In re Marriage of Greenberg: Another frivolous appeal

If there is anything that gives an appellate lawyer pleasure, it is to have a published case, especially when the lawyer is on the winning side.  Publication means the lawyer's name will go down in the history books, and if the decision helps shape the law, the lawyer can be proud of being a part of that decision.  Even if the lawyer is not on the winning side, publication means he or she participated in a case that involved important issues.  Sometimes the courts of appeal will publish opinions that may be critical of the lawyers, clients, or even the trial judge, and they may use a published opinion to "educate" other lawyers.  In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095 is just one of those decisions. In In re Marriage of Greenberg, Justice Yegan of the Second Appellate District, Division Six started off his opinion with the following paragraph:

"Abraham Lincoln once said, 'He who represents himself has a fool for a client.'  Here, the client is an attorney who represented himself in the trial court.  He now represents himself on appeal.  He is unschoooled on the basics of appellate law, suggesting that Lincoln's observation applies on appeal.  We understand that emotions run high in family law litigation and this may cloud the judgment of a party.  But this does not excuse the filing of a 'creative' (i.e. misleading or incomplete or inaccurate) income and expense declaration; or perjury, as referenced by the trial court; or the filing of a frivolous appeal."

(Id. at p. 1097.)  Now, if you are Mr. Greenberg, you are probably squirming in your chair, knowing that the rest of the opinion is not going to provide the type of notoriety that appellate attorneys enjoy.  The appeal is from an order awarding $2,800 fees and sanctions to the wife.  Of course, most parties are not going to appeal such an order, because the appeal would cost more than the sanction order.  So, if an appeal is filed, then I would assume the client is driven by emotion.  But if you are an attorney, you can file an appeal free of attorney's fees, except if you get dinged once again with more sanctions. Here, the wife did not ask for sanctions - Mr. Greenberg lucked out! - but the court found the appeal was frivolous and referred to the State Bar for investigation.  (Bus. & Prof. Code, sec. 6086.7.) The appellate court in Greenberg found that the order was supported by substantial evidence and "easily" within the trial court's discretion.  (Id. at p. 1097.) The court continued, "The appeal flies in the face of what we described as an adverse factual finding.  This adverse factual finding creates an impossible platform upon which to predicate legal error.  Where, as here, an appeal is premised upon facts expressly not credited by the trial court, i.e. an adverse factual finding, the appeal is frivolous and sanctions may be imposed."   (Ibid.)  Finally, the court responded to Greenberg's argument that the trial court ignored the evidence supporting his position.   Justice Yegan wrote, "Not so.   The trial court sits as trier of fact and it is called upon to determine that a witness is to be believed or not believed.  This is the nature of fact finding."  (Id. at p. 1099.)    (I tell my clients that the court of appeal will not step into the role of trier of fact and make credibility determinations.)  The court continued:

"We also warned the bar that sanctions could be ordered for appeals based upon a theory asking to substitute our judgment for that of the trier of fact.  As we said then and we repeat now, 'no one seems to listen.' . . . We are ever hopeful that appellate lawyers are listening."

(Ibid., citing In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.)

Well, I am listening and passing these words on to my readers.