Sing Cho Ng v. Bing Kung Association

• Court: Court of Appeals of Washington
• Decided: November 4, 2019
• Docket: 78715-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SING CHO NG, No. 78715-2-1 Appellant, DIVISION ONE V. UNPUBLISHED OPINION BING KUNG ASSOCIATION, TOMMY PING YUE MAI, YAO SHEN CHIN, YUET PING MARK, KIN CHEUN LEUNG, AND JOHN DOE FILED: November 4, 2019 AND JANE DOE,

Respondents.

LEACH, J. — Pro se litigant Sing Cho Ng appeals the dismissal of his complaints

for damages against Bing Kung Association and its agents (Bing Kung) pursuant to CR

12(b). The appeal is entirely devoid of merit. We affirm the trial court and award

attorney fees to Bing Kung under RAP 18.9 as sanctions for a frivolous appeal.

BACKGROUND

Sing Cho Ng was a tenant at a residential building in Seattle owned by Bing

Kung. Ng alleges that agents of Bing Kung, accompanied by Seattle police officers,

forcibly entered and searched his apartment on October 8, 2014. In October 2014, Ng

and his former roommate Matthew Zhong each filed two pro se anti-harassment

petitions against individual members of Bing Kung alleging emotional distress arising No. 78715-2-1/2

from the alleged break-in.1 The court dismissed all four petitions. Ng and Zhong did not

appeal these rulings.

In July 2015, Bing Kung started an unlawful detainer action against Ng and

Zhong for failure to pay rent.2 The court decided that Ng and Zhong were guilty of

unlawful detainer and issued a writ of restitution. Ng later filed numerous posttrial

motions and unsuccessfully appealed their denia1.3

In December 2015 and January 2016, Ng filed pro se complaints for damages

against Bing Kung arising from the alleged break-in, the unlawful detainer action, and

Bing Kung's storage of Ng's personal property.4 The court dismissed these complaints.

Ng's subsequent appeals failed.

On September 17, 2017 and October 2, 2017, Ng filed two more pro se

complaints for damages arising from the October 8, 2014, break-in and the 2015

unlawful detainer action.5 The complaints alleged claims for unlawful and forcible entry

contrary to RCW 59.12.230 and RCW 59.18.150; retaliation contrary to RCW

59.18.240; burglary and trespass contrary to RCW 9A.52; and a federal civil rights claim

under 42 U.S.C. § 1983. On October 9, 2017, Zhong filed his own complaint.6 Over

Ng's objection, the court granted Bing Kung's request to consolidate the three cases.

1 King County Superior Court Nos. 14-2-27943-4 SEA, 14-2-29241-4 SEA, 14-2- 27844-6 SEA, 14-2-29231-7 SEA. 2 King County Superior Court No. 15-2-16467-8 SEA. 3 Bing Kunq Ass'n v. Sing Cho Na, No. 74251-5-1 (Wash. Ct. App. Nov. 6, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/742515.pdf. 4 King County Superior Court Nos. 15-2-30570-1 SEA, 16-2-00051-7 SEA. 5 King County Superior Court Nos. 17-2-25788-5 SEA, 17-2-24597-6 SEA. 6 King County Superior Court No. 17-2-26434-2 SEA.

-2- No. 78715-2-1/3

On December 12, 2017, a court commissioner granted Ng's ex parte motion for

permission to serve the defendants by mail. On May 3, 2018, Bing Kung asked the

court to vacate the commissioner's order on procedural and substantive grounds. On

May 16, 2018, the superior court granted the request and vacated the order.

On May 21, 2018, Bing Kung filed a CR 12(b) motion to dismiss the consolidated

cases with prejudice and asked the court to take judicial notice of prior cases involving

the parties. Bing Kung asserted four main grounds for dismissal: (1) lack of service of

process,(2) statute of limitations, (3) collateral estoppel, and (4) failure to state a claim

upon which relief may be granted. Bing Kung also requested an award of attorney fees

and costs for bringing frivolous claims in violation of CR 11.

On June 11, 2018, Ng asked for more time to file his response. The court denied

the request. On June 19, 2018, Ng filed a notice of disqualification of judge. The court

denied disqualification on the ground that the judge had previously exercised discretion

in the case.

On June 22, 2018, after oral argument, the court dismissed all claims with

prejudice and awarded $5,000 in attorney fees to Bing Kung. In its written order, the

court ruled that dismissal was proper because the defendants were not properly served,

the statute of limitations has now lapsed on all claims, the issues presented in the

complaints are precluded by collateral estoppel, and the plaintiffs failed to state a claim

upon which relief could be granted. The order also stated that "[p]laintiffs shall not file

any further litigation in this court against any of the named defendants or their agents on

these same facts until and unless they have satisfied this judgment of attorney's fees."

-3- No. 78715-2-1/4

The court denied Ng's subsequent motion for a rehearing, which it interpreted as a

motion for reconsideration. Ng appeals.7

STANDARD OF REVIEW

A court may dismiss a complaint for failure to state a claim under CR 12(b)(6)

only if it appears beyond doubt that the plaintiff can prove no set of facts, consistent with

the complaint, which would entitle the plaintiff to relief.8 We review dismissal pursuant

to CR 12(b)(6) de novo.8

ANALYSIS

Ng presents no cogent argument for relief on appeal. A pro se litigant must

follow the same rules of procedure and substantive law as a licensed attorney.10 "The

scope of a given appeal is determined by the notice of appeal, the assignments of error,

and the substantive argumentation of the parties."11 An appellant must provide

"argument in support of the issues presented for review, together with citations to legal

authority and references to relevant parts of the record."12 An appellate court need not

consider arguments that a party does not support by references to the record,

meaningful analysis, or citation to pertinent authority.13

7 Zhong is not a party to this appeal. 8Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995). 9 Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). 10 Holder v. City of Vancouver, 136 Wn. App. 104, 106, 147 P.3d 641 (2006). 11 Clark County v. W. Wash. Growth Mqmt. Hr'qs Bd., 177 Wn.2d 136, 144, 298 P.3d 704(2013)(citing RAP 5.3(a); RAP 10.3(a), (g); RAP 12.1). 12 RAP 10.3(a)(6). 13 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by authority); State v. Camarillo, 54 Wn. App. 821, 829, 776 P.2d 176 (1989)(no references to the record), aff'd, 115 Wn.2d 60, 794 P.2d 850 (1990); RAP 10.3(a). -4- No. 78715-2-1/5

Ng's notice of appeal designated three decisions: (1) the order granting Bing

Kung's motion to dismiss pursuant to CR 12(b), (2) the order denying disqualification,

and (3) the order denying Ng's motion for an extension of time to file a response. But

Ng's briefing does not assign any error to the trial court's rulings. His legal and factual

assertions consist primarily of unfounded claims of misconduct by counsel for Bing

Kung and the trial court judge. Moreover, he fails to address the merits of the issues

raised in Bing Kung's motion to dismiss.14 These deficiencies sharply limit the scope of

issues Ng presents for review. 15 However, to the extent possible, we address the

essence of Ng's assertions.

Ng's primary argument on appeal is that the trial court committed reversible error

by permitting an associate attorney at Bing Kung's counsel's firm to appear in court for

the hearing on the motion to dismiss and sign pleadings on behalf of Bing Kung. CR

70.1(a) provides that "[a]ri attorney admitted to practice in this state may appear for a

party by serving a notice of appearance." Here, the notice of appearance states that

Loeffler Law Group PLLC appeared on behalf of the Bing Kung defendants. Ng asserts

that the attorney who signed the notice of appearance is the only attorney of record in

the case. So he contends that the associate attorney is a fraudulent nonparty imposter

14 Ng's opening brief asserts that the trial court erred in ruling that Zhong failed to file his complaint within the three-year statute of limitations. But Zhong is not a party to this appeal. 15 Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 693, 15 P.3d 115 (2000)("[o]nly issues raised in the assignment of error... and argued to the appellate court are considered on appear")(second alteration in original)(quoting State v. Kalakosky, 121 Wn.2d 525, 540 n.18, 852 P.2d 1064 (1993)); Saviano v. Westport Amusements, Inc., 144 Wn. App. 72, 84, 180 P.3d 874 (2008) (declining to address issues that a party fails to raise appropriately or discuss meaningfully with citations to authority). -5- No. 78715-2-1/6

whose unauthorized appearance tainted the entire proceeding. Ng is mistaken. No rule

requires attorneys with the same law firm to file separate notices of appearance.16 The

associate attorney's appearance for Bing Kung was wholly proper.

Ng also argues that the trial court erred in denying his notice of disqualification.

"A party has the right to disqualify a trial judge for prejudice, without substantiating the

claim, if the requirements of RCW 4.12.050 are met."17 "To be timely, an affidavit of

prejudice18 must be made 'before the judge presiding has made any order or ruling

involving discretion."16 Here, the judge denied Ng's notice of disqualification because

he previously exercised his discretion by ruling on Bing Kung's motion to vacate the

order allowing service by mail on May 16, 2018.20 The judge did not err in denying Ng's

untimely notice of disqualification. And the record does not support Ng's assertions that

the trial court judge lied and mishandled his case.

Ng's notice of appeal included the order denying his request for more time to file

his response to Bing Kung's motion to dismiss. But Ng's briefing does not discuss any

procedural or substantive issues for review relating to this order. We need not address

it.21

16 See CR 70.1, 71. 17 Statev. Lile, 188 Wn.2d 766, 774, 398 P.3d 1052 (2017). 18 Now called a "notice of disqualification." 19 In re Recall of Lindquist, 172 Wn.2d 120, 130, 258 P.3d 9 (2011) (quoting former RCW 4.12.050(1)(LAws OF 2009, ch. 332,§ 20)). 29 RCW 4.12.050(2) clarifies that the following actions by a judge, even though they may involve discretion, do not cause the loss of the right to file a notice of disqualification against that judge: arranging the calendar, setting a date for hearing or trial and/or ruling on an agreed continuance, as well as other administrative criminal proceedings. Ruling on a motion to vacate is not included on this list. 21 Weyerhaeuser, 142 Wn.2d at 693.

-6- No. 78715-2-1/7

Although not included in his notice of appeal, Ng's opening brief asserts that the

trial court abused its discretion by denying his motion for reconsideration. But Ng fails

to provide any argument about this issue. We need not address it.22

Although Ng's opening brief failed to address the merits of Bing Kung's CR 12(b)

motion to dismiss, Bing Kung argues that the trial court properly granted its motion on

the basis of lack of service of process, statute of limitations, collateral estoppel, and

failure to state a claim upon which relief can be granted. Ng did not reply to these

arguments. His reply brief merely renews his baseless assertions of unlawful

misconduct by the associate attorney for Bing Kung and the trial court judge. Ng's

failure to assign error to and argue against the merits of the court's rulings in the order

of dismissal waives any challenge based on those issues.23 We need not address Bing

Kung's arguments regarding the merits of the motion to dismiss.

Bing Kung also requests an award of attorney fees as a sanction for Ng's

frivolous appeal. RAP 18.9(a) authorizes the appellate court, on its own initiative or on

motion of a party, to order a party or counsel who files a frivolous appeal to pay

sanctions, including an award of attorney fees and costs, to the opposing party. "An

appeal is frivolous if, considering the entire record, the court is convinced that the

appeal presents no debatable issues upon which reasonable minds might differ and that

22 Weyerhaeuser, 142 Wn.2d at 693; RAP 10.3(a)(6). 23 Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 846, 347 P.3d 487 (2015). -7- No. 78715-2-1/8

it is so devoid of merit that there is no possibility of reversal."24 We resolve all doubts to

whether an appeal is frivolous in favor of the appellant.25

This appeal presents no debatable issues upon which reasonable minds might

differ and is devoid of merit. Ng completely fails to address the merits of the issues

presented in Bing Kung's motion to dismiss, and his challenges to the trial court's

rulings are entirely lacking in merit. We award reasonable appellate attorney fees to

Bing Kung under RAP 18.9 upon compliance with RAP 18.1.

Affirmed.

40-edi/ WE CONCUR:

/a4-tet 19AT 9g

24 Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007). 25 Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009).

-8-