Opinion
Case No. 990833-CA.
Filed December 7, 2000. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Sandra Peuler.
Don H. Haycock, Los Angeles, California, Appellant Pro Se, Pro Hac Vice affiliated with Ronald Ady, Orem
Thomas Christensen Jr. and Douglas J. Payne, Salt Lake City, for Appellees.
Before Judges Jackson, Bench, and Thorne.
MEMORANDUM DECISION
Plaintiff Don L. Haycock appeals from the trial court's grant of summary judgment, dismissing plaintiff's complaint for failure to timely oppose defendant's motion. Plaintiff appears to argue that the trial court's dismissal of his claim for failing to file an opposition was in error. We review for correctness a trial court's decision predicated upon failure to comply with the requirements of the Utah Rules of Civil Procedure. See, e.g., Avila v. Winn, 794 P.2d 20, 22 (Utah Ct.App. 1990).
Following the trial court's grant of summary judgment, Haycock filed a Motion to Set Aside, claiming that his failure to timely file an opposition was based upon excusable neglect. The trial court denied Haycock's motion and Haycock chose not to appeal the denial. Therefore, we consider only the trial court's grant of defendant's Motion for Summary Judgment.
Utah Rule of Civil Procedure 56(e) provides that
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Utah R. Civ. P. 56(e). Further, Utah Code of Judicial Administration Rule 4-501(1)(B) entitles the moving party to file a notice to submit if the nonmoving party fails to oppose summary judgment within ten days of filing and service. Contrary to defendant's assertions, the application of these rules in this manner is neither unexpected nor novel. See Thermidor v. Beth Israel Med. Center, 683 F. Supp. 403, 414 (S.D.N.Y. 1988) (holding failure to timely file and serve opposition to summary judgment "constitutes an independent ground for granting defendant's [summary judgment] motion"); Davidson v. Keenan, 740 F.2d 129, 132 (2nd Cir. 1984) (holding "[i]n the absence of a response from appellants, the district court properly decided appellees' motion to dismiss on the basis of their uncontroverted statement of facts and supporting affidavits").
Rule 56 of the Utah Rules of Civil Procedure is substantially similar to Rule 56 of the Federal Rules of Civil Procedure.
Here, defendant filed and served the summary judgment motion and, after twenty-one days with no response from plaintiff, filed a Notice to Submit for Decision. The trial court, pursuant to its authority under Rule 56(e), reviewed and granted defendant's unopposed summary judgment motion. During appellate arguments Haycock asserted that, as an attorney Pro Hac Vice, he was unfamiliar with local rules and that the rules in California are not sufficiently similar to Utah rules to give him notice of the result of his failure to timely respond. This argument is unpersuasive.
First, Haycock's Motion to Set Aside summary judgment is not under consideration here. Second, a review of California law reveals that "[a]ny opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued hearing." Cal. Code of Civ. Pro. § 437c(b). Further, "opposition papers shall include a separate statement which responds to each of the material facts contended by the moving party to be undisputed. . . . Failure to comply . . . may constitute a sufficient ground, in the court's discretion, for granting the motion." Cal. Code of Civ. Pro. § 437c(b). And more importantly, as an attorney admitted Pro Hac Vice, Haycock agreed to be governed by local rules, both substantive and procedural. We conclude that the trial court did not err.
Finally, defendant requests that we sanction plaintiff for "blatant misrepresentations" allegedly made in plaintiff's brief. See Utah R. App. P. 40(b). Rule 40(b) states that "[t]he court may . . . take appropriate action against any attorney or person who practices before it for . . . conduct unbecoming a member of the Bar. . . ." Id. We are not convinced that plaintiff knowingly or intentionally misrepresented any portion of his brief and surmise that if misrepresentations were in fact made they were more likely the product of simple incompetence. Therefore, we deny defendant's request for sanctions.
The trial court's decision is affirmed.
William A. Thorne, Jr., Judge
WE CONCUR: Norman H. Jackson, Associate Presiding Judge Russell W. Bench, Judge.