BILL NUMBER: AB 2494 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 16, 2014
AMENDED IN ASSEMBLY MAY 23, 2014
AMENDED IN ASSEMBLY MAY 7, 2014
AMENDED IN ASSEMBLY APRIL 10, 2014
INTRODUCED BY Assembly Member Cooley
FEBRUARY 21, 2014
An act to amend, repeal, and add Section 128.5 of the Code of
Civil Procedure, relating to courts.
LEGISLATIVE COUNSEL'S DIGEST
AB 2494, as amended, Cooley. Courts: frivolous actions or
proceedings.
Existing law authorizes a trial court to order a party, the party'
s attorney, or both to pay 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, if the actions or tactics arise from a complaint filed, or a
proceeding initiated, on or before December 31, 1994. In addition to
the reasonable expenses award, existing law authorizes the court to
assess punitive damages against the plaintiff on a determination that
the plaintiff's action was maintained by a person convicted of a
felony against the person's victim for injuries arising from the acts
for which the person was convicted, and that the plaintiff is guilty
of fraud, oppression, or malice in maintaining the action.
Existing law also requires every pleading, petition, written
notice of motion, or other similar paper to be signed by the attorney
of record, or if a party is unrepresented, by the party, thereby
certifying to the best of the person's knowledge, information, and
belief that it is not being presented primarily for an improper
purpose, as specified, and that the claims, defenses, and legal and
factual contentions are warranted, as specified. Existing law
authorizes a trial court to impose sanctions upon an attorney, law
firm, or party that violates these provisions in a complaint,
petition, or other paper filed on or after January 1, 1995.
This bill would delete the December 31, 1994, date limitation on a
trial court's authorization to award reasonable expenses incurred as
a result of bad-faith actions or tactics that are frivolous or
solely intended to cause unnecessary delay, thus making both of the
provisions described above applicable commencing January 1, 2015. The
bill would include in the definition of "actions or tactics" the
filing and serving of an answer or other responsive pleading, and
would exclude from that definition disclosures and discovery
requests, responses, objections, and motions. The bill would
require a party filing a motion for an award of costs on that basis,
or an opposition to that motion, to promptly transmit to the
California Research Bureau a copy of the endorsed, filed caption page
of the motion or opposition, a copy of any related notice of appeal
or petition for a writ, and a conformed copy of any resulting order.
The bill would require that the bureau maintain a public record of
these documents for at least 3 years, except as specified. The
bill would require certain standards, conditions, and procedures to
apply to sanctions imposed pursuant to its provisions. The bill would
repeal these provisions on January 1, 2018.
The bill would also require the Judicial Council
California Research Bureau , on or before June
30, 2018, to submit a report to the Legislature examining the impact
and effect of this act the changes made by
the bill, but only if sufficient public and private funding is
secured for this purpose .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 128.5 of the Code of Civil Procedure is amended
to read:
128.5. (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.
(d) In addition to any award pursuant to this section for conduct
described in subdivision (a), the court may assess punitive damages
against the plaintiff on 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.
(e) This section shall not apply to disclosures and discovery
requests, responses, objections, and motions.
(f) Any sanctions imposed pursuant to this section shall be
imposed consistently with the standards, conditions, and procedures
set forth in subdivisions (c), (d), and (h) of Section 128.7.
(g) The liability imposed by this section is in addition to any
other liability imposed by law for acts or omissions within the
purview of this section.
(h) (1) A party who files a motion pursuant to this section for an
award of costs for bad-faith actions or tactics that are frivolous
or solely intended to cause unnecessary delay, and a party who files
an opposition to the motion, shall, promptly upon filing, transmit to
the California Research Bureau of the California State Library, by
email or facsimile, a copy of the endorsed, filed caption page of the
motion or opposition, a copy of any related notice of appeal or
petition for a writ, and a conformed copy of any order issued
pursuant to this section, including any order granting or denying the
motion.
(2) The California Research Bureau shall maintain a public record
of information transmitted pursuant to this section for at least
three years, or until this section is repealed, whichever occurs
first and may store the information on microfilm or other appropriate
electronic media.
(h)
(i) This section shall remain in effect only until
January 1, 2018, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2018, deletes or
extends that date.
SEC. 2. Section 128.5 is added to the Code of Civil Procedure, to
read:
128.5. (a) A trial court may order a party, the party's attorney,
or both to pay any 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 or cross-complaint only if the actions or tactics arise
from a complaint filed, or a proceeding initiated, on or before
December 31, 1994. 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 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.
(d) In addition to any award pursuant to this section for conduct
described in subdivision (a), 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.
(e) The liability imposed by this section is in addition to any
other liability imposed by law for acts or omissions within the
purview of this section.
(f) This section shall become operative on January 1, 2018.
SEC. 3. On or before June 30, 2018, the Judicial Council
California Research Bureau of the California State
Library shall submit a report to the Legislature , in
accordance with the requirements of Section 9795 of the Government
Code, examining the impact and effect of this act.
the changes made by the act adding this
section, including the number of motions made pursuant to Sections
128.5 and 128.7 of the Code of Civil Procedure, the number of motions
made pursuant to those sections resulting in an award of sanctions,
the nature and amount of any sanctions awarded pursuant to those
sections, and whether the changes made to Section 128.5 of the Code
of Civil Procedure has had a dem onstrable effect on
reducing the frequency and severity of bad faith actions or tactics
that would not be subject to sanction under Section 128.7 of the Code
of Civil Procedure. This section shall be implemented only if
sufficient public and private funds are secured to fund the data
collection and evaluation.