August 17, 2006

Ask The Lawyer

Attorney may be fined for filing frivolous appeal

This week's question:
I have been to three attorneys to take my appeal, but no one is interested even though I am willing to pay for it. I feel I really got the short end of things at trial and the judge was very unfair. One attorney told me that she could even be sanctioned or fined for filing a "frivolous appeal." Is this possible? Isn't this a free country? Can't I take my case to the Supreme Court if I want?

Kevin K.
Almaden Valley

Dear Kevin:
We can all be thankful that this is a free country, but there are certain rules that we all need to follow. And one of those rules is that you cannot file a "frivolous appeal."

A good example of what can happen occurred in the case of Johnson v. Lewis (2004) 120 Cal.App.4th443. In that case, Polly Johnson filed suit for false arrest against Scott Lewis, an arson investigator, for her commission of traffic offenses. Polly also named in her suit the Sacramento County Fire Protection District and the Sacramento County Sheriff's Department.

The defendants in the civil suit answered the suit and then filed a motion for summary judgment, in essence saying that Polly's suit had no merit and should be dismissed. The trial judge agreed with the defendants, granted their Motion for Summary Judgment, and ruled that Polly had no grounds for a suit.

Polly and her attorney were obviously unhappy that Polly's suit was tossed out of court. They thereupon filed an appeal with the Third Appellate District. After the filing of the appeal, the Court of Appeal put Polly and her attorney on notice that the Court was considering sanctions (like a fine) to be imposed against Polly and her attorney for filing a frivolous appeal.

Sensing that something might be up, Polly and her attorney agreed to pay sanctions of $2,000 to Sacramento County, $2,500 to Scott and $2,500 to the Sacramento County Fire Protection District. However, absent from the list was the Court of Appeal itself.

After hearing, the Court of Appeal sanctioned or fined Polly's attorney (who had agreed to be solely responsible) $2,500 to be paid to the Court of Appeal for prosecuting a frivolous appeal. The Court said in part "The moral of this story is that there is a price to pay for plaintiff's insolence."

The Court of Appeal also stated that: "Time and again, public confidence in our legal system is tested when the general public wonders, and mutters, about why courts entertain ridiculous lawsuits. As will soon become apparent, this is such a case. Here, a person who admittedly violated the law, and posed a danger to others, unjustifiably accuses authorities of wrongfully arresting her. Fortunately, although our system of justice necessarily provides a forum for even the most ridiculous lawsuits, it also proves a vehicle, summary judgment, to relatively quickly rid the judicial system of unmeritorious cases."

Of note to many attorneys is the basic holding in the case to the effect that lawyers can be sanctioned or fined for filing a pointless appeal. And, not only that, in the Johnson v. Lewis case, the Court of Appeal ordered that a copy of its decision be sent to the State Bar under Business and Professions Code §6086.7(a)(3). We attorneys tend to take this issue rather seriously, since it pertains to possible action against our license to practice law.
Almaden Times readers can read the Johnson v. Lewis case by logging on to www.findlaw.com and/or entering the following link: http://caselaw.lp.findlaw.com/data2/californiastatecases/c043427.pdf.

You can also read the Business and Professions citation by going to www.findlaw.com. From the home page, select Cases & Codes. Then select US State laws (cases—codes—statutes & regulations) and California. Then head for California Codes, 29 in all. From that list select Business and Professions and in the index enter 6075—6088 and finally 6086.7(a)(3). Scroll down to the correct one and it will be in front of you.

So, Kevin, you can see that yes, your own attorney as well as you can be sanctioned or fined for filing a frivolous or pointless appeal. You may want to reconsider your plans and trust and follow your attorney's advice. Chances are that they are watching out for your best interests.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.