Opinion
A100822.
10-9-2003
JENINE D. COSIO et al., Plaintiffs and Appellants, v. WILLIAM WALTERS, Defendant and Respondent.
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.[] 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.
No respondents brief or motion to dismiss has been filed in this action.
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 Cosios 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 Sawyers 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.[]
All statutory references are to the Code of Civil Procedure and all references to rules are to the California Rules of Court, unless otherwise indicated.
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 Sawyers 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 Warners 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 Walters 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 authorizing the court to transform a monetary sanction order in favor of a non-party into a court judgment. Plaintiffs voluntarily dismissed their action against the named defendants."
Plaintiffs and attorney Warner filed a notice of appeal on November 15, 2002. The notice purported to appeal: (1) the "Order Denying Motion for Court Judgment dated October 28, 2002, (2) the Order Dropping Motion for Reconsideration and for Monetary Sanctions, dated February 22, 2002, and (3) the Order Denying Motion to Compel Further Responses at Discovery Deposition and for Monetary Sanctions in favor of non-party deponent William Walters, M.D. dated November 27, 2001."
DISCUSSION
The crux of appellants argument on appeal is that the court erroneously awarded sanctions against them in connection with their motion to compel further deposition responses and request for sanctions against Walters, because the court erroneously found the motion had not been timely served and had not been served in accordance with Judge Sawyers order granting leave to serve attorney Rothschild by express mail in lieu of personally serving Walters.
Appellants acknowledge they are attempting to attack the sanctions orders and that these orders are not appealable. Code of Civil Procedure section 904.1, subdivision (b) provides: "Sanction orders or judgments of five thousand dollars ($5,000) or less 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."
Therefore, appellants seek to have us exercise our discretion to treat this appeal as a petition for a writ and proceed to the merits, or to order the trial court to enter a judgment nunc pro tunc as of October 28, 2002, and treat the appeal as having been taken from such judgment, or to construe the order of October 28, 2002 to include an appealable judgment and the appeal as being taken from that judgment.
A.Absent the exercise of our discretionary "savings" power to treat the matter as a writ petition, we lack jurisdiction to entertain an appeal from a nonappealable judgment or order. In such circumstances, the erroneous appeal must be dismissed on respondents motion or on our own motion. (Eisenberg et al., Cal. Prac. Guide: Civil Appeals & Writs (TRG 2003) ¶5:12, citing Papadakis v. Zelis (1992) 8 Cal.App.4th 1146 [appeal from nonappealable interlocutory orders dismissed and $20,000 `frivolous appeal sanctions imposed], among others.) Another division of this appellate court has refused to treat the purported appeal of a nonappealable discovery sanctions order as a writ petition in order to save it. In Ballard v. Taylor (1993) 20 Cal.App.4th 1736, the court observed that "the exercise of that option is reserved for `unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401 . . . .) `Routine granting of requests to treat improper appeals as writs where there are no exigent reasons for doing so would only encourage parties to burden appellate courts with reviews of intermediate orders. [Citation.]" (Id. at p. 1740.)
Appellants have presented no good reason or unusual circumstances why we should exercise our discretionary saving power in this case. We decline to do so.
B.It also appears the trial court properly refused to enter a final judgment in circumstances where plaintiffs had previously dismissed the defendants from the action. "Voluntary dismissal of an action on plaintiffs request is ordinarily deemed a `ministerial (not a `judicial) act from which no appeal will lie. [Citations.]" (Eisenberg et al., Civil Appeals and Writs, supra, at [¶] 2:137, original italics.) An exception lies where dismissal is requested solely to expedite an appeal after an adverse trial court ruling. (Id. at p. 2:137.1.) The record here does not indicate that the dismissal of the defendants was requested solely to expedite an appeal of the discovery sanctions order against nonparty Walters. Indeed, appellants indicate that defendant Goodman was dismissed because plaintiffs had reached a settlement with her.
Appellants contend that the court erred in refusing to enter judgment against them and in favor of the dismissed defendants because the court had jurisdiction to impose sanctions against Walters for his refusal to answer questions at the deposition once he appeared at the deposition. The courts possession of personal jurisdiction over a non-party witness who has attended his deposition, so as to allow the court to order sanctions against that witness (see rule 337; In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 780-781; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 2002) [¶] 8:843) does not transform the subsequent voluntary dismissal of the action by plaintiffs as to the two defendants into an appealable order. Moreover, the argument presumes that personal service of the motion to compel was properly made upon Walters — the very merits issue which is the basis of this attempted appeal and which we decline to reach.
Appellants have failed to identify an appealable judgment or order from which they have timely appealed or to demonstrate that the trial court erred in refusing to enter a formal judgment against them following their voluntary dismissal of defendants.
DISPOSITION
The appeal is dismissed upon our own motion.
We concur: Haerle, J. and Ruvolo, J.