BILL ANALYSIS �
AB 2494
Page 1
ASSEMBLY THIRD READING
AB 2494 (Cooley)
As Amended May 23, 2014
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, |
| |Stone | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Provides an additional tool for sanctions of bad faith
actions and tactics. Specifically, this bill :
1)Provides that a trial court may order a party, the party's
attorney, or both to pay the 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, as defined.
2)Provides that expenses pursuant to this bill shall not be
imposed except on notice contained in a party's moving or
responding papers or, on 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.
3)Provides that in addition to any award pursuant to this bill
for conduct described in of Code of Civil Procedure (CCP)
Section 128.5(a), the court may assess punitive damages
against the plaintiff on 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
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fraud, oppression, or malice in maintaining the action.
4)Provides that any sanction imposed pursuant to this bill shall
be imposed consistently with the standards, conditions and
procedures set forth in subdivisions (c), (d) and (h) of CCP
Section 128.7.
5)Provides that the liability imposed by this bill is in
addition to any other liability imposed by law for acts or
omissions within the purview of this bill.
6)Specifies that the foregoing shall not apply to disclosures
and discovery requests, responses, objections, and motions.
7)Provides that this bill shall remain in effect only until
January 1, 2018, and as of that date is repealed, unless a
later enacted statute, that is enacted before January 1, 2018,
deletes or extends that date.
8)Provides that on or before June 30, 2018, the Judicial Council
shall submit a report to the Legislature examining the impact
and effect of this act.
EXISTING LAW :
1)Provides with respect to actions or tactics arising from a
complaint filed, or a proceeding initiated, on or before
December 31, 1994, that every trial court may 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, as specified.
2)Provides with respect 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 that
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 otherwise provided by law,
pleadings need not be verified or accompanied by affidavit.
An unsigned paper shall be stricken unless omission of the
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signature is corrected promptly after being called to the
attention of the attorney or party.
3)Provides that 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, specified
conditions are met.
4)Provides that if, after notice and a reasonable opportunity to
respond, the court determines that the foregoing 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.
5)Specifies the procedure for making, responding to and
considering a motion for sanctions.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, specific reporting requirements are to be developed,
and are intended to have at most a minor fiscal impact.
COMMENTS : The author explains the reason for the bill as
follows:
Existing law until 1995 provided that litigants
subject to bad-faith and unmeritorious tactics could
seek sanctions in the form of attorney's fees (CCP
128.5). Many thought the bar to use this provision
was too high because the statute had been interpreted
to require both an objective standard that the act was
without merit and a subjective bad-faith motive, which
was difficult to prove. Thus, in 1995 CCP 128.7 was
enacted. This also brought California into alignment
with federal law (FRCP's rule 11) and imposed a lower
threshold for sanctions against an attorney by only
requiring the attorney's conduct be objectively
unreasonable. Unfortunately, it stopped the
applicability of CCP 128.5 as applied to bad-faith
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tactics outside the scope of filing frivolous
pleadings.
Unfortunately, bad-faith disobedience and tactics by
either side are needlessly employed in litigation. It
can result in clogging our courts and wasting precious
judicial resources. Courts routinely give litigants
the benefit of the doubt, but they have lost an
important tool used to ensure bad faith actions that
can materially harm the other party or the fairness of
a trial are discouraged. Under existing law a court
can compel obedience with a court order, but
financially the most a court can do if a party
violates one is find them in contempt with penalty of
up to $1500. Moreover, if a case ends in a mistrial
or in the release of protected documents it is
difficult to undo the waste of judicial resources or
harm done to the litigant who was not at fault.
Similarly, supporters note that the effect of the bill would be
to allow for sanctions for violation of a court order. There is
no opposition on file.
This measure makes clear that it is intended to be read in
harmony with the salutary cognate provisions of CCP Section
128.7.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0003737