Filed 7/5/2019

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

PRIMO HOSPITALITY 

GROUP, INC., et al.,

Plaintiffs,

v.

STEVEN H. HANEY et al.,

Defendants and 

Respondents;

MARC LIBARLE,

Objector and Appellant.

 B283030

 (Los Angeles County

 Super. Ct. No. BC587708)

APPEAL from order of the Superior Court of Los 

Angeles County, Michael J. Raphael, Judge. Reversed.

Marc Libarle, in pro. per., for Objector and Appellant.
2

Collins Collins Muir & Stewart, Robert H. Stellwagen, 

David C. Moore, Joshua A. Cohen, for Defendant and 

Respondent John Torbett.

_______________________

Plaintiffs filed a legal malpractice action, then retained 

a new attorney. The attorney filed a declaration stating that 

he represented the plaintiffs. A defendant in the action

immediately served the attorney with a motion for sanctions 

under Code of Civil Procedure section 128.7 on the ground 

that the complaint filed by prior counsel lacked merit.1 After 

the motion for sanctions was filed several months later, the 

trial court granted it. On appeal from the order awarding 

sanctions, the attorney contends that he was denied the 

notice and safe harbor required under section 128.7, because 

the motion served on him did not identify any specific 

conduct he had taken that violated the statute. We conclude 

there is no evidence that the attorney presented the 

complaint to the court within the meaning of section 128.7 

before he was served with the motion for sanctions. A new 

attorney’s filing of a declaration merely notifying the court of 

a change in counsel does not constitute presenting the 

complaint to the court under section 128.7. We also conclude 

that a sanctions order cannot be supported solely by 

evidence of conduct occurring after the motion is served, 

because a motion for sanctions under section 128.7 must 

 

1 All further statutory references are to the Code of 

Civil Procedure unless otherwise indicated.
3

describe the specific conduct taken by the party to be 

sanctioned and allow a safe harbor period to withdraw or 

appropriately correct the sanctionable conduct. There was 

no evidence to support finding the attorney violated section 

128.7 before he was served with the motion for sanctions, 

and therefore, we reverse the order awarding sanctions.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Lawsuit between Primo and Americana

In October 2007, Primo Hospitality Group, Inc., and its

principals Charlton Lui and Anthony Riviera (collectively 

Primo), entered into a commercial lease with The Americana

at Brand, LLC (Americana) for space at Americana’s mall. 

Primo opened a restaurant in the space. In May 2009, the 

floors sustained water damage.

The law firm of Novian & Novian, LLP, on behalf of 

Primo, filed a negligence action against Americana and its 

management company in 2010. Primo repaired the floor in 

May 2010, but stopped paying rent in June 2010. After the

floors were damaged in a second incident, Primo vacated the 

space in November 2010. Americana filed a cross-complaint 

against Primo for breach of contract based on unpaid rent.

The Novian firm withdrew on June 22, 2011. Primo 

retained the law firm of Haney Roderick Torbett & Arnold, 

LLP (the Haney firm), in August 2011. John Torbett was 

the principal attorney of the Haney firm. Primo said a 
4

pressure-washing company hired by Americana caused the 

water damage when the pressure-washing equipment forced 

water under the threshold of the door to the restaurant. 

Primo had repeatedly requested that Americana stop 

pressure-washing, but Americana refused. Primo said the

Novian firm advised Primo to vacate the premises and cease 

paying rent.

A jury trial was held in 2012. The jury found in favor 

of Primo on the causes of action for negligence, trespass, and 

nuisance. The jury found in favor of Americana on the 

remaining causes of action, including breach of the lease 

agreement. The trial court entered judgment in favor of 

Primo against Americana in the amount of $840,000, and 

against the management company in the amount of 

$560,000. However, the jury found Primo was liable to 

Americana in the amount of $1,275,250 for breach of the 

lease agreement. The trial court awarded attorney fees of 

$1,250,000 to Americana under the lease agreement.

Legal Malpractice Action

On July 10, 2015, Primo filed the present legal 

malpractice action against defendants and respondents

Steven Haney, Haney Law Group (individually and as the 

successor to the Haney firm), Haney & Young, LLP, and 

Darren McBratney (collectively referred to as the Haney

defendants) and Torbett. Primo alleged that the defendants 

negligently formulated the special verdict form in the
5

underlying action against Americana, because the form 

failed to ask whether Primo was excused from performance 

under the lease. Primo also alleged the defendants 

negligently failed to name certain entities as defendants in 

the underlying action, including the company that performed 

the pressure washing.

On January 6, 2016, the defendants filed a motion for 

summary judgment on the grounds that Primo could not 

establish causation or damages. The jury in the underlying 

action, in response to other questions, found Primo did not 

perform as required under the lease, Americana performed 

as required by the lease, all conditions for Primo to perform 

were met, and Primo was not constructively evicted. 

Defendants also argued that the entities who were not 

named as defendants in the underlying action had no 

potential liability, or the failure to name them was harmless.

On July 22, 2016, Torbett filed a second motion for 

summary judgment, joined in by the Haney defendants, on 

the ground that Primo’s claims were barred by the defense of 

unclean hands. The motion argued that Primo made false 

representations and concealed material information. For 

example, Primo concealed that the Novian firm’s advice was

to continue paying rent and not vacate the premises. Primo 

decided to vacate and forfeit the lease because of increased

competition from other restaurants. As a result, Primo could 

not assert constructive eviction for breach of the lease 

agreement. Primo also failed to disclose that their insurer 

concluded the water damage resulted from an accidental 
6

appliance leak within the restaurant and the insurer 

provided Primo with substantial insurance payments. The 

evidence in support of the second motion for summary 

judgment included correspondence received in discovery 

from the Novian firm and Primo’s insurance company.

Motion for Sanctions under Section 128.7

Torbett’s counsel served Primo’s first attorney in the 

legal malpractice action, Richard Weiner, with a motion for 

sanctions on the ground that the legal malpractice action 

lacked merit. Weiner filed a motion to withdraw as counsel, 

which the trial court granted on August 31, 2016. The trial 

court set a hearing on September 29, 2016, for a status 

report re new counsel and ordered that Primo have new 

counsel at that hearing. On August 31, 2016, Torbett’s 

counsel sent a letter to Lui and Riviera advising them that 

the action lacked merit. Torbett served a motion for 

sanctions with the letter.

On September 28, 2016, Torbett notified Primo that he 

was filing an ex parte application for an order dismissing the 

action for failing to appoint new counsel and proceed with 

depositions. Appellant Marc Libarle filed a declaration with 

the court that day stating he had been retained to represent 

the plaintiffs in the case, but was unavailable to appear at 

the hearing on the ex parte application scheduled for 

September 29, 2016. He had contacted opposing counsel to 

inform them of the representation and the schedule conflict. 
7

Lui appeared at the hearing on September 29, 2016, and 

informed the trial court that Libarle had been retained to 

represent all three plaintiffs. Torbett argued that the case 

should be dismissed because Primo had not complied with 

the court order to retain counsel to be present at the hearing. 

The trial court declined to dismiss the matter, to provide an 

opportunity for Primo to get counsel and to hear from 

Libarle, and it was continued to October 18, 2016.

On September 29, 2016, Torbett served Libarle with a 

letter and a motion for sanctions under section 128.7. The 

letter advised Libarle of the ways in which the plaintiffs’ 

claims lacked merit, and stated: “Your continued failure to 

dismiss this matter can result in an award against you 

personally for all costs expended in defending this meritless 

case from the date that the ‘safe harbor’ period ends until 

the matter is fully resolved. You have twenty one (21) days 

from service of this motion to dismiss the matter in its 

entirety, or you may be liable as indicated. Whileprior [sic]

counsel may have escaped personal liability for future costs 

by being removed from this action, you are certifying the 

merit of the action by signing any documents/filings upon 

entering the matter.” Torbett added, “The attached motion 

is served to put teeth to the repeated notices that the action 

has no merit.”

The notice stated that the motion hearing would be 

held on May 17, 2017. The motion for sanctions argued that

the causes of action alleged in the complaint had no merit

due to the defendants’ defenses. The plaintiffs had deceived 
8

the defendants to take their case on a contingency basis, 

even though the plaintiffs knew they would not win. The 

plaintiffs failed to disclose that improper construction by 

their own contractors had caused the water damage, the 

business was closed as a result of competition from 

surrounding restaurants, and plaintiffs made a business 

decision to stop paying rent and vacate the premises against 

the advice of the Novian firm. The motion stated that 

plaintiffs’ counsel, although aware of the lack of merit and 

the safe harbor to dismiss the matter, “refused to dismiss the 

complaint and all causes of action and thus have violated

[section 128.7].” The motion argued that Libarle had a 

continuing obligation to ensure plaintiffs’ claims were 

factually and legally sound when “later advocating” the 

claims. “By persisting with a meritless claim, [plaintiffs’] 

attorney should be sanctioned reasonable attorneys’ fees and 

costs incurred as a result.” Torbett requested sanctions 

against plaintiffs and Libarle in the total amount of 

$134,778.50, because plaintiffs failed and refused to dismiss 

the meritless action.

Among the documents attached to the motion for 

sanctions was the evidence from the second motion for 

summary judgment. Torbett’s counsel spoke with Libarle by 

telephone to explain that the claims were meritless.

Libarle appeared at the next hearing, on October 18, 

2016. No substitution of counsel form had been filed. 

Extensive discussion was held as to whether Libarle was 

authorized to appear for any of the plaintiffs. The 
9

defendants vigorously argued that the action should be 

dismissed with respect to one or more plaintiffs, because 

Libarle had not properly substituted in to the case. Libarle 

was reluctant to file a substitution of counsel, because of the

threatened motion for sanctions and his conflicts with 

scheduled hearing dates. The trial court questioned counsel 

about the sanctions, commenting that “[t]here can’t possibly 

be a threat on Mr. Libarle that if you enter in this case, you 

magically are immediately subject to some significant 

sanctions,” and that defendants’ prior service of a notice of 

motion under section 128.7 “could not possibly be a sanction 

on new counsel personally.” Torbett contended that just by 

filing paper with the court, “[t]he attorney of record certifies 

the merit of the case” and can be personally liable. Torbett 

conceded, however, that the notice previously given to 

Libarle, and the running of the safe harbor period beginning 

with that notice, would not be effective if it were determined 

that Libarle “is not attorney of record yet, so he hasn’t 

certified the merit of the case.” Torbett indicated he would 

“have to do it again if he files an actual substitution.”

Libarle requested a week or 10 days to obtain the 

plaintiffs’ signatures on a substitution of counsel form. He 

stated on the record that he was appearing for and 

represented Primo, but could not guarantee that he would be 

able to obtain his clients’ signatures to file the substitution 

of counsel form that day. Counsel for all defendants took the 

position that Libarle was not yet counsel in the case because 

there was no written consent of the clients. The court 
10

expressly found that the plaintiffs were still not represented 

by counsel. The trial court set an order to show cause 

regarding representation on November 2, 2016, to establish

whether the parties were self-represented or represented by 

counsel, with an order to show cause regarding dismissal of 

Primo if the entity did not have representation. The trial 

court required that a written substitution of counsel form be 

filed prior to the hearing if any of the parties were going to 

be represented by counsel.

Libarle later satisfied the court’s requirement. On

November 30, 2016, he filed an opposition on behalf of the 

plaintiffs to the first motion for summary judgment based on 

causation and an opposition to the second motion for 

summary judgment based on the defense of unclean hands. 

The defendants filed replies. The motions for summary 

judgment were heard on January 4, 2017. The trial court 

granted the motion for summary judgment based on 

causation, which disposed of the case. The trial court 

entered judgment in favor of defendants on January 30, 

2017.

On March 6, 2017, Torbett filed the motion for 

sanctions against Libarle that had been served on 

September 29, 2016. Torbett did not serve a new motion on 

Libarle after September 29, 2016. Libarle opposed the 

motion on procedural and substantive grounds, including

that the motion for sanctions did not provide proper notice 

and the evidence submitted with the motion for sanctions 

had not been served with the motion. The Haney defendants 
11

filed a notice of joinder in Torbett’s motion for sanctions. 

Torbett filed a reply.

A hearing was held on the sanctions motion on May 17, 

2017. Torbett clarified that he was seeking sanctions solely 

from Libarle, not Primo. Libarle argued that the motion was 

procedurally deficient, because he was served with the 

motion before he had substituted in to the case. Torbett 

responded that Libarle signed his name as plaintiffs’ 

attorney in the declaration that he filed with the trial court 

on September 28, 2016, and filing any document or paper in 

a case was a certification of the merit of the case. Torbett 

further argued sanctions were appropriate based on conduct 

Libarle took after September 29, 2016, such as defending 

depositions and making objections, submitting declarations 

of plaintiffs to the court, and speaking at subsequent 

hearings. Libarle certified the merit of the case every time 

he filed a paper or appeared for the plaintiffs and spoke to

the court. The trial court granted the motion, finding that 

“no reasonable attorney would have brought or maintained 

this lawsuit believing it to be meritorious,” and awarded 

sanctions of $16,000 to Torbett and the joining Haney 

defendants. Libarle filed a timely notice of appeal.
12

DISCUSSION

Statutory Scheme and Standard of Review

Section 128.7, subdivision (a) requires every pleading 

or similar paper to be signed by an attorney of record, or if a 

party is not represented by counsel, by the party. (§ 128.7, 

subd. (a).)2 Presentation of a pleading or similar paper to 

the court, “whether by signing, filing, submitting, or later 

advocating,” constitutes a certification by the attorney or 

unrepresented party that the document is not being 

presented for an improper purpose; contains legal 

contentions warranted by law or a nonfrivolous argument for 

changing the law; alleges factual matter that is supported by 

evidence or likely to be so after a reasonable opportunity for 

further investigation; and contains denials of factual 

 

2 Section 128.7, subdivision (a) provides in full: “Every 

pleading, petition, written notice of motion, or other similar 

paper shall be signed by at least one attorney of record in the 

attorney’s individual name, or, if the party is not 

represented by an attorney, shall be signed by the party. 

Each paper shall state the signer’s address and telephone 

number, if any. Except when otherwise provided by law, 

pleadings need not be verified or accompanied by affidavit. 

An unsigned paper shall be stricken unless omission of the 

signature is corrected promptly after being called to the 

attention of the attorney or party.”
13

contentions that are warranted by the evidence. (§ 128.7, 

subd. (b).)3

After notice and a hearing, a court may impose 

sanctions on an attorney, law firm, or party that violates

subdivision (b) of section 128.7, subject to the “safe harbor”

conditions specified in subdivision (c).4 (§ 128.7, subd. (c); 

 

3 Section 128.7, subdivision (b) provides in full: “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.”

4 Section 128.7, subdivision (c), states: “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 
14

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

920 (Optimal).) A motion for sanctions under section 128.7 

must be made separately from other motions and “shall 

describe the specific conduct alleged to violate subdivision 

(b).”

5 (§ 128.7, subd. (c)(1).) A party seeking sanctions under 

section 128.7 follows a two-step procedure. (Optimal, supra,

221 Cal.App.4th at p. 920.) First, the moving party serves 

notice of the motion for sanctions on the offending party. 

(Ibid.) Service of the motion starts a safe harbor period 

 

appropriate sanction upon the attorneys, law firms, or 

parties that have violated subdivision (b) or are responsible 

for the violation. In determining what sanctions, if any, 

should be ordered, the court shall consider whether a party 

seeking sanctions has exercised due diligence.”

5 Section 128.7, subdivision (c)(1), provides in full: “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. If warranted, the 

court may award to the party prevailing on the motion the 

reasonable expenses and attorney’s fees incurred in 

presenting or opposing the motion. Absent exceptional 

circumstances, a law firm shall be held jointly responsible 

for violations committed by its partners, associates, and 

employees.”
15

during which the motion cannot be filed with the court. 

(Ibid.) If the challenged paper, claim, defense, contention, 

allegation or denial is not withdrawn or corrected within a 

prescribed number of days, the second step is to file or 

present the motion for sanctions to the court. (Ibid.)

“‘“This permits a party to withdraw a questionable 

pleading without penalty, thus saving the court and the 

parties time and money litigating the pleading as well as the 

sanctions request.” [Citations.]’ [Citations.]” (Optimal,

supra, 221 Cal.App.4th at p. 920.) “‘While section 128.7 does 

allow for reimbursement of expenses, including attorney 

fees, its primary purpose is to deter filing abuses, not to 

compensate those affected by them. It requires the court to 

limit sanctions “to what is sufficient to deter repetition of 

[the sanctionable] conduct or comparable conduct by others 

similarly situated.” (§ 128.7, subd. (d).)’ [Citations.]” (Id. at

pp. 920–921.)

Section 128.7 was modeled nearly verbatim upon rule 

11 of the Federal Rules of Civil Procedure (28 U.S.C.).

(Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 

1154, 1168.)6 Therefore, California courts may look to

federal cases construing rule 11 for guidance in interpreting 

the language of section 128.7. (Optimal, supra, 221 

Cal.App.4th at pp. 920–921.)

“Ordinarily, a ruling on a motion for sanctions brought 

under section 128.7 is reviewed under a deferential abuse-of-

 

6 All future references to rule 11 are to rule 11 of the 

Federal Rules of Civil Procedure (28 U.S.C.).
16

discretion standard. (Martorana v. Marlin & Saltzman 

(2009) 175 Cal.App.4th 685, 698; Guillemin v. Stein (2002) 

104 Cal.App.4th 156, 167; cf. Cooter & Gell v. Hartmarx 

Corp. (1990) 496 U.S. 384, 401–405 (Cooter & Gell) [‘an 

appellate court should apply an abuse-of-discretion standard 

in reviewing all aspects of a district court’s Rule 11 

determination’].) But where a question of statutory 

construction is presented in the course of the review of a 

discretionary decision, such issues are legal matters subject 

to de novo review. [Citations.] Thus, to the extent the trial 

court’s denial of the motion for sanctions here involved an 

interpretation of the language of section 128.7, our review is 

de novo.” (Optimal, supra, 221 Cal.App.4th at pp. 921–922, 

fn. omitted.)

Presentation to the Court 

Libarle contends that the motion for sanctions in this 

case did not meet the requirements of section 128.7, 

subdivision (c)(1), because it did not provide notice of his 

sanctionable conduct with a safe harbor period for correction 

or withdrawal. The motion for sanctions was based solely on 

the complaint, so sanctions could not be awarded unless 

Libarle had presented the complaint to the court prior to 

service of the motion. We agree that Libarle’s filing of a 

declaration simply notifying the court of a change in counsel 

did not constitute presentation of the complaint to the court. 

There is no evidence that Libarle presented the complaint to 
17

the court before Torbett served the motion for sanctions, and 

therefore, service of the motion was premature and sanctions 

had to be denied.

Section 128.7, subdivision (c)(1), requires a motion for 

sanctions to “describe the specific conduct alleged to violate 

subdivision (b).” An attorney violates subdivision (b) by 

presenting to the court, whether by “signing, filing, 

submitting, or later advocating,” a pleading or similar paper 

that contains claims presented for an improper purpose, not 

warranted by law or a nonfrivolous argument for a change in 

the law, or containing factual allegations without 

evidentiary support.

The motion for sanctions served on Libarle was based 

entirely on the complaint, which we conclude Libarle had not 

presented to the court at the time that the notice of motion 

was served. The notice purported to give Libarle 21 days

from service of the notice to dismiss the complaint and all 

causes of action. Libarle did not sign or file the offending 

complaint. When Torbett served the motion for sanctions on 

September 29, 2016, Libarle’s only conduct in the case had 

been to file a single declaration, in which Libarle’s only 

statements about the case were that he had been “retained 

to represent the plaintiffs” and he was “unavailable to 

appear [on a particular date and time].” The declaration 

does not submit Primo’s claims to the court or advocate any 

of the claims. In fact, a few weeks after the declaration was 

filed, the trial court made a finding that Primo was still
18

technically self-represented.7 We conclude that at the time 

Libarle was served with the motion for sanctions, Libarle 

had not presented any of the objectionable claims in the 

complaint to the court, whether by signing, filing, submitting 

or further advocating the claims, so he could not be held

liable for sanctions under section 128.7 based on the notice of 

motion that was served. Indeed, as the trial court expressly 

found, Libarle was not even counsel of record at the time the 

notice was served, rendering the notice that he had 21 days 

from that point to dismiss the case premature.

Libarle may have presented Primo’s claims to the court 

through his subsequent conduct in the proceedings, such as 

in opposition to the summary judgment motions, but the 

motion for sanctions that was served in September 2016 did 

not provide notice of specific conduct that violated the 

statute along with a safe harbor period to withdraw or 

correct the pleadings. To seek sanctions for conduct taken 

after the date of the motion served on Libarle, the 

respondents were obligated to serve a new motion describing 

the sanctionable conduct to afford Libarle notice and the safe 

 

7 At the hearing on October 18, 2016, the first hearing 

Libarle was present in court, Torbett argued that the mere 

filing of any papers in a case means the signing attorney is 

certifying the case has merit, citing Banks v. Hathaway, 

Perrett, Webster, Powers & Chrisman (2002) 97 Cal.App.4th 

949 (Banks). Banks does not support the proposition for 

which it was cited, and Torbett does not cite or rely on Banks

on appeal. Nor does Torbett cite other persuasive authority 

for this proposition.
19

harbor period under the statute. (Cf. Peake v. Underwood

(2014) 227 Cal.App.4th 428, 447–448 [a new safe harbor 

period is generally required after an amended pleading is 

filed, but the trial court in Peake did not abuse its discretion 

by imposing sanctions based on an amended pleading 

without a new notice period when the sanctioned party filed 

both the original and the amended pleading containing the 

same frivolous claims, had notice of the defects, and had the 

benefit of the safe harbor period for the original pleading]; 

Lawrence v. Richman Group of Connecticut LLC (2d Cir. 

2010) 620 F.3d 153, 158–159 [vacating award of sanctions 

under rule 11 because renewed motion for sanctions was 

served after dismissal of second amended complaint, so 

sanctioned party never received notice of defect and an 

opportunity to correct second amended complaint].)

California case law supports our conclusion. In 

Optimal, supra, 221 Cal.App.4th at p. 917, the plaintiff filed 

a case that was referred to binding arbitration. After the 

trial court stayed the action pending the conclusion of the 

arbitration proceedings, the plaintiff substituted in new 

counsel. (Id. at pp. 922–923.) Some of the defendants who 

prevailed in the arbitration requested sanctions under 

section 128.7 against the new attorneys for advocating 

frivolous claims, which the trial court denied. (Id. at 

pp. 918, 922.) The appellate court affirmed the order 

denying sanctions. (Id. at p. 922.) Although the new 

attorneys became counsel of record after the complaint was 

filed, the Optimal court found the attorneys did not present 
20

the objectionable pleading to the court by signing, filing, 

submitting or later advocating it. (Id. at pp. 922–923.) The

attorneys advocated the complaint to the arbitrator, but 

advocacy in arbitration did not constitute presentation of the 

claims “to the court” as required under section 128.7. (Id. at 

p. 923.)

The advisory committee note to rule 11 as amended in 

1993 (Advisory Com. Notes, 1993 amend. to Fed. Rules 

Civ.Proc., rule 11, reprinted at 28 U.S.C.A. (2008 ed.) foll. 

rule 11, pp. 10–11) explains the obligation of an attorney or 

unrepresented party under rule 11 as follows: “The rule 

continues to require litigants to ‘stop-and-think’ before 

initially making legal or factual contentions. It also, 

however, emphasizes the duty of candor by subjecting 

litigants to potential sanctions for insisting upon a position 

after it is no longer tenable and by generally providing 

protection against sanctions if they withdraw or correct 

contentions after a potential violation is called to their 

attention. [¶] The rule applies only to assertions contained 

in papers filed with or submitted to the court. It does not 

cover matters arising for the first time during oral 

presentations to the court, when counsel may make 

statements that would not have been made if there had been 

more time for study and reflection. However, a litigant’s 

obligations with respect to the contents of these papers are 

not measured solely as of the time they are filed with or 

submitted to the court, but include reaffirming to the court 

and advocating positions contained in those pleadings and 
21

motions after learning that they cease to have any merit. 

For example, an attorney who during a pretrial conference 

insists on a claim or defense should be viewed as ‘presenting 

to the court’ that contention and would be subject to the 

obligations of subdivision (b) measured as of that time.” The

advisory committee note to rule 11 additionally states that

“if evidentiary support [for an allegation made on 

information and belief] is not obtained after a reasonable 

opportunity for further investigation or discovery, the party 

has a duty under the rule not to persist with that contention. 

Subdivision (b) does not require a formal amendment to 

pleadings for which evidentiary support is not obtained, but 

rather calls upon a litigant not thereafter to advocate such 

claims or defenses.” (Id. at p. 11.)

Federal case law is in accord with our conclusion. In 

Bakker v. Grutman (4th Cir. 1991) 942 F.2d 236, 240, the 

federal court found that a substitution of new counsel, by 

itself, was not enough to conclude that the substitute counsel 

intended to continue prosecution of the lawsuit. When an 

attorney is substituted as counsel of record, the new attorney 

is not deemed to have constructively signed the complaint; 

instead, rule 11 requires a new pleading form the basis for 

imposing sanctions against the successor attorney. (Ibid.)

“Rule 11 imposes upon substitute counsel a duty to 

investigate the legal and factual sufficiency of the claims he 

or she takes up; [citations]; but until substitute counsel files 

some paper indicating an intention to continue prosecution 
22

of the suit, such a decision will not be presumed by looking 

to the complaint itself.” (Ibid., fn. omitted.)

The federal court’s decision in Turner v. Sungard 

Business Systems, Inc. (11th Cir. 1996) 91 F.3d 1418, is 

distinguishable. In Turner, a new attorney filed a notice of 

appearance for the plaintiff. (Id. at p. 1420.) The new 

attorney falsely told the district court during a pretrial 

conference that he had evidence to support a key factual 

contention of the complaint, but later did not oppose a 

motion for summary judgment. (Ibid.) The district court 

granted summary judgment. (Ibid.) The defendant moved 

for sanctions against the new attorney under rule 11, which 

the trial court imposed. (Id. at pp. 1420–1421.) Although

the only paper filed by the attorney with the court was a 

notice of appearance, the Turner court found no abuse of 

discretion in ordering sanctions, because the attorney’s 

appearance and continued advocacy of the plaintiff’s claims 

at the pretrial conference, which occurred before service of 

the notice of motion, “presented” contentions to the court 

which the attorney knew were meritless. (Id. at p. 1421.)

Turner is distinguishable from the instant case, 

because the attorney sanctioned in Turner not only filed a 

notice of appearance but presented meritless claims to the 

court during the pretrial conference. The advisory 

committee note to rule 11 as amended in 1993 explicitly 

states that arguments made to the court during pretrial 

conferences should be viewed as “presenting” the contentions 

to the court. (Advisory Com. Notes, 1993 amend. to Fed. 
23

Rules Civ.Proc., rule 11, reprinted at 28 U.S.C.A. (2008 ed.) 

foll. rule 11, p. 11.) Further, Turner did not present the 

same issues of inadequate notice as present here: in Turner, 

the sanctions were imposed pursuant to an order to show 

cause set by the court, not a defective notice served by 

opposing counsel. (Turner v. Sungard Business Systems, 

Inc., supra, 91 F.3d at p. 1421, fn. 3.) To the extent that a 

portion of the discussion in Turner, read in isolation, implies 

that simply filing a notice of appearance in a meritless case 

is sufficient to violate rule 11, we disagree and find it 

inconsistent with the plain meaning of section 128.7, 

subdivision (b).
24

DISPOSITION

The order is reversed. Appellant Marc Libarle is 

awarded his costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.