CALIFORNIA FAMILY LAW
...Attorney Fees
......Sanctions
.........Code Civ. Proc. §128.5
 21 Cards On This Topic:
  • Fees may be awarded to punish frivolous actions or delaying tactics.
  • CCP 128.5(a) does not authorize trial courts to impose sanctions for any form of litigation misconduct arising from complaint filed, or proceeding initiated after 12/31/94; CCP 128.7 applies to later cases.
  • The party moving for sanctions under CCP §128.5 or CCP §128.7 must wait for the entire 21-day period to expire before filing; failure to comply precludes an award of sanctions.
  • CCP §128.5’s 21-day safe harbor provision does not work in an anti-SLAPP action, so it is proper to request attorney’s fees in the responsive declaration.
  • No vestige remains of the holdings in San Diegans for Open Government v. City of San Diego concerning the requirements of CCP §128.5; the proper standard for sanctions is subjective bad faith.
  • CCP §128.5 expressly vests sanctioning power in the trial ct., not the appellate court. [Dicta.]
  • Grant of sanctions under CCP §128.5 overturned where defendants did not comply with the 21-day safe harbor provision of CCP §128.7(c)(1).
  • Motion for sanctions under CCP §128.5 properly denied where offending complaint could have been withdrawn, and movant did not offer plaintiff that opportunity by complying with 21-day waiting period before filing.
  • Party filing sanctions motion under CCP §128.5 need not comply with CCP §128.7 waiting period; standard in evaluating section 128.5 sanctions request is whether the conduct was objectively reasonable; act may be applied to all actions not final. [Caveat]
  • Procedure for ruling on Section 128.5 motions.
  • 128.5 sanctions proper against Ps and atty who acted frivolously and in bad faith by disclosing D's declaration, filed under seal but inadvertently placed in public file.
  • Whether an action is frivolous is governed by an objective standard, but a finding of subjective bad faith, i.e., a showing of an improper purpose also required.
  • Applicable sanctions statute determined by date original support order filed.
  • Sanctions against trustee/attorneys re trust's internal affairs governed by CCP 128.5, not CCP 128.7 as proceedings arose from filing of will in 1974, not post-1994 motion to remove trustee.
  • When an action utterly lacks merit, the trial court is entitled to infer that the action was taken in bad faith.
  • Code Civ. Proc. §128.5 sanctions may be awarded in contingency fee cases.
  • Code Civ. Proc. §128.5 sanction against counsel proper for pursuit of motion after grounds for motion found invalid.
  • Failure to legally justify motion for new trial justifies fee award.
  • Code Civ. Proc. §128.5 sanctions may be imposed when entire action is frivolous. Amount of notice required must be determined on case-by-case basis.
  • Code Civ. Proc. §128.5 sanctions may not be obtained ex parte. Order must contain detailed recital of circumstances justifying sanctions.
  • Cases discussing various CCP §128.5 sanctions issues.


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