Nutrition Distribution, LLC v. Southern Sarms, Inc.

Code of Civil Procedure section 128.51

authorizes a trial

court to award sanctions for bad faith actions or tactics that are

frivolous or solely intended to cause delay. Pursuant to former

subdivision (f) of section 128.5, effective from January 1, 2015

until amended by urgency legislation enacted August 7, 2017

(former subdivision (f)), any such sanctions had to be imposed

“consistently with the standards, conditions, and procedures set

forth in subdivisions (c),(d), and (h) of Section 128.7.”

Ruling that former subdivision (f) incorporated the 21-day

safe harbor notice-and-waiting period of section 128.7,

subdivision (c)(1), the trial court denied Southern SARMs Inc.’s

postjudgment motion for sanctions against Nutrition

Distribution, LLC because Southern SARMs had failed to give

Nutrition Distribution the required notice. We affirm. As

reflected in the plain language and legislative history of former

subdivision (f), and confirmed by the August 2017 amendments to

that provision, a 21-day waiting period applies to a motion for

sanctions under section 128.5 that, as here, is directed to

allegedly improper actions or tactics that can be withdrawn or

appropriately corrected.

FACTUAL AND PROCEDURAL BACKGROUND

1. Nutrition Distribution’s Pleadings

In a complaint filed in April 2016 Nutrition Distribution,

LLC, dba Athletic Xtreme, a manufacturer and marketer of

nutritional supplements, sued Southern SARMs, a competing

nutritional supplement company, for unfair competition (Bus. &



1

Statutory references are to this code unless otherwise

stated.

3

Prof. Code, § 17200 et seq.) and false advertising (Bus. & Prof.

Code, § 17500 et seq.). Nutrition Distribution alleged Southern

SARMs had misbranded and unlawfully marketed its product

(MK-2866) Ostarine, which contained as its active ingredient a

selective androgen receptor modulator (SARM). According to

Nutrition Distribution’s pleading, “SARMs, like Defendant’s

Ostarine Product, are synthetic drugs with similar effects to

illegal anabolic steroids.” Specifically, Nutrition Distribution

alleged, although Southern SARMs labeled its product as not

intended to treat, cure or diagnose any condition or disease and

not for human consumption, it simultaneously marketed the

product on its website and otherwise as a new miracle dietary

supplement to bodybuilders and other competitive athletes to

enhance their physiques, promising, for example, lean mass

increase and accelerated fat loss in an easy-to-dose oral form.

According to Nutrition Distribution, Southern SARMs also

misrepresented that its Ostarine product affords similar benefits

to testosterone and other anabolic steroids without the negative

side effects.

As remedies for these alleged violations of the unfair

competition and false advertising laws, Nutrition Distribution

sought compensatory damages, profits earned by Southern

SARMs from its misleading marketing practices, restitution of all

of Southern SARMs’s “ill-gotten gains,” preliminary and

permanent injunctive relief prohibiting Sothern SARMs from

producing, licensing, marketing and selling not only its Ostarine

product but also any other product containing selective androgen

receptor modulators, and attorney fees.

After the parties met and conferred to discuss Southern

SARMs’s contemplated motion to strike and demurrer to the

4

complaint, Nutrition Distribution filed a first amended

complaint, which contained the same two causes of action and

still requested Southern SARMs’s profits, restitution of its

purportedly ill-gotten gains and the broad preliminary and

permanent injunctive relief set forth in the original complaint.

The amended pleading, however, deleted the prayer for

compensatory damages and attorney fees. It also omitted

allegations that Southern SARMs’s marketing of its Ostarine

product without any label statements on its packages or

containers violated the federal Food, Drug, and Cosmetic Act,

averring instead that the product was currently under

investigation by the Food and Drug Administration as a new

pharmaceutical drug.

2. Southern SARMs’s Demurrer and the Trial Court’s

Ruling

Southern SARMs demurred to the first amended complaint,

arguing Nutrition Distribution was not entitled to any of the

relief it had demanded. First, as to its request for a monetary

recovery, Southern SARMs asserted that Nutrition Distribution

was seeking standard tort damages, which are not recoverable in

an action for unfair competition or false advertising. Nutrition

Distribution was not entitled to restitution or restitutionary

disgorgement, which are ordinarily available remedies, Southern

SARMs contended, because it had failed to allege Southern

SARMs had wrongfully acquired money or property in which

Nutrition Distribution had a vested interest. Second, as to the

prayer for injunctive relief, Southern SARMs argued the request

by Nutrition Distribution was overly broad, seeking a wholesale

proscription of Southern SARMs’s production, marketing or sales

of any product containing selective androgen receptor modulators

5

rather than prohibiting the allegedly false or misleading

advertising of Ostarine. In the absence of a right to the relief

sought, Southern SARMs contended, Nutrition Distribution had

failed to plead viable causes of action.

The final section of Southern SARMs’s memorandum of

points and authorities in support of its demurrer argued that

Nutrition Distribution’s assertion of frivolous claims and bad

faith conduct warranted imposition of sanctions pursuant to

sections 128.5 and 128.7, subdivision (c)(2). Counsel for Southern

SARMs insisted he had repeatedly pointed out that Nutrition

Distribution was not entitled to the relief it sought and its

pleadings were therefore legally insufficient. Accordingly, in

addition to sustaining its demurrer in its entirety, Southern

SARMs requested that the court issue an order to show cause to

Nutrition Distribution and its counsel as to why sanctions should

not be awarded.

After full briefing and oral argument, the court sustained

Southern SARMs’s demurrer without leave to amend.2

No

minute order reflecting that ruling or the court’s reasoning is

included in the record on appeal, and no reporter’s transcript of

the hearing has been provided. However, the notice of ruling

prepared by counsel for Southern SARMs includes the following

statement, “The Court denied Defendant’s request for sanctions

but indicated that Defendant could file a separate motion for

sanctions if Defendant chooses.” A judgment and order of

dismissal was entered on September 15, 2016.



2

The court at the same hearing denied Nutrition

Distribution’s motion for a preliminary injunction and denied

Southern SARMs’s motion to strike as moot.

6

3. Nutrition Distribution’s Appeal of the Judgment

Nutrition Distribution appealed the order of dismissal. We

affirmed, holding Nutrition Distribution had failed to allege facts

that would entitle it to restitution under the unfair competition

or false advertising laws or that would justify the broad

injunctive relief it sought prohibiting all production and sales of

any product containing selective androgen receptor modulators.

(Nutrition Distribution, LLC v. Southern SARMs, Inc. (Nov. 28,

2017, B278132).)

4. Southern SARMs’s Postjudgment Motion for Sanctions

On November 17, 2016, more than six weeks after

Nutrition Distribution had filed its notice of appeal, Southern

SARMs moved for sanctions pursuant to section 128.5 against

Nutrition Distribution and its counsel.3

As grounds for sanctions

Southern SARMs argued Nutrition Distribution had filed its

complaint without pleading facts demonstrating its entitlement

to the relief sought and, notwithstanding Southern SARMs’s

attempts to meet and confer in good faith, Nutrition Distribution

persisted in including the same unwarranted requests in its first

amended complaint. Southern SARMs also explained that

Nutrition Distribution had filed a series of similar frivolous

lawsuits across the country, demonstrating its intent to drive its

competitor out of business. In addition, Southern SARMs’s

counsel complained that Nutrition Distribution’s lawyer had

repeatedly insulted him and called him unethical. In discussing



3

Southern SARMs requested “at least $26,089.50” in

attorney fees and costs incurred as a result of the alleged

misconduct of Nutrition Distribution and its lawyers.

7

the standards for an award of sanctions under section 128.5 in its

memorandum in support of the motion, Southern SARMs quoted

San Diegans for Open Government v. San Diego (2016)

247 Cal.App.4th 1306, 1317 (San Diegans for Open Government),

which had held, “[A] party filing a sanctions motion under

section 128.5 does not need to comply with the safe harbor

waiting period described in section 128.7, subdivision (c)(1).”

In opposition Nutrition Distribution argued, because the

motion was filed after the court had entered judgment dismissing

the action, it was untimely. It also asserted its lawsuit had

merit, there was factual and legal support for its claims for relief,

and the action had not been initiated in bad faith or for an

improper purpose.

In a reply memorandum Southern SARMs responded, in

part, that the case law cited by Nutrition Distribution in support

of its untimeliness argument concerned sanctions motions under

section 128.7 and was based on the 21-day safe harbor waiting

provision in that section. It again quoted the holding of San

Diegans for Open Government, supra, 247 Cal.App.4th at

page 1317 that no comparable waiting period applied to a motion

under section 128.5.

Following argument the court denied the motion. The

minute order, entered January 9, 2017, states, “The motion for

sanctions is called and the motion is denied pursuant to the Safe

Harbor Rule.” Southern SARMs filed a timely notice of appeal.

DISCUSSION

1. Former Subdivision (f) and Its Cross-reference to

Section 128.7, Subdivision (c)

Section 128.5, authorizing sanctions for certain bad faith

actions or tactics, was originally enacted in 1981. (Stats. 1981,

8

ch. 762, § 1, p. 2968.) As subsequently amended in 1994, the

provision applied only to proceedings initiated on or before

December 31, 1994. (Stats. 1994, ch. 1062, § 1, p. 6396; see

Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804,

810.) Concurrently with the creation of the 1994 sunset date for

section 128.5, the Legislature adopted section 128.7, which

permitted the court to award sanctions for pleadings and motions

filed for an improper purpose and applied to complaints or

petitions filed on or after January 1, 1995 and to any pleading,

motion or similar paper filed in those proceedings. (Stats. 1994,

ch. 1062, § 3, p. 6398; see Olmstead, at p. 810.)4

Section 128.5 was revived in 2014 by Assembly Bill

No. 2494 (2013-2014 Reg. Sess.), effective January 1, 2015

(Stats. 2014, ch. 425, § 1). It authorizes a trial court to order a

party, the party’s attorney or both to pay reasonable expenses,

including attorney fees, incurred as a result of bad faith actions

or tactics that are frivolous or solely intended to cause



4

Section 128.7, still in effect in slightly amended form, was

modeled on rule 11 of the Federal Rules of Civil Procedure. (See

Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) It applies

to every “pleading, petition, written notice of motion, or other

similar paper” presented to a court (§ 128.7, subd. (a)) and

requires attorneys (or parties if they are unrepresented) to

certify, through their signatures on documents filed with the

court, that the pleading or motion has merit and is not being

presented for an improper purpose. (§ 128.7, subd. (b)(1)-(4); see

Musaelian, at p. 516.) If, after notice and a reasonable

opportunity to respond, the court determines the certification was

improper under the circumstances, it may impose an appropriate

sanction. (§ 128.7, subd. (c).)

9

unnecessary delay. (§ 128.5, subd. (a).)5

Former subdivision (f),

in effect from January 1, 2015 to August 7, 2017, at issue in this

case, provided, “Any sanctions imposed pursuant to this section

shall be imposed consistently with the standards, conditions, and

procedures set forth in subdivisions (c), (d), and (h) of

Section 128.7.”

Pursuant to section 128.7, subdivision (c)(1),

6

a motion for

sanctions must be made separately from any other motion and

describe with specificity the allegedly sanctionable misconduct.

In addition, the party seeking sanctions must serve the motion on

the opposing party without filing or presenting it to the court.

Service of the motion initiates a 21-day (formerly a 30-day) hold

or safe harbor period. (Li v. Majestic Industrial Hills LLC (2009)



5

Section 128.5, subdivision (b)(1), provides, “‘Actions or

tactics’ include, but are not limited to, the making or opposing of

motions or the filing and service of a complaint, cross-complaint,

answer, or other responsive pleading.”

6

Section 128.7, subdivision (c)(1), provides, “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. If warranted, the

court may award to the party prevailing on the motion the

reasonable expenses and attorney’s fees incurred in presenting or

opposing the motion. Absent exceptional circumstances, a law

firm shall be held jointly responsible for violations committed by

its partners, associates, and employees.”

10

177 Cal.App.4th 585, 590-591; Martorana v. Marlin & Saltzman

(2009) 175 Cal.App.4th 685, 698.) During this time the offending

document may be corrected or withdrawn without penalty. If

that occurs, the motion for sanctions may not be filed. (§ 128.7,

subd. (c)(1); see Li, at p. 591.) “[T]he central principle to be

distilled from section 128.7’s language and remedial purpose, as

well as from appellate opinions interpreting section 128.7 and

rule 11, is 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.” (Li, at p. 595.)

2. The Analysis of Former Subdivision (f) in San Diegans

for Open Government

San Diegans for Open Government, supra, 247 Cal.App.4th

1306 is the only published decision interpreting former

subdivision (f). The defendants in that case had moved for

sanctions under section 128.5 after the plaintiff dismissed its

taxpayer action for waste of public funds with prejudice,

contending the plaintiff had no evidence to support that claim

and had used it, together with a publicity campaign, in an

attempt to wrongfully leverage a settlement. (San Diegans for

Open Government, at p. 1312.) The trial court denied the motion.

The court of appeal reversed, rejecting the plaintiff’s argument

the sanctions motion was procedurally defective and agreeing

with the defendants that the trial court had applied an incorrect

legal standard when evaluating the merits. (Id. at pp. 1315-1317,

1318-1319.)

As it relates to the issue now before us, and as quoted

several times by Nutrition Distribution in the trial court and

again on appeal, the appellate court in San Diegans for Open

Government rejected the plaintiff’s contention that the

11

requirement in former subdivision (f) that sanctions be imposed

consistently with section 128.7, subdivisions (c), (d) and (h),

obligated a party moving under section 128.5 to comply with the

21-day safe harbor waiting period contained in section 128.7,

subdivision (c)(1). (San Diegans for Open Government, supra,

247 Cal.App.4th at p. 1316.)7

The court gave three reasons for its

conclusion.

First, section 128.7, subdivision (c), begins with an

unnumbered paragraph, which provides sanctions may be

awarded against attorneys, law firms and parties that have

violated section 128.7, subdivision (b), or are responsible for the

violation. It also states, “In determining what sanctions, if any,

should be ordered, the court shall consider whether a party

seeking sanction has exercised due diligence.” Next, paragraph

“(1)” sets forth the safe harbor requirement, and paragraph

“(2)” provides for a similar 21-day safe harbor period if the court

elects to order sanctions on its own motion.8

The court held the



7

The court in San Diegans for Open Government also held

the revived version of section 128.5 applied to all cases pending

as of January 1, 2015, not only to cases filed on or after that date,

and required use of an objective standard, rather than a

subjective standard of bad faith. (San Diegans for Open

Government, supra, 247 Cal.App.4th at pp. 1315, 1318.)

8

Section 128.7, subdivision (c)(2), provides, “On its own

motion, the court may enter an order describing the specific

conduct that appears to violate subdivision (b) and directing an

attorney, law firm, or party to show cause why it has not violated

subdivision (b), unless, within 21 days of service of the order to

show cause, the challenged paper, claim, defense, contention,

allegation, or denial is withdrawn or appropriately corrected.”

12

plain language of former section 128.5, subdivision (f), referred

only to “subdivision (c),” pertaining to who can be sanctioned and

whether the party seeking sanctions exercised due diligence, and

did not specify that motions under section 128.5 needed to be

imposed consistently with the safe harbor provisions contained in

the numbered subparts of section 128.7, subdivision (c).

(San Diegans for Open Government, supra, 247 Cal.App.4th at

pp. 1316-1317.)

Second, to the extent section 128.5 could be considered

ambiguous regarding adoption of the safe harbor provisions of

section 128.7, subdivision (c)(1) and (2), the court reported its

review of the legislative history “reveal[ed] no mention of the

section 128.7 safe harbor waiting period.” (San Diegans for Open

Government, supra, 247 Cal.App.4th at p. 1317.) “It is

inconceivable,” the court stated, “the Legislature intended to

incorporate by reference a prerequisite filing requirement

without mentioning the requirement.” (Ibid.)

Third, section 128.7 is limited to misconduct in the filing or

advocacy of groundless claims in signed pleadings and other

papers. Section 128.5 is not so limited. As a practical matter, the

court explained, requiring a party to comply with the safe harbor

waiting period before filing a sanctions motion under

section 128.5 makes little sense with respect to bad faith actions

or tactics that, once performed, cannot be withdrawn. (San

Diegans for Open Government, supra, 247 Cal.App.4th at

p. 1317.)

3. Former Subdivision (f) Incorporated Section 128.7,

Subdivision (c)’s Safe harbor Provision

The plain language of former subdivision (f) mandating

that a court ordering sanctions adhere to the “standards,

13

conditions, and procedures” set forth in section 128.7,

subdivisions (c), (d), and (h), given its ordinary and common

meaning, appears unambiguous: All the conditions and

procedures in subdivision (c)—not only those in the first,

unnumbered paragraph, but also those contained in the two

subsequent paragraphs, numbered (1) and (2)—must be imposed

to the extent they are compatible with the other requirements of

section 128.5.9

(See Voices of the Wetlands v. State Water

Resources Control Bd. (2011) 52 Cal.4th 499, 519 [“[i]f the

language [of the statute] is unambiguous, the plain meaning

controls,” and no further analysis is warranted]; Wells v.

One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190

[same].) That the Legislature chose to incorporate the safe

harbor waiting provisions by general cross-reference, rather than

specify them by name, is not a sufficient basis for ignoring the

plain meaning and obvious intent of the statute, as the court in

San Diegans for Open Government concluded. (See San Diegans

for Open Government, supra, 247 Cal.App.4th at pp. 1316-1317.)

a. The legislative history of former subdivision (f)

establishes the Legislature’s intent to include a safe

harbor provision

Even if the language of former subdivision (f) allowed for

more than one reasonable construction, the legislative history of

Assembly Bill No. 2494 unquestionably reflects an intent to adopt



9

Similarly, the standards, conditions and procedures in all of

subdivision (d) of section 128.7—that is, subdivision (d)(1) and

(d)(2), which limit the monetary sanctions that may be awarded

under certain circumstances, and not simply the unnumbered

first paragraph of subdivision (d)—are incorporated by reference

by former subdivision (f).

14

the safe harbor provisions of section 128.7, subdivision (c)(1) and

(2), as part of the revitalized section 128.5, effective January 1,

2015. (See John v. Superior Court (2016) 63 Cal.4th 91, 96 [“[i]f

we find the statutory language ambiguous or subject to more

than one interpretation, we may look to extrinsic aids, including

legislative history or purpose to inform our views”]; Fluor Corp. v.

Superior Court (2015) 61 Cal.4th 1175, 1198 [if the statutory

language may reasonably be given more than one interpretation,

“‘“‘courts may consider various extrinsic aids, including the

purpose of the statute, the evils to be remedied, the legislative

history, public policy, and the statutory scheme encompassing the

statute’”’”].)

As originally introduced on February 21, 2014, Assembly

Bill No. 2494 (2013-1014 Reg. Sess.) did not include any crossreference

to section 128.7.10

A number of organizations, including

the California Chamber of Commerce, the California Farm

Bureau Federation and the California Manufacturers &

Technology Association, jointly wrote Hon. Bob Wieckowski, chair

of the Assembly Judiciary Committee, in support of the bill as

introduced. Letters in opposition were sent by a number of public

interest organizations and labor unions, including the Western

Center on Law & Poverty, the Lawyers’ Committee for Civil

Rights of the San Francisco Bay Area and the California

Immigrant Policy Center. In separate letters each of those three



10 We provided the parties with copies of the legislative

history materials for Assembly Bill No. 2494 that we expected to

consider in deciding the case and advised them we intended to

take judicial notice of those materials pursuant to Evidence Code

sections 452 and 459. We now take judicial notice of the items

cited in our opinion.

15

organizations identified two primary reasons for their concern

with the proposed legislation. First, the complex differences

between section 128.7 and the proposed new version of

section 128.5 would leave viable and necessary litigation in limbo

while a series of appeals worked their way through the appellate

courts for clarification and determination. Second, in the words

of the Western Center, echoed by the other two organizations in

their letters, “[U]nlike section 128.7, section 128.5 does not

include a safe harbor provision. . . . Section 128.5 does not have a

‘safe harbor’ provision and thus will become a weapon by parties

to stall and intimidate parties into dropping litigation. This is

contrary to the public interest of using courts to resolve disputes

and will significantly impact organizations like [the Western

Center] from protecting the legitimate interests of its clients.”

(Letter from Michael Herald, Legislative Advocate, Western

Center, to Hon. Bob Wieckowski, April 20, 2014; see Letter from

Robert Coleman, Government Affairs Manager, California

Immigrant Policy Center, to Hon. Bob Wieckowski, April 24,

2014; Letter from Meredith Desautels, Staff Attorney, Lawyers’

Committee for Civil Rights of the San Francisco Bay Area, to

Hon. Bob Wieckowski, April 24, 2014.)

On May 7, 2014 Assembly Bill No. 2494 was amended to

add subdivision (f), containing the language now at issue in this

appeal. In a bill analysis prepared for the Assembly Committee

on Judiciary for an April 29, 2014 hearing, the proposed addition

of subdivision (f), together with several other changes, were

identified as “author’s amendments” to “clarify the intent of the

bill and address opposition concerns.” (Assem. Com. on

Judiciary, Analysis of Assem. Bill No. 2494 (2013-2014 Reg.

Sess.), as amended April 10, 2014, p. 4.) The bill analysis

16

explained, “As proposed to be amended, this measure makes clear

that it is intended to be read in harmony with the salutary

cognate provisions of section 128.7.” (Ibid.) The analysis

concluded by stating that, as proposed to be amended, there was

no known opposition to the measure. (Id. at p. 7.)

Given the expressed opposition to the original version of

Assembly Bill No. 2494 as introduced by public interest groups

because it did not include a safe harbor provision and the

withdrawal of any objection to the legislation with the proposed

addition of subdivision (f), the inference is unmistakable that the

intent of the new subdivision was to incorporate the safe harbor

provisions of section 128.7, subdivision (c), by cross-reference.

b. The 2017 amendment of former subdivision (f)

confirms the Legislature’s intent to include a safe

harbor provision

In urgency legislation enacted August 7, 2017 (Stats. 2017,

ch. 169, § 1), the Legislature amended section 128.5 “to clarify the

previous legislative intent.” (Assem. Com. on Judiciary, Analysis

of Assem. Bill No. 984 (2017-2018 Reg. Sess.), as amended

April 20, 2017, p. 1.)11

Specifically as it relates to the issue

presented by this appeal, rather than simply cross-referencing

subdivision (c) of Section 128.7, as it formerly had, section 128.5,



11 Although Nutrition Distribution’s respondent’s brief and

Southern SARMs’s reply brief were filed after the effective date of

Assembly Bill No. 984, neither party mentioned the amendment

to section 128.5, subdivision (f), or the discussion of San Diegans

for Open Government in the accompanying legislative reports.

We advised the parties of this development and requested that

they be prepared to discuss at oral argument its effect, if any, on

the issue presented by Southern SARMs’s appeal.

17

subdivision (f), was amended to import (with minor language

modifications) the conditions and procedures contained in that

provision, including in subdivision (f)(1)(B) a 21-day safe harbor

provision “[i]f the alleged action or tactic is the making or

opposing of a written motion or the filing and service of a

complaint, cross-complaint, answer, or other responsive pleading

that can be withdrawn or appropriately corrected . . . .”12

The legislative reports accompanying this amendment

confirm the Legislature’s intent to include a safe harbor provision

in former subdivision (f). (See Eu v. Chacon (1976) 16 Cal.3d 465,

470 [“[a]lthough a legislative expression of the intent of an earlier

act is not binding upon the courts in their construction of the

prior act, that expression may properly be considered together

with other factors in arriving at the true legislative intent

existing when the prior act was passed”]; see also Western

Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244 [“the

Legislature’s expressed views on the prior import of its statutes

are entitled to due consideration, and we cannot disregard



12 Section 128.5, subdivision (f)(1), now states, in part, “(A) A

motion for sanctions under this section shall be made separately

from other motions or requests and shall describe the specific

alleged action or tactic, made in bad faith, that is frivolous or

solely intended to cause unnecessary delay. [¶] (B) If the

alleged action or tactic is the making or opposing of a written

motion or the filing and service of a complaint, cross-complaint,

answer, or other responsive pleading that can be withdrawn or

appropriately corrected, a notice of motion shall be served as

provided in Section 1010, but shall not be filed with or presented

to the court, unless 21 days after service of the motion or any

other period as the court may prescribe, the challenged action or

tactic is not withdrawn or appropriately corrected.”

18

them”]; Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th

1385, 1408 [same].)

Discussing the need for the amendment to former

subdivision (f), the analysis of Assembly Bill No. 984 prepared for

the Assembly Committee on the Judiciary explained that the

committee had adopted several amendments to the 2014

legislation reviving section 128.5 “to ensure that Section 128.5

would be ‘read in harmony with the salutary cognate provisions

of section 128.7.’” (Assem. Com. on Judiciary, Analysis of Assem.

Bill No. 984, supra, at p. 8.) The 2017 amendment, the report

continued, “seeks to clarify the intent behind the enactment of

AB 2494 . . . and abrogate several of the holdings under

San Diegans [for Open Government].” (Ibid.; see id. at p. 7

[interpretation of subdivision (f) by San Diegans for Open

Government “is inconsistent with [its] legislative history”];

13

Sen. Com. on Judiciary, Rep. on Assem. Bill No. 984 (2017-2018

Reg. Sess.), as amended June 19, 2017, for hearing on June 27,



13 The Assembly Judiciary Committee analysis also

commented, “[T]he San Diegans court held that ‘a party filing a

sanctions motion under 128.5 does not need to comply with the

safe harbor waiting period described in section 128.7,

subdivision (c)(1).’ [Citation.] In the court’s reasoning, it held

that since Section 128.5 is broader, safe harbor provisions of

Section 128.7 ‘cannot be used to withdraw or appropriately

correct past bad faith actions or tactics.’ [Citation.] Again, while

this legal analysis appears to be well-reasoned, it is inconsistent

with the legislative intent that Section 128.5 should be imposed

‘consistently with the standards, conditions, and procedures set

forth in subdivisions (c), (d), and (h) of Section 128.7.’” (Assem.

Com. on Judiciary, Analysis of Assem. Bill No. 984, supra, at

p. 8.)

19

2017, p. 3. [“Since AB 2494 took effect, courts have interpreted

provisions of Section 128.5 inconsistently and, at times, at odds

with the intent of the Legislature. This bill seeks to address the

apparent confusion in the courts and make the provisions of

Section 128.5 completely clear.”].)

* * * * *

In sum, former subdivision (f) required a party moving for

sanctions to make the motion separately from other motions and

requests and to describe the specific conduct alleged to be subject

to sanctions, as specified in section 128.7, subdivision (c)(1). In

addition, when the motion for sanctions was based on a

purportedly frivolous complaint, written motion or court filing

that could be withdrawn or on some other alleged action or tactic

that could be appropriately corrected, former subdivision (f)

required the moving party to comply with the safe harbor waiting

provisions of section 128.7, subdivision (c)(1). Because Southern

SARMs failed to provide Nutrition Distribution with the safe

harbor opportunity to withdraw its first amended complaint

before filing its motion for sanctions, the trial court properly

denied the motion.

The order denying the motion for sanctions is affirmed. Each part is to bear its own costs on appeal.