Second District, Division 4 Reverses Sanctions Award For Failure to Meet Technical Requirements.
Here is one for all of you practitioners desiring to set up a CCP section 128.7 sanctions motion, correctly we might add.
Defendant served plaintiff with a notice of motion for sanctions in the amount of $7,022.50 under CCP section 128.7, indicating the motion would not be filed for the safe harbor period but with no definitive motion hearing date (the notice said the motion would come on for hearing “on AAA at BBB”). After expiration of the safe harbor period, defendant did file the sanctions motion, which was granted in the amount of $7,022.50 against defendant’s attorneys. Attorneys (as objectors) appealed.
Reason? Presiding Justice Epstein, on behalf of a 3-0 panel of the Second District, Division 4 in Galleria Plus, Inc. v. Hanmi Bank (David D. Kim & Associates), Case No. B213099 (2d Dist., Div. 4 Nov. 19, 2009) (certified for publication), held that section 128.7 incorporates CCP section 1010 which, in turn, requires that the unfiled section 128.7 motion must specify when the motion would be made. The failure to specify a time for hearing was the fatal defect, requiring reversal of the sanctions order. So, make sure you put a firm motion date in the unfiled motion if you want to have a chance for success when bringing a 128.7 motion.