Sanctioning obstructive opposing counsel: which statute, and why mediation is a dead end

The sorting rule is location, and it is not intuitive

The statute is picked by where the conduct sits in the case, not by how badly the conduct read at the time.

The reason the sort is by location is that the Legislature wrote it that way. Section 128.5 tells you so on its face: the section "shall not apply to disclosures and discovery requests, responses, objections, and motions." CCP 128.5(e). That single subdivision decides more sanctions motions than any case does, because it means a motion aimed at obstructive discovery conduct and filed under 128.5 fails without reaching the merits.

The second reason is the mental state. Three of the five vehicles require no finding about the offending lawyer's state of mind at all. Two require one, and one of those requires two. A motion that alleges the right conduct under the wrong statute is not a motion that needs more evidence. It is the wrong motion.

Discovery, which is the easiest sanction to get and the one most people skip

The monetary sanction is mandatory, and nobody has to prove the other lawyer meant it.

Section 2023.010 lists the misuses. There are nine of them, subdivisions (a) through (i), and the list is not exhaustive by its own terms. The ones that actually get used against obstructive counsel are (e), "making, without substantial justification, an unmeritorious objection to discovery," (f), "making an evasive response to discovery," (g), disobeying a discovery order, (h), unsuccessfully making or opposing a motion to compel without substantial justification, and (i), failing to confer in good faith where the motion requires a declaration of attempted informal resolution.

Then section 2023.030 supplies the remedies, and the first one is not discretionary in the way most practitioners assume. "To the extent authorized by the chapter governing any particular discovery method or any other provision of this title," the court "shall impose" the monetary sanction "unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." CCP 2023.030(a). The burden of proving substantial justification is on the party claiming it acted with substantial justification. Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424.

A filed paper, where the standard is objective and the clock is real

Section 128.7 asks what a reasonable attorney would have done, not what this attorney intended.

Signing, filing, submitting, or later advocating a paper certifies four things after reasonable inquiry: that the paper is not presented primarily for an improper purpose such as harassment or needless delay, that the legal contentions are warranted by existing law or a nonfrivolous argument to extend or modify it, that the factual allegations have evidentiary support or are likely to after further investigation, and that denials are warranted on the evidence. CCP 128.7(b).

The standard is objective. Section 128.7 imposes a lower threshold than section 128.5, requiring only that the conduct be objectively unreasonable. Levy v. Blum, 92 Cal.App.4th at 638. Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167 sorts violations into three kinds: factually frivolous, legally frivolous, and interposed for an improper purpose. A claim is objectively unreasonable if any reasonable attorney would agree it is totally and completely without merit. Peake v. Underwood (2014) 227 Cal.App.4th 428, 440. Voluntary dismissal after a section 128.7 sanctions motion has been filed does not preclude the award. Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 975.

Two limits matter more than the standard does. First, section 128.7 reaches only pleadings and other filings, so oral misconduct during trial is outside it. Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 368-369 (attorney's "oral misconduct during trial was not covered by section 128.7"; contempt is "the primary and long-established remedy" for in-trial misconduct). Oral trial misconduct can instead be addressed under section 128.5 on a showing of bad faith, or through contempt. Second, monetary sanctions may not be awarded against a represented party for asserting legal contentions. That category reaches counsel and unrepresented parties only. CCP 128.7(d)(1).

Everything else, where you need two findings instead of one

Section 128.5 is the residual vehicle, and it is residual because it is the hardest.

The section reaches "actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." CCP 128.5(a). "Frivolous" means totally and completely without merit, or for the sole purpose of harassing an opposing party. CCP 128.5(b)(2). The standards are distinct: a more stringent standard requiring subjective bad faith applies under section 128.5, and a lesser, objective standard applies under section 128.7. In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124.

Section 128.5 requires a showing not only of a meritless or frivolous action or tactic but also of subjective bad faith. Levy v. Blum (2001) 92 Cal.App.4th 625, 635. What gets you there is a record showing the lawyer knew. Prosecution of a frivolous action can itself be the evidence of subjective bad faith. West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 702.

The case worth reading before you draft is Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299. Counsel set depositions for the last two weekdays of opposing counsel's long-planned vacation and refused to continue them to the following Monday. The court affirmed $1,860 in sanctions, a figure that included the airfare from England and the cost of four days of missed vacation, and explained that even a legally authorized step "may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney." Id. at pp. 305-306. A step you are entitled to take is still sanctionable if you took it when you did in order to hurt someone.

That is also the practical answer to the objection that section 128.5 is unwinnable. It is winnable on timing, on repetition, and on a written record of refusal to cure. It is not winnable on tone.

A violated order, and a violated local rule

Two low-ceiling vehicles that need no findings about anybody's state of mind.

Section 177.5 gives a judicial officer 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." "Person" includes a witness, a party, a party's attorney, or both. The sanction requires notice and an opportunity to be heard, and the order must be in writing and "shall recite in detail the conduct or circumstances justifying the order."

Two features shape how it is used. The money goes to the court and not to you, so it deters rather than compensates. And the power "shall not apply to advocacy of counsel before the court," which is the Legislature's own statement of the line between a difficult lawyer and a sanctionable one.

Section 575.2 does the local rule half. Where counsel or a party fails to comply with a local rule, the court may strike pleadings, dismiss the action, enter a default judgment, impose lesser penalties, or order payment of the moving party's reasonable expenses including attorney fees. No bad faith finding is required. Shiheiber v. JPMorgan Chase Bank, N.A. (2022) 81 Cal.App.5th 688, 700. And the statute directs that where the noncompliance is the responsibility of counsel rather than the party, the penalty falls on counsel and shall not adversely affect the party's cause of action or defense.

There is no inherent power to make anyone write a check

This is the limit that explains why an admonition and a sanction are different legal acts rather than different volumes of the same act.

Federal practitioners arrive expecting an inherent power to sanction. California does not have one for money. Bauguess v. Paine (1978) 22 Cal.3d 626 held that attorney fees may not be awarded as a sanction under the court's supervisory authority alone. Yarnell & Associates v. Superior Court (1980) 106 Cal.App.3d 918, 922-923 extended that rationale beyond attorney fees, reasoning that it "applies to any sanction occasioned by attorney conduct." Lind v. Medevac, Inc. (1990) 219 Cal.App.3d 516, 522-523, following Yarnell, held that the imposition of any monetary sanction must be based upon express statutory authority. And Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1711-1712, 1716-1717 held that a court may not impose attorney fees or a formal reprimand on an attorney, including one appearing pro hac vice, without statutory authority, because the inherent power to revoke pro hac vice status does not carry with it the power to impose those apparently lesser sanctions.

Sanctions authorized by a rule of court grounded in statutory authority are valid, though Sino Century Development Ltd. v. Farley (2012) 211 Cal.App.4th 688 itself reversed the attorney-fee component of the award because rule 2.30 limits fees to those incurred on the sanctions motion.

The practical consequence runs in both directions. A judge who is plainly unhappy with opposing counsel may still have no vehicle, which is why the published response to incivility is so often a paragraph in an opinion rather than an order. Briganti v. Chow (2019) 42 Cal.App.5th 504, 510-512 did exactly that, addressing counsel's repeated references to the female trial judge as "attractive" and saying, at page 510, that it did so "not to punish or embarrass, but to take advantage of a teachable moment," and warning at page 512: "In a more extreme case we would be obliged to report the offending lawyer to the California State Bar."

The vehicle almost nobody files: the fee motion

Incivility alone will not support a sanction. It reduces the other side's fee award, through the ordinary lodestar analysis, with none of the sanctions machinery attached.

Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734 supplies the mechanism, and the mechanism is the point rather than the language. Attorney skill has always been a touchstone for adjusting a lodestar. Karton holds that civility is an aspect of skill, so a trial court deciding a fee motion may properly consider whether an attorney's incivility affected the litigation costs. The Kartons sought fees of $271,530, later increased to $292,140, and the trial court awarded $90,000, in part because the briefing was replete with attacks on defense counsel.

Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908 held that the .4 negative multiplier, a $457,863.74 reduction from the $1,144,659.36 adjusted lodestar, was a lodestar adjustment reflecting counsel's diminished skill rather than a punishment or sanction, and it rejected counsel's due process challenge on that basis. A lawyer admitted before the 2014 civility amendment to the oath still owes the court and opposing counsel professional courtesy as an officer of the court. Masimo Corp. v. The Vanderpool Law Firm, Inc. (2024) 101 Cal.App.5th 902 reaffirmed the line. Douglas Vanderpool's email to Masimo's counsel carried the subject line "You are joking right?" and began, "In 30 years of practice this may be the stupidest thing I've ever seen."

There is a guardrail, and it is recent. Quoting Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37, the court in Tidrick v. FCA US LLC (2025) 112 Cal.App.5th 1147 reiterated that when a trial court applies a substantial negative multiplier to a presumptively accurate lodestar attorney fee amount, it must clearly explain its case-specific reasons for the percentage reduction, and it reversed a cut of a combined fees-and-costs request of $82,719.33, $74,275 of it fees, to $15,000 as large enough to shock the conscience. If you are the party asking for the reduction, that case tells you what the record has to contain.

Which produces the only piece of advice in this guide that costs nothing. Every email opposing counsel sends you is a potential exhibit to your fee motion, and every email you send is a potential exhibit to theirs.

Mediation, where the vehicles run out

Conduct inside a California mediation is not protected because it is excused. It is unreachable because it is unprovable.

Evidence Code section 1119 works on three levels. Subdivision (a) makes no evidence of anything said, or any admission made, for the purpose of, in the course of, or pursuant to a mediation or mediation consultation admissible or subject to discovery in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding. Subdivision (b) does the same for any writing prepared for the purpose of, in the course of, or pursuant to a mediation. Subdivision (c) makes all communications, negotiations, and settlement discussions between participants in the course of a mediation confidential. Section 1126 keeps all of it protected after the mediation ends.

Section 1121 handles the mediator, and it is absolute rather than balanced:

The case on point is a construction defect case and its facts are the hypothetical every practitioner constructs. Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1. The mediator filed a report with the superior court describing defense counsel's conduct as obstructive bad faith tactics and stating that the attorney had spent the vast majority of his time trying to derail the mediations. Id. at pp. 6-7. Plaintiff moved for sanctions under section 128.5 and attached the report along with a declaration reciting what was said in the session. The trial court imposed sanctions.

There are no judicially created exceptions to the confidentiality of mediation communications or to the statutory limits on a mediator's report. Id. at pp. 4, 13-14. A mediator may not report to the court about the conduct of participants. Id. at pp. 4, 13. A party may report noncommunicative conduct, but only if doing so requires no disclosure of mediation communications. Id. at pp. 4, 17 and fn. 14. There is no bad faith exception, including under section 128.5, and whether one should exist is a policy question for the Legislature. Id. at p. 17. The Supreme Court affirmed the Court of Appeal's judgment reversing the sanctions order, applying the Evid. Code 1128 standard because the reference to the mediation materially affected the parties' rights, and it left the moving party free to renew the motion on remand without evidence of mediation communications. Id. at pp. 18-19.

Every argument around it has been tried and has failed. Good cause. Rojas v. Superior Court (2004) 33 Cal.4th 407, 423, also a construction defect case, protecting mediation photographs, witness statements, and expert reports. Implied waiver and estoppel. Simmons v. Ghaderi (2008) 44 Cal.4th 570, 588. Legal malpractice and due process. Cassel v. Superior Court (2011) 51 Cal.4th 113, reaching a lawyer's private discussions with his own client in preparation for the mediation. Justice Chin, concurring, observed that the holding "will effectively shield an attorney's actions during mediation, including advising the client, from a malpractice action even if those actions are incompetent or even deceptive," and the majority acknowledged the statutes' terms govern even though they "may compromise petitioner's ability to prove his claim of legal malpractice." Inference. Amis v. Greenberg Traurig LLP (2015) 235 Cal.App.4th 331, 340. Good faith participation. Campagnone v. Enjoyable Pools & Spas Service & Repairs, Inc. (2008) 163 Cal.App.4th 566, where the request failed because it could not be advanced without revealing confidential mediation communications.

What gets through, and it is a boundary rather than a list of exceptions

Five things survive, and they are worth stating as categories because the statute is written as a boundary rather than as a list of exceptions.

1. Observable, non-communicative conduct. The general principle that a party, and never the mediator, may report noncommunicative conduct comes from Foxgate itself. 26 Cal.4th at p. 17 and fn. 14. Campagnone is the illustration: speaking of its own court-ordered appellate mediation program, the Third District said the failure to have all required persons attend, as its local rule required, "is conduct that a party, but not a mediator, may report to the court as a basis for monetary sanctions." That statement is program-specific prospective guidance in an order that denied all sanctions.
2. Attorney misconduct reportable to the State Bar. Section 1129 expressly preserves the client's ability to report professional misconduct and to cooperate with a disciplinary investigation or criminal prosecution, and Evid. Code 1122(a)(3) allows a communication, document, or writing related to an attorney's compliance with section 1129 that discloses nothing said or done or any admission made in the course of the mediation to "be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129." The disciplinary use the subdivision authorizes is limited to proving section 1129 compliance.
3. Criminal proceedings. By their terms the confidentiality statutes operate only in noncriminal proceedings, and the Supreme Court has observed they "would afford no protection to an attorney who is criminally prosecuted for fraud on the basis of mediation-related oral communications." Cassel v. Superior Court (2011) 51 Cal.4th 113, fn. 11.
4. Conduct outside the mediation. The statute reaches communications and writings made for the purpose of, in the course of, or pursuant to a mediation. Correspondence, a discovery response served the same week, a noticed deposition, and a broken stipulation are ordinary litigation conduct and remain fully available.
5. Pre-existing evidence. Evid. Code 1120(a) provides that evidence otherwise admissible or subject to discovery does not become inadmissible or protected solely by reason of its introduction or use in a mediation. Rojas draws the line at whether the writing was prepared for the mediation, not whether it was used in one. 33 Cal.4th at 417.

The local layer

The sanctions statutes are statewide and no county rule changes their standards. What varies is the department, and it varies in two ways that matter to a sanctions motion.

The first is section 575.2, which only operates through a local rule, so the predicate for that motion is whatever the county has actually adopted. Read the local rule, then read the assigned department's standing order, because a standing order requirement is frequently the thing that was violated.

The second is reservation practice and the tentative. A sanctions motion that has to be heard before a discovery cutoff has to be reservable before that date, and in some departments it is not. That is a calendaring problem masquerading as a strategy problem.