MaryAnn said:
Hi,
I'll try and be specific. This is in California. I have read that one party may be required to pay the other party's legal expenses as a result of the first party's "bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." If I, the plaintiff, lose the case but the case WASN'T found to be frivolous or bad-faith, would I be required to pay the legal expenses of the defendant?
Hope this is clear enough, thanks in advance!
MaryAnn
My response:
Well, it was a nice try at clarity.
There are many such ways, in California law, that could require you to pay the opposing party's legal expenses.
As an example, if under the Discover Act, you answered Request for Admissions (CCP Sec. 2033) with lies, and the opposing party needs to prove the falsity of your answers, you could then be held liable for those expenses of proof at time of trial.
Another example would be if yours was a contract action, and there was a clause in the contract mandating that the "prevailing party" would be entitled to costs and attorney's fees.
There are innumerable situations under California law where a litigant could be required to pay such expenses.
CCP §128.5 provides sanctions for "bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." Bad faith is a prerequisite to the recovery of sanctions under CCP §128.5. [Javor v Dellinger (1992, 2nd Dist) 2 Cal App 4th 1258, 3 Cal Rptr 2d 662; see also West Coast Dev. v Reed (1992, 4th Dist) 2 Cal App 4th 693, 3 Cal Rptr 2d 790 (noting that while some cases suggest the contrary, the weight of authority requires a showing of bad faith)] However, wilfulness is not necessarily required. [In re Marriage of Gumabao (1984, 2nd Dist) 150 Cal App 3d 572, 198 Cal Rptr 90 (counsel’s failure to alert the court and opposing counsel of his inability to attend a hearing was not in good faith and justified sanctions, even if it was not wilful); see also West Coast Dev. v Reed (1992, 4th Dist) 2 Cal App 4th 693, 3 Cal Rptr 2d 790 (stating that CCP §128.5 does not require "a determination of evil motive")]
Sanctions under CCP §128.5 are not conditioned on a showing of need or ability to pay. [In re Marriage of Bergman (1985, 1st Dist) 168 Cal App 3d 742, 214 Cal Rptr 661]
For purposes of CCP §128.5, "frivolous" means totally and completely without merit, or for the sole purpose of harassing an opposing party. [CCP §128.5(b)] The fact that there is no precedential support for a cause of action does not necessarily make it frivolous; in Jones v Jones (1986, 2nd Dist) 179 Cal App 3d 1011, 225 Cal Rptr 95, the court affirmed both the dismissal, for lack of supporting authority, of a daughter’s complaint seeking to require her father to pay for her college education, and the judge’s denial of sanctions under CCP §128.5. Actions solely intended to harass amount to bad faith as a matter of law, while those that merely lack merit may not meet the bad faith requirement. [Javor v Dellinger (1992, 2nd Dist) 2 Cal App 4th 1258, 3 Cal Rptr 2d 662]
The party, the party’s attorney, or both may be required to pay another party’s reasonable expenses, including attorney fees, resulting from the sanctioned conduct. [CCP §128.5(a)]
Because CCP §128.5 sanctions are expressly restricted to those incurred as a result of bad-faith conduct, counsel should consider whether proceeding under Fam C §271, which is not so restricted, might yield a larger recovery. This option is especially favorable when the party against whom sanctions are sought is wealthy enough that the prohibition in Fam C §271 against imposing an unreasonable financial burden is not a limiting factor.
CCP §128.5 sanctions are generally preferable to civil contempt proceedings, however, since under CCP §1218 the maximum contempt penalty is $1,000, payable to the county. [See Conn v Superior Court (1987, 2nd Dist) 196 Cal App 3d 774, 242 Cal Rptr 148 (reversing an excessive contempt penalty, and noting that CCP §128.5 would have allowed more discretion as to the amount of sanctions)]
Until January 1, 2003, the applicability of CCP §128.5 is limited to actions or tactics that arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. [CCP §§128.5, 128.6] Until January 1, 1999, an attorney or unrepresented party, by presenting a pleading, petition, written notice of motion, or similar paper certifies to meeting certain prescribed conditions, for violation of which sanctions may be imposed. [CCP §128.7]
Good luck to you.
IAAL
[Edited by I AM ALWAYS LIABLE on 06-28-2001 at 01:49 PM]
