Sanctions Switcharoo in San Diego

CPF Vaseo Assocs., LLC v. Gray, No. D072909 (D4d1 Dec. 6, 2018)

There was a period of time where there was a spit of authority about whether Code of Civil Procedure § 128.5 required a party moving for sanctions to pre-serve the motion on the alleged offender to provide an opportunity to withdraw the offensive pleading. (This is known as the safe harbor rule.) But the Court here settles the issue.

Section 128.5 has bounced in and out of the code a few times over the years. It expired in the '90s when a different sanctions statute—§ 128.7—was enacted. But then it was brought back to life in 2014. Back in 2016, the 4/1 held that the safe harbor rule didn’t apply to § 128.5. The Legislature subsequently amended the statute to make clear that it did. But then at the beginning of 2018, the 2/7—in post-amendment case applying pre-amendment law—held that the safe harbor applied all along. And now—in yet another case applying pre-amendment law—the 4/1 sees the error of its ways, agreeing with the 2/7 that the safe harbor rule always applied to motions under § 128.5.

Reversed.