Filed 6/11/20 Minasian v. Katz CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MICHAEL MINASIAN,

Petitioner,

v.

ROSA KATZ,

Respondent.

A158517

(Alameda County Super. Ct.

No. RF04168743)

This case dates back to 2004, when petitioner Michael Minasian filed a petition to establish parental relationship with a child born in 2003 to him and respondent Rosa Katz. While the record is extensive, the appeal concerns a very narrow issue: a set of requests for admission (RFAs) Minasian propounded on Katz.

Minasian served the RFAs in September 2018. Katz responded, but Minasian considered the responses inadequate and filed a motion to have the RFAs deemed admitted and for sanctions. Katz served a second response to the RFAs, which Minasian still considered inadequate.

Minasian’s motion came on for hearing on February 5, 2019. On March 8, the trial court entered an order denying the motion and sanctioning Katz $195 for “late responses,” followed by an amended order that corrected minor errors but was substantively the same. Minasian filed a motion to set aside that order and for reconsideration. The court heard argument on the motion on May 3 and took the matter under submission.

At a hearing on May 16, the trial court orally ruled on Minasian’s motion. As set forth in a written order entered on August 28, the ruling was in pertinent part as follows: “The Court grants the Petitioner’s request to set aside the Findings and Order After Hearing that was filed on 3/8/2019. The Respondent has 21 days to file a proper response to attachment 1, #’s 1–6, of Petitioner’s request for admission. Respondent is sanctioned $195.00.”

On September 24, 2019, Minasian filed a notice of appeal that states he is appealing from a “Judgment after court trial” entered on May 16, 2019—the date of the oral ruling on his discovery motion. Appended to the notice are the minutes from the May 16 hearing. His civil case information statement likewise indicates he is appealing a judgment after court trial, identifying August 28, 2019—the date of the discovery order—as the date the judgment was entered.

Minasian’s opening brief describes the appeal as follows: “At issue is the Order of the Trial Court made at hearing on May 16, 2019 [citation], addressing the Request for Order (RFO) and Motion Deeming Admitted the Truth of Facts filed by the Petitioner on January 2, 2019 [citation]; which Motion in turn resulted from the prior Request for Admission (hereinafter RFA) served on the Respondent by the Petitioner on September 9, 2018 [citation]. The Trial Court (hereinafter Court) ruled that the Respondent would have 21 more days in which to file her responses to the RFA [citation]. That order is beyond the authority and range of discretion the Court possesses in this instance.”

The foregoing makes it clear that Minasian appeals a discovery order, not a judgment. Such an order is not appealable, and the appeal must be dismissed.

“The right to appeal is wholly statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) Therefore, “ ‘ “[n]o appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law. . . .” ’ ” (City of Gardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595, 601, italics omitted.) There is no statutory provision for appeal of an order granting or denying a discovery motion. (See Lund v. Superior Court of Orange County (1964) 61 Cal.2d 698, 709 [discovery orders are nonappealable and any challenge to such orders must await appeal from a final judgment]; Code Civ. Proc., § 904.1.)

“[A] reviewing court is ‘without jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own motion.’ ” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) Accordingly, we have no jurisdiction to rule on the discovery order challenged by Minasian, and we are compelled to dismiss his appeal. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432 [“it is the duty of the court to dismiss an appeal from an order that is not appealable”].)

DISPOSITION

The appeal is dismissed.

 

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

Minasian v. Katz (A158517)