IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LAURIANE NARIN, DIVISION ONE Appellant, No. 78923-6-I V. UNPUBLISHED OPINION MOHAMED S. ABUBAKAR; and JANE DOE, husband and wife, individually and in the marital community comprised thereof, FILED: November 12, 2019 Respondent.
DWYER, J. — Lauriane Narin appeals from the trial court’s order dismissing
her personal injury action against Mohamed Abubakar based on her failure to
effect service of process within the statutory limitation period. The trial court
neither abused its discretion by denying Narin’s motion to continue the summary
judgment hearing nor erred in striking portions of the evidence Narin submitted in
response to the motion. And because Narin failed to accomplish valid service of
process when she caused to be delivered a copy of the summons and complaint
to Abubakar’s brother at a place where Abubakar did not reside, the trial court
properly granted summary judgment. We affirm.
On August 7, 2014, Lauriane Narin and Mohamed Abubaker were
involved in an automobile collision in Seattle. Abubakar provided the
investigating officer with a Seattle address on 30th Avenue S., which was his No. 78923-6-1-1/2
mother’s residence and the location where Abubakar had his mail delivered at
the time.
Three days before the statute of limitations expired, on August 4, 2017,
Narin filed a personal injury action against Abubakar. On August 16, counsel for
Abubakar filed a notice of appearance, “reserving all defenses including but not
limited to defects in jurisdiction and service of process.”
Narin twice unsuccessfully attempted to serve Abubakar with legal
process in September 2017.1 Then, on September 28, 2017, Narin served
Abubakar by delivering a copy of the summons and complaint to his brother at a
residence located at 3011 S. Holly Street, in Seattle. According to the
declaration of service, the individual who accepted the legal documents was an
unidentified male of Middle Eastern descent with an accent, who was a resident
of the home and Abubakar’s “roommate.”
Three weeks later, before the 90-day period for service expired, Abubakar
answered the complaint, and asserted insufficient service of process as a
defense.2
Several months later, Abubakar filed a motion for summary judgment,
seeking dismissal of the complaint on the ground that Narin failed to accomplish
valid service within 90 days of filing her complaint, as required by ROW 4.16.170.
Abubakar filed a brief supportive declaration stating that he never lived at the S.
1 Narin first attempted to serve Abubakar on September 24 at the 30th Avenue S. address identified in the police report. The next day, on September 25, Narin attempted to serve Abubakar at a residence on SE Ramona Street in Portland, Oregon. Abubakar’s mother resided at that address and informed the process server that Abubakar did not live there and only visited on occasion. 2 ~ ROW 4.16.170 (tolling the statute of limitations for 90 days from the date of filing
the complaint).
2 No. 78923-6-1-1/3
Holly Street residence and that, since 2014, he has resided at an apartment on
Martin Luther King Jr Way S. (MLK) in Seattle. Abubakar provided no
corroborative evidence, apart from a copy of his Washington driver’s license,
issued in December 2016, listing the MLK apartment as his address.
Narin opposed the motion with declarations of the process server and two
investigators employed by ABC Legal Services, the entity she retained to locate
and serve Abubakar. The ABC employees described their investigation into
Abubakar’s home address and referenced certain documents they relied upon,
including an attached document identified as an “Accurint report.”
Abubakar asked the court to strike portions of the testimony of the ABC
employees and the Accurint report. Narin filed a motion seeking leave to
supplement the evidence and to continue the hearing. Without ruling on either of
these motions, the trial court denied the motion for summary judgment without a
hearing.
Approximately two months after the court entered its order, defense
counsel informed plaintiff’s counsel of her intent to file another motion for
summary judgment with additional documentation to establish Abubakar’s
residency.
In June 2018, approximately five months after the court denied his first
motion, Abubakar filed a second motion for summary judgment. In the
declaration he filed in support of the motion, Abubakar explained that at the time
of the collision, he was living with friends, but was not named on a lease.
Abubakar said that, since November 2014, the MLK apartment had been his
3 No. 78923-6-1-1/4
permanent residence. He further stated, “[t]his address is where my mail is
delivered, where I prepare meals and sleep each night, and where I spend time
with friends and family.” He said that for a period of a few months in the summer
of 2015, his girlfriend and children lived with him at the MLK apartment.
Abubakar explained that, at the time of the attempted service in
September 2017, three of his brothers were living at the S. Holly Street
residence, including Fadil, who accepted documents from the process server.
According to Abubakar’s declaration, Fadil has some “learning disabilities,” does
not read well, and did not deliver any legal documents to him.
Abubakar attached several exhibits to his declaration, including copies of
lease documents establishing that he had rented the MLK apartment
continuously from November 14, 2014. He also submitted copies of electricity
bills in his name, car payment bills, a Washington Department of Licensing
vehicle registration certificate issued in February 2017, a copy of his Washington
driver’s license, and a copy of a 2016 employment application for a position
Abubakar held in 2016 and 2017. All of these documents referenced the MLK
apartment as Abubakar’s home address.
Abubakar also supplied Fadil’s declaration, who confirmed that Abubakar
had never lived at the S. Holly Street residence. Fadil stated that he
remembered the delivery of ‘legal papers,” but understood that the documents
were for another brother, Ahmed, who also resided at the S. Holly Street
residence. Fadil said that his native language is Somali, and that he has
~ We refer to Abubakar’s brothers by first names for clarity.
4 No. 78923-6-~-II5
“learning disabilities and cannot read.” Fadil denied telling the process server
that Abubakar lived with him.
Narin again opposed the motion, relying on the evidence that she
presented in her response to Abubakar’s first summary judgment motion. She
argued that summary judgment was inappropriate because Abubakar was ‘at
least associated” with the S. Holly Street address and there were insufficient
facts to conclude that service at that address was invalid. Alternatively, Narin
requested a continuance under CR 56(f), arguing that, in light of the new
evidence, she should have an opportunity to depose “several key witnesses,”
including Abubakar, his brothers, and ABC employees and investigators.
Prior to the hearing, Abubakar again moved to strike portions of the
declarations of the ABC employees and the process server.
Following a hearing, the court entered an order granting Abubakar’s
motion to strike and a separate order denying Narin’s motion for a continuance
and granting Abubakar’s motion for summary judgment. The court later denied
reconsideration of both orders.
Narin appeals, challenging the trial court’s decisions (1) denying her
motion to continue, (2) granting the motion to strike and (3) granting Abubakar’s
summary judgment motion dismissing her lawsuit.
Narin contends that the court abused its discretion by denying her CR
56(f) motion to continue the summary judgment hearing to allow her to conduct
discovery.
5 No. 78923-6-1-116
Under CR 56(f), the court may order a continuance to allow a nonmoving
party to obtain discovery needed to respond to the motion “[sjhould 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.”
We review a trial court’s ruling on a CR 56(f) motion for abuse of discretion.
Bavand v. OneWest Bank, FSB, 196 Wn. App. 813, 822, 385 P.3d 233 (2016).
The trial court may deny the motion for a continuance if: “(1) the requesting party
does not offer a good reason for the delay in obtaining the desired evidence; (2)
the requesting party does not state what evidence would be established through
the additional discovery; or (3) the desired evidence will not raise a genuine issue
of material fact.” Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989).
When a party requests a continuance merely to seek information already
provided by a declaration, the trial court does not abuse its discretion by denying
the request. Farmerv. Davis, 161 Wn. App. 420, 431, 250 P.3d 138 (2011). The
trial court granted summary judgment to the defendants in Farmer because the
plaintiff failed to serve a copy of the summons upon a person of suitable age and
discretion at the defendant’s place of usual abode. 161 Wn. App. at 423. On
appeal, Farmer challenged the denial of his motion for a continuance to allow him
to depose Davis and Davis’s mother regarding Davis’s usual abode. Farmer,
161 Wn. App. at 430. However, both individuals had already provided
declarations that unequivocally stated, with supporting facts, that the place of
service had not been Davis’s usual abode for more than two years before the
6 No. 78923-6-1-1/7
attempted service. Farmer, 161 Wn. App. at 431. The appellate court upheld the
trial court’s denial of the motion to continue. Farmer, 161 Wn. App. at 431.
Narin contends that, unlike the plaintiff in Farmer, she made the required
showing to justify a continuance. We disagree. Narin’s counsel stated that if the
matter were continued, he expected to receive responses to outstanding
interrogatories and to depose Abubakar and Fadil. Counsel did not identify any
information that outstanding discovery responses would provide that was
relevant to the issue of service. And when the court pointed out that both
Abubakar and Fadil had provided definitive declarations with regard to
Abubakar’s usual place of abode, counsel suggested that depositions would
allow him to ask “follow-up questions” and to “go deeper.” The only specific area
of inquiry Narin’s counsel mentioned was whether Abubakar had ever used the
S. Holly Street address to apply for credit.
These facts are analogous to those in Farmer because Narin requested a
continuance for the primary purpose of deposing witnesses who had already
provided unequivocal declarations about Abubakar’s usual abode. Farmer, 161
Wn. App. at 431. Like the plaintiff in Farmer, Narin offered nothing, beyond
speculation, to suggest that she might be able to elicit “potentially contradictory
evidence” from those witnesses. 161 Wn. App. at 431. And, as the trial court
here pointed out, any evidence that Abubakar used the address for a discrete
purpose, such as a credit application, would not undermine the evidence
establishing that the MLK apartment was Abubakar’s usual abode for purposes
of service.
7 No. 78923-6-1-1/8
Narin also maintains that she demonstrated a good reason for the delay in
obtaining the evidence because defense counsel prevented her from deposing
Abubakar and refused to engage in discovery. But there was no evidence before
the court to indicate that Narin took any steps to take Abubakar’s deposition, or
made an express request to do so, and that opposing counsel failed to
cooperate. Defense counsel’s declaration provides:
At no time during the course of this litigation has plaintiff’s counsel ever requested I make Mr. Abubakar available for deposition. Plaintiff’s counsel has never noted the deposition of Mr. Abubakar or any other witness. Plaintiff’s counsel has never taken any steps to compel defendant’s answer to plaintiff’s discovery requests nor has counsel propounded any other written discovery regarding the service of process defense.
No evidence in the record contradicts this testimony. This is so even if we
were to consider the evidence Narin submitted to support her motion for
reconsideration and the untimely declaration of Narin’s former counsel. Evidence
that plaintiff’s counsel once brought up the issue of Abubakar’s deposition in a
conversation with defense counsel does not establish that defense counsel
refused to make her client “available” for deposition. At the summary judgment
hearing, Narin’s counsel admitted that, despite being on notice of the likelihood of
a second motion supported by additional evidence, other than “reaching back out
to ABC,” he had not engaged in any discovery in the five-month period following
the court’s denial of the first motion. As in Farmer, Narin failed to note any
depositions while the case was pending and “if there had been obstacles to
taking the desired depositions,” failed to explain why she had not moved for a
continuance earlier. 161 Wn. App. at 431.
8 No. 78923-6-1-1/9
Next, Narin cites Coggle v. Snow, 56 Wn. App. 499, 508, 784 P.2d 554
(1990), to argue that the trial court failed to fully appreciate that justice is the
“primary consideration” in ruling on a motion for a continuance and
inappropriately relied, to some extent, on the shortcomings of her counsel.
Again, we disagree. In Coggle, a medical negligence case, the trial court abused
its discretion by denying a motion for a continuance when the plaintiff’s new
counsel had insufficient time to rebut a summary judgment motion. 56 Wn. App.
at 508. There was a good reason for the delay because Coggle’s first counsel
retired and new counsel began representing Coggle only one week after the
opposing party filed the motion for summary judgment. Coggle, 56 Wn. App. at
508. Significantly, this court held that Coggle had met the other criteria fora
continuance by specifically identifying the evidence he sought, an affidavit from
the treating physician, and explaining how that evidence would rebut the key
defense expert’s testimony. Coggle, 56 Wn. App. at 508.
The facts here are not comparable to those in Coggle. And Narin’s
suggestion that the trial court failed to make justice its primary consideration or
unfairly penalized her for her counsel’s dilatory conduct is unwarranted. The
court carefully and thoroughly analyzed Narin’s request, recognizing the
consequences of denial. In this case, justice simply did not require continuing
the summary judgment hearing to allow further discovery when Narin failed to
meet her obligation to identify information she would obtain that would raise a
genuine issue of material fact.4
~ We a’so reject Narin’s contention that a continuance was warranted because she was caught ‘by surprise” when the court granted the defense motion to strike and thereby reversed its
9 No. 78923-6-1-1/10
Narin next challenges the court’s decision to strike portions of the
evidence she submitted in response to the summary judgment motion.
“A court cannot consider inadmissible evidence when ruling on a motion
for summary judgment.” Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842
(1986). Under CR 56(e), “opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters
stated therein.” Although a trial court’s ruling on a motion to strike is generally
reviewed for abuse of discretion, when a motion to strike is made in conjunction
with a motion for summary judgment, the standard of review is de novo.
Southwick v. Seattle Police Officer John Doe No. 1, 145 Wn. App. 292, 297, 186
P.3d 1089 (2008).
Narin challenges the trial court’s decision to strike the declaration of
former counsel, filed the day before the summary judgment hearing.5 She
argues that the trial court abused its discretion by striking the evidence as
untimely without first applying the factors set forth in Burnet v. Spokane
Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). See Keck v. Collins, 184
Wn.2d 358, 368-69, 357 P.3d 1080 (2015) (Burnet test applies to untimely
prior ruling on admissibility. She did not make this argument at the hearing or on reconsideration. Narin had notice of Abubakar’s renewed evidentiary objections. The trial court’s failure to rule on the first motion to strike when it denied Abubakar’s initial summary judgment motion was not a prior determination of admissibility. ~ The court’s order granting the motion to strike does not refer to the attorney’s declaration but the court orally granted the motion at the summary judgment hearing.
10 No. 78923-6-I-Ill I
affidavits submitted in response to a summary judgment motion when the
affidavits are germane to the factual issues raised by the motion).
The declaration in question was not relevant to the factual issue before the
court on summary judgment—i.e., whether Narin accomplished valid service
within the statutory limitation period. The declaration related only to Narin’s
request for a continuance and her explanation as to why she had not already
deposed defense witnesses. Moreover, Narin fails to allege, much less
establish, that she was prejudiced by the trial court’s ruling. See Vant Leven v.
Kretzler, 56 Wn. App. 349, 353-54, 783 P.2d 611(1989) (when affidavits
submitted by party seeking a CR 56(f) continuance are insufficient to establish a
good reason for delay in obtaining desired evidence, denial of continuance is
within the trial court’s discretion). As explained in the preceding discussion, the
attorney’s declaration testimony that the attorney “discussed” Abubakar’s
deposition with defense counsel does not demonstrate that Narin sought to
depose the defendant and was prevented from doing so.
Narin also challenges the court’s decision to strike the “Accurint report”
attached to the declarations of ABC investigator Sean Woods.6 The document
includes only a “LexID” number to identify the source of the information.7
Abubakar moved to strike the exhibit as unauthenticated.
6 Narin submitted two declarations of Sean Woods, dated one day apart. The challenged
exhibit is attached to both. ~ The Lexis Accurint database is used to locate people and businesses by reviewing “83+ billion public records.” https:I/www. Iexisnexis.com/en-us/products/accurint-for-Iegal professionals.page (last visited October 28, 2019).
11 No. 78923-6-1-1/12
On appeal, Narin contends that the exhibit is admissible under ER
803(17). ER 803(17) is an exception to the hearsay rule that allows admission of
“{m]arket quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or by persons in
particular occupations.” But Narin did not rely on this provision as a basis to
admit the evidence in the trial court. Absent manifest constitutional error, we
decline to consider arguments raised for the first time on appeal. See RAP
2.5(a). But even if Narin had preserved the issue, and we assume the exhibit
was properly authenticated and admissible under ER 803(17),8 Narin was not
prejudiced by the court’s ruling because the evidence fails to raise a genuine
issue of material fact about the validity of service.
The report lists 15 addresses with an apparent connection to the
defendant’s name. First on the list is Abubakar’s mother’s Portland residence,
which, as the parties agree, is not Abubakar’s usual abode. Second on the list is
the MLK address where Abubakar resides, with a corresponding date range of
January 2015 to August 2017. The S. Holly Street address is fourth on list with a
single corresponding date of March 2017. The Accurint report does not reveal
the underlying documents or data that provided the basis for connecting
Abubakar’s name to any of the addresses listed. Without that information, the
document creates no inference that the S. Holly Street residence (or any other
listed address for that matter) was Abubakar’s usual abode at the time of service
8 See U.S. Bank, Nat’I Ass’n v. UBS Real Estate Sec., Inc., 205 F. Supp. 3d 386, 441 (S.D.N.Y. 2016) (finding evidence from Accurint database to be admissible under parallel federal rule).
12 No. 78923-6-1-1/13
or cast doubt on the evidence submitted by Abubakar in support of his motion for
summary judgment.
As to the declarations of the ABC investigators, Narin claims, without
further elaboration, that “there is a difference between a hearsay statement and
non-hearsay proffers.” This assertion fails to adequately address the testimony
or basis for the motion to strike. For instance, in addition to describing his search
of “third party credit header data,” Joe Fetheroif states in the stricken portion of
his declaration that “Credit header records reflect that 3011 S Holly St., Seattle
98108 is the defendant’s most recent address in the State of Washington.” Narin
fails to explain why this testimony is a “non-hearsay proffer,” as opposed to a
hearsay statement offered to prove the matter asserted. See ER 801(c). And
Narin provides no reasoned argument that would allow us to conclude that
Woods’s testimony about the content of certain Oregon and Washington records
is not hearsay because physical documents do not exist or because ABC does
not have access to them. We decline to further address this claim.9
IV
Finally, Narin argues that service at the S. Holly Street address satisfied
either RCW 4.28.080(16) or (17) and it was error for the trial court to conclude
otherwise. Thus, she contends that the order granting summary judgment must
be reversed.
~ With respect to the declaration of the process server, we reject Narin’s contention that the court did not strike any part of his testimony. While the handwritten portion of the order does not reference the process server’s declaration, the order clause makes it clear that the court granted Abubakar’s request to strike paragraphs four and seven of his declaration.
13 No. 78923-6-1-1/14
We review the grant of a motion for summary judgment de novo. This
court engages in the same inquiry as the trial court. Benjamin v. Wash. State
Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999). Summary judgment is
appropriate if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121
Wn.2d 243, 249, 850 P.2d 1298 (1993); CR 56(c).
A personal injury plaintiff must commence suit within three years. RCW
4.16.080(2). She may do so by filing the complaint or serving the summons.
RCW 4.16.170. If she commences by filing, then she must serve the defendant
personally within 90 days from the date of filing. RCW 4.16.170.
Among other methods, a plaintiff can personally serve a defendant by (1)
delivering a copy of the summons to the defendant, or (2)(a) leaving a copy of
the summons at the defendant’s usual abode (b) with a person of suitable age
and discretion (c) then resident therein. RCW 4.28.080(16). Service under the
latter alternative, commonly called “abode” or “substitute” service must satisfy all
three elements. Sheldonv. Fetti~, 129 Wn.2d 601, 607, 919 P.2d 1209 (1996);
Gerean v. Martin-Joven, 108 Wn. App. 963, 969, 33 P.3d 427 (2001).
The term “usual abode” is liberally construed and refers to the “center of
one’s domestic activity [such that] service left with a family member is reasonably
calculated to come to one’s attention.” Sheldon, 129 Wn.2d at 610 (quoting
Sheldon v. Fetti~, 77 Wn. App. 775, 781, 893 P.2d 1136 (1995)). While “most
people generally maintain only one house of usual abode,” our Supreme Court
14 No. 78923-6-1-1/15
has held that “under certain circumstances a defendant can maintain more than
one house of usual abode.” Sheldon, 129 Wn.2d 611.
Narin concedes that the exhibits submitted by Abubakar establish beyond
dispute that he resides at the MLK apartment. Nevertheless, she claims the
evidence fails to explain his connection to the S. Holly Street residence and does
not foreclose the possibility that, like the defendant in Sheldon, Abubakar
maintains more than one usual abode. See Sheldon, 129 Wn.2d at 611.
Sheldon involved attempted service of process on an adult defendant,
Sharon Fettig, at her parents’ Seattle home. Sheldon, 129 Wn.2d at 606. Fettig
had moved to Chicago for flight attendant training eight months prior to the
attempted service, but thereafter maintained a number of formal and informal
connections to her parents’ Seattle residence. Sheldon, 129 Wn.2d at 604-05.
As Sheldon makes clear, the usual abode inquiry turns on indicia of domestic
activity and use of an address for purposes such as voting, car registration, car
insurance, and the receipt of mail. See, ~ Sheldon, 129 Wn.2d 610-11. It
also depends on factors that logically establish the center of domestic activity,
including basic concepts such as where the defendant sleeps and eats and the
frequency of visits. .~, ~ Sheldon, 129 Wn.2d at 610, 612.
The use of a particular address “for a limited purpose is not a critical factor
in determining a center of domestic activity.” Streeter—Dybdahl v. Nquyet Huynh,
157 Wn. App. 408, 414, 236 P.3d 986 (2010). In Streeter-Dyblahl, service of a
summons and complaint on a person, other than the defendant, at a residence
where the defendant no longer lived and only visited occasionally to pick up mail,
15 No. 78923-6-1-1/16
was invalid. 157 Wn. App. at 415. In that case, although the Department of
Licensing listed the defendant’s former Seattle residence as her current address
and she kept a special box there for mail, there was no probative evidence of
domestic activity sufficient to conclude the defendant maintained more than one
place of usual abode. Streeter-Dybahl, 157 Wn. App. at 415.
Likewise here, Narin cites no facts that establish or even reasonably
indicate that Abubakar centered his domestic activities at his brothers’ home at
any time. Even viewed in the light most favorable to Narin, the evidence in the
record demonstrates only that Abubakar centered his domestic activities at a
separate location, the MLK apartment. Abubakar resided there for almost three
years before the attempted service. He used the MLK address to receive mail,
pay bills, for his vehicle registration, his driver’s license, and a job application.
The only evidence before the court indicates that Abubakar never lived at the S.
Holly Street address and there was no evidence that he stayed there or used the
residence as a point of contact. There is no true question of fact as to whether
Abubakar established that the S. Holly Street residence was not his usual abode
and therefore service at that location was not valid.
Alternatively, Narin contends that service at S. Holly Street satisfied the
requirements of RCW 4.28.080(17). This provision provides:
In lieu of service under subsection (16) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor. or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual
16 No. 78923-6-1-1/17
mailing address. For the purposes of this subsection, “usual mailing address” shall not include a United States postal service post office box or the person’s place of employment.
(Emphasis added.)
But, as the trial court noted, even assuming Narin could show “reasonable
diligence,” there was no evidence that Abubakar used the S. Holly Street address
for purposes of receiving any mail, let alone evidence that it was his “usual
mailing address.” The only evidence in the record demonstrated that Abubakar’s
usual abode and center of his domestic activities was other than at his brothers’
house. With no facts indicating otherwise, the only reasonable conclusion is that
his usual mailing address was also the MLK apartment address.
The trial court did not err in concluding there was no valid abode service
under RCW 4.28.080(16) or service under RCW 4.28.080(17) at the defendant’s
usual mailing address. The trial court did not err in granting summary judgment.
Affirmed.
WE ONCUR:
D~4~ ‘7cr