You are on page 1of 8

sanctions_points_authorities Section 128.7 of the Code of Civil Procedure.

Signature requirement for court papers; certification that specified conditions met; violations; sanctions; punitive damages, of the State of California provides: (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 shall state the signer's address and telephone number, if any. 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. (b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions 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. (c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. 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. (2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected. (d) A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), 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 violation. (1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b). (2) 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. (e) When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed. (f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may assess punitive damages against the plaintiff upon 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. (g) This section shall not apply to disclosures and discovery requests, responses, objections, and motions. (h) 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 sanctions authority to deter that improper conduct or comparable conduct by others similarly situated. (i) This section shall apply to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter. Code of Civil Procedure section 128.7 is modeled, almost word for word, on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.). (3) In examining the provisions of section 128.7, California courts may look to federal decisions interpreting the federal rule. (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440 [82 Cal.Rptr.2d 712]; Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 419 [73 Cal.Rptr.2d 655]; see Cromwell v. Cummings, supra, 65 Cal.App.4th at p. Supp. 14.) (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467 [112 Cal.Rptr.2d 119] In Moser v. Bret Harte Union High School Dist., (2005) 366 F.Supp.2d 944, the federal court interpreted Rule 11 of the Federal Rules of Civil Procedure as it applies to sanctions on the grounds of misstatements or mischaracterizations of facts, and misstatements of applicable law. Interpreted the rule of law of Rule 11 of the Federal Rules of Civil Procedure Plaintiff, Robert Moser appealed an administrative hearing. was a student of Bret Harte Union High School. Robert Moser had brought an action brought an administrative proceeding for the denial of a free and appropriate public education Robert Moser was the plaintiff in an action for the denial of a free and appropriate public education. Robert Moser sought redress for being denied a free and appropriate public education in an administrative action. He

Robert Moser had brought an administrative action for the denial of a free and appropriate public education. He had brought an action for an administrative hearing for the denial of a free and appropriate public education. Sought compensation for the loss or injury of being denied a free and appropriate public education Sought compensation as a result of the loss or injury of being denied a free and appropriate public education. Brought an action in an administrative forum for the denial of a free and appropriate public education. Plaintiff Robert Moser, a student of the defendant Bret Harte Union High School, brought an action for an administrative hearing. He sought compensation for the loss or injury of being denied a free and appropriate public education. Plaintiff Robert Moser, a student of the defendant Bret Harte Union High School, brought an action for the loss or injury of being denied a free and appropriate education for an administrative hearing. He sought compensation (redress) as a result of the loss or injury of being denied a free and appropriate public education. He sought redress as a result of the loss or injury of the action of being denied a free and appropriate public education. Plaintiff Robert Moser, a student of the defendant Bret Harte Union High School, brought an action for a hearing before the California Special Education Hearing Office for being denied a free and appropriate public education. He sought compensation as a result of the loss or injury of being denied a free an appropriate public education. Plaintiff, Robert Moser appealed an administrative hearing. Plaintiff Robert Moser appealed an administrative hearing to the federal court. And the following proceedings occurred. And the following proceedings took place And the following case proceedings took place. And the following procedures were litigated. And the proceedings followed:

In 2001, Trial de Novo briefs wee submitted by both parties On August 20, 2001, Defendant filed a motion to dismiss complaint pursuant to rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with court orders. Defendant also made numerous evidentiary objections. On November 20, 2001, the motion to dismiss was denied. The federal court issued an order on December 12, 2001, which, set the dates for the parties to move to supplement the record; (Moser v. Bret Harte Union High School Dist., supra, 366 F.Supp.2d 944 at p. 948) The federal court issued an order on June 14, 2002, which, called for any motions to further supplement the administrative record to be filed by June 24, 2002. No party filed such a motion, yet Defendant filed a Further Opposition To Plaintiffs Motion to Supplement Evidentiary Record on July 8, 2002. (Moser v. Bret Harte Union High School Dist., supra, 366 F.Supp.2d 944 at p. 948) A hearing was held on August 9, 2003. On October 17, 2003, a Memorandum Decision and Order granting Plaintiffs motion for summary judgment and denying Defendants *949 motion for summary judgement was filed. The court stated, Lozano, Smith's, Ms. Yama's, and the District's actions in these proceedings have greatly increased the work of Plaintiff's attorney and the Court itself, as well as delayed the just resolution of the case. The objectionable acts fall into four general categories: (1) bad faith, frivolous objections, (2) misstatement and mischaracterization of facts contained in the administrative record, (3) misstatements of the applicable law, and (4) intentional obstruction of the speedy and just resolution of the dispute. (Moser v. Bret Harte Union High School Dist., supra, 366 F.Supp.2d 944 at p. 953) The court ordered sanctions for having failed to comply with Rule 11 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts. on examples of some of the following acts. The court summarized some of the following acts as The court summarized some of the following acts as evidence of the The court summarized some of the following acts to prove the misstatement and mischaracterization of facts contained in the administrative record.

The court stated The court based its sanctions on the some of the following acts as misstatement and mischaracterization of facts contained in the admi The court based its order of sanctions, The court based its decision for sanctions

The court based its holding for sanctions on some of the following acts were misstatement and mischaracterization of facts contained in the administrative record. The court based its sanctions that Lozano, Smiths Ms. Yamas and the Districts violated, failed to comply with the certification that (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery; and

For having failed to act in compliance with the certification that From the evidence which was shown For having failed to comply Constituted the failure to act in compliance with the certification Acts engaged in which were misstatement and mischaracterization of facts Acts the defendants engaged in, in which they misstated and mischaracterized facts contained in the administrative record. In assessing sanctions The court ordered sanctions based upon The court ordered sanctions on examples of some of the following acts for the violation of Rule 11 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts The court ordered sanctions on examples of some of the following acts. The sanctions were for the failure to act in compliance with and for the violation of Rule 11 of the Federal Rules of Civil Procedure. And the sanctions were based upon the misstatement and mischaracterization of facts.

The court ordered sanctions under the authorization of Rule 11 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts On some of the following acts for the violation of Rule 11 Paragraph 3 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts For, violating their duty of candor, and misrepresenting facts and law under FRCP Rule 11. The court ordered sanctions on examples of some of the following acts for the violation of Rule 11 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts *The court ordered sanctions on examples of some of the following acts. The sanctions were for having failed to comply with and for the violation of Rule 11 of the Federal Rules of Civil Procedure. And the sanctions were based upon the misstatement and mischaracterization of facts. The court ordered sanctions for having failed to act in compliance with and for the violation of The court ordered sanctions for the failure to comply with and for the violation. The court ordered counsel of record for the defendants for sanctions condemn: 1 to pass adverse judgment on; disapprove strongly; censure 2 a) to declare to be guilty of wrongdoing; convict b) to pass judicial sentence on; inflict penalty upon c) to doom The court ordered sanctions for having failed to comply with and for the violation of Rule 11 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts. For having engaged in acts For conduct constituting a violation of Rule 11 of the Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts For conduct which constitutes a violation For conduct, while subject to Rule 11 of the Federal Rules of Civil Procedure, constituting a violation of Rule 11 of the

Federal Rules of Civil Procedure based upon the misstatement and mischaracterization of facts. For conduct, under the subject to Rule 11 of the Federal Rules of Civil Procedure, constituting a violation of Rule 11 of the Federal Rules of Civil procedure, based upon the misstatement and mischaracterization of facts. The sanctions were for conduct, under the subject to Rule 11 of the Federal Rules of Civil Procedure, The The The The court court court court found the facts established found that the certification was violated by found that the violation was established held that guilt had been established

In the courts holding for sanctions to constitute Acts that the court stated were misstatement and mischaracterization of facts contained in the administrative record attorney fees may be awarded under 128.5 to pro se litigants, including both attorneys and nonattorneys appearing in propria persona. Such an award may be justified as reimbursement for their reasonable expenses directly related to and in furtherance of the litigation. Abandonato v. Coldran (1995) 41 Cal.App.4th 264 [48 Cal.Rptr.2d 429] Kravitz v.Superior Court (2001) 91 Cal.App.4th 1015 [111 Cal.Rptr.2d 385]