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.
The court noted that there is a limited exception to permit review of a discovery order as part of an appeal from an order directing payment of monetary sanctions greater than $5,000. But the issues underlying the orders have to be based on the same conduct and they have to be “inextricably intertwined.”
Here, the money sanctions and issue sanctions were based on the same conduct. But they were not inextricably intertwined. Here is how the court concluded: “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 Upshot: Interlocutory appellate review of a discovery order usually is going to require a writ. But those are tough in any case, and especially in a case like this where the court-appointed discovery referee 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.