California Code of Civil Procedure Section 128.5 Sanctions

Often times when involved in litigation there arises a dispute in which one party is alleged to have acted improperly and subject to Sanctions. A California Superior Court may impose Sanctions upon a party or their attorney if the Court finds that the party or their attorney has engaged in actions or tactics which were “made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (CCP 128.5(a)),

The California Legislature explained that an action or tactic is considered frivolous if it is, “…totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP 128.5(b)(2)) The burden to prove that an action or tactic was “frivolous” is on the party filing the motion for sanctions. (Bach v. McNelis (Cal. App. 3d Dist. Jan. 31, 1989), 207 Cal. App. 3d 852)

In order to file a successful motion for sanctions the legislature set forth several requirements and/or decisive factors which a court would be required to consider including but not limited to the following:

(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.

(See, CCP 128.5 (f)(1)) Accordingly, the “Motion for Sanctions” must be made separately from all other motions and must describe in detail the action or tactic that was made in bad faith that is frivolous or solely initiated to cause unnecessary delay. As for the 21 day “Safe Harbor” provision the legislature specifically amended California Code of Civil Procedure Section 128.5 on January 7, 2017 to make crystal clear the that the requirement for a 21 day “Safe Harbor” provision was mandatory and was identical to the requirements that its previous version referred to under California (Code of Civil Procedure Section 128.7).   The Legislature amended CCP 128.5 due to conflicting rulings on the requirement to provide a 21 day “Safe Harbor” to the opposing party. The 21 day “Safe Harbor” requirement is a mandatory waiting period from the time of service of the proposed motion for sanctions on the opposing party and the date upon which it can be filed with the court, “the safe harbor period is mandatory and the full 21 days must be provided” (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 125) Failure to comply with the 21 day safe harbor requirement renders the motion for sanctions improper. Even if the motion for sanctions has merit the court must deny the request if the filing party failed to provide the opposing party the 21 day “safe harbor” notice of their intent to file prior to filing the motion for sanctions.