In the matter of: THE ESTATE OF SUSAN JEE

DISCUSSION

Petitioner seeks $97,161.42 against Objector and his counsel pursuant to Code of Civil Procedure sections 128.7 and 128.5 and California Rules of Court, rule 2.30.

I. Legal Background

Code of Civil Procedure section 128.5 states, in pertinent part, “A trial court may order a party, the party’s attorney, or both, to pay the 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).) “ ‘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.

The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics’ for purposes of this section.” (§ 128.5, subd. (b)(1).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).) “ ‘To meet this standard, a party requesting the award must show that “any reasonable attorney would agree the [action taken] was totally devoid of merit.” ’ ” (Brubaker v. Strum (2023) 87 Cal.App.5th 497, 511.)

“Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.” (§ 128.5, subd. (c).) “If, after 6 notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party’s attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.” (§ 128.5, subd. (f)(1).)

Section 128.7, subdivision (b) provides:

By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Section 128.7, subdivision (c) provides, “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.” “Under . . . Code of Civil Procedure section 128.7 . . ., there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. [Citations.]” (Guillemin v.

Stein (2002) 104 Cal.App.4th 156, 167.) “A trial court is to apply an objective standard in making its inquiry concerning the attorney’s or party’s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7. [Citation.]” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.) “[W]hen determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether any reasonable attorney would agree that [the claim] is totally and completely without merit. [Citations.]” (Peake v.

Underwood (2014) 227 Cal.App.4th 428, 448, internal quotation marks omitted.) “[W]hen establishing a claim is factually or legally without merit under Code of Civil Procedure section 128.7, it is not necessary to show the party acted with an improper motive or subjective bad faith.” (Id. at p. 449.) 7

“Under the explicit language of section 128.7, subdivision (c), the trial court retains the discretion, upon the finding of a violation of subdivision (b), to determine whether a sanction is warranted in the first instance; and, if so, the type and amount of sanctions warranted.” (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422 (Kojababian).) “Section 128.7, subdivision (c) does not require the imposition of monetary sanctions upon the finding of a violation of section 128.7, subdivision (b); rather, it gives the trial court discretion to impose sanctions based on such a finding.” (Ibid.)

“In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.” (Cal. Rules of Court, rule 2.30(b).) “A party’s motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought.” (Cal. Rules of Court, rule 2.30(c).)

II. Merits of the Motion

Petitioner argues that Objector should be sanctioned for filing frivolous pleadings, motions, and an opposition to Petitioner’s motion to strike.

Here, the motion for sanctions was served and filed on the same day, April 21, 2026. Thus, Petitioner failed to comply with the safe harbor provisions of sections 128.5 and 128.7. “Under section 128.7, the party moving for sanctions must serve the motion on the opposing party, but the motion ‘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.’ (§ 128.7, subd. (c)(1).)

Section 128.5 contains a nearly identical safe harbor provision. (§ 128.5, subd. (f)(1)(B) [sanctions motion ‘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’].)” (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 550 (Transcon).)

“Thus, a party seeking sanctions under sections 128.5 and 128.7 must follow a two-step procedure. [Citation.] 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. [Citation.]” (Transcon, supra, 81 Cal.App.5th at p. 550.)

“[T]he law requires strict compliance with the safe harbor provisions. [Citation.] Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’ [Citations.]” (Transcon, supra, 81 Cal.App.5th at p. 551; Zarate v. McDaniel (2023) 97 Cal.App.5th 484, 489 [“If a moving party fails to comply with [the safe harbor provision], the sanctions motion must be denied. [Citation.]”.]) 8

Here, the problem is not only that the safe harbor provision was not complied with, but that it would have been impossible for Objector to withdraw nearly any of the offending pleadings at the time the motion was served. At the time of filing, the court had already ruled on all motions and had granted Petitioner’s petition for probate. Thus, Objector could not have withdrawn them to avoid incurring sanctions. “The law is well settled that the safe harbor provisions preclude a party from seeking monetary sanctions for an offending pleading following a dispositive ruling by the trial court on the pleading.” (Malovec v.

Hamrell (1999) 70 Cal.App.4th 434, 442.) Only Objector’s own petition for probate of Decedent’s alleged later will remained pending at the time of service of the motion and Objector did not receive the 21- day safe harbor to which he was entitled with respect to that filing. Accordingly, the motion must be denied to the extent it relies on sections 128.5 and 128.7.

As to Rules of Court, rule 2.30, that rule applies “to the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases.” (Cal. Rules of Court, rule 2.30(a).) As mentioned above, the moving party is required to identify which such rule they contend has been violated. (Cal. Rules of Court, rule 2.30(c).) Here, Petitioner does not identify any Rule of Court he contends has been violated. Accordingly, the motion must be denied to the extent it relies on Rules of Court, rule 2.30.

CONCLUSION

The motion is DENIED.

The Court will prepare the final order.

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