First District is Not Amused and Concludes Appeal Represented the “Acme of Frivolity.”
You know you are in trouble when the first sentence of an appellate opinion reads like this: “The time has come to put an end to appellant Astarte Davis-Rice’s seemingly unquenchable thirst for litigation—and her egregious waste of judicial resources.”
California has a vexatious litigant statute, which is used sparingly, but does try to curb what jurists find to be abuses in the use of the litigation process. Beyond that, the reviewing court has the power to sanction litigants for taking a frivolous appeal or appealing solely to cause delay. (Cal. Rules Ct., rule 8.276(a)(1); In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982) [one of our Leading Cases].) In line with the first sentence of this post, a vexatious litigant finding was affirmed on appeal, with the First District, Division 2 imposing sanctions for a frivolous appeal of $8,887.50 upon appellant and threatening further sanctions “of a far greater amount” should appellant reappear before the Court of Appeal in the future for purposes of relitigating certain decided issues.
Davis-Rice v. Clements, Case Nos. A120355 & A121250 (1st Dist., Div. 2 Oct. 3, 2008) (unpublished) involved a set of facts that a novelist would probably love. Appellant (either a companion or wife of decedent) spent the past two decades relitigating issues about the distribution of deceased’s estate after he mysteriously disappeared (with decedent’s daughter claiming that appellant was long considered a prime suspect in his disappearance, a claim denied by appellant). The litigation spanned courts both in the United States and the Virgin Islands. In indictments by both governments, appellant previously was charged with attempting to defraud decedent’s estate of more than $1 million worth of real and personal property, allegedly accomplished through numerous forgeries and unlawful conveyances. Appellant pleaded guilty to some charges and was sentenced to ten years in prison in the Virgin Islands case and 15 months in the United States case, consecutive to a three-year sentence she was serving in California for an unrelated embezzlement conviction. Appellant filed various probate and other actions in Contra Costa County Superior Court, and lost some appeals, with the First District cautioning her to “be circumspect in future litigation”—advice she apparently failed to heed. More actions followed in state court, which were dismissed at the pleading stage. Appellant then shifted venues, filing a federal lawsuit that was disposed of against her on summary judgment. Appellant again shifted venues to bankruptcy court, losing again. Then, in 2007, appellant tried two more unsuccessful efforts, including a motion to reopen probate proceedings that had closed 18 years earlier. Decedent’s daughter filed a vexatious litigant motion, which was granted unless appellant obtained leave of the presiding judge to file a matter. Appellant appealed, and decedent’s daughter requested sanctions for a frivolous appeal.
The vexatious litigant determination was sustained, which turned attention to whether appellant’s appeal was frivolous.
It was deemed to be the “acme of frivolity” by the appellate panel. (Slip Opn., at p. 15.) After the Court of Appeal informed appellant that it was considering imposition of monetary sanctions, appellant filed a letter that basically said “I was only kidding” because she was trying to “correct a wrong” and had “no verifiable assets” to pay any sanctions order. The appellate panel was not impressed.
After noting that an in propria litigant is generally held to the same rules and procedures as an attorney, the Court of Appeal noted that several cases have recognized the authority of the court to sanction an in pro per litigant for filing a frivolous appeal. (See, e.g., Nelson v. Gaunt, 125 Cal.App.3d 623, 638-639 (1981); Bistawros v. Greenberg, 189 Cal.App.3d 189, 193 (1987); Leslie v. Bd. of Med. Quality Assur., 234 Cal.App.3d 117, 121 (1991); Papadakis v. Zelis, 8 Cal.App.4th 1146, 1150 (1992).) The appellate panel found the appeal to be frivolous in nature.
As far as the amount of sanctions, decedent’s daughter requested $8,887.50, which broke down to 22.5 hours at an hourly rate of $395. The Court of Appeal found that amount “eminently reasonable.”
Decedent’s daughter requested additional sanctions “of a far greater amount” to deter appellant from taking action in the future. (See Papadakis v. Zelis, supra, 8 Cal.App.4th at 1150; People ex rel. Dept. of Transp. v. Outdoor Media Group, 13 Cal.App.4th 1067, 1082 (1993).) The appellate panel declined to do so, hoping that the attorney’s fees sanction was sufficient. However, it did indicate no hesitancy to grant these greater sanctions in the future should appellant come before the court again in an effort to relitigate previously-determined issues.
The Court of Appeal concluded: “After 20 years, [decedent’s daughter] deserves finality of these issues and should not be forced back into court every time [appellant] contrives another manner in which to resurrect these matters long-ago concluded.” (Slip Opn., at p. 17.)