The tip here is that even if your CCP 128.7 sanctions motion is righteous, the correct bases must be stated in the notice to give the other side fair warning. The grounds here weren’t stated until the reply, so the $25,000 sanction was reversed.
And the motion was not only correct in Wright v. Wright (D2d1, May 23, 2025, No. B327043) (nonpub. opn.), it was clearly correct. After a dissolution action, Philip was awarded prevailing party fees against Juliia. While Juliia’s appeal of that order was pending, her attorney filed a motion to reconsider and set aside the order. Philip gave safe-harbor notice and then filed a motion for sanctions under Code of Civil Procedure section 128.7 for Juliia’s frivolous motion. The trial court agreed and imposed sanctions of $25,000.
Reversing, the Court of Appeal said that the problem with Philip’s motion was that it was “muddled.” He argued that the motion to set aside was untimely because section 663 motions must be filed within 15 days of the notice of entry of the order, and Juliia’s was filed far later. And the pending appeal deprived the trial court of jurisdiction to vacate the order absent compliance with the statute.
But Philip did not clearly argue that the appellate stay prevented the trial court from vacating the order under its inherent power to reconsider interim orders. Of course, the order was not interim now that it was appealed, so the court’s jurisdiction over interim orders had expired. But Philip’s CCP 128.7 safe-harbor notice needed to tell Juliia that explicitly.
The court reiterated that “it is immaterial” that the trial court’s ruling “was correct that the section 916 [appellate] stay barred the entirety of Juliia’s set-aside motion,” because she “nonetheless was deprived of an opportunity, before the court ruled, to withdraw her motion and avoid sanctions.”
What about the rule of appellate procedure that a trial court’s order will be affirmed if correct on any ground—even grounds not presented in the motion? The court noted that “in some contexts we may affirm an erroneous ruling on an alternative basis,” but that “this is inappropriate in an appeal ‘on the sensitive issue of sanctions,’” citing Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 41.
Bookmark that authority for the next time you challenge an order of sanctions, to support the proposition that the appellate court should not speculate how the trial court would have exercised its discretion had it considered other available arguments.
If you plan to spring a procedural trap on your opponent, make sure you strictly follow procedural rules yourself. The appellant here ran afoul of rules of appellate procedure, misapprehending the limited post-judgment motion timelines and procedures. But the effort to capitalize on that error also misapprehended key procedural rules. That was fatal.
