County of Monterey v. Mahabir

Opinion

PREMO, J.

The County of Monterey (hereafter, County) attempts to appeal from an order directing it to pay attorney fees of $500 to defendant Anthony Mahabir’s counsel, Gary E. Gray, pursuant to Code of Civil Procedure section 128.5.

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A threshold issue is the appealability of this order.

[1652]

This paternity action, filed in June 1989 by County on behalf of Cynthia Truitt, was voluntarily dismissed with prejudice in March 1990, after a January 1990 blood test to which defendant agreed in June 1989 precluded his paternity. Section 128.5, subdivision (a), authorizes an award of attorney fees “incurred by another party as a result of bad-faith actions or tactics that are frivolous . . . .” Subdivision (b) provides “ ‘Actions or tactics’ ” include “the filing and service of a complaint” (subd. (b)(1)) and “ ‘Frivolous’ means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party” (subd. (b)(2)).

Amendments to section 904.1 effective January 1, 1990, have limited the appealability of judgments and orders “for the payment of monetary sanctions.” (§ 904.1, subd. (a).) Subdivision (k) was added, providing for appeal: “From a superior court judgment directing payment of monetary sanctions by a party or an attorney for a party only if the amount exceeds seven hundred fifty dollars ($750). Lesser sanction judgments against a party or an attorney for a party may be reviewed on appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.” (See Stats. 1989, ch. 1416, § 25, No. 11 West’s Cal. Legis. Service, p. 5330, No. 7, Deering’s Adv. Legis. Service, pp. 6103-6104.)

“Rather than expand the category of appealable sanction orders, the Legislature sought to restrict it. The legislative history of the subdivision indicates the Legislature’s intent was to ‘[ejliminate the right to appeal a judgment or order for the payment of monetary sanctions in cases where the order for payment is $750 or less. Review in such cases . . . will instead be upon the granting of a petition for an extraordinary writ.’ [Citations.]”