CALIFORNIA ATTORNEY'S FEES

Appeal Sanctions: $8,500 To Appellate Clerk Was Appeal Sanctions

Lower Court Will Determine Amount To Prevailing SLAPP Litigant On Appeal.

               Just to show you how appeal sanctions are increasing, the appellate court in NBoordhof v. Armstrong, Case No. B331078 (2d Dist., Div. 4 Nov. 14, 2024) (unpublished) determined that a frivolous appeal should result in the punished litigant paying $8,500 to the appellate clerk for the frivolous appeal.  With respect to appellate fees to the SLAPP prevailing litigant, that was something the lower court would determine on remand.

Appeal Sanctions: SLAPP Denial Appeal Was Not Frivolous

Trial Court Asked For Discussion On Five Issues And Interactive Oral Argument, Which Negated That The Motion Was Frivolous.

               In Gazal v. Echeverry, Case No. B327668 (2d Dist., Div. 8 Mar. 29, 2024) (published), defendants lost a SLAPP motion and then appealed, with the appeal being unsuccessful. Plaintiff filed a motion to recover $106,730 in monetary sanctions for a frivolous appeal.  The appellate court rejected plaintiff’s request, reasoning that the trial court invited argument on five issues and noted the interactive oral argument on the motion—which belied that the motion was frivolous or something no reasonable attorney would have ever brought.

Appeal Sanctions: Appellate Sanctions Imposed In Two Cases Where Interlocutory Appeals Were Involved And A Failure To Share The Appellate Record

Real Rubs Were Attacks On Lower Court and Appellate Justices.

            In Schwartzman v. South Coast Tax Resolution, Inc., Case No. B314770 et al. (2d Dist., Div. 2 Nov. 17, 2023) (unpublished) and Czech v. Herrera, Case No. B316020 (2d Dist., Div. 2 Nov. 17, 2023) (unpublished), the appellate court in two appeals affirmed respective frivolous appeal sanctions against appellants’ attorney.  You can look up the sanctions amount, but the message is that the appellate court believed it proper to impose sanctions payable to respondents’ counsel and the DCA clerk because the appeals were meritless and cast offensive aspersions against the lower and appellate courts.  They did cite a recent published decision which allowed recovery of fees to a litigant based on an incivility rationale.

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.

Appeal Sanctions, Costs: Prevailing Party Was Entitled To An Amended Judgment With Costs Requests Included Because The Other Side Did Not File Any Motion To Strike/Tax Costs

However, Appeal Sanctions Were Denied Because They Were Improperly Sought In Respondent’s Brief, Rather Than Through A Separate Motion.

            The next case, Black v. Fireman’s Fund Ins. Co., Case No. A165731 (1^st Dist., Div. 1 May 11, 2023) (unpublished), has two lessons, where a prevailing party did obtain an amended judgment to add unopposed routine costs requests and where the party successfully winning an appeal only asked for frivolous appeal sanctions in its respondent’s brief.

            The lessons, two in number.  First, the failure to file a motion to strike or tax costs means any challenges are forfeited on appeal, with the clerk needing to immediately enter the costs on the judgment.  (CRC 3.1700(b)(4); Oak Grove School Dist. v. City Title Ins. Co., 217 Cal.App.2d 678, 698 (1963).)  [NOTE:  Based on the pandemic disruption, it is best to move the court to add these costs to the judgment, given that clerks are inundated so that they fail to do this in due course.  But this is also best post-pandemic procedure by a party entitled to costs.]   Here, the failure to file such motions, forfeited any appellate challenge to the amended judgment including costs.  Second, appellate sanctions cannot be requested in a respondent’s brief, but must be done so through a separate motion.  (Cowan v. Krayzman, 196 Cal.App.4^th 907, 919 (2011).)  In this case, respondent’s failure to do so prevented the award of any frivolous appeal sanctions.

Appeal Sanctions: Monetary Sanctions For Corrected Appellant’s Appendix Affirmed On Appeal, But Appellant Dodges Frivolous Appeal Sanctions

Although The 2/6 DCA Found The Appeal To Be Meritless, Lack Of Bad Faith Was Shown By Appellant’s Vigorous Advocacy

            Appellant won one and lost one as far as appellate sanctions were concerned in IQ Holdings v. Krablin, Case No. B307034 (2d Dist., Div. 6 Sept. 8, 2022) (unpublished).  Appellant lost an appeal of $15,050 in sanctions for making a respondent force the filing of a corrected appellant’s appendix—you do not see this often.  However, the appellate court denied a request for frivolous appeal sanctions of $41,500; although finding the appeal was meritless, the panel found that vigorous advocacy was sufficient here to show a lack of subjective bad faith under Flaherty [our Leading Case No. 9].  The panel did warn that other courts might not look at a future appeal with these problems as kindly as it did, reporting appellant’s attorney to the State Bar based on affirming the $15,050 sanctions award. 

Appeal Sanctions, Sanctions: $950 Sanctions For Violating Pre-Trial Preparatory Local Rules Affirmed On Appeal

Panel Also Issues Cautionary Warning For Badly Written, Nonpersuasive Appellate Briefs In The Future.

            The 1/2 DCA, in Shiheiber v. JPMorgan Chase Bank, N.A., Case No A160188 (1^st Dist., Div. 2 July 25, 2022) (published), affirmed a $950 sanctions award against an attorney for violating local pre-trial preparatory filing rules under Code of Civil Procedure section 575.2, even noting the trial judge was generous in awarding only this amount which was below State Bar reporting requirements.  Attorney, on appeal, advanced arguments rejected by the appellate panel:  that section 575.2 was limited only to pre-trial proceedings (no), and there was a necessity to have a bad faith demonstration (no).  It also published to indicate that appellant’s appellate briefing was dismissed and totally unpersuasive, warning practitioners that the Division will award appeal sanctions in the future for this type of briefing.  (The Division also indicated that respondent did not properly ask for sanctions in a separate noticed motion, only in respondent’s brief, which is in violation of CRC directives, so it would have been disingenuous to award sanctions given this error by the other side.)

Appeal Sanctions: Unsuccessful Patent Infringement Plaintiff, Losing Summary Judgment Motion Badly, And Its Counsel Are Jointly And Severally Assessed With Frivolous Appeal Sanctions Of $107,748.27

This Was A 2-1 Opinion, With A Reduction For Sanctions Motion “Fees On Fees”; Dissent Felt That Just A Weak Appeal Did Not Warrant Sanctions.

            Under Federal Rules of Appellate Procedure 38, a circuit court may award “just damages and single or double costs to the appellee” if an appeal is determined to be frivolous.  The Federal Circuit, in Pop Top Corp. v. Rakuten Kobo Inc., No. 2021-2174 (Fed. Cir. July 14, 2022) (nonprecedential order), used this rule to assess frivolous appeal sanctions of $107,748.27 against an unsuccessful patent infringement plaintiff badly losing a summary judgment motion which also did not go well on the merits appeal of the summary judgment later, as well as its counsel.  Apparently, the district court also issued Federal Rules of Civil Procedure 11 sanctions, although only the dissenting opinion alludes to this fact and that order was still under appeal. 

            Appellee then moved for attorney’s fees and double it costs of $140,964.46, inclusive of $53,216.19 in “fees on fees” for presenting the appeal sanctions motion before the Federal Circuit.  The majority of justices, in the order, granted the appeal sanctions request, but reduced it to $107,748.27, because it found that 83 hours to brief the sanctions motion as compared to 107.6 hours to respond to the appeal showed that $20,000 instead was the reasonable amount for “fees on fees.”  The sanctions award was assessed jointly and severally against plaintiff/appellant and its counsel.  The majority found the appeal frivolous based on its weakness and appellant’s misrepresentation about appellee’s position throughout the appeal.

            The dissent saw things differently, believing that even a weak appeal is something which does not justify appeal sanctions.  The dissent said this in part: “Litigation by its nature reflects the spin of advocacy, and the right of appellate review is a safeguard to the rule of law.  The judicial burden of reviewing a weak appeal or receiving one-sided argumentation does not warrant the sanction of award of attorneys’ fees.”

Appeal Sanctions, Sanctions, Settlement: No Abuse Of Discretion In Trial Court’s Order Sanctioning Plaintiffs $10,000 For Failure To Execute Settlement Agreement

The Record Reflected That The Parties Agreed In Open Court To Put The Oral Settlement Agreement In Writing And That Deadlines For Payment Of Settlement Funds Would Be Triggered By Full Execution Of The Written Settlement Agreement.

            In Tricoast Builders v. Frederick, Case No. B307825 (2d Dist., Div. 6 October 18, 2021) (unpublished), homeowner defendants/cross-complainants in a construction defect case moved ex parte for an order to show cause why the oral settlement agreement, which had been reached months earlier in open court during a mandatory settlement conference and subsequently reduced to writing, had not been signed by plaintiffs/cross-defendants builder and its principal (who also served as one of builder’s attorneys) and for $25,627.51 in monetary sanctions. At a continued hearing on homeowner’s motion, the trial court awarded $10,000 in Code Civ. Proc., § 128.5 sanctions against builder and its principal, jointly and severally, instructed the court clerk to execute the settlement agreement on behalf of builder and its principal, and ordered that the sanctions be paid from the portion of settlement that was to be paid to builder. 

            The 2/6 DCA rejected both arguments advanced by builder and its principal on appeal – that the trial court lacked jurisdiction to enforce the settlement agreement, and that the oral settlement agreement was not contingent upon the preparation of a written agreement.  First, although the MSC judge did not retain jurisdiction under Code Civ. Proc., § 664.6 because one of the parties to the case was not present at the MSC, that party subsequently signed the written settlement agreement  thereby making the settlement agreement enforceable against it – along with the other parties who were present at the MSC. Second, the record showed that the parties agreed that a written agreement would be prepared, that the written agreement was consistent with the oral settlement agreement’s terms made in open court, that the deadlines for making the settlement payments would be triggered by the date the written settlement agreement was fully executed, and that builder/its principal did not communicate with homeowners until after the OSC and motion for sanctions was filed. The panel found no abuse of discretion in the trial court’s imposition of sanctions given that builder’s and its principal’s unreasonable delay caused homeowners to incur the expense of applying for the OSC and obtaining a court order authorizing release of the $420,000 in settlement funds owed to them.

            Although finding builder’s/its principal’s arguments on appeal to be unsupported, the 2/6 DCA did not find their appeal to be so void of merit so as to justify granting homeowners’ request for $5,313 in appeal sanctions against builder/its principal.

Appeal Sanctions, Discovery, Sanctions: Fifth District Denies Defendants’ Writ Petition Challenging The Trial Court’s Order To Produce Discovery Responses And Pay $13,680 In Sanctions.

Defendants’ Filing Of The Writ Petition Was Wholly Without Merit And, Under The Standards Set Forth In Flaherty, Was Frivolous And Filed Solely To Cause Delay – Warranting $6,965.00 In Sanctions Pursuant To California Rules of Court, Rule 8.492.

            After defendants failed to provide discovery responses for over three years, the trial court granted plaintiff’s motion to compel and sanctioned defendants and their attorneys a total of $13,680.00.  One month after their discovery responses were due, defendants filed a petition for writ of mandate challenging the discovery order and requesting production of discovery responses be stayed.

            The Fifth District was unimpressed in Pacifica Modesto v. Superior Court, Case No. F082869 (5^th Dist., October 4, 2021) (unpublished) and denied the petition for writ of mandate – finding it to be wholly without merit. Additionally, under the two standards set forth in In re Marriage of Flaherty, 31 Cal.3d 637 (1982) [No. 9 of our Leading Cases], the panel found the writ petition was frivolous and had been filed solely to cause delay.  As such, the panel imposed $6,965.00 in appellate sanctions – pursuant to California Rules of Court, Rule 8.492, which authorizes a Court of Appeal to impose sanctions on its own motion against a party filing a frivolous petition or filing a petition solely to cause delay – jointly and severally against defendants and their counsel, representing the amount of attorneys’ fees plaintiff had incurred in defending against the writ petition.

Appeal Sanctions, Costs: 2/4 DCA Denies Requests From Prevailing Party In A Writ Proceeding For Attorney Fees To Be Included As Part Of Costs Award And For An Award Of Fees As A Sanction Against Defeated Party

Attorney Fees Are Not Included As Recoverable Costs Under California Rules Of Court, Rules 8.493(b) And 8.278(d), And A Passing Reference To An Award Of Fees As Sanctions, With No Showing Of Justification For Sanctions, Does Not Qualify As A Motion For Sanctions Under Rule 8.492(a).

            In Harden v. Superior Court, Case No. B311738 (2d Dist., Div. 4 August 19, 2021) (unpublished), defendant prevailing in a petition for writ of mandate, after the trial court declined to comply with the 2/4 DCA’s alternative writ, requested that attorney fees be included as part of the costs he was entitled to under California Rules of Court, rule 8.493(a).  Because attorney fees are not included in the list of recoverable costs under rules 8.493(b) and 8.278(d), and defendant provided no other basis for a fees award, the 2/4 DCA denied his request.  Additionally, the panel declined to consider defendant’s passing reference to an award of fees as sanctions being issued against plaintiff because the reference did not qualify as a motion for sanctions under rule 8.492(a), and defendant had not shown justification for an award of fees as a sanction.

Appeal Sanctions, Judgment Enforcement, Tort Of Another: Judgment Creditor Denied Contractual, Statutory, Or Tort Fees Where Thrust Of Dispute Involved Claim Under A Separate Contract Not Involving Judgment Debtors And Having No Contractual Fees Clause

Attorney Was Not A Party To The Judgment Collection Settlement Agreement And Defenses Asserted In An Answer Do Not Provide A Tort Of Another Damages Predicate; Appellate Sanctions Request Denied. 

            Bush v. Cardinale, Case No. A159689 (1^st Dist., Div. 4 Aug. 13, 2021) (unpublished) was a situation where a judgment creditor reaching judgments against and an agreement with certain judgment debtors, but then had to defend judgment creditor’s former attorney’s suit requesting a certain percentage of proceeds from the judgment creditor-judgment debtors’ settlement based on a separate contingency agreement among judgment creditor, attorney, and another attorney.  Attorney was not a party to the settlement agreement, and judgment creditor only alleged defenses in attorney’s action as a potential setoff.  Former attorney lost in her action, with no damages awarded to anyone.  However, judgment creditor requested attorney’s fees against former attorney based on the post-judgment enforcement statutes (CCP § 685.040), on the tort of another doctrine, and on a contractual fee provision under the settlement agreement.  The trial judge denied the fee requests.

            The 1/4 DCA affirmed.  The appellate court concluded former attorney’s action was too attenuated to be an “enforcement” action relating to the earlier judgments against judgment debtors, given that former attorney’s lawsuit did not challenge the prior judgments and did not challenge the settlement agreement, but only sought to enforce rights under a separate contingency fee agreement.  The “tort of another” doctrine did not succeed because judgment creditor did not allege any affirmative claims against former attorney (just answering) such that there were no damages which could be pled and proven under the doctrine.  Finally, the contingency fee agreement had no fees clause, with nothing in the settlement agreement indicating that former attorney was a party or third beneficiary to the settlement agreement. 

            Former attorney filed a frivolous appeal motion, but that request was denied because the case was convoluted and there was enough plausibility to some arguments given the uniqueness of the case circumstances. 

Appealability, Appeal Sanctions, Discovery, Sanctions: $4,900 In Monetary Discovery Sanctions Affirmed

However, Frivolous Appeal Sanctions Denied For Failure To Show The Appeal Was Brought For An Improper Motive.

            In Lazo v. Keller, Case No. G058765 (4^th Dist., Div. 3 July 29, 2021) (unpublished), two plaintiffs separately were ordered by the lower court to pay $4,900 in monetary discovery sanctions to defendant.  Plaintiffs’ appeal was dismissed in a 3-0 opinion authored by Justice Fybel.  The reason was that the sanctions order did not exceed $5,000 such that it was not appealable, requiring a dismissal of the appeal.  (Code Civ. Proc., § 904.1(a)(12).)  Defendant moved for frivolous appeal sanctions, but that request was denied because there was no evidence it was brought for an improper motive.  (In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982) [our Leading Case No. 9].)

Appeal Sanctions, Probate: 4/1 DCA Grants Brothers’ Request For $25,087.91 In Appeal Sanctions Against Sisters And Orders Sisters To Pay Additional $8,500 Sanction To The Clerk Of The Court

Sisters Were Previously Found To Be “Vexatious Litigants” Under Code Civ. Proc. § 391(b), Forfeited Claims On Appeal By Failing To Raise Them In The Trial Court And Failing To Follow Appellate Procedures, And Sought To Relitigate Claims Previously Decided By The Appellate Panel.

            Family members were involved in disputes over their deceased mother’s estate – with two sisters on one side, who were previously found to be "vexatious litigants" under Code Civ. Proc. § 391(b), and two brothers on the other – in Estate of Schooler, Case No. D076490 (4^th Dist., Div. 1 June 28, 2021) (unpublished). 

            In what was Sisters’ approximate 29^th action before the 4/1 DCA, involving family trusts and/or their mother’s estate, Sisters attempted to appeal claims and issues that had previously been decided against them by the appellate panel.  Additionally, Sisters' opening brief did not “include a fair and accurate factual and procedural summary to support their arguments,” contained little or no citation to the record – nor, in most instances, any legal support or analysis – and raised claims never raised in the trial court. 

            Based on its conclusion that Sisters’ appeal was both objectively and subjectively frivolous, the appellate panel dismissed the appeal and awarded Brothers $25,087.91 in sanctions imposed against Sisters to account for the attorney fees incurred by Brothers, the impact of the unnecessary delay on the probate proceedings, and to deter future misconduct.   (CRC, Rule 8.276(a); Code Civ. Proc. § 907.)  Additionally, the panel imposed another $8,500 sanction against Sisters, payable to the Clerk of the Court, for the estimated cost to the government and taxpayers of processing Sisters’ frivolous appeal. (Finnie v. Town of Tiburon, 199 Cal.App.3d 1, 17 (1988).)

Appeal Sanctions, Special Fee Shifting Statutes: Plaintiff Obtaining Restraining Order Against Neighbor And Successfully Defeating Neighbor’s Appeals Was Denied Her §527.6(s) Request For Trial And Appellate Fees, And For Appeal Sanctions

Plaintiff Did Not Appeal Trial Court’s Fees Denial, Failed To Provide Appellate Panel With Support Or Argument For §527.6(s) Award For Fees Incurred On Appeal, And Neighbor’s Meritless Appeals Did Not Rise To The Level Of Frivolity So As To Warrant Sanctions.

            After granting plaintiff’s request for a temporary and later permanent restraining order against her neighbor, the trial court denied plaintiff’s request for $9,556.58 in Code Civ. Proc. §527.6(s) attorney fees by leaving blank the portion of the restraining order form where fees are awarded.  When neighbor unsuccessfully appealed issuance of both restraining orders, plaintiff requested an order that neighbor pay the more than $30,000 in attorney’s fees she had incurred in the trial court and on appeal, pursuant to §527.6(s), and for costs, damages, and sanctions.

            With exception only as to her prevailing party appellate costs, the 1/1 DCA denied plaintiff’s requests in Anello v. Schmid, Case Nos. A160440/A160540 (1^st Dist., Div. 1 June 11, 2021) (unpublished).  Plaintiff had not appealed the trial court’s fees denial, so those fees were not up for consideration, and plaintiff failed to provide the panel with support or argument for awarding her with the fees she incurred on appeal.  Finally, the panel denied plaintiff’s request for sanctions because, although finding neighbor’s appeals to have been poorly conceived and lacking merit, it did not find them to be frivolous or filed for purpose of delay.

Appeal Sanctions: Plaintiff Escapes Sanctions For Filing A Frivolous Appeal Of Judgment Entered In Defendant’s Favor After Having Filed Three Previous Unsuccessful Lawsuits Against Same Defendant Alleging Violation Of The Same Primary Right

Although No Sanctions Were Imposed, The 2/6 DCA Did Not Mince Words In Warning Plaintiff That Further Attempts To Litigate The Same Subject Matter Will Result In Sanctions.

            Plaintiff filed four lawsuits against defendant seeking to vindicate her primary right to ownership interest in her home which had been foreclosed upon and sold at auction.  Plaintiff lost on the merits on the first three lawsuits and had appealed the results in two of them – both of which were affirmed.  In fact, the Ninth Circuit found one of plaintiff’s appeals to be frivolous - with the results of plaintiff's first lawsuit barring her claims in the second lawsuit.

            However, plaintiff pressed on, and after losing her fourth lawsuit against defendant – with the trial court finding it was barred by the doctrine of res judicata – plaintiff appealed in Colebrook v. Cit Bank, N.A., Case No. B305844 (2d Dist., Div. 6 May 17, 2021) (published).  Because the factual and legal issues raised in plaintiff’s fourth lawsuit were known by plaintiff during her third lawsuit, her argument that res judicata did not apply went nowhere.  “Res judicata bars ‘not only the reopening of the original controversy, but also subsequent litigation of all issues which were or could have been raised in the original suit.’” (Torrey Pines Bank v. Superior Court, 216 Cal.App.3d 813, 821 (1989).)

            Because plaintiff continued to pursue litigation of her ownership interest in the foreclosed home, despite the matter having been resolved through three previous lawsuits and two appeals, plaintiff opened herself up to appeal sanctions for filing a frivolous appeal.  Although the panel decided not to impose sanctions, it warned plaintiff in no uncertain terms that “further attempts to litigate the subject matter of this lawsuit will result in sanctions.”

Appeal Sanctions, Private Attorney General: 4/1 DCA Denies Requests For Appeal Sanctions And Private Attorney General Fees To Derivative Action Plaintiffs That Were Successful In Proving Former President/CEO’s Breach Of Fiduciary Duty

Although Unsuccessful, Former President/CEO’s Arguments On Appeal Were Not Objectively Without Merit So As To Rise To The Level Of Frivolity Justifying Sanctions, And Plaintiffs Forfeited Their Claim To § 1021.5 Private Attorney General Fees By Not Making It Before The Trial Court.

            In A&B Market Plus, Inc. v. Arabo, Case No. D073850 (4^th Dist., Div. 1 March 25, 2021) (unpublished), members or former members of a non-profit benefit corporation/trade association for independent retail convenience stores (Association) filed a derivative action against Association, its former President and CEO, and its treasurer and secretary.  Plaintiffs sought removal of former President/CEO and treasurer/secretary from Association’s board of directors, disgorgement of at least $463,322.63 obtained through alleged misdeeds, and other damages for tax evasion and lost business opportunities.  The trial court returned a defense judgment for treasurer/secretary, but concluded, among other things, that former President/CEO had breached his fiduciary duty and had to return to Association a $210,000 bonus paid to him based on former President/CEO’s false representation concerning his involvement in a real estate deal for Association.

            Former President/CEO unsuccessfully appealed the trial court’s ruling concerning the $210,000 bonus.  However, in a cross-appeal, plaintiffs sought sanctions against former President/CEO for pursuing a frivolous appeal and, alternatively, sought to recover attorney’s fees under Code Civ. Proc. § 1021.5. 

            The 4/1 DCA denied both requests.  Former President/CEO’s appeal did not rise to the level of frivolity so as to warrant sanctions under Code Civ. Proc., § 907 or under Cal. Rules of Court, Rule 8.276(a)(1).  Although the panel determined former President/CEO’s arguments on appeal lacked merit, those arguments were not objectively devoid of any merit.  As to the § 1021.5 fees request, plaintiffs forfeited this claim by not making it before the trial court.

            Finally, pursuant to Cal. Rules of Court, Rule 8.276(a)(3), former President/CEO sought monetary sanctions against plaintiffs and their appellate counsel for filing plaintiffs’ sanctions motion.  However, because he made the request in an opposition brief instead of properly serving and filing a separate motion, the request was denied.

Appeal Sanctions, Civil Rights: 2/5 DCA Imposes Sanctions Against County Of Los Angeles For Frivolous Appeal Of Trial Court’s FEHA Fee Denial Based On Finding That Former Employee Plaintiff’s Claims Were Not Frivolous, Vexatious Or Unreasonable

Although The 2/5 DCA Initially Considered Imposing $8,500 Against County, It Ultimately Reduced The Appeal Sanctions To $900 Based On Contrition Shown By County’s Counsel.

            In Sepah v. County of L.A. Dept. of Mental Health, Case No. B297642 (2d Dist., Div. 5 March 25, 2021) (unpublished), former employee sued the County of Los Angeles, after termination of her position as a jail psychiatrist, claiming three FEHA violations for discrimination and retaliation, and other whistleblower retaliation and defamation claims.  The trial court summarily adjudicated the FEHA claims  and defamation claim in County’s favor and the remaining causes of action went in County’s favor at trial.  Afterward, County sought in excess of $500,000 in attorney fees and costs – an amount that included work performed on both FEHA and non-FEHA claims – pursuant to Gov. Code § 12965(b), which authorizes an award of fees to a prevailing FEHA defendant if plaintiff’s claims were frivolous or without foundation.  County appealed when the trial court denied its fee request in its entirety – expressly finding that Plaintiff’s action was not frivolous, vexatious or unreasonable.

            County’s appeal did not sit well with the 2/5 DCA.  County pursued the appeal despite the appellate panel’s decision on Plaintiff’s earlier appeal – wherein the 2/5 DCA reversed the trial court’s summary adjudication on Plaintiff’s defamation claim based upon its determination that Plaintiff had raised a triable issue of material fact, and further proceedings on that claim were warranted on remand.   Three months after the panel’s decision in Plaintiff’s earlier appeal, County filed its opening brief.  By that time, any question as to whether Plaintiff’s lawsuit had been filed without foundation had clearly been resolved.

            After the filing of respondent’s and reply briefs, the 2/5 DCA gave notice that it was considering $8,500 in sanctions against County for pursuing a frivolous appeal.  The panel found the County’s conscious disregard of the outcome from the earlier appeal and its “slapdash” briefing supported a finding that the appeal was frivolous – brought primarily for its vexatious effect.  However, because County’s counsel had shown contrition in response to the 2/5 DCA’s notice re appeal sanctions, the panel imposed only $900 in sanctions on its own motion.  (Cal. Rules of Court, Rule 8.276(a)(1).)

Appeal Sanctions: 2/3 DCA Sanctions Losing Appellant And Its Counsel $56,000 Total

Published Opinion Has A Nice Discussion Of CCP § 907 Frivolous Appeal Standards.

            We commend everyone to read the 2/3 DCA’s published decision in Malek Media Group LLC v. AXGC Corp., Case No. B299743 (2d Dist., Div. 3 Dec. 16, 2020) (published), which contains a nice discussion of the standards for appeals sanctions under Code of Civil Procedure section 907, but also reinforces that litigants and their attorneys need to be civil—avoiding sexist and crazy theories which waste parties’ resources and make the appellate courts waste taxpayer resources.

            What happened here is that an arbitration party challenged an adverse arbitration award and superior court’s denial of a motion to vacate the award.  Appellant’s briefing on appeal was laced with far-fetched conspiracy theories, sexism, homophobia, personal attacks against the arbitrator, and failure to abide by appellate court rules as far as briefing and judicial notice requests.  The appellate court affirmed the merits of the award, but then went on to sanction appellant and its counsel under CCP § 907—both the objective and subjective prongs in a decision which is worthy of reading by both litigators and appellate practitioners.

            The end result was that appellant and its counsel, jointly and severally, were liable for $46,000 in sanctions to respondent and an additional $10,000 to the appeals court clerk for the time spent by the appellate panel in considering the frivolous appeal.  Justice Dhanidina authored this well-penned decision.

            BLOG ADDITIONAL COMMENT—The arbitrator was Ambassador David Huebner (Ret.), who served as an ambassador to New Zealand and Samoa.  Co-contributor Mike remembers Ambassador Huebner well, because they were at Irell & Manella for some overlapping period of time.  Mike wishes him well—he was a stand-up individual.

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]. 

Appeal Sanctions, SLAPP: In Pro Per Defendants’ SLAPP Motion Was Frivolous, Entitling Plaintiff To $9,900 In Attorney’s Fees

Frivolous Appeal Sanctions Denied, But Plaintiff Was Entitled To Appellate Fees For Prevailing On The SLAPP Denial.

            Sometimes, there is more than one way to “skin a cat” as the proverbial saying goes.  That is what happened in Martin v. Smith, Case No. A157129 (1^st Dist., Div. 5 Aug. 26, 2020) (unpublished).

            There, two in pro per defendants filed a SLAPP motion which was deemed frivolous by the lower court, resulting in an award of $9,900 in attorney’s fees to plaintiff.  Defendants, still in pro per, then appealed.  The appellate court agreed that the SLAPP motion was frivolous and the fee award justified.  Plaintiff moved for frivolous appeal sanctions, although she failed to file a motion for sanctions and supporting declaration as required under California Rules of Court, rule 8.276.  However, because she did prevail on appeal, plaintiff was entitled to further SLAPP fees, something remanded to the lower court to determine.  (The only difference is that SLAPP fees cannot be imposed against a party’s attorney, although frivolous sanctions can.)

Appeal Sanctions, Appealability: 4/3 DCA Imposes $25,452 In Sanctions Against Counsel For Nonparty Group Of Church Congregation Members Who Appealed Trial Court’s Ruling On Their Motion For Protective Order

Nonparty Group’s Motion For Protective Order Was Actually A Nonappealable Motion For Reconsideration Of A Discovery Ruling, But 4/3 DCA Treated Appeal As A Writ Petition To Stop The Harm Caused By Delaying Litigation In This Case.

            In Roe 1 v. Doe 2, Case No. G057684 (4^th Dist., Div. 3 June 29, 2020) (unpublished), plaintiffs brought an action alleging they were molested as children during Bible study sessions in an Orange County congregation of the Jehovah’s Witness Church.  Through discovery, plaintiffs sought production of files related to child molestations by church members that had been compiled the highest level of Jehovah’s Witness’s governing body (Watchtower).  To resolve a dispute over the production of the molestation files, the trial court ordered they be produced with specific redactions and under a protective order regarding the use of the files.  In violation of the trial court’s order, Watchtower instead produced documents using a pseudonym procedure that redacted all victims and third party identifying information (including names of congregations, victims, elders, witnesses, and alleged perpetrators) and replaced it with pseudonyms composed of letters and numbers.  Plaintiffs’ counsel notified Watchtower of the noncompliant production, and moved for sanctions.  The day after plaintiffs’ counsel notified Watchtower of non-compliance, a nonparty group of congregation members, who feared information in the documents would harm their families, filed a federal complaint unsuccessfully seeking to enjoin the superior court from enforcing its discovery order.

            Meanwhile, the nonparty group also filed a motion for a protective order requesting that the trial court modify its discovery order “to exempt and recall from production documents mentioning [them] or their family members” or “to exempt all documents with clergy-penitent communications from production and permit complete redaction of all information that could lead to the identification” of the nonparty group.  The trial court denied the motion as untimely, and concluded the motion was actually a motion for reconsideration of the discovery ruling – one that failed to set forth new or different facts, circumstances, or law as required under Code Civ. Proc. section 1008(a).  The trial court then continued plaintiffs’ motion for sanctions – ordered plaintiffs’ counsel to file an updated supplemental declaration setting forth the fees and costs incurred in bringing the motion, and stating it was inclined to grant if Watchtower failed to comply with the discovery order by nine days before the continued hearing.  As this deadline approached, the nonparty group appealed and requested a stay enforcement of the discovery order – with the trial court imposing a partial stay and vacating the hearing on plaintiffs’ motion for sanctions.

            The 4/3 DCA agreed with the trial court’s assessment that nonparty group’s motion was one for reconsideration of a discovery order, and that it was nonappealable.  However, based on the circumstances of the case, the panel treated the appeal as a writ petition on a motion for protective order because it “perceive[d] the need to put an end to this matter so the case can get back on track in the lower court.”  To that end, the 4/3 DCA found no abuse of discretion – concluding the trial court had properly found the motion untimely.  However, the panel was not quit finished and – finding the appeal, taken from a nonappealable order, to be frivolous and supported with meritless arguments – imposed appeal sanctions of $25,452 against nonparty group’s counsel.  In a 3-0 decision authored by Justice O’Leary, the 4/3 DCA opined on the possible motivation behind this appeal.  “It is difficult to imagine how an attorney could be unaware of the large body of legal authority, including Supreme Court decisions, holding discovery orders are not appealable.  It appears counsel may have been aware the appeal could be dismissed, but by filing the appeal, he achieved a one year stay of the May 2018 discovery order, and postponed a sanctions hearing.”  

Appeal Sanctions: $15,000 Sanctions To Appellate Clerk Is The Verdict For A Frivolous Appeal

Frivolous Appeal, In Tandem With Citations Outside Of Appellate Record, Sealed The Deal.

            In Brown v. Butler, Case No. D075348 (4^th Dist., Div. 1 May 19, 2020) (unpublished), the appellate court, on its own motion, requested briefing on why the appealing party and his attorney should not pay sanctions for a frivolous appeal, based on the merits and citing matters outside of the appellate record.  Well, we like to stay on top of these things and can report that $15,000 was the sanctions for a frivolous appeal, payable to the clerk of the appellate court.

Appeal Sanctions, SLAPP: $21,870.09 In Appellate SLAPP Fees Affirmed Where Prevailing Defendant Obtained Dismissal Of A SLAPP Merits Appeal For Being Untimely

Appellate Court Also Sanctioned Appellant’s Attorney For Relying On Unpublished DCA Opinions.

            Westreich v. Higa, Case No. B293726 (2d Dist., Div. 5 May 5, 2020) (unpublished) has two big warnings for attorneys arguing before California appellate courts:  make sure you have a reporter’s transcript in the appellate record when you are challenging the amount of an attorney’s fees award and do not cite unpublished DCA opinions unless you fall within narrow examples such as law of the case.

            This was a neighbor property boundary line dispute, with defendants defensing a prior lawsuit and with plaintiffs then filing a second lawsuit complaining that defendants took photos to defend the suit so as to infringe upon plaintiffs’ privacy rights.  That second suit got SLAPPed, with defendants awarded mandatory SLAPP fees at the trial level.  Plaintiffs appealed both rulings (which were consolidated at the appellate level), with the defense successfully arguing that the appeal from the SLAPP merits ruling was untimely after full appellate briefing and oral argument. That took the defense back to the trial court to request $21,870.09 in appellate fees for winning the SLAPP merits appeal on untimeliness grounds.  Plaintiffs’ main argument was that the requested fees were unreasonable because the untimeliness issue could have been resolved through an appellate dismissal motion before the merits were briefed and argued, citing an unpublished First District opinion in support of their argument.  The defense countered that the appeal consolidation decision made it more difficult such that all the arguments had to be addressed at the merits briefing stage.  The trial court held a hearing on the SLAPP appellate fee request, with no reporter’s transcript made of the hearing, and awarded the full requested fees to the defense.

            Plaintiffs appealed, and I bet a lot of you can guess what may have happened on appeal.

            The 2/5 DCA affirmed, but also imposed some mild appellate sanctions on plaintiffs’ appellate counsel.

            The fee order was sustained because (1) there was no reporter’s transcript to show what the trial judge did in response to plaintiffs’ arguments, all the more so given the existence of a succinct fee order (Rhule v. WaveFront Technology, Inc., 8 Cal.App.5^th 1223, 1229 n. 5 (2017)), and (2) no apportionment was necessary because defendants prevailed every step of the way.  With respect to the argument that a pre-merits appeal dismissal motion might have done the trick, the appellate court agreed that the consolidation of the two appeals made things a little tricky, cemented by nothing to suggest defendants had made a tactical election to pad their legal bills for the prior appellate work.  The appellate court then rejected plaintiffs’ argument that CRC 8.1115 (which prohibits citation to a DCA opinion not certified for publication) was unconstitutional, citing cases which had rejected this very argument.  The 2/5 DCA panel also sanctioned appellants’ attorney $1,100 for violating the CRC nonpublication citation rule given the defense warnings in their briefing and the published decisions rejecting the unconstitutionality argument.  Beyond that, defendants will get a chance to claim appellate costs and attorney’s fees for winning this second appeal!

Appeal Sanctions, Discovery: Discovery And Family Code Section 271 Sanctions Of $3,250 Against Father Affirmed On Appeal

Also, Father Ordered To Pay Mother $2,980 For Prosecuting A Frivolous Appeal.

            Father, in Rybolt v. Riley, Case No. C086056 (3d Dist. Mar. 24, 2020 (unpublished), appealed from a non-appealable vocational evaluation order and discovery/Family Code section 271 totaling $3,250 for bringing motions to compel which were denied/did not further legitimate purposes of the overall litigation.  Father’s appeal did not go well.  Although it is true sanctions were awarded under both section 271 and the discovery statutes, discovery sanctions do not require an ability to pay as a necessary predicate such that they were no abuse of discretion.  The vocational evaluation order was non-appealable and father’s other arguments were frivolous, prompting the appellate court to award mother $2,980 in attorney’s fees and costs expended in responding to father’s appeal. 

Appeal Sanctions, Employment, Judgment Enforcement, Undertaking: Employer Fails In Multiple Attempts To Reduce Fee Award, CEO Is Properly Denied Fees Following Successful Alter Ego Challenge, And Attorney Sanctioned $7,765 For Meritless Challenge

The Fees Award Against Employer Had Been Affirmed By The Sixth District Three Years Prior, The CEO Could Not Prove Employee’s Alter Ego Claims Were Frivolous, But Employer’s Motion To Release Surety Bond So Frivolous It Warranted 6^th District’s Issuance Of Sanctions On Its Own Motion.

            We originally posted on Khanna v. Sonasoft Corp. on July 13, 2016.  Now, more than three years later, we post again on the same case.

            Our previous post pertained to the attorneys’ fees issue resolved on appeal – whether silence in the settlement agreement as to fees precluded postjudgment entitlement.  It did not where, as here, postjudgment fee recovery was allowable under a fee-shifting statute.  We now revisit that 2016 appeal as it impacts the current appeal in Khanna v. Sonafoft Corp., Case No. H044374 (6^th Dist., Sept. 27, 2019) (unpublished)

            An employee had sued his employer and its CEO for failure to promptly and fully pay his wages.  His complaint included alter ego allegations with respect to the employer and CEO.  Judgment was entered against employer pursuant to the parties’ judicially supervised confidential agreement providing a money judgment of $173,000 (adjusted from $227,000 after credit of some payments)., and later amended to include trial court awarded costs of $12,554.65, attorney fees of $153,840, and postjudgment interest of $26,794.54.  A second amended judgment was also entered to add CEO as additional judgment debtor based on the alter ego theory.

            In the 2016 appeal, employer challenged the postjudgment awards of attorney fees, costs and interest to no avail.  However, CEO successfully challenged the amendment adding him as judgment debtor. 

            Upon return to the trial court, CEO unsuccessfully moved for an award of attorney fees incurred on appeal, employer failed in its motion to have the judgment amended to reduce the fees/costs/interest awards by one-half because “equal efforts were directed to each defendant,” and employee’s motion to add surety bond issuer as judgment debtor was granted with the trial court’s finding that the requirements had been satisfied for adding the surety bond under Code Civ. Proc. section 996.440. 

            The 6^th District affirmed.

            CEO was not entitled to his fees as he failed to demonstrate that employee had brought the action against him in bad faith as required by Labor Code section 218.5(a). 

            Employer’s motion to reduce the fees/costs/interest effectively sought to relitigate issues that could no longer be raised.  It ignored the effect of the 6^th District’s affirmance of the awards in the 2016 appeal, and provided no authority empowering the trial court to amend the judgment after the 6^th District affirmed it without qualification.  

            Finally, employer’s motion to release the surety bond was filed with no supporting evidence as required by Rules of Court for motions based on matters outside the record on appeal.  Employer also failed to inform the 6^th District that it had unsuccessfully brought a similar motion in the trial court – to which it had also filed an unsuccessful motion for reconsideration.  Additionally – while acknowledging it still owed employee the awarded postjudgment interest – employer argued that it was “entitled to an automatic stay of proceedings without an undertaking” because Code Civ. Proc. section 917.1(d) provides that an undertaking is not required solely for awarded costs.  The 6^th District concluded the motion to be frivolous and completely without merit – imposing sanctions against employer’s appellate attorney on its own motion.

Appeal Sanctions, Arbitration: Broad Operating Agreement Fees Clause Justified $238,000 Fees/Costs Award To Arbitration Prevailing Party, Plus Fees For Winning On Appeal

Appealing Party Just Avoided Sanctions For Frivolous Appeal, But Fees On Appeal Found To Be The Appropriate Remedy.

            Walters v. Boustead Securities, LLC, Case No. G056250 (4^th Dist., Div. 3 July 11, 2019) (unpublished) is an interesting Fourth District, Division 3 opinion affirming a $238,000 fees/costs arbitration award in favor of a prevailing party where the compensatory award was $186,354.  The operative fees clause in an operating agreement between the parties was broad, fully supporting fees, costs, and expenses to the prevailing party in any litigation or arbitration.  The merits of the arbitration award, including the fees/costs components, were beyond review.

            That brought to the appellate court to a request for sanctions by the non-appealing party.  Admitting that silly arguments were advanced on appeal and that the matter was “a close call,” the 4/3 DCA panel, in a 3-0 opinion authored by Justice Moore, believed that the respondent was entitled to attorney’s fees on appeal (in remand proceedings before the lower court), because the other side made no argument why the operating agreement fees clause did not allow for this result.  So, in the end, a less restrictive alternative was adopted, even though we could say that sanctions were narrowly averted.

            HAT TIP—We give a hat tip to Richard A. Jones, who is a local attorney known by co-contributor Mike.  He is a locally-based Santa Ana attorney who successfully represented respondent on appeal.  Congrats!

Appeal Sanctions: 2/4 DCA Imposes $21,366 Against Counsel Payable To Other Side And $8,500 Payable To Appellate Clerk For Frivolous Appeal

Appealing Nonappealable And Abuse Of Discretion Orders Led To The Result.

            In Turner v. The Rule Co., Case Nos. B248667 et al. (2d Dist., Div. 4 July 10, 2019) (unpublished), an appeal was taken from several nonappealable orders and discovery sanctions/routine costs orders where abuse of discretion was the governing review standard.  The appellate panel concluded that the appeal was frivolous, imposing $21,366 against appellate counsel payable to the other side as well as $8,500 payable to the appeals clerk.

Appeal Sanctions, Arbitration: $55,764.40 Fee Award By An Arbitrator In Defective Car Case Could Not Be Reviewed On The Merits

Appeal Sanctions Was Not Imposed For Frivolous Appeal Because Respondent’s Request Was Patently Excessive.

            Justice Goethals, in Housen v. Ultimate Autoline, Case No. G055878 (4^th Dist., Div. 3 June 10, 2019) (unpublished), reminds litigants and practitioners that the merits of arbitrator’s decisions are by and large not reviewable and that the arbitrator has limited powers to revise/correct awards (the latter being known as the “anti-revision rule”).  He, on behalf of his panel, did so based on his perception that these principles “may be surprising even to experienced practitioners.”

            In this one, the arbitrator basically granted total relief to a car owner in a fraud/Song Beverly Act hybrid action as against the dealer, dealer’s principal, and loan paper holder standing in the shoe of the dealer.   (The arbitrator even awarded one component that was wrong, but it was not corrected so the merits could not be reviewed.)  To add insult to injury to the defense’s perspective, the arbitrator also awarded $55,764 in fees to plaintiff (the full request).  The appellate court confirmed that the merits of the compensatory and fee awards could not be second-guessed.

            What is very interesting about this opinion is the discussion on appellate sanctions.  Respondent moved for sanctions, seeking $47,795 for fees expended on the frivolous appeal.  The 4/3 DCA panel did believe that the appeal was frivolous, but it was taken aback when respondent’s counsel at oral argument indicated he was requesting just over $12,000 in sanctions.  Given that the initial request was patently excessive, the appellate court refused to award sanctions of any amount to respondents.  (BLOG COMMENT—Key takeaway here is to make sure your sanctions requests are reasonable and documented with precision; don’t make an inflated request and think a “scale back” at oral argument will necessarily save the day.  It might, but do not count on it.) 

Appeal Sanctions, Fee Clause Interpretation, Section 1717: Absence Of Appropriate Fees Clause Doomed Prevailing Defendants’ Request For $621,328.34 In Attorney’s Fees

However, Plaintiffs/Appellants And Their Appellate Counsel Sanctioned $44,654.64 For Frivolous Appeal.

            In J.B.B. Investment Partners Ltd. v. Fair, Case Nos. A152877/A153698 (1^st Dist., Div. 2 June 4, 2019) (unpublished), plaintiffs prevailed on a breach of contract count through a summary adjudication motion based on defendants’ breach of a settlement agreement and a lot of litigation activity to not pay under the settlement.  Plaintiffs earlier had SLAPPed defendants’ cross-complaint, and were awarded $12, 609 for that successful effort.  Defendants moved for fees of $621,328.34 under Civil Code section 1717, but the lower court denied the request, awarding $4,918 for additional fees relating to the SLAPP proceedings.  Plaintiffs appealed the merits determination, while defendants appealed the fee “denial.”

            Both appeals failed to garner any changes, except for a significant one:  plaintiffs and their counsel were sanctioned $44,654.64 for bringing a frivolous appeal—with the amount going to compensate defendants for responding to the appeal.  (We have seen a recent trend by appellate courts to sanction increasingly for frivolous appeals.)

            With respect to the fee denial, section 1717 does not create an independent right to fees, since one must look for fee entitlement through an actual contractual fees clause or an enabling statute.  Here, the settlement agreement had no fees clause, and the LLC operating agreement’s fees clause only applied to arbitration efforts rather than the litigation activities which were at issue in this one.  Fee denial affirmed. 

Appeals Sanctions, SLAPP: After Affirming SLAPP Denial, Appellate Court Granted Frivolous Appeal Sanctions To Prevailing SLAPP Litigant As Well As Costs To Clerk For Working On The Appeal

Sanctions Award Mooted Any Need For Trial Court To Consider Appellate Fees For The Frivolous SLAPP Motion.

            Workman v. Colichman, Case No. B285945 (2d Dist., Div. 4 April 2, 2019) (published) (posted April 3, 2019) is an interesting study in how an appellate court will attempt to avoid remand proceedings where a result is clear.

            What happened is that the defense won a SLAPP motion, which was appealed but with the trial court denying the defense request for SLAPP attorney’s fees because the motion was frivolous in nature. The 2/4 DCA affirmed the SLAPP denial, but decided that the SLAPP motion was frivolous as was appellant’s appeal. Although trial court fees for the frivolous motion were still in play, the Court of Appeals decided that instead of remanding to the trial court to award appellate fees for the SLAPP win, it would assess sanctions against appellant and its attorney to the tune of $35,985 for respondent’s work and to the tune of $8,500 for the appellate costs to work up the appeal. Respondent also was entitled to routine costs on appeal.  

Appeal Sanctions: $22,915 Awarded To Respondent And $8,500 To Court Clerk For Appellant’s Frivolous Appeal

Among Other Things, Lambasting The Trial Judge Was Not Proper.

            In Estate of Kim & Weston, Case No. B281109 (2d Dist., Div. 8 Dec. 18, 2018) (unpublished), appellant relied on a voluminous appendix and 66-page opening brief with very few citations. Appellant also lambasted the trial judge in the AOB. That resulted in the appellate court finding the appeal frivolous, given an in pro per attorney was involved, awarding $22,515 paid to respondent and $8,500 to the appellate clerk for the costs of the reviewing court working up the appeal.

Appeal Sanctions, Requests For Admission: Litigant’s Failure To Show Why Costs-Of-Proof Sanctions Were Erroneous Drew Appeal Sanctions Of $32,960.70

We See A Growing Trend Of Appellate Sanctions In Recent Cases.

            Appellant in Knudson v. Ryer, Case No. A149532 (1st Dist., Div. 5 Dec. 17, 2018) (unpublished) failed to show why RFA costs-of-proof sanctions under CCP § 2033.420 should be reversed based on deficient analysis in the appellate briefing. That led the DCA to find the appeal frivolous, assessing $32,960.70 jointly and severally against plaintiff and plaintiff’s counsel and in favor of the respondent—a growing trend if you look at our posts in the last couple of months!

Appeal Sanctions: Third District Sanctions Appellant’s Attorney $10,000 Out Of Requested $22,550 In Fees And $6,000 To Appellate Clerk For Frivolous Appeal

Attorney Has Professional Obligation Not To Pursue A Frivolous Appeal.

            The Third District, in Marriage of Daniliuc, Case No. C084293 (3d Dist. July 3, 2018) (unpublished), decided husband’s appeal of a fees award to his ex-wife was frivolous in nature. It decided that appellant’s husband should pay wife $10,000 out of a requested $22,550 in fees and an additional $6,000 to the appellate clerk for the state’s costs of processing the frivolous appeal.

Appeal Sanctions: $31,947.50 In Sanctions Is Imposed For Frivolous Appeal In Recent Second District Opinion

Costs Have Gone Up Over The Years.

            The costs for filing a frivolous appeal are going up. In Schmittle v. Baldwin Park Unified School District, Case No. B282431 (2d Dist., Div. 8 June 26, 2018) (unpublished), the appellate court imposed a $31,947.50 sanctions award, payable to the respondent side, upon appellant for a frivolous appeal. Co-contributor Mike can remember getting a frivolous appeal sanctions in the early 1990s for $10,000, and he thought that was significant then—but hourly rates and office costs have certainly gone up since then.

Appeal Sanctions/Family Law: $25,000 Family Code Section 271 Sanction Affirmed On Appeal

Appeal By Ex-Wife Found Frivolous, Which Carried $10,000 More In Sanctions.

            Marriage of Wintermute and Soltan, Case No. G052397 (4^th Dist., Div. 3 Apr. 9, 2018) (unpublished) was a situation where ex-wife appealed a Family Code section 271 sanction of $25,000 after an earlier appellate opinion disagreed with a critical assertion of ex-wife that a settlement was not global in nature, a ruling which became law of the case.  The section 271 sanction was for ex-wife’s failure to do a tardy dismissal as was promised to be done.  (The lower court actually disallowed $4,000 of the original sanctions request because the other side failed to file acceptable declarations during a few prior go-arounds.)  The appellate court affirmed the sanctions award based on the abuse of discretion standard, finding that ex-wife “was lucky to get away with the modesty penalty of $25,000.”  The other side moved to recoup fees for a frivolous appeal, with the 4/3 DCA panel—in an opinion authored by Acting Presiding Justice Bedsworth—ordering ex-wife and her counsel to pay $5,000 to the other side and to pay $5,000 to the clerk of the court for some of the expenses for internal court time in working up the appeal. 

Appeal Sanctions/Deadlines: Ninth Circuit Decides That Appeal Sanctions For Frivolous Appeal Under FRAP 38 Must Be Filed Under Time Limits For Filing Request For Appellate Attorney’s Fees Under Ninth Circuit Rule 39-1.6(a)

With Respect To Double Costs For Frivolous Appeal, No Entitlement Unless Timely Costs Bill Filed.

            In In re Westwood Plaza North (Erde v. Bodnar, et al.), No. 17-55655 (9^th Cir. Apr. 9, 2018) (per curiam; published), the Ninth Circuit adopted a “bright line” rule for filing an appeal sanctions request for attorney’s fees under Federal Rule of Appellate Procedure 38, where a frivolous appeal is involved.  It decided that the time limit within which to file such a motion mirrored the deadlines for filing a request for attorney’s fees under Ninth Circuit Rule 39-1.6(a) after winning on appeal, running from possible rehearing triggers but generally 28 days after issuance of the appellate decision.  (Read this decision for the particular deadline triggers.)  That means the frivolous fees request goes to the Ninth Circuit Appellate Commissioner for decision-making, just like normal appellate fee requests after a win.

            However, the appellees also sought “double costs” (routine in nature) for the frivolous appeal.  The problem with this request is that appellees did not file a timely costs bill on appeal such that this request was denied.  (FRAP 39(d); 9^th Cir. R. 39-1.1.) 

Appeal Sanctions/Employment/Indemnity: Intermediate Appellate Courts Confront Hodgepodge Of Issues

 

Employment—Nicolosi v. Cooper, Case No. B264459 (2d Dist., Div. 6 May 17 2017) (Unpublished)--$64,000 In Fees Just Fine In $80,933.75 Back Wages Case.

 

            This one is not hard to fathom.  Employee obtained $80,933.75 in back wages and $64,000 in attorney’s fees (out of a requested $130,000).  Employee appealed, arguing not enough was awarded as far as fees.  Naught.  The trial judge properly apportioned out time spent on trust/mortgage claims—no abuse of discretion here in not awarding more.

Indemnity—Montebello Unified School Dist. v. Fitness Profile, Inc., Case No. B267436 (2d Dist., Div. 1 May 17, 2017) (Unpublished)—Big Fee Grant Reversal Where Fees Clause Was A True Indemnity Clause And Nothing More.

 

            The second one was no problem for the appellate court, even though the trial judge granted $672,317.96 in attorney’s fees based on contractual fees clauses in operative contracts.  The reviewing court reversed the fee award after determining the fees clauses were true third-party indemnification provisions rather than true fee clauses, relying on the Building Maintenance-Myers line of cases in overturning fees on appeal.

Appeal Sanctions—Kinney v. Clark, Case No. B265267 (2d Dist., Div. 1 May 17, 2017) (Published)--$10,000 For Frivolous Appeal Levied Against Loser.

 

            The last one involved multi-year litigation by a losing party seeking to avoid payment of a modest, earlier attorney’s fees award, even though fees kept mounting once loser kept going on, and on, and on.  Loser unsuccessfully argued that the fee awards were void, such that loser was declared a vexatious litigant.  The appellate court could find no authority indicating that an appeal from a fee order prevented the lower court from entering further fees for “in the pipeline” activities giving rise to fees despite the fact that the appeal had not yet been decided.  The Court of Appeal ultimately decided that loser needed to pay $10,000 for a frivolous appeal in this matter.

Appeal Sanctions: 2/6 DCA Likes $7,500 As Sanctions Awardable To Opposing Party In Frivolous Appeal

 

 

Request By Opposing Party Was $44,744.

 

     For you readers who are charting things like this, the Second District, Division 6 was confronted with a party’s request for $44,744 in sanctions for opposing a frivolous appeal. Although the appellate court agreed the appeal was frivolous, it believed $7,500 was a sufficient sanction to discourage like conduct in the future—a deterrence rationale. (Marriage of McSorley, Case No. B265174 (2d Dist., Div. 6 Aug. 4, 2016) [unpublished].)

Appeal Sanctions: Third District Awards $7,500 Against Appellant For Frivolous Appeal

 

Range Is $6,000 For Non-Complex Appeal To $8,000 For General Processing Costs Of Appeal Leading To An Opinion.

    Above:  “Print shows a lawyer taking papers that state ‘Fake Lawsuit for Damages’ from a bag labeled ‘A Shyster’ in a courtroom; as he turns toward the bench, he sees the judge point to a paper hanging from the bench that states ‘Notice to insure against the bringing of frivolous or blackmailing suits, lawyers will hereafter be held responsible for the costs of all the suits brought by them.’”  Louis Dalrymple, artist.  1899.  Library of Congress.

     The Third District, in Sahansra v. Myers, Case No. C070001 (3d Dist. June 29, 2016) (unpublished), determined an appeal to be frivolous and ordered $7,500 to be paid by appellant to the clerk of the appellate court.  In doing so, it did indicate a range for amount of sanctions for frivolous appeals:  $6,000 for a non-complex case up to $8,500 for processing an appeal that results in an opinion on a normative basis.  (Singh v. Lipworth, 227 Cal.App.4th 813, 830 (2014).)