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Understanding California's 128.7 Motion and the Legal Standard for Review

Posted by Eric D. Anderson | Apr 13, 2023 | 0 Comments

In the legal world, motions are a common procedural tool used by parties in a lawsuit to request specific actions or rulings from the court. California's Code of Civil Procedure Section 128.7, commonly referred to as the "128.7 motion," is one such motion that aims to discourage frivolous or harassing litigation practices. This article delves into the details of the 128.7 motion and explains the legal standard for its review.

What is a 128.7 Motion?

California's 128.7 motion is a statutory provision designed to prevent parties from filing and maintaining lawsuits or motions deemed frivolous, improper, or filed for an improper purpose. It safeguards against abuse of the legal process, aiming to deter parties from pursuing meritless claims, wasting the court's time and resources, and causing unnecessary expense to the opposing party.

When Can a 128.7 Motion Be Filed?

A party may file a 128.7 motion if they believe that an opposing party's pleading, written notice of motion, or any other similar paper is presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Additionally, a 128.7 motion can be filed if:

  1. The claims, defenses, or other legal contentions in the pleading, motion, or paper are not warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or establishing new law.
  2. The allegations and other factual contentions do not have evidentiary support or are unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
  3. The denials of factual contentions are not warranted on the evidence or are not reasonably based on a lack of information or belief.

Legal Standard for Review

When reviewing a 128.7 motion, the court applies a two-step process:

  1. Objective Inquiry: The court first determines whether the pleading, motion or other paper at issue is objectively frivolous, meaning it lacks any legal or factual basis. This requires the court to evaluate whether a reasonable attorney would have believed that the pleading, motion, or paper was legally or factually supported.
  2. Subjective Inquiry: If the court finds that the pleading, motion, or paper is objectively frivolous, it then considers whether the party or attorney responsible for filing it acted with an improper purpose. This inquiry focuses on the subjective intent of the party or attorney.


If the court determines that a 128.7 motion is well-founded, it may impose sanctions on the offending party, including monetary penalties, payment of the opposing party's attorney fees, or other forms of relief deemed appropriate by the court. Before imposing sanctions, the court must allow the alleged offending party to be heard.


California's 128.7 motion is a tool in the state's civil litigation system to prevent frivolous and abusive litigation practices. The motion's legal standard for review ensures that the courts can identify and penalize objectively frivolous actions and those filed with an improper purpose, thereby protecting the integrity of the judicial process and promoting efficiency within the legal system.


About the Author

Eric D. Anderson

Eric Anderson: Civil Trial lawyer, Criminal Defense Lawyer, Sin Lawyer


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