More on the question of whether an order is appealable: discovery sanctions and defaults

June 20, 2011
By Justice Steven Vartabedian (Ret.) on June 20, 2011 6:00 AM |

In my June 2 blog article I discussed some general rules concerning whether a judgment is appealable. Today, the focus is on these two specific types of orders that have some tricky applications.

The majority view is that discovery sanctions, regardless of amount, are not directly appealable, but are reviewable only on appeal after final judgment or on writ petition. (Ballard v. Taylor (1993) 20 Cal.App.4th 1736, 1739.) There is however a minority of cases that construe Code of Civil Procedure section 904.1 (a) (11) and (12), the general sanctions statute, to apply to all sanctions including matters of discovery and thus allow direct appeal for those sanction orders exceeding $5,000. ( See, for example, Green v. Amante (1992) 3 Cal.4th 684, 690.)

In addition to some conflict in the law, an exception to the rule that a discovery sanction is not immediately appealable also exists. If a party's former attorney or an attorney of a party no longer participating in the litigation incurred the sanction order the order is deemed final as to the attorney who is no longer participating, an analysis akin to the "final as to a party" exception. (Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1561.) Thus, counsel who believe they or their client have been improperly sanctioned and plan to appeal a sanction order must be especially diligent in reviewing appeal deadlines as the litigation progresses.

The general sanctions statute itself present a tricky question concerning appealability. Absent exception, as stated above these orders are typically immediately appealable if the award is in excess of $5,000. If the sanction is less than $5,000, counsel must await final judgment in the underlying case or seek writ review. That seems pretty straight forward. But what exactly must exceed $5,000?

The general rule is that multiple sanctions cannot be aggregated to meet this threshold. (Calhoun v. Vallejo City Unified School District (1993) 20 Cal.App.4th 39, 44.) But if the trial court has issued separate sanctions premised on what is essentially the same conduct, aggregation may be appropriate. (Champion L.B.S. Associates Development Co. v. E-Z Serve Petroleum Marketing, Inc. (1993) 15 Cal.App.4th 56, 60.)

An entirely different but equally confusing issue arises when a judgment is by default. Such a judgment is appealable only under the following circumstances: (1) for lack of jurisdiction or insufficiency of the pleadings (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767), or (2) for excessive damages, if proof was required before entry of judgment. (Uva v. Evans (1978) 83 Cal.App.3d 356, 362-363.) If a party intends to argue that the issuing court lacked jurisdiction to issue the default, it is generally advisable in those instances to first seek to vacate the default judgment in the trial court in order to make a record reviewable on appeal as possible evidence supporting the lack of jurisdiction.

Perhaps the best advice is, when in doubt about appealing an order, check with an appellate law attorney to make sure no deadline is missed.