Filed 6/1 /18 ; pub. order 6/22/18 (see end of op n.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MOOFLY PRODUCTIONS, LLC,

Plaintiff and Appellant,

v.

SANDRA C. FAVILA et al.,

Defendant s and Respondent s ;

NINA M. RILEY,
Appellant. B28 2084

(Los Angeles County Super. Ct. No. BC516308)

APPEAL from a n order of the Superior Court of Los Angeles County, Barbara M. Scheper , Judge. Reversed

. Law Offices of Nina M. Riley, Nina M. Riley; Walton & Walton, and L. Richard Walton for P laintiff and A ppellant Moofly Productions, LLC

. Law Offices of Nina M. Riley and Nina M. Riley for Appellant Nina M. Riley.
James K. Cameron & Associates and James K. Cameron
for D efendants and R espondent s Sandra C. Favila , Estate of Richard C. Corrales, and Motion Graphix, Inc

.2 This appeal requires us to consider the procedures a trial
court must fo llow in imposing sanctions for violations of Code of
Civil Procedure section 1008

. 1 That section, which establishes the rules for filing motions for r econsideration, provides that a court may impose sanctions for vi olations “as allowed by [s]ection 128.7. ” (§ 1008, subd. (d).) May a t rial court sanction a party for violating
section 1008 without allowing the party the benefit of a 21

- day
safe harbor to withdraw the offending motion, as is required by
section 128.7 , subdivision (c) ? Our answer to that qu estion is no

. Because plaintiff and appellant Moofly Productions, LLC (Moofly)
did not receive the required 21

- day notice to withdraw its motion
for reconsideration and avoid sanctions, the sanctions award against Moofly and Moofly’s attorney, Nina M. Ril ey (Riley), 2 must
be reversed.

FACTS AND PROCEEDINGS BELOW

This case was ori ginally filed in 2013 as a limited jurisdiction

matter
, and at various stages has been removed to federal court and
remanded to the trial court in general jurisdiction

. Because this appeal concerns only the question of an award of sanctions against Moofly and Riley , we describe only those facts and proceedings
relevant to the issue at hand. On November 10, 2016, t he trial court granted a motion by
defendants and respondents Sa ndra Favila, the E state of Richard Corrales, and Motion Graphix, Inc. (collectively defendants) for

1 Unless otherwise specified, subsequent statutory references are to the Code of Civil Procedure.

2 Because the trial court ordered Riley as well as Moofly
to pay the sanctions, Riley herself is a par ty to this appeal. Except where necessary to distinguish between them, we refer to appellants collectively as Moofly.3

terminating sanctions on Moofly ’s claims against defendants. 3
The court found that Moofly had abused the discovery process by failing to respond to discove ry requests and disobeying court
orders to provide discovery (see § 2023 .010, subds. (d) & (g)), and had displayed “u tter disregard for the court as well as court procedures.” Moofly does not appeal from t hese terminating sanctions. Rather, Moofly challe nges the monetary s anctions imposed for filing a motion dated November 23, 2016, in an unsuccessful
attempt to obtain a reversal of the terminating sanctions . Moofly
fil ed its motion pursuant to section 473, which under certain
circumstances al lows partie s relief from default s and dismissals entered against them as a consequence of their mistakes or neglect

. Moofly argued that the discovery violations that led the court to issue terminating sanctions were the result of excusable neglect by its representat ives, who filed late responses to defendants’ discovery requests. Defendants filed an opposition to the motion

on December 7, 2016 , pointing out that Moofly had made the same arguments in its earlier opposition to terminating sanctions, and that Moofly’s motion was in essence a n incorrectly labeled motion
for reconsideration pursuant to section 1008 of the trial court’s grant of terminating sanctions. Defendants argued that the
motion should be denied because Moofly had cited no new facts, circumstances, or law to justify such a motion , as is required for
relief under section 1008 . In a ddition , defendants asked the court
to issue an order to s how cause regarding sanctions.
O n December 20, 2016, the court denied the motion, issu ed

an order to show cause re garding sanctions ag ainst Moofly, and

set the hearing on the order to show cause for January 23, 2017. Moofly filed a re sponse on January 18, in which it sought to

3 Defendants’ cross

- claims against Moofly remain active.4

withdraw its motion for reconsideration

— nearly a month after
the court denied it

— and oppose d sanctions.
O n February 2, 2017, t he court granted the motion for sanctions against both Moofly and Riley in the amount of $10.499.51

, payabl e to defendants’ counsel.

DISCUSSION Moofly contends that the tri al court’s sanctions order must
be reversed bec ause the court violated statutory requirements for the imposition of sanctions. In particular, Moofly argues that the
trial court failed to allow it a 21

- day safe harbor pe riod in which

to withdraw the motion in order to escape sanctions, as required by s ection 128.7, subdivision (c)(2)

. Defendants contend that when imposing sanctions under sect ion 1008, subdivision (d), a court need not comply with the requirements of sect ion 128.7, including the

21

- day safe harbor period. Because this is a question of statutory interpretatio n, our review is de novo

. (See Optimal Markets, Inc. v.
Salant (2013) 221 Cal.App.4th 912, 921

- 922 .) We conclude that
the requirements of section 128.7 do apply to sanctions imposed under section 1008, subdivision (d). Because the trial court ’s
order imposing sanctions did not comply with th e safe harbor requirement of section 128.7, sub di vision (c)(2), we reverse. A California co urt may impose attorney fees as a sanction only when authorized by statute to do so

. ( See Interstate S pecialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 717

. ) In this case, the court imposed sanctions pursuant to section 1008, subdivision (d), which provides that a “ violation of
this section may be punished as a contempt an d with sanctions

as allowed by [s] ection 128.7. ” Section 128.7 allows sanctions against parties who fil e papers in court frivolous ly , in bad faith,

or otherwise improperly.5 T he plain language of the statute guides our interpretation : A court may impose sanctions under section 1008, subdivision (d)

, “as allowed by [s]ection 128.7.” Sanctions are not “allowed by [s]ection 128.7” (§ 1008, subd. (d))

, unless all the requirements
of section 128.7, including safe harbor, are followed. This interpretation is consisten t with the one courts have applied in analogous cases involving the a ward of attorney fees and costs
under the anti

- SLAPP sta tute, section 425.16. The anti

- SLAPP statute requires courts to “ awar d costs and reasonable attorney’ s fees to a plaintiff prevail ing on the motion, pursuant to [s]ection 128.5

. ” (§ 425.16, subd. (c)(1 ).) Courts have concluded that “[t]he ‘ reference to section 128.5 in section 425.16, subdivision (c) means a court must use the procedures and apply the substantive
standards of secti on 128.5 in deciding whether to award attorney
fees under the anti

- SLAPP statute. ’ ” ( Moore v. Shaw (2004)

116 Cal.App.4th 182, 199 .)
Additional case law s upports our conclusion that the requirements of section 128.7 a pply to sanctions under section 1008, subdivision (d). Although we are n ot aware of any other case that has considered the procedural rules a court must apply in imposing sanctions under section 1008, subd ivision (d), several cases have
addressed the substantive standard of conduct for which sanctions may apply. In every case that we a re aware of, the court has

up held sanctions under section 1008, subdivision (d) only for conduct that violates the standards of section 128.7. (See, e.g., Young v. Rosenthal (1989) 212 Cal.App.3d 96, 123 [sanc tions appropriate because motion for reconsideration was “ clearly
frivolous and

. . . brought in bad faith ”]; In re Marriage of Green (1989) 213 Cal.App.3d 14, 26 [motion for reconsideration was

“ totally and completely without merit, and was frivolous ”]; L ucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028 [sanctions overturned because the trial court made no finding that6

the sanctioned party “e ngaged in bad faith or that the reconsideration motion was frivolous”]; Tutor

- Saliba

- Perini
Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736, 745 [sanctions overturned because trial “court’ s conclusion that the
motion was frivolous and br ought solely for the purpose of delay was clearly an abuse of discretion ”].)
Defendants contend that be cause section 1008,
subdivision (d), allows for violations to be “ punished as a contempt and with sanctions as allowed by [s] ection 128.7 ” (italics added),
and because there is no 21

- day safe harbor provision in initiating
contempt proceedings, the court need not observe the safe harbor requirement of section 128.7 either. We are not persuaded.
Section 1008, subdivision (d) establishes two alternatives a trial court may choose: contempt, or sanctions pursuant to section 128.7. Each is subject to its o wn separate substantive and procedural requirements. Having concluded that the requirements of section 128.7 apply to sanctions imposed under se ction 1008, subdivision (d),

we must now consider whether the trial court correctly followed those requirements in this case. Section 128.7 provides two procedures for the award of sanctions. A party may request sanctions, pursuant to subdivision (c)(1) , or the court may impose sanctions on its own motion , pursuant to subd ivision (c)(2).
In this case, defendants contend that the trial court followed
the procedures for impos ing sanctions on its own motion. In
order to sanction a party on its own motion under section 128.7, subdivision (c)(2), the court must “ enter an order describing
the s pecific conduct that app ears to violate [section 128.7,]
subdivision (b ) and directing an attorney, law firm, or party to
show cause why it has not violated [section 128.7,] subdivision (b), unless, within 21 days of service of the order to show caus e, the7

challenged paper, claim

, defense, contention, allegation, or denial
is withdrawn or appropriately corrected. ” (§ 128.7, subd. (c)(2).) In this case, the trial court did not notify Moofly that it
would be subject to sanctions if it did not withdraw the motion
for reconsiderati on. Instead, the court denied Moofly’s motion
for reconsideration at the same momen t that it issued the order

to show cause

. Moofly’s subsequent attempt to withdraw its
motion was thus moot. In its order imposing sanctions, the court recognized this, st ating that Moofly’s “purported ‘withdrawal’
of the motion for relief is meaningless since [defendants] already opposed the motion and the court already rul ed on the motion.” Courts of Appeal have uniformly reject ed efforts by parties

to obtain sanctions w hen the court has already ruled on the offending motion on the ground that “ ‘ [a] party seeking sanctions must leave sufficient opportunity for the opposing party to c hoose
whether to withdraw or cure the offense voluntarily before the court disposes of th e challenged contention. ’ ” ( Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 135 , quoting Ridder v. City of Springfield (6th Cir. 1997) 109 F.3d 288, 297 .) The same reasoning applies to sanct ions imposed on the court’s own motion.
Defendant s also contend that Moofly’s opposition to the
trial court’s order to show cause was void because the Franchise Tax Board had suspende d Moofly’s certification at the time Moofly filed its opposition. The suspension occurred on January 3, 2017,
after the t rial court had denied Moofly’s motion for reconsideration
and issued its order to show cause regarding sanctions, but
before the hearing at which the court ordered sanctions against Moofly. In support of their position, defendants cite Fresno
Roc k Taco, L LC v. National Surety Corp. (E.D.Cal. Sept. 3, 2014,
No. 1:11

- CV

- 00845

- SKO) 2014 WL 4374228 , a case in which a federal district court sanctioned a p arty because its suspension
for failure to pay taxes caused a two

- month delay in a jury trial.8

(See id. at pp. *8

- *9.) But in this case, the trial court did not sanction Moofly because its suspension caused any delay or
inconvenience to the court or to def endants. Indeed, the court was unaware of Moofly’s suspension a t the time it imposed sanctions. 4
Moreov er , a corporation’s suspension by the Franchise Tax Board does not render all the corporation’s actions in litigation void. (See Center for Self

- Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552

- 1553 .) Instead,

once a corporation pays its taxes and obtains relief from suspension,

“ the revival of corporate powers has the effect of validating the earlier acts and permitting the corporation to proceed with the
action. ” ( Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (19 72)

8 Cal.3d 369, 373 .) In this case, Moofly paid its taxes and was
revived in August 2017. At that point, its actions while suspended were validated. (See id. ; Bourhis v. Lord (2013) 56 Cal.4th 320, 329 .) Because the trial court’s order imposing sanc tions on Moofly and its attorney did not comply with the statutory requirements,
that order is reversed.

4 Defendants later filed a separate motion to sanction Moofly for continuing t o participate in the case and failing to notify either the trial court or defendants of its suspension. The trial court denied that motion.9 DISPOSITION

The order of the trial court is revers ed. The parties shall bear
their own costs on appeal.

ROTHSCHILD, P. J.
We concur:

JOHNSON , J.

BENDIX , J.10 Filed 6/22/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MOOFLY PRODUCTIONS, LLC,

Plaintiff and Appellant,

v.

SANDRA C. FAVILA et al.,

Defendants and Respondents;

NINA M. RILEY,
Appellant. B282084

(Los Angeles County Super. Ct. No. BC516308)

CERTIFICATION AND ORDER FOR PUBLICATION

THE COURT:
The opinion in the above

- entitled matter filed on June 1,

2018 , was not certified for publicati on in the Of ficial Reports. For good cause, it now appears that the opinion should be published in the Official Reports and it is so ordered.

_ ___ ___________________________________________________________ ROTHSCHILD, P. J. JOHNSON, J. BENDIX , J.