Zealous Advocacy or Bad Faith?: Sanctions Under C.C.P. § 128.5

Author: Reece Román

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March 1, 2016 1:35am

How does one combat a motion that is technically authorized, but is in fact a bad faith litigation tactic designed to delay proceedings, harass an opponent, or run up the costs of litigation? Code of Civil Procedure section 128.5 may provide the answer.

History of Section 128.5

Historically, California courts had virtually unfettered inherent authority to sanction misconduct. In the face of rising due process concerns, courts began limiting situations in which monetary sanctions could be awarded absent statutory authority. (Banguess v. Paine (1978) 22 Cal.3d 626.)

Concerned at the prospect of mounting frivolous litigation, the Legislature responded by enacting section 128.5 in 1981. The initial language, along with a 1985 amendment, provided broad authority for awards of reasonable expenses, including attorney fees, as sanctions for bad faith actions or tactics that were frivolous or solely intended to cause unnecessary delay. Requests for section 128.5 sanctions became a fairly routine motion practice, albeit difficult to prove and seldom awarded.

In 1995 the Legislature responded by effectively eviscerating section 128.5, limiting its application to proceedings initiated on or before December 31, 1994. At the same time, the Legislature enacted section 128.7, applicable to proceedings on or after January 1, 1995. Section 128.7, while technically allowing monetary sanctions, came with far less “teeth,” as it gave violators advance notice and opportunity to correct the violation without threat of sanction. Perhaps not surprisingly, bad faith litigation tactics continued to be pervasive.

The Legislature revived section 128.5, effective January 1, 2015, intending to curb the perceived increase in bad faith litigation tactics.

Section 128.5 Permits an Award of Reasonable Expenses (Including Attorney’s Fees) Incurred to Combat Frivolous and Dilatory Actions or Tactics

In its current form, section 128.5 permits trial courts to 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. (Code Civ. Pro. § 128.5(a).)

“Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section. (Code Civ. Pro. § 128.5(b)(1).) As a practical matter, any conduct in the course of litigation – except discovery related procedures which are subject to their own statutory scheme – may be sanctionable if the court finds it to be “frivolous” or “solely intended to cause unnecessary delay.” (Ellis v. Roshei Corp. (1983) 143 Cal. App. 3d 642, 649.)

“Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (Code Civ. Pro. § 128.5(b)(2).) Many practitioners are surprised to learn “harassing” conduct includes litigation tactics that although literally authorized by statute or rule, go beyond that which is appropriate under any reasonable standard. (See West Coast Develop. v. Reed (1992) 2 Cal. App. 4th 693, 702.)

It is currently unclear whether objective bad faith (e.g. a frivolous motion) is sufficient, or whether subjective bad faith (e.g. intent to cause delay) is also required. Courts considering the issue have reached different results. (See, e.g., Dolan v. Buena Engineers, Inc. (1994) 24 Cal. App. 4th 1500, 1505 (finding tactics utterly lacking merit imply an ulterior motive); Summers v. City of Cathedral City (1990) 225 Cal. App. 3d 1047, 1071 (finding improper purpose required).)


The current version of section 128.5 has a sunset provision – January 1, 2018. It remains to be seen whether section 128.5 will effectively curb frivolous and dilatory bad faith actions and tactics. But counsel and insurance professionals alike should keep section 128.5 in mind, both while conducting and opposing litigation tactics that blur the border between zealous advocacy and bad faith.


Reece Román is an associate at Tyson & Mendes LLP. He specializes in personal injury, employment, professional liability, and business litigation. Contact Reece at (858) 263-4137 or rroman@tysonmendes.com..


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