The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions.
The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's estate. One of the sisters had been removed as successor trustee, surcharged $3.7 million, and, an attorney at the time, disbarred for her conduct. The other sister was surcharged $1.1 million. Both continued to challenge their brothers and the independent fiduciary appointed as successor trustee.
(Anyone bothering to put their assets in a trust ought to give a thought to appointing an independent fiduciary as successor trustee. Otherwise, the trust might as well name the attorneys as beneficiaries.)
Appellants' Arguments Were Forfeited on Appeal:
Despite multiple prior trips to the Court of Appeal, the sisters failed to master some of the basics of appellate procedure.
First, they had not appeared at the bench trials that produced the judgments on appeal. A party's failure to appear and register a proper and timely objection to a ruling or proceeding in the trial court forfeits the issue on appeal. (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602 (Bell); Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 798 (Jordan) [party forfeited right to challenge action by trial court by failing to file briefs or appear for oral argument].) Stated differently, “[c]ontentions or theories raised for the first time on appeal are not entitled to consideration.” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528 [argument not raised below is forfeited on appeal]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [“[i]t must appear from the record that the issue argued on appeal was raised in the trial court” and “[i]f not, the issue is waived [or forfeited]”].)
Second, they failed to provide a statement of facts in their opening brief that fairly summarized the factual and procedural history in a neutral manner, supported by citations to the record. (Cal. Rules of Court, rule 8.204(a)(2)(C); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) “Because ‘[t]here is no duty on this court to search the record for evidence’ [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citation].” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) The opening brief must set forth all material evidence in the factual summary. (See Nwosu, supra, 122 Cal.App.4th at p. 1246; see also Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [requiring a party to include both favorable and unfavorable facts in the summary of facts].)
Here, the appellants' “Statement of Facts” was half-a-page in length, bereft of any citations to the record, and in no way summarized in a neutral manner the extensive factual and procedural history of the case. Thus, the court held the appellants forfeited their claims on appeal. (See Nwosu, at p. 1246.)
Third, the appellants raised their appellate arguments in improper "shotgun" fashion – that is, without reasoned argument or citation to legal authority. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [parties forfeit issues or claims on appeal by failing to include in their briefs argument and citation to authority].)
Fourth, many of the arguments the appellants raised had been decided already in prior appeals in the litigation, and thus barred on preclusion grounds.
Sanctions:
Meeting the procedural requirement for imposing appellate sanctions, the respondents filed a separate motion for sanctions. The court also separately notified the appellants it was considering imposing sanctions, and invited briefing from the appellants. (Cal. Rules of Court, rule 8.276; Code Civ. Proc., § 907. See People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 (Brar); In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty).)
The standards for determining whether an appeal is frivolous are set forth in Flaherty. An appeal may be found frivolous and attorney fees awarded when the appeal (1) “is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment,” or (2) “indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650.)
“In explaining these provisions, our Supreme Court has explained ‘an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.’ [Citation.]" (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534 (Kleveland).)
Here, the court had no problem finding the appeals lacked objective merit due to forfeiture and preclusion. Subjectively, the appellants sealed the deal when, instead of opposing the motion for sanctions, they filed their own motion for $4 million in sanctions against the respondents. This motion was not only untimely, but sought to relitigate yet another precluded issue.
Upshot: The only thing more likely than money to make people crazy is control. Had an independent fiduciary been appointed in the first place, much of this litigation and waste could have been avoided. And one of the sisters might have avoided becoming a former attorney. Appellate attorneys commonly work with independent fiduciaries and would be happy to connect you.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.
