Every now and then an appeal gets taken that, frankly speaking, shouldn’t be filed. When on the receiving end it’s possible—depending on the extreme lack of merit in the opening brief—to contemplate saving the client the time, effort, and $$$$ involved in preparing a responsive brief. The thinking would be something along the lines of “this stinker has absolutely zero chance of success” (and other more colorful thoughts).  But should the respondent forgo filing a brief and just wait for the Court of Appeal to proclaim the inevitable?

Such a drastic course of action should be avoided.

It is true that the appellant has the burden of demonstrating error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–09 [“it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment”].) However, some courts view the respondent as having a “corresponding obligation to aid the appellate court in sustaining the judgment or order.” (See, e.g., Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 849, fn. 1, emphasis added.) Indeed, although it seems unlikely to occur, the reviewing court has the discretion to “treat respondents’ failure to file a brief as an acknowledgement that the appeal is well taken and reverse the trial court’s orders.” (Ibid., citing Bennett v. California Custom Coach, Inc. (1991) 234 Cal.App.3d 333, 338.) Such action, if taken based solely on the lack of a responsive brief, seems like an abdication of judicial responsibility.

Admittedly, it would take a lot of “confidence” to forgo a responsive brief—a certain arrogance regarding outcome as well as assumptions about what the Court of Appeal will do when no brief is filed. So what about that brief—is it an “obligation” or an opportunity? 

It ought to be embraced as opportunity. Respondents are uniquely situated to call out record omissions—whether wholesale avoidance of documents or selective evasion of facts—and should not rely on the appellate court finding such omissions on its own. And, respondents should seize the opportunity to describe the case—and the result—in terms embracing propriety and imbued with justice. In addition, respondents have the luxury of being able to obtain affirmance on any correct ground. (See, e.g., Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn.1. [“[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court”].) It is sometimes the case that while the trial court’s reasoning is flawed, the result is right, and so the opportunity to point the Court of Appeal in another direction is critical. Finally, forgoing a response also means forgoing a motion for sanctions for filing a frivolous appeal. If the appeal really is such a stinker, then combining exposure of frivolity by way of lucid reasoning along with request for sanctions ought to be a fairly simple exercise. But remember, not every “loser” appeal is a frivolous one. (See, In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [“An appeal that is simply without merit is not by definition frivolous”].)    

However rare, case law confirms that there are instances when respondents fail to file a brief. These may have to do with lack of counsel or other extreme situations. But the reality is that when the opening brief is a stinker, the respondent is that much closer to winning. Why risk such easily graspable victory by what would, in most instances anyway, be deemed the drastic response of no response? Better to embrace the opportunity than deplore the obligation!

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.