Appeal Sanctions: $10,000 In Frivolous Appeal Sanctions Awarded To Respondent And $5,000 In Separate Frivolous Appeal Sanctions Awarded To Appellate Clerk, All Against Appellant

Opinion Has A Stark Reminder For Appellants To Not Appeal Discretionary Rulings Where They Did Not Develop A Meritorious Record For Reversal.

            Champlin/GEI Wind Holdings, LLC v. Avery, Case No. B319563 (2d Dist., Div. 6 June 2, 2023) (published) is a stark reminder for appellate attorneys (or trial attorneys appealing for clients) to be very careful in appealing discretionary rulings.  Here is the introductory warning to the bar:

            “We publish this opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal. We ourselves had occasion to warn attorneys concerning the abuse of discretion standard on appeal twenty-five years ago. (Estate of Gilkison (1998) 65 Cal.App.4th 1443 (Gilkison).) ‘Everything has been said already; but as no one listens, we must always begin again.’  (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) We borrow the phrase from our previous opinion: This appeal ‘was “dead on arrival” at the appellate courthouse.’ (Gilkison, supra, at p. 1449.) This does not mean that we do not consider the contentions of counsel. We do. But sometimes, the contentions are frivolous in light of the record on appeal. That is the case here.”

            In this one, appellant lost a summary judgment and motion to amend its pleading because it made an untimely/incomplete summary judgment opposition and unreasonably delayed in filing a motion to amend (not to mention technical difficulties with the motion) such that the lower court discretionarily and substantively granted relief against appellant. 

            The appellate court affirmed these determinations.  Then, it had to decide whether the appeal was frivolous, which the Court of Appeal determined it was.  There was a total lack of merit, not to mention there was evidence of an intent to delay because appellant maintained a Hawaii mechanics lien despite a California lower court ruling that the case lacked merit.  Respondent requested frivolous appeal sanctions of over $62,000, but the appellate court awarded respondent $10,000 in fees as well as $5,000 in sanctions to the appellate clerk for the reviewing court’s expense in working up the appeal.  Aside from that, respondent was awarded costs on appeal and the opinion was forwarded to the State Bar as is required in this circumstance.