30-Day Safe Harbor Provision
Section 128.7 requires that an attorney in a civil action "sign all pleadings, petitions, notice of motions and other similar papers. (§ 128.7, subd. (a).) The signature indicates that the attorney . . . certifies that: the paper is not being presented for an improper purpose; the legal contentions are warranted by law or nonfrivolous argument for extension, modification or reversal of existing law; the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and the denials of factual contentions are warranted by the evidence. (§ 128.7, subd. (b).) If the court determines, after notice or a reasonable opportunity to respond, that the attorney . . . improperly certified the document, it may impose an appropriate sanction. (§ 128.7, subd. (c).)" (Barnes v. Department of Corrections (1999) 74 Cal. App. 4th 126, 130.)
[1] Where the complaint is frivolous, sanctions may be imposed against the plaintiff's attorney but not the plaintiff. (§ 128.7, subd. (d)(1).) [97 Cal. App. 4th 953] Section 128.7, subdivision (c)(1) requires that the party seeking sanctions "follow a two-step procedure. First, the party must serve a notice of motion for sanctions on the offending party at least 30 days before filing the motion with the court, which specifically describes the sanctionable conduct. (Ibid.) Service of the motion on the offending party begins a 30-day safe harbor period during which the sanctions motion may not be filed with the court. (Ibid.) If the pleading is withdrawn [or dismissed], the motion for sanctions may not be filed with the court." [Citation.] If the pleading is not withdrawn, the motion for sanctions may then be filed. (Ibid.)" (Levy v. Blum (2001) 92 Cal. App. 4th 625, 637.)
The purpose of the 30-day safe harbor provision is to permit the "offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. [Citation.] This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request." (Malovec v. Hamrell, supra, 70 Cal. App. 4th at p. 441; see Hart v. Avetoom (2002) 95 Cal. App. 4th 410, 414-415 [sanctions improper where sanctions motion filed after case dismissed and motion filed was different from motion served; "new and improved" sanctions motion violated 30-day safe harbor requirement].)
Van Trees timely served the motion for sanctions and waited until the safe harbor period passed. Counsel for Banks was on notice that the action was frivolous and should be dismissed. Instead, he requested an extension, filed a first amended complaint, opposed the demurrer, and moved for relief from default and new trial after the trial court sustained the demurrer without leave to amend. The trial court found that the action was "completely unjustified and a shining example of a violation of 128.7. "
After Banks moved for new trial, the trial court misconstrued dicta, Cromwell v. Cummings, supra, 64 Cal. App. 4th Supp. 10, which states that "a request for sanctions under section 128.7 brought subsequent to judicial disposition of the improper pleading must be treated as untimely." (Id., at p. 13, fn. 2.) [97 Cal. App. 4th 954]
Thus, a sanctions motion challenging a complaint may not be brought following the sustaining of a demurrer without leave to amend. [Citation.] Nor may a sanctions motion challenging an amendment to a complaint to name Doe defendants be brought following the dismissal with prejudice of the fictitiously named defendants. [Citation.] Neither may a motion for sanctions for filing a bad faith or frivolous complaint be brought following the granting of a defendant's motion for summary judgment."
