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Attorney Sanctioned $22,000 for Frivolous Motion, Narrowly Avoids More Sanctions for Frivolous Appeal

Tim Kowal     November 5, 2020

In fairness, I have seen much worse arguments than this.

On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, but the case is stayed and sent to arbitration at AAA. Through a clerical error, AAA doesn't acknowledge receipt of defendants' arbitration fees, and administratively closes the case. AAA then acknowledges the error and asks plaintiff if she wants to reopen the case.

Instead of responding in the affirmative (or at all), attorney rushes back to court and files a motion to lift the stay and resume litigation. The court denies it. Defendants file a motion to sanction attorney, arguing the motion to lift the stay was frivolous and in bad faith, and the court grants that, in the amount of $22,159.50.

Attorney appeals. Incidentally, client appeals, too, but she has no standing regarding the sanctions award against attorney, and the order refusing to lift the stay pending arbitration is not an appealable order because it is not a final judgment.

As mentioned, I've seen attorneys make worse arguments than this. But on appeal, attorney's arguments did not get a lot better. He argued the trial court lack jurisdiction to sanction him in a matter subject to arbitration. (Recall: attorney had filed his frivolous motion in the trial court.) Attorney argued he didn't know AirBnB was paying its employee-defendants' fees, and that attorney cannot be made to pay that because the defendants did not "incur" them. And attorney argued defendants didn't really need to file an opposition, and didn't "prevail" when his motion was denied. And more like this.

The First Appellate District states that attorney's appeal "comes right up to the line of sanctionable conduct" by "forcing us to examine [his] myriad arguments before rejecting them as having no factual or relevant legal support." The Court notes that arguments such as these cause a "'useless diversion of this court's attention' from '[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.'"

But the Court mercifully refrains from sanctioning attorney here, as appellate sanctions "should be used most sparingly to deter only the most egregious conduct," citing Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.

And that, attorney takes away in a published decision.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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