Reported / Citable
Background
Ari Law sued BMW Financial Services and others over a vehicle lease. After the trial court sustained BMW Financial Services’ demurrer to three claims without leave to amend, Ari Law filed another complaint that repeated those same claims. Defense counsel repeatedly asked the firm to withdraw them, but it refused.
BMW Financial Services then served a sanctions motion under Code of Civil Procedure sections 128.5 and 128.7. Those statutes provide a safe harbor: the proposed motion must be served before filing so the opposing party has at least 21 days to withdraw or correct the challenged paper. The served notice listed a January 17 hearing. After the safe-harbor period expired, the defense filed the substantively identical motion with a March 18 hearing date assigned under San Mateo County’s scheduling process. The trial court imposed $29,055 in sanctions against Ari Law and its counsel.
The Court’s Holding
The First District affirmed. Strict compliance with the safe-harbor statutes required advance service of the sanctions motion and an opportunity to correct the challenged pleading before filing. Those requirements were met: Ari Law received the motion on December 17, the statutory period expired on January 13 after accounting for electronic service, and the motion was not filed until January 15. The served and filed papers sought sanctions on the same substantive grounds.
The later hearing date did not restart or invalidate the safe harbor. The court distinguished cases in which the filed motion materially differed from the version served. A hearing date is procedural rather than a substantive basis for sanctions, and San Mateo County did not assign the actual date until filing. The later date also gave Ari Law more time to oppose the motion and satisfied the separate 16-court-day notice rule. Because Ari Law had a genuine chance to withdraw the repeated claims, the statutory purpose was fulfilled.
Key Takeaways
- A sanctions movant must serve the motion and wait through the full statutory safe-harbor period before filing it.
- A court-assigned hearing date that differs from the date on the served notice does not invalidate an otherwise identical sanctions motion.
- The filed motion must remain substantively the same as the motion served; material changes can still defeat strict compliance.
- Repleading claims after a demurrer has been sustained without leave to amend can expose both counsel and client to substantial monetary sanctions.
Why It Matters
The decision gives California litigators practical guidance in counties where a final hearing date cannot be obtained until a motion is filed. Counsel may serve a complete sanctions motion to start the safe harbor and later use the court-assigned hearing date, provided the grounds and requested relief do not materially change and all timing rules are honored.
The ruling does not relax the statutory safe harbor. Movants should document service, calculate extensions carefully, and avoid revising the substance of the motion after service. Recipients should use the correction period rather than rely on a scheduling discrepancy that causes no loss of notice or opportunity to withdraw.