A new bill taking effect January 1, 2015 would re-introduce sanctions for bad lawyer behavior. The bill also includes provisions for conducting a three year study on its effect on litigation in the State. (More on that later).
The new (actually, old) law, California Code of Civil Procedure 128.5, allows for sanctions for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Actions or tactics include basically anything other than discovery and discovery motions. (Which has its own ruleset for sanctions.)
Currently, litigators must try and seek sanctions under CCP 128.7, which provides for a mandatory 21 day safe harbor. 128.7 sanctions are limited to sanctions for filed papers, like pleadings and motions. Functionally, (and as someone who has attempted to get 128.7 motions on two occasions for egregious conduct I will not get into here) that 21 day safe harbor provision is the biggest practical obstacle to an effective sanction device. If a frivolous motion is filed and scheduled for hearing within that time period, 128.7 sanctions are meaningless. I still have to do all the work for the frivolous motion anyway in addition to preparing and serving my 128.7 sanctions notice. And then the offending lawyer can just withdraw the frivolous motion within the safe harbor period, making my motion moot.
The bill is supported mostly by business interests, i.e. people who get sued alot. It was introduced by Democrat Ken Cooley, who represents most of Sacramento County and was State Farm’s top lawyer for 17 years.
One of the more interesting bits of the bill (to me anyway) is that it is essentially conducting a study on its effectiveness for the first three years. If you file a 128.5 motion, you also have to serve a copy on the California Research Bureau of the California State Library (CRB). You also must forward to them any Order on the motion. This is a public record according to the law and will be submitted to the Legislature in 2018 to examine the law’s effectiveness. If I suspect my adversary is acting unethically and I hear bad things from colleagues about bad behavior, can I subpoena the CRB for prior sanction paperwork filed against the party or attorney? I don’t see why not, although I really hope I don’t encounter a situation bad enough to warrant such an expedition.