Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. Bucar v. Ahmad (2016) 244 Cal.App.4th 175, 189.
Section 128.7 was adopted to apply rule 11 of the Federal Rules of Civil Procedure, as amended in 1993, to cases brought on or after January 1, 1995. Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.
Because of this intent and the fact that the wording of Code of Civil Procedure section 128.7, subdivisions (b)(2) and (c) is almost identical to that found in rule 11(b)(2) and (c), federal case law construing rule 11 is persuasive authority with regard to the meaning of Code of Civil Procedure section 128.7. Ibid.
Under both Code of Civil Procedure section 128.7 and rule 11, there are basically three types of submitted papers that warrant sanctions: factually frivolous; legally frivolous; and papers interposed for an improper purpose. Guillemin v. Stein, supra, 104 Cal.App.4th at p. 167.
A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.
In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable.
A claim is objectively unreasonable if any reasonable attorney would agree that it is totally and completely without merit.
Section 128.7 provides for a 21-day period during which a party may avoid sanctions by withdrawing the offending pleading or other document. Bucar v. Ahmad, supra, 244 Cal.App.4th at p. 190.
This safe-harbor provision was included so that the statute would be remedial rather than punitive. Ibid.
If a party does not take advantage of the safe harbor period by withdrawing a frivolous filing, a court has broad discretion to impose sanctions. Ibid.
The application of section 128.7, however, must not conflict with the primary duty of an attorney to represent his or her client zealously through innovative but sensible advocacy. Bucar v. Ahmad, supra, 244 Cal.App.4th at p. 190.
Moreover, a sanction must be limited to an amount that is sufficient to deter repetition of the improper conduct or comparable conduct by others who are similarly situated. Ibid.