Phil Larson, V. Jarritos Inc. ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
June 8, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PHIL LARSON, No. 53900-4-II
Appellant,
v.
JARRITOS, INC., TIPP ENTERPRISES, INC. UNPUBLISHED OPINION
dba NOVAMEX,
Respondents,
and
WINCO FOODS, LLC,
Defendant Below.
CRUSER, J. – Phil Larson appeals the superior court orders granting Jarritos, Inc.’s and Tipp
Enterprises, Inc.’s (the Respondents) motions to dismiss his tort claims against them with
prejudice.1 Larson argues that the superior court erred when it concluded that Larson failed to file
his complaint before the statute of limitations had run because he did not file the “Case Information
Cover Sheet” required under Superior Court Administrative Rule (AR) 2 with the complaint and
summons. Larson also argues that the superior court applied the wrong statute of limitations
because the statute of limitations had tolled (1) under the discovery rule, (2) because the
1
The superior court also dismissed Larson’s claims against a third defendant, WinCo Foods, LLC.
Larson and WinCo Foods stipulated to this dismissal, and Larson does not challenge the dismissal
on appeal.
No. 53900-4-II
Respondents were non-resident entities that had failed to register as foreign entities with the
Secretary of State, and (3) under RCW 4.16.180.
We hold that even assuming, without deciding, that the complaint was filed regardless of
when Larson filed the AR 2 Case Information Cover Sheet, Larson fails to establish that the statute
of limitations had tolled with respect to the Respondents. Accordingly, we affirm the orders
dismissing Larson’s claims against the Respondents. We also deny both parties’ requests for
attorney fees and expenses.
FACTS
I. ACCIDENT, FILING, SERVICE ON WINCO FOODS, AND DISMISSAL OF WINCO FOODS
On June 21, 2015, Larson was injured when an unopened bottle of a Jarritos soda product
exploded in his hands in a WinCo Foods store. Larson suffered injuries to his face.
Three years later, on June 21, 2018, Larson submitted via Thurston County Superior
Court’s electronic filing system three summonses and a complaint against WinCo Foods and the
Respondents.2 Larson paid the filing fee that same day. In the complaint, Larson alleged (1)
“design defect;” (2) “failure to warn or inadequate warnings;” (3) “unsafe construction of the
product by the manufacturer;” and/or (4) “negligent transportation, storage and/or handling of the
product.” Clerk’s Papers (CP) at 5. He also alleged breach of express and implied warranties by
the manufacturer and the product seller.
The next day, June 22, the clerk’s office staff notified Larson that it would not file the
summonses and complaint until he submitted the AR 2 Case Information Cover Sheet. Larson filed
2
Larson alleged that WinCo Foods was “the product seller,” that Jarritos was “the product
manufacturer,” and that Tipp Enterprises was “the product distributor.” CP at 4-5.
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No. 53900-4-II
the Case Information Cover Sheet that day, and the clerk’s office filed the summonses and
complaint.
Larson served WinCo Foods with a summons and complaint within 90 days of filing the
complaint. But, on March 29, 2019, the superior court entered a stipulated order dismissing the
claims against WinCo Foods with prejudice. As of that date, Larson had not yet served the
Respondents.
II. ORDER DISMISSING CLAIMS AGAINST JARRITOS
In early May, Jarritos moved to dismiss Larson’s claims against it. Jarritos argued that (1)
Larson had filed the case after the statute of limitations had expired due to his failure to comply
with AR 2, and (2), in the alternative, in light of WinCo Foods’ dismissal Larson had failed to
effectuate service within 90 days of filing the complaint.
On May 24, approximately 11 months after filing the complaint and almost two months
after WinCo Foods’ dismissal, Larson served the Respondents by substitute service via the
Secretary of State.
Four days later, Larson objected to Jarritos’ motion to dismiss. Larson argued that the
summons and complaint were timely filed despite his failure to comply with AR 2. He also asserted
that he had served the Respondents through the Secretary of State and that because the
Respondents were foreign entities that were not properly registered with the Secretary of State “[i]t
would be unconscionable to allow [Jarritos] to claim that service was untimely.” Id. at 155. In oral
argument, Larson later relied on RCW 4.16.180, asserting that the Respondents were either absent
from the state or concealed.
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No. 53900-4-II
The superior court concluded that Larson’s complaint was not timely filed because Larson
had not complied with AR 2 and, in the alternative, that RCW 4.16.180 did not toll the statute of
limitations as to Jarritos. The court dismissed Larson’s claims against Jarritos with prejudice.
III. STIPULATED ORDER DISMISSING CLAIMS AGAINST TIPP ENTERPRISES
After the superior court dismissed the claims against Jarritos, Tipp Enterprises filed a
motion to dismiss. Tipp Enterprises asserted that, as was the case with the claims against Jarritos,
Larson had filed his claims after the statute of limitations expired. Tipp also asserted that it had
not been timely served, noting that it had been served via the Secretary of State on May 24, 2019,
336 days after the case was filed.
The parties agreed to stipulate to an order dismissing the claims against Tipp Enterprises
in light of the dismissal of claims against Jarritos. A court commissioner entered a stipulated ex
parte order dismissing the claims against Tipp Enterprises. This order preserved Larson’s right to
appeal.
Larson appeals the orders dismissing the claims against Jarritos and Tipp Enterprises.
ANALYSIS
Larson appeals the superior court’s orders dismissing the Respondents on statute of
limitations grounds. “We review a trial court’s decision to dismiss a case on statute of limitations
grounds de novo.” In re Parentage of Q.A.L., 146 Wn. App. 631, 634-35, 191 P.3d 934 (2008).
Larson argues that the superior court erred when it concluded that he failed to file the
complaint before the statute of limitations had run because he omitted the AR 2 Case Information
Cover Sheet. Larson further argues that the superior court applied the wrong statute of limitations
to his claims against the Respondents because the statute of limitations had tolled (1) under RCW
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No. 53900-4-II
7.72.060(3)’s discovery rule, (2) due to the Respondents’ failures to register as foreign entities
with the Secretary of State, and (3) under RCW 4.16.180.
Even assuming, but not deciding, that Larson timely filed the complaint despite his failure
to file the AR 2 Case Information Cover Sheet before the statute of limitations ran, Larson fails to
show that the statute of limitations was tolled as to the Respondents. Accordingly, we affirm.
I. LEGAL PRINCIPLES
“Under RCW 4.16.170, service of process on one defendant tolls the statute of limitations
as to unserved defendants.” Powers v. W.B. Mobile Servs., Inc., 182 Wn.2d 159, 164, 339 P.3d
173 (2014). But “[a] plaintiff who fails to serve each defendant risks losing the right to proceed
against unserved defendants if the served defendant is dismissed.” Sidis v. Brodie/Dohrmann, Inc.,
117 Wn.2d 325, 329-30, 815 P.2d 781 (1991).
Thus, if we presume for the sake of argument that the summonses and complaint were
timely filed, the statute of limitations was initially tolled as to the Respondents when Larson served
WinCo Foods within 90 days of Larson’s filing of the summonses and complaint. But when WinCo
Foods was dismissed before Larson served either of the Respondents, Larson lost the right to
proceed against the unserved parties, the Respondents, unless he can show that the statute of
limitations was somehow tolled as to the Respondents.
II. DISCOVERY RULE ARGUMENT
Citing RCW 7.72.060(3), North Coast Air Services, Ltd. v. Grumman Corp., 111 Wn.2d
315, 759 P.2d 405 (1988), and Orear v. International Paint Co., 59 Wn. App. 249, 796 P.2d 759(1991), Larson argues that under the discovery rule, the superior court applied the wrong statute
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No. 53900-4-II
of limitations to his “product liability claims” against the Respondents. Br. of Appellant at 8. This
argument fails.
Larson argues that the statute of limitations for his product liability claims did not start
running until he discovered or, in the exercise of due diligence should have discovered, the factual
causal relationship of the product to the harm or the party responsible for the injury. He contends
that he did not identify “the true cause” of his injuries as a “product defect” until “shortly before”
WinCo Foods’ dismissal in April 2019. Br. of Appellant at 11. Thus, he asserts that the statute of
limitations as to his product defect claims did not start to run until April 2019.
Larson is correct that the statute of limitations does not start to run in a product liability
case until the plaintiff discovers, “or in the exercise of due diligence should have discovered, a
factual causal relationship of the product to the harm” or the identity of the party who is responsible
for the injury. North Coast Air, 111 Wn.2d at 319; Orear, 59 Wn. App. at 257; RCW 7.72.060(3).3
But, even presuming that Larson preserved this argument for review, 4 Larson did not make this
same argument in the superior court, so there is nothing in the record establishing when he had
access to facts supporting a claim of “product defect” against the Respondents or whether he
exercised due diligence in discovering these facts. In fact, the complaint itself belies his assertion
that he did not have sufficient information until April 2019 because the June 2018 complaint
3
RCW 7.72.060(3) provides,
Statute of limitation. Subject to the applicable provisions of chapter 4.16
RCW pertaining to the tolling and extension of any statute of limitation, no claim
under this chapter may be brought more than three years from the time the claimant
discovered or in the exercise of due diligence should have discovered the harm and
its cause.
4
RAP 2.5(a).
6
No. 53900-4-II
specifically alleges claims for “design defect” and “unsafe construction of the product by the
manufacturer” against the Respondents. CP at 5. Because the record does not establish when
Larson had access to the facts supporting his claims against Respondents or that he exercised due
diligence in obtaining these facts, this argument fails.5
III. FAILURE TO REGISTER AS FOREIGN ENTITIES ARGUMENT
Larson also contends, as he did in his objection to Jarritos’ motion to dismiss, that all of
his claims were timely as to the Respondents because neither of the Respondents “are properly
registered as foreign entities with the State of Washington Secretary of State” under RCW
23.95.405, which would have ensured proper service. Br. of Appellant at 11-12. He asserts that
because the Respondents’ failures to obtain authorization to transact business in the state constitute
gross misdemeanors under RCW 9.24.040, “it would be unconscionable to allow either
Respondent to claim that service was untimely when they failed to follow state law in registering
as a foreign entity and appointing an agent within the state for service of process.” Id. at 13.
But Larson cites no authority establishing that a failure to register as a foreign entity and
appoint an agent tolls the statute of limitations.6 And the conclusion that it does would appear to
be inconsistent with RCW 23.95.505(6)(c), which provides: “The failure of a foreign entity to
5
We note that in support of part of their argument addressing the statute of limitations, the
Respondents cite the unpublished case Padilla v. Merchandising Inventives, Inc., noted at 126 Wn.
App. 1050 (2005). Padilla was issued before March 1, 2013. Thus, the Respondents’ citation of
this unpublished case does not comply with GR 14.1(a), and we do not consider this case.
6
“[I]f a party does not provide a citation to support an asserted proposition, courts may ‘assume
that counsel, after diligent search, has found [no supporting authority].’” State v. Arredondo, 188
Wn.2d 244, 262, 394 P.3d 348 (2017) (second alteration in original) (internal quotation marks
omitted) (quoting State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978)).
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No. 53900-4-II
register to do business in this state does not . . . preclude the foreign entity from defending an
action or proceeding in this state.” Furthermore, nothing in the record establishes whether either
of the Respondents are, in fact, required to register as foreign entities under chapter 23.95 RCW.7
See RCW 23.95.520 (listing “[a]ctivities of a foreign entity that do not constitute doing business
in this state under” chapter 23.95 RCW, including activities such as “[s]elling through independent
contractors,” and “[d]oing business in interstate commerce.”). Accordingly, this argument fails.
IV. RCW 4.16.180 ARGUMENT
Larson further suggests that the statute of limitations tolled as to all of his claims under
RCW 4.16.180, which provides:
If the cause of action shall accrue against any person who is a nonresident
of this state, or who is a resident of this state and shall be out of the state, or
concealed therein, such action may be commenced within the terms herein
respectively limited after the coming, or return of such person into the state, or after
the end of such concealment; and if after such cause of action shall have accrued,
such person shall depart from and reside out of this state, or conceal himself or
herself, the time of his or her absence or concealment shall not be deemed or taken
as any part of the time limit for the commencement of such action.
But Larson merely quotes RCW 4.16.180, he presents no argument regarding how this statute
applies in this case.
We note that RCW 4.16.180 is intended to suspend the running of a statute of limitations
in circumstances where the plaintiff would be unable to serve non-resident or concealed
defendants. But if a defendant is subject to service under the long-arm statute, RCW 4.16.180 does
not apply. Summerrise v. Stephens, 75 Wn.2d 808, 811, 454 P.2d 224 (1969). And nothing in the
7
Larson merely asserts that the Respondents are not registered, something the Respondents admit.
Larson does not establish that they were required to register.
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No. 53900-4-II
record demonstrates that the Respondents were not subject to service under the long-arm statute
or that the Respondents were concealed.
Larson does not establish that the statute of limitations was tolled and the superior court
did not err in granting the Respondents’ respective motions to dismiss.
V. ATTORNEY FEES AND EXPENSES ON APPEAL
Larson requests reasonable attorney fees and expenses on appeal under “RAP 18.1, RAP
18.9 and applicable law.” Br. of Appellant at 14. Because Larson is not the prevailing party and
does not include any relevant argument as to why he would be entitled to sanctions under RAP
18.9, we deny his request.
Citing MacKenzie v. Barthol, 142 Wn. App. 235, 173 P.3d 980 (2007), and Sharbono v.
Universal Underwriters Insurance Co., 139 Wn. App. 383, 161 P.3d 406 (2007), the Respondents
also request reasonable attorney fees and expenses on appeal. RAP 18.1 allows us to award a party
reasonable attorney fees and expenses if applicable law grants the right to such recovery. But
Makenzie addresses appellate costs and fees in dissolution proceedings,8 and Sharbono addresses
appellate costs fees under the Consumer Protection Act,9 neither of which applies here. Because
the Respondents do not cite any relevant law allowing us to award appellate fees and costs, we
deny the Respondents’ request for reasonable attorney fees and expenses. But because the
Respondents are the substantially prevailing parties on appeal, we grant costs and statutory
8
Chapter 26.09 RCW.
9
Chapter 19.86 RCW.
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No. 53900-4-II
attorney fees under RAP 14.2 and RAP 14.3. The amount awarded will be determined by our
commissioner upon compliance with RAP 18.1.
CONCLUSION
We hold that even assuming, without deciding, that the complaint was filed despite
Larson’s failure to include the AR 2 Case Information Cover Sheet, Larson fails to establish that
the statute of limitations tolled with respect to the Respondents. Accordingly, we affirm the orders
dismissing Larson’s claims against Jarritos and Tipp Enterprises. We also deny both parties’
requests for reasonable appellate fees and expenses, but grant costs and statutory attorney fees
under RAP 14.2 and RAP 14.3 to the Respondents as the prevailing parties upon compliance with
RAP 18.1.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, C.J.
10