Should a respondent always move to strike a defective appellant’s opening brief?

A brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) A party may move to strike the adverse party’s brief if it fails to comply with this or other requirements of rule 8.204. (Rule 8.204(e)(2).) A leading practice guide advocates that a respondent should immediately file a motion to strike an appellant’s opening brief, that is “so defective that it appears likely the appellate court will order it stricken in whole or in part [.]” (Eisenberg, Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group 2016), ¶ 5:196.) But is that always the case?

Consider that a successful motion to strike is likely to give the appellant a “second bite at the apple” (and sometimes a third or fourth bite, if later briefs are also stricken), allowing the appellant to improve the quality of his brief. This is so because a Court of Appeal has only three options if it agrees the brief is noncompliant:

(A) Order the brief returned for corrections and refiling within a specified time;
(B) Strike the brief with leave to file a new brief within a specified time; or
(C) Disregard the noncompliance.

(Rule 8.204(e)(2).) Instead of giving the appellant that chance to file a better brief, might it make more sense, at least in some circumstances, to forego a motion to strike, use the respondent’s brief to attack the opening brief’s deficiencies, and let those deficiencies take down the appeal?

That appears to be the approach taken by the respondent in Ewald v. Nationstar Mortgage, LLC, case no. C081760 (3d. Dist June 28, 2017, ordered published July 27, 2017), a plaintiff’s appeal from a judgment following the defendant’s successful motion for summary judgment. Respondent never moved to strike the appellant’s opening brief, but its own brief led off with the argument that the judgment should be affirmed because appellant had failed to support his arguments with authority, and the arguments should thus be deemed abandoned. In a brutal page-and-a-half opinion that summarizes the “egregious violations of basic appellate norms” contained in appellant’s opening brief, the court agrees with respondent that “the opening brief does not satisfy counsel’s duty to provide adequate legal authority to support this appeal,” and affirms the judgment “without discussing the merits.”

This tactic won’t always work. First, it might not deprive appellant of a chance to improve the opening brief, because The Court of Appeal might strike the brief on its own motion. (See Rule 8.204(e)(2).) More importantly, the tactic of foregoing a motion to strike in favor of using the respondent’s brief to raise the defects might be dangerous. This tactic should probably be invoked only when case law and the record of the division in which the appeal is pending make it nearly certain the defect will be deemed an abandonment of issues. If there is any ambiguity about whether the defects constitute an abandonment of issues, I would err on the side of caution and move to strike immediately, especially if the brief is so unclear that it is hard to address the points raised in it.

One final note about Ewald. The opinion was originally unpublished, but later certified for publication. The online record for the case shows no intervening request for publication from either party, suggesting that the Court of Appeal eventually decided on its own this case should serve as a warning to appellants to file briefs that conform to rule 8.204.

Update (8/21/17): A reader suggests that the approach in Ewald may sometimes be adopted for reasons of cost and timing rather than strategy. In other words, why go to the expense of a separate motion to strike when success means that the appeal is dragged out by the time the appellant is allowed to re-file a compliant brief? Addressing the opening brief’s noncompliance in the respondent’s brief may be the respondent’s most cost-effective option as well as the one least likely to drag out the appeal.

Thoughts on publication of opinions imposing appellate sanctions for frivolousness

This recent Southern California Appellate News post by Ben Shatz led me to a case that got me thinking further about the utility of publishing opinions imposing appellate sanctions. More than six years ago, I posted in response to a law review article that Ben co-authored with another, which surveyed the cases imposing appellate sanctions. As I recall, the article limited the time frame of the survey to the period since unpublished decisions became available online, since so many of the decisions imposing sanctions are never published. That led me to write:

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.

My thinking at the time was that, as a rule of thumb, opinions imposing appellate sanctions should generally be published, but I hadn’t really taken into account the criteria for publication. The mere imposition of sanctions does not automatically fit within any of the established criteria for publication in rule 8.1105(c)(6), Cal. Rules of Court. I was thinking in the abstract that publication should be encouraged, even if it meant amending rule 8.1105.

However, I think my initial concerns were probably misplaced. Educating attorneys on what is and is not sanctionable was the intent behind my initial thought that sanctions decisions should be published, but is that really needed? Consider the standard for frivolousness:  “whether any reasonable person would agree that the point is totally and completely devoid of merit.” In other words, no reasonable person would agree that the point is not frivolous. Do we need guidance on that?

That standard for frivolousness is at odds with the idea that any sanctions decision would be a close call. Publication of an opinion imposing sanctions for frivolousness might frequently undermine the very basis for the imposition of sanctions, because it would suggest that the imposition of sanctions was a close enough call that it requires an explanation justifying publication under rule 8.1105. Those should be rare occasions, indeed.

If you have thoughts on this, feel free to leave them in the comments.

Help Out Law Blogger Kimberly Kralowec

Looks like this is the week for appellate bloggers to embark on projects and solicit help from their readers. Unbeknownst to me until now, the day before I announced my intent to publish a series of posts on the reluctance of lawyers and clients to engage appellate counsel, Kimberly Kralowec (pictured left) at The Appellate Practitioner (better know for her excellent The UCL Practitioner) announced that she will be examining what works when asking the Supreme Court to depublish a case. Toward that end, she’s asking readers to submit successful depublication requests. Send them to her at