Greene v. Amante

• Decision Date: 11 February 1992
• Docket Number: No. G010762,G010762
• Citation: 4 Cal.Rptr.2d 571,3 Cal.App.4th 684
• Court: California Court of Appeals Court of Appeals
• Parties: Walter GREENE, Jr., Plaintiff and Appellant, v. Jerome L. AMANTE et al., Defendants and Respondents.

Page 571

4 Cal.Rptr.2d 571

3 Cal.App.4th 684

Walter GREENE, Jr., Plaintiff and Appellant, v. Jerome L. AMANTE et al., Defendants and Respondents.

No. G010762.

Court of Appeal, Fourth District, Division 3, California.

Feb. 11, 1992.

Certified for Partial Publication. ^*

[3 Cal.App.4th 685] Walter Greene, Jr., in pro. per.

No appearance for defendants and respondents.

OPINION

SILLS, Presiding Justice.

Occasionally we are faced with an appeal that presents an important issue almost in spite of itself. This is such a case. Walter Greene, an attorney representing himself in the trial court as well as here, appeals from a $794 discovery sanctions order levied against him for failure to fully respond to interrogatories. He claims the statute authorizing such sanctions is unconstitutionally vague, a claim we will reject in the unpublished portion of this opinion. The more interesting question for us, however, is whether Greene can appeal this order at this time. Three recent Court of Appeal opinions have reached differing conclusions when faced with this issue. We find that Greene is properly before us, but his victory is pyrrhic: We affirm the sanctions award.

FACTS

It did not take us long to thoroughly analyze the record on appeal in this case. It consists of one page. Greene, electing to file an appendix in lieu of the clerk's transcript (Cal.Rules of Court, rule 5.1), has provided us solely with a copy of the minute order from the hearing at which sanctions were awarded. We would think this has provided us with at least a tie for the world's shortest record on appeal. ¹

We really do not know what this case is about, since Greene has not provided us with copies of the complaint or the answer. We do not even know the nature of the interrogatories to which Greene did not respond in a complete fashion. ² We do know that, on January 29, 1991, the trial court granted defendants' motion to compel further responses, with 30 days to answer. We also know the court granted the motion for sanctions; it checked the box on the preprinted minute order form and, with appropriate handwritten additions, the order stated: "The court finds failure to answer interrogs was willful and without substantial justification and imposes sanctions in amount of $794.00 to be paid by plaintiff. Court reserves ruling on sanctions against Law Office of Walter Greene, Jr." ³ According to our records, Greene filed his notice of appeal in a timely fashion on March 5, 1991. ⁴

DISCUSSION

I

We must first decide if an order directing the payment of $794 in discovery sanctions is appealable. ⁵ Code of Civil Procedure section 904.1 governs appeals from superior court in civil cases, ⁶ and subdivision (a) provides generally that an appeal may be taken from "a judgment." Subdivision (k) of the statute provides that an appeal may be taken "[f]rom 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."

The question of whether subdivision (k) operates to make discovery sanction orders appealable has engendered considerable debate within the Second District Court of Appeal. In Kohan v. Cohan (1991) 229 Cal.App.3d 967, 280 Cal.Rptr. 474, Division One of the Second District held that discovery sanction orders over $750 are appealable under subdivision (k). The Kohan court listed three reasons to support its conclusion. First, subdivision (k) refers to court actions (payment of sanctions) which are almost always taken prior to final judgment, and thus are typically embodied in orders, not judgments. (Id. at p. 970, 280 Cal.Rptr. 474.) Second, statutes authorizing sanctions generally provide for orders imposing sanctions, not judgments. (Ibid., citing Code Civ.Proc., §§ 128.5, 177.5, 2023, subd. (b)(1).) Third, the legislative history of subdivision (k) consistently referred to the appeal of a judgment or order for the payment of monetary sanctions, thus "indicating a legislative intent that the subdivision apply to both judgments and orders." (Ibid., citing Assem.3d reading 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 hg.; Assem.Com. on Judiciary digest of Assem.Bill No. 157 for May 24, 1989 hg.) The losing party in Kohan did not seek review in the California Supreme Court.

Kohan was severely criticized by Division Three of the Second District in Rao v. Campo (1991) 233 Cal.App.3d 1557, 285 Cal.Rptr. 691. According to Rao, "[t]he basic fallacy of the Kohan holding is its failure to distinguish between interlocutory or interim orders which are not appealable, e.g., orders imposing monetary discovery sanctions [citation], and final orders on collateral matters directing payment of money or performance of an act, which are directly appealable, e.g., monetary sanctions under section 128.5 [citation] and section 177.5 [citation]." (Id. at p. 1566, 285 Cal.Rptr. 691.) The Rao court observed that, traditionally, discovery sanction orders have not been appealable (id. at p. 1565, 285 Cal.Rptr. 691, citing Lund v. Superior Court (1964) 61 Cal.2d 698, 709, 39 Cal.Rptr. 891, 394 P.2d 707), and felt that this time-honored distinction between discovery sanction orders (nonappealable) and other sanction orders (appealable) survived the enactment of subdivision (k).

The Rao court also criticized Kohan 's "fail[ure] to address" the effect of the amendment to subdivision (a) of section 904.1. (Rao, supra, 233 Cal.App.3d at p. 1567, 285 Cal.Rptr. 691.) Subdivision (a) was amended in 1989 (at the same time subdivision (k) was enacted), and provides that "an appellate court may, in its discretion, review ... a judgment or order for the payment of monetary sanctions, upon petition for an extraordinary writ." (Italics added.) According to the Rao court, "[t]he word 'order' in subdivision (a) ... signifies interlocutory or interim orders only. Neither the legislative history nor the language of section 904.1, as amended in 1989, supports an interpretation of subdivision (k) that would make discovery sanction orders over the sum of $750 independently appealable. Such orders had never been appealable prior to the 1989 amendment of section 904.1 and there is no basis in law for construing such orders to be appealable pursuant to subdivision (k) after that amendment." (Rao, supra, 233 Cal.App.3d at p. 1568, 285 Cal.Rptr. 691.) As in Kohan, the losing party in Rao did not seek review in the Supreme Court.

Most recently, Division Seven of the Second District joined the fray in Ghanooni v. Super Shuttle of Los Angeles (1991) 2 Cal.App.4th 380, 3 Cal.Rptr.2d 43. The Ghanooni court pointed out subdivision (k) was not the first time the Legislature had set a "dollar minimum" to make sanction orders appealable. In 1988, the Legislature enacted section 904.4, which established a one-year pilot program applicable to San Diego County. Under this statute, discovery sanctions orders made pursuant to section 2023 (as well as sanctions imposed under section 128.5) were made appealable only if they exceeded $500. The purpose of the section was "to assess the impact of this section on a limited basis before making it applicable on a statewide basis ..." (Stats.1988, ch. 789, § 1.) Unfortunately, former section 904.4 was never cited in the legislative history to subdivision (k), so we do not know what effect (if any) it had on subdivision (k). The Ghanooni court acknowledged that, by omitting any reference to section 2023 (or section 128.5) that had been previously contained in former section 904.4, subdivision (k) could be read to make any sanctions award appealable if it exceeded the statutory minimum of $750. (Ghanooni, supra, 2 Cal.App.4th at pp. 387-388, 3 Cal.Rptr.2d 43, citing Laborers' Internat. Union of North America v. El Dorado Landscape Co. (1989) 208 Cal.App.3d 993, 999, 256 Cal.Rptr. 632.) Nonetheless, Ghanooni elected to follow Rao, stating that the failure to mention discovery sanctions in subdivision (k) could evidence a legislative intent not to expand the categories of appealable sanction orders, and that such a conclusion was consistent with the Legislature's expressed intent to restrict review of sanction awards in general. (Ghanooni, supra, 2 Cal.App.4th at pp. 387-388, 3 Cal.Rptr.2d 43.)

We do not know if the losing party in Ghanooni will seek further review of that case. Suffice to say that we are currently without Supreme Court guidance on the issue before us, and we must therefore choose between these conflicting opinions. The courts in Rao and Ghanooni obviously felt that subdivision (k) does not operate to make previously nonappealable sanctions orders appealable. If we were to view this issue solely on policy grounds, we might well agree with these decisions. We do not believe, however, that subdivision (k) can be dismissed so easily. The legislative history of subdivision (k) cited in Kohan (and ignored in Rao ) is very troublesome, because it completely undermines the theory that the absence of the word "order" in subdivision (k) was intentional or meaningful. We have independently reviewed the legislative history, and every relevant document states in essence that the amendment would eliminate the right of appeal "from a judgment or order " directing sanctions in an amount less than $750. (See, e.g., Sen.Ways & Means Com. summary of Assem.Bill No. 157 as amended May 16, 1989 for June 14 hg.; Office of Leg.Analyst, analysis of Assem.Bill No. 157 as amended May 16, 1989, prepared June 8, 1989.) ⁷

The legislative history makes it clear that the Legislature thought the terms "order" and "judgmen...