Section 128.7 of the Code of Civil Procedure is designed to prevent parties from filing and maintaining lawsuits which are frivolous or filed for an improper purpose. It is a powerful tool in a defense attorney’s toolbox! The statute applies to “[e]very pleading, petition, written notice of motion, or other similar paper.”[i] It does not, however, apply to discovery responses or motions.[ii] If the court determines an attorney or unrepresented party has violated Section 128.7, it “shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.”[iii] The court may also award the prevailing party “reasonable expenses and attorney’s fees incurred in presenting” the motion.[iv]
Presentation to the Court
“Presentation to the court” has legal significance. Attorneys “present” to the court when they “sign, file, submit, or later advocate” that the pleading or other paper satisfies certain conditions.[v] These conditions include:
- The paper is not filed for an improper purpose;
- The legal contentions are warranted by existing law or a nonfrivolous argument to change the law;
- Factual allegations have evidentiary support or will have evidentiary support after a reasonable opportunity to investigate; and
- The denial of factual allegations is warranted by the evidence or is reasonably based on lack of information or belief.[vi]
The attorney’s presentation of an improper or frivolous pleading (or similar paper) is the triggering act for purposes of a 128.7 motion. The court’s discussion in Primo Hospitality Group, Inc. v. Haney includes an excellent primer of the presentation requirement.[vii] In Primo, a newly appointed attorney filed a declaration notifying the court of the change in counsel. According to the court, that singular act did not amount to a “presentation” of the complaint because the new attorney had not signed, filed, submitted or further advocated the claims before the defendants’ sanctions motion was filed. Accordingly, the defendants’ motion was premature because it did “not provide notice of specific conduct that violated the statute along with a safe harbor period to withdraw or correct the pleadings. [ix] Accordingly, the defendants’ motion was premature because it did “not provide notice of specific conduct that violated the statute along with a safe harbor period to withdraw or correct the pleadings.”[x]
The Safe Harbor Provision
The moving party must comply with the statute’s “safe harbor” provision before filing the motion. The moving party must first serve the motion on the offending party, which then starts the clock on the 21-day safe harbor period.[xi] During this period, the served party has the opportunity to withdraw the challenged pleading or other paper.[xii] If the offending pleading is not withdrawn, the moving party may then proceed with the filing of the motion.[xiii]
Practice Pointers
Although a CCP 128.7 motion may not be a viable option at the outset, it may make sense after the discovery stage. An action may become frivolous “if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client’s claims.”[xiv]
Before drafting a motion for sanctions, consider meeting and conferring with the adverse party. Marshal evidence and show the attorney why the pleading or paper is frivolous or improper. Remind the attorney he “cannot bury his head in the sand” by ignoring your evidence as doing so may subject him to sanctions.[xv] These discussions may result in the party’s voluntary withdrawal of the offending pleading (or paper). Even if these discussions are unsuccessful, you will have a solid outline for your sanctions motion.
Timing is important. When scheduling the hearing on the motion, carefully calculate the proper notice period. The moving party must comply with the 21-day safe harbor provision prescribed in Section 128.7 and the 16-court day notice period prescribed under Code of Civil Procedure Section 1005(b).[xvi]
Take advantage of federal case law when drafting your motion. Since Section 128.7 is nearly identical to Rule 11 of the Federal Rules of Civil Procedure, federal case law is persuasive authority regarding the interpretation of Section 128.7.[xvii]
In some circumstances, a CCP 128.7 motion for sanctions may be a better strategic option than a motion for summary judgment. Section 128.7 motions are less expensive, speedier, and allow for the recovery of attorney’s fees.[xviii]
Conclusion
In the legal world, motions are a common tool used to request specific actions or rulings from another court. The CCP Section 128.7 motion for sanctions should be included in your arsenal. Where a case is provably groundless as a matter of law or fact, a CCP Section 128.7 motion is a viable option to force an end to litigation and recover a party’s attorney’s fees.[xix]
Keep Reading
Sources
[i] Code of Civil Procedure (“CCP”) § 128.7(a)
[ii] CCP § 128.7(g)
[iii] CCP § 128.7(h)
[iv] CCP § 128.7(c)(1)
[v] CCP § 128.7(b)
[vi] CCP § 128.7(b)(1)-(4)
[vii] Primo Hospitality Group, Inc. v. Haney, (2019) 37 Cal.App.5th 165
[viii] Id.
[ix] Id. at 175 (“The declaration does not submit Primo’s claims to the court or advocate any of the claims.”).
[x] Primo Hospitality, 37 Cal.App.5th at 176; CCP § 128.7(c)(1)
[xi] CCP § 128.7(c)(1)
[xii] CCP § 128.7(c)(1)-(2)
[xiii] CCP § 128.7(c)(1); see also Levy v. Blum (2001) 92 Cal.App.4th 625, 637
[xiv] Peake v. Underwood (2014) 227 Cal.App.4th 428, 441 (citing Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir. 1994) 29 F.3d 1018, 1025)).
[xv] Id.
[xvi] CCP §§ 128.7(c), 1005(b).
[xvii] Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.
[xviii] Dagrella Law Firm, Dismissing a Lawsuit: §128.7 Motion vs. Motion for Summary Judgment, https://dagrella.com/dismissing-a-lawsuit/
[xix] Geoffrey M. Gold, Esq., Ervin Cohen & Jessup, An Effective Way to Fight an Objectively Frivolous Lawsuit, Feb. 9, 2016, https://casetext.com/analysis/an-effective-way-to-fight-an-objectively-frivolous-lawsuit-1?sort=relevance&resultsNav=false&q=