Orders Granting Terminating Sanctions, and Denying Motions to Vacate and Reconsider, Are Not Appealable: Appeal Dismissed

Timothy Kowal, Esq.
February 23, 2021

An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal.

In the employment dispute involved in Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished), employer plaintiff sued erstwhile employees for breach of their employment agreements, including misappropriation of proprietary information. The employee defendants cross-complained.

Following some discovery disputes not described in the opinion, plaintiff moved for terminating sanctions. The trial court granted the motion, striking defendants' answers and their cross-complaint.

Without waiting for entry of judgment, defendants moved to vacate and set aside the terminating sanctions order under Code of Civil Procedure section 473(b). The trial court denied the motion to vacate.

Defendants then moved for reconsideration. That was denied, too.

Defendants appealed.

But where, plaintiff asked on appeal, is the appealable order? The Second Appellate District agreed there wasn't one and dismissed the appeal.

A terminating sanctions order is not appealable. Instead, "the losing party must await the entry of the order of dismissal or judgment unless the terminating order is inextricably intertwined with another, appealable order." (Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940.) (The 7th Division of the Second District does not like the "inextricably intertwined" exception, as we discussed here, but the 1st Division here offers no comment on it.)

Nor does an appeal lie from an order denying a motion to vacate, unless the underlying order was itself appealable. "[A]n appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion." ' " (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331.)

And "[a]n order denying a motion for reconsideration is not independently appealable." (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 937, fn. 1.)

Don't feel too badly for appellants. As in a similar recent case discussed here, all is not lost. On remand, they need simply to file a motion under Code of Civil Procedure 664 to have the court enter the default judgment against them. They should cite Yu v. Superior Court (Oct. 27, 2020) 56 Cal.App.5th 636 (discussed here), for the proposition that "Section 664 specifies that when, such as here, "the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision."”

They may then appeal from the judgment.

But with a judgment against them at that point, they will need to listen to the California Appellate Law Podcast episode on obtaining a stay pending appeal.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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