Today's Law As Amended


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AB-2494 Courts: frivolous actions or proceedings.(2013-2014)



As Amends the Law Today
As Amends the Law on Nov 21, 2014


SECTION 1.

 Section 128.5 of the Code of Civil Procedure is amended to read:

128.5.
 (a) A trial court may order a party, the party’s attorney, or both, both  to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith  actions or tactics, made in bad faith,  tactics  that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.
(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action conduct  or tactic or  circumstances justifying the order.
(d) In addition to any award pursuant to this section for an action or tactic  conduct  described in subdivision (a), the court may assess punitive damages against the plaintiff on a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.
(e) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.
(f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures:
(1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party’s attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.
(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.
(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.
(C) If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
(D) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, the court on its own motion may enter an order describing the specific action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay, and direct an attorney, law firm, or party to show cause why it has made an action or tactic as defined in subdivision (b), unless, within 21 days of service of the order to show cause, the challenged action or tactic is withdrawn or appropriately corrected.
(2) (f)  An order for sanctions  Any sanctions imposed  pursuant to this section shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the action or tactic described in subdivision (a). imposed consistently with the standards, conditions, and procedures set forth in subdivisions (c), (d), and (h) of Section 128.7. 
(A) Monetary sanctions may not be awarded against a represented party for a violation of presenting a claim, defense, and other legal contentions that 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.
(B) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(g) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanction authority to deter the improper actions or tactics or comparable actions or tactics of others similarly situated.
(h) (g)  The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section.
(h) (1) A party who files a motion pursuant to this section shall, promptly upon filing, transmit to the California Research Bureau of the California State Library, by email, 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 order issued pursuant to this section, including any order granting or denying the motion. The party shall also indicate whether a motion for sanctions was made pursuant to Section 128.7.
(2) The California Research Bureau shall maintain a public record of information transmitted pursuant to this section for at least three years, or until this section is repealed, whichever occurs first, and may store the information on microfilm or other appropriate electronic media.
(i) This section applies to actions or tactics that were part of a civil case filed on or after January 1, 2015.  shall remain in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date. 

SEC. 2.

 Section 128.5 is added to the Code of Civil Procedure, to read:

128.5.
 (a) A trial court may order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.
(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers, or the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.
(d) In addition to any award pursuant to this section for conduct described in subdivision (a), the court may assess punitive damages against the plaintiff upon a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.
(e) The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section.
(f) This section shall become operative on January 1, 2018.
SEC. 3.
 On or before January 1, 2017, the California Research Bureau of the California State Library shall submit a report to the Legislature, in accordance with the requirements of Section 9795 of the Government Code, examining the impact and effect of the changes made by the act adding this section, including the number of motions made pursuant to Sections 128.5 and 128.7 of the Code of Civil Procedure, the number of motions made pursuant to those sections resulting in an award of sanctions, the nature and amount of any sanctions awarded pursuant to those sections, and whether the changes made to Section 128.5 of the Code of Civil Procedure has had a demonstrable effect on reducing the frequency and severity of bad-faith actions or tactics that would not be subject to sanction under Section 128.7 of the Code of Civil Procedure.