Even Though There Was No Time To Give The Safe Harbor Notice, Party Seeking Sanctions Needed To Ask For A Continuance Of The Motion Which Was Target Of Sanctions.
In Junkers2Jewels, LLC v. McClaney, Case No. B339900 (2d Dist., Div. 1 May 28, 2025) (unpublished), which was factually dependent, the appellate panel affirmed a lower court’s order denying a CCP § 128.5 sanctions request based on failure to satisfy the safe harbor provision. However, it is interesting with respect to guiding litigators on how to “tee up” such a motion where an underlying motion (outside of the SLAPP context) makes it difficult or impractical to serve and then file under the 128.5 standards.
The target motion for sanctions was a motion for specific performance in a case which was set fairly quickly for hearing. The other side obviously wanted to bring a 128.5 sanctions motion, not to mention one for a later reconsideration request. Ultimately, the underlying motions were denied, but the lower court denied the sanctions request for failure to comply with the 21-day safe harbor provision.
The 2/1 DCA affirmed the denial of the sanctions request. The defense principally argued that it was impractical to give safe harbor notice, relying on a SLAPP case to that effect, Changsha Metro Group Co., Ltd. v. Zufeng, 57 Cal.App.5th 1 (2020). The panel had no problem distinguishing Changsha based on its SLAPP context, and then it observed that nothing prevented the defense from asking for a continuance of the putative sanctionable motion to go down the 128.5 path. The 2/1 panel believed it could enforce the 128.5 “bright line” safe harbor provision outside of the SLAPP context.
BLOG OBSERVATION—This is an interesting decision. It suggests, outside of the SLAPP context with very strict requirements, that a party wishing to “tee up” a 128.5 sanctions motion might be able to get a continuance of the underlying motion to present the sanctions motion. However, the appellate court was providing only a continuance option, which is a discretionary exercise by an assigned judge to a case. What if the lower court does not grant the continuance request—how does that factor into the mix of things? Interesting dynamic all around, so we will see what other courts decide here.