Legal Question in Appeals and Writs in California

Re: Best way to appeal a discovery sanction

This sanctions orders is an independtly appealable order because it exceeds $5000 (Civ. Pro. section 904.1(a)(11). You should file a notice of appeal no later than 60 days after notice of entry of the order, if you wish to appeal it. You should not attempt review by way of a writ petition, because it is an appealable order.

I cannot comment on the merits of that appeal from the information you provided. Whether you can be sanctioned again for the appeal depends on whether the Court of Appeal deems the appeal to be frivolous. That does not occur frequently, but it does happen.

There is another issue here: whether the case will proceed to trial while the sanctions order is appealed. That will have to be worked out with the trial court, at least initially.

Herb Fox, Esq.

Certified Appellate Law Specialist

15 W. Carrillo Street, Ste 211

Santa Barbara, CA 93101

[email protected]

www.lawyers.com/herbfox

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Re: Best way to appeal a discovery sanction

This is a question which must be directed to your lawyer. He/she must have filed an opposition to the sanctions motion, so your papers ostensibly were read. He/she must have argued at the time, so his/her advice is what is important.

It is generally best to seek reconsideration - if there are grounds under the statute authorizing it - before seeking a higher court's intervention.

Re: Best way to appeal a discovery sanction

I generally agree with Mr. Fox and Mr. Murray, but there are a few things I want to add. (I note at the outset that my answer presumes you are in state court and not federal court.)

First, I think the part of the order which says you can't go to trial unless you first pay the sanction is improper. If the court won't let you go to trial then presumably it will dismiss the case instead, but the California Supreme Court has held (in a case called Newland v. Superior Court) that doing this "solely because of a failure to pay a monetary sanction is never justified". If the trial court did this for other reasons as well, though, its decision may be valid.

I'm afraid the rest of my answer will be a lot less encouraging.

To most laypeople, the word "sanction" implies a punishment for intentional, unjustifiable wrongdoing. But conduct sanctionable by a court can be unintentional and/or understandable -- especially in the context of discovery. In other words, a sanction is not always a punishment.

By the same token, a sanction is not a reward to the party that successfully seeks it. The amount of a discovery sanction must be no more than the costs and attorney fees that party has incurred and/or will incur due to the violation. If X's failure makes Y spend a given amount of money, the court will make X reimburse Y by sanctioning her for that sum.

Presumably the expert will have to go to the Bay area again so you can be examined. Someone has to pay for the medical expert's additional time and travel expenses. Should the other side pay twice as much because you didn't show up, or should you pay the extra costs? The problems that kept you away from your appointment were yours and not theirs, so why should they have to pay thousands of extra dollars? If you were in their position, would you consider it fair to have to pay $5,700 extra due to your adversary's failure to keep an appointment? How much would it matter to you if your opponent's actions turned out to be reasonable?

In situations like this, the trial court is *required* to sanction the party which failed to do what was required of it, unless the party has "substantial justification" (which is *not* the same thing as a reasonable explanation) for refusing to appear or that imposing sanctions would otherwise be unjust.

The trial court presumes sanctions are appropriate unless the party facing sanctions persuades it that either of these circumstances is present. You evidently did not persuade the judge, and you will only be able to win on appeal if you can persuade the appellate court that the trial judge's decision was unreasonable. It will not be enough to get the appellate justices to disagree with the decision, since reasonable people disagree all the time. You will instead have to persuade them that no reasonable judge would have sanctioned you under the circumstances, and that is a very hard burden to meet.

Good luck.