Hatsuyo Harbord v. Matthew Bean ( 2017 )

FILED
COURT OF APPEALS Div.
STATE OF WASILTtTh
2017 JUN 12 rti 8:3
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HATSUYO "SUE" HARBORD, )
) No. 73895-0-1
Appellant, )
) DIVISION ONE
v. )
)
SAFEWAY, INC.; DANIEL P. HURLEY; )
MATTHEW BEAN; MIKE LAGRANGE; ) UNPUBLISHED OPINION
SUE BONNETT; KEN BARNES, )
)
Respondents. )
) FILED: June 12, 2017
LEACH, J. — Hatsuyo Harbord filed this legal malpractice action against her
former attorney, Matthew Bean. Harbord also raised the same wrongful termination
and discrimination claims against Safeway Inc. and its employees that the trial court
dismissed on summary judgment in an earlier lawsuit. Because Harbord failed to
provide any supporting evidence or legal argument to establish a material factual
dispute, the trial court properly dismissed her claims on summary judgment. We
affirm and award the Safeway defendants attorney fees for a frivolous appeal.
No. 73895-0-1/2
FACTS
This is Harbord's second appeal arising from a dispute with her former
employer, Safeway Inc. Our decision in her first appeal describes the underlying
facts in more detail.'
Harbord began working as an office clerk and bookkeeper in Safeway's Port
Angeles store in 2004. After lengthy, unsuccessful attempts to address concerns
about Harbord's job performance and conduct, Safeway fired her in May 2011.
In May 2013, while represented by attorney Matthew Bean, Harbord sued
Safeway, alleging wrongful termination in violation of the Washington Law against
Discrimination (WLAD).2 After Safeway removed the case to federal district court,
Harbord had a falling-out with Bean and fired him. The district court then granted
Harbord's motion to proceed pro se. After Harbord asserted that her claims involved
less than $75,000, the district court eventually remanded the case back to King
County Superior Court.
Both in federal court and in superior court, Harbord refused to respond to
discovery requests or comply with a trial court order compelling discovery. Harbord
adamantly insisted that she had no obligation to comply with discovery rules.
1 See Harbord v. Safeway, Inc., No. 72731-1-1, slip op. at 2-3 (Wash. Ct. App.
July 25, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/727311.pdf,
review denied, 186 Wn.2d 1031 (2016)(Harbord I).
2 Ch. 49.60 RCW.
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On October 24, 2014, the trial court granted Safeway's motion for summary
judgment and dismissed all 'of Harbord's claims. In the alternative, the court
dismissed the claims under CR 37(b) as a sanction for Harbord's failure to participate
in discovery. This court affirmed the dismissal on appea1.3
On September 23, 2014, before the dismissal in Harbord I, Harbord filed this
lawsuit against her former attorney, Bean (Harbord II). Harbord also named as
defendants Safeway Inc., three individual Safeway employees, and the attorney who
represented Safeway in the Harbord 1 litigation (the Safeway defendants). Harbord
filed multiple complaints in the case. The precise nature of her claims against the
various defendants is unclear.
Bean moved for summary judgment, arguing that Harbord had failed to identify
any cognizable basis for a claim of legal malpractice. After considering all of the
material that Harbord submitted in opposition to summary judgment, including any
untimely filings, the trial court agreed and granted the motion. The court concluded
that Harbord failed to make a prima facie showing that Bean breached any duty of
care during his representation.
The Safeway defendants filed a separate motion for summary judgment. The
trial court granted the motion. It decided that collateral estoppel and the statute of
3 Harbord, No. 72731-1-1, slip op. at 1, 16.
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No. 73895-0-1/4
limitations barred Harbord's claims against Safeway and its employees and that
Harbord had failed to identify any basis for her claim against Safeway's attorney.
The trial court denied Harbord's motion for reconsideration and various
postjudgment motions, including a motion for disbursement of funds, motion to allow
demonstrative evidence, and motion for a default judgment. On November 12, 2015,
the trial court granted the Safeway defendants' motion for sanctions under CR 11:
1. Plaintiff's Complaints violate CR 11 because they are not well-
ground[ed] in fact or warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing
law, and were for an improper purpose, as Plaintiff did not
conduct a reasonable competent inquiry in the law or facts that
would support her Complaints and pursued her claims for the
purpose of harassing the Defendants and needlessly increasing
the costs of litigation. Specifically, Plaintiff's claims against
Safeway Inc., Lagrange, Bonnett and Barnes were barred by
collateral estoppel and plainly barred by applicable statutes of
limitation, and Plaintiff failed to articulate any actionable facts or
any cognizable cause of action against Hurley. Moreover,
Plaintiff persisted in pursuing her claims even after (i) being
advised by counsel for the Safeway Defendants of the facts and
law dispositive of her claims and (ii) warned that the Safeway
Defendants would seek sanctions if she did not voluntarily
dismiss her claims against them.
The court imposed sanctions totaling $27,492. The court ordered Harbord to
pay one-third of that amount—$9,164—and held the remaining two-thirds "in
abeyance" pending Harbord's compliance with the court's order prohibiting her from
filing any additional lawsuits against the Safeway defendants based on the same
facts.
Harbord appeals.
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No. 73895-0-1/5
ANALYSIS
Standard of Review
When reviewing an order on summary judgment, we undertake the same
inquiry as the trial court.4 Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."' We consider the
materials before the trial court and all reasonable inferences from those materials in
the light most favorable to the nonmoving party.° Our review is limited to the
materials properly before the trial court.7
The moving party can meet its initial burden under CR 56(c) by showing the
absence of evidence to support the nonmoving party's case." The burden then shifts
to the nonmoving party to demonstrate a genuine issue for tria1.9 The party opposing
summary judgment "may not rely merely upon allegations or self-serving statements,
but must set forth specific facts showing that genuine issues of material fact exist."1°
4 Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108(2004).
5 CR 56(c).
6 Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995).
7 See RAP 9.12.
8 Lee v. Metro Parks Tacoma, 183 Wn. App. 961, 964, 335 P.3d 1014 (2014);
see also Young v. Key Pharms., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989).
9 Lee, 183 Wn. App. at 964.
10 Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn.
App. 151, 157, 52 P.3d 30(2002).
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No. 73895-0-1/6
Harbord's briefing on appeal is essentially incomprehensible. In violation of
the Rules of Appellate Procedure, she has failed to provide discernible assignments
of error or any coherent legal argument supported by citations to authority or
references to the record." Many of her factual allegations involve inadmissible
hearsay.
These omissions are not a mere technicality. An appellate court will not
search through the record for evidence relevant to a litigant's arguments."
Moreover, this court may decline to consider issues unsupported by legal argument
and citation to relevant authority." Although Harbord is acting pro se, we hold self-
represented litigants to the same standard as an attorney.14
Defendant Bean
To support a claim of professional negligence again Bean, Harbord bears the
burden of establishing:
(1) The existence of an attorney-client relationship which gives rise to a
duty of care on the part of the attorney to the client; (2) an act or
omission by the attorney in breach of the duty of care; (3) damage to
11 See, e.g., RAP 10.3(a)(6)(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 See Mills v. Park, 67 Wn.2d 717, 721,409 P.2d 646 (1966).
13 See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249(1989).
14 In re Pers. Restraint of Rhem, No. 92698-1, slip op. at 7 (Wash. May 11,
2017), http://www.courts.wa.gov/opinions/pdf/926981.pdf.
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No. 73895-0-1/7
the client; and (4) proximate causation between the attorney's breach of
the duty and the damage incurred.(15]
"By its very nature, an action for professional negligence in the preparation and
conduct of specific litigation involves matters calling for special skill or knowledge--
proper subjects for expert testimony."16 Consequently, "[e]xpert testimony is often
required to determine whether an attorney's duty of care was breached in a legal
professional negligence action."17
Generally,"mere errors in judgment or in trial tactics do not subject an attorney
to liability for legal malpractice."18 And, contrary to Harbord's allegations, violations of
the Washington Rules of Professional Conduct will not support an independent cause
of action against an attorney:19
Harbord's allegations against Bean appear to arise out of Bean's agreement to
a stipulated protective order(SPO)that counsel for Safeway proposed while Harbord
I was pending in federal district court. The SPO governed how both parties would
treat confidential information. Harbord further alleges that Bean failed to
communicate with her before agreeing to the SPO and later made her sign an
agreement to the SPO under duress.
15 Hizev.v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646(1992).
16 Walker v. Bangs, 92 Wn.2d 854, 857-58, 601 P.2d 1279 (1979).
17 Geer v. Tonnon, 137 Wn. App. 838, 851, 155 P.3d 163(2007).
18 Halvorsen v. Ferguson, 46 Wn. App. 708, 717, 735 P.2d 675 (1986).
19 Hizey, 119 Wn.2d at 259.
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No. 73895-0-1/8
Here, Bean satisfied his initial burden on summary judgment. In a supporting
declaration, Bean stated that in his 20 years of practicing employment law, he had
routinely entered into SPOs. He explained that the SPO was consistent with the
model SPO for federal district court, did not restrict discovery, was favorable to
Harbord because her medical record remained confidential, and did not normally call
for a party's signature before entry.
In response to the summary judgment motion, Harbord failed to submit or
identify any evidence or expert testimony raising even the slightest inference that
Bean's actions related to the SPO had breached a duty of care.
Moreover, Washington courts use "but for" causation to determine proximate
cause in a legal malpractice action.2° The plaintiff must demonstrate that "but for the
attorney's negligence, he or she would have prevailed or obtained a better result in
the underlying litigation."21 Proximate cause is generally a question of fact.22 But
where, as here, reasonable minds could not differ, we may determine proximate
cause as a matter of law.23
20 Geer, 137 Wn. App. at 844.
21 Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey PC, 180 Wn. App. 689,
707, 324 P.3d 743(2014).
22 Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 864, 147 P.3d 600(2006).
23 Smith, 135 Wn. App. at 864.
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No. 73895-0-1/9
After Harbord began representing herself in federal district court in Harbord 1,
the trial judge expressly noted that the SPO "will not hinder Plaintiffs presentation of
her case." The district court later vacated the SPO.
The trial court eventually dismissed Harbord's claims in Harbord I because she
failed to demonstrate a material factual issue and failed to comply with discovery
orders. Nothing in the record suggests that the SPO or Bean's representation had
any effect on the outcome of Harbord I.
Because Harbord failed to demonstrate material factual issues about breach of
the duty of care and proximate causation, the trial court properly granted summary
judgment in Bean's favor.
Safeway Defendants
Harbord has failed to present any meaningful argument identifying the nature
of her claims against the Safeway defendants. To the extent that she repeats her
allegations of wrongful termination and discrimination against Safeway and its
employees, res judicata bars her claims.
The doctrine of res judicata bars a claim if that claim was or could have been
raised in earlier litigation in which there was identity of(1) subject matter,(2) cause of
action,(3) persons and parties, and (4) quality of persons.24 The parties to the earlier
action must have litigated it to a final judgment on the merits.25 "A grant of summary
24 Loveridqe v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898(1995).
25 Hisle, 151 Wn.2d at 865.
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No. 73895-0-1/10
judgment is a final judgment on the merits with the same preclusive effect as a full
trial."26 We review de novo whether res judicata applies.27
In Harbord 1, Harbord alleged claims of wrongful discharge against Safeway
under the WLAD. To the extent that we can ascertain, Harbord makes the same
factual allegations and claims of discrimination, retaliation, and harassment against
Safeway and its employees in this case that she made in Harbord I. Although
Harbord did not name the three individual Safeway employees as defendants in
Harbord 1, the employer/employee relationship alleged here is sufficient to establish
privity for purposes of res judicata.28 Under the circumstances, Harbord I and
Harbord II involved the same subject matter, cause of action, parties, and qualities of
persons. Harbord's claims as to Safeway and the three Safeway employees were
therefore barred by res judicata.
In addition, Harbord's claims for wrongful termination and discrimination
accrued no later than May 6, 2011, when Safeway fired her.29 The three-year statute
of limitations for discrimination claims under the WLAD had therefore expired by the
time Harbord filed this action on September 26, 2014.3° To the extent that Harbord's
26 DeYoung v. Cenex Ltd., 100 Wn. App. 885, 892, 1 P.3d 587(2000).
27 Emeson v. Dep't of Corr., 194 Wn. App. 617, 626, 376 P.3d 430 (2016).
28 Ensley v. Pitcher, 152 Wn. App. 891, 902, 222 P.3d 99 (2009).
26 See Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 816, 818 P.2d
1362(1991).
30 See Milligan v. Thompson, 90 Wn. App. 586, 591, 953 P.2d 112 (1998); RCW
4.16.080(2).
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No. 73895-0-1/11
vague allegations of damage to reputation and personal injuries during employment
could be construed as claims, the applicable statutes of limitation would be no longer
' The trial court properly determined that Harbord's claims against
than three years.3
Safeway and the Safeway employees were time barred.
Harbord also failed to identify any basis for her claims against Safeway's
attorney. She apparently takes issue with some of counsel's actions while
representing Safeway during Harbord 1, but she fails to identify any factual or legal
basis for liability.
The trial court properly dismissed all claims against the Safeway defendants
on summary judgment.
Sanctions
On appeal, Harbord makes no legal challenge to the trial court's imposition of
CR 11 sanctions. Nonetheless, substantial evidence supports the trial court's
findings that Harbord's complaints were not well-grounded in fact, that she did not
conduct a reasonably competent inquiry into the law or facts to support her
complaints, and that she pursued her claims for the purposes of harassing the
Safeway defendants and needlessly increasing their costs of litigation. The trial court
did not abuse its discretion in imposing CR 11 sanctions. 32
31 See, e.g., RCW 4.16.080(2) (three-year statute of limitation for personal
injuries); RCW 4.16.100(1)(two-year statute of limitations for defamation).
32 Bldg. Indus. Ass'n. of Wash. v. McCarthy, 152 Wn. App. 720, 745, 218 P.3d
196(2009)(CR 11 sanctions reviewed for an abuse of discretion).
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Harbord makes vague allegations that she did not receive certain documents
that Safeway filed, despite proper proof of service, and that she did not have enough
time to file responses to the motions for summary judgment. But the record shows
that the trial court gave Harbord additional time to respond to the summary judgment
motions and considered all the materials she filed, whether or not they were timely.
Harbord fails to identify any issue warranting appellate review.
Attorney Fees on Appeal
The Safeway defendants request an award of attorney fees under RAP
18.9(a) for a frivolous appeal. "An appeal is frivolous if the appellate court is
convinced that the appeal presents no debatable issues upon which reasonable
minds could differ and is so lacking in merit that there is no possibility of reversal."33
The record here satisfies this standard.
Harbord made no meaningful effort to provide a factual or legal argument or
supporting evidence in response to the summary judgment motion. Despite clear
warnings of the consequences, she persisted in pursuing the identical claims against
Safeway that the court rejected in Harbord I. Under the circumstances, the record
provides no conceivable basis for a material factual dispute.
33 In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929(1997).
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CONCLUSION
The trial court orders dismissing Harbord's claims on summary judgment are
affirmed. The Safeway defendants are awarded reasonable attorney fees on appeal,
subject to compliance with RAP 18.1(d).
WE CONCUR:
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