Jeffrey Chen, Appellant V. City Of Medina, Respondent

Z2 	m_
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEFFREY CHEN, individually,
Appellant,
v.
CITY OF MEDINA, a public agency
and Washington noncharter code city,
Respondent.
NO. 69429-4-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: February 10, 2014
ZSL
O
Leach, C.J. — Jeffrey Chen appeals a trial court order denying his motion
for relief under the Public Records Act (PRA), chapter 42.56 RCW, and 	his
motion for reconsideration. 	Chen claims that he did not receive proper notice
before the trial court entered its findings of fact and conclusions of law, that the
court should not have entered any findings of fact and conclusions of law when it
entered its amended order denying his motion for relief under the PRA, that we
should amend the trial court's findings of fact and conclusions of law consistent
with 	his 	motion 	for 	reconsideration, 	and 	that the 	trial 	court entered 	a 	final
judgment without resolving 	all of the issues that he raised. 	Because Chen
demonstrates no prejudice caused by inadequate notice, provides no authority
showing that the court erred by entering findings of fact and conclusions of law
h^y.

NO. 69429-4-1 / 2
with the order or permitting us to amend the trial court's findings and conclusions,
and the court properly addressed all issues that Chen raised, we affirm.
FACTS
Chen 	is the former chief of police for the City of Medina 	(City). 	In
November 2010, 	the City's insurer hired attorney Michael Bolasina to provide
legal advice to the City following reports of unauthorized access into its e-mail
records. 	In December 2010, after Bolasina interviewed Chen about complaints
of this unauthorized activity, Bolasina asked Chen to review his documentation of
Chen's interview statements. 	Chen resigned two days later without responding
to Bolasina's request. 	After Chen tried to rescind his resignation, City Manager
Donna Hanson placed him on administrative leave on December 27, 2010. 	On
January 	27, 	2011, 	Chen 	provided a 	memorandum 	contradicting 	his earlier
statements to Bolasina and claiming protection as a whistleblower. 	Bolasina
advised Hanson about her response to Chen and 	believed that litigation with
Chen was likely.
On February 2, 2011, Bolasina met in an executive session with the city
council under RCW 42.30.110(1)(i) to provide advice about potential litigation
with Chen.1 	Bolasina prepared no written report for this meeting. 	During the
1 RCW 42.30.110(1)(i) states,
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NO. 69429-4-1 / 3
executive session, he provided documents to the city council members to assist
in 	the 	discussion. 	Bolasina 	collected 	these 	documents 	at 	the 	end 	of the
executive session. 	He did not provide these documents to the city council at any
later time.
On February 1, the City hired Stephanie Alexander as its legal counsel out
of concern that Bolasina might be a witness in anticipated litigation. 	Alexander
hired 	Ellen 	Lenhart 	to 	conduct 	an 	independent 	investigation 	into 	Chen's
resignation. 	Lenhart 	interviewed 	witnesses 	and 	prepared 	a 	report 	(Lenhart
Report) directed to Alexander on March 23, 2011 2
On March 29, 2011, the City received a public records request from Chen,
seeking
[a]ny and all documents from February 1, 2004, to date regarding
or discussing Jeffrey Chen, the current Chief of Police of the City of
Medina. 	This request includes any and all investigative reports
(1) Nothing contained in this chapter may be construed to prevent
a 	governing 	body from 	holding an 	executive session during 	a
regular or special meeting.
(i) To discuss with legal counsel representing the agency
matters relating to agency enforcement actions, or to discuss with
legal 	counsel 	representing 	the 	agency 	litigation 	or 	potential
litigation to which the agency, the governing body, or a member
acting in an official capacity is, or is likely to become, a party,
when public knowledge regarding the discussion is likely to result
in an adverse legal or financial consequence to the agency.
2 Lenhart interviewed Bolasina, but he did not discuss his legal advice to
the City or provide her with the documents that he provided to the city council
during the executive session.
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NO. 69429-4-1 / 4
prepared 	by 	any 	investigator 	retained 	by 	the 	City of 	Medina,
including, but not limited to Michael Bolasina and Ellen Lenhart, any
and all documents reviewed by the Medina City Council concerning
or about Chief Jeffrey Chen, any and all emails of or about Chief
Jeffrey Chen, 	received 	or sent, 	and 	any and 	all information 	in
whatever form which 	discusses in any manner the rationale for
placing Chief Chen on administrative leave on December 27, 2010.
On March 31, the City provided Chen with an unredacted copy of the Lenhart
Report.3 	On April 	1, the City requested clarification of Chen's request and
direction about what specific identifiable 	records he 	sought. 	In an 	e-mail to
Chen, 	the 	City asked, 	"Are you 	seeking 	purely employment 	records, 	or all
records 	in which 	his 	name 	and/or 	position 	is 	referenced 	in all 	documents
concerning city business since 2/1/2004?" 	In this e-mail, the City also informed
Chen, 	"In 	response 	to the 	second 	portion 	of your 	request, 	records will 	be
provided to you as they become available between now and July 31, 2011." 	On
April 4, Chen replied, "I am seeking all records in which Chief Jeff Chen's name
and/or position is referenced in all documents concerning the City of Medina's
business since 2/1/2004." 	Hanson terminated Chen on April 27, 2011.4
3 Chen used the Lenhart Report to prepare a response considered at his
Loudermill hearing held on April 14, 2011. 	A Loudermill hearing is a due process
pretermination requirement for certain government employees that gives them an
opportunity to be heard. 	Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542-45, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
4 On December 16, 2011, Chen sued the City in the United States District
Court for the Western District of Washington for wrongful termination, seeking
$14 million in damages. 	See Chen v. City of Medina, No. C11-2119, 2013 WL
4511411 (W.D. Wash. August 23, 2013).
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NO. 69429-4-1 / 5
Chen 	filed 	a 	second 	records 	request 	on 	June 	16, 	2011, 	seeking 	a
recording of the city council meeting on November 8, 2010, "in its entirety."
Because the tape recorded part of a conversation held during a recess in the
meeting and the parties to this conversation did not give their permission to
record 	it, 	Hanson sought legal advice 	about this request. 	The 	legal review
caused the City to miss its estimated deadline, but it provided a recording to
Chen on July 18.
In July, the City identified 30,610 separate e-mail potentially responsive to
Chen's request, including 2,860 e-mail relevant to the employment investigation.
The City provided Chen with an installment of 218 e-mail on July 30, 2011, after
a legal review determined that these e-mail were not exempt from disclosure. At
that time, the City estimated that an installment of additional records would be
available in three months.
On 	August 	5, 	2011, 	Chen 	filed 	this 	lawsuit 	against 	the 	City 	for
enforcement of the PRA. 	On August 16, Chen obtained an ex parte order to
show cause under RCW 42.56.550 and King County Local Rule 40.1(b)(2)(H).
On August 17, Chen 	moved for an order to lodge documents with the court,
which the court denied. 	On August 26, Chen filed a motion for relief under the
PRA. 	The court held a show cause hearing on September 12.

NO. 69429-4-1 / 6
On November 30, 2011, Chen's attorney, Marianne Jones, filed a notice of
unavailability 	from 	December 	17 	through 	and 	including 	January 	2.5 	On
December 1, 2011, the court entered an order on transfer of individual judge
assignment, effective January 9, 2012. 	On December 14, a paralegal at Jones's
law firm sent an e-mail to the court indicating receipt of this order and stating,
A hearing took place on September 12, 2011, related to Plaintiff's
Motion for [Relief] under RCW 42.56. 	I checked the Court docket
and confirmed that, as of today no ruling has been made on this
motion. 	Can you tell me whether we may expect a [ruling] on the
motion prior to the transfer ofthe case to Judge McCarthy?
On December 15, the court responded that the currently assigned judge would
"issue a ruling no later than 1/6/12."
On December 22, the court asked that each 	party submit a proposed
order on Chen's motion for relief. 	The City filed and served its proposed order on
Tuesday, December 27, 2011.6 	On January 4, 2012—five court days after the
City served its proposed order—the trial court entered an order denying Chen's
motion for relief, which included findings of fact and conclusions of law.
On January 17, 2012, Chen moved for reconsideration. 	The court denied
this motion on April 26 but entered an amended order, which also included
findings of fact and conclusions of law. 	On September 10, 2012, the trial court
5 Chen's brief purports to include the text of an "automatic reply" e-mail
from Jones's e-mail account that reflected her absence. 	Nothing in the record
contains the text of this alleged automatic reply message.
6 Chen submitted his proposed order as an attachmentto his motion.
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NO. 69429-4-1 / 7
granted the City's motion for entry of judgment and awarded the City statutory
attorney fees under RCW 4.84.010.7
Chen appeals.
STANDARD OF REVIEW
We review de novo all agency actions challenged under the PRA.8 	We
review a trial court's decision to deny a motion for reconsideration for an abuse of
discretion.9 	A trial court 	abuses 	its discretion 	if 	its decision 	is 	manifestly
unreasonable or is based on untenable grounds.10
ANALYSIS
Chen identifies the following issues. 	First, he claims, "Under CR 52(c), the
trial 	court 	abused 	its 	discretion 	in entering 	the 	initial 	findings 	of fact 	and
conclusions of law on January 4, 2012, because proper notice was not provided
to Chief Chen." 	Second, he alleges, "The trial court abused its discretion in
entering the findings of fact and conclusions of law when their entry was not
necessary and a simple order was sufficient." Third, Chen contends,
7 Despite the City's contrary assertion, the court's April 26, 2012, order did
not constitute a final judgment. 	See CR 54; RAP 2.2(a)(1).
8 Koeniq v. Pierce County, 151 Wn. App. 221, 229, 211 P.3d 423 (2009)
(citing RCW 42.56.550(3); Daines v. Spokane County, 111 Wn. App. 342, 346,
44 P.3d 909 (2002)).
9 Drake v. Smersh, 122 Wn. App. 147, 151, 89 P.3d 726 (2004).
10 State v. Emery, 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v. Allen, 159 Wn.2d 1,10, 147 P.3d 581 (2006)).
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NO. 69429-4-1 / 8
The findings of fact and conclusions of law entered on January []4,
2012, and as amended on April 26, 2012, should be deemed void
under CR 54(f), because the trial court abused its discretion by
entering the findings of fact and conclusions on law on January 4,
2012 without proper notice having been provided to Chief Chen and
absent evidence sufficient.
Fourth, Chen asserts, "Alternatively, Chief Chen requests that the appellate court
amend the findings of fact and conclusions of law as requested in Chief Chen's
motion for reconsideration." 	Finally, he claims, "The final judgment entered on
April 26, 2012, should be vacated, because the trial court's [sic] failed to address
all issues contained in Chief Chen's original motion for relief under the PRA,
which constitutes an abuse of discretion." We disagree.
Chen claims that he did not receive the notice required by CR 52(c) and
CR 54(f)(2) before the trial court entered its order on January 4, 2012. 	He
argues that at the time the City served its proposed order, "Medina (i) had been
provided prior notice of counsel's unavailability, and (ii) received a responsive
email upon service of the proposed findings of fact and conclusions of law, that
counsel was unavailable for service. . . . Counsel's notice of unavailability had
also been filed with the court on 	November 30, 	2011." 	Chen suggests three
ways that the City's purported failure to give the required notice prejudiced him.
First, 	he 	asserts 	that 	had 	he 	received 	proper 	notice, 	"all 	of the 	factual
discrepancies 	stated 	within 	the 	statement 	of fact 	and 	supported 	by the
Declaration would have been raised." Second, he asserts,
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NO. 69429-4-1 / 9
[T]he trial court would have been apprised that a new lawsuit in
Federal Court had just been filed on December 16, 2011 and that it
was evident that the attorney for Medina was merely attempting to
obtain findings and conclusions to be entered that [sic] so that
Medina 	may 	argue 	subsequently 	that 	the 	findings 	had 	been
determined.
Third, he asserts,
[B]ecause the court had not issued an oral ruling or a preliminary
written order indicating its decision and/or the basis for its decision,
even if Chief Chen was afforded proper notice under CR 52(c), he
was 	not 	aware 	that 	the 	court 	intended 	to 	deny 	his 	motion.
Therefore, Chief Chen could not have known he was a "defeated
party" under the rule, and thus, that he was in a position where he
needed 	to 	object 	to 	Medina's 	proposed 	findings 	of fact 	and
conclusions of law, or have them entered against him.
CR 52(c) states, "[T]he court shall not sign findings of fact or conclusions
of law until the defeated party or parties have received 5 days' notice of the time
and place of the submission, and have been served with copies of the proposed
findings and conclusions." 	"The purpose of CR 52(c) is to afford the defeated
party an opportunity to evaluate and object to the contents of its opponent's
proposed findings before the court adopts and enters those findings."11
Similarly, CR 54(f)(2) states, "No order or judgment shall be signed or
entered until opposing counsel have been given 5 days' notice of presentation
and served with a copy of the proposed order or judgment." 	Generally, a failure
11 224 Westlake. LLC v. Enastrom Props., LLC, 169 Wn. App. 700, 728,
281 P.3d 693 (2012).

NO. 69429-4-1/10
to comply with this notice requirement renders the trial court's order void.12 	An
order 	entered 	without the 	required 	notice 	is 	not 	invalid, 	however, 	if the
complaining party shows no resulting prejudice.13
Here, Chen fails to show prejudice from any insufficient notice. 	Before
Jones became unavailable, her law firm learned when the court planned to issue
its ruling. 	Jones knew that the court intended to rule on Chen's motion before
January 6, four days after her "unavailability." 	Chen submitted a proposed order
on 	his motion for relief. 	The 	City was 	obligated 	to 	respond 	to the 	court's
December 22 request for a proposed order. 	It could not timely comply with the
court's request and also accommodate Jones's unavailability. 	Although the court
did not hear live testimony, it properly considered the evidence that the parties
submitted in support of and in opposition to Chen's motion.14 Chen filed a motion
for reconsideration challenging the January 4 findings of fact and conclusions of
law, which the court considered and denied. 	He was also allowed to appeal the
judgment and to present all the issues he wished to raise. 	Additionally, Chen
cites no legal authority to support his assertion that service was not effective until
12 Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986) (citing Cjty
of Seattle v. Sage, 11 Wn. App. 481, 482, 523 P.2d 942 (1974)).
13 Burton, 105 Wn.2d at 352 (citing Sooer v. Knaflich, 26 Wn. App. 678,
681,613P.2d 1209(1980)).
14 	See 	RCW 42.56.550(3); 	WAC 44-14-08004(1); 	O'Neill 	v. 	City of
Shoreline, 170 Wn.2d 138, 152-53, 240 P.3d 1149 (2010) (PRA permits court to
conduct hearing based solely on affidavits).
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NO. 69429-4-1/11
the date that counsel became available. 	Because Chen fails to show prejudice,
we deny his challenge on the basis of inadequate notice.
Next, Chen argues that "the trial court abused its discretion in entering the
findings of fact and conclusions of law when their entry was not necessary and a
simple order was sufficient." 	Specifically, he claims that "findings of fact and
conclusions of law were not necessary as to the trial 	court's determination
regarding Chief Chen's two primary issues: 	(1) whether Medina's proposed date
of response was reasonable; and (2) whether Medina afforded Chief Chen its
fullest assistance."
Chen relies upon CR 52(a)(5)(B) to support his claim. 	This rule states that
findings of fact and conclusions of law are 	not necessary "[o]n decisions of
motions under rules 12 or 56 or any other motion, except as provided in rules
41(b)(3) and 55(b)(2)." 	Because we review the challenged order de novo, the
trial court's findings of fact and conclusions of law are superfluous.15 Thus, Chen
again fails to demonstrate prejudice.
Chen 	also 	asks 	us 	to 	amend 	the 	trial 	court's findings 	of fact and
conclusions of law to conform to the requests in his motion for reconsideration.
He cites only RAP 7.3 and RAP 12.3(a) as authority supporting this request.
RAP 7.3 gives an appellate court authority "to determine whether a matter is
15 See Donald v. City of Vancouver, 43 Wn. App. 880, 883, 719 P.2d 966
(1986). -11-

NO. 69429-4-1/12
properly before it, and to perform all acts necessary or appropriate to secure the
fair and orderly review of a case." 	RAP 12.3(a) defines a "decision terminating
review," which includes a decision on the merits.16
As we stated in Wold v. Wold,17 "It is improper for an appellate court to
ferret out a material or ultimate finding of fact from the evidence presented. 	Such
a practice would place the appellate court in the initial decision making process
instead of keeping it to the function of review." 	If a trial court omits findings on
material issues, an appellate court will often direct the trial court to make findings
on those issues.18 	Because we generally do not amend a trial court's findings of
fact, we reject this claim.
Finally, Chen alleges, "[T]he trial court's entry of a final judgment without
full adjudication of all of the issues was manifestly unreasonable and constitutes
an abuse of discretion, and the judgment should be reversed." Chen asserts that
the court did not "affirmatively determine whether the [sic] Medina's response
date of seven months after Chief Chen's initial request. . . was reasonable under
RCW 42.56.550(2). 	Instead, the trial court's decisions simply stated that three
months and a decision to provide records in installments was reasonable." 	He
also claims that "the trial court's orders did not address whether Medina provided
16RAP12.3(a)(3)(i).
17 7 Wn. App. 872, 876, 503 P.2d 118(1972).
18 Wold, 7 Wn. App. at 877 (citing Peterson v. Neal, 48 Wn.2d 192, 292
P.2d 358 (1956)).
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NO. 69429-4-1/13
the fullest assistance." 	Further, he contends that the trial court awarded statutory
attorney fees to the City prematurely.
RCW 42.56.550(2) states,
Upon the motion of any person who believes that an agency has
not 	made 	a 	reasonable 	estimate 	of the 	time 	that the 	agency
requires to respond to a public record request, the superior court in
the 	county 	in which 	a 	record 	is 	maintained 	may 	require 	the
responsible 	agency 	to 	show 	that 	the 	estimate 	it provided 	is
reasonable. 	The burden of proof shall be on the agency to show
that the estimate it provided is reasonable.
In his motion for relief, Chen argued that the City's estimated response date,
which was three months beyond the originally estimated date of four months,
was unreasonable. 	He asked the trial court to order immediate disclosure. 	The
court implicitly declined this request by concluding that the City acted reasonably
when it extended its estimated response date by three months—meaning a total
estimated 	response time of seven months—and when it notified Chen that it
would produce the records in installments. 	Therefore, the court addressed this
issue fully.
RCW 42.56.100 states,
Agencies shall adopt and enforce reasonable rules and regulations,
and the office of the secretary of the senate and the office of the
chief clerk of the house of representatives shall adopt reasonable
procedures 	allowing 	for 	the 	time, 	resource, 	and 	personnel
constraints associated with legislative sessions, consonant with the
intent of this chapter to provide full public access to public records,
to protect public records from damage or disorganization, and to
prevent excessive interference with other essential functions of the
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NO. 69429-4-1 /14
agency, the office of the secretary of the senate, or the office of the
chief 	clerk 	of the 	house 	of 	representatives. 	Such 	rules 	and
regulations shall provide for the fullest assistance to inquirers and
the most timely possible action on requests for information.
The PRA provides no separate cause of action for an agency's failure to provide
the fullest assistance to a requester. 	Chen raises no challenge to any City rules
or regulations. 	Thus, the court did not need to address this allegation. 	Because
the trial court properly concluded that the City was the prevailing party, it did not
err in awarding statutory attorney fees to the City.
Attorney Fees
A party is entitled to attorney fees on appeal if a statute authorizes the
award.19 	Chen requests attorney fees under RCW 42.56.550(4), which allows a
person prevailing against an agency in a court action "seeking the right to inspect
or copy any public record or the right to receive a response to a public record
request 	within 	a 	reasonable 	amount 	of 	time" 	to 	recover costs, 	including
reasonable attorney fees. 	This statute also gives the court discretion "to award
such person an amount not to exceed one hundred dollars for each day that he
or she was denied the right to inspect or copy said public record."20 	Because
Chen does not prevail in this action, we deny his request.
The City requests attorney fees under RAP 18.9(a), which 	permits an
appellate 	court to award attorney fees 	to a 	party as 	sanctions, 	terms, or
19 RAP 18.1.
20 RCW 42.56.550(4). •14-

NO. 69429-4-1/15
compensatory damages when the opposing party files a frivolous appeal.21 	"An
appeal is frivolous if, considering the entire record, the court is convinced that the
appeal presents no debatable issues upon which reasonable minds might differ,
00
and that the appeal is so devoid of merit that there is no possibility of reversal."
In determining if an appeal is frivolous, we resolve all doubts in the appellant's
favor.23 	An 	appeal 	is not frivolous 	merely 	because 	the 	court 	rejects the
appellant's arguments and affirms.24 	Because Chen presents debatable issues,
we also deny the City's fee request.
CONCLUSION
Chen fails to show prejudice from any deficiency in the notice he received
before the court entered its January 4, 2012, order. 	He also shows no prejudice
caused by the trial court's entry of findings of fact and conclusions of law with its
orders and does not persuade us that we should amend the trial court's findings.
The court addressed all of the issues that Chen raised in his motion to show
21 Advocates for Responsible Dev. v. W. Wash. Growth Mamt. Hearings
Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010) (citing Reid v. Dalton, 124 Wn.
App. 113, 128, 100 P.3d 349 (2004)).
22 Advocates for 	Responsible 	Dev., 	170 Wn.2d 	at 580 	(citing Tiffany
Family Trust Corp. v. City of Kent. 155 Wn.2d 225, 241, 119 P.3d 325 (2005)).
23 Advocates for Resp"onsible 	Dev.. 	170 Wn.2d 	at 580 (citing 	Tiffany
Family Trust Corp., 155 Wn.2d at 241).
24 Wash. Motorsports Ltd. P'ship v. Spokane Raceway Park, Inc.. 168 Wn.
App. 710, 719, 282 P.3d 1107 (2012) (citing Tiffany Family Trust Corp.. 155
Wn.2dat241).
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NO. 69429-4-1/16
cause and 	properly awarded 	statutory attorney fees 	to the 	City. 	For these
reasons, we affirm.
(Jjta^c^A. 	C_^ ' y ,
WE CONCUR:
60%^. 	1^^^ 	}
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