California has resurrected the trial court’s authority to issue sanctions, including attorney’s fees, against a party that engages in “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”  Cal. Civ. Proc. Code § 128.5(a) (2015).  This is a positive development for defense attorneys and their clients, who find themselves dealing with plaintiffs and/or their attorneys that engage in bad-faith tactics or file frivolous lawsuits.

The statute provides a categorical definition of “actions or tactics.”  A parties’ actions and/or tactics includes, “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.”  Id. at § 128.5(b)(1).  However, filing the complaint without service thereof does not constitute “actions or tactics.”  Id.  In addition, the statute defines the term “frivolous,” as “totally and completely without merit or for the sole purpose of harassing an opposing party.”  Id. at § 128.5(b)(2). 

The statute, however, does “not apply to disclosures and discovery requests, responses, objections, and motions.”  Id. at § 128.5(e).  As such, defense counsel cannot rely on this statute to curb discovery fishing expeditions, which plaintiff’s counsel have a tendency to engage in.  Nonetheless, defense counsel may rely on this statute, for example, to persuade plaintiff’s counsel to dismiss frivolous lawsuits.  Assuming such lawsuits are voluntarily dismissed, defense attorneys and their clients can save the costs associated with filing needless dispositive motions. 

This new law takes effect on January 1, 2015.  But it contains a sunset provision and it will be repealed and replaced with the 2014 version of the statute on January 1, 2018, unless the California Legislature takes action to remove or extend the sunset provision.  Between 2015 and 2018, the legislature will monitor the new law to determine if it deters bad-faith litigation.  To help it do so, the statute requires that a party that files a motion for sanctions pursuant to Section 128.5 must send a copy of the motion to the California Research Bureau of the California State Library.  Id. at § 128.5(h).