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The Resurrection of California Code of Civil Procedure Section 128.5 Combats Frivolous Litigation Conduct

California Code of Civil Procedure section 128.5, dormant since 1995, was revived on January 1, 2015 and authorizes the imposition of monetary sanctions against parties and their counsel for litigation "actions or tactics" that are frivolous or solely intended to cause delay. This section broadened trial courts' inherent authority to impose sanctions upon parties and their counsel for bad faith litigation conduct.

Section 128.5, first enacted in 1981, defines "actions" and "tactics" broadly to include (but is not limited to) the filing and service of a complaints, cross-complaints, answers, other responsive pleadings, or the filing or opposing of motions. The oft-used statute was interpreted by courts to require both objective and subjective bad faith which proved difficult to establish. In 1995, the Legislature responded by limiting section 128.5's application to proceedings initiated on or before December 31, 1994, while at the same time, enacting Code of Civil Procedure section 128.7. Section 128.7 requires that all pleadings and motions filed with the court be signed by an attorney or unrepresented party, and by signing, the signer generally certifies that the document is not presented for an improper purpose and that the allegations contained therein are supported by law and evidence. In furtherance of these requirements, section 128.7 authorizes monetary sanctions against the signer for violation of these requirements. In other words, sanctions under 128.7 are directed at particular pleadings or motions, and not the more general "actions or tactics" implicated under section 128.5.

Thus, the resurrection of section 128.5 gives litigators and their parties another tool to combat frivolous litigation tactics which have become all too common in today's litigation landscape.

If you have any questions regarding the information contained in this article, please contact Amber M. Sanchez at [email protected] or 949-975-7500.

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