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.

Hunter Limps on in D4

San Diegans for Open Gov’t v. Investigative Newsource, No. D069189 (D4d1 modified on r’hrg Jun. 1, 2017)

This anti-SLAPP opinion came out before the Supreme Court’s decision in Park, but it was destined for rehearing in light of it, so I held off till I could address that case. 

Risky Move Does Not Pay Off

City of San Diego v. San Diegans for Open Gov’t, No. D068939 (on rehearing, Oct. 17, 2016)

San Diegans for Open Government—somewhat of a gadfly litigant in local matters down there—won an attorney fee award against the city in a validation action brought under Code of Civil Procedure § 861.1.

Everything that's Old Is New Again

San Diegans for Open Government v. City of San Diego, No. D068421 (D4d1 Jun. 7, 2016)

In 1994, the Legislature changed California’s general civil sanctions rules to make them look and work more like Rule 11 of the Federal Rules of Civil Procedure. The 1994 amendments added Code of Civil Procedure § 128.7, which permits a court to sanction attorneys or parties for filing meritless pleadings that are “signed” by a party or its attorney. Like Rule 11, § 128.7(c)(1) includes a “safe harbor” requiring the service of a sanctions motion twenty-one days before filing and an opportunity to correct the sanctionable pleading before the motion can be heard. It also adopts an “objectively unreasonable” standard for sanctions—proof of bad faith or ill intent are unnecessary.

Just More Chances to Lose

San Diegans for Open Gov’t v. Har Const. Co., No. D066514 (D4d1 Sept. 17, 2015).

A good-government group brought this case to cancel a construction contract under Government Code § 1090 as the product of a corrupt bargain between a San Diego-area school district and a contractor. More than a year into the litigation, Contractor filed an anti-SLAPP motion, which the trial court denied because Plaintiff established a likelihood of prevailing on the merits.