Understanding California’s 128.7 Motion and the Legal Standard for Review
Dismissing a Lawsuit: §128.7 Motion vs. Motion for Summary Judgment
There are distinct advantages to a §128.7 motion: less cost, speedier dismissal and recovery of attorney’s fees. A motion for summary judgment typically costs more over the duration of the case: it involves more paperwork (e.g., preparation of a Separate Statement of Undisputed Material Facts) and usually precedes expensive discovery taken by the plaintiff gathering evidence to prepare an opposition. This is not to say that a §128.7 motion is the better option in all cases. Despite its advantages, a §128.7 motion is much more difficult to win than a motion for summary judgment. In deciding which motion is best, one must assess whether the case is truly “frivolous” or simply lacking in merit. Below is a table depicting the differences between the two motions.
Hold Period
There is no hold period at the beginning of an action for serving a motion for sanctions under C.C.P. §128.7. By contrast, a motion for summary judgment in California cannot be brought until 60 days after the complaint is filed.
Pre-Filing Notice
C.C.P. § 128.7 requires the party seeking sanctions to comply with a two-step process for presentation to the court. The motion must first be served on the party against whom sanctions are sought, but not filed with the court. The party against whom sanctions are sought has 21 days to withdraw the offending pleading. If the pleading is not withdrawn after 21 days, the party seeking sanctions may then proceed to file the motion with the court. There is no pre-filing notice requirement on a motion for summary judgment.
Court Hearing Notice
If pleading is not withdrawn with the 21-day safe harbor period, then the §128.7 motion may be filed and a hearing scheduled with 16 court days notice. In contrast, the motion for summary judgment must be filed at least 75 calendar days before the hearing, a much lengthier period than that required for the §128.7 motion.
Material Facts
On both a §128.7 Motion and a motion for summary judgment, the court must be able to decide the legal merits without weighing the credibility of witnesses. If the plaintiff lacks evidence to prove allegations, of the evidence is not materially relevant to the legal issues, then the court can dismiss the case without a need for trial. If the plaintiff adduces materially relevant evidence in support of its case, which the defense simply disagrees with, then the case goes to trial. Witness credibility is a matter for trial.
Legal Argument
If the material facts are undisputed, then a motion for summary judgment is appropriate. That is all that is needed. In contrast, a §128.7 motion requires one step more than simply undisputed facts. The moving party must show that the complaint is frivolous, meaning “both baseless and made without a reasonable and competent inquiry.”
Outcome
On both a §128.7 motion and a motion for summary judgment, success means a complete dismissal of the action with prejudice. source
Cal. Code Civ. Proc. § 128.7
- (a) 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 signature is corrected promptly after being called to the attention of the attorney or party.
- (b) 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, all of the following conditions are met:
- (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
- (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
- (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
- (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
- (c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) 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.
- (1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
- (2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected.
- (d) A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation
- (1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).
- (2) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
- (e) When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.
- (f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may assess punitive damages against the plaintiff upon 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 fraud, oppression, or malice in maintaining the action.
- (g) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.
- (h) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.
- (i) This section shall apply 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. source
Ca. Civ. Proc. Code § 128.7