California Civil Code Section 128.5 Interpretation
Was Section 128.5 Enacted to make It Easier to Get Rid of Patently Meritless Lawsuits and to Permit the Imposition of Sanctions for Frivolous or Delaying Conduct ?
In Abandonato v. Coldren (1995) 41 Cal. App. 4th 264, 268 48 Cal. Rptr. 2d 429, a tort case, Division Three of the Fourth District held that the "considerations which powered Trope are not present when a court awards sanctions under . . . section 128.5" to a pro se attorney.
Why? Because sanctions under section 128.5 "are not limited to court costs and attorney fees but include those reasonable expenses 'directly related to and in furtherance of the litigation' . . . which are 'incurred as a result of bad faith actions' " (such as compensation for time spent by the party's employees or as compensation for airfare and reimbursement for lost vacation time).
In addition, says Abandonato, section 128.5 differs from Civil Code section 1717 because judgments for sanctions are not routine and are not necessarily related to the size of the recovery or the amount of time billed by the attorney.
Finally, says Abandonato, section 128.5 was enacted to make it easier to get rid of patently meritless lawsuits and to permit the imposition of sanctions for frivolous or delaying conduct.
To hold "that the attorney in that situation could not be compensated for reasonable expenses would create a separate and artificial category of litigants who would be inadequately protected against another party's bad faith tactics." ( Abandonato v. Coldren, supra, 41 Cal. App. 4th at pp. 268-269.)