Susan Chen And Naixiang Lian v. Kate Halamay, Md. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SUSAN CHEN as parents and
natural guardians of J.L., a minor, No. 76929-4-I
and L.L., a minor, and NAIXIANG
LIAN, as parents and natural (Consolidated with No. 78829-9-I)
guardians of J.L., a minor, and L.L., a
minor, DIVISION ONE
Appellants,
UNPUBLISHED OPINION
V.
KATE HALAMAY, M.D., and
ALLEGRO PEDIATRICS (previously
known as Pediatric Associates), FILED: February 10, 2020
Respondents.
LEACH, J. — Pro se litigants Susan Chen and Naixiang Lian, as parents and
guardians of J.L. and L.L.1 (collectively Chen), appeal the summary judgment dismissal
of their lawsuit against Dr. Kate Halamay and Allegro Pediatrics and the subsequent
denials of their motion for reconsideration and motion to vacate. Chen claims that
questions of fact exist about whether Dr. Halamay acted negligently or in bad faith by
reporting Chen to Child Protective Services (CPS) for suspected child abuse and that
numerous procedural irregularities justify reversal. Because Chen fails to establish
error, we affirm.
1 We grant Chen’s motion to use initials to refer to their minor children.
No. 76929-4-1/2
FACTS
In August 2012, Chen brought her two-year-old son, J.L., to Allegro Pediatrics,
expressing concerns that he might have autism. Staff members provided referrals for
speech therapy, a hearing assessment, and evaluations at the Seattle Children’s
Hospital autism clinic and the Kindering Center. In October 2012, Allegro staff
attempted to follow up with J.L.’s parents to check the status of his progress, as it did
not appear that J.L. had been seen at the autism clinic or at Kindering. But they were
unable to reach the family.
On November 15, 2012, a physical therapist at Seattle Children’s Hospital
assessed J.L. as having some characteristics of a child on the autism spectrum. The
therapist recommended additional therapy and follow-up with the Kindering Center and
faxed her treatment notes to Allegro. J.L.’s family subsequently moved to Oregon for
several months before returning to Washington. While in Oregon, they took J.L. to Dr.
John Green.
On August 31, 2013, Chen again brought J.L. to Allegro, where he was seen for
the first time by Dr. Halamay. Shortly before this visit, laboratory tests ordered by Dr.
Green and performed at Seattle Children’s Hospital indicated abnormal kidney function.
Chen reported that J.L. was exhausted, urinating more than usual, and was interested
only in eating meat. After consulting with a nephrology fellow, Dr. Halamay provided
Chen with an urgent referral order to Seattle Children’s Hospital nephrology clinic. On
September 5, 2013, Chen took J.L. to the nephrology clinic. The doctor indicated that
J.L.’s lab results appeared to be improving and that the prior abnormal results may have
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been obtained at a time that J.L. was dehydrated given his history of diarrhea and
inability to access fluids.” The clinic recommended repeat lab tests in three weeks, with
follow-up at the nephrology clinic if needed.
Chen brought J.L. for a second visit with Dr. Halamay on September 16, 2013.
Chen stated that J.L. was very gassy, sometimes has a “stiff” stomach, and cries a lot.
Although J.L.’s gastroenterologist had recommended constipation medication and stool
studies, Chen did not think J.L. was constipated and did not have the studies done. Dr.
Halamay ordered lab tests, instructed Chen to refrain from restricting J.L from fluids,
and provided a referral to Seattle Children’s Hospital for further neurodevelopmental
evaluation.
On September 19, 2013, J.L.’s speech therapist, Jennifer Dierenfeld, contacted
Dr. Halamay to seek more information about the family. Dierenfeld expressed concern
that J.L. has “extreme sensory dysregulation” and cries inconsolably” during sessions.
She stated that Chen “becomes extremely frustrated” when J.L. cries and “even threw
an object during one of the sessions.” Dierenfeld further stated that another therapist
observed Chen “raise her hand toward [J.L.] but did not actually hit him.” Given this
information, Dr. Halamay planned to recommend to Chen that they enter social and
behavioral therapy and further evaluate J.L.’s sensory issues.
On September 23, 2013, Dr. Halamay called Chen to discuss J.L.’s lab results
and her recommendations. Chen was “extremely concerned” about J.L.’s thyroid lab
values and requested an urgent referral to Dr. Kietter, a pediatric endocrinologist, which
Dr. Halamay provided. Dr. Halamay also discussed Dierenfeld’s concerns about the
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need for sensory and behavioral therapy, but Chen declined. Dr. Halamay asked Chen
to bring J.L for a follow-up visit in the next one to two weeks.
Three days later, Dr. Halamay spoke with a gastroenterology physician’s
assistant at Seattle Children’s Hospital who opined that J.L. should be further evaluated
for abdominal distension and gas issues. Because Chen said she did not want J.L. to
be seen by Seattle Children’s Hospital, Dr. Halamay referred J.L. to Swedish Medical
Center and asked Chen to make a follow-up appointment for J.L. at Allegro within the
next week.
At J.L.’s third visit with Dr. Halamay, on October 7, 2013, Chen reported that J.L.
continued to have abdominal pain and gas which had by then been present for six
weeks. Chen declined Dr. Halamay’s recommendations for J.L. to participate in
development or behavioral therapies or to be seen by the Seattle Children’s Hospital
gastroenterology clinic. Dr. Halamay again recommended that Chen take J.L. to
Swedish Medical Center as an alternative, but Chen said she preferred to take J.L. to
Dr. Arthur Krigsman, a pediatric gastroenterologist in Texas. Chen asked Dr. Halamay
to order a “page-long list of tests” that had allegedly been requested by Dr. Krigsman,
some of which Dr. Halamay had never heard of. Given her unfamiliarity with Dr.
Krigsman and the tests, Dr. Halamay declined. She offered to order an X-ray to check
J.L.’s stool burden, but Chen declined.
On October 19, 2013, J.L. saw Dr. Roberta Winch, another pediatrician at
Allegro. Chen reported that J.L. was tired, sweaty, and had swelling in his knees and
feet. Dr. Winch examined J.L. She determined that he had abdominal pain and
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distension requiring immediate evaluation at the Seattle Children’s Hospital emergency
department. After “significant persuasion,” Chen agreed to take J.L. there immediately.
However, Chen and J.L. did not show.
The following day, an Allegro nurse called Chen to check on J.L. Chen stated
that she did not take J.L. to the emergency department because her other child was sick
but agreed to schedule a follow-up appointment for J.L. if necessary. That afternoon,
Chen took J.L. to the Seattle Children’s Bellevue urgent care clinic. There, providers
recommended that he be seen at the Seattle Children’s Hospital emergency
department. Chen became upset and left the clinic with J.L. against medical advice.
Later that evening, Chen took J.L. to the Seattle Children’s Hospital emergency
department. There, providers noted that J.L. seemed irritable, tired, and limp, with a
distended abdomen and critically abnormal lab results. After further testing and
consultation, providers allowed J.L. to return home on the condition that Chen promptly
follow up on J.L.’s nephrology, gastroenterology, and endocrinology treatment orders.
On October 22, 2013, a Seattle Children’s Hospital nurse contacted Allegro to
express concern that Chen would fail to follow up with J.L.’s treatment plan. The next
day, Dr. Hal Quinn of Mercer Island Pediatrics called Dr. Halamay to express his
concerns about the family. He informed her that Chen had taken J.L. to see him several
times during the time Chen was also bringing J.L. to see Dr. Halamay. And Chen had
also asked him to order long lists of tests. Dr. Quinn felt that J.L. was very sick and
expressed concern that J.L was not receiving appropriate medical attention despite
seeing numerous doctors. Dr. Quinn stated that one of his partners recently saw J.L.
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and recommended that he be seen at the emergency department, but Chen refused.
Dr. Quinn discussed the situation with a gastroenterologist, who expressed great
concern and wanted to see J.L. Dr. Quinn also spoke with Dr. Metz of the Seattle
Children’s Suspected Child Abuse and Neglect (SCAN) team, who recommended that
J.L. be admitted to the hospital. Dr. Halamay later contacted Dr. Metz, who reiterated
that J.L. should be admitted to the hospital to coordinate his care, provide social support
for the family, and to determine whether SCAN team involvement would be necessary.
Chen took J.L. to see Dr. Halamay for the fourth and final time on October 23,
2013. J.L. was tired, with a distended abdomen and abnormal lab values. Chen told
Dr. Halamay she did not want to take J.L. to Seattle Children’s Hospital because she
has ‘no confidence” in them and “{t]hey have not done anything for him.” Dr. Halamay
told Chen she felt admission was medically necessary, but Chen said she would find
her own specialists. Dr. Halamay told Chen that if she refused to bring J.L. to Seattle
Children’s Hospital, she would need to contact CPS to ensure that J.L. received
necessary medical attention. Chen became angry and left with J.L.
Dr. Halamay concluded that J.L. had significant and potentially life threatening
renal, abdominal, liver, weight loss, failure to thrive, and gastrointestinal issues, all
without a clear etiology. She further concluded there was a reasonable suspicion that
J.L. was a victim of medical neglect, that J.L.’s parents were not following up on
medically necessary care, and that the gravity of J.L.’s condition prevented any flexibility
delaying diagnostic studies and follow-up examinations. Dr. Halamay therefore
reported concerns of medical neglect to CPS on October 23, 2013.
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No. 76929-4-117
Later that day, a CPS social worker picked up J.L and Chen and transported
them to Seattle Children’s Hospital. A clinical exam showed gross malnutrition and
muscle wasting suspected to result from medical neglect. J.L. was removed from
Chen’s custody, and the Department of Social and Health Services (DSHS) initiated
dependency proceedings.2
After an investigation of Dr. Halamay’s report, the Redmond Police Department
determined probable cause existed to charge Chen with criminal mistreatment in the
second degree. The King County Prosecuting Attorney filed a criminal information
against Chen on January 31, 2014. However, in September 2014, DSHS asked the
court to dismiss the dependency petition based on its finding that Chen did not refuse to
admit J.L. to the hospital against medical advice on October 20, 2013. The court
dismissed J.L.’s dependency action, and J.L. was returned to his parent’s care. The
State also dropped the criminal charge against Susan “due to evidence discovered after
the time of filing.”
On October 24, 2016, Chen filed a lawsuit pro se, asserting claims of medical
negligence against Dr. Halamay and Allegro Pediatrics based on her decision to refer
Chen to CPS.3 Chen alleged that on October 23, 2013, Dr. Halamay misdiagnosed
J.L.’s medical condition, failed to contact J.L.’s main treating physicians, failed to review
his full medical records, and failed to provide accurate information to CPS, resulting in
2 DSHS also initiated dependency proceedings against L.L. but returned him to
his parents’ custody after the hearing.
~ Chen’s claims against Allegro were based on a respondeat superior theory of
liability.
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No. 76929-4-118
J.L.’s wrongful removal from the home and causing emotional and mental pain and
suffering to all four family members and developmental delay and brain damage to J.L.
On December 8, 2016, Dr. Halamay and Allegro moved for summary judgment,
asserting immunity from liability under Washington’s child abuse reporting statute.4 To
support the motion, Dr. Halamay and Allegro produced Dr. Halamay’s declaration,
redacted excerpts from J.L.’s medical records, and a redacted copy of the Redmond
Police Department incident report regarding their investigation following the CPS report.
The court scheduled the summary judgment hearing for January 6, 2017. After
Chen retained counsel, the defendants agreed to reschedule the hearing for February
24, 2017. Then counsel for Chen withdrew. On February 13, 2017, Chen asked for an
eight-month continuance of the summary judgment hearing, which the defendants
opposed. At the hearing, Chen appeared with Twyla Carter, her former attorney from
her criminal matter. Carter told the court that she was not representing Chen but was
appearing as a witness to explain that the case was “complicated” and to assert that
she needed time to help Chen find an attorney. Although Chen had requested a
Mandarin interpreter for the hearing, Carter informed the court that Chen wanted a
Cantonese interpreter. The defendants agreed to a short continuance to obtain an
interpreter. The trial court agreed to appoint an interpreter, granted a three-month
continuance, and rescheduled the hearing for May 12, 2017.
On April 13, 2017, Dr. Halamay and Allegro filed a renewed motion for summary
judgment. Chen failed to file a timely response. On May 10, 2017, Chen filed a notice
~ Ch. 26.44 RCW.
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of unavailability due to a medical problem and requested a continuance of at least two
weeks. The court denied Chen’s request and stated that it would rule on defendants’
motion without oral argument.
On May 11, 2017, the scheduled date for the summary judgment hearing, Chen
e-mailed the court requesting appointment of counsel. After considering the materials
submitted by both parties, including Chen’s most recent e-mail, the court granted
summary judgment in favor of the defendants and dismissed Chen’s claims with
prejudice. In its order, the court noted as follows:
The court excused Ms. Chen from appearing at the summary judgment
hearing on May 11, 2017 pursuant to her notice of unavailability. The
summary judgment had already been continued once before at her
request. The court entered this order on summary judgment based upon
the written filings of the parties.
Chen filed a pro se motion for reconsideration. In support, she attached three
unauthenticated e-mails which were purportedly authored by two of J.L.’s providers and
a copy of an e-mail Chen previously sent to the court. The trial court denied Chen’s
motion. Chen timely filed a notice of appeal seeking review of the orders granting
summary judgment and denying reconsideration.
Chen later asked for appointment of counsel and a guardian ad litem for her
appeal. On February 7, 2018, the Washington Supreme Court denied Chen’s request
for expenditure of public funds. Three weeks later, the trial court appointed a guardian
ad litem for J.L. and L.L. for the limited purpose of “explain{ing] . . . the current status of
the proceedings and what options the minors have at this point.” The guardian ad litem,
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No. 76929-4-1/10
noting that Chen wanted to file a CR 60 motion to vacate, indicated that it would be in
the children’s best interest to appoint counsel to represent them in that matter.
On May 10, 2018, Chen filed a pro se CR 60 motion to vacate the trial court’s
orders granting summary judgment and denying reconsideration. She also filed a
supplemental brief seeking appointment of counsel. The court granted Chen’s request
for appointed counsel for the limited purpose of drafting J.L.’s reply to the defendants’
response and appearing at the show cause hearing to argue on behalf of J.L. After a
hearing, the trial court judge denied Chen’s motion to vacate. Chen filed a pro se
motion to set aside the judgment or, in the alternative, to reconsider the denial of her
motion to vacate, which the court denied. Chen timely appealed these orders, and this
court consolidated Chen’s two appeals.
STANDARDS OF REVIEW
We review a summary judgment order de novo, engaging in the same inquiry as
the trial court.5 We consider all facts and reasonable inferences in the light most
favorable to the nonmoving party and affirm summary judgment only when the evidence
presented demonstrates no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.6 “A material fact is one upon which the outcome
of the litigation depends in whole or in part.”7
~ Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
6 Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
~ Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d
506, 516, 799 P.2d 250 (1990).
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No. 7692 9-4-Ill 1
The application of this standard uses a burden shifting scheme. A party may
meet this burden in one of two ways: it may “‘set[ } out its own version of the facts
or. . . alleg[e] that the nonmoving party failed to present sufficient evidence to support
its case.’”8 If the defendant requests summary judgement and alleges an absence of
material facts supporting the plaintiff’s case, then the burden shifts to the plaintiff to
present a prima facie case for the essential elements of its claim.9
We review a trial court’s denial of a motion for reconsideration, motion for a
continuance, and denial of a CR 60 motion to vacate a judgment for an abuse of
discretion.1° To determine that the trial court abused its discretion, we must find that the
“exercise of discretion was manifestly unreasonable, based on untenable grounds, or
based on untenable reasons.”11
ANALYSIS
A pro se litigant is bound by the same rules of procedure and substantive law as
a licensed attorney.12 With this in mind, we proceed with an analysis of the issues
presented in this case.
Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59,
8
70, 170 P.3d 10 (2007) (quoting Pac. Nw. Shooting Park Ass’n v. City of Seguim, 158
Wn.2d 342, 350, 144 P.3d 276 (2006)).
~ Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
10 Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d 674, 685, 41
P.3d 1175 (2002) (motion for reconsideration); Turner v. Kohler, 54 Wn. App. 688, 693,
775 P.2d 474 (1989) (motion for a continuance); Mitchell v. Wash. State Inst. of Pub.
Policy, 153 Wn. App. 803, 821, 225 P.3d 280 (2009) (motion to vacate).
11 Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
12 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993); Westberg
v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).
—11—
No. 76929-4-1/12
Summary Judgment
Chen argues that the trial court should not have dismissed her claims because
the defendants failed to show the absence of a material issue of fact as to whether Dr.
Halamay’s CPS report met the standard of care and the requirement of good faith
reporting. We disagree.
ROW 26.44.030(1)(a) requires “any practitioner” to report to “the proper law
enforcement agency or to the department” whenever they have “reasonable cause to
believe that a child has suffered abuse or neglect.” ROW 26.44.060(1)(a) provides in
part,
[A]ny person participating in good faith in the making of a report pursuant
to this chapter or testifying as to alleged child abuse or neglect in a judicial
proceeding shall in so doing be immune from any liability arising out of
such reporting or testifying under any law of this state or its political
subdivisions.
The reporter has the burden of proving the report was made in good faith.13
Here, Dr. Halamay made a prima facie showing of good faith through her
declaration and supporting documents:
Based upon my experience, training, education and my review of the
medical record for JL, along with my care and treatment of him on multiple
visits, along with the information I was provided regarding JL’s condition
and the concerns that other healthcare providers had of JL’s situation and
concern for medical neglect, and given the gravity of JL’s condition and
the risks that JL’s parents would continue to fail or delay in the obtaining of
essential diagnostic studies and/or medical evaluations in the face of a
life-threatening condition, it is my opinion that the reporting of suspected
medical neglect to CPS was reasonably prudent and required by the
Washington child abuse reporting statutes.
13 Yuille v. State, 111 Wn. App. 527, 533, 45 P.3d 1107 (2002).
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No. 76929-4-1/13
Although Chen asserted that she had “tons of evidence supporting the merits of the
case,” and despite receiving a nearly three-month continuance, she did not engage in
discovery and did not file a substantive response to the defendants’ motion.14 Chen’s
allegations and conclusory statements of fact unsupported by evidence are not
sufficient to establish a genuine issue of fact to overcome summary judgment.15
Chen argues that Dr. Halamay acted in bad faith by failing to consult all
physicians who provided services to J.L. before making her report. She contends that
the eventual dismissal of the dependency and criminal actions proves that Dr.
Halamay’s CPS report was false. “But there is no legal requirement that information
giving rise to a suspicion of child abuse be investigated or verified before it is
reported.”16 The purpose of immunity—to encourage those who suspect child abuse to
report it—”would be undermined if immunity fell with a showing that the report was
unverified or lacked investigation.”17 Because the duty to investigate lies with the
authorities, not the individual making the report, failure to verify or investigate does not
rule out immunity.18 The question is whether the reporter acted “with a reasonable
good faith intent, judged in light of all the circumstances then present.”19 The evidence
14 A party may move for summary judgment before discovery is complete.
Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 685-86, 389 P.3d 476(2017).
15 Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d
298 (1989).
16 Whaley v. State, 90 Wn. App. 658, 668, 956 P.2d 1100 (1998).
17 Yuille, 111 Wn. App. at 534.
18 See RCW 26.44.050; Whaley, 90 Wn. App. at 668.
19 Whaley, 90 Wn. App. at 669 (quoting Dunning v. Pacerelli, 63 Wn. App. 232,
240, 818 P.2d 34(1991)).
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No. 76929-4-1114
supports a reasonable inference, and no contrary inference, that Dr. Halamay met this
standard.
Chen asserts that Dr. Halamay’s acts and omissions constituted medical
negligence. However, ‘to defeat summary judgment in almost all medical negligence
cases, the plaintiffs must produce competent medical expert testimony establishing that
the injury was proximately caused by a failure to comply with the applicable standard of
care.”2° “The expert testimony must establish what a reasonable medical provider
would or would not have done under the circumstances, that the defendant failed to act
in that manner, and that this failure caused the plaintiff’s injuries.”21 Chen did not submit
expert testimony or any other evidence in support of her claim.
Chen next argues that the defendants’ CR 56 summary judgment motion was
transformed into a CR 12(b) motion when they submitted an amended summary
judgment motion containing a footnote alleging lack of personal jurisdiction. She
contends that this footnote requires that we evaluate the summary judgment motion as
if it were a motion to dismiss under CR 12(b), including treating the allegations in her
complaint as if they were established.22 But Chen cites no authority for the proposition
that the inclusion of a footnote referencing a potential jurisdictional defense converts a
substantively based CR 56 motion for summary judgment into a CR 12(b) motion to
dismiss on jurisdictional grounds. To the contrary, motions based on the pleadings are
20Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001).
21Reacian v. Newton, 7 Wn. App. 2d 781, 791, 436 P.3d 411, review denied, 193
Wn.2d 1030 (2019).
22 State v. LG Elecs., Inc., 185 Wn. App. 394, 406, 341 P.3d 346 (2015).
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considered under CR 56 if “matters outside the pleadings are presented to and not
excluded by the court.”23 CR 12(b) does not apply.
Next, Chen argues that the trial court should have provided her with a fair
opportunity to present her case at oral argument. Chen relies on King County Super.
Ct. Local Civ. R. 56(c)(1), which provides that “[t]he court shall decide all summary
judgment motions after oral argument, unless the parties waive argument.” Noting that
‘waiver is the intentional and voluntary relinquishment of a known right,”24 Chen
asserts that her request for a two-week continuance of the hearing for medical reasons
does not constitute waiver and that the procedural irregularity requires reversal. We
disagree.
Here, the trial court ruled that “[g]iven the fact that the matter has already been
continued once before, the Court will rule on the defense motion based upon the
materials already filed on the merits of the underlying motion without oral argument.”
The trial court may deny a motion for a continuance when (1) the
requesting party does not have a good reason for the delay in obtaining
the evidence, (2) the requesting party does not indicate what evidence
would be established by further discovery, or (3) the new evidence would
not raise a genuine issue of fact.[25~
Given that Chen failed to submit evidence or briefing in opposition to summary
judgment despite a three-month continuance and Carter’s assistance, this decision was
not an abuse of discretion. More fundamentally, procedural due process does not
23 CR 12(b)(7); CR 12(c).
24 McLain v. Kent Sch. Dist., No. 415, 178 Wn. App. 366, 378, 314 P.3d 435(2013) (internal quotation marks omitted) (quoting Schroeder v. Excelsior Mcimt. Grp.,
LLC, 177 Wn.2d 94, 106, 297 P.3d 677 (2013)).
25 Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003).
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mandate oral argument on a written motion. ‘Rather, oral argument is a matter of
discretion, so long as the movant is given the opportunity to argue in writing his or her
version of the facts and law.”26 Chen had ample opportunity to advance her arguments
in writing. King County Super. Ct. Local Civ. R. 56(c)(1) does not create a due process
right to oral argument.
Chen next asserts that reversal is required because the trial court judge did not
enter written findings of fact and conclusions of law. But CR 52(a)(5)(B) expressly
provides that findings of fact and conclusions of law are not necessary “[o]n decisions of
motions under rules 12 or 56 or any other motion, except as provided in rules 41(b)(3)
and 55(b)(2).” Cases cited by Chen pertain to judgments entered in cases where
findings are required and thus have no applicability here.
Next, Chen contends that the trial court lacked jurisdiction to dismiss J.L. and
L.L.’s claims with prejudice because the trial court failed to appoint a guardian ad litem
as required by RCW 4.08.050. Chen is mistaken. A parent may initiate a lawsuit as a
guardian on behalf of a minor child.27 RCW 4.08.050(1) provides that a trial court must
appoint a guardian ad litem for children under 14 years of age “upon the application of a
relative or friend of the infant.” Here, Chen and her husband initiated this lawsuit on
behalf of themselves and as parents and natural guardians of J.L. and L.L. They did not
ask the trial court to appoint a guardian ad litem at any time before the court entered the
order granting summary judgment. Chen cites no authority for the proposition that the
26State v. Bandura, 85 Wn. App. 87, 93, 931 P.2d 174 (1997).
27See, e.ci., Taylor v. Enumclaw Sch. Dist. No. 216, 132 Wn. App. 688, 694, 133
P.3d 492 (2006).
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court was obligated on its own initiative to appoint a guardian ad litem because she was
representing herself or because English was not her first language.
Motion for Reconsideration of Order Granting Summary Judgment
Chen argues that the trial court abused its discretion in denying her motion for
reconsideration under CR 59. She contends that the court based its decision on the
following untenable reasons: (1) the court was not required to appoint a guardian ad
litem, (2) Dr. Halamay did not have to rebut allegations that she failed to consult with Dr.
Green before making her report to CPS, (3) a false police report submitted by the
defendants with their summary judgment motion, and (4) denying reconsideration
before she filed a reply to the defendant’s answer.28
We are not persuaded that the trial court erred in denying the motion for
reconsideration on any grounds. As previously discussed, Dr. Halamay met her
summary judgment burden of demonstrating that her report was made in good faith in
light of the circumstances then present. Any deficiencies in the police investigation that
followed do not bear on her intent. The trial court did not err in failing to appoint a
guardian ad item. And Chen cites no authority for the proposition that a trial court must
provide an opportunity for a reply before ruling on a motion for reconsideration.29
28 Although Chen did not specify which subsections of CR 59 apply here, her
arguments appear to encompass CR 59(a)(1), irregularity of the court proceeding; CR
59(a)(7), insufficient evidence supporting decision; CR 59(a)(8), error of law; and CR
59(a)(9), lack of substantial justice.
29 See CR 59(c) (providing that “[tjhe court ~ permit reply affidavits”)
(emphasis added).
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Motion To Vacate
We next address the trial court’s denial of Chen’s motion to vacate. CR 60 exists
to prevent injustices based on “reasons extraneous to the action of the court or for
matters affecting the regularity of the proceedings.”3° The rule provides that a “court
may relieve a party. . . from a final judgment, order, or proceeding” under specified
circumstances. One of these circumstances is “[n]ewly discovered evidence which by
due diligence could not have been discovered in time to move for a new trial under rule
59(b).”31
Chen argues that the trial court failed to properly consider an additional 135
pages of J.L.’s medical records, which she received from Allegro via discovery in other
lawsuits. She contends that these newly discovered records revealed significant
omissions from records defendants submitted to the court in support of their motion for
summary judgment, thus demonstrating that they intentionally and willfully withheld
critical medical information.
In denying Chen’s motion to vacate, the court ruled,
I don’t see any intentional withholding of evidence. I don’t see. that the . .
new evidence [that] has been alleged now couldn’t have been brought
before, or frankly, that it would have changed anything in this case.
I also find that. the case itself is not meritorious.
. . EK]nowing
. . .
the statute involving immunity, this Court can state on the record that
. . .
clearly. the referral was made in good faith and that mandatory
. .
reporting is encouraged to protect children. And for all of those
. . .
reasons, the Court is denying the motion.
30 State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982).
31 CR 60(b)(3).
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No. 76929-4-1119
The court’s reasoning is sound. Because Chen made no discovery requests
before the court granted summary judgment dismissal, she cannot show that the
evidence could not have been discovered earlier by due diligence. The defendants
were under no obligation to provide full copies of J.L.’s medical records in support of
their motion for summary judgment. And given the purposes of the immunity statute,
the court did not err in recognizing that the new records would not have changed the
result.
Chen also argues that the judge who ruled on the CR 60 motion to vacate lacked
authority to hear it because King County Super. Ct. Local Civ. R 60(e)(2) provides that
“the show-cause hearing on the motion shall be scheduled . . . before the Respective
Chief Judge.” However, judges sitting on the superior court in the same county have
identical authority.32 The record indicates that the hearing was originally set before the
chief judge and that the judge who heard the motion received the papers the day before
the hearing because she was “covering for another officer.” No parties objected, and
they agreed to proceed. Under these circumstances, the judge had authority to hear
and rule on the motion.
Chen further argues that the trial court should have allowed Lian an opportunity
to speak at the hearing. But the record shows that Lian did not submit any independent
filings and did not ask to address the court, directly or via his interpreter. The court was
not required to ask Lian whether he wished to be heard.
State ex rel. Camrbell v. Superior Court, 34 Wn.2d 771, 775, 210 P.2d 12332
(1949); State v. Caughlan, 40 Wn.2d 729, 732, 246 P.2d 485 (1952).
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No. 76929-4-1/20
Lastly, Chen argues that the trial court erred in denying her motion to set aside or
reconsider her denial of the motion to vacate. She based this motion on cumulative
error and did not raise any new claims. The court did not abuse its discretion.
CONCLUSION
Because the trial court did not err in granting the defendants’ motion for summary
judgment or in denying Chen’s motions for reconsideration and motion to vacate, we
affirm.
WE CONCUR:
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