Frivolous appeals

We've all run across an appeal that seems frivolous. But while some appeals may be losers, not all loser appeals are frivolous. Frivolity - at least the kind that can result in Court of Appeal sanctions - is reserved for the most egregious kind of appeals. But does recognizing a truly frivolous appeal turn on objective criteria? Or is the test more akin to U.S. Supreme Court Justice Potter Stewart's famous threshold test for obscenity, "I know it when I see it?" Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring). The answer is actually somewhere in between.

The California Supreme Court defines a frivolous appeal as resting on either the subjective bad intent of the appellant or objective lack of merit. In re Marriage of Flaherty, 31 Cal. 3d 637, 650 (1982). There, the Court of Appeal had sanctioned appellant's attorney $500 for what it termed a patently unmeritorious appeal from a marital dissolution order. Along the way, the Court of Appeal described the appeal as "utterly hopeless" and the kind of appeal creating a "morass of useless, purposeless make-work" threatening to inundate the appellate courts. The Court of Appeal reasoned that appellate counsel must avoid such appeals and that sanctions would reinforce the duty.

On review, the Supreme Court began by noting that Code of Civil Procedure Section 907 does not define a "frivolous" appeal. (Section 907 permits an appellate court to "add to the costs on appeal such damages as may be just" if it "appears ... the appeal was frivolous or taken solely for delay ... ." Rule 8.276 of the California Rules of Court also addresses sanctions but similarly lacks a definition of the term "frivolous.") The Marriage of Flaherty court also canvassed prior sanctions cases, noting a wide disparity in terminology as to frivolity. According to the court, no less an authority than Bernard Witkin was unable to come up with a standard description of a frivolous appeal. As the court put it, such lack of definition could chill what otherwise might be important advocacy.

Thus, in Marriage of Flaherty the court sought to strike a balance, noting that "a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.'" (Citation omitted.) Ultimately, the court held that a frivolous appeal could be found if: (1) an appeal is prosecuted for an improper motive (to harass or delay); or (2) any reasonable attorney would agree that the appeal is totally and completely without merit. The court also noted that "the two standards are often used together, with one providing evidence of the other." Nonetheless, the court pointedly observed that the power to sanction attorneys for prosecuting frivolous appeals "should be used most sparingly to deter only the most egregious conduct."

More recent decisions tend to indicate that sanctions are indeed saved for the most egregious conduct. A notorious example is Kim v. Westmoore Partners, Inc., 201 Cal. App. 4th 267 (2011), which begins with, "Those who practice before this Court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel." There, after obtaining multiple extensions, counsel filed a brief that was nothing more than the brief from a prior, unrelated appeal with little more than a different cover on it. When the Court of Appeal issued a letter giving counsel notice that sanctions were being considered for a frivolous appeal, counsel wrote back that the court must have issued the notice in error. And when the sanctions hearing came, counsel sent another attorney who was unaware of the sanctions issues. Counsel did not avoid the sanctions.

And in 1130 Hope St. Assoc. v. Haiem, 2015 Cal.App. Unpub. LEXIS 2996, *27-29 (2015), the Court of Appeal observed that counsel's conduct, including refusing to limit the scope of the appeal to issues not already resolved by prior appeals, resistance to the preparation of an adequate record, threats to communicate to opposing counsel's clients allegations of prior malpractice (there were none), and telling counsel, "You really ought to see a psychiatrist immediately," abundantly demonstrated Marriage of Flaherty's improper motive, "intent to harass." In what comes across almost as afterthought given the litany of harassing behavior, the appellate court also noted that the appeal "indisputably ha[d] no merit." Sanctions and State Bar referrals followed.

So what about those "loser" appeals? It's complete lack of objective merit that makes an appeal frivolous. Given the reality that most courts treat the Marriage of Flaherty standard as conjunctive (requiring both illicit purpose and complete lack of merit), then so long as the appeal has some minimal merit, respondents may have to suffer some deliberately inflicted harassment and delay, with no real chance of obtaining sanctions for frivolity (appellant's inevitable loss aside). In contrast, where the conduct of appellate counsel is so outrageous that it eviscerates ethical rules, such minimal merit may not be enough to avoid sanctions. And as several of the more recent sanctions cases reveal, some attorneys insist on behaving very badly. So when it comes to frivolous appeals, you probably will know it when you see it.