Wednesday, May 13, 2026
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Ninth Circuit:
Party Seeking Sanctions Must Make Ex Parte Motion
Opinion Says LASC’s Electronic Calendaring System Which Won’t Permit Reserving Hearing Date More Than Three Days Before Hearing Can Be Reconciled With CCP §128.’s 21-Day Safe Harbor Provision
By a MetNews Staff Writer
The Court of Appeal has invalidated a $19,285 award of sanctions, declaring that the motion was infirm because it did not include a notice of when the hearing on it would be held—notwithstanding that the Los Angeles Superior Court’s electronic calendaring system cancels a reservation if there is no filing within three days, and a “safe harbor” provision in the relevant statute bars filing a motion until 21 after service.
What a party moving for sanctions must do in each instance, this district’s Div. Five advised, is to make an ex parte motion for relief from the statutory requirements.
Retired Los Angeles Superior Court Judge Sanjay Kumar, serving on assignment, authored the opinion, filed Monday, reversing a judgment in favor of defendant Jeffrey Goldberg. Judge Edward B. Moreton Jr. had found that the complaint—filed by three grandchildren of a deceased trustor alleging that Goldberg coerced their progenitor into changing the terms of his trust, to their detriment—“is not only factually frivolous, it is also legally meritless, and the Opposition does not even address the statutes of limitations issue.”
Moreton rejected the plaintiffs’ contention that he was bound by the 2009 Court of Appeal decision by this district’s Div. Four in Galleria Plus, Inc. v. Hanmi Bank. That case related to a sanction motion brought under Code of Civil Procedure §128.7, as did the matter before Moreton.
Sec. 128.7 provides that a sanction motion “shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”
Epstein’s Opinion
In Galleria Plus, Presiding Justice Norman Epstein, now deceased. noted, with emphasis added by him, that “Section 128.7 mandates that notices of motion ‘shall be served” in accordance with Code of Civil Procedure §1010 which mandates specification of the hearing date, and said:
“Respondent’s purported notice, served April 25, 2008, indicated the motion would be heard ‘on AAA at BBB.’ The document failed to specify when the motion would be made, rendering it fatally defective.”
In granting sanctions, Moreton declared:
“Galleria Plus was decided in 2009—almost a decade before the Los Angeles Superior Court adopted its mandatory electronic Court Reservation System (‘CRS’). The Court’s e-filing system does not permit motion dates to be reserved more than three days before the motion is actually filed. Therefore, it was not possible to reserve a hearing date when this motion was served pursuant to Code Civ. Proc. § 128.7(c)(1), i.e., 21 calendar days before filing plus an additional sixteen court days, because this is longer than the 3-day period permitted by the CRS system. Accordingly, Galleria Plus does not control.”
Kumar’s View
Rejecting Moreton’s reasoning, Kumar wrote:
“The apparent flaw in the CRS did not relieve defendant of his obligation under sections 1010 and 128.7 to serve a notice of motion that reflects when the motion will be made. Indeed, if we were to find Galleria Plus inapplicable simply because it was decided before the era of electronic filing, we would be required to ignore the unambiguous statutory dictates of sections 128.7 and 1010—something we cannot do….Although defendant could not secure a hearing date from the CRS that was after the expiration of the safe harbor period, he could have filed an ex parte motion to request the trial court waive the timing restriction applicable to e-filed motions and allow defendant to set a hearing more than 21-days after service of the notice of motion.”
Kumar remarked in a footnote:
“At least two jurisdictions—Orange County and San Bernardino County—have e-filing systems that exempt sanctions motions from filing deadlines that would otherwise interfere with a litigant’s ability to comply with statutory notice and safe harbor requirements….To avoid the necessity of an ex parte motion, the Los Angeles County Superior Court may elect to modify its e-filing rules along those lines.”
Skimpy Written Motions
He added in another footnote:
“Defendant contends it would be ‘too cumbersome’ for the party seeking sanctions to file an ex parte motion for a hearing date beyond the 21-day period in order to comply with the notice and safe harbor provisions. Cumbersome or not, litigants are obligated to abide by the directives of California statutes. In any event, because the superior court does not have the authority to implement rules and procedures that prevent attorneys from complying with statutes and case law, such a motion could be truncated and rudimentary.”
The case is J.N. v. Goldberg, 26 S.O.S. 1316.
Paul F. Sorrentino and Vincent P. Sorrentino of the San Diego firm of Sorrentino & Associates represented the grandchildren and Alan S. Gutman and Matthew E. Hess of the Beverly Hills firm of Gutman Law acted for Goldberg.
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