Court Says Glendale Lawyer Tried a Snow job

A Third District Court of Appeal decision last week contained a double shot of bad news for Glendale practitioner Ross Paulson. The court reversed a decision that had favored his client, and blasted Paulson by name for misrepresenting the trial record at oral argument.

In Mammoth Mountain Ski Area v. Graham, 06 C.D.O.S. 795, the appeal court ruled against a 17-year-old snowboarder who had crashed into a ski instructor, injuring the instructor to the extent that he couldn’t do his job. Justice George Nicholson wrote for a unanimous panel that David Graham could not assert an “assumption of risk” defense because he had acted recklessly by engaging in a snowball fight with his younger brother while snowboarding down the hill.

Then Nicholson took aim at Paulson.

“Recently, some appellate counsel appearing at oral argument in this court have found it convenient to misrepresent the state of the record,” he wrote in the published opinion. “… These cavalier misrepresentations of the record must stop.”

Nicholson said Paulson, of Glendale’s Molfetta & Associates, inaccurately claimed at argument that Graham had not thrown any snowballs, and accused opposing counsel of misrepresenting the record. “There was evidence of one snowball having been thrown,” Nicholson quoted Graham as saying. “And there was no evidence that he, David Graham, had ever thrown a snowball. … I think that what the evidence was that was submitted was that one snowball had been thrown by his brother and that David Graham was looking at his brother.”

But in rebuttal plaintiff’s counsel read from the declaration of a skiier who witnessed the accident, which stated that Graham and his brother “were throwing snowballs at each other.”

“When Mr. Paulson told the court that the record contained no evidence that David Graham had thrown a snowball,” Nicholson concluded, “he misrepresented the record on a crucial point.”

Consequently, the appeal court referred Paulson to the State Bar for a “probable” violation of Business and Professions Code Section 6068, which directs attorneys never to mislead the court.

— Scott Graham

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