BILL NUMBER: AB 1891	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Niello

                        FEBRUARY 7, 2008

   An act to amend Section 128.5 of the Code of Civil Procedure,
relating to civil procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1891, as introduced, Niello. Civil procedure: sanctions.
   Existing law requires every pleading, petition, written notice of
motion, or other similar paper to be signed by the attorney of
record, or if a party is unrepresented, by the party, thereby
certifying to the best of the person's knowledge, information, and
belief that it is not being presented for an improper purpose, as
specified, and that the claims, defenses, and legal and factual
contentions are warranted, as specified. Existing law provides that
trial courts may impose sanctions upon attorneys, law firms, or
parties that violate these provisions in a complaint, petition, or
other paper filed on or after January 1, 1995.
   Existing law authorizes every trial court to order a party, the
party's attorney, or both to pay 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, if the actions or tactics arise from a complaint
filed, or a proceeding initiated, on or before December 31, 1994. In
addition to that award, the court may assess punitive damages against
the plaintiff on a determination that the plaintiff's action was
maintained by a person convicted of a felony against the person's
victim for injuries arising from the acts for which the person was
convicted, and that the plaintiff is guilty of fraud, oppression, or
malice in maintaining the action.
   This bill would revise and recast the latter provisions above to
require every trial court to order a party, the party's attorney, or
both to pay reasonable expenses incurred by another party as a result
of any filing, action, or tactic that is frivolous, clearly
unjustified, or otherwise substantially devoid of merit in view of
the pertinent facts, the applicable law, and the cause or position
asserted. The bill also would delete the December 31, 1994, date
limitation, thereby requiring the court to order an award pursuant to
this provision regardless of the date a complaint was filed or
proceeding initiated. The bill would require the court, if it finds
that an attorney has engaged in any filing, action, or tactic that is
frivolous, clearly unjustified, or otherwise substantially devoid of
merit when considered in the context of the tactic taken or position
asserted and the facts and material issues of the particular case,
to report each instance and finding to the State Bar of California.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 128.5 of the Code of Civil Procedure is amended
to read:
   128.5.  (a) Every trial court  may   shall
 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 
 any filing, action, or tactic that is frivolous, clearly
unjustified, or otherwise substantially devoid of merit in view of
the pertinent facts, the applicable law, and   the cause or
position asserted  . 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 (A) totally and completely without merit or
(B) for the sole purpose of harassing an opposing party. 

   (1) "Action or tactic" includes, but is not limited to, both of
the following:  
   (A) A written claim alleging liability even if no lawsuit has been
filed.  
   (B) The filing or the filing and serving of a complaint or cross
complaint.  
   (2) Improper litigation tactics that are clearly unjustified shall
include, but not be limited to, each of the designated misuses of
the discovery process listed in Section 2023.010.  
   (3) Unjustified actions shall include an action or appeal filed
solely or primarily for the purpose of delaying the enforcement of a
judgment or court order.  
   (c) If the trial court finds, pursuant to either its own order to
show cause and a motion or the motion of a party, that an attorney
has engaged in any filing, action, or tactic that is frivolous,
clearly unjustified, or otherwise substantially devoid of merit when
considered in the context of the tactic taken or position asserted
and the facts and material issues of the particular case, the court
shall report each instance and finding to the State Bar of
California.  
   (c) 
    (d)  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) 
    (e)  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) 
    (f)  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.