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§ 128.5.Expenses for frivolous action, bad faith or delay; Punitive damages

Title 1. Organization and Jurisdiction · Chapter 6. General Provisions Respecting Courts of Justice · Article 2. Incidental Powers and Duties of Court · Last amended 2018 · Last verified July 28, 2026

In one sentenceSection 128.5 lets a trial court order a party, an attorney, or both to pay the other side’s reasonable expenses, including attorney’s fees, for actions or tactics taken in bad faith that are frivolous or aimed solely at delay, subject to notice, a safe-harbor period, and a discovery carve-out.

Full Text of § 128.5

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g) (h) (i)

(a) A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.
(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.
(d) In addition to any award pursuant to this section for an action or tactic described in subdivision (a), the court may assess punitive damages against the plaintiff on a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.
(e) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.
(f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures:
(1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party’s attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.
(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.
(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.
(C) If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
(D) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, the court on its own motion may enter an order describing the specific action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay, and direct an attorney, law firm, or party to show cause why it has made an action or tactic as defined in subdivision (b), unless, within 21 days of service of the order to show cause, the challenged action or tactic is withdrawn or appropriately corrected.
(2) An order for sanctions pursuant to this section shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the action or tactic described in subdivision (a).
(A) Monetary sanctions may not be awarded against a represented party for a violation of presenting a claim, defense, and other legal contentions that 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.
(B) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(g) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanction authority to deter the improper actions or tactics or comparable actions or tactics of others similarly situated.
(h) The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section.
(i) This section applies to actions or tactics that were part of a civil case filed on or after January 1, 2015.
End

Plain-English Summary

Section 128.5 gives a trial court authority to shift the cost of bad-faith litigation conduct onto the party or attorney responsible for it. Subdivision (b) defines the two terms that matter most: “actions or tactics” includes making or opposing motions and filing or serving a complaint, cross-complaint, answer, or other responsive pleading — though filing a complaint without serving it does not count. “Frivolous” means totally and completely without merit, or done solely to harass the other side. The sanctioned conduct has to be both in bad faith and either frivolous or aimed only at causing delay; ordinary aggressive advocacy is not enough.

Subdivision (f) builds in the same kind of safe harbor found in Section 128.7. If the challenged conduct is a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can still be withdrawn or corrected, the moving party must serve — but not file — the sanctions motion, giving the other side 21 days (or whatever period the court sets) to fix the problem before the motion can be presented to the court. A court acting on its own motion follows the same 21-day cure period through an order to show cause. Any sanction has to be limited to what deters repeating the conduct, and a represented party cannot be hit with monetary sanctions for legal-contention violations that are meant to fall on counsel’s judgment rather than the client’s.

Two provisions round out the section. Subdivision (d) allows punitive damages against a plaintiff in the narrow situation where a person convicted of a felony sues their own victim (or the victim’s heirs, relatives, estate, or representative) over injuries from that same felony, and the court finds the plaintiff pursued the case with fraud, oppression, or malice. Subdivision (e) makes clear the whole section does not reach discovery — disclosures, discovery requests, responses, objections, and discovery motions are sanctioned under separate rules, not this one. And subdivision (g) turns the tables on abuse of the sanctions process itself: a sanctions motion brought mainly to harass, delay, or run up costs is itself subject to a sanctions motion.

Frequently Asked Questions

What counts as a “frivolous” action or tactic under Section 128.5?

Section 128.5(b)(2) defines “frivolous” as totally and completely without merit, or done for the sole purpose of harassing the opposing party.

Do I have to give the other side a chance to fix a problem before filing a Section 128.5 sanctions motion?

Yes, for certain conduct. Under Section 128.5(f)(1)(B), if the challenged conduct is a written motion or a filing and service of a pleading that can be withdrawn or corrected, the motion must be served — not filed — and the other side gets 21 days, or another period the court sets, to withdraw or correct it first.

Does Section 128.5 apply to discovery disputes?

No. Subdivision (e) states the section does not apply to disclosures and discovery requests, responses, objections, and motions.

Can a client be personally sanctioned for a legal argument their attorney made?

Section 128.5(f)(2)(A) bars monetary sanctions against a represented party for presenting claims, defenses, or legal contentions that are warranted by existing law or a nonfrivolous argument to change it.

Can filing a sanctions motion under this section backfire?

Yes. Subdivision (g) makes a sanctions motion brought primarily to harass, delay, or increase costs itself subject to a motion for sanctions.

Amendment History

Added Stats 1981 ch 762 § 1. Amended Stats 1984 ch 355 § 1 Stats 1985 ch 296 § 1; Stats 1990 ch 887 § 1 (SB 2766); Stats 1994 ch 1062 § 1 (AB 3594); Stats 2014 ch 425 § 1 (AB 2494), effective January 1, 2015, repealed January 1, 2018; Stats 2017 ch 169 § 1 (AB 984), effective August 7, 2017.

Source & verification. Section text is reproduced verbatim from the California Legislative Information. Enacted by the California Legislature. Last verified July 28, 2026. · Official source
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