Metropolitan News-Enterprise


Tuesday, June 5, 2018


Page 1


Court of Appeal:

Court Must Provide ‘Safe Harbor’ Before Imposing Sanctions for Improperly Seeking Reconsideration


By a MetNews Staff Writer


A judge may not impose sanctions for seeking reconsideration without showing new or different facts, law or circumstances if the party filing the defective motion has not had the advantage of a 21-day “safe harbor” period, the Court of Appeal for this district has held.

Presiding Justice Frances Rothschild of Div. One wrote the opinion, which was filed Friday. Although Rothschild noted that her division was “not aware of any other case that has considered the procedural rules a court must apply in imposing sanctions under section 1008,” the opinion was not certified for publication.

It reverses an order by Los Angeles Superior Court Judge Barbara M. Scheper that plaintiff Moofly Productions, LLC and its attorney, Nina M. Riley, pay $10.499.51 in sanctions to the attorney for defendants Sandra C. Favila and others.

Scheper had earlier imposed terminating sanctions based on Moofly’s failure to provide timely discovery responses. When Moofly moved under Code of Civil Procedure §473 for relief from default based on mistake or neglect, Favila opposed the motion, arguing that the very contentions being put forth presently were advanced in opposition to the terminating sanctions.

So, it reasoned, Moofly was actually seeking reconsideration—with the requisites for such a motion not being satisfied.

Requirements of Statute

Code of Civil Procedure §1008, in ¶(a), “authorizes a motion for reconsideration where it is shown by affidavit that there are new or different facts, circumstances, or law.” There was no such showing, Favila declared, requesting that the court order Moofly to show cause why monetary sanctions should not be imposed.

On Dec. 20, 2016, Scheper denied the motion for reconsideration and set a hearing on an order to show cause re sanctions on Jan. 23, 2017. On Jan. 18, Moofly purported to withdraw its already-decided motion for reconsideration.

Scheper imposed sanctions on Feb, 2. She acted pursuant to §1008(a) which provides that a “violation of this section may be punished…with sanctions as allowed by Section 128.7.”

The issue on appeal was the applicability of §128.7(c)(2) which provides that a court may, on its own motion, order “an attorney, law firm, or party to show cause” why sanctions should not be imposed but that such a consequence may be avoided 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.”

Question Posed

Rothschild wrote:

“May a trial court sanction a party for violating section 1008 without allowing the party the benefit of a 21-day safe harbor to withdraw the offending motion, as is required by section 128.7, subdivision (c)? Our answer to that question is no.”

Sanctions may only be imposed where statutorily authorized, she said. Where §128.7 is relied upon, the jurist continued, sanctions may not be imposed “unless all the requirements of section 128.7, including safe harbor, are followed.”

Rothschild construed the order to show cause as having been issued on Scheper’s own motion, and observed:

“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.”

The case is Moofly Productions v. Favila, B282084.

Riley represented herself on appeal, and she and L. Richard Walton of Walton & Walton acted for Moofly. James K. Cameron was the attorney for the defendants.

Riley and Walton each commented:

“The Court of Appeal succinctly dissected an issue of first impression in this state and concluded the Legislature meant what it said. ‘Sanctions are not allowed by [s]ection 128.7 (sec. 1008, subd. (d)), unless all the requirements of section 128.7, including safe harbor, are followed.’ (Slip Op. at p. 5).

“We intend to seek publication of this important holding.”

Cameron disagreed, saying:

“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 lawyer continued:

“The decision certainly does not exonerate the conduct of Moofly’s counsel, Ms. Riley, that gave rise to the $10,000 plus sanctions award. Rather, the decision says the Trial Judge made a mistake in a situation where strict adherence to a multi-stage procedural statute is required. While I respectfully disagree with the Court’s decision on the merits of the appeal, I do respect the Court’s decision not to publish.”


Copyright 2018, Metropolitan News Company