Margaret Bozgoz, V Youssef Essakhi ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 15, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARGARET BOZGOZ, as Personal No. 50381-6-II
Representative of the Estate of Evalani A.
Yockman and Elda Yockman, Daughter of
Evalani A. Yockman,
Appellant,
v. UNPUBLISHED OPINION
YOUSSEF ESSAKHI and JANE DOE
ESSAKHI, husband and wife, individually and
as the marital community composed thereof,
and LIFE TRANSPORTATION INC., a
Washington corporation insured by Zurich
Insurance,
Respondents.
SUTTON, J. — Margaret Bozgoz appeals the superior court’s order striking her complaint
under CR 11 and dismissing her action with prejudice. The superior court did not err because
Bozgoz may not bring a pro se action on behalf of an estate or on behalf of another individual,
even though Bozgoz was granted a durable power of attorney. Bozgoz also raises numerous
additional issues that lack merit. Accordingly, we affirm the superior court’s order striking
Bozgoz’s complaint and dismissing her action.
FACTS
On October 26, 2016, Bozgoz filed a complaint in Pierce County Superior Court against
Youssef Essakhi, Life Transportation, Inc., and Zurich Insurance Company (the defendants) for
negligence, wrongful death, discrimination, and survival actions as the personal representative of
No. 50381-6-II
Evalani Yockman’s estate and on behalf of Elda Yockman, Evalani’s daughter.1 Bozgoz is not a
member of the Washington State Bar Association, nor is she licensed to practice law in any state.
On December 15, the defendants filed a motion to strike the complaint under CR 11, which
requires all pleadings to be signed by an attorney or a pro se litigant. The defendants argued that
Bozgoz was not a proper pro se litigant because she was representing an entity (the estate) and the
interests of another person (Elda). Bozgoz filed a response, which included a request for a
continuance. Bozgoz argued that she was required to file the complaint herself because their
attorney quit working on the case three weeks before the statute of limitations expired. She also
requested a 90 day continuance to obtain an attorney.
On December 23, the superior court held a hearing on the defendants’ motion to strike.
The superior court granted the defendants’ motion to strike the complaint and dismissed the action
with prejudice because the statute of limitations had expired.
On December 27, Bozgoz filed a motion to reconsider. Bozgoz presented a durable power
of attorney from Elda authorizing Bozgoz to act on Elda’s behalf. Bozgoz argued that the power
of attorney authorized her to assert Elda’s right to act pro se. Bozgoz also stated, “According to
the ADA of 1990, Persons with Disabilities are allowed to participate in court hearings and trials.”
Clerk’s Papers (CP) at 65.
On February 21, 2017, the superior court denied Bozgoz’s motion to reconsider. On
February 24, Bozgoz appeared at court although there was no hearing scheduled. However, the
superior court agreed to explain why it granted the motion to strike and why it denied the motion
1
We refer to parties with the same last name by their first names for clarity. We intend no
disrespect.
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No. 50381-6-II
to reconsider. The superior court reaffirmed its decision to deny Bozgoz’s motion to reconsider.
Bozgoz appeals.
ANALYSIS
Bozgoz argues that the superior court erred by striking her complaint and denying her
motion to reconsider because she represented Evalani’s estate as the personal representative and
she had durable power of attorney for Elda. However, neither fact gives her the authority to file a
pro se action because pro se actions are personal and may not be brought on behalf of an entity or
another person. Accordingly, the superior court did not err by striking Bozgoz’s complaint and
denying her motion to reconsider.
I. MOTION TO STRIKE UNDER CR 11
We review a superior court’s ruling striking a complaint under CR 11 for an abuse of
discretion. In re Guardianship of Lasky, 54 Wash. App. 841, 852, 776 P.2d 695 (1989). CR 11
states,
Every pleading, motion, and legal memorandum of a party represented by an
attorney shall be dated and signed by at least one attorney of record in the attorney’s
individual name, whose address and Washington State Bar Association
membership number shall be stated. A party who is not represented by an attorney
shall sign and date the party’s pleading, motion, or legal memorandum and state
the party’s address.
Therefore, under CR 11, every pleading must be signed by an attorney who is a member of the
Washington State Bar Association or by a pro se litigant. It is undisputed that Bozgoz is not a
member of the Washington State Bar Association. Therefore, the salient issue is whether Bozgoz
had the authority to bring a pro se action on behalf of Evalani’s estate or Elda.
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No. 50381-6-II
A. PRO SE ACTION ON BEHALF OF EVALANI’S ESTATE
The long-standing rule is that, with limited exception, Washington law requires individuals
appearing before the court on behalf of another party or entity to be licensed in the practice of law.
No on I-502 v. Wash. NORML, 193 Wash. App. 368, 372-73, 372 P.3d 160, review denied, 186
Wash. 2d 1025 (2016). Recently, we explained the scope of the “pro se” exception to this general
rule:
There is a recognized “pro se exception” to these general rules where a
person may appear and act in any court as his own attorney without threat of
sanction for unauthorized practice. But this pro se exception is limited, applying
only if the layperson is acting solely on his own behalf with respect to his own legal
rights and obligations.
No on I-502, 193 Wash. App. at 373 (internal citations and quotation marks omitted). It is well-
established that the pro se exception does not apply to entities such as corporations and limited
liability companies, even when there is only a sole stakeholder in the entity. Lloyd Enters., Inc. v.
Longview Plumbing & Heating Co., 91 Wash. App. 697, 701, 958 P.2d 1035 (1998); Cottringer v.
Emp’t Sec. Dep’t, 162 Wash. App. 782, 788-89, 257 P.3d 667 (2011); Dutch Vill. Mall, LLC v.
Pelletti, 162 Wash. App. 531, 539, 256 P.3d 1251 (2011). And in No on I-502, we held that a citizen
could not bring a pro se action under the Fair Campaign Practices Act 2 because the action was
filed in the name of the State and, therefore, the citizen represented the State’s interests rather than
his own. 193 Wash. App. at 373-75.
Here, Bozgoz is appointed the personal representative of Evalani’s estate and acted in that
capacity when filing her complaint. Therefore, Bozgoz was acting on behalf of the estate, not on
2
Ch. 42.17A RCW.
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No. 50381-6-II
behalf of herself at the time she signed the complaint. In addition, because Elda is the beneficiary
of Evalani’s estate, Bozgoz is representing Elda’s interests as well. Because Bozgoz was not
representing her own interests at the time that she signed the complaint on behalf of Evalani’s
estate, she could not act as a pro se litigant. Therefore, the superior court did not abuse its
discretion by striking the complaint under CR 11.
B. PRO SE ACTION ON BEHALF OF ELDA
Bozgoz argues that the superior court erred by denying her motion to reconsider because
she presented evidence that Elda granted her a durable power of attorney. However, a durable
power of attorney does not convey the authority to act pro se on another’s behalf. Accordingly,
the superior court did not err by denying Bozgoz’s motion to reconsider.
A grant of power of attorney does not authorize a person to appear in court on behalf of
another party. State v. Hunt, 75 Wash. App. 795, 805, 880 P.2d 96 (1994). Although Bozgoz was
granted a durable power of attorney, the power of attorney does not allow her to bring a pro se
action on Elda’s behalf. Accordingly, the superior court did not abuse its discretion in granting
the motion to strike or denying the motion to reconsider.
II. BOZGOZ’S ADDITIONAL ARGUMENTS
Bozgoz raises numerous procedural and substantive issues primarily unrelated to the
substantive decision made in this case including: (1) arguments under CR 60, (2) conflict of
interest, (3) denial of reasonable accommodations, (4) discrimination, (5) altered transcripts, (6)
improper dismissal of a civil rights action, (7) defendants’ failure to personally appear and testify,
(8) misconduct by opposing counsel, (9) violation of constitutional rights, and (10) improper award
of attorney fees to the defendants. These claims are unsupported by the record or lack merit.
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No. 50381-6-II
A. CR 60(b)
Throughout her brief, Bozgoz references CR 60, a superior court civil rule providing for
relief from final judgments and orders. Specifically, Bozgoz relies on CR 60(b)(4), relating to
fraud, and CR 60(b)(5), relating to a void judgment. However, any issues regarding CR 60(b) are
not properly before us because Bozgoz did not file a CR 60(b) motion.
CR 60(b) provides that “[o]n motion and upon such terms as are just, the court may relieve
a party or the party’s legal representative from a final judgment, order, or proceeding.” However,
Bozgoz did not file a CR 60(b) motion for relief from the final order. Therefore, the trial court did
not make a ruling or enter an order on CR 60(b). Because there is no order addressing any
CR 60(b) ruling, we decline to address any issue related to fraud or a void order under CR 60(b).
B. JUDICIAL CONFLICT OF INTEREST
Bozgoz asserts that the superior court judge had an undisclosed conflict of interest based
on a relationship with Zurich Insurance. Bozgoz appears to rely on Forsyth v. Zurich Person UIM,
noted at 159 Wash. App. 1047 (2011), in which the superior court judge, then in private practice,
litigated a case against Zurich Insurance.
Under the appearance of fairness doctrine, a judicial proceeding is valid only if a
reasonably prudent, disinterested observer would conclude that the parties received a fair,
impartial, and neutral hearing. Neravetla v. Dep’t of Health, 198 Wash. App. 647, 670, 394 P.3d
1028, review denied, 189 Wash. 2d 1010 (2017). A judge must be impartial in both fact and
appearance. Neravetla, 198 Wash. App. at 670. The party alleging a violation of the appearance of
fairness must show evidence of the judge’s actual or potential bias. Neravetla, 198 Wash. App. at
670.
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No. 50381-6-II
Bozgoz has not met her burden to show evidence of the superior court judge’s actual or
potential bias. All Bozgoz has shown is that the superior court judge acted as opposing counsel in
a case against Zurich Insurance. A reasonably prudent, disinterested observer would not believe
that this single case created any actual or potential bias toward Zurich Insurance. Accordingly,
Bozgoz’s claim that the superior court judge’s order should be reversed because of his bias or
conflict of interest lacks merit.
C. REASONABLE ACCOMMODATIONS
Bozgoz argues that the superior court improperly denied her requests for reasonable
accommodations. She claims that she filed a request for reasonable accommodations with the trial
court under GR 33. However, there is no request for reasonable accommodations in the record
before us on appeal. The record also does not include an order denying a request for reasonable
accommodations under GR 33.
Under RAP 9.6(a), it is the appellant’s responsibility to designate all clerk’s papers that are
necessary to resolve the issues raised on appeal. Because Bozgoz failed to designate the portions
of the record necessary to review her allegation that the superior court improperly denied her
request for reasonable accommodations, we decline to address this issue.
D. DISCRIMINATION
Bozgoz asserts that both she and Elda suffer disabilities and are protected from
discrimination under the Americans with Disabilities Act of 1990. Bozgoz claims that the trial
court discriminated against her and Elda by (1) making them participate in a court hearing on
December 23, (2) disconnecting the court call during the hearing on December 23, and (3) striking
the complaint and dismissing the action. These claims lack merit.
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No. 50381-6-II
First, Bozgoz has not demonstrated that she or Elda were discriminated against by
scheduling the hearing for December 23. Bozgoz appears to assert that the action was
discriminatory because December 23 was in the middle of the holiday season, only two days before
Christmas. However, there is no indication that Bozgoz was treated differently than anyone else
or that the scheduling of the hearing was related to Bozgoz’s disability. December 23 was a regular
court day in which court was in session. And to whatever extent Bozgoz was inconvenienced by
a hearing during the holidays, the same likely applied to the superior court judge and opposing
counsel, who all also participated in the hearing on the same day.
Second, Bozgoz claims that she was discriminated against because the superior court
disconnected the court call prior to the end of the hearing on the motion to strike. Assuming that
Bozgoz’s court call was in fact disconnected, the following exchange is all that occurred after the
final time Bozgoz spoke on the record:
[COURT]: Ms. Bozgoz, I accept that all you say is true. What I’m telling you is
the law compels me to strike your complaint.
I’m sorry about the circumstances that you found yourself in. I recognize
you did what you could do. But, like I said, I don’t make this up as I go.
So I have signed the order striking your complaint. Ms. Fleming, if you
could sign the presentation for me.
[FLEMING]: Yes, Your Honor.
[COURT]: You will provide Ms. Bozgoz a copy of the order?
[FLEMING]: I will.
[COURT]: Would you like a copy of the order, ma’am?
[ELDA]: I don’t understand.
[COURT]: I explained what I’m doing. That’s the best I can do for you. Do you
want a copy of the order?
[ELDA]: Please.
[COURT]: Thank you.
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No. 50381-6-II
Verbatim Report of Proceeding (Dec. 23, 2016) at 6. Bozgoz asserts that after the court call was
disconnected, the trial court told Elda that Elda should have filed the complaint herself. And
Bozgoz asserts that if she had been on the court call, she would have been able to clarify that she
had a durable power of attorney authorizing her to act on Elda’s behalf. However, Bozgoz’s
assertion is not supported by the record and, for the reasons explained above, the durable power of
attorney does not allow Bozgoz to act pro se on Elda’s behalf. Therefore, even if the superior
court disconnected Bozgoz from the court call prior to the end of the hearing, that does not provide
grounds for reversing the superior court’s order.
Third, Bozgoz states that the superior court discriminated against her by striking her
complaint. But, for the reasons explained above, the superior court properly struck Bozgoz’s
complaint for violating CR 11. Bozgoz’s disability does not absolve her of compliance with the
law or applicable court rules, nor does it provide grounds for allowing her to engage in the
unauthorized practice of law. The superior court did not discriminate against Bozgoz by properly
applying CR 11 and the relevant law to Bozgoz’s improper complaint.
E. ALTERED TRANSCRIPTS
Bozgoz also raises several issues related to the accuracy of the transcripts. RAP 9.5(c)
governs objections to verbatim reports of proceedings. RAP 9.5(c) provides,
A party may serve and file objections to, and propose amendments to, a narrative
report of proceedings or a verbatim report of proceedings within 10 days after
receipt of the report of proceedings or receipt of the notice of filing . . . . If
objections or amendments to the report of proceedings are served and filed, any
objections or proposed amendments must be heard by the trial court judge before
whom the proceedings were held for settlement and approval, except objections to
the form of a report of proceedings, which shall be heard by motion in the appellate
court.
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No. 50381-6-II
Here, Bozgoz has failed to comply with any of the provisions of RAP 9.5(c). She did not file an
objection to the verbatim report of proceedings within 10 days of the notice of filing the verbatim
report of proceedings. Accordingly, we decline to address Bozgoz’s allegations that the verbatim
reports of proceedings have been altered.
F. DISMISSAL
Bozgoz also asserts that the superior court erred by dismissing her complaint because it is
improper to dismiss a discrimination complaint that has merit. However, Bozgoz has not cited any
valid legal authority to support this alleged rule. We will not consider arguments unsupported by
legal authority. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809,
828 P.3d 549 (1992). Accordingly, we decline to consider Bozgoz’s argument that the superior
court could not dismiss a discrimination complaint that she alleges has merit.
G. DEFENDANTS’ FAILURE TO APPEAR AND TESTIFY
Bozgoz takes issue with the fact that the defendants have failed to appear at the court
hearings and have not testified. However, the defendants are represented by counsel, and there is
no requirement that the defendants appear at a hearing for a motion to strike a complaint. And the
hearing on the motion to strike the complaint did not require any testimony from the defendants.
Therefore, Bozgoz’s claim that reversal is required because the defendants failed to appear at the
hearing and testify lacks merit.
H. DEFENDANTS’ ATTORNEYS’ CONDUCT
Bozgoz alleges that opposing counsel committed misconduct by (1) not presenting
evidence they were licensed attorneys, (2) tricking her into signing an email service agreement
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No. 50381-6-II
that they failed to comply with, (3) testifying on behalf of their clients, and (4) failing to inform
the superior court of the durable power of attorney.
First, opposing counsel signed their pleadings with their Washington State Bar Association
membership numbers as required by CR 11. Accordingly, this claim lacks merit.
Second, the email service agreement is not in the record before this court. Therefore, we
decline to review it.
Third, opposing counsel did not testify on behalf of their clients. There was no testimony
taken in this case. Accordingly, this claim lacks merit.
Fourth, regardless of whether opposing counsel had knowledge of the durable power of
attorney, its existence was immaterial to the merits of the motion to strike because the durable
power of attorney does not authorize Bozgoz to act pro se on Elda’s behalf. Therefore, opposing
counsel did not make material misrepresentations to the court by failing to disclose the durable
power of attorney.
I. CONSTITUTIONAL RIGHTS
Bozgoz claims that the superior court violated her constitutional right to proceed pro se by
striking the complaint. Bozgoz also claims that the superior court violated her First Amendment
rights by refusing to allow her hired videographer to record the proceedings on February 24.
Although there is a constitutionally recognized right to appear pro se, Bozgoz is not
asserting that right and, therefore, it cannot have been violated. The right to proceed pro se extends
to valid pro se actions in which the layperson is representing her own interests. As explained
above, Bozgoz is attempting to represent the interests of an entity and another person, which is not
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No. 50381-6-II
a pro se action. Accordingly, the superior court did not violate her constitutional right to proceed
pro se by striking her complaint.
And Bozgoz has not demonstrated that refusing to allow videotaping of courtroom
proceedings (1) implicates the First Amendment or (2) requires reversal of the superior court’s
order striking her complaint. The First Amendment protects the right to speech, expression,
association, and religion. U.S. CONST. amend. I. Bozgoz has not cited any authority supporting
her assertion that she has a First Amendment right to videotape court proceedings. Accordingly,
her First Amendment claim lacks merit.
J. ATTORNEY FEES AWARD
Finally, Bozgoz argues that the superior court erred by awarding the defendants their
attorney fees for filing the motion to strike her complaint. The superior court did not err.
CR 11(a) states,
If a pleading, motion, or legal memorandum is signed in violation of this rule, the
court, upon motion or upon its own initiative, may impose upon the person who
signed it, a represented party, or both, an appropriate sanction, which may include
an order to pay to the other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or legal memorandum,
including a reasonable attorney fee.
As explained above, the superior court did not err in concluding that Bozgoz signed the complaint
in violation of CR 11. Accordingly, the superior court did not err by ordering Bozgoz to pay the
defendants’ reasonable attorney fees as a sanction for the violation.
ATTORNEY FEES
Bozgoz requests an award of attorney fees under various court rules and statutes. However,
Bozgoz is not the prevailing party and, therefore, is not entitled to an award of attorney fees.
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No. 50381-6-II
We affirm the superior court’s order granting the defendants’ motion to dismiss under
CR 11.
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.
SUTTON, J.
We concur:
LEE, A.C.J.
WORSWICK, J.
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