                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                          September 15, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

 ROCHELLE TRAN, a married woman,                                      No. 46099-8-II

                                Appellant,                      UNPUBLISHED OPINION

         v.

 VICTORIA GALLARDO and “JOHN DOE”
 GALLARDO, a marital community,

                                Respondents.

       BJORGEN, A.C.J. — A trial court dismissed on summary judgment Rochelle Tran’s

personal injury lawsuit against Victoria Gallardo, concluding that Tran had not complied with

the applicable statute of limitations. Tran appeals, asserting that the trial court erred by (1)

concluding that she did not serve Gallardo with her complaint within the statute of limitations,

and, alternatively, (2) failing to toll the statute of limitations based on Gallardo’s noncompliance

with reporting requirements under RCW 46.52.020 and RCW 46.52.030. Because the trial court

properly concluded that Tran did not serve Gallardo within the statute of limitations, and because

Tran had an obvious and reasonable ability to prosecute her claim within the applicable statute of

limitations notwithstanding any violation of RCW 46.52.020 and/or RCW 46.52.030, we affirm.
No. 46099-8-II


                                              FACTS

       On August 26, 2010, Tran and Gallardo were in a motor vehicle collision in which

Gallardo struck Tran’s car from behind. On July 9, 2013, Tran filed a personal injury lawsuit in

superior court. Tran alleges the following occurred right after the accident:

       I pulled over to the side of the road. At that time I complained to Ms. Gallardo of
       substantial pain in my neck and back. I believe that I was in a state of shock at that
       time. I had difficulty comprehending what had happened and what was occurring.
       I noticed damage to the rear of my vehicle and damage to the front of Ms.
       Gallardo’s vehicle. Ms. Gallardo gave me her name and motor vehicle insurance
       information. However, she never gave me her telephone number, address, vehicle
       license number, and driver's license information. The police were not called and
       no officer filled out or filed a collision report.

Clerk’s Papers (CP) at 69 (emphasis omitted).

       Gallardo declares that she provided Tran with her name, phone number, and vehicle

insurance information, as requested, and that she still uses the phone number she provided to

Tran. Gallardo also states that her license plate was properly displayed at the time of the

collision. Tran agreed that Gallardo had provided her correct name and vehicle insurance

information as requested, but disputed that Gallardo had provided her phone number.

       On July 22, Tran attempted to serve Gallardo at an address in Lacey, Washington.

Gallardo states that she has never resided at the address.1 On August 19, Gallardo answered and

asserted affirmative defenses, including a lack of personal jurisdiction for Tran’s failure to

properly serve process upon her. The three year statute of limitations expired on August 26,

2013. RCW 4.16.080(2). The 90-day tolling period to perfect service expired on October 7,

2013. RCW 4.16.170. On October 16, Gallardo moved to dismiss the lawsuit. The trial court


1
 The person served with Tran’s personal injury complaint at the Lacey address on July 22 has a
different birth date than Gallardo and a different married name than Gallardo’s.

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No. 46099-8-II


heard argument on January 17, 2014, and stated that it would deny Gallardo’s motion to dismiss.

On February 10, 2014, however, the trial court issued an order granting Gallardo’s motion to

dismiss, stating it was “treat[ing] the motion as one for summary judgment.” CP at 205. The

trial court’s order granting Gallardo’s motion to dismiss stated:

               1. On August 26, 2010 a motor vehicle accident occurred, giving rise to this
       cause of action.
               2. Defendant Victoria Gallardo-Dunbar stopped and provided insurance
       information to Plaintiff Rochelle Tran. Neither medical aid nor police were called
       to the scene. No obvious injuries were apparent necessitating emergency medical
       aid.
               3. After investigation, including communication with Defendant’s insurer,
       Plaintiff filed a complaint on July 9, 2013.
               4. Defendant answered on August 16, 2013 and asserted, among other
       things, that the court lacked jurisdiction over the person of Defendant.
               5. Before October 7, 2013 Plaintiff served a summons and complaint upon
       someone different than Victoria Gallardo-Dunbar. The evidence is irrefutable that
       the Defendant was not served within ninety days of the complaint being filed.
               6. On October 15, 2013 the Defendant filed a motion to dismiss the claim,
       which included information on Defendant’s street address in the State of New York.
               7. On November 25, 2013, Defendant was served in New York.
               The court has considered anew the arguments made on January 17, 2014
       and the records herein. The court has considered Brown v. ProWest, 76 Wn. App.
       412[, 886 P.2d 223 (1994)] and believes that it is clearly distinguishable from the
       current case and is not controlling. Despite the court’s preliminary comments on
       the record, the court finds as a matter of law that Plaintiff had an obvious and
       reasonable ability to prosecute a claim against defendant within three years of the
       motor vehicle accident. The court finds as a matter of law that the statute of
       limitations was not and cannot be tolled in the present case.
               It is ordered that Plaintiff’s claim is hereby dismissed with prejudice.

CP at 205-06. Tran appeals.

                                           ANALYSIS

       Tran contends that the trial court erred by granting Gallardo’s motion to dismiss (1)

because she properly served Gallardo within the statute of limitations and, alternatively, (2)




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No. 46099-8-II


because Gallardo’s failure to comply with reporting requirements under RCW 46.52.020 and

RCW 46.52.030 tolled the statute of limitations. We disagree with both contentions.

       We review de novo a trial court’s decision on summary judgment, performing the same

inquiry as the trial court. Roger Crane & Assocs. v. Felice, 74 Wn. App. 769, 773, 875 P.2d 705

(1994). Summary judgment is appropriate where no genuine issue of material fact remains. CR

56. In reviewing a trial court’s decision on summary judgment, we consider the evidence in the

light most favorable to the nonmoving party, here Tran. Roger Crane, 74 Wn. App. at 773.

A.     The Trial Court Properly Concluded that Tran Did Not Serve Gallardo within the Statute
       of Limitations

       The statute of limitations for personal injury actions is three years. RCW 4.16.080(2).

RCW 4.16.170 tolls the statute of limitations for 90 days from the date a complaint is filed or a

summons is served, whichever occurs first. If a defendant is not properly served within 90 days

of the filing of a complaint, “the action shall be deemed to not have been commenced for

purposes of tolling the statute of limitations.” RCW 4.16.170. “‘Proper service of the summons

and complaint is essential to invoke personal jurisdiction.’” Morris v. Palouse River & Coulee

City R.R., Inc., 149 Wn. App. 366, 370-71, 203 P.3d 1069 (2009) (quoting In re Marriage of

Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754 (1988)). A plaintiff bears the initial burden

of proving a prima facie case of sufficient service upon the defendant. Scanlan v. Townsend, 181

Wn.2d 838, 847, 336 P.3d 1155 (2014). If the plaintiff meets this burden, the burden shifts to the

defendant to demonstrate by clear and convincing evidence that service was improper. Scanlan,

181 Wn.2d at 847.




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No. 46099-8-II


       Tran filed her complaint against Gallardo on July 9, 2013, within the three-year statute of

limitations that was set to expire on August 26, 2013. RCW 4.16.080(2). Accordingly, Tran had

until October 7, 2013 to perfect service on Gallardo. RCW 4.16.170. Tran submitted an

affidavit in which a process server declared that on July 22, 2013, he or she personally served the

summons and complaint on someone named Victoria Gallardo at an address in Lacey,

Washington. This affidavit established a prima facie case of sufficient service within the statute

of limitations period. See Scanlan, 181 Wn.2d at 847 (“A plaintiff can establish service of

process with an affidavit of service from a process server.”) (citing CR 4(g)(2)). We thus turn to

whether Gallardo established by clear and convincing evidence that service was improper.

Scanlan, 181 Wn.2d at 847.

       In support of her motion to dismiss, Gallardo attached a declaration in which she stated

that she never resided, and did not know anyone who resided, at the Lacey address where the

summons and complaint were served. Gallardo’s declaration further stated that she had lived in

New York during the time in which the summons and complaint were served at the Lacey

address. Gallardo attached to her declaration a purchase agreement for her residence in New

York showing that she entered into the purchase agreement in November 2012; Gallardo asserted

in her declaration that she closed on the purchase of the New York home in January 2013.

       Tran’s response to Gallardo’s motion to dismiss did not address Gallardo’s evidence of

insufficient process, instead merely reasserting that Gallardo was properly served at the Lacey

address on July 22, 2013. Tran attached to her response an exhibit showing that the person

served at the Lacey address had a birth date of September 3, 1985 and likely had a maiden or

married last name of “Miller.” CP at 89. Gallardo’s reply to Tran’s response asserted that


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No. 46099-8-II


Gallardo had a birth date of August 25, 1985 and that her married name is Gallardo-Dunbar. We

hold that there are no genuine issues of material fact and that the above constitutes clear and

convincing evidence that Tran did not properly effectuate service on Gallardo on July 22, 2013.

Accordingly, we affirm the trial court’s conclusion that Tran did not perfect service within 90

days of filing her complaint as required under RCW 4.16.170.

B.     The Trial Court Did Not Err by Failing to Toll the Statute of Limitations

       Next, Tran contends that the trial court erred by concluding that the statute of limitations

was not tolled based on Gallardo’s failure to comply with the reporting requirements under the

hit-and-run statutes. Again, we disagree.

       RCW 46.52.020 provides in relevant part:

       (3) [The] driver of any vehicle involved in an accident . . . shall give his or her
       name, address, insurance company, insurance policy number, and vehicle license
       number and shall exhibit his or her vehicle driver's license to any person struck or
       injured or the driver or any occupant of, or any person attending, any such vehicle
       collided with.
       ...
       (7) If none of the persons specified are in condition to receive the information to
       which they otherwise would be entitled under subsection (3) of this section, and no
       police officer is present, the driver of any vehicle involved in such accident after
       fulfilling all other requirements of subsections (1) and (3) of this section insofar as
       possible on his or her part to be performed, shall forthwith report such accident to
       the nearest office of the duly authorized police authority and submit thereto the
       information specified in subsection (3) of this section.

Additionally, RCW 46.52.030 requires drivers involved in an accident causing “damage to the

property of any one person to an apparent extent equal to or greater than . . . five hundred

dollars” to submit a written report of the accident to law enforcement within four days of the




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No. 46099-8-II


accident “[u]nless a report is to be made by a law enforcement officer” investigating the

accident.

        In Brown, 76 Wn. App. 412, Division One of this court addressed whether the

defendants’ failure to comply with reporting requirements of RCW 46.52.020 and RCW

46.52.030 tolled the statute of limitations. In Brown, a driver of a large tractor trailer truck was

alleged to have struck the plaintiff’s car, causing damage to the car and injury to the plaintiff. 76

Wn. App. at 414. The driver of the truck did not stop, render assistance, or provide any

information to the plaintiff, and the plaintiff was unable to see the license plate number of the

truck. Brown, 76 Wn. App. at 414-15. Additionally, the purported owner of the truck refused to

provide any information to investigating officers regarding the driver of the truck and refused to

respond to plaintiff’s counsel’s inquiries as to whether he was the owner of the truck involved in

the collision. Brown, 76 Wn. App. at 421. The plaintiff in Brown was unable to effectuate

service on the defendants because he did not have the defendants’ addresses. 76 Wn. App. at

421.

        In addressing the plaintiff’s contention that the statute of limitations should have been

tolled under the facts of the case, the Brown court relied on an American Law Reports annotation

that stated:

                “While the decisions are not numerous, they appear to be unanimous in
        holding that the failure to comply with a statute requiring one involved in an
        automobile accident to stop or report will suspend the statute of limitations while,
        as a result of such action, there is an obvious inability to prosecute the cause of
        action.”




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No. 46099-8-II


76 Wn. App. at 418 (quoting Annotation, 10 A.L.R.2d 564, 565 (1950)). Based on the “strong

public policy requiring people to stop and disclose information at the scene of an accident,” the

Brown court determined the annotation rule could be applied to toll the statute of limitations. 76

Wn. App. at 418. The Brown court did not hold that the statute of limitations for personal injury

actions was per se tolled by a driver’s failure to strictly adhere to the reporting requirements of

RCW 46.52.020 and RCW 46.52.030. Rather, the court held that the relevant inquiry is whether

“as a result of [defendant’s] action there [was] an obvious inability to prosecute the cause of

action.” Brown, 76 Wn. App. at 418-19. Applying that inquiry to the case before it, the Brown

court concluded that, when construing the facts in favor of the nonmoving party, “there [was] an

adequate basis in the record for finding an inability to prosecute” the defendants due to the

actions they took at the time of, and after, the accident. 76 Wn. App. at 419.


       Brown is distinguishable from the present case. Here, unlike in Brown, Gallardo did not

flee the scene of a motor vehicle collision but, rather, stopped after the accident and exchanged

information with Tran, which included Gallardo’s name and insurance information. Based on

the information Gallardo provided to her, Tran was able to pursue her claim against Gallardo’s

insurance provider. Also, unlike in Brown, Gallardo did not attempt to evade service of process

after the accident. Rather, Gallardo remained in Washington State for two years after the

accident and, when moving to New York in January 2013, filed a change of address with the

postal service. Therefore, even assuming without deciding that Gallardo violated RCW

46.52.020 and/or RCW 46.52.030 by failing to strictly comply with the statutes’ reporting

requirements, and viewing the uncontroverted evidence in a light most favorable to Tran, the trial

court properly concluded that the statute of limitations was not tolled because Tran still had an

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No. 46099-8-II


“obvious and reasonable ability to prosecute a claim against Defendant within three years of the

motor vehicle accident.” CP at 206. That Tran was ultimately unsuccessful in serving her

complaint on Gallardo within the three-year statute of limitations does not mean that she had an

“obvious inability” to do so. Brown, 76 Wn. App. at 419. Accordingly, we affirm the trial

court’s order dismissing Tran’s claim for failure to adhere to the statute of limitations.

C.     Attorney Fees

       Both parties request attorney fees. Because Tran was unsuccessful in her appeal, there is

no basis upon which we may award her attorney fees.

       Gallardo asserts that she is entitled to attorney fees under RAP 18.1. RAP 18.1 permits

us to award attorney fees to a party on appeal “[i]f applicable law grants to a party the right to

recover” such fees. Gallardo cites to Landberg v. Carlson, 108 Wn. App. 749, 33 P.3d 749

(2001), for the general proposition that we may award fees on appeal if provided for under

statute, equity, or agreement. Gallardo, however, does not identify any statute, equitable

principle, or agreement that would entitle her to attorney fees in this case. Accordingly, we

decline to award Gallardo attorney fees on that basis.

       Gallardo also asserts that she is entitled to attorney fees under RAP 18.9 for having to

defend against a frivolous appeal. “An appeal is frivolous when there are no debatable issues

over which reasonable minds could differ, and there is so little merit that the chance of reversal is

slim.” Kearney v. Kearney, 95 Wn. App. 405, 417, 974 P.2d 872 (1999). In light of the fact-

specific nature of our inquiry into whether Tran had an obvious ability to prosecute her claim

against Gallardo, and in light of the scant case law addressing that issue, we cannot conclude that




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No. 46099-8-II


Tran’s appeal was frivolous. Accordingly, we decline to award Gallardo her requested attorney

fees.

        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.



                                                      BJORGEN, J.
 We concur:



 JOHANSON, C.J.




 MELNICK, J.




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