Recent Activity in Frivolous Appeals
| Publication year | 2014 |
| Citation | Vol. 27 No. 3 |
| Author | By Will Tomlinson |
By Will Tomlinson
When it appears to the reviewing court that [an] appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (Code Civ. Proc., § 907; see also Cal. Rules of Court, rule 8.276(a)(1) [authorizing court, "[o]n motion of a party or its own motion," to sanction party or attorney for "[t]aking a frivolous appeal or appealing solely to cause delay"].) California courts have been authorized to impose frivolous appeal sanctions in civil matters since 1851. (See Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160.)
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An appeal is frivolous if either: (1) "it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment"; or (2) "it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." (Personal Court Reporters, Inc. v. Rand (2012) 205 Cal. App. 4th 182, 191 (citations and internal quotation marks omitted).) "The first standard is tested subjectively. The focus is on the good faith of appellant and counsel. The second is tested objectively. While each...standard[] provides independent authority for a sanctions award, in practice the two standards usually are used together with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." (Ibid.)
However, "[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Thus, "[a]n appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals." (Ibid. (internal emphasis omitted).) Because "the borderline between a frivolous appeal and one which simply has no merit is vague," sanctions should be imposed "most sparingly to deter only the most egregious conduct." (Id. at pp. 650-651 (citations and internal quotation marks and ellipses omitted).)
Because a frivolous appeal harms the judicial system as well as the opposing party, courts may order an appellant "to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals.... [A] cost analysis by the clerk's office for the Second Appellate District... estimated the cost of processing an appeal that results in an opinion by the court to be approximately $8,500." (Foust v. San Jose Const. Co., Inc. (2011) 198 Cal.App.4th 181, 189-190 (citations and internal quotation marks omitted).)
In 2013, California Courts of Appeal considered frivolous appeal sanctions in 64 cases and awarded sanctions nine times. Those numbers are down from 2012, when the courts considered sanctions in 70 cases and awarded them in 14. In the first six months of 2014, courts considered frivolous appeal sanctions in 34 cases and awarded sanctions four times. To put these figures in perspective, according to the Judicial Council's 2013 Court Statistics Report for fiscal year July 1, 2011, to June 30, 2012 (the most recent available), Courts of Appeal disposed of 3,236 civil matters by written opinion during that period.
The numbers show that requests for frivolous appeal sanctions are rare, and sanction awards far rarer...
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