Jill E. Lane v. Mark Von Der Burg ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JILL E. LANE AND JAMES C. No. 69928-8-
MCCLUNG, III
Appellants, DIVISION ONE
v.
MARK von der BURG; COLDWELL UNPUBLISHED OPINION
BANKER BAIN; BELLEVUE/COLDWELL
BANKER REAL ESTATE LLC; DAWN
GADWA; FIRST CITIZENS BANK
WASHINGTON/FIRST CITIZENS BANC
SHARES.
Respondents. FILED: April 21. 2014
Spearman, C.J. — Jill E. Lane and her attorney, Andrew L. Magee, appeal
the trial court's order imposing CR 11 sanctions and its denial of their motion to
reconsider. Because the trial court properly found that (1) Lane's claims against
the respondents were not warranted by existing case law and (2) Lane failed to
make a reasonable inquiry into the factual or legal basis for her claims, we affirm.
FACTS
In early summer of 2010, Jill Lane and two others unlawfully entered and
occupied a multi-million dollar Kirkland mansion owned by First Citizens Bank &
Trust Company (FCB). The vacant property had been foreclosed and was listed
for sale by FCB's realtor, Mark von der Burg.
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On June 6, 2010, von der Burg became aware that unidentified individuals
were living in the mansion. He called the Kirkland Police Department (KPD) to
investigate. Upon arrival at the property, a KPD officer observed Lane and two
other individuals outside the garage. The officer approached Lane, who identified
herself as the new owner of the property. A short time later, von der Burg arrived
at the property and spoke with the KPD officer and Lane, who continued to insist
that she owned the property. Based on this incident, Lane was later charged with
and found guilty of criminal trespass in the first degree in Kirkland Municipal
Court.1
The following day, Lane contacted von der Burg to schedule a meeting to
discuss her purported ownership of the property. The meeting occurred that
afternoon at von der Burg's offices. At least five people were present: von der
Burg; Lane; James McClung, Lane's Broker; Dawn Gadwa, an FCB employee;
and another woman, who Lane identified as McClung's assistant. At the meeting,
Lane and McClung purported to explain that Lane's brief occupancy of the
property had secured her an ownership interest or right of occupancythrough a
nebulous form of squatter's rights, which they dubbed "Banker's Acceptance."
Clerk's Paper (CP) at 474. They also expressed Lane's willingness to purchase
the property from FCB through the usual process of a real estate purchase and
sale agreement. Unbeknownst to Lane, von der Burg made an audio recording of
this conversation.
1 FCB also obtained favorable judgment in an unlawful detainer action against Lane.
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No. 69928-8-1/3
Lane became aware of the recording during the course of her criminal
trespass trial in Kirkland Municipal Court. Von der Burg, who was expected to
testify on behalf of the City, sought the court's permission to assert the Fifth
Amendment privilege against self-incrimination as to any questions that might be
asked about the recording. It appears undisputed that the court granted the
request based on evidence that von der Burg had admitted to making the
recording without Lane's knowledge or consent. The court appeared to
acknowledge that the act was a possible criminal violation.
On May 31, 2012, Lane and McClung sued FCB and von der Burg
alleging that von der Burg's recording of the June 2010 meeting was obtained in
violation of chapter 9.73 RCW, Washington's Privacy Act.2 On October 26, 2012,
the trial court granted FCB's motion for summary judgment dismissal and von der
Burg's motion to dismiss for failure to state a claim pursuant to CR 12(b)(6).
Throughout litigation of this case, FCB and von der Burg maintained that
Lane's claim was baseless. They repeatedly advised her attorney, Magee, that
her claim had no basis in law and was, therefore, filed in violation of CR 11.3
After Lane refused to withdraw her claim and judgment was entered against her,
FCB and von der Burg moved the courtfor sanctions pursuant to RCW 4.84.185
andCR11.
2McClung had previously been voluntarily dismissed with prejudice from this action, but
the court's order indicated that FCB retained the right to bring claims against McClung pursuant
to RCW 4.84.185 and CR 11.
3FCB's attorney, Chad Arceneaux, attested to verbally admonishing Magee that Lane's
claim was baseless and CR 11 sanctions would be warranted if she persisted in this action. He
also sent three letters to Magee reiterating this warning, copies of which were attached as
exhibits to his declaration in support of FCB's CR 11 motion. Von der Burg's attorney, Hunter
Abell, also advised that it would seek CR 11 sanctions upon dismissal of Lane's claims.
No. 69928-8-1/4
Lane moved to strike the motions as untimely, requested oral argument,
and sought a continuance. She also alleged, as one basis for a reasonable belief
that Lane's claim was well grounded in fact and law, that the Kirkland Municipal
Court judge who tried Lane's trespass case had "acknowledged on the record
that the recording was made unlawfully and, therefore, pursuant to the pertinent
RCW was not admissible as evidence." CP at 112. The trial court denied the
motions to strike and for oral argument, but granted Lane a thirty-day
continuance. The trial court also explained that if Lane was able to produce
evidence that, priorto filing, she was aware a judicial officer had determined the
conversation at issue was recorded unlawfully, such evidence might establish
that her claim, "while not legally viable, was not unreasonable or frivolous." CP at
195-96.
On December 11, 2012, Lane filed her substantive response to the CR 11
motions, which included as exhibits certified copies of transcripts and documents
filed in the Kirkland Municipal Court criminal trespass action. In particular, her
submission contained transcripts of pretrial hearings on April 16, 2012 and June
18, 2012. The first hearing occurred soon after Lane became aware of the
recording and before she filed the instant case on May 31, 2012. During the
course of this hearing, the City prosecutor acknowledged admissions by von der
Burg that he had recorded the June 7 meeting without Lane's knowledge or
consent. Magee also advised the court that he had referred the matter to the
Kirkland Police Department for investigation. And the City prosecutor and the
judge acknowledged that the recording "may have been unlawful." CP at 896.
During the June 18 hearing, von der Burg, through his attorney, sought the
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No. 69928-8-1/5
court's permission to refuse to answer questions about the recording based on
his Fifth Amendment right against self-incrimination.
On January 3, 2013, the trial court granted both motions for sanctions and
attorney's fees pursuant to CR 11.4 The trial court found that Lane failed to
provide any evidence that the action was warranted by existing case law or that
there was a good faith argument for extension of existing law, and that Lane
failed to make reasonable inquiry into the factual or legal basis of the action prior
to filing. With respect to the evidence cited in Lane's December 11, 2012,
response, the trial court found that:
[The] presentation to the Court of "evidence" supporting the
assertion that there was a reasonable basis for the claim because
of statements from the [Kirkland Municipal] court that the action of
[von der Burg] was unlawful were based on evidence that was not
even in existence prior to the filing of the complaint5 and a transcript
of a [Kirkland Municipal court] hearing that was not made by a
certified transcriptionist, appeared to have been selectively
transcribed, and, even if considered, contained at best a statement
from the Court that identified that there might be an issue as to
whether the recording was made illegally.
CP at 963. The trial court awarded FCB and Von der Burg $16,000 each in
attorney's fees, along with post-judgment interest, payable jointly and severally
by Lane and Magee.6 Lane and Magee unsuccessfully moved the trial court for
reconsideration. CP at 965, 971. They appeal.
4 Both FCB and Von der Burg moved for sanctions pursuant to RCW 4.84.185 as well as
CR 11. The trial court's order, however, does not cite RCW 4.84.185 as a basis for the awards.
5That the trial court failed to distinguish between the evidence from Kirkland Municipal
Court in existence before Lane filed this case and that created after is immaterial to its decision or
to the outcome of this appeal.
6CR 11 explicitly permits the court to sanction both the signer of the sanctionable
pleading (Magee) and the represented party (Lane). The trial court did notexplain its basis for
imposing sanctions against both Lane and Magee.
No. 69928-8-1/6
DISCUSSION
Lane and Magee contend the trial court erred in its rulings on the CR 11
motions because due process guarantees entitled them to oral argument on the
motions and because Lane's claim was not baseless. We conclude that due
process was served in this case because Lane and Magee received notice of CR
11 proceedings and had a full and fair opportunity to respond. We also conclude
that imposition of CR 11 sanctions was within the sound discretion of the trial
court where Lane's claim lacked a legal basis and no evidence established that
Magee, as the attorney who signed the complaint, conducted a reasonable pre-
filing inquiry. We affirm.
Due Process
We review an award of CR 11 sanctions for abuse of discretion. Biggs v.
Vail. 124 Wash. 2d 193, 197, 876 P.2d 448 (1994). The range of discretionary
choices is a question of law and the judge abuses his or her discretion if the
discretionary decision is contrary to law. State v. Neal, 144 Wash. 2d 600, 609, 30
P.3d 1255 (2001).
Lane and Magee contend that the trial court's decision to deny oral
argument on the CR 11 motions was a denial of procedural due process. They
cite Brvant v. Joseph Tree. Inc., 119 Wash. 2d 210, 829 P.2d 1099 (1992), in
support of this proposition, but their reliance on that case is misplaced. In Brvant,
during the course of appellate proceedings, one of the parties sought to
disqualify an attorney for the opposing party. The motion was denied by a
commissioner of the Court of Appeals, which also denied the opposing party's
motion for sanctions. The opposing party renewed the motion when its appellate
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No. 69928-8-1/7
brief was filed. We heard oral argument on the matter and in the course of our
opinion granted the motion for sanctions. The sanctioned party appealed to the
Supreme Court arguing, among other things, that the Court of Appeals
sanctioned him without affording him adequate due process. The argument was
rejected because the sanctioned party had both notice of the motion and an
opportunity to be heard at oral argument. But nowhere in the Supreme Court's
opinion does it state that oral argument is a necessary component of due
process when sanctions are sought pursuant to CR 11.
Lane and Magee also appear to argue that KCLCR 7(b)(4)(B) requires
oral argument on all dispositive motions. They then argue, without citation to any
authority, that a CR 11 motion is a "dispositive" motion which under the rule must
be set for oral argument. We reject this contention. First, because no authority is
cited for the contention that CR 11 motions are dispositive we need not consider
the argument. Seventh Elect Church in Israel v. Rogers, 34 Wash. App. 105, 120,
660 P.2d 280 (1983). Second, even if we were to consider it, the argument is
unsupported by the text of KCLCR 7(b)(4)(B) which provides:
Scheduling Oral Argument on Dispositive Motions. The time
and date for hearing shall be scheduled in advance by
contacting the staff of the hearing judge.
It neither defines "dispositive" motions nor mandates that oral argument be
heard. It merely directs how oral arguments are to be scheduled.
Lane and Magee are correct that CR 11 motions must comport with due
process. Brvant, 119 Wash. 2d at 224. But due process does not require any
particular form or procedure. It requires only that a party receive notice of
proceedings and an opportunity to present its position before a competent
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No. 69928-8-1/8
tribunal. Id.: see also Buechler v. Wenatchee Valley College, 174 Wash. App. 141,
156-57, 298 P.3d 110, rev. denied, 178 Wash. 2d 1005 (2013) (citing Goss v.
Lopez. 419 U.S. 565, 95 S. Ct. 729, 42 LEd.2d 725 (1975)).
In this case, Lane and Magee were served with the CR 11 motions upon
filing, and were therefore notified of the proceedings. In addition, prior to FCB
and von der Burg filing the motions, Lane and Magee were repeatedly advised by
opposing counsel that the filing of her claim violated CR 11. Lane and Magee
also had an opportunity to present their position to the court. Indeed, the trial
court granted a thirty-day continuance for Lane and Magee to supplementtheir
response, directed them toward the specific evidence that could be relevant to a
disposition in their favor, and considered their memorandum in opposition to the
CR 11 motions. Lane and Magee were accorded due process.
Basis for CR 11 Sanctions
CR 11(a) provides in relevant part:
The signature of a party or of an attorney constitutes a certificate
by the party or attorney that the party or attorney has read the
pleading, motion, or legal memorandum, and that to the best of
the party's or attorney's knowledge, information and belief,
formed after an inquiry reasonable under the circumstances: (1)
it is well grounded in fact; (2) it is warranted by existing law or a
good faith argument for the extension, modification, or reversal of
existing law or the establishment of new law....
On review of a motion ordering CR 11 sanctions, "we must keep in mind
that '[t]he purpose behind CR 11 is to deter baseless filings and to curb abuses
ofthe justice system.'" Biggs, 124 Wash. 2d at 197 (quoting Brvant v. Joseph Tree,
Inc., 119 Wash. 2d 210, 219, 829 P.2d 1099 (1992)). Sanctions may be imposed
under this rule if a complaint lacks a factual or legal basis and the attorney or
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No. 69928-8-1/9
party who signed it failed to conduct a reasonable inquiry into the factual or legal
basis of the action. Brvant, 119 Wash. 2d at 220. We employ an objective standard
to determine whether a reasonable attorney in like circumstances could believe
his or her actions to be factually and legally justified at the time the pleading was
submitted. ]d.
In this case, the trial court concluded that CR 11 sanctions were justified
because (1) Lane's claim was not warranted by existing case law and (2) Lane
did not make a reasonable inquiry into the factual or legal basis of the action.
Lane and Magee challenge these conclusions.
We review the trial court's legal conclusions de novo. In re Detention of
Peterson, 145 Wash. 2d 789, 800, 42 P.3d 952 (2002). In so doing, we first
determine whether the trial court's factual findings are supported by substantial
evidence and, if so, whether those findings support the trial court's conclusions of
law. Keever & Assoc. Inc. v. Randall, 129 Wash. App. 733, 737,119 P.3d 926
(2005). Substantial evidence is evidence sufficient to persuade a fair-minded
person of the truth of the asserted premise. \± at 734, 119 P.3d 926.
We find no error in the trial court's conclusion that Lane's claim was not
warranted by existing case law. Generally, Washington's Privacy Act creates a
civil cause of action against one who records any "private conversation" without
first obtaining the consent of all the persons engaged in the conversation. RCW
9.73.030(1 )(b); .060. The Legislature did not define the term "private."
Washington courts accord the term "private conversation" its ordinary and usual
meaning; the word "private" has been interpreted as "belonging to one's
self...secret...intended only for the persons involved (a conversation)...holding a
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No. 69928-8-1/10
confidential relationship to something...a secret message: a private
communication...secretly; not open or in public." State v. D.J.W., 76 Wn. App.
135,140-141, 882 P.2d 1199 (1999) (internal citations omitted).
Although the question of whether a particular conversation is private is a
question of fact, where the facts are undisputed and reasonable minds could not
differ, the issue may be determined as a matter of law. Ecl, State v. Clark, 129
Wn.2d211, 225, 916 P.2d 384 (1996): see also Kadoranian v. Bellingham Police
Dep't., 119 Wash. 2d 178, 190, 829 P.2d 1061 (1992). We apply a subjective
standard, analyzing whether a conversation was private under the circumstances
of a particular case. State v. Clark, 129 Wash. 2d 211, 224, 916 P.2d 384 (1996) (en
banc). The intent or reasonable expectation of the participants, including the
reasonable expectation of privacy, if any, as manifested by the facts and
circumstances of each case, controls as to whether a conversation is private. Id,
(citing Kadoranian, 119 Wash. 2d at 189). We also look to other factors bearing
upon the reasonable expectations and intent of the participants, including
duration, subject matter and location of the conversation, and presence or
potential presence of a third party. Id. (citing Kadoranian, 119 Wn.2d at 190-91;
State v. Slemmer, 48 Wash. App. 48, 53, 738 P.2d 281 (1987)).
In this case, the recorded conversation concerned two issues. First, Lane
and McClung explained to FCB's realtor, von der Burg, and its employee,
Gadwa, the basis for Lane's occupancy of and claim to the property. Second,
Lane offered to purchase the property. No reasonable person could conclude
that this conversation was private.
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No. 69928-8-1/11
Lane claims that she presumed "that this was a private meeting to discuss
what is normally a private matter, the negotiation and purchase price and offer on
a house." CP at 238. But Lane's presumption is insufficient to establish the claim
because "any [interested party] will contend that his or her conversation was
intended to be private." State v. Clark, 129 Wash. 2d at 225. Moreover, it was
unreasonable for Lane to expect that von der Burg or Gadwa would not convey
her offer and the explanation for her occupancy of the property to other
employees of FCB7 and to those investigating the criminal trespass allegation.8 In
addition, it does not appear that at any time during the course of the June 7
meeting that Lane expressed a concern that the conversation remain
confidential. The trial court properly concluded that Lane's action was not
warranted under existing law because the subject conversation was not "private",
as that term is defined in the relevant case law.
We also find no error in the trial court's conclusion that Lane did not make
a reasonable inquiry into the factual or legal basis of her claim. Lane and Magee
argue that a reasonable pretrial inquiry was conducted and, consequently,
7In reply, Lane and Magee argue that through the presence of Gadwa, FCB was a
participant in the meeting. Therefore, anycommunication ofan offer from Lane to another FCB
employee byGadwa or von der Burg is still among participants in the meeting and remains
private. Because the argumentwas not made until appellants' reply, we do not consider it.
Cowiche Canvon Conservancy v. Boslev. 118 Wash. 2d 801, 809, 828 P.2d 549 (1992)("An issue
raised and argued for the first time in a reply brief is too late to warrant consideration." (Citing in
re Marriage of Sacco. 114 Wash. 2d 1, 5, 784 P.2d 1266 (1990)).
8 Lane was well aware that Von der Burg had called the police to have her removed from
the house and that criminal charges could follow. Under these circumstances no reasonable
person could believe that any statements madeduring the conversation about heroccupancy of
the house would not be made available to investigating authorities.
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No. 69928-8-1/12
sanctions are not warranted. But we find no evidence to support this argument
and Lane and Magee point to none.
In response to the CR 11 motions, Lane did not set out any efforts she
took to establish a factual and legal basis for this claim. Instead, she relied solely
on certified copies of transcripts and documents filed in her criminal trespass trial
in Kirkland Municipal Court. This reliance was misplaced.
As discussed above, the Kirkland Municipal Court evidence consisted
primarily of transcripts and documents from pretrial hearings on April 16 and
June 18, 2012. The only relevant part of this evidence is that which was available
to Lane prior to May 31, 2012, the date she filed this case. The evidence from the
April 16 hearing showed that Von der Burg admitted to recording the meeting
without Lane's knowledge and consent and that the Kirkland Municipal Court
judge and the City prosecutor acknowledged that the recording may have been
unlawful. Von der Burg's admissions are insufficient to establish liability under the
Privacy Act, unless the recorded conversation was also "private." Clark, 129
Wash. 2d at 224. Moreover, because there is no evidence that either the Kirkland
Municipal Court judge or the City prosecutor considered whether the recorded
conversation was "private," their conclusions as to the lawfulness ofthe recording
are of no help to Lane. Thus, the evidence from Kirkland Municipal Court is, by
itself, inadequate to establish that Lane conducted a reasonable inquiry into the
factual or legal basis for her claim. Without some evidence that Lane conducted
an independent inquiry into whether the recorded conversation was "private," as
that term is defined in case law, she cannot show that she conducted a
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No. 69928-8-1/13
reasonable inquiry into the factual or legal basis for her claim. The trial court did
not err in concluding that Lane had failed make such a showing.
Attorney Fees on Appeal
FCB and von der Burg claim that this appeal is frivolous and request
attorney fees and costs incurred in its defense. RAP 18.1 (a); In re Recall
Charges Against Feetham, 149 Wash. 2d 860, 72 P.3d 741 (2003). An appeal is
frivolous if there are "'no debatable issues upon which reasonable minds might
differ, and it is so totally devoid of merit that there was no reasonable possibility"'
of success. |g\ (quoting Millers Cas. Ins. v. Briggs. 100 Wash. 2d 9, 15, 665 P.2d
887 (1983)).
With respect to Lane and Magee's first issue—the trial court's denial of
oral argument on the CR 11 motions—we find no debatable issues. By court rule,
the trial court had discretion to deny their request for oral argument on the
motions. And it is plain from the record that due process was served in this case
because Lane and Magee received notice and ample opportunity to be heard on
the motions.
As to the second issue—the trial court's imposition of CR 11 sanctions—
we find no reasonable possibility of success on appeal. To succeed, Lane and
Magee needed to establish that there was a factual and legal basis for the claim
and Magee undertook a reasonable pretrial inquiry to establish the claim. But, as
stated above, no reasonable person would have concluded that the conversation
at issue here was private within the meaning of the Privacy Act. Moreover,
Magee offered no evidence whatsoever—either at trial or on appeal—that he
undertookthe required inquiry into the factual and legal basis of this claim.
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No. 69928-8-1/14
We conclude that this appeal lacks merit and is frivolous and grant FCB
and Von der Burg's request for attorney fees and costs on appeal, subject to
compliance with RAP 18.1.
Affirm.
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WE CONCUR:
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