Don't omit important facts from your appellate briefs!

In one of the largest sanction awards by the appellate court, the appellant's attorneys were ordered to pay the respondent the sum of $52,727.56.  So, how did that happen?

In Kleveland v. Siegel & Wolensky (2013) 215 Cal.App.4th 534, the appellate court was faced with a third appeal in the same case.  The first appeal was from the denial of Scott's petition for breach of trust and removal of a trustee.  The trial court found Scott's petition was pursued in "bad faith" and for an "improper purpose."  In the second appeal, Scott challenged the lower court's order approving a petition for approval of accounting and the proposed plan of distribution.  One of Scott's attorneys also appealed an award of sanctions against him.  

The third appeal involved a malicious prosecution lawsuit filed by the trustee against Scott and his attorneys arising out of Scott's petition for breach of trust and removal of trustee.  The attorneys who represented Scott filed an anti-SLAPP motion, which was denied, and the lower court awarded the trustee $20,055 in fees and costs.  They appealed that order.  

What is important here is that the Court of Appeal sharply criticized appellants for the failure to provide a "summary of significant facts limited to matters in the record."  (Cal. Rules of Court, rule 8.204(2)(C).)  Oddly enough, appellants omitted what the Court considered to be the most important fact:  the trial court found Scott's petition was filed in bad faith and for an improper purpose.  The Court stated, "This is all the more preposterous because this finding of bad faith was appealed and affirmed by this court."  (Id. at p. 557.)  Wow, one major OOPS!

 The Court also criticized appellants' use of "facts" and "evidence" beyond the petition "in an attempt to manufacture a reasonable justification for filing and pursuing the petition."  (Id. at p. 539.)   As such, the attorneys misrepresented the record and ignored case law without explanation.   The appellants were selective in presenting the "facts" from the record and they also asked the appellate court to consider "evidence" that was explicitly rejected by the trial court.  The court continued, "Attorney Defendants attempt to reargue factual issues that have long been decided (and affirmed on appeal) while ignoring the relevant statutes and case law.  At times, it is clear that Attorney Defendants brazenly misrepresented the record and/or obscured facts."  (Id. at p. 557.)

It further found the third appeal to be "patently frivolous" because there was no law or facts to support their arguments.  As a consequence, it ordered sanctions in the amount of $8,500 - as the cost of processing an appeal - to be paid to the clerk, and $52,727.56 as sanctions payable to the trustee.  (Id. at p. 539.)

Of particular note is the following language:

"It also should be obvious there is a great need to deter conduct of this nature in the future.  This is especially true considering the number of attorneys involved in this appeal . . . We find it incredulous that seven pairs of legally trained eyes failed to see that the opening brief distorted the record and ignored the trial court's findings to such an extent that it is appropriately characterized as nothing short of a farce.  . . . We cannot sit idly by when several members of the bar fail to live up to the standards of the profession."  (Id. at p. 559.)

The Court stressed the importance of being able to rely on the honesty of attorneys, who are called "officers of the court."  While it may be a honorary term, it is still one that should be respected, most of all by attorneys.  As I have often stressed, credibility is everything, and no case, client or amount of money is worth endangering your reputation with the court.