QUESTION: What recent appellate decision opened with these words: "Time and again, public confidence in our legal system is tested when the general public wonders, and mutters, about why courts entertain ridiculous lawsuits."

ANSWER: Johnson v. Lewis (2004) 120 Cal.App.4th 443, authored by Presiding Justice Arthur Scotland of the Third District Court of Appeal, discussing frivolous appeals.

What is a "frivolous" appeal? In re Marriage of Flaherty (1982) 31 Cal.3d 637 answers that, setting out a two-part test: "An appeal should be held to be frivolous only when it is [1] prosecuted for an improper motive - to harass the respondent or delay the effect of an adverse judgment - or [2] when it indisputably has no merit - when any reasonable attorney would agree that the appeal is totally and completely without merit." (Id. at 650.) This two-part standard remains the law in California. In Economou v. Economou (1990) 223 Cal.App.3d 97 it was noted that the two Flaherty standards are "often used together, with one providing evidence of the other." Id. at 105

Appellate attorneys must therefore consider the subjective motives of their clients in appealing, i.e., whether it is for delay, or "to club a legitimate creditor into submission . . .." National Secretarial Service, Inc. v. Froelich (1989) 210 Cal.App.3d at 526, fn. 13. They must also consider whether any reasonable attorney would agree that the claim has no merit. Given these boundaries, it is useful to consider some recent decisions.

In Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, Home Depot appealed from an order denying a motion to set aside a default judgment. The Court of Appeal agreed with the trial court that the motion was untimely and Home Depot had no excuse for failing to act more quickly. The Court of Appeal concluded: "The utter lack of merit renders the appeal frivolous and, combined with the unnecessary attacks directed at plaintiff and his lawyers, calls for an award of sanctions in favor of the plaintiff." Id. at 1303.

In Kolender v. San Diego County Civil Service Commission (2005) 132 Cal.App.4th 716, the appeal was not frivolous. There, a sheriff sought a writ of mandate to vacate a civil service commission's order reducing the penalty for a deputy sheriff who had lied to cover up physical abuse of an inmate. On appeal, sanctions were requested against the sheriff for "filing a frivolous appeal because no case law supports [his] 'convoluted argument . . .." Id. at 723. After referring to the Flaherty standard, the Kolender court found that the subjective standard was not satisfied "because there is no evidence of bad faith: plaintiff 'had nothing to gain from delay.'" Id. The court found that "the appeal is not objectively frivolous either . . .." Id.

Another appeal was found to be frivolous in Evans v. Centerstone Development Co. (2005) ___ Cal.App.4th ___, WL 3105358. In that case, former company officers moved to vacate an arbitration award, and, after the award was confirmed, appealed. The appellants had violated numerous appellate briefing rules. The Court of Appeal noted that "sanctions are warranted for a party's unreasonable violations of the rules of appellate procedure [citing Cal. Rules of Court, Rule 27(e)(1)(C)]," [and that] plaintiffs' briefs are cornucopias of such violations . . . " Id. at p. 10. The court concluded: "Because of the many violations of the Rules of Court and the patently frivolous nature of the appeal, and to discourage similar conduct in the future, sanctions must be substantial." Id. at p. 12.

Most recently, in Olsen v. Harbison (2005) ___ Cal.App.4th ___ WL 3113208, another appeal was found to be frivolous. In Olsen, an attorney brought an action against co-counsel arising from a contingency fee contract dispute. The defendant filed a special motion to strike the complaint under the anti-SLAPP statute. The trial court denied the anti-SLAPP motion, filed more than 60 days after service of the complaint, declining to exercise its discretion to hear the motion after that time. The defendant appealed. The Court of Appeal stated: "The objective standard, when any reasonable attorney would agree that the appeal is totally and completely without merit, is a judgment call. In our judgment . . . that standard has been met and the appeal should be dismissed. [Appellant] has made no colorable showing that the trial court's exercise of discretion in denying his untimely anti-SLAPP motion was whimsical, arbitrary or capricious." Id. at p. 6. The court was, however, "unwilling on this record to find that this appeal was prosecuted for an improper motive, to harass the respondent or delay." Id. at p. 7. Finding the appeal to be frivolous under the objective standard was sufficient to order appellant to pay sanctions.

In conclusion, appellate attorneys must be familiar with the Flaherty two-part test, and ask themselves whether appellate proceedings cross those lines. Both the subjective purpose for an appeal and its objective merits must be considered, as well as the interplay between the two, since lack of merit can suggest an improper purpose. Courts of Appeal continue to impose sanctions under this standard, and continue to call upon legal counsel to refrain from bringing frivolous matters before them.

January / February 2006