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 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 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.begin insert The bill would require a party filing a motion for an award of costs on that basis, or an opposition to that motion, 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. The bill would require that the bureau maintain a public record of these documents for at least 3 years, except as specified.end insert 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 thebegin delete Judicial Councilend deletebegin insert California Research Bureauend insert, on or before June 30, 2018, to submit a report to the Legislature examining the impact and effect ofbegin delete this actend deletebegin insert the changes made by the bill, but only if sufficient public and private funding is secured for this purposeend insert.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 128.5 of the Code of Civil Procedure is
2amended to read:
(a) A trial court may order a party, the party’s attorney,
2or both to pay the reasonable expenses, including attorney’s fees,
3incurred by another party as a result of bad-faith actions or tactics
4that are frivolous or solely intended to cause unnecessary delay.
5This section also applies to judicial arbitration proceedings under
6Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part
73.
8(b) For purposes of this section:
9(1) “Actions or tactics” include, but are not limited to, the
10making or opposing of motions or the filing and service of a
11complaint, cross-complaint, answer, or
other responsive pleading.
12The mere filing of a complaint without service thereof on an
13opposing party does not constitute “actions or tactics” for purposes
14of this section.
15(2) “Frivolous” means totally and completely without merit or
16for the sole purpose of harassing an opposing party.
17(c) Expenses pursuant to this section shall not be imposed except
18on notice contained in a party’s moving or responding papers or,
19on the court’s own motion, after notice and opportunity to be heard.
20An order imposing expenses shall be in writing and shall recite in
21detail the conduct or circumstances justifying the order.
22(d) In addition to any award pursuant to this section for conduct
23described in subdivision (a), the court may assess
punitive damages
24against the plaintiff on a determination by the court that the
25plaintiff’s action was an action maintained by a person convicted
26of a felony against the person’s victim, or the victim’s heirs,
27relatives, estate, or personal representative, for injuries arising
28from the acts for which the person was convicted of a felony, and
29that the plaintiff is guilty of fraud, oppression, or malice in
30maintaining the action.
31(e) This section shall not apply to disclosures and discovery
32requests, responses, objections, and motions.
33(f) Any sanctions imposed pursuant to this section shall be
34imposed consistently with the standards, conditions, and procedures
35set forth in subdivisions (c), (d), and (h) of Section 128.7.
36(g) The liability imposed by this section is in addition to any
37other liability imposed by law for acts or omissions within the
38purview of this section.
39(h) (1) A party who files a motion pursuant to this section for
40an award of costs for bad-faith actions or tactics that are frivolous
P4 1or solely intended to cause unnecessary delay, and a party who
2files an opposition to the motion, shall, promptly upon filing,
3transmit to the California Research Bureau of the California State
4Library, by email or facsimile, a copy of the endorsed, filed caption
5page of the motion or opposition, a copy of any related notice of
6appeal or petition for a writ, and a conformed copy of any order
7issued pursuant to this section, including any order granting or
8denying the motion.
9(2) The California Research Bureau shall maintain a public
10record of information transmitted pursuant to this section for at
11least three years, or until this section is repealed, whichever occurs
12first and may store the information on microfilm or other
13appropriate electronic media.
14(h)
end delete
15begin insert(i)end insert This section shall remain in effect only until January 1, 2018,
16and as of that date is repealed, unless a later enacted statute, that
17is enacted before
January 1, 2018, deletes or extends that date.
Section 128.5 is added to the Code of Civil Procedure,
19to read:
(a) A trial court may order a party, the party’s attorney,
21or both to pay any reasonable expenses, including attorney’s fees,
22incurred by another party as a result of bad-faith actions or tactics
23that are frivolous or solely intended to cause unnecessary delay.
24This section also applies to judicial arbitration proceedings under
25Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part
263.
27(b) For purposes of this section:
28(1) “Actions or tactics” include, but are not limited to, the
29making or opposing of motions or the filing and service of a
30complaint or cross-complaint only if the actions or
tactics arise
31from a complaint filed, or a proceeding initiated, on or before
32
December 31, 1994. The mere filing of a complaint without service
33thereof on an opposing party does not constitute “actions or tactics”
34for purposes of this section.
35(2) “Frivolous” means totally and completely without merit or
36for the sole purpose of harassing an opposing party.
37(c) Expenses pursuant to this section shall not be imposed except
38on notice contained in a party’s moving or responding papers, or
39the court’s own motion, after notice and opportunity to be heard.
P5 1An order imposing expenses shall be in writing and shall recite in
2detail the conduct or circumstances justifying the order.
3(d) In addition to any award pursuant to this section for conduct
4described in subdivision (a), the court may assess
punitive damages
5against the plaintiff upon a determination by the court that the
6plaintiff’s action was an action maintained by a person convicted
7of a felony against the person’s victim, or the victim’s heirs,
8relatives, estate, or personal representative, for injuries arising
9from the acts for which the person was convicted of a felony, and
10that the plaintiff is guilty of fraud, oppression, or malice in
11maintaining the action.
12(e) The liability imposed by this section is in addition to any
13other liability imposed by law for acts or omissions within the
14purview of this section.
15(f) This section shall become operative on January 1, 2018.
On or before June 30, 2018, thebegin delete Judicial Councilend delete
17begin insert California Research Bureau of the California State Libraryend insert shall
18submit a report to the Legislaturebegin insert, in accordance with the
19requirements of Section 9795 of the Government Code,end insert examining
20the impact and effect ofbegin delete this act.end deletebegin insert the changes made by
the act
21adding this section, including the number of motions made pursuant
22to Sections 128.5 and 128.7 of the Code of Civil Procedure, the
23number of motions made pursuant to those sections resulting in
24an award of sanctions, the nature and amount of any sanctions
25awarded pursuant to those sections, and whether the changes made
26to Section 128.5 of the Code of Civil Procedure has had a
27demonstrable effect on reducing the frequency and severity of bad
28faith actions or tactics that would not be subject to sanction under
29Section 128.7 of the Code of Civil Procedure. This section shall
30be implemented only if sufficient public and private funds are
31secured to fund the data collection and evaluation.end insert
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