Yoel & Joseph Engineering Llc, Et Ano v. Iryna Kobets, Et Ano ( 2019 )

FlLED
4r22r2019
Court oprpeals
Division |
State of Washington
|N THE COURT OF APPEALS OF THE STATE OF WASH|NGTON
YOEL & JOSEPH ENGINEER|NG LLC,
RlCHARD OBISANYA, DlVlSlON ONE
Respondents, No. 78179-1~|
v. UNPUBL|SHED OP|NION
lRYNA KOBETS, SERGEY KOBETS
and al| persons in possession, FlLED: April 22, 2019
Appellants.
DWYER, J. -- This is a residential landlord~tenant case. Yoel & Joseph
Engineering, LLC, and Richard Obisanya (collectively Obisanya) are lryna and
Sergey Kobets’ (the Kobets) former landlords The Kobets appeal from a
judgment entered against them in an unlawful detainer action brought by
Obisanya. The Kobets contend that the court commissioner who presided at
their show cause hearing abused his discretion by refusing to allow them to
present evidence and testimony and by denying their request for a continuance
l-lowever, our review of the record leads us to conclude that the commissioner
did not refuse to allow the Kobets to present evidence or testimony at the hearing
and that the commissioner did not abuse his discretion by denying the Kobets’
request for a continuance Accordingly, we affirm
NO. 781 79-1 ~1/2
l
The Kobets rented residential property from Obisanya, pursuant to a
written lease agreement, for $3,500 per month.
The Kobets refused to pay the rent due January 1, 2018. Obisanya then
served a notice to pay rent or vacate, followed by an unlawful detainer summons
and complaint when the Kobets declined to pay or to vacate the premises
The unlawful detainer action was set for a show cause hearing on
February 8, 2018, before Commissioner Henry Judson. On the day of the
hearing, counsel for Obisanya was present but Obisanya himself failed to appear
(mistaken|y believing that the hearing was scheduled for the following day) and
was available only by telephone Because the commissioner anticipated
testimony from Obisanya and preferred to have testimony presented in person
rather than by telephone he ordered a continuance
The second hearing was held on February 15, 2018, in front of
Commissioner Pro Tem Larry Garrett. The Kobets were not prepared to begin at
the start of the day’s calendar. Commissioner Garrett thus delayed calling the
case to allow counsel for the Kobets to prepare additional copies of written
evidence to present during the hearing
At the beginning of the hearing, counsel for the Kobets and Sergey Kobets
began speaking at the same time, prompting the following colloquy with
Commissioner Garrett:
THE COURT: Ol151 Wash. 2d 106, 113, 86 P.3d 132 (2004). “Once the superior court makes a decision
on revisionl ‘the appeal is from the superior court’s decision, not the commissioner’s.”’ Ramer,
151 VVn.2d at 113 (quoting State v. Hoffman, 115 Wash. App. 91, 101, 60 P.3d 1261 (2003)). The
Kobets have already obtained review by the superior court, which declined to modify
Commissioner l\/loore’s ruling. Because the Kobets have improperly appealed from
Commissioner l\/loore’s order after having sought revision of the order before the superior court,
we decline to consider their appeal from Commissioner l\/loore’s order.
NO. 78179-1-|/7
Randv Revnolds & Assocs. v. Harmon, No. 95575-1, slip op. at 12 (Wash. l\/lar.
28, 2019) http://www.courts.wa.gov/opinions/pdf/955751.pdf. First, “the landlord
must serve the eviction notice on the tenant lf the tenant has not complied with
the eviction, the landlord [then] serves a summons and complaint.” Ra_ndy
Reynolds, slip op. at 12 (citation omitted) (citing RCW 59.18.200(1)(a); RCVV
59.18.365).
To evict the tenant, a landlord may apply for a writ of
restitution at the same time as commencing the action or at any
time thereafter RCVV 59.18.370. To obtain a writ, a landlord must
apply for an order for a show cause hearing to be held 6 to 12 days
after the order and serve that order on the tenant. _/_gl_. A show
cause hearing is a “summary proceeding[] to determine the issue of
possession pending a lawsuit” and is not the final determination of
rights in an unlawful detainer action.
Randy Reyno|ds, slip op. at 12~13 (alteration in original) (quoting Carlstrom v.
Hanline, 98 Wash. App. 780, 788, 990 P.2d 986 (2000)).
RCW 59.18.380 sets forth the proper procedures for such show cause
hearings, stating, in pertinent part:
At the time and place fixed for the hearing of plaintiff’s
motion for a writ of restitution, the defendant, or any person in
possession or claiming possession of the property, may answer,
orally or in writing, and assert any legal or equitable defense or set-
off arising out of the tenancy . . . The court shall examine the
parties and witnesses orally to ascertain the merits of the complaint
and answer, and if it shall appear that the plaintiff has the right to
be restored to possession of the property, the court shall enter an
order directing the issuance of a writ of restitution.
At show cause hearings “{t]he court may not ‘disregard evidence that
credibly supports a legitimate defense.”’ Faciszewski v. Brown, 187 VVn.2d 308,
321l 386 P.3d 711 (2016) (quoting Leda v. Whisnand, 150 Wash. App. 69, 81, 207
P.3d 468 (2009)). ln Leda, we explained that “Washington law simply does not
No. 78179-1-|/8
countenance eviction of people from their homes without first affording them
some opportunity to present evidence in their defense but that right is not
absolute: it is tempered by a grant of authority to trial courts to manage the scope
and manner in which evidence is presented rather than leaving it to the
discretion of attorneys or pro se litigants." 150 Wash. App. at 83. We further
clarified that “if an unlawful detainer defendant properly asserts a viable defense
either in written pleadings or at an RCW 59.18.380 show cause hearing, the trial
court has the discretion to conduct examination in lieu of the parties doing sol
and so to limit testimony to that which is strictly necessary to properly decide the
issue of interim possession of the property.”3 Leda, 150 Wash. App. at 82-83.
ln summary, then, the proper procedure by which a trial
court should conduct an RCVV 59.18.380 show cause hearing is as
follows: (1) the trial court must ascertain whether either the
defendants written or oral presentations potentially establish a
viable legal or equitable defense to the entry of a writ of restitution
and (2) the trial court must then consider sufficient admissible
evidence (inc|uding testimonial evidence) from parties and
witnesses to determine the merits of any viable asserted defenses
Leda, 150 Wash. App. at 83.
The Kobets assert that Commissioner Garrett violated the provisions of
RCW 59.18.380 by refusing to consider evidence and by failing to swear in and
question Sergey Kobets during the show cause hearing. We disagree
First, the record simply does not support the Kobets’ assertion that
Commissioner Garrett prevented them from presenting evidence to support their
claimed defense of rent abatement lnstead, Commissioner Garrett repeatedly
3 We also noted that courts may choose to “allow the parties or their counsel to conduct
witness examinations.” Leda, 150 Wash. App. at 83 n.5.
No. 78179-1-|/9
requested to see any evidence the Kobets had to support such a defense
However, counsel for the Kobets indicated that she was unprepared to present
the evidence she claimed to possess regarding the Kobets giving notice to
Obisanya of the alleged defects in the property At first, she explained that she
did not have it with her. She then later claimed that she could obtain it if the
commissioner would allow her to leave the hearing to go prepare it At no point
during the show cause hearing did the Kobets actually attempt to present the
evidence that they now assert the trial court refused to consider.
Second, the Kobets misstate the requirements of RCW 59.18.380 when
they assert that the commissioner erred by failing to swear in and examine
Sergey Kobets at the show cause hearing The Kobets assert that the statute
required the commissioner to examine Sergey Kobets under oath despite the fact
that the Kobets never sought to have Sergey Kobets sworn in to testify at the
hearing To the contrary, our decision in gte is clear that RCW 59.18.380
guarantees the opportunity to present evidence in support of viable defenses
M, 150 Wash. App. at 83. As we explained in M, the purpose of permitting
the court the discretion to examine parties is to allow the court to “limit testimony
to that which is strictly necessary” 150 Wash. App. at 83. This ensures that a
court can conduct a show cause hearing “in a sufficiently expeditious manner to
accommodate its calendar while still preserving the defendant’s procedural
rights.” Le_da, 150 Wash. App. at 83. Thus, the statute does not require that a
court always swear in and examine a tenant so long as the tenant has had a full
No. 78179-1-|/10
opportunity to present any evidence including testimonial evidence that the
tenant wishes to convey to the court during the show cause hearing.
The record before us clearly shows that the Kobets had the opportunity to
present testimony but did not avail themselves of it The Kobets’ attorney
conceded during the hearing on the Kobets’ motion to vacate that she could
have asked Commissioner Garrett to swear in Sergey Kobets at any time during
the show cause hearing But the Kobets never sought to have Sergey Kobets
provide sworn testimony4
Commissioner Garrett did not violate RCW 59.18.380 during the show
cause hearing
B
The Kobets next assert that Commissioner Garrett erred by denying their
request for a continuance We disagree
“VVhether a motion for continuance should be granted or denied is a
matter of discretion with the trial court, reviewable on appeal for manifest abuse
ofdiscretion.” Trummel v. l\/litche||, 156 VVn.2d 653, 670, 131 P.3d 305 (2006)
(citing Balandzich v. lj)emerotol 10 Wash. App. 718, 720, 519 P.2d 994 (1974)). A
4 Perhaps recognizing that their interpretation of the statutory requirements for show
cause hearings is off the mark, the Kobets also assert that the following exchange shows that the
commissioner would have rejected any request to swear in Sergey Kobets and that this is enough
to constitute a violation of the statute1
THE COURT: Okay Well, there’s either going to be argument or
testimony You get to pick, Counsel. Which is it?
[Counsel for the Kobets]: lt’s going--l will argue but if you ever want to
have questions for, you can.
THE COURT: No. l don’t want two people talking at once is my point.
The Kobets assert that the commissioners statement that there is "either going to be
argument or testimony" shows that he would not have both let Sergey Kobets testify and let the
Kobets’ attorney argue However, it is clear that the commissioners point was that he did not
want to have both the attorney and Sergey Kobets speaking at the same time
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No. 78179-1-|/11
court abuses its discretion when its decision is based on untenable grounds or is
manifestly unreasonable Trummel, 156 Wash. 2d at 671 (quoting Balandzich, 10
Wash. App. at 721).
“ln exercising its discretion, a court may properly consider the necessity of
reasonably prompt disposition of the litigation; the needs of the moving party; the
possible prejudice to the adverse party; the prior history of the litigation, including
prior continuances granted the moving party; any conditions imposed in the
continuances previously granted; and any other matters that have a material
bearing upon the exercise of the discretion vested in the court." Trummel, 156
Wash. 2d at 670-71 (citing Balandzich, 10 Wash. App. at 720). A court may deny a
continuance sought to prepare additional evidence when the “requesting party
does not offer a good reason for the delay in obtaining the desired evidence.”
Turner v. Kohler, 54 Wash. App. 688, 693, 775 P.2d 474 (1989).
The circumstances herein do not establish that the commissioner’s denial
of the Kobets’ request for a continuance was based on untenable grounds or was
manifestly unreasonable The matter had already been continued giving the
Kobets an extra week to prepare their evidence and the commissioner also
delayed calling the case on the day of the hearing to provide counsel for the
Kobets additional time to prepare Additionally, the Kobets sought the
continuance to prepare evidence of the Kobets’ own e-mail communications
Furthermore, when pressed as to why she had not prepared the evidence before
the show cause hearing, the Kobets’ attorney’s only explanation was that she did
11
NO. 78179-1~|/12
not realize she would need the evidence.5 The Kobets had an adequate
opportunity to prepare for the show cause hearing They presented no good
reason for their lack of preparation Thus, denying the request for a continuance
was not an abuse of discretion.
lll
Both parties seek an award of attorney fees Because Obisanya is the
prevailing party on appeal and the terms of the lease agreement between the
Kobets and Obisanya provides for an award of attorney fees to the prevailing
party in legal actions brought to enforce the terms of the lease agreement,
Obisanya is entitled to an award of fees
“Washington follows the American rule ‘that attorney fees are not
recoverable by the prevailing party as costs of litigation unless the recovery of
such fees is permitted by contract, statute or some recognized ground in
!n
equity Panorama Vill. Condo. Owners /-\ss’n Bd. of Dirs. v. Allstate lns Co.,
144 Wash. 2d 130, 143, 26 P.3d 910 (2001) (quoting l\/chreevy v. Or. l\/lut. lns Co.,
128 Wash. 2d 26l 35 n.8, 904 P.2d 731 (1995)). This rule requires, initially, that a
party must prevail in order to receive an attorney fee award “ln general, a
prevailing party is one who receives an affirmative judgment in his or her favor.”
Riss v. Angel, 131 Wash. 2d 612, 633, 934 P.2d 669 (1997). “Contractual
provisions awarding attorney fees to the prevailing party also support an award of
5 She offered this explanation while also acknowledging that the defense of rent
abatement required proof that the tenant had provided notice to the landlord of defects in the
property
12
No. 78179-1~|/13
appellate attorney fees.” Citv of Puvallup v. Hoqan, 168 Wash. App. 406, 430, 277
P.3d 49 (2012).
Obisanya is the prevailing party on appeal The terms of the lease
agreement between the Kobets and Obisanya state:
ln the event either party engages retains or hires an attorney to
enforce any provision of this l_ease, or any obligation under law,
including but not limited to the collection of rent and/or other
charges due hereunder, both Landlord and Tenant agree that, to
the fullest extent permissible by law, court costs . . . and reasonable
attorney’s fees may be awarded to the prevailing party
Therefore Obisanya is entitled to an award of attorney fees for this
appeal Upon Obisanya’s compliance with RAP 18.1, a commissioner of our
court will enter an appropriate order awarding fees and costs
Affirmed. /
E"`/l t /
f l
We concur: /
13