Young v. Rosenthal (212 Cal. App. 3d 96, 1989)

Opinion

CROSKEY, J.

In this case, involving five separate appeals, we are presented with an incredibly obscene example of the defiance, subversion and abuse of the judicial system in general and the procedures for pretrial discovery in particular. In affirming a summary judgment and two trial court sanction orders, we write what should be the final chapter of the unsuccessful efforts of a disbarred lawyer to avoid paying fees for valuable legal services rendered to him. As two of the five appeals were frivolous and were clearly motivated by an intent to delay and harass the respondent and, in the process, imposed a significant burden on this court, we impose substantial sanctions.

Defendant/appellant Jerome B. Rosenthal (Rosenthal) appeals from a summary judgment entered on February 16, 1988, awarding $167,238.14, plus $37,066.03 interest and costs to plaintiff/respondent J.M. Young, the assignee of the law firm Cooper, Epstein & Hurewitz (CEH). (Case No. B033315.) Rosenthal also appeals from the orders of November 20, 1986 (November 20 Order) and December 16, 1986 (December 16 Order) awarding monetary sanctions. (Case No. B025896.)

Three other appeals, which also relate to the same discovery dispute which is the subject of Case No. B025896, have been filed by Rosenthal’s former attorneys, Oring, Margolese & Schulte (OMS). (Consolidated Case No. B024983.). In Case Nos. B024983 and B026834, OMS appeals from the November 20 Order and the December 16 Order which imposed the sanctions which are also the subject of Rosenthal’s appeal in Case No. B025896. In the third appeal, Case No. B026937, OMS appeals from the order of March 9, 1987, in which the trial court refused to require Rosenthal to reimburse OMS for any attorneys’ fees sanctions they may have paid pursuant to the trial court orders which are the subject of Case Nos. B024983 and B026834.

Finally, in Case Nos. B033315 and B025896, CEH has requested that attorneys’ fees plus costs be awarded to them as sanctions against Rosenthal and his attorney on appeal for bringing “frivolous, meritless and completely unsupported” appeals. In consolidated Case No. B024983, CEH has also requested that OMS pay CEH’s attorneys’ fees for “frivolous appeals.”

Because all of these appeals share the same factual background we have determined, in the interest of judicial economy, to dispose of them in a single opinion.

Factual Background

The facts upon which these appeals turn are either undisputed or unchallenged on appeal (see fn. 15, post) and were, in any event, determined in three different trial court proceedings upon conflicting declarations. (See Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1356 [228 Cal.Rptr. 807].) In accordance with the usual rules on appeal, we view the facts in the light most favorable to the respondent. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 278, pp. 289-291.)

In November 1983, Rosenthal, a former attorney, retained CEH to represent him in a number of actions, all of which related to his law practice. By January of 1986 Rosenthal owed CEH $164,343.35 for services rendered on his behalf. Rosenthal refused to pay and on January 22, 1986, CEH filed a complaint for money ((1) open book account; (2) account stated; (3) work, labor and services; and (4) breach of contract). Rosenthal hired the law firm of OMS to represent him, and on February 21, 1986, filed (but did not serve) a cross-complaint against CEH seeking recovery of approximately $70,000 in attorneys’ fees paid CEH, as well as general damages of $6 million and punitive damages of $30 million.

On February 12, 1986, CEH served a request for identification and production of documents. Rosenthal was asked to produce the original documents (or, if unavailable, then legible copies) at CEH’s office. However, Rosenthal instead produced copies which in large measure were illegible. In addition, the copies were cropped off portions of the original documents, they were not properly identified, and documents known to be in Rosenthal’s possession were not produced.

On February 18, 1986, a second request for identification and production of documents was served upon Rosenthal. In addition, CEH served interrogatories and a set of requests for admission.

On February 28, 1986, Rosenthal was served with a third request for identification and production of documents, together with a second set of interrogatories and a second set of requests for admission.

Rosenthal refused to answer the interrogatories, objecting to the form of the questions. He also objected to the request for documents. All of CEH’s attempts to resolve the matter out of court were unsuccessful. On March 6, 1986, CEH served another document request for identification and production of all documents which Rosenthal received from, or made in, the offices of CEH. These documents were neither identified nor produced. Finally in a letter dated March 19, 1986, Margolese (she and Schulte were the OMS partners who represented Rosenthal in this matter) stated that she would be “happy to produce all the documents in both mine or Mr. Rosenthal’s possession” at Rosenthal’s deposition which had been set for March 27. This echoed a similar promise made in a letter written by Margolese on March 10, 1986.

On March 20 and 24, 1986, Rosenthal served unverified supplemental responses to the various requests for documents. The response on the 24th contained no identification but stated that, “as indicated in attorney’s letter of March 10, 1986 . . . [Rosenthal] is willing and will provide ALL documents in his possession and will bring them to [his] deposition and/or will make them available for photocopyong [sic] in their entirety prior to the deposition.” However, no arrangements were made for copying before the deposition and nothing was produced at Rosenthal’s deposition on the morning of March 27. It was first promised that they would be delivered that afternoon; however, Schulte later telephoned CEH and said he would not produce the documents until the following Monday. On Monday he called and said he was “reneging” and would not deliver the documents to CEH’s offices “ever.”

Rosenthal’s deposition, which was to begin on March 27 and continue from day to day, was adjourned after only two hours because Rosenthal claimed he had a dental appointment. He also stated that he would not return for the resumption of his deposition the next day or even the next week.

Because of Rosenthal’s refusals to produce the requested documents or return for his deposition, CEH was placed in a position of losing its priority in discovery. Therefore, on April 10, 1986, CEH telephoned Schulte and notified him that they were going to make an ex parte application seeking various relief regarding the priority of discovery. To avoid the ex parte hearing, Schulte agreed to extend CEH’s time to respond until 10 days after the completion of Rosenthal’s deposition. Schulte also promised to produce the requested documents at Rosenthal’s deposition. On April 16, 1986, this agreement was repudiated and CEH then sought a protective order. In addition, due to Rosenthal’s continual discovery violations, CEH filed a number of discovery motions, including (1) a motion to compel further responses to the combined first set of interrogatories and requests for admission, (2) a motion to compel further responses to the second set of interrogatories and requests for admission, and (3) a request for sanctions against Rosenthal and his attorneys for their “willful and deliberate refusal to cooperate in discovery.”

On May 29, 1986, Judge Cardenas ordered all counsel to meet and confer in an effort to resolve their discovery disputes and deferred his ruling on CEH’s motions until June 4, 1986. This date was continued at the request of the parties and, on June 5, 1986, the parties presented to the court a Stipulation to Resolve Discovery Disputes and Order (Stipulation). The Stipulation was signed by Schulte, as attorney for Rosenthal. It provided that (1) CEH would revise its interrogatories and requests for admission, (2) Rosenthal would comply with the different requests by certain dates, and (3) Rosenthal would appear for his deposition on July 8, 1986. It also provided that it would become effective when the court signed the order attached to the Stipulation. The court signed that order on June 5, 1986 (June 5 Order).

Pursuant to the Stipulation and the June 5 Order, CEH served Rosenthal with the revised interrogatories and requests for admission. In response, and in apparent recognition of his obligations under the June 5 Order, Rosenthal submitted numerous papers to CEH and to the court. However, Rosenthal refused to answer all the interrogatories by July 2nd, the date specified in the June 5 Order. He further refused to recognize CEH’s continued priority even though his deposition was delayed, and CEH was forced to obtain an additional order on July 3d maintaining discovery priority.

In response to Rosenthal’s failure to answer the interrogatories as required by the June 5 Order, CEH sent a letter on June 25, 1986, to Margolese which stated in part: “On June 6 I went to the trouble of alerting you of the deadlines, and the urgency of meeting those deadlines. Not until this week did you express any difficulty in complying, [fl] When we met. . . two days ago, Mr. Schulte and you told me that Mr. Rosenthal had been dictating responses . . . . I do not accept that there is any good cause why partial responses could not be given before the end of this week; nonetheless, I have conditionally relented that position as the enclosed Stipulation shows. [H] If I am to receive inadequate responses, I should be in a position to move forward with respect thereto as soon as possible rather than delaying the ultimate. Delay is prejudicial.”

Rosenthal’s attorneys rejected the proposed stipulation that CEH had enclosed with their letter and refused to discuss it. Instead they unsuccessfully sought a court order to extend the deadline, expressly representing that the first set of answers had been completed in draft form on June 25. However, by August 1, 1986, Rosenthal still had not answered any of the interrogatories which had been originally served the previous February.

As to Rosenthal’s deposition, the June 5 Order provided that he was to appear on July 8, 1986, at CEH’s offices and the deposition was to continue from day to day until finished. Although Rosenthal appeared during the morning of July 8, he never reappeared after the lunch hour, claiming illness. Thereafter, he further refused to appear on any subsequent day.

Rosenthal also failed to produce the requested documents as required by the June 5 Order. At his deposition on July 8, Rosenthal at first misrepresented the fact that a group of papers consisted of “originals” when in fact all of the papers to which he referred were “photocopies.” When he did acknowledge that the papers presented were not originals he then refused to allow them to be marked as exhibits. After much discussion on the record, Rosenthal finally produced the originals of the requested documents but still refused to allow them or the copies to be attached as exhibits to his deposition. CEH advised him numerous times of his violations and requested that he cure the various defects. This Rosenthal continually refused to do.

Due to the repeated violations of the June 5 Order by Rosenthal, CEH, on August 14, 1986, served and filed a Notice of Motion to Strike Answer, Render Judgment for Plaintiff, Dismiss Cross-Complaint, and for other relief under Code of Civil Procedure section 2034 and for attorneys’ fees against both Rosenthal and his attorneys. In the alternative, CEH asked “for orders set forth in the Proposed Alternative Order separately filed and served concurrently herewith.” Rosenthal opposed the motion and served answers to the first set of interrogatories.

On August 29, 1986, the court refused to strike Rosenthal’s answer but decided on lesser sanctions. The court then signed the alternative order (August 29 Order), with modifications, specifically finding that Rosenthal had willfully failed to answer interrogatories, appear for his deposition and identify or produce documents and permit documents to be marked as exhibits at his deposition. The court further found that Rosenthal and his attorneys were guilty of “bad faith action and tactics that [were] frivolous and solely intended to cause unnecessary delay” and awarded attorneys’ fees of $23,030 to CEH. The court also found that Rosenthal failed to comply with the June 5 Order which it held was an order made under section 2034, subdivision (a). Finally, and most significantly, the August 29 Order (1) provided that certain facts be deemed established in accordance with the claims of CEH and (2) placed severe evidentiary limitations at trial on Rosenthal. In short, it was directly responsive to the discovery violations which Rosenthal had committed.

On September 8, 1986, Rosenthal served and filed a motion for reconsideration of the August 29 Order. On October 15, 1986, he filed a motion to vacate the Stipulation and the June 5 Order. These motions reargued everything that had been raised in Rosenthal’s opposition to the August 29 Order and, in addition, falsely accused counsel for CEH of fraud and deceit in connection with the execution of the Stipulation (see fn. 24, post). On November 20, 1986, Judge Cardenas found that the motion to vacate the Stipulation and the June 5 Order was “brought in bad faith” and was “totally and completely without merit.” The court then awarded CEH fees in the amount of $14,500 to be paid by Rosenthal and Schulte “jointly and severally.” Thereafter, Rosenthal took off calendar the motion for reconsideration filed on September 8, 1986. However, CEH did not withdraw its request for sanctions. That request came before Judge Ross on December 16, 1986.

On that date, Judge Ross found that the moving papers seeking reconsideration filed by Rosenthal’s attorneys were “false,” were known to be false at the time of filing, were made in bad faith “without substantial justification” and that their actions were “frivolous,” in “bad faith,” and “solely intended to cause unnecessary delay.” The court awarded CEH fees of $13,401 against Rosenthal, OMS, and the individual partners, Oring, Margolese, and Schulte.

Thereafter, Rosenthal filed a petition for a writ of mandate seeking to set aside the August 29 Order. This motion was summarily denied and his petition for review in the Supreme Court was also denied.

On January 6, 1987, OMS’s motion to withdraw as Rosenthal’s counsel was granted. Thereafter, OMS moved for contribution from Rosenthal with respect to the sanctions which had been imposed on November 20 and December 16, 1986 (see fn. 25, post). This motion was denied on March 9, 1987. On October 15, 1987, CEH filed a motion for summary judgment based on declarations and the evidentiary limitations imposed on Rosenthal by the August 29 Order. The motion was granted on December 21, 1987, and judgment was entered on February 16, 1988, awarding CEH $167,238.14 plus $37,066.03 in interest and costs.

Issues

1. Summary Judgment (Case No. B033315) : Rosenthal contends that (1) the trial court abused its discretion in issuing the August 29 Order; therefore the summary judgment which was based upon that order should be reversed; (2) the Stipulation and the June 5 Order (and hence, the August 29 Order and the summary judgment which were based thereon) should be set aside because (a) the Stipulation was improper in that his then attorney had no authority to agree to issuance of a court order requiring performance of the Stipulation and (b) the resulting June 5 Order ultimately led to severe penalties following its violation, effectively amounting to a judgment against him; thus, his substantial rights were impaired “without his knowledge or consent”; and (3) the court erred in imposing $23,030 monetary sanctions against him as part of the August 29 Order.

2. Post-August 29 Sanctions Against Rosenthal (Case No. B025896) : Rosenthal contends that the trial court erred in imposing sanctions against him for bringing the motion to vacate the Stipulation and the June 5 Order and the motion to reconsider the August 29 Order. He argues that (1) if the August 29 Order and the Stipulation and the June 5 Order fall, then so must the sanctions; (2) even if sanctions were justified, they should have been imposed solely against his counsel, Schulte; and (3) even if sanctions were proper against him, the court (Judge Cardenas), in its award of sanctions included in the November 20 Order, failed to comply with the statutory requirement of detailing in writing the conduct or circumstances on which the sanctions were based.

3. Sanctions Against OMS (Consolidated Case No. B024983) : OMS contends, with respect to Case Nos. B024983 and B026834, that (1) “Counsel should not be placed in the position of making a decision to forego an obligation to a client to pursue diligently any possible meritorious motions on a unilateral decision that a particular motion may be considered by the judicial system to be ‘frivolous’ ”; (2) Code of Civil Procedure section 128.5 denies counsel the opportunity to be heard when the attomey/client privilege prevents counsel from exonerating themselves.

With respect to Case No. B026937, OMS further contends that Code of Civil Procedure sections 882 and 883 apply to all joint and several money judgments including those awarded against an attorney and his client under Code of Civil Procedure section 128.5.

Discussion

We commence our consideration of these issues by noting that all parties agree that the standard of review is abuse of discretion. Rosenthal complains that discovery sanctions imposed by the August 29 Order were improper. The validity of those sanctions, which ultimately led to the entry of a summary judgment against Rosenthal on February 16, 1988, was at the heart of the dispute in the trial court and is critical to four of the five appeals before us.

It is settled that “The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply [with a valid discovery order] . . . and (2) the failure must be wilful (Code of Civ. Proc., § 2034, subd. (d)).” (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904 [190 Cal.Rptr. 593].)

Where those facts are found by the trial court to be true, such findings are entitled to deference on appeal. (Flynn v. Superior Court (1979) 89 Cal.App.3d 491, 496 [152 Cal.Rptr. 796]; Cornwall v. Santa Monica Diary Co. (1977) 66 Cal.App.3d 250, 252-253 [135 Cal.Rptr. 761].) The rule is the same even though the facts are established, as they were here, by declarations in support of a motion. (Kroopf v. Guffey, supra, 183 Cal.App.3d at p. 1356.) This is particularly true where, as in this case, such findings are not even challenged by the appellants.

In any event, in “the final analysis, the test on appeal is whether the lower court abused its discretion, and each case must be decided on its own facts, with the appellant having the burden of showing an abuse. [Citations.]” (Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524 [94 Cal.Rptr. 85].) “A trial court’s exercise of discretion will be upheld if it is based on a ‘reasoned judgment’ and complies with the ‘. . . legal principles and policies appropriate to the particular matter at issue.’ [Citations.]” (Bullís v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815 [148 Cal.Rptr. 22, 582 P.2d 109, 7 A.L.R.4th 642].) The same standards, of course, also apply to the appeals by Rosenthal and OMS from the sanctions imposed by the November 20 Order and the December 16 Order.

1. Summary Judgment (Case No. B033315)

Rosenthal, in his appeal from the summary judgment, limits his attack on that judgment to three rulings by the trial court which he contends constituted an abuse of discretion. First, the issuance of the August 29 Order; second, the issuance of the June 5 Order (pursuant to the Stipulation); and, third, the award of sanctions as part of the August 29 Order. We discuss them in chronological order and find each to be without merit. Thus, we affirm the summary judgment.

a. June 5, 1986, Order

Rosenthal asserts that the Stipulation and the June 5 Order (and the August 29 Order and summary judgment which ultimately followed and were based thereon) should be set aside “because it was an improper stipulation” by his attorney which impaired his “substantial rights without his knowledge or consent.” He argues that he “never saw the Stipulation prior to its entry and neither knew nor consented to making the Stipulation into an order which could (and did) impair his right to defend the action on the merits.”

However the record shows, as expressly found by both Judge Cardenas in his November 20 Order (see fn. 13, ante) and Judge Ross in his December 16 Order (see fn. 14, ante), that Rosenthal’s attorneys had the actual and apparent authority on his behalf to enter into stipulations to resolve discovery disputes and that Schulte was acting within his authority as Rosenthal’s attorney of record when he executed the Stipulation. At the time that Judge Cardenas ordered counsel to meet and confer on May 29, 1986, Rosenthal’s attorney, apparently in order to avoid subjecting Rosenthal to a substantial risk of sanctions, decided to conclude the best terms he could reach with opposing counsel by entering into the Stipulation.

In Linsk v. Linsk (1969) 70 Cal.2d 272, 276-278 [74 Cal.Rptr. 544, 449 P.2d 760], the court held that an attorney has the “ ‘authority to enter into stipulations and agreements in all matters of procedure during the progress of the trial.’ . . . [1[] If counsel merely employs his best discretion in protecting the client’s rights and achieving the client’s fundamental goals, his authority to proceed in any appropriate manner has been unquestioned. On the other hand, if counsel abdicates a substantial right of the client contrary to express instructions, he exceeds his authority.”

Here, Rosenthal’s attorneys, in agreeing to the Stipulation, did not “relinquish a substantive right” and were acting well within their authority as his attorneys of record. They had an obligation to the court to resolve, on their own if possible, the discovery differences and they had an obligation to Rosenthal to prevent the imposition against him of costly sanctions. Certainly, the record does not suggest that Schulte signed the Stipulation “contrary to express instructions.” Indeed, there is no claim that any term of the Stipulation was improper or unfair to Rosenthal. In fact, his only objection to the Stipulation is its acceptance of the very reasonable condition insisted on by CEH that it be approved and enforced by a court order. By the agreement that the Stipulation could be so enforced, Rosenthal’s counsel did nothing more than agree to a routine and commonly accepted matter of procedure which was necessary or incidental to the management of the suit. This, Schulte clearly had the authority to do. (Armstrong v. Brown (1936) 12 Cal.App.2d 22, 28 [54 P.2d 1118].) That the resulting June 5 Order ultimately led to “death knell” sanctions and entry of a summary judgment against Rosenthal was due to his willful violations of its terms, not the fact that an order was agreed to or made.

Rosenthal does not cite one relevant authority to support his contentions on this issue. If we were to give any credence to his argument, trial courts would no longer have the ability to resolve discovery disputes by any means other than formal, fully contested motions. The whole process of issuing “meet and confer” orders and requiring the parties to resolve their discovery differences by agreement rather than by expensive and time-consuming motions would be undermined. Every dispute would have to be fully litigated. We can think of no reason whatever why such a result would be desirable. The negotiated resolution of such disputes is critical to the efficient management of crowded law and motion calendars. Of necessity, both the court and the opposing litigants must be able to rely upon the validity of stipulated resolutions of discovery disputes and to have them enforceable by order.

Finally, the record shows that Rosenthal himself ratified the Stipulation by his subsequent conduct. (See Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698 [97 Cal.Rptr. 309, 488 P.2d 637, 49 A.L.R.3d 828].) At no time did he attempt to discharge his attorneys on the basis that their execution of the Stipulation was beyond their authority, and he did not communicate any objections to it during the months of June, July, or August of 1986. In addition, he submitted numerous papers to CEH and to the court acknowledging the Stipulation and the June 5 Order, and he did not attempt to vacate that order until after Judge Ross had issued the August 29 Order. It is apparent that Rosenthal’s conduct was such that CEH was entitled to and did rely on both the Stipulation and the June 5 Order. Consequently, Rosenthal is in no position to even claim that his counsel did not have the authority to enter into the Stipulation.

The June 5 Order was issued pursuant to the Stipulation. Having agreed to comply with the discovery commitments set forth in that order, Rosenthal cannot now complain as to its terms or be heard to argue that CEH’s discovery was “massive and complex” and “demanding” and “detailed.” Nor can he now argue that the June 5 Order was made without subjecting the discovery commitments contained in the Stipulation to “judicial scrutiny.” The very purpose of an order to meet and confer is to obtain a negotiated resolution of a discovery dispute without having to expend judicial time to sort out which party is correct and what relief should be granted. What the court seeks is an agreement by the parties which resolves the dispute. There is no requirement that the court thereafter conduct any in depth review of such agreement or make any independent inquiry into its terms.

We conclude that Rosenthal is bound by the Stipulation, and the June 5 Order was properly issued.

b. August 29, 1986, Order

Rosenthal contends that the trial court abused its discretion in “condoning and in fact rewarding” CEH’s actions in pursuing “discovery not as a fact-finding device, but as a short-cut to a judgment other than on the merits” by issuing the August 29 Order which ultimately resulted in the summary judgment. Again, Rosenthal is attempting to relitigate the merits of CEH’s methods of discovery by arguing that its volume and complexity was “totally unnecessary” and “out of all proportion” to a “legitimate fact-finding objective.” As already explained, this argument is substantially undercut by the Stipulation and the June 5 Order in which Rosenthal, by and through his counsel, expressly agreed to all such discovery.

In addition, the record clearly establishes that Rosenthal violated the June 5 Order not only by refusing to cooperate with the taking of his deposition but also by repeatedly failing to answer interrogatories or produce requested documents. In response to these numerous violations, CEH filed the August 14 motion seeking relief under Code of Civil Procedure section 2034, subdivisions (b)(2) and (d).

In his August 29 Order, after the hearing on CEH’s motion, Judge Ross made a number of important findings of fact, none of which is here disputed by Rosenthal. Judge Ross expressly found that “Rosenthal refused to obey the Order of this Court dated June 5, 1986 made under § 2034 (a) in that he violated 1¡]¡ 2, 2.3, 3 and 4 of said Order in refusing to identify documents and produce documents in the manner therein called for, in refusing to permit documents to be marked as exhibits at his deposition, in refusing to attend his deposition, and in refusing to answer interrogatories, respectively.”

Judge Ross also found “that Rosenthal willfully failed to appear for the taking of his deposition and willfully failed to answer interrogatories.” He finally concluded “that the above-stated conduct and Rosenthal’s and Rosenthal’s attorneys’ attempt to avoid the requirements of the June 5, 1986 Order by making an improper ex parte application and a motion (filed herein June, 1986) and [their] forcing Plaintiff to obtain ex parte Order of July 3, 1986 in order to maintain discovery priority granted under June 5, 1986 Order, each constitute bad faith action and tactics that are frivolous and solely intended to cause unnecessary delay, and the positions taken . . . in such regards are totally without merit.”

Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [149 Cal.Rptr. 499].) Here, the Court granted relief which was specifically related to each violation by Rosenthal of the June 5 Order. For example, since Rosenthal had willfully failed to answer interrogatories, the facts solicited by those interrogatories were deemed established against Rosenthal. He had refused to properly identify and produce documents, therefore, the court ordered that he was precluded from using the requested documents. He had refused to allow his deposition to go forward, therefore, it was specifically ordered that Rosenthal could not testify.

Considering Rosenthal’s repeated and flagrant violations of the June 5 Order, it cannot be said the sanctions imposed by the court were unwarranted or too harsh. Rosenthal was aware of the potential consequences of his violations of that order and clearly, “repeated warnings would have been futile.” (See County of El Dorado v. Schneider (1987) 191 Cal.App.3d 1263, 1277 [237 Cal.Rptr. 51].) However severe their ultimate consequences, these sanctions were an appropriate response to Rosenthal’s repeated and willful violations of a valid court order. A trial court in circumstances such as these, is not required to further tolerate such behavior. There was clearly no abuse of discretion.

c. Monetary Sanctions Imposed on August 29, 1986

Rosenthal contends that the award of $23,030 attorney fee sanctions was an abuse of discretion and “excessive.” He argues that his discovery violations were neither substantial nor willful; therefore, it was error to impose such sanctions against him. As discussed, supra, Rosenthal’s violations were both numerous and substantial, as well as willful. The court specifically found that Rosenthal ’’willfully failed to appear for the taking of his deposition and willfully failed to answer interrogatories”; that he and his attorneys attempted to avoid the requirements of the June 5 Order by making “an improper ex parte application and a motion” and he and his attorney forced CEH to obtain an ex parte order to maintain discovery priority; and that each of these constituted “bad faith action and tactics that [were] frivolous and solely intended to cause unnecessary delay . . . .” As already noted, Rosenthal does not even claim that these findings are not supported by the evidence. Clearly, the award of attorneys’ fees was proper under Code of Civil Procedure section 2034. An innocent litigant should never be forced to bear alone the financial burden of seeking legal redress for repeated willful violations of valid court orders.

Rosenthal also argues that the trial court erroneously included in the amount awarded the sum of $7,370 for the discovery motions which preceded the Stipulation and $3,006 for conferring and drafting the Stipulation and June 5 Order. In awarding the $23,030 as attorneys’ fees the court gave no explanation as to how it arrived at this particular figure. It appears, however, that this is the amount requested in CEH’s motion to strike Rosenthal’s answer, and is clearly supported by the record.

Contrary to Rosenthal’s argument, the language of the Stipulation implying a waiver of sanctions did not apply in the event of a subsequent failure to perform the discovery commitments set out in the Stipulation. The language used was obviously meant to be only a waiver of sanctions as to all discovery violations that occurred before the Stipulation was signed, not to those violations occurring afterwards. Clearly, Rosenthal’s conduct justified an award of substantial sanctions. The amount awarded ($23,030) was reasonable. There was no abuse of discretion.

2. Post-August 29 Sanctions Against Rosenthal (Case No. B025896)

On November 20, 1986, the trial court denied Rosenthal’s motion to vacate the Stipulation and the June 5 Order and imposed sanctions of $14,580 upon Rosenthal, and his attorney, Schulte, “jointly and severally.” On December 16, 1986, after Rosenthal had taken off calendar his motion for reconsideration of the August 29 Order, the trial court imposed sanctions of $13,401 upon Rosenthal, OMS, and the individual partners, Oring, Margolese and Schulte for filing that motion.

In this appeal Rosenthal seeks reversal of that portion of the November 20 Order and the December 16 Order which imposed sanctions against him under Code of Civil Procedure section 128.5 As we have already mentioned, he makes three arguments: (1) if the August 29 Order and the June 5 Order fall, so do the sanctions for seeking to have those orders set aside; (2) even if the sanctions were justified, they should not have been imposed on him since the acts for which the sanctions were imposed were the acts of Schulte, not himself; and (3) even if the $14,500 in sanctions imposed by Judge Cardenas’s November 20 Order were proper, the trial court failed to detail in writing the conduct or circumstances justifying them.

The first argument need not detain us. We have already concluded that the Stipulation and the June 5 Order were valid and enforceable and the August 29 Order was properly issued by the trial court. Nothing further need be said on this issue. Similarly, there is no merit to Rosenthal’s second argument that the sanctions should have been imposed only upon Schulte, and not upon him. The imposition of sanctions on Rosenthal was entirely justified. The record before us demonstrates very active involvement by Rosenthal in the various acts of misconduct which caused the court to impose those sanctions.

After the August 29 Order was issued, OMS advised Rosenthal that it would not be able to prepare a motion for reconsideration in a timely fashion and asked if he could obtain the assistance of another attorney. Rosenthal agreed and retained Andrew J. Velcoff to assist OMS. According to VelcofF’s declaration, he met with attorneys Margolese and Schulte, as well as Rosenthal, to discuss the case and to learn what needed to be done. They “each” explained to him their version of the facts, indicating that the August 29 Order had been made as a result of the trickery and deceit of opposing counsel and as a result of their own mistake, inadvertence, and excusable neglect.

On September 8, 1986, the moving papers supporting the motion to reconsider and revoke the August 29 Order, which Velcoff had prepared, were filed. On October 15, 1986, Rosenthal filed his moving papers in support of motions to vacate the Stipulation and the June 5 Order.

Most of the grounds and bases for these motions were in the declarations which listed numerous excuses for Rosenthal’s violations of the June 5 Order and which by August 29, had already been expressly rejected, determined to be false or both. In fact, affixed to these motions was the same declaration Rosenthal had filed in opposition to the original motion heard by Judge Ross on August 29.

With respect to the motion to vacate the Stipulation and the June 5 Order, Judge Cardenas, on November 20, 1986, found that “even if Rosenthal were to succeed in showing that there was no express authority for Mr. Schulte to enter into this Stipulation, there certainly was implied authority, as a stipulation resolving discovery disputes is clearly within an attorney’s general authority to bind his client in procedural matters arising during the course of the action. . . . Rosenthal clearly ratified his attorney’s conduct. According to (2) of Rosenthal’s own declaration, he read the June 5 Stipulation and Order on June 17, 1986. . . [he] never objected to Plaintiff, doesn’t even pretend that he ever claimed that his attorneys lacked authority to sign the Stipulation, and neither Rosenthal nor his attorneys ever attempted to have the Stipulation vacated until after Judge Ross sanctioned his [violations] of it. Instead, Rosenthal (so he swears) spent over 100 hours in preparing answers to interrogatories in accordance with the Stipulation. . . . Rosenthal also prepared and served a Response to Notice to Produce Pursuant to Stipulation and Order (Exh. 46) and served responses to requests for admission (Exh. 50) by the deadline . . . established in that very Stipulation (asserting service was pursuant to June 5, 1986 Order).”

As already noted, the motion to reconsider the August 29 Order was taken off calendar by Rosenthal shortly after November 20, 1986, but CEH’s sanction request, in response to said motion, remained on calendar and was considered by Judge Ross on December 3 and December 16, 1986. He determined that “The accusations against Richard Agay made by Rosenthal and his attorneys in the moving papers . . . are false, were known by Rosenthal’s attorneys to be false at the time of filing Rosenthal’s moving papers, and were made in bad faith . . . without substantial justification, and constitute bad faith actions and tactics that are frivolous and solely intended to cause unnecessary delay, and the positions taken by Rosenthal and his attorneys in such regard are totally and completely without merit.”

“In accordance with the usual rule on appeal, the judgment or order of the trial court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown. [Citation.] Where the evidence is in conflict, the appellate court will not disturb the findings of the trial court.” (Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 645, fn. 2 [192 Cal.Rptr. 57].) Here, as the trial court found, Rosenthal’s attempts to overturn the Stipulation and the June 5 Order, and the August 29 Order based thereon, were clearly frivolous and were brought in bad faith. From the record, there can be no doubt that, either alone or with attorney Velcoff, Rosenthal made the decisions and directed the preparation of these motions.

This conclusion is reinforced in the record by several subsequent disclosures. In papers served December 17, 1986, OMS moved to withdraw as attorney of record. In a declaration attached thereto, Margolese stated that the motion to reconsider (the August 29 Order) was made “upon grounds which [she] felt were so meritless and frivolous that [she] refused to file the Motion. . . . Rosenthal being an attorney himself chose to go ahead with the Motion for Reconsideration nevertheless and hired independent counsel (Andrew Velcoff) . . . .” On January 5, 1987, she filed a declaration stating that Rosenthal had “refus[ed] to cooperate in discovery . . . refus[ed] to follow legal advise [s/c] and insisted] time after time that this firm [assist] in his efforts to abuse the legal system. . . .”

Later, on February 27, 1987, during oral argument at the hearing on the motion for partial reconsideration of the December 16 order, Margolese acknowledged that when the motion to reconsider was filed she “felt that the motion was frivolous . . . [and] not only . . . meritless but. . . ridiculous

Rosenthal’s third and final contention with respect to the post-August 29 sanctions is that Judge Cardenas erred in adopting and incorporating, as the court’s specification of reasons for the award of fees in the November 20 Order, plaintiff’s Memorandum of Points and Authorities filed November 19, 1986. Rosenthal argues that by doing so, the court violated the requirement of Code of Civil Procedure section 128.5, subdivision (c) which states, “An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”

The November 20 Order did expressly incorporate the specification of reasons set forth in CEH’s opposing papers filed on November 19, 1986. In so doing, Judge Cardenas stated, “The conduct, circumstances and legal arguments so meticulously set forth therein provides the basis for the Court’s conclusion (finding) that the instant motions were brought in bad faith and were totally and completely without merit.” (See fn. 13, ante.) Although section 128.5, subdivision (c) requires the court to set forth, the specific circumstances giving rise to an award of sanctions, there is no prohibition against the court incorporating by reference papers which adequately set forth the conduct, circumstances and legal arguments which provide the bases for the court’s conclusions.

“The purpose of section 128.5’s provision for a recitation of the facts justifying a sanctions order is to fulfill the ‘rudiments’ of due process required for governmental imposition of a penalty upon an attorney or party—both for due process’ own, constitutional sake and to ensure that the power conferred by the statute will not be abused. [Citations.] Moreover, in some cases the court’s recitation will be an invaluable aid to a reviewing court determining whether the trial court abused its discretion in awarding sanctions. [Citation.]” (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1029 [215 Cal.Rptr. 708].) This purpose is equally served whether the court itself prepares the order, directs counsel to do so or simply incorporates, as the court did here, some specific portion(s) of a party’s papers. Had the Legislature intended to require the court to directly prepare its own order when imposing a sanction under Code of Civil Procedure section 128.5, it certainly knew how to do so (see, e.g., Code Civ. Proc., § 657).

In any event, the court also stated that it found “The Court’s order of June 5, 1986 was signed pursuant to a stipulation—entered into between the parties acting through their respective counsel—for such an Order, [fl] The Court concludes and finds that all fourteen pages of the ‘Stipulation to Resolve Discovery Disputes and Order’ were reviewed by counsel for defendant, Victor A. Schulte, before he signed it, thus binding his client. ...”

Therefore, it appears that Judge Cardenas’s order itself, aside from expressly incorporating statements from another document, included independent reasons showing the motion to vacate to be frivolous and made in bad faith. There was no error in the imposition of these sanctions.

3. Sanctions Against OMS (Consolidated Case No. B024983)

In these consolidated cases OMS has brought three separate appeals from three different judicial decisions on related matters. The first order appealed from is Judge Cardenas’s November 20 Order which imposed sanctions of $14,500. The second is Judge Ross’s imposition of sanctions ($13,401) in the December 16 Order. The third is Judge Lewin’s order of March 9, 1987, in which he denied OMS’s motion for contribution from Rosenthal for the attorneys’ fees and sanctions imposed by the previous orders of Judges Cardenas and Ross and which OMS had paid in their entirety. (See fn. 25, post.)

According to Margolese, OMS initially had refused Rosenthal’s request to file the motion for reconsideration of the August 29 Order. Rosenthal then retained Velcoff to prepare the motion and requested Schulte and herself to cooperate with Velcoff. Later, independent of OMS, Velcoff and Rosenthal determined that there would not only be a motion for reconsideration but also a motion to vacate under section 473. When she noticed that the law firm’s name was on the pleadings along with Velcoff’s name, she protested to Rosenthal. Because of a time problem, it was agreed that OMS would file the motions unchanged and Rosenthal and Velcoff would correct the record before the Court within the next day or two. After the motions were filed, Velcoff reneged on this promise and refused to execute the appropriate substitution of attorneys.

Velcoff maintains that he was not retained to represent Rosenthal as independent counsel, but only as a “ghost writer.” Velcoff, in his declaration, states that his role was “ministerial in doing research (along with Vana Margolese), drafting and putting together documents”; that at no time did Schulte or Margolese indicate that they opposed the filing of the motion; that Margolese’s statement that he agreed to substitute in as counsel is “absolutely untrue”; that Velcoff later entered into a letter agreement with OMS limiting his participation in the motions retrospectively; and that Rosenthal refused to sign any agreement regarding Velcoff’s status.

The monetary sanctions imposed by these two orders were promptly paid to CEH. On January 6, 1987, the court granted OMS the right to withdraw as attorney of record. On February 27, 1987, a motion for partial reconsideration of the sanctions and the issue of joint and several liability was heard and denied. The court concluded that OMS’s primary duty was to the legal system and that the motions should not have been filed despite the client’s insistence. Within 10 days after payment to CEH, OMS filed 2 motions for contribution pursuant to Code of Civil Procedure sections 882 and 883. These motions were denied.

OMS asserts two principal arguments in support of its position in these consolidated appeals. The first addresses itself to the two sanction orders; the second responds to the denial of the contribution motion.

a. The Attorney’s Ethical Dilemma

OMS contends that there is a “Constitutional flaw” in Code of Civil Procedure section 128.5 since it allows sanctions to be awarded against an attorney in those “rare but not unusual” situations where an attorney cannot exonerate himself without breaching his ethical obligations to his client. OMS argues that when the sanctions were awarded against them they could not have withdrawn from the case without adversely affecting Rosenthal’s position, and that the attorney/client privilege prevented them from being able to exonerate themselves. They assert that “counsel should not be placed in the position of making a decision to forego an obligation to a client to pursue diligently any possible meritorious motions on a unilateral decision that a particular motion may be considered by the judicial system to be ‘frivolous.’ ”

Under Business and Professions section 6068, “It is the duty of an attorney: ... [H] (c) To counsel or maintain such actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense. [|] (d) To employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. ” (Italics added.) (See 1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 400, at pp. 452-453.)

Rule 7-105 of the Rules of Professional Conduct of the State Bar of California in part provided that “In presenting a matter to a tribunal, a member of the State Bar shall: fll] (1) Employ . . . such means only as are consistent with truth, and shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law. . . .’’As OMS now apparently recognizes, it is clear that an attorney must withdraw from a case when his client demands tactics that the attorney concludes are frivolous or breach the attorney’s obligation to the legal system. (Rules of Prof. Conduct, rule 2-1 ll; Bus. & Prof. Code, §6068, subd. (b).)

On November 20, 1986, after hearing the motion to vacate the Stipulation and the June 5 Order, Judge Cardenas, by his express adoption and incorporation of CEH’s moving papers and supporting points and authorities, found that “all fourteen pages of the Stipulation were reviewed by Schulte before he signed it”; that Rosenthal’s attorneys’ story that when they signed the Stipulation it was not stapled together or that the Order page was missing “is a total prevarication”; that Rosenthal’s attorneys’ story is a “recent fabrication”; that Rosenthal’s entire motion is premised upon the charge of fraud by CEH in supposedly “sneaking an additional page into the Stipulation after it had been signed. . . . That premise is a pernicious prevarication”; and that the basis for the claim is “pure fabrication.” The record shows that there were at least eleven separate factual bases supporting these findings of falsehoods relied on by CEH and expressly adopted by the court.

It does not end there. After considering CEH’s request for sanctions arising from Rosenthal’s motion to reconsider the August 29 Order, Judge Ross, on December 16, 1986, stated that the primary basis for the motion was “an out-and-out lie.” Specifically, he found that “The accusations against Richard Agay made by Rosenthal and his attorneys in the moving papers in support of the Rosenthal Motions are false, were known by Rosenthal’s attorneys to be false at the time of filing Rosenthal’s Moving Papers, and were made in bad faith . . . the accusations and claims . . . are without substantial justification, and constitute bad faith actions and tactics that are frivolous and solely intended to cause unnecessary delay . . . the positions taken . . . are totally and completely without merit.”

Contrary to QMS’s arguments, they did not face an ethical dilemma. An attorney does not have an ethical obligation to his client to perjure himself or to file a knowingly frivolous or bad faith motion. Schulte and Margolese did not have an ethical obligation to Rosenthal to sign or file false declarations. To the contrary, OMS had an affirmative duty to refuse to falsely accuse CEH of committing fraud. (Davis v. State Bar (1983) 33 Cal.3d 231, 239-240 [188 Cal.Rptr. 441, 655 P.2d 1276]; Reznik v. State Bar (1969) 1 Cal.3d 198, 205 [81 Cal.Rptr. 769, 460 P.2d 969, 40 A.L.R.3d 161]; McMahon v. State Bar (1952) 39 Cal.2d 367, 370 [246 P.2d 931].)

This conduct goes far beyond maintaining client confidences or refraining from jeopardizing a client’s position. Here, OMS willfully and knowingly made false declarations and statements in an attempt to deceive the court. They cannot excuse such behavior by claiming that their client had “insisted” upon it. If Rosenthal demanded such action, OMS had no choice but to immediately withdraw from the case. (Rules Prof. Conduct, rules 2-111 (B) and (C)(1)(a); Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1103 [200 Cal.Rptr. 18]; Metzger v. Silverman (1976) 62 Cal.App.3d Supp. 30, 39 [133 Cal.Rptr. 355].)

In this situation, the sanctions against OMS and the individual attorneys were not based upon any speculation or conjecture by the trial court. Both judges specifically found that the OMS’s claim of fraud against CEH was blatantly false. This is not a case where their client misled OMS but one where they themselves knowingly lied to the court, acquiesced in their client’s demands, and actively supported frivolous motions. An award of sanctions against the attorneys in this situation was absolutely mandatory. This is an example of one of the “clearest of cases.” The arguments made here by OMS to justify their conduct, and thus defeat the sanctions ordered by the trial court, rest upon a lamentably incorrect understanding of a lawyer’s legal and ethical responsibilities. The flaw does not, as OMS asserts, lie in Code of Civil Procedure section 128.5, but rather in the behavior of counsel.

b. Right to Judgment Debtor Contribution

OMS also contends that Code of Civil Procedure sections 882 and 883 apply to all joint and several money judgments including those awarded against an attorney and his client under Code of Civil Procedure section 128.5. Consequently, the court erred in denying their motion to force Rosenthal to reimburse OMS, in whole or in part, for the attorney fee sanctions awarded against them. With this contention, we agree.

Rosenthal argues that persons upon whom sanctions are imposed under section 128.5 are not “judgment debtors” within the meaning of Code of Civil Procedure sections 882 and 883, and, therefore, are not subject to contribution. In deciding whether or not these sections are applicable to orders as well as formal judgments, the key determination is whether the award of sanctions is final and appealable. If it is, then, contrary to Rosenthal’s argument, the rules regarding contribution apply and the label “judgment” or “order” is not material. Where a court has imposed a monetary sanction by an order which is final and appealable, no good reason exists not to treat that order as though it were a judgment for purposes of Code of Civil Procedure sections 882 and 883. Such an order has all the indicia of a judgment except that it relates to a collateral matter.

It is true that generally, “an order is not a final determination of the cause but an intermediate ruling of some kind, usually a decision on a motion.” (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 3, p.454.) However, that portion of the order imposing monetary sanctions pursuant to section 128.5 does constitute “ ‘a final order on a collateral matter directing the payment of money.’ ” (I. J. Weinrot & Son, Inc. v. Jackson, supra, 40 Cal.3d 327, 331, italics added); see also Bauguess v. Paine (1978) 22 Cal.3d 626, 634, fn. 3 [150 Cal.Rptr. 461, 586 P.2d 942]; Ellis v. Roshei Corp., supra, 143 Cal.App.3d 642, 645, fn. 3; Wisniewski v. Clary (1975) 46 Cal.App.3d 499, 502 [120 Cal.Rptr. 176]). Therefore, OMS, and the named partners, were “judgment” debtors within the meaning of sections 882 and 883 and the court erred in denying OMS’s motion for contribution.

According to the Law Revision Commission comment, 1982 Addition, “Section 882 . . . permits contribution where a joint judgment debtor satisfies a disproportionate share of a money judgment, or satisfies the judgment as a surety, whether by voluntary payment or involuntarily through levy upon and sale of property, wage garnishment, examination proceedings, or some other procedure. This section does not determine the proportionate shares of the obligation on a judgment; the joint judgment debtor’s share depends on the circumstances of the case.” We construe this comment to support our view that where there is no apportionment of joint liability made by the judgment or order itself, or dictated by the terms of some underlying instrument, such as a partnership agreement (see, e.g., Woolley v. Seijo (1964) 224 Cal.App.2d 615, 621-622 [36 Cal.Rptr. 762]), then the “due proportion” of the liability of the several judgment debtors shall be calculated on a pro rata basis.

On November 20, 1986, the trial court imposed sanctions of $14,500 upon Schulte and Rosenthal, “jointly and severally.” There are clearly only two persons subject to the order and, absent a different apportionment by the court, they should, as between themselves, share the burden equally. No factual issue as to apportionment arises. Schulte is entitled to a one-half contribution from Rosenthal of $7,250.

On December 16, 1986, the trial court imposed sanctions of $13,401 upon Rosenthal, OMS, and the individual partners, Oring, Margolese and Schulte. Since all three partners were named in addition to the law firm, it is unclear to us whether the trial court intended that all the “lawyers” should constitute one entity and Rosenthal the other, or whether it intended that each named individual or entity be considered separately as a different debtor. This issue must therefore be remanded to the trial court for a determination of such intent. The matter can be resolved at the hearing on QMS’s motion for contribution.

Sanctions on Appeal

1. Sanctions Payable to CEH

Sanctions for a frivolous appeal are being sought by CEH in connection with Case Nos. B033315 and B025896 against both Rosenthal and his counsel on appeal, Ronald P. Kaplan (Kaplan). In consolidated Case No. B024983, CEH, as real party in interest, is also seeking sanctions against OMS.

Under Code of Civil Procedure section 907, “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.” California Rules of Court, rule 26(a) provides in pertinent part, “Where the appeal is frivolous or taken solely for the purpose of delay . . . the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require.”

The twin standards for determining when an appeal is frivolous were considered by the Supreme Court in In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179]. That opinion guides and controls our resolution of CEH’s request for sanctions.

“The California cases discussing frivolous appeals provide a starting point for the development of a definition of frivolous. Those cases apply standards that fall into two general categories: subjective and objective. [Citation.] The subjective standard looks to the motives of the appellant and his or her counsel. Thus, in Simon v. Bemis Bros. Bag Co. (1955) 131 Cal.App.2d 378, 382 [280 P.2d 528], the court rejected a claim that an appeal was frivolous, noting that counsel presented his argument in a ‘courteous and gracious manner’ and seemed to believe ‘fervently’ that he might succeed on the merits. Similarly, the courts have frequently looked at the ‘good faith’ of the appellant and have penalized appellants where the only purpose of the appeal was delay. [Citations.]

“The objective standard looks at the merits of the appeal from a reasonable person’s perspective. ‘The problem involved in determining whether the appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.’ [Citations.] fl[] The two 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. [Citations.] [fl] Both strands of this definition are relevant to the determination that an appeal is frivolous. An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, 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. [Citation.]” In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 649-650.) (Italics added.)

Here, we have no trouble concluding that Rosenthal has prosecuted these appeals for no other reason than to harass and delay CEH. That conclusion is amply supported by the total lack of merit which we have found in the arguments advanc