Southern Pacific Co. v. Oppenheimer

California Supreme Court Oct 31, 1960 No. L. A. 25860Published

Before: White

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Holding. The court held that orders relating to discovery and interrogatories are not appealable as final judgments, and that the appeal of an order for attorney's fees is rendered moot when the prevailing party waives the right to such fees.

Issues

Whether an order sustaining objections to interrogatories is an appealable final order.
Whether an order for attorney's fees remains appealable after the prevailing party waives the right to collect them.

Disposition. dismissed

Quotations verified verbatim against the opinion

“However, it is firmly established that orders relating to inspection and discovery are not appealable.”

“It is manifest that the identical reasoning and conclusion are applicable to orders relating to interrogatories.”

“Shorn of the issue involving the payment of attorney fees, the defendant’s contentions are otherwise without merit.”

[785]

WHITE, J.

Plaintiff, Southern Pacific Company, commenced this action against John G. Oppenheimer, a former employee, seeking that he be permanently restrained from filing or presenting in any court an action against plaintiff for wages or penalty wage payments arising out of the defendant’s employment by the plaintiff railroad between August 1 and August 2, 1955.

Following the filing of the complaint, the defendant, pursuant to section 2030 of the Code of Civil Procedure, submitted numerous interrogatories to the plaintiff. The latter’s objections thereto were sustained by order of the court, and the defendant appeals from that order. The order sustaining the objections provides in part as follows:

“Plaintiff’s objections to certain interrogatories are sustained and its motion for a protective order is granted. It is ordered that plaintiff need not answer any of the interrogatories served on it by defendant and filed March 10, 1960. Said interrogatories are ordered stricken. Defendant is ordered to pay to plaintiff its costs and expenses, including attorney’s fees, in the sum of $100.00, which sum the court deems to have been reasonably incurred by plaintiff in the preparation and presentation of its objections and motion. Said sum shall be paid on or before April 8, 1960, and shall not in any event be recoverable by defendant as costs. It is further ordered that defendant may not commence any other or additional discovery proceedings in this case on notice, motion or otherwise, except upon leave of court on motion noticed in writing. ’ ’

That portion of the order for payment of attorney’s fees is within the express authority of the court.

The plaintiff, however, has not been paid any part of the $100, and at the oral argument herein, expressly waived any interest therein or right thereto. It moves to dismiss the appeal on the ground that the foregoing order, with the provision for attorney’s fees deleted therefrom, is not appealable.

Generally no appeal can be taken except from a final order or judgment as defined in the statutes and developed in

[786]

Southern Pacific Co. v. Oppenheimer

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WHITE, J.

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