Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. 37-2007-00101930-PR- PW-CTL Julia C. Kelety, Judge.
NARES, J.
This appeal arises out of three orders imposing sanctions, jointly and severally, against objectors U.S Education Finance Management Corporation (USEFM), and its attorneys, Luce Forward, Hamilton and Scripps, LLP (Luce, Forward). The court ordered them to pay to petitioner Michael Bennett, Executor of the Estate of Victor Ronald Gill (Bennett), three separate sanctions for three separate discovery violations: $4,433.75 for Bennett's motion to compel further responses to interrogatories; $4,123.75 for Bennett's motion to compel further production of documents; and $2,302.50 for USEFM's motion for a protective order.
USEFM and Luce, Forward appeal, asserting the court erred in imposing sanctions because (1) their opposition to the discovery motions was substantially justified because Bennett failed to meet and confer; and (2) they had substantial justification to oppose the motions based upon the fact that (a) the discovery requests sought privileged material; (b) the document requests were oppressive and unduly burdensome; and (c) USEFM's motion for a protective order and its opposition to the discovery motions resulted in meaningful relief.
Bennett in turn has moved to dismiss the appeal, asserting that this court is without jurisdiction to entertain this appeal because each of the sanctions orders do not exceed the statutory minimum for appealability of $5,000 set forth in Code of Civil Procedure section 904.1. USEFM and Luce, Forward in turn argue that the separate sanctions orders should be "aggregated" to reach that threshold.
All further statutory references are to the Code of Civil Procedure.
We conclude that Bennett's motion to dismiss is well taken because (1) none of the three sanctions orders exceeded $5,000, the statutory minimum for an appeal from a sanctions order, and (2) we may not aggregate the three separate sanctions orders for USEFM and Luce, Forward to meet that statutory threshold. Accordingly, the appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2008 Bennett filed a petition in probate court against USEFM and others to determine to determine title to, and require transfer of, property to the estate. Specifically, Bennett alleged the deceased, Victor Ronald Gill, was owed wages and bonuses under a compensation agreement.
Thereafter, Bennett served USEFM with requests for production of documents, interrogatories and requests for admission. Bennett also served USEFM with a deposition subpoena for appearance and production of documents.
A dispute arose concerning the adequacy of USEFM's responses, and Bennett filed two separate motions to compel further responses, one as to the interrogatories and one as to the request for production of documents. USEFM filed a motion for a protective order as to the deposition subpoena.
The court granted both motions to compel and denied USEFM's motion for a protective order. In three separate minute orders issued on the same day, the court awarded sanctions to Bennett as to each motion: $4,433.75 for Bennett's motion to compel further responses to interrogatories; $4,123.75 for Bennett's motion to compel further production of documents; and $2,302.50 for USEFM's motion for a protective order.
This timely appeal follows.
DISCUSSION
An order imposing monetary sanctions for discovery violations is not appealable prior to entry of final judgment in the underlying case unless the amount of the sanction exceeds $5,000. (§ 904.1, subd. (a)(12).)
The question presented is whether, as USEFM and Luce, Forward contend, the three separate sanctions orders may be aggregated to meet the statutory minimum that would confer jurisdiction on this court to entertain this appeal. This position was squarely rejected in Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 45 (Calhoun); see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 105, p. 167.)
In Calhoun, the plaintiff filed an action against his employer and his union for wrongful termination in Solano County. He subsequently filed a motion to change venue to San Francisco. (Calhoun, supra, 20 Cal.App.4th at p. 41.) The defendants opposed the motion and requested sanctions. The court denied the motion and ordered plaintiff's counsel to pay $525 to the employer and $525 dollars to the union. (Ibid.) At the time, section 904.1 allowed an appeal of an order imposing sanctions only where it exceeded $750. (Calhoun, supra, at p. 42.)
The plaintiff argued, however, that the two sums should be aggregated to meet the $750 appealability threshold. (Calhoun, supra, 20 Cal.App.4th at p. 43.) The Court of Appeal rejected this argument. (Id. at pp. 44-45.) In doing so, the court rejected dicta in Champion/L.B.S. Associates Development Co. v. E-Z Serve Petroleum Marketing, Inc. (1993)15 Cal.App.4th 56 (Champion), upon which USEFM and Luce, Forward rely in opposing Bennett's motion to dismiss, that hypothesized that in situations such as we are presented with here, it might be appropriate to aggregate separate sanctions awards to reach the $750 minimum. (Id. at p. 59.) The Court of Appeal in Champion gave as an example a situation where a party makes three simultaneous discovery requests, the other party opposes a motion to compel further discovery, and the court rules for the moving party and issues three separate sanctions awards of $600. The majority in that case stated, "In such a case, it could well be that it is the same conduct which is being sanctioned three times. If so, we think 'aggregation' would be proper." (Id. at p. 60.) The majority found that was not the situation presented in that case, however, and declined to aggregate the sanctions. (Ibid.)
In dissent, Justice Thomas F. Crosby, Jr., expressed his "vehement[]" disagreement with "the majority's dictum concerning aggregation of a series of miniscule sanctions awards" and concluded "it is just plain silly to shelve serious business in order to entertain a chorus of whining lawyers complaining of such awards, most of which would be small potatoes in small claims court." (Champion, supra, 15 Cal.App.4th at p. 60 .)
The Court of Appeal in Calhoun rejected Champion's dicta, concluding "the Legislature did not envision aggregation of multiple sanctions as a way to meet the $750 appealability threshold." (Calhoun, supra, 20 Cal.App.4th at pp. 43-44.) The court reasoned that "the purpose of the [appealability threshold] was to restrict the number of appeals from sanctions orders. [Citations.] [¶] Aggregation of multiple sub-$750 sanction orders to create appealability would derogate this restriction on the right of appeal. To borrow from Justice Crosby, it would mean the return of many of the 'small potatoes' appeals of which the Legislature meant to relieve the appellate courts. The very notion of aggregation runs counter to the fundamental restrictive purpose of [the appealability threshold]." (Id. at p. 44.)
The Court of Appeal in Calhoun also concluded that "the standards for aggregation suggested by the majority in Champion/L.B.S.... are, in our view, too vague and unwieldy to be of practical value. The majority in Champion/L.B.S. would ask whether the 'same conduct' is being subjected to multiple sanctions. [Citation.] However, the very example given in that case─multiple sanctions after opposition to a motion to compel further discovery upon three discovery requests─illustrates the difficulty involved in applying such a standard: is there a single course of misconduct in opposing the motion to compel, or are there multiple instances of misconduct in failing to satisfy the three discovery requests?" (Calhoun, supra, 20 Cal.App.4th at p. 44.)
The Court of Appeal stated that "[s]uch standards for aggregation would inject an unwelcome dose of uncertainty into the appellate process. The Legislature intended to create a $750 'bright line' threshold for appealability of monetary sanction orders. [Citation.] A rule permitting aggregation of 'same conduct' or 'nonseparate' sanctions would blur that bright line. In close cases, such as the present one, the sanctioned party would be unsure whether to proceed by appeal or by writ petition. The wrong decision could prove to be procedurally fatal. Bright lines are often too arbitrary to be of much use in the substantive law, but they are usually quite serviceable and even preferred as procedural rules, which should serve as clearly marked guideposts rather than traps for the unwary. [¶] We conclude that because of the Legislature's intent to reduce the number of appeals from monetary sanction orders and the confusion that would result from a rule permitting aggregation, multiple sub-$750 sanctions may not be aggregated under any circumstances to meet the appealability threshold.... We endorse a bright line rule that a sanction order is nonappealable if it does not impose any sanction exceeding $750, and thus an order requiring payment of multiple sanctions, none of which exceed $750, is nonappealable even if the total aggregated sanctions exceed $750." (Calhoun, supra, 20 Cal.App.4th at p. 45, italics added.)
We agree with the analysis and holding in Calhoun and, like the Calhoun court, reject the dictum in Champion. This is because aggregating multiple sanctions awards would (1) run counter to the Legislature's intent to limit the number of appeals from sanctions orders; (2) create uncertainty as to when such awards could be appealed; and (3) would violate the bright line rule of appealability created by the Legislature.
Moreover, section 904.1 has been amended several times since Calhoun and Champion were published, and the amendments have not rejected Calhoun's bright line rule or adopted Champion's suggestion of allowing aggregation of separate sanctions orders in certain situations. " 'Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it.' " (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353.)
USEFM and Luce, Forward also rely upon Rail-Transport Employees Ass'n v. Union Pac. Motor Freight (1996) 46 Cal.App.4th 469 to support their position that sanctions awards should be aggregated to reach the statutory minimum. However, the propriety of aggregating separate sanctions awards was not an issue before the Court of Appeal in that case. Moreover, the Court of Appeal in that case recognized the intent of the Legislature in increasing the appealability threshold to $5,000 was to limit the number of appeals from sanctions orders: "Raising the appealable threshold continues the legislative intent to restrict, rather than expand, appeals from sanction orders." (Id. at p. 474.) Thus, that case actually supports our holding that separate sanctions orders cannot be aggregated to reach the $5,000 threshold.
USEFM and Luce, Forward argue that in essence there was only one sanction award for $10,860 because the final order prepared by Bennett listed the three awards, and then stated "for a total award of $10,860." However, this assertion ignores the fact the court issued three separate minute orders awarding sanctions for the three separate discovery motions.
DISPOSITION
The appeal is dismissed. Bennett shall recover his costs on appeal.
WE CONCUR: BENKE, Acting P. J., HALLER, J.