9th Cir. sanctions

Today's published opinion in In re Westwood Plaza North, is a per curiam opinion from this month's motions panel, holding that the FRAP 38 motion for sanctions (for pursuing a frivolous appeal) was timely because it was filed within the time for seeking fees (under 9th Circuit rule 39-1.6(a)), i.e., 14 days after the time for a rehearing petition or after the court's disposition of a rehearing petition. Rule 38 doesn't itself contain a time limit, and the 9th Circuit had never before specifically address the teim limit under Rule 38 for situations where the motion is filed after the court disposes an appeal on its merits (or lack thereof, in such cases!). The opinion also reiterates (citing a case from 1984) that an appeal is frivolous "if the result is obvious or if the claims of error are wholly without merit." Proceedings to determine the appropriate award of attorney's fees as sanctions were referred to the Appellate Commissioner. Note that the appellee seeking sanctions also requested double costs as another form of sanctions. But that was denied because the appellee had failed to file a timely costs bill! Perhaps appellee was waiting to see if the award would be doubled? The lesson is clear: Always file your costs bill on time. And worry about getting it doubled after it's been filed!