Code of Civil Procedure § 1985.3 – Subpoena of Consumer Records

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Code Details

Exact Statute Text: (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.

(Amended by Stats. 2005, Ch. 706, Sec. 9. Effective January 1, 2006.)

Exact Statute Text

(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.

(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.

(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.

(1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).

(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.

(g) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.

(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.

(Amended by Stats. 2005, Ch. 706, Sec. 9. Effective January 1, 2006.)

Code of Civil Procedure § 128.7 Summary

*Please note: While the title provided for this article is “Code of Civil Procedure § 1985.3 – Subpoena of Consumer Records,” the exact statute text provided corresponds to Code of Civil Procedure § 128.7, which governs sanctions for frivolous filings. This summary and subsequent sections will address the content of Code of Civil Procedure § 128.7.*

California Code of Civil Procedure (CCP) § 128.7 is a crucial statute designed to deter frivolous lawsuits, motions, and other legal filings in California state courts. It requires attorneys and unrepresented parties to certify, to the best of their knowledge and after a reasonable inquiry, that any paper presented to the court is:
1. Not filed for an improper purpose (e.g., harassment, delay, increased costs).
2. Supported by existing law or a non-frivolous argument for changing the law.
3. Based on evidentiary support for factual contentions, or likely to have it after further investigation.
4. Warranted by evidence for denials of factual contentions, or based on a reasonable lack of information.

If a court finds that these conditions have been violated, it can impose sanctions on the responsible attorney, law firm, or party. The statute outlines specific procedures for seeking sanctions, including a “safe harbor” provision allowing the offending party to withdraw or correct the challenged paper within 21 days before the sanctions motion can be filed with the court. Sanctions are intended to deter future misconduct and can include non-monetary directives, penalties paid to the court, or payment of the opposing party’s attorney’s fees and expenses incurred due to the violation. Notably, it specifically excludes discovery-related matters (like requests and responses) from its scope, which are covered by other sanction statutes.

Purpose of Code of Civil Procedure § 128.7

The legislative purpose behind Code of Civil Procedure § 128.7 is to maintain the integrity of the judicial system by deterring attorneys and parties from filing pleadings, motions, and other papers that lack factual or legal merit, or are filed for improper purposes. It aims to prevent the abuse of the litigation process, such as using the courts to harass opponents, cause unnecessary delays, or needlessly increase the cost of litigation for others. By requiring attorneys and parties to conduct a reasonable inquiry into the factual and legal bases of their submissions, the statute promotes professionalism, encourages diligent investigation, and ensures that legal actions are brought in good faith. It mirrors Federal Rule of Civil Procedure 11 and was enacted to bring California state courts in line with federal standards for curbing frivolous filings. Ultimately, it seeks to conserve judicial resources and ensure that litigation focuses on genuine disputes, not strategic maneuvering designed to obstruct justice.

Real-World Example of Code of Civil Procedure § 128.7

Imagine a personal injury case where a plaintiff, “Alice,” files a lawsuit alleging severe injuries from a car accident. “Bob,” the defendant, files a cross-complaint against Alice, claiming *she* was actually at fault and demanding damages for his own alleged injuries. However, Bob’s attorney, “Mr. Smith,” files this cross-complaint without any investigation or evidence. Bob himself admitted to the police at the scene that he was distracted by his phone, and a witness corroborates Alice’s version of events.

Alice’s attorney realizes that Bob’s cross-complaint has no factual basis and appears to be filed solely to intimidate Alice and pressure her into settling for less, thereby increasing litigation costs. Alice’s attorney drafts a motion for sanctions under Code of Civil Procedure § 128.7, detailing how Mr. Smith’s cross-complaint violates the certification requirements of subdivision (b): it’s filed for an improper purpose (harassment/delay), lacks evidentiary support, and is not warranted by existing law.

Alice’s attorney serves the motion on Mr. Smith. Within the 21-day “safe harbor” period provided by CCP § 128.7(c)(1), Mr. Smith realizes the serious implications of the motion. After reviewing his client’s admissions and the witness statement, he concludes that the cross-complaint is indeed frivolous. To avoid potential sanctions, Mr. Smith promptly withdraws Bob’s cross-complaint. Because the paper was withdrawn within the safe harbor period, Alice’s attorney cannot file the motion with the court, and no sanctions are imposed. This outcome demonstrates the statute’s effectiveness in deterring and correcting improper filings before judicial resources are consumed.

Related Statutes

While the exact statute text provided is CCP § 128.7, the article’s title is for CCP § 1985.3.

Code of Civil Procedure § 1985.3 (Subpoena of Consumer Records): This statute (which is the title of this article) outlines specific notice requirements and procedures that must be followed when seeking to subpoena a consumer’s personal records (e.g., financial, medical) from a third party. It is unrelated to sanctions for frivolous filings.
Code of Civil Procedure § 128.5 (Bad-Faith Actions): This is an older statute that also allows for sanctions, but for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” While similar in spirit to CCP § 128.7, it generally applies to actions filed before January 1, 1995, or in certain limited circumstances not covered by § 128.7. Unlike § 128.7, it requires a finding of subjective bad faith.
Federal Rule of Civil Procedure 11 (Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions): This federal rule is the direct model for California’s CCP § 128.7. It imposes similar duties on attorneys and parties regarding the factual and legal basis of their filings in federal court and provides for similar sanction mechanisms.
Code of Civil Procedure § 2023.010 et seq. (Civil Discovery Act – Sanctions): While CCP § 128.7 explicitly excludes discovery matters, California’s Civil Discovery Act contains its own extensive provisions for sanctions related to discovery abuses, such as failing to respond to discovery requests, making frivolous objections, or misusing discovery tools.

Case Law Interpreting Code of Civil Procedure § 128.7

Several key cases interpret and apply Code of Civil Procedure § 128.7:

Levy v. Blum (2001) 92 Cal.App.4th 625 (https://scholar.google.com/scholar_case?case=17606353344642283086&q=Code+of+Civil+Procedure+%C2%A7+128.7&hl=en&as_sdt=4,5)

* This case affirmed that the “safe harbor” provision of CCP § 128.7(c)(1) is mandatory. A motion for sanctions cannot be filed with the court unless the challenged paper is not withdrawn or corrected within 21 days after service.

Guillemin v. Stein (2002) 104 Cal.App.4th 15] (https://scholar.google.com/scholar_case?case=1704257850812970631&q=Code+of+Civil+Procedure+%C2%A7+128.7&hl=en&as_sdt=4,5)

* This case clarified the standard for imposing sanctions under CCP § 128.7, emphasizing that the attorney’s or party’s conduct must be judged by an objective standard of reasonableness under the circumstances existing at the time the challenged paper was presented to the court. Subjective bad faith is not required.

Kojro v. County of San Diego (2015) 238 Cal.App.4th 313 (https://scholar.google.com/scholar_case?case=15873977501309320267&q=Code+of+Civil+Procedure+%C2%A7+128.7&hl=en&as_sdt=4,5)

* This case reiterated that a court cannot award monetary sanctions on its own motion unless it issues an order to show cause before a voluntary dismissal or settlement of the claims, as per subdivision (d)(2). It also highlighted the importance of a clear explanation from the court for any sanctions imposed.

Peinado v. Department of Corrections and Rehabilitation (2020) 55 Cal.App.5th 698 (https://scholar.google.com/scholar_case?case=16900222044810058428&q=Code+of+Civil+Procedure+%C2%A7+128.7&hl=en&as_sdt=4,5)

* This decision affirmed that the trial court must describe the conduct constituting the violation and explain the basis for the sanction imposed (CCP § 128.7(e)). This ensures a transparent and reviewable sanctions order.

Why Code of Civil Procedure § 128.7 Matters in Personal Injury Litigation

In personal injury litigation, Code of Civil Procedure § 128.7 plays a critical role for both plaintiffs and defendants in ensuring fair and efficient legal proceedings.

For Plaintiffs:

Protection Against Defense Tactics: Plaintiffs can use CCP § 128.7 to deter defendants or their attorneys from filing frivolous defenses, motions to dismiss, or other papers solely designed to delay the case, increase costs, or harass the injured party. For example, if a defendant denies clear liability without any factual basis, a plaintiff’s attorney could initiate a sanctions motion.
Encourages Thorough Investigation: This statute indirectly benefits plaintiffs by encouraging defense counsel to conduct a reasonable inquiry into the facts and law before making filings. This can lead to more realistic assessments of liability and damages, potentially facilitating earlier settlements.
Cost Recovery: If a defendant’s frivolous filing forces a plaintiff to incur unnecessary legal fees and expenses, a successful sanctions motion can result in the court ordering the defendant or their attorney to reimburse those costs, though the primary goal is deterrence.

For Defendants:

Defense Against Unfounded Claims: Defendants can invoke CCP § 128.7 if a plaintiff’s attorney files a complaint or motion that lacks a reasonable factual or legal basis. This can be crucial in cases where plaintiffs pursue claims with insufficient evidence or against parties who clearly bear no responsibility.
Deterrence of Overreaching: It acts as a check against plaintiffs who might file exaggerated claims or pursue litigation against multiple parties without proper investigation, hoping to extract a settlement through sheer volume.
Promotes Ethical Conduct: Defense attorneys, like plaintiff attorneys, must ensure their own filings meet the standards of CCP § 128.7. This encourages meticulousness in their responses, counterclaims, and motions, ensuring that defense strategies are well-grounded.

For both parties, understanding and appropriately utilizing CCP § 128.7 is essential for navigating California personal injury cases effectively. It provides a mechanism to hold opposing counsel accountable for improper conduct, reduces the burden of meritless litigation, and helps maintain a more ethical and efficient judicial process, ultimately benefiting clients by focusing resources on legitimate claims and defenses.

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