Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Appellate Sanctions

“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent Cases

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases and news involving:

• An appeal that became moot due to pending litigation
• One federal judge issues a nationwide injunction against the CDC mask mandate, and another federal judge sounds off against nationwide injunctions
• Law firm sued for alleged Unruh Act abuse
• SLAPP suits and... SMACC suits?

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'Gamesmanship' Throughout Litigation May Raise Risk of Sanctions on Appeal

CEB published my short article on McQueen v. Huang (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606, a decision that imposed appellate sanctions on a litigant based on “gamesmanship” in the trial court. Not in the appellate court — the appellate sanctions were for trial court conduct.

The article is available at CEB’s website here: https://lnkd.in/g8pchRjG

My original post on McQueen is here: https://lnkd.in/gphRKVgC

As I mentioned before, the appellate arguments here were not sanctionable by themselves. What earned the appellant and counsel sanctions was their conduct in the trial court. Beware engaging in litigation practice that the court might perceive as “gamesmanship.” If you ever need relief in the Court of Appeal, you could find yourself sanctioned.

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Beware Challenging Arbitration Award: $38K Frivolous Appeal Sanctions Because Mere Arbitrator Error Is Not Reversible

Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in *McQueen v. Huang* (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606. The court sanctioned the appellant and his counsel over $38,000 for challenging an arbitrator’s award for legal error. Mere legal error is not a ground to overturn an arbitration award, so the appeal was doomed from the start. The court also pointed to appellant’s “gamesmanship” in the trial court.

The Upshot: Appellate sanctions usually are a high hurdle, and on the quality of the appellate arguments alone, I would not have rated sanctions remotely likely. The lesson of this opinion, then, is that the appellant’s conduct in the trial court can play an outsized role in the imposition of appellate sanctions. If the appellant’s conduct in the trial court creates an impression that the unsuccessful appeal is part of a pattern of driving up the expense of the litigation, then this can be a grounds for sanctions almost by itself.

Question for #AppellateLinkedIn: Does this opinion suggest that conduct that might not warrant sanctions in the trial court could warrant sanctions in the appellate court? And if so, is this a problem?

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Don’t Overlook the Civil Case Information Statement: Attorney Sanctioned for Incomplete CCIS

After you file the notice of appeal and the critical designation of record in the trial court, you have to file the Civil Case Information Statement in the Court of Appeal. The appellant’s attorney was sanctioned for filing an incomplete CCIS in *[Kuenzinger v. Doctors Med. Ctr. Modesto](https://casetext.com/case/kuenzinger-v-doctors-med-ctr-modesto#pa74)* (D5, Dec. 22, 2021 no. F082272) 2021 WL 6064094 (nonpub. opn.) It was incomplete because the attorney failed to check one of the boxes.

This is an unusual case because the same attorney had acknowledged another very similar appeal just last year was entitled to calendar preference. So the Court of Appeal concluded the attorney knew this appeal was entitled to preference, too, and so the failure to designate it as such was sanctionable.

The court imposed a $500 sanction, payable “personally” by the attorneys.

Still, take the Civil Case Information Statement seriously. Because the court will.

In the article, I include a list of the types of appeals subject to mandatory calendar preference.

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"Frivolous"​ to Argue Appeal Prevents the Trial Court from Ruling on a Motion for Attorneys'​ Fees

You may think this is obvious, but I continue to see attorneys get tripped up by this question: When an appeal from a judgment is taken, which generally stays matters in the trial court (i.e., matters that are are "embraced therein or affected thereby" (CCP § 916)), does the appeal prevent the trial court from awarding the prevailing party's attorneys' fees?

Answer: No. In fact, the First District Court of Appeal recently called this a frivolous argument in Korchemny v. Piterman (D1d2 Aug. 27, 2021) 2021 WL 3828228, no. A155483 (nonpub. opn.).

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

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No Safe Spaces: Arbitrator Not Disqualified Due to Claimed Political Bias; Appellant Sanctioned $56,000 for Frivolous Appeal

Appellant and attorney sanctioned a blistering $56,000 for their frivolous appeal. (Malek Media Group LLC v. AXGC Corp. (D2d3 Dec. 16, 2020) No. B299743.) After a business dispute was decided against […]

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No Safe Harbor Required to Sanction Frivolous Anti-SLAPP Motion, Fourth District Holds

Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult […]

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Appeal Held Not Frivolous, But Lawyer Argued It Frivolously

The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as […]

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Attorney Sanctioned $22,000 for Frivolous Motion, Narrowly Avoids More Sanctions for Frivolous Appeal

In fairness, I have seen much worse arguments than this. On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, […]

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