1. What Counts As Bad Faith in a Lawsuit?
In California civil litigation, bad faith refers to actions taken by a party or attorney that are demonstrably frivolous or intended solely to cause unnecessary delay, increase litigation costs, or harass an opposing party. California Code of Civil Procedure Section 128.7 requires attorneys and self-represented litigants to certify that factual contentions have evidentiary support and legal claims are warranted by existing law.
Courts distinguish between vigorous advocacy and sanctionable misconduct based on the objective reasonableness of the legal position and the evidentiary support behind the filing.
The Difference between Aggressive Lawyering and Actual Bad Faith
Aggressive advocacy stays within legal parameters, pushing novel arguments or contesting disputed facts in good faith. Actual bad faith occurs when a litigant advances claims known to be false or completely unsupported by law.
Examples That Cross the Line in Litigation
- Submitting fabricated physical evidence, altered financial records, or false testimony under oath.
- Intentionally concealing discoverable documents to disrupt trial preparation or hide adverse material.
- Filing pleadings or motions containing frivolous allegations with no factual foundation solely to compel a financial settlement.
2. How Do I Know If I'M Being Sued in Bad Faith Versus Facing a Legitimate Claim?
Determining whether a lawsuit stems from genuine legal disagreement or bad faith requires evaluating both procedural filings and out-of-court conduct. Litigants facing bad faith claims often notice patterns of procedural irregularities early in the proceeding.
Red Flags in the Complaint and Litigation Tactics
- Vague allegations: Pleadings relying on broad generalizations without specific dates, actions, or underlying facts.
- Contradictory statements: Claims that conflict directly with written records, signed agreements, or prior sworn statements.
- Lack of factual support: Complaints filed without foundational documents attached or verified facts.
- Coercive threats: Out-of-court demands threatening regulatory complaints or public reputation damage unless an immediate settlement is paid.
Patterns of Behavior Indicating Malicious Intent
Repeat plaintiffs filing substantially identical lawsuits against multiple defendants often signal improper leverage tactics. When a party uses legal filings as leverage to force commercial concessions unrelated to the litigation, courts may infer improper motive.
3. Who Has the Burden of Proving Bad Faith?
Under California law, the party asserting bad faith carries the burden of proof. Because courts maintain a strong public policy favoring open access to legal remedies, overcoming the presumption of good faith requires meeting specific evidentiary thresholds.
Why the Moving Party Bears the Legal Burden
The moving party must affirmatively prove that the opposing side's conduct lacked reasonable legal basis and was pursued with improper intent. When raised as an affirmative defense or in a motion for sanctions, the responding party must establish the factual predicate for the allegation.
The Statutory Standard of Proof
Evaluating misconduct under statutory sanction provisions or related tort claims requires the applicable evidentiary standard. Courts demand verifiable proof, such as contradictory written records or clear admissions, rather than speculative assertions of improper motive.
| Legal Claim or Remedy | Statutory or Common Law Basis | Burden of Proof | Primary Relief Available |
|---|---|---|---|
| Motion for Sanctions | Cal. Code Civ. Proc. Section 128.7 | Statutory Certification Standards | Deterrent sanctions, including certain attorney fees and court penalties |
| Bad Faith Sanctions | Cal. Code Civ. Proc. Section 128.5 | Objective Frivolousness and Subjective Bad Faith | Financial sanctions payable to moving party or court |
| Malicious Prosecution Action | California Common Law Tort | Preponderance of Evidence (Favorable Termination Required) | Economic damages, emotional distress, potential punitive damages |
4. Can Bad Faith Be Used to Dismiss a Case Early, or Do I Have to Go to Trial?
California procedural rules provide several mechanisms to resolve frivolous litigation before trial, provided specific statutory procedures are strictly followed.
Summary Judgment Motions and Section 128.7 Safe Harbor Mechanisms
A Motion for Summary Judgment under California Code of Civil Procedure Section 437c allows a party to demonstrate that no triable issue of material fact exists, disposing of groundless claims without trial.
Additionally, Section 128.7 requires serving a sanctions motion on the opposing party 21 days before filing it with the court. This 21-day safe harbor period allows the responding party to withdraw or correct the offending document without facing court penalties.
Procedural Steps for Section 128.7 Sanctions
- Drafting and Service: The moving party drafts the motion for sanctions and serves it privately on the opposing party.
- Safe Harbor Period: The opposing party receives a mandatory 21-day window to withdraw or amend the challenged pleading.
- Court Filing: If the opposing party fails to withdraw the document within 21 days, the moving party files the motion with the court for formal hearing and adjudication.
5. What'S the Difference between a Bad Faith Lawsuit and Malicious Prosecution?
While both address litigation abuse, bad faith sanction motions and malicious prosecution actions serve different procedural functions in California law.
Procedural Distinctions and Trial Requirements
- Bad Faith Motion (Sanctions): Raised within the active lawsuit. Addresses sanctionable filings, pleadings, or motion practice. Does not require waiting for trial completion.
- Malicious Prosecution (Separate Action): Filed as a new, independent civil lawsuit after the underlying litigation has completely terminated in favor of the target party.
Application to Civil Disputes
Sanctions apply to specific bad faith tactics within any civil proceeding. Malicious prosecution requires proving that the prior proceeding was brought without probable cause, initiated with malice, and resulted in a favorable termination reflecting innocence for the original defendant.
6. What Should I Do Right Now If I Suspect the Other Side Is Suing in Bad Faith?
Immediate strategic steps protect legal rights and build the necessary record for court intervention.
Immediate Documentation Steps
- Preserve all written communications, contracts, emails, and text messages related to the dispute.
- Create a detailed timeline of events and record all out-of-court statements made by the opposing party.
- Retain copies of all legal notices, pleadings, and formal demands.
Insurance Notification and Legal Counsel Review
Promptly notify relevant insurance carriers, as certain liability policies provide defense coverage for civil litigation. Retaining litigation counsel early allows proper service of Section 128.7 safe harbor notices and structures discovery to target frivolous allegations efficiently.
14 Sep, 2026
