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Malovec v. Hamrell3/1/1999
arty, 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." (§ 128.5, subd. (a).) "`Actions or tactics' include, but are not limited to, the . . . filing and service of a complaint . . . ." (§ 128.5, subd. (b)(1).) A concern was raised that these subjective sanctions procedures were ineffective. Therefore, the Legislature revised the procedures for sanctions by enacting section 128.7 in "an effort to largely bring California sanctions practice into line with rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.)" (Goodstone v. Southwest Airlines Co., supra, 63 Cal.App.4th at p. 419; Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 368.) Section 128.7 is effective for cases filed from January 1, 1995, to January 1, 2003.
Section 128.7 requires the attorney for a plaintiff to sign the complaint, representing that after making a reasonable inquiry the complaint has not been filed for any improper purpose, the claims are warranted by existing law or non-frivolous argument for the extension of existing law, and the allegations have factual support. (§ 128.7, subds. (a) and (b).) After notice and opportunity to be heard, a trial court may impose sanctions against an attorney who has misrepresented the purpose or legal or factual sufficiency of a complaint. There are two procedures which may lead to the imposition of sanctions. First, a party may move for sanctions. (§ 128.7, subd. (c)(1).) Second, the trial court may initiate sanctions on its own motion. "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 30 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected." (§ 128.7, subd. (c)(2).)
The Safe Harbor Provisions
Section 128.7 is very similar to rule 11 of the Federal Rules of Civil Procedure (Rule 11) with a few material differences. Both provisions include a safe harbor period, which permits an offending party to withdraw an improper pleading during a specified period. In the federal rule, the safe harbor period is 21 days, while the California statute prescribes 30 days. In addition, in the federal rule the safe harbor provisions are applicable only to motions by a party, while the California statute applies the safe harbor provisions to a party's motion as well as the court's own motion. (Pacific Trends Lamp & Lighting Products, Inc. v. J. White, Inc. (1998) 65 Cal.App.4th 1131, 1136.) In all other respects, the safe harbor provisions of section 128.7 are virtually identical to those of Rule 11. "The effect of federal law is important in terms of applying section 128.7 which contains virtually the same safe harbor provisions as ule 11. This is because the Legislature specifically intended to adopt the ule 11 model with its `safe harbor' provisions." (Goodstone v. Southwest Airlines Co., supra, 63 Cal.App.4th at p. 422.)
A party seeking sanctions must follow a two-step procedure. First, the moving party must serve on the offending party a motion for sanctions. Service of the motion on the offending party begins a 30-day safe harbor period during which the sanctions motion may not be filed with the court. During the safe harbor period, the offending party may withdraw the improper pleading and thereby avoid sanctions. If the pleading is withdrawn, the motion for sanctions may
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