In 2015, the Legislature revived CCP 128.5 as an independent source of authority for trial courts to award sanctions for actions or tactics that are frivolous or solely intended to cause unnecessary delay.  Actions or tactics include filing complaints, answers, or other responsive pleadings.  Frivolous means completely without merit or for the sole purpose of harassing an opposing party.  This decision holds that the amended version of CCP 128.5 applies to any action still pending on the statute’s January 1, 2015 effective date, even if the frivolous action occurred and the sanctions motion was filed before then.  It also holds that CCP 128.5(f) does not incorporate CCP 128.7(c)’s 21-day service and safe harbor provisions by reference, so a CCP 128.5 motion may be served as a normal motion without giving the opponent a chance to cure its offensive action or tactic.  In determining whether an action or tactic is frivolous, the court should apply an objective standard, judging the merits of the action or tactic from a reasonable person’s perspective.  That a complaint withstood demurrer does not prove it was not frivolous.  Whether a claim is meritless must be evaluated by examining whether there is evidentiary support for the claim, which is not in issue on demurrer.  The party moving for sanctions bears the initial burden of proving lack of evidentiary support and may do so by factually devoid discovery responses.  If the moving party makes out a prima facie case of lack of evidentiary support, the burden shifts to the opposing party to produce such support.

California Court of Appeal, Fourth District, Division 1 (McDonald, J.); July 7, 2016; 247 Cal. App. 4th 1306