Discovery, Sanctions: $6,954.95 Deposition Discovery Sanctions Award Was Appealable Even Though It Was Payable To Two Different Recipients, While $1,750 Sanctions Award Was Not Appealable

However, The Merits Appeal Of The $6,954.95 Sanctions Award Did Not Succeed Based On Failure To Appreciate The Nature Of The Deposition Process.

            Burke v. Newport-Mesa Unified School Dist., Case No. G058732 (4^th Dist., Div. 3 Jan. 21, 2021) (unpublished), authored by Justice Goethals of our local Santa Ana appellate court, has some interesting discussion points on discovery sanctions appealability thresholds and on the nature of the deposition process in civil litigation.

            In this one, plaintiff was sanctioned two times in relation to deposition conduct or non-conduct: (1) $6,954.95 in discovery sanctions for refusal to answer questions at a court-ordered deposition, although they were made payable to two different sets of recipients (one motion based on the same conduct); and (2) $1,750 in discovery sanctions for failing to sit for a subsequent deposition, payable to just one party.  Plaintiff, obviously upset, appealed.

            The $1,750 order was not appealable because it was one for sanctions below $5,000.

            However, the $6,954.95 order was appealable, because CCP § 904.1(a)(12) focuses on the amount to be paid, not the amount split between any diverse recipients.  All the more so because it was a single motion arising from the same deposition conduct.  Respondents argued that a removal of the matter to federal court somehow divested jurisdiction away from the state courts, but this did not resonate with the appellate court.  However, although getting past the crucial appealability and procedural hurdles, plaintiff could not prevail on the merits.   After all, he refused to answer 223 questions at his deposition and responded “I don’t know” to an additional 234 questions.  Plaintiff argued that he “cured” any transgressions by providing supplemental responses after the deposition in writing to many of the unanswered questions, but the appellate court indicated this misapprehended the difference between on-the-spot deposition cross-examination and an after-the-fact interrogatory type of answering process—no effective cure at all and a misunderstanding of the deposition process.  In the end, the larger sanctions order was affirmed, and the appeal from the lower sanctions order was dismissed.