Also, Appeal of 1987.2 Sanctions Is a Collateral Order Subject to Review.
In the sanctions area, we have had several posts indicating that due process can result in a reversal of a sanctions award under the right circumstances. Those circumstances did exist in Scholz v. Boston Herald, Inc. (Miller, Kaplan, Arase & Co.), Case No. B231944 (2d Dist., Div. 1 June 21, 2012) (not for publication), a 3-0 opinion authored by Justice Chaney of the Second District, Division 1.
Scholz involved an accountancy business which was sanctioned $4,500 under Code of Civil Procedure section 1987.2 in a dispute through which a Massachusetts court ordered California discovery for defamation litigation by a member of the rock band Boston against the Boston Herald. (Remember the song “More Than A Feeling” which was popular when these co-contributors were in law school? Dates us, we would guess.) Section 1987.2 does allow a court to make a discretionary award of the amount of reasonable expenses incurred in making a motion to compel production if the court finds that the motion was opposed in bad faith or without substantial justification.
Accountancy firm won their appeal of the sanctions award.
First, there was the matter of whether the section 1987.2 sanctions award was appealable. It was, given that it was a collateral matter order distinct and severable from the subject of the underlying litigation. Even though a ruling from the discovery Interstate and International Depositions and Discovery Act can only be reviewed by writ, this was inconsequential with respect to the appealability of the 1987.2 sanctions order.
Second, due process required a reversal on the merits. The trial court gave no explanation for imposing sanctions, actually deleting reasons given in a tentative–that might have been sufficient–from the final order. Although other discovery motions to compel create a presumption of sanctions and put litigants on notice in this regard, section 1987.2 is so silent that the sanctioned party is left with no notice of the grounds for sanctions and no opportunity to mount an effective review. In such circumstances, the venerable due process protections come to save the day!