A Code of Civil Procedure section 128.5 request for sanctions in California is the topic of this blog post.
A Code of Civil Procedure section 128.5 request for sanctions in California is filed on the grounds that another party has engaged in bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay such as filing numerous frivolous motions or complaints.
Code of Civil Procedure § 128.5 states in pertinent part that,
“(a) 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. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) “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.
(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section 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.”
Advantages of a Code of Civil Procedure section 128.5 request for sanctions.
A very important advantage of a Code of Civil Procedure section 128.5 request for sanctions in California is the fact that a California Court of Appeal has stated in a recently published decision that a party requesting sanctions under Code of Civil Procedure § 128.5 is not required to comply with the safe harbor provisions found in Code of Civil Procedure § 128.7.
Another California Court of Appeal stated in a published decision that a sanctions award under Code of Civil Procedure section 128.5 can be based on the entire pattern of conduct of a party over the course of the litigation.
Elements required for a Code of Civil Procedure section 128.5 request for sanctions in California.
A published decision from a California Court of Appeal has stated that the following elements must be shown before a Court can find an action is frivolous or in bad faith. Those elements are that:
The action must be determined to be without merit.
The action is prosecuted for an improper motive, including for purposes of harassment or delay.
The action is without merit as any reasonable attorney would agree that the action is totally and completely without merit.
And numerous published decisions have stated that reasonable expenses under Code of Civil Procedure § 128.5 are not just limited to the attorney’s fees incurred in filing a motion for sanctions.
At least two published decisions from California Courts of Appeal have stated that sanctions fees may be awarded under Code of Civil Procedure § 128.5 to an attorney who represents themselves, or a non-attorney individual who represents themselves.
Sample Code of Civil Procedure section 128.5 request for sanctions in California for sale.
Attorneys or parties in California that would like to view a portion of a 13 page sample Code of Civil Procedure section 128.5 request for sanctions in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.
Over 300 sample legal documents for California and Federal litigation for sale.
To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.
Follow Stan Burman on Google Plus at:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.