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.

For example, in 1130 Hope St. Assoc. v. Haiem (2015) 2015 Cal.App. Unpub. LEXIS 2996, *27-29, the Court of Appeal observed that counsel’s conduct, including refusing to limit the scope of the appeal to issues not already resolved by prior appeals, resistance to the preparation of an adequate record, threats to communicate to opposing counsel’s clients allegations of prior malpractice (there were none), and telling counsel, “You really ought to see a psychiatrist immediately,” abundantly demonstrated “intent to harass.” In what comes across almost as afterthought given such a litany of bad behavior, the appellate court also noted that the appeal “indisputably has no merit.” Sanctions and State Bar referrals followed.

In Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 557-558, the appellate court noted that almost invariably, when complete lack of merit is present, so is evidence of improper motive. And in Rouzbahan v. Fregoso (2014) 2014 Cal.App. Unpub. LEXIS 3351, *13-17, the Court of Appeal observed that one way to demonstrate frivolity is to combine willful ignorance of the standard of review—such as ignoring the evidence supporting the verdict when arguing insufficient evidence—with defiant behavior such as making demonstrably false assertions about the evidence in the appellate brief.

A notorious example of frivolity is Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267 which begins with “Those who practice before this Court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel.” There, after obtaining multiple extensions, counsel filed a brief that was nothing more than the brief from a prior, unrelated appeal. When the Court of Appeal issued a letter giving counsel notice that sanctions were being considered for a frivolous appeal, counsel wrote back that the court must have issued the notice in error. And when the sanctions hearing came, counsel sent another attorney who was unaware of the sanctions issues. Counsel did not avoid the sanctions.

So what about those loser appeals? It’s complete lack of merit that makes an appeal frivolous. And given the reality that most courts treat the Flaherty standard as conjunctive, one may have to suffer some harassment and delay, with no real chance of obtaining sanctions for frivolity, if the appeal at least has minimal merit. Given the wide disparity in skills and the complexity and challenges of the legal profession, the greater danger would be to chill otherwise worthy appeals through overuse of sanctions. Thus, as the high court stated in Flaherty, sanctions are to be “used most sparingly to deter only the most egregious conduct.”

Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.