Frivolous Appeal : Court Makes Company Pay for ‘Chutzpah’

A litigant who showed “chutzpah which knows no bounds” was fined $4,000 Thursday by the state Court of Appeal in Santa Ana for filing a frivolous appeal.

The case involved a dispute over a $40,000 solar heating system installed on a 16-unit Westminster apartment building. The building’s owners alleged that the system didn’t work and stopped making $400 monthly lease payments on it.

After a lawsuit was filed, the leasing agent, Del Sur Properties, Inc., agreed to submit the dispute to an arbitrator. But when Del Sur lost and was ordered to pay $20,000, it appealed despite the agreement.

‘Doomed to Fail’

“We were both intrigued and appalled by the possibility that a party who had concededly waived the right of appeal nevertheless had the audacity to consume scarce judicial resources in order to argue a position doomed to fail,” wrote Justice Thomas F. Crosby Jr. for the unanimous three-judge panel of the 4th District Court of Appeal.

The court found that Del Sur’s attorneys, the firm of York and Walker, had appealed even though the client’s position “indisputably” had no merit, merely to harass and delay.

Attorney Michael G. York said he disagreed with Crosby’s conclusion but said he has no plan to appeal the case further. York said he appealed because he believed the arbitrator lacked the power to order Del Sur to remove the solar unit in 45 days or forfeit the equipment.

The apartment owners leased the solar unit from Del Sur in 1978, but it never functioned properly, according to the court file. Attorney Dan R. Wildish, for the owners, called the device “a piece of junk.”

“They were actually paying more to operate the system than we got in terms of fuel savings,” he said.

After the arbitrator ruled for the apartment owners, Wildish routinely petitioned Orange County Superior Court to declare the decision final. Del Sur opposed the move.

“Finally, exhibiting chutzpah which knows no bounds, Del Sur purported to appeal from the judgment confirming the arbitration award and the order awarding a modest sum for attorney’s fees,” Crosby wrote.

Chutzpah is a Yiddish word for shameless audacity or incredible brass.

Wildish said Del Sur has yet to pay the $20,000 awarded to four individuals who were owners of the building. He said he doubted whether he would be more successful in collecting the $4,000 in fines.