No. 48402-8-IThe Court of Appeals of Washington, Division One.
Filed: April 8, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 002113536, Hon. William L. Downing, March 23, 2001, Judgment or order under review.
Counsel for Appellant(s), Richard Littleton (Appearing Pro Se), 1415 First Ave. No., Seattle, WA 98109.
Counsel for Respondent(s), Jason P. Holtman, Preston Gates Ellis, 701 Fifth Ave, Ste 5000, Seattle, WA 98104.
Philip M. Guess, Preston Gates Ellis, 701 5th Ave Ste 5000, Seattle, WA 98104-7078.
Theodore J. Angelis, Preston Gates Ellis, 701 5th Ave #5000, Seattle, WA 98104.
PER CURIAM.
Richard Littleton appeals from the trial court’s dismissal of his claims and pending motions on summary judgment. Littleton’s arguments relating to the trial court’s dismissal of his claims, denial of his motions, and sanctions are completely without merit. We affirm the trial court and impose sanctions under RAP 18.9 for a frivolous appeal.
The Seattle Community Network Association is a non-profit organization providing free Internet services and training to the Seattle community. Anyone who meets the requirements in the Association’s bylaws can become a member. Each member has a vote to elect the board of directors. Richard Littleton was a volunteer instructor in the Association’s e-mail training team. Several volunteer instructors use the Association’s instructor e-mail list to communicate with each other about training matters and coordinating sessions. James Haskins, the training team coordinator, was in charge of managing the e-mail list. In 1999, Haskins became concerned over what he viewed as Littleton’s abrasive, confrontational, and abusive conduct on the e-mail list. Haskins brought his concerns to the Association’s leadership. Then Haskins removed Littleton from the e-mail list and training team. Littleton continued to be a member of the Association. Littleton protested his removal to the board of directors and sent the Association a draft legal complaint. Then Littleton, acting pro se, sued Haskins and several board members in their individual capacities for breach of fiduciary duty, breach of contract, negligence, gross negligence, intentional infliction of emotional distress, and defamation. In their Answer to Amended Complaint, the Association’s leaders stated that Littleton’s claims `lack any legal merit or factual support, and are frivolous’ and requested attorney fees under CR 11 and RCW 4.84.185.
In response to Littleton’s voluminous and invasive discovery requests and motions to compel, the Association’s leaders moved the court for a protective order. The court granted the motion and restricted portions of Littleton’s discovery requests. The court additionally ordered Littleton to pay $150 in sanctions.
The Association’s leaders then filed a motion for summary judgment. Littleton opposed the Association’s leaders’ motion for summary judgment with a six-page memorandum. Littleton attached three exhibits to the memorandum. Two of the exhibits were spread sheets of evidence that he did not have, but believed would create a genuine issue of material fact. The third exhibit was a copy of an email from a non-party to the suit that accused Littleton of being abusive and pushy. Littleton argued that summary judgment was improper because all of his discovery requests had not been answered. The court granted summary judgment in favor of the Association’s leadership and dismissed all of Littleton’s claims with prejudice. The court also denied as moot Littleton’s outstanding motions to Shorten Time; Take Summary Judgment Off the Calendar; Allow for Late Filing and Extension of Hearing Date; and Join Parties and Claims. After entry of the order dismissing Littleton’s suit, the Association’s leaders filed a cost bill, in which they requested that the court award them $500 under RCW 4.84.185. The court awarded the requested amount. Littleton appeals. Littleton initially argues that the trial court prematurely granted the Association’s leaders’ summary judgment motion without allowing him to conduct additional discovery. Littleton argues that had the court allowed such discovery, he could have shown genuine issues of material fact. A trial court has discretion to order a continuance to provide the non-moving party with additional time to conduct discovery when such party presents `by affidavit facts essential to justify his opposition’. CR 56(f); Mannington Carpets, Inc. v. Hazelrigg III, 94 Wn. App. 899, 902, 973 P.2d 1103 (1999). However, summary judgment is proper when the evidence sought will not raise a genuine issue of material fact. Tellevik v. 31641 West Rutherford Street, 120 Wn.2d 68, 90, 838 P.2ds 111 (1992).
In his memorandum opposing summary judgment, Littleton attached a list of facts he wanted to discover, including the names of witnesses known to the Association’s leaders, the Association’s budget information, the Association’s board and committee communications, spread of defamatory discussion known to the leaders, and some unidentified guidelines. Because Littleton failed to provide a meaningful explanation as to how his proposed additional discovery would create genuine issues of material fact with respect to his claims, the trial court did not abuse its discretion in refusing to delay the hearing on the motion.
We review a summary judgment order de novo, engaging in the same inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Summary judgment is proper if the court, viewing all facts and reasonable inferences in a light most favorable to the non-moving party, finds no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ellis, 142 Wn.2d at 458. A lawsuit must be dismissed when a defendant can demonstrate that the plaintiff is unable to establish a critical element of his claim. In re Estate of Hansen, 81 Wn. App. 270, 285, 914 P.2d 127 (1996).
Because Littleton challenges the trial court’s grant of summary judgment in favor of the Association’s leaders, we examine the evidence considered by the trial court to see if it raises a genuine issue of material fact for trial. When a motion for summary judgment is made and supported as provided by CR 56, an adverse party may not rest upon the mere allegations of his pleading, but his response, by affidavits or as otherwise provided CR 56, must set forth specific facts showing that there is a genuine issue for trial. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). If he does not so respond, summary judgment, if appropriate, shall be entered against him. CR 56(e); Grimwood, 110 Wn.2d at 359. A fact is something that “took place, an act, an incident, a reality as distinguished from supposition or opinion.” Grimwood, 110 Wn.2d at 359. The facts required by CR 56(e) to defeat a summary judgment motion are evidentiary in nature. Grimwood, 110 Wn.2d at 359. Ultimate facts or conclusions of fact are insufficient Grimwood, 110 Wn.2d at 360. Likewise, conclusory statements of fact will not suffice. Grimwood, 110 Wn.2d at 360.
The Association’s leaders argued that the bylaws did not contain any provisions creating a fiduciary duty between them and the volunteers and supported this argument with an affidavit. Littleton contends that the trial court erred in dismissing his breach of fiduciary duty claim because the Association’s leaders disregarded their grievance policy. Littleton did not provide any affidavit or other document to bring into dispute the existence of any such policy. Littleton suggested that such a policy may exist, but the Association’s leaders had not answered his request that they produce “all guidelines, published to the membership . . . which authorized the dismissal of Rich Littleton’. On appeal, he renews his argument that the Association has a grievance policy by reference to an “exhibit” attached to his appellate brief. This “exhibit” was apparently not before the trial court. It simply makes the conclusory and self-serving statement that the “blank exhibit page demonstrates the lack of discovery . . . references . . . to this page . . . are references to discovery items which were withheld by the defense.” This document is not evidence of a grievance policy, and provides no reason to think any evidence exists. Littleton also argues on appeal that the Association’s leaders had the fiduciary duty to investigate the allegations made against him and not withhold the specifics of the complaint against him. To support the duty to investigate allegation, Littleton cites to his own unsupported conclusions contained in his Motion to Compel. This does not rise to the level of admissible evidence required by CR 56(e); Grimwood, 110 Wn.2d at 359-60. Likewise, Littleton has not offered any evidence or legal authority to support the existence of a duty on the part of the Association’s leaders to disclose the specifics of a complaint against him.
The trial court properly dismissed Littleton’s fiduciary duty claim because he failed to raise a genuine issue of material fact in opposition to summary judgment. Littleton argues that the trial court erred in dismissing his negligence claims because the Association’s leaders did not investigate the basis of his removal or comply with its bylaws and grievance procedures. To survive a summary judgment motion, Littleton had to show that the Association’s leaders owed him a duty. Rodriguez v. Perez, 99 Wn. App. 439, 443, 994 P.2d 874 (2000). Because Littleton did not provide any authority recognizing a duty owed by a non-profit organization’s leadership to a volunteer and did not provide any evidence of the Association’s bylaws, the trial court properly dismissed his negligence claims. See Garvey v. Seattle Tennis Club, 60 Wn. App. 930, 933-34, 808 P.2d 1155 (1991) (“When courts intervene in the internal affairs of a social club it is only to determine whether the club has violated its own rules.”). Littleton argues that the trial court erred in dismissing his contract claim because the Association’s leaders were in breach when they did not follow the unidentified grievance procedures. However, as Littleton failed to introduce evidence raising a genuine issue of material fact regarding the existence of any grievance procedures or any evidence demonstrating the existence of a contract, the trial court properly dismissed this claim. See Ottgen v. Clover Park Technical College, 84 Wn. App. 214, 219, 928 P.2d 1119 (1996) (party alleging a contract bears the burden of proving the existence of such a contract). Littleton also argues that the trial court erred in dismissing his defamation claim. To sustain a defamation claim, the plaintiff must demonstrate falsity, an unprivileged communication, fault, and damages Demopolis v. Peoples Nat’l Bank of Washington, 59 Wn. App. 105, 108, 796 P.2d 426 (1990). Littleton failed to introduce any evidence of false statements or damages. He merely rests on his allegation that the Association’s leaders falsely claimed that Littleton was abusive in e-mail and that he suffered `public humiliation’. Because these allegations were not supported by affidavit or other admissible evidence, Littleton failed to raise any genuine issue for trial on these essential elements of his claim. Grimwood, 110 Wn.2d at 359-60. On appeal, Littleton argues that he can demonstrate the falsity of the Association’s leaders’ accusation. However, the only evidence cited to is his own conclusion about the existence of evidence in his Motion to Compel. Littleton’s self-serving conclusion does not create a genuine issue for trial. Grimwood, 110 Wn.2d at 359-60. Littleton assigns error to the trial court’s denial of his motion to disqualify the Association’s leaders’ former attorneys. However, the challenged attorneys withdrew after Littleton’s motion, and Littleton did not move to disqualify the leaders’ current attorneys. Thus, this issue is moot, and we decline to consider it. See State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105
(1995). Littleton also assigns error to the trial court’s denial of his motion to add the Association as a party.
However, he fails to set forth any argument or cite any legal authority on this issue. Littleton simply states that because the summary judgment should be reversed, the trial court’s dismissal of this motion as moot should also be reversed. Because the trial court properly dismissed Littleton’s case on summary judgment, the trial court’s dismissal of all pending motions was also proper.
We decline to consider Littleton’s argument that the trial court erred in not awarding him fees for the Association’s leaders’ alleged bad faith conduct as he fails to cite to, and we cannot find, any record showing that he presented such arguments first to the trial court. State v. Wicke, 91 Wn.2d 638, 643, 591 P.2d 452 (1979) (a party may not fail to bring an error that could have been cured or otherwise ameliorated to the trial court’s attention and then raise the issue for the first time on appeal).
Littleton argues that the trial court abused its discretion in ordering $150 discovery sanctions against him. We review the discovery sanctions awards for abuse. Washington State Physicians Ins. Exchange Ass’n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993).
Littleton served the Association’s leaders with two sets of requests for discovery. In all, Littleton propounded more than a hundred mixed interrogatories, requests for production, and requests for admissions, including several requests for admission regarding the mental health of an Association member who was not party to the suit. Request For Admission No. 11: Sharma Oliver was hyper-sensitive to dealing with men due to a traumatic upbringing.Request For Admission No. 12: SCNA board members knew of the traumatic history of Sharma Oliver. Request For Admission No. 13: CNA board members knew that Sharma Oliver was hyper-sensitive due to her traumatic upbringing.
The trial court denied Littleton’s motions to compel discovery and granted the Association’s leaders’ motion for entry of a protective order. The court awarded the Association leaders $150 for the cost of bringing their motion.
A party requesting discovery must certify under CR 26(g) that, to the best of his knowledge, information, and belief formed after a reasonable inquiry, the request is not interposed for any improper purpose and is not unreasonable or unduly burdensome. If a party certifies his discovery request in violation of CR 26(g), the court shall, upon motion or sua sponte, impose upon the party an appropriate sanction. CR 26(g).
In denying Littleton’s motion to reconsider, the trial court stated that if Littleton wanted to avoid sanctions, he should have made reasonable efforts to resolve the discovery disputes. It is this Court’s general view that lawyers and litigants must exercise their best attributes of reasonableness, flexibility and persuasiveness in order to resolve discovery disputes without burdening the Court with unnecessary oversight responsibilities. Happily, this expectation is usually met. When it is not, the Court’s practice is to impose either token or more substantial costs against a litigant or a lawyer the Court feels is in need of encouragement to strive harder to embody those attributes.
In this case, a protective order should have been arrived at through agreement and the request for production of mental health records should have been withdrawn.
Littleton’s refusal to withdraw the highly objectionable discovery requests was a tenable basis for the order of sanctions. Accordingly we find no abuse of discretion.
Littleton also contends that the trial court erroneously imposed $500 sanctions under the frivolous lawsuit statute, RCW 4.84.185. We review the imposition of such sanctions for abuse of discretion. State ex rel Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998). An action is frivolous if unsupportable by any rational argument on the law or facts. Forster v. Pierce County, 99 Wn. App. 168, 183, 991 P.2d 687
(2000).
The Association’s leaders listed as an affirmative defense that Littleton’s claims “lack any legal merit or factual support, and are frivolous” in their Answer to Amended Complaint. The Association’s leaders requested attorney fees under CR 11 and RCW 4.84.185. Littleton’s claims against the Association’s leaders were meritless. Contrary to Littleton’s characterization of the matter, there simply was no evidence on the record supporting any of his allegations, and Littleton presented no legal theory under which the Association’s leaders could have owed him a duty. Furthermore, Littleton had notice that sanctions were contemplated against him from the onset of the action. The Association’s leaders raised CR 11 and RCW 4.84.185 as an affirmative defense in their answer.
The trial court did not abuse its discretion in awarding costs pursuant to RCW 4.84.185. RAP 18.9 allows the appellate court to award sanctions for a frivolous appeal. An appeal is frivolous when there are no debatable issues over which reasonable minds could differ and there is so little merit that the chance of reversal is slim. RAP 18.9(a); Kearney v. Kearney, 95 Wn. App. 405, 417, 974 P.2d 872 (1999). Littleton’s appeal meets this standard. We grant the Association’s leaders’ request for attorney fees and costs on appeal, subject to compliance with RAP 18.1(d).