Trial Judge Did Not Notify Putative Sanctioned Party That It Would Be Sanctioned Sans A Withdrawal Of The Reconsideration Motion.
Moofly Productions, LLC v. Favila, Case No. B282084 (2d Dist., Div. 1 June 1, 2018) (unpublished) demonstrates that trial judges, just like litigants, must satisfy CCP § 128.7 sanctions safe harbor requirements before doling out sanctions under statutes subject to section 128.7 strictures.
Code of Civil Procedure section 1008(d) allows sanctions to be imposed for an improper reconsideration motion “as allowed by [s]ection 128.7.” In turn, section 128.7 does allow a court to impose sanctions on its motion, pursuant to subdivision (c)(2), if the court enters an order describing the specific conduct appearing to violate the sanctions statute and directing an attorney, law firm, or party to show cause why it has not violated section 128.7(b) unless within 21 days of service of the OSC there is a withdrawal/correction by the notified attorney, law firm, or party.
In Moofly Productions, the trial judge did not notify Moofly that it would be subject to sanctions if it did not withdraw the motion for reconsideration. Instead, the court denied the motion for reconsideration at the same moment that it issued the OSC, mooting Moofly’s subsequent attempt to withdraw its motion. The appellate court held that the trial judge was subject to the 21-day safe harbor requirements of section 128.7 before imposing sanctions for an unwarranted motion for reconsideration under section 1008. This resulted in a reversal of a $10,499.51 sanctions award made payable to defense counsel by Moofly and one of its attorneys.