Key Decisions

May 2012 – Appeal Filed Only For Purposes Of Delay

(filed under: | May 16, 2012)

An Appeal Filed Only For Purposes Of Delay Has No Merit And Justifies Sanctions

Brown v. Wells Fargo Bank, NA
(Cal. Ct. of App. 2d Dist.), filed April 16, 2012 

Jane Brown was in default on a home mortgage. Wells Fargo started foreclosure proceedings. To prevent the sale of her home, Brown sued Wells Fargo. The trial court granted a preliminary injunction which stopped the sale, but required Brown to deposit $1,700 a month into a trust account.

Brown failed to make the deposits. As a result, Wells Fargo sought an ex parte order dissolving the injunction so it could go forward with the sale. The trial court declined to grant ex parte relief, but set a hearing for a noticed motion on short notice. At the hearing, Brown’s attorney failed to show that Brown had made the deposits or to offer a valid reason why she didn’t make them.

The trial court dissolved the injunction.

Brown filed an appeal. This had the effect of staying the order dissolving the injunction.

The sole basis for Brown’s appeal was her contention that the order dissolving the injunction was granted on an ex parte basis. Shortly before the appellate court heard oral argument, Brown sought to dismiss the appeal.

The Court of Appeal declined Brown’s request to dismiss the appeal and then affirmed the trial court’s order dissolving the injunction. It ruled that although the hearing on Wells Fargo’s motion was done on short notice, it was not done ex parte.

The court also ruled that the appeal was frivolous. It said: “Some appeals are filed to delay the inevitable. This is such an appeal. It is frivolous and was ‘“dead on arrival” at the appellate courthouse.’” As a result, the court sanctioned Brown and her counsel and referred the matter to the California State Bar for consideration of discipline against Brown’s counsel.