Champion/L.B.S. Associates Development Co. v. E-Z Serve Petroleum Marketing, Inc.

In Greene v. Amante (1992) 3 Cal.App.4th 684 [ 4 Cal.Rptr.2d 571 ], this court held that orders imposing discovery sanctions over $750 are appealable. In the present appeal, we must decide whether sanctions of less than that amount arising out of one discovery motion may be “aggregated” with sanctions arising out of another motion and decided at the same hearing. For appealability purposes, we believe we must look to the offending lawyer’s course of conduct, not the number of motions involved or the fortuity that they were consolidated for hearing. Here, the course of conduct giving rise to the sanctions award of less than $750 is separate and distinct from the conduct at issue in the other motion. We therefore dismiss that portion of the appeal involving the award of less than $750 as nonappealable *58 under Code of Civil Procedure section 904.1, subdivision (k). 1 For reasons stated in the unpublished portion of this opinion, we affirm the award of greater than $750 arising from the other motion.

Facts

Plaintiff Champion/L.B.S. Associates Development Company (Champion) sued defendant E-Z Serve Petroleum Marketing, Inc. (E-Z Serve) and two other oil companies in 1990…

Dismissal of that portion of the appeal purporting to challenge the $315 sanctions award is, of course, correct. (Greene v. Amante (1992) 3 Cal.App.4th 684, 690-692 [ 4 Cal.Rptr.2d 571 ] (dis. opn. of Crosby, J.).) I vehemently disagree, however, with the majority’s dictum concerning aggregation of a series of minuscule discovery sanctions awards to reach what they characterize as a “$750 ‘bright line.’ ” (Maj. opn., ante, at p. 59.)

For the reasons expressed in my dissenting opinion in Greene , I also disagree with the decision to resolve the $1,500 discovery sanctions issue on the merits. (Greene v. Amante, supra, 3 Cal.App.4th 684, 690-692 (dis. opn. of Crosby, J.).) There is no presently appealable judgment; and 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.

[Opinion certified for partial publication. [*] ]

OPINION

SILLS, P.J.

In Greene v. Amante (1992) 3 Cal. App.4th 684 [ 4 Cal. Rptr.2d 571 ], this court held that orders imposing discovery sanctions over $750 are appealable. In the present appeal, we must decide whether sanctions of less than that amount arising out of one discovery motion may be "aggregated" with sanctions arising out of another motion and decided at the same hearing. For appealability purposes, we believe we must look to the offending lawyer's course of conduct, not the number of motions involved or the fortuity that they were consolidated for hearing. Here, the course of conduct giving rise to the sanctions award of less than $750 is separate and distinct from the conduct at issue in the other motion. We therefore dismiss that portion of the appeal involving the award of less than $750 as nonappealable under Code of Civil Procedure section 904.1, subdivision (k). [1] For reasons stated in the unpublished portion of this opinion, we affirm the award of greater than $750 arising from the other motion.

Plaintiff Champion/L.B.S. Associates Development Company (Champion) sued defendant E-Z Serve Petroleum…