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Malovec v. Hamrell3/1/1999
not be filed with the court. If the pleading is not withdrawn during the safe harbor period, the motion for sanctions may then be filed. Pursuant to section 128.7, the trial court must follow a similar two-step procedure. The trial court may issue an order to show cause as to why sanctions should not be imposed and set the matter for a hearing at least 30 days after service of the order. The offending party may withdraw the improper pleading during this 30-day period. If the improper pleading is withdrawn, sanctions may not be imposed. If the improper pleading is not withdrawn, the offending party responds to the order to show cause, a hearing is held, and sanctions may be imposed.
The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Ridder v. City of Springfield (6th Cir. 1997) 109 F.3d 288, 294.) This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request. " anctions under section 128.7 are not designed to be punitive in nature but rather to promote compliance with statutory standards of conduct." (Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 14.)
In order to effectuate the safe harbor provisions, a party may not bring a motion for sanctions unless there is some action the offending party may take to withdraw the improper pleading. (Ridder v. City of Springfield, supra, 109 F.3d at p. 295.) A sanctions motion may not be brought after the Conclusion of the case or a dispositive ruling on the improper pleading. (Ibid.) Thus, a sanctions motion challenging a complaint may not be brought following the sustaining of a demurrer without leave to amend. (Cromwell v. Cummings, supra, 65 Cal.App.4th Supp. at p. 13.) Nor may a sanctions motion challenging an amendment to a complaint to name Doe defendants be brought following the dismissal with prejudice of the fictitiously named defendants. (Goodstone v. Southwest Airlines, supra, 63 Cal.App.4th at p. 424.) Neither may a motion for sanctions for filing a bad faith or frivolous complaint be brought following the granting of a defendant's motion for summary judgment. "Nonetheless, the . . . Judge found and [defendant] argues that the `safe harbor' provision is rendered a mere `empty formality' when a motion for sanctions comes after summary judgment has been granted. We fully agree with that observation. By virtue of its nature, the `safe harbor' provision cannot have any effect if the court has already rendered its judgment in the case; it is too late for the offending party to withdraw the challenged [pleading]. Given the futility of the `safe harbor' provision in this context, [defendant] deduces that compliance is unnecessary. This is where we depart from [defendant's] logic. Rather than excusing [defendant's] noncompliance, we instead hold that [defendant] has given up the opportunity to receive an award of [section 128.7] sanctions in this case by waiting to file the motion until after the entry of summary judgment. As stated above, a motion for sanctions under [section 128.7] must be served on the offending party for a period of `safe harbor' at least days prior to the entry of final judgment or judicial rejection of the offending contention. A party seeking sanctions must leave sufficient opportunity for the opposing party to choose whether to withdraw or cure the offense voluntarily before the court disposes of the challenged contention." (Ridder v. City of Springfield, supra, 109 F.3d at pp. 296-297.) Applicability of Safe Harbor Period to Motions by the Court
The law is well settled that the saf
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