Sanctions Stuck, this Time

Peake v. Underwood, No. D061267 (D4d1 July 17, 2014)

In the published part of this opinion, the court affirms an order granting terminating sanctions and awarding attorney’s fees because plaintiff and her attorney for maintained a frivolous case. Not too much new here, although the case provides a useful overview of the various legal standards that go into a Code of Civil Procedure § 128.7 motion. The court is very deferential to the trial court’s findings that the case lacked legal or factual merit. (I must say, on more than one occasion, I’ve seen summary judgment motions denied based on much weaker factual showings than plaintiff’s here.) 

One interesting point: As required by § 128.7(c)(1), the defendant served plaintiff with the motion twenty-one days before it was filed. Instead of withdrawing the challenged claims to avoid a sanction, the plaintiff added a few more. When the court ruled, it dismissed as frivolous the claims addressed in the original motion as well as the new claims. It did not require the defendant to serve a new motion addressing the new claims too and afford the plaintiff another safe harbor period. Although the court recognizes that “the statutory language does appear to support the need for an additional safe harbor period after an amended pleading is filed,” it nonetheless affirms. Because the new claims were “flawed for the same essential reason” as the original ones, an additional safe harbor would have been futile.

Affirmed.