Cosio v. Walters

• Decision Date: 09 October 2003
• Docket Number: A100822.
• Court: California Court of Appeals Court of Appeals
• Parties: JENINE D. COSIO et al., Plaintiffs and Appellants, v. WILLIAM WALTERS, Defendant and Respondent.

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JENINE D. COSIO et al., Plaintiffs and Appellants, v. WILLIAM WALTERS, Defendant and Respondent.

A100822.

Court of Appeals of California, First District, Division Two.

Filed October 9, 2003.

Appeal from Sonoma County, Super. Ct. No. SCV-222419.

Kline, P.J.

INTRODUCTION

Jenine Cosio and her mother Emy Cosio-Barron (plaintiffs) and their attorney John G. Warner seek to appeal discovery sanctions orders of the Sonoma County Superior Court totaling $3,750 in favor of William Walters a nonparty deponent in consolidated actions brought by plaintiffs against other parties.[¹] Recognizing these sanctions orders are not appealable, appellants request that this court either treat the matter as a petition for writ of mandate or order the trial court to enter an appealable judgment nunc pro tunc and treat the appeal as having been taken from that judgment. We decline to do either, and so dismiss the appeal as having been taken from a nonappealable order.

FACTS & PROCEDURAL BACKGROUND

In 1999 plaintiffs filed tort actions against Lysbeth Goodman and Andrew Musaelian arising out of the alleged illegal seizure of appellants' automobile by the United States Marshall to satisfy a nine-year-old bankruptcy judgment against Jenine Cosio's father. These actions were consolidated in August 2000. On July 7, 2000, William Walters appeared in Santa Rosa to give his deposition in the case. On August 31, 2000, the trial court appointed a referee for discovery. On September 18, 2000, plaintiffs sought to compel further deposition responses from Walters and also sought sanctions. On October 2, 2000, the Honorable Laurence K. Sawyer granted plaintiffs' ex parte application to modify California Rules of Court, rule 337 requiring personal service upon the deponent of a motion to compel further responses, to allow service of the motion papers upon Walters and his attorney to be effected by service upon the attorney, John David Rothschild, by express mail at his office in Sonoma California. The record contains a proof of service indicating plaintiffs' motion to compel and for monetary sanctions was served upon attorney Rothschildby placing the documents in the regular U.S. Mail (not express mail) on September 18, 2000. Thereafter, a proof of service dated November 13, 2000, declared that an amended notice of motion, motion to compel and for monetary sanctions was served on Rothschild again by depositing the documents in regular mail on November 13, 2000.

The discovery referee did not set a hearing on the matter and plaintiffs moved to set a date for the hearing. Walters opposed the motion to compel and motion for sanctions. The motion was heard on October 17, 2001, before the Honorable Raymond J. Giordano. By order dated November 27, 2001, the court denied plaintiffs' motion to compel and request for sanctions and ordered sanctions against plaintiffs and attorney Warner, jointly and severally in the sum of $2,500 to be paid to Rothschild, the attorney specially appearing for Walters. In so ruling, the court found among other things that plaintiffs' service upon Walters was not in compliance with the procedure set forth in Judge Sawyer's October 2, 2000 order granting the ex parte application to modify service requirements of California Rules of Court, rule 337; that the motion to compel further responses was not timely made pursuant to Code of Civil Procedure section 2025, subdivision (o) in that it was filed 62 days after completion of the record of the deposition; that plaintiffs' attorney was aware of the provisions of the protective order obtained in the case on May 1, 2000, and of the requirements of section 2025 and had been advised that sanctions would be sought against him.[²]

On January 8, 2002, plaintiffs filed a motion to reconsider, accompanied by a request for an order allowing plaintiffs to serve nunc pro tunc the motion papers of the previously filed motion to compel. Plaintiffs argued that they had served attorney Rothschild by Federal Express overnight delivery on September 14, 2000, some two weeks before Judge Sawyer's October 2, 2000 order allowing modified service. In his declaration filed in support of the motion allowing service of the previous motion papers nunc pro tunc, attorney Warner attached as an exhibit a copy of a Federal Express invoice dated October 20, 2000, and showing that on September 19, 2000 Federal Express delivered a packet of documents to attorney Rothschild from Warner's office. Attorney Warner also advised that a settlement of the case had been reached between plaintiffs and defendant Goodman and stating that Walters and his counsel were not dismissed. (This declaration did not advise the court that Walters had never been a party to the litigation.)

On January 14, 2002, attorney Rothschild filed opposition to the motion for reconsideration, along with a declaration of attorney fees incurred by Walters in connection with opposing the motion for reconsideration and the request for a nunc pro tunc order re service. He also requested further sanctions against plaintiffs and their counsel. On January 14, 2002, plaintiffs filed a dismissal with prejudice of their action against defendant Goodman. Plaintiffs had previously dismissed defendant Musaelian from the case. On January 14, 2002, Judge Sawyer heard and denied plaintiffs' motion for an order allowing nunc pro tunc service of the previous motion papers and set a hearing upon Walter's request for additional sanctions to occur in connection with the motion for reconsideration before Judge Giordano. On January 16, 2002, plaintiffs filed a withdrawal of their pending reconsideration motion. At a hearing held January 23, 2002, Judge Giordano ordered the motion for reconsideration dropped at plaintiffs' request and ordered further sanctions in the sum of $1,250 to be paid by attorney Warner to attorney Rothschild, as attorney specially appearing for Walters.

Plaintiffs apparently filed a motion to vacate judgment on January 2, 2002 and in early March notified Walters they had dropped that motion from the calendar.

On March 26, 2002, plaintiffs moved for entry of final judgment so that they could prosecute an appeal and requested sanctions against Walters. Walters opposed the motion pointing out that plaintiffs had never sought entry of a judgment against the defendants, but had proceeded by way of a request for dismissal of the parties. A minute order indicates that this motion was "[d]ropped for failure to file proof of service on all named parties."

On June 18, 2002, plaintiffs filed a "notice of motion and motion for new trial, combined with motion to vacate judgment." Walters opposed the motion, arguing the court lacked jurisdiction to make further orders because the dismissals of both named defendants terminated the action. By order filed August 28, 2002, Judge Sawyer denied plaintiffs' motion to vacate judgment and for new trial and also denied Walters' request for further sanctions. The court found it "no longer has jurisdiction of this matter since Plaintiff has filed a voluntary dismissal" and "[t]here is no judgment to be vacated and no trial has occurred."

On September 6, 2002, plaintiffs moved the court for "an order entering a court judgment in the sum of thirty-seven hundred and fifty dollars ($3,750.00), plus any court costs or pre-judgment interest that may be allowed by the court." By an order filed October 28, 2002, Judge Knoel L. Owen denied the motion for entry of a court judgment in favor of Walters and against plaintiffs, finding that "the moving party has not provided authority...