BILL NUMBER: SB 603 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Berryhill
FEBRUARY 17, 2011
An act to amend Sections 128.7, 391, and 391.7 of the Code of
Civil Procedure, relating to frivolous litigation.
LEGISLATIVE COUNSEL'S DIGEST
SB 603, as introduced, Berryhill. Frivolous litigation: 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 primarily for an improper
purpose, as specified, and that the claims, defenses, and legal and
factual contentions are warranted, as specified. Existing law
authorizes the court, upon its own motion, or the motion of a party,
to impose sanctions on an attorney, law firm, or other party that
violates these provisions in a complaint, petition, or other paper
filed on or after January 1, 1995.
This bill would require the court to make its decision in writing
regarding its own motion, or the motion of a party, and to specify
the reasons for the decision in writing.
Existing law authorizes a court in any litigation, upon motion of
the defendant, to require the plaintiff to furnish security, as
specified, upon a showing that the plaintiff is a vexatious litigant
and has no reasonable probability of prevailing. Existing law also
authorizes the court, upon its own motion or that of a party, to
enter a prefiling order that prohibits a vexatious litigant from
filing any new litigation in the courts of this state in propria
persona without obtaining leave of the presiding judge of the court
where the litigation is proposed to be filed, as specified. Existing
law defines "vexatious litigant" for these purposes in a manner that
limits application of these provisions to proceedings brought in
propria persona, including a person who, in any litigation while
acting in propria persona, repeatedly files unmeritorious motions,
pleadings, or other papers.
This bill would delete certain references to "in propria persona"
from these provisions and the definition for "vexatious litigant,"
thereby expanding the proceedings to which these provisions apply, in
specified instances, to include litigation that is not brought in
propria persona.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 128.7 of the Code of Civil Procedure is amended
to read:
128.7. (a) Every pleading, petition, written notice of motion, or
other similar paper shall be signed by at least one attorney of
record in the attorney's individual name, or, if the party is not
represented by an attorney, shall be signed by the party. Each paper
shall state the signer's address and telephone number, if any. Except
when as otherwise provided by law,
pleadings need not be verified or accompanied by an
affidavit. An unsigned paper shall be stricken unless omission of the
signature is corrected promptly after being called to the attention
of the attorney or party.
(b) By presenting to the court, whether by signing, filing,
submitting, or later advocating, a pleading, petition, written notice
of motion, or other similar paper, an attorney or unrepresented
party is certifying that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose,
such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein 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.
(3) The allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery.
(4) 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.
(c) If, after notice and a reasonable opportunity to respond, the
court determines that subdivision (b) has been violated, the court
may, subject to the conditions stated below, impose an appropriate
sanction upon the attorneys, law firms, or parties that have violated
subdivision (b) or are responsible for the violation. In determining
what sanctions, if any, should be ordered, the court shall consider
whether a party seeking sanctions has exercised due diligence.
(1) A motion for sanctions under this section shall be made
separately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). Notice of motion
shall be served as provided in Section 1010, but shall not be filed
with or presented to the court unless, within 21 days after service
of the motion, or any other period as the court may prescribe, the
challenged paper, claim, defense, contention, allegation, or denial
is not withdrawn or appropriately corrected. 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.
(2) On its own motion, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and
directing an attorney, law firm, or party to show cause why it has
not violated subdivision (b), unless, within 21 days of service of
the order to show cause, the challenged paper, claim, defense,
contention, allegation, or denial is withdrawn or appropriately
corrected.
(d) The court shall make its decision in writing regarding a
motion pursuant to paragraph (1) or (2) of subdivision (c), and shall
specify the reasons for the decision in writing.
(d)
(e) A sanction imposed for violation of subdivision (b)
shall be limited to what is sufficient to deter repetition of this
conduct or comparable conduct by others similarly situated. Subject
to the limitations in paragraphs (1) and (2), 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 violation.
(1) Monetary sanctions may not be awarded against a represented
party for a violation of paragraph (2) of subdivision (b).
(2) 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.
(e) When
(f) If imposing sanctions, the
court shall describe the conduct determined to constitute a violation
of this section and explain the basis for the sanction imposed.
(f)
(g) In addition to any award pursuant to this section
for conduct described in subdivision (b), 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.
(g)
(h) This section shall not apply to disclosures
and , discovery requests, responses,
objections, and or motions.
(h)
(i) 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
sanctions authority to deter that improper conduct or comparable
conduct by others similarly situated.
(i)
(j) This section shall apply to a complaint or petition
filed on or after January 1, 1995, and any other pleading, written
notice of motion, or other similar paper filed in that matter.
SEC. 2. Section 391 of the Code of Civil Procedure is amended to
read:
391. As used in this title, the following terms have the
following meanings:
(a) "Litigation" means any civil action or proceeding, commenced,
maintained or pending in any state or federal court.
(b) "Vexatious litigant" means a person who does any of the
following:
(1) In the immediately preceding seven-year period has commenced,
prosecuted, or maintained in propria persona at least five
litigations other than in a small claims court that have been (i)
finally determined adversely to the person or (ii) unjustifiably
permitted to remain pending at least two years without having been
brought to trial or hearing.
(2) After a litigation has been finally determined against the
person, repeatedly relitigates or attempts to relitigate, in
propria persona, either (i) the validity of the
determination against the same defendant or defendants as to whom the
litigation was finally determined or (ii) the cause of action,
claim, controversy, or any of the issues of fact or law, determined
or concluded by the final determination against the same defendant or
defendants as to whom the litigation was finally determined.
(3) In any litigation while acting in propria persona
, repeatedly files unmeritorious motions, pleadings, or
other papers, conducts unnecessary discovery, or engages in other
tactics that are frivolous or solely intended to cause unnecessary
delay or harassment .
(4) Has previously been declared to be a vexatious litigant by any
state or federal court of record in any action or proceeding based
upon the same or substantially similar facts, transaction, or
occurrence.
(c) "Security" means an undertaking to assure payment, to the
party for whose benefit the undertaking is required to be furnished,
of the party's reasonable expenses, including attorney's fees and not
limited to taxable costs, incurred in or in connection with a
litigation instituted, caused to be instituted, or maintained or
caused to be maintained by a vexatious litigant.
(d) "Plaintiff" means the person who commences, institutes or
maintains a litigation or causes it to be commenced, instituted or
maintained, including an attorney at law acting in propria persona.
(e) "Defendant" means a person (including
, including a corporation, association, partnership ,
and firm , or governmental entity)
entity, against whom a litigation is brought or
maintained or sought to be brought or maintained.
SEC. 3. Section 391.7 of the Code of Civil Procedure is amended to
read:
391.7. (a) In addition to any other relief provided in this
title, the court may, on its own motion or the motion of any party,
enter a prefiling order which that
prohibits a vexatious litigant from filing any new litigation in the
courts of this state in propria persona without
first obtaining leave of the presiding judge of the court where the
litigation is proposed to be filed. Disobedience of the order by a
vexatious litigant may be punished as a contempt of court.
(b) The presiding judge shall permit the filing of that litigation
only if it appears that the litigation has merit and has not been
filed for the purposes of harassment or delay. The presiding judge
may condition the filing of the litigation upon the furnishing of
security for the benefit of the defendants as provided in Section
391.3.
(c) The clerk may shall not file any
litigation presented by a vexatious litigant subject to a prefiling
order unless the vexatious litigant first obtains an order from the
presiding judge permitting the filing. If the clerk mistakenly files
the litigation without the order, any party may file with the clerk
and serve on the plaintiff and other parties a notice stating that
the plaintiff is a vexatious litigant subject to a prefiling order as
set forth in subdivision (a). The filing of the notice shall
automatically stay the litigation. The litigation shall be
automatically dismissed unless the plaintiff within 10 days of the
filing of that notice obtains an order from the presiding judge
permitting the filing of the litigation as set forth in subdivision
(b). If the presiding judge issues an order permitting the filing,
the stay of the litigation shall remain in effect, and the defendants
need not plead, until 10 days after the defendants are served with a
copy of the order.
(d) For purposes of this section, "litigation" includes any
petition, application, or motion other than a discovery motion, in a
proceeding under the Family Code or Probate Code, for any order.
(e) The clerk of the court shall provide the Judicial Council a
copy of any prefiling orders issued pursuant to subdivision (a). The
Judicial Council shall maintain a record of vexatious litigants
subject to those prefiling orders and shall annually disseminate a
list of those persons to the clerks of the courts of this state.