Ghanooni v. Super Shuttle

• Decision Date: 06 January 1992
• Docket Number: No. B053894,B053894
• Citation: 3 Cal.Rptr.2d 43,2 Cal.App.4th 380
• Court: California Court of Appeals Court of Appeals
• Parties: Dalia GHANOONI and Robert L. Esensten, a Professional Law Corporation, Appellants, v. SUPER SHUTTLE OF LOS ANGELES and Darryl Lee Fluellin, Defendants and Respondents.

Page 43

3 Cal.Rptr.2d 43

2 Cal.App.4th 380

Dalia GHANOONI and Robert L. Esensten, a Professional Law Corporation, Appellants, v. SUPER SHUTTLE OF LOS ANGELES and Darryl Lee Fluellin, Defendants and Respondents.

No. B053894.

Court of Appeal, Second District, Division 7, California.

Jan. 6, 1992.

Robert L. Esensten and Bruce A. Fields, Los Angeles, for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker and Rene J. Molligan, Los Angeles, for defendants and respondents.

JOHNSON, Associate Justice.

Plaintiff and her attorney appeal from an order imposing $3,100 in sanctions against them jointly for unsuccessfully opposing a motion to compel compliance with a demand for a physical examination (Code Civ.Proc. §§ 2032, subd. (c)(7); 2023, subd. (b)(1).) ¹ We dismiss the purported appeal because the order is nonappealable. ²

FACTS AND PROCEEDINGS BELOW

The plaintiff, Dalia Ghanooni, is suing defendants Super Shuttle and others for personal injuries she suffered on board a Super Shuttle passenger van. Plaintiff refused to submit to an X-ray examination of her back, neck and elbow which were allegedly injured as a result of defendants' negligence. Super Shuttle made a motion to compel plaintiff to submit to the examination under section 2032, subdivision (c)(2) which provides, in relevant part, "In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, provided the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive, and is conducted at a location within 75 miles of the residence of the examinee. A defendant may make this demand without leave of court...." Super Shuttle also requested sanctions under section 2032, subdivision (c)(7) which provides in relevant part, "The court shall impose a monetary sanction under Section 2023 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification, or that other circumstances make the imposition of the sanction unjust." ³

The trial court granted the motion to compel and awarded sanctions against plaintiff and her counsel, jointly, in the sum of $3,100. Plaintiff and her counsel filed a timely notice of appeal. For the reasons explained below, a sanction order under section 2032, subdivision (c)(7) is not appealable at this stage of the proceedings but may be appealed under section 906 following a final judgment in the action.

DISCUSSION

AN ORDER IMPOSING A MONETARY SANCTION UNDER CODE OF CIVIL PROCEDURE SECTION 2032, SUBDIVISION (C)(7) FOR MISUSE OF THE DISCOVERY PROCESS IS NOT MADE APPEALABLE BY CODE OF CIVIL PROCEDURE SECTION 904.1, SUBDIVISION (K)

Section 904.1, subdivision (k) provides an appeal may be taken,

"From a superior court judgment directing payment of monetary sanctions by a party or an attorney for a party only if the amount exceeds seven hundred fifty dollars ($750). Lesser sanction judgments against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ."

A split of authority exists over whether subdivision (k) makes appealable sanctions in excess of $750 awarded under authority of the discovery statutes.

One division of this court has held monetary discovery sanctions in excess of $750 are now separately appealable. (Kohan v. Cohan (1991) 229 Cal.App.3d 967, 970, 280 Cal.Rptr. 474.) Another division of this court reached the opposite conclusion in Rao v. Campo (1991) 233 Cal.App.3d 1557, 1568, 285 Cal.Rptr. 691. For the reasons set forth below, we conclude the addition of subdivision (k) to section 904.1 did not make monetary discovery sanctions under section 2032, subdivision (c)(7) separately appealable. ⁴

In order to arrive at the meaning of section 904.1, subdivision (k), we must start with its judicial and legislative background.

Under the "one final judgment rule," interim orders generally are not separately appealable. (9 Witkin, Cal.Procedure (3d ed. 1985) § 83, pp. 105-106.) The courts have recognized an exception to this rule allowing an appeal from a final order on a collateral matter which requires a party to immediately pay money. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634, fn. 3, 150 Cal.Rptr. 461, 586 P.2d 942; Rabbitt v. Vincente (1987) 195 Cal.App.3d 170, 173, 240 Cal.Rptr. 524.) However, this "collateral order" exception has been held inapplicable to monetary sanctions imposed under the discovery statutes. (Lund v. Superior Court (1964) 61 Cal.2d 698, 709, 39 Cal.Rptr. 891, 394 P.2d 707; Slemaker v. Woolley, supra, 207 Cal.App.3d at p. 1382, 255 Cal.Rptr. 532.) ⁵ Instead, these sanctions are reviewable on appeal from the final judgment in the case, (Code Civ.Proc., § 906; Kibrej v. Fisher (1983) 148 Cal.App.3d 1113, 1115, 196 Cal.Rptr. 454; Slemaker v. Woolley, supra, 207 Cal.App.3d at pp. 1381-1382, 255 Cal.Rptr. 532); or by petition for an extraordinary writ (Lund v. Superior Court, supra, 61 Cal.2d at pp. 709-710, 39 Cal.Rptr. 891, 394 P.2d 707).

Thus, prior to the adoption of subdivision (k), this is how the law stood: an order or judgment imposing monetary sanctions in any amount was separately appealable except an order or judgment imposing monetary sanctions under authority of the discovery statutes. These latter sanctions were appealable only after final judgment in the case.

The language in subdivision (k) can be traced to two sources.

In 1988, the Legislature adopted section 904.4 which provided, in relevant part, an appeal may be taken from a judgment of a superior court except "(5) any order for monetary sanctions, in an amount not exceeding five hundred dollars ($500), imposed by a court under Sections 128.5 and 2023." (Stats.1988, ch. 789, § 1.) The Legislature declared the purpose of this new section was "to assess the impact of this section on a limited basis before making it applicable on a statewide basis." (Ibid.) Section 904.4 was in effect only in San Diego County and only in calendar 1989, after which it was repealed under a sunset clause contained in the legislation. (Ibid.)

In 1989, the Judicial Council circulated a proposed amendment to section 904.1, subdivision (a) eliminating all appeals from sanction awards. The amendment provided an appeal may be taken from a superior court judgment except "(5) a judgment or order directing payment of monetary sanctions by a party or attorney." The amendment did, however, specify an appellate court could review "a judgment or order for the payment of monetary sanctions" upon petition for an extraordinary writ. (Memorandum from Judicial Council to "Persons and Organizations Interested in Rules on Appeal and Criminal Rules." (Feb. 15, 1989) at p. 10.) In explaining why it was proposing this amendment, the Judicial Council cited a recent appellate court opinion which "suggested that orders imposing monetary sanctions should not be appealable of right but should be reviewable only by discretionary writ. In that case, the sanctions order was for $750, an amount well within municipal court jurisdiction, yet was appealable to the Court of Appeal as a judgment of the superior court." (Id. at p. 2.) (The referenced opinion was subsequently ordered depublished; therefore we neither cite nor rely on it in our opinion in this case. (Cal.Rules of Ct., rule 977.))

After reviewing comments to the proposed legislation, the Judicial Council redrafted it by eliminating the original language, which would have made all sanction awards nonappealable, and proposed, instead, a new paragraph at the end of section 904.1, subdivision (a) reading:

"An appeal may be taken from a superior court judgment directing payment of monetary sanctions by a party or an attorney for a party only if the amount exceeds $5,000; lesser sanction judgments against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the Court of Appeal, may be reviewed upon petition for an extraordinary writ."

As finally enacted, the 1989 amendments to section 904.1 reflect both proposals by the Judicial Council. In subdivision (a), following the existing list of exceptions from appealable judgments, the Legislature added a provision stating the appellate court could review by writ proceeding "a judgment or order for the payment of monetary sanctions." (Stats.1989, ch. 1416, § 25.) The Legislature added a new subsection (k), quoted, supra, at page 44, which essentially tracks the Judicial Council's revised amendment but lowers the threshold amount from $5000 to $751.

In holding subdivision (k) applies to sanction awards exceeding $750 made under authority of the discovery statutes, the court in Kohan v. Cohan reasoned as follows:

"Although subdivision (k) refers to a sanction 'judgment,' it can be construed to refer to an order as well. First, by its terms, it refers to court actions taken prior to entry of final judgment, which generally are orders. Second, the Code of Civil Procedure elsewhere does not provide for sanction judgments but for orders imposing expenses or sanctions. (E.g., §§ 128.5, 177.5, 2023, subd. (b)(1).) Finally the legislative history of the subdivision constantly refers to the appeal of a 'judgment or order for the payment of monetary sanctions' (Assem. 3d reading digest on Assem. Bill No. 157 as amended Sept. 11, 1989; Sen. Com. on Judiciary summary of Assem. Bill No. 157 as amended Aug. 21, 1989 for Aug. 22, 1989 hg.; Assem. Com. on Judiciary digest of Assem. Bill No. 157 for May 24, 1989 hg.), indicating a legislative intent that the subdivision apply to both judgments and orders. In fact, the court,...