A word of warning about frivolous appeals

In Foust v. San Jose Construction Co. (2011) 198 Cal.App.4th 181, the plaintiff employee appealed from a judgment that found the defendant employer had not breached a written employment contract.  The plaintiff argued the trial court erred in finding his contract was subsequently modified.  The plaintiff elected to proceed with the appeal from a three-day trial without a reporter's transcript and designated only a partial clerk's transcript.  The defendant brought a motion for sanctions.

The appellate court found that plaintiff's showing on appeal was insufficient and the appeal was frivolous.  Without a reporter's transcripts or the exhibits presented below, the appellate court could not undertake a meaningful review of plaintiff's argument on appeal.   It stated, "[Plaintiff] seems to want this court to reevaluate his credibility and reweigh the evidence presented below, but we can do neither."  (Id. at p. 188.)   The court also noted,  "Generally, appellants in ordinary civil appeals must provide a reporter's transcript at their own expense . . . In lieu of a reporter's transcript, an appellant may submit an agreed or settled statement."  (Id. at p. 186.)

The appellate court noted that plaintiff argued the evidence below was insufficient, but elected to proceed without a reporter's transcript.  The lower court's findings were inconsistent with plaintiff's argument, another reason the appellate court wanted to see the reporter's transcript and exhibits. (The trial court also noted that plaintiff's testimony was not credible, another nail in the coffin.)

The appellate court concluded that because plaintiff's appeal was without merit, this finding supported defendant's claim the appeal was filed for an improper purpose.  Defendant requested $8,743 in sanctions, representing the attorney's fees and costs in defending the appeal.  Not wanting to be left out, the appellate court also ordered that sanctions be paid directly to the clerk of the appellate court to compensate the state for the cost of processing the appeal.  The total award was $8,743 payable to the defendant and $6,000 payable to the court, for a total of $14,743, not to mention the attorney's fees and costs incurred by the plaintiff in pursuing this appeal.

Now it could be that the appeal was brought to harass defendant San Jose Construction, but it might also be that the plaintiff was either trying to save money rather than ordering the reporter's transcripts of the entire trial and by preparing an abbreviated clerk's transcript, or that the plaintiff was intentionally trying to hide the true facts from the court.  Clients will often want to reduce the high costs of obtaining a full reporter's transcript, but the appellate attorney provides an incomplete record at his or her peril.  This client has gained nothing and lost more money by pursuing an appeal without a meaningful record.