Vladic Bykov v. David R. Adams ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VLADIK BYKOV,
No. 68021-8-1
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
DAVID R. ADAMS, and his marital
community,
Respondent. FILED: September 16, 2013
Appelwick, J. — Bykov appeals from a judgment awarding postjudgment
interest, CR 11 sanctions, and additional CR 11 sanctions imposed as a result of
his reconsideration motion. Bykov fails to establish any error or abuse of
discretion by the trial court. We affirm.
FACTS £ 0
In April 2010, Vladik Bykov filed a nuisance action against his nejghboj^
David Adams. Adams filed an answer with a counterclaim for costs and attorr*e£r
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fees for defending a frivolous lawsuit. The trial court granted Bykov's rrptiorritB
dismiss his claims against Adams in June 2010. In July 2010, the trial court
dismissed Adams's counterclaim for attorney fees against Bykov, but stated in
the order, "However, this dismissal does not preclude Defendants from pursuing
such relief pursuant to the provisions of RCW 4.84.185." In August 2010, the trial
court granted Adams $1,600 in attorney fees based on its finding that "plaintiffs
claims against defendant are frivolous and advanced without reasonable cause
contrary to RCW 4.84.185." The trial court entered judgment against Bykov in
September 2010. This court dismissed Bykov's appeal of the judgment, Order
No. 68021-8-1/2
Terminating Review, Bykov v. Adams, No. 65920-1-1 (Wash. Ct. App. Dec. 3,
2010), and issued the mandate in May 2011.
While his initial appeal was pending in this court, Bykov continued to file
motions in the trial court. Bykov sought reconsideration of the $1,600 award,
repeatedly arguing that the trial court failed to sufficiently explain its analysis of
his complaint under RCW 4.84.185, or to specifically address each claim in the
complaint. On November 5, 2010, Bykov filed a motion to admit additional
evidence for appeal, to which he attached documents referring to notices of
federal tax liens in the name of Brian K. Fresonke, Adams's attorney, as well as
printout of property tax information referring to a parcel of real estate listed under
the name "Fresonke K G." In his motion, Bykov explained his submission of the
evidence of Fresonke's "potential or actual criminal activity for the purpose of
impeaching him and his declarations." These documents contained Fresonke's
unredacted social security number. Over the following year, the interactions
between Fresonke and Bykov were troubled, culminating in Bykov's conviction in
Seattle Municipal Court in October 2011 for criminally harassing Fresonke.
On November 3, 2011, Adams obtained an order requiring Bykov to
appear at a show cause hearing where Adams would seek the following relief: (1)
disbursement of $1,600 in the court registry to Adams; (2) interest on the
September 2010 judgment; (3) redaction of Fresonke's social security number
from Bykov's November 2010 filing; and (4) CR 11 sanctions of $731.50 for filing
"a pleading intended as an act of harassment against defendant's counsel that
needlessly increased the cost of this litigation." On November 15, after a hearing,
No. 68021-8-1/3
the trial court ordered the relief requested by Adams. It awarded postjudgment
interest in the amount of $224.00 and entered a judgment against Bykov for the
$731.50 sanction. The court specifically found that Bykov "had no legitimate
reason for including" Fresonke's social security number in his filing but "intended
to harass" him and "caused a needless increase in the cost of this litigation ...
because defendant has had to move the Court to redact his attorney's social
security number."
Bykov filed a motion to vacate the November 15 judgment. The trial court
denied the motion, finding that it failed "to conform to the show cause
requirements of CR 60 and fails to meet the substantive requirements for relief.
The court ordered an additional CR 11 sanction of $1000 "because this motion is
not well grounded in fact and is not warranted by existing law."
Bykov appeals the November 15 order and judgment, as well as the
December 8 order denying the motion to vacate judgment and imposing the
additional $1000 sanction.
DECISION
CR 11 permits a court to impose a sanction, including attorney fees, when
a filing is (1) not well grounded in fact; (2) unwarranted by existing law; or (3) for
any improper purpose, such as harassment or delay. "To impose sanctions for a
baseless filing, the trial court must find not only that the claim was without a
factual or legal basis, but also that the attorney who signed the filing did not
conduct a reasonable inquiry into the factual and legal basis of the claim." West
v. Wash. Ass'n of County Officials. 162 Wn. App. 120, 135, 252 P.3d 406 (2011).
No. 68021-8-1/4
The reasonableness of an attorney's inquiry is evaluated by an objective
standard, that is, "whether a reasonable attorney in like circumstances could
believe his or her actions to be factually and legally justified." Bryant v. Joseph
Tree. Inc.. 119 Wn.2d 210, 220, 829 P.2d 1099(1992).
Courts impose sanctions under CR 11 "to deter, to punish, to compensate
and to educate." Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122
Wn.2d 299, 356, 858 P.2d 1054 (1993). When fashioning appropriate sanctions,
courts may consider whether a party bringing a CR 11 motion gave prior, timely,
informal notice of the potential violation to the offending party, but laches or
waiver principles do not apply "because a CR 11 motion is not a 'cause of action'
as contemplated by those doctrines." Biggs v. Vail, 124 Wn.2d 193, 197, 876
P.2d 448 (1994).
Although Bykov filed his lawsuit pro se, "pro se litigants are bound by the
same rules of procedure and substantive law as attorneys." Westberg v. All-
Purpose Structures. Inc.. 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).
We review a trial court's order to pay attorney fees under CR 11, as well
as the amount of any such fees, for an abuse of discretion. Biggs. 124 Wn.2d at
197. The trial court must make specific findings indicating which filings violate
the rule and how such filings violate the rule or demonstrate bad faith. JcL at 201-
02. Unchallenged findings are verities on appeal. Cowiche Canyon
Conservatory v. Boslev. 118 Wn.2d 801, 808, 828 P.2d 549 (1992).
Bykov first challenges the $731.50 sanction, arguing (1) he was entitled to
notice of a possible CR 11 violation before Adams filed a motion for sanctions;
No. 68021-8-1/5
(2) neither Adams or Fresonke incurred costs or fees in filing the motion to redact
the social security number; (3) Adams had no standing to assert Fresonke's legal
rights and Fresonke as a non-party cannot be compensated under CR 11; (4) the
motion for sanctions was filed too late; and (5) CR 11 does not allow the court to
penalize a party. These arguments are not supported by relevant authority and
lack merit.
Bykov has not challenged the trial court's finding that he filed the tax
documents in November 2010 with the social security number unredacted for the
improper purpose of harassing Adams's attorney. In support of his motion for
sanctions, Adams submitted briefing and exhibits describing Bykov's pattern of
harassment of Fresonke and ultimate criminal conviction. In response to
Adams's motion to show cause and for sanctions, Bykov argued at length that
Fresonke's history of tax evasion demonstrated his dishonesty and was therefore
relevant to the lawsuit. Bykov's briefing also contains extensive arguments
challenging the basis for the September 2010 judgment and attributing CR 11
violations to Fresonke. We cannot say the trial court abused its discretion in
concluding that Bykov's November 2010 filing warranted sanctions.
As to the amount of the award, Adams submitted the declaration of his
attorney describing the time he spent addressing the redaction of his social
security number to support his request for $731.50, or 2.66 hours times his
hourly rate of $275.00. Bykov fails to demonstrate any abuse of discretion in the
trial court's decision to impose that amount as a sanction.
No. 68021-8-1/6
Bykov also challenges the trial court's December 8 order imposing $1000
as a CR 11 sanction for filing his motion to vacate the original $731.50 sanction.
Bykov contends that the trial court failed to sufficiently explain how the motion
was not well grounded in fact or warranted by existing law. He claims that the
imposition of the sanction without prior notice was an error of law and a violation
of his due process rights. Bykov also challenges the amount, arguing that there
is no evidence that Adams incurred $1000 in attorney fees in responding to
Bykov's motion.
But, based on our review of the record and the particular circumstances of
this case, remand to the trial court for additional findings is unnecessary. Where,
as here, the trial court imposed sanctions based on a factual record consisting
entirely of affidavits, this court may independently review the evidence for
support for the required findings. Bryant. 119 Wn.2d at 222-23. The trial court
found that Bykov's motion to vacate was not well grounded in fact or warranted
by existing law, but did not specifically find that he failed to conduct a proper
inquiry. However, the record is devoid of any evidence from which the trial court
could have determined that Bykov conducted any reasonable inquiry.
His pleadings speak for themselves. In his motion to vacate the judgment,
Bykov did not cite CR 60 or argue any legally recognized grounds for vacating a
judgment. He presented arguments as to jurisdiction obviously contradicted by
the record. Bykov repeatedly attributed wrongdoing to Fresonke and justified his
own actions, arguing for the first time that he has a First Amendment right to
submit public documents displaying Fresonke's social security number to the
No. 68021-8-1/7
court in order to demonstrate Fresonke's dishonesty. Bykov also complained
about the evidence Adams offered to support his request for $731.50 and
requested an additional evidentiary hearing. But, Bykov's motion did not include
or identify any new facts or relevant authority to cogently support his claims.
Because the record would support a finding that Bykov did not conduct a
reasonable inquiry into the factual or legal bases of his claims before filing his
motion to vacate the judgment, we conclude that the trial court did not abuse its
discretion in determining that Bykov violated CR 11 by filing the motion and that
an additional sanction was warranted.
Similarly, in view of the record here, remand for the trial court to provide
additional findings to explain the amount of the sanction is also unnecessary.
The matter began with a frivolous lawsuit that resulted in sanctions. It detoured
into a criminal harassment proceeding. The appeal was dismissed. Harrassing
pleadings were filed. Following the entry of a clear order describing Bykov's CR
11 violation and imposing a sanction designed in part to compensate Adams,
Bykov filed his baseless motion asserting a constitutional right to commit the
sanctioned act. We cannot say the trial court abused its discretion by imposing a
sanction severe enough to deter Bykov from continuing to litigate the matter
without reasonable grounds. Given the wide latitude afforded trial courts in
fashioning appropriate sanctions, it is not necessary to remand in order for the
trial court to designate the sanction as "terms" rather than "attorney fees." See
FisonsCorp., 122 Wn2d at 355-56.
No. 68021-8-1/8
Finally, Bykov assigns error to the trial court's finding that he did not notify
Adams's attorney that he had deposited $1,600 in the court registry in November
2010. Bykov does not identify the prejudice resulting from the trial court's
resolution of this contested fact in Adams's favor. However, like Adams, we
assume his alleged error is the award of postjudgment interest. Bykov asserts
he gave Fresonke notice of deposit of the funds to satisfy the original judgment
when he served a December 2010 motion. The record does not establish that he
notified the clerk or Fresonke that disbursement of the funds was authorized
rather than mere deposit pending further proceedings. We find no error in the
award of postjudgment interest accruing until the funds were disbursed.
Bykov requests attorney fees and costs. Because Bykov has not
prevailed, he is not entitled to fees or costs.
Affirmed.
WE CONCUR:
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