How to Dismiss a Frivolous Case Early in the Litigation

Under Code of Civil Procedure 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. 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. 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. 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.
Read More

Dismissing a Lawsuit: §128.7 Motion vs. Motion for Summary Judgment

There are distinct advantages to a §128.7 motion: less cost, speedier dismissal and recovery of attorney’s fees. A motion for summary judgment typically costs more over the duration of the case: it involves more paperwork (e.g., preparation of a Separate Statement of Undisputed Material Facts) and usually precedes expensive discovery taken by the plaintiff gathering evidence to prepare an opposition. This is not to say that a §128.7 motion is the better option in all cases. Despite its advantages, a §128.7 motion is much more difficult to win than a motion for summary judgment. In deciding which motion is best, one must assess whether the case is truly “frivolous” or simply lacking in merit. Below is a table depicting the differences between the two motions.
Read More

§128.7 Motion Samples

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. The following are samples of section 128.7 motions and court orders granting same. They run the gamut from frivolous real estate disputes to attempts to enforce illegal contracts for narcotics distribution.
Read More