Williams v. Davis

McCOMB, J. This is a motion to dismiss appeals from orders (1) granting respondent’s (defendant in the trial court) motion to terminate proceedings for the preparation of a transcript on appeal, (2) of the superior court denying appellant’s (plaintiff in the trial court) motion for a new trial pursuant to the provisions of section 953e of the Code of Civil Procedure, on the ground that the appeals are sham, frivolous and taken solely for the purpose of delay.

There is also a motion to strike appellant’s opening brief "from the files on the ground the brief contains language disrespectful and abusive of the trial judge.

I

The record discloses that after a trial resulting in a judgment in favor of respondent, appellant appealed, and a transcript was prepared by the court reporter which consisted of 4,470 pages; that certain objections were made to the transcript; and that after various hearings the trial judge made an order terminating the proceedings for the preparation of the transcript on appeal. Appellant has filed a brief of 36 pages in which she contends that the trial court erred in granting respondent’s motion to terminate the proceedings for the preparation of the transcript on appeal.

This is the sole question presented for our determination ;

Under the foregoing facts will an appellate court vn, California dismiss an appeal upon the ground that the appeal is sham, frivolous and taken solely for the purpose of delayf

[276]This question must be answered in the negative. It is the general rule in California that where the issues presented on a motion to dismiss an appeal are identical with those presented on the appeal itself, which is the case on the present motion, the motion will be denied. It is to be noted that the determination of the questions on the appeal would require us not merely to examine the judgment roll but also to read appellant’s opening brief. (Estate of Sayles, 212 Cal. 437, 438 [298 P. 971]; Christin v. Story, 211 Cal. 381, 382 [295 P. 515]; Kelso v. Ulrich, 66 Cal.App.2d 873, 874 [153 P.2d 440].)

For the foregoing reasons the motion to dismiss the appeal from the order terminating proceedings for the preparation of a transcript on appeal must be denied.

II