                                                                                                                         LED
                                                                                                                            APPEALS
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                                                                                                            T,

                                                                                                            y

      IN THE COURT OF APPEALS OF THE STATE OF WASHIN(

                                                DIVISION II

FREDERICK J. KARPMAN and ELLEN S.                                            No. 42830 -0 -II
KARPMAN,      Trustees      of      the    KARPMAN
TRUST,


                                    Appellants,


       V.



OLEG ROZENFELD, aka OLEG                                                 ORDER CORRECTING
SHKLYARENKO, aka OLEG                                                   UNPUBLISHED OPINION
FHKLWAREMKO, aka OLEG
SHKLARENKO, aka OLEG
SHKLYAPENKO, aka OLEG
HKLYARENKO, aka OLEY SHKL, aka
OLEY YARENKO, a single person,


                                    Respondent,


and



MASON COUNTY TITLE INSURANCE
COMPANY, a Washington corporation,


                                    Defendant.


       The unpublished opinion filed November 19, 2013 is corrected as follows:


       The caption is changed so that Frederick J. Karpman and Ellen S. Karpman, Trustees of

the Karpman Trust,   are   listed   as    Respondents   and   Oleg   Rozenfeld,   et ux.,   is listed   as       Appellant.
No. 42830 -0 -II



DATED this
             e     ay   of / % ,       2014.




       IT IS SO ORDERED.


                                       Hunt, J.




                                   2
i                                                                                                    FILED
                                                                                              C01JRT OF APPEALS
                                                                                                  D1VfJ1Of4 if
                                                                                            201" NOV 19     AM 8: 38



          IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                                 I)WISION H

    FREDERICK J. KARPMAN and ELLEN S.                                    No. 42830 -0 -H
    KARPMAN,        Trustees   of the       KARPMAN
    TRUST,


                                   Appellants,


           V.



    OLEG ROZENFELD, aka OLEG                                         UNPUBLISHED OPINION
    SHKLYARENKO, aka OLEG
    FHKLWAREMKO, aka OLEG
    SHKLARENKO, aka OLEG
    SHKLYAPENKO, aka OLEG
    HKLYARENKO, aka OLEY.SHKL, aka
    OLEY YARENKO, a single person,


                                   Respondent


    and



    MASON COUNTY TITLE INSURANCE
    COMPANY, a Washington corporation,)


                                   Defendant.

                                 Rozenfeld2
            HUNT, J. =    Oleg                  appeals two orders in a lawsuit filed by Frederick J. and

    Ellen S. Karpman, Trustees         of   the Karpman Trust ( the " Karpmans ")   claiming that he had

    breached a real estate purchase and sale agreement: an order of default and an order denying his


    1 Mason County Title Insurance Company was dismissed from the action without costs or
    attorney fees by the Amended Judgment filed on December 13, 2011.

    2 Although the caption has several aliases listed for Oleg Rozenfeld, we will refer to the
    appellant as   Rozenfeld for the   purposes of   this- appeal.
No. 42830 -041



motion     to   quash subpoenas and          for   sanctions.       He argues that the superior court erred in ( 1)


denying his      motion   to   set aside    its   order of   default; ( 2)     denying his motion to quash subpoenas

duces tecum issued to Rozenfeld' s banks;                     and (     3)   denying his request for subpoena -
                                                                                                              related .

sanctions against       the Karpmans.3        We affirm the superior court' s denial of Rozenfeld' s motion to

vacate, do not address denial of his other motions because they are moot, and award the

Karpmans attorney fees and costs on appeal.

                                                             FACTS


                        I. PURCHASE AND SALE AGREEMENT; FINANCING ADDENDUM


           On March 26, 2011., Oleg Rozenfeld and Frederick and Ellen Karpman entered into a

Real Estate Purchase           and   Sale Agreement (" Agreement ")               requiring Rozenfeld to purchase the

Karpmans' Shelton residence             by   April 29.       This Agreement included a " Financing Addendum,"

which provided         that Rozenfeld' s     obligation      to   purchase     the home   was contingent on    his "[ g] ood


 f]aith"    efforts to obtain financing through a Federal Housing Administration ( FHA) loan.4




3
    Normally, we do not accept direct appeals of interlocutory orders such as these. Nevertheless;
our court       has treated this     case    thus far as      a   direct     appeal.   Thus, in the interests of judicial
 economy        and   resolving the    parties'     case   on     the   merits, we neither    dismiss this "   appeal"   nor

 compel Rozenfeld to appeal the final default judgment. See RAP 1. 2( a) and (c).


 4 This FHA loan contingency provided, in pertinent part:
         This Agreement is contingent on Buyer obtaining the following loan or loans to
           purchasethe Property: ...  FHA....   If not waived, the Financing Contingency
         shall survive the Closing Date.
 Clerk' s Papers ( CP) at 114. An " FHA loan" is a mortgage loan provided by federally qualified
 lenders and insured by the Federal Housing Administration. The lenders here were Sterling
 Savings Bank and Cobalt Mortgage.


                                                                   J
i   No. 42830- 0- 11



    Clerk' s Papers ( CP)   at   114, 115.       This Financing Addendum also required Rozenfeld to obtain

    the Karpmans' written consent before changing lenders.

           Before entering into the Agreement, Rozenfeld had provided the Karpmans with a letter

    from FHA- insured Sterling Savings Bank pre -approving him for a loan, subject to several

    conditions,   including   verification .of       Rozenfeld' s income       and   assets.   After entering into the

    Agreement, Rozenfeld         applied   to   Sterling for   an      FHA loan.   Before Sterling formally resolved

    his application, however, and without first seeking the Karpmans' written consent; Rozenfeld

    withdrew   his loan   application   from Sterling        and applied to Cobalt Mortgage        for   a   loan. Cobalt


    denied his loan application for insufficient stable income and irregular employment.

           Rozenfeld failed to meet the April .29 deadline for purchasing the Karpmans' home.

    Under the terms of the Financing Addendum, Rozenfeld' s changing lenders without the

    Karpmans' written consent waived the financing contingency, obligating him to purchase the

    property regardless of whether he had been able to obtain an FHA loan.
                                                        H. PROCEDURE


                                      A. -Service of Summons and Complaint


            Two months later, on June 30, the Karpmans sued Rozenfeld for breach of contract. The

    Karpmans were unsuccessful in attempting to serve Rozenfeld in person at his Sylmar, California

    address which he had used on the Agreement, on his home loan bank applications, and in other


     5, The Financing Addendum further qualified the FHA loan contingency with the following
    pertinent provision:

            If Buyer .... (      iii) changes the lender without Seller' s prior written consent after
            the   agreed    upon    time        to   apply   for   financing   expires,   then the Financing
            Contingency shall be deemed waived.
     CP at 114.




                                                                   9
No. 42830- 0- 11



matters    as   late   as    June 2011.          The Karpmans then mailed a letter to .Rozenfeld at his Sylmar

address;    but it was returned as undeliverable with expired forwarding, which showed a

Longbranch, Washington                address         for Rozenfeld. 6      The Karpmans hired a private investigator,

who found four           possible         addresses      for Rozenfeld in the Los Angeles           area.    The Karpmans


attempted to serve Rozenfeld at each one of these addresses, but none proved successful.

          The Karpmans then hired process server Darrin Sanford to serve their summons and

complaint on       Rozenfeld         at   the   expired   forwarding      Longbranch   address.    Sanford understood that


Rozenfeld       might       be trying to        avoid service.     On August 2, Sanford approached the Longbranch


house; through a window he saw a man fitting Rozenfeld' s description. When Olga Almanskaya

came out onto the front porch, Sanford asked for Rozenfeld, stating that he had legal documents

for him. Almanskaya told Sanford that Rozenfeld was not home. Sanford gave Almanskaya the

summons and complaint,                but       she         to
                                                      tried -    refuse   them, saying, " He is   not   my husband."   CP at


145.    She followed Sanford down the driveway, repeating that she could not accept the papers.

She tried to leave them on the hood of Sanford' s car, but he told her he was leaving the papers

with her and that she had been served.

           The    next       day,   the    Karpmans'        counsel mailed a certified letter to Rozenfeld at the


Longbranch address, informing him that he had been served by the summons and complaint that

 Sanford had left with Almanskaya the day before. Rozenfeld signed the certified mail receipt for

 the letter on August 4.




 6 The Karpmans also hired William Peck to inspect Rozenfeld' s Sylmar residence on June 2, at
 which     time Peck         noted   that "[     t]here was no furniture inside the house and it appeared to have
 been   abandoned."           CP at 61.



                                                                      0
No. 42830 -0 -II



                                               B. Subpoenas


        On July 12, the Karpmans issued subpoenas duces tecum to Sterling Savings, Cobalt

Mortgage,    Prudential     Northwest   Real   Estate,       and   Mason Title   Insurance-   Company,    all




companies involved in the purchase and sale transaction, for information about Rozenfeld' s

                               7
failure to   obtain   a   loan .   A Cobalt Mortgage representative called . Rozenfeld about the

subpoenas and the lawsuit.8 The banks produced the requested documents, which were filed

with the court.


                                                C. Default


        Rozenfeld did not file an answer or otherwise respond to the Karpmans' summons and

complaint. On August 23, the superior court entered an order of default against Rozenfeld. Two

days later, Rozenfeld' s counsel contacted the Karpmans and asked them to stipulate to an order


vacating the default; the Karpmans declined. On September 15, Rozenfeld moved to vacate the

order of default. In support of his motion,9 he submitted Ahnanskaya' s declaration that ( 1) she

had   received " correspondence"     for Rozenfeld delivered to the Longbranch        address; (   2) she had


placed the " correspondence" in her " incoming mail" box and had neither given it to Rozenfeld



7                                                                                  Two of the subpoenaed
    None   of these subpoenas were mailed       to   or served on     Rozenfeld.
banks, Cobalt Mortgage and Sterling Savings Bank, responded to the subpoena and released
Rozenfeld' s loan application documents to the Karpmans.

8 Despite Rozenfeld' s request not to provide the documents, Cobalt released them, although it is
not clear from the record when Cobalt contacted Rozenfeld or when it released the documents.

 9 Rozenfeld also argued that his " meritorious defense" to the action entitled him to have the
 default set aside. Br. of Appellant at 18. This defense appears to be that, although he was unable
 to meet the financing contingency of the Agreement, his loan- seeking efforts were made in good
 faith and therefore he did not default on the agreement.




                                                         5
No. 42830- 0- 11



nor told him about it; and ( 3) she did not give the documents to Rozenfeld until after he had

received     the August 24 letter from Karpmans'                   counsel.   CP   at   219, 220.   Almanskaya' s


declaration did not mention her August 2 encounter and discussion with Sanford or that Sanford

had personally delivered the summons and complaint to her at the Longbranch address.

        Rozenfeld also advised the Karpmans that he believed that the subpoenas to the banks

had been improperly issued and that he would move to strike any declarations that relied on

information obtained from the           subpoenaed        documents.      When the Karpmans relied on some


information obtained from the subpoenas in responding to Rozenfeld' s motion to vacate,

Rozenfeld moved to quash the subpoenas ''and for sanctions against the Karpmans .on .September

28.


        The superior court denied Rozenfeld' s motion to vacate, ruling that Rozenfeld had not

shown excusable neglect for failing to respond to the summons and complaint and, thus, did not

meet   the   standard   for setting   aside a   default   order under    CR 55.    The superior court also denied


Rozenfeld' s motion to quash the subpoenas because Rozenfeld had failed to show prejudice from

any irregularity in the service of the .subpoenas on the banks, and because the subpoenaed

documents were already in the court's file.10 Instead, the superior court invited the parties to
consider entering into an agreed order to redact any personal identifiers in the documents under

GR 15. 11




 to The superior court also ruled that any failure to have served Rozenfeld with the supoenas was
 harmless.


 11 The record does not show that the parties ever reached such an agreement.



                                                             rel
No. 42830 -0 -II



         The superior court subsequently issued written orders denying the motion to quash and
                                                                                              12
the   motion    to   set aside   the default. Rozenfeld           appeals   these orders.


                                                           ANALYSIS


                                     I. MOTION TO SET ASIDE ORDER of DEFAULT


         Rozenfeld argues that, under CR 55, the trial court had. "good cause" to. set aside the

                                                                                                                          13; (
order   of   default ( 1) because he             presented sufficient evidence of " excusable neglect!                            2) on


                        the    Karpmans'         lawsuit, he had         acted       with   due diligence;       and (   3)   he had
learning     about




meritorious       defenses to the Karpmans'                claims.      Br.     of   Appellant      at   8.   Because the record


supports the superior court' s finding that Rozenfeld failed to show good cause for his delayed

response to the Karpmans' lawsuit, we do not reach his argument about meritorious defenses.

                                                    A. Standard ofReview


         Washington            courts     generally disfavor         default         orders   and       judgments.       See Trinity

Universal Ins. Co. of Kansas                v.   Ohio Cas. Ins. Co., No. 67832 - - 2013 WL 4562718,
                                                                               9 I,                                               at *   3


 Wash. Ct.        App. Aug.      19, 2013) (     citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599

P. 2d 1289 ( 1979)).           A superior court may vacate an order of default for good cause or " upon

such    terms     as   the   court   deems just." CR . 5( c)( 1);
                                                     5                   Seek Sys., Inc. v. Lincoln Moving / lobal Van
                                                                                                           G


12 One month after Rozenfeld filed his November 16, 2011 appeal from these orders, on
December 13, the superior court entered final judgment against Rozenfeld, awarding damages
 and    attorney fees to the Karpmans for Rozenfeld'                        s   violation     of   the Agreement.         Our court
records do not show that Rozenfeld appealed this default judgment.

 13 Rozenfeld argues that the superior court should have vacated the order of default under either
 CR 55( c),       which governs motions             to   vacate    an order of        default,     or   CR 60( b),   which governs

 motions     to   vacate a      default judgment.         The issue, here, however, is whether the superior court
 improperly denied Rozenfeld' s motion to vacate the order of default before it was reduced to
 judgment. Therefore,            we    apply the CR 55( c)( 1) "        good cause" test.




                                                                    7
No. 42830 -0 -II



Lines, Inc., 63 Wn.         App.    266, 271, 818 P. 2d 618 ( 1991).           In determining whether the parry

seeking to set aside an order of default has shown good cause under CR 55( c), the superior court

may    consider excusable neglect and           due diligence as factors.       Seek Sys., Inc.,   63 Wn. App. at

271.


              Courts determine   excusable    neglect    on a case - by -
                                                                        case   basis.   Gutz v. Johnson, 128 Wn.


App.     901, 918 -19, 117 P. 3d 390 ( 2005) (          citing Norton v. Brown, 99 Wn. App. 118, 123, 992

P. 2d 1019 ( 1999)), aff d       sub nom.,    Morin   v.   Burris, 160 Wn.2d 745, 161 P. 3d 956 ( 2007). The


superior court has broad discretion in ruling on whether the facts demonstrate excusable neglect;

in so doing, it may make credibility determinations and weigh facts in order to resolve the
         14
issue.          See Johnson v. Cash Store, 116 Wn. App. 833, 847 -49, 68 P.3d 1099 ( upholding

superior court' s ruling that neglect was inexcusable based on credibility determinations and

weight of evidence).



                     The decision to set aside an order of default is generally within the
              discretion of the trial court, subject to the good cause requirement of CR 55( c).
               Where the decision or order of the trial court is a matter of discretion, it will not
              be disturbed on review except on a clear showing of abuse of discretion, that is,
              discretion manifestly unreasonable, or exercised on untenable grounds, or for
              untenable reasons."



Canam Hambro Sys., Inc.             v.   Horbach, 33 Wn.     App.   452, 453 -54, 655 P. 2d 1182 ( 1982) ( quoting


State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)).




 14
      We do      not review   the   superior court' s   credibility determinations.      Morse v. Antonellis, 149
 Wn.2d 572, 574, 70 P. 3d 125 ( 2003) (          citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
  1990)).
No. 42830 -0 -1I



                                B. Failure to Show Excusable Neglect /Good Cause


        Here, the superior court reviewed declarations submitted by the parties detailing the

manner of service of the Karpmans' summons and complaint on Rozenfeld and Rozenfeld' s and

Almanskaya' s      responses         to this    service.   Process server Darrin Sanford declared that, when he


served Almanskaya at Rozenfeld' s Longbranch, WA residence on August 2, 2011, he had

informed her that         she was       being     served with     legal   papers   for Rozenfeld.   The next day, on

August 3, the Karpmans' counsel sent a certified letter to Rozenfeld at the same Longbranch

address, telling him that Almanskaya had been served with a summons and complaint against

him.   The   certified     letter bore         a return receipt,_which                the recipient to sign for it; the


return receipt bore the printed name " Oleg Rozenfeld" as having accepted delivery of this letter

on August 4. CP at 15 8.


        Rozenfeld does not contest that Almanskaya was properly served on his behalf two days

earlier on August 2. Yet he waited more than 20 days15 after service before contacting coun.sel.16

Rozenfeld explained this delay by claiming that Almanskaya had not given him the summons

and complaint before the court entered the default order. He did not, however, argue that he had '

never signed for or received the certified letter on August 4.


         Rozenfeld correctly argues that excusable neglect and due diligence are not the only ways

to   show " good cause."             Br.   of   Appellant at 15.    But he mistakenly contends that the superior


 is CR 12( a)( 1) requires a defendant to serve his answer within 20 days of service of the summons
 and complaint.



 16 Rozenfeld declared that he had contacted legal counsel after receiving the summons and
 complaint   from Almanskaya, he had                  contacted   legal   counsel on   August 24, 2011.    Rozenfeld' s
 counsel   filed   a   Notice   of   Appearance      on    September 6.
No. 42830 -0 -11



court concluded that " excusable neglect is an indispensable element of `good cause' under CR


55" in setting aside an order of default. Br. of Appellant at 15. Instead, the superior court noted

that a " default judgment" should not be vacated unless " it can be shown that there is a good

cause,     including      excusable neglect,   to   set   it   aside" under   CR 60( b). VRP at 12 ( emphasis added).


Again, failure to show excusable neglect is a factor in a trial court' s finding of failure to show

good cause      for      not   timely responding     to    a   lawsuit.    Seek Sys., Inc., 63 Wn.        App.   at   271.   But


Rozenfeld'     s argument misses a         different   key      factor here —that    the superior court implicitly found

not      credible   his    sole   evidence   of " good         cause"     and " excusable     neglect,"    namely, his and

Alrnanskaya' s.          claim that_she   had failed_to        give   him the   summons and complaint.            VRP at .12.

We defer to the            superior court on matters            of witness    credibility.   Davis v. Dep' t of Labor &

Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 ( 1980) ( citing Beeson                             v.            Richfield Co., 88
                                                                                                  Atlantic -


Wn.2d 499, 563 P. 2d 822 ( 1977)); Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P. 3d 125 ( 2003)


 citing State       v.   Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 ( 1990)).                      Thus, Rozenfeld was left


with no credible excuse for his delay in responding to the summons and complaint.

                                               C. " Meritorious Defense"


            Because. it found that there was no good cause to set aside the default, the superior court

did not reach the question of whether Rozenfeld might have asserted a meritorious defense had

he timely answered the summons and complaint. Nevertheless, Rozenfeld argues on appeal that

  1) "   excusable neglect is not required to set aside an order of default under the less stringent

 standards of CR 55 where the defendant presents a meritorious defense before the entry of a

 default judgment"; and ( 2) he had a meritorious defense to the Karpmans' suit. Br. of Appellant


 at 16. This argument also fails.




                                                                   10
No. 42830 -0 -II



         Rozenfeld cites Canam Hambro Systems in support of his argument that his meritorious

defense constitutes good cause for vacating the order of default. He is correct that this was the

result   in Canam.   But, unlike here, the superior court in Canam had examined and rejected the


defendant' s meritorious defense in a summary fashion, ignoring material questions of fact, in

denying    the   motion   to   set aside   the   order of   default. 33 Wn.         App.     at   454 -55.   This substantive


ruling on the merits of the defense was the sole basis for the denying the motion; the superior
court never addressed excusable neglect for defendant Horbach' s delay in responding to the

summons     and complaint.          Canam, 33 Wn.        App.      at   454.    And, in - eversing the superior court,
                                                                                        r

Division One of our court held that its ruling on the legal and factual merits of Horbach' s

defense   was " untenable."      17 Canam, 33 Wn. App. at 456.
          The Canam court did not hold that the superior court must examine potential meritorious

defenses   as possible good cause          for vacating     an order of        default   under    CR 55( c).   Rather, it held


that an asserted defense to an .action can be good cause to set aside an order of default but that

the superior court in that instance had erred in considering the asserted defense and reaching an

untenable    conclusion        on its -merits.     Canam, 33 Wn.          App.     at    455 -56.-   In so doing, however,

Division One did not retreat from the primary requirement for vacating an order of default under

 CR 55( c), namely the showing of good cause, including its excusable neglect component:



 17 More specifically, the appellate court ruled:
                   While excusable neglect and a meritorious defense are not necessarily
          required to set aside an order of default as opposed to a default judgment,
          assertion of    the two    provides     the   good cause required          by    CR 55( c). The reasons

          given by the trial court for refusing to set aside the default are, as discussed
          above, untenable.

 Canam, 33 Wn. App. at 456 ( emphasis added).



                                                              11
No. 42830 -0 -11



                  CR 55( c)       provides: "      For good cause shown and upon such terms as the
         court   deems just, the      court   may    set aside an entry of default ...." In contrast with
         CR 60( e),    which requires that a defendant seeking to vacate a default judgment
         show a meritorious defense to the action, a party seeking to set aside an order of
         default under CR 55(c) prior to the entry of the judgment need only show good
         cause.    See Johnston       v.   Medina Improvement Club, Inc., 10 Wn.2d 44, 116 P.2d
         272 ( 1941) ( antedates Civil Rules).


Canam, 33 Wn.       App.     at   453 (   alteration   in   original) ( second emphasis added).        The Canam court


noted that in support of his motion to set aside the order of default, defendant Horbach had

submitted an affidavit asserting both excusable neglect and a meritorious defense; yet the trial

court   had focused     on   only the      merits of   the defense,      which   it had wrongly decided. Canam, 33


Wn. App. at 453, 455, _

         Here, in     contrast, at    the    outset    the   superior court addressed         the required " good cause"



component     for setting     aside ,an order of         default   under   CR 55( c); and it ruled that Rozenfeld' s


failure to show excusable neglect in his delayed response to the Karpmans' summons and

complaint was sufficient reason              to   deny   his   motion.   VRP     at   12.   Thus, the superior court here


did not need to address Rozenfeld' s potential meritorious defenses, as the superior court had


erroneously determined in Canam. Despite reversing the superior court' s untenable conclusion

in Canam, the appellate court nevertheless recognized:


                 The decision to set aside an order of default is generally within the
         discretion of the trial court, subject to the good cause requirement of CR 55( c).
          Where the decision or order of the trial court is a matter of discretion, it will not
         be disturbed on review except on a clear showing of abuse of discretion, that is,
         discretion manifestly unreasonable, or exercised on untenable grounds, or for
          untenable    reasons."      State ex rel. Carroll v. Junker, 79 Wn. 2d 12, 26, 482 P. 2d
          775 ( 1971).


 Canam, 33 Wn. App. at 453 -54.




                                                                 12
j   No. 42830 -0 -II



1             In accordance with Canam, we reiterate that the issue before us is whether the superior

    court abused its discretion in setting aside an order of default, not a default judgment. We hold

    that the superior court did not abuse its considerable discretion in denying Rozenfeld' s motion to

    set aside the order of default.

                                                          II. MOOT MOTIONS


                                                          A. Motion To Quash


               Rozenfeld next argues that the superior court erred in denying his motion to quash the

    Karpmans'        subpoenas      duces tecum      served    on the banks to     which     he had   applied   for loans. He


    contends that, at the time these subpoenas were issued, the superior court lacked jurisdiction over

    him. He also complains that the Karpmans never mailed him or otherwise served him with these

    bank subpoenas. Because we affirm the superior court' s denial of Rozenfeld' s motion to vacate.

    the order of default, the judgment of default against him stands, his motion to quash these

    subpoenas was moot,18 and we do not further consider this issue. 19




     18
          CR 55( a)( 2)   precludes' a   defaulted party from responding to              or " otherwise.   defending] "-against
    a              without
          pleading -             leave of   court.   Because Rozenfeld defaulted and the superior court left the
    order of default intact, he no longer has a live case or controversy. See Price v. Price, 174 Wn.
    App. 894, 902, 301 P. 3d 486 ( 2013) ( citing Pentagram Corp. v. Seattle, 28 Wn. App. 219; 223,
     622 P. 2d 892 ( 1981)) ( the Court              of   Appeals " consider[ s] a case moot if there is no longer a

     controversy between the parties, if the question is merely academic, or if a substantial question
     no    longer   exists." (   internal citations omitted)).


     19 Even if there had been some sort of defect in the subpoenas' service, once the subpoenaed
     documents became part of the court record, the superior court could have protected Rozenfeld' s
     privacy by ( 1) following the superior court' s suggestion to meet with the Karpmans to agree on
     protective redactions; or ( 2)         asking the      superior court   to   seal   the documents      under   GR 15.   The
     record does not show that Rozenfeld pursued either alternative; thus, he failed to preserve a
     potential GR 15 issue for appeal. RAP 2. 5( a).




                                                                   13
No. 42830 -0 -II



                                              B. Motion for Sanctions


          Rozenfeld also argues that the superior court erred in failing to impose sanctions against

the Karpmans for       failing   to   serve   him   with   the third party   subpoenas   duces tecum.       Because


Rozenfeld' s motion to quash the subpoenas was moot once the superior court defaulted him, his

request   for   sanctions was also. moot       20 We hold, therefore, that the superior court did not abuse

its discretion in denying Rozenfeld' s request for sanctions under CR 45 after it denied his motion .

to quash the bank subpoenas.

                                                III. ATTORNEY FEEs


          The Karpmans . request attorney fees . under RAP 18. 1 and the underlying real estate

contract    provision   for awarding " attorney fees              and   expenses"   to the prevailing party in




20 Even were we to address the merits of Rozenfeld' s motion for sanctions, we would find no
abuse of discretion in-the superior court' s refusal to impose such discovery sanctions. See Lodis
v. Corbis Holding' Inc., 172 Wn. App. 835, 854, 292 P. 3d 779 ( 2013) ( citing Howell v. Spokane
                  s,

  Inland Empire Blood Bank, 117 Wn. 2d 619, 629, 818 P. 2d 1056 ( 1991) and Wash. State
Physicians Ins. Exch. & Ass' n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P. 2d 1054 ( 1993)).
 Contrary    to Rozenfeld'   s   argument,      the mandatory language        in CR 45(   c)(   1)   does not compel
 imposition     of sanctions under       the   circumstances      here because CR 45( c)( 1)         clearly refers to
 sanctionsfor imposing undue burden or expense on the " person subject to that subpoena," which
 here were the banks, not Rozenfeld. CR 45( c)( 1) ( emphasis added). See also Wash. State
 Physicians Ins. Exch. & Ass' n, 122 Wn.2d at 338. Furthermore, the record contains no evidence
 that the subpoenaed banks either were subject to undue burden or expense or sought CR 45( c)( 1)
 sanctions below.




                                                             14
    i


        No. 42830 -0 -II



        liti IIation.21   CP at 112. Because the Karpmans are the prevailing party, we award them costs and
I
        attorney fees on appeal.

                  Affirmed.


                  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.




                                                                       Hunt, J..




        Maxa, J.




         zi
              Rozenfeld     also   requests   fees based   on   this   contractual -language.   Because he is not the
         prevailing parry, he is not entitled to attorney fees under this provision.


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