Sanctions Never Seem to Stick, Vol. 2,482 ...

Moofly Prods., LLC v. Favila, No. B282084 (D2d1 Jun 22, 2018)

Code of Civil Procedure § 1008(d) says that a party can get sanctions for an improper motion for reconsideration “as allowed by [§] 128.7.” Section 128.7(c)(2), in turn, says a court can enter sanctions, but only after it issues an order to show cause that describes the conduct and gives the offending party twenty-one days’ notice to show cause or to withdraw the offending filing. The twenty-one day window to withdraw the filing is referred to as a “safe harbor.” So the question here is whether § 1008(d)’s reverence to § 128.7 means to incorporate just the standard for deciding when something is frivolous or whether it incorporates the whole shebang of § 128.7’s procedures, including the safe harbor. 

The Court finds that § 1008 takes in §128.7 whole hog. Relying on Moore v. Shaw, 116 Cal. App. 4th 182, 199 (2004), which addressed a similar sanctions cross-reference in the anti-SLAPP statute, it holds that by referencing § 128.7, the Legislature meant to incorporate all of the sanctions regime, including the safe harbor procedure. Which basically means that if the court thinks a reconsideration motion merits sanctions, it can’t deny the motion and then issue an order to show cause. Because in that case, the motion can’t be withdrawn. The notice period for a motion is generally shorter than the safe harbor, so the court would need to take the reconsideration motion off calendar, or at least kick the hearing to give the safe harbor window and then address the merits and sanctions at the same time. 

Which, practically speaking, means that sanctions under § 1008(d) are basically never going to happen.

Reversed.