Dolan

Appellant, Buena Engineers, Inc., was one of over 100 defendants involved in complex litigation regarding liability for a toxic disposal site in Ventura County. After three years of discovery and pretrial motions, appellant was involuntarily dismissed from the action. Appellant requested an award of costs and attorney fees under Code of Civil Procedure section 128.5 as a sanction against respondents for prosecuting a frivolous action. The trial court denied the request for sanctions. We affirm.

Facts and Proceedings Below

The underlying toxic tort action stems from the development of a residential subdivision known as “Oxnard Dunes” on a toxic disposal site in Oxnard, California. This area was used by the oil and gas industry in the 1940’s through 1960’s to dump oil field drilling wastes.

In 1987 approximately 175 plaintiffs who lived or owned property in the area filed suit for personal injury and property damage. The “Dolan” action was filed on January 27, 1987. The “Cottle” action (Cottle v. Humacid-MacLeod (Super. Ct. Ventura County, No. 99933)) was filed on December 31, 1987. The consolidated actions named over 100 defendants.

The “Dolan” action was designated…

OPINION Appellant, Buena Engineers, Inc., was one of over 100 defendants involved in complex litigation regarding liability for a toxic disposal site in Ventura County. After three years of discovery and pretrial *Page 1502 motions, appellant was involuntarily dismissed from the action. Appellant requested an award of costs and attorney fees under Code of Civil Procedure section 128.5 as a sanction against respondents for prosecuting a frivolous action. 1 The trial court denied the request for sanctions. We affirm. FACTS AND PROCEEDINGS BELOW The underlying toxic tort action stems from the development of a residential subdivision known as "Oxnard Dunes" on a toxic disposal site in Oxnard, California. This area was used by the oil and gas industry in the 1940's through 1960's to dump oil field drilling wastes. In 1987 approximately 175 plaintiffs who lived or owned property in the area filed suit for personal injury and property damage. The "Dolan" action was filed on January 27, 1987. The "Cottle" action (Cottle v. Humacid-MacLeod (Super. Ct. Ventura County, No. 99933)) was filed on December 31, 1987. The consolidated actions named over 100 defendants. The "Dolan" action was…

I concur in the judgment of the majority opinion but write separately to express dissatisfaction with the reasoning contained therein with respect to the construction of the language in Code of Civil Procedure section 1 128.5. In patently frivolous actions, the majority interprets that section as requiring two findings before sanctions can properly be imposed by a trial court: (1) bad faith actions; and (2) tactics that are frivolous or solely intended to cause unnecessary delay. If, the majority opines, the actions or tactics are objectively "frivolous" as that term is defined in the section 128.5 , subdivision (b)(2), i.e., "totally and *Page 1508 completely without merit or . . . for the sole purpose of harassing an opposing party," the analysis is incomplete unless there is an additional finding of "bad faith." In other words, the majority requires a subjective standard of bad faith to be superimposed even though objectively the actions or tactics are utterly lacking in merit. I read the statute as permitting imposition of sanctions when either the subjective or the objective criteria are present. If the Legislature intended otherwise, it would have utilized the conjunctive…