D.O.A.

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So begins the recent decision in Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th 1353.  There's no mistaking the reproach in those words, or these:  "After [the oral argument] calendar notice was sent . . . appellate counsel . . . asked that we dismiss the appeal.  We will deny the request.  We will affirm the judgment and refer the matter to the California State Bar for consideration of discipline."

As appellate counsel, we work hard at scrutinizing cases for that single strand that can turn trial court loss into victory.  We apply the forensic skills and appellate knowledge we've accumulated to the record.  And if we find the right thread and pull it, sometimes our efforts are rewarded with a reversal.  But what sets that kind of effort apart from the appeal in Brown?  

Brown provides some insights into a valid appeal and the line between vigorous advocacy and sanctionable conduct.  Although there are various terms of art involved, perhaps one way to describe the irreducible minimum is a "viable issue."  If you have that, then whether you win or lose, your appeal should fall on the proper side of the line.

In Brown, the plaintiff was in default of her mortgage.  She filed suit to prevent foreclosure proceedings from going forward.  The trial court issued a preliminary injunction contingent upon the plaintiff depositing $1,700 per month into a trust account in lieu of an injunction bond.  She failed to make any of the payments.

The bank moved ex parte to dissolve the injunction and go forward with the trustee's sale.  The plaintiff's counsel appeared at the ex parte hearing, demanding that a full hearing date be set.   The trial court agreed and set a date.  The plaintiff's counsel filed opposition papers that did not address his client's failure to make the trust payments.  The hearing date arrived and the trial court ultimately dissolved the injunction.

Later that same day, the plaintiff filed a notice of appeal.  The same lawyer that represented the plaintiff at trial also represented her on appeal.  On its face, the appeal might be seen as clever strategy because the notice of appeal immediately stayed the trial court's order and stopped the trustee's sale.  But what was the asserted reversible error?

"In the opening brief appellant's counsel feebly argues that [the Bank] failed to make a good cause showing for ex parte relief and that her due process rights were violated."  But as was obvious to the appellate court, relief was not granted ex parte -- the matter was set for hearing and briefed -- then the motion was decided.  The plaintiff ignored those realities, pointing to the words "ex parte" on the trial court's order dissolving the injunction.  "This is a 'form over substance' argument," the Court of Appeal responded.  And then it went even further.

"The appellate court takes a dim view of a frivolous appeal.  Here, with the misguided help of counsel, the trustee's sale was delayed for over two years.  Use of the appellate process solely for delay is an abuse of the appellate process.  We give appellant the benefit of the doubt.  But we have no doubt about appellate counsel's decision to bring and maintain this appeal . . . No viable issue is raised on appeal and it is frivolous as a matter of law."  And then, "the clerk of this court is ordered to send a copy of this opinion to the California State Bar for consideration of discipline."

So what are the lessons here?  An appeal will be deemed "dilatory" if the appeal was prosecuted for an improper motive such as harassment or delay.  It will be deemed "frivolous" if the appeal indisputably has no merit.  Either finding can result in sanctions.  The dilatory test focuses on the subjective good faith of appellant and counsel.  (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.)  The frivolousness test is objective and asks whether a reasonable attorney would agree the appeal is totally and completely devoid of merit.  (Ibid.

What about zealous advocacy?  "An appeal, though unsuccessful, should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law."  (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422, internal quotations and citations omitted; see also, Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 989 ["a party should not be penalized by sanctions simply for asserting a losing argument"].) 

So when it comes to avoiding appellate sanctions for a frivolous appeal, apparently there are losing arguments and there are loser arguments.  Passions run high, much is at stake, and taking the appeal can seem like the next step no matter what.  But Brown appears to suggest a useful guideline, stating that the bare essence is a “viable issue.”  Absent that, then the appeal could fall on the sanctions side of the line.

To verify the wisdom of an appeal, consider retaining appellate counsel to conduct preliminary review of the issues and record.  Bringing appellate counsel on can mean fresh eyes for issue spotting, ensure that the notice of appeal is timely filed and the record properly designated.  This is particularly critical when post-trial motions can extend the time to appeal (if properly made) and create the need to take protective cross-appeals if the post-trial motions are granted.  As Brown reveals, such due diligence can be the difference between an appeal with a pulse, and one deemed “dead on arrival at the appellate courthouse.”