No. B217192.

ANGELA GIRARDI et al., Plaintiffs and Appellants, v. PRINCESS CRUISES, Defendant and Respondent.

Court of Appeals of California, Second District, Division Seven.

Attorney(s) appearing for the Case

Jeffrey S. Schwartz for Plaintiffs and Appellants.

Kaye, Rose & Partners, Carolyn J. Kaye and Daniel Berberich for Defendant and Respondent.



The Girardis, passengers on a cruise ship operated by Princess Cruise Lines, Ltd., sued Princess, claiming that they were injured when the negligently-controlled ship tipped sharply to the side in rough waters. Princess obtained summary judgment in its favor, and the Girardis appeal. We affirm the judgment and impose sanctions against the Girardis for filing a frivolous appeal.


The Girardis departed on a July 11, 2006 cruise aboard a Princess ship. They received the Passage Contract before boarding the ship. The Girardis allegedly sustained injuries aboard the ship on July 18, 2006.

In September 2006, the Girardis' counsel sent a letter to Princess identifying himself as Angela Girardi's attorney with respect to claims for personal injuries arising out of the July 18, 2006 incident. Princess responded in September 2006 that any litigation must be filed in accordance with Paragraph 17 of the Passage Contract. Paragraph 17 of the Passage Contract provided, "Notwithstanding any provision of applicable law to the contrary, in cases involving claims for emotional or bodily injury, illness to or death of any Passenger, no lawsuit may be brought against Carrier unless (a) written notice giving full particulars of the claim is delivered to Carrier within 6 months, (b) a lawsuit on such claim is filed within 1 year from the date of the emotional or bodily injury, illness, or death, whichever comes first, and (c) valid service of the complaint is made within 90 days of filing the complaint."

The Girardis' counsel acknowledged his awareness of the Passage Contract and notified Princess that he represented the entire Girardi family. The Girardis filed suit in Los Angeles County Superior Court on July 16, 2008.

Princess moved for summary judgment on the ground that the suit was time-barred under the provisions of the Passage Contract. The court granted summary judgment. The Girardis appeal.


I. Summary Judgment

On appeal from a summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]" (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) We conclude that summary judgment was proper here.

Title 46 United States Code section 30508 permits cruise lines to shorten the limitation period for filing suits by inserting reasonable limitation periods of not less than one year in passage contracts. (46 U.S.C. § 30508; Dempsey v. Norwegian Cruise Line (9th Cir. 1992) 972 F.2d 998, 999 (Dempsey) ["Congress has also indicated that contracts may legally shorten the limitations period to one year"].) Here, it is undisputed that the passage contract specified a limit of one year. It is similarly undisputed that the Girardis did not file suit until more than one year had passed. Princess, therefore, established by its motion and evidence that a complete defense exists to the cause of action in the complaint. (Code Civ. Proc., § 437c, subd. (o)(2).) Accordingly, summary judgment was properly granted on the basis that the claim was time-barred.

The Girardis argue that summary judgment was improper because maritime law may not apply to this case. They rely on the decision in Johnson v. Commodore Cruise Lines, Ltd. (S.D.N.Y. 1995) 897 F.Supp. 740 (Johnson) to support their claim. In Johnson, a cruise ship passenger sued for negligent infliction of emotional distress arising from a cruise line's conduct after she reported being raped by a crew member: the ship's doctor, captain, hotel manager and other personnel allegedly decided to remove her party from the ship and to prevent her party from re-boarding by giving her drugs, making false statements about her health, and committing other misconduct. (Id. at pp. 743-744.) In Johnson, the United States District Court for the Southern District of New York concluded that a predecessor statute to the limitations statute here did not preempt state law with respect to the plaintiff's claim because her claim concerned "the liability of a shipowner for the affirmative misconduct of its management toward passengers," while the legislative intent in passing the statute of limitations limit in the federal statute "was to limit the liability of a shipowner for events arising in the general course of shipping and navigation." (Id. at p. 745.) As the passenger's claim fell beyond the area Congress had intended to occupy by federal legislation, the federal statute of limitations did not preempt Mississippi's state law prohibition against contractually shortening limitations periods. (Ibid.)

Although they appear to assert that Johnson, supra, 897 F.Supp. 740 is instructive here, the Girardis do not explain what application it could have to the question presented by this case. They make no contention that Congress did not intend to occupy the entire field of law that is relevant here, merely asserting that the federal circuit courts have found that admiralty law is "not necessarily applicable" in all cases occurring at sea and posit that "if the case does not fall with in [sic] admiralty law," a two-year state statute of limitations would apply. The Girardis fail to make any argument as to why the specific allegations or basis for litigation here would, like the claim in Johnson, supra, 897 F.Supp. 740, fall outside the congressional intent described there "to limit the liability of a shipowner for events arising in the general course of shipping and navigation." (Id. at p. 745.) Indeed, if we apply the Johnson analysis here, the result is that the federal limitations period would apply: Onboard injuries from allegedly negligent ship operation, unlike a series of alleged torts to cover-up a crime committed by a ship employee, fall directly within the field of law Congress intended to, and did occupy, when it enacted title 46 United States Code section 30508. (Scheibel v. Agwilines, Inc. (2d Cir. 1946) 156 F.2d 636, 638 [federal statute occupies the field with respect to claims for personal injuries sustained while a passenger on a ship].)

It is beyond dispute that federal maritime law applies to maritime contracts such as passage contracts on a cruise ship. (Carnival Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, 590; Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 557; Hayman v. Sitmar Cruises, Inc. (1993) 14 Cal.App.4th 1499, 1504 ["The validity of a passage contract provision is to be interpreted by the general maritime law of the United States, not state law"].) Congress has expressly authorized cruise lines to contract for a one year limitations period for bodily injury claims, and the application of the one-year period is routinely upheld. (See, e.g., Jimenez v. Peninsular & Oriental Steam Nav. Co. (1st Cir. 1992) 974 F.2d 221; Scheibel v. Agwilines, Inc., supra, 156 F.2d at p. 638; Marek v. Marpan Two, Inc. (3d Cir. 1987) 817 F.2d 242; Carpenter v. Klosters Rederi A/S (5th Cir. 1979) 604 F.2d 11; Dempsey, supra, 972 F.2d at pp. 999-1000; Vavoules v. Kloster Cruise Ltd. (E.D.N.Y. 1993) 822 F.Supp. 979, 983.)

The Girardis raise additional arguments in favor of application of the California statute of limitations. First, they contend that California "does not permit" the shortening of the statute of limitations by contract, but their selective quotation from Moreno v. Sanchez (2003) 106 Cal.App.4th 1415 fails to state the law fully. In Moreno, this Court wrote, "It is true California courts have afforded contracting parties considerable freedom to modify the length of a statute of limitations. Courts generally enforce parties' agreements for a shorter limitations period than otherwise provided by statute, provided it is reasonable. `Reasonable' in this context means the shortened period nevertheless provides sufficient time to effectively pursue a judicial remedy. `It is a well-settled proposition of law that the parties to a contract may stipulate therein for a period of limitation, shorter than that fixed by the statute of limitations, and that such stipulation violates no principle of public policy, provided the period fixed be not so unreasonable as to show imposition or undue advantage in some way. [Citations.]' [¶] However, a contractually shortened limitations period has never been recognized outside the context of straightforward transactions in which the triggering event for either a breach of a contract or for the accrual of a right is immediate and obvious." (Id. at p. 1430, fns. omitted.) The Girardis have made no factual showing that the triggering effect for their causes of action was anything less than immediate or obvious. The Girardis merely contend without further explanation or discussion that their right to bring the lawsuit was not immediate or obvious, especially to lay persons living outside of California. It is, however, undisputed that within approximately two months of the incident the Girardis had retained counsel, that counsel corresponded with Princess concerning their personal injury claims, and that they submitted no evidence of latent or hidden injuries of which they were unaware during the limitations period. The Girardis did not demonstrate that California law, even if it were not preempted by federal law, would bar the shortening of the limitations period by contract.

Next, the Girardis contend that the shortened limitation period should not be applied because it is unreasonable and fundamentally unfair. The general argument that a one-year period is unreasonable and unfair because it is shorter than a state's general limitations period is meritless: Similar one-year limitations have been upheld repeatedly by the courts as reasonable and fair. (See, e.g., Dempsey, supra, 972 F.2d at pp. 999-1000.) Moreover, the Girardis have not established anything that would be unreasonable and fundamentally unfair about applying the shorter limitation period under the facts of this case. They do not contend that the Passage Contract failed to reasonably communicate the limitations period. (Id. at p. 999 [limitation on time to sue must be reasonably communicated to the passenger].) The Girardis have acknowledged that in addition to receiving the Passage Contract before departure, they were further made aware of the limitation period within approximately two months of the incident when Princess informed their counsel that any litigation must be filed in accordance with Paragraph 17 of the Passage Contract. Because the Girardis have not presented any evidence that the limitations provision used by Princess is unreasonable or fundamentally unfair (ibid.), they have not established any error in granting the summary judgment on this ground.

Finally, the Girardis claim that Paragraph 17 of the Passage Contract is ambiguous. The passage begins with the phrase, "Notwithstanding any provision of applicable law to the contrary . . . ." The Girardis contend that California Code of Civil Procedure section 335.1 "is such law to the contrary," providing for a two-year limitations period, "and should reasonably be applied in this case." The Girardis offer no explanation for how "notwithstanding any provision of applicable law to the contrary" leads to the application of law to the contrary, and we find no ambiguity in this provision. Nor can we agree with the Girardis that the Passage Contract's requirement that litigation be filed only in courts of Los Angeles County, to the exclusion of other courts, permits a reasonable interpretation that the dispute will be governed exclusively by California law: this portion of the Passage Contract is a forum selection clause, not a choice of law provision. The Girardis have not identified any ambiguity in the relevant language of the Passage Contract that would make summary judgment inappropriate here; the summary judgment was properly granted.

II. Sanctions Motion

Princess requests sanctions in the amount of $14,623.91 because the Girardis' appeal was frivolous. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).) We advised the parties of our intention to consider the issue of sanctions at the time of oral argument by our order dated May 20, 2010. Having given the Girardis notice by issuing an order to show cause why sanctions should not be imposed, and having afforded them an opportunity to respond both in writing and at oral argument, we conclude that sanctions are proper for pursuing an appeal that is frivolous because it indisputably has no merit. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 312.) This opinion constitutes a written statement of our reasons for imposing sanctions. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654; see Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1434; Bach, at p. 313.)

The California Supreme Court extensively examined the question of frivolous appeals in In re Marriage of Flaherty, supra, 31 Cal.3d 637. "The California cases discussing frivolous appeals provide a starting point for the development of a definition of frivolous. Those cases apply standards that fall into two general categories: subjective and objective. [Citation.] The subjective standard looks to the motives of the appellant and his or her counsel." (Id. at p. 649.) "The objective standard looks at the merits of the appeal from a reasonable person's perspective. `The problem involved in determining whether the appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.' [Citations.]" (Ibid.)

The Supreme Court continued, "Both strands of this definition are relevant to the determination that an appeal is frivolous. An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)

We conclude that appellants have filed a frivolous appeal within the meaning of Code of Civil Procedure section 907, California Rules of Court, rule 8.276(a)(1), and In re Marriage of Flaherty, supra, 31 Cal.3d 637. Princess has asserted that the Girardis' motive for the appeal was delay; this position is disputed by the Girardis. We need not draw conclusions about the Girardis' subjective motive for filing the appeal, however, because under the objective standard for frivolousness the Girardis' appeal indisputably has no merit. (In re Marriage of Flaherty, at p. 650.) Any reasonable attorney would agree that it is totally and completely meritless to contend that federal maritime law does not apply to maritime contracts such as passage contracts on a cruise ship and that in enacting the statute in question Congress did not intend to occupy the field to the extent of limiting shipowners' liability for events arising in the general course of shipping and navigation. As we discussed above, even the most cursory application of the rule of the one case on which the Girardis rely, Johnson, supra, 897 F.Supp. 740, would nonetheless yield the conclusion that the federal limitations period would apply because passenger injuries from allegedly negligent ship operation fall squarely within the field of law Congress intended to occupy when it enacted title 46 United States Code section 30508. The Girardis' additional arguments—that California law does not permit the contractual shortening of statute of limitations; that the limitations period was unreasonable and fundamentally unfair; and that the Passage Contract was ambiguous—are unsupported by law and by the record provided on appeal, and any reasonable attorney would agree that these contentions are totally and completely meritless. Litigants may "have the right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal" (In re Marriage of Flaherty, at p. 650), but these issues are not even arguably correct. While we remain mindful of the difficulty that often arises in drawing a line between the merely meritless and the actually frivolous (ibid.), here we can easily say that "any reasonable person would agree that the point[s are] totally and completely devoid of merit, and, therefore, frivolous." (Estate of Walters (1950) 99 Cal.App.2d 552, 558.)

Counsel for Princess, Daniel Berberich, declares that the process of reviewing the record and pleadings filed by the Girardis, preparing and causing to be filed the Supplemental Clerk's Transcript, and drafting and filing the appellate brief, motion for sanctions, and miscellaneous filings with the Court of Appeal, have consumed 40.8 hours of Berberich's time and 7.1 hours of supervising attorney Carolyn Kaye's time. Berberich's hourly rate is $235 and Kaye's hourly rate is $250, for a total bill of $11,363. They anticipate that analyzing the Girardis' reply brief and appearing at oral argument will result in $2,350 in fees—although the fee is not explained, presumably this represents 10 hours of Berberich's time or 9.4 hours of Kaye's time. Finally, Berberich avers that Princess has incurred costs in the amount of $910.91 in filing fees, copy charges, facsimile charges and attorney service fees.

While we acknowledge that the appellants' presentation of the record on appeal was incomplete and that Princess properly completed the record by obtaining a supplemental clerk's transcript, we conclude that a reasonable allocation of time to ensure that all the summary judgment pleadings were in the record, to file additional documents with the court, and to prepare a respondent's brief addressing the single, meritless issue presented by the appeal—the same issue that counsel had already fully briefed in the trial court—would have been at most 20 hours for the drafting attorney and 3.5 hours by the supervising attorney. Preparing for and attending local oral argument on this single-issue, nonmeritorious matter reasonably should consume no more than five hours of attorney time. We therefore award $6,750 in sanctions against the Girardis for filing a frivolous appeal. Princess may seek its costs on appeal in the trial court under California Rules of Court rule 8.278 by means of a verified memorandum of costs. (Cal. Rules of Court, rule 8.278 (c).)


The judgment is affirmed. Sanctions on appeal are awarded to Respondent against Appellants in the amount of $6,750.00. Respondent shall recover its costs on appeal.

We concur:




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