Appealability, Sanctions: Defendant Unsuccessfully Appeals Trial Court’s Order Adopting Discovery Referee’s Recommendation On Apportionment Of Fees Claiming Apportionment Equated To Monetary Sanctions Exceeding $5,000

4/3 DCA Dismissed The Appeal As The Trial Court’s Interlocutory Order On The Discovery Referee Fees Was Not A Sanctions Order, Did Not Use The Word Sanctions, And Did Not Cite Authority To Impose Sanctions.

            The parties in Glickman v. Krolikowski, Case No. G064853 (4^th Dist., Div. 3 March 7, 2025) (published), stipulated to the appointment of a discovery referee.  The stipulation did not specify what portion of the referee’s fees would be paid by each party, but referenced Code Civ. Proc. § 645.1, with section 645.1(b) allowing for an apportionment of the fees among the parties.  When the trial court issued its reference order to implement the stipulation, it stated that the referee’s initial retainer would be paid 50 percent by each side, and that the referee’s report was to include the referee’s recommended allocation of payment.

Based on the parties’ conduct, the referee granted plaintiff’s apportionment motion and recommended that all of the recently incurred discovery fees of $22,750, plus the $1,750 in fees for the apportionment motion, be allocated to defendant.  Defendant unsuccessfully objected to this allocation, then filed an appeal claiming that one-half of the amount allocated to defendant was the equivalent of a monetary sanction in excess of $5,000 – making it subject to an interlocutory appeal.  Code Civ. Proc. section 904.1(a)(12).

The 4/3 DCA disagreed with defendant’s contention and dismissed the appeal.  The appellate panel found that the trial court’s order allocating discovery referee fees was not a sanctions order as the referee’s recommendation did not use the word sanctions, did not cite authority to impose sanctions, and relied on the discretion allowed for in the trial court’s reference order to apportion fees.  As a result, the trial court’s order was not a monetary sanction subject to appealability.  The trial court’s order was not a final judgment against defendant as reallocation of the payment of discovery referee costs could be made at the end of the lawsuit.  As such, defendant would have had to file a writ petition in order to immediately challenge this order.