The original point of this blawg, other than to give me a place to post off-topic Youtube videos of long-gone jazz, blues and r & b musicians, is to provide useful information about California litigation issues for businesses much like many of our firm’s clients. These are companies from other states, who only occasionally find themselves ensnared in California litigation. When they do, they feel as though they have entered a foreign country, gone through Alice's looking glass, or both. So, I’ve put up posts and white papers on Proposition 65, product liability law, discovery, and other matters of occasional interest to out-of-state litigants, as well as rather selectively chosen topical information about verdicts, appellate decisions, and general goings on in this state.
With that purpose in mind, this post is devoted to California’s version of Rule 11, the remedy for frivolous and unwarranted litigation contentions. California’ version appears in California Code of Civil Procedure §128.7.
More after the break.
As everyone who manages litigation in any other state knows, Rule 11 is the federal rule that prohibits frivolous and unwarranted contentions in litigation and provides for sanctions in the case of a violation. In most respects, §128.7 follows Rule 11:
Per subsection (b):
(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Furthermore, per subsection (c), again as in Rule 11:
(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.
And finally, as with Rule 11, there is the 21 day grace period, per subsection (c)(1):
A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
Neither Rule 11 nor §128.7 are designed to be used against the run-of-the-mill lousy case (or crummy defense). And, sadly, neither can be used against inappropriate discovery responses. They are for the truly pointless, meritless or frivolous case, usually brought for an improper purpose. And the California courts look at the Rule 11 cases when they interpret §128.7.
For the defense, there’s a strategic feature about the §128.7 motion that isn’t offered in Federal Court, and it has to do with the interplay between §128.7 and our summary judgment statute, §437c. The summary judgment statute requires an extraordinary 75 days notice before the hearing. So when a case is truly meritless or frivolous, the ideal scenario goes like this:
- Defendant files motion for summary judgment, setting the hearing 75 days hence;
- Defendant serves §128.7 motion, contending that by "later advocating" the allegations in his complaint, the plaintiff is violating this section;
- If Plaintiff doesn’t dismiss the case in 21 days, Defendant files the 128.7 motion with the court, setting it for hearing on the same date as the summary judgment motion.
It is amazing how infrequently these statutes get used together strategically. But we've seen them successfully used this way, and the combination can be very powerful.