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Court of Appeal:
Order That Is Tantamount to a Sanction Is Not Appealable
Justices Say Cognizance Won’t Be Taken Under CCP §904.1 of Punitive Order by Discovery Referee
By a MetNews Staff Writer
The statute authorizing an appeal from an order imposing monetary sanctions in excess of $5,000 cannot be construed to permit a party to an unresolved civil action to challenge a referee’s unequal allocation of costs in order to penalize the party who caused a discovery dispute through unreasonableness, Div. Three of the Fourth District Court of Appeal has declared.
Its holding comes in a per curium memorandum opinion, filed Friday. Signing that opinion were Acting Presiding Justice Eileen C. Moore and Justices Maurice Sanchez and Martha K. Gooding
“There does not appear to be a case directly on point,” the justices noted.
Concluding that an interim order that is tantamount to a sanction is nonappealable, they declined to reach the merits of contentions put forth by attorney Charles S. Krolikowski and the Newport Beach law firm in which he is a partner, Newmeyer & Dillion LLP. Krolikowski and the firm are defendants in a malpractice action brought by former client William Glickman.
The discovery referee, rather than equally allocating amount to be paid for services rendered, determined that the lawyers are responsible for the entire $22,750. The defendants argued that the order is appealable under Code of Civil Procedure §904.1(a)(12) as “an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).”
Orange Superior Court Judge Theodore R. Howard overruled objections to the allocation.
Issue Defined
In Friday’s opinion, the justices wrote:
“The issue presented is clear: Does the phrase ‘monetary sanctions’…include unequally apportioned discovery referee fees, when those fees are apportioned based on the referee’s view of the reasonableness of the parties’ conduct in causing those referee’s expenses to be incurred?”
Resolving the question, they said:
“An order allocating discovery referee fees is not a sanctions order, even if the referee fees are allocated based on the referee’s perception that appellants caused the discovery disputes by providing inadequate discovery responses. The referee’s recommendation did not use the word sanctions. The referee’s recommendation did not cite any legal authority to impose sanctions.”
The justices continued:
“Instead, the referee relied on the discretion to recommend apportionment provided in the court’s reference order, stipulated to by the parties. The order therefore cannot be classified as a ‘monetary sanction’ for purposes of establishing appealability. If the Legislature believes referee apportionment fees should be appealable, it can amend section 904.1 to include them. In the meantime, parties must either wait for entry of judgment to appeal this kind of order or file a timely writ petition.”
Whether the purported appeal might be construed as a writ petition was not discussed.
Collateral Order Doctrine
Also rejected was the notion that the order is appealable under the collateral order doctrine which applies where the determination of a matter arising in the course of a lawsuit, but tangential to it, is final. There’s no finality as to allocation of the referee’s fees, the justices said, because the matter of who pays what in fees and costs will be resolved ultimately when the malpractice action reaches its conclusion.
Moore, Sanchez and Gooding remarked:
“Unlike some collateral order cases, the appellants here are defendants in this lawsuit and will participate in the case until it is resolved by judgment and all postjudgment issues (including cost reallocations) are decided. We need not predict the future regarding which party will prevail on the merits or how the parties may choose (or not) to continue to seek reallocation of referee costs in postjudgment proceedings or appeals from the judgment. It is enough to state that this referee fee allocation order is not, at this time, final and dispositive of the parties’ rights.”
First District Opinion
The Orange County-based panel expressed agreement with a 2021 opinion by the First District Court of Appeal, headquartered in San Francisco, in Reddish v. Westamerica Bank. The justices said in Friday’s decision that the court in Reddish “rightly criticized and declined to follow” opinions deciding appeals from interim cost orders.
Those opinions, the First District’s Div. Five pointed out, “do not consider whether a final cost allocation could make the interim order moot.”
Among three opinions expressly repudiated in Reddish is Serrano v. Stefan Merli Plastering Company, decided by this district’s Div. Three in 2008. In declaring to be appealable an order by then-Los Angeles Superior Court Judge Aurelio Munoz (now retired), mandating that a party pay a disputed bill by a court reporting firm for transcripts, Justice H. Walter Croskey (now deceased) said in Serrano:
“The orders finally determined the issue of… liability for payment…for copies of the deposition transcripts. The orders did not decide the parties’ rights with respect to the relief demanded in the…complaint…for damages for personal injuries, and the orders would neither influence nor be influenced by subsequent proceedings in the action with respect to the relief demanded in the complaint. The orders therefore were collateral to the main issues in the proceeding….The orders also directed the payment of money, and thus satisfy all of the requirements for appealable collateral orders. We conclude that the orders are appealable under the collateral order doctrine.”
The opinion on Friday came in Glickman v. Krolikowski, 2025 S.O.S. 596.
This was Glickman’s second victory in the Court of Appeal over his former attorneys. On Nov. 29, 2020, Div. Three held in an unpublished opinion that the client was not obliged to submit the present dispute to arbitration based on a provision is a retainer agreement relating to earlier representation.
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