California sanctions: bad faith under 128.5, the safe harbour under 128.7, and the discovery carve-out

California runs two general sanctions statutes side by side. They overlap, they have different triggers, and one of them gives the other side a chance to withdraw the offending paper before anything is filed.

Both share one important limit: neither reaches discovery, which has its own sanctions regime.

CCP 128.5: bad faith

The power — subdivision (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.

The section also applies to judicial arbitration proceedings under CCP 1141.10 and following.

The test has two parts joined by "and." The conduct must be in bad faith, and it must be either frivolous or solely intended to cause unnecessary delay. Bad faith alone is not enough; nor is weakness alone.

"Frivolous" is defined — subdivision (b)(2): "totally and completely without merit or for the sole purpose of harassing an opposing party."

That is a demanding standard, and the words "totally and completely" are doing real work. A losing argument is not a frivolous one.

"Actions or tactics" — subdivision (b)(1): they "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."

And a carve-out: "The mere filing of a complaint without service thereof on an opposing party does not constitute 'actions or tactics' for purposes of this section."

So an unserved complaint, however weak, is outside the section.

Procedure — subdivision (c):

Expenses … 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.

The written-and-detailed requirement is a real constraint on the court, and a ground of challenge where an order simply announces a figure.

Punitive damages — subdivision (d): in addition to expenses, the court may assess punitive damages against a plaintiff on a determination that the action was maintained by a person convicted of a felony against their victim — or the victim's heirs, relatives, estate or personal representative — for injuries arising from the acts of conviction, and that the plaintiff is guilty of fraud, oppression or malice in maintaining the action.

The discovery exclusion — subdivision (e): "This section shall not apply to disclosures and discovery requests, responses, objections, and motions."

Discovery misconduct is dealt with under the Civil Discovery Act's own sanctions provisions, which are mandatory in many places where CCP 128.5 is discretionary. The guides on interrogatories, inspection demands and the discovery cutoff cover those.

CCP 128.7: the certification

Who signs — subdivision (a): every pleading, petition, written notice of motion or other similar paper "shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party." Each paper states the signer's address and telephone number.

"Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit."

An unsigned paper "shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party."

What the signature certifies — subdivision (b): by presenting a paper to the court, "whether by signing, filing, submitting, or later advocating," the attorney or unrepresented party certifies that to the best of their knowledge, information and belief, "formed after an inquiry reasonable under the circumstances," all of the following 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.

Two phrases deserve emphasis.

"Or later advocating." The certification is not spent at filing. Continuing to press a contention after learning it is unsupported is itself a presentation.

"If specifically so identified." Both (3) and (4) allow contentions made on information yet to be developed — but only where the paper says so. An allegation pleaded flatly, without that identification, carries the full certification.

Sanctions — subdivision (c): if, "after notice and a reasonable opportunity to respond," the court determines subdivision (b) has been violated, it may impose an appropriate sanction on the attorneys, law firms or parties responsible, subject to the conditions the section states.

The safe harbour

This is the practical difference between the two statutes. CCP 128.7 follows the federal Rule 11 model: a motion is served first and may be filed only if the offending paper is not withdrawn within 21 days.

Compare Washington, whose CR 11 has no safe harbour at all — a sanctions motion there may be filed the day it is served. California's structure gives the other side a chance to fix the problem, which is why a CCP 128.7 motion so often ends without a hearing.

CCP 128.5(f) applies conditions to sanctions ordered under that section as well, and where a party proceeds under CCP 128.5 the safe-harbour question is a live one to check before serving.

Choosing between them

In practice: CCP 128.7 is the ordinary route against a meritless pleading, because the safe harbour makes it cheap to raise and the standard is objective. CCP 128.5 is the route where the problem is conduct — a pattern of tactics — rather than a single paper, and where you can meet the bad-faith standard.

What is not covered

Discovery. CCP 128.5(e) says so expressly, and the Civil Discovery Act supplies its own sanctions, frequently mandatory: the court "shall impose a monetary sanction" against a party who unsuccessfully makes or opposes most discovery motions, absent substantial justification.

Venue fights. CCP 396b(b) has a bespoke fee provision, and it makes the award "the personal liability of the attorney not chargeable to the party." The guide on California venue covers it.

A rejected settlement offer. That is CCP 998, which shifts costs and potentially expert fees without any finding of misconduct at all.

Before reaching for a general sanctions statute, check whether a specific one already covers the conduct — the specific provisions are usually easier to establish.

A short checklist

1. Identify what you are attacking — a paper, or a course of conduct. That choice picks the statute.
2. For a CCP 128.7 motion, serve first and wait 21 days. Withdrawal ends it, which is often the point.
3. For CCP 128.5, be ready on bad faith. Frivolousness alone will not do, and "frivolous" means totally and completely without merit.
4. Put the request in your moving or responding papers. CCP 128.5(c) requires notice there, or a noticed motion by the court.
5. Ask for a detailed written order. The statute requires the court to recite the tactic and the circumstances.
6. Do not use either statute for discovery. Use the Civil Discovery Act, where sanctions are often mandatory rather than discretionary.
7. If you are pleading on information you do not yet have, say so in the paper. CCP 128.7(b)(3) and (4) protect contentions specifically identified as such, and nothing else.
8. Remember the certification continues. Advocating a contention after learning it is baseless is itself a violation.

Where these sections live

• CCP 128.5 — Bad faith actions or tactics
• CCP 128.7 — Signature; certification; sanctions
• CCP 396b — Motion to transfer for improper venue
• CCP 998 — Offer to compromise
• CCP 1005 — Notice periods for motions
• CCP 1008 — Reconsideration and renewal of motions
• CCP 2016.040 — Meet and confer declaration
• CCP 2030.290 — Failure to respond; waiver
• CCP 2031.310 — Motion to compel further response

This page explains what the Code says. It isn't legal advice, and what counts as bad faith or a nonfrivolous argument is decided under case law this site doesn't cover.