Kleveland V.Siegel & Wolensky LLP

Filed 4/17/13
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KENDALL KLEVELAND, D060906
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2010-00061990-
CU-MC-NC )
SIEGEL & WOLENSKY, LLP, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Timothy M.
Casserly, Judge. Affirmed.
Wingert Grebing Brubaker & Juskie, Charles R. Grebing, Deborah S. Dixon;
Hollins & Levy, Byron S. Hollins and Laura M. Levy for Defendants and Appellants.
Law Offices of Gregory S. Day, Gregory S. Day; Law Offices of Andrew A. Kurz
and Andrew A. Kurz for Plaintiff and Respondent.
This is the third appeal arising out of a probate matter involving Scott Leach's
(Scott)1 challenge of the trustee's (Kendall Kleveland (Kendall)) handling of a trust. In
the first appeal, we affirmed the trial court's final judgment resolving, among other
issues, Scott's petition for breach of trust and removal of Kendall as trustee.2 (See Leach
v. Kleveland (Mar. 24, 2010, D054532) [nonpub. opn.] (Leach v. Kleveland).) In that
opinion, we affirmed the judgment in its entirety, including the trial court's determination
that Scott filed and pursued the petition in "bad faith" and for "improper purpose."
In the second appeal, Scott challenged an order approving a petition for approval
of accounting and proposed plan of distribution of trust assets. As part of that appeal,
Boris Siegel filed a brief appealing the court's award of sanctions against him. We
affirmed both the order and the award of sanctions. (See Leach v. Kleveland (Nov. 20,
2012, D061371) [nonpub. opn.].)
This third appeal involves a malicious prosecution suit brought by Kendall against
Scott and his attorneys Siegel & Wolensky, LLP; Boris Siegel; Lewis M. Wolensky; and
Joshua J. Herndon (collectively Attorney Defendants) arising out of Scott's petition for
breach of trust and removal. Attorney Defendants moved to strike the malicious
prosecution suit under Code of Civil Procedure section 425.16,3 the anti-SLAPP
1 Because this matter involves people with the same last name, we refer to
individuals by their first name not as a sign of disrespect, but for clarity and convenience.
2 Boris Siegel and Siegel & Wolensky LLP represented Scott in his appeal.
3 Statutory references are to the Code of Civil Procedure unless otherwise specified.
2
(strategic lawsuit against public participation) statute. The court denied the motion and
awarded Kendall $20,055 in attorney fees and costs.
Attorney Defendants appeal, contending the court erred in finding Kendall
demonstrated a probability of success on the merits. They assert that at the time the
malicious prosecution suit was initiated, there was no final determination of the merits of
the underlying trust dispute. In addition, Attorney Defendants argue probable cause
existed in bringing the petition for breach of trust and removal and that petition was not
initiated with malice. Also, Attorney Defendants maintain that the court abused its
discretion by awarding attorney fees and costs because the court failed to include "factual
support with specific circumstances" to justify the award in the order.
We reject all of Attorney Defendants' contentions and affirm the order. In doing
so, we are troubled by Attorney Defendants utter failure to provide a "summary of
significant facts limited to matters in the record." (Cal. Rules of Court, rule
8.204(2)(C)).4 For example, Attorney Defendants' opening brief omits the most critical
fact of the entire appeal: the trial court found the petition for breach of trust and removal
was filed and pursued in bad faith and for an improper purpose.
We further are perturbed by Attorney Defendants use of "facts" and "evidence"
beyond the petition for breach of trust and removal in an attempt to manufacture a
reasonable justification for filing and pursuing the petition. In taking this tact, Attorney
Defendants have misrepresented the record and ignored established case law without
explanation or justification.
4 All references to any rule or rules are to the California Rules of Court.
3
This appeal shares the fate of the two previous appeals involving the underlying
probate matter. We affirm the order of the superior court. In addition, there must be
consequences for Attorney Defendants' tactics in this appeal, which are patently
frivolous. We find no support in law or fact for the arguments advanced by Attorney
Defendants here. In other words, this appeal indisputably has no merit. Because we
determine "any reasonable attorney would agree that the appeal is totally and completely
without merit," we deem sanctions are appropriate. (In re Marriage of Flaherty (1982)
31 Cal.3d 637, 650 (Flaherty).)5
FACTUAL AND PROCEDURAL BACKGROUND
Kendall brought a malicious prosecution suit against Attorney Defendants and
Scott.6 The malicious prosecution suit was based on a petition for breach of trust and
removal of Kendall as trustee of the trust. Scott, who was represented by Attorney
Defendants, filed the petition. After a bench trial involving Scott's petition as well as
other petitions, the court found against Scott and did not award him any of his requested
relief. The court determined Scott had "filed and pursued the Petition for Breach of Trust
5 On the eve of oral argument, Attorney Defendants, by way of a letter, attempted to
withdraw their appeal of the order denying their anti-SLAPP motion. They indicated
they wanted to focus at oral argument on the superior court's award of attorney fees and
the potential imposition of sanctions for this appeal. We suspect they abandoned a
portion of their appeal so they did not have to defend its merits. At oral argument,
however, Attorney Defendants repeatedly discussed the same contentions they proffered
in challenging the order denying their anti-SLAPP motion. We thus discuss the merits of
the anti-SLAPP motion because of Attorney Defendants' approach at oral argument and
such a discussion is necessary to determine the validity of the attorney fees awarded by
the superior court and the imposition of sanctions on appeal.
6 Scott is not a party in this appeal.
4
and Removal in bad faith and for an improper purpose." The court also awarded Kendall
attorney fees and costs under Probate Code section 15642, subdivision (d) as sanctions.
Scott appealed the final judgment in the trust litigation, and we affirmed the
judgment in its entirety. (See Leach v. Kleveland, supra, D054532.) To provide some
necessary background information, we cite liberally to that opinion.
The Trust Litigation7
Kendall was the "successor trustee of the Kleveland Family trust (the family trust).
Scott . . . , the son of deceased beneficiary Janis Kleveland (Janis), filed a petition in
probate court alleging Kendall breached his duties as trustee, seeking title to real property
that was the major asset of the trust, an accounting, and removal of Kendall as trustee.
Kendall brought a petition for directions, requesting a sale of the real property and
instructions as to how to properly distribute the assets of the trust." (Leach v. Kleveland,
supra, D054532.)
The Family Trust
"The family trust was established by Chester R. and Jeanne M. Kleveland in 1995.
Jeanne passed away in January 2003. Chester passed away in March 2003.
7 It is Attorney Defendants' description of the trust litigation where the opening brief
quickly loses its way. Attorney Defendants fail to provide us with an accurate
description of the trust litigation and what the court actually found. Alternatively, they
provide us with a selection of "facts" that fail to provide an accurate picture of the
litigation, especially Scott's petition for breach of trust and removal. This is all the more
disappointing because the trial court provided a clear, detailed statement of decision,
Scott appealed the trial court's final judgment, and we provided a 29-page unpublished
opinion affirming the judgment. Further, Boris Siegel and Siegel & Wolensky, LLP
represented Scott in that appeal. Attorney Defendants, however, ignore much of the
statement of decision and our opinion, almost to the point of pretending they do not exist.
5
"Chester and Jeanne had two children, Kendall and Janis. Chester and Jeanne's
trust provided that, upon their deaths, Kendall would become the successor trustee and
the trust estate was to be divided equally between Kendall and Janis. The trust
instrument granted Kendall, as successor trustee, discretion to divide the trust estate in
any manner he determined to be appropriate, so long as an equal division was
accomplished.
"At the time of Chester's death, the primary assets of the trust estate were (1) a
house located at 266 Rodney Avenue in Encinitas, California (the Rodney Property); and
(2) various bank accounts, life insurance policies and a $107,000 debt owed by Kendall
to his parents (the Liquid Assets). The Rodney Property was worth at least $400,000.
The Liquid Assets were worth approximately $280,000. In addition, the trust owned a
few items of lesser value, including personal property, furnishings inside the Rodney
Property, and a Ford Taurus.
"Following the death of their parents, Kendall and Janis discussed the manner in
which the trust estate should be divided. Janis wanted the Rodney Property. This was
acceptable to Kendall, in part because he and his wife already owned their home in
Ventura County, whereas Janis did not own a home. In their discussions, Kendall and
Janis developed a conceptual plan for the ultimate distribution of the trust assets. That
plan contemplated that Janis would receive the Rodney Property, the furnishings and
personal property (except for a few items of sentimental value to Kendall), Kendall
would receive the Liquid Assets, and Janis would make an equalization payment to
Kendall to effectuate an equal distribution of the trust estate. Based upon a valuation
6
prepared by an accountant and an attorney hired by Kendall to assist with the trust, the
expected amount of the equalization payment from Janis to Kendall was approximately
$65,000.
"At the time of their discussions, Janis was ill and not working. Janis told Kendall
that she was receiving government health care benefits. She also told Kendall that she
was concerned that if she received the Rodney Property, then she might no longer qualify
for those benefits, and that a distribution of real property to her might result in an
increase in property taxes. Janis asked for some time to investigate these issues before
any distributions were made.
"By the time of these discussions, Janis and some of her extended family and
friends had already moved into the Rodney Property. Kendall was willing to
accommodate Janis's wishes and concerns and did so by allowing Janis and her extended
family to remain in the Rodney Property while Janis had time to investigate the matters
of concern to her and the details of the anticipated equalization payment were being
established.
"Kendall believed that he and Janis had a common understanding as to the
expected final distribution of the trust assets. Kendall would receive the Liquid Assets
and Janis would receive the Rodney Property and would make an equalization payment
to Kendall. Kendall also believed that Janis would ultimately resolve her concerns about
her continuing entitlement to government benefits. He further believed they would
ultimately reach an agreement concerning the amount and timing of the equalization
payment to be made by Janis. Kendall allowed Janis and her extended family to continue
7
to live in the Rodney Property even though the overall trust distribution arrangement had
not been finalized.
"At this time Kendall also assumed personal control over the Liquid Assets in the
trust and used them to purchase items for his own personal use, including a new car and
condominium. He did so based upon his belief that a final distribution of the trust's assets
was imminent, and he would receive an amount at least equal to the Liquid Assets of the
trust.
"Kendall and Janis did not live in the same community and did not have a close
relationship. Unbeknownst to Kendall, Janis at some point determined not to resolve the
concerns about her receipt of distributions from the trust and determined not to commit to
any equalization payment to Kendall. Janis was content to remain in the Rodney
Property without receiving any formal distributions from the trust. Janis and her
extended family consulted with an attorney about the consequences of Janis not finalizing
the distribution from her parents' trust before her own expected death. After consulting
with an attorney, Janis took no further action of any significance to resolve the issues
pertaining to the distribution from the trust. She took no meaningful steps to resolve her
stated concerns about the effect of a trust distribution on her government benefits. She
also declined to agree to any equalization payment, even though Kendall, who was
unaware of the details of Janis's illness, offered Janis the option of paying the
equalization amount over a period of 30 years.
"Janis passed away from lung cancer in October 2005. By that time, Janis and
some of her extended family had been living in the Rodney Property for more than two
8
years without paying rent, taxes or insurance. None of Janis's family members informed
Kendall of Janis's passing. Kendall learned of Janis's death from a family friend, after
Janis's funeral.
"Scott is Janis's son He is the executor of her estate. There were no assets in
Janis's estate, other than Janis's interest in the family trust." (Leach v. Kleveland, supra,
at pp. 2-6.)
The Dispute
After Janis's death, "Scott took the position that Kendall was required to convey
the Rodney Property to him, as executor of Janis's estate, without any equalization
payment, even though the Rodney Property is worth more than the combined Liquid
Assets of the trust, including the Liquid Assets already spent by Kendall.
"Scott refused to discuss the trust estate with Kendall, instead insisting that he was
going to retain an attorney to 'contest the will.' Not long thereafter, counsel for Scott
began posing questions to Kendall's attorney about the details of an accounting which had
been prepared. Initially, there was some confusion because Scott had obtained a copy of
a draft accounting. However, from the outset Merwyn J. Miller, Kendall's trust attorney,
explained the accounting was only a draft, and the actual accounting was provided to
Scott's attorney well before any litigation commenced. Despite that, Scott's attorney
demanded that Kendall submit documentation concerning a series of loans which his
parents had made to him over a 20-year period, including a demand that Kendall 'provide
an itemization of each loan Kendall received from [his parents], and each payment he
made on those loans, noting whether the payment was principal or interest.' Further,
9
Scott demanded that Kendall provide 'documents, such as cancelled checks, that
substantiate any payments he has made.'
"Shortly thereafter, Scott filed a petition for breach of trust and removal of
successor trustee. In the petition, Scott alleged Kendall breached his duties as trustee by
failing to substantiate his accounting and that he owed more to the trust than was
disclosed in the accounting. He further requested that the court find Kendall opposed the
petition in bad faith and that he be awarded attorney fees and costs. Scott also requested
double damages, that Kendall be removed as trustee, and that Kendall not be paid his
attorney fees and costs incurred in defending the action.
"At or about the time he filed Scott's petition, Scott's counsel wrote to Kendall's
attorney and stated that if Kendall wished to avoid 'long and expensive' litigation, then he
would have to transfer the Rodney Property to Scott, without any equalization payment.
"Kendall filed a petition for instructions, seeking to compel the sale of the Rodney
Property so that the trust assets could be evenly divided. The petition also requested a
final accounting so that the trust assets could be evenly divided and distributed. The
petition sought an order requiring Scott to vacate the property and to pay back rent. Scott
requested he be paid his attorney fees incurred in the proceeding from the proceeds of the
sale of the property. In his response to Kendall's petition, Scott asserted that it was
brought in bad faith and that he should be paid his attorney fees and costs incurred in
defending the petition.
"Scott filed a second petition, alleging in more detail Kendall's alleged bad acts as
stated in the first petition but seeking to have the court compel Kendall to distribute the
10
Rodney Property to Scott. In his response to this petition, Kendall requested that Janis's
estate be charged with attorney fees and costs incurred in defending the litigation.
"A court trial was held, after which the court issued a detailed statement of
decision. Kendall prevailed on all petitions and was awarded his attorney fees and costs
from Scott's share of the estate based on the trial court's determination that Scott had filed
and prosecuted the petition for breach of trust and removal in bad faith.
"The court found that it 'would not be equitable to grant Scott any of the relief he
is requesting against Kendall. . . . [A]t all relevant times, Kendall acted reasonably and in
good faith in connection with all of the matters that are the subject of this proceeding. In
fact, Kendall went beyond his legal obligations to Janis, and took extraordinary measures
to accommodate Janis' needs and desires.' 'Kendall let Janis and her extended family live
in the Rodney Property for an extended period, when he had no obligation to do so. He
expressed a willingness to accommodate Janis' request to receive the Rodney Property in
the final distribution of trust assets, even though the Rodney Property clearly constituted
more than the one-half of the trust estate to which she was entitled. He delayed finalizing
trust distribution plans so that she could address her concerns about the potential impacts
of any distribution on her reported receipt of public benefits. He let her and her extended
family use the Ford Taurus, a trust asset. He let her and her extended family use the
furnishings and personal property in the Rodney Property. He included in the trust estate
certain life insurance proceeds to which he personally was entitled. He personally paid
certain trust expenses out of his own pocket.' Further, '[w]hile Kendall was making all of
these accommodations for Janis, Janis failed to follow through on the actions she had
11
indicated to Kendall she would undertake' and 'took no meaningful steps to facilitate the
ultimate distribution of trust assets.'
"The court did fault Kendall for his decision to take and spend liquid assets in the
trust prior to a final distribution of the trust assets to the beneficiaries, but found because
Kendall was a layperson and not a professional fiduciary such as a lawyer, it was 'an
innocent mistake, and one which the Court may properly excuse under Probate Code
[section] 16440[, subdivision] (b).' The court also found 'it would not be equitable to
allow Scott to leverage Kendall's innocent mistake into the unjust relief he is requesting
in this case.'
"The court found that Kendall adequately disclosed the fact that he had not paid
interest on a loan from his parents from between March 2003, when his father Chester
passed away, and October 2003, when a condominium that secured the loan was sold.
This was evidenced by a letter sent by Scott's attorney to Kendall's attorney before the
litigation was commenced.
"The court found that Kendall did not conceal any debt acknowledgements
reflecting cash disbursements from the trust. He provided them to his attorney and
accountant in a timely manner.
"The court found that in order for the estate to be equally divided, the Rodney
Property needed to be sold as Janis's estate had no assets from which to make an
equalization payment, the trust had incurred fees and expenses that needed to be paid, and
Kendall was entitled to an award of attorney fees from Janis's share of the trust estate.
The court further ordered Kendall to prepare an accounting to accomplish the final
12
distribution of the trust assets and reserved jurisdiction 'concerning the final accounting
of the trust estate and the proper distribution of trust assets.'
"The court found that Kendall's testimony at trial was credible, and Scott's was
not.
"The court further found that Scott's petition was filed and prosecuted in bad faith
and for an improper purpose, 'namely, to try to leverage Kendall into making an unequal
distribution of trust assets.' The court based this finding on (1) the demeanor of Scott
while testifying and the substance of his testimony; (2) the fact that the verified
allegations in the petition were to a significant degree unsupported by the evidence; (3)
Scott's testimony that Janis did not receive certain documents from Kendall's attorney; (4)
inconsistencies between Scott's testimony and documentary evidence; (5) the manner in
which Scott conducted the litigation even after Kendall produced persuasive evidence the
total amount of loans he received from his parents was $107,000; (6) a letter from Scott's
attorney that he was willing to withdraw the petition if Kendall transferred the property
without any equalization payment; and (7) Kendall's offer, prior to the litigation being
filed, to cooperate in 'any reasonable manner' in effectuating an accounting of the trust
assets and distribution of the estate, to which Scott responded by filing the petition.
"Based upon the court's finding the petition for removal of Kendall was filed in
bad faith, the court ordered, under Probate Code section 15642, subdivision (d) that Scott
pay Kendall's attorney fees incurred in defending the action from his portion of the
distribution of trust assets. The court reserved jurisdiction to determine the reasonable
amount of such fees.
13
"The court disregarded the testimony of Scott's personal property appraiser Joe
Paytas concerning the value of property at the Rodney Property as several valuable items
were missing from the residence at the time of his inspection. The court also rejected the
testimony of Scott's accountant expert Jeanne Goddard because she was not provided
with all relevant evidence by Scott and/or his counsel, including a letter sent by Kendall
to Janis before the litigation was instituted. That letter disclosed that Kendall had not
paid interest on the loan from his parents from March 2003, when Chester died, and
October 2003, when the loan was paid off. The court also found Goddard's opinions
were based on incorrect assumptions.
"The court denied Kendall's request for back rent, finding it would not be
equitable because Kendall had use of the liquid assets of the trust while Janis had use of
the Rodney Property. The court also ruled that because the court had ordered the
property sold, Scott and his extended family should vacate the property and, if they failed
to do so, Janis's share of the trust assets would be charged with the fair market rental
value of the property. The court denied Kendall's request for an order directing Scott's
extended family to vacate the property as they were not parties to the litigation." (Leach
v. Kleveland, supra, D054532.)
The Malicious Prosecution Suit and Anti-SLAPP Motion
In response to Kendall's complaint for malicious prosecution, Attorney Defendants
filed a special motion to strike the complaint under the anti-SLAPP statute. After
considering the evidence in support of and in opposition to the anti-SLAPP motion and
hearing oral argument, the court issued a minute order denying the motion.
14
The court found that the malicious prosecution complaint "arises from" the
exercise of free speech or petition rights as defined in section 425.16, subdivision (e). It
thus shifted the burden to Kendall to show a probability of success on the merits. In
finding Kendall had demonstrated such a probability, the court noted, in regard to the
trust litigation, that:
"The court sanctioned [Scott] for abusive discovery, ruling that the
manner in which [his] discovery was conducted was inappropriate
considering the nature of the dispute and amount in controversy.
[Citation.] Litigation ensued for two years and the action ended in a
trial lasting approximately two weeks. This court ruled that the
petition for breach of trust had been filed and prosecuted in bad faith
and for the improper purpose of forcing [Kendall] to convey the
trust's real property to [Scott] with[out] an equalization payment.
[Citation.] The court found that expensive and inconvenient
litigation was used to try to force an unequal division of the trust
assets. [Citation.] The court found that [Kendall] made the one
innocent mistake of spending the trust's liquid assets before the final
distribution of trust assets to its two beneficiaries, which a
professional fiduciary trained in the law would not have done.
[Citation.] The court, however, excused the innocent mistake under
Probate Code section 16440[, subd. (b)], and stated that the innocent
mistake could not be used to force the unjust relief sought.
[Citation.] The appellate court affirmed the trial court's findings,
including that the petition for removal was brought in bad faith.
[Citation.] The petitions filed by [Scott] terminated in favor of
[Kendall]. See Ray v. First Federal Bank (1998) 61 Cal.App.4th
315, 318 [Ray]. Plaintiff has demonstrated the requisite probability
of prevailing as he has stated and substantiated a legally sufficient
claim. See Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1123. As such, the motion must be denied."
The court also awarded Kendall attorney fees and costs as sanctions in the amount
of $20,055. In doing so, the court explained:
"Attorney Defendants' motion is frivolous and/or intended to harass
[Kendall]. As [Kendall] correctly points out, the motion can be
boiled down to two theories: (1) that the underlying action has not
15
been terminated in [Kendall's] favor because the trial court
instructed [Kendall] to submit further accounting and (2) that
because the trial court found a technical breach of fiduciary duty
caused by an excused innocent mistake, Attorney Defendants and
[Scott] were justified in filing the petition for breach of trust and
removal. [Citation.] As the appellate court affirmed the trial court
findings, [Scott's] petitions in the underlying action were terminated
in [Kendall's] favor. See Ray, [supra,] 61 Cal.App.4th at [p.] 318.
Also, as adequately stated in the statement of decision in the
underlying case, the innocent mistake of a layperson trustee cannot
be used to leverage the unjust relief sought. [Citation.] In terms of
this lawsuit, the technical violation also cannot be used as
justification for a motion clearly lacking merit and filed to harass
and/or cause unnecessary delay."
Attorney Defendants timely appealed the superior court's order.
DISCUSSION
I
BURDEN OF PROOF AND STANDARD OF REVIEW
A special motion to strike under section 425.16 allows a defendant to gain early
dismissal of a lawsuit that qualifies as a SLAPP. (§ 425.16, subd. (b)(1).) A two-step
analysis is required when the superior court is requested to rule on a special motion to
strike under the anti-SLAPP statutory framework. (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) The court is first to determine if the
lawsuit falls within the scope of the statute, as arising from protected activity (generally,
petitioning or free speech). (Ibid., § 425.16, subd. (b)(1).) The defendant bears the
burden of demonstrating that a cause of action in the lawsuit is one "arising from"
protected activity. (§ 425.16, subd. (b)(1).)
16
The second prong of the statute deals with whether the plaintiff has "demonstrated
a probability of prevailing on the claim." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88
(Navellier).) Under section 425.16, subdivision (b)(2), the trial court in making these
determinations considers "the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based." (Ibid.) For purposes of an anti-
SLAPP motion, "[t]he court considers the pleadings and evidence submitted by both
sides, but does not weigh credibility or compare the weight of the evidence. Rather, the
court's responsibility is to accept as true the evidence favorable to the plaintiff . . . ."
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) A plaintiff
"need only establish that his or her claim has 'minimal merit' [citation] to avoid being
stricken as a SLAPP." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
291.)
We review de novo the trial court's rulings on an anti-SLAPP motion. (Thomas v.
Quintero (2005) 126 Cal.App.4th 635, 645.)
II
PROBABILITY OF SUCCESS ON THE MERITS
A malicious prosecution suit is subject to the anti-SLAPP statute. (Daniels v.
Robbins (2010) 182 Cal.App.4th 204, 215.) Here, this general rule is not disputed. Thus,
we focus on Attorney Defendants' challenge to the court's finding that Kendall had
demonstrated a reasonable probability of success on the merits.
In opposing the anti-SLAPP motion, Kendall had the burden to present evidence
sufficient to demonstrate a probability that he would prevail on his malicious prosecution
17
claim against Attorney Defendants. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th
at p. 89; Equilon, supra, 29 Cal.4th at pp. 58-59.) " '[T]he plaintiff "must demonstrate
that the complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff
is credited." ' [Citations.]" (Navellier, supra, 29 Cal.4th at pp. 88-89.)
To establish a claim for malicious prosecution against Attorney Defendants,
Kendall must plead and prove that the prior action " '(1) was commenced by or at the
direction of the defendant and was pursued to a legal termination in [Kendall's] favor
[citations]; (2) was brought without probable cause [citations]; and (3) was initiated with
malice [citations].' [Citation.]" (Crowley v. Katleman (1994) 8 Cal.4th 666, 676
(Crowley).)
Here, Attorney Defendants claim there was no final determination on the merits of
the "trust dispute." They also assert Kendall failed to show the petition for breach of trust
and removal lacked probable cause and was initiated with malice.8 We reject these
contentions. Further, we determine none of Attorney Defendants' arguments can be made
based on the record or any existing authority.
8 Again, Attorney Defendants essentially abandoned their challenge of the superior
court's finding that Kendall had demonstrated a reasonable probability of success on the
merits. Nevertheless, during oral argument, Attorney Defendants frequently argued that
they had probable cause to bring the anti-SLAPP motion and Kendall could not prove
malice. Attorney Defendants also insisted that there was no final determination of the
merits when they appealed this matter. Although Attorney Defendants attempted to
frame these arguments as only going to the attorney fees and sanctions issues, the
arguments clearly relate to Kendall's ability to demonstrate a reasonable probability of
success on the merits.
18
A. Final Determination on the Merits
The trust litigation began when Scott filed petitions for breach of trust and
removal and distribution of the Rodney Property. It is undisputed that the court denied
both of these petitions and ruled that Scott was "entitled to no relief in connection with"
the petitions. Scott appealed the final judgment, which we affirmed. (See Leach v.
Kleveland, supra, D054532.) Based on the petition for breach of trust and removal,
Kendall filed the malicious prosecution suit.
Attorney Defendants ignore the trial court's statement of decision, final judgment,
and our opinion affirming the judgment and contend that there has been no determination
on the merits because Kendall has not filed a final accounting and there has been no
finding or approval as to the ultimate distribution of the trust assets. Put differently,
Attorney Defendants now argue it does not matter that the petition for breach of trust and
removal has been resolved in Kendall's favor because a dispute under the family trust
remains as the distribution under the trust has not been finalized.9
Not surprisingly, Attorney Defendants cite no authority for their position. Nor
could they. A malicious prosecution action arises out of a "prior action" that was
commenced by or at the direction of the defendant and was pursued to a legal termination
in the plaintiff's favor. (Crowley, supra, 8 Cal.4th at p. 676.) The action here is Scott's
petition for breach of trust and removal. There can be no dispute that this matter was
terminated in Kendall's favor as the court ruled in favor of Kendall after trial and we
9 Since the filing of this appeal, the probate court has approved the final distribution
of the trust assets. As we discuss above, Scott appealed the order of approval, which we
affirmed in its entirety. (See Leach v. Kleveland, supra, D061371.)
19
affirmed the final judgment. (See Ray, supra, 61 Cal.App.4th at pp. 318-319 ["[T]he
appellate decision affirming . . . judgment . . . both marked and constituted favorable
termination of that case . . . . Not only was the decision 'favorable,' . . . it also
accomplished the final termination of the case."].)
Further, the superior court specifically cited Ray, supra, 61 Cal.App.4th 315 in its
minute order denying Attorney Defendants' anti-SLAPP motion. Attorney Defendants,
however, do not attempt to explain why Ray is distinguishable from the instant matter.
Instead, without authority, they attempt to recharacterize the "prior action" from Scott's
breach of trust and removal petition to the final distribution of trust assets. This argument
is demonstrably frivolous in light of Ray, Attorney Defendants' lack of any authority to
support their position, and the record.
B. Probable Cause
An action is deemed to have been pursued without probable cause if it was not
legally tenable when viewed in an objective manner as of the time the action was initiated
or while it was being prosecuted. The court must "determine whether, on the basis of the
facts known to the defendant, the institution of the prior action was legally tenable."
(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 (Sheldon Appel).) "The
resolution of that question of law calls for the application of an objective standard to the
facts on which the defendant acted. [Citation.]" (Ibid.; italics omitted.) The test the
court is to apply is whether "any reasonable attorney would have thought the claim
tenable . . . ." (Id. at p. 886.) The tort of malicious prosecution also includes the act of
"continuing to prosecute a lawsuit discovered to lack probable cause." (Zamos v. Stroud
20
(2004) 32 Cal.4th 958, 973.) In determining the probable cause issue, the same standard
applies "to the continuation as to the initiation of a suit." (Id. at p. 970.)
"In analyzing the issue of probable cause in a malicious prosecution context, the
trial court must consider both the factual circumstances established by the evidence and
the legal theory upon which relief is sought. A litigant will lack probable cause for his
action either if he relies upon facts which he has no reasonable cause to believe to be true,
or if he seeks recovery upon a legal theory which is untenable under the facts known to
him." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165 (Sangster).)
In determining whether the prior action was legally tenable, i.e., whether the
action was supported by probable cause, the court is to construe the allegations of the
underlying complaint liberally, in a light most favorable to the malicious prosecution
defendant. (Sangster, supra, 68 Cal.App.4th at p. 165.) Here, even applying this liberal
reading to Scott's petition, we are satisfied that Kendall easily demonstrated a lack of
probable cause to bring the petition.
We have the benefit of a thoroughly reasoned and well-written statement of
decision to guide us in evaluating the existence of probable cause. In regard to Scott's
petition for breach of trust and removal, the court found:
"Scott filed and pursued his Petition for Breach of Trust and
Removal in bad faith and for an improper purpose. After Janis'
death, Scott felt that he was entitled to remain in the Rodney
Property and was entitled to receive title to the property. But the
Rodney Property is clearly worth more than the Liquid Assets and
the distribution of the Rodney Property to Scott would clearly result
in an unequal distribution of trust assets, in direct conflict with the
terms of the trust. There is no credible evidence of any assets in
Janis' estate, so Janis' estate cannot be expected to be able to make
21
an equalization payment to effectuate an equal division of trust
assets. Scott thought he could use the expense and inconvenience of
litigation to leverage Kendall into conveying the Rodney Property to
Scott as part of an unequal distribution of the trust assets. Scott filed
and pursued the Petition for Breach of Trust and Removal for this
improper purpose."
The court thus found that Scott brought the petition for the purpose of forcing an unequal
distribution of the trust assets: a goal that was not warranted in equity or law. Further,
the record is clear that Attorney Defendants were on board with this strategy. Boris
Siegel sent Kendall's attorney a letter dated September 26, 2006, offering to dismiss the
petition "before our clients embark down the long and expensive road of litigation" if
Kendall transferred the Rodney Property to Scott "free and clear of any indebtedness to
your client." In addition, the court found that Scott, through Attorney Defendants, made
unreasonable discovery demands on Kendall in regard to the alleged $107,000 owed.
The court also noted that Scott's counsel was invited to contact Kendall's counsel "so that
[they] might discuss a reasonable and efficient manner in which to proceed to a final
resolution and distribution of the estate[,]" but instead of making any "meaningful effort
to determine an equal distribution of the trust assets, Scott filed the Petition for Breach of
Trust and Removal."
In arguing that probable cause existed to file the petition, Attorney Defendants
cavalierly ignore the relevant portions of the statement of decision or the September 26
letter. Indeed, they completely fail to mention either in their opening brief or provide an
explanation for their omission in their reply brief. Attorney Defendants either disregard
22
the existence of the court's key finding of bad faith and the September 26th letter or
assume we will not read the record.
Attorney Defendants place great weight on the court's finding that Kendall, as
trustee of the family trust, committed an innocent breach of trust. They extrapolate from
this finding that probable cause must have existed for filing the petition. We are not
persuaded.
The innocent breach found by the court stemmed from Kendall's use of the Liquid
Assets before final distribution of the trust assets to the two beneficiaries. The court
noted that a professional fiduciary would not have made this mistake, but found that
Kendall spent the Liquid Assets "at a time he believed he and Janis had a common
understanding about the likely ultimate distribution of the trust estate but before the
ultimate distribution had actually been finalized and made." This innocent breach,
however, bears no relationship to any of the allegations in Scott's petition for breach of
trust and removal.
The allegations in the petition for breach of trust and removal focused on whether
Kendall's claim that he owed the family trust $107,000 was accurate. It mentioned
nothing about Kendall's use of the Liquid Assets prior to the final distribution of trust
assets. Moreover, the court found that Kendall had proved that the $107,000 amount was
accurate and noted that the subject promissory note proving the amount of indebtedness
was provided to Scott's attorneys prior to the filing of the petition. The court also found
the $107,000 figure supported by Kendall's interrogatory responses, Kendall's trial
testimony, certain deposition testimony, Kendall's tax returns, and Chester and Jeanne
23
Kleveland's tax returns. Moreover, the court noted Scott's lack of any evidence to
support his claim that Kendall owed more than the $107,000. Put differently, the
evidence at trial, as well as documents and discovery responses available to Attorney
Defendants prior to trial and, in some instances, prior to filing the petition,10 all showed
Scott lacked probable cause to proceed with the petition.11
We are also troubled by Attorney Defendants' contention that they had probable
cause to file the petition for breach of trust and removal based on a dispute of the
equalization amount Janis would have owed the family trust if she took title to the
Rodney Property. Attorney Defendants argue Kendall's stated equalization amount of
$65,000 was incorrect because Scott's "accounting expert" testified that the most Janis
would be required to pay the family trust if she took title to the Rodney Property was
about $26,000. However, Attorney Defendants fail to inform us that the trial court gave
"little or no weight" to the testimony of this expert, noting Scott and Attorney Defendants
failed to provide her with all relevant information. Attorney Defendants' argument in
10 The fact that Scott and Attorney Defendants possessed much of the information
prior to trial, even if they obtained it after filing the petition, further supports Kendall's
malicious prosecution suit and undermines the legitimacy of Attorney Defendants' anti-
SLAPP motion. (See Zamos v. Stroud, supra, 32 Cal.4th at p. 973 ["continuing to
prosecute a lawsuit discovered to lack probable cause" may also support a claim of
malicious prosecution].)
11 The gist of the trial court's findings on Scott's petition for breach of trust and
removal is that it was completely meritless. As such, we are not persuaded by Attorney
Defendants' assertion that Scott's claims were "arguably correct, even if it [was]
extremely unlikely they [would] win[,]" and therefore, probable cause existed. (See
Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 742.) The trial court clearly
did not find any of Scott's claims "arguably correct."
24
reliance on the accounting expert therefore is nothing short of an unabashed
misrepresentation of the record.
We also are unimpressed with Attorney Defendants' contention that probable
cause existed to "discover and adjudicate" the trust division. The court explicitly found
that Scott filed his petition for breach of trust and removal to secure an inequitable
settlement, unsupported by law or equity. The court stated, "Instead of making any
meaningful effort to determine an equal distribution of the trust assets, Scott filed the
Petition for Breach of Trust and Removal."
In summary, we struggle to contemplate a stronger example of a plaintiff showing
a lack of probable cause than the record before us. In appealing this issue, Attorney
Defendants misrepresented the record, ignored both clear authority and the trial court's
findings, and failed to provide a single cogent argument. Not only was Attorney
Defendants' position without merit, it clearly was frivolous.
C. Malice
The malice element of the malicious prosecution tort goes to the defendant's
subjective intent in initiating the prior action. (Sheldon Appel, supra, 47 Cal.3d at
p. 874.) For purposes of a malicious prosecution claim, malice "is not limited to actual
hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are
instituted primarily for an improper purpose." (Sierra Club Foundation v. Graham
(1999) 72 Cal.App.4th 1135, 1157.) "Suits with the hallmark of an improper purpose"
include, but are not necessarily limited to, "those in which: ' ". . . (1) the person initiating
them does not believe that his claim may be held valid; (2) the proceedings are begun
25
primarily because of hostility or ill will; (3) the proceedings are initiated solely for the
purpose of depriving the person against whom they are initiated of a beneficial use of his
property; (4) the proceedings are initiated for the purpose of forcing a settlement which
has no relation to the merits of the claim." ' " (Id. at p. 1157.)
Here, Kendall easily demonstrated malice. The trial court found that the petition
for breach of trust and removal was filed with the purpose of forcing a settlement which
has no relation to the merits of the claim. Moreover, the trial court found Scott had filed
and pursued the petition for an "improper purpose." As such, there can be no colorable
argument that Kendall has not shown malice, at least for purposes of defeating the anti-
SLAPP motion. (See Sierra Club Foundation v. Graham, supra, 72 Cal.App.4th at
p. 1157.) Attorney Defendants' argument otherwise is specious and requires us to ignore
the record and clear authority.12
12 Attorney Defendants also contend, as part of the trust litigation, they had to defend
Scott against Kendall's attempts to remove Scott from the Rodney Property and collect
rent for the period Scott occupied the property. They note the trial court denied Kendall's
request to evict Scott and charge rent, but Scott did not sue Kendall for malicious
prosecution. This argument has no bearing on whether Kendall demonstrated a
probability of success on the merits in opposing the anti-SLAPP motion. In addition, the
trial court ruled that Kendall was authorized to sell the Rodney Property; Kendall was
authorized to evict Scott and his family from the Rodney Property to facilitate the sale of
the property; and if Scott and his family had not vacated the Rodney Property by
January 1, 2009, Kendall was permitted to charge them the fair rental value of the
Rodney Property. More than likely, Scott did not bring a malicious prosecution action
because he realized he had no grounds for such a suit. Kendall, on the other hand, had no
such impediment.
26
III
ATTORNEY FEES AND COSTS
Relying on Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982(Childs), Attorney Defendants contend the court abused its discretion when it awarded
Kendall his attorney fees and costs as sanctions because the court failed to provide
specific facts to support its findings that the motion was "frivolous and/or intended to
harass" Kendall. We disagree.
In regard to ordering sanctions, the court in Childs, supra, 29 Cal.App.4th at page
996 stated: "A trial judge's on-the-record oral recitation of reasons for imposing
sanctions is insufficient. But no more is required than a written factual recital, with
reasonable specificity, of the circumstances that led the trial court to find the conduct
before it sanctionable under the relevant code section. [Citation.] This means the court's
written order should be more informative than a mere recitation of the words of the
statute." Here, the superior court's minute order satisfied these requirements. The court
stated that the motion was frivolous and/or intended to harass Kendall. It then proceeded
to explain its reasoning for this conclusion, specifically citing case law and facts to
support its order. In addition, it cited to the statute (§ 425.16, subd. (c)(1))13 under
which it awarded sanctions. Nothing more was required. (Childs, supra, 29 Cal.App.4th
at p. 996.) Attorney Defendants' argument to the contrary had to result from their failure
13 Section 425.16, subdivision (c)(1) states in relevant part: "If the court finds that a
special motion to strike is frivolous or is solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the
motion, pursuant to Section 128.5."
27
to carefully read the entire minute order or their intentional misrepresentation of the
record. Either way, their argument is once again frivolous.
Attorney Defendants also contend the award of attorney fees and costs violated
due process because there was no separate notice seeking fees. Attorney Defendants
failed to provide any authority that a separate notice was required. "Adequacy of notice
is not dependent upon an arbitrary number of days notice but should be determined on a
case-by-case basis to satisfy basic due process requirements." (Childs, supra, 29
Cal.App.4th at p. 996.) Here, the court awarded sanctions per section 425.16, subdivision
(c)(1), which permits a plaintiff to be awarded his reasonable fees and costs under section
128.5 if the court finds the special motion to strike is frivolous or solely intended to cause
unnecessary delay. The court found Attorney Defendants received adequate notice
because Kendall requested attorney fees and costs in his opposition to the anti-SLAPP
motion and Attorney Defendants had the opportunity to respond to the request in their
reply. Such notice and opportunity to respond complies with section 128.5, subdivision
(c).14 We find no due process violation in the awarding of reasonable attorney fees and
costs in this matter.
Finally, Attorney Defendants contend their anti-SLAPP motion was not frivolous
because the court acknowledged its merits in finding that Kendall's malicious prosecution
action arose from the exercise of free speech or petition rights. Attorney Defendants'
14 Section 128.5, subdivision (c) states: "Expenses pursuant to this section shall not
be imposed except on notice contained in a party's moving or responding papers; or the
court's own motion, after notice and opportunity to be heard. An order imposing
expenses shall be in writing and shall recite in detail the conduct or circumstances
justifying the order."
28
contention, however, is a logical fallacy. It is an accepted general principal of California
law that a malicious prosecution suit is subject to an anti-SLAPP motion. (Daniels v.
Robbins, supra, 182 Cal.App.4th at p. 215 ["The plain language of the anti-SLAPP
statute dictates every claim of malicious prosecution is a cause of action arising from
protected activity because every such claim necessarily depends upon written and oral
statements in a prior judicial proceeding."].) That said, it does not necessarily follow
simply because a malicious prosecution suit can be subject to an anti-SLAPP motion that
every anti-SLAPP motion brought against a malicious prosecution suit is automatically
valid. Attorney Defendants' anti-SLAPP motion proves this point.
IV
SANCTIONS
After reviewing the briefs and record in this matter, we notified the parties we
were considering sanctions for frivolous appeal. (Flaherty, supra, 31 Cal.3d at p. 654.)
As such, we requested that the parties file simultaneous supplemental letter briefs
discussing the propriety of sanctions for frivolous appeal being awarded to Kendall and
this court, and for Kendall to submit proper documentation for a determination of such an
award to him. Argument on the matter took place at the same time as oral argument on
the merits of Attorney Defendants' appeal. Having thoroughly reviewed the matter, we
grant sanctions.
Section 907 provides, "When it appears to the reviewing court that the appeal was
frivolous or taken solely for delay, it may add to the costs on appeal such damages as
may be just." Rule 8.276(a) gives us the authority to "impose sanctions . . . on a party or
29
an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay. . . ."
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--then any reasonable attorney would agree that the appeal is totally and completely
without merit." (Flaherty, supra, 31 Cal.3d at p. 650.)
In determining whether an appeal indisputably has no merit, California cases have
applied both subjective and objective standards. The subjective standard looks to the
motives of the appealing party and his or her attorney, while the objective standard looks
at the merits of the appeal from a reasonable person's perspective. (See Flaherty, supra,
31 Cal.3d at pp. 649-650.) Whether the party or attorney acted in an honest belief there
were grounds for appeal makes no difference if any reasonable person would agree the
grounds for appeal were totally and completely devoid of merit. (Estate of Walters
(1950) 99 Cal.App.2d 552, 558.)
The objective and subjective standards "are often used together, with one
providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as
evidence that appellant must have intended it only for delay." (Flaherty, supra, 31
Cal.3d at pp. 649-650.) An unsuccessful appeal, however, " 'should not be penalized as
frivolous if it presents a unique issue which is not indisputably without merit, or involves
facts which are not amenable to easy analysis in terms of existing law, or makes a
reasoned argument for the extension, modification, or reversal of existing law.' " (Dodge,
Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.)
30
Although we recognize sanctions should be used sparingly to deter only the most
egregious conduct (Flaherty, supra, 31 Cal.3d at pp. 649-650), we find them warranted
here. Our review of the proceedings below, in light of the history of this matter involving
the underlying trust litigation, Attorney Defendants' opening and reply briefs, their
supplemental letter brief in response to our request, and oral argument, as well as the
pertinent statutory and case law, convinces us any reasonable attorney would agree the
grounds Attorney Defendants advance for appeal from the court's rulings on the anti-
SLAPP motion and its award of $20,055 in attorney fees and costs under section 425.16,
subdivision (c)(1) are totally without merit. The arguments offered are not supported by
a careful reading of the record or the law nor could these arguments be reasonably
characterized as presenting unique issues or arguing for extension, modification, or
reversal of existing law. (See Dodge, Warren & Peters Ins. Services, Inc. v. Riley, supra,
105 Cal.App.4th at p. 1422.)
For example, the trial court in the trust litigation specifically found that the
petition for breach of trust and removal was filed and pursued in bad faith and for an
improper motive. Yet, nowhere in Attorney Defendants' opening brief do they mention
this finding. This is all the more preposterous because this finding of bad faith was
appealed and affirmed by this court. (See Leach v. Kleveland, supra, D054532.)
Attorney Defendants only offer selective "facts" from the record that essentially ignore
the findings in the trust litigation and ask this court to consider "evidence" that was
explicitly rejected by the trial court. They offer no authority that permits this approach.
They appear merely to pretend the results of the trust litigation were something they
31
clearly were not. 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.
We see no fact or authority that supports any of the arguments Attorney
Defendants raise in this appeal. Thus, after thoroughly reviewing the record and listening
to oral argument, we are persuaded by clear and convincing evidence (San Bernardino
Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 470) that any reasonable
attorney would agree the grounds advanced by Attorney Defendants here completely
lacked merit and would not have pursued this appeal.15 (Flaherty, supra, 31 Cal.3d at
pp. 649-650.)
Our conclusion is further underscored by Attorney Defendants' flagrant violation
of rule 8.204(2)(C). They failed to provide a summary of significant facts limited to
matters in the record. Most extreme, Attorney Defendants failed to cite to the record
where the trial court found that Scott had filed and pursued the petition for breach of trust
and removal in bad faith and for an improper purpose. Such a finding was essential in
that it was the basis for Kendall's malicious prosecution action and was the primary
reason the superior court denied Attorney Defendants' anti-SLAPP motion and awarded
15 We view Attorney Defendants' attempt to withdraw its appeal as to the merits of
the denial of their anti-SLAPP motion as a tacit admission that they did not believe that
portion of their appeal had merit. However, during oral argument, Attorney Defendants
advanced these same contentions that they were "abandoning" under the guise that they
supported their position that neither attorney fees nor sanctions were warranted. We are
not convinced by this game of semantics.
32
Kendall attorney fees and costs. Attorney Defendants' failure to cite to this portion of the
record or even address it is inexcusable.
Having concluded sanctions are warranted, we must determine an appropriate
amount. "Factors relevant to determining the amount of sanctions to be awarded a party
responding to a frivolous appeal include 'the amount of respondent's attorney fees on
appeal; the amount of the judgment against appellant; the degree of objective
frivolousness and delay; and the need for discouragement of like conduct in the future.' "
(In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 519 (Gong & Kwong);
Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1434 [one
goal of sanctions is to deter future frivolous litigation].)
As to the first factor, Kendall has told us he incurred $52,727.56 in attorney fees
and costs related to this appeal. We find this requested amount reasonable and thus
award it to Kendall.
Since there is no monetary judgment at issue, the second factor is less relevant to
our analysis. We observe, however, that even though money is not involved here,
Attorney Defendants' appeal has delayed Kendall's malicious prosecution suit. This is
itself a burden on Kendall, who has been put to the trouble of defending a frivolous
appeal after being embroiled in litigation lasting two years, initiated by Attorney
Defendants' client, which proved to be meritless. (Cf. Simonian v. Patterson (1994) 27
Cal.App.4th 773, 786-787.)
In this case, the degree of objective frivolousness is very high. Attorney
Defendants' appeal garishly distorts the record and has no basis in law or fact, and we
33
conclude that "[n]o competent attorney could conceivably believe in good faith" the
appeal had any merit. (Cf. Papadakis v. Zelis (1992) 8 Cal.App.4th 1146, 1149.) Thus,
the case is not a close one. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 34.)
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. Attorney Defendants consist of a law firm and three attorneys. They in turn were
represented by two law firms and four attorneys. The sad fact that not one of the seven
attorneys or three law firms involved in this appeal stopped this frivolous matter from
proceeding is disappointing. 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.
"It is critical to both the bench and the bar that we be able to rely on the honesty of
counsel. The term 'officer of the court,' with all the assumptions of honor and integrity
that append to it, must not be allowed to lose its significance." (Kim v. Westmoore
Partners, Inc. (2011) 201 Cal.App.4th 267, 292.) One of an attorney's duties is to
employ only those means that are consistent with truth and never to seek to mislead us
"by an artifice or false statement of fact or law." (Bus. & Prof. Code, § 6068, subd. (d).)
We cannot sit idly by when several members of the bar fail to live up to the standards of
the profession.
Beyond the breach of their duties to us, the conduct of Attorney Defendants and
their counsel also has harmed others. "Respondent[s] . . . are not the only parties
damaged when an appellant pursues a frivolous claim. Other appellate parties, many of
34
whom wait years for a resolution of bona fide disputes, are prejudiced by the useless
diversion of this court's attention. [Citation.] In the same vein, the appellate system and
the taxpayers of this state are damaged by what amounts to a waste of this court's time
and resources. [Citations.] Accordingly, an appropriate measure of sanctions should also
compensate the government for its expense in processing, reviewing and deciding a
frivolous appeal." (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 17.) In this time
of limited budgets and strained judicial resources, this court can ill afford to devote its
attention to an appeal that is utterly without merit and clearly frivolous.
Consequently, we also find sanctions should be paid directly to the clerk of this
court. (Gong & Kwong, supra, 163 Cal.App.4th at p. 520.) Appellate sanctions for
frivolous appeals have recently ranged from $6,000 to $12,500. (Kim v. Westmoore
Partners, Inc., supra, 201 Cal.App.4th at p. 294.) These figures are generally, but not
exclusively, based on the estimated cost to the court of processing a frivolous appeal.
(Ibid.) In 2008, our colleagues in the First Appellate District cited a cost analysis by the
clerk's office of the Second Appellate District indicating "the cost of processing an appeal
that results in an opinion by the court to be approximately $8,500." (Gong & Kwong,
supra, 163 Cal.App.4th at p. 520.) We find this amount appropriate for sanctions here.
DISPOSITION
The order is affirmed. As sanctions for a frivolous appeal, Attorney Defendants
shall pay Kendall the amount of $52,727.56. Attorney Defendants also are assessed
$8,500 sanctions for bringing this frivolous appeal, payable to the clerk of this court no
35
later than 15 days after the date the remittitur is filed. The clerk of this court is directed
to deposit said sum in the general fund.
Kendall also is awarded costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
36