Appealability, Request For Admissions: Appeal Of $52,245.40 Costs-Of-Proof Sanctions Upheld On Appeal, Because It Was Dismissed

Reason Was That Defense Insurer Voluntarily Paid Both The Judgment and Sanctions In Full.

            In Nelson v. Estate of Holguin, Case No. B298135 (2d Dist., Div. 3 July 28, 2020) (unpublished), defendant estate suffered a $167,250 adverse jury verdict and CCP § 2033.420 costs-of-proof sanctions of $52,245.40.  Defendant’s insurer voluntarily paid the judgment and costs-of-proof sanctions, but it subsequently appealed the section 2033.420 sanctions award.  The 2/3 DCA dismissed the appeal, determining that the insurer’s voluntary payment waived the right to appeal in the absence of a settlement or compromise.  (Miller v. Cabral, 13 Cal.App.3d 503, 506 (1970).)

            BLOG COMMENT:  There is an exception to the waiver rule, where the payment was made under risk of compulsion, such as where a mechanic’s foreclosure sheriff sale might take place and result in a draconian forfeiture.  (Reitano v. Yankwich, 38 Cal.2d 1, 3 (1951).)  Here, however, there was simply a voluntary payment, not hinged to a compromise or settlement preserving the ability to appeal.