Second District Departs Company With Contrary Result In San Diegans for Open Government.
San Diegans for Open Government v. San Diego, 247 Cal.App.4th 1306, 1317 (2016) [reviewed in our June 9, 2016 post] held that a party filing a CCP § 128.5 sanctions motion does not need to comply with the safe harbor waiting period described in section 128.7(c)(1).
We can now report that the Second District, Division 7, has expressly departed company with this view in Nutrition Distribution, LLC v. Southern SARMs, Case No. B280983 (2d Dist., Div. 7 Jan. 31, 2018) (published). That led the appellate court to affirm a trial judge’s denial of sanctions based on moving party’s failure to satisfy section 128.7’s “safe harbor” protection where the motion for sanctions was based on a purportedly frivolous complaint, written motion or court filing that could be withdrawn or on some other alleged action or tactic that could be appropriately corrected.