Appellate sanctions merit consideration at the outset of every appeal. Enthusiasm for one’s own cause does not always lead to a warm reception in the appellate courts, a lesson that some attorneys have had to learn at significant expense.

Appellate sanctions are mercifully rare. The California Supreme Court has cautioned that sanctions should be used sparingly to deter only the most egregious conduct. In re Marriage of Flaherty, 31 Cal. 3d 637, 639 (1982). An appeal that is simply without merit is not by definition frivolous and should not incur sanctions for that reason alone. Id. at p. 650. This is good news for appellants, since most appeals (over 80%) fail and therefore at some level are not meritorious. But sanctions are imposed frequently enough to warrant the precaution of carefully evaluating the substantiality of and motive behind every appeal before it is noticed.

By statute, appellate sanctions can be imposed when it appears to the court that “the appeal was frivolous or taken solely for delay.” Cal. Code Civ. Proc. § 907. The statute thus has both an objective and a subjective component. Whether the appeal is frivolous is an objective standard that looks at its substantiality from a reasonable person’s perspective; whether it is taken solely for delay is a subjective standard that looks to the motives of the appealing party and his or her attorney. Singh v. Lipworth, 227 Cal. App. 4th 813, 826 (2014). In practice, the two standards are often evaluated together, one providing evidence of the other. Flaherty, 31 Cal. 3d at p. 649.

The objective standard might particularly be in play where the appellant is an attorney who is representing himself or herself in the trial court and on appeal. This is a danger because “trial attorneys who prosecute their own appeals . . . may have ‘tunnel vision’” and, “[h]aving tried the case themselves, they become convinced of the merits of their cause.” Estate of Gilkison, 65 Cal. App. 4th 1443, 1449 (1998). Add to this the fact that appellate law is highly specialized and requires both a different set of skills and a different mindset than trial court litigation. In re Marriage of Shaban, 88 Cal. App. 4th 398, 409–410 (2001). In Gilkison, an attorney challenged the trial court’s discretionary decision to award him the fees mandated by statute, which the Court of Appeal described as a very “daunting task” comparable to an uphill Confederate assault at the Battle of Gettysburg. Id. at p. 1448. Without a cognizable basis for going down this path, the appellant/attorney wound up on the business end of a sanction award payable to the court. Id. at p. 1451.

The subjective standard bears extra scrutiny when an appeal challenges the trial court’s denial of an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion. Such motions serve the laudable purpose of allowing a defendant to defeat at a very early stage a lawsuit “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Cal. Code Civ. Proc. § 425.16(a). But they also can be a tempting means of delaying a lawsuit’s resolution, because a grant or denial of an anti-SLAPP motion is one of the few types of pretrial order that is immediately appealable. Cal. Code Civ. Proc. § 425.16(i). An appeal from the denial of an anti-SLAPP motion immediately stays trial court proceedings on the merits. Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 191 (2005). Resolution of an appeal can easily take more than a year. Therefore, a defendant who wants to grind trial court proceedings to a halt soon after they are filed can easily do so by filing a spurious anti-SLAPP motion and then appealing its denial.

These two strands appear to have come together in Personal Court Reporters, Inc. v. Rand, 205 Cal. App. 4th 182 (2012). There, court reporters sued two attorneys for not paying amounts they owed for reporting services. The defendants sought to strike the complaint through an anti-SLAPP motion, on the creative but questionable theory that the collection action was an attempt to chill their constitutional right to advocate in court. Unpersuaded, the trial court denied the motion and the defendants appealed. Technically, they might not have been representing themselves, but the fact that the appellants share a business address and last name with their appellate attorney gives rise to an inference that the appeal was a family affair. Noting that one of the appellants had lost when he made the same argument in an earlier case, which resulted in a published appellate decision (California Back Specialists Medical Group v. Rand, 160 Cal. App. 4th 1032 (2008)), the Court of Appeal awarded plaintiff its attorneys’ fees as a sanction, holding that the appeal was frivolous and had been brought to delay resolution of the lawsuit. (205 Cal.App.4th at p. 193.)

A similar confluence occurred just last month in Clarity Co. Consulting, LLC v. Gabriel,77 Cal. App. 5th 454 (2022). There, a consultant brought a collection action against a healthcare company, as well as its general counsel and other company officers, alleging misrepresentation and concealment that resulted in the company’s failure to pay the consultant’s invoices. The general counsel filed an anti-SLAPP motion on his own behalf, arguing that the suit impinged on his freedom of speech in representing his client in negotiations over a potential employment contract and in settlement discussions. The trial court denied the motion and imposed sanctions for pursuing a frivolous motion. Undaunted, the general counsel appealed, represented by a partner in his own firm, but the Court of Appeal was similarly unpersuaded. It noted that the alleged misrepresentations and concealment that resulted in the company’s failure to pay for services had nothing to do with the counsel’s role in contract negotiations and the subsequent litigation, which arose later when the consultant sued for non-payment. The Court of Appeal characterized the appeal as frivolous, resulting in an inordinate delay of plaintiff’s case and an unnecessary expenditure of attorney fees, and on that basis imposed sanctions to be paid both to the plaintiff and to the court.

Every potential appeal should be evaluated before filing, for both substance and motive, by an attorney knowledgeable about the appellate process. And it appears that that evaluation should be particularly sensitive in two situations – where an attorney wants to pursue his own case on his own behalf, and where the challenged act is the denial of an anti-SLAPP motion. When both conditions are present, the red flags are flying, and a careful review could avoid an expensive appellate sanction.

Charles Kagay is of counsel with the Complex Appellate Litigation Group LLP, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the Complex Appellate Litigation Group LLP at www.calg.com. Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the Complex Appellate Litigation Group LLP.

This article originally appeared in the Daily Journal on September 19, 2022.

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