Appellants and Appellate Counsel Are Sanctioned For Frivolous Appeal

Fourth District, Division Three Issues Sanctions for Appeal of a Moot Issue.

            Under “Cases:  Sanctions,” we have discussed the standards governing imposition of sanctions for frivolous appeals, with In re Marriage of Flaherty, 31 Cal.3d 637, 654 (1982) being the seminal case in the area.  The next case, which had already resulted in appellate sanctions against appellants of just over $40,000, was yet another appeal, but this time an appeal of a moot issue.  The result?  More attorney’s fees and other sanctions awarded against the appellants.

            In Palacio Mar Homeowners Assn., Inc. v. McMahon, Case No. G039245 (4^th Dist., Div. 3 Aug. 25, 2008) (unpublished), additional sanctions were imposed for pursuit of a frivolous, dilatory appeal on a moot issue.  The mootness satisfied the objective unreasonableness prong of the frivolous appeal test.   To negate the subjective part of the test, appellants suggested that they offered to dismiss the appeal if respondents agreed to not seek a new writ of execution.  This argument was rejected soundly:  “But [appellants] had no right to bar Palacio from enforcing its judgment against Arnold.  Their response shows they persisted in their appeal only to extract an undeserved concession from Palacio.  This is the brazen intransigence of a child who steals another child’s toy and, after being caught, offers to sell it back for a dollar.”  (Slip Opn., at p. 7.)

            Although Palacio only indicated that it expended $2,700 on the appeal, the Court of Appeal (in a decision penned by Justice Ikola for a 3-0 panel) decided this was not enough of a deterrent.  Instead, it doubled the estimated fees to $5,400 as sanctions that were payable to Palacio.  (See Pierotti v. Torian, 81 Cal.App.4^th 17, 33-35 (2000).)  Further, because the state had to deal with a frivolous appeal, the appellate panel imposed $6,000 in sanctions as the costs of dealing with it, observing that some other courts had imposed similar sanctions as high as $10,000 or $15,000. 

            Sanctions were imposed jointly and severally against appellants and appellate counsel.  Counsel were reminded by the Court of Appeal that they are not “hired guns” to “carry out every direction given by the client.”  (BLOG OBSERVATION—Litigants and practitioners should pay attention to this admonition, which shows there are bounds to “zealous representation.”)  Beyond that, the opinion containing the sanctions was to be forwarded to the State Bar both by sanctioned appellate counsel and the appellate court clerk.