Umberger v. MountBaldy Ski Resort

Filed 3/18/10 Umberger v. Mount Baldy Ski Resort CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Affirmed.

Swanson Law Firm and Julia S. Swanson for Objector and Appellant.

Adorno Yoss Alvarado & Smith, Joseph P. Collins and Mikel Glavinovich for Defendant and Respondent.

I. Introduction

The appellant in this case is Lowell Steiger, a lawyer who represented the plaintiff, Leigh Umberger, in a personal injury action against Mount Baldy Ski Resort. The court first granted Mount Baldys motion for summary judgment and then granted Mount Baldys motion for sanctions in the amount of $20,468.06. Steiger appeals the sanctions order issued against him. (Code Civ. Proc.,  904.1, subd. (a)(12).)^[1]

On appeal, Steiger argues the motion for sanctions was procedurally defective and the court abused its discretion in granting the motion. We disagree on both points and affirm the judgment.

II. Factual and Procedural Background

In September 2006, Steiger filed an unverified complaint on behalf of Umberger seeking damages for injuries suffered by her while snowboarding. The allegations included the following about representations purportedly made to Umberger: Prior to embarking on the ski lift to the top of the ski and snowboard slope Plaintiff was affirmatively advised that if she remained within the confines of the yellow roped area she would be safe from collapsing unstable slopes. Plaintiff was further affirmatively advised by Defendants employees prior to ascending to the top of the trail that the white ropes represented the portion of the ski run upon which skiers and snowboarders were free to run down the hill and that area beyond the white ropes was an area safe to rest in, away from the path of skiers and snowboarders but safe from landslide and collapse. When plaintiff ventured beyond the ropes, the slope collapsed. Plaintiff collided with a tree and suffered disfiguring facial injuries.

After filing an answer, Mount Baldy took plaintiffs deposition in February 2008, in which she stated that her purpose in going past the ropes was to relieve herself and in which she denied having any conversation with a Mount Baldy employee as alleged in the complaint.

On August 20, 2008, Mount Baldys attorney, Joseph Collins, wrote Steiger a letter, explaining that plaintiffs deposition contradicted the allegations of the complaint. Collins asked Steiger to dismiss the case and threatened to file a summary judgment motion and seek more than $10,000 in damages. Steiger did not respond.

Based on Umbergers deposition and the defense of assumption of risk, Mount Baldy filed a summary judgment motion on October 28, 2008. At that point, while Steiger believed he had a valid legal argument for the failure to warn/negligence cause of action, nevertheless he recognized there were risks in the courts interpretation of the duty, and did not want to be exposed to the threat of sanctions upon his client should this theory be found wanting before the court. Even so, Steiger did not contact Mount Baldys attorney immediately.

On December 19, 2008, Mount Baldy served Steiger with a motion for sanctions. The basis for the motion was that Steiger had made false allegations in the complaint ( 128.7, subd. (b)) and refused Mount Baldys request on August 20, 2008, to dismiss the complaint. After December 19, Steiger offered to dismiss the complaint for a waiver of costs. But Mount Baldy would not agree and proceeded with its summary judgment motion.^[2]

Steiger did not file opposition to the summary judgment motion but another attorney, Benson Garrett, made a special appearance at the hearing on January 7, 2009, and argued the motion should be denied. The court granted the motion and the order was filed on January 15, 2009.^[3]

Subsequently, on January 16, 2009, Mount Baldy filed its motion seeking sanctions against Steiger for violating section 128.7 by asserting false allegations in the complaint.

In his opposition to the motion for sanctions, Steiger explained that, before December 19, 2008, he did not respond to the threat of sanctions, for the complained of error in the Complaint did not concern the substance of the negligence cause of action.

The trial court granted the sanctions motion on April 10, 2009.

III. Analysis

A. The 21-Day Safe Harbor Provision

Steiger first asserts that the trial court erred in ordering sanctions against him because Mount Baldy did not comply with the safe harbor provisions of section 128.7, subdivision (c)(1), by serving its motion for sanctions 21 days before filing it with the court.

Under section 128.7, Mount Baldy had to follow a two-step procedure. First, Mount Baldy had to serve Steiger with a motion for sanctions. Service of the motion on Steiger began a 21-day safe harbor period during which the sanctions motion could not be filed with the court. During the safe harbor period, Steiger could have withdrawn or dismissed the complaint and thereby avoided sanctions. If the complaint was withdrawn, the motion for sanctions could not be filed with the court. If the complaint was not withdrawn during the safe harbor period, the motion for sanctions was then properly filed. (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440.)

Steiger misrepresents the record by asserting that the sanctions motion was filed on January 9, 2009, before the 21-day safe harbor period had expired. Instead, the record shows Mount Baldy first served the sanctions motion on Steiger by mail on December 19, 2008. Mount Baldy filed the motion on January 16, 2009, 28 days later, for a hearing on February 10, 2009. Therefore, Mount Baldy did not violate the 21-day safe harbor rule because the sanctions motion was filed after the expiration of the 21 days, including an additional five days for mailing.

We also find no legal support for Steigers claim that, after summary judgment was granted, the sanctions motion was moot and could not be filed. Steiger misinterprets Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 975, which explains: The availability of section 128.7 sanctions against an offending plaintiff that has voluntarily dismissed its action depends upon whether the sanctions motion was filed before or after the dismissal. Hart v. Avetoom (2002) 95 Cal.App.4th 410 (Hart) recently held that a defendant could not obtain section 128.7 sanctions by filing a motion for them after a voluntary dismissal. The court held that to allow such a motion would completely defeat the purpose of the safe harbor provision. (Hart, supra, at p. 414.)

Here the sanctions motion was viable because Steiger never voluntarily dismissed the complaint in compliance with section 128.7. Therefore, the sanctions motion was properly filed on January 16, 2009, even though summary judgment had been granted. The trial court had jurisdiction to consider defendants motion for sanctions against Steiger even though the motion was served on December 19, 2008, but filed following a grant of summary judgment on January 15, 2009, in defendants favor and before entry of judgment on January 30, 2009. (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1126-1129, distinguishing Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126.)

B. Abuse of Discretion

Section 128.7, subdivision (b), provides: (b) 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 persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [] . . . []

(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.

A trial courts award of sanctions under section 128.7 is discretionary. (See  128.7, subd. (c)(1).) The Court of Appeal reviews a trial courts exercise of that discretion for an abuse of discretion. (Day v. Collingwood, supra, 144 Cal.App.4th at 1130, citing Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

Steigers second contention is it was an abuse of discretion to award sanctions because Umberger had a viable theory of liability unrelated to the false allegations in the complaint and, notwithstanding the merits of the complaint, Steiger acted expeditiously in seeking to dismiss the case.

We disagree that, irrespective of the complaints false allegations, plaintiff could present a valid claim. The risks inherent in skiing, and, by analogy, snowboarding, include variations in terrain, surface or subsurface snow or ice conditions, natural growths or debris, and other skiers. (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12; ODonoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193.) In the present case, plaintiff left the ski run and ventured into unchartered territory. She assumed the risk of stepping outside the boundaries. She admits she was never cautioned about her conduct being unsafe. Based on assumption of the risk and in absence of evidence of a failure to warn, her complaint lacked any substance.

As to the latter point about when Steiger sought to dismiss the complaint, the record again does not support Steigers characterization of what occurred. Instead, it shows that Steiger did not take any action after plaintiffs deposition of February 2008. He ignored the letter by Mount Baldy asking for dismissal in August 2008. He did not oppose the summary judgment filed in October 2008 because he knew his client would lose. He did not communicate with Mount Baldys counsel until after December 19, 2008, in response to the pending sanctions and summary judgment motions. This occurred after Mount Baldy had already incurred significant litigation expenses, completely justifying its refusal to dismiss the complaint in exchange for a waiver of costs. Furthermore, Steiger even sent substitute counsel to argue orally that the summary judgment should be denied.

Under these circumstances, we do not find an abuse of discretion in awarding sanctions against Steiger for filing a complaint and failing to dismiss it promptly when its falseness was exposed. (Eichenbaum v. Alon, supra, 106 Cal.App.4th at p. 977.)

IV. Disposition

The order imposing sanctions is affirmed. The parties shall bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Richli

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Miller

J.

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^[1] All statutory references are to the Code of Civil Procedure unless stated otherwise.

^[2] During oral argument, the attorneys agreed that their discussions about dismissing the case occurred between December 19 and 24, 2008.

^[3] Judgment was filed on January 30, 2009.