Tuesday, June 26, 2018
Changing Its Mind…
Case of First Impression on Sanctions To Be Published—Court of Appeal
Safe Harbor Provision Extended to Improper Motions for Reconsideration
By a MetNews Staff Writer
The Court of Appeal for this district which, on June 1, designated as “not for publication” an opinion on procedures that must be followed in issuing sanctions—notwithstanding that the author denominated the case as one of first impression—has, on second thought, decided that its utterances should be included in the Official Reports.
Div. One issued an order on Friday directing publication of the opinion in Moofly Productions v. Favila, B282084. There, Presiding Justice Frances Rothschild wrote that sanctions may not be imposed for seeking reconsideration without showing new or different facts, law or circumstances, as required by Code of Civil Procedure §1008, unless the moving party has been afforded a 21-day “safe harbor” period.
Rothschild said in the opinion that the panel was “not aware of any other case that has considered the procedural rules a court must apply in imposing sanctions under section 1008.”
A $10,499.51 sanction had been imposed by Los Angeles Superior Court Judge Barbara M. Scheper jointly on the plaintiff in the case, Moofly Productions, LLC, and its attorney, Nina M. Riley, for seeking relief from default based on mistake or neglect, pursuant to Code of Civil Procedure §473. This followed issuance of a terminating sanction based on Moofly’s failure to provide discovery responses.
Scheper determined that the motion under §473 was, in fact, a motion for reconsideration, pursuant to §1008, which requires a statement of what is new or different, and says that “violation of this section may be punished…with sanctions as allowed by Section 128.7.”
What Scheper overlooked, Rothschild’s opinion says, is that §128.7 contains a “safe harbor” provision. It says that a court may, sua sponte, order “an attorney, law firm, or party to show cause” why sanctions should not be imposed but that sanctions may be averted if “within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected.”
“In this case, the trial court did not notify Moofly that it would be subject to sanctions if it did not withdraw the motion for reconsideration. Instead, the court denied Moofly’s motion for reconsideration at the same moment that it issued the order to show cause. Moofly’s subsequent attempt to withdraw its motion was thus moot.”
Riley represented herself on appeal and L. Richard Walton of Walton & Walton acted for Moofly. They issued a statement to the MetNews, published June 4, saying that the appeals court “succinctly dissected an issue of first impression in this state and concluded the Legislature meant what it said”—that sanctions are not permitted under §1008 unless requisites of §128.7 are met—noting:
“We intend to seek publication of this important holding.”
James K. Cameron, representing the defendants in the case, said at the time the opinion was initially issued:
“I ordinarily choose to respect the decision of the Justices to publish or not to publish. In my experience, if they wish to publish, they tend to write a broader, more comprehensive opinion that has wider application to other cases. In this instance, they have issued a narrow ruling on a technical procedural point. The decision is fact specific to our case. It states that the Trial Judge made a technical error in her adherence to applicable statutes, and thus the Court reversed based on the Judge’s perceived mistake.”
The request for publication was filed by Moofly on June 8 and was unopposed.
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