How have courts interpreted the section 12652(d)(4) of the California Financial Conduct Authority (FCA) in the context of frivolousness, vexatiousness and harassment?

frivolous, clearly vexatious, or brought primarily for purposes of harassment."¹ The provision has not been applied in a reported decision in California, but there are federal cases construing a parallel federal statute containing identical language, section 3730(d)(4) of title 31 of the United States Code. Because our state FCA was patterned after the federal statute, cases construing the federal FCA provide "appropriate" precedent. (State of California v. Altus Finance (2005) 36 Cal.4th 1284, 1299.)

Any one of the three conditions contained in the statute frivolousness, vexatiousness, or harassment is alone sufficient to justify an award of attorney fees under Government Code section 12652, and these conditions are measured by an objective standard. (Mikes v. Straus (2d Cir. 2001) 274 F.3d 687, 705.) Emphasizing the language of the statute, however, one federal decision noted that "fees are only to be awarded [under the FCA] where the underlying action was clearly frivolous or clearly vexatious or primarily harassing in nature and even then, an award is not mandatory." (U.S. ex rel. Mikes v. Straus (S.D.N.Y. 2000) 98 F.Supp.2d 517, 526, affd. (2d Cir. 2001) 274 F.3d 687.) A claim is frivolous "when, viewed objectively, it may be said to have no reasonable chance of success, and present no valid argument to modify present law." (274 F.3d at p. 705.) We review the trial court's decision for abuse of discretion. (Id. at p. 704.)