Second District, Division 7 Requires Compliance By the Numbers.
Martorana v. Marlin & Saltzman, Case No. B209863 (2d Dist., Div. 7 July 1, 2009) (certified for publication) involved a plaintiff wage/hour class member that brought an independent action against defendant Allstate and class counsel alleging negligence in the claim filing process. Allstate’s and class counsel’s demurrers were sustained without leave to amend, with the trial court also awarding Code of Civil Procedure section 128.7 sanctions of $4,800 against plaintiff based on a request for sanctions contained in Allstate’s demurrer papers.
The 128.7 sanctions order was reversed.
Allstate did not satisfy the requirement that the 128.7 sanctions request be made within 21 days before filing a separate motion to recover the sanctions. Instead, Allstate included it in the demurrer to the original complaint, which was not compliant with section 128.7’s requirement that the motion be made separately from other motions and not filed with the court. Allstate’s main counterargument was that it sent a prior attorney letter about sanctions, which sufficed to diffuse any prejudice. “Get outta here” said the Court of Appeal; a letter stating an intent to seek sanctions does not comply with section 128.7. (Slip Opn., at p. 15.)
Safe Harbor Electric Dam. c.1920-1950. Theodor Horydczak, photographer. Library of Congress.