Lydia Lutaaya v. Boeing Employees Credit Union ( 2018 )

• FILED
COURT OF APF'EALS DIV I
STATE OF WASHINGTON
2018 SEP 24 AM 8:35
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LYDIA LUTAAYA, )
) No. 77178-7-1
Appellant, )
) DIVISION ONE
V. )
) UNPUBLISHED OPINION
BOEING EMPLOYEES CREDIT )
UNION, )
)
Respondent. ) FILED: September 24, 2018
)
CHUN, J. — Lydia Lutaaya had a bank account, mortgage, and car loan
through Boeing Employees Credit Union (BECU). She defaulted on both loans,
resulting in foreclosure on her condominium and repossession of her car. She
brought a lawsuit alleging multiple claims against BECU including defamation
and intentional infliction of emotional distress. The trial court dismissed most of
the claims on CR 12(b)(6) and summary judgment motions. After a bench trial,
the court found for BECU on the defamation and emotional distress claims.
Lutaaya appeals the trial court's rulings in favor of BECU. Finding no error, we
affirm.
FACTS
Lutaaya belonged to BECU as a member. In 2006, she obtained a
mortgage from BECU to buy a condominium, secured by a deed of trust. She
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secured a car loan from BECU in 2010. In late 2014, Lutaaya's payments on the
loans became inconsistent. She subsequently ceased paying on both loans.
Lutaaya began making angry accusations about the conduct of BECU and
the Renton Police Department(RPD). She sent letters to BECU, alleging RPD
stole her identity, hacked her home Internet and accounts, and published a
"wanted" notice with her photograph on a government website. She claimed
BECU and RPD solicited money for attendees to a conference using her face
and identity.1 She also accused BECU of acting in concert with the RPD to force
foreclosure of her home. She made irate phone calls to BECU's phone banking
center, and visited multiple BECU branches, requesting information about her
accounts and making similar allegations.
Due to Lutaaya's increasingly hostile behavior and resulting concern for
the safety of the staff and credit union members, BECU banned her from all
branches. The ban restricted Lutaaya to banking by mail, telephone, and
Internet.
BECU filed a complaint for replevin in King County Superior Court to
repossess the car and obtain a deficiency judgment. Lutaaya contested the
claim. The court entered judgment in favor of BECU on April 24, 2015. Lutaaya
did not appeal this judgment; BECU repossessed the car. BECU also executed
a nonjudicial foreclosure and trustee's sale of Lutaaya's condominium. Lutaaya
did not seek judicial intervention during foreclosure and the trustee's sale
I Lutaaya alleges BECU and RPD collaborated to steal her identity by claiming she was
the "Face of Boeing." She claims that RPD and BECU organized a conference at the superior
court and solicited money from companies in order to meet her.
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occurred in September 2015. After the sale, Lutaaya refused to vacate the
property, forcing BECU to bring suit for unlawful detainer. In response to the
motion for unlawful detainer, Lutaaya continued to allege BECU and RPD
engaged in fraudulent behavior to force her to default on her loans.
Lutaaya, representing herself, filed suit against BECU in September 2015.
She made wide-ranging allegations, including violation of her "banking rights,"
interference with her right to sue, wrongful foreclosure on her condominium and
repossession of her car, misrepresentation, defamation, and emotional distress.
The trial court dismissed most of these claims on the pleadings. BECU then filed
a motion for summary judgment on the remaining claims, which related to
banking rights, defamation, and infliction of emotional distress. The trial court
granted summary judgment for BECU except as to the defamation claim.
Lutaaya's defamation claim proceeded to a bench trial. At that time, the
trial court also considered the claim for intentional infliction of emotional distress,
determining the claim arose from the defamation issue. Lutaaya appeared as
her only witness. She claimed several BECU employees had called her a
prostitute, and said she was crazy or mentally ill during various visits to multiple
BECU branch offices. She argued other BECU patrons overheard these
comments, which caused her considerable emotional distress.
BECU called two employees to testify about the alleged statements.
Lutaaya had specifically named one of the witnesses, William Morris, as a
perpetrator of the defamation. During her testimony, Lutaaya gave an accurate
description of Morris and his desk area at one of the BECU branches. But in his
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testimony, Morris stated he did not recognize Lutaaya and had never helped her
at a BECU branch. He also testified he had not made statements that Lutaaya
was a prostitute or that she was crazy, nor had heard other BECU employees
make such statements. Morris further testified he would never make the alleged
comments as they are "completely unprofessional." He indicated those types of
statements did not adhere to the standards of professionalism of BECU
branches.
The other employee, Adam Johnson, also testified such statements would
deviate from BECU's culture of professionalism and respect. Despite having
alleged a BECU employee named Adam made defamatory remarks, Lutaaya
admitted she did not recognize Johnson. Johnson testified he was the only
Adam working in the lobby of the branch at issue in her allegations but had never
seen Lutaaya or helped her at the bank branch.
The trial court found the BECU witnesses' testimony credible and
Lutaaya's testimony not credible. The trial court ruled in favor of BECU,
determining Lutaaya had failed to meet her burden on the elements of the
defamation or intentional infliction of emotional distress claims. Lutaaya filed a
motion to reconsider, which the court denied.
Lutaaya appeals.
ANALYSIS
Representing herself on appeal, Lutaaya challenges the trial court's
dismissal of her claims and judgment in favor of the defendant. As a preliminary
matter, we note our expectation that self-represented litigants comply with the
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procedural rules on appeal. State Farm Mut. Auto Ins. Co. v. Avery, 114 Wn.
App. 299, 310, 57 P.3d 300(2002). Failure to do so may preclude appellate
review. State v. Marintorres, 93 Wash. App. 442, 452, 969 P.2d 501 (1999).
Lutaaya's briefing falls below the standards set forth in RAP 10.3.2
Despite the deficiencies, we may elect to address an issue inadequately briefed.
State Farm Mut. Auto Ins. Co., 114 Wash. App. at 310. Therefore, to the extent
possible, we have considered the merits of Lutaaya's claims.3
Claims Dismissed on the Pleadinas
The trial court dismissed many of Lutaaya's claims with prejudice in
response to BECU's motion to dismiss under CR 12(b)(6). A defendant may
move to dismiss a complaint for "failure to state a claim upon which relief can be
granted." CR 12(b)(6). In evaluating such a motion, the court's inquiry focuses
on whether the plaintiffs claim suffices legally. Gorman v. Garlock, Inc., 155
Wash. 2d 198, 215, 118 P.3d 311 (2005). "A CR 12(b)(6) motion may be granted
only where there is not only an absence of facts set out in the complaint to
support a claim of relief, but there is no hypothetical set of facts that could
2 For example, assignments of error should be concise statements of each error made by
the trial court with issues pertaining to the assignments of error. RAP 10.3(a)(4). Here, Lutaaya
generally assigns error to the trial court's ruling in favor of BECU and makes a series of
allegations about BECU's conduct. Similarly, Lutaaya's statement of the case continues the
allegations against BECU instead of providing a fair statement of the facts and procedures
relevant to the issues on review. See RAP 10.3(a)(5). Lutaaya fails to make meaningful legal
arguments or cite to relevant authority as required by RAP 10.3(a)(6). Her opening brief raises
facts and issues unrelated to the trial court's decisions and does not address the trial court's
verdict in the defamation lawsuit. Generally, passing treatment of an issue or lack of reasoned
argument does not suffice to warrant judicial review. Joy v. Dep't of Labor & Indus., 170 Wn.
App. 614, 629, 285 P.3d 187(2012).
3 We note Lutaaya has raised issues and facts for the first time on appeal, including
allegations BECU and RPD conspired to kill her. While we consider the merits of many of
Lutaaya's claims, we decline to review arguments and facts raised for the first time on appeal.
See Carrera v. Olmstead, 189 Wash. 2d 297, 302 n.3, 401 P.3d 304(2017).
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conceivably be raised by the complaint to support a legally sufficient claim."
Worthington v. Westnet, 182 Wash. 2d 500, 505, 341 P.3d 995(2015). "The
purpose of CR 12(b)(6) is to weed out complaints where, even if that which the
plaintiff alleges is true, the law does not provide a remedy." Alexander v.
Sanford, 181 Wash. App. 135, 142, 325 P.3d 341 (2014).
A CR 12(b)(6) motion presents a legal question with facts considered only
as a background for the legal determination. Contreras v. Crown Zellerbach
Corp., 88 Wash. 2d 735, 742, 565 P.2d 1173(1977). A trial court's ruling on a
motion to dismiss for failure to state a claim presents a question of law reviewed
de novo. Worthington, 182 Wash. 2d at 506. The court presumes the truth of the
plaintiffs allegations. Kinney v. Cook, 159 Wash. 2d 837, 842, 154 P.3d 837
(2007).
1. Vehicle Repossession
Lutaaya's complaint alleged BECU "falsely" repossessed her vehicle. The
parties previously litigated this issue with final judgment entered for BECU.
Because of this prior litigation, res judicata bars Lutaaya's claims concerning
repossession.
"Res judicata refers to 'the preclusive effect of judgments, including the
relitigation of claims and issues that were litigated, or might have been litigated,
in a prior action." Loveridge v. Fred Meyer, Inc., 125 Wash. 2d 759, 763, 887 P.2d
898(1995)(quoting Philip A. Trautman, Claim and Issue Preclusion in Civil
Litigation in Washington, 60 WASH. L. REv. 805, 805 (1985)). Res judicata
applies when the prior judgment has concurrence of identity with a subsequent
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action in "(1) subject matter,(2) cause of action, and (3) persons and parties, and
(4)the quality of the persons for or against whom the claim is made." Loveridqe,
125 Wash. 2d at 763. The quality of the persons for or against whom the claim is
made "simply requires a determination of which parties in the second suit are
bound by the judgment in the first suit." Ensley v. Pitcher, 152 Wash. App. 891,
905, 222 P.3d 99(2009).4
Both Lutaaya's complaint and BECU's replevin lawsuit pertain to disputed
possession of the car, have the same cause of action, and involve identical
parties who are bound by the original judgment in the suit for replevin. The car
repossession claim satisfies all of the requirements for preclusive effect under
res judicata. As a result, the trial court properly dismissed any claim relating to
the repossession of Lutaaya's car.
2. Nonjudicial Foreclosure
Lutaaya claims BECU wrongfully engaged in nonjudicial foreclosure and
sale of her condominium. Her condominium was secured by a deed of trust.
The deed of trust act(DTA) provides a procedure for restraining a trustee sale.
RCW 61.24.130. Failure to bring a lawsuit as outlined under this procedure "may
result in a waiver of any proper grounds for invalidating the Trustee's sale."
4 Parties bound by the first judgment include all parties to the litigation plus all parties in
privity with them. Enslev, 152 Wash. App. at 905. "The quality of persons or parties is relevant in
situations where the parties to two lawsuits are the same but one or the other acts in a different
capacity in the two proceedings." Berschauer v. Phillips Constr. Co. v. Mut. of Enumclaw Ins.
Co., 175 Wash. App. 222, 231, 308 P.3d 681 (2013). For example, an insurance company had
different qualities when it defended against a claim for damages in arbitration as an adversary
and then defended in litigation in the quasi-fiduciary role as insurer. Forston-Kemmerer v.
Allstate Ins. Co., 198 Wash. App. 387, 406, 393 P.3d 849 (2017). Lutaaya and BECU serve in the
same capacity in both lawsuits here.
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RCW 61.24.040(1)(f)(1X). Waiver occurs if the party "(1) received notice of the
right to enjoin the sale,(2) had actual or constructive knowledge of a defense to
foreclosure prior to the sale, and (3)failed to bring an action to obtain a court
order enjoining the sale." Albice v. Premier Mort. Servs. of Wash., Inc.,
174 Wash. 2d 560, 569, 276 P.3d 1277(2012).
BECU provided evidence that the successor trustee complied with all
notice requirements in chapter 61.24 RCW, presumably including the right to
enjoin the sale under RCW 61.24.130. While Lutaaya made multiple allegations
of wrongdoing with respect to her mortgage prior to the trustee's sale in
September 2015, she made no attempt to enjoin the sale. As a result, she
waived her claims under the DTA.
One of Lutaaya's allegations included BECU's participation in mortgage
fraud with RPD,"by adding RPD on [her] mortgage." Under the DTA,failure to
enjoin a trustee's sale does not waive a.common law fraud claim.
RCW 61.24.127. But a plaintiff must plead a fraud claim with particularity.
McAfee v. Select Portfolio Servicing, Inc., 193 Wash. App. 220, 232, 370 P.3d 25
(2016); see CR 9(b). Lutaaya made only vague allegations of fraud and,
therefore, failed to meet this burden. The trial court properly dismissed the
claims pertaining to foreclosure and sale of Lutaaya's condominium.
3. Complaints against RPD
Lutaaya raised several claims pertaining to actions allegedly attributable to
RPD. These allegations implicate RPD rather than BECU. As a result, these
claims against BECU were misplaced and properly dismissed on the pleadings.
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4. Interference with Right to Sue
Lutaaya alleged all the clerks in the superior court were instructed not to
file the required documents and to confuse her when she went to the clerk's desk
to file documents. This claim refers solely to the actions of the superior court,
none of which are attributed to BECU. Because these allegations do not
establish a claim against BECU,the trial court properly dismissed it on the
pleadings.
5. Misrepresentation
Lutaaya claims BECU "lied to the companies that paid into the conference
that'lam the face of Boeing' in an effort to make a lot of money." She further
alleges BECU used an image of her face to solicit money without her consent.
Lutaaya provides no further information as to the subject of the conference, the
companies involved, or BECU's actions with respect to the alleged
misrepresentation. Without these critical facts, the vague allegations failed to
provide BECU with fair notice of the claim against it. See CR 8(a); Estate of
Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wash. App.
828, 853-54, 313 P.3d 431 (2014). Therefore the trial court did not err by
dismissing this claim on the pleadings.
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Violation of Banking Rights
Lutaaya claims BECU denied her access to her bank accounts and
violated her "banking rights." BECU moved for summary judgment. The trial
court granted the motion as to the banking rights claim, finding Lutaaya had not
provided a legally actionable claim or evidence, other than her statements, as
needed to survive the motion. We agree with the trial court's conclusion.
A trial court properly enters summary judgment when there exists no
genuine issues of material fact and the moving party deserves judgment as a
matter of law. CR 56(c); Macias v. Saberhagen Holdings, Inc., 175 Wash. 2d 402,
408, 282 P.3d 1069 (2012). The court must consider facts and all reasonable
inferences in the light most favorable to the nonmoving party. Intl Ass'n of
Firefighters, Local 1789 v. Spokane Airports, 146 Wash. 2d 207, 223, 45 P.3d 186
(2002). "Summary judgment should be granted only if a reasonable person
would reach but one conclusion." Intl Ass'n of Firefighters, 146 Wash. 2d at 223.
The appellate court reviews an order of summary judgment de novo.
Enterprise Leasing, Inc. v. City of Tacoma, 139 Wash. 2d 546, 551, 988 P.2d 961
(1999).
Lutaaya argues BECU denied her access to her bank accounts. The
record does not support this claim. BECU banned Lutaaya from all branch
locations due to safety concerns, but she maintained access to banking through
the telephone, mail, and the Internet. She had an online banking account and
BECU submitted evidence she had access to her banking records online, as
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verified by BECU's in-house counsel. In addition, BECU provided Lutaaya with
paper copies of her banking records for the time period covered by the complaint.
Lutaaya claimed BECU failed to present her accounts for review during
the court hearing and submitted false documents related to her mortgage and car
loan. As noted above, BECU provided evidence that she could access her
accounts online and that it had given her paper copies of her banking records.
She provided no evidence of the documents'fraudulence and her allegations
alone cannot defeat summary judgment. See Newton Ins. Agency & Brokerage,
Inc. v. Caledonian Ins. Grp., Inc., 114 Wash. App. 151, 157, 52 P.3d 30(2002)("In
opposing summary judgment, a party may not rely merely upon allegations or
self-serving statements, but must set forth specific facts showing that genuine
issues of material fact exist.").
Because all evidence points to the availability of online banking, no
genuine issues of material fact remain, entitling BECU to summary judgment.
Defamation
At trial, the court found for BECU on the defamation claim after
determining Lutaaya had failed to establish any of the elements of defamation.
We find no error.
A plaintiff bringing a defamation action must prove four elements: falsity,
an unprivileged communication, fault, and damages. Mark v. Seattle Times, 96
Wash. 2d 473, 486,635 P.2d 1081 (1981). "Before the truth or falsity of an
allegedly defamatory statement can be assessed, a plaintiff must prove that the
words constituted a statement of fact, not an opinion." Robel v. Roundup Corp.,
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148 Wash. 2d 35, 55, 59 P.3d 611 (2002). The First Amendment protects
expressions of opinion, precluding actions thereon. Robe!, 148 Wash. 2d at 55
(citing Camer v. Seattle Post-lntelligencer, 45 Wash. App. 29, 39, 723 P.2d 1195
(1986)).
Where the trial court has weighed the evidence, the reviewing court plays
a limited role and determines whether substantial evidence supports the findings
of fact, and whether those findings in turn support the trial court's conclusions of
law. Ford Motor Co. v. City of Seattle, Exec. Servs. Dep't, 160 Wash. 2d 32, 56,
156 P.3d 185(2007). "Substantial evidence to support a finding of fact exists
where there is sufficient evidence in the record 'to persuade a rational, fair-
minded person of the truth of the finding." Heqwine v. Longview Fibre Co., 162
Wash. 2d 340, 353, 172 P.3d 688(2007)(quoting In re Estate of Jones, 152 Wash. 2d
1, 8, 93 P.3d 147(2004)). We will not substitute our judgment for that of the trial
court, reweigh the evidence, or adjudge witness credibility. In re Marriage of
Rockwell, 141 Wash. App. 235, 242, 170 P.3d 572(2007).
Here, Lutaaya alleged BECU employees said she was a prostitute and
called her crazy or mentally ill. The trial court found Lutaaya's testimony not
credible on these allegations. The trial court found the testimony of the BECU
employees credible. We do not review such credibility determinations on appeal.
State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850(1990).
Because Lutaaya called only herself as a witness and the trial court found
her lacking in credibility, she failed to prove BECU employees had made the
disparaging remarks. Without demonstrating the existence of any allegedly
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No. 77178-7-1/13
defamatory statements, Lutaaya cannot establish the required elements for a
defamation claim. Given this inability to meet the burden of proof for her
defamation claim, the trial court did not err in its verdict for BECU.
Intentional Infliction of Emotional Distress
Lutaaya appeals the trial court's determination that she did not satisfy the
elements of intentional infliction of emotional distress. We agree with the trial
court's conclusion.
A claim for intentional infliction of emotional distress requires proof of
three elements:"(1) extreme and outrageous conduct,(2) intentional or reckless
infliction of emotional distress, and (3) actual result to plaintiff of severe
emotional distress." Trujillo v. Nw. Trustee Servs. Inc., 183 Wash. 2d 820, 840, 355
P.3d 1100(2015)(quoting Kloepfel v. Bokor, 149 Wash. 2d 192, 195,66 P.3d 630
(2003)). A plaintiff must demonstrate outrageous conduct so extreme as to go
beyond all possible bounds of decency. Kloepfel, 149 Wash. 2d at 196. Mere
insults, indignities, and annoyances do not rise to the level of outrageousness
required for intentional infliction of emotional distress. Kloepfel, 149 Wash. 2d at
196.
The law limits review, once again, to determining whether substantial
evidence supports the findings of fact, and whether those findings in turn support
the trial court's conclusions of law. Ford Motor Co., 160 Wash. 2d at 56.
As discussed above, Lutaaya failed to prove BECU employees made
derogatory statements about her. As a result, she has not established the
existence of any extreme and outrageous conduct as required for intentional
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No. 77178-7-1/14
infliction of emotional distress. She has not met her burden of proof on this
element. The trial court properly entered verdict for BECU.
Affirmed.
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WE CONCUR:
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