BILL NUMBER: SB 603 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 31, 2011
INTRODUCED BY Senator Berryhill
FEBRUARY 17, 2011
An act to amend Sections 128.7, 391, 391.3, and 391.7
of , and to add Section 391.5 to, the Code of Civil
Procedure, relating to frivolous litigation.
LEGISLATIVE COUNSEL'S DIGEST
SB 603, as amended, 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 on the record 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. The bill would provide
that these provisions do not apply to litigation involving domestic
violence, child custody, or child support, and would require the
court's determination of security in family court proceedings to be
based on specified considerations. The bill would provide that a
vexatious litigant designation does not attach to an
attorney representing a vexatious client.
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
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
on the record regarding a motion pursuant to
paragraph (1) or (2) of subdivision (c), and shall specify the
reasons for the decision in writing .
(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.
(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.
(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.
(h) This section shall not apply to disclosures, discovery
requests, responses, objections, or motions.
(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.
(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, 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, 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.
A vexatious litigant designation shall not attach to an attorney
representing a vexatious client.
(e) "Defendant" means a person, including a corporation,
association, partnership, and firm, or governmental entity, against
whom which a litigation is brought or
maintained or sought to be brought or maintained.
SEC. 3. Section 391.3 of the Code of
Civil Procedure is amended to read:
391.3. (a) If, after hearing the evidence
upon the motion, the court determines that the plaintiff is a
vexatious litigant and that there is no reasonable probability that
the plaintiff will prevail in the litigation against the moving
defendant, the court shall order the plaintiff to furnish, for the
benefit of the moving defendant, security in such
the amount and within such the
time as the court shall fix.
(b) In family court litigation, the court's determination of
security shall be based on the same considerations as used in Section
271 of the Family Code.
SEC. 4. Section 391.5 is added to the
Code of Civil Procedure , to read:
391.5. This title shall not apply to litigation involving
domestic violence, child custody, or child support.
SEC. 3. SEC. 5. 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 that prohibits a vexatious litigant from
filing any new litigation in the courts of this state 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 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.