IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PEDRO NAVARRO, No. 87898-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION SCOTT PRESTON,
Respondent.
COBURN, J. — Pedro Navarro sued Scott Preston for defamation. After alleging
that Preston’s discovery responses were incomplete, Navarro moved to compel
discovery before attempting to engage in a CR 26(i) meet and confer. After the trial
court denied his motion, Preston moved for fees and costs, which the court granted.
Navarro also moved to proceed with a pseudonym, which the court denied. We affirm.
FACTS
Navarro brought causes of action against Preston for defamation of character,
libel, and slander under the pseudonym “John Doe” in September 2024. Navarro’s
complaint alleged that Preston defamed him because he indirectly posted on Facebook
and directly told people that Navarro was a child molester or rapist. The trial court
granted Navarro’s motion to waive civil fees and surcharges the same day the complaint
was filed.
The parties engaged in discovery with Navarro emailing Preston a first set of 87898-1-I/2
interrogatories and request for production the following month, which Preston timely
answered. Subsequently, Navarro emailed a second set of interrogatories and request
for production on November 3 and alleged that some of the first interrogatories and
requests for production were incomplete. Navarro told Preston,
So are you going to actually follow the discovery rules and instruct your client to also follow the discovery rule CR 26, or will I have to bring your failure to follow the discovery rules to the court’s attention. You have already filed the answer to the complaint about 30 days late, so I can tell that you think rules and deadlines don’t apply to you or it’s an intentional act since I am pro se so you think you can get away with it. So I suggest you get very familiar with CR 26.
After Preston failed to respond to the second set of interrogatories and request for
production within 30 days, Navarro emailed Preston that the answers were late and
stated, “[i]f you’re not going to be taking the discovery rules seriously I am going to have
to bring this to the court’s attention.” Preston sent Navarro his answers on December 6.
Navarro emailed Preston again on December 13, alleging that Preston lied under
oath in his answers to Navarro’s interrogatories and requests for production. Navarro
claimed that Preston lied under oath because Preston answered Navarro’s second
interrogatory number 6 that he has only orally communicated with a provided list of
people about the activity or conduct referred to in the complaint but then admitted in the
following interrogatory that he sent his family screenshots of Navarro on the sex
offender registry. After highlighting this inconsistency, Navarro warned:
Since Mr. Preston supposedly does not have any records responsive to any of the messages from all of the listed people then I am either assuming he has them but is violating the discovery rules by refusing to produce them or is violating RCW 9A.72.150 destroying physical evidence. So, if you [are] not willing to have your client produce them then I will be filing [a] motion for sanctions and asking [the] court to send a request over to the prosecutor's office to investigate Mr. Preston for tampering with evidence.
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Navarro also provided instructions on how to retrieve deleted Facebook posts after
Preston objected to Navarro’s second request for production for “all social media
postings and activity including deleted post[s] between August 1, 2024 and the present”
as overbroad and unduly burdensome, and vague and ambiguous. Preston did not reply
to the email that provided instructions on retrieving deleted posts.
On January 12 Navarro emailed the court and Preston asking for “available court
dates for a hearing on a motion for sanctions.” Preston responded the following day,
requesting Navarro to clarify his “motion for sanctions” and indicated that, if this is some
kind of discovery motion, Navarro should review the discovery rules requiring him to
confer with opposing counsel. The day after Preston’s response, Navarro filed a “CR 37
motion to compel discovery and for sanctions for failure to comply with the discovery
rules and for failure to produce documents and for intentionally destroying evidence.”
The court replied to Navarro’s request for a hearing the same day his motion was filed,
stating, “You do not need a date from me since the motion is without argument.”
Thereafter, Preston emailed Navarro on January 17 with an attached letter,
requesting that Navarro strike his motion to compel discovery because he has not
arranged a conference for them to meet. The same day, Navarro replied to Preston
stating that his December 13 email “shows [his] intention to discuss discovery with
[Preston], but [Preston] failed to even respond.” Also on the same day, Preston replied
that he would be “happy to schedule a conference call with [Navarro] to discuss [his]
discovery requests and concerns, but [he] ha[s] never requested one.” Navarro
responded on January 20, a holiday, that he is willing to schedule a conference. After
Navarro did not strike his motion to compel discovery, Preston filed a response
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opposing the motion the following day when it was due and requested fees of $1,800.
On January 24 at 1:41 p.m., Preston emailed Navarro summarizing their CR 26(i)
conference call that occurred that day. About an hour later, Navarro confirmed with the
court over email that he was not striking his motion to compel discovery.
During this time, Navarro also filed a motion to proceed under a pseudonym. 1
Navarro filed his reply to this motion on January 29 at 9 a.m. and the court denied his
motion the same day at 2:04 p.m.
On February 6 the court denied Navarro’s motion to compel discovery and
request for sanctions. The court stated, “Based on the above pleadings, the Court finds
that there was not good cause of [sic] the motion. Plaintiff failed to attempt to meet and
confer in a discovery conference before filing the motion and Defendant otherwise
answered the discovery requests appropriately.” The court also stated that “[d]efense
counsel may seek a request for attorneys’ fees within 14 days of this Order.”
Accordingly, Preston timely filed a motion for fees and costs totaling $4,245.11
under CR 26(i) and CR 37(b). Navarro opposed the motion, arguing that CR 26(i) and
CR 37(a)(4) 2 are not a basis for fees and costs. Additionally, Navarro asked the court to
allow him to voluntarily dismiss his suit. In reply, Preston did not object to the court
ruling on Navarro’s request for dismissal as long as the court ruled on his request for
attorneys’ fees and costs. The court granted Preston’s motion for fees and costs in the
amount of $2,646.61, reasoning that a downward deviation was appropriate after
1 Navarro previously filed a motion to proceed under a pseudonym two times in September 2024, which were rejected and denied, respectively, under lower court rule 10, requiring the names on the case caption to match the names in the initiating complaint. 2 Neither party addresses on appeal whether CR 37(a)(4) is a basis to award attorneys’ fees to Preston. 4 87898-1-I/5
considering counsel’s attorney fee declaration and the time spent responding to
Navarro’s motion. The court also granted Navarro’s motion to dismiss without prejudice.
Navarro appeals. 3
DISCUSSION
Pseudonym Motion
Navarro argues that the trial court erred when it denied his motion to proceed
under a pseudonym because it denied the motion before receiving a working copy of his
reply brief. We disagree.
A trial court’s decision to deny a motion to proceed under a pseudonym is
reviewed for abuse of discretion. Doe AA v. King County, 15 Wn. App. 2d 710, 717, 476
P.3d 1055 (2020). “A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons.” In re Marriage of
Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005) (citing In re Marriage of
Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). A trial court’s discretionary
decision is based on untenable grounds or made for untenable reasons if it rests on
facts unsupported in the record or was reached by applying the wrong legal standard.
T.S. v. Boy Scouts of Am., 157 Wn.2d 416, 423-24, 138 P.3d 1053 (2006).
3 Navarro only attached a copy of the court’s order granting Preston’s request for attorneys’ fees to his notice of appeal but indicated that he sought review of the court’s order denying his motion to compel and motion to proceed under a pseudonym and designated these orders in the clerk’s papers. Because Preston takes no position on appealability, we exercise our discretion under RAP 5.3(f) that we may disregard defects in the form of the notice of appeal “if the notice clearly reflects an intent by a party to seek review” and consider these orders appealed. We do not consider Navarro’s allegation in his notice of appeal that the trial court violated GR 34 or was prejudiced and biased towards him because he makes such no argument in his briefing. RAP 10.3(a)(6) (requiring briefs to contain “The argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.”) 5 87898-1-I/6
Navarro filed his motion to proceed under a pseudonym on January 22, 2025.
Preston responded on January 27 opposing Navarro’s motion. 4 Navarro filed his reply
on January 29 at 9 a.m. with the King County Superior Court Clerk. The court denied
Navarro’s motion that same day at 2:04 p.m.
On January 29 at 1:12 p.m., the court emailed Navarro that his pseudonym
motion will be heard on January 31. Navarro replied at 1:33 p.m. on the same day,
asking whether the court would “accept working copies via email.” The court responded
five minutes later saying, “Yes, the Court already received your paper working copies:
notice of hearing and motion.” Navarro clarified 10 minutes later that he was “referring
to [his] reply motion that was filed …. with the clerk via the online portal but [he] was
unable to [f]ile the working copy of the reply motion via the online portal since for some
reason that fee is not waived.” The court responded to Navarro four minutes later that
he could email the court a working copy.
Under King County Local Civil Rule (KCLCR) 7(b)(4)(F), “Working copies of the
motion and all documents in support or opposition shall be delivered to the hearing
judge, commissioner, or appropriate judicial department no later than on the day they
are to be served on all parties.” Additionally, KCLCR 7(b)(4)(E) states that “[a]ny
documents in strict reply shall be similarly filed and served no later than 4:30 p.m. two
judicial days before the hearing.” Therefore, Navarro’s reply brief was due on January
29 by 4:30 p.m. and he had until the end of January 29 to deliver a working copy to the
court.
Navarro argues that the court’s order denying his motion to proceed under a
4 Preston takes no position on Navarro’s pseudonym motion on appeal. 6 87898-1-I/7
pseudonym violated KCLCR 7 because the court “made its decision without the benefit
of [his] final arguments” and that this error is not harmless because he was “deprived”
“of the chance to rebut the arguments made in [Preston’s] response motion.” However,
his reply brief was filed before the court denied his motion to proceed under a
pseudonym. Therefore, he was able to rebut Preston’s arguments made in response
and the court’s decision was not made without considering his arguments made in reply.
He cites no authority that he was prejudiced because the court denied his motion before
receiving a working copy. There was no abuse of discretion.
Motion to Compel
Navarro next argues that the trial court erroneously concluded that he failed to
attempt to meet and confer in a discovery conference before filing his motion to compel
discovery. The trial court has discretion to deny a motion to compel discovery, which we
do not disrupt absent an abuse of discretion. Clarke v. Att’y Gen.’s Off., 133 Wn. App.
767, 777, 138 P.3d 144 (2006). A court abuses its discretion when its decision is based
on unreasonable or untenable grounds. Clarke, 133 Wn. App. at 777.
CR 26(i) provides:
The court will not entertain any motion or objection with respect to rules 26 through 37 unless counsel have conferred with respect to the motion or objection. Counsel for the moving or objecting party shall arrange for a mutually convenient conference, whether in person or by telephone or by other remote means. If the court finds that counsel for any party, upon whom a motion or objection in respect to matters covered by such rules has been served, has willfully refused or failed to confer in good faith, the court may apply the sanctions provided under rule 37(b). Any motion seeking an order to compel discovery or obtain protection shall include counsel's certification that the conference requirements of this rule have been met.
“The primary purposes of CR 26(i) are to minimize the use of judicial resources during
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discovery and to encourage professional courtesy between counsel.” Amy v. Kmart of
Wash., 153 Wn. App. 846, 853, 223 P.3d 1247 (2009). None of Navarro’s emails to
Preston before filing his motion to compel indicate that he wanted to discuss his alleged
discovery issues or meet and confer. In his November 3, 2024, email responding to
Preston’s answers to his first set of interrogatories and request for production he states,
“So are you going to actually follow the discovery rules and instruct your client to also
follow the discovery rule CR 26, or will I have to bring your failure to follow the discovery
rules to the court’s attention.” Then, on December 3 Navarro emailed Preston that
Preston’s answers to his second set of interrogatories and request for production were
late, indicating “If you’re not going to be taking the discovery rules seriously I am going
to have to bring this to the court’s attention.”
Finally, after Preston emailed his answers to Navarro’s second set of
interrogatories and request for production, Navarro emailed Preston alleging that he lied
under oath in his interrogatories and is violating discovery because he refused to
produce certain documents. Navarro specifically said, “if you [are] not willing to have
your client produce them then I will be filing [a] motion for sanctions and asking [the]
court to send a request over to the prosecutor’s office to investigate Mr. Preston for
tampering with evidence.”
The record supports the court’s finding that Navarro “failed to attempt to meet
and confer in a discovery conference before filing the motion.” It was not an abuse of
discretion for the trial court to conclude that Navarro’s emails to Preston were not an
attempt to meet and confer.
Navarro also alleges that the trial court abused its discretion in finding that
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Preston “answered the discovery request appropriately.” Navarro specifically challenges
his second request for production No.1, which sought all communication between
Preston and a list of named individuals. Preston responded that he “do[es] not possess
anything responsive to this request.” The record supports that Preston answered this
discovery request appropriately. Navarro correctly highlights that in Preston’s response
to the motion to compel he included a declaration from his attorney with an attachment
containing a Facebook messenger screenshot responsive to Navarro’s request for
production No.1. However, the attorney’s declaration stated that Preston “just recently
located” these screenshots. It was not an abuse of discretion for the trial court to find
that Preston responded to the discovery request appropriately.
Finally, Navarro alleges that Preston’s “partial production” of the Facebook
screenshots attached to his attorney’s declaration “strongly suggests that more
responsive messages exist.” He cites no authority to support this inference or that a
court abuses its discretion when it does not consider an alleged “strong suggestion” that
more responses to a discovery request may exist. RAP 10.3(a)(6); Starr Indem. & Liab.
Co. v. P.C. Collections, LLC, 25 Wn. App. 2d 382, 404, 523 P.3d 805 (2023) (declining
to consider an abuse of discretion argument with no authority to support it). The court
did not abuse its discretion when it found that Preston appropriately responded to
discovery.
Attorneys’ Fees
Navarro next argues that CR 26(i) and 37(b) are not a valid basis to award
Preston attorneys’ fees. Under Washington law, attorneys’ fees are recoverable only
when statute, contract, or a recognized ground in equity authorizes the request. State v.
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Keeny, 112 Wn.2d 140, 142, 769 P.2d 295 (1989); Gander v. Yeager, 167 Wn. App.
638, 645, 282 P.3d 1100 (2012). A discretionary decision to award or deny attorneys’
fees is reviewed for an abuse of discretion. Gander, 167 Wn. App. at 645. When a trial
court’s decision is manifestly unreasonable, based on untenable grounds, or made for
untenable reasons, it is an abuse of discretion. Cook v. Brateng, 180 Wn. App. 368,
375, 321 P.3d 1255 (2014).
After the trial court denied Navarro’s motion to compel discovery, Preston
requested fees under CR 26(i) and CR 37(b). CR 26(i) states, in relevant part that, “[i]f
the court finds that counsel for any party, upon whom a motion or objection in respect to
matters covered by such rules has been served, has willfully refused or failed to confer
in good faith, the court may apply the sanctions provided under rule 37(b).” (Emphasis
added). One of the sanctions provided under rule CR 37(b) includes “reasonable
expenses, including attorney fees.” We hold that the trial court did not abuse its
discretion in awarding fees to Preston because the record supports that there is no
good cause for the motion; Navarro failed to confer after he filed his motion to compel.
On January 12 Navarro emailed the court and Preston asking for “available court
dates for a hearing on a motion for sanctions.” Preston responded the following day
asking Navarro to clarify his “motion for sanctions” and if it is a discovery motion,
Preston directed Navarro to “the state and local court rules on discovery and
requirements regarding conferring with opposing parties/counsel.” Navarro filed his
motion to compel discovery on January 14.
Thereafter, Preston emailed Navarro a letter requesting that he strike his motion
to compel and explained that CR 26(i) requires him to arrange a conference with
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Preston to resolve any discovery dispute before involving the court. Navarro responded
to the letter on January 17, stating that his December 13 email that Preston did not
respond to “shows my intention to discuss discovery” and “[j]ust because I did not use
the word confer my intentions by that email is clear that I was attempting to confer with
you.” Preston then replied the same day that he is “happy to schedule a conference call
with you to discuss your discovery requests and concerns, but you have never
requested one.” Preston also stated that he was not available on Monday January 20
because it was a holiday. Preston again suggested that Navarro strike his motion to
compel discovery and work with his assistant to set up a conference call. On January
20, a holiday, Navarro emailed Preston that he is “willing to schedule a discovery
conference whenever you’re available.” The following day, Preston filed a response to
Navarro’s motion to compel as Navarro did not strike it and the response was due that
day. In that response, Preston’s attorney requested fees.
Navarro filed a reply brief on January 22, arguing that he attempted to meet and
confer based on his December 13 email, that the court should not award Preston
attorneys’ fees because his motion was in good faith, and that Preston strategically
waited until Friday afternoon to make threats to get Navarro to strike his motion
because he was most likely to be busy then.
Preston emailed Navarro on January 24 that they had a CR 26(i) conference call
and summarized the substance of that call. On the same day after Preston’s email,
Navarro confirmed with the court over email that he was not striking his motion. The
court denied Navarro’s motion to compel discovery and ordered that “[d]efense counsel
may seek a request for attorneys’ fees within 14 days.”
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Preston timely moved for attorneys’ fees and costs totaling $4,245.11 under CR
26(i) and CR 37(b). In response, Navarro argued that CR 26(i) is not a basis to award
attorneys’ fees. Navarro also included a declaration with his response, attaching the
parties’ email exchanges since he filed his motion to compel discovery as well as his
emails with the court, as detailed above. The court granted Preston $2,520.00 in
attorneys’ fees and $126.61 in costs after considering Preston’s motion, the declaration
of his attorney, Navarro’s opposition, Preston’s reply, and the pleadings, filing and
records of the case.
The record supports that there was no good cause for Navarro’s motion to
compel because he failed to confer in good faith after filing the motion. Preston emailed
Navarro a letter three days after Navarro filed his motion to compel, requesting that he
strike the motion and explaining that the discovery rules require a meet and confer.
Although Navarro sent an email on January 20, a holiday, that he was willing to confer
with Preston, Navarro on January 24 confirmed with the court that he was not striking
his motion to compel. Without confirmation that Navarro was striking his motion to
compel, Preston was left having to prepare and submit a timely response.
Notably, even after the parties met and conferred on January 24 Navarro
confirmed with the court that he was not striking his motion to compel. Finally, in
Navarro’s response to Preston’s request for attorneys’ fees, he does not raise any
specific objection to the reasonableness of the fees requested. Instead, he attempts to
relitigate whether he violated CR 26(i). If the trial court's decision can be sustained on
any theory within the pleadings and evidence, we will do so. In re Marriage of Foran, 67
Wn. App. 242, 248, 834 P.2d 1081 (1992). Therefore, we conclude that the record
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supports that there was no good cause for Navarro to file his motion to compel and he
failed to confer in good faith after he filed his motion. The court did not abuse its
discretion in awarding fees under CR 26(i) and CR 37(b).
Citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997),
Navarro also argues that the trial court abused its discretion because it failed to make
required findings before imposing “a harsh sanction like a significant monetary penalty.”
In Burnet, our state Supreme Court held:
When the trial court “chooses one of the harsher remedies allowable under CR 37(b), … it must be apparent from the record that the trial court explicitly considered whether a lesser sanction would probably have sufficed,” and whether it found that the disobedient party’s refusal to obey a discovery order was willful or deliberate and substantially prejudiced the opponent’s ability to prepare for trial.
Burnet, 131 Wn.2d at 494 (quoting Snedigar v. Hodderson, 53 Wn. App. 476, 487, 768
P.2d 1 (1989)). However, our state Supreme Court has also held that “the reference in
Burnet to the ‘harsher remedies allowable under CR 37(b)’ applies to such remedies as
dismissal, default, and the exclusion of testimony . . . but does not encompass monetary
compensatory sanctions under CR 26(g) or CR 37(b)(2).” Mayer v. Sto Indus., Inc., 156
Wn.2d 677, 690, 132 P.3d 115 (2006) (citing Burnet, 131 Wn.2d at 494). As the trial
court awarded monetary sanctions, Burnet is inapplicable.
Finally, Navarro argues that under CR 37(b), the court was required “to consider
whether ‘other circumstances make an award of expenses unjust’” and the trial court
ignored that Navarro is pro se, in forma pauperis, and unemployed. First, “[c]ourts hold
pro se litigants to the same standards as attorneys.” Winter v. Dep’t of Soc. & Health
Servs., 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020). Second, under GR 34(a) “[a]ny
individual … may seek a waiver of filing fees or surcharges,” which Navarro sought and
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the court granted. However, Navarro cites no authority that it is unjust to order a party to
pay attorneys’ fee when that party has had civil fees and surcharges waived and is
unemployed. See State Constr., Inc. v. City of Sammamish, 11 Wn. App. 2d 892, 906,
457 P.3d 1194 (2020) (“Where a party fails to cite to relevant authority, we generally
presume that the party found none.”) Moreover, in the court’s order granting Preston
attorneys’ fees and costs, the court reduced Preston’s total request finding a downward
deviation appropriate. Therefore, the record supports that the court did consider
whether other circumstances make an expenses award unjust.
Finally, Navarro argues that the court should not have awarded fees because his
motion was “substantially justified” but we hold that the trial court did not abuse its
discretion in finding that there was no good cause for Navarro’s motion to compel. The
court did not abuse its discretion in awarding fees to Preston.
Next, Navarro challenges the reasonableness of the attorneys’ fees award,
arguing that the trial court’s order does not include proper findings that counsel’s hourly
rate was reasonable or as to how it calculated the attorneys’ fees award. Navarro also
argues that the trial court awarded fees unrelated to opposing the motion to compel. We
review a trial court’s decision regarding the amount of an attorney fee award for abuse
of discretion. Mayer v. City of Seattle, 102 Wn. App. 66, 79, 10 P.3d 408 (2000). “A trial
court abuses its discretion when it makes a decision that is manifestly unreasonable,
based on untenable grounds, or if no reasonable person would take the position
adopted by the trial court.” Cromar v. Tag Realty, LLC, 35 Wn. App. 2d 839, 852, 582
P.3d 887 (2025).
In response to Preston’s request for fees, Navarro did not raise any objection as
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to the reasonableness of the attorneys’ fees requested or counsel’s hourly rate. Instead,
he only argued that no fees should be awarded because he attempted to meet and
confer. Preston requested attorneys’ fees and costs totaling $4,245.11 which the court
reduced to $2,646.61. Preston did not appeal this reduction. Accordingly, Navarro
waived his arguments disputing the reasonableness of the attorneys’ fees award. RAP
2.5(a) (“The appellate court may refuse to review any claim of error which was not
raised in the trial court.”) Navarro also cannot assert that he is prejudiced by an award
that is less than the amount he did not object to below. On this record, the trial court’s
attorney fees awarded was not an abuse of discretion.
Altogether, we hold that the trial court did not abuse its discretion in awarding
attorneys’ fees to Preston under CR 26(i) and CR 37(b) or in the amount awarded. For
similar reasons, we grant Preston’s request for attorneys’ fees and costs on appeal
under RAP 18.1, CR 26(i) and CR 37(b). 5 Aiken v. Aiken, 187 Wn.2d 491, 506, 387
P.3d 680 (2017) (“An appellate court may award attorney fees where allowed by statute,
rule, or contract. If attorney fees are allowable at trial, the prevailing party may recover
fees on appeal.” (citation omitted)).
CONCLUSION
We affirm.
WE CONCUR:
5 Because we grant fees under CR 26(i) and CR 37(b), we need not address Preston’s claim for attorney fees on the basis that Navarro’s appeal is frivolous or that he did not follow the Rules of Appellate Procedure. 15