Case Does Raise How One Can Ever Get Sanctions In This Area In A Normal Case.
We understand that CCP § 128.7 sanctions need to follow strict procedural steps. However, motions for reconsideration usually proceed along an expedited timeline, although in a particular case they may go along a more prolonged regular law and motion schedule. Unless you have the latter situation, we bloggers have a hard time seeing how sanctions can be issued where the case goes on an expedited schedule.
Ngo v. Tran, Case No. B322843 (2d Dist., Div. 4 Apr. 24, 2023) (unpublished) illustrates our general observations above. Although the motion for reconsideration did proceed along a more extended track for hearing, the appellate court reversed a trial court grant of sanctions against a litigant for bringing an unsuccessful motion because there was no compliance with section 128.7 dictates under CCP § 1008 (which requires sanctions compliance with section 128.7). The litigant failed to comply as follows: (1) failure to file a separate sanctions motion, rather than simply requesting them in the reconsideration opposition briefing; (2) failure to describe the specific conduct being violated; and (3) failure to serve a “safe harbor” motion before filing the sanctions motion. Even though the sanctioned party did not raise these issues before the lower court, the appellate court determined the issue was one of law and entertained it on appeal.
BLOG OBSERVATION—This does raise the question of how 128.7 sanctions can be “teed up” where a motion for reconsideration is considered in an expedited manner. Unless the party requesting sanctions can lobby a trial court to set the hearing far out so as to do a separate motion compliant with “safe harbor” requirements, we do not see how procedural requirements can be satisfied. A contempt proceeding is the other option, but good luck with that unless egregious circumstances are presented.
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