 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gilbert v. City of Salinas1/29/2002
ious behavior, and to deter abuse of the court system and the appellate process. [Citations.] On the other hand, sanctions should not be awarded simply because an appeal is without merit. Indiscriminate application of section 907 could deter attorneys from vigorously representing their clients, and deter parties from pursuing legitimate appeals." (Computer Prepared Accounts, Inc. v. Katz (1991) 235 Cal.App.3d 428, 434.)
We do not condone plaintiff's failure to describe the stipulation to this court in his opening brief. The stipulation was controlling and plaintiff should have brought it to our attention at the outset. However, plaintiff does make an oblique reference to it in his opening brief when he argues that subject matter jurisdiction cannot be conferred by stipulation. If subject matter jurisdiction had been the issue, the stipulation would not have been relevant. Plaintiff explains in his reply that is why he omitted mention of it initially, and we have no reason to reject his explanation.
We do find that plaintiff misrepresented that the trial court had ruled "with finality" on the evidentiary issue, and that the argument, made without any record of evidence that was excluded, was objectively frivolous. Any reasonable attorney would agree that an appeal of an issue without a record is utterly meritless. However, we do not consider that this issue was such a substantial part of the appeal that it warrants sanctions on its own. (See, Maple Properties v. Harris (1984) 158 Cal.App.3d 997.)
The final question raised by the appeal comes perilously close to being frivolous. But " `the borderline between a frivolous appeal and one which simply has no merit is vague indeed . . . . The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used.' [Citation.]" (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) We use the power to impose sanctions for a frivolous appeal "sparingly to deter only the most egregious conduct" (id. at p. 651). We cannot say that plaintiff's position on the jury's verdict was so completely untenable or argued in such bad faith that it presents to us the clearest case for sanctions.
Defendant's motion for sanctions is denied.
Disposition
The judgment is affirmed. Defendant shall be entitled to its costs on appeal.
WE CONCUR:
Elia, J.
Mihara, J.
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|