Filed 8/26/26 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ARI LAW P.C., Plaintiff and Appellant, A173620 v. (San Mateo County AUTONATION.COM, INC., et al, Super. Ct. No. 23CIV03497)
Defendants and Respondents.
Ari Law P.C. appeals a sanctions order under Code of Civil Procedure sections 128.5 and 128.7.1 Under the safe harbor provisions in sections 128.5 and 128.7, the party moving for sanctions must first serve a copy of the notice and motion on the opposing party, which commences the safe harbor period. If the opposing party does not take corrective actions during this time, the moving party may then file the motion seeking sanctions. (§§ 128.5, subd. (f)(1)(B), 128.7, subd. (c)(1).)
Ari Law argues the trial court’s sanctions order must be reversed because the notice of motion was not in compliance with the statutory requirements of sections 128.5 and 128.7 where the served notice of motion included a different hearing date than the notice of motion filed with the court and did not allow sufficient time to observe the safe harbor period and comply with statutorily mandated notice provisions.
Further statutory references are to the Code of Civil Procedure, unless 1
otherwise stated.
2
We hold that the fact that the hearing was rescheduled for a later date, as reflected in the notice of motion that was filed with the trial court does not require reversing the court’s order where the motion served and subsequently filed were substantively the same and otherwise strictly satisfied the safe harbor provisions. We affirm.
BACKGROUND2
In May 2024, Ari Law filed its Second Amended Complaint alleging six causes of action: (1) breach of contract, (2) breach of express warranty, (3) breach of implied warranty, (4) unfair business practices, (5) fraud, and (6) violations of the Rosenthal Fair Debt Collection Practices Act against defendant and respondent BMW Financial Services NA, LLC (BMW FS), among various other defendants. This dispute arises out of a vehicle lease agreement. BMW FS filed a demurrer to the complaint which the court sustained as to counts 2, 3, and 6 without leave to amend.
In September 2024, Ari Law filed its Third Amended Complaint (TAC), which included all six causes of action alleged in the Second Amended Complaint. Between September and December 2024, counsel for BMW FS repeatedly attempted to get Ari Law to withdraw counts 2, 3, and 6, which should not have been refiled based on the court’s demurrer ruling. Ari Law refused. In November 2024, BMW FS filed a demurrer to the TAC. Subsequently, On December 17, 2024, BMW FS served Ari Law with a notice of motion and motion for sanctions pursuant to sections 128.5 and 128.7. The notice of motion provided a hearing date of January 17, 2025. The sanctions motion alleged, among other things, that Ari Law re-alleged
2 We limit the recitation of facts to those relevant to this appeal.
3
claims that were dismissed without leave to amend and refused to withdraw them.3 On January 15, 2025, BMW FS filed and again served the notice of motion and motion for sanctions. The January 15 notice of motion provided a hearing date of March 18, 2025.
On February 4, 2025, the trial court adopted its tentative ruling on the demurrer to the TAC which sustained the demurrer as to the causes of action that had been previously alleged and sustained without leave to amend.
On March 5, 2025, Ari Law filed an opposition to BMW FS’s motion for sanctions. Ari Law argued that the court lacked jurisdiction because the “notices of motion did not provide the date when the motion would be filed” rendering notice defective and failing to comply with the safe harbor provision. Ari Law also argued the merits of the sanctions motion.
A hearing on the sanctions motion was held on March 18, 2025. At the hearing, Ari Law raised the notice issue with the trial court, but the court dismissed this argument as “going nowhere” and stated that “notice was good. You were on notice.” Ari law proceeded to argue the merits of the motion. On April 10, 2025, the trial court entered a written order imposing monetary sanctions against Ari Law and its counsel in the amount of $29,055.4 On April 23, 2025, Ari Law filed a motion for reconsideration of the sanctions motion. On June 5, 2025, Ari Law filed the instant appeal. On June 17, 2025, the trial court denied the motion for reconsideration.
3 The court did not dismiss counts 2, 3, and 6. Rather, it sustained a
demurrer as to those counts without leave to amend.
4 Ari Law does not challenge the merits of the court’s order imposing
monetary sanctions.
4
In its order denying the motion for reconsideration, the trial court noted that in San Mateo County, a hearing date is not assigned until the motion is filed such that providing an accurate hearing date in the initially served notice on December 17, 2024, was infeasible.
DISCUSSION
I. Sanctions Motion Under Sections 128.5 and 128.7 “ ‘Section 128.5 authorizes sanctions for certain bad faith actions or tactics.’ [Citation.] Specifically, under section 128.5, a trial court may award ‘reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.’ (§ 128.5, subd. (a).)” (Zarate v. McDaniel (2023) 97 Cal.App.5th 484, 488–489.) “Relevant here, section 128.5, subdivision (f)(1)(B) is a safe harbor provision, which provides that where the challenged action . . . ‘can be withdrawn or appropriately corrected,’ a motion for sanctions cannot be filed with the court unless the challenged action has not been withdrawn or corrected ‘21 days after service of the [sanctions] motion or [within] any other period as the court may prescribe.’ ” (Id. at p. 489.)
Likewise, “[u]nder Code of Civil Procedure section 128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 339– 440.) The safe harbor provision in section 128.5 mirrors the safe harbor provision in section 128.7 and is therefore interpreted the same way. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1001–1005.) Because the
5
case law under section 128.7 is more developed, we focus our analysis on that section.
Here, Ari Law alleges the trial court erred in awarding sanctions because the sanctions motion did not comply with the procedural requirements of the safe harbor provisions of section 128.5 and 128.7. Specifically, Ari Law argues that the sanctions motion and notice of motion served by BMW FS was not the same as those filed with the court because the date of hearing provided on the originally served notice of motion differed from the date on the filed notice of motion. Similarly, Ari Law argues that the hearing date provided in the served notice of motion did not provide sufficient time to satisfy the 21 day safe harbor period and section 1005, which requires moving papers to be filed at least 16 court days before the hearing. We disagree.
The motion for sanctions was served on December 17, 2024, and noticed a January 17, 2025, hearing date. The motion was filed on January 15, 2025, after the safe harbor period had ended on January 13, 2025 (section 128.7, subd. (c)(1), 128.5, subd. (f)(1)(B) [requiring 21 days after service before filing], and 1010.6, subd. (a)(3)(B) [extending the time period after service by electronic means by two Court days]). That the filed motion noticed a later hearing date of March 18, 2025, does not eviscerate strict compliance with the safe harbor provisions. We therefore affirm the trial court’s sanctions order.5 “We generally review orders for monetary sanctions under the deferential abuse of discretion standard. [Citation.] However, the proper interpretation of a statute relied upon by the trial court as its authority to
5 Ari Law concedes that the second noticed hearing date of March 18
provided compliance with section 1005.
6
award sanctions is a question of law, which we review de novo.” (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698.)
“When construing a statute, our fundamental task is to ascertain the Legislature’s intent and effectuate the law’s purpose. [Citation.] To determine legislative intent, we principally look to the statute’s actual words. [Citation.] We scrutinize the words themselves, ascribing to them their plain and commonsense meaning, and we construe them in context of the entire statutory framework, harmonizing the various parts of the enactment. [Citation.] ‘If the language is clear, “ ‘its plain meaning controls’ ” ’ because we presume the Legislature meant what it said. [¶] ‘ “On the other hand, if the language allows more than one reasonable construction, we may look to such [extrinsic] aids as the legislative history of the measure and maxims of statutory construction.” ’ ” (Levy v. City and County of San Francisco (2025) 114 Cal.App.5th 997, 1012.)
Section 128.7, subdivision (c)(1) provides, as relevant here, “[a] motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” As relevant here, Section 1010 provides: “Notices must be in writing, and the notice of a motion . . . must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”
“Section 128.7 was adopted specifically to apply Federal Rules of Civil Procedure, Rule 11 [hereinafter rule 11], as amended in 1993, to cases
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brought on or after January 1, 1995. . . . . In addition, the “Notes of the Advisory Committee” for rule 11 were adopted as a statement of legislative intent for section 128.7.” (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 132 (Barnes).) As pertinent here, the Notes of the Advisory Committee state: “To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the ‘safe harbor’ period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion.” (Fed. Rules Civ. Proc., rule 11, Advisory Com. Notes, 1993 Amendment.)
The safe harbor provisions of section 128.5 and 128.7 and this legislative history have been interpreted to require a two-step procedure based on the plain language, legislative history, and federal precedent interpreting rule 11 of the Federal Rules of Civil Procedure (Rule 11). (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 550 (Transcon Financial); Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440–442.) “First, the ‘ “moving party must serve on the offending party a motion for sanctions.” ’ [Citation.] Service of the sanctions motion triggers the 21-day safe harbor period during which the moving party may not file the motion. [Citation.] That is because the offending party may avoid sanctions by withdrawing the challenged pleading during the 21-day period. [Citation.] Second, if the offending party does not withdraw the challenged pleading during that period, then the moving party may file the sanctions motion.” (Transcon Financial, at p. 550.)
California courts interpreting section 128.7, relying on the legislative history and federal case law interpreting Rule 11, have required strict
8
compliance with the safe harbor provisions. (See Transcon Financial, supra, 81 Cal.App.5th at p. 551.)
For example, in Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10 (Cromwell), the appellate division of the Superior Court considered whether a party’s letters to opposing counsel threatening unspecified sanctions under section 128.7, which were served on dates that would otherwise satisfy safe harbor, constituted substantial compliance with the safe harbor provision where the motion for sanctions was served only three days before it was filed with the court. (Id. at pp. 12–14.) The Cromwell court considered the legislative history and federal case law interpreting Rule 11 and found that “the central purpose of the ‘safe harbor’ provision is to provide an adequate opportunity for withdrawal (i.e., voluntary dismissal) without penalty once the impropriety of the pleading and the consequence of nonwithdrawal have been made clear. The provision was also intended to reduce the volume of sanctions litigation, to formalize due process considerations, and to reduce the chilling effect of potential sanctions awards. [Citation.] Correspondence to opposing counsel which threatens sanctions of an unknown nature at an unspecified time against unidentified persons, and which lacks citation to controlling authority, does not fulfill these statutory purposes.” (Id. at pp. 14–15.) Therefore, the court concluded that “[a]pplication of the doctrine of substantial compliance would be inconsistent with the plain language of the ‘safe harbor’ provision, which has been strictly construed as an absolute prerequisite to an award of sanctions under revised rule 11 of the Federal Rules of Civil Procedure. [Citation.] . . . . By specifically requiring service of the ‘motion’ and ‘notice of motion,’ the Legislature made clear that the papers to be served on the opposing party are the same papers which are to be filed with the court no less than [21] days later.” (Id. at p. 15, italics added.)
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Similarly, the Fifth District in Barnes considered whether section 128.7’s safe harbor provision was satisfied when the moving party served a motion for sanctions three months after judgment was entered in the case. (Barnes, supra, 74 Cal.App.4th at pp. 129, 131–135.) After examining the plain language, legislative history, and case law (state and federal) interpreting the safe harbor provision of section 128.7 and Rule 11, Barnes held that the moving party may not “serve and file the motion for sanctions after the conclusion of the case” where the opposing party could not take any action to avoid the imposition of sanctions because that “would defeat the purpose of the safe harbor provision.” (Barnes, at p. 135.) The Barnes court then considered whether informal notice that a party would seek sanctions substantially complied with the safe harbor provision. (Id. at p. 135.) Relying on Cromwell and the Advisory Committee Notes for Rule 11, Barnes held that “a formal noticed motion is necessary to comply with the statute” such that informal notice was insufficient to satisfy the safe harbor provision of section 128.7. (Id. at pp. 135–136.)
Following Cromwell and Barnes, the Fourth District in Hart v. Avetoom (2002) 95 Cal.App.4th 410, held that the sanctions motion served to begin the 21-day safe harbor period must be the same as the motion that is filed, and that the motion must be filed before the opposing party withdraws the improper pleading. (Id. at pp. 414–415.) There, the moving party served their sanctions motion and, after the safe harbor period expired, served and filed a “ ‘new and improved’ ” sanctions motion which “contained additional declarations and supplemental points and authorities not present in the original version.” (Id. at pp. 412–413, 414.) Moreover, the improved motion was filed after the opposing party voluntarily dismissed the lawsuit. (Id. at
10
pp. 414–415.) Thus, the court found that both issues were dispositive and reversed the order imposing sanctions. (Id. at p. 415.)
Additionally, the Second District in Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585 (Li) considered whether the safe harbor provision of section 128.7 was satisfied where the moving party served its sanctions motion 19 days before the trial court heard and decided the motion that was the basis for the sanctions motion. (Li, at pp. 588–589, 591.) After considering the plain language of section 128.7, its “remedial purpose,” and state and federal case law requiring strict compliance with its safe harbor provision, the court held that “the safe harbor period is mandatory and the full 21 days must be provided absent a court order shortening that time if sanctions are to be awarded.” (Id. at pp. 591–595.)
We agree with these cases that the safe harbor provision of section 128.7 requires strict compliance in order to afford a litigant an adequate opportunity to withdraw an offending pleading without penalty once the impropriety of the pleading has been made clear. However, as we explain more fully below, we respectfully disagree with two cases from the Second District that extend application of strict compliance of section 128.7’s safe harbor provisions to include the notice provisions in section 1010.
In Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535 (Galleria Plus), the Second District extended the application of strict compliance with section 128.7’s safe harbor provisions to include the notice provisions in section 1010. There, the court considered whether a motion for sanctions satisfied the safe harbor provision of section 128.7 where the notice of motion did not specify when the motion would be heard. (Id. at pp. 537– 538.) The court noted that the notice of motion stated that the motion would come on for hearing “ ‘on AAA at BBB’ ” while also stating that the motion
11
could not be filed until 21 days after it had been served and identifying the specific date on or after which it could be filed. (Id. at p. 538.) The moving party waited more than 21 days before filing and serving a motion for sanctions which specified a date on which the hearing would be held. (Ibid.) The Galleria Plus court first noted that section 128.7 was designed to be remedial and stated that “[s]trict compliance with the statute’s notice provisions serves its remedial purpose and underscores the seriousness of a motion for sanctions,” citing Li, Barnes, and Cromwell. (Id. at p. 538.) Then, the court noted that section 128.7’s incorporation of section 1010 was compulsory such that the initial notice’s failure to specify when the motion would be made “render[ed] it fatally defective.” (Ibid., citing Bohn v. Bohn (1913) 164 Cal. 532, 536 (Bohn) and Cal. Rules of Court, rule 3.1110(b)(1).) Having found the first notice defective, the court held that the second notice of motion, which was served and filed on the same day, did not comply with the safe harbor provision of section 128.7. (Galleria Plus, at p. 538.)
Recently, the Second District in J.N. v. Goldberg (2026) 120 Cal.App.5th 544 (J.N.) endorsed the holding in Galleria Plus. The facts in J.N. are strikingly similar to those before us. There, the defendant moved for section 128.7 sanctions by serving the plaintiff with a notice of motion that did not specify a date and time for the hearing due to the trial court’s court reservation system. (Id. at pp. 547–548.) After the 21-day safe harbor period expired, the moving party served an updated notice of motion, specifying a hearing date, and filed the motion on the same day. (Id. at p. 548.) Relying on Galleria Plus, the J.N. court held that the moving party failed to comply with the notice and safe harbor provision of section 128.7 where the date and
12
time on the original motion was left blank, “triggering” a “fatal flaw.” (Id. at pp. 549–550.)6 Ari Law contends that the original served notice of motion must have specified the exact hearing date because section 1010 provides that the notice of motion “must state when . . . it will be made” and Galleria Plus found that a notice indicating the motion for sanctions would be heard “ ‘on AAA at BBB’ ” failed to specify when the motion would be made and, therefore, was fatally defective. (Galleria Plus, supra, 179 Cal.App.4th at p. 538.)
We respectfully disagree with the holdings in Galleria Plus and J.N.
First, we believe that Galleria Plus’s statement that “[s]trict compliance with the statute’s notice provisions serves its remedial purpose and underscores the seriousness of a motion for sanctions” is inaccurate. (Galleria Plus, supra, 179 Cal.App.4th at p. 538.) As we described above, Li, Barnes, and Cromwell stand for the proposition that section 128.7’s safe harbor provisions require strict compliance—not the notice provision of section 1010. Both Cromwell and Barnes held that informal notice did not satisfy section 128.7’s safe harbor provision because it required a formal motion to begin the 21-day safe harbor period. (Cromwell, supra, 65 Cal.App.4th Supp. at p. 15; Barnes, supra, 74 Cal.App.4th at pp. 135–136.) Li held that the safe harbor provision requires strict compliance for providing the full 21 days. (Li, supra, 177
6 J.N. went on to suggest that the moving party file an ex parte motion
to request the trial court waive the timing restrictions applicable to e-filed motions and allow them to set a date for a hearing to comply with the safe harbor provisions of section 128.7. (J.N., supra, 120 Cal.App.5th at p. 550.) However, requiring a moving party to file an additional ex parte motion in order to comply with the safe harbor provision increases the volume of sanctions litigation, contrary to one of the purposes of section 128.7. (See Cromwell, supra, 65 Cal.App.4th Supp. at p. 15.)
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Cal.App.4th at pp. 591–595.) None of these cases relied on or analyzed section 1010 in reaching their holdings.
Second, we note that Galleria Plus also cited California Rules of Court, Rule 3.1110(b)(1) (Rule 3.1110(b)(1)) to support its position that failure to include a date in the notice of motion rendered it fatally defective. (Galleria Plus, supra, 179 Cal.App.4th at p. 538.) Yet, Rule 3.1110(b)(1) states that the “first page of each paper must specify immediately below the number of the case: [¶] the date, time, and location, if ascertainable, of any scheduled hearing.” (Italics added.) Where, as here, local court rules do not permit a party to schedule a hearing before the time a motion for sanctions must be served, there is no “scheduled hearing” to which a party may specify a date, time, and location.
Third, we believe that a failure to include when the sanctions motion will in fact be heard does not render a notice of motion under section 1010 “fatally defective.” We agree that section 128.7’s plain language clearly incorporates and requires compliance with section 1010. We disagree, however, that the legislative history and case law interpreting section 128.7 require strict compliance with the notice provisions of section 1010, particularly where the trial court’s procedure for scheduling hearings makes strict compliance with section 1010 impossible in the absence of an ex parte request to obtain a hearing date before filing the motion.
Finally, since J.N. relied on Galleria Plus, we find it unpersuasive for the reasons stated above.
As identified above, section 128.7’s safe harbor provision’s central purpose is to provide an adequate opportunity for withdrawal of the complained of pleading without penalty, with the additional purpose of reducing the volume of sanctions litigation, formalizing due process concerns,
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and reducing the chilling effect of potential sanctions awards. (Cromwell, supra, 65 Cal.App.4th Supp at pp. 14–15.) As noted in Cromwell, the Advisory Committee Notes on Rule 11 state: “ ‘To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the ‘safe harbor’ period begins to run only upon service of the motion.’ ” (Id. at p. 15.) “By specifically requiring service of the ‘motion’ and ‘notice of motion,’ the Legislature made clear that the papers to be served on the opposing party are the same papers which are to be filed with the court no less than [21] days later.” (Ibid., italics added.) Thus, “[c]orrespondence to opposing counsel which threatens sanctions of an unknown nature at an unspecified time against unidentified persons, and which lacks citation to controlling authority, does not fulfill these statutory purposes.” (Ibid.)
Here, Ari Law does not contend that the motion itself changed such as in Hart v. Avetoom, supra, 95 Cal.App.4th 410. The only difference between the served and the filed notice of motion is the hearing date; the substance of the motion remained the same. Also, Ari Law does not contend that the motion was filed before the expiration of the safe harbor period measured from the service of the original notice of motion and motion. Therefore, Ari Law was aware of the precise conduct claimed to violate the statute and had the full benefit of the safe harbor period to withdraw the pleading. We believe this satisfies the safe harbor provision’s statutory purposes.
The safe harbor period “is not a notice period. . . . . It defines when the target of a sanctions motion can act without penalty and withdraw an objectional document.” (Broadcast Music, Inc. v. Structured Asset Sales, LLC (2022) 75 Cal.App.5th 596, 606.) While the safe harbor provision does “formaliz[e] due process considerations,” (Cromwell, supra, 65 Cal.App.4th
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Supp. at p. 15) strict compliance with the imported notice provisions of section 1010 is not necessary to fulfill the statutory purpose of the safe harbor provision. Therefore, we find that the notice provided under section 1010 should be interpreted as it ordinarily would.7 Indeed, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 (Carlton); see De Luca v. Board of Supervisors (1955) 134 Cal.App.2d 606, 609 [“The general rule is that one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of the alleged insufficiency of the notice; it has in such instance served its purpose”].)
“To preserve a claim to defective notice of a motion or other hearing, the objection must be raised at the earliest opportunity and accompanied by
7 We do not think the requirement in section 1010 was intended to
prevent moving parties from continuing the hearing to a later date as there appears to be no harm in giving the nonmoving parties more time. We also note that it is not unusual for motions to be heard subsequent to the date set forth in the initial moving papers. That said, we note that the placeholder hearing date on the motion here—January 17, 2025—would not have complied with the time requirements of section 1005, subdivision (b) based on when the motion could have been filed after expiration of the safe harbor. The fact that local court rules or procedures may prevent a party from obtaining a hearing date at the time the motion for sanctions must be served does not warrant the inclusion of a placeholder hearing date that fails to satisfy statutory requirements.
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some indication of prejudice.” (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13.) Even if a party timely asserts an objection to a motion based on defective notice, the party must also show prejudice resulting from the defective notice. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289; Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40 [“Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error”].)
This is consistent with Bohn, as cited in Galleria Plus. (Galleria Plus, supra, 179 Cal.App.4th at p. 538.) There, the California Supreme Court ordered a hearing in bank after an opinion was issued in a department. (Bohn, supra, 164 Cal. at p. 533.) In the original opinion, the Court upheld the trial court’s denial of a motion for transfer the case to another county where the formal motion was “radically defective” because it “did not state any time when the motion would be made or brought for hearing.” (Id. at pp. 534–537.) In bank, however, the Court noted that “[t]here are several decisions to the effect that want of proper notice of a motion is waived where the opposing party appears and contests the motion. [Citations.] ‘Where the object of notice was accomplished,’ . . . ‘it is immaterial whether there was notice or not.’ But, in all the cases in which this rule was applied, the party entitled to notice had appeared and contested the motion on the merits.” (Id. at p. 538.) The Bohn court then clarified that “[w]here the appearance in opposition to a motion is limited” to objection on the grounds of the insufficiency of notice and plaintiff made no opposition on the merits, such appearance “does not constitute a waiver.” (Id. at pp. 538–539.)
Here, Ari Law did oppose the sanctions motion by arguing that the safe harbor was not provided due to a defective notice. However, Ari Law’s opposition did not argue that it was prejudiced by the defective notice and did
17
argue the merits of the sanctions motion. Moreover, Ari Law appeared at the hearing and opposed the motion on the merits. Thus, Ari Law waived any defects or irregularities in the notice of motion and cannot complain on appeal that notice was deficient. II. Request for Sanctions on Appeal BMW FS seeks sanctions against Ari Law for filing a frivolous appeal under section 907 and California Rules of Court, rule 8.276. Section 907 authorizes an award of monetary sanctions on appeal “[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay.” (California Rules of Court, rule 8.276(a)(1), (4) [authorizing sanctions for “[t]aking a frivolous appeal or appealing solely to cause delay,” or for “[c]ommitting any other unreasonable violation of these rules”].) An appeal that is prosecuted for an improper motive—to harass the other side or to delay the effect of an adverse judgment—or that any reasonable attorney would agree is totally and completely without merit will support an award of sanctions on appeal. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649– 650.) “An unsuccessful appeal, however, ‘ “should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law.” ’ ” (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 556–557.)
Here we find that Ari Law’s appeal was not frivolous or solely to cause delay. While the appeal was ultimately unsuccessful, the issue raised by Ari Law was not without merit based on the published case law in Galleria Plus and J.N.
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DISPOSITION
The order awarding sanctions is affirmed. BMW FS’s motion for sanctions on appeal is denied. BMW FS shall recover their costs on appeal.
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_________________________
Sweet, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Goldman, J.
A173620/ARI Law PC v. Autonation.com
* Judge of the Superior Court of California, County of Marin, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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ARI Law v. Autonation.com (A173620)
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Nancy Fineman
Attorneys: Law Offices of Lee B. Ackerman, Lee Barry Ackerman for Appellant.
Amir Defense Group, Abtin Amir, Vanessa Silvina Vittorio, Jon C. Abramson, and Christine Marie Ascher for Respondent.