First District, Division 5 Provides Updated Information on Compensating Aggrieved Litigants As Well As Appellate Courts for Frivolous Appeals.
The companion cases of Peirona v. TMT Associates, LLC, Case No. A126790 (1st Dist., Div. 5 Dec. 17, 2010) (unpublished) and Peirona v. Nguyen, Case No. A126551 (1st Dist., Div. 5 Dec. 17, 2010) (unpublished) are two interesting appellate cases in which sanctions were doled out for frivolous appeals. They are interesting for the appellate mindset that goes into imposing sanctions, as well as the costs to taxpayers for processing appeals at the intermediate appellate stage.
For those of you who want to visit this area, the leading case on the standard for frivolous appeals is In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982), which established that the judicial compass centers on deciding whether the appeal was prosecuted for an improper motive or whether it indisputably had no merit.
In determining the amount of sanctions, the appellate court considers such factors as the amount of respondent’s attorney’s fees on appeal, the amount of the judgment against appellant, the degree of objective frivolousness and delay, and the need for discouragement of like conduct in the future. (Pierotti v. Torian, 81 Cal.App.4th 17, 33-34 (2000).) Repeated violations of appellate rules will only fuel the fire. (Id. at 33.)
In TMT Associates, respondents asked for a doubling of fees–fees incurred on appeal as well as fees they were entitled to receive as the prevailing party on the anti-SLAPP motion. The appellate court thought this “doubling” request was excessive, but did impose a $15,000 sanction jointly and severally against both plaintiffs/appellants and their counsel. The Court of Appeal also imposed sanctions directly payable to the clerk of this court for the costs of processing the appeal, citing to a 2008 costs analysis by the Second District estimating that the cost of processing an appeal that results in an opinion by the court to be approximately $8,500. (Huschke v. Slater, 168 Cal.App.4th 1153, 1163-11164 (2008).) However, the sanction payable to the clerk was set at $8,000.
In Nguyen, the appellate court awarded respondents sanctions in an amount equal to the attorney’s fees they incurred on appeal, again imposed jointly and severally against plaintiffs and their counsel. With respect to the sanctions payable to the clerk of the court, $12,000 was gauged as reasonable, because the appellate record was voluminous and entailed more appellate work (and corresponding burden to taxpayers)–22 volumes of clerk’s transcripts and 4 years of hearing transcripts.