Appeal Sanctions, Appealability: Plaintiff’s Appeal Of Trial Court’s Order Vacating A Default Against Defendant Dismissed, But Defendant’s Request For Appeal Sanctions Of $5,530 For Frivolous Appeal Denied

Self-Represented Plaintiff’s Appeal Of A Nonappealable Order Did Not Rise To The Strict Standard For Imposing Sanctions

            In Barker v. Di Lando, Case No. A159556 (1^st Dist., Div. 2 November 23, 2020) (unpublished), the 1/2 DCA dismissed an appeal filed by a self-represented plaintiff seeking reversal of the trial court’s order vacating default entered against defendants.  Although default had been entered against defendants, plaintiff’s two subsequent attempts to file a clerk’s default judgment failed – with both marked as received by the clerk’s office, but not filed.  Because no default judgment had been entered, the trial court’s order granting the motion to vacate the default was not appealable. 

            In response to plaintiff’s appeal, defendants sought $5,530 in appeal sanctions for fees incurred in the preparation of their motion to dismiss.  The appellate panel denied the request – reasoning that plaintiff’s appeal merely lacked merit, and that lacking merit alone is not sufficient to justify the imposition of sanctions.  Additionally, after considering the facts that plaintiff has no legal background and arguable ambiguity existed as to whether a clerk’s default judgment could have been entered, the panel found plaintiff’s appeal did not rise to the strict standard for imposing sanctions set forth by the California Supreme Court in In re Marriage of Flaherty, 31 Cal.3d 637 (1982) [No. 9 of our Leading Cases].