Thursday, March 29, 2018
Page 1
Court of Appeal:
Can’t Aggregate Sanctions Under $5,000 To Meet Appealability Standard
By a MetNews Staff Writer
A single order granting two motions for discovery sanctions in the total amount of discovery sanctions totaling $9,720 was nonappealable where both of each of the sanctions was for less than $5,000, the Court of Appeal for this district held yesterday.
Acting Justice Dorothy C. Kim, a Los Angeles Superior Court judge sitting on assignment, wrote the opinion for Div. Five. It was not certified for publication.
She said:
“Defendant appeals from a nonappealable order. Defendant contends the order imposing discovery sanctions in the total amount of $9,720 is appealable pursuant to Code of Civil Procedure section 904.1, subdivisions (a)(11) and (a)(12), which provide that a party can take an appeal from an interlocutory judgment or order ‘directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).’ Although the trial court issued one order, it imposed two separate sanctions on defendant. Separate sanctions, even if in one order, cannot be aggregated to exceed the $5,000 threshold for appealability. We will dismiss the appeal.”
Agrees With King
Kim adopted the reasoning of the First District Court of Appeal in the 1993 case of Calhoun v. Vallejo City Unified School District that there is a “bright line” rule against aggregation, rejecting dictum in a case decided earlier that year by the Fourth District’s Div. Three in Champion/L.B.S. Associates Development Co. v. E–Z Serve Petroleum Marketing, Inc.
At that time, discovery sanctions were immediately appealable if they were for $750 or more. In Calhoun, then-Justice Donald King (now retired) wrote:
“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 appealable threshold [of the statutory provision then in effect]. 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.”
Sills’s Opinion
In Champion, Presiding Justice David Sills, since deceased, said “that there may be situations where ‘aggregating’ separate sanction awards in order to reach the $750 minimum may be appropriate.” Justice Thomas Crosby, also now deceased, dissented as to that suggestion.
Kim declared:
“We agree with the thorough and well-reasoned decision in Calhoun.”
Rejecting the assertion of appellant Adrienne Baron that there was appealability of the order by Los Angeles Superior Court Judge Mel Red Recana because it called for payment of $9,720, Kim said:
“In our view, characterizing the order as appealable simply because the trial court issued one order awarding two separate sanctions would unduly place form over substance.”
The case is Mitchell Anthony Productions, LLC v. Baron, B282974.
Gary Kurtz argued for affirmance and James J. Orland argued for reversal.
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