Fourth District, Division 2 Finds Summary Judgment Grant Did Not Divest Trial Court of Jurisdiction to Rule on Previously Served 128.7 Sanctions Motion.
The next case reminds all litigators that some client control becomes necessary when a plaintiff contradicts the main theory of his/her complaint at a deposition. Sanctions frequently will result unless the complaint is withdrawn after a 128.7 “safe harbor” motion is served.
In Umberger v. Mount Baldy Ski Resort, Case No. E048337 (4th Dist., Div. 2 Mar. 18, 2010) (unpublished), plaintiff undermined the slope accident theory espoused in her complaint at a deposition, with her litigation attorney refusing to dismiss the complaint under a threat that ski resort would seek sanctions. Ski resort moved for summary judgment and, while the motion was pending for hearing, served (but did not file) the 128.7 sanctions under the “safe harbor” requirements. Only then did plaintiff’s attorney wake up, offering to dismiss the complaint for a cost waiver, an offer rejected by ski resort because of the summary judgment costs it had incurred.
(BLOG OBSERVATION—Plaintiff’s counsel could have still withdrawn the complaint, but might have faced a routine cost bill—which would have been less painful than what occurred.) Plaintiff’s attorney failed to file any summary judgment opposition and had another attorney appear to argue at the SJ hearing, which all resulted in a granting of the motion. Then, Mount Baldy filed its 128.7 motion on a complaint false allegations theory, winning $20,468.06 against plaintiff’s attorney.
Attorney’s appeal was unsuccessful. Defense counsel did serve the 128.7 “safe harbor” motion in timely fashion, serving it by mail but allowing 28 days for a response before filing the motion. Attorney primarily argued that the sanctions motion was moot after the summary judgment grant, but the appellate panel found that this was not a voluntary dismissal (the aim of the 128.7 “safe harbor” procedure in the first place) and that the trial court was not divested of jurisdiction to hear the sanctions motion. (Day v. Collingwood, 144 Cal.App.4th 1116, 1126-1129 (2006).) The trial court also did not abuse its discretion in awarding sanctions, because plaintiff’s deposition testimony showed she stepped outside the delineated slope boundaries and assumed the risk of what happened next (collision with a tree resulting in facial injuries). Also, attorney’s failure to dismiss before ski resort ran up significant litigation expenses showed the sanctions was a proper penalty.
BLOG UNDERVIEW—Successful defense counsel was none other than Joseph P. Collins, one of co-contributors Marc and Mike’s colleagues at Adorno Yoss Alvarado & Smith, who had the assistance of Mikel Glavinovich. Congratulations, Joe and Mikel, for following the proper 128.7 procedure and the appellate triumph.