Erickson v. Power

• Court: Washington Court of Appeals
• Writing for the Court: VERELLEN, J.
• Decision Date: 25 April 2022
• Docket Number: 82755-3-I
• Citation: Erickson v. Power, 82755-3-I (Wash. App. Apr 25, 2022)
• Parties: JOHN EARL ERICKSON and SHELLEY ANN ERICKSON, Appellants, v. VANESSA POWER, STOEL & RIVES, SELECT PORTFOLIO SERVICING, JOHN GLOWNEY, WILL EIDSON, THOMAS REARDON, LANCE OLSEN HOLTHUS & MCCARTHY, Respondents.

JOHN EARL ERICKSON and SHELLEY ANN ERICKSON, Appellants, v. VANESSA POWER, STOEL & RIVES, SELECT PORTFOLIO SERVICING, JOHN GLOWNEY, WILL EIDSON, THOMAS REARDON, LANCE OLSEN HOLTHUS & MCCARTHY, Respondents.

No. 82755-3-I

Court of Appeals of Washington, Division 1

April 25, 2022

UNPUBLISHED OPINION

VERELLEN, J.

This is the third appeal before this court regarding John and Shelley Erickson's 2009 default on their mortgage. The trial court granted summary judgment against the Ericksons concluding collateral estoppel barred relitigation of their claims. Because the unrebutted evidence established that the Ericksons are attempting to relitigate the same issues previously resolved in several final prior adjudications, the trial court did not err by granting summary judgment.

The Ericksons argue the trial court erred by denying their CR 56(f) motion to continue the summary judgment hearing. Because the Ericksons failed to establish good cause existed to delay the hearing, the trial court did not abuse its discretion.

For the first time on appeal, the respondents request that we find the Ericksons to be vexatious litigants. Because this presents a fact-specific question affecting the Ericksons' ability to file claims in trial court, such a request should be pursued in trial court.

Therefore we affirm.

FACTS

The Ericksons purchased a house in 2006 with a loan secured by a deed of trust from Long Beach Mortgage Company, which was part of Washington Mutual.^[1] Long Beach soon sold the loan into a trust, and Deutsche Bank National Trust Company was the trustee.^[2] When Washington Mutual failed, its assets were purchased by JP Morgan Chase.^[3]

The Ericksons defaulted in 2009.^[4] They brought a lawsuit against Deutsche Bank in August of 2010 (Erickson I).^[5] The suit was removed to federal court.^[6] The Ericksons sought an injunction against foreclosure, arguing the bank lacked standing to enforce the note because it was not the original creditor and could not produce the original note.^[7] The court granted summary judgment in favor of Deutsche Bank, concluding it held the note.^[8]

In 2013, J.P. Morgan Chase assigned its interest in the Erickson's loan to Deutsche Bank, and Deutsche Bank filed suit in King County Superior Court to foreclose on the note (Erickson II).^[9] Deutsche Bank moved for summary judgment, arguing that it was entitled to foreclosure because it held the note.^[10] In 2015, the trial court granted summary judgment in favor of Deutsche Bank.^[11] This court affirmed concluding both that collateral estoppel prevented the Ericksons from relitigating whether Deutsche Bank held the note and that, regardless, as a matter of law, Deutsche Bank held the note.^[12]

In 2019, the Ericksons filed a CR 60 motion in superior court to vacate the 2015 superior court judgment (Erickson III).^[13] The trial court granted summary judgment for Deutsche Bank, dismissing the Erickson's claims.^[14] This court affirmed, ^[15] concluding collateral estoppel barred the Ericksons from "present[ing] identical issues as they did in a federal proceeding in 2010, and again in a superior court action in 2014."^[16]

The law firm Stoel Rives, LLP, and several of its attorneys represented Deutsche Bank in both Erickson II and Erickson III. In May of 2020, the Ericksons filed a 190-page complaint and accompanying appendix of over 1, 500 pages in superior court against Stoel Rives and the attorneys who worked on those past cases.^[17] The Ericksons alleged "OUR ENTIRE RESIDENCE IS BEING SEIZED, AND TRESPASSED BY FRAUDS WITH A WRONGFUL FORECLOSURE AND SALE AT AUCTION BY FRAUDS WITH NO PERMISSION TO REPRESENT ANOTHER FRAUD WHOM NEVER HELD OUR NOTE."^[18]

Stoel Rives moved for summary judgment, arguing collateral estoppel barred the Ericksons from relitigating whether Deutsche Bank held the note securing their loan. The Ericksons filed a CR 56(f) motion to continue, arguing more time was required to depose Jess Almanza, a former Washington Mutual employee whose signature appears on the back of the note, indorsing it in his capacity as a vice president of Long Beach. The trial court denied the CR 56(f) motion and granted summary judgment for Stoel Rives.

The Ericksons appeal.

ANALYSIS

I. CR 56(f) Motion to Continue

The Ericksons contend the trial court relied upon inadmissible evidence to deny their motion to continue.^[19] We review denial of a CR 56(f) motion for abuse of discretion.^[20] A court abuses its discretion when it acts based on untenable evidentiary grounds or on untenable legal reasons.^[21]

Under CR 56(f), a court can grant a continuance to provide a party opposing summary judgment more time to conduct discovery.^[22] The court can deny the motion when "(1) the requesting party fails to offer a good reason for the delay, (2) the requesting party does not state what evidence is desired, or (3) the desired evidence will not raise a genuine issue of material fact."^[23]

In Coggle v. Snow, this court held a trial court abused its discretion by denying a CR 56(f) motion.^[24] A patient sued his doctor for malpractice, alleging a particular mixture of drugs caused a respiratory problem.^[25] The doctor filed for summary judgment and included an affidavit from a respiratory physician who declared that the doctor was not negligent for administering the drugs.^[26] Less than one week later, the patient's counsel filed a CR 56(f) motion for a 15-day continuance.^[27] The patient's counsel explained a continuance was necessary because, first, the patient's original counsel was retiring and he had replaced him days earlier, and, second, he had just met the patient's new physician and needed more time to file a declaration rebutting the respiratory physician's affidavit.^[28] The trial court denied the motion and granted summary judgment for the doctor.^[29] This court reversed, explaining good cause existed under CR 56(f) for the continuance because the patient's first counsel was "dilatory" in conducting discovery, the patient's new counsel associated after the summary judgment motion was filed, and the new counsel needed more time to gather the evidence necessary to rebut the respiratory physician's affidavit.^[30]

In Bavand v. OneWest Bank, by contrast, this court affirmed the trial court's denial of a CR 56(f) motion.^[31] A borrower fell behind on her payments, and her bank sent a notice of default.^[32] The borrower filed a complaint against her bank in superior court, alleging federal claims and a state claim.^[33] The case was removed to federal court, and it dismissed all of the federal claims on summary judgment.^[34]The state claim was remanded to the superior court, and the bank moved for summary judgment.^[35] The borrower requested a continuance under CR 56(f).^[36]The superior court denied the CR 56(f) motion and granted summary judgment.^[37]This court affirmed. It explained the borrower failed to explain why good cause existed for a continuance requested almost four years after first filing her complaint and more than two years after the federal court granted summary judgment.^[38] And the borrower failed to explain why she had been unable to discover the evidence identified in her motion.^[39]

Here, the trial court denied the Erickson's CR 56(f) motion because, among other reasons, they "did not exercise diligence in seeking any such discovery."^[40]On January 19, 2021, the Ericksons requested a continuance of the summary judgment hearing scheduled for January 29^[41] in order to depose former Washington Mutual employee Almanza.^[42] But their motion fails to explain why they could not have located and deposed him earlier. In their opposition to summary judgment, the Ericksons admitted they first learned of Almanza and his potential significance to their legal theory during their 2015 case against Deutsche Bank.^[43] In another opposition to summary judgment, the Ericksons explained they "discovered that Jess Almanza was never employed by and was never 'Vice President' of Long Beach Mortgage Company" in August of 2018 when they found his LinkedIn profile.^[44] And in a November 31, 2020 filing from the instant case, the Ericksons listed Almanza as a potential witness, explaining he was "expected to testify that he was never a Vice President of or even an employee of Long Beach Mortgage Company."^[45] Despite learning his significance in 2015, finding him on LinkedIn in 2018, and concluding by November 2020 that he could be a witness, the Ericksons did not serve Almanza with a deposition subpoena until February 5, 2021.^[46]

Unlike the patient in Coggle and like the borrower in Bavand, the Ericksons knew of Almanza's potential significance and of his potential testimony years before requesting a continuance. Like Bavand, their motion failed to explain what prevented them from deposing Almanza or, at least, obtaining a declaration from him between August of 2018 and January of 2021. Indeed, Almanza provided a declaration only a few weeks after being served.^[47] Contrary to the Erickson's belief, ^[48] CR 56(f) requires more than belated diligence. The party requesting a continuance must offer a good reason for the delay in discovering their desired evidence.^[49] Because the Ericksons did not do so, they fail to show the trial court abused its discretion by denying the CR 56(f) motion.^[50]

II. Summary Judgment

The trial court granted summary judgment for Stoel Rives and dismissed the Ericksons claims with prejudice because "the issues raised in the Complaint are barred by collateral estoppel."^[51]

We review a grant of summary judgment de novo.^[52] Summary judgment is proper when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."^[53] "'A genuine issue...