Mediation Message No. 102



Because of AB 2494, effective January 1, 2015, attorneys once again, pursuant to Code of Civil Procedure section 128.5, will be able to move for monetary sanctions as a result of opposition bad faith tactics. Previously, for sanctions to be issued for misconduct, that section required that a litigant’s tactics had to be both subjectively in bad faith and objectively unmeritorious. This difficult to prove burden led to the enactment of Code of Civil Procedure section 128.7 on January 1, 1995 which requires only that an attorney’s conduct be objectively unreasonable. As now rewritten, a court, under section 128.5, may sanction bad faith tactics that are either frivolous or intended solely to harass an opposing party. The section sunsets January 1, 2018, unless extended.

“Actions or tactics” in section 128.5 include making or opposing motions, the filing and service of a complaint, cross-complaint, answer, or other responsive pleading and exclude disclosures and discovery requests. The mere filing of a complaint without service on an opposing party does not constitute “actions or tactics.” The amended law requires a party filing a motion for an award of costs to promptly transmit to the California Research Bureau of the California State Library a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any resulting order.

Section 128.5 supplements rather than duplicates section 128.7, which requires that all pleadings and motions be signed by an attorney or party and that such persons are reasonably certifying, upon information and belief, that the pleading or motion is not presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; the allegations and other factual contentions have evidentiary support and the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (A violation of any one of the above four conditions may give rise to sanctions. [Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.].)

Section 128.5 applies only to bad-faith tactics, oral or written, that are frivolous or intended solely to harass an opposing party whereas section 128.7 covers a broader range of written, and not oral, misconduct, only one of which is directed at sanctioning harassing pleadings or motions. Section 128.5 provides only for monetary sanctions while, under section 128.7, the court may impose “an appropriate sanction.” Finally, the offending party in a section 128.7 sanctions motion, may, within 21 days of service of the motion, withdraw or correct the challenged misconduct. Section 128.5 does not contain a “cure” option.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, September 2014

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