Opinion
F079128
07-23-2021
CAROLYN CORTINA et al., Plaintiffs and Respondents, v. NORTH AMERICAN TITLE COMPANY, Defendant and Appellant.
Morgan, Lewis & Bockius and Deborah E. Quick for Defendant and Appellant. Wagner Jones Kopfman & Artenian and Laura E. Brown for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. 07CECG01169 Jeffrey Y. Hamilton, Jr., Judge.
Morgan, Lewis & Bockius and Deborah E. Quick for Defendant and Appellant.
Wagner Jones Kopfman & Artenian and Laura E. Brown for Plaintiffs and Respondents.
OPINION
PEÑA, J.
In this class action, two classes of employees, those North American Title Company (NATC) categorized as nonexempt and exempt, sued NATC for unpaid overtime. Following a bench trial on a claim for violation of the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), the trial court issued a detailed statement of decision in which it found NATC liable to the exempt class and ordered a referee to determine the amount of restitution for the exempt class members' unpaid overtime, with NATC to bear the cost of the reference.
NATC purported to appeal from, among other things, the order requiring it to pay the cost of the reference. The named plaintiffs moved to dismiss the appeal as being taken from nonappealable orders. In an unpublished opinion, we granted the motion to dismiss the appeal from the cost order. (Cortina v. North American Title Company (Nov. 7, 2017, F074938) (Cortina I).)
The trial court subsequently issued an order stating a court reporter may record the reference proceedings and witness testimony may be taken by teleconference. The trial court ordered NATC to pay, in addition to the referee's fees, the cost of court reporting services or facilities, the cost of any conference or meeting rooms needed to conduct the reference proceedings, and the referee's travel fees, if any. When a dispute arose over whether out-of-state exempt class members' testimony could be taken remotely, the referee ordered the witnesses to travel to California for their testimony, with NATC reimbursing them for their airfare, hotel, and ground expenses. The trial court adopted the referee's findings and confirmed the order requiring NATC to pay the out-of-state exempt class members' travel costs.
NATC purports to appeal from the order requiring it to pay the exempt class members' travel costs. The named plaintiffs (plaintiffs) have moved to dismiss the appeal as being taken from a nonappealable order, and they seek sanctions and costs against NATC for filing a frivolous appeal. We grant the motion to dismiss the appeal and deny the request for sanctions.
The named plaintiffs are Carolyn Cortina, Judith Bates, Tina Texeira, Janet Doran, Kimberly Baker, Laurel Johnstone, Mary Weidmark, Cheryl Fuller, Melodie Benton, Robin Johnson, Catherine Bell, Teresa Spencer, and Martha Dominguez.
FACTUAL AND PROCEDURAL BACKGROUND
This case began 14 years ago with the filing of a putative class action complaint against NATC alleging it violated the Labor Code and engaged in unfair business practices when it failed to pay overtime, and provide meal and rest breaks, to escrow officers employed in California. The trial court certified two classes of plaintiffs-“exempt” and “nonexempt.” The matter proceeded to a bench trial on a single cause of action under the UCL.
The Statement of Decision
In October 2016, the trial court issued its statement of decision. With respect to the exempt class, the trial court found NATC was liable and ordered NATC to pay restitution of unpaid overtime to the exempt class. The trial court refrained from entering final judgment, however, until an amount was determined. “[D]ue to the consumption of time that would be required to assess the amounts of individual restitution, ” the trial court appointed a referee pursuant to Code of Civil Procedure section 639, subdivision (a)(3) to consider this factual issue based on the referee's review of individual testimony and any other evidence the referee found appropriate. (Undesignated statutory references are to the Code of Civil Procedure.) The trial court declined to reopen discovery and advised the referee to be guided by the principle that California courts shift the burden of proof to employers when inadequate records prevent employees from proving their claims for unpaid overtime and meal periods. As for the referee's fee, the trial court ordered: “No party has established an economic inability to pay for the reference. Payment of wages is a fundamental public policy in the state of California. [Citations.] For these reasons, the Court orders that NATC shall bear the cost of the reference.” From the list of proposed referees the parties submitted to the court, the trial court selected Honorable Patrick J. O'Hara (Ret.) as the referee and set his maximum hourly rate at $500. The trial court further ordered that court facilities and personnel could not be used for the reference.
Regarding the nonexempt class, the trial court found insufficient evidence to support plaintiffs' allegation of a “company-wide policy of pressuring class members to work unreported overtime as well as through meal periods and rest breaks, ” and ordered the nonexempt class be decertified. As to the named nonexempt class plaintiffs, the trial court directed judgment against two of them, dismissed another's claims without prejudice, and ordered the referee to consider the remaining 10 plaintiffs' individual “claims for restitution of overtime pay for time employed as a non-exempt worker.”
The Appeal from the Order Requiring NATC to Bear the Cost of the Reference
In December 2016, NATC attempted to appeal certain rulings in the statement of decision, one of which was the trial court's order requiring it to “bear the cost of the reference” (the cost order). Plaintiffs moved to dismiss the appeal as being taken from nonappealable orders.
As applicable here, we rejected NATC's arguments that the cost order was appealable as either a collateral order or an injunction and granted plaintiffs' motion to dismiss the appeal from that order. (Cortina I, supra, F074938, at pp. 13-17, 18 [2017 Cal.App.Unpub. Lexis 7630 at pp. *19-*25, *27].) While NATC recognized the reference order was not immediately appealable and may only be challenged by extraordinary writ, it argued the reference order could be separated from the order that it bear the costs of the reference, which it contended was immediately appealable as a collateral order. (Id. at p. 14 [2017 Cal.App.Unpub. Lexis 7630 at pp. *21-*22].)
In December 2016, NATC filed for a writ of prohibition in this court in North American Title Company v. Superior Court, F074869, seeking to vacate the reference order. We issued an order denying the petition in March 2017.
We concluded the cost order was not a collateral order because it was not “‘“distinct and severable”' from the issue of NATC's liability for unpaid overtime and [was] a necessary step to determining the damages owed the exempt class.” Moreover, “an analysis of the propriety of the cost order necessarily entails an analysis of the merits of the action.” (Cortina I, supra, F074938, at pp. 14-15 [2017 Cal.App.Unpub. Lexis 7630 at pp. *22-*23].) We determined NATC would not be irreparably injured were review denied because NATC might be able to recover some or all of the reference costs from plaintiffs should NATC prevail at the reference or on appeal, and NATC could object to the referee's findings, including the cost allocation or the reasonableness of the fees charged. (Id. at pp. 15-16 [2017 Cal.App.Unpub. Lexis 7630 at p. *23].) We also concluded the cost order was not an order granting an injunction, as it was simply an order that NATC pay the reference fees as part of the trial court's power to order a nonconsensual reference. (Id. at p. 16 [2017 Cal.App.Unpub. Lexis 7630 at pp. *24-*25].)
We declined plaintiffs' request to award sanctions against NATC for filing a frivolous appeal, as we could not say the purported appeal from the cost order was necessarily frivolous, since NATC presented arguable issues as to its appealability and NATC could not risk forfeiting review of the order if it were actually appealable. (Cortina I, supra, F074938, at pp. 17-18 [2017 Cal.App.Unpub. Lexis 7630 at pp. *25-*27].)
NATC is Ordered to Pay Facility and Court Reporting Costs
On November 6, 2017, a hearing was held with the referee to discuss procedures for the reference hearings. The parties discussed with the referee whether testimony of the exempt class members should be taken in locations other than Fresno or Visalia via teleconference. The referee thought that was a good idea but asked whether there was an objection as to who would pay for it. The referee believed it was clear the defense was to bear his fees, but asked about facility and court reporter fees, and the cost of an Internet connection. Plaintiffs' counsel believed the trial court's cost order included those items, and if it was suggested plaintiffs were asking for costs to transport people to these locations to testify, “I don't think we're asking for that.” After discussing the matter further, the parties and referee agreed the referee would order the parties to split the costs of the reference proceedings, such as court reporter and facility fees, with the exception of the referee's fee, and let the trial court resolve the apportionment of costs.
While discussing the dates for witness testimony, the issue arose of the location of the first two dates for testimony. Plaintiffs' counsel stated that for the seven witnesses they had lined up, the first two might be by video because they moved out of state, while the other five could be hosted at his office. Regardless, they would provide notice to defense counsel and the referee whether the witness appear in Fresno, at the referee's office in Visalia, or by teleconference. Defense counsel did not “have a problem with that, ” but she was concerned how they would handle the exhibits during a teleconference. The parties discussed a procedure for handling exhibits, as well as the exchange of witness lists and exhibits.
Plaintiffs subsequently filed a motion asking the trial court to order NATC to pay all court reporting service fees, facility fees, and teleconference fees incurred during the reference proceedings. In opposing the motion, NATC argued plaintiffs, knowing they could not recover the cost of travel to Visalia or Fresno to testify, sought to present their testimony remotely and shift the cost of doing so to NATC as part of the “cost of [the] reference, ” which exceeded the trial court's cost order, was beyond the trial court's discretion, and violated California law. NATC asserted plaintiffs must bear their own costs and seek recovery at the appropriate time pursuant to the procedure provided by law. NATC also objected to remote testimony by the exempt class members, asserting there was no basis in California law to allow witness trial testimony by teleconference or remote transmission. If remote testimony were allowed, NATC asked the trial court to order the court reporter to be physically present with the testifying witness in a location where NATC's counsel may also be present, and plaintiffs alone bear the costs incurred for remote transmission and the use of remote facilities.
On December 20, 2017, the trial court issued a tentative ruling to grant plaintiffs' motion. The trial court explained it clearly stated in its statement of decision that NATC “would ‘bear the cost of the reference, '” and this was not the first time NATC “comes before the court to nitpick about the ‘costs' of the reference.” The trial court noted it had authority to utilize all suitable means to effectuate its orders and the money “spent to carry out the referee's task as ordered by this court, now over one year ago, will be borne by [NATC], ” explaining, “A court reporter is required to carry out this reference, [NATC] also demanded one; [NATC] will pay for the court reporter. Live testimony was contemplated in the order; it will be [NATC] who will pay for the costs of taking that testimony, as well as for the referee to travel to the various locations to take the testimony and the costs of the facilities necessary for the presentation of the testimony-when remote from the referee.”
The next day, the trial court issued a written order setting out the approved referee procedures. The order provided, among other things: “Proceedings may be recorded by a court reporter, and testimony of witnesses may be taken by teleconference. Pursuant to prior order of the Court, [NATC] will pay the Referee's fees. The cost of court reporting services or facilities, if any, and the cost of any reasonably necessary conference or meeting rooms used to conduct referee proceedings, as well as any travel fees incurred by the referee, shall be paid by defendant NATC in the same manner as payment for referee's fees.” The order further provided the hearings would begin in mid-January 2018 “at locations to be determined in Visalia or Fresno; however, testimony by teleconference is not precluded.”
The Referee Orders NATC to Pay Out-of-State Class Members' Travel Costs
Witness testimony before the referee began on January 15, 2018. While some exempt class members physically testified before the referee in Visalia, the referee listened to other exempt class members' testimony by live videoconference.
In September 2018, the parties participated in a conference with the referee regarding plaintiffs' intent to offer remote testimony by videoconference from 35 or more exempt class members who lived outside California, as well as three class members who lived in California but could not travel due to medical or personal reasons. The referee requested briefing on plaintiffs' proposal.
In their brief, plaintiffs asked to be allowed to “schedule witnesses with a court reporter present in various states on specific days with all counsel and [the referee] attending the examination by videoconference, ” due to the cost of traveling to California from multiple states, the need for efficiency, and the fact the parties had already conducted numerous examinations by videoconference. If NATC insisted on in-person examinations, however, plaintiffs asked the referee to order NATC to reimburse the witnesses' travel costs, including reasonable airfare, overnight accommodations, meals, and medical transportation costs as necessary. Plaintiffs argued NATC should pay the exempt class members' travel expenses as costs of the referral proceedings, citing as well to the trial court's authority to manage proceedings and fashion restitutionary remedies.
NATC objected to plaintiffs' proposal for remote testimony with the attorneys participating via videoconference on the ground it would deprive NATC of its right to cross-examine parties in person, a right it had been afforded to date as the parties' attorneys and the court reporter had been present in the room with the other testifying class members. NATC asserted plaintiffs had identified no California authority supporting their request, and the trial court's orders did not rule that NATC could only cross-examine out-of-state witnesses by teleconference or, alternatively, must pay their travel costs. NATC argued that because some class members lived out of state was not a sufficient basis to depart from the general rule parties must testify personally in the venue where they filed suit, plaintiffs had not shown it was reasonably necessary for NATC to bear their travel expenses, and the referee had no discretion to require NATC to bear the travel expenses. NATC requested an order requiring all exempt class members to travel to California to testify at their own expense, with a court reporter and NATC present in the room or, alternatively, to allow NATC to cross-examine them in person, without having to pay others' travel expenses.
The referee stated in his October 17, 2018, order the most efficient way to handle the matter was to have the witnesses appear at a court reporter's office at the witnesses' locations and the attorneys appear by videoconference, but that procedure would be time consuming as NATC insisted on being personally present and, if that occurred, plaintiffs also would personally appear. The referee recognized he was not empowered to order NATC to appear by videoconference, and it would be inefficient and costly for counsel to travel to the exempt class members. Accordingly, the referee ordered the witnesses to travel to a major city in California for their testimony, with NATC reimbursing the witnesses for their airfare, as well as their actual hotel and ground transportation expenses not to exceed $400 (travel costs).
The Trial Court Orders NATC to Pay Travel Costs
NATC filed a motion in the trial court objecting to the referee's order requiring it to reimburse out-of-state exempt class members for their travel costs. NATC argued: (1) no statute authorized ordering a party to make prejudgment payments to cover an adversary's costs; (2) recoverable postjudgment costs do not include the costs parties may incur to present live testimony at trial; and (3) the trial court's equitable powers to fashion a remedy for UCL violations could not support the referee's order. NATC further argued ordering it to pay costs to plaintiffs' prejudgment would deprive it of the right to a stay of a postjudgment costs award and vitiate its right to have that award vacated in the event of a successful appeal. NATC asked the trial court to order plaintiffs to incur their own expenses for out-of-state class members' travel to California.
In opposing NATC's motion, plaintiffs argued: (1) the trial court's order placing the burden of paying the costs of the reference on NATC authorized the referee's order; (2) out-of-state class members' travel expenses were allowable costs under section 1033.5, subdivision (c)(4); (3) the trial court's discretionary authority to control its proceedings authorized the referee's order; and (4) NATC may be able to recover some or all of the travel expenses in the event of reversal on appeal. Plaintiffs rejected the theory they were entitled to reimbursement of travel expenses as an element of restitution: “It is not ‘restitution' for unpaid wages, as [NATC's] moving papers would have the court believe.”
Plaintiffs identified 41 out-of-state exempt class members they proposed to travel to California at NATC's expense, including class members living in Portugal and Spain. Offering three declarations of out-of-state class members, plaintiffs argued these witnesses would suffer hardship if forced to travel unreimbursed to California, travel by the parties' attorneys to out-of-state locations would delay entry of judgment, and allowing out-of-state videoconference testimony would not prejudice NATC.
In its reply, NATC argued, among other things, that plaintiffs should be bound by their counsel's concession at the November 6, 2017, hearing that they were not asking for transportation costs.
Following a hearing on the motion, the trial court issued a written order on February 5, 2019, adopting the referee's findings. The trial court characterized as “[c]entral to this proceeding” its findings that NATC (1) ”unlawfully classified those in the ‘exempt class' as exempt from wage and hour laws”; and (2) “must pay the costs of the reference.” The trial court stated the absence of contemporaneous payroll records was due to NATC's “unlawful conduct … in misclassifying the class members as exempt, ” which shifted the burden of proof to NATC. The trial court also reiterated its December 21, 2017, “order as to the reference for determination of restitution amounts: [¶] ‘Live testimony was contemplated in the order [of October, 2016]; it will be [NATC] who will pay for the costs of taking that testimony ….”
The trial court explained the referee acceded to NATC's demand that the class members travel to California to testify in person in order to receive restitution and “in keeping with the Court's prior findings, stated that NATC will have to bear the cost of such live testimony.” While NATC argued the referee's order was improper, “[t]he referee's recommendations are in keeping with the case law on this issue as well as the Court's prior findings; no valid basis for requiring class members to pay appears in the papers.”
It appeared to the trial court that NATC “hopes to whittle down the class by refusing its responsibility to pay for the cost of determining unpaid overtime.” The trial court reasoned:
“Forcing out of state absent class members to pay costs to prove up their claims, which proof is necessary only because NATC failed to comply with the law requiring it to properly classify them as non-exempt, maintain records of their hours, and provide them with proof of such information, would render the deterrence and restitution goal of Business & Professions [Code] section 17200 et seq. ineffective, and shift the cost of NATC's record keeping and wage statement duties to its employees, in violation of law. Class members have a property right in their unpaid wages and in proof of same without cost to class members.”
The trial court asserted its “restitution order necessarily includes the costs of proving the information NATC was required by law to provide to class members, ” and “[c]orrect hour and wage records are a property right of an employee, and the costs to reconstruct such information via live testimony are properly charged solely to [NATC].”
The trial court rejected NATC's assertion it had a constitutional right to in-person cross-examination of out-of-state class members on the basis that “‘the Confrontation Clause does not apply in civil cases.'” The trial court found “[t]estimony by videoconference technology permits cross-examination and a viewing of the witness for credibility by the fact-finder, ” citing authority holding testimony by videoconference “satisfies due process in administrative hearings where the accused has an important right, such as to attend college, at issue, ” and allowing for deposition testimony at a civil trial if the witness lives more than 150 miles from the trial location. Accordingly, the trial court determined if NATC “insists on live testimony in California, it was properly charged for the costs associated with bringing those witnesses here. It was offered a cheaper solution, and refused.”
NATC subsequently complied with the travel cost order by paying the travel costs for 23 out-of-state witnesses who came to California to testify in March, April and June 2019.
DISCUSSION
I. The Motion to Dismiss
NATC purports to appeal from the trial court's order requiring it to pay the travel costs of exempt class members who wish to testify but either live outside California or live in California but are unable to travel (the travel cost order). Plaintiffs have moved to dismiss the appeal as being taken from a nonappealable order and seek sanctions and costs against NATC pursuant to California Rules of Court, rule 8.276(a)(1), for filing a frivolous appeal.
On April 5, 2019, NATC filed a petition for writ of prohibition, North American Title Company v. Superior Court, F079054, challenging the travel cost order. We denied the petition on September 13, 2019.
“In California, the right to appeal is wholly statutory.” (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) To exercise that right, a party must appeal from a statutorily declared appealable judgment or order (§ 904.1) and must be aggrieved by that judgment or order (§ 902). An appellate court lacks jurisdiction to consider an appeal from a nonappealable order or judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) When an appellate court lacks jurisdiction, it must dismiss the appeal. (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)
“Under the one final judgment rule, ‘“an appeal may be taken only from the final judgment in an entire action.”'” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) The final judgment rule is codified in section 904.1, which enumerates the judgments and orders from which appeals in civil matters may be taken. (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226.)
Since there is not a final judgment in this case, NATC's appeal cannot proceed unless there is an applicable exception to the one final judgment rule. NATC asserts the travel cost order is appealable under the “collateral order doctrine, ” which is an “exception to the one final judgment rule” codified in section 904.1. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Our Supreme Court has explained that “[w]hen a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. [Citations.] … Such a determination is substantially the same as a final judgment in an independent proceeding.” (Ibid.)
Under the test set forth in Skelley, an interlocutory order or judgment is appealable if it: (1) finally determines a collateral issue in the case; and (2) requires “the immediate payment of money, or the performance forthwith of an act.” (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 683; see In re Marriage of Skelley, supra, 18 Cal.3d at p. 368.) To satisfy the first element, “the interlocutory order must be a final determination of a matter that is collateral-i.e., distinct and severable-from the general subject of the litigation. [Citations.] The order is deemed final if further judicial action is not required on the matters dealt with by the order.” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545.) Where an order is “important and essential to the correct determination of the main issue” and “made as a necessary step to that end, ” it is not collateral. (Union Oil Co. v. Reconstruction Oil Co. (1935) 4 Cal.2d 541, 545; accord, Steen v. Fremont Cemetery Corp., supra, 9 Cal.App.4th at p. 1227.)
Here, the general subject of the litigation was NATC's liability for overtime, which the trial court resolved against NATC. The trial court then decided a special reference was required to determine the restitution owed the exempt class members, which the referee would accomplish by reviewing individual class members' testimony and other appropriate evidence, and NATC should “bear the cost of the reference” as a matter of public policy. When NATC attempted to appeal from this cost order, we determined it was not appealable as a collateral order because it “is not ‘“distinct and severable”' from the issue of NATC's liability for unpaid overtime and is a necessary step to determining the damages owed the exempt class.” (Cortina I, supra, F074938, at p. 15 [2017 Cal.App.Unpub. Lexis 7630 at p. *22].)
The trial court subsequently ordered NATC to pay, as part of its obligation to pay the cost of the reference, not only the referee's fee, but also the costs of the court reporting services or facilities and any conference or meeting rooms, as well as the referee's travel expenses, needed to obtain the testimony of the exempt class members from remote locations. When the issue of how to obtain the testimony of out-of-state class members arose, the referee ordered the witnesses to travel to California at NATC's expense in order to complete the task of taking individual testimony in an efficient and timely manner. In adopting the referee's findings, the trial court noted its prior orders requiring NATC to pay the cost of the reference, including the cost to take live testimony, and stated the referee's recommendations were consistent with the trial court's prior orders.
Just as the cost order was not appealable because it was a necessary step in determining the damages owed the exempt class, the travel cost order is not appealable because it is part of the steps needed to ascertain the amount of restitution owed the exempt class members. The travel cost order was made in conjunction with the order requiring out-of-state witnesses to travel to California to give in-person testimony, which made it possible to secure the testimony of the out-of-state class members so the referee could determine the total amount of restitution owed the exempt class members. While the trial court stated its restitution order necessarily included the costs of proving the information NATC was required by law to provide the class members, it also recognized requiring NATC to pay travel costs was part of its prior order for NATC to bear the costs of the reference. As the travel cost order stemmed from the cost order, the travel cost order is not a collateral order, but rather is part of the process of obtaining in-person testimony and determining the amount of the final judgment.
NATC contends the travel cost order cannot be an extension of the cost order because the referral statute, specifically section 639, subdivision (d)(6), does not authorize the imposition of such costs. Given the trial court's expansive interpretation of the cost order, which it ruled included not only the referee's fee but also the court reporter's fee and facility costs of taking remote testimony, the reimbursement of travel costs is essentially connected to the cost order and the issues related to it, namely, the determination of the restitution owed the exempt class members.
NATC also contends the travel cost order is not part of the cost order because the travel cost order requires payment of travel costs for out-of-state class members regardless of whether their testimony results in any recovery, pointing to the referee's determination that NATC was not liable to two of the out-of-state exempt class members who testified in California. But that also was true of the cost order-NATC was required to pay the referee's fee, as well as the court reporter and facility fees, regardless of whether any of the class members ultimately were entitled to recover.
NATC argues the travel cost order is not a necessary step to determining the damages owed the exempt class because plaintiffs bear the burden of producing the exempt-class witnesses in the referral proceedings and their failure to appear cannot prevent judgment from being entered eventually. But the trial court contemplated obtaining the testimony of the exempt class members when ordering the issue of restitution to be determined in a reference proceeding, and while judgment certainly could be entered if none of those witnesses appeared, facilitating their appearance is in keeping with the trial court's orders. Moreover, to examine this issue would require us to determine whether the trial court's reference and cost orders were appropriate, which further indicates the travel cost order is not distinct and severable from those orders.
NATC likens the travel cost order to an order requiring payment of an arbitration filing fee, which the appellate court found appealable in Spence v. Omnibus Industries (1975) 44 Cal.App.3d 970, but their reliance is misplaced. There, after the plaintiffs sued the defendants for damages for breach of contract, the defendants filed a petition for arbitration under a contractual arbitration provision. The trial court granted the petition and ordered the plaintiffs to pay the filing fee. The plaintiffs appealed, challenging only the payment order. (Spence, supra, 44 Cal.App.3d at pp. 972-973.) The appellate court determined the trial court erred in ordering the plaintiffs to pay the filing fee because it was the defendants who chose arbitration, and if they really wanted arbitration, they could pay for it. (Id. at p. 975.) While the appellate court recognized an order compelling arbitration is not appealable, it determined the payment order was appealable as a collateral order because it required the plaintiffs to immediately pay the arbitration filing fee, and while the plaintiffs' financial condition was unknown, “if this order remains unchallenged it might well deprive them of any forum for resolving their complaints.” (Id. at p. 976.)
In contrast here, while the travel cost order required NATC to immediately pay the travel costs of the out-of-state class members, there is nothing to suggest NATC would be deprived of any forum for resolving the issues in this case if the travel cost order remains unchallenged. Moreover, as we have explained, the travel cost order, unlike the order to pay the arbitration filing fee, is not distinct and severable from the subject matter of the underlying litigation.
Finally, NATC contends the travel cost order is appealable as an order either granting an injunction or directing payment of monetary sanctions in excess of $5,000. (See § 904.1, subd. (a)(6) [orders granting injunctions are appealable], (11) & (12) [interlocutory judgments or orders directing a party to pay monetary sanctions in excess of $5,000 dollars are appealable].) NATC asserts the travel cost order meets the monetary threshold for a sanctions order because plaintiffs identified at least 41 out-of-state class members who wanted to testify, and the order required NATC to reimburse airfare and up to $400 for transportation and lodging.
Whether an order constitutes an appealable injunction does not depend on its title or form, but rather “on ‘“the substance and effect of the adjudication.”'” (PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132, 142-143.) While the travel cost order required NATC to pay money, it was not a grant of an injunction but rather an order controlling litigation conduct. It is “well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; see § 128, subd. (a)(4) & (5) [powers include compelling obedience to the court's “judgments, orders, and process, ” and controlling the “conduct of … persons … connected with a judicial proceeding before it”].) “In the context of a class action, it is the court's authority and duty to exercise control over the class action to protect the rights of all parties, and to prevent abuses which might undermine the proper administration of justice.” (Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581.) And although the travel cost order directs NATC to pay the out-of-state class members' travel costs, it is not a sanctions order, but rather an order that enables the affected class members to testify in person.
In sum, the travel cost order is not appealable as either a collateral order, an injunction, or a sanctions order.
II. Sanctions
Plaintiffs seek attorney fees and costs as sanctions against NATC for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(a)(1).) They contend NATC's “entire appeal argues that the trial court lacked discretion to order it to pay the costs of a non-consensual reference, and that the cost order is immediately appealable pursuant to the ‘collateral order' exception to the one final judgment rule, ” but in NATC's prior appeal, made on the same grounds, the cost order was held to be noncollateral and the appeal was dismissed. Plaintiffs argue NATC's appeal indisputably has no merit and was taken solely for the purpose of delaying and harassing them.
Plaintiffs cite to California Rules of Court, rule 8.891 as the basis for their sanctions request. That rule, however, applies to civil and misdemeanor appeals in the superior court appellate division. (Cal. Rules of Court, rule 8.880.)
“An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
While we have dismissed the appeal, we cannot say the purported appeal was necessarily frivolous. NATC presented arguable issues as to the travel cost order's appealability, and it was not clear that our prior opinion in Cortina I precluded appeal of the travel cost order. Moreover, as NATC argues, it complied with the travel cost order, so this appeal has not impeded the continuation of the referral proceedings or delayed the entry of an adverse judgment. Moreover, as we acknowledged in Cortina I, “if a judgment or order is appealable, aggrieved parties must file an appeal or forever lose the opportunity to obtain review.” (Cortina I, supra, F074938, at p. 18, citing Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 2.13, pp. 2-13 to 2-14 [2017 Cal.App.Unpub. Lexis 7630 at pp. *26-*27].) We agree with NATC that it could not risk forfeiting review of the travel cost order if it were actually appealable. We therefore decline to award sanctions to plaintiffs.
DISPOSITION
Plaintiffs' motion to dismiss the appeal is granted. Plaintiffs shall recover their costs on appeal.
Defendants' “Motion to Withdraw Counsel, ” filed July 21, 2021, is granted.
WE CONCUR: LEVY, Acting P.J., FRANSON, J.