Munoz v. Bean

Decision Date07 March 2016
Docket Number72794-0-I
PartiesIDALIE MUNOZ MUNOZ, Appellant, v. MATTHEW J. BEAN, Respondent.
CourtWashington Court of Appeals


Dwyer J.

Idalie Munoz Munoz, acting pro se, instituted this legal malpractice action against her former attorney Matthew Bean arising out of Bean's work on an employment discrimination lawsuit brought by Munoz against the federal government. After Munoz failed to respond to Bean's motion for summary judgment Munoz belatedly filed a motion for a continuance stating that she could not respond to the motion due to an illness. When Munoz failed to attend the summary judgment hearing, the trial court denied her motion for a continuance and granted summary judgment in Bean's favor. Munoz appeals the trial court's orders denying her motion for a continuance granting summary judgment in favor of Bean as to all of her claims, and denying her motions for reconsideration. Finding no error, we affirm.


Munoz was hired as a media specialist with the United States Census Bureau under a two-year contract on February 4, 2008. She was terminated on February 2, 2009, less than one year later. Asserting that the basis of her termination was discriminatory, Mufioz hired attorney Patricia Rose and sued the United States Department of Commerce (DOC) in the United States District Court for the Western District of Washington. Mufioz later fired Rose and, acting pro se, filed an amended complaint. She subsequently retained Bean as counsel in December 2010.

During the course of Bean's representation, he began to believe that some of the claims pleaded in Munoz's amended complaint were without merit. After extensive conversations Munoz and Bean disagreed as to which claims were meritorious and which should be dismissed. Bean advised Munoz to seek a second opinion regarding the merit of her claims. Munoz did not do so. Ultimately, Bean informed Munoz that if he, as her attorney, believed certain claims to be frivolous, Federal Rule of Civil Procedure 11 prohibited him from asserting them. Bean further advised Munoz that if she insisted on bringing claims that Bean believed to be frivolous, he would be required to withdraw as her attorney. When Mufioz continued to insist that Bean prosecute all of the claims set forth in her amended complaint, Bean filed a motion to withdraw as Munoz's attorney.[1] On May 10, 2011, the district court authorized Bean's withdrawal.

During the five months that Bean represented Mufioz, no discovery was conducted, no pleadings were amended, no deadlines had passed, and none of Munoz's claims were dismissed. After Bean withdrew, Munoz prosecuted her lawsuit against the DOC pro se. On March 21, 2012, more than 10 months after Bean's withdrawal, the DOC filed a motion to dismiss and/or for summary judgment. In response, Mufioz filed a second amended complaint. The district court denied the DOC's motion. The parties engaged in additional discovery, after which the DOC again moved to dismiss and/or for summary judgment. This motion was granted, in part. On February 19, 2013, the DOC moved for summary judgment dismissal of Munoz's remaining claims. The district court granted summary judgment in the DOC's favor, dismissing Munoz's suit with prejudice. On December 15, 2015, the Ninth Circuit Court of Appeals affirmed. Munoz v Locke, 2015 WL 8732518 (9th Cir. Dec. 15, 2015).

On March 3, 2014, Mufioz filed this legal malpractice action against Bean in King County Superior Court. Her complaint also included claims for misrepresentation, breach of contract, intentional and negligent infliction of emotional distress, breach of fiduciary duties, and violation of the Washington Consumer Protection Act (CPA).[2] Attorney Joel E. Wright from the law firm of Lee Smart, P.S., Inc. (Lee Smart) filed a notice of appearance on Bean's behalf. Munoz proceeded pro se.

The parties then engaged in discovery, exchanging several sets of interrogatories and requests for production. After determining that Munoz did not meaningful respond to the discovery requests, Bean's counsel sent a letter notifying Munoz of the deficient responses and setting a CR 26(i) conference. When Mufioz refused to participate in the conference via telephone, instead insisting that the conference take place at a library in Federal Way, Bean's counsel objected and cancelled the discovery conference. Bean's counsel advised Munoz that he did not intend to engage in further discovery but, rather, planned to file a motion for summary judgment as to all of her claims.

Throughout the discovery process, Munoz served 10 sets of discovery requests on Bean. Bean initially informed Munoz that the responsive documents would be prepared electronically and sent to her on a compact disc. However, upon learning that Munoz's discovery requests required the responsive documents to be made available to Munoz at Bean's attorney's office for inspection, no such disc was sent. Consistent with these instructions, Bean's counsel made the responsive documents available at Lee Smart's office for Munoz's inspection. Ultimately, Munoz never inspected the documents.

On September 26, 2014, Bean moved for summary judgment, challenging the sufficiency of the evidence supporting Munoz's claims. The summary judgment motion was noted for hearing on October 24. Munoz's reply was due on October 13. See CR 56(c). However, Munoz did not file a reply by the October 13 deadline. Rather, on October 20, four days before the summary judgment hearing, she filed a request for an extension of time to respond to Bean's motion.[3] In her request, Munoz claimed that she had been unable to timely respond to Bean's motion for summary judgment due to her suffering from an illness that required medical attention. Bean filed a reply pleading noting that Munoz had failed to file a pleading in response to his motion for summary judgment and notifying Mufioz of Bean's intent to present his proposed order for entry at the October 24 summary judgment hearing.

On October 21, Mufioz filed a response to Bean's reply in support of his motion for summary judgment. In this pleading, she requested that the trial court grant her motion for a continuance. The next day, Bean responded to Munoz's motion for a continuance, opposing the motion on the basis that Mufioz had not complied with the requirements of CR 56(f) or CR 6 and that no substantive basis for a continuance existed.

The trial court heard Bean's motion for summary judgment as scheduled. Christopher Winstanley, a member of the Washington State Bar Association and an associate attorney at Lee Smart, appeared on behalf of Bean. Munoz was not present. The trial court waited approximately 20 minutes for Munoz to appear before commencing the proceeding. Munoz never arrived. The trial court then granted Munoz's motion to shorten time, denied Munoz's motion for a continuance, and granted Bean's motion for summary judgment.

On October 29, Munoz filed motions for reconsideration of both the trial court's order denying Munoz's continuance request and its order granting summary judgment. Munoz filed medical documentation accompanying both motions. With regard to reconsideration of her request for a continuance, Munoz filed a doctor's note dated September 24, 2014 excusing her from work for 1-2 days, a doctor's note releasing her to full duty work effective September 29, and attendant chart notes. With regard to reconsideration of the trial court's order granting summary judgment, Munoz attached a doctor's note dated October 24, 2014 excusing her from work and releasing her to full duty effective October 27, the following Monday. Additionally, Munoz submitted a document purporting to be an "un-finished response" to Bean's motion for summary judgment. The trial court denied Munoz's motions for reconsideration without oral argument.

After the trial court disposed of Munoz's claims, Bean moved for an award of attorney fees and costs pursuant to RCW 4.84.185[4] and CR 11.[5] The trial court denied Bean's request, explaining that, "[although plaintiff's lawsuit lacked merit, it did not rise to the level of being a frivolous lawsuit." Munoz now appeals.


Munoz first contends that the trial court erred by denying her motion for a continuance. This is so, she asserts, because the statements contained in her motion, that she was too ill to timely file a responsive pleading to Bean's summary judgment motion, provide a sufficient ground for a continuance. We disagree.

In her motion for a continuance, Munoz does not identify which procedural rule provides a basis for a continuance. Thus, we will analyze her request for a continuance under both CR 56(f) and CR 6(b).


"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)); see also Turner v. Kohler, 54 Wn.App. 688, 693, 775 P.2d 474 (1989) (reviewing CR 56 motion for continuance for abuse of discretion); Davies v. Holy Family Hosp., 144 Wn.App. 483, 500, 183 P.3d 283 (2008) (reviewing CR 6 motion for continuance for abuse of discretion). "Abuse of discretion is not shown unless the discretion has been exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable." Friedlander v. Friedlander, 80 Wn.2d 293, 298, 494 P.2d 208 (1972).

CR 56(f) governs motions for a continuance of summary judgment. It provides,

Should it appear from the affidavits of a party opposing the motion that, for reasons stated, the party cannot present by affidavit facts essential to justify the party's opposition, the court may refuse the

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