$25K for a Malicious Anti-SLAPP & Other Bad-Lawyering Sanctions

AI-sanctions might get eyeballs, but the bigger sanctions are still for plain old bad lawyering. Jeff also raises this ethical and pragmatic question: who defends the lawyer when sanctions threaten the client? Should counsel facing an OSC retain separate counsel for the sanctions component to avoid divided attention and better protect client interests? What if the costs of independent counsel are likely to exceed the sanction?

• $25K for using Anti-SLAPP as a litigation weapon. A bare-bones anti-SLAPP was amplified by record emails suggesting the strategy was to inflict cost and pain rather than win on the merits.
• $13K for relitigating the merits through a fee appeal. The appeal purported to challenge fees, but largely recycled arguments already rejected in the prior appeal. The court finds the effort both objectively meritless and subjectively aimed at rehashing settled ground.
• <$2K for fabricated authority & thin explanations. Schlichter v. Kennedy results in $1,750 against an attorney who relied on nonexistent or inapposite citations and offered credibility-challenged explanations about verification methods. After the court’s exhaustive point-by-point teardown, the monetary sanction seems merciful.
• Pro per’s sanction is dismissal of appeal. In Arno Kuglua v. Young Park, the Court of Appeal dismisses an appeal for failure to support arguments with proper authority.

Also: AI guidance from the courts**:** The California Courts of Appeal publish user-facing AI guidance emphasizing verification, independent source-checking, and personal accountability for filings—even if AI assists with drafting.

Transcript

Jeffrey Lewis
Welcome everyone, I am Jeff Lewis.

Tim Kowal
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague.

Jeffrey Lewis
Yeah, give us a rating on Apple podcasts or wherever you listen to this podcast.

Tim Kowal
Well, as mentioned in our last episode, we have another batch of AI sanctions and also not just AI sanctions, but just regular old bad lawyering appellate sanctions that have come down the pike recently. We thought we'd cover those. know, Jeff, I do get nervous that we are giving our audience so many of these sanctions cases that maybe they would get bored of them. you know, maybe we are at a time. Maybe this is like a time capsule in 2025.

I don't know that I have seen so many cases of appellate sanctions as I have in many years. What say you?

Jeffrey Lewis
Yeah, anecdotally you're seeing them more, but also you're seeing more in pro per's who are feeling comfortable enough to file briefs because they're armed with chat GPT or their AI of choice. So maybe it's a function of more in pro per's or maybe lawyers who normally wouldn't file an appellate brief, but feel well armed with AI at their side.

Tim Kowal
emboldened to do so. Yeah.

Well, just at a high level, the three or four cases we're going to deal with, two of them are AI-related, and two of them are just regular garden variety bad lawyering related. And interestingly, the two AI-related cases involve sanctions in far smaller dollar amounts than the other traditional

appellate sanctions for bad lawyering cases. So let's start with, I'm just gonna go in order of size of sanctions. So the first one is a $25,000 appellate sanction in a non-AI violation. This case is Masjedi versus Valdez out of the second district. It's not published, but what happened in this case is that attorneys filed anti-slap motions and

The court affirmed a $25,000 sanctions award against the appellant because they pursued what the court deemed a frivolous appeal of a denied anti-slap motion. The appellant's came down largely to, the sanction came down to bad conduct. They filed a bare bones anti-slap motion with merely conclusory arguments. They failed to identify specific protected activities and then,

This was the clincher they there the the record contained some pretty damning emails in which the the offending attorney Admitted in an email that his litigation strategy was designed to inflict cost on his elderly former landlord the Court of Appeal found the appeal objectively frivolous and Subjectively undertaken for an improper purpose and a textbook example

of when appellate sanctions are appropriate. Apparently the damning email said something to the effect of, every dollar I spend to inflict, it costs your client $20 to respond. So pretty clear evidence of an improper purpose in pursuing that appeal.

Jeffrey Lewis
Yeah, and ⁓ would you like to hear the rest of the story? I took a look at the ⁓ online docket for this case and you would think after a scorching ⁓ opinion like that and issue of sanctions that an appellant might take a deep breath, take a pause, stop litigating, hire a specialist to come in, do something different. ⁓ From the docket, it looks like

the appellant filed a motion for relief from extrinsic mistake and or fraud in response to this opinion. And it looks like the court of appeal has denied that motion and no word yet. I think we're right around the cusp of the time when the appellant could file a petition for review. But my guess is he's going to file a petition for review.

Tim Kowal
You think based on the sanction?

or the order denying relief from... what was it, a 473 motion?

Jeffrey Lewis

Yeah, it's hard to tell from the docket. just says, motion for relief from extrinsic mistake and or fraud. Yeah, I imagine he will ask the Supreme Court to take a look at both. Yeah.

Tim Kowal
Yeah Well given

it it otherwise looks like you know garden variety appellate sanctions for an appeal that had no merit given the underlying Anti-slap was just bare bones and why would anyone just file a bare bones? Motion well, maybe they don't know any better or as these ⁓ emails that the court pointed to indicate Maybe it was just to inflict the hurt the litigation hurt on the on the defendant on the

plaintiff. Okay, the next case going down the list. This one is a $13,000 appellate sanction award. Also for regular frivolousness, not apparently AI related. This is ⁓ GW versus Coronado Unified School District. Another non-published opinion out of the ⁓ fourth district. What is that? Fourth district division one. This is a

Jeffrey Lewis
Yeah.

Tim Kowal
2025 case from September, back in September, the court imposed $13,000 in sanctions against attorney, the attorney for pursuing a frivolous appeal. The underlying case involved challenges to a school mask mandate during COVID-19 after the trial court granted the defendant's anti-SLAP motions and awarded attorney's fees.

plaintiffs appealed both rulings. The court had already rejected the plaintiff's arguments against the anti-slap dismissal, however, in a prior appeal. So it looked like maybe trying to take a second bite at that apple in the second appeal. Even though the second appeal really could only challenge the fee award, nonetheless, the attorney made essentially no arguments about the fee award itself. Instead, it was just trying to re-litigate the underlying anti-slap ruling.

that had already been decided against her clients, both in the trial court and in the court of appeal, repackaging some of the same arguments as jurisdictional issues. And the court found that appeal was frivolous, both objectively and subjectively. Any reasonable attorney would agree it was totally without merit. And subjectively, it was brought for the improper purpose of relitigating settled matters.

It's one of those where subject and object have seemed to conflate a little bit, but.

Jeffrey Lewis
Yeah, you know, on surface level, by the way, the sanctions order here, you know, it's pretty extreme, extreme set of circumstances. And I could see why the court issued sanctions. But this is a good lesson learned in terms of appellate attorneys making sure they're not relitigating cases that have been resolved or subject to the law of the case doctrine. Because I could see this type of court of appeal issuing sanctions in less extreme circumstances.

where an appeal is really seeking to relitigate same issue over and over again. And also at the risk of repeating myself, do you think the lawyer here who got sanctioned took a deep breath, took a pause, paused to beat and said, you know, maybe I'm done with this appeal.

Tim Kowal
Yeah, and you wonder if this is the attorney or if it's a lack of client control.

Jeffrey Lewis
Yeah. Let me answer my own question. They filed a petition for review in the Supreme Court. Yeah. With you know how there's a rule. I can't remember the rule that lets you attach the smoking gun memo. You know, the 10 pages, the really hot document, any 10 pages you want to your brief. It's great rule. The petition for review here had 511 pages of attachments to their brief.

Tim Kowal
No.

Jeffrey Lewis
and they had to get special permission from the court to file such a brief and they got it. Petition for review is ⁓ still unresolved.

Tim Kowal
Well, okay, I don't know what they think they're gonna gain by attaching 500. This is 500 something pages of record material or extra record material. Do we know?

Jeffrey Lewis
Yeah,

the docket doesn't reveal that, but what this does show is 100 % of the sanctions cases you've discussed on this podcast, the court of appeals sanctions was not enough to deter these folks from moving forward with their appeals.

Tim Kowal
Yeah, what do you think, Jeff? Do you think that ⁓ that an unsuccessful petition for review exposes the attorney to potentially increased sanctions? I haven't heard of that specifically, but I suppose it's it's on the table.

Jeffrey Lewis
Yeah!

Well, imagine this, especially in case number two that we discussed, where you're accused of relitigating or seeking to relitigate issues that have been resolved by ⁓ law of the case. If your petition for review doesn't have some dramatically new and different issue that hasn't already been litigated to finality in the prior appeal, if I were the other side, I'd be seeking sanctions.

Tim Kowal
But they go to the jurisdiction of the court, Jeff, they can be raised at any time, always and forever.

Jeffrey Lewis
I'd rather represent the other side on that argument.

Tim Kowal
Although as we alluded to,

as I alluded to in the last episode when we covered the case, don't know, Kardashian or whatever the name of that case was that dealt with that rule that in California you don't need to show an injury in order to get damages if there's a statutory right to damages. my brief research, because I was surprised by that rule, I didn't know that jurisdiction and the idea of the judicial power

Tim Kowal
was regarded differently in California than it was in the federal system. But it occurred to me that jurisdiction is not a platonic concept. It's not a constitutional concept in the California system. It's just prudential. So when the courts say, it's absolutely beyond our jurisdiction, they don't really quite mean that. They just mean that we absolutely prefer not to decide things that are outside our jurisdiction.

Tim Kowal
what we call our jurisdiction. And when they say that we do not issue advisory opinions, well, that's all they mean is that we don't do it. We just prefer not to do it, not that they can't do it. when we talk about, yeah, jurisdictional issues can be raised at any time. I don't know, I guess they could, but I guess technically, what are you supposed to do? Raise it in a...

If it's already been decided in an appeal and the time for petition for review has expired, I guess you could still do it in. Have you ever filed a petition for writ of Coram Nobis?

Jeffrey Lewis
No, but I think before I filed such a writ, I would sit my client down and talk to them about finality in the end.

Tim Kowal
All good things must come to an end.

Yeah, yeah, sometimes I I try to explain that part of part of what we do is just help bring closure to a case We just we want to make all the arguments yeah, of course because you want one of them to stick you want one of them to prevail but also just so you know that you made all the arguments so you can just You know lay down your arms, you know and just just go open up another chapter of your life and and leave this behind because if the client feels that there was some you know the some

volley that was not lobbed, they have to keep fighting until they emptied all the chambers.

Tim Kowal
I wonder if that's happening here. Okay. All right. The next one, Jeff. Okay. Now we're getting into AI sanctions, but the amount of sanctions decreases markedly from the two that we discussed previously, 25,000, 13,000. Now we're getting into another, to an AI sanction. We covered a lot of those a couple of weeks ago. This one's only for $1,750. This is Schlichter versus Kennedy out of the fourth district division two, where the court of appeal sanctioned the attorney.

Jeffrey Grotke for relying on fabricated legal authority in his briefs. And I read through, when I was reading through this order, I was expecting the amount of sanctions to be much greater because as I read, know, the Court of Appeal noted that there seemed to be a lot of fabricated citations and citations that don't stand for the propositions that they're cited for. The court noted that

issued an order to show cause and the attorney said, know, assured the court I did not use AI, absolutely no way, no how. And then later it came out that, well, maybe I used AI, but I checked all of the citations using this legal service called Lex, something I hadn't heard of before.

Jeffrey Lewis
it's it's VLACS. It's actually the backbone of Cleo work, which I've talked about a few times on this podcast. And it's also used to be fast case, which I think is a benefit. If you're a member of the California Lawyers Association, you get access to this formerly fast case VLACS database. So it's not like he was ⁓ looking at Wikipedia.

Tim Kowal
Right, okay, so he was using a legitimate service, but then it turned out that actually he didn't subscribe to that service until after the offending citations happened. So there was just a series of backpedaling and ultimately the court went point by point through just about every problematic citation in the brief and rebutted, refuted all of the explanations given.

that no, it doesn't stand for that. No, this citation does not exist. It doesn't refer to a real case. And the real case that is a close match doesn't stand for this proposition. It's not even this sort of case. very patient. It was a very patient opinion going through all of these misstatements and ultimately finding that the attorney was not credible. And again, I said, I was surprised to find that the sanction was only $1,750.

Jeffrey Lewis
Well, yeah, you neglected to point out to him that as a last-ditch effort, his concluding thought in his written response before the court issued sanctions, he said, you know, sanction me 500, just take this OSC off calendar. I shouldn't have to show up. Yeah.

Tim Kowal
Yeah, yeah, nice offer of compromise.

Yeah, so in the court said that the attorney's explanations were not credible and that the attorney lacks candor. You know that it just again emphasize for me that it was seemed like a light sanction. I think this attorney should should be grateful to have gotten off the hook. But again, you know we keep coming back at the boy Schiller still lurks in the background and.

All indications suggest that the hammer is going to come down really hard there where the attorney did do everything right after the offending AI missteps.

Jeffrey Lewis
Yeah, yeah, by the way, as of today, we're recording this December 18th. There's been no further action on that Scientology case, but also getting back to this AI case. Do you think maybe after getting sanctioned, this attorney took a deep breath, paused a beat and decided, well, maybe I should stop litigating this in the court of appeal. Maybe I should just eat this one.

Tim Kowal
No, I didn't get that impression from this opinion either.

Jeffrey Lewis
I will tell you after checking on the online docket this judge I mean this attorney Voluntarily paid the sanctions to the clerk of the court and there's no indication. He's petitioning for review

Tim Kowal
Okay.

Well again, I mean that's this one's getting off fairly light. It's still going to be reported to the state bar, but. Otherwise, I think you just take your lump on this one.

Jeffrey Lewis
Yeah. ⁓

Let me ask you,

let me ask you Tim, it's never happened to me and hopefully it never happens to me or you, if a court sets an OSC, Re-Monetary Sanctions, isn't it the moment you have another attorney show up for you? I mean, to go, I mean, maybe you show up in person to be there to answer questions, but at that point, do you actually have duties to your client?

to ensure that the court of appeal is gonna treat your client fairly and maybe not crucify your client for your AI-fueled mistakes. I'm just surprised when I read these sanctions cases about these lawyers showing up themselves and responding themselves and arguing themselves that they don't pause a beat, take a breath and say, hey, I'm gonna have my friend Tim come argue the sanctions issue because maybe I'm not gonna be clear-headed in terms of defending my client on this issue.

Tim Kowal
Hmm. Yeah, I hadn't I hadn't thought about that. I guess a couple of initial thoughts is that maybe if maybe probably there's a selection bias issue there, most of the attorneys who are getting orders to show cause are maybe not the type of not so scrupulous as to think that far ahead and make sure that their client is fairly treated and get to get a new neutral attorney to come in and help mediate those issues. And then the other thought is

Yeah, especially if you have to pay another attorney. And as this case indicates, you're not going to get hit more than a couple thousand bucks. You'd spend more than that on hiring independent counsel. So maybe it's not worth it. And then a final thought is, I wonder if the court really wants to hear from you personally, the attorney who did the thing that has annoyed and offended the court, rather than hear it through an intermediary.

Jeffrey Lewis
Well, yeah, there's no question if there's an order to show cause you got to show up, be in the building, maybe even sit at council table and ready to pipe in and answer questions. But, you know, some of these cases involve the court of appeal addressing both the merits of a case and sanctions in the same argument. And I just ⁓ it just always surprises me that one lawyer is handling it all. It's a lot of hats to wear.

Tim Kowal
I got you. Yeah. So

if you're doing the merits argument and in order to show cause on this collateral issue, yeah, do you need to have some bifurcation among counsel or at least maybe just bring an associate with that? You think that would fit the bill?

Jeffrey Lewis
Yeah. Yeah.

Yeah.

Uh, maybe. it's one step better. Not quite, uh, fully protecting the client, but one step better.

Tim Kowal
Yeah.

Yeah. Well, again, if 2025 is a time capsule, I hope that the bar... Certainly, we're all constantly learning lessons about how to use AI, and it's a work in progress. And as we've talked about, Jeff, and as we continue to think about, we don't want to be left behind. We don't want our clients to be disserved by their attorneys just ignoring the benefits that AI can bring to them and their

the representation and the efficiency by which we can provide certain services to them. We don't want to overstep. We don't want work product going out of our shops generated by AI, especially if it's not been looked at by an actual person with a bar number. So these are the problems. I think maybe the lesson is not that hard. And it's simply that your work product needs to be written and or

Jeffrey Lewis
Yeah.

Tim Kowal
and at a minimum read and carefully reviewed by someone with a bar number. Someone who will fall on their sword if a bad thing happens and not blame it on AI, not blame it on an assistant. We need to realize what our duties are.

Jeffrey Lewis
Yeah.

Tim Kowal
Okay, last case, Arno Kuigoua versus Young Park. This is an appeal. Another AI, more AI problems with hallucinated cases and such. No monetary sanctions in this one because since the offending attorney was the... ⁓

You know, I should check and see here. think maybe this was not an attorney who committed the offense. It was a pro-per, and so the court saw fit simply to dismiss the appeal.

Jeffrey Lewis
This is a...

Yes, this is my recollection is this is not an AI issue, but an improper who didn't cite cases. He just made arguments and it's the ultimate finding of forfeiture by the court of appeal here saying, you know, unrepresented parties are held to the same standard as attorneys. And if you don't support your arguments with authority and citations of the record, you risk.

the ultimate forfeiture of having your case dismissed.

Tim Kowal
There's a kind of an editor's note from the opinion here that it says that this decision contains discussion of citation references that are incorrect or do not actually exist. These invalid citations appeared in the original court opinion and have been preserved as written since they are part of the official record. But any links to these invalid citations have been removed. So this kind of goes back to Justice Weingart's point.

Jeffrey Lewis
⁓ okay.

Tim Kowal
I think this is also referenced in the Nolan cases. This is kind of the of the lodestar on these AI sanctions cases that the court in watching for and gatekeeping these AI hallucinations and miscitations, they're performing a gatekeeping function by making sure that fake citations and wrong citations do not make their way into the official California reporter. We don't we don't want to pollute our, you know, our in case law.

Jeffrey Lewis
Yeah. And by way of postscript, let me just say this improper party who was ultimately sanctioned by having his case dismissed did not pause a beat, did not take a deep breath and instead filed a petition for rehearing, which was denied and has filed a petition for review with the California Supreme court, which is still pending.

Tim Kowal
Yeah, I haven't known any ⁓ any forfeiture issues to get a lot of traction in in the Supreme Court. Those are just issues of, you know, they're pure error. Even if even if it was erroneous to find a forfeiture, it's not a statewide policy issue grounds for review under a rule eight point five hundred.

Jeffrey Lewis
At this point it is widespread. But yeah, I'm with you.

Tim Kowal
Yeah, that's true.

Yeah. Okay. And then to bookend all of these AI sanctions and AI violation cases, the courts of appeal have now posted this helpful AI advice about how to use AI for your court case. This is published on the appellate.courts.ca.gov, the courts of appeal site.

And they have a helpful FAQ on how to use, to responsibly and appropriately use AI for your court case. So it says, if you're considering using AI tools like ChatGPT to help with your court case, please visit our using AI page to help you use these tools safely and effectively. It gives you a little bit of a background about what AI is and how it can maybe help you. And it tells you, gives you some...

suggestions for where AI may be viable to help you, write drafts of letters, forms, or court papers, fix grammar, improve your writing, explain legal words in plain language, understand the steps in a court case. I thought this one was interesting. It goes on to say, follow these guidelines to use AI safely. And the first one is make sure the court allows you to use AI.

I hadn't thought about that. Do you know of any courts, that explicitly forbid the use of AI?

Jeffrey Lewis
No, but you and I have chatted on the podcast about some courts who are requiring disclosure that if you've used AI, you signed something on the brief saying, you know, which one, which AI used and that you still double checked everything.

Tim Kowal
Mm-hmm. It goes on and then it goes on to say, of course, double check anything AI gives you. Ask AI to give sources and then check them yourself. I think that's very good advice. And in fact, whenever I do use AI to help assist anything with substantive legal research, I always prompt it to tell me the case citation. know, don't just show me your work because

Jeffrey Lewis
Show me your work.

Tim Kowal
I need to follow that instruction to go and check it out yourself. Talk to a lawyer for legal help. That, of course, is music to all our ears as attorneys who rely on clients calling us.

Make sure all your court papers are correct, even if AI helps. So yeah, I flagged the one that says make sure your court allows you to use AI. I'm just not sure how the court, if it would be, you think it would be appropriate for a court to forbid you from using a resource, any resource.

Jeffrey Lewis
No, look, old school Westlaw, you know, with natural language searching is in effect AI. I mean, it's not generative, but ⁓ clear brief, you know, the original version that came out that helps you find the right source in your record to support a statement is AI. I just can't imagine a court forbidding use of those old school tools.

Tim Kowal
It's an Yeah, yeah, well, and that for that matter, know, Westlaw headnotes where you can just, you know, find find find headnotes that that's how I used to typically start my research is often going through going through headnotes or notes of decision. And sometimes you find little snippets that seem that that looks great. Let me just drop that directly into the brief. And you and you could be tempted not to read it. And I think I think that's the you know, that's that's the the road to hell.

is the temptation. When there's temptation with so much good legal content out there that is just right at your fingertips, you can drop right into your brief if it's a note of decision or a head note or case text giving you a good snippet or chat GPT writing a whole brief. Obviously that's just enlarging the temptation.

Jeffrey Lewis
Yeah.

Tim Kowal
Okay, well that's gonna do it unless you have something else, Jeff.

Jeffrey Lewis
I do have something else. think this is our last podcast of the year in terms of when it airs and I wanted to wish you a happy holiday. I'm so grateful that we do this podcast together and I hope you have a restful and AI hallucinated case free holiday.

Tim Kowal
Yeah, yeah, I'm sure that'll be the case. I plan

not to be using AI, at least not for doing any legal research over my Christmas holiday. Yeah, and we, yeah, so we're closing out, what this is, are we closing out our sixth year? We're five and a half years in to doing this podcast. Is that about right?

Jeffrey Lewis
Yeah, this was our pandemic project.

Tim Kowal
Yeah. Yeah. So we're, you know, we're going to keep going with it. We're going to sit down and figure out what our, what our big plans are for 2026. I've got some ideas, but you and I need to sit down and talk about it. And then we'll, and then we'll tease our audience when we, have something concretely put together.

Jeffrey Lewis
We're gonna use AI to imitate our voices to do the podcast for us. That's one of the ideas we're talking about,

Tim Kowal
Yeah, yeah, that was it. We can't get sanctioned for the podcast. I don't think. All right.

Well, that'll wrap us up. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis
See you next time.