Opinion
No. 61697-8-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for Skagit County, No. 05-2-01207-5, Alan R. Hancock, J. Pro Tem., entered April 21, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Agid, JJ.
A thief has no right to possess stolen property. Here, because the evidence submitted in opposition to Whatcom County's motion for summary judgment is "too incredible to be believed," Andrew Rakhshan has failed in his burden to show there are any genuine issues of material fact. Whatcom County is entitled to judgment as a matter of law. We affirm the dismissal with prejudice and impose sanctions against Rakhshan.
Report of Proceedings (January 11, 2008) at 10.
Balise v. Underwood, 62 Wn.2d 195, 200, 381 P.2d 966 (1963).
In November 2003, the Whatcom County Sherriff seized five vehicles from a storage yard in Whatcom County based on the claim that Rakhshan had no right to possess the cars because he obtained them by using fraudulent credit cards. In June 2005, he commenced this conversion action against the County.
In 2005, following unsuccessful cross-motions for summary judgment by the parties, Whatcom County obtained authorization from the trial court for depositions in France pursuant to CR 28(b). The trial court sent a letter of request for international judicial assistance to the French court listing the witnesses to be examined and describing the evidence requested. The list included Rakhshan's relatives, Jean-Pierre Fournier and Francois Dupont, whom he had identified as persons with knowledge of the transactions at issue in acquisition of the cars the County seized. The Higher Level Court of Paris convened an International Rogatory Commission and took testimony from the County's witnesses. Neither Rakhshan's relatives nor Fournier nor Dupont appeared before the Commission. Moreover, Rakhshan failed to submit any questions to the Commission for examination of the witnesses.
Rakhshan then sought the trial court's permission to take depositions of his relatives in London and to present the deposition of Fournier, which Rakhshan alleged that he had taken while Fournier was recently in Canada. The trial court denied Rakhshan's motion and granted the County's motion to strike the Fournier deposition.
In December 2007, Whatcom County moved for summary judgment and requested an award of terms under CR 56(g). Rakhshan responded, and the trial court granted the County's motion, dismissing the complaint with prejudice. Thereafter, the court also denied Rakhshan's post-hearing motion to strike evidence submitted on behalf of the County in support of its motion for summary judgment. The court also awarded Whatcom County a judgment of $27,103.79 against Rakhshan for attorney fees and expenses. The judgment was supported by findings of fact and conclusions of law in support of the fee award under CR 56(g) and CR 11.
Rakhshan appeals.
DISCOVERY AND EVIDENTIARY RULINGS
Rakhshan argues that the trial court abused its discretion in the management of discovery and in the consideration of evidence. Regarding discovery, Rakhshan contends that the trial court erred by allowing the Rogatory Commission's examination of the French witnesses, striking the deposition of Fournier, and granting the County's motion for a protective order prohibiting the depositions of Rakhshan's relatives. He complains that the use of the French procedure prevented him from cross-examining the witnesses and the trial court's refusal to allow him to make alternative arrangements to depose his witnesses improperly prevented him from presenting his evidence. We disagree.
We will not disturb the trial court's rulings on discovery matters absent an abuse of discretion which caused prejudice to a party.
Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991).
On June 15, 2007, the trial court denied Rakhshan's motion to prohibit the examination of the French witnesses, but ordered that he had the "responsibility to follow the process required by French law" to exercise his right to cross-examine the French witnesses. At a hearing on October 26, 2007, Rakhshan admitted that he never sent any questions to the French Rogatory Commission. Because Rakhshan failed to exercise the right to cross-examination specifically provided by the trial court, he fails to establish any abuse of discretion causing prejudice.
Similarly, Rakhshan cannot demonstrate any abuse of discretion in the trial court's decision to prohibit additional depositions of Rakhshan's relatives in England and to strike the Fournier deposition. In its letter of request to the French court, the trial court listed Rakhshan's relatives, Dupont and Fournier, along with the addresses for each as provided by Rakhshan. According to a letter from the French court, the notices sent to Rakhshan's relatives were returned with the notice "Does not live at the address indicated," and a law consultant of the French bank informed the court that Dupont and Fournier did not work at the bank.
At the October 26 hearing, the trial court asked Rakhshan to explain his failure to participate in the French Rogatory Commission or to encourage his witnesses to attend. Rakhshan complained that the French procedure was "lengthy and cumbersome" and he wanted a "face-to-face confrontation" rather than the procedure authorized by the trial court. He claimed that he had arranged for his relatives to be deposed in England without any government involvement and offered to pay for the County's attorney to attend the depositions.
The trial court granted the County's motion for protective order and stated that it would not recognize the Fournier deposition based on Rakhshan's failure to participate in the French procedure. The trial court noted that French authorities had reported that the witnesses and participants of the Rogatory Commission had received death threats and had increased security in response. The court also noted that a declaration from Skagit County Superior Court Judge Susan Cook indicated that she received communications from the Rogatory Commission regarding a fraudulent fax bearing her signature and purporting to cancel the Commission. The court also noted that Rakhshan's proposed depositions in England would not include any governmental authority to verify identities or administer oaths. Finally, the trial court stated:
Your witnesses were subject to French authorities, French oath and possible French prosecution if they perjured themselves in that procedure in France. There is no accountability if they fly to England or to Canada for those depositions. That's specifically why this procedure was put in place. I can't explain, Mr. Rakhshan, why you or your witnesses chose not to participate. I'm not holding you responsible for any death threats. But that did not cancel the procedure in any event. All you had to do was submit your questions in writing.
Report of Proceedings (October 26, 2007) at 18-19.
The trial court has the authority to limit discovery where "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." Rakhshan rejected the opportunity to obtain evidence from witnesses in France through the procedure authorized by the trial court and French law and instead sought to establish his own procedure for taking depositions, apparently designed to circumvent the participation of any objective government authority. The trial court properly limited discovery.
CR 26(b)(1)(B).
As to evidentiary matters, Rakhshan contends that the trial court did not address his challenge to the declaration of Brian Korbs under ER 404(b) and ER 403. He also claims that the trial court erroneously denied as untimely his motion to strike various affidavits and testimony as unsworn, containing hearsay, and lacking personal knowledge or expertise. We disagree.
Failure to make a timely motion to strike waives any deficiency in affidavits submitted in support of a summary judgment motion. Here, the motion to strike came after the court's ruling on the motion for summary judgment.
Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 881, 431 P.2d 216 (1967).
In any event, at the January 11, 2008 hearing, the trial court stated that to the extent the County's evidence could be considered evidence of other acts subject to ER 404(b), it was properly considered to show motive, opportunity, intent, preparation, plan, and knowledge on Rakhshan's part to perpetrate a fraud on others. The trial court determined on the record that the probative value of the evidence outweighed any prejudicial effect. There was no error.
The trial court granted the County's motion for summary judgment at the January 11 hearing. On March 21, Rakhshan moved to strike the County's evidence raising various other objections. The trial court properly denied the motion to strike as untimely. Moreover, the alleged deficiencies in the evidence received from the French commission did not require exclusion under CR 28(b).
We note that CR 28(b) provides in pertinent part:
Evidence obtained in response to a letter rogatory or a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
Rakhshan's complaint that the testimony obtained through the French court was unsworn does not establish grounds for exclusion. Although some of the declarations did not include certifications under the penalty of perjury as described in RCW 9A.72.058, the County could have remedied the oversight had Rakhshan objected before the summary judgment hearing.
Finally, even if some declarations identified in the motion to strike were not considered, ample evidence supported the decision to grant summary judgment. Even without the testimony of one car dealer, the owner of the car transport service, an individual who bought a car from Rakhshan, and Secret Service Agent Brian Korbs, the County presented other evidence that Rakhshan did not have any legal property interest in the cars. The evidentiary determinations were proper.
SUMMARY JUDGMENT
Rakhshan contends that the trial court erred in granting Whatcom County's summary judgment motion. We disagree.
We will affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. A material fact is one upon which the outcome of the litigation depends. We consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. When there is contradictory evidence presented, a summary judgment motion should be denied, provided that the contradictory evidence "is not too incredible to be believed by reasonable minds." Summary judgment is proper when reasonable minds could reach but one conclusion regarding the material facts. We review a summary judgment order de novo, conducting the same inquiry as the trial court.
CR 56(c).
Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997).
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Balise, 62 Wn.2d at 200.
Tran v. State Farm Fire and Casualty Co., 136 Wn.2d 214, 223, 961 P.2d 358 (1998).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Folsom, 135 Wn.2d at 663 (citations omitted).
"Conversion is the unjustified, willful interference with a chattel which deprives a person entitled to the property of possession." To maintain a conversion action, the plaintiff must establish some property interest in the converted property.
Meyers Way Development Ltd. Partnership v. University Savings Bank, 80 Wn. App. 655, 674-75, 910 P.2d 1308 (1996).
Meyers Way, 80 Wn. App. at 675.
In support of its summary judgment motion, the County presented evidence that Rakhshan arranged to purchase the cars from various dealerships over the internet and telephone. Rakhshan admitted that he represented a fake, novelty identification card bearing the name "Andrew Rahshan" to be an authentic British Columbia driver's license in order to purchase the vehicles. He sent the dealers copies of several credit cards bearing the bank designation "BDNI" and an account holder name of "Andrew Rahshan." The County presented the declaration of Joseph Majka of Visa U.S.A. Inc., stating that BDNI is an Indonesian bank that has not been a Visa member since 1998, such that any card bearing the BDNI designation and an expiration date beyond 1998 cannot be legitimate. Majka also stated that the routing number appearing on the cards used by Rakhshan is being used under license by Hong Kong and Shanghai Banking Corporation, France ("HSBC"), and would not appear on a BDNI card.
Bank employees Dominique Sonsino and Blaise Ravetto testified before the Rogatory Commission in France that HSBC did not issue the cards and that the account numbers used by Rakhshan were actually issued to other individuals not related to Rakhshan. The account holders contested the charges used to purchase the cars and HSBC reimbursed them, suffering a loss "on the order of 40,000 Euros." Sonsino testified that Fournier did not work at the bank and that Rakhshan's relatives were not authorized users of any of the accounts at issue. The County also produced English translations of French documents provided to the Rogatory Commission including account statements, account holder letters contesting charges, and police reports.
In response, Rakhshan claimed that his relatives in France authorized him to purchase the cars with their credit cards. He claimed that his witnesses, including his relatives and French bank employee Jean-Pierre Fournier, would testify that the account numbers that he used to buy the cars were issued to his relatives by the French bank and that he was authorized to use the accounts. He contended that Dupont, another purported French Bank employee, could verify Fournier's employment at the bank. None of this is believable, as the trial court observed.
Moreover, Rakhshan offered no evidence to dispute Majka's testimony that any card bearing a BDNI designation and an HSBC routing number "would not be a legitimate device for an authorized credit transaction." And Rakhshan's only claim to a legitimate interest in the cars is entirely dependent on the validity of the BDNI cards, which he admitted he used to purchase the cars. In light of these undisputed facts, even if the trial court had considered Rakhshan's deposition of Fournier and the declarations of Rakhshan's relatives, reasonable minds would find his evidence "too incredible to be believed." Because Rakhshan failed to present any evidence to raise a genuine issue of material fact as to whether he had a legitimate property interest in the cars, the trial court properly granted the County's motion for summary judgment.
Balise, 62 Wn.2d at 200.
Finally, Rakhshan argues that the County seized the cars without legal authority, relying on the common law and constitutional provisions. None of these arguments merit further discussion in light of our determination that the court properly granted summary judgment on the record before us.
ATTORNEY FEES
Rakhshan contends that he filed his complaint and declarations in good faith and that his case has merit, such that the award of fees was improper. We disagree.
We review a trial court's decision to impose sanctions under CR 56(g) and CR 11 for abuse of discretion. The trial court must make specific findings indicating explicitly which filings violated the rules and how such pleadings constitute violations or demonstrate bad faith. Here, the award is fully supported by the record.
Just Dirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 415, 157 P.3d 431 (2007); Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994).
Biggs, 124 Wn.2d at 193, 201-02; Recall of Pearsall-Stipek, 136 Wn.2d 255, 266-67, 961 P.2d 343 (1998).
Although Rakhshan assigns error to a number of the trial court's factual findings, he either does not support the assignments by argument or argues on the basis of matters that are not believable, as the trial court stated.
After making proper findings, the trial court stated its conclusions.
The trial court concluded that Rakhshan submitted the declarations of his relatives, Fournier and Dupont in bad faith in violation of CR 56(g). The court also determined that Rakhshan's complaint was not based on fact or law and thereby violated CR 11. Moreover, because Rakhshan had no property interest in the vehicles, he filed his complaint and proffered evidence for improper purposes, including to further his fraudulent scheme to steal the vehicles. Finally, Rakhshan's bad faith needlessly increased the County's costs and justifies an attorney fee award.
Rakhshan first contends that his complaint was filed in good faith because the County obtained the cars through an unreasonable seizure. But the circumstances under which the County obtained the cars are completely irrelevant to Rakhshan's claim for conversion. His arguments to the contrary are unpersuasive.
Rakhshan also claims that the fee award violates RCW 36.27.050 by allowing the prosecuting attorney to collect fees for his official services. This argument has no merit. The trial court specifically and properly awarded fees to Whatcom County, not the prosecuting attorney.
State v. Weston, 66 Wn. App. 140, 146 n. 2, 831 P.2d 771 (1992) (purpose of RCW 36.27.050 is to prevent outside influences on an attorney working for the State, not to prohibit an award of fees to the State as a party).
Rakhshan's remaining challenges to the trial court's findings and conclusions regarding the fee award concern the admissibility of the evidence presented by the County. We perceive of no abuse of discretion in the trial court's analysis of the admissibility of the evidence or the award of fees.
Whatcom County requests fees on appeal under RAP 18.1, arguing that Rakhshan's appeal is frivolous. We agree.
An appeal is frivolous "if no debatable issues are presented upon which reasonable minds might differ, and it is so devoid of merit that no reasonable possibility of reversal exists."
Chapman v. Perera, 41 Wn. App. 444, 455-56, 704 P.2d 1224, review denied, 104 Wn.2d 1020 (1985).
In this case, Rakhshan persisted in his conversion action against Whatcom County despite the lack of any facts or law to support such a claim. Rakhshan's appeal presents no debatable issues and is frivolous. Whatcom County is entitled to costs and attorney fees on appeal, subject to its timely compliance with RAP 18.1.
We affirm the orders on appeal and impose sanctions, as noted.
WE CONCUR.