Rao v. Campo

233 Cal. App. 3d 1557, 285 Cal. Rptr. 691
California Court of Appeal·Decided September 12, 1991·No. B053573·Published·Cited by 43 cases

Opinion

233 Cal.App.3d 1557 (1991)
285 Cal. Rptr. 691

ZAFAR A. RAO, Plaintiff and Appellant,
v.
DARIUS CAMPO et al., Defendants and Respondents.

Docket No. B053573.

Court of Appeals of California, Second District, Division Three.

September 12, 1991.

*1560 COUNSEL

Zafar A. Rao, in pro. per., for Plaintiff and Appellant.

Spray, Gould & Bowers, Andrew Jacobs and B. Eric Nelson for Defendants and Respondents.

*1561 OPINION

DANIELSON, J.

Zafar A. Rao (plaintiff) purports to appeal:

From orders made July 27, 1990, (1) granting the motion of Darius Campo (defendant) for a protective order with regard to about 200 interrogatories propounded by plaintiff, pursuant to Code of Civil Procedure[1] section 2030, subdivision (e); and (2) imposing monetary sanctions in the sum of $780.50 against plaintiff pursuant to sections 2030,[2] subdivision (e) and 2023, subdivision (b)(1); and

From orders made August 24, 1990, (3) denying plaintiff's motion to reconsider the July 27 orders (§ 1008); (4) imposing monetary sanctions against plaintiff, payable to defendant's counsel in the sum of $735, because of bad faith and frivolous tactics, under section 128.5,[3] and (5) imposing monetary sanctions against plaintiff in the sum of $750, payable to the County of Los Angeles.

We dismiss the purported appeals from the above orders as having been taken from nonappealable orders; however, we point out that those orders are reviewable on appeal from the final judgment in the main action.

DISCUSSION

I. Orders Dated July 27, 1990, Granting Protective Order and Imposing Discovery Sanctions in the Sum of $780.50

(1a) Historically, neither an order granting a motion for a protective order in a discovery matter, nor an order imposing monetary discovery sanctions, regardless of amount, has been appealable. (See, e.g., Slemaker v. Woolley (1989) 207 Cal. App.3d 1377, 1380-1382 [255 Cal. Rptr. 532]; Lund v. Superior Court (1964) 61 Cal.2d 698, 709 [39 Cal. Rptr. 891, 394 P.2d 707]; Mobil Oil Corp v. Superior Court (1976) 59 Cal. App.3d 293, 303 [130 *1562 Cal. Rptr. 814]; Coriell v. Superior Court (1974) 39 Cal. App.3d 487, 489 [114 Cal. Rptr. 310]; Clausing v. San Francisco Unified School Dist. (1990) 221 Cal. App.3d 1224, 1241 [271 Cal. Rptr. 72]; see generally, 27 Cal.Jur.3d (pt. 2), Discovery and Depositions, § 319, pp. 411-413.)

In 1989 the Legislature enacted amendments to section 904.1 which have raised the question whether an appeal may now be taken from a judgment or order imposing monetary discovery sanctions if the amount exceeds $750.[4]

Based on our review of the legislative history of that enactment, the language of that section, and relevant case law, we hold that section 904.1, as amended in 1989, effective January 1, 1990, does not make monetary discovery sanction orders over $750 appealable.

Considered by itself, the amendment to subdivision (a) of section 904.1 seems to pose no problem. It simply and clearly provides that any judgment or order for the payment of monetary sanctions, without qualifications or restrictions as to amount, may be reviewed by an appellate court, at the discretion of that court, upon petition for extraordinary writ. When subdivision (a) is read in conjunction with the new subdivision (k) an issue may arise as to its meaning and that of subdivision (k) because subdivision (a) refers to a "judgment or order," while subdivision (k) refers only to a "judgment." Confusion has arisen as to the effect of the new subdivision (k) of section 904.1 on the appealability of monetary discovery sanction orders.

(2) It is a paramount rule of statutory interpretation that where a statute's provisions are unclear, the court must first ascertain the Legislature's intent and then give it effect. (§ 1859; Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 764 [274 Cal. Rptr. 787, 799 P.2d 1220]; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].) In contrast, where the language of a statute is clear, there is no room for interpretation. (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607 [224 Cal. Rptr. *1563 631, 715 P.2d 590].) As discussed, post, the 1989 amendment of section 904.1, which amended subdivision (a) and added subdivision (k), is unclear.

(1b) The legislative history of the 1989 amendment to section 904.1 reveals that the amendment was proposed by the Judicial Council for the purpose of reducing and limiting the class of judgments and orders imposing monetary sanctions which could be immediately and independently appealed before entry of final judgment in the main action. In enacting the amendment the Legislature adopted the council's purpose, which thus became the Legislature's intent.

Since the legislative intent behind the 1989 amendment to section 904.1 was to limit the appealability of monetary sanction judgments, that is, to reduce the number of appeals from such judgments, we conclude that to effectuate that intent subdivision (k) of section 904.1, which makes appealable a "judgment directing payment of monetary sanctions ... only if the amount exceeds ... [$750]," cannot be read to include monetary discovery sanction orders since such orders were never appealable prior to that amendment. To hold otherwise would be to enlarge, rather than to reduce and limit, the class of appealable monetary sanction judgments.

In Kohan v. Cohan (1991) 229 Cal. App.3d 967 [280 Cal. Rptr. 741] the court acknowledged that the legislative intent of the 1989 amendment was to restrict rather than expand the category of appealable sanction awards; however, the court disregarded that intent in favor of what it perceived to be the "plain meaning" of the language in subdivision (k) of section 904.1 as including discovery sanction orders over $750 as appealable orders. (Id. at pp. 970-971.)

We reject that conclusion by the Kohan court as untenable.[5] The analysis of the Kohan court in reaching its conclusion is somewhat confusing and contradictory. First, the court noted that it "previously has held [a monetary discovery sanction] order is not appealable but may be reviewed by extraordinary writ or on appeal from the final judgment. [Citations.]" (229 Cal. App.3d at p. 969.) The court then observed that after those cases had been decided subdivision (k) was added to section 904.1, providing that an appeal may be taken "`[f]rom a superior court judgment directing the payment of monetary sanctions ... only if the amount exceeds ... [$750].'" (Ibid.)

The Kohan court concluded: "As to whether subdivision (k) applies to make appealable sanction orders for discovery abuses which exceed $750, *1564 this would appear on the face of the subdivision to be the case." (229 Cal. App.3d at p. 970.) The Kohan court reasoned: "Although subdivision (k) refers to a sanction `judgment,' it can be construed to refer to an order as well." (Ibid.)[6]

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Rao v. Campo, 233 Cal. App. 3d 1557, 285 Cal. Rptr. 691 (Cal. Ct. App. 1991).

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