Creative Argument Okay, But Better Not Base Appeal on Rejected/Sanctioned Argument In Another Case That Was Affirmed On Appeal.
We can only guess that some practitioners believe that appellate courts will not thoroughly research a matter or miss something along the way. Not likely, as this next opinion shows.
In this one, defendants lost a SLAPP motion against plaintiff court reporting company, and then appealed. They raised the same argument that had been rejected and sanctioned in another trial court and affirmed on appeal by another appellate court--even though defense counsel, too, actually was involved in the prior case. Bad idea to appeal, because that had repercussions on attorney’s and clients’ pocketbooks.
The Second District, Division 4 in Personal Court Reporters, Inc. v. Rand, Case No. B229358 (2d Dist., Div. 4 Apr. 20, 2012) (certified for publication) involved defendants’ appeal of the SLAPP denial. Although acknowledging that counsel ordinarily should have the freedom to file appeals based on creative arguments with little hope of success, basing the argument on an already rejected/sanctioned argument invoked application of “the principle of ‘once burned, twice shy’”, especially given counsel’s involvement in the prior case producing sanctions. (Slip Opn., p. 9.)
The price of the defense’s frivolous appeal? Plaintiff requested $26,837.50, but the appellate awarded it $22,000, jointly and severally, against defendants and their counsel after eliminating some duplicative/unnecessary charges.
The opinion also has an interesting discussion of the independent frivolous appeal prongs of frivolousness or delay motivation, with the appellate court noting that these independent constructs actually are used together--with the total lack of merit of an appeal viewed as evidence that appellant must have intended it only for delay. (In re Marriage of Gong and Kwong, 163 Cal.App.4th 510, 516 (2008) [surveyed in our May 30, 2008 post].)