Frederick J. Karpman, Et Al, Respondents V. Oleg Rozenfeld, Appellant (Majority and Order)
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LED
APPEALS
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7
4
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AN 8: 47
T,
y
IN THE COURT OF APPEALS OF THE STATE OF WASHIN(
DIVISION II
No. 42830 -0 -II
FREDERICK J. KARPMAN and ELLEN S.
KARPMAN,
Trustees
of
the
KARPMAN
TRUST,
Appellants,
V.
ORDER CORRECTING
OLEG ROZENFELD, aka OLEG
UNPUBLISHED OPINION
SHKLYARENKO, aka OLEG
FHKLWAREMKO, aka OLEG
SHKLARENKO, aka OLEG
SHKLYAPENKO, aka OLEG
HKLYARENKO, aka OLEY SHKL, aka
OLEY YARENKO, a single person,
Respondent,
and
MASON COUNTY TITLE INSURANCE
COMPANY, a Washington corporation,
Defendant.
The unpublished opinion filed November 19, 2013 is corrected as follows:
The caption is changed so that Frederick J. Karpman and Ellen S. Karpman, Trustees of
the Karpman Trust,
are
listed
as
Respondents
and
Oleg
Rozenfeld,
et ux.,
is listed
as
Appellant.
No. 42830 -0 -II
DATED this
e
ay
2014.
of / % ,
IT IS SO ORDERED.
Hunt, J.
2
FILED
i
C01JRT OF APPEALS
D1VfJ1Of4 if
201" NOV 19
IN THE COURT OF APPEALS OF THE STATE OF WASHIN
I)WISION H
FREDERICK J. KARPMAN and ELLEN S.
KARPMAN,
Trustees
of the
No. 42830 -0 -H
KARPMAN
TRUST,
Appellants,
V.
UNPUBLISHED OPINION
OLEG ROZENFELD, aka OLEG
SHKLYARENKO, aka OLEG
FHKLWAREMKO, aka OLEG
SHKLARENKO, aka OLEG
SHKLYAPENKO, aka OLEG
HKLYARENKO, aka OLEY.SHKL, aka
OLEY YARENKO, a single person,
Respondent
and
MASON COUNTY TITLE INSURANCE
COMPANY, a Washington corporation,)
Defendant.
HUNT, J. =
Oleg
Rozenfeld2
Ellen S. Karpman, Trustees
of
appeals two orders in a lawsuit filed by Frederick J. and
the Karpman Trust ( the " Karpmans ")
claiming that he had
breached a real estate purchase and sale agreement: an order of default and an order denying his
1 Mason County Title Insurance Company was dismissed from the action without costs or
attorney fees by the Amended Judgment filed on December 13, 2011.
2 Although the caption has several aliases listed for Oleg Rozenfeld, we will refer to the
appellant as
Rozenfeld for the
purposes of
this- appeal.
AM 8: 38
No. 42830 -041
motion
to
quash subpoenas and
denying his
motion
to
set aside
for
its
sanctions.
order of
duces tecum issued to Rozenfeld' s banks;
sanctions against
the Karpmans.3
He argues that the superior court erred in ( 1)
default; ( 2)
and (
3)
denying his motion to quash subpoenas
denying his request for subpoena related .
We affirm the superior court' s denial of Rozenfeld' s motion to
vacate, do not address denial of his other motions because they are moot, and award the
Karpmans attorney fees and costs on appeal.
FACTS
I. PURCHASE AND SALE AGREEMENT; FINANCING ADDENDUM
On March 26, 2011., Oleg Rozenfeld and Frederick and Ellen Karpman entered into a
Real Estate Purchase
and
Sale Agreement (" Agreement ")
Karpmans' Shelton residence
which provided
aith"
f]
3
by
that Rozenfeld' s
requiring Rozenfeld to purchase the
April 29.
This Agreement included a " Financing Addendum,"
obligation
to
purchase
the home
was contingent on
his "[ g] ood
efforts to obtain financing through a Federal Housing Administration ( FHA) loan.4
Normally, we do not accept direct appeals of interlocutory orders such as these. Nevertheless;
our court
has treated this
economy
and
case
resolving the
thus far as
parties'
case
a
on
direct
the
appeal.
Thus, in the interests of judicial
merits, we neither
dismiss this "
appeal"
nor
compel Rozenfeld to appeal the final default judgment. See RAP 1. 2( a) and (c).
4 This FHA loan contingency provided, in pertinent part:
This Agreement is contingent on Buyer obtaining the following loan or loans to
FHA....
the Property: ...
If not waived, the Financing Contingency
shall survive the Closing Date.
Clerk' s Papers ( CP) at 114. An " FHA loan" is a mortgage loan provided by federally qualified
lenders and insured by the Federal Housing Administration. The lenders here were Sterling
purchase
Savings Bank and Cobalt Mortgage.
J
i
No. 42830- 0- 11
Clerk' s Papers ( CP)
at
114, 115.
This Financing Addendum also required Rozenfeld to obtain
the Karpmans' written consent before changing lenders.
Before entering into the Agreement, Rozenfeld had provided the Karpmans with a letter
from FHA- insured Sterling Savings Bank pre -approving him for a loan, subject to several
conditions,
including
verification .of
Agreement, Rozenfeld
applied
to
Rozenfeld' s income
Sterling for
an
and
FHA loan.
assets.
After entering into the
Before Sterling formally resolved
his application, however, and without first seeking the Karpmans' written consent; Rozenfeld
withdrew
his loan
application
from Sterling
and applied to Cobalt Mortgage
for
a
loan. Cobalt
denied his loan application for insufficient stable income and irregular employment.
Rozenfeld failed to meet the April .29 deadline for purchasing the Karpmans' home.
Under the terms of the Financing Addendum, Rozenfeld' s changing lenders without the
Karpmans' written consent waived the financing contingency, obligating him to purchase the
property regardless of whether he had been able to obtain an FHA loan.
H. PROCEDURE
A. -Service of Summons and Complaint
Two months later, on June 30, the Karpmans sued Rozenfeld for breach of contract. The
Karpmans were unsuccessful in attempting to serve Rozenfeld in person at his Sylmar, California
address which he had used on the Agreement, on his home loan bank applications, and in other
5, The Financing Addendum further qualified the FHA loan contingency with the following
pertinent provision:
If Buyer .... (
the
agreed
iii) changes the lender without Seller' s prior written consent after
upon
time
to
apply
for
financing
Contingency shall be deemed waived.
CP at 114.
9
expires,
then the Financing
No. 42830- 0- 11
matters
as
address;
late
The Karpmans then mailed a letter to .Rozenfeld at his Sylmar
June 2011.
as
but it was returned as undeliverable with expired forwarding, which showed a
Longbranch, Washington
who found four
address
for Rozenfeld. 6
addresses
possible
The Karpmans hired a private investigator,
for Rozenfeld in the Los Angeles
area.
The Karpmans
attempted to serve Rozenfeld at each one of these addresses, but none proved successful.
The Karpmans then hired process server Darrin Sanford to serve their summons and
complaint on
Rozenfeld
Rozenfeld
might
at
the
be trying to
expired
forwarding
avoid service.
Longbranch
address.
Sanford understood that
On August 2, Sanford approached the Longbranch
house; through a window he saw a man fitting Rozenfeld' s description. When Olga Almanskaya
came out onto the front porch, Sanford asked for Rozenfeld, stating that he had legal documents
for him. Almanskaya told Sanford that Rozenfeld was not home. Sanford gave Almanskaya the
summons and complaint,
145.
but
she
to
tried -
refuse
them, saying, " He is
not
my husband."
CP at
She followed Sanford down the driveway, repeating that she could not accept the papers.
She tried to leave them on the hood of Sanford' s car, but he told her he was leaving the papers
with her and that she had been served.
The
next
day,
the
Karpmans'
counsel mailed a certified letter to Rozenfeld at the
Longbranch address, informing him that he had been served by the summons and complaint that
Sanford had left with Almanskaya the day before. Rozenfeld signed the certified mail receipt for
the letter on August 4.
6 The Karpmans also hired William Peck to inspect Rozenfeld' s Sylmar residence on June 2, at
which
been
time Peck
abandoned."
noted
that "[
t]here was no furniture inside the house and it appeared to have
CP at 61.
0
No. 42830 -0 -II
B. Subpoenas
On July 12, the Karpmans issued subpoenas duces tecum to Sterling Savings, Cobalt
Mortgage,
Prudential
Northwest
Real
Estate,
and
Mason Title
Insurance-
Company,
all
companies involved in the purchase and sale transaction, for information about Rozenfeld' s
failure to
7
obtain
a
loan .
A Cobalt Mortgage representative called . Rozenfeld about the
subpoenas and the lawsuit.8 The banks produced the requested documents, which were filed
with the court.
C. Default
Rozenfeld did not file an answer or otherwise respond to the Karpmans' summons and
complaint. On August 23, the superior court entered an order of default against Rozenfeld. Two
days later, Rozenfeld' s counsel contacted the Karpmans and asked them to stipulate to an order
vacating the default; the Karpmans declined. On September 15, Rozenfeld moved to vacate the
order of default. In support of his motion,9 he submitted Ahnanskaya' s declaration that ( 1) she
had
received " correspondence"
for Rozenfeld delivered to the Longbranch
address; (
2) she had
placed the " correspondence" in her " incoming mail" box and had neither given it to Rozenfeld
7
None
of these subpoenas were mailed
to
or served on
Rozenfeld.
Two of the subpoenaed
banks, Cobalt Mortgage and Sterling Savings Bank, responded to the subpoena and released
Rozenfeld' s loan application documents to the Karpmans.
8 Despite Rozenfeld' s request not to provide the documents, Cobalt released them, although it is
not clear from the record when Cobalt contacted Rozenfeld or when it released the documents.
9 Rozenfeld also argued that his " meritorious defense" to the action entitled him to have the
default set aside. Br. of Appellant at 18. This defense appears to be that, although he was unable
to meet the financing contingency of the Agreement, his loan- seeking efforts were made in good
faith and therefore he did not default on the agreement.
5
No. 42830- 0- 11
nor told him about it; and ( 3) she did not give the documents to Rozenfeld until after he had
received
the August 24 letter from Karpmans'
counsel.
CP
at
219, 220.
Almanskaya' s
declaration did not mention her August 2 encounter and discussion with Sanford or that Sanford
had personally delivered the summons and complaint to her at the Longbranch address.
Rozenfeld also advised the Karpmans that he believed that the subpoenas to the banks
had been improperly issued and that he would move to strike any declarations that relied on
information obtained from the
subpoenaed
documents.
When the Karpmans relied on some
information obtained from the subpoenas in responding to Rozenfeld' s motion to vacate,
Rozenfeld moved to quash the subpoenas ''and for sanctions against the Karpmans .on .September
28.
The superior court denied Rozenfeld' s motion to vacate, ruling that Rozenfeld had not
shown excusable neglect for failing to respond to the summons and complaint and, thus, did not
meet
the
standard
for setting
aside a
default
order under
CR 55.
The superior court also denied
Rozenfeld' s motion to quash the subpoenas because Rozenfeld had failed to show prejudice from
any irregularity in the service of the .subpoenas on the banks, and because the subpoenaed
documents were already in the court's file.10 Instead, the superior court invited the parties to
consider entering into an agreed order to redact any personal identifiers in the documents under
GR 15. 11
to The superior court also ruled that any failure to have served Rozenfeld with the supoenas was
harmless.
11 The record does not show that the parties ever reached such an agreement.
rel
No. 42830 -0 -II
The superior court subsequently issued written orders denying the motion to quash and
the
motion
to
set aside
the default. Rozenfeld
these orders.
appeals
12
ANALYSIS
I. MOTION TO SET ASIDE ORDER of DEFAULT
Rozenfeld argues that, under CR 55, the trial court had. "good cause" to. set aside the
order
of
learning
default ( 1) because he
about
meritorious
the
13; (
presented sufficient evidence of " excusable neglect!
Karpmans'
lawsuit, he had
defenses to the Karpmans'
acted
Br.
claims.
of
with
due diligence;
Appellant
at
8.
and (
3)
2) on
he had
Because the record
supports the superior court' s finding that Rozenfeld failed to show good cause for his delayed
response to the Karpmans' lawsuit, we do not reach his argument about meritorious defenses.
A. Standard ofReview
Washington
courts
generally disfavor
Universal Ins. Co. of Kansas
Wash. Ct.
App. Aug.
P. 2d 1289 ( 1979)).
such
terms
as
the
v.
19, 2013) (
default
orders
and
judgments.
See Trinity
9 I,
Ohio Cas. Ins. Co., No. 67832 - - 2013 WL 4562718,
at *
3
citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599
A superior court may vacate an order of default for good cause or " upon
court
5
deems just." CR . 5( c)( 1);
Seek Sys., Inc. v. Lincoln Moving / lobal Van
G
12 One month after Rozenfeld filed his November 16, 2011 appeal from these orders, on
December 13, the superior court entered final judgment against Rozenfeld, awarding damages
and
attorney fees to the Karpmans for Rozenfeld'
s
violation
of
the Agreement.
Our court
records do not show that Rozenfeld appealed this default judgment.
13 Rozenfeld argues that the superior court should have vacated the order of default under either
CR 55( c),
motions
to
which governs motions
vacate a
to
default judgment.
vacate
an order of
default,
or
CR 60( b),
which governs
The issue, here, however, is whether the superior court
improperly denied Rozenfeld' s motion to vacate the order of default before it was reduced to
judgment. Therefore,
we
apply the CR 55( c)( 1) "
good cause" test.
7
No. 42830 -0 -II
Lines, Inc., 63 Wn.
App.
266, 271, 818 P. 2d 618 ( 1991).
In determining whether the parry
seeking to set aside an order of default has shown good cause under CR 55( c), the superior court
may
consider excusable neglect and
due diligence as factors.
Seek Sys., Inc.,
63 Wn. App. at
271.
Courts determine
App.
excusable
neglect
sub nom.,
Morin
basis.
Gutz v. Johnson, 128 Wn.
citing Norton v. Brown, 99 Wn. App. 118, 123, 992
901, 918 -19, 117 P. 3d 390 ( 2005) (
P. 2d 1019 ( 1999)), aff d
case
by -
on a case -
v.
Burris, 160 Wn.2d 745, 161 P. 3d 956 ( 2007). The
superior court has broad discretion in ruling on whether the facts demonstrate excusable neglect;
in so doing, it may make credibility determinations and weigh facts in order to resolve the
issue.
14
See Johnson v. Cash Store, 116 Wn. App. 833, 847 -49, 68 P.3d 1099 ( upholding
superior court' s ruling that neglect was inexcusable based on credibility determinations and
weight of evidence).
The decision to set aside an order of default is generally within the
discretion of the trial court, subject to the good cause requirement of CR 55( c).
Where the decision or order of the trial court is a matter of discretion, it will not
be disturbed on review except on a clear showing of abuse of discretion, that is,
discretion manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons."
Canam Hambro Sys., Inc.
v.
Horbach, 33 Wn.
App.
452, 453 -54, 655 P. 2d 1182 ( 1982) ( quoting
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)).
14
We do
not review
the
superior court' s
Wn.2d 572, 574, 70 P. 3d 125 ( 2003) (
1990)).
credibility determinations.
Morse v. Antonellis, 149
citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
No. 42830 -0 -1I
B. Failure to Show Excusable Neglect /Good Cause
Here, the superior court reviewed declarations submitted by the parties detailing the
manner of service of the Karpmans' summons and complaint on Rozenfeld and Rozenfeld' s and
Almanskaya' s
responses
to this
service.
Process server Darrin Sanford declared that, when he
served Almanskaya at Rozenfeld' s Longbranch, WA residence on August 2, 2011, he had
informed her that
she was
being
served with
legal
papers
for Rozenfeld.
The next day, on
August 3, the Karpmans' counsel sent a certified letter to Rozenfeld at the same Longbranch
address, telling him that Almanskaya had been served with a summons and complaint against
him.
The
certified
letter bore
which
a return receipt,_
the recipient to sign for it; the
return receipt bore the printed name " Oleg Rozenfeld" as having accepted delivery of this letter
on August 4. CP at 15 8.
Rozenfeld does not contest that Almanskaya was properly served on his behalf two days
earlier on August 2. Yet he waited more than 20 days15 after service before contacting coun.sel.16
Rozenfeld explained this delay by claiming that Almanskaya had not given him the summons
and complaint before the court entered the default order. He did not, however, argue that he had '
never signed for or received the certified letter on August 4.
Rozenfeld correctly argues that excusable neglect and due diligence are not the only ways
to
show " good cause."
Br.
of
Appellant at 15.
But he mistakenly contends that the superior
is CR 12( a)( 1) requires a defendant to serve his answer within 20 days of service of the summons
and complaint.
16 Rozenfeld declared that he had contacted legal counsel after receiving the summons and
complaint
counsel
from Almanskaya, he had
filed
a
Notice
of
Appearance
contacted
on
legal
September 6.
counsel on
August 24, 2011.
Rozenfeld' s
No. 42830 -0 -11
court concluded that " excusable neglect is an indispensable element of `good cause' under CR
55" in setting aside an order of default. Br. of Appellant at 15. Instead, the superior court noted
that a " default judgment" should not be vacated unless " it can be shown that there is a good
cause,
including
excusable neglect,
to
set
it
aside" under
CR 60( b). VRP at 12 ( emphasis added).
Again, failure to show excusable neglect is a factor in a trial court' s finding of failure to show
good cause
Rozenfeld'
not
for
not
timely responding
s argument misses a
credible
his
Alrnanskaya' s.
sole
We defer to the
different
evidence
she
claim that_
to
a
lawsuit.
key
of " good
had failed_
to
superior court on matters
Seek Sys., Inc., 63 Wn.
factor here —that
cause"
give
of witness
at
271.
But
the superior court implicitly found
and " excusable
him the
App.
neglect,"
namely, his and
summons and complaint.
credibility.
Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 ( 1980) ( citing Beeson
VRP at .12.
Davis v. Dep' t of Labor &
v.
Atlantic Richfield Co., 88
Wn.2d 499, 563 P. 2d 822 ( 1977)); Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P. 3d 125 ( 2003)
citing State
v.
Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 ( 1990)).
Thus, Rozenfeld was left
with no credible excuse for his delay in responding to the summons and complaint.
C. " Meritorious Defense"
Because. it found that there was no good cause to set aside the default, the superior court
did not reach the question of whether Rozenfeld might have asserted a meritorious defense had
he timely answered the summons and complaint. Nevertheless, Rozenfeld argues on appeal that
1) "
excusable neglect is not required to set aside an order of default under the less stringent
standards of CR 55 where the defendant presents a meritorious defense before the entry of a
default judgment"; and ( 2) he had a meritorious defense to the Karpmans' suit. Br. of Appellant
at 16. This argument also fails.
10
No. 42830 -0 -II
Rozenfeld cites Canam Hambro Systems in support of his argument that his meritorious
defense constitutes good cause for vacating the order of default. He is correct that this was the
result
in Canam.
But, unlike here, the superior court in Canam had examined and rejected the
defendant' s meritorious defense in a summary fashion, ignoring material questions of fact, in
denying
the
motion
to
set aside
the
order of
default. 33 Wn.
App.
at
454 -55.
This substantive
ruling on the merits of the defense was the sole basis for the denying the motion; the superior
court never addressed excusable neglect for defendant Horbach' s delay in responding to the
and complaint.
summons
Canam, 33 Wn.
App.
at
454.
And, in - eversing the superior court,
r
Division One of our court held that its ruling on the legal and factual merits of Horbach' s
defense
was " untenable."
17 Canam, 33 Wn. App. at 456.
The Canam court did not hold that the superior court must examine potential meritorious
defenses
as possible good cause
for vacating
an order of
default
under
CR 55( c).
Rather, it held
that an asserted defense to an .action can be good cause to set aside an order of default but that
the superior court in that instance had erred in considering the asserted defense and reaching an
untenable
conclusion
on its -merits.
Canam, 33 Wn.
App.
at
455 -56.-
In so doing, however,
Division One did not retreat from the primary requirement for vacating an order of default under
CR 55( c), namely the showing of good cause, including its excusable neglect component:
17 More specifically, the appellate court ruled:
While excusable neglect and a meritorious defense are not necessarily
required to set aside an order of default as opposed to a default judgment,
assertion of
the two
provides
the
good cause required
by
CR 55( c). The reasons
given by the trial court for refusing to set aside the default are, as discussed
above, untenable.
Canam, 33 Wn. App. at 456 ( emphasis added).
11
No. 42830 -0 -11
CR 55( c)
court
provides: "
deems just, the
court
For good cause shown and upon such terms as the
In contrast with
set aside an entry of default ...."
may
which requires that a defendant seeking to vacate a default judgment
CR 60( e),
show a meritorious defense to the action, a party seeking to set aside an order of
default under CR 55(c) prior to the entry of the judgment need only show good
cause.
See Johnston
v.
Medina Improvement Club, Inc., 10 Wn.2d 44, 116 P.2d
272 ( 1941) ( antedates Civil Rules).
Canam, 33 Wn.
App.
at
453 (
alteration
in
original) ( second emphasis added).
The Canam court
noted that in support of his motion to set aside the order of default, defendant Horbach had
submitted an affidavit asserting both excusable neglect and a meritorious defense; yet the trial
court
had focused
on
only the
merits of
the defense,
which
it had wrongly decided. Canam, 33
Wn. App. at 453, 455, _
Here, in
component
contrast, at
for setting
the
outset
the
aside ,an order of
superior court addressed
default
under
the required " good cause"
CR 55( c); and it ruled that Rozenfeld' s
failure to show excusable neglect in his delayed response to the Karpmans' summons and
complaint was sufficient reason
to
deny
his
motion.
VRP
at
12.
Thus, the superior court here
did not need to address Rozenfeld' s potential meritorious defenses, as the superior court had
erroneously determined in Canam. Despite reversing the superior court' s untenable conclusion
in Canam, the appellate court nevertheless recognized:
The decision to set aside an order of default is generally within the
discretion of the trial court, subject to the good cause requirement of CR 55( c).
Where the decision or order of the trial court is a matter of discretion, it will not
be disturbed on review except on a clear showing of abuse of discretion, that is,
discretion manifestly unreasonable, or exercised on untenable grounds, or for
untenable
reasons."
State ex rel. Carroll v. Junker, 79 Wn. 2d 12, 26, 482 P. 2d
775 ( 1971).
Canam, 33 Wn. App. at 453 -54.
12
j
No. 42830 -0 -II
In accordance with Canam, we reiterate that the issue before us is whether the superior
1
court abused its discretion in setting aside an order of default, not a default judgment. We hold
that the superior court did not abuse its considerable discretion in denying Rozenfeld' s motion to
set aside the order of default.
II. MOOT MOTIONS
A. Motion To Quash
Rozenfeld next argues that the superior court erred in denying his motion to quash the
Karpmans'
subpoenas
duces tecum
served
on the banks to
which
he had
applied
for loans. He
contends that, at the time these subpoenas were issued, the superior court lacked jurisdiction over
him. He also complains that the Karpmans never mailed him or otherwise served him with these
bank subpoenas. Because we affirm the superior court' s denial of Rozenfeld' s motion to vacate.
the order of default, the judgment of default against him stands, his motion to quash these
subpoenas was moot,18 and we do not further consider this issue. 19
18
a
CR 55( a)( 2)
precludes' a
without
pleading -
defaulted party from responding to
leave of
court.
or " otherwise.
defending] "-against
Because Rozenfeld defaulted and the superior court left the
order of default intact, he no longer has a live case or controversy. See Price v. Price, 174 Wn.
App. 894, 902, 301 P. 3d 486 ( 2013) ( citing Pentagram Corp. v. Seattle, 28 Wn. App. 219; 223,
622 P. 2d 892 ( 1981)) ( the Court
of
Appeals " consider[ s] a case moot if there is no longer a
controversy between the parties, if the question is merely academic, or if a substantial question
no
longer
exists." (
internal citations omitted)).
19 Even if there had been some sort of defect in the subpoenas' service, once the subpoenaed
documents became part of the court record, the superior court could have protected Rozenfeld' s
privacy by ( 1) following the superior court' s suggestion to meet with the Karpmans to agree on
protective redactions; or ( 2)
asking the
superior court
to
seal
the documents
under
GR 15.
The
record does not show that Rozenfeld pursued either alternative; thus, he failed to preserve a
potential GR 15 issue for appeal. RAP 2. 5( a).
13
No. 42830 -0 -II
B. Motion for Sanctions
Rozenfeld also argues that the superior court erred in failing to impose sanctions against
the Karpmans for
failing
to
serve
him
with
the third party
subpoenas
duces tecum.
Because
Rozenfeld' s motion to quash the subpoenas was moot once the superior court defaulted him, his
request
for
sanctions was also. moot
20 We hold, therefore, that the superior court did not abuse
its discretion in denying Rozenfeld' s request for sanctions under CR 45 after it denied his motion .
to quash the bank subpoenas.
III. ATTORNEY FEEs
The Karpmans . request attorney fees . under RAP 18. 1 and the underlying real estate
contract
provision
for awarding " attorney fees
and
expenses"
to the prevailing party in
20 Even were we to address the merits of Rozenfeld' s motion for sanctions, we would find no
abuse of discretion in-the superior court' s refusal to impose such discovery sanctions. See Lodis
s,
v. Corbis Holding' Inc., 172 Wn. App. 835, 854, 292 P. 3d 779 ( 2013) ( citing Howell v. Spokane
Inland Empire Blood Bank, 117 Wn. 2d 619, 629, 818 P. 2d 1056 ( 1991) and Wash. State
Physicians Ins. Exch. & Ass' n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P. 2d 1054 ( 1993)).
Contrary
to Rozenfeld'
imposition
s
argument,
of sanctions under
the
1)
does not compel
here because CR 45( c)( 1)
clearly refers to
the mandatory language
circumstances
in CR 45(
c)(
for imposing undue burden or expense on the " person subject to that subpoena," which
here were the banks, not Rozenfeld. CR 45( c)( 1) ( emphasis added). See also Wash. State
sanctions
Physicians Ins. Exch. & Ass' n, 122 Wn.2d at 338. Furthermore, the record contains no evidence
that the subpoenaed banks either were subject to undue burden or expense or sought CR 45( c)( 1)
sanctions below.
14
i
No. 42830 -0 -II
I
liti IIation.21
CP at 112. Because the Karpmans are the prevailing party, we award them costs and
attorney fees on appeal.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with' RCW
2. 06.040, it is so ordered.
Hunt, J..
Maxa, J.
zi
Rozenfeld
also
requests
fees based
on
this
contractual -language.
prevailing parry, he is not entitled to attorney fees under this provision.
15
Because he is not the
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