Judge: John C. Gastelum, Case: 19-01109010, Date: 2022-09-27 Tentative Ruling
Motion for Sanctions
Motion for Sanctions
Tentative Ruling: Plaintiff Fernando Scalini’s Motion for Sanctions is DENIED as follows.
Code of Civil Procedure section 128.7(c)(1) states: “A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected...”
Here, Defendant served the Motion on Plaintiff’s COUNSEL on May 27, 2022, but Defendant also filed the Motion on May 27, 2022. (See Papefthimiou Decl., ¶ 19.) Defendant contends he complied with section 128.7 because the hearing date on the Motion – September 27, 2022 – was more than 21-days from the date Plaintiff was served with the Motion and Defendant would have “withdrawn” the Motion during the safe harbor period if Plaintiff corrected the alleged section 1287.7 violation within the 21-day period. In Opposition, Plaintiff contends that Defendant violated the 21-day safe harbor period by filing the Motion on the same day it was served.
In Broad. Music, Inc. v. Structured Asset Sales, LLC (2022) 75 Cal.App.5th 596, the Court states as follows:
“Section 128.7, subdivision (c)(1) establishes that a notice of motion for sanctions ‘shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper ... is not withdrawn.’ ‘Service of the motion on the offending party begins a [21]-day safe harbor period.’ [Citation omitted.] The purpose of the safe harbor period is to allow a party to withdraw an objectionable document and thereby conserve judicial resources as well as save the parties the time and expense of litigating sanctions. The statute is remedial, not punitive. [Citation omitted.] We conclude that the statute is unambiguous. A sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires.”
(Broad. Music, supra, 75 Cal.App.5th at 604-605.)
The Court continues and states: “21 days is not a notice period. It is strictly a safe harbor period. It defines when the target of a sanctions motion can act without penalty and withdraw an objectional document. The time for filing a sanctions motion is dictated by the safe harbor period because, per the clear import of the statute, a motion for sanctions must be filed outside the safe harbor period. It cannot be filed on day one of the safe harbor period, day 21 of the safe harbor period, or any day in between.” (Id. at 605-606.)
“Moreover, the law requires strict compliance with the safe harbor provisions. [Citation omitted.] Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’ (Martorana, supra, 175 Cal.App.4th at p. 700, 96 Cal.Rptr.3d 172; Li, at p. 594, 99 Cal.Rptr.3d 334 [‘compliance with the safe harbor is a prerequisite to recovering sanctions’].)” (Transcon Fin., Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App. 5th 547, 550–51.)
In Transcon Fin., supra, the Court held the party filing the sanctions motion “had to wait for the period to expire fully before filing the sanctions motions”; that “compliance with the safe harbor provisions was mandatory”; and held that filing of the Motion on day 20, as opposed to day 21, of the safe harbor precluded the lower court from granting the sanctions motions. (Transcon Fin., supra, 81 Cal.App.5th at 551.)
Here, as set forth above, Defendant served and filed the Motion on May 27, 2022. (See Papefthimiou Decl., ¶ 19.) Defendant was not allowed to file the Motion until the 21-day safe harbor period had passed. Because Defendant did so, Defendant violated the safe harbor provision which precludes this Court from entertaining the Motion.
Objections to Decl. of Daniel Keller: OVERRULE all objections.
Objections to Decl. of M. Armstrong: OVERRULE all objections.
Moving Party is to give notice.