Filed 9/8/21 Certified for Publication 9/10/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DR. V PRODUCTIONS, INC.,

Plaintiff and Respondent,

v.

SAMANTHA REY,

Defendant and Appellant.

B312605

(Los Angeles County

Super. Ct. No. 

20STCV23176)

ORDER DISMISSING 

APPEAL

BY THE COURT:

Plaintiff and respondent Dr. V. Productions, Inc. moves to 

dismiss defendant and appellant Samantha Rey’s appeal from an 

order denying appellant’s motion for $273,484.56 in attorney’s 

fees under Civil Code section 3426.4 (section 3426.4). That 

statute provides for attorney’s fees for the bad faith prosecution

of a trade secret misappropriation claim. Respondent argues the 

order is not separately appealable. We agree.

I.

The underlying litigation, filed in 2020, stems from a 

former employment relationship between appellant and 
2

respondent. Respondent is an entertainment production 

company, and appellant held various positions with the company. 

After appellant was terminated, respondent brought suit against 

her and related parties. Generally speaking, the complaint 

alleged that, after appellant’s termination, she converted and 

destroyed documents that belonged to respondent. According to 

the complaint, the files in question “included the vast majority of 

Respondent’s proprietary company information.” The current 

lawsuit is the third among the parties.

In the present action, after significant discovery, 

respondent voluntarily dismissed its misappropriation of trade 

secrets cause of action. That left remaining claims for breach of 

fiduciary duty, “abuse of control,” gross mismanagement, 

corporate waste, conversion, and extortion. Those claims are still 

outstanding.

Following the dismissal of the trade secrets cause of action, 

appellant moved for an award of attorney fees under section 

3426.4. On March 10, 2021, the trial court denied the motion. 

Appellant appealed, and respondent moved to dismiss the 

appeal.1

1 On the same date, the court ruled on various other matters. 

The current appeal involves only the denial of attorney fees.
3

II.

Section 3426.4 provides: “If a claim of misappropriation is 

made in bad faith, a motion to terminate an injunction is made or 

resisted in bad faith, or willful and malicious misappropriation 

exists, the court may award reasonable attorney’s fees and costs

to the prevailing party. Recoverable costs hereunder shall 

include a reasonable sum to cover the services of expert 

witnesses, who are not regular employees of any party, actually 

incurred and reasonably necessary in either, or both, preparation 

for trial or arbitration, or during trial or arbitration, of the case 

by the prevailing party.”

In enacting the statute, “the Legislature was concerned 

with curbing ‘specious’ actions for misappropriation of trade 

secrets, and such actions may superficially appear to have merit.”

(Gemini Aluminum Corp. v. California Custom Shapes, Inc.

(2002) 95 Cal.App.4th 1249, 1262.) An award of reasonable 

attorney’s fees may act “ ‘as a deterrent to specious claims of

misappropriation. . . .’ M. Jager, Trade Secrets Law, APP.A1 at

13 (1988) (emphasis added).” (Stilwell Development Inc. v. Chen

(C.D. Cal., Apr. 25, 1989, No. CV86-4487-GHK) 1989 WL 418783,

at *3, 1989 U.S. Dist. Lexis 5971, emphasis in district court

opinion.)

There are few California appellate opinions that discuss

section 3426.4, and we have found none that addresses whether
4

there is a right to an interlocutory appeal such as this one.2 So

we apply general principles of appellate jurisprudence in deciding

whether or not to dismiss the appeal.

“The right to appeal is conferred by statute. [Citation.] 

Code of Civil Procedure section 904.1, subdivision (a) lists 

appealable judgments and orders.” (Apex LLC v. Korusfood.com 

(2013) 222 Cal.App.4th 1010, 1014-1015 (Apex).) Appellant does 

not contend that the order in question is appealable pursuant to 

that section. Instead, she asserts that the order is an appealable 

“collateral order.” 

“An appeal is allowed if the order is a final judgment 

against a party in a collateral proceeding growing out of the 

action.” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 (Sjoberg).)

“To qualify as appealable, the interlocutory order must be a final 

determination of a matter that is collateral—i.e., distinct and 

severable—from the general subject of the litigation.” (Koshak v. 

Malek (2011) 200 Cal.App.4th 1540, 1545.) 

Appellant concedes at page 17 of her opposition brief that 

appeals allowable from collateral orders in this context typically 

2 Many of the opinions that address section 3426.4 are from 

the United States District Court. Stilwell, a case mentioned in 

the text, is one. The parties do not cite, and we have not found,

any California appellate case involving an interlocutory appeal of 

a section 3426.4 order. The California appeals are all post 

judgment. 
5

involve the direct payment of money or performance of an act. 

(See, e.g., Apex, supra, 222 Cal.App.4th 1010,1016; Marsh v. 

Mountain Zephyr, Inc. (1996) 43 Ca1.App.4th 289, 297-298.) The 

present case involves neither – the court refused to order 

respondent to pay attorney fees; the court did not order the 

performance of any other act. Appellant posits two theories why 

the order denying attorney’s fees in this setting is nevertheless 

appealable. 

Appellant’s first theory is that, if a collateral order that 

directs payment of attorney fees (i.e. “payment of money”) is 

appealable, by parity of reasoning the opposite should be true. 

We disagree for two reasons. The modern formulation of the rule 

is found in Sjoberg, supra, 33 Cal.2d at page 119: “An appeal is 

allowed if the order is a final judgment against a party in a 

collateral proceeding growing out of the action. [Citations.] It is 

not sufficient that the order determine finally for the purposes of 

further proceedings in the trial court some distinct issue in the 

case; it must direct the payment of money by appellant or the 

performance of an act by or against him.” This articulation 

makes no mention of an order denying the payment of money or 

refusing to require performance of an act. Rutter refers to this 

distinction as the “majority view.” (Eisenberg, et al., Cal. 

Practice Guide, Civil Appeals and Writs, § 2.78, p. 2-56.) “If 

instead, the interim order or judgment is ‘prohibitive’ in effect 
6

(e.g. merely prevents the payment of money or performance of an 

act), the weight of authority holds that it is not directly 

appealable and the right of appeal must await a final judgment.”

(Ibid, emphasis in original.)

Appellant’s argument also overlooks that, in our appellate 

jurisprudence, statutes are not always reciprocal to the parties.

Some authorize an appeal by one side to a matter but deny that 

right to the other side. (See, e.g., Code of Civ. Proc, § 437c, 

subdivision (m) [orders granting summary judgment appealable; 

denials of summary judgment reviewed by writ]; Code of Civ. 

Proc., § 1294, subd. (a); Nelsen v. Legacy Partners Residential,

Inc. (2012) 207 Cal.App.4th 1115, 1121 [“Orders granting motions 

to compel arbitration are generally not immediately 

appealable.”]; Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 

171, 176 [“The denial of a motion to compel arbitration is an 

appealable order.”]; Cf. Doe v. Luster (2006) 145 Cal.App.4th 139, 

150 [a separate order granting or denying attorney’s fees in 

connection with an anti-SLAPP motion (§§ 425.16, et seq.) is 

itself not separately appealable].)

Appellant has not articulated any policy reason why the 

collateral order rule under Sjoberg and other cases should be 

extended to permit an interlocutory appeal of an order denying 

an award of attorney fees during the time the bulk of the 

litigation is ongoing in the trial court.
7

Appellant’s second theory of appealability relies on

authority that favors a more holistic approach to the issue. 

Appellant cites as an example Meehan v. Hopps (1955) 45 Cal.2d 

213, 215-217. There, the Supreme Court held that an order 

denying a motion to disqualify opposing counsel was appealable. 

The court made no mention of the payment of money or 

performance of an act. Instead, the court analogized the motion 

to the denial of injunctive relief and concluded that the order was 

collateral: “The matter of disqualification of counsel is 

unquestionably collateral to the merits of the case.” (Id., at 

pp. 216–217.)

Appellant also relies on Muller v. Fresno Community 

Hospital & Medical Center (2009) 172 Cal.App.4th 887 for a what 

she claims is an expansive collateral order rule: “When the order 

does not require a payment of money or the performance of an 

act, the Supreme Court will find the order appealable without 

reference to these limitations, as long as the court is satisfied that 

the order is truly collateral.” (Id. at p. 902; emphasis in original.) 

We first observe that our colleagues in the First District, 

Division 2, have cautioned against an expansive interpretation of 

the collateral order doctrine. (Conservatorship of Rich (1996) 

46 Cal.App.4th 1233, 1235 (Rich).) There, the conservator had

moved to substitute counsel in a conservatorship proceeding. The 

motion was denied, and the conservator appealed. The Court of 
8

Appeal dismissed the appeal. As for those courts that have not 

faithfully followed the Supreme Court’s opinion in Sjoberg, the 

Rich court had this to say: “We consider this line of cases 

aberrant. In the seminal case articulating the exception, Sjoberg 

[citation], Justice Traynor could not have been more clear that 

such an order must pass two tests to be appealable: ‘It is not 

sufficient that the order determine finally for the purposes of 

further proceedings in the trial court some distinct issue in the 

case; it must direct the payment of money by the appellant or the 

performance of an act by or against him.’ ” (Rich, supra, at 

p. 1237.)

Even if we were to apply the broader standard that 

appellant suggests, this appeal would lack legal vitality. The 

order before us is not “truly collateral” under Muller. In contrast, 

the order disqualifying counsel as in Meehan unquestionably was 

unrelated to the merits of the parties’ dispute. Not so here.

Appellant’s motion addressed only one of respondent’s causes of 

action; six remain. “A party may not normally appeal from a 

judgment on one of [the] causes of action if determination of any 

remaining cause is still pending.” (Tenhet v. Boswell (1976) 

18 Cal.3d 150, 153. See also Griset v. Fair Political Practices 

Com. (2001) 25 Cal.4th 688, 697) [“piecemeal disposition and 

multiple appeals in a single action would be oppressive and 

costly”].) 
9

At its core, this is a lawsuit about the claimed destruction 

and conversion of corporate documents, a claim common to the 

trade secret cause of action and all the others. Whether some or 

all of the documents were truly trade secrets is likely not 

dispositive of the remaining claims, and, hence, the order denying 

attorney fees cannot be said to be collateral. (Cf. Yield Dynamics, 

Inc. v. TEA Systems Corp (2007) 154 Cal.App.4th 547, 579 [trade 

secret claim “was intractably intertwined” with “claims for breach 

of the asset agreement”].) 

Appellant asks that, if the court is inclined to dismiss the 

appeal, the notice of appeal should be treated as a petition for a 

writ of mandamus. We decline to do so. Appellant has an 

adequate remedy on appeal, just not at this time.

We also deny respondent’s request for sanctions for 

appellant having filed a frivolous appeal. We cannot say at this 

juncture that appellant’s appeal was prosecuted for an improper 

motive or indisputably lacks merit. (In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 650.)

The appeal is dismissed.

____________________________________________________________

 RUBIN, P. J. MOOR, J. KIM,J.
Filed 9/10/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DR. V PRODUCTIONS, INC.,

Plaintiff and Respondent,

v.

SAMANTHA REY,

Defendant and Appellant.

B312605

(Los Angeles County Super. 

Ct. No. 20STCV23176)

ORDER CERTIFYING ORDER 

OF DISMISSAL FOR 

PUBLICATION

[No change in judgment] 

BY THE COURT:

APPEAL from an order of the Los Angeles Superior 

Court, Michael L. Stern, Judge. Dismissed.

Lefkowitz Law Group, Jamie Lefkowitz for Defendant 

and Appellant. 

Traction Law Group and Charles Menzies; KJC Law 

Group, A.P.C. and Kevin Jason Cole for Plaintiff and 

Respondent.

__________________________
2

The order of dismissal in the above-entitled matter filed on 

September 8, 2021, was not certified for publication in the 

Official Reports. For good cause, it now appears that the order 

should be published in the Official Reports and it is so ordered.

There is no change in judgment.

____________________________________________________________

 RUBIN, P. J. MOOR, J. KIM,J.