Discovery Sanctions: $3,587.00 Deposition Sustained Because It Is Collateral And Not Independently Appealable Until Later

 

Sixth District Provides a Good Lesson in Properly Timing Appeal of Discovery Sanctions Under $5,000.

     This next unpublished case, in a 3-0 unpublished decision from the Sixth District, is a good reminder on when the appeal of smaller discovery sanctions orders—under $5,000—is properly made.

     In Stough v. Klure, Case No. H034000 (6^th Dist. Oct. 26, 2009) (unpublished), defendant/appellant was sanctioned a total of $3,587 for refusing to submit to questioning under oath at a deposition (a sanctions imposed in late February 2009 arising from a mid-January 2008 deposition). Four days prior to the sanctions order, the trial court denied defendant’s summary judgment motion. Unhappy about the sanctions, defendant appealed.

     He lost at this stage of the battle.

     Defendant raised two issues on appeal, both of which were found wanting.

     First, he argued that his appeal of the summary judgment denial deprived the lower court of jurisdiction to issue the sanctions order. Answer to first argument—wrong, because the issue of discovery abuse was collateral to the summary judgment appeal. Because the lower court had the ability to sanction for the prior discovery issue, a collateral issue was involved—one disparate from the summary judgment ruling. (Day v. Collingwood, 144 Cal.App.4^th 1116, 1124-1125 (2006).)

     Second, defendant had to withstand an attack on whether he appealed from an appealable order. He lost this one. Code of Civil Procedure section 904.1(a)(12) specifies that an appeal may only be taken from a sanctions order exceeding $5,000; otherwise, one has to appeal from the final judgment in the action or proceed by way of extraordinary writ. (Code Civ. Proc., sec. 904.1(b); Hanna v. BankAmerica Business Credit, Inc., 16 Cal.App.4^th 913, 915 (1993).) Defendant did not appeal from the final judgment or seek a writ; result—out of luck, appeal dismissed.