The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early, Court Holds

Timothy Kowal, Esq.
October 20, 2022

If an attorney files a frivolous pleading, one of the remedies that should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor.

How long is the 21-day safe harbor? There is now a published decision to tell us. The answer, according to Transcon Financial, Inc. v. Reid & Hellyer, APC (D4d2 Jul. 22, 2022 no. E076728) 81 Cal.App.5th 547, is that the 21-day safe harbor is no less than 21 days. A sanctions motion filed on the 21st day is too early. So the order granting that sanctions motion was reversed on appeal.

In Transcon, the plaintiffs filed a complaint containing a legally frivolous cause of action and alleged confidential financial information for the purpose of harassment. The defendants served a safe-harbor letter by email, attaching a copy of the sanctions motion under Code of Civil Procedure sections 128.5 and 128.7 that they intended to file. Both those sections contain 21-day safe harbor requirements.

So defendants waited. They waited until the 21st day. And then filed the motion on that day. (The 21-day period is extended for service by email, so the defendants included that time as well.)

But filing on the last day of the safe-harbor period was the wrong move. “The moving party must file the motion “outside the safe harbor period,” not “on day one of the safe harbor period, day 21 of the safe harbor period, or any day in between.” [Citation.] In other words, the “sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires.” [Citation.]”

The trial court was “required to deny the sanctions motions, because compliance with the safe harbor provisions was mandatory.” So the sanctions order of $7,570 was reversed.


The opinion contained no real analysis how the shortened safe harbor prejudiced the plaintiff or its attorney here. The purpose of the safe harbor is to provide a reasonable time for the offending party to reconsider its pleading. True, the plaintiff was deprived one day of that period. But there was no mention in the opinion that the plaintiff withdrew its pleading after the sanctions motion was filed. And a review of the docket indicates the offending complaint was not withdrawn. To the contrary, the defendants filed a demurrer to the complaint, and the plaintiffs opposed the demurrer.

So where is the prejudice? The court did not say that the safe-harbor provision is jurisdictional. The court also did not say that the error defies review for harmlessness. And there was pretty clearly no prejudice. So what is going on here?

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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