Guillemin v. Stein

• Decision Date: 09 December 2002
• Docket Number: No. C039535.,C039535.
• Citation: 104 Cal.App.4th 156,128 Cal.Rptr.2d 65
• Parties: Richard L. GUILLEMIN, Cross-Complainant and Appellant, v. Paul STEIN et al., Cross-Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

128 Cal.Rptr.2d 65

104 Cal.App.4th 156

Richard L. GUILLEMIN, Cross-Complainant and Appellant, v. Paul STEIN et al., Cross-Defendants and Respondents.

No. C039535.

Court of Appeal, Third District.

December 9, 2002.

Appeal from a judgment and orders of the Superior Court of Calaveras County, Robert L. Martin^*, Nels B. Fransen^**, Harold Franklin Bradford^† and Don F. Howard.^‡ Affirmed in part and dismissed in part; sanctions vacated.

Richard L. Guillemin, in pro per.; William Brewer & Associates and William K. Brewer, El Cajon, for Cross-Complainants and Appellants.

Barkett, Gumpert & Reiner and Franklin G. Gumpert, Sacramento, for Cross-Defendants and Respondents.

DAVIS, Acting P.J.

Richard Guillemin purports to appeal from the judgment of dismissal of his cross-complaint that the trial court entered after sustaining the demurrer of Paul Stein and Ray Waller to the only counts of the pleading naming them as cross-defendants. He also appeals from two post-judgment orders awarding costs and sanctions. We shall dismiss the appeal from the judgment and from an award of discovery sanctions as untimely. We shall affirm the award of costs, but will vacate the associated sanctions. In doing so, we construe Government Code section 6103.5 as authorizing the recovery of costs for filing fees when a judgment is entered in favor of public officials acting in their official capacity. Guillemin's argument to the contrary is neither frivolous nor otherwise a proper basis for imposing sanctions.

I

The trial court entered judgment dismissing the cross-complaint against cross-defendants Stein and Waller on August 16, 2001, and they served notice of entry on Guillemin the next day. Sixty-one days later (October 17), Guillemin filed his notice of appeal. The cross-defendants contend the notice of appeal is untimely. Guillemin concedes the point in his reply brief, but asks "by separate motion, relief to consider his late filed appeal on the grounds that the late filing was due to circumstances beyond his control." This is the entirety of his response.

Guillemin had 60 days from the date of service of the notice of entry of judgment to file his notice of appeal. (Rule 2(a)(2), Cal. Rules of Court.) Not only is his invocation of unspecified "circumstances beyond his control" merely conclusory, it is irrelevant. The 60-day period here pertinent in which to file a notice of appeal is mandatory, and we do not have jurisdiction to consider an appeal filed even one day after it expires. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349; Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 828-829, 80 Cal. Rptr.2d 549.) We must therefore deny his motion to permit consideration of late-filed notice of appeal and request for judicial notice and dismiss the appeal from the judgment without reviewing Guillemin's claim that he has stated a cause of action under Civil Code section 52.1 in the eighth count of the cross-complaint.

II

Before entry of the judgment dismissing the cross-complaint against Stein and Waller, the trial court granted the motion of the cross-defendants to compel further responses to their interrogatories and awarded sanctions of $1,643. In issuing a postjudgment order denying Guillemin's motion to tax costs, the trial court included a "confirmation" of its earlier award of discovery sanctions.

Sanctions for discovery abuse are not separately appealable unless they exceed $5,000. (Code Civ. Proa, § 904.1, subd. (b); see Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 621, 84 Cal.Rptr.2d 73.) They otherwise can be reviewed only in the appeal from the final judgment in the main action. (Russell v. General Motors Corp. (1992) 3 Cal.App.4th 1114, 1119, 4 Cal.Rptr.2d 750.) The order awarding discovery sanctions was thus part of the judgment in the present matter, and is beyond our review for want of a timely appeal.

It is immaterial that the trial court later "confirmed" its sanctions award in a postjudgment order from which there is a timely appeal. In order to be appealable, a postjudgment order must also raise an issue different from those embraced in the judgment; otherwise it would give a party two chances to appeal the. same ruling and thus (as in the present case) circumvent the time limit on appealing from the judgment. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651, 25 Cal.Rptr.2d 109, 863 P.2d 179.) As a result, the inclusion of the award of discovery sanctions in the postjudgment order is a nullity. We will dismiss that part of the appeal from the postjudgment order.

The sole issues on which our jurisdiction is properly invoked are a $364 cost item and $690 in sanctions. We now turn to these issues.

III

A

The judgment of dismissal did not specify the amount of costs to which the cross-defendants were entitled. They subsequently filed a memorandum of costs of $364 for fees for their first appearance. Mr. Guillemin filed his notice of motion to tax this cost. He argued that neither cross-defendant had paid filing costs because they were "governmental defendants." (Cross-defendant Stein apparently was a member of the Calaveras County Board of Supervisors, while cross-defendant Waller was the director of the county's planning department.)

The cross-defendants' opposition asserted that Government Code section 825¹ required Calaveras County to assume their defense because their actions arose out of the scope of their employment.² As a result, section 6103 exempted them from paying a filing fee.³ They contended that they then were entitled under section 6103.5 to recover the costs as part of the judgment in order to pay the fees to the court.⁴ The cross-defendants also moved for sanctions against Guillemin and his attorney for a frivolous motion. (Code Civ. Proc., § 128.7.) Guillemin replied that cross-defendants were not entitled to recover filing fees as costs because they never incurred the expense, and were individuals rather than public agencies.

In the trial court's order denying the motion to tax costs, it awarded what it termed the "deferred filing fees." Following a subsequent hearing on the request for sanctions, the trial court also granted the motion for sanctions, awarding $690. In its order, the trial court stated, "It was absolutely clear that ... § 6103.5 authorized deferral of filing fees for public officials and that the costs claimed by Cross Defendants were incurred and will have to be paid to the Court Clerk if recovered."

B

Section 6103 provides in pertinent part that "[n]either the state nor any county, city, district, or other political subdivision, nor any public officer or body, acting in [an] official capacity ..., shall pay ... any fee for the filing of any document...."

Guillemin contends this statute exempts public officials from paying filing fees, thus public officials do not incur any costs in this regard. He asserts that they therefore cannot recover filing fees under one of the general requirements of costs set forth in Code of Civil Procedure section 1033.5: "Costs are allowable if incurred, whether or not paid." (Code Civ. Proc., § 1033.5, subd. (c)(1), italics added.)⁵

We are not persuaded. The language of section 6103 does not say the fees do not accrue. Rather, it says only that the state, counties, cities, districts, political subdivisions, and public officers or bodies acting in an official capacity are exempt from payment of the fees. Moreover, the argument disregards the plain language of section 6103.5, which provides in pertinent part:

"(a) Whenever a judgment is recovered by a public agency named in Section 6103 ... in any action or proceeding ..., which under the provisions of Section 6103 no fee for any ... filing ... has been paid, ... the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee ... which would have been paid but for Section 6103, designating it as such....

"(b) When an amount equal to the clerk's fees ... is collected upon a judgment pursuant to subdivision (a), those amounts shall be due and payable to the clerk...."

It is apparent that section 6103.5 considers the filing fees to be an existing debt that simply remains unpaid. Filing fees are therefore costs incurred but not paid, which are recoverable under the general costs statute. Moreover, section 6103.5 specifically prescribes the inclusion of these fees as costs in a judgment; therefore a trial court does not have any discretion to tax them.

This leaves Guillemin's argument that section 6103.5 does not pertain to public officers such as the cross-defendants because the statute limits itself to judgments recovered by a public agency. Guillemin is mistaken.

"`[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.'" (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232 (Coronado).) To determine legislative intent, we first examine the words of the statute (ibid.), applying "their usual, ordinary, and common sense meaning based [upon the language] used and the evident purpose for which the statute was adopted." (In re Rojas (1979) 23 Cal.3d 152, 155, 151 Cal.Rptr. 649, 588 P.2d 789.) "The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) If the words of the statute are ambiguous, a court "may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." (Coronado, supra, 12 Cal.4th at p. 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) Applying these rules of statutory interpretation, a court "`must select the construction that comports most closely with the apparent intent of the...