Charles Rodrick, Et Ano. v. Susan Galvez ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHARLES RODRICK, an individual, No. 76864-6-I
Plaintiff, DIVISION ONE
BRENT OESTERBLAD, an individual,
Appellant,
V.
SUSAN K. GALVEZ, NICHOLAS
MAIETTA, EDWIN KEITH JOHNSON,
GLENN ALEXANDER WYRICK, and UNPUBLISHED OPINION
ADAM GALVEZ,
Respondents,
ABC PARTNERSHIPS I-X, DEF
LIMITED LIABILITIES COMPANIES I-X,
XYZ CORPORATIONS I-X, and
DANIEL and JENNIFER VAN WAES,
Defendants. FILED: April 22, 2019
SCHINDLER, J. — Brent Oesterblad appeals the summary judgment dismissal of
his claims against Susan and Adam Galvez, Nicholas Maietta, and Edwin Johnson and
the CR 12(b)(6) dismissal of his claims against Glenn Wyrick. Because Oesterblad
does not provide an adequate record for review or attempts to raise issues for the first
time on appeal, we affirm.
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The inadequacy of the record makes it difficult to ascertain the factual
background. Apparently, Susan and Adam Galvez, Nicholas Maietta, Edwin Johnson,
and Glenn Wyrick filed a lawsuit in Arizona against Brent Oesterblad and Charles
Rodrick related to their ownership of websites featuring plaintiffs or their family
members. Following the Arizona litigation, Oesterblad and Rodrick filed a lawsuit in
King County Superior Court against Washington resident Susan Galvez and various
“John Doe” defendants, alleging defamation, trade libel, abuse of process, false light
invasion of privacy, and negligent and/or intentional infliction of emotional distress. The
complaint also sought injunctive relief and damages, including punitive damages.
Oesterblad later filed notices naming Maietta, Johnson, Wyrick, Daniel and
Jennifer Van Waes (collectively, Van Waes), and Adam Galvez as the John Doe
defendants. Oesterblad did not amend the complaint.1 Maietta, Johnson, Wyrick, and
Van Waes are not Washington residents.
Susan and Adam Galvez (collectively, Galvez) filed and noted a motion for
summary judgment dismissal forApril 7, 2017. Van Waes filed and noted a CR 12(b)(6)
motion to dismiss for the same day.
On February 24, Wyrick, acting pro se, sent a letter to the court asking to be
dismissed as a defendant. The letter states, in pertinent part, “I am requesting
‘DISMISSAL FROM THIS CASE BASED ON A LACK OF PERSONAL JURISDICTION’.
I have never lived in the state of Washington. I have never worked there. I have never
conducted business there.”
1 Oesterblad does not designate the complaint as part of the record on appeal.
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In response, the court sent an e-mail to Wyrick and all the parties stating, ‘[Ajil
requests for action from the Court must be made by means of a motion, properly filed
for the record and served on all parties and the Court in compliance with applicable
rules.” But the e-mail notes:
[T]his Court has already scheduled a motion to dismiss on behalf of two
other defendants in this matter for 10:00 a.m. on Friday, April 7. It is not
too. late for me to add your motion to that date, for argument to the Court
at the same time. Again, however, you will need to follow-up with a
motion to the Court, filed and served no fewer than 28 days in advance of
the hearing.
On March 15, 2017, Wyrick filed a “Notice to Join Motions to Dismiss.” Wyrick
states, “I join the Motions of Susan & Adam Galvez and Jennifer & Daniel Van Waes to
dismiss this lawsuit for the same reasons that they have identified.”
On March 24, Maietta, acting pro se, filed a motion to dismiss under CR 12(b)(2),
stating, “[Tjhis Court does not have personal jurisdiction over me as I am a resident of
California, having never worked or lived in the State of Washington.”
Citing Hewitt v. Hewitt, 78 Wn. App. 447, 896 P.2d 1312 (1995), on March 27,
Oesterblad and Rodrick filed a motion to voluntarily dismiss Van Waes under CR
41(a)(1)(B). In Hewitt, we held a court lacks personal jurisdiction over out-of-state
defendants in a defamation action by a Washington resident when none of the
defendants performed any acts related to the case in Washington. Hewitt, 78 Wn. App.
at 453-5 5.
On March 29, the court struck Wyrick’s March 15, 2017 motion to join the Galvez
and Van Waes motions as untimely. The order states, ‘The Court will consider only
Defendant Wyrick’s letter motion requesting dismissal dated February 24, 2017.”
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No. 76864-6-1/4
On March 31 Johnson, acting pro se, filed a motion to join the Galvez summary
judgment motion and the Van Waes CR 12(b)(6) motion. The motion states:
Defendant Johnson is a legal resident of the State of Tennessee,
has never had a physical presence in the State of Washington, nor plans
to ever visit the State of Washington nor has he ever conducted or will
conduct business in the State of Washington.
The court granted the motion to dismiss Van Waes under CR 41(a)(1)(B). The
court also dismissed the claims against Wyrick. ‘CR 41 has not been brought as to Mr.
Wyrick, but the Court is going to grant Mr. Wyrick’s request. Again, there is absolutely
no evidence that there is any basis for personal jurisdiction as to Mr. Wyrick.” The court
granted summary judgment dismissal of the claims against Galvez, Maietta, and
Johnson as barred by res judicata and compulsory counterclaims under CR 13(a) in the
Arizona lawsuit. Oesterblad appeals.
We note nearly all the parties are pro se in this appeal. Pro se litigants on appeal
are held to the same standards as attorneys and are bound by the same rules of
procedure and substantive law. In re Marriage of Olson, 69 Wn. App. 621, 626, 850
P.2d 527 (1993).
Oesterblad contends the court erred in granting summary judgment dismissal of
his claims against Galvez as barred by res judicata.
In Washington, res judicata applies where a prior final judgment is identical to the
challenged action “in (1) subject matter, (2) cause of action, (3) persons and parties,
and (4) the quality of the persons for or against whom the claim is made.” Loveridge v.
Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995). Oesterblad argues there
was no final judgment in the Arizona litigation or the subject matter and parties are not
identical.
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No. 76864-6-1/5
We review summary judgment de novo. Citizens All, for Prop. Rights Legal Fund
v. San Juan County, 184 Wn.2d 428, 435, 359 P.3d 753 (2015). Summary judgment is
proper when there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c); Scrivener v. Clark CoIl., 181 Wn.2d
439, 444, 334 P.3d 541 (2014). If the nonmoving party ‘‘fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,’ “then the court should grant
summary judgment. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182(1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986)).
In order to conduct a de novo review of the superior court summary judgment
decision, we must review the pleadings submitted and considered by the superior court.
See RAP 9.1. The appellant has the burden of perfecting the record so that the court
has before it all the evidence relevant to the issue raised on appeal. In re Marriage of
Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266 (1990). An insufficient appellate record
precludes review of the alleged errors. Bulzomi v. Dept of Labor & Indus., 72 Wn. App.
522, 525, 864 P.2d 996 (1994).
Oesterblad did not designate on appeal the summary judgment motion or any of
the responsive pleadings. The record is inadequate to review or address summary
judgment dismissal.
Oesterblad also asserts the court erred in dismissing his claims against Maietta,
Johnson, and Wyrick under CR 12(b)(6). Oesterblad contends the motions to dismiss
were untimely filed and violated local court rules that require a calendar note and the
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No. 76864-6-1/6
moving party’s address.2 Oesterblad argues it was inappropriate for the court to
consider the motions because the court had stricken several of his motions on the same
grounds. Because Oesterblad did not raise any of these procedural arguments below,
we decline to address these arguments on appeal. RAP 2.5(a) (‘The appellate court
may refuse to review any claim of error which was not raised in the trial court.”).
We affirm dismissal of the claims against Galvez, Maietta, Johnson and Wyrick.3
-.----~
WE CONCUR:
K
2 Qesterblad also contends the court was precluded from considering Maietta s mot on to dismiss
because Maietta had already answered the complaint. Oesterblad cites no authority in support of this
argument.
~ Oesterblad filed a motion to strike Wyrick’s response brief on the grounds that it is “untimely
redundant immaterial impertinent and violates RAP 1 O.3(a)(6) We deny the motion.