First District Finds Appeal Frivolous and Assesses Sanctions Against Losing Party and Losing Attorneys As Well as Remands for Award of Appellate Attorney Fees to Winning Party.
Stressing what we have said before in prior posts (see May 22 and 28, 2008 posts), appellate law is no area for neophytes. It is a boutique practice with its own rules and review standards of a unique nature. Parties and lawyers need to take care that their appeals have enough merit to avoid sanctions and fees even if the appeals are ultimately unsuccessful. If not, a painful illustration of what can happen is provided in a recently published decision, In re Marriage of Gong and Kwong, Case No. A114589 (1st Dist., Div. 1 May 29, 2008, certified for publication after rehearing).
There, a husband (Kwong) failed to meet his child support and college expense obligations. Former wife (Gong) filed a motion for payment, and husband agreed to pay $115,000 in settlement of the claimed payments. Husband failed to make the settlement payment, and a family judge ordered former husband to make over $300,000 in payments and also awarded former wife almost $16,000 in attorney’s fees. The family law judge also entered a charging order so that husband’s partnership interest could be levied upon to satisfy the judgment.
The family law judge issued his verbal ruling on June 5, 2000 and his statement of decision in late August 2000. However, various delays occurred due to the contentious nature of the litigation such that the formal order was not entered until March 1, 2001.
Former husband moved for, but lost, a contention that he satisfied his past obligations based on his claim that he paid all arrearages owed when the formal order was filed in March 1, 2001 rather than the earlier June 5, 2000 date of hearing. Although heard by a different family law judge, the new jurist found that the arrearages had to relate back to the earlier date, or else it meant the first judge “called time out for eight or nine months while everyone agreed on the preparation of the final document.”
However, former husband appealed and reiterated the argument that he was “current” based on the later March 1, 2001 date—a contention which had been soundly rejected by the lower court. Wife filed a motion for sanctions, and the appellate court asked that the motion be addressed at oral argument (needless to say, a bad sign).
The appellate court did not like the appeal brought by husband and also issued a harsh rebuke to husband’s primary appellate attorneys.
Utilizing the test for appellate sanctions enunciated in In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982), the First District found husband should pay former wife $15,000 in appellate sanctions for bringing a frivolous appeal which the Court of Appeal also dismissed. The appellate court found the appeal was subjectively brought to delay (based on husband’s past history of delinquencies in making payments for his children’s benefit) and was objectively unmeritorious (because the first family law judge obviously did not mean to place a moratorium on arrearages while a formal order was being prepared for entry). Gong for Kwong.
The First District also remanded to have the lower court award former wife attorney’s fees on appeal. She claimed to have spent $30,000 for fees on appeal. Although leaving the determination of the proper amount of fees for the family law judge, the appellate court made no comment suggesting they were unreasonable in the least. (PRACTICE POINTER—Appellate courts very seldom award attorney’s fees for appellate work. Most frequently, they remand to the lower court for consideration of the proper fees to be awarded on appeal.)
In an interesting twist, the Court of Appeal also ordered the two primary appellate attorneys to pay $3,000 each to the clerk of the appellate court as reimbursement for the costs of having the Court work up the case for decision. For appellate practitioners and the general public, there is a salient discussion of the average cost for processing an average appeal—ranging from a low of $5,900 to a high of $8,500. The First District chose $6,000 as the appropriate figure, dividing it up for payment between the two losing appellate attorneys. The appellate court ended by reminding attorneys that they have ethical obligations to not pursue frivolous appeals, but should opt instead to withdraw from representation rather than simply acting as “hired gun[s] required to carry out every direction given by the client,” citing Cosenza v. Kramer, 152 Cal.App.3d 1100, 1103 (1984).