Benson v. Greitzer

In re Marriage of Flaherty, supra, 31 Cal.3d at pages 649-650 discussed two standards for frivolous appeals. The subjective standard looks to an improper motive of the appellant. The objective standard looks to the merits of the appeal from a reasonable person’s perspective. The court held, “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.” (Id. at p. 650.) The court cautioned that “any definition must be read so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. . . . An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (Ibid., italics in original.)

The United States Supreme Court’s interpretation of awards to a prevailing defendant under 42 United States Code section 1988 is very similar.^[1] In Hughes v. Rowe (1980) 449 U.S. 5 , 14-15 [ 66 L.Ed.2d 163 , 172-173, 101 S.Ct. 173 ], the United States Supreme Court applied the rule of Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 , 421-422 [ 54 L.Ed.2d 648 , 656-657, 98 S.Ct. 694 ], and held that a defendant who prevails in a federal civil rights action may be awarded attorney’s fees under 42 United States Code section 1988 only where the plaintiff’s action was “ ‘frivolous, unreasonable, or without foundation.’ ” (Hughes v. Rowe, supra, 449 U.S. at p. 14 [66 L.Ed.2d at p. 172].) In Christiansburg the court stated, “the term ‘merit-less’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and . . . the term ‘vexatious’ in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him.” (434 U.S. at p. 421 [54 L.Ed.2d at pp. 656-657].) The court further stated that “assessing attorney’s fees against plaintiffs simply because they do not finally prevail

This standard is substantially the same as in Flaherty. Although the United States Supreme Court employed a variety of terms, such as unfounded, meritless, frivolous, groundless, unreasonable, or without foundation, the court made clear in its discussion that these abstract words must be interpreted in light of the same consideration discussed in Flaherty, the avoidance of undue chilling effect on the assertion of litigants’ rights.

Accordingly, since the prior appellate opinion in this case expressly stated, “we do not find the appeal to be frivolous within the standards of In re Marriage of Flaherty, ” the trial court was bound by that determination and erred in impliedly finding that the appeal was frivolous within the similar standards of the federal statute.^[2]

The trial court’s order of February 28, 1989, which allowed defendant’s “Memorandum of Costs on Appeal” in its entirety, is modified to strike therefrom the item of attorney’s fees for the prior appeal in the amount of $2,970. As so modified the order allowing costs on the prior appeal is affirmed. Costs on this appeal are awarded to plaintiff.

Boren, J., and Turner, J., concurred.