Filed 8/21/24 Marriage of Abdelbaset and Allen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re Marriage of EBTESSAM 

ABDELBASET and MYRON ALLEN.

EBTESSAM ABDELBASET,

Respondent,

v.

MYRON ALLEN,

Appellant.

D083784

(Super. Ct. No. FLHE1802594)

APPEAL from an order of the Superior Court of Riverside County, 

Randolph Rogers, Judge.* Reversed. 

Law Office of Zulu Ali & Associates, Zulu Ali; and Marvin Kennix for 

Appellant.

Law Office of Neda Aguirre and Neda Aguirre for Respondent. 

* Retired judge of the Los Angeles Superior Court assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
2

In this dissolution proceeding, the family court entered a status-only 

dissolution judgment. In a bifurcated proceeding, it entered what it 

described as a partial terminating sanction in favor of petitioner Ebtessam 

Abdelbaset (Wife) and against respondent Myron Allen (Husband),

summarily adjudicating division of 13 parcels of real property. Husband 

appeals, contending the family court abused its discretion when it refused to 

grant a stipulated continuance and by issuing the terminating sanction. 

We asked the parties to submit supplemental letter briefs addressing the 

timeliness of the appeal and the appealability of the terminating sanction 

order. We conclude Husband timely filed his notice of appeal, the sanction 

order is appealable, and the court abused its discretion by issuing discovery 

sanctions based on nondiscovery conduct.1

FACTUAL AND PROCEDURAL BACKGROUND

In September 2021, the family court entered a status-only dissolution 

judgment and granted Wife’s request to bifurcate all other issues. In August 

2022, she filed a motion for terminating and monetary sanctions based on 

Husband’s continual failure to follow the court’s orders, requesting that the 

matter proceed as a default. On October 19, 2022,2 the court held a hearing 

on reserved issues and granted a partial terminating sanction for Wife. 

1 After the family court ordered the sanction, Husband filed a 

reconsideration motion which the court denied. (Code Civ. Proc., § 1008.) 

He filed a separate notice of appeal from the order denying reconsideration. 

His opening brief contains no argument challenging this order and we deem 

this issue forfeited. (Dameron Hospital Assn. v. AAA Northern California, 

Nevada & Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982 [“ ‘An 

appellant . . . forfeits an issue by failing to raise it in his or her opening brief.’ 

”].)

2 We refer to this hearing as the “October hearing” and the October 19, 

2022, order as the “October order.”
3

The court confirmed one parcel of real property as her separate property and 

ruled the parties’ 13 other parcels of real property were deemed community 

property and divided equally between the parties. The court then stated: 

“[I]t’s likely that the reserved issues, except for support, 

have been adjudicated as set forth above. The [c]ourt finds 

it appropriate to reserve ruling on the support issue 

pending allocation of the marital assets as set forth above. 

In the meantime, the existing support orders will remain in 

full force and effect.” 

After hearing argument from Husband’s counsel about the existence 

of a prenuptial agreement regarding the real property, the court stated, 

“That’s why they’re called terminating sanctions. So that’s the ruling. I was 

expecting a fair amount of pushback, of course, but you all have your 

remedies.” Husband filed a reconsideration motion regarding the 

terminating sanctions, which the court denied. 

DISCUSSION

A. The Appeal is Timely

The time to appeal is the earliest of: “(A) 60 days after the superior 

court clerk serves on the party filing the notice of appeal a document entitled 

“Notice of Entry” of judgment or a filed-endorsed copy of the judgment, 

showing the date either was served; (B) 60 days after the party filing the 

notice of appeal serves or is served by a party with a document entitled 

“Notice of Entry” of judgment or a filed-endorsed copy of the judgment, 

accompanied by proof of service; or (C) 180 days after entry of judgment.” 

(Cal. Rules of Court, rule 8.104(a).)3 “The plain language of the rule refers to 

‘a document entitled “Notice of Entry” of judgment or a file-stamped copy of 

the judgment, showing the date either was mailed. . . .’ (Rule 8.104(a)(1), 

3 Undesignated rule references are to the California Rules of Court.
4

italics added.)” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 

894, 903.) “[T]he required ‘document entitled “Notice of Entry” ’ (rule 

8.104(a)(1)) must bear precisely that title, and . . . the “file-stamped copy of 

the judgment’ [citation] must truly be file stamped.” (Alan, at p. 903.)

Husband’s letter brief included documents showing a notice of ruling 

dated October 25, 2022, not a notice of entry of judgment, accompanied by a 

copy of the October order that was not file-stamped. Husband did not include 

a proof of service showing who mailed the notice of ruling, but he claims the 

family court mailed the minutes that were not file-stamped and Wife mailed 

the notice of ruling. 

Here, because the document served was not entitled “Notice of Entry” 

and the attached minute order was not file-stamped, the 60-day period for 

noticing an appeal was not triggered. Because of this, Husband had 180 days 

to file the notice of appeal under rule 8.104, subdivision (a)(1)(C). His appeal 

was timely because he filed the notice of appeal on February 21, 2023, which 

was 125 days after the October order granting the sanction.

B. The October order is appealable.

“An order granting terminating sanctions is not appealable, and the 

losing party must await the entry of the order of dismissal or judgment unless

the terminating order is inextricably intertwined with another, appealable 

order.” (Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940.) Here, however, 

the October 2022 order is not simply an order issuing a terminating sanction;

it also adjudicated the division of all marital real property and left no further 

court action to take on this matter.

“ ‘When a court renders an interlocutory order collateral to the main 

issue, dispositive of the rights of the parties in relation to the collateral 

matter, and directing payment of money or performance of an act, direct 
5

appeal may be taken. [Citations.] This constitutes a necessary exception to 

the one final judgment rule. Such a determination is substantially the same 

as a final judgment in an independent proceeding.’ ” (Rao v. Campo (1991) 

233 Cal.App.3d 1557, 1565.) The court in In re Marriage of Fink (1976) 54 

Cal.App.3d 357 explained: 

“It has long been established that controversies over 

spousal support, division of marital property and custody of 

minor children can be litigated in an action separate from 

the action which decrees a termination of the marriage. 

[Citations.] This concept, sometimes called ‘divisible 

divorce,’ is not inconsistent with the basic principle that a 

single action should result in only one final appealable 

judgment. Although the parties may litigate their 

controversies in several actions, each action should, under 

conventional theory, result in a single judgment disposing 

of the issues raised in that action. [¶] California law also 

recognizes a form of divisible appeal, in that a party may 

appeal either from the whole of a judgment or from a 

particular part of one. [Citation.] The general rule is that 

where portions of a judgment are truly severable, an appeal 

from one portion will bring up for review only that portion, 

leaving all other parts of the judgment in full force and 

effect. [Citation.] This principle, although conducive to 

partial adjudication, has long coexisted with the one 

judgment rule.” (Fink, at p. 362.)

The October order dividing the parties’ real property is a collateral 

matter properly litigated in a separate action after the dissolution judgment.

An appeal may be taken from this order because it decided a severable, 

collateral matter with finality. (In re Marriage of Van Sickle (1977) 68 

Cal.App.3d 728, 737; Hogoboom & King, Cal. Practice Guide: Family Law 

(The Rutter Group 2024) ¶ 16:274 [“if the court enters a judgment of 

dissolution but reserves jurisdiction over the community property division 

([Fam. Code,] §§ 2337, 2550), the subsequent property division judgment is 
6

separately appealable”].) Nothing is left for the court’s future consideration 

regarding the real property division issue except the fact of compliance or 

noncompliance with its order. (In re Marriage of Corona (2009) 172 

Cal.App.4th 1205, 1216–1217.)

C. The court abused its discretion by issuing a discovery 

sanction based on nondiscovery conduct.

Husband makes several contentions in his briefing on appeal. First, 

in his opening brief he asserts the court denied him the opportunity to be 

heard and violated his right to due process when it removed him from the 

hearing. He also claims the court abused its discretion by adjudicating the 

ownership of real property without considering less severe alternatives. In a 

supplemental brief, Husband contends the family court abused its discretion 

by denying a stipulated continuance. Finally, he claims the court’s decision 

to adjudicate property ownership as a form of terminating sanction did not 

align with the options provided in Code of Civil Procedure4 section 2023.030 

and falls outside the scope of this statute. As we will explain, the court 

abused its discretion by issuing a discovery sanction based on nondiscovery 

conduct. This conclusion moots Husband’s remaining arguments.

A trial court has a range of sanctions that can be imposed on litigants 

for disobeying a court order to provide discovery, including monetary, 

evidentiary, issue, and terminating sanctions.5 (§§ 2023.010, 2023.030.) 

The court may impose discovery sanctions only if a party fails to obey a court 

order compelling discovery. (E.g., § 2030.290, subd. (c) [motion to compel a 

response to interrogatories]; § 2030.300, subd. (e) [motion to compel a further 

4 Undesignated statutory references are to the Code of Civil Procedure. 

5 We refer to monetary, evidentiary, issue, or terminating sanctions 

generally as “discovery sanctions.”
7

response to interrogatories]; § 2031.310, subd. (i) [motion to compel a further 

response to an inspection demand]; § 2031.320, subd. (c) [motion to compel 

compliance with an inspection demand].) “The statutory requirement that 

there must be a failure to obey an order compelling discovery before the court 

may impose a nonmonetary sanction for misuse of the discovery process 

provides some assurance that such a potentially severe sanction will be 

reserved for those circumstances where the party’s discovery obligation is 

clear and the failure to comply with that obligation is clearly apparent.” 

(New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.)

Although a “court has broad discretion in selecting discovery sanctions, 

subject to reversal only for abuse,” sanctions “ ‘ “should be appropriate to the 

dereliction, and should not exceed that which is required to protect the 

interests of the party entitled to but denied discovery.” ’ ” (Doppes v. Bentley 

Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “If a lesser sanction fails to 

curb misuse, a greater sanction is warranted: continuing misuses of the 

discovery process warrant incrementally harsher sanctions until the sanction 

is reached that will curb the abuse.” (Ibid.) A terminating sanction “should 

generally not be imposed until the court has attempted less severe 

alternatives and found them to be unsuccessful and/or the record clearly 

shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible & 

Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) The court 

“cannot impose sanctions for misuse of the discovery process as a 

punishment.” (Doppes, at p. 992.) 

Here, Wife requested terminating sanctions and monetary sanctions for 

violation of the discovery process and violation of court orders. She listed the

following infractions which purportedly justified discovery sanctions against

Husband: violating a restraining order to prevent him from concealing 
8

community property; failing to show completion of court ordered programs; 

not paying child and spousal support; not paying court ordered sanctions; not 

meeting and conferring as ordered; and being unprepared for trial. Wife cites 

these same infractions as grounds to affirm the October order. 

The court stated it was granting terminating sanctions “in part” and listed 

two discovery violations and the other infractions cited by Wife as the basis 

for terminating sanctions. On appeal, Wife now characterizes the discovery 

sanction as an issue sanction adjudicating ownership of real property rather 

than a terminating sanction. Regardless of what we call it, the court abused 

its discretion by issuing a discovery sanction based on Husband’s conduct 

unrelated to the discovery process (nondiscovery conduct).

Review of the record shows Husband’s discovery violations consisted of 

disobeying a single order to provide documents and form interrogatory 

responses to Wife’s counsel and not providing court ordered mortgage 

statements.6 Although these violations, standing alone, might support some 

type of discovery sanction, the summary adjudication as community property 

of 13 pieces of real property is out of proportion to the severity of the 

transgression. Rather, the court’s reliance on a litany of Husband’s 

6 Wife states the court granted a motion to compel responses to discovery 

and issued monetary sanctions against Husband on September 24, 2020, but 

provided no citation to the record. Our review of the record revealed a 

minute order on September 24, 2020, showing the court ordered Husband to 

comply with discovery and provide documents and form interrogatories to 

Wife’s counsel. It also issued a monetary sanction in the amount of $3,415. 

We also found an order dated May 6, 2021, showing the court ordered 

Husband to comply with providing mortgages statements but he failed to do 

so. Rule 8.204(a)(1)(C) requires all appellate briefs to “[s]upport any 

reference to a matter in the record by a citation to the volume and page 

number of the record where the matter appears.” Wife’s brief runs afoul of 

this rule because it includes no record citations in the statement of the case, 

statement of facts or chart of Husband’s purported violation of court orders.
9

nondiscovery misconduct shows that the sanction was primarily intended to 

punish him for this unrelated misbehavior.

“ ‘The scope of discretion always resides in the particular law being 

applied . . . .’ ‘Action that transgresses the confines of the applicable 

principles of law is outside the scope of discretion and we call such action an 

“abuse” of discretion.’ ” (Horsford v. Board of Trustees of California State 

University (2005) 132 Cal.App.4th 359, 393.) Here, the family court was 

required to exercise its discretion within the confines imposed by the Civil 

Discovery Act, which limits the basis for sanctions to the disobedience of a 

discovery order. (§§ 2023.010, 2023.030.) Because the record demonstrates 

that the court used a discovery sanction to punish Husband for conduct not 

related to disobedience of a discovery order, we must reverse the October 

order. 

DISPOSITION

The October 19, 2022 order is reversed. Husband is entitled to costs on 

appeal.

DATO, Acting P. J.

WE CONCUR:

KELETY, J.

RUBIN, J.