Greene

Occasionally we are faced with an appeal that presents an important issue almost in spite of itself. This is such a case. Walter Greene, an attorney representing himself in the trial court as well as here, appeals from a $794 discovery sanctions order levied against him for failure to fully respond to interrogatories. He claims the statute authorizing such sanctions is unconstitutionally vague, a claim we will reject in the unpublished portion of this opinion. The more interesting question for us, however, is whether Greene can appeal this order at this time. Three recent Court of Appeal opinions have reached differing conclusions when faced with this issue. We find that Greene is properly before us, but his victory is pyrrhic: We affirm the sanctions award.

Facts

It did not take us long to thoroughly analyze the record on appeal in this case. It consists of one page. Greene, electing to file an appendix in lieu of the clerk’s transcript (Cal. Rules of Court, rule 5.1), has provided us solely with a copy of the minute order from the hearing at which sanctions were awarded. We would think this has provided us with at least a tie for the world’s shortest record on appeal.…

Dissenting. — This appeal should be dismissed, not decided. It has long been the rule that discovery sanctions are not directly appealable. In my view the principle applicable here is this: “ ‘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 *691 judicial construction and approves of it.’ [Citations.]” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 [ 211 Cal.Rptr. 742 , 696 P.2d 134 ].) Because the amended statute fails to explicitly add discovery sanctions to the list of separately appealable orders, we must assume that remedy is not available. The Legislature surely would have said otherwise had it intended the expansion of Code of Civil Procedure section 904.1, subdivision (k) first conjured in Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429 [ 273 Cal.Rptr. 262 ], 1 given full bloom in Kohan v. Cohan (1991) 229 Cal.App.3d 967 [ 280 Cal.Rptr. 474 ], and now endorsed by my colleagues. 2

My conclusion is buttressed by everyone’s agreement that the statutory change was obviously motivated by a desire to restrict access to the…

[Opinion certified for partial publication. [*] ]

OPINION

SILLS, P.J.

Occasionally we are faced with an appeal that presents an important issue almost in spite of itself. This is such a case. Walter Greene, an attorney representing himself in the trial court as well as here, appeals from a $794 discovery sanctions order levied against him for failure to fully respond to interrogatories. He claims the statute authorizing such sanctions is unconstitutionally vague, a claim we will reject in the unpublished portion of this opinion. The more interesting question for us, however, is whether Greene can appeal this order at this time. Three recent Court of Appeal opinions have reached differing conclusions when faced with this issue. We find that Greene is properly before us, but his victory is pyrrhic: We affirm the sanctions award.

It did not take us long to thoroughly analyze the record on appeal in this case. It consists of one page. Greene, electing to file an appendix in lieu of the clerk's transcript (Cal. Rules of Court, rule 5.1), has provided us solely with a copy of the minute order from the hearing at which sanctions were awarded. We would think this has provided us with…