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

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)

APPEAL from an 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 Plaintiff and Appellant 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 Defendants and Respondents 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 follow in imposing sanctions for violations of Code of 

Civil Procedure section 1008.

1 That section, which establishes the 

rules for filing motions for reconsideration, provides that a court 

may impose sanctions for violations “as allowed by [s]ection 128.7.” 

(§ 1008, subd. (d).) May a trial 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 question 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. Riley (Riley),2 must 

be reversed.

FACTS AND PROCEEDINGS BELOW

This case was originally 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, the trial court granted a motion by 

defendants and respondents Sandra Favila, the Estate 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 party 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 discovery requests and disobeying court 

orders to provide discovery (see § 2023.010, subds. (d) & (g)), and 

had displayed “utter disregard for the court as well as court 

procedures.”

Moofly does not appeal from these terminating sanctions. 

Rather, Moofly challenges the monetary sanctions imposed for 

filing a motion dated November 23, 2016, in an unsuccessful 

attempt to obtain a reversal of the terminating sanctions. Moofly

filed its motion pursuant to section 473, which under certain 

circumstances allows parties relief from defaults 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 representatives, 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 an 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 addition, defendants asked the court 

to issue an order to show cause regarding sanctions.

On December 20, 2016, the court denied the motion, issued 

an order to show cause regarding sanctions against Moofly, and 

set the hearing on the order to show cause for January 23, 2017. 

Moofly filed a response 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 opposed sanctions.

On February 2, 2017, the court granted the motion for 

sanctions against both Moofly and Riley in the amount of 

$10.499.51, payable to defendants’ counsel.

DISCUSSION

Moofly contends that the trial court’s sanctions order must 

be reversed because 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 period in which 

to withdraw the motion in order to escape sanctions, as required 

by section 128.7, subdivision (c)(2). Defendants contend that when 

imposing sanctions under section 1008, subdivision (d), a court need 

not comply with the requirements of section 128.7, including the 

21-day safe harbor period. Because this is a question of statutory 

interpretation, 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 the safe harbor

requirement of section 128.7, subdivision (c)(2), we reverse.

A California court may impose attorney fees as a sanction 

only when authorized by statute to do so. (See Interstate Specialty 

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 and with sanctions 

as allowed by [s]ection 128.7.” Section 128.7 allows sanctions 

against parties who file papers in court frivolously, in bad faith, 

or otherwise improperly.
5

The 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 consistent with the one courts have applied in 

analogous cases involving the award of attorney fees and costs 

under the anti-SLAPP statute, section 425.16. The anti-SLAPP 

statute requires courts to “award costs and reasonable attorney’s 

fees to a plaintiff prevailing 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 section 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 supports our conclusion that the 

requirements of section 128.7 apply to sanctions under section 1008,

subdivision (d). Although we are not aware of any other case that 

has considered the procedural rules a court must apply in imposing 

sanctions under section 1008, subdivision (d), several cases have 

addressed the substantive standard of conduct for which sanctions 

may apply. In every case that we are aware of, the court has

upheld 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 [sanctions 

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”]; Lucas v. 

Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028

[sanctions overturned because the trial court made no finding that 
6

the sanctioned party “engaged 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 brought solely for the purpose of delay 

was clearly an abuse of discretion”].)

Defendants contend that because 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 own separate substantive and procedural 

requirements.

Having concluded that the requirements of section 128.7 

apply to sanctions imposed under section 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 subdivision (c)(2). 

In this case, defendants contend that the trial court followed 

the procedures for imposing 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 specific conduct that appears 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 cause, the 
7

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 reconsideration. Instead, the court denied Moofly’s motion

for reconsideration at the same moment 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, stating that Moofly’s “purported ‘withdrawal’ 

of the motion for relief is meaningless since [defendants] already 

opposed the motion and the court already ruled on the motion.” 

Courts of Appeal have uniformly rejected efforts by parties 

to obtain sanctions when 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 choose 

whether to withdraw or cure the offense voluntarily before the court 

disposes of the 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 sanctions imposed on the court’s own motion.

Defendants also contend that Moofly’s opposition to the 

trial court’s order to show cause was void because the Franchise 

Tax Board had suspended Moofly’s certification at the time Moofly 

filed its opposition. The suspension occurred on January 3, 2017, 

after the trial 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 

Rock Taco, LLC 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 party 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 defendants. Indeed, the court was 

unaware of Moofly’s suspension at the time it imposed sanctions.4 

Moreover, 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. (1972) 

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 sanctions 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 to 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 reversed. 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 publication in the Official 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.