Taylor v. Forde CA2/7 ( 2021 )

Filed 1/20/21 Taylor v. Forde CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
RANDY TAYLOR et al. B298957
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC597720)
v.
STEPHEN FORDE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael P. Vicencia, Judge. Dismissed.
Delman Vukmanovic, John Vukmanovic, and Dana Delman
for Plaintiffs and Respondents.
Henry J. Josefsberg for Defendant and Appellant.
INTRODUCTION
Stephen Forde appeals from an order granting a motion by
Randy Taylor, Reyna Taylor, and Steve Hawrylack for
terminating sanctions, striking Forde’s answer, entering his
default, striking his cross-complaint, and imposing $5,097.50 in
monetary sanctions. Because the order imposing terminating
sanctions is not appealable and Forde does not challenge the
order imposing monetary sanctions, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
This is the next installment in a series of appeals in various
actions, all involving a dispute over several pieces of real
property, that began in 2011 and that have spread like
craquelure through the superior, bankruptcy, and appellate
courts. Those interested can find more comprehensive factual
summaries and procedural histories in the other appellate
decisions involving these and related parties. (See, e.g., Forde v.
HSBC Bank USA, N.A. et al. (Nov. 20, 2019, B291582)
[nonpub. opn.]; Taylor et al. v. Unruh (Nov. 6, 2018, B280376)
[nonpub. opn.].)
Briefly: In April 2011, after Forde acquired part interest in
four residential rental properties—“Maple 1,” “Maple 2,”
“Verdugo,” and the “Jackson duplex”—co-owned and managed by
the Taylors and Hawrylack, he sued the Taylors and Hawrylack
for allegedly mismanaging the properties (Forde v. Hawrylack et
al. (Super. Ct. Los Angeles County, 2011, No. YC064625)). The
parties settled that case in September 2012. The settlement
agreement provided Forde would manage the properties.
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In October 2015 the Taylors and Hawrylack filed this
action against Forde for partition of Maple 1 and Maple 2, breach
of contract, an accounting, waste, and conversion. The Taylors
and Hawrylack alleged that Forde, while managing those
properties under the September 2012 settlement agreement, took
rental income to which he was not entitled and for which he did
not account, did not make payments on the loans secured by
deeds of trust on the properties, and did not properly maintain
the properties. The Taylors and Hawrylack sought to have the
properties sold and to recover from Forde the portions of the
rents they claimed he improperly retained. Forde subsequently
filed a cross-complaint for breach of contract, breach of fiduciary
duty, accounting, and waste.
In November 2015 the trial court granted a motion by the
Taylors and Hawrylack to appoint a receiver to manage Maple 2.
In May 2018 the trial court entered an interlocutory judgment of
partition, appointing a referee to manage and sell Maple 1 and
Maple 2. Forde appealed the interlocutory judgment, but was
ultimately unable to post a sufficient bond to stay enforcement of
the interlocutory judgment pending the appeal, and the receiver
sold the properties. This court dismissed Forde’s appeal from the
partition judgment as moot.
Meanwhile, discovery in the case continued, but it did not
go smoothly. The court granted several rounds of discovery
motions filed by the Taylors and Hawrylack, including motions to
compel Forde to comply with his discovery obligations, to comply
with court orders, for monetary sanctions, and for evidentiary
sanctions. After Forde continued to violate the court’s orders,
the Taylors and Hawrylack filed another batch of discovery
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motions, one of which was a motion for terminating sanctions
that included a request for monetary sanctions.
On April 30, 2019 the trial court granted the motion for
terminating sanctions, entered Forde’s default, struck Forde’s
cross-complaint, ordered Forde (but not his attorney) to pay
$5,097.50 in monetary sanctions, and set the case for a default
prove-up hearing. The court continued the hearings on four
additional discovery motions by the Taylors and Hawrylack, as
well as a motion for the attorneys’ fees they incurred on appeal
from the partition judgment.
Forde filed a notice of appeal. It stated he was appealing
“from the April 30, 2019 Minute Order, . . . subsequent Orders
that may relate to the April 20 [sic] Minute Order, and the
Judgment in this matter.” The notice of appeal also stated: “An
appeal from the prior interlocutory judgment in this matter has
already been filed.” The Taylors and Hawrylack filed a motion to
dismiss the appeal.
DISCUSSION
A. The Order Imposing Terminating Sanctions Is Not
Appealable
An order granting a motion for terminating sanctions for
discovery violations is not appealable. (Nickell v. Matlock (2012)
206 Cal.App.4th 934, 940 (Nickell); see Department of Forestry &
Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 196 [order
imposing terminating sanctions was “not a judgment,” did “not
purport to dismiss the action nor otherwise equate with rendition
of judgment,” and was not “a separately appealable order”];
Good v. Miller (2013) 214 Cal.App.4th 472, 475 [dismissing an
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“appeal from [an] order granting terminating sanctions, which is
a nonappealable order”].) Instead, the aggrieved party “must
await appeal from a final judgment.” (Aixtron, Inc. v. Veeco
Instruments Inc. (2020) 52 Cal.App.5th 360, 387; see Department
of Forestry, at p. 196 [“trial court’s order awarding terminating
sanctions has no effect at all unless and until the trial court
enters a judgment of dismissal or other order effectuating its
award of terminating sanctions”]; Mileikowsky v. Tenet
Healthsystem (2005) 128 Cal.App.4th 262, 264 (Mileikowsky) [“an
order granting a request for terminating sanctions is not
appealable and the losing party should ordinarily await entry of
the order of dismissal to file a notice of appeal”].)
The trial court granted the motion by the Taylors and
Hawrylack for terminating sanctions on April 30, 2019. The
court did not enter judgment on the complaint or the (stricken)
cross-complaint. Instead, the court entered Forde’s default,
struck his answer and cross-complaint, and set a default prove-up
hearing for August 19, 2019. There is nothing in the record
suggesting the court ever held the default prove-up hearing or
entered a judgment. The last document in the record, a minute
order dated January 27, 2020, states that the court took the
default judgment prove-up hearing off calendar and set a case
management conference for February 19, 2020.1 Therefore,
1 On February 3, 2020 the court reset the case for trial on
June 1, 2020. The court subsequently continued the trial on
April 10, 2020 to August 24, 2020, on July 14, 2020 to October 26,
2020, and on October 6, 2020 to March 22, 2021. On October 14,
2020 the court approved the parties’ stipulation to extend the
five-year deadline to bring the case to trial under Code of Civil
Procedure section 583.330. We take judicial notice of the trial
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absent an applicable exception to the rule that an order imposing
terminating sanctions is not appealable, the appeal must be
dismissed. (See Lein v. Parkin (1957) 49 Cal.2d 397, 399 [an
appeal from a nonappealable order must be dismissed]; Aixtron,
Inc. v. Veeco Instruments Inc., supra, 52 Cal.App.5th at p. 384
[“An appeal from a judgment or order that is not appealable must
be dismissed.”]; Harrington-Wisely v. State of California (2007)
156 Cal.App.4th 1488, 1495 [“as a general rule this court does not
entertain appeals from nonappealable orders”].) Forde relies on
two such exceptions, neither of which applies (and one of which
may not exist).
B. The Order Imposing Terminating Sanctions Is Not
Appealable as an Order After an Appealable
Judgment
Forde argues that under Code of Civil Procedure section
904.1, subdivision (a)(2),2 the April 30, 2019 order imposing
terminating sanctions against him is appealable as an order after
an appealable judgment. Which judgment? According to Forde,
the May 2018 interlocutory partition judgment, which was
appealable under section 904.1, subdivision (a)(9).
Section 904.1, subdivision (a)(1), provides that an appeal
may be taken from a judgment, other than an interlocutory
judgment, except as specifically provided in other provisions of
court’s February 3, 2020, April 10, 2020, July 14, 2020, and
October 6, 2020 minute orders and the court’s October 14, 2020
stipulated order. (See Evid. Code, §§ 452, subd. (d), 459.)
2 Undesignated statutory references are to the Code of Civil
Procedure.
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section 904.1, subdivision (a). The May 2018 interlocutory
judgment for partition was one of the specific exceptions made
appealable by section 904.1, subdivision (a)(9). Section 904.1,
subdivision (a)(2), provides that an appeal may be taken from “an
order made after a judgment made appealable by paragraph (1).”
(See Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127; City of Gardena
v. Rikuo Corp. (2011) 192 Cal.App.4th 595, 601.) Because the
May 2018 interlocutory partition judgment was appealable under
section 904.1, subdivision (a)(9), not section 904.1,
subdivision (a)(1), the order imposing terminating sanctions is
not appealable under section 904.1, subdivision (a)(2). (See
Hummel v. First National Bank (1987) 191 Cal.App.3d 489, 493
[because “the judgment of partition . . . was not itself a final
judgment within the meaning of . . . section 904.1, subdivision (a)
[now section 904.1, subdivision (a)(1)], but an interlocutory
judgment of partition made appealable by . . . section 904.1,
subdivision (i) [now section 904.1, subdivision (a)(9)],”
“subdivision (b) [now subdivision (a)(2)] of . . . section 904.1 does
not apply to it”]; cf. Solis v. Vallar (1999) 76 Cal.App.4th 710, 713
[section 904.1, subdivision (a)(1) “specifically makes an
interlocutory judgment directing partition appealable, by
reference to [section 904.1, subdivision (a)](9)”].)
C. The Order Imposing Terminating Sanctions Is Not
Appealable as an Order Inextricably Intertwined with
an Appealable Order Imposing Monetary Sanctions
Citing language in Nickell, supra, 206 Cal.App.4th 934 and
Mileikowsky, supra, 128 Cal.App.4th 262, Forde also argues the
order imposing terminating sanctions is appealable because it is
“inextricably intertwined” with the order imposing $5,097.50 in
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monetary sanctions, which is appealable under section 904.1,
subdivision (a)(12), because it is an order imposing more than
$5,000 in monetary sanctions (although the Taylors and
Hawrylack have offered to forgo the $97.50). Forde contends that
his arguments “addressing terminating sanctions are the same
arguments as would result in reversal of the monetary
sanctions,” that the “determination of the basis for either
monetary or termination sanctions is the same,” and that the
Taylors and Hawrylack moved for termination sanctions and
monetary sanctions “on exactly the same grounds . . . and
advanced the same arguments for both types of sanctions . . . .”
In Nickell the trial court granted a motion by the plaintiff
for terminating sanctions, entered the defaults of the two
defendants, awarded $715 in monetary sanctions against one of
the defendants, and subsequently entered judgment against both
defendants without holding an evidentiary hearing, as required
by section 764.010. (Nickell, supra, 206 Cal.App.4th at pp. 939,
941.) In rejecting the plaintiff’s argument that the time for the
defendants to appeal ran from entry of the order imposing
monetary sanctions and not from entry of the default judgment,
the court stated: “An order granting terminating sanctions is not
appealable, and the losing party must await the entry of the
order of dismissal or judgment unless the terminating order is
inextricably intertwined with another, appealable order.” (Id. at
p. 940.) The court held that “the order granting terminating
sanctions [was] not inextricably intertwined with another,
appealable order” and that “the time to file an appeal commenced
on the day judgment was entered.” (Ibid.)
In Mileikowsky the court imposed terminating sanctions
against the plaintiff for repeated discovery violations and
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awarded the defendants $8,500 in monetary sanctions, and the
plaintiff appealed. (Mileikowsky, supra, 128 Cal.App.4th at
pp. 273-275.) The court denied the defendants’ motion to dismiss
the appeal “on the ground that sanction orders in amounts
greater than $5,000 are appealable and that we would ‘proceed to
review the imposition of the monetary discovery sanctions.’”
(Ibid.) But the court in Mileikowsky concluded it was unable to
limit its review to the order imposing monetary sanctions:
“However, despite our attempt to limit the appeal, it appears
from the parties’ briefs that monetary sanctions were based on
the same conduct that led to terminating sanctions, and the two
are inextricably intertwined. Indeed, [the plaintiff’s] principal
argument on appeal is that the monetary award, based as it was
on the fees and costs incurred in prosecuting the motion for
terminating sanctions, should be reversed because the motion for
terminating sanctions was not appropriate and should have been
denied and [the defendants] ‘should not be rewarded for making
an unsuccessful motion.’ We, therefore, turn to the issue of
whether [the defendants’] motion for terminating sanctions was
well taken.” (Id. at pp. 275-276.) The court also stated:
“[A]lthough we attempted to limit our review to issues pertaining
to the monetary sanctions awarded, our reasoning necessarily
encompasses the propriety of granting terminating sanctions.
We presume, therefore, that after the remittitur issues, an order
striking the operative complaint and dismissing the action will be
entered.” (Id. at p. 264, fn. omitted.)
We question whether the inextricably intertwined
exception mentioned by the courts in Nickell and Mileikowsky is
valid. (See Dana Point Safe Harbor Collective v. Superior Court
(2010) 51 Cal.4th 1, 5 [“The right to appeal is wholly statutory.”];
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Powers v. City of Richmond (1995) 10 Cal.4th 85, 109 [“the right
of appeal is wholly statutory in origin”]; Levinson Arshonsky &
Kurtz LLP v. Kim (2019) 35 Cal.App.5th 896, 903 [“Unless an
order is expressly made appealable by a statute, this court has no
jurisdiction to consider it.”]; In re Marriage of Djulus (2017)
10 Cal.App.5th 1042, 1051, fn. 4 [“The right to appeal is wholly
governed by statute, and appellate courts have no jurisdiction to
consider appeals, except as provided by statute.”].) Notably, the
court in Nickell did not hold an order imposing terminating
sanctions and an order imposing monetary sanctions are
inextricably intertwined, and indeed the court concluded the
orders in that case were extricably untwined. The court in
Mileikowsky did not hold there was an “inextricably intertwined”
exception to the rule that an order imposing terminating
sanctions is not appealable; the court essentially lamented it was
unable to confine its review to what it wanted to limit the appeal
to: review of the order imposing monetary sanctions.
In any event, the order imposing terminating sanctions
here is not inextricably intertwined with the order imposing
monetary sanctions. Indeed, Forde essentially concedes as much
by not addressing the order imposing monetary sanctions in his
opening brief. Forde argues at length the court erred in imposing
terminating sanctions, but he does not write a word suggesting
the court erred in imposing monetary sanctions. (Cf.
Mileikowsky, supra, 128 Cal.App.4th at p. 276 [plaintiff’s
principal challenge on appeal was to the order imposing
monetary sanctions].) To the contrary, Forde acknowledges that
“he could be said to have been anything but punctilious” in his
discovery responses, “imperfect though they may have been,” and
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asks only that this court “reverse the terminating sanction and
remand to allow this matter to proceed on its merits.”
Moreover, the order imposing terminating sanctions and
the order imposing monetary sanctions served different purposes.
The former order leveled the litigation playing field by
compensating the Taylors and Hawrylack for Forde’s refusal to
provide in discovery the information they needed to prosecute
their complaint and defend against Forde’s cross-complaint. (See
Department of Forestry & Fire Protection v. Howell, supra,
18 Cal.App.5th at p. 191 [discovery sanctions are designed to
alleviate “the harm caused by the misuse of the discovery
process”]; Padron v. Watchtower Bible & Tract Society of New
York, Inc. (2017) 16 Cal.App.5th 1246, 1259-1260 [because
“‘[d]iscovery sanctions are intended to remedy discovery abuse,
not to punish the offending party,” discovery sanctions “‘should be
tailored to serve that remedial purpose, should not put the
moving party in a better position than he would otherwise have
been had he obtained the requested discovery, and should be
proportionate to the offending party’s misconduct’”]; NewLife
Sciences, LLC v. Weinstock (2011) 197 Cal.App.4th 676, 689,
fn. 10 [“Sanctions should be designed to remedy discovery abuses,
but should not put the party seeking the sanctions in a better
position than he or she would have been in, had the requested
discovery been provided.”].) The latter order compensated them
for the attorneys’ fees they incurred in having to prepare and file
the motion Forde unsuccessfully opposed without substantial
justification.3 (See §§ 2023.010, 2023.030, subd. (d).)
3 The $5,097.50 amount is for 15.5 hours of work by counsel
for the Taylors and Hawrylack in connection with the motion, at
the hourly rate of $325, plus a $60 filing fee.
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DISPOSITION
The motion by the Taylors and Hawrylack to dismiss the
appeal is granted, and the appeal is dismissed. Forde’s motion to
correct the notice of appeal is denied. The Taylors and
Hawrylack are to recover their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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