Amended in Senate August 4, 2014

Amended in Senate July 1, 2014

Amended in Senate June 16, 2014

Amended in Assembly May 23, 2014

Amended in Assembly May 7, 2014

Amended in Assembly April 10, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2494


Introduced by Assembly Member Cooley

February 21, 2014


An act to amend, repeal, and add Section 128.5 of the Code of Civil Procedure, relating to courts.

LEGISLATIVE COUNSEL’S DIGEST

AB 2494, as amended, Cooley. Courts: frivolous actions or proceedings.

Existing law authorizes a 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 the reasonable expenses award, existing law authorizes the court to 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.

Existing law also requires every pleading, petition, written notice of motion, or other similar paper to be signed by the attorney of recordbegin delete,end deletebegin delete or if a party is unrepresented, by the partyend deletebegin insert or an unrepresented party, as applicableend insert, thereby certifying to the best of the person’s knowledge, information, and beliefbegin delete that itend deletebegin insert that, among other things, the paperend insert 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 a trial court to impose sanctions upon an attorney, law firm, or party that violates these provisions in a complaint, petition, or other paper filed on or after January 1, 1995.

This bill would delete the December 31, 1994, date limitation on a trial court’s authorization to award reasonable expenses incurred as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, thus making both of the provisions described above applicable commencing January 1, 2015. The bill would include in the definition of “actions or tactics” the filing and serving of an answer or other responsive pleading, and would exclude from that definition disclosures and discovery requests, responses, objections, and motions. The bill would require a party filing a motionbegin delete for an award of costs on that basis, or an opposition to that motion,end deletebegin insert pursuant to these provisionsend insert to promptly transmit to the California Research Bureau 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 resulting order.begin insert The bill would also require the party to indicate whether a motion for sanctions was made for a violation of the certification provisions described above.end insert The bill would require that the bureau maintain a public record of these documents for at least 3 years, except as specified. The bill would require certain standards, conditions, and procedures to apply to sanctions imposed pursuant to its provisions. The bill would repeal these provisions on January 1, 2018.

The bill would also require the California Research Bureau, on or before January 1, 2017, to submit a report to the Legislature examining the impact and effect of the changes made by thebegin delete bill, but only if sufficient public and private funding is secured for this purposeend deletebegin insert billend insert.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 128.5 of the Code of Civil Procedure is
2amended to read:

3

128.5.  

(a) A trial court may order a party, the party’s attorney,
4or both to pay the reasonable expenses, including attorney’s fees,
5incurred by another party as a result of bad-faith actions or tactics
6that are frivolous or solely intended to cause unnecessary delay.
7This section also applies to judicial arbitration proceedings under
8Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part
93.

10(b) For purposes of this section:

11(1) “Actions or tactics” include, but are not limited to, the
12making or opposing of motions or the filing and service of a
13complaint, cross-complaint, answer, or other responsive pleading.
14The mere filing of a complaint without service thereof on an
15opposing party does not constitute “actions or tactics” for purposes
16of this section.

17(2) “Frivolous” means totally and completely without merit or
18for the sole purpose of harassing an opposing party.

19(c) Expenses pursuant to this section shall not be imposed except
20on notice contained in a party’s moving or responding papers or,
21on the court’s own motion, after notice and opportunity to be heard.
22An order imposing expenses shall be in writing and shall recite in
23detail the conduct or circumstances justifying the order.

24(d) In addition to any award pursuant to this section for conduct
25described in subdivision (a), the court may assess punitive damages
26against the plaintiff on a determination by the court that the
27plaintiff’s action was an action maintained by a person convicted
28of a felony against the person’s victim, or the victim’s heirs,
29relatives, estate, or personal representative, for injuries arising
30from the acts for which the person was convicted of a felony, and
31that the plaintiff is guilty of fraud, oppression, or malice in
32maintaining the action.

33(e) This section shall not apply to disclosures and discovery
34requests, responses, objections, and motions.

35(f) Any sanctions imposed pursuant to this section shall be
36imposed consistently with the standards, conditions, and procedures
37set forth in subdivisions (c), (d), and (h) of Section 128.7.

P4    1(g) The liability imposed by this section is in addition to any
2other liability imposed by law for acts or omissions within the
3purview of this section.

4(h) (1) A party who files a motion pursuant to this sectionbegin delete for
5an award of costs for bad-faith actions or tactics that are frivolous
6or solely intended to cause unnecessary delay, and a party who
7files an opposition to the motion,end delete
shall, promptly upon filing,
8transmit to the California Research Bureau of the California State
9Library, by email or facsimile, a copy of the endorsed, filed caption
10page of the motion or opposition, a copy of any related notice of
11appeal or petition for a writ, and a conformed copy of any order
12issued pursuant to this section, including any order granting or
13denying the motion.begin insert The party shall also indicate whether a motion
14for sanctions was made pursuant to Section 128.7.end insert

15(2) The California Research Bureau shall maintain a public
16record of information transmitted pursuant to this section for at
17least three years, or until this section is repealed, whichever occurs
18first, and may store the information on microfilm or other
19appropriate electronic media.

20(i) This section shall remain in effect only until January 1, 2018,
21and as of that date is repealed, unless a later enacted statute, that
22is enacted before January 1, 2018, deletes or extends that date.

23

SEC. 2.  

Section 128.5 is added to the Code of Civil Procedure,
24to read:

25

128.5.  

(a) A trial court may order a party, the party’s attorney,
26or both to pay any reasonable expenses, including attorney’s fees,
27incurred by another party as a result of bad-faith actions or tactics
28that are frivolous or solely intended to cause unnecessary delay.
29This section also applies to judicial arbitration proceedings under
30Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part
313.

32(b) For purposes of this section:

33(1) “Actions or tactics” include, but are not limited to, the
34making or opposing of motions or the filing and service of a
35complaint or cross-complaint only if the actions or tactics arise
36from a complaint filed, or a proceeding initiated, on or before
37 December 31, 1994. The mere filing of a complaint without service
38thereof on an opposing party does not constitute “actions or tactics”
39for purposes of this section.

P5    1(2) “Frivolous” means totally and completely without merit or
2for the sole purpose of harassing an opposing party.

3(c) Expenses pursuant to this section shall not be imposed except
4on notice contained in a party’s moving or responding papers, or
5the court’s own motion, after notice and opportunity to be heard.
6An order imposing expenses shall be in writing and shall recite in
7detail the conduct or circumstances justifying the order.

8(d) In addition to any award pursuant to this section for conduct
9described in subdivision (a), the court may assess punitive damages
10against the plaintiff upon a determination by the court that the
11plaintiff’s action was an action maintained by a person convicted
12of a felony against the person’s victim, or the victim’s heirs,
13relatives, estate, or personal representative, for injuries arising
14from the acts for which the person was convicted of a felony, and
15that the plaintiff is guilty of fraud, oppression, or malice in
16maintaining the action.

17(e) The liability imposed by this section is in addition to any
18other liability imposed by law for acts or omissions within the
19purview of this section.

20(f) This section shall become operative on January 1, 2018.

21

SEC. 3.  

On or before January 1, 2017, the California Research
22Bureau of the California State Library shall submit a report to the
23Legislature, in accordance with the requirements of Section 9795
24of the Government Code, examining the impact and effect of the
25changes made by the act adding this section, including the number
26of motions made pursuant to Sections 128.5 and 128.7 of the Code
27of Civil Procedure, the number of motions made pursuant to those
28sections resulting in an award of sanctions, the nature and amount
29of any sanctions awarded pursuant to those sections, and whether
30the changes made to Section 128.5 of the Code of Civil Procedure
31has had a demonstrable effect on reducing the frequency and
32severity ofbegin delete bad faithend deletebegin insert bad-faithend insert actions or tactics that would not be
33subject to sanction under Section 128.7 of the Code of Civil
34Procedure.begin delete This section shall be implemented only if sufficient
35public and private funds are secured to fund the data collection
36and evaluation.end delete



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