Sixth District Court of Appeal offers the legislature some advice on amending the anti-SLAPP statute

232/365 - Smack!

A different kind of SLAP (Photo courtesy of Gabe via Compfight)

If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.”

That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27, 2015). If you guessed that the case is an appeal from the denial of an anti-SLAPP motion (Code Civ. Proc., § 425.16), give yourself a gold star. (Or maybe not — I mentioned anti-SLAPP in the title of this post, after all.)

The opinion is a good read if, like many, you believe that use of the anti-SLAPP statute has gotten out of hand. Indeed, the opinion cites another case’s reference to the “explosion of anti-SLAPP motions.” There’s simply too much in the opinion to try to summarize it here, so I’ll refer you to it for the nitty-gritty, and note just a few highlights.

On what does the Court of Appeal blame this explosion? The availability of immediate appeal when the motion is denied, that’s what:

A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a “free time-out” from further litigation in the trial court.The statute does this by entitling the unsuccessful movant to immediately appeal the denial of such a motion—even one like Oracle’s, which wholly lacks merit, attacks only a small part of the plaintiff’s case, and is heard nearly two years into the lawsuit, and on the day before a scheduled trial. Such an appeal automatically stays all further trial proceedings on causes of action “affected by the motion.” This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.

(Footnotes and citations omitted.)

The court argues that the anti-SLAPP “cure” is worse than the disease it was meant to address — the filing of meritless suits designed to chill participation in the public arena. “It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.”

The opinion closes with the court’s recommendation for amendment of the anti-SLAPP statute:

In this regard, we offer the suggestion that one simple fix might substantially reduce the motivation to abuse the anti-SLAPP procedure: Limit the right to  interlocutory appeal to denials, and allow them only where the motion (1) is filed within the allotted 60 days, and (2) would—if granted—dispose of the entire action. Where either of those conditions is lacking, the motion can rarely if ever achieve any real saving of time or money, and an appeal can only have the opposite effect. Such an amendment would limit invocation of the statute to cases where it may serve its stated purpose and greatly reduce its tactical utility in many if not most of the situations where it is now being most sorely abused.

As a “BigLaw” refugee, my favorite part of the opinion is the court’s lament that sanctions for frivolous appeals are not a very good deterrent against abuse of the anti-SLAPP statute:

But a prompt dismissal, even of a frivolous appeal, is not always feasible. In this case, HP’s motion to dismiss the appeal was supported by four volumes of exhibits, which Oracle answered with another five volumes, with the result that the motion essentially duplicated the appeal itself. Top-drawer legal representation, such as both parties have engaged here, can obscure the core frivolousness of an appeal beneath layers of artful obfuscation which only the most painstaking examination can peel away. And where the stakes are high enough—as they certainly are here, judging from the multi-billion-dollar figures put forward by HP’s experts on damages—the threat or even the certain prospect of sanctions may not alter the economic calculus that makes an anti-SLAPP motion, and ensuing appeal, so attractive.

(Emphasis added.) Sounds like Maybe Oracle got its money’s worth after all.

One last thing. Remember how it looked like Oracle had dodged the bullet of having to pay Hewlett-Packard’s attorney fees, since the Court of Appeal declined to impose sanctions? If I were Oracle, I wouldn’t quite count on it.

How the nature of your appellate challenge can affect whether your appeal is dismissed for failure to obey trial court orders

The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pending. The lesson to be learned from today’s decision in Ironridge Global IV, Ltd. v. ScripsAmerica, Inc., case no. B256198 (2d Dist., June 30, 2015) comes from its discussion of how the right kind of appellate challenge to a trial court order — specifically, a jurisdictional challenge — can serve as a defense to the imposition of a dismissal sanction under the disentitlement doctrine. Unfortunately for the defendant-appellant in Ironbridge, calling a challenge a jurisdictional one does not make it so. The Court of Appeal characterizes the defendant’s challenge as a non-jurisdictional one, and dismisses the appeal for the defendant’s violation of the trial court order from which it appealed.

A settlement reached by the parties required defendant to issue plaintiff shares in the defendant corporation, and to issue plaintiff additional shares in the event the value of the shares decreased. The court approved the stipulation and retained jurisdiction to enforce its terms. About six months later, plaintiff applied ex parte for an order compelling the defendant to transfer additional shares to plaintiff and enjoining defendant from issuing shares to anyone else until it until it did so. The court ordered defendant to issue the additional shares within 24 hours and not to issue shares to anyone else until it complied.

In the defendant’s appeal, plaintiff moved to dismiss under the disentitlement doctrine, providing SEC filings showing that defendant had transferred more than 8 million shares to third parties in violation of the injunction. Defendant filed a “paltry” 1-1/2 page opposition to the motion citing “no authority whatsoever,” contending that the order was in excess of the trial court’s authority in that (1) the trial court could not enjoin issuance of shares to third parties because there was no such prohibition in the settlement, and (2) the court could not compel the issuance of shares to plaintiff on an ex parte basis.

The Court of Appeal isn’t buying it. The court acknowledges that “[a] person may refuse to comply with a court and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid,” but notes also that a person “may not assert as a defense that the order merely was erroneous.” (Internal quotations and citations omitted.) It finds that the defendant’s challenge falls into the latter category.

First, the court notes that a trial court has continuing power to enforce a stipulated  judgment entered in settlement of a case (Code Civ. Proc., § 664.6) and the power to “compel obedience to its judgments, orders, and process” in proceedings before it (Code Civ. Proc. § 128, subd. (a)(4)). Combined, those powers gave the trial court “authority to fashion orders to enforce compliance with a stipulated judgment.” Though the court does not state so explicitly, its point seems to be that the prohibitory injunction against issuance of shares to third parties was was a permissible coercive measure to enforce the settlement regardless of whether the stipulated judgment addressed such transfers.

The defendant’s challenge to the ex parte nature of the order is dispatched more easily. The settlement itself authorized the court to enforce the settlement on an ex parte basis.

Here, the parties requested that the court retain jurisdiction to enforce the settlement. The stipulation also provided that it could be enforced on an ex parte basis. There is no question that the court had jurisdiction over the parties and the subject matter, and that the parties expressly authorized the court to enforce the settlement on an ex parte basis. We find no procedural irregularity or other defect that would support a credible claim that the order was either void or voidable. Defendant’s appeal merely challenges the order as erroneous.

The lesson here, of course, is that if you are unable or unwilling to comply with a trial court order that remains in force pending an appeal from it, you had better be sure that you have a serious jurisdictional challenge to make against it. Do not convince yourself that your challenge on the merits is a jurisdictional one just because you do not want to obey the order, because the Court of Appeal will look beyond the label on your argument. Absent a solid jurisdictional challenge, disobedience of the trial court order can put your entire appeal at risk.

UPDATE: For those interested in reading more about the disentitlement doctrine, see the article referenced at Southern California Appellate News.

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.

Even disobedience of trial courts in other states can get your California appeal dismissed

Last Thursday’s decision in Stoltenberg v. Ampton Investments Inc., case no. B235731 (2d. Dist. April 4, 2013) demonstrates the hazards of being unable to stay enforcement of a money judgment against you while your appeal is pending . . . and how much trouble you can get in for going too far in resisting those enforcement efforts. How much trouble? Well, is having your appeal dismissed enough trouble for ya?

Ampton had the misfortune of losing at trial and having a judgment of more than $8 million dollars entered against it. Ampton appealed, but did not post a bond to stay enforcement of the judgment. When the plaintiffs registered the California judgment in Ampton’s home state of New York and then subpoenaed financial records, Ampton ignored the subpoena. Plaintiffs asked the New York trial court to find Ampton in contempt. Ampton escaped contempt but was ordered to respond to the subpoena. When Ampton refused to do so, Plaintiffs again sought a contempt finding against Ampton, and that time they got it: Ampton was ordered to pay $500 in sanctions and to comply with the subpoena within 30 days or face further sanctions.

By now, you would think that Ampton might finally accept the reality that its own failure to stay enforcement of the judgment pending appeal carries consequences that it would have to live with, and comply with the contempt order. But . . . that’s not what Ampton did. When Ampton failed to comply with the New York contempt order, Plaintiffs moved to dismiss Ampton’s California appeal, arguing that Ampton’s disobedience of the New York trial court contempt order was sufficient to invoke the “disentitlement doctrine.” After much procedural wrangling (which makes for interesting reading but is unnecessary to cover here), Plaintiffs succeeded in getting Ampton’s appeal dismissed.

Let’s start with the court’s description of the disentitlement doctrine (citations omitted):

An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order. As the Supreme Court observed . . . “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.

We recently explained the equitable rationale underlying the doctrine. “‘Dismissal is not “a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court‟s inherent power to use its processes to induce compliance” with a presumptively valid order’ . . .  Appellate disentitlement “is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . . “No formal judgment of contempt is required; an appellate court “may dismiss an appeal where there has been willful disobedience or obstructive tactics.” The doctrine “is based upon fundamental equity and is not to be frustrated by technicalities.”

The Court of Appeal has no problem finding the doctrine applicable here. After rejecting a few contentions that were squarely against precedent (why the heck were those arguments made?), the court addresses the one issue that had even a chance of succeeding: that Ampton’s appeal could not be dismissed under the disentitlement doctrine because Ampton disobeyed orders only of a court of foreign jurisdiction rather than orders from a California trial court.

It’s a valiant effort, but the Court of Appeal finds no reason to treat disobedience of foreign court orders any differently from those of California trial court for purposes of the disentitlement doctrine. The court first cites the “full faith and credit” clause of the federal constitution, but also notes a very practical reason for applying the disentitlement doctrine in these circumstances (citations and footnote omitted):

Had plaintiffs attempted to enforce the judgment in California by propounding postjudgment special interrogatories seeking defendants’ financial information, including information about assets defendants may have in New York, the disentitlement doctrine would have applied to any noncompliance with the California trial court‟s orders compelling responses to those interrogatories.  For purposes of the disentitlement doctrine, there is no meaningful distinction between New York trial court orders and California trial court orders related to enforcement of a California judgment. The orders of the New York court in issue were based solely on a California money judgment and were intended to aid in the enforcement of that judgment. Thus, by violating those orders, defendants are obstructing and frustrating the enforcement of a judgment of this state, while at the same time seeking relief concerned that judgment in this court. Under the well-established disentitlement doctrine, defendants are not entitled to the relief they seek on appeal.

UPDATE: Interestingly, the court stayed its dismissal for 30 days to allow Ampton to seek reinstatement of the appeal, but cautioning that it was not suggesting or implying how it would act on such a request.  So, naturally, Ampton did so, but only at the last minute and not very well. Ampton filed an initial motion that provided only an unsworn account of Ampton’s purported compliance with the New York Subpoena, a “supplement” to that motion regarding further New York proceedings, a petition for rehearing and a “renewed” motion for reinstatement (this time supported by sworn declarations),  and finally a “supplement” to the renewed motion, with a flurry of orders from the New York court, all for naught. The Court of Appeal found that Ampton failed to prove that it had ceased playing games:

Defendants have had two months since our initial opinion to provide us with a competent and unequivocal showing that they had complied fully with plaintiffs’ information subpoena and that the New York court had made an express finding of full compliance. Defendants and plaintiffs have both provided their versions of the oral proceedings before the court, but apparently those proceedings were “off the record.” Had the New York trial court, knowing of our deadline, considered our dismissal order inequitable, that court presumably would have acted upon the pending motions before it with respect to compliance with its orders. Moreover, it was defendants’ burden to provide us with an adequate record, and that would include a transcript of a proceeding “on the record” or a reasonable substitute for such a transcript. (See Cal. Rules of Court, rule 8.137.) Defendants have been making last-minute efforts to avoid the disentitlement doctrine, but these efforts are too little and too late.

If you are unable to stay the judgment pending appeal, use every legitimate means at your disposal to forestall enforcement (the requirements for many judgment enforcement proceedings are highly technical, and noncompliance by the judgment creditor can delay things for a while), or try to settle the case (though admittedly, an appeal without a stay of the judgment does not create a lot of leverage), but don’t play games with judgment enforcement. The best appellate argument in the world is worthless if the Court of Appeal dismisses your appeal under the disentitlement doctrine before it ever reaches the merits.

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.)

A Disregard for Fiduciary Duties that is “Without Precedent”

Picture this:

You represent the defendant in a lawsuit.  You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery.  Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered against your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment.  What do you do, besides give notice to your malpractice carrier?

If you’re the defendant’s first attorney in Styles v. Mumbert, case no, H029767 (6th Dist. July 15, 2009), you get the plaintiff in the original case (Styles) to assign her default judgment to you (for some undisclosed consideration), then, represented by another lawyer in your firm, you move the court of appeal to substitute you in as respondent in your former client’s (Mumbert’s) appeal from that judgment.  The court of appeal resists the invitation, concluding the opening paragraph of its opinion thus: “Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.”

The absurdity of the possible outcomes!  The court says it much better than I could:

If we allowed [attorney] Pagkas to substitute himself as respondent, in place of Styles, on appeal Pagkas would have to argue that the default judgment, for which he may be professionally responsible, should be reversed. He would argue that the appeal should fail, so that he could collect on the default judgment. This is directly contrary to Mumbert’s interest. While a reversal here would be to Pagkas’s absolute benefit in the legal malpractice action, reducing any potential damages for professional negligence owed to Mumbert, Pagkas appears to prefer the prospect of collecting the large default judgment from Mumbert. In fact, if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent.

Unsurprisingly, Mumbert asked for sanctions for having to oppose the motion, and got them.  On sanctions:

Pagkas’s actions make a mockery of the Rules of Professional Conduct. We cannot conceive of, and the case law is devoid of, a scenario which could do more violence to the attorney-client relationship and the public trust in the legal system, than what Pagkas and his firm have done and seeks to do.  Despite the well founded opposition to the motion, citing to the relevant Rules of Professional Conduct and supporting case law, Pagkas and his attorney continue to urge that we grant the motion without cogent argument or cite to relevant supporting authority. Under these circumstances, sanctions are appropriate.

What of the original plaintiff?

Respondent Delia Styles, having sold her interest in this action, and having failed to file a respondent’s brief, is ordered to show cause within 15 days from the date of this opinion why her default should not be entered and the appeal proceed without opposition.

I think Ben Shatz might have had to create a new category just for this case if it had been decided before Whittier Law Review published his study of appellate sanctions.

UPDATE (7/16/08): Tulane University Law School professor Alan Childress at Legal Profession Blog offers his thoughts, as well as a clever follow-up post.

Listen to the Court the First Time

More chutzpah on appeal, this time in United States v. Collins, case no. 05-4708 (7th Cir., Dec. 14, 2007). A little out of my usual jurisdiction, but so outrageous I had to tell you about it (and once again sponge off the great work at Decision of the Day).

I’ll tell you only that this time the attorney gets spanked for making the exact same argument the court had described as “unbelievably frivolous” in a prior case involving the same attorney.

The argument? Go to this post at Decision of the Day, where you’ll also find a link to a page that shows the lawyer in Collins is not alone . . . and that the same argument is now being made in the U.S. Supreme Court.

Rare Frivolous Appeal Sanction Levied

A few months ago, I told you how a study by Ben Shatz and Joanne Sweeny in Whittier Law Review disclosed just how rarely sanctions are levied in the Court of Appeal. But “rarely” doesn’t mean “never,” and last Thursday was one of those rare occasions.

Legal Pad covers the merits. California Appellate Report tries to get inside the heads of the sanctioned lawyers.

The embarrassment must sting as much as the fine.

Follow the Rules – A Lesson from the Ninth

Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.”

The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all.

The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.

You’re thinking, “Well, that’s what you get for proceeding in propria persona,” right? Think again. Appellant had counsel. Yet the analysis and citation to evidence (it was an appeal from summary judgment) were also deficient:

Bare assertions and lists of facts unaccompanied by analysis and completely devoid of caselaw fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”

Despite the court’s assertion that it was publishing the case “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” it nonetheless conducts an independent review of the record in recognition of “the harshness of this rule, especially as its application could, if unwisely applied, leave a meritorious appellant without a legal remedy when the fault lies solely with his or her counsel.”

With this concern in mind, and despite the abject deficiency of the brief, we have reviewed Sekiya’s case on the merits based on a review of the district court record, and we are satisfied that the district court did not err.  Sekiya, however, is not “entitled to have us expatiate on our reasons for finding [her] case unmeritorious.” [Citation.]

Maybe the part I liked best was this quote:

In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. [Citation.]

I think if I were a legal writing professor, I might talk about this case with my students and keep the phrase “slubby mass of words” handy.

UPDATE (12/5/07):  Lowering the Bar coins the term “Slubby Mass Rule” and delves into the etymology of “slubby.”

An Attorney’s Individual Right to Appeal Court Criticism

This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is itself an appealable sanction.”

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.

Study of Sanctions in Appellate Proceedings

Ben Shatz, whom I’ve had the pleasure of meeting and corresponding with from time to time, has co-authored (with JoAnne Sweeny) an article recently published as “The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions” (2007) 28 Whittier L.Rev. 1087.

Here’s how the article describes itself in its introduction:

This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005.  More specifically, this article describes which courts award sanctions, how much is awarded (compared to how much was requested), how often courts awarded sanctions upon their own motions, what kind of errors (and how egregious) are necessary for an award, and against whom sanctions are awarded (parties, their attorneys, or both).

I’ve read the entire piece and find this introductory statement understates the depth of the article.

Few readers, I’m sure, will be surprised to learn that the article confirms that solo/small firm lawyers are sanctioned more often than lawyers from larger firms.  The article looks at this in a purely statistical sense.  Other commentators, of course, have alleged a bias against solos and small firms when it comes to discipline.  A good starting point for those who are interested is this post at Carolyn Elefant’s “My Shingle” blog, which includes links and a comment that offers some very plausible, bias-free reasons for the disparity.  That post addresses ethics committees, but Carolyn has also blogged on bias in the courts.  In this post, she comes to the defense of a “big firm” partner against whom a Florida judge issued an OSC re contempt for saying the judge was a “few french fries short of a happy meal,” and she links to her earlier posts on anti-solo judicial bias.

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.  Whatever the reasons for unpublished sanctions opinions, perhaps more of them will be published under the new rules for publication.

Unfortunately, there is no online version of the article available.  If that changes, I’ll let you know.

UPDATE: My more recent thinking (2014) on publication of sanctions opinions is here.

Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award

In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings.  The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a).

Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c).  The court determines that abuse of discretion applies here as well, since “the sanction is similar to that imposed under section 271 as well as similar to a sanction for civil discovery abuses (which are reviewed for abuse of discretion).”

USD Law Professor Shaun Martin has the local San Diego angle at California Appellate Report.