How to get sanctioned on appeal

The imposition of monetary sanctions on appeal is a rare occurrence . . . you almost have to work at it. If someone were actually trying to get tagged for many thousands of dollars for filing a frivolous appeal, they could learn a lot from Personal Court Reporters, Inc. v. Rand (April 20, 2012, 2nd Dist. case no. B229358). Below is your step-by-step guide to getting sanctioned on appeal.

1.  Base your appeal on an argument that goes against all precedent (apparently without any argument for a change in the law). This is a good start, but alone is not likely to get you sanctioned. The court recognizes:

Ordinarily, a court will not impose sanctions because an appeal is based on a creative argument with little hope of success.  “[C]ounsel must have the freedom to file appeals on their clients‟ behalf without the fear that an appellate court will second-guess their reasonable decisions.” [Citation.]

2.  Make sure that the adverse precedent includes your own prior case, in which the court rejected your nearly identical argument. Now you’re getting into dangerous territory. Says the court:

However, where a party bases an appeal on an argument that has been rejected and sanctioned in another trial court and affirmed on appeal, the principle of “once burned, twice shy” applies.  That is the case here.

***

Where, as here, a party appeals and merely repeats an argument that was soundly rejected by another appellate panel, we have little difficulty concluding that the party lacked good faith in pursuing the appeal.

3.  For good measure, first ignore your own prior case, then cite it in your reply brief  in support of your position, even though it runs against it. Why leave sanctions to chance? Virtually guaranty them with this icing on the cake!

[Appellants'] conduct is especially egregious because they failed to bring the prior case to our attention and did not address its holding after plaintiff cited it in its brief.

As the court noted in a footnote, however, appellants did not ignore their prior case completely:

Inexplicably, [appellants] cited the case in their reply brief as support for their position.

There you have it, your three-step foolproof guide to getting sanctioned on appeal. And not just against appellants’ counsel, but against the appellants’ themselves. Since the appellants themselves were attorneys, the Court of Appeal has a hard time believing they were merely relying on the advice of their counsel and did not realize the argument was frivolous.

UPDATE: Oh yeah, how’s this for irony? The lawyer representing the respondent in this collection action in the trial court actually markets himself as the “evil attorney,” yet the other side is the one that gets sanctioned. (I can’t be sure this is the one, but here’s the evil attorney I found with Google.)

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