How to Dismiss a Frivolous Case Early in the Litigation

Code of Civil Procedure Section 128.7

In appropriate cases, a motion for sanctions under Code of Civil Procedure section 128.7 can be highly effective at dismissing a lawsuit with prejudice early on without the expense of protracted litigation. Due to the high volume of requests received by this office, we provide the below samples of section 128.7 motions and court orders granting same. (A lot of information and sample documents about section 128.7 are provided on this website by popular request. Nonetheless, we continue to receive a large volume of calls inquiring further. We hope you understand that we cannot return every call or help every individual with a legal problem, unfortunately.)

Sample 1: Motion for Sanctions and Court Order Granting 128.7 Sanctions + Court’s Minute Order.
Sample 2: Motion for Sanctions and Court Order Granting 128.7 Sanctions.
Sample 3: Motion for Sanctions and Notice of Ruling Granting 128.7 Sanctions.
Sample 4: Motion for Sanctions (plaintiff avoided sanction by dismissing case).
Sample 5: Motion for Sanctions (plaintiff avoided sanction by dismissing case).
Sample 6: Motion for Sanctions (plaintiff avoided sanction by rectifying misconduct; case dismissed).
Sample 7: Motion for Sanctions (plaintiff filed partial dismissal).
Sample 8: Motion for Sanctions (pending action)

Many have asked about the differences between a 128.7 Motion and an MSJ. For an overview of the difference between a Section 128.7 Motion and a Motion for Summary Judgment, read: Dismissing a Lawsuit §128.7 Motion vs. Motion for Summary Judgment.

Overview of Section 128.7

Under section 128.7, a court may impose sanctions for filing a complaint if the court concludes the complaint was filed for an improper purpose or was without merit, either legally or factually. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) The statute provides for a 21-day period during which a plaintiff who is served with a section 128.7 motion may avoid sanctions by withdrawing the complaint. (§128.7(c)(1).) When the plaintiff does not take advantage of the 21-day safe harbor period, the “statute enables courts to deter or punish frivolous filings which disrupt matters, waste time, and burden courts’ and parties’ resources.” (In re Mark B. (2007) 149 Cal.App.4th 61, 76.)

“A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute.” ( Peake v. Underwood, supra 227 Cal.App.4th at 441.) In addition to ordering the plaintiff to reimburse all of defendants’ reasonable attorneys’ fees, section 128.7 authorizes a court to dismiss an action with prejudice as a sanction for violation of the statute. This is supported by (a) the leading treatise on civil procedure, (b) a recent opinion published by the Fourth District Court of Appeal, (c) legislative intent, and (d) analogous case law interpreting federal rule 11 (upon which section 128.7 is based).

Weil & Brown

Judges Weil and Brown’s highly regarded treatise on California procedure supports the view that a court has authority to dismiss an action with prejudice under section 128.7. With respect to section 128.7, the treatise states:

“A motion for terminating sanctions can be made under CCP § 128.7(c) based on declarations showing that a challenged pleading is frivolous and without any evidentiary support.”

(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) at ¶ 10:4.)

The treatise suggests a dismissal under section 128.7 may be with prejudice if it is based on the merits:

“Where a party’s claims or defenses are stricken for lack of evidentiary support, the effect may be the same as a summary judgment or summary adjudication”

(Id. at ¶ 9:1217.) The treatise concludes that, due to the merits dismissal, “[a] motion for sanctions under §128.7 may be a lot quicker and easier than a motion for summary judgment or summary adjudication.” (Id. at¶ 9:1218.)

California Case Law

One California court specifically acknowledged a trial court’s authority to dismiss an action under section 128.7. (See e.g.,Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1176 n.2 [“We note that under these circumstances section 128.7 might provide an alternative basis for dismissing this suit.”].) And, in a recent published opinion, the Fourth District Court of Appeals affirmed an apparent dismissal with prejudice under section 128.7. (Peake v. Underwood (2014)227 Cal.App.4th 428.)

In Peake v. Underwood, the defendant “moved for terminating and monetary sanctions… under Code of Civil Procedure section 128.7.” ( Peake v. Underwood, supra, 227 Cal.App.4th at 432.) The trial court found the claims in the complaint were “without legal or evidentiary support” and, “[a]s sanctions, the court dismissed [plaintiff’s] claims against [defendant] and ordered [plaintiff] and her attorney to pay [defendant] $60,000 for his attorney fees incurred in defending the action.” (Id. at 439.) While the trial court did not specifically describe the dismissal as being “with prejudice,” it made clear that it was dismissing the action on the merits as a terminating sanction pursuant to section 128.7, which is tantamount to dismissing the action with prejudice. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) at ¶¶ 9:1217-9:1218.) The Court of Appeals affirmed the trial court’s ruling in all respects and declared “[t]he trial court did not abuse its discretion in imposing sanctions.”

Legislative Intent

The Notes of the Advisory Committee on the 1993 Amendment to Federal Rules of Civil Procedure, rule 11—upon which section 128.7 is based—make clear that striking the complaint (i.e., dismissing the action) is an authorized sanction under the statute. (See Notes of the Advisory Committee on 1993 Amendments to Federal Rules of Civil Procedure (1993) 146 FRD 401, 587.) “[T]he ‘Notes of the Advisory Committee for rule 11 were adopted as a statement of legislative intent for section 128.7.” (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 132.) Thus, the legislative intent supports the view that a trial court has authority to dismiss an action under section 128.7.

Rule 11 Cases

Federal court opinions on rule 11 provide further support for the trial court’s authority to dismiss an action with prejudiceunder section 128.7. As explained by the California Supreme Court, “[t]he California Legislature essentially sought to replicate rule 11 when it enacted section 128.7.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, n.2.) Accordingly, the California Courts routinely turn to federal court decisions on rule 11 (which are far more numerous than those construing section 128.7) in interpreting section 128.7. (Id. at 517-518 [“Section 128.7 was modeled almost word for word on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), making the views of the federal courts particularly pertinent.”].) In that regard, federal courts have repeatedly acknowledged the authority of a trial court to dismiss an action with prejudice as a sanction for a violation of rule 11. (Combs v. Rockwell International Corporation (9th Cir. 1991) 927 F.2d 486 [“dismissed the action with prejudice, pursuant to Fed. R. Civ. P. 11 and the court’s inherent powers for violating Fed. R. Civ. P. 30(e).”]; Business Guides, Inc. v. Chromatic Communications Enterprises, Inc. (N.D. Cal. 1988) 121 F.R.D. 402, 405 [finding under rule 11 that “sanctions can include dismissal of the action with prejudice.”]; Peerless Indus. Paint Coatings Co. v. Canam Steel Corp. (8th Cir. 1992) 979 F.2d 685, 686 [“dismissed the lawsuit with prejudice and awarded [defendant] $30,000 in sanctions under Federal Rule of Civil Procedure 11.”]; Carman v. Treat (8th Cir. 1993) 7 F.3d 1379, 1382 [“Carman argues that even if we find that he violated Rule 11, the district court nevertheless abused its discretion by choosing dismissal with prejudice as a sanction… we do not find that the district court abused its discretion.”]; Pope v. Fed. Ex. Corp. (8th Cir. 1992)974 F.2d 982, 984 [affirming dismissal with prejudice under Rule 11.]; Jimenez v. Madison Area Tech. College (7th Cir. 2003) 321 F.3d 652 [“court sanctioned Jimenez, under Rule 11(c) of the Federal Rules of Civil Procedure, and dismissed her suit with prejudice. Jimenez claims that imposition of such a harsh sanction amounts to an abuse of discretion. We affirm the district court’s dismissal of Jimenez’s Complaint.”]; Kemin Foods, L.C. v. Pigmentos Vegetales del Centro S.A. de C.V. (S.D. Iowa 2005) 384 F.Supp.2d 1334, 1356 [“Dismissal with prejudice has been found in some cases to be a proper sanction for a Rule 11 violation”].)

Inherent Discretionary Power

Moreover, independent of section 128.7, trial courts have an inherent discretionary power to dismiss, with prejudice, any action deemed frivolous or filed for an improper purpose. (See e.g. Estate of King (1953) 121 Cal.App.2d 765; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758-759 (Slesinger).)

In Estate of King, the court stated:

“It is strongly urged that if a trial court may not dismiss with prejudice an action brought merely for vexation, that the process of the court cannot be protected from abuse; that where the mere pendency of the action seriously impairs property rights, counsel may continue to use the pendency of the action as a weapon of extortion by refiling the case ad infinitum…

A court has inherent power to determine whether its process is used for the purpose of vexation or fraud, instead of the single purpose for which it is intended — the adjudication of bona fide controversies. It is the duty of the court to prevent such abuse, and a dismissal of the cause is an appropriate way to discharge that duty.”

In a more recent opinion, the Court of Appeal re-affirmed the inherent, discretionary powers of the trial courts to dismiss an action with prejudice, holding that such power “is essential for every California court to remain a place where justice is judicially administered.” ( Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758-759 & 765 (Slesinger).) Slesinger explained that the theory supporting the inherent power to dismiss for litigation misconduct is straightforward: “Courts cannot lack the power to defend their integrity against unscrupulous marauders; if that were so, it would place at risk the very fundament of the judicial system.” (Id. at 762.)

Final Thoughts

Careful attention must be given to the strict procedural requirements of section 128.7 motions, as a minor procedural defect can result in denial of the motion or reversal on appeal. (See e.g., Galleria Plus, Inc. v. Hanmi Bank (2009) 179 CA4th 535, 537 [reversing order granting sanctions because notice of motion for sanctions failed to state date of motion hearing, rendering notice fatally defective]; Hart v. Avetoom (2002) 95 Cal.App.4th 410, 413-414 [“‘Close’ is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute.”].) For a useful reference on sanctions, see Courtroom Control: Contempt and Sanctions, California Judges Benchguide (Revised 2010), produced by the Center for Judicial Education and Research of the Administrative Office of the Courts. (Excerpts of the guide are included in the preceding link.)