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                             2013 AUG 13 Pi; 12: 2*



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



JUSTIN LEONARD,                                             No. 67343-2-1


                    Appellant,                              DIVISION ONE


               v.



GRUBB & ELLIS EQUITY ADVISORS,                              UNPUBLISHED
PROPERTY MANAGEMENT, INC., a
Delaware corporation doing business in                      FILED: August 19, 2013
the state of Washington; KONE, INC., a
Delaware corporation doing business in
the state of Washington; OTIS
ELEVATOR CO., a New Jersey
corporation doing business in the state
of Washington; MICROSOFT CORP., a
Washington corporation; PUGET
SOUND ENERGY, INC., a Washington
corporation,

                     Respondents.



       Cox, J. — The elements of a negligence claim that a plaintiff must prove

are duty, breach, causation, and injury.1 Duty is a question of law for the courts
to decide.2



       1 Xiao Ping Chen v. City of Seattle, 153 Wn. App. 890, 899, 223 P.3d
1230 (2009) (quoting Keller v. City of Spokane, 146Wn.2d 237, 242, 44 P.3d
845 (2002)).

       2 Michaels V.CH2M Hill. Inc., 171 Wn.2d 587, 597, 257 P.3d 532 (2011).
No. 67343-2-1/2



          Here, Justin Leonard fails to show that Grubb & Ellis Advisors, Inc. owed

him a duty. Accordingly, there are no genuine issues of material fact for trial.

The trial court properly granted summary judgment dismissing this action. We

affirm.


          The facts are largely undisputed. On July 25, 2007, there was a power

fluctuation at the Microsoft campus in Redmond. This power interruption caused

three "chiller plants," which housed part of the campus's air regulation system, to

shut down briefly. When the power was restored, all three plants started up at

the same time. The large increase in current overloaded the electrical system on

the campus and blew a fuse. This blown fuse caused power outages to several

buildings on the Microsoft campus including building 26.

          Before the power outage, Leonard, an employee of Microsoft, entered an

elevator in building 26. When the power went out, the elevator's emergency

breaks activated. Leonard claims to have been injured when the elevator

stopped suddenly.

          Leonard sued five defendants for negligence: Grubb & Ellis; Microsoft

Corp.; Otis Elevator, Co.; Puget Sound Energy, Inc.; and Kone, Inc. It appears

that Leonard voluntarily dismissed his claims against Microsoft and Otis. The

trial court granted Kone's and Puget Sound Energy's motions for summary

judgment.

          The remaining defendant, Grubb & Ellis, the property managers for the

Microsoft Redmond campus at the time of power disruption, moved for summary

judgment. The trial court granted the motion.
No. 67343-2-1/3


       Leonard appeals.

                                         DUTY


       Leonard argues that there are genuine issues of material fact for trial on

his negligence claim against Grubb & Ellis. Specifically, he argues that as a

Microsoft employee, it was foreseeable that he would be harmed or injured when

Grubb & Ellis allegedly failed to adequately operate, maintain, and manage

electrical equipment in their control. We hold that Leonard's failure to

demonstrate that Grubb & Ellis owed him any duty supports the grant of its

motion for summary judgment.

       In a motion for summary judgment, "the moving party bears the initial

burden of showing the absence of an issue of material fact."3 The moving party
may meet this initial burden "by 'showing—that is, pointing out to the [trial]

court—that there is an absence of evidence to support the nonmoving party's

case.'"4 "If the moving party is a defendant and meets this initial showing, then
the inquiry shifts to the party with the burden of proof at trial, the plaintiff."5 The
plaintiff must then "'make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the

burden of proof at trial....'"6


       3Youngv.KevPharm., Inc.. 112 Wn.2d 216, 225, 770 P.2d 182(1989).

       4]p\ at 225 n.1 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

       5 Id at 225 (footnote omitted).
       6]p\ (quoting Celotex. 477 U.S. at 322).
No. 67343-2-1/4



        This court reviews de novo a trial court's order granting a party's motion

for summary judgment.7 "Summary judgment should be upheld if the pleadings,
affidavits, depositions, and admissions on file demonstrate that there is no

genuine issue as to any material fact and the moving party is entitled to judgment

as a matter of law."8

        "The elements of negligence are duty, breach, causation, and injury.'"9
Duty is a question of law for the court to decide.10 An "'actor ordinarily has a duty
to exercise reasonable care when the actor's conduct creates a risk of physical

harm.'"11

        To determine whether a duty is owed to a plaintiff, a court must:

        not only decide who owes the duty, but also to whom the duty is
        owed, and what is the nature of the duty owed. The answer to the
        second question defines the class protected by the duty and the
        answer to the third question defines the standard of care.[12]




        7Sheikh v. Choe. 156 Wn.2d 441, 447, 128 P.3d 574 (2006) (quoting
Jones v. Allstate Ins. Co.. 146 Wn.2d 291, 300, 45 P.3d 1068 (2002)).

        8 Hutchins v. 1001 Fourth Ave. Assocs.. 116 Wn.2d 217, 220, 802 P.2d
1360(1991).

        9Xiao Ping Chen, 153 Wn. App. at 899 (quoting Keller, 146 Wn.2d at
242).

        10 Michaels. 171 Wn.2d at 597.

        11 Id. at 608 (quoting Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 7(a) (2010)).

        12 Keller. 146 Wn.2d at 243 (citing Wick v. Clark County. 86 Wn. App. 376,
385-86, 936 P.2d 1201 (1997) (Morgan, J., concurring)).
No. 67343-2-1/5


       "When a duty is found to exist from the defendant to the plaintiff then

concepts offoreseeability serve to define the scope of the duty owed."13
       Here, as the supreme court's opinion in Schoolev v. Pinch's Deli Market,

Inc. makes clear, the threshold question is whether Grubb & Ellis owed a duty to

Leonard.14 In its motion for summary judgment, Grubb &Ellis argued that it
"does not have a duty to provide a steady flow of electricity to the Microsoft

Campus, or to prevent power fluctuations and/or power surges which originate

from PSE."15 Based on this assertion, the burden then shifted to Leonard to

demonstrate that Grubb &Ellis did owe him a duty, and what that duty was.16 He
failed to do so.

       Leonard argues that "Grubb &Ellis clearly owed [him] a duty . . . .17 But,
nowhere in his briefing either here or before the trial court does he clarify what

duty he asserts is so "clear." Likewise, he fails to cite pertinent authority to show

the existence of any duty. Accordingly, the trial court properly dismissed

Leonard's negligence claim.18


       13 Schoolev v. Pinch's Deli Mkt. Inc.. 134 Wn.2d 468, 475, 951 P.2d 749
(1998).

       14 jd, at 474-75.

       15 Clerk's Papers at 7.
       16 Young, 112 Wn.2d at 225.

       17 Clerk's Papers at 138.
      18 See Cowiche Canyon Conservancy v. Boslev. 118Wn.2d 801, 809, 828
P.2d 549 (1992) (explaining that a court need not consider arguments
unsupported by authority).
No. 67343-2-1/6


       Instead, of demonstrating a duty owed by Grubb & Ellis, Leonard appears

to argue that if he is able to demonstrate that he was a foreseeable plaintiff then

a duty is implied. That is not the law under Schoolev and other cases.

       Leonard states, both in his opening and reply brief that "[i]n deciding

whether a duty was owed, foreseeability of the risk created by the defendant is

determined."19 He relies on Higgins v. Intex Recreation Corp.20 There, Division

Three of this court stated that "'[w]hether the defendant owed the plaintiff a duty .

. . turns on the foreseeability of the injury . . . .'"21 But, in Higgins. the court was
analyzing a case involving the duty owed by a reasonably prudent person, not an

unrecognized duty that might be owed by a party.22 Here, Leonard is attempting
to show a duty not previously recognized. In cases such as this, foreseeability

serves to define the scope of the duty owed.23 As our supreme court has often
noted, "'[w]hen a duty is found to exist from the defendant to the plaintiff then

concepts offoreseeability serve to define the scope ofthe duty owed."24 Thus,
whether it was foreseeable that a Microsoft employee might be injured as a result



       19 Brief ofAppellant at 10; Reply Brief ofAppellant at 11 (citing Higgins v.
Intex Recreation Corp.. 123 Wn. App. 821, 837, 99 P.3d 421 (2004) (quoting
Rasmussen v. Bendotti. 107 Wn. App. 947, 956, 29 P.3d 56 (2001))).

       20 123 Wn. App. 821, 99 P.3d 421 (2004).

       21 Id. at 837 (some alterations in original) (quoting Rasmussen, 107 Wn.
App. at 956).

       22 Id. (emphasis added).
       23 Michaels, 171 Wn.2d at 608 (quoting Schopjey, 134 Wn.2d at 475).

       24 ]d_, (alternations in original) (emphasis added).
No. 67343-2-1/7



of power fluctuations is not the preliminary question. Rather, the question is

whether Grubb & Ellis owed a duty to maintain electrical power to the Microsoft

campus in a particular way. Leonard does not present argument or citation to

authority to show such a duty.

       Leonard argues that Grubb & Ellis failed to address the breach of its duty

to him and how this breach proximately caused his injuries. In so arguing, he

relies on Wells v. City of Vancouver.25 There, the supreme court held that

judgment against the city was proper where its airport hangar was not

constructed to withstand wind speeds that were generally required for buildings

in the area.26 But, in Wells, before proceeding to other analysis, the court first

noted that the "defendant, as a property owner, owed the plaintiff, as an invitee,

the duty ofexercising ordinary care."27 Here, Leonard disclaims any premises
liability claims. Nor is he able to articulate a duty that Grubb & Ellis might have

owed him. Thus, Wells is unhelpful.

       Leonard did note that Grubb & Ellis admitted that it is "fully responsible . . .

for electrical and related services of all Microsoft's facilities in Puget Sound."28
But Leonard fails to explain how this "responsibility" creates a duty to Microsoft

employees. Such an argument could be interpreted as one alleging that Leonard

is a third-party beneficiary of the contract between Microsoft and Grubb & Ellis.


       25 77 Wn.2d 800, 467 P.2d 292 (1970).

       26 id, at 804-05.

       27 id, at 803.

       28 Clerk's Papers at 138.
No. 67343-2-1/8


But Leonard specifically disclaimed any third party beneficiary claim in his

briefing. Thus, we need not address this point any further.

       Leonard also contends that Grubb & Ellis did not meet the standard of

care required of it as a property manager.29 But this argument addresses only
Grubb & Ellis's potential breach. Because Leonard cannot demonstrate it owed

him a duty, any breach is immaterial for summary judgment purposes.

       Finally, Leonard contends that Grubb & Ellis failed to dispute his assertion

that he suffered harm as a proximate cause of its breach. While this is true, it is

also immaterial for summary judgment purposes.

                      CROSS-MOTIONS FOR SANCTIONS

       Each party has moved for sanctions against the other based on matters

arising from Grubb & Ellis having filed a Chapter 11 petition for relief in New York

under the Bankruptcy Code. We deny Leonard's motion and impose sanctions

for a frivolous motion against him in favor of Grubb & Ellis.

       CR 11 serves as a basis for both motions. That rule requires attorneys to

date and sign all pleadings, motions and legal memoranda, thus certifying that:

       to the best of the .. . attorney's knowledge, information, and belief,
       formed after reasonable inquiry it [the pleading, motion or
       memoranda] is well grounded in fact and is warranted by existing
       law or a good faith argument for the extension, modification, or
       reversal of existing law, and that it is not interposed for any
       improper purpose, such as to harass or to cause unnecessary
       delay or needless increase in the cost of litigation.




       29 Brief of Appellant at 10 (quoting Ulve v. City of Raymond. 51 Wn.2d
241, 245, 317 P.2d 908 (1957)).


                                             8
No. 67343-2-1/9


"The purpose behind CR 11 is to deter baseless filings and to curb abuses of the

judicial system."30
       A filing is "baseless" when "it is '(a) not well grounded in fact, or (b) not

warranted by (i) existing law or (ii) a good faith argument for the alteration of

existing law.'"31
             If a complaint lacks a factual or legal basis, the court cannot
       impose CR 11 sanctions unless it also finds that the attorney who
       signed and filed the complaint failed to conduct a reasonable
       inquiry into the factual and legal basis ofthe claim.1321
       "The burden is on the movant to justify the request for sanctions."33 CR 11
permits a court to award sanctions, including reasonable expenses and attorney

fees incurred because of the filing of a frivolous lawsuit.

       Under RAP 18.9, this court may sanction a party for a frivolous motion,

whether or not such a motion also violates CR 11.

       Here, while this case was pending on appeal, Grubb & Ellis filed its

petition for relief in New York under Chapter 11 of the Bankruptcy Code. In

March 2012, this court directed the parties to inform it "regarding the impact, if

any of the notice of bankruptcy filing" of Grubb & Ellis.




       30 Bryant v. Joseph Tree. Inc.. 119 Wn.2d 210, 219, 829 P.2d 1099 (1992)
(some emphasis in original).

      31 West v. Wash. Ass'n of County Officials, 162 Wn. App. 120, 135, 252
P.3d 406 (2011) (quoting MacDonald v. Korum Ford. 80 Wn. App. 877, 883-84,
912P.2d 1052(1996)).

       32 Bryant, 119 Wn.2d at 220 (some emphasis added).

       33 Biggs v. Vail. 124 Wn.2d 193, 202, 876 P.2d 448 (1994).
No. 67343-2-1/10



        Each party did so by April 2012. Specifically, Grubb & Ellis advised that

an automatic stay was in place, pursuant to 11 U.S.C. § 362(a) and that no

exception to that stay applied. Leonard disagreed, claiming an exception to the

automatic stay applied because liability insurance existed for his asserted claim.

Implicit in this position was Leonard's assumption that this appeal could proceed

against Grubb & Ellis, notwithstanding the statutory automatic stay against "all

actions or proceedings" against the debtor, Grubb & Ellis, in bankruptcy. This

court disagreed with Leonard's argument and stayed the appeal, subject to

Leonard obtaining an order modifying the stay from the bankruptcy court in New

York.


        Following this court's stay of this appeal, New York bankruptcy counsel for

Grubb & Ellis filed pleadings in that bankruptcy court indicating that the debtor

had "been negotiating stipulations which will permit claimants to proceed with the

claims solely to the extent of available insurance and waive any claims against

[Grubb & Ellis]." Thereafter, it appears Leonard entered into such a stipulation

through separate New York bankruptcy counsel with Grubb & Ellis's own New

York bankruptcy counsel.

        Leonard then moved for CR 11 sanctions in this court against Grubb &

Ellis. His argument appears to be that the March 2012 letter to this court violates

the rule. Specifically, Leonard claims reasonable inquiry in March 2012 would

have revealed to Grubb & Ellis's Washington attorneys that stipulations were

being entered into between Grubb & Ellis and its other creditors. According to

this line of argument, Grubb &Ellis's Washington attorneys had a duty to


                                             10
No. 67343-2-1/11


determine this information and disclose it to Leonard so that he could pursue

available insurance proceeds. This argument does not support the imposition of

CR 11 sanctions.

       First, the March 2012 letter from Grubb & Ellis's counsel to this court as to

the effect of the automatic stay was not improper. The letter stated that "[n]o

exception to the automatic stay applies in this matter." It also noted that "[a]ny

action taken by the Court when the bankruptcy stay is in place is considered a

void action." These are factually and legally correct statements. As mandated

by 11 U.S.C. § 362(a) of the Bankruptcy Code, this proceeding was automatically

stayed when Grubb & Ellis filed its petition in New York.

       Moreover, under controlling federal bankruptcy law, the only court

authorized to provide relief from the stay was the bankruptcy court in New York.

There was simply no authority to allow this appeal to proceed while the

bankruptcy stay was in effect. This court's lack of authority in the face of a

federal bankruptcy stay is so regardless of whether insurance proceeds to satisfy

the claim existed. Thus, Leonard's arguments simply do not support a claim for

CR 11 sanctions.

       Second, Leonard appears to argue that statements contained in the March

2012 letter were baseless because Grubb & Ellis was negotiating stipulations

with other creditors to allow litigation to proceed. The problem with this argument

is that it fails to explain how Grubb & Ellis's negotiation of stipulations to allow

other creditors to pursue insurance proceeds affected counsel's letter to this

court in March 2012. Even if Grubb & Ellis's bankruptcy counsel negotiated other



                                              11
No. 67343-2-1/12


stipulations in March 2012, Leonard's argument that local counsel had a duty to

discover and disclose this information to him is truly remarkable! Such an

argument necessarily rests on the dubious assumption that local counsel was

required to violate his ethical obligations to the bankruptcy debtor client. Leonard

has not and could not cite any case that supports such an argument.

       In any event, it is undisputed that the only court authorized to approve any

stipulation to lift the stay was the New York bankruptcy court. In short, Leonard

utterly fails to demonstrate any CR 11 violation by Grubb & Ellis.

       We turn to the related question of whether sanctions for bringing the

motion are appropriate, as Grubb & Ellis requests. We hold that they are.

       RAP 18.9(a) allows an appellate court to order a party who files a frivolous

motion to pay terms to another party. "An appeal or motion is frivolous if there

are 'no debatable issues upon which reasonable minds might differ, and it is so

totally devoid of merit that there was no reasonable possibility' ofsuccess."34
       Here, as noted above, Leonard has not and could not cite any case that

supports his CR 11 argument. Because Leonard presented no debatable point

of law, his motion is frivolous and we grant Grubb & Ellis's motion for fees

incurred addressing it.

       The parties have submitted written support for their respective requests for

attorney fees and costs for sanctions. Based on these submissions, we impose




      34 In re Recall Charges Against Feetham, 149 Wn.2d 860, 872, 72 P.3d
741 (2003) (quoting Millers Cas. Ins. v. Briggs. 100 Wn.2d 9, 15, 665 P.2d 887
(1983)).


                                            12
No. 67343-2-1/13


the sum of $1,200 as reasonable attorney fees for Grubb & Ellis to respond to the

frivolous motion of Leonard in this court.

       The award of costs shall be determined in accordance with RAP 14.1 et

seq.


       We affirm the summary judgment order, deny Leonard's request for

sanctions, and impose sanctions against Leonard for his frivolous motion for

sanctions.




                                                        fey. J.
WE CONCUR:




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