This article originally appeared in the Daily Journal on December 24, 2018.
Sports cognoscenti say the shot clock — a 24-second limit on possession of the basketball before taking a shot — saved the National Basketball Association by making its games more interesting. Appellate law has a shot clock, too: the deadline for filing a notice of appeal after an appealable judgment or order has been entered or served. If an order is appealable, the appeal must be taken within that time or the right to appellate review is forever forfeited, even if a later order or judgment in the same action is appealed. This is called California’s “one shot” rule. In re Baycol Cases I & II, 51 Cal. 4th 751 (2011).
Unfortunately, the tangled rules of appealability can make the practice of law a little too interesting by leaving a practitioner wondering when to shoot. This is particularly so when the refs cannot call the game consistently — that is, when the courts of appeal cannot agree among themselves, or even within themselves. Take for example the recent 4th District Division One decision in Finance Holding Company, LLC v. The American Institute of Certified Tax Coaches, Inc., No. D072910, 2018 WL 6257480 (Cal. Ct. App., Nov. 29, 2018).
Finance Holding obtained a money judgment against Dominque Molina, which it tried to collect. It secured an order requiring Molina’s employer, the American Institute of Certified Tax Coaches (the Institute) to produce five years’ worth of a broad swath of financial documents, not limited to those concerning Molina. The Institute produced only two documents. The court then granted Finance Holding’s motion to compel the Institute to produce the remainder.
The Institute appealed. But was the order compelling production appealable?
Code of Civil Procedure section 904.1, subdivision (a)(2) allows an appeal from an order made after an appealable judgment. The production order was entered well after the judgment against Molina, which she had appealed. But appellate rules, like the rules of sports, are often not as simple as they seem. In basketball, a player who has been fouled can take a “free” throw, but if it’s not taken within 10 seconds it doesn’t count. In appellate law, a post-judgment order that is not a final determination of the parties’ rights, or is not the last chance to appeal, is not directly appealable. Lakin v. Watkins Associated Industries, 6 Cal. 4th 644 (1993).
Did the production order in Finance Holding run afoul ofthis rule? Division One of the 4th District was hard-pressed to follow its own precedent on the question. Five years earlier, in Macaluso v. Superior Court, 219 Cal. App. 4th 1042 (2013), it had looked at a similar set of facts and decided that a post-judgment production order entered against a third party was “a final order from which an appeal may be taken.” In basketball terms, that appeal was a slam dunk.
Then, just six days later, the same division of the same district held in Fox Johns Lazar Pekin & Wexler v. Superior Court, 219 Cal. App. 4th 1210(2013), that a post-judgment production order entered against a third party was a “preliminary order pertaining to discovery, adjudicate[d] no rights, and thus [is] not appealable.” That is to say, this appeal was deemed the appellate version of an airball.
Four years later, the 2nd District Court of Appeal addressed the same issue — the appealability of a post-judgment production order directed against a third party — in Yolanda’s, Inc. v. Kahl & Goveia Commercial Real Estate, 11 Cal. App. 5th 509 (2017). The court noted the two earlier 4th District decisions, found them impossible to distinguish, and came down on the side of Fox Johns. “Because it is rarely certain whether the trial court will be issuing further discovery orders, the better approach in general is to treat such orders as not appealable.” Or, to amplify the sports cliché, it ain’t over until it’s positively, definitely over.
After reviewing these varying precedents, the 4th District in Finance Holding concluded, in an exercise in understatement, that “the different approaches to resolving a similar appealability issue leaves uncertainty in the law.” Faced with a third-party post-judgment production order, “a reasonable practitioner … would have some reasonable doubt as to whether an appeal is required ….”
The Finance Holding panel ultimately came down on the side of Macaluso and found the production order appealable. It acknowledged that Fox Johns and Yolanda’s presented a strong policy argument, in that appeals of every such production order could delay enforcement proceedings, but it concluded that appealability was supported by the language of section 904.1.
In the end, the court held that the “key test” for appealability was whether the order on its face purported to be final or contemplated future proceedings. Under that standard, the order before the court was appealable; it fully resolved the question of production and did not reserve any question for future proceedings.
The Finance Holding panel’s intention was to provide “additional clarification on the issue.” Future litigants might be excused if they still perceive some uncertainty regarding the appealability of post-judgment orders requiring third parties to produce evidence. The score now stands at 2-1 in favor of appealability in the 4th District and 0-1 against in the 2nd. Other districts have not yet reported in. The game can be tense when the shot clock is running and the refs can’t agree on the rules.
However, even in appellate law, a missed shot can remain in play. In both Fox Johns and Yolanda’s, the Court of Appeal found the production order non-appealable but elected to treat the appeal as a petition for a writ of mandate and reach the merits. This is the appellate equivalent of basketball’s alley-oop; the shot misses the goal but is tipped in nevertheless. But one cannot count on such generous officiating. A trial attorney faced with similar uncertainty about the appealability of a pressing issue might be well advised to consult an appellate specialist about a possible full-court press through a parallel appeal and writ petition.
Charles Kagay is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at www.calapplaw.com.
Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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