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Sanctions: codes and judge's benchbook
§ 128 CAL. CCP. CODE
(a)Every court shall have the power to do all of the
following:
(1)To preserve and enforce order in its immediate presence.
(2)To enforce order in the proceedings before it, or before a person or persons empowered to conduct
a judicial investigation under its authority.
(3)To provide for the orderly conduct of proceedings before it, or its officers.
(4)To compel obedience to its judgments, orders, and
process, and to the orders of a judge out of court, in an
action or proceeding pending therein.
(5)To control in furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a judicial proceeding before it, in every
matter pertaining thereto.
(6)To compel the attendance of persons to testify in an action or proceeding pending
therein, in the cases and manner provided in this code.
(7)To administer oaths in an action or proceeding pending therein, and in all other
cases where it may be necessary in the exercise of its powers and duties.
(8)To amend and control its process and orders so as to
make them conform to law and justice...
(b)Notwithstanding Section 1211 or any other law, if an order of contempt is made
affecting an attorney, his or her agent, investigator, or any person acting under the
attorney's direction, in the preparation and conduct of any action or proceeding, the
execution of any sentence shall be stayed pending the filing within three
judicial days of a petition for extraordinary relief testing the lawfulness of the
court's order, the violation of which is the basis of the contempt except for the conduct
as may be proscribed by subdivision (b) of Section 6068 of the Business and
Professions Code, relating to an attorney's duty to maintain respect due to the courts
and judicial officers.
(c)Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting a public
safety employee acting within the scope of employment for reason of the employee's failure to comply
with a duly issued subpoena or subpoena duces tecum, the execution of any sentence shall be
stayed pending...
(a)Every court shall have the power to do all of the
following:
(1)To preserve and enforce order in its immediate presence.
(2)To enforce order in the proceedings before it, or before a person or persons empowered to conduct
a judicial investigation under its authority.
(3)To provide for the orderly conduct of proceedings before it, or its officers.
(4)To compel obedience to its judgments, orders, and
process, and to the orders of a judge out of court, in an
action or proceeding pending therein.
(5)To control in furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a judicial proceeding before it, in every
matter pertaining thereto.
(6)To compel the attendance of persons to testify in an action or proceeding pending
therein, in the cases and manner provided in this code.
(7)To administer oaths in an action or proceeding pending therein, and in all other
cases where it may be necessary in the exercise of its powers and duties.
(8)To amend and control its process and orders so as to
make them conform to law and justice...
(b)Notwithstanding Section 1211 or any other law, if an order of contempt is made
affecting an attorney, his or her agent, investigator, or any person acting under the
attorney's direction, in the preparation and conduct of any action or proceeding, the
execution of any sentence shall be stayed pending the filing within three
judicial days of a petition for extraordinary relief testing the lawfulness of the
court's order, the violation of which is the basis of the contempt except for the conduct
as may be proscribed by subdivision (b) of Section 6068 of the Business and
Professions Code, relating to an attorney's duty to maintain respect due to the courts
and judicial officers.
(c)Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting a public
safety employee acting within the scope of employment for reason of the employee's failure to comply
with a duly issued subpoena or subpoena duces tecum, the execution of any sentence shall be
stayed pending...
128.5. (a) Every trial court may order a party, the party's
attorney, or both to pay any reasonable expenses, including attorney's
fees, incurred by another party as a result of bad-faith actions or tactics
that are frivolous or solely intended to cause
unnecessary delay. This section also applies to judicial arbitration
proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) "Actions or tactics" include, but are not limited to, the
making or opposing of motions or the filing and service of a
complaint or cross-complaint only if the actions or tactics arise
from a complaint filed, or a proceeding initiated, on or before
December 31, 1994. The mere filing of a complaint without service
thereof on an opposing party does not constitute "actions or tactics"
for purposes of this section.
(2) "Frivolous" means
(A) totally and completely without merit or
(B) for the sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section shall not be imposed except
on notice contained in a party's moving or responding papers; or the
court's own motion, after notice and opportunity to be heard. An
order imposing expenses shall be in writing and shall recite in
detail the conduct or circumstances justifying the order.
(d) In addition to any award pursuant to this section for conduct
described in subdivision (a), the court may assess punitive damages
against the plaintiff upon a determination by the court that the
plaintiff's action was an action maintained by a person convicted of
a felony against the person's victim, or the victim's heirs,
relatives, estate, or personal representative, for injuries arising
from the acts for which the person was convicted of a felony, and
that the plaintiff is guilty of fraud, oppression, or malice in
maintaining the action.
(e) The liability imposed by this section is in addition to any
other liability imposed by law for acts or omissions within the
purview of this section.
128.7. (a) 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.
(b) By presenting to the court, whether by signing, filing,
submitting, or later advocating, a pleading, petition, written notice
of motion, or other similar paper, an attorney or unrepresented
party is certifying that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose,
such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law.
(3) The allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery.
(4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on a
lack of information or belief.
(c) If, after notice and a reasonable opportunity to respond, the
court determines that subdivision (b) has been violated, the court
may, subject to the conditions stated below, impose an appropriate
sanction upon the attorneys, law firms, or parties that have violated
subdivision (b) or are responsible for the violation. In determining
what sanctions, if any, should be ordered, the court shall consider
whether a party seeking sanctions has exercised due diligence.
(1) A motion for sanctions under this section shall be made
separately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). Notice of motion
shall be served as provided in Section 1010, but shall not be filed
with or presented to the court unless, within 21 days after service
of the motion, or any other period as the court may prescribe, the
challenged paper, claim, defense, contention, allegation, or denial
is not withdrawn or appropriately corrected. If warranted, the court
may award to the party prevailing on the motion the reasonable
expenses and attorney's fees incurred in presenting or opposing the
motion. Absent exceptional circumstances, a law firm shall be held
jointly responsible for violations committed by its partners,
associates, and employees.
(2) On its own motion, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and
directing an attorney, law firm, or party to show cause why it has
not violated subdivision (b), unless, within 21 days of service of
the order to show cause, the challenged paper, claim, defense,
contention, allegation, or denial is withdrawn or appropriately
corrected.
(d) A sanction imposed for violation of subdivision (b) shall be
limited to what is sufficient to deter repetition of this conduct or
comparable conduct by others similarly situated. Subject to the
limitations in paragraphs (1) and (2), 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 violation.
(1) Monetary sanctions may not be awarded against a represented
party for a violation of paragraph (2) of subdivision (b).
(2) Monetary sanctions may not be awarded on the court's motion
unless the court issues its order to show cause before a voluntary
dismissal or settlement of the claims made by or against the party
that is, or whose attorneys are, to be sanctioned.
(e) When imposing sanctions, the court shall describe the conduct
determined to constitute a violation of this section and explain the
basis for the sanction imposed.
(f) In addition to any award pursuant to this section for conduct
described in subdivision (b), the court may assess punitive damages
against the plaintiff upon a determination by the court that the
plaintiff's action was an action maintained by a person convicted of
a felony against the person's victim, or the victim's heirs,
relatives, estate, or personal representative, for injuries arising
from the acts for which the person was convicted of a felony, and
that the plaintiff is guilty of fraud, oppression, or malice in
maintaining the action.
(g) This section shall not apply to disclosures and discovery
requests, responses, objections, and motions.
(h) A motion for sanctions brought by a party or a party's
attorney primarily for an improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation, shall itself be subject to a motion for sanctions. It is
the intent of the Legislature that courts shall vigorously use its
sanctions authority to deter that improper conduct or comparable
conduct by others similarly situated.
(i) This section shall apply to a complaint or petition filed on
or after January 1, 1995, and any other pleading, written notice of
motion, or other similar paper filed in that matter.
attorney, or both to pay any reasonable expenses, including attorney's
fees, incurred by another party as a result of bad-faith actions or tactics
that are frivolous or solely intended to cause
unnecessary delay. This section also applies to judicial arbitration
proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) "Actions or tactics" include, but are not limited to, the
making or opposing of motions or the filing and service of a
complaint or cross-complaint only if the actions or tactics arise
from a complaint filed, or a proceeding initiated, on or before
December 31, 1994. The mere filing of a complaint without service
thereof on an opposing party does not constitute "actions or tactics"
for purposes of this section.
(2) "Frivolous" means
(A) totally and completely without merit or
(B) for the sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section shall not be imposed except
on notice contained in a party's moving or responding papers; or the
court's own motion, after notice and opportunity to be heard. An
order imposing expenses shall be in writing and shall recite in
detail the conduct or circumstances justifying the order.
(d) In addition to any award pursuant to this section for conduct
described in subdivision (a), the court may assess punitive damages
against the plaintiff upon a determination by the court that the
plaintiff's action was an action maintained by a person convicted of
a felony against the person's victim, or the victim's heirs,
relatives, estate, or personal representative, for injuries arising
from the acts for which the person was convicted of a felony, and
that the plaintiff is guilty of fraud, oppression, or malice in
maintaining the action.
(e) The liability imposed by this section is in addition to any
other liability imposed by law for acts or omissions within the
purview of this section.
128.7. (a) 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.
(b) By presenting to the court, whether by signing, filing,
submitting, or later advocating, a pleading, petition, written notice
of motion, or other similar paper, an attorney or unrepresented
party is certifying that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose,
such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law.
(3) The allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery.
(4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on a
lack of information or belief.
(c) If, after notice and a reasonable opportunity to respond, the
court determines that subdivision (b) has been violated, the court
may, subject to the conditions stated below, impose an appropriate
sanction upon the attorneys, law firms, or parties that have violated
subdivision (b) or are responsible for the violation. In determining
what sanctions, if any, should be ordered, the court shall consider
whether a party seeking sanctions has exercised due diligence.
(1) A motion for sanctions under this section shall be made
separately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). Notice of motion
shall be served as provided in Section 1010, but shall not be filed
with or presented to the court unless, within 21 days after service
of the motion, or any other period as the court may prescribe, the
challenged paper, claim, defense, contention, allegation, or denial
is not withdrawn or appropriately corrected. If warranted, the court
may award to the party prevailing on the motion the reasonable
expenses and attorney's fees incurred in presenting or opposing the
motion. Absent exceptional circumstances, a law firm shall be held
jointly responsible for violations committed by its partners,
associates, and employees.
(2) On its own motion, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and
directing an attorney, law firm, or party to show cause why it has
not violated subdivision (b), unless, within 21 days of service of
the order to show cause, the challenged paper, claim, defense,
contention, allegation, or denial is withdrawn or appropriately
corrected.
(d) A sanction imposed for violation of subdivision (b) shall be
limited to what is sufficient to deter repetition of this conduct or
comparable conduct by others similarly situated. Subject to the
limitations in paragraphs (1) and (2), 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 violation.
(1) Monetary sanctions may not be awarded against a represented
party for a violation of paragraph (2) of subdivision (b).
(2) Monetary sanctions may not be awarded on the court's motion
unless the court issues its order to show cause before a voluntary
dismissal or settlement of the claims made by or against the party
that is, or whose attorneys are, to be sanctioned.
(e) When imposing sanctions, the court shall describe the conduct
determined to constitute a violation of this section and explain the
basis for the sanction imposed.
(f) In addition to any award pursuant to this section for conduct
described in subdivision (b), the court may assess punitive damages
against the plaintiff upon a determination by the court that the
plaintiff's action was an action maintained by a person convicted of
a felony against the person's victim, or the victim's heirs,
relatives, estate, or personal representative, for injuries arising
from the acts for which the person was convicted of a felony, and
that the plaintiff is guilty of fraud, oppression, or malice in
maintaining the action.
(g) This section shall not apply to disclosures and discovery
requests, responses, objections, and motions.
(h) A motion for sanctions brought by a party or a party's
attorney primarily for an improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation, shall itself be subject to a motion for sanctions. It is
the intent of the Legislature that courts shall vigorously use its
sanctions authority to deter that improper conduct or comparable
conduct by others similarly situated.
(i) This section shall apply to a complaint or petition filed on
or after January 1, 1995, and any other pleading, written notice of
motion, or other similar paper filed in that matter.
177.5. A judicial officer shall have the power to impose
reasonable money sanctions, not to exceed fifteen hundred dollars
($1,500), notwithstanding any other provision of law, payable to
the court, for
any violation of a lawful court order by a person, done without good
cause or substantial justification. This power shall not apply to
advocacy of counsel before the court. For the purposes of this
section, the term "person" includes a witness, a party, a party's
attorney, or both.
Sanctions pursuant to this section shall not be imposed except on
notice contained in a party's moving or responding papers; or on
the
court's own motion, after notice and opportunity to be heard. An
order imposing sanctions shall be in writing and shall recite in
detail the conduct or circumstances justifying the order.
reasonable money sanctions, not to exceed fifteen hundred dollars
($1,500), notwithstanding any other provision of law, payable to
the court, for
any violation of a lawful court order by a person, done without good
cause or substantial justification. This power shall not apply to
advocacy of counsel before the court. For the purposes of this
section, the term "person" includes a witness, a party, a party's
attorney, or both.
Sanctions pursuant to this section shall not be imposed except on
notice contained in a party's moving or responding papers; or on
the
court's own motion, after notice and opportunity to be heard. An
order imposing sanctions shall be in writing and shall recite in
detail the conduct or circumstances justifying the order.
§ 187 CAL. CCP. CODE
When jurisdiction is, by the Constitution or this Code,
or by any other statute, conferred on a Court or judicial
officer, all the
means necessary to carry it into effect are also
given; and in the
exercise of this jurisdiction, if the course of
proceeding be not
specifically pointed out by this Code or the
statute, any suitable
process or mode of proceeding may be adopted
which may appear most conformable to the spirit
of this Code.
When jurisdiction is, by the Constitution or this Code,
or by any other statute, conferred on a Court or judicial
officer, all the
means necessary to carry it into effect are also
given; and in the
exercise of this jurisdiction, if the course of
proceeding be not
specifically pointed out by this Code or the
statute, any suitable
process or mode of proceeding may be adopted
which may appear most conformable to the spirit
of this Code.
177.5 is specifically pointed out!
§1209 CAL. CCP. CODE
(a) The following acts or omissions in respect to a court of
justice, or proceedings therein, are contempts of the authority of
the court:
(1) Disorderly, contemptuous, or insolent behavior toward the
judge while holding the court, tending to interrupt the due course of
a trial or other judicial proceeding.
(2) A breach of the peace, boisterous conduct, or violent
disturbance, tending to interrupt the due course of a trial or other
judicial proceeding.
(3) Misbehavior in office, or other willful neglect or violation
of duty by an attorney, counsel, clerk, sheriff, coroner, or other
person, appointed or elected to perform a judicial or ministerial
service.
(4) Abuse of the process or proceedings of the court, or falsely
pretending to act under authority of an order or process of the
court.
(5) Disobedience of any lawful judgment, order, or
process of the court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(7) Rescuing any person or property in the custody of an officer
by virtue of an order or process of that court.
(8) Unlawfully detaining a witness or party to an action while
going to, remaining at, or returning from the court where the action
is on the calendar for trial.
(9) Any other unlawful interference with the process or
proceedings of a court.
(10) Disobedience of a subpoena duly served, or refusing to be
sworn or answer as a witness.
(11) When summoned as a juror in a court, neglecting to attend or
serve as a juror, or improperly conversing with a party to an action
to be tried at the court, or with any other person, in relation to
the merits of the action, or receiving a communication from a party
or other person in respect to the action, without immediately
disclosing the communication to the court.
(12) Disobedience by an inferior tribunal or judicial officer of
the lawful judgment, order, or process of a superior court, or
proceeding in an action or special proceeding contrary to law, after
the action or special proceeding is removed from the jurisdiction of
the inferior tribunal or judicial officer.
(b) A speech or publication reflecting upon or concerning a court or
an officer thereof shall not be treated or punished as a contempt of
the court unless made in the immediate presence of the court
while in session and in such a manner as to actually interfere with
its proceedings.
(c) Notwithstanding Section 1211 or any other law, if an order of
contempt is made affecting an attorney, his or her agent,
investigator, or any person acting under the attorney's direction, in
the preparation and conduct of an action or proceeding, the
execution of any sentence shall be stayed pending the filing within
three judicial days of a petition for extraordinary relief testing
the lawfulness of the court's order, the violation of which is the
basis of the contempt, except for conduct proscribed by subdivision
(b) of Section 6068 of the Business and Professions Code, relating to
an attorney's duty to maintain respect due to the courts and
judicial officers.
(d) Notwithstanding Section 1211 or any other law, if an order of
contempt is made affecting a public safety employee acting within the
scope of employment...
1209.5. When a court of competent jurisdiction makes an order
compelling a parent to furnish support or necessary food, clothing,
shelter, medical attendance, or other remedial care for his or her
child, proof that the order was made, filed, and served on the parent
or proof that the parent was present in court at the time the order
was pronounced and proof that the parent did not comply with the
order is prima facie evidence of a contempt of court.
(a) The following acts or omissions in respect to a court of
justice, or proceedings therein, are contempts of the authority of
the court:
(1) Disorderly, contemptuous, or insolent behavior toward the
judge while holding the court, tending to interrupt the due course of
a trial or other judicial proceeding.
(2) A breach of the peace, boisterous conduct, or violent
disturbance, tending to interrupt the due course of a trial or other
judicial proceeding.
(3) Misbehavior in office, or other willful neglect or violation
of duty by an attorney, counsel, clerk, sheriff, coroner, or other
person, appointed or elected to perform a judicial or ministerial
service.
(4) Abuse of the process or proceedings of the court, or falsely
pretending to act under authority of an order or process of the
court.
(5) Disobedience of any lawful judgment, order, or
process of the court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(7) Rescuing any person or property in the custody of an officer
by virtue of an order or process of that court.
(8) Unlawfully detaining a witness or party to an action while
going to, remaining at, or returning from the court where the action
is on the calendar for trial.
(9) Any other unlawful interference with the process or
proceedings of a court.
(10) Disobedience of a subpoena duly served, or refusing to be
sworn or answer as a witness.
(11) When summoned as a juror in a court, neglecting to attend or
serve as a juror, or improperly conversing with a party to an action
to be tried at the court, or with any other person, in relation to
the merits of the action, or receiving a communication from a party
or other person in respect to the action, without immediately
disclosing the communication to the court.
(12) Disobedience by an inferior tribunal or judicial officer of
the lawful judgment, order, or process of a superior court, or
proceeding in an action or special proceeding contrary to law, after
the action or special proceeding is removed from the jurisdiction of
the inferior tribunal or judicial officer.
(b) A speech or publication reflecting upon or concerning a court or
an officer thereof shall not be treated or punished as a contempt of
the court unless made in the immediate presence of the court
while in session and in such a manner as to actually interfere with
its proceedings.
(c) Notwithstanding Section 1211 or any other law, if an order of
contempt is made affecting an attorney, his or her agent,
investigator, or any person acting under the attorney's direction, in
the preparation and conduct of an action or proceeding, the
execution of any sentence shall be stayed pending the filing within
three judicial days of a petition for extraordinary relief testing
the lawfulness of the court's order, the violation of which is the
basis of the contempt, except for conduct proscribed by subdivision
(b) of Section 6068 of the Business and Professions Code, relating to
an attorney's duty to maintain respect due to the courts and
judicial officers.
(d) Notwithstanding Section 1211 or any other law, if an order of
contempt is made affecting a public safety employee acting within the
scope of employment...
1209.5. When a court of competent jurisdiction makes an order
compelling a parent to furnish support or necessary food, clothing,
shelter, medical attendance, or other remedial care for his or her
child, proof that the order was made, filed, and served on the parent
or proof that the parent was present in court at the time the order
was pronounced and proof that the parent did not comply with the
order is prima facie evidence of a contempt of court.
COURTROOM CONTROL:
CONTEMPT AND SANCTIONS
[REVISED 2010](2)
Determine whether the indirect contempt procedure is
appropriate. The judge should determine whether the act was committed
outside the court’s or judge’s presence, such as disobedience of a lawful
court order. See CCP §§1209(a)(5), 1211(a)... For classifying contempt, see §3.6; for
discussion, see §3.94.
(3) Determine whether the proceeding has been properly initiated.
An attorney, a party, a judicial officer, or other person initiates an indirect
contempt proceeding by filing an affidavit, declaration, or statement of
facts of the contempt. CCP §1211(a); Moss v Superior Court (1998) 17
C4th 396, 401 n1, 71 CR2d 215. See discussion in §§3.43–3.45. Filing of
the Judicial Council form Order to Show Cause and Affidavit for
Contempt (FL-410) constitutes compliance with the requirement of CCP
§1211(a). CCP §1211(b). For a sample form of a statement of facts by a
commissioner or referee, see §3.94
(4) Issue an order to show cause. The court issues an order to show
cause on receiving the affidavit, declaration, or statement of facts (see
§3.46). For a sample form of order to show cause, see §3.93.
(5) Confirm that the order to show cause has been served. The order
to show cause must be served on the alleged contemner in the same
manner as a summons. See CCP §1016; for discussion, see §3.47.
(6) Determine if a warrant of attachment or bench warrant is needed:
• Issue the warrant if the alleged contemner or his or her attorney
fails to appear in response to the order to show cause. See CCP
§1212; In re Morelli (1970) 11 CA3d 819, 835, 91 CR 72. For
discussion, see §3.46.
• Endorse on the warrant a direction that the person charged may
be released by posting a specified bail. See CCP §1213.
(7) Hold a full and fair hearing. The hearing must satisfy due process
requirements as follows (see CCP §1217; 11 CA3d at 835):
• Advise the accused of his or her rights, which are the same as
those of a defendant in a criminal case, except there is no right to
jury trial unless the punishment is imprisonment for more than six
months. See §3.25.
• Allow the accused to appear in person or by counsel only.
CONTEMPT AND SANCTIONS
[REVISED 2010](2)
Determine whether the indirect contempt procedure is
appropriate. The judge should determine whether the act was committed
outside the court’s or judge’s presence, such as disobedience of a lawful
court order. See CCP §§1209(a)(5), 1211(a)... For classifying contempt, see §3.6; for
discussion, see §3.94.
(3) Determine whether the proceeding has been properly initiated.
An attorney, a party, a judicial officer, or other person initiates an indirect
contempt proceeding by filing an affidavit, declaration, or statement of
facts of the contempt. CCP §1211(a); Moss v Superior Court (1998) 17
C4th 396, 401 n1, 71 CR2d 215. See discussion in §§3.43–3.45. Filing of
the Judicial Council form Order to Show Cause and Affidavit for
Contempt (FL-410) constitutes compliance with the requirement of CCP
§1211(a). CCP §1211(b). For a sample form of a statement of facts by a
commissioner or referee, see §3.94
(4) Issue an order to show cause. The court issues an order to show
cause on receiving the affidavit, declaration, or statement of facts (see
§3.46). For a sample form of order to show cause, see §3.93.
(5) Confirm that the order to show cause has been served. The order
to show cause must be served on the alleged contemner in the same
manner as a summons. See CCP §1016; for discussion, see §3.47.
(6) Determine if a warrant of attachment or bench warrant is needed:
• Issue the warrant if the alleged contemner or his or her attorney
fails to appear in response to the order to show cause. See CCP
§1212; In re Morelli (1970) 11 CA3d 819, 835, 91 CR 72. For
discussion, see §3.46.
• Endorse on the warrant a direction that the person charged may
be released by posting a specified bail. See CCP §1213.
(7) Hold a full and fair hearing. The hearing must satisfy due process
requirements as follows (see CCP §1217; 11 CA3d at 835):
• Advise the accused of his or her rights, which are the same as
those of a defendant in a criminal case, except there is no right to
jury trial unless the punishment is imprisonment for more than six
months. See §3.25.
• Allow the accused to appear in person or by counsel only.
| CAL. CCP. CODE § 128 : California Code Section 128 |
Bond, undertaking
CODE OF CIVIL PROCEDURE
SECTION 995.010-995.190
995.010. This chapter shall be known and may be
cited as the Bond And Undertaking Law.
995.020. (a) The provisions of this chapter apply to a bond or
undertaking executed, filed, posted, furnished, or otherwise given as
security pursuant to any statute of this state, except to the extent
the statute prescribes a different rule or is inconsistent.
(b) The provisions of this chapter apply to a bond or undertaking
given at any of the following times:
(1) On or after January 1, 1983.
(2) Before January 1, 1983, to the extent another surety is
substituted for the original surety on or after January 1, 1983, or
to the extent the principal gives a new, additional, or supplemental
bond or undertaking on or after January 1, 1983.
Except to the extent provided in this section, the law governing a
bond or undertaking given before January 1, 1983, is the law
applicable to the bond or undertaking immediately before January 1,
1983, pursuant to Section 414 of Chapter 517 of the Statutes of 1982.
(c) The provisions of this chapter do not apply to a bail bond or
an undertaking of bail.
995.030. If service of a notice, paper, or other document is
required under this chapter, service shall be made in the same manner
as service of process in civil actions generally.
995.040. An affidavit made under this chapter shall conform to the
standards prescribed for an affidavit made pursuant to Section 437c.
995.050. The times provided in this chapter, or in any other
statute relating to a bond given in an action or proceeding, may be
extended pursuant to Sections 1054 and 1054.1.
995.110. Unless the provision or context otherwise requires, the
definitions in this article govern the construction of this chapter.
995.120. (a) "Admitted surety insurer" means a corporate insurer or
a reciprocal or interinsurance exchange to which the Insurance
Commissioner has issued a certificate of authority to transact surety
insurance in this state, as defined in Section 105 of the Insurance
Code.
(b) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the phrases "admitted surety
insurer," "authorized surety company," "bonding company," "corporate
surety," and comparable phrases used in the statute mean "admitted
surety insurer" as defined in this section.
995.130. (a) "Beneficiary" means the person for whose benefit a
bond is given, whether executed to, in favor of, in the name of, or
payable to the person as an obligee.
(b) If a bond is given for the benefit of the State of California
or the people of the state, "beneficiary" means the court, officer,
or other person required to determine the sufficiency of the sureties
or to approve the bond.
(c) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the terms "beneficiary,"
"obligee," and comparable terms used in the statute mean "beneficiary"
as defined in this section.
995.140. (a) "Bond" includes both of the following:
(1) A surety, indemnity, fiduciary, or like bond executed by both
the principal and sureties.
(2) A surety, indemnity, fiduciary, or like undertaking executed
by the sureties alone.
(b) A bond provided for or given "in an action or proceeding" does
not include a bond provided for, or given as, a condition of a
license or permit.
995.150. "Court" means, if a bond is given in an action or
proceeding, the court in which the action or proceeding is pending.
995.160. "Officer" means the sheriff, marshal, clerk of court,
judge or magistrate (if there is no clerk), board, commission,
department, or other public official or entity to whom the bond is
given or with whom a copy of the bond is filed or who is required to
determine the sufficiency of the sureties or to approve the bond.
995.170. (a) "Principal" means the person who gives a bond.
(b) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the terms "obligor,"
"principal," and comparable terms used in the statute mean "principal"
as defined in this section.
995.180. "Statute" includes administrative regulation promulgated
pursuant to statute.
995.185. (a) "Surety" has the meaning provided in Section 2787 of
the Civil Code and includes personal surety and admitted surety
insurer.
(b) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the terms "bail," "guarantor,"
"bondsman," "surety," and comparable terms used in the statute mean
"surety" as defined in this section.
995.190. "Undertaking" means a surety, indemnity, fiduciary, or
like undertaking executed by the sureties alone.
CCP 916. (a) Except as provided in Sections 917.1 to 917.9, inclusive,
and in Section 116.810, the perfecting of an appeal stays proceedings
in the trial court upon the judgment or order appealed from or upon
the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may proceed
upon any other matter embraced in the action and not affected by the
judgment or order.
(b) When there is a stay of proceedings other than the enforcement
of the judgment, the trial court shall have jurisdiction of
proceedings related to the enforcement of the judgment as well as any
other matter embraced in the action and not affected by the judgment
or order appealed from.
917.1. (a) Unless an undertaking is given, the perfecting of an
appeal shall not stay enforcement of the judgment or order in the
trial court if the judgment or order is for any of the following:
(1) Money or the payment of money, whether consisting of a special
fund or not, and whether payable by the appellant or another party
to the action.
(2) Costs awarded pursuant to Section 998 which otherwise would
not have been awarded as costs pursuant to Section 1033.5.
(3) Costs awarded pursuant to Section 1141.21 which otherwise
would not have been awarded as costs pursuant to Section 1033.5.
(b) The undertaking shall be on condition that if the judgment or
order or any part of it is affirmed or the appeal is withdrawn or
dismissed, the party ordered to pay shall pay the amount of the
judgment or order, or the part of it as to which the judgment or
order is affirmed, as entered after the receipt of the remittitur,
together with any interest which may have accrued pending the appeal
and entry of the remittitur, and costs which may be awarded against
the appellant on appeal. This section shall not apply in cases where
the money to be paid is in the actual or constructive custody of the
court; and such cases shall be governed, instead, by the provisions
of Section 917.2. The undertaking shall be for double the amount of
the judgment or order unless given by an admitted surety insurer in
which event it shall be for one and one-half times the amount of the
judgment or order. The liability on the undertaking may be enforced
if the party ordered to pay does not make the payment within 30 days
after the filing of the remittitur from the reviewing court.
(c) If a surety on the undertaking pays the judgment, either with
or without action, after the judgment is affirmed, the surety is
substituted to the rights of the creditor and is entitled to control,
enforce, and satisfy the judgment, in all respects as if the surety
had recovered the judgment.
(d) Costs awarded by the trial court under Chapter 6 (commencing
with Section 1021) of Title 14 shall be included in the amount of the
judgment or order for the purpose of applying paragraph (1) of
subdivision (a) and subdivision (b). However, no undertaking shall be
required pursuant to this section solely for costs awarded under
Chapter 6 (commencing with Section 1021) of Title 14....
918. (a) Subject to subdivision (b), the trial court may stay the
enforcement of any judgment or order.
(b) If the enforcement of the judgment or order would be stayed on
appeal only by the giving of an undertaking, a trial court shall not
have power, without the consent of the adverse party, to stay the
enforcement thereof pursuant to this section for a period which
extends for more than 10 days beyond the last date on which a notice
of appeal could be filed.
(c) This section applies whether or not an appeal will be taken
from the judgment or order and whether or not a notice of appeal has
been filed.
CODE OF CIVIL PROCEDURE
SECTION 995.010-995.190
995.010. This chapter shall be known and may be
cited as the Bond And Undertaking Law.
995.020. (a) The provisions of this chapter apply to a bond or
undertaking executed, filed, posted, furnished, or otherwise given as
security pursuant to any statute of this state, except to the extent
the statute prescribes a different rule or is inconsistent.
(b) The provisions of this chapter apply to a bond or undertaking
given at any of the following times:
(1) On or after January 1, 1983.
(2) Before January 1, 1983, to the extent another surety is
substituted for the original surety on or after January 1, 1983, or
to the extent the principal gives a new, additional, or supplemental
bond or undertaking on or after January 1, 1983.
Except to the extent provided in this section, the law governing a
bond or undertaking given before January 1, 1983, is the law
applicable to the bond or undertaking immediately before January 1,
1983, pursuant to Section 414 of Chapter 517 of the Statutes of 1982.
(c) The provisions of this chapter do not apply to a bail bond or
an undertaking of bail.
995.030. If service of a notice, paper, or other document is
required under this chapter, service shall be made in the same manner
as service of process in civil actions generally.
995.040. An affidavit made under this chapter shall conform to the
standards prescribed for an affidavit made pursuant to Section 437c.
995.050. The times provided in this chapter, or in any other
statute relating to a bond given in an action or proceeding, may be
extended pursuant to Sections 1054 and 1054.1.
995.110. Unless the provision or context otherwise requires, the
definitions in this article govern the construction of this chapter.
995.120. (a) "Admitted surety insurer" means a corporate insurer or
a reciprocal or interinsurance exchange to which the Insurance
Commissioner has issued a certificate of authority to transact surety
insurance in this state, as defined in Section 105 of the Insurance
Code.
(b) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the phrases "admitted surety
insurer," "authorized surety company," "bonding company," "corporate
surety," and comparable phrases used in the statute mean "admitted
surety insurer" as defined in this section.
995.130. (a) "Beneficiary" means the person for whose benefit a
bond is given, whether executed to, in favor of, in the name of, or
payable to the person as an obligee.
(b) If a bond is given for the benefit of the State of California
or the people of the state, "beneficiary" means the court, officer,
or other person required to determine the sufficiency of the sureties
or to approve the bond.
(c) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the terms "beneficiary,"
"obligee," and comparable terms used in the statute mean "beneficiary"
as defined in this section.
995.140. (a) "Bond" includes both of the following:
(1) A surety, indemnity, fiduciary, or like bond executed by both
the principal and sureties.
(2) A surety, indemnity, fiduciary, or like undertaking executed
by the sureties alone.
(b) A bond provided for or given "in an action or proceeding" does
not include a bond provided for, or given as, a condition of a
license or permit.
995.150. "Court" means, if a bond is given in an action or
proceeding, the court in which the action or proceeding is pending.
995.160. "Officer" means the sheriff, marshal, clerk of court,
judge or magistrate (if there is no clerk), board, commission,
department, or other public official or entity to whom the bond is
given or with whom a copy of the bond is filed or who is required to
determine the sufficiency of the sureties or to approve the bond.
995.170. (a) "Principal" means the person who gives a bond.
(b) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the terms "obligor,"
"principal," and comparable terms used in the statute mean "principal"
as defined in this section.
995.180. "Statute" includes administrative regulation promulgated
pursuant to statute.
995.185. (a) "Surety" has the meaning provided in Section 2787 of
the Civil Code and includes personal surety and admitted surety
insurer.
(b) For the purpose of application of this chapter to a bond given
pursuant to any statute of this state, the terms "bail," "guarantor,"
"bondsman," "surety," and comparable terms used in the statute mean
"surety" as defined in this section.
995.190. "Undertaking" means a surety, indemnity, fiduciary, or
like undertaking executed by the sureties alone.
CCP 916. (a) Except as provided in Sections 917.1 to 917.9, inclusive,
and in Section 116.810, the perfecting of an appeal stays proceedings
in the trial court upon the judgment or order appealed from or upon
the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may proceed
upon any other matter embraced in the action and not affected by the
judgment or order.
(b) When there is a stay of proceedings other than the enforcement
of the judgment, the trial court shall have jurisdiction of
proceedings related to the enforcement of the judgment as well as any
other matter embraced in the action and not affected by the judgment
or order appealed from.
917.1. (a) Unless an undertaking is given, the perfecting of an
appeal shall not stay enforcement of the judgment or order in the
trial court if the judgment or order is for any of the following:
(1) Money or the payment of money, whether consisting of a special
fund or not, and whether payable by the appellant or another party
to the action.
(2) Costs awarded pursuant to Section 998 which otherwise would
not have been awarded as costs pursuant to Section 1033.5.
(3) Costs awarded pursuant to Section 1141.21 which otherwise
would not have been awarded as costs pursuant to Section 1033.5.
(b) The undertaking shall be on condition that if the judgment or
order or any part of it is affirmed or the appeal is withdrawn or
dismissed, the party ordered to pay shall pay the amount of the
judgment or order, or the part of it as to which the judgment or
order is affirmed, as entered after the receipt of the remittitur,
together with any interest which may have accrued pending the appeal
and entry of the remittitur, and costs which may be awarded against
the appellant on appeal. This section shall not apply in cases where
the money to be paid is in the actual or constructive custody of the
court; and such cases shall be governed, instead, by the provisions
of Section 917.2. The undertaking shall be for double the amount of
the judgment or order unless given by an admitted surety insurer in
which event it shall be for one and one-half times the amount of the
judgment or order. The liability on the undertaking may be enforced
if the party ordered to pay does not make the payment within 30 days
after the filing of the remittitur from the reviewing court.
(c) If a surety on the undertaking pays the judgment, either with
or without action, after the judgment is affirmed, the surety is
substituted to the rights of the creditor and is entitled to control,
enforce, and satisfy the judgment, in all respects as if the surety
had recovered the judgment.
(d) Costs awarded by the trial court under Chapter 6 (commencing
with Section 1021) of Title 14 shall be included in the amount of the
judgment or order for the purpose of applying paragraph (1) of
subdivision (a) and subdivision (b). However, no undertaking shall be
required pursuant to this section solely for costs awarded under
Chapter 6 (commencing with Section 1021) of Title 14....
918. (a) Subject to subdivision (b), the trial court may stay the
enforcement of any judgment or order.
(b) If the enforcement of the judgment or order would be stayed on
appeal only by the giving of an undertaking, a trial court shall not
have power, without the consent of the adverse party, to stay the
enforcement thereof pursuant to this section for a period which
extends for more than 10 days beyond the last date on which a notice
of appeal could be filed.
(c) This section applies whether or not an appeal will be taken
from the judgment or order and whether or not a notice of appeal has
been filed.
Therefore, the starting place to determine whether an
appeal bond is required and, if so, how to obtain one, should always be
the provisions of the governing statutory scheme, which is found in Section 917.1
through 917.9, as well as Sections 995.010 through 996.510, of the Code of Civil
Procedure.
appeal bond is required and, if so, how to obtain one, should always be
the provisions of the governing statutory scheme, which is found in Section 917.1
through 917.9, as well as Sections 995.010 through 996.510, of the Code of Civil
Procedure.
995.311. (a) Notwithstanding any other provision of law, any bond
required on a public works contract, as defined in Section 1101 of
the Public Contract Code, shall be executed by an admitted surety
insurer. A public agency approving the bond on a public works
contract shall have a duty to verify that the bond is being executed
by an admitted surety insurer.
(b) A public agency may fulfill its duty under subdivision (a) by
verifying the status of the party executing the bond in one of the
following ways:
(1) Printing out information from the website of the Department of
Insurance confirming the surety is an admitted surety insurer and
attaching it to the bond.
(2) Obtaining a certificate from the county clerk that confirms
the surety is an admitted insurer and attaching it to the bond.
995.320. (a) A bond shall be in writing signed by the sureties
under oath and shall include all of the following:
(1) A statement that the sureties are jointly and severally liable
on the obligations of the statute providing for the bond.
(2) The address at which the principal and sureties may be served
with notices, papers, and other documents under this chapter.
(3) If the amount of the bond is based upon the value of property
or an interest in property, a description of the property or
interest, and the principal's estimate of the value of the property
or interest, or if given pursuant to the estimate of the beneficiary
or court, the value as so estimated.
(b) The sureties signing the bond are jointly and severally liable
on the obligations of the bond, the provisions of this chapter, and
the statute providing for the bond.
995.330. A bond or undertaking given in an action or proceeding
may
be in the following form:
"(Title of court. Title of cause.)
Whereas the ... desires to give (a bond) (an undertaking) for
(state what) as provided by (state sections of code requiring bond
or
undertaking); now, therefore, the undersigned (principal and)
(sureties) (surety) hereby (obligate ourselves, jointly and
severally) (obligates itself) to (name who) under the statutory
obligations, in the amount of ... dollars."
995.340. If a bond is given in an action or proceeding:
(a) The bond shall be filed with the court unless the statute
providing for the bond requires that the bond be given to another
person.
(b) If the statute providing for the bond requires that the bond
be given to an officer, the officer shall file the bond with the
court unless the statute providing for the bond otherwise provides.
(c) A bond filed with the court shall be preserved in the office
of the clerk of the court.
995.350. (a) Upon the filing of a bond with the court in an action
or proceeding, the clerk shall enter in the register of actions the
following information:
(1) The date and amount of the bond.
(2) The names of the sureties on the bond.
(b) In the event of the loss of the bond, the entries in the
register of actions are prima facie evidence of the giving of the
bond in the manner required by statute.
995.360. A bond given in an action or proceeding may be
withdrawn
from the file and returned to the principal on order of the court
only if one of the following conditions is satisfied:
(a) The beneficiary so stipulates.
(b) The bond is no longer in force and effect and the time during
which the liability on the bond may be enforced has expired.
995.370. At the time a bond is given, the principal shall serve a
copy of the bond on the beneficiary. An affidavit of service shall be
given and filed with the bond.
995.380. (a) If a bond does not contain the substantial matter or
conditions required by this chapter or by the statute providing for
the bond, or if there are any defects in the giving or filing of the
bond, the bond is not void so as to release the principal and
sureties from liability.
(b) The beneficiary may, in proceedings to enforce the liability
on the bond, suggest the defect in the bond, or its giving or filing,
and enforce the liability against the principal and the persons who
intended to become and were included as sureties on the bond.
995.620. Two or more admitted surety insurers may be sureties on a
bond by executing the same or separate bonds for amounts aggregating
the required amount of the bond. Each admitted surety insurer is
jointly and severally liable to the extent of the amount of the
liability assumed by it.
995.630. An admitted surety insurer shall be accepted or approved
by the court or officer as surety on a bond without further
acknowledgment if the bond is executed in the name of the surety
insurer under penalty of perjury or the fact of execution of the bond
is duly acknowledged before an officer authorized to take and
certify acknowledgments, and either one of the following conditions,
at the option of the surety insurer, is satisfied:
(a) A copy of the transcript or record of the unrevoked
appointment, power of attorney, bylaws, or other instrument, duly
certified by the proper authority and attested by the seal of the
insurer entitling or authorizing the person who executed the bond to
do so for and in behalf of the insurer, is filed in the office of the
clerk of the county in which the court or officer is located.
(b) A copy of a power of attorney is attached to the bond.
995.640. Upon review of the Internet Web site of the Department of
Insurance, the county clerk of any county shall, upon request of any
person, do any of the following:
(a) Issue a certificate stating whether a surety is admitted or if
the certificate of authority of an admitted surety insurer issued by
the Insurance Commissioner authorizing the insurer to transact
surety insurance has been surrendered, revoked, canceled, annulled,
or suspended, and, in the event that it has, whether renewed
authority has been granted. The county clerk in issuing the
certificate shall rely solely upon the information furnished by the
Insurance Commissioner pursuant to Article 2 (commencing with Section
12070) of Chapter 1 of Part 4 of Division 2 of the Insurance Code.
(b) Issue a certificate stating whether a copy of the transcript
or record of the unrevoked appointment, power of attorney, bylaws, or
other instrument, duly certified by the proper authority and
attested by the seal of an admitted surety insurer entitling or
authorizing the person who executed a bond to do so for and on behalf
of the insurer, is filed in the office of the clerk.
bond by executing the same or separate bonds for amounts aggregating
the required amount of the bond. Each admitted surety insurer is
jointly and severally liable to the extent of the amount of the
liability assumed by it.
995.630. An admitted surety insurer shall be accepted or approved
by the court or officer as surety on a bond without further
acknowledgment if the bond is executed in the name of the surety
insurer under penalty of perjury or the fact of execution of the bond
is duly acknowledged before an officer authorized to take and
certify acknowledgments, and either one of the following conditions,
at the option of the surety insurer, is satisfied:
(a) A copy of the transcript or record of the unrevoked
appointment, power of attorney, bylaws, or other instrument, duly
certified by the proper authority and attested by the seal of the
insurer entitling or authorizing the person who executed the bond to
do so for and in behalf of the insurer, is filed in the office of the
clerk of the county in which the court or officer is located.
(b) A copy of a power of attorney is attached to the bond.
995.640. Upon review of the Internet Web site of the Department of
Insurance, the county clerk of any county shall, upon request of any
person, do any of the following:
(a) Issue a certificate stating whether a surety is admitted or if
the certificate of authority of an admitted surety insurer issued by
the Insurance Commissioner authorizing the insurer to transact
surety insurance has been surrendered, revoked, canceled, annulled,
or suspended, and, in the event that it has, whether renewed
authority has been granted. The county clerk in issuing the
certificate shall rely solely upon the information furnished by the
Insurance Commissioner pursuant to Article 2 (commencing with Section
12070) of Chapter 1 of Part 4 of Division 2 of the Insurance Code.
(b) Issue a certificate stating whether a copy of the transcript
or record of the unrevoked appointment, power of attorney, bylaws, or
other instrument, duly certified by the proper authority and
attested by the seal of an admitted surety insurer entitling or
authorizing the person who executed a bond to do so for and on behalf
of the insurer, is filed in the office of the clerk.
995.710. (a) Except as provided in subdivision (e) or to the extent
the statute providing for a bond precludes a deposit in lieu of bond
or limits the form of deposit, the principal may instead of giving a
bond, deposit with the officer any of the following:
(1) Lawful money of the United States. The money shall be
maintained by the officer in an interest-bearing trust account.
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
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Sanctions: Lower Court Sanctions
Under $5,000 Not Immediately
Appealable
Appeal of Two Sanctions Orders Are
Dismissed.
Warkentin v. Countrywide Home
Loans, Case No. F059782 (5th Dist.
Apr. 29, 2011) (unpublished) is a
situation where the appellate court
dismissed two appeals of sanctions
orders, one of $2,012 for a plaintiff
reasserting allegations that were
earlier stricken from a pleading and
the other amounting to $2,331.25 for
discovery response
“gamesmanship.” The reason for the
dismissals? Simple: Code of Civil
Procedure section 904.1(a)(11)
-(12), which provides that an order
granting monetary sanctions is not
an appealable order unless the
amount is over $5,000. Beyond that,
Justice Kane on behalf of a 3-0
panel of the Fifth District observed
that sanctions are mandatory for
discovery “gamesmanship,”
acknowledging that they “are
routinely granted in such
circumstances.”
This bill is pending in the appellate
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-
2050/ab_2043_bill_20120223_introduced.html
(b) Sanction orders or judgments of
five thousand dollars ($5,000)
or less against a party or an
attorney for a party may be reviewed
on an appeal by that party after
entry of final judgment in the main
action, or, at the discretion of the
court of appeal, may be reviewed
upon petition for an extraordinary
writ.
Under $5,000 Not Immediately
Appealable
Appeal of Two Sanctions Orders Are
Dismissed.
Warkentin v. Countrywide Home
Loans, Case No. F059782 (5th Dist.
Apr. 29, 2011) (unpublished) is a
situation where the appellate court
dismissed two appeals of sanctions
orders, one of $2,012 for a plaintiff
reasserting allegations that were
earlier stricken from a pleading and
the other amounting to $2,331.25 for
discovery response
“gamesmanship.” The reason for the
dismissals? Simple: Code of Civil
Procedure section 904.1(a)(11)
-(12), which provides that an order
granting monetary sanctions is not
an appealable order unless the
amount is over $5,000. Beyond that,
Justice Kane on behalf of a 3-0
panel of the Fifth District observed
that sanctions are mandatory for
discovery “gamesmanship,”
acknowledging that they “are
routinely granted in such
circumstances.”
This bill is pending in the appellate
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-
2050/ab_2043_bill_20120223_introduced.html
(b) Sanction orders or judgments of
five thousand dollars ($5,000)
or less against a party or an
attorney for a party may be reviewed
on an appeal by that party after
entry of final judgment in the main
action, or, at the discretion of the
court of appeal, may be reviewed
upon petition for an extraordinary
writ.