Electric, Inc. v. Powers (D6 Aug. 24, 2021) no. H046554 (nonpub. opn.).
An employer obtained a workplace violence restraining order against its employee. But the employee violated the order, and was held in contempt. The employee continued to violate court orders, and was held in contempt again. Meanwhile, the employer had to hire security to protect its workforce. The employer sought $30,000 as reimbursement for this security.
The trial court awarded the employer over $80,000 for attorney fees relating to the contempt proceedings, but ruled the $30,000 in security services was not directly related to the proceedings.
On appeal, the employer acknowledged a contempt order is not appealable. (Code Civ. Proc., § 1222; Bermudez v. Municipal Court (1992) 1 Cal.4th 855, 861, fn. 5.) And the court noted the factors for writ review were just not met in a cost order.
So the employer argued Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1388 (LA Times) supported the direct appealability of the cost order. That case involved a Public Records Act order, which orders likewise are only reviewable by writ, but the Second District Court of Appeal there allowed direct review of the cost award that followed.
LA Times held the legislature intended writ review only to expedite the review of the underlying merits orders. But LA Times held there was no reason to suspect the legislature intended to expedite cost awards via writ review as well. So cost awards must be directly appealable.
(Comment: I note, however, that the legislature had fashioned no means for direct appellate review of PRA cost awards, either. Which suggests the possibility the legislature left such awards unreviewable, as it may do. “[T]he Legislature has authority to reshape and redefine statutory rights and remedies, 'so long as there is no interference with constitutional guaranties.'" Powers v. City of Richmond (1995) 10 Cal.4th 85, 158. But LA Times appears not to have considered that possibility. And C.H. Reynolds Electrics appears not to consider it, either.)
So the court followed LA Times in holding that, concerning the fee and cost award following the nonappealable contempt order, "[n]othing remains for future consideration, and no other opportunity exists for appellate review” and it “is therefore ‘properly viewed as a final judgment and hence appealable as such’ under section 904.1, subdivision (a)(1).” (LA Times, supra, 88 Cal.App.4th at p. 1389; see also Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755.)
So count this as one more exception to the absolute, iron-clad, fuggedaboudit rule of appellate jurisdiction.
And the court went on to afirm anyway, making the deviation seem even more wanton.
Tim Kowal 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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.