Can a plaintiff in a vexatious litigation obtain attorney fees from the Court of Appeal?

Free access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties. However, there is the implicit assumption, under the American Rule, that the parties to a lawsuit will act in 'good faith.' The essential element in an award of attorney fees for vexatious litigation is the existence of 'bad faith' on the part of the unsuccessful litigant. Such 'fee shifting' could help to deter 'bad faith' litigation and to preserve the foundation upon which free access to the courts is built. (See Note, Use of Taxable Costs to Regulate the Conduct of Litigants, 53 Col.L.Rev. 78 (1953). This would comport to the court's historical role 'to do that which appertains to justice and that which appertains to example, and to vindicate the honor and justice of the court.' (See Dungey v. Angove, 2 Ves.Jr. 304, 313.)