Avoid Sanctions When Pushing the Legal Envelope

Julie Brook, Esq., reprinted with permission from CEB.

A court may sanction attorneys for engaging in meritless actions or tactics with the intent to harass or cause unnecessary delay. (Cal. Code Civ. Proc., § 128.5.) But what is meritless to one person may be a rational extension of the law to another. Luckily, there’s a safe harbor provision in the statute for that.

Specifically, section 128.5 authorizes sanctions for any “actions or tactics” that are frivolous or intended to cause unnecessary delay, including, but not limited to, making or opposing motions in bad faith or filing and serving baseless complaints, cross-complaints, answers, or other responsive pleadings. Section 128.5 also applies to judicial arbitration proceedings under Code of Civil Procedure sections 1141.10–1141.31. Additionally, Code of Civil Procedure section 128.7 empowers the court to issue sanctions for the filing or advocacy of groundless claims in signed pleadings and other papers

Section 128.5 carves out a safe harbor and a defense from sanctions when:

1. the objectionable pleading is one that can be withdrawn or appropriately corrected (i.e., a written motion, opposition to a written motion, complaint, cross-complaint, answer, or other responsive pleading) (Code Civ. Proc., § 128.5(f)(1)(B)); or
2. a nonfrivolous argument can be made for the extension, modification, or reversal of existing law or the establishment of new law (Code Civ. Proc., § 128.5(f)(2)(A)).

This second provision is particularly important when you’re advancing new legal theories and arguments. Avoid sanctions by setting out your compelling argument for a change in the law, making it clear that it’s not frivolous. The statute defines frivolous in part as “totally and completely without merit.” (Code Civ. Proc., § 128.5(B)(2).) To avoid sanctions, focus on the merit of your argument and include any relevant citations to discussions in case law or scholarly articles proposing or considering the change.

Before accepting a case, always consider its viability and whether you’ll be subject to sanctions for pursuing it. CEB’s California Civil Procedure Before Trial, chapter 1 will take you through the considerations you should weigh before accepting a case.