That Was Always the Intent; Just Don't Ask the Guys in San Diego...

Nutrition Distrib., LLC v. Southern Sarms, Inc., B0280983 (D2d7 Jan. 31, 2018)

So about two years ago, the 4/1 held that when moving for sanctions under Code of Civil Procedure § 128.5—which had been revived by the Legislature in 2014—a moving party was not required to serve the motion 21 days in advance and to offer a chance to withdraw the pleading. (A rule commonly called the “safe harbor.”) According to the court, the safe harbor didn’t apply even though it is specifically codified in § 128.7(c), and a cross reference in revived § 128.5(f) specifically said sanctions had to be imposed “consistently with the standards, conditions, and procedures set forth in subdivisions (c),(d), and (h) of Section 128.7.” I was skeptical.

But in 2017, the Legislature amended § 128.5(f) yet again to make totally clear that the safe harbor applies to any sanctions motion brought under § 128.5, so long as it is based on “making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected[.]” This case, however, was decided before the amendment came into effect. So the question is: Was the Legislature just reiterating or clarifying its prior intent in the face of the 4/1 decision, or was there a change in law? 

The Court here—the 2/7—holds it was just a clarification. After reviewing the text and history of both the earlier statute that revived 128.5 and the 2017 amendment, the Court holds that the intent of the original bill was that the safe harbor should apply, the earlier case notwithstanding. Defendant’s sanctions motion here couldn’t possibly have given plaintiff an opportunity to withdraw because it was filed after a demurrer had been granted. Which means no sanctions.

Affirmed.