Maria LOMBARDO et al., Plaintiffs and Respondents, v. BROADWAY STORES, INC., Defendant and Appellant No. G026581 Court of Appeal, Fourth District, Division 3, California January 22, 2002 Appeal from an order of the Superior Court of Orange County, Tully H. Seymour, Judge. Affirmed. Counsel Thelen Reid & Priest, Thomas E. Hill, Remy Kessler, and Curtis A. Cole, for Defendant and Appellant. Ginez, Steinmetz & Associates, Paul W. Steinmetz and John F. Grotz, for Plaintiffs and Respondents. Panel members: O'Leary, Kathleen E., Rylaarsdam, William F., Moore, Eileen C. O'Leary, Kathleen E., Justice OPINION Not Officially Published (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) *1 Broadway Stores, Inc. (Broadway) appeals from the order imposing discovery abuse sanctions against it in Maria Lombardo's suit against Broadway for failure to pay accrued vacation benefits.[1] Broadway contends: (1) sanctions were improper because the underlying discovery motion was denied; (2) Lombardo failed to specify a proper ground in her motion for the sanctions; (3) Broadway did not spoliate evidence which would have justified the sanctions award; (4) the trial court erroneously failed to consider Broadway's objections to the discovery referee's report before adopting it; and (5) the sanctions amount was excessive and impermissibly punitive. We affirm. * * * In October 1995, Lombardo filed a class action suit in federal court against Broadway, claiming Broadway unlawfully failed to pay its employees accrued vacation benefits. Broadway's answer raised the defenses of payment and accord and satisfaction, making payroll records pertinent. The prior January and again in July, Lombardo sent Broadway letters formally requesting it to “preserve any and all ‘writings' that reflect on the conduct of Broadway's business.” The letter also noted Penal Code section 135 makes the willful destruction of evidence a misdemeanor. Shortly after the suit was filed, Lombardo propounded discovery requests asking for payroll documents relating to the vacation benefits. In November, Broadway agreed to produce financial records relative to the vacation benefits plan. In December, it acknowledged, “The eligibility for and distribution of vacation benefits of certain Broadway employees are ... distribute[d] through their payroll checks,” and agreed to produce those records. Later that month and in January 1996, Lombardo sent Broadway letters noting the documentation had not been provided, requesting compliance, and asking for a response. She received no direct response to the letters but soon received some payroll documents “that [were] redacted to protect the privacy of third party nonlitigants.” In May, the federal court remanded the matter to state court. In January 1997, Lombardo propounded discovery requests designed to determine the scope of the class and the nature and extent of the damages. In February, the court granted class certification. In March and April, Broadway claimed it had difficulty responding to the requests and asked for extensions of time, which were granted. In May, Broadway provided unverified responses that consisted almost entirely of unmeritorious objections and a false statement all such documents had been provided. Lombardo tried three times without success to resolve the problem, and finally filed motions to compel further responses with requests for monetary sanctions. In June, Broadway agreed to provide the requested information on condition Lombardo would withdraw her motions without prejudice to refiling them. The next day, Lombardo sent a letter clarifying, among other things, that she sought data necessary to compute damages. *2 Through June, July, and into August, Lombardo sought without success to obtain responses and verifications regarding her first set of discovery requests, although Broadway complied with some other discovery requests. In August, for the first time, Broadway indicated it had “problems” retrieving the requested discovery due to the number of former employees' records it was required to compile. In mid-September, when the responses were still not forthcoming, Lombardo made several more attempts to secure compliance informally. When she finally mentioned refiling the motions to compel, Broadway claimed its human resources information services system was off-line during a system conversion and it needed more time to compile the information. In November, Lombardo wrote to Broadway, expressing concern it had not complied with the requested discovery. About two weeks later, she filed three motions to compel further responses. In response, Broadway explained Federated had acquired Broadway and as a result “numerous computer systems and documents previously maintained by Broadway have been lost, misplaced or destroyed....” Broadway claimed efforts were being made to reconstruct a system that could retrieve the data. The court granted the motion and ordered Broadway to pay $3,479 in sanctions. As a result of Broadway's response that the documents had been lost, misplaced or destroyed, Lombardo propounded special interrogatories in January 1998 to ascertain the nature and extent of the class members' damages and whether spoliation of evidence had occurred. In February, Broadway responded with answers that consisted of seven to nine boilerplate objections. Lombardo sought to meet and confer about the adequacy of the responses, but apparently before that could occur, the parties agreed to halt discovery pending mediation. During mediation, Broadway provided Lombardo with several hundred “hard copy” payroll register pages, but Lombardo apparently considered them to be insufficient. She refiled her motions to compel further responses in October, and the court referred the matter to a private judge referee. The referee recommended granting the motions in their entirety and imposing $8,396 in sanctions, and the trial court eventually ruled consistently with the recommendation. In February 1999, more than one year after Broadway admitted it had agreed to voluntarily provide Lombardo with computerized payroll data, Broadway served further responses to the special interrogatories. In response to the request for details on Broadway's assertion the computerized records had been “lost, misplaced or destroyed,” Broadway said the records had been sent to Georgia in 1996 and could not be located. In May, Broadway served the balance of its responses to the special interrogatories. It failed to provide further information about the computer records inquiry. The same month, Lombardo's counsel inquired about how many pages of payroll registers related to the approximately 90,000 class members, which Lombardo had specifically requested in a demand for production of documents. Broadway estimated there were about five million pages. *3 In July, Lombardo sought to meet and confer regarding discovery issues. Among other things, she wanted Broadway to pay the cost of recompiling the computerized payroll records that had been destroyed. Twenty-four days later, Broadway served its verified response concerning the disposition of the computerized payroll records. Broadway explained that when it ceased business operations in February 1996, it had copied its data processing company's payroll records on storage devices using its own utility program. Those devices were shipped to a Federated data center in Georgia and later moved to another facility for storage. In late spring or early summer, some of the devices were taken out of storage for review. When it was determined they could not be read because they were damaged or the software to read them could no longer be obtained, they were all destroyed. This had all occurred before Lombardo sought discovery in the state court action in January 1997. In September 1999, Lombardo brought a motion under Code of Civil Procedure section 2023[2] seeking sanctions for the spoliation of the computerized payroll records. She asked the court to require Broadway to pay the cost of recompiling the computer records from the five million hard copy records and to pay her $31,250 in attorney fees, representing the expenses she incurred in seeking discovery compliance. Over a week later, Broadway's counsel contacted Lombardo's counsel and informed him Broadway had retained a data conversion company to have hard copy registers converted into electronic database records. Broadway's counsel indicated the project, which would cost about $100,000, should be completed by the end of October. He represented the “data being generated [would] include all pertinent and available data from the payroll registers on class members.” (Italics added.) The discovery referee found that before the litigation commenced, Lombardo had twice requested Broadway to preserve records that would include the computer records, but Broadway had willfully destroyed them after litigation began. The referee also found Broadway agreed to produce the records on numerous occasions, even though it knew the records had been destroyed and had made evasive responses to discovery requests concerning them. He further found Broadway agreed to provide the records on June 1997 and was without substantial justification in opposing Lombardo's motion to have the computer records recompiled. The referee recommended that Broadway be ordered to recompile the records and pay the requested attorney fee sanction. He proposed, however, that Broadway be allowed to complete the $100,000 recompilation it had begun and compliance be stayed pending a motion to determine whether the case was preempted by federal law. The trial court adopted the referee's recommendations and entered them as the order of the court. I We must address a preliminary issue: whether an order imposing discovery sanctions over $5,000 is appealable.[3] We conclude it is, but even if it were not, we would treat the appeal as a petition for extraordinary relief. *4 Section 904.1, subdivision (a)(12), which became effective in 1994, authorizes an appeal from sanction orders exceeding $5,000. In Rail–Transport Employees Assn. v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469, 471–475, 54 Cal.Rptr.2d 713, the Court of Appeal concluded section 904.1, as currently written, encompasses discovery sanctions as well as other types of sanctions. The court reasoned that the legislative history of the 1993 amendment shows the Legislature sought to resolve a conflict within the Court of Appeal regarding the appealability of certain sanctions orders. Because the only conflict in that regard concerned discovery sanctions, the court concluded the express authorization for the appeal of sanction orders in excess of $5,000 refers to discovery sanctions as well as other types of sanctions. (Id. at pp. 473–475, 54 Cal.Rptr.2d 713.) The Rail–Transport Employees Assn. opinion is comprehensive, well reasoned, and has not been questioned in a published opinion since its publication over five years ago. We embrace it.[4] Lombardo complains that allowing an appeal of sanction orders such as this one can be “used to derail and otherwise stall the prosecution of [an] action.” We do not see why this is so. Lombardo does not assert any stay was imposed, or if one was, that she objected to it. And, because discovery sanctions over $5,000 are extremely rare, we do not agree with her that such appeals would “utterly defeat the very purpose of the Trial Court Delay Reduction Act.” Even if the order were not appealable, we would consider the purported appeal as an extraordinary writ. (See Green v. GTE California, Inc. (1994) 29 Cal.App.4th 407, 410, 34 Cal.Rptr.2d 517.) The matter has been completely briefed, we have invested many hours considering the issues raised, and our decision will inform on other aspects of the case. Moreover, finality as to this particular dispute should help expedite the balance of the litigation. (Ibid. [“We hope to end this tasteless episode”].) II Broadway contends sanctions were improper because the underlying discovery motion was denied. It reasons Lombardo's motion sought to have Broadway “pay the cost of compiling all five million pages of payroll registers with a $5 million plus price tag,” but the court ultimately only ordered Broadway to complete the $100,000 recompilation it had begun, and compliance was stayed pending a motion to determine whether the case was preempted by federal law. Broadway concludes that because Lombardo opposed this form of relief, she lost the motion and was not entitled to attorney fees as a sanction. Broadway points out section 2023 permits the imposition of sanctions only when a party unsuccessfully opposes a discovery motion and argues it was successful. The section contains the language Broadway claims it does (§ 2023, subd. (a)(8)), but Broadway focuses on the wrong motion. The motion Lombardo brought in September 1999 was to obtain sanctions for failing to comply with multiple previous motions to compel production of computer payroll records, something Broadway had agreed to do since at least 1996. (See § 2031, subd. (n).) *5 The request for the recompilation of all five million hard copy records was a sanctions request. Broadway cites no authority, and we are aware of none, that precludes a court from awarding attorney fees sanctions when it denies the precise form of other sanctions sought.[5] III Broadway argues Lombardo failed to specify a proper ground in her motion for the sanctions. It relies on section 2023, subdivision (b), which states: “To the extent authorized by the section governing any particular discovery method or any other provision of this article, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose ... sanctions against anyone engaging in conduct that is a misuse of the discovery process.” Broadway asserts this language required Lombardo to specify the applicable “section governing any particular discovery method” that authorized the sanctions. It relies on section 1010, which requires a statement of grounds in a notice of motion, and 366–388 Geary St. L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1199–1200, 268 Cal.Rptr. 678, where the court observed, “Generally, the trial court may only consider those grounds specified in the notice.” Lombardo's notice of motion clearly indicated why she sought sanctions: “[Broadway's] total destruction of [its] computerized payroll data ... destroyed [Lombardo's] right to fundamental fairness and justice. [¶] [Broadway's] destruction of this evidence was willful in that [Broadway] was twice formally requested to preserve this evidence before the commencement of this litigation; [Broadway] was required under Federal Law to provide this evidence after the commencement of this litigation; [Broadway] promised to provide [Lombardo] with this evidence after the commencement of this litigation; and [Broadway] repeatedly lied to [Lombardo], and the Court, in an effort to conceal [its] destruction of this evidence.” (Original underscoring.) In her points and authorities submitted with the notice, Lombardo expressly referred to section 2023 many times as the section under which sanctions were sought. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808, 210 Cal.Rptr. 599 [grounds may be contained in accompanying papers].) Broadway cites no authority, and we are aware of none, that requires more than Lombardo did. Nothing required her to specify the applicable section governing any particular discovery method that authorized the sanctions. Broadway complains this lack of specificity deprived it of an opportunity initially to oppose Lombardo's motion. It suggests the referee sprang section 2031, subdivision (m)[6] on it after the fact as a basis for the section 2023 sanction. Not so. As Lombardo notes, it is axiomatic the applicable section would be section 2031, dealing with the inspection of documents and other tangible things. Indeed, one of the two cases Broadway cited in its opposition to the motion, Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544, 51 Cal.Rptr.2d 311, dealt with section 2023 sanctions arising from a failure to comply with section 2031. It strains the bounds of credulity to believe Broadway had no clue what the applicable section was. Moreover, even if some unfairness arose from the failure to mention section 2031 in the moving papers, it was cured when Broadway had an opportunity to submit further pleadings and argue the issue before the superior court. *6 Apparently intertwined with Broadway's argument on this issue is an assertion sanctions may only be imposed under section 2023 if the conduct is sanctionable under some other “section governing any particular discovery method ....“ (§ 2023, subd. (b).) Broadway seems to reason that since section 2031, subdivision (n) only authorizes sanctions if the responding party unsuccessfully opposes a motion to compel compliance or fails to obey an order compelling compliance, sanctions for spoliation of evidence cannot be imposed under section 2023 because that conduct does not fall under section 2031, subdivision (n). The short answer is Broadway failed to obey an order compelling compliance. It had been ordered at least once before to provide the data it had already agreed to produce and failed to do so. Its failure was the result of its destruction of the evidence. But even if Broadway's conduct did not fall under the purview of section 2031, the imposition of sanctions was proper. Section 2023, subdivision (b) authorizes the imposition of sanctions for discovery abuse not only when another section calls for them, but when they are authorized by “any other provision of this article.” (§ 2023, subd. (b).) Subdivision (b)(1) of section 2023, indisputably part of the same article, provides: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” Section 2023, subdivision (a) defines discovery abuse and includes “[f]ailing to respond or to submit to an authorized method of discovery,” “[m]aking, without substantial justification, an unmeritorious objection to discovery,” “[m]aking an evasive response to discovery,” and “[d]isobeying a court order to provide discovery.” (§ 2023, subd. (a)(4)-(8).) In Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12, 74 Cal.Rptr.2d 248, 954 P.2d 511, the Supreme Court observed, “[O]ur discovery laws provide a broad range of sanctions for conduct that amounts to a ‘misuse of the discovery process.’ [Citation.] Section 2023 ... gives examples of misuses of discovery, including ‘[f]ailing to respond or to submit to an authorized method of discovery’ [citation] or ‘[m]aking an evasive response to discovery.’ [Citation.] Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request.” The high court recognized spoliation of evidence is sanctionable under the terms of section 2023 itself. Our conclusion is reinforced by Vallbona v. Springer, supra, 43 Cal.App.4th 1525, 51 Cal.Rptr.2d 311. The Court of Appeal upheld the imposition of an evidentiary sanction against the defendant even though the plaintiff had not first obtained an order for compliance as mandated by section 2031. (Vallbona v. Springer, supra, 43 Cal.App.4th at p. 1545, 51 Cal.Rptr.2d 311.) *7 The court first observed, “ ‘ “ ‘The trial court has a wide discretion in granting discovery and ... is granted broad discretionary powers to enforce its orders but its powers are not unlimited.... [¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery [s]he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. [Citations.]’ “ [Citations.]' [Citations.]” (Vallbona v. Springer, supra, 43 Cal.App.4th at p. 1545, 51 Cal.Rptr.2d 311.) As for the failure to comply with the statutory prerequisite, the court realized it would be futile to bring a motion to compel because the defendant claimed the documents had been stolen. (Vallbona v. Springer, supra, 43 Cal.App.4th at pp. 1545–1546, 51 Cal.Rptr.2d 311.) Similarly here, because the evidence had been destroyed, it would have been futile to require Lombardo to proceed under section 2031 as a prerequisite to sanctions for spoliation. IV Broadway claims the sanctions award was unjustified because it did not spoliate evidence. Its argument is threefold: (1) it did not spoliate the payroll register data that was the subject of Lombardo's discovery motion; (2) it did not engage in any intentional conduct justifying the award of monetary sanctions; and (3) it did not destroy evidence in response to or in anticipation of a discovery request. None of these contentions has merit. Broadway argues it did not spoliate the payroll data because the data was still available in hard copy form after it destroyed computerized records. It relies on Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 48 Cal.Rptr.2d 607 and Pau v. Yosemite Park and Curry Co. (9th Cir.1991) 928 F.2d 880. Both cases are inapposite. Broadway asserts the Willard court held there was no basis to impose liability for the intentional spoliation of evidence because secondary evidence was available to demonstrate the probable contents of the missing documents. Willard did not involve discovery sanctions; it considered the now defunct tort of spoliation. (Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th at p. 907, 48 Cal.Rptr.2d 607; see Cedars–Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at pp. 6, 18, 74 Cal.Rptr.2d 248, 954 P.2d 511 [finding no cause of action for intentional spoliation exists and disapproving Willard ].) The court applied a balancing test to determine whether it was just to impose liability and listed the secondary evidence as one of the reasons not to do so. (Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th at p. 919, 48 Cal.Rptr.2d 607.) The court relied on other factors to reach its result: the defendant owned the documents and had no statutory or regulatory duty to preserve them, and because the defendant destroyed the documents before the plaintiff was injured and after the product had been on the market for many years, the destruction would not be considered as unfair or immoral. (Id. at pp. 917–925, 48 Cal.Rptr.2d 607.) *8 The present action does not involve spoliation as a tort, which involves different policies and considerations, and Willard is factually distinguishable as well. Broadway owed Lombardo a duty to preserve the evidence. Lombardo put Broadway on notice in 1995 she wanted the evidence preserved, she requested production of the evidence in federal discovery, and Broadway agreed to produce it. After litigation commenced and knowing Lombardo wanted the data, Broadway intentionally destroyed it. Pau is likewise distinguishable. It involved a bicycle injury, and the defendant mixed up the bicycle in question with another. The court of appeals found the district court properly denied summary judgment based on spoliation because the mix-up was unintentional and both bicycles were available for inspection. (Pau v. Yosemite Park and Curry Co., supra, 928 F.2d at pp. 885–886.) Here, the trial court adopted the referee's report, which found the spoliation was intentional.[7] And, unlike Pau, the evidence in question was not available intact. Broadway urges the hard copy payroll documents were the same as the computerized data. Not so. The hard copy may have contained the same information, but that information was not equally accessible. As Lombardo noted in her motion, it would be virtually impossible to manually extract all of the necessary and pertinent information from five million pages of records. To give the documents any value, it would be necessary to recompile them, a process Lombardo had been told would cost around $5 million. Broadway obviously agreed because it was willing to spend $100,000 to have some sort of abbreviate recompilation done. The computerized records had evidentiary unique value distinct from the hard copy records: They made the information accessible. Broadway contends it did not engage in intentional conduct that merited monetary sanctions. It reasons that the referee found its destruction of the records was willful but not intentional. The referee used the term “willfully” at one point in his report, but he clearly found the destruction was intentional. In stating the law, the referee referred to “ ‘[d]estroying evidence in response to a discovery request after litigation has commenced....’ “ He noted Broadway knew when it destroyed the records that it was involved in litigation in which the records were sought. These findings connote intent. Broadway argues nothing in its conduct shows intentional spoliation. It asserts the uncontradicted evidence showed it innocently copied the data onto storage devices and destroyed them only when it discovered they were unreadable, and thus useless. That is what Broadway consistently claimed, but much circumstantial evidence contradicted it. Lombardo advised Broadway to preserve evidence. When Lombardo asked for the computerized records on numerous occasions, Broadway agreed to produce them. Later, Broadway falsely said all records had been produced. Then, it again agreed to produce the records even though it knew they had been destroyed. *9 Later, Broadway said it was having problems producing the records even though it knew they had been destroyed. Then, it said it was having trouble compiling the data because an information system was off-line even though it knew the records had been destroyed. Later, Broadway said the records were lost, misplaced, or destroyed even though it knew they had been destroyed. Then, it said it did not know where the records were even though it knew they had been destroyed. This scenario smacks of an intentional destruction of evidence followed by a cover up. Broadway argues it did not destroy evidence in anticipation of or in response to a discovery request. It claims it had no idea and could not anticipate Lombardo wanted the documents when it destroyed the data. Not so. Lombardo wrote to Broadway twice in 1995, advising it under federal law to preserve relevant evidence. Broadway complains about the way the letters were addressed, but it never showed the letters were not received. We have reviewed Lombardo's interrogatories, requests for admissions, and request for production of documents. Taken together, they plainly put Broadway on notice Lombardo wanted the computerized payroll data. We reject Broadway's claims the federal lawsuit was distinct from the present action for purposes of preserving the evidence and that because no class had been certified when Lombardo made the request, Broadway thought Lombardo only wanted her records. Broadway was always on notice Lombardo contemplated a class action suit and that she wanted the documents preserved. Although the case existed in two forums, it was effectively the same action. As the Supreme Court noted in Cedars–Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at page 8, 74 Cal.Rptr.2d 248, 954 P.2d 511, “No one doubts that the intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.” Out of concern for these interests, the court noted the section 2023 sanctions may be used to protect them. (Cedars–Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at p. 12, 74 Cal.Rptr.2d 248, 954 P.2d 511.) It would eviscerate these protections to allow Broadway and other spoliators to rely on the technicalities it raises to avoid punishment for its wrongdoing. V Broadway asserts the trial court erroneously failed to consider Broadway's objections to the discovery referee's report before adopting it. It premises its argument on two claims: the trial court never expressly stated at the hearing on the motion to adopt the report that it had reviewed the objections, and it signed the referee's report the week before the hearing on the motion. Broadway is correct about what the court failed to say at the hearing. But it ignores the court's comments at a hearing the week before that it was continuing the matter for a week “to hear the objections. [¶] I think it is premature until we are able to consider the objections.” *10 Broadway is also correct the trial court apparently signed the referee's report the week before it heard the objections, but the court's signature does not mean it ruled prematurely on the matter. Nothing in the report where the court signed indicated the court intended to approve the report by signing it. It contained no such order. And, as with the Legislature and its enactments, we do not presume courts engage in idle acts. (See Adams v. Murakami (1991) 54 Cal.3d 105, 123, 284 Cal.Rptr. 318, 813 P.2d 1348 [courts do not presume Legislature engages in idle acts].) The court heard protracted oral argument at the hearing on the motion a week later. No reasonable person would conclude the court had reached a decision and was merely allowing pro forma argument. VI Broadway urges $31,250 in sanctions was excessive and impermissibly punitive. “The determination of the amount of the sanction is a matter for the court's discretion....” (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 699, fn. 3, 3 Cal.Rptr.2d 790.) We cannot say the trial court abused its discretion. Lombardo's claim was based on the 125 hours her attorney calculated he invested in trying to secure compliance with the court's prior order compelling production of the data. He detailed the types of activities in which he had been involved.[8] He multiplied the hours times his $250 per hour billing rate to obtain the total request. The attorney adequately documented his request, and the trial court had the discretion to find the time spent and billing rate were reasonable. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254–255, 110 Cal.Rptr.2d 145.) The award was reasonable and proper. The order is affirmed. Lombardo is entitled to her costs on appeal. WE CONCUR: RYLAARSDAM, Acting P.J., and MOORE, J. Footnotes [1] This is a class action suit. For the sake of convenience, however, we will refer only to Lombardo, the representative plaintiff, but will note when the class was certified. [2] All further statutory references are to the Code of Civil Procedure unless otherwise noted. [3] The parties did not raise the issue, but we did at oral argument, asking them to submit supplemental briefing. [4] In Greene v. Amante (1992) 3 Cal.App.4th 684, 690, 4 Cal.Rptr.2d 571, we held the prior version of section 904.1 also authorized certain discovery sanction appeals. That opinion, although well reasoned, was superceded by the 1993 amendment to the section. [5] The court did not strictly deny the request for recompilation of all of the hard copy records. It simply deferred that sanction pending resolution of the federal preemption issue and Broadway's attempted compliance through its own means. [6] The subdivision is now lettered “n.” [7] We consider and reject Broadway's claim in the next part that the destruction was not intentional. [8] “I have spent well in excess 120 [sic ] hours in attempting to resolve this matter informally, locating and discussing this matter with companies that could recompile this computer data, reviewing the entire file from the beginning through the present, conducting research into ‘spoliation,’ and preparing the notice of motion and my declaration. I anticipate spending at least another five hours, most likely more, in reviewing the defendant's opposition and preparing a reply thereto and thereafter attending the hearing on this motion.”