CCP §128.7: An Illusory Deterrent
LACBA Update, December 2001

By Paul D. Hesse, member, LACBA Professional Responsibility and Ethics Committee. Hesse is a partner with the law firm of Arter & Hadden; Professor of Professional Responsibility and Ethics at SFC College of Law; and represents lawyers in legal malpractice action. The opinions expressed are his own.

In cases filed after 1994, an attorney who presents a "pleading, petition, written notice of motion, or other similar paper" to the court makes an implied "certification" as to its legal and factual merit and is subject to sanctions for violation of this certification. CCP §128.7. 

A party seeking sanctions must first serve a sanctions motion on the offending party but must not file the motion for 30 days. During this 30-day "safe harbor" period, the offending party may withdraw the challenged paper, and the sanctions motion must not be filed. Strict compliance with the 30-day safe harbor period is an absolute prerequisite to an award of sanctions. Cromwell v. Wilner, 65 Cal.App.4th Supp. 10, 15 (1998). 

On January 1, 2003, the statute will be automatically repealed unless a later enacted statute deletes or extends the repeal date. C.C.P. §128.7(j). 

As discussed herein, §128.7 is illusory and should not be reenacted in its present form.

A motion is the garden variety paper expressly sanctionable under §128.7. But a frivolous motion actually is immune from sanctions under §128.7. The point is best illustrated by a hypothetical. Suppose plaintiff files a frivolous motion on October 22, 2001. Under CCP §1005(b), "all moving and supporting papers shall be served and filed at least 21 days before the hearing," plus five more days if served by mail. Therefore, the hearing date for a motion served by mail October 22 is Monday, November 19. Even if defendant acts extraordinarily quickly by serving its sanctions motion on October 24, plaintiff still does not have 30 days to withdraw its motion before it is heard on November 19. Note that the sanctions motion must be filed 21 days before it will be heard. Thus, the sanctions motion must be served 51 days before the hearing on it: 30 days before it’s filed plus 21 days before it’s heard. See Cromwell, 65 Cal.App.4th Supp. at 13, fn. 3.

Under these circumstances, it is a legal impossibility for defendant to seek sanctions under §128.7. That is, the court will have heard and denied the frivolous motion well before the 30-day safe harbor period expires. Thus, plaintiff did not get the required 30-day safe harbor and is immune from §128.7 sanctions. CCP §128.7(c)(1). The 30-day safe harbor of §128.7 simply cannot be reconciled with the time standards for motions. At bottom, as far as § 128.7 is concerned, frivolous motions can be filed with impunity!

The same result obtains in federal court under FRCP 11. Rule 11 contains virtually the same safe harbor provisions as §128.7, except the federal safe harbor period is 21 days. By enacting §128.7, the California legislature intended to incorporate Rule 11 into California law. Goodstone v. Southwest Airlines, 63 Cal.App.4th 406, 422 (1998). 

Notably, only one federal court has indicated it might depart from the strict construction standard on the right facts. Powell v. Squire, Sanders & Dempsey,  990 F.Supp. 541 (S.D. Ohio 1998) (stating it was "disinclined to give an overly literal reading to the language...or to apply the language to a situation where it is clearly inapplicable and unnecessary to further the purpose [of the Rule]"). Id. at 545. 

Powell is an aberration and is not reliable precedent in or out of California. 

At present, Rule 11 seems as illusory as §128.7.

NOTE: County Bar Update published "CCP §128.7: An Illusory Deterrent" by Paul D. Hesse, member, LACBA Professional Responsibility & Ethics Committee, and partner with the firm of Arter & Hadden, in the December 2001 issue. Peter Appleton of Peter M. Appleton, A Law Corporation, wrote in the February 2002 issue of County Bar Update, "Mr. Hesse's article on CCP §128.7 failed to discuss one very important aspect to Section 128.7, namely, that the ‘safe harbor’ is 30 days ‘or such other period as the court may prescribe.’ Thus, in the situation Mr. Hesse describes, a party should apply ex parte to the court for order shortening the 30 day period."