Sometimes in an appeal, the appellant takes a “kitchen sink” approach to briefing by advancing a number of baseless claims. Appellant has the burden of showing the lower court erred and may believe if it hurls enough contentions, maybe one will stick. Even though some of appellant’s arguments may have merit, that type of shotgun approach to appellate litigation can be frustrating and costly for a respondent tasked with investigating and responding to all of the arguments.
But, in California, a respondent facing such a scenario may—in the right kind of case—be able to recover a portion of its attorney fees for a “partially frivolous” appeal.
Under California Rules of Court, rule 8.276(a)(1), the court of appeal may impose sanctions against a party for taking a frivolous appeal. There is a demanding standard for demonstrating an appeal is frivolous, and a motion for sanctions will only succeed when: (1) the appeal is taken for an improper purpose or motive (such as delay or harassment); or (2) “any reasonable attorney would agree that the appeal was totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.)
But the entire appeal need not be “totally and completely without merit,” as the courts of appeal have awarded sanctions for “partially frivolous” appeals. An appeal is partially frivolous where the frivolous claims constitute a “significant and material part of the appeal.” (Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1010.)
Whether frivolous claims are significant and material varies from case to case, but an important indicator is the length of briefing appellant devoted to its frivolous arguments. Sometimes the question is clear like where the appellant spent more than 30 pages of briefing on frivolous contentions. (In re Marriage of Camellia & Mark S. (Cal. Ct. App. Nov. 26, 2013) 2013 WL 6182452 (unpub. opn.), at *10.)
But there are cases where the length of briefing was more balanced and the court still imposed sanctions. For example, in Valle v. Vu (Cal. Ct. App. Sept. 30, 2019) 2019 WL 4745059 (unpub. opn.) at *5, the court of appeal awarded sanctions where the frivolous arguments comprised eight out of the 17 pages in the argument section of appellant’s brief. And in Peterson v. Granite Bay Golf Club, Inc. (Cal. Ct. App. June 28, 2005) 2005 WL 1515710 (unpub. opn.), at *8, the court counted the appellant’s contentions by the sentence (including footnotes), and awarded sanctions where there was an equal number of sentences spent on frivolous and meritorious arguments.
An obstacle for a respondent considering whether to bring a motion for sanctions is the amount of fees the court will award, which is within the court’s discretion. In deciding the amount of the award, the relevant factors considered by the court are (1) the amount of respondent’s attorney fees in the appeal; (2) the amount of the judgment entered against appellant; (3) the degree of objective frivolousness and delay; and (4) the need to deter like conduct in the future. (J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 19-20.)
For partially frivolous appeals, courts tend to give more weight to the second factor and consider the attorney fees respondent incurred in responding to the frivolous arguments. The respondent is required to file a declaration under California Rule of Court 8.276(b)(1) supporting the amount of the monetary sanctions it seeks. A respondent would be wise to provide additional facts as to how much of its fees can be attributed to responding to the frivolous contentions. For example, in Valle v. Vu, where the frivolous claims took up nearly half of the appellant’s brief, the court awarded a little more than half of the total attorney fees the respondent spent in the appeal and in the motion for sanctions combined. (Valle, supra, 2019 WL 4745059 (unpub. opn.), at *6.)
One upside for a respondent considering whether to file a motion for sanctions is that argument for a sanctions motion is combined with oral argument for the merits of the appeal. (California Rules of Court, rule 8.276(e).) Thus, unlike in certain trial and district court jurisdictions, the respondent can spare some time and expense by not having the request heard separately. The respondent must file the motion for sanctions before any order dismissing the appeal and no later than 10 days after appellant’s reply brief is filed. (California Rules of Court, rule 8.276(b)(1).)
The partially frivolous appeal doctrine may give hope to a respondent facing an over-zealous appellant determined to raise as many errors by the lower court as it can, regardless of the merits. The respondent must clear the hurdles of showing the contentions were completely without merit, and that the frivolous arguments were significant and material. But if it can do so, a monetary award might provide some solace for the cost of chasing down all of appellant’s baseless arguments.
Patrick Burns is Senior Counsel with Hanson Bridgett’s Appellate Practice. Patrick focuses on writs and appeals, as well as law and motion in the state and federal courts. A former litigator at a global law firm, Patrick has experience litigating high-stakes disputes. He can be reached at [email protected] and his blog posts can be read at www.appellateinsight.com.