An Appealing Discovery Writ

In SCC Acquisitions, Inc. v. Superior Court (G050546 Dec. 11, 2015) 4/3 hands the petitioner/appellant a Pyrrhic victory, treating an appeal from a post-judgment order as a petition for writ of mandate. In seeking to enforce a $47 million judgment, judgment creditor Western propounded requests for production, following up with a motion to compel, which the trial court granted, prompting an appeal by SCC. Western sought to dismiss the appeal on the ground the order granting a motion to compel was not an appealable order. Au contraire, responded SCC, asserting the order was an appealable post-judgment order under section 904.1, subdivision (a)(2). After reciting the general rule of appealability of post-judgment orders: "(1) the issues raised by the appeal from the order must be different from those arising out of the appeal from the judgment and (2) the order must affect, enforce, or stay execution of judgment," the court noted non-appealable orders tend to be those which "are preliminary to a later judgment" or "pertain to preparation of the record for use in a later appeal;" the Court noted several conflicting opinions concerning the appealability of post-judgment discovery orders, explaining: "These authorities are inconclusive as to whether the order granting the motion to compel is appealable." Although siding with the "non-appealable" reasoning, the Court declined to dismiss the appeal because there was no adequate remedy at law if the order was not appealable, and the parties had fully briefed the matter, especially since the law was hazy on the issue. It exercised its discretion to treat the appeal as a petition for writ of mandate. All was not well for SCC, however, as the Court denied the newly-incarnated writ petition, finding no abuse of discretion, thereby, once again demonstrating you can win appellate battles, but still may lose the war. read the opinion: