Although Unpublished, Does Tell Lower Courts You Have To Calendar and Reserve a Date Even If the Motion Is Unfiled And Potentially Never Heard.
This next case, although unpublished, is very interesting, and it will see how it pans out for practitioners and superior courts as far as calendaring/scheduling/reserving dates for motions, given that CCP § 128.7 sanctions motions under the “safe harbor” provision are served but not filed until much later.
International Marketing Enterprises, LLC v. Biofilm, Inc., Case No. D064139 (4th Dist., Div. 1 Mar. 5, 2014) (unpublished) fell right within the wheel well of Galleria Plus, Inc. v. Hanmi Bank, 179 Cal.App.4th 535 (2009) [reviewed in our Nov. 20, 2009 post], where the Second District found 128.7 sanctions violated the “safe harbor” 21 day requirement when the facts showed that the unfiled “safe harbor” motion did not set a definitive hearing date. This case, too, fell within that factual pattern and resulted in a lower court’s reversal of a $143,435.13 sanctions award even though the facts were not good for appellant as far as the litigation activity. However, we all know that important procedural requirements can trump things, just the case here.
The 4/1 DCA followed Galleria, no ifs, ands, and buts. The appellate court rejected the idea that Galleria was wrongly decided. However, it did recognize that there were some implementation hurdles—how is a superior court going to reserve a hearing for an unfiled motion, especially given that many superior courts require a reservation date and filing within a short time after the date with an actual motion? The appellate court basically said “you gotta file it” superior court clerks. “As such, every San Diego Superior Court must allow litigants to comply with section 128.7. This will require providing a hearing date for a motion for sanctions, but not mandating that the moving party file the motion with the court until the expiration of the safe harbor provision.” (Slip Opn., p. 16.)
So, there you go superior courts, you have to calendar an unfiled 128.7 motion no matter whether it is ever filed. Sounds to us that the Legislature may need to tinker with this issue to avoid practitioner/superior court calendaring confusion.