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.

 

Comparison Chart

Hold Period

There is no hold period at the beginning of an action for serving a motion for sanctions under C.C.P. §128.7. By contrast, a motion for summary judgment in California cannot be brought until 60 days after the complaint is filed.

Pre-Filing Notice

C.C.P. § 128.7 requires the party seeking sanctions to comply with a two-step process for presentation to the court. The motion must first be served on the party against whom sanctions are sought, but not filed with the court. The party against whom sanctions are sought has 21 days to withdraw the offending pleading. If the pleading is not withdrawn after 21 days, the party seeking sanctions may then proceed to file the motion with the court. There is no pre-filing notice requirement on a motion for summary judgment.

Court Hearing Notice

If pleading is not withdrawn with the 21-day safe harbor period, then the §128.7 motion may be filed and a hearing scheduled with 16 court days notice. In contrast, the motion for summary judgment must be filed at least 75 calendar days before the hearing, a much lengthier period than that required for the §128.7 motion.

Material Facts

On both a §128.7 Motion and a motion for summary judgment, the court must be able to decide the legal merits without weighing the credibility of witnesses. If the plaintiff lacks evidence to prove allegations, of the evidence is not materially relevant to the legal issues, then the court can dismiss the case without a need for trial. If the plaintiff adduces materially relevant evidence in support of its case, which the defense simply disagrees with, then the case goes to trial. Witness credibility is a matter for trial.

Legal Argument

If the material facts are undisputed, then a motion for summary judgment is appropriate. That is all that is needed. In contrast, a §128.7 motion requires one step more than simply undisputed facts. The moving party must show that the complaint is frivolous, meaning “both baseless and made without a reasonable and competent inquiry.”

Outcome

On both a §128.7 motion and a motion for summary judgment, success means a complete dismissal of the action with prejudice.

Attorneys’ Fees

Attorneys who are served with motions for sanctions under C.C.P. §128.7 run the risk of having sanctions imposed against them unless the offending pleading is dismissed or withdrawn. The threat of substantial sanctions is a major incentive for an attorney to dismiss a frivolous pleading. The failure to pay court-ordered sanctions is a violation of Business and Professions Code section 6103 and “constitutes cause for disbarment or suspension.” (In the Matter of Respondent Y(3 Cal. State Bar Ct. Rptr. 862 [suspending attorney for non-payment of court-ordered sanctions and rejecting financial inability to pay as a viable defense].) Moreover, failure to report the sanction to the State Bar is a violation of Business and Professions Code section 6068, subdivision (o). In a past case handled by this office, the attorney we got sanctions against was charged with violations of section 6103 (failure to pay 128.7 sanctions) and 6068 (failure to report 128.7 sanctions) and surrendered his license while disciplinary charges were pending. (Copy of State Bar Disciplinary Charges.)