A motion for sanctions can be filed to request that a trial court “order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Code Civ. Proc., § 128.5(a).

“An order for sanctions pursuant to this section shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the action or tactic described in subdivision (a).” Code Civ. Proc., § 128.5(f)(2).

A trial court may also impose sanctions for violating certification requirements. The presentation of a pleading or similar paper to the court, “whether by signing, filing, submitting, or later advocating,” constitutes a certification by the attorney or unrepresented party that the document is not being presented for an improper purpose; contains legal contentions warranted by law or a nonfrivolous argument for changing the law; alleges factual matter that is supported by evidence or likely to be so after a reasonable opportunity for further investigation; and contains denials of factual contentions that are warranted by the evidence. Code Civ. Proc., § 128.7(b).

“Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” Code Civ. Proc., § 128.7(a).

The court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute. “However the sanctions statute must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way. Our law is constantly evolving, and effective representation sometimes compels attorneys to take the lead in that evolution.” Peake v. Underwood (2014) 227 Cal.App.4th 428, 441.

Sanctions under Section 128.5 require “extremely high proof” and “truly egregious behaviors.” San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1318-1319. The moving party must demonstrate that the conduct was:

1. “objectively unreasonable,” i.e., that any reasonable attorney would agree that the challenged conduct is totally and completely without merit; and
2. a showing of “subjective bad faith.” Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167. Under this section, a motion for sanctions shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

Code Civ. Proc., § 128.5(a)(1)(A).

In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence. Code Civ. Proc., § 128.5(a)(1).

The moving party has the burden to tender evidence showing sanctionable conduct. San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1319-1320. For instance, a party seeking sanctions may rely on factually devoid discovery responses by the party opposing the sanctions motion to raise a reasonable inference the party opposing the sanctions motion lacks facts supporting its claims. If the moving party does so, the burden of producing evidence shifts to the party opposing the sanctions motion to refute the moving party’s prima facie case. The court has discretion to consider further briefing and evidence before ruling on the motion. If the court determines sanctions are appropriate, it must then determine the type and amount of sanctions and whether to impose sanctions on counsel, the client, or both. San Diegans for Open Govt. v. City of San Diego (2016) 247 Cal.App.4th 1306, 1319-1320.

To recover section 128.7 sanctions, the motion must “describe the specific conduct” that demonstrates the attorney or unrepresented party presented to the court a pleading that contains claims

1. presented for an improper purpose,
2. not warranted by law or a nonfrivolous argument for a change in the law, or
3. containing factual allegations without evidentiary support.

Code Civ. Proc., § 128.7(c)(1).

Section 128.7 “imposes a lower threshold for sanctions” than 128.5 and only requires that the conduct be “objectively unreasonable.” That is, whether any reasonable attorney would agree that the claim is totally and completely without merit. Guillemin v. Stein (2002) 104 Cal.App.4th 167.

It is not necessary for the moving party to show that the party presenting the deficient pleading acted with an improper motive or subjective bad faith, but the fact that a party does not actually believe in the merits of his or her claim is relevant to the issue whether sanctions are warranted in a particular case. Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, 449.

Notice of the motion for sanctions shall be served as provided in the Code Civil Procedure, § 1010.

However, it shall not be filed with the court unless, within 21 days after service of the motion, the challenged pleading is not withdrawn or appropriately corrected. Code Civ. Proc., § 128.7(c)(1). The safe harbor notice provisions must be strictly complied with. This serves the statute’s remedial purpose and underscores the seriousness of a motion for sanctions. At the time of such service, the motion must set forth the hearing date. Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.