Yoel & Joseph Engineering Llc, Et Ano, Respondents V. Iryna Kobets, Et Ano, Appellants

OCR transcription for search; preserved printed pages are authoritative

FILED
4/22/2019
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

YOEL & JOSEPH ENGINEERING LLC,
RICHARD OBISANYA ,

Respondents,
V.

IRYNA KOBETS, SERGEY KOBETS
and all persons in possession,

Appellants.

DIVISION ONE
No. 78179-1-I

UNPUBLISHED OPINION

FILED: April 22, 2019

Dwyer, J. — This is a residential landlord-tenant case. Yoel & Joseph

Engineering, LLC, and Richard Obisanya (collectively Obisanya) are Iryna 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.

However, 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. 78179-1-I/2

|

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
(mistakenly 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: Okay. Well, there’s either going to be
argument or testimony. You get to pick, Counsel. Which is it?

[Counsel for the Kobets]: It’s going—lI will argue, but if you
ever want to have questions for, you can.

No. 78179-1-1/3

THE COURT: No. | don’t want two people talking at once is
my point.

The Kobets presented various documents, all of which Commissioner
Garrett accepted into the record. They did not present any sworn testimony.
The Kobets asserted that the documents presented supported a defense to the
eviction because, they claimed, the evidence showed that the Kobets had paid to
fix habitability issues with the property and were accordingly entitled to an
abatement of the rent. However, the Kobets conceded both that their defense of
rent abatement required them to establish that they gave notice to the landlord of
the problems with the property and that the documents they had presented to the
commissioner did not show that the Kobets had provided the required notice.

Commissioner Garrett asked the Kobets’ counsel multiple times if she had
any additional evidence ready to present that would prove that the Kobets gave
notice to Obisanya of the alleged defects in the property. At first, counsel for the
Kobets asserted that she did not “have it here right now” but that she could “look
real quick.” She then asserted that it was “in the response.” A few minutes later,
when asked again if she had any evidence to present, she claimed that she had
more evidence with her and that her client had additional evidence. However,
rather than present the evidence to the commissioner, Kobets’ attorney
requested additional time to prepare the evidence for presentation, leading to the
following exchange:

[Counsel for the Kobets]: So | have—regarding the offer of
proof, | have more emails here, and if the Court allows me to make
a copy, | will make a copy of those. Those emails state—

THE COURT: You're really kidding, aren’t you, Counsel? So
you—we've—this case has been delayed. You were in here this

No. 78179-1-1/4

morning. You needed to run out to make more copies to present
things. I’ve allowed that to be submitted, and now you're asking
me, “Do you want more information? | can go come up with it.”
You should have done that well in advance of that hearing, and you
know that. So just why don’t you—

[Counsel for the Kobets]: | apologize.

THE COURT: —stop while you’re behind on that and keep
moving with an argument.

[Counsel for the Kobets]: Yeah. | apologize, Your Honor.
The fact that the motion was continued had nothing to do with my
client. It's because Mr. Obisanya didn’t appear last time for the
hearing. That’s why the motion was—

THE COURT: No. My point is you had additional opportunity
to submit extra evidence to the benefit of your client and you for
some reason chose not to. That’s not my problem, and I’m not
going to consider additional matters, paperwork that you’ve chosen
not to submit at this time.

Shortly thereafter, the Kobets sought a continuance to have “the time to
submit additional evidence.” Obisanya objected, asserting both that the hearing
had already been continued once, thus giving the Kobets an extra week to
prepare evidence, and that a continuance was inappropriate because the Kobets
were seeking additional time to present their own e-mail records, evidence over
which they had control well prior to the date of the show cause hearing.
Commissioner Garrett agreed with Obisanya and denied the continuance,
explaining to the Kobets’ attorney that “[t]here was opportunity. There was
adequate opportunity to be prepared for this hearing, Counsel, and you’re just,
frankly, not. So no.”

Subsequently, Commissioner Garrett ruled in favor of Obisanya, entering

a judgment and issuing a writ of restitution.

No. 78179-1-1/5

The Kobets then moved to vacate the judgment and the writ of restitution
(pursuant to CR 60"), and requesting that the matter be set for trial. At oral
argument on this motion before Commissioner Pro Tem Brad Moore, the Kobets
asserted that Commissioner Garrett had wrongfully refused to consider evidence
and had breached an affirmative duty to swear in and examine Sergey Kobets
during the show cause hearing. However, upon inquiry by Commissioner Moore,
the Kobets’ attorney conceded that she could have called Sergey Kobets to
testify.

THE COURT: Correct me if | am wrong. Couldn’t you have
said: | want—excuse me. | want—this is Mr. Kobets?

[Counsel for the Kobets]: That’s correct.

THE COURT: | want Mr. Kobets to testify, please swear him

in? And you could have asked him: Explain each one of these

defects to the Court. You could have done that?

[Counsel for the Kobets]: | could have done that, yes.
Commissioner Moore denied the Kobets’ motion, concluding that the
Kobets had not established a due process violation and that CR 60 was not even
applicable to the Kobets’ situation. The Kobets then filed a motion for revision.

The superior court judge denied revision.

The Kobets filed a notice of appeal, claiming errors by both Commissioner

Garret (in his ruling during the show cause hearing) and Commissioner Moore (in

his ruling on the Kobets’ motion to vacate). The Kobets do not appeal from the

superior court ruling denying their motion for revision.

1 CR 60 states, in pertinent part, that
{[o]n motion and upon such terms as are just, the court may relieve a party or the
party's legal representative from a final judgment, order, or proceeding for the following
reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining
a judgment or order.
CR 60(b).

No. 78179-1-I/6

II
The Kobets make two primary assertions on appeal: (1) that
Commissioner Garrett erred by refusing to allow the Kobets to present additional
evidence at the show cause hearing and by failing to swear in and question
Sergey Kobets in violation of RCW 59.18.380, and (2) that Commissioner Garrett
erred by denying the Kobets’ request for a continuance.? Neither merits
appellate relief.
A
The Kobets first assert that Commissioner Garret violated RCW 59.18.380
by refusing to allow them to present additional evidence regarding their defense
of rent abatement during the show cause hearing and by failing to swear in and
question Sergey Kobets. In response, Obisanya asserts that Commissioner
Garrett did not refuse to admit any additional evidence the Kobets actually
presented at the show cause hearing and that RCW 59.18.380 did not require
Commissioner Garrett to swear in and question Sergey Kobets. Obisanya has
the better argument.
The Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, “sets

out the step-by-step procedure for evicting tenants as unlawful detainers.”

2 The Kobets also seek review of Commissioner Moore's ruling, asserting that
Commissioner Moore erred by denying the Kobets motion to vacate Commissioner Garrett's
ruling. However, in cases involving a commissioner's ruling that has been reviewed by the
superior court on revision, “[w]e review the superior court’s ruling, not the commissioner's.” State
v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). “Once the superior court makes a decision
on revision, ‘the appeal is from the superior court's decision, not the commissioner’s.” Ramer,
151 Wn.2d at 113 (quoting State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)). The
Kobets have already obtained review by the superior court, which declined to modify
Commissioner Moore's ruling. Because the Kobets have improperly appealed from
Commissioner Moore’s order after having sought revision of the order before the superior court,
we decline to consider their appeal from Commissioner Moore’s order.

No. 78179-1-I/7

Randy Reynolds & Assocs. v. Harmon, No. 95575-1, slip op. at 12 (Wash. Mar.

28, 2019) http:/Awww.courts.wa.gov/opinions/pdf/955751 .pdf. First, “the landlord
must serve the eviction notice on the tenant. If the tenant has not complied with
the eviction, the landlord [then] serves a summons and complaint.” Randy
Reynolds, slip op. at 12 (citation omitted) (citing RCW 59.18.200(1)(a); RCW
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. RCW 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. /d. 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 Reynolds, slip op. at 12-13 (alteration in original) (quoting Carlstrom v.

Hanline, 98 Wn. 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 Wn.2d 308,

321, 386 P.3d 711 (2016) (quoting Leda v. Whisnand, 150 Wn. App. 69, 81, 207

P.3d 468 (2009)). In Leda, we explained that “Washington law simply does not

No. 78179-1-1/8

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 Wn. 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 so,
and so to limit testimony to that which is strictly necessary to properly decide the
issue of interim possession of the property.”> Leda, 150 Wn. App. at 82-83.
In summary, then, the proper procedure by which a trial

court should conduct an RCW 59.18.380 show cause hearing is as

follows: (1) the trial court must ascertain whether either the

defendant’s 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 (including testimonial evidence) from parties and

witnesses to determine the merits of any viable asserted defenses.
Leda, 150 Wn. 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. Instead, Commissioner Garrett repeatedly

3 We also noted that courts may choose to “allow the parties or their counsel to conduct
witness examinations.” Leda, 150 Wn. App. at 83 n.5.

No. 78179-1-I/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 Leda is clear that RCW 59.18.380
guarantees the opportunity to present evidence in support of viable defenses.
Leda, 150 Wn. App. at 83. As we explained in Leda, 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 Wn. 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.” Leda, 150 Wn. 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. 78179-1-1/10

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 testimony.*

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.

“Whether a motion for continuance should be granted or denied is a
matter of discretion with the trial court, reviewable on appeal for manifest abuse

of discretion.” Trummel v. Mitchell, 156 Wn.2d 653, 670, 131 P.3d 305 (2006)

(citing Balandzich v. Demeroto, 10 Wn. 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 statute:

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]: It’s going—I will argue, but if you ever want to
have questions for, you can.

THE COURT: No. | don’t want two people talking at once is my point.

The Kobets assert that the commissioner’s 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 commissioner's point was that he did not
want to have both the attorney and Sergey Kobets speaking at the same time.

10

No. 78179-1-1/11

court abuses its discretion when its decision is based on untenable grounds or is
manifestly unreasonable. Trummel, 156 Wn.2d at 671 (quoting Balandzich, 10
Wh. App. at 721).

“In 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
Wn.2d at 670-71 (citing Balandzich, 10 Wn. 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 Wn. 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-I/12

not realize she would need the evidence.® 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.
HT

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

ay

equity.” Panorama Vill. Condo. Owners Ass'n Bd. of Dirs. v. Allstate Ins. Co..,

144 Wn.2d 130, 143, 26 P.3d 910 (2001) (quoting McGreevy v. Or. Mut. Ins. Co.,

128 Wn.2d 26, 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. “In general, a
prevailing party is one who receives an affirmative judgment in his or her favor.”
Riss v. Angel, 131 Wn.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. 78179-1-1/13

appellate attorney fees.” City of Puyallup v. Hogan, 168 Wn. 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:
In the event either party engages, retains or hires an attorney to
enforce any provision of this Lease, 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. . /
Dw 4 [
7 7
We concur: /

13