Losing Administrative Mandamus Plaintiff Suffers Code Of Civil Procedure Section 128.7 Fee Sanctions For Filing An Untimely, Meritless Reconsideration Motion

Second District, Division Six Affirms Sanctions Award.

            Code of Civil Procedure section 1008(a) is a statutory provision allowing an impacted party to move for reconsideration of an order within 10 days after service of notice of the order if there are new facts, circumstances or law that should be taken into account.  A reconsideration motion not meeting these requirements will be denied and is sanctionable pursuant to Code of Civil Procedure section 128.7.   See Code Civ. Proc., § 1008(d).   In turn, a litigant seeking sanctions under section 128.7 must serve an unfiled motion giving the other party 21 days to withdraw the offending reconsideration motion.

            All these principles came into play in Anacker v. Academy of Magical Arts, Inc., Case No. B196741 (2d Dist., Div. 6 Aug. 11, 2008) (unpublished).

            There, plaintiff had his petition for administrative mandamus writ denied.  He then moved for reconsideration of the denial, arguing among other things that he was "just bluffing" when making a certain admission that obviously had some impact in the prior denial ruling.  Defendant opposed the reconsideration motion, sent the 21-day "safe harbor" motion, opposed the motion, and separately moved for sanctions in the amount of $11,290 pursuant to sections 1008(d) and 128.7.   The trial court denied the reconsideration motion and imposed sanctions of $3,600 against plaintiff.

            Plaintiff appealed, and lost.  The Court of Appeal found that the reconsideration motion was untimely (filed more than a month later after service of the original writ denial order) and did not demonstrate any new circumstances for reconsideration (violating section 1008(a)).  Plaintiff argued that a finding of subjective bad faith was necessary under section 128.7, but that contention was rebuffed because it is not required.  (See Guillemin v. Stein, 104 Cal.App.4^th 156, 167 (2002).)  Plaintiff relied on a decision involving a predecessor version of section 1008, which allowed imposition of sanctions under expired section 128.5.  The appellate panel noted that section 128.5 did require subjective bad faith, but section 128.7 is different and does not require this state of scienter.  (Ibid.)  The lower court did not abuse its discretion by imposing sanctions, especially where they were only a little more than 25% of the requested amount.