• Courts' Response to Shoddy Appellate Practice? Pony Up!
  • January 9, 2006 | Authors: Benjamin G. Shatz; Michael Berger
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • Once upon a time conventional wisdom held that appellate courts were too busy and too above the fray of trial-court litigation to get their hands messy with something as distasteful as imposing sanctions. If ever that were true, it is no longer.

    Certainly trial courts have more interaction with counsel, and thus more opportunity to sanction misbehavior. But four recent appellate decisions from four courts - issued in the span of only two days - should dispel any belief that the appellate courts will not deign to sanction inappropriate conduct or will turn a blind eye to violations of appellate practice rules.

    Just two days before Thanksgiving, on Nov. 22, Division 6 of the 2nd District Court of Appeal published In re Koven, 2005 DJDAR 13550 (modified, rehearing denied Dec. 14), a contempt proceeding arising from appellate misconduct. Specifically, after losing two appeals, attorney Debra Koven filed two intemperate petitions for rehearing that accused the appellate panel of deliberate judicial misconduct.

    Koven accused the court of conspiring with the respondent to "fix" the case. She also charged the court with (1) being unfair, biased and result-oriented; (2) ignoring the law, not reading the controlling cases or the briefs; and (3) concealing alleged conflicts of interest with her opposing party. Rather than ignore the tone of these rehearing petitions - the court characterized them as insolent, offensive and insulting - the court issued an order to show cause in each case.

    In response, Koven conceded that her accusations were "improper and inexcusable," and she apologized, expressing "deep regret." Although the court accepted the apology, it found Koven's accusations patently outrageous. More than that, the court noted that the petitions were merely the latest in a pattern and practice counsel had developed of impugning the integrity of the trial judge, opposing counsel and an opposing expert witness. Accordingly, the court found Koven guilty of direct criminal contempt (Code of Civil Procedure Section 1211(a)) and fined her $1,000 for each offending petition (the statutory maximum fine under Code of Civil Procedure Section 1218(a)).

    The court also referred Koven to the State Bar for investigation and possible disciplinary sanctions. Koven's apology mollified the court sufficiently that it refrained from imposing jail time under Code of Civil Procedure Section 1218 (authorizing up to five days imprisonment for direct contempt of court).

    As a matter of sound advocacy, most practitioners know better than to attack the court viciously while simultaneously seeking relief from that court. A somewhat less obvious lesson is that attacking the trial judge, opposing counsel and other parties and witnesses to a case also is dangerous and counterproductive. Koven's story is interesting in itself, but it also may reflect a trend of the appellate courts taking steps to address even less outrageous misbehavior on appeal.

    The same day Koven issued, the 3rd District sanctioned a Sacramento attorney $18,777 in a published opinion for pursuing a frivolous appeal. Olsen v. Harbison, 2005 DJDAR 13543. The attorney had brought an anti-SLAPP motion 218 days after expiration of the 60-day deadline. When the trial court denied the tardy motion as "dilatory" and "without legitimate excuse," the attorney appealed, arguing the trial court abused its discretion in denying the motion.

    The Court of Appeal granted the respondent's motion to dismiss the appeal as frivolous. Because the trial court's ruling was plainly within the bounds of the law, the Court of Appeal found that no reasonable attorney would believe the appeal had any chance of success. The court awarded $16,737 in attorney fees for the respondent's handling of the appeal, plus $2,500 to be paid to the appellate court itself.

    The $2,500 payment to the Court of Appeal appears to be the 3rd District's standard punishment for having to process and review a frivolous appeal. This summer the 3rd District imposed frivolous appeal sanctions of $6,900 and $5,700, respectively, in two other matters - and in each case $2,500 of the amount was payable to the court: Harvard Business Park v. Chun Mei Dodge, C046453 (Cal. App. 3rd Dist. July 8, 2005), and Peterson v. Granite Bay Golf Club Ins., C047370 (Cal. App. 3rd Dist. June 28, 2005).

    The day before publication of Kovens and Olsen, the 4th District, Division 3, imposed substantial sanctions for filing a frivolous appeal and for violations of the appellate rules in Evans v. Centerstone Development, 2005 DJDAR 13504. Perhaps with Thanksgiving in mind, the court called the plaintiff's briefs "cornucopias of [rule] violations," among them: (1) failing to raise distinct arguments in separate sections with appropriate headings; (2) failing to provide a summary of facts in the record; (3) failing to provide exact page citations; (4) citing evidence that had been stricken; (5) filing a 23-volume appendix packed with irrelevant materials; and (6) failing to provide a proper index for the appendix.

    To deter such flouting of the rules, the court ordered sanctions equal to the amount of attorney fees the respondent was entitled to under the contract. The court also named the offending attorney and ordered him to send a copy of the court's opinion to the State Bar.

    That same day, Division 4 of the 2nd District sanctioned an attorney for a "completely deficient" statement of facts in the opening brief in the unpublished decision of Strickland v. Pagel, B176875 (Nov. 22, 2005). The brief did not provide adequate citations to the record and primarily cited the parties' opening statements instead of the actual evidence. Then at oral argument, when asked for record citations, he provided citations to the opening statement rather than evidence. The court was not amused and specifically named counsel in a stinging footnote.

    Furthermore, the court also issued a separate sanctions order against counsel for shenanigans relating to the scheduling of oral argument. Several weeks before oral argument, counsel requested a continuance based on a calendar conflict with a jury trial. The Court of Appeal denied the request. Then, the day before oral argument, counsel again sought a continuance - this time based on illness - which indicated respondent had been faxed the request. The court granted the request, continuing oral argument to the following month.

    Despite proof of service, however, respondent's counsel never received a copy of either continuance request, and, in fact, three other lawyers involved in the appeal had to reschedule travel plans; indeed, one lawyer already was on a flight from Philadelphia to Los Angeles to attend the argument. There were other fishy inconsistencies between the first and second continuance requests, and the second request also revealed that counsel's illness was diagnosed two weeks before the argument date - meaning that the request could have been filed sooner than the day before the scheduled argument.

    The court issued an order to show cause why counsel should not be sanctioned for violating Rule 40.1 governing service and should not have to pay travel expenses and attorney fees to the respondent. At the hearing on this order, counsel opted for a different posture than that of Koven. Adopting the old football adage that the best defense is a good offense, he expressed "indignation" at being the subject of an order to show cause, arguing that any sanctions award would be unfair.

    The court, however, was unmoved. Instead, it noted a "pattern of failing to properly and timely [] serve counsel on appeal with appellate filings." While sympathetic to counsel's medical condition, the court also refused to excuse the 15-day delay in seeking a continuance after counsel was diagnosed. As a result, because counsel "consistently violated fundamental rules of appellate procedure" the court imposed sanctions of $7,567.10 to compensate opposing counsel for fees and costs incurred.

    Evans and Strickland emphasize the importance of following the rules of appellate practice, particularly Rule 14 governing the contents and form of briefs. The court's order to show cause in Strickland noted that the failure to support factual references with record citations would have sufficed to strike the opening brief entirely.

    Four appellate sanctions cases issued in two consecutive days very well may be an anomaly. But the cautious practitioner should not discount these cases only as interesting anecdotes. These decisions emphasize how seriously the courts of appeal demand compliance with the substantive and procedural aspects of appellate practice, as well as common courtesy in dealing with the court and opposing counsel.

    The sanctions imposed, especially those in published decisions, expressly serve as a reminder to follow the rules - and a warning about the consequences of carelessness or shoddy practice.