California Appellate Tracker

CPF Vaseo Associates, LLC v. Gray

January 29, 2019

A sanctions motion under either CCP 128.5 & 128.7 must be served on the party from whom sanctions are sought at least 21 days before the motion is filed in court in order to give that party time to rectify the allegedly sanctionable conduct.

The court that originally decided San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306 disowns that decision in light of Nutrition Distribution, LLC v. Southern Sarms, Inc. (2018) 20 Cal.App.5th 117 and the 2017 amendment to CCP 128.5 to clarify that a 21-day safe harbor is required under CCP 128.5 as it is under CCP 128.7. A sanctions motion under either section must be served on the party from whom sanctions are sought at least 21 days before the motion is filed in court in order to give that party time to rectify the allegedly sanctionable conduct. Substantial compliance with the safe harbor provision is insufficient. Exact compliance is required. And in this particular case there were things the sanctioned party could have done to correct its error, if given the time, so the failure to serve prior to filing was not harmless. Sanctions reversed.

California Court of Appeal, Fourth District, Division 1 (Dato, J.); December 6, 2018; 29 Cal. App. 5th 997

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CPF Vaseo Associates, LLC v. Gray

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