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.
1
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.
2
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.
3
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
4
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.
5
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
6
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
7
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.)
8
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
9
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
10
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
11
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.)
12
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,
13
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
14
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.
15
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
16
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.
17
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.
18
_________________________
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.
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