Opinion
B317457
11-17-2023
O.K., LLC, et al. Plaintiffs, Cross-Defendants and Respondents, v. MARCELLE MELKA, Defendant, Cross- Complainant and Appellant.
Marcelle Melka, in pro. per., for Defendant, CrossComplainant and Appellant. Greenblatt Loveridge, Frederic J. Greenblatt, and Lisa L. Loveridge for Plaintiff, Cross-Defendant, and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LC103261 Huey Cotton, Judge. Affirmed in part and dismissed in part.
Marcelle Melka, in pro. per., for Defendant, CrossComplainant and Appellant.
Greenblatt Loveridge, Frederic J. Greenblatt, and Lisa L. Loveridge for Plaintiff, Cross-Defendant, and Respondent.
BAKER, J.
Defendant, cross-complainant, and appellant Marcelle Melka (Melka) noticed an appeal from trial court rulings striking her answer and cross-complaint and imposing $11,500 in monetary sanctions. Melka's opening brief filed in this court challenges only the terminating sanctions (the striking of her answer and cross-complaint) and presents no cognizable challenge to the monetary sanctions order. We accordingly consider a question we were obliged to raise on our own motion: do we now have jurisdiction to decide the propriety of the terminating sanctions when there is no trial court judgment in the record before us?
I. BACKGROUND
Plaintiffs, cross-defendants, and respondents O.K., LLC and 1st Point Financial, Inc. (plaintiffs) sued Melka and others for breach of contract and tort claims in connection with what plaintiffs contended was a loan that had not been fully paid off. Melka and another defendant (her son) filed a cross-complaint asserting, in the main, that the loan had been paid back in full.
Before trial, Melka's attorney informed the court that Melka would not be able to attend trial because she was living abroad and in poor health. In response, the trial court ordered Melka to sit for a video deposition that could be used at trial. Wrangling over scheduling the deposition ensued for almost a year, and when Melka appeared for deposition, she answered some questions but then said she was not feeling well and counsel agreed to adjourn the deposition to a future date that would be "figure[d] out."
It was never figured out, however, and plaintiffs filed a motion to strike Melka's answer and cross-complaint because she had not completed the court-ordered deposition. The trial court declined to impose these requested sanctions but ordered that Melka's deposition must be reset-specifying the conditions under which it would take place.
Nearly six months later, with Melka's deposition still uncompleted, Melka moved for a protective order effectively asking the court to cancel the deposition in light of her poor physical and mental health. Plaintiffs responded by again filing a motion to strike Melka's answer and cross-complaint as sanctions for not appearing for deposition. Plaintiffs also requested monetary sanctions in the amount of $19,200.
The trial court granted both motions. It concluded a sufficient showing had been made that Melka was-by then- unable to sit for a deposition. But the court also concluded the requested terminating sanctions were warranted because Melka had evaded completing the deposition when she could have been deposed. In addition to striking Melka's answer and crosscomplaint, the court imposed monetary sanctions on Melka in the amount of $11,500.
The appellate record does not include a reporter's transcript of the hearing at which the trial court imposed these sanctions. But the court's minute order for the hearing states terminating sanctions were imposed because the court repeatedly ordered the deposition to go forward, Melka "stalled and resisted," and the deposition could not now go forward "more than six months after the court gave [Melka] 'one last chance.'" The minute order states it would be "patently unfair for . . . plaintiff[s] to have to proceed to trial without the full and complete testimony of Melka" and any combination of appropriate issue and evidence sanctions would effectively constitute terminating sanctions, such that the court was obliged to grant plaintiffs' terminating sanctions motion. As for the $11,500 monetary sanctions award, the minute order states it was justified in light of the resources plaintiffs expended attempting to secure "the discovery."
Melka noticed an appeal from the trial court's ruling. No judgment was made part of the appellate record, nor is there any order of dismissal signed by the trial court judge. In the portion of the form notice of appeal that asks for a statement of the code section that authorizes the appeal, Melka's notice states, "1) Code of Civil Proc. 904.1(11). 2) Per CCP 581d, order of dismissal is treated as judgment and judgment is appealable. 3) Terminating sanctions order is intertwined with appealable money sanction order. Nickel v. Matlock 206 CA 4th 934."
The opening brief Melka thereafter filed includes only passing mention of the monetary sanctions order. Instead, it argues only that the imposition of terminating sanctions was error. No reply brief was filed.
None of the subject headings in the brief make any reference to the monetary sanctions order. The brief's sole mention of the monetary sanctions ordered by the trial court comes in two sentences: "The Judge should have ordered a deposition of co-defendant Abekasais instead of striking appellant's answer, entering her default, and sanctioning her in the sum of $11,500. [¶ . . . [¶] The court also imposed $11,500 in discovery sanctions on her." There is also a reference to a "money sanction order" in the brief's statement of appealability, and this just repeats the language in Melka's notice of appeal that we have already quoted.
After completion of briefing, this court invited the parties to submit supplemental briefs addressing several related questions: "(1) is any challenge to the trial court's imposition of monetary sanctions forfeited for failure to adequately present the issue in the appellant's opening brief; (2) does this court now have jurisdiction to decide the propriety of the imposition of terminating sanctions (Code Civ. Proc., § 904.1, subd. (a)); and (3) what effect, if any, does the absence of a reporter's transcript (or suitable substitute) in the appellate record have on this appeal." Plaintiffs' supplemental brief argued Melka presented no cognizable challenge to the monetary sanctions order and this court accordingly lacks jurisdiction to decide the appeal because it is not taken from an appealable judgment. Melka's supplemental brief asserted, as to the first of the questions this court asked in its supplemental briefing invitation, that her opening brief "discussed how the trial judge could have used alternatives to monetary sanctions," cited a case holding "a judge should start with monetary sanctions before preceding to more punitive remedies," and "discussed the harshness of the monetary sanctions." In addition, Melka's supplemental brief again cited authority that terminating sanctions can be reviewed on appeal in the absence of a final judgment when those sanctions are intertwined with an appealable monetary sanctions order.
II. DISCUSSION
As we proceed to explain, the appeal must in large part be dismissed because we have no jurisdiction to entertain it.
"The right to appeal is wholly statutory. [Citation.] Code of Civil Procedure section 904.1 lists appealable judgments and orders. Chief among them is a 'judgment' that is not interlocutory, e.g., a final judgment. A judgment is the final determination of the rights of the parties [citation] '"when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined."' [Citation.]" (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) It is undisputed there is no appealable judgment in the appellate record.
Melka nonetheless offers three possible bases on which she believes the appeal could be maintained, but none are viable.
Melka argues the trial court ordered her case dismissed and a dismissal is effectively a judgment pursuant to Code of Civil Procedure section 581d. (Code Civ. Proc, § 581d ["All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes"].) Even assuming that the trial court's order here did constitute a dismissal, the argument still fails because section 581d only applies to orders of dismissal signed by the trial court and there is no signed order in the record. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577-1578.)
Melka argues Code of Civil Procedure section 904.1, subdivision (11) authorizes her appeal (we construe the reference to be to subdivision (12), which applies to monetary sanctions orders, whereas subdivision (11) applies to monetary sanctions judgments). It is true that the statute does permit appeals from a monetary sanctions order in excess of $5,000. The problem for Melka, however, is that she elected to present no adequate challenge to the monetary sanctions order and the issue is accordingly waived. (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
Finally, Melka contends the issue on which she did elect to present reasoned argument, the propriety of the imposition of terminating sanctions, can be reviewed on an interlocutory basis. She cites authority holding a court may review a terminating sanctions order on an interlocutory basis when that order is "inextricably intertwined" with another appealable order (here, the imposition of $11,500 in monetary sanctions). (See, e.g., Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940.) There are two problems with this. First, as mentioned, Melka waived any challenge to the monetary sanctions order so the issue of terminating sanctions necessarily is not inextricably intertwined with resolution of that waived issue. Second, even putting aside the waiver, we have no reliable basis to conclude the imposition of $11,500 in monetary sanctions is inextricably intertwined with the issue of terminating sanctions because we have no reporter's transcript of the key hearing. The trial court's minute order states the monetary sanctions were imposed because plaintiffs were put to the burden of attempting to secure "the discovery," but we cannot be certain the trial court concluded the discovery difficulties that warranted monetary sanctions are precisely the same difficulties with scheduling Melka's deposition.
Plaintiffs' sanctions motion referenced broader difficulties justifying monetary sanctions-including having to prepare the case for trial on several occasions and being required to appear at numerous final status conferences and trial setting conferences "necessitated by [Melka's] repeated failure to appear ready for trial[ and] failure to appear consistent with properly notices to appear in lieu of subpoenas ...."
DISPOSITION
Insofar as the appeal challenges the imposition of monetary sanctions, the trial court's order is affirmed. The appeal is dismissed, for want of an appealable judgment, insofar as it challenges the imposition of terminating sanctions. Plaintiffs are awarded costs on appeal.
I CONCUR: KIM, J.
RUBIN, P. J. - Concurring:
Under the unique set of facts present in this appeal, I concur in the judgment.