There’s an impression out there that attorneys can file lawsuits without consequences. Not true. Orange County attorney Douglas Pettibone successfully filed a sanctions motion against an attorney who filed a lawsuit for an improper purpose. Pettibone used an often cited, but rarely successful, 1994 law known as a 128.7 Motion which bars lawsuits filed for an improper purpose and holds attorneys who file them accountable.



In 2013 Pettibone sued a Newport Beach Businessman, on behalf of his client after the Businessman failed to pay for the boat he purchased. During a nighttime repossession of the boat, orchestrated by Pettibone and his investigator, the businessman ran out onto his dock swinging a baseball bat, slipped, and fell. He sued Pettibone’s client for the injuries. Consequently, Pettibone went to trial and won, claiming the businessman assumed the risk by trying to stop a lawful repossession. Pettibone also received a judgment in that case on the balance owed on the boat.



The Newport Businessman hired a new attorney and sued Pettibone’s client once more, this time for wrongful repossession of the boat (still claiming the injuries, nevertheless). This time Pettibone invoked a 128.7 Motion at the start of the lawsuit saying the facts had already been decided in the prior case. The trial judge in the new case agreed and dismissed the case, awarding Pettibone’s client $8,343 in sanctions against the Attorney who filed the lawsuit.



“The interesting part about the 128.7 Motion is that it is a rare motion because it allows sanctions against the attorney who filed the lawsuit” says Pettibone. “It’s a rare way of stopping a frivolous lawsuit because it stops the lawsuit before it starts and you do not have to go through a lengthy litigation process.”



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