What is the test for a court to award attorney fees under section 128.5 of the California Code of Civil Procedure?

California, United States of America


The following excerpt is from Pacific Trends Lamp & Lighting Products, Inc. v. J. White, Inc., 65 Cal.App.4th 1131, 76 Cal.Rptr.2d 918 (Cal. App. 1998):

"Code of Civil Procedure section 128.5 authorizes the award of attorney fees as a sanction to control improper resort to the judicial process. The statute permits the award of attorney fees, not simply as appropriate compensation to the prevailing party, but as a means of controlling burdensome and unnecessary legal tactics. [Citation.]" (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 995-996, 35 Cal.Rptr.2d 93.) However, 128.5 requires much more than a party acting with "no good reason" to justify an award of sanctions. "[T]he weight of authority presently requires a showing not only of a meritless or frivolous action or tactic, but also of ... bad faith...." (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 702, 3 Cal.Rptr.2d 790.) By its terms, section 128.5 requires advance notice and an opportunity to be heard before sanctions can be imposed. (Code Civ. Proc., 128.5, subd. (c).) Moreover, "to impose sanctions pursuant to Code of Civil Procedure section 128.5, the trial court must (a) state specific circumstances giving rise to the award of attorney fees and (b) articulate with particularity the basis for finding the sanctioned party's conduct reflected tactics or actions performed in bad faith and that were frivolous or designed to harass or cause unnecessary delay." (Childs v. PaineWebber Incorporated, supra, 29 Cal.App.4th at p. 996, 35 Cal.Rptr.2d 93.)

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