Legal News and Appellate Tips

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.

Somewhere or other most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I told you that you could recover nearly $239,000 in fees this way? Now it seems worth a shot, doesn't it?

That's what the defendants got in *Spahn v. Richards* (D1d3 Nov. 30, 2021) __ Cal.Rptr.3d (2021 WL 5576615, no. A159495) as costs-of-proof fees.

The RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence. I had never envisioned costs-of-proof fees to encompass substantially all of the case. But that seems to be the upshot here. And it is a lower standard than for Code of Civil Procedure section 128.5 or 128.7 sanctions, and certainly lower than for malicious prosecution. This is something to consider implementing into your case strategy.

CEB has republished my article Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says at their website as, "The Risks of Serving Too Many Interrogatories".

The article is about two important but subtle rules of civil discovery in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). And a bonus appellate tip.

The CEB article is available here: https://lnkd.in/gCx62BwX.

My original article is here: https://lnkd.in/g4xJfid7.

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There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better move to compel — do not ask the question again. The second is, if you are going to ask a lot of questions (here, 723 of them), you had better be sure they are necessary. Here, they were found to violate the local rules of civility.

Bonus Appellate Tip: Carefully consider your requests for sanctions. If you win a discovery dispute and are awarded sanctions over $5,000, your order is now immediately appealable. Which, in this case, reversed the discovery victory.

Tip: This dispute would not have been immediately reviewable on appeal had the successful movant not sought monetary sanctions. Consider carefully whether to seek discovery sanctions.

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The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim.
The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand.

There is no duck blind in civil discovery: you don't get to take shots at the other side's evidence if they don't get to take shots at yours.

The concurrence concludes with this chilling suggestion: "I share the majority's opinion that the district court could consider entering discovery sanctions. See supra note 5. In my view, appropriate sanctions could even include a default judgment against Defendants-Appellants, if the district court deems it justified."

The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. […]

Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" […]