In federal court, partial dismissals present plaintiffs with a difficult choice. They can seek an immediate appeal or continue litigating their live claims. But they cannot do both, though they are often motivated to do so. And defendants should be prepared to hold plaintiffs to that choice—as the Ninth Circuit indicated it was willing to do in comments during a recent oral argument.
If you handle appeals, then you’ve probably heard yourself mutter at least once, “What a frivolous appeal!” It’s bound to happen now and then, given the zealous advocacy that comprises an essential ingredient in any litigator’s DNA. But while some appeals are losers, not every loser appeal is frivolous. Where’s the dividing line?
The California Supreme Court finds frivolity when: (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. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) While the Flaherty standard has been around for a long time and is stated in the disjunctive, more recent decisions demonstrate that on the rare occasion when appeals are determined to be frivolous, evidence of improper motive and complete lack of merit are usually both present.