          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



LYSANDRA NESS,                                    NO. 72762-1-1


                     Appellant,
                                                  DIVISION ONE                          i




JIAN SONG and JANE DOE SONG,                      UNPUBLISHED OPINION                   CD

husband and wife, and the marital
community,                                        FILED: March 2, 2015
                     Respondents.



       Lau, J. — Lysandra Ness appeals the trial court's dismissal of her personal injury

action on summary judgment. Ness argues that (1) the trial court erred when it failed to

consider her tardy summary judgment response and (2) the trial court erred when it

concluded that she failed to satisfy the statutory requirements for service by publication.

We conclude that the trial court acted well within its discretion when it declined to

consider Ness's late response brief and declarations. But even if the trial court had

considered these documents, they fail to establish the necessary intent required under

RCW 4.28.100(2)—service by publication. We affirm.

                                          FACTS


       The facts are not disputed. In April 2013, Lysandra Ness sued Jian Song and

Jane Doe Song for personal injury arising from a 2010 automobile accident. Ness
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unsuccessfully attempted to serve Song at his home address. Consequently, Ness

attempted service by publication.

          Song filed a motion for summary judgment on October 2, 2013, arguing that

Ness failed to comply with the statutory requirements for service by publication. The

summary judgment was scheduled for hearing on November 8. Under CR 56(c),

Ness had until October 28 to file a response. Ness received Song's motion by fax on

October 2. On October 3, Ness's attorney, Ronald Ness, left his office to attend a law

school reunion in Montana. He returned from the reunion on October 6. He did not

return to his office on October 7. On October 8, attorney Ness had hip replacement

surgery. He did not return to his office until October 29. At the summary judgment

hearing, attorney Ness conceded he knew about Song's motion while he was out of his

office.

          Ness filed and served a response brief and declarations opposing summary

judgment on November 4—four days before the hearing in violation of CR 56(c). Along

with the response brief, Ness filed declarations and affidavits purporting to demonstrate

proper service. These documents were filed after Song had submitted his rebuttal brief.

The court declined to consider Ness's response brief and declarations because they

were untimely filed and served. The court granted Song's motion for summary

judgment and dismissed Ness's lawsuit, concluding that Ness failed to provide

adequate service of process. Ness appeals.
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                                         ANALYSIS


       Standard of Review

       We review a trial court's decision not to consider untimely filed documents for an

abuse of discretion. O'Neill v. Farmers Ins. Co. of Wash., 124 Wn. App. 516, 521, 125

P.2d 134(2004).

       We review an order granting summary judgment de novo, engaging in the same

inquiry as the trial court—viewing the facts and reasonable inferences from those facts

in the light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co.,

148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). A trial court properly grants summary

judgment where "there is no genuine issue as to any material fact and ... the moving

party is entitled to a judgment as a matter of law." CR 56(c).

       Ness's Untimely Filed Response

       Ness argues that the trial court erred when it refused to consider her response

brief and declarations opposing Song's motion for summary judgment. Ness properly

concedes that her response was untimely filed. Ness contends the trial court should

have considered the tardy response because her attorney had a "valid reason" for the

late filing. Br. of Appellant at 7. Specifically, he had been out of the office due to a law

school reunion and hip replacement surgery. But because Ness failed to show

excusable neglect, we conclude the trial court did not abuse its discretion when it

declined to consider the late filings.

       When a party fails to file a response to a motion for summary judgment before

the deadline, courts may nevertheless consider the untimely pleadings "only if a motion

is filed explaining why the failure to act constituted excusable neglect." Colo.

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Structures, Inc. v. Blue Mountain Plaza, LLC, 159 Wn. App. 654, 660, 246 P.3d 835

(2011); CR 6(b)(2). A trial court's determination of whether the neglect was excusable

is reviewed for an abuse of discretion. Brown v. Peoples Mortgage Co., 48 Wn. App.

554, 559, 739 P.2d 1188 (1987).

       The Supreme Court discussed several factors to consider when determining

excusable neglect:

       1. The prejudice to the opponent;

       2. The length of the delay and its potential impact on the course of judicial

proceedings;

       3. The cause for the delay and whether those causes were within the

reasonable control of the moving party;

       4. The moving party's good faith;

       5.   Whether the omission reflected professional incompetence, such as an

ignorance of the procedural rules;

       6.   Whether the omission reflected an easily manufactured excuse that the court

could not verify;

       7.   Whether the moving party had failed to provide for a consequence that was

readily foreseeable; and

       8.   Whether the omission constituted a complete lack of diligence.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 385, 113 S. Ct.

1489, 123 L. Ed. 2d 74 (1993). On balance, these factors weigh against considering

Ness's tardy response, particularly factors 1, 2, 3, 7, and 8. Ness has failed to show

excusable neglect.

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      Song filed his summary judgment motion on October 3, 2013. He served Ness's

attorney on October 2, 2013. According to CR 56(c), Ness's response was due on

October 28, 11 days before the November 8 summary judgment hearing.1 Ness filed

her response on November 4 and faxed a copy to Song's attorney after Song filed and

served his rebuttal documents.


      Song moved to strike the untimely response, contending, "The plaintiff's

response is untimely and prejudices defendants' ability to respond." Ness responded by

acknowledging his tardy response and claiming he "filed and served ... as soon as was

practical under the circumstances . .. ." In her attorney's declaration filed the day

before the summary judgment hearing, Ness claimed he filed and served the response

on November 4. He claimed he was out of the office beginning October 3 for his law

school reunion and returned on October 6 but did not return to his office until October 7.

He claims he had hip replacement surgery on October 8. He returned to work on

October 29 and reviewed Song's summary judgment materials. He spent the next few

days researching, obtaining affidavits from three witnesses,2 and writing his response

brief, which he filed on November 4. He concluded by stating, "It was physically




       1CR 56(c) provides in part:
            The [summary judgment] motion and any supporting affidavits,
       memoranda of law, or other documentation shall be filed and served not later
       than 28 calendar days before the hearing. The adverse party may file and serve
       opposing affidavits memoranda of law or other documentation not later than 11
       calendar days before the hearing. The moving party may file and serve any
       rebuttal documents not later than 5 calendar days prior to the hearing.

       2 But those affidavits show they were signed by the affiants on October 29,
October 30, and November 4.
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impossible for me to comply with the rule in CR 56 as I was not in my office, nor was I

working in time to meet that deadline."

       Even though he was out of his office, Ness knew about Song's motion. In his

reply to Song's motion to strike the untimely filed response, Ness concedes that he

received Song's motion for summary judgment by fax on October 2—the day before he

left his office. Ness also conceded at argument before the trial court that he knew about

Song's motion while out of the office. Despite knowledge of Song's motion and his

upcoming law school reunion and surgery, Ness failed to notify opposing counsel or the

court about his unavailability. Nor did he seek to continue the hearing until the day

before the summary judgment hearing:

                 THE COURT: Nobody is checking your materials while you're out of the
       office?
               MR. NESS: Yes. I knew it [Song's motion for summary judgment] was
       there, but there was nothing that I could do.
              THE COURT: There was nothing you could do? So nobody could call
       counsel and say, you know, I'm out of the office . . . ?
              MR. NESS: Other than that, I agree.

Report of Proceedings (Nov. 8, 2013) at 5. The tardy filings prejudiced Song by

depriving him of an opportunity to rebut Ness's response. Ness's declaration detailing

his reasons for filing a late response to Song's motion contains no evidence that he was

unable to notify either opposing counsel or the court of his circumstances. Because

Ness failed to produce any evidence that he was unable to notify opposing counsel or

the court of his reunion and surgery prior to the deadline, he failed to establish
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excusable neglect. Under these circumstances, we conclude the trial court acted well

within its discretion when it declined to consider the untimely filed response.3

        Service by Publication

        But even if the trial court considered Ness's response, the outcome would have

been the same because her late response and declarations fail to demonstrate that

Song intended to avoid service. Therefore, we affirm the trial court's order dismissing

Ness's lawsuit with prejudice.4

        "First and basic to personal jurisdiction is service of process." Pascua v. Heil,

126 Wn. App. 520, 526, 108 P.3d 1253 (2005). "An elementary and fundamental

requirement of due process ... is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections." Mullane v. Cent. Hanover Bank &

Trust Co.. 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). "Because substitute

and constructive service are not the ideal methods of providing such notice, ... the

authorizing judge must closely scrutinize the facts provided, rather than merely serving



        3 While not the basis for the trial court's ruling, the trial court noted it never
received a working copy of Ness's response as required by Pierce County Local Rule
B(7):
                Working Copies. The assigned judicial department shall be furnished with
        a working copy of all motion papers. The working copies shall be delivered either
        directly to the judicial department or to the Court Administrator's office. Anyone
        e-filing motion papers shall be responsible for ensuring working copies are timely
        provided to the assigned judicial department. All working copies are to be
        delivered no later than the date and time they are required to be served on
        opposing parties.

        4Ness does not dispute that her lawsuit is time barred absent proper service of
process.

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as a rubber stamp, to ensure that substitute or constructive service is being used only

as a last resort." Pascua, 126 Wn. App. at 528.

       RCW 4.28.100 allows service by publication when the defendant cannot be found

and has absconded with the intent to defraud creditors or avoid service:

              When the defendant cannot be found within the state, and upon the filing
      of an affidavit of the plaintiff, his or her agent, or attorney, with the clerk of the
      court, stating that he or she believes that the defendant is not a resident of the
      state, or cannot be found therein, and that he or she has deposited a copy of the
      summons (substantially in the form prescribed in RCW 4.28.110) and complaint
      in the post office, directed to the defendant at his or her place of residence,
       unless it is stated in the affidavit that such residence is not known to the affiant,
      and stating the existence of one of the cases hereinafter specified, the service
      may be made by publication of the summons, by the plaintiff or his or her
      attorney in any of the following cases:

              (2) When the defendant, being a resident of this state, has departed
      therefrom with intent to defraud his or her creditors, or to avoid the service of a
      summons, or keeps himself or herself concealed therein with like intent.

RCW 4.28.100. Strict compliance with the statute is required for jurisdiction to attach

when a summons is served by publication. Kent v. Lee, 52 Wn. App. 576, 579, 762

P.2d 24 (1988). Washington courts have interpreted the statute to mean that a party

seeking an order allowing service by publication must show two elements. First, the

party must demonstrate that he "made reasonably diligent efforts to personally serve the

defendant." Boes v. Bisiar, 122 Wn. App. 569, 574, 94 P.3d 975 (2004). Second, the

party must "set forth facts supporting a conclusion that [the defendant] had left the state

or was concealing himself with intent to defraud creditors or avoid service of process."

Bruffv. Main, 87 Wn. App. 609, 612, 943 P.2d 295 (1997); see also Charboneau

Excavating, Inc. v. Turnipseed, 118 Wn. App. 358, 362-63, 75 P.3d 1011 (2003) ("One

claiming jurisdiction under [RCW 4.28.100(2)]. . . must produce . . . facts [that] show (1)


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that his efforts to personally serve the defendant were reasonably diligent, and (2) that

the defendant either (a) left the state with intent to defraud creditors or avoid service, or

(b) concealed himself within the state to defraud creditors or avoid service.").

       Even if we assume, without deciding, that Ness made reasonably diligent efforts

to locate and serve Song, Ness's response and declarations do not support a

conclusion that Song left the state or was concealing himself with intent to defraud

creditors or avoid service.5 The intent requirement under RCW 4.28.100(2) is separate

from the requirement that the plaintiff demonstrate he made reasonably diligent efforts

to personally serve the defendant. See, ejj., Pascua, 126 Wn. App. at 526 ("Substitute

service by mail or constructive service by publication is permissible when the plaintiff

sets forth the following facts: (1) that the defendant could not be found in Washington

after a diligent search, (2) that the defendant was a resident of Washington, and (3) that

the defendant had either left the state or concealed himself within it, with intent to

defraud creditors or avoid service of process."). The plaintiff must present facts raising

an inference that the defendant is attempting to defraud creditors or avoid process.

Bruff, 87 Wn. App. at 613; Pascua, 126 Wn. App. at 531. A record indicating the

plaintiff was unable to locate the defendant is not enough to demonstrate the required

intent. Bruff, 87 Wn. App. at 614. Further, there can be no finding of intent to defraud

or avoid process when the record indicates the defendant was unaware of the lawsuit or

       5 In her appellate brief, Ness fails to even mention the intent element required by
RCW4.28.100(2). Ness argues that her affidavit and declarations indicate that she
"undertook all the steps" necessary to show an "honest and reasonable effort" to locate
Song. Br. of Appellant at 6. Ness fails to argue that the affidavit or declarations show
that Song had the intent the statute requires for service by publication. See Palmer v.
Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) ("Passing treatment of an issue or
lack of reasoned argument is insufficient to merit judicial consideration.").
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the plaintiff's attempts to serve him. Pascua, 126 Wn. App. at 531 ("nothing in the

court's findings suggests that Crystal was aware of Pascua's suit or his attempts to

serve her."); Charboneau, 118 Wn. App. at 364 ("Nothing in the record shows that

Tumipseed was trying to conceal himself to avoid service of process, as opposed to

simply being ignorant of the existence of the suit.").

       In Bruff, we held that the plaintiff failed to present facts raising an inference that

the defendant intended to avoid service even though the plaintiff had made a

reasonably diligent effort to find the defendant. Bruff, 87 Wn. App. 613-14. The plaintiff

employed two private investigators who discovered the defendant had moved twice

since the incident giving rise to the lawsuit. Bruff, 87 Wn. App. 614. The plaintiff also

learned that the defendant had a history of credit problems, had no listed telephone

number, and had never lived at the address provided on the accident report. Bruff, 87

Wn. App. at 613. The plaintiff even contacted the defendant's parents in an effort to

locate him. Bruff, 87 Wn. App. at 613. We concluded that these facts, though

demonstrating a diligent effort, failed to support an inference that the defendant

intended to avoid service. Bruff, 87 Wn. App. at 614.

       Division Two of this court has also held that service by publication is

impermissible when the plaintiff fails to present facts raising an inference that the

defendant intended to avoid service. Pascua, 126 Wn. App. at 531-32; Charboneau,

118 Wn. App. at 364. In Pascua, the plaintiff used means to locate the defendant

similar to those used here by Ness.6 Pascua, 126 Wn. App. at 529. The plaintiff


       6 "In this case, the means Pascua used to locate [defendant] boil down to the
following: attempts to contact her at the phone number and address listed in the police
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discovered that the defendant had changed residences and telephone numbers and

had no current listed telephone number. Pascua, 126 Wn. App. at 531. The trial court

found that these facts indicated the defendant was attempting to avoid service, but the

court reversed, stating, "that [the defendant] had changed addresses and phone

numbers in the three years between the accident and the attempted service of process

does no more than suggest that [the defendant] is within the norm of Washington

residents." Pascua, 126 Wn. App. at 531. Importantly, the court held that the facts

presented by the plaintiff failed to demonstrate the intent required under RCW 4.28.100

because "nothing in the court's findings suggests that [the defendant] was aware of

Pascua's suit or his attempts to serve her." Pascua, 126 Wn. App. at 531.

       Similarly, in Charboneau the court held that the plaintiff had failed to show intent

even though he had attempted personal service multiple times at two different

addresses. Charboneau, 118 Wn. App. at 360-64. The court held that the plaintiff

failed to make a reasonably diligent effort because he did not contact several individuals

who could have provided him with the correct address. Charboneau. 118 Wn. App. at

363. The court also held, however, that the plaintiff failed to present facts raising an

inference that the defendant intended to avoid service, despite the plaintiff's multiple

unsuccessful attempts to personally serve the defendant. Charboneau, 118 Wn. App.

report; contacting the apartment manager at the Lacey address; and searches utilizing a
public records index, a phone directory, and internet search engines. While these
efforts might generally be considered sufficient, they are not here. What Pascua did not
do was attempt to locate [defendant] through contacting ... the registered owner of the
vehicle she was driving at the time of the accident. [The owner's] contact information
was in the police report. While '[n]ot all conceivable means need be employed,... the
accident report, if made, must be examined and the information therein investigated
with reasonable effort."' Pascua, 126 Wn. App. at 529 (quoting Martin v. Meier, 111
Wn.2d 471, 482, 760 P.2d 925 (1988)).
                                          -11-
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at 364. Like in Pascua, the court concluded that the plaintiff had failed to provide any

facts indicating the defendant was even aware of the lawsuit: "Nothing in the record

shows that [the defendant] was trying to conceal himself to avoid service of process, as

opposed to simply being ignorant of the existence of the suit." Charboneau, 118 Wn.

App. at 364.

       Here, even if Ness made sufficiently diligent efforts, nothing in the record

indicates Song intended to avoid service. Ness submitted three declarations from

Ronald Ness's secretary, Sheena Hudson, and two private investigators—James Harris

and Susan Montez. Collectively, the declarations detail Ness's effort to serve Song.

First, Hudson contacted Harris and instructed him to serve Song at a Tacoma address

she obtained from the original police report of the accident. Harris attempted service at

the Tacoma address but learned that Song no longer lived there. Second, Hudson then

contacted Montez who, using an internet subscription search program, discovered

Song's most recent address was in Covington, Washington. After receiving the new

Covington address, Harris attempted service three times in an eight-day span—May 23,

28, and 31. Harris was unsuccessful, so he left his business card at the Covington

address after the third attempt. Harris noted the house appeared vacant. No one left

copies of the complaint and summons at the Covington address.

       The declarations fail to set forth any facts indicating Song left the state or was

concealing himself with the intent to defraud creditors or avoid service. Together, the

declarations show that Ness attempted service at the address provided in the police

report from the accident and then, after learning Song had moved, attempted service

three times at Song's new address. At best, the declarations indicate only that Ness

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attempted service at Song's residence when no one was home.7 This is insufficient to

demonstrate Song had the intent required under RCW 4.28.100(2). See Bruff, 87 Wn.

App. at 614 ("the [plaintiffs'] affidavits contained no facts clearly suggesting that [the

defendant's] change of residence, or any other conduct, was undertaken with the intent

required by RCW 4.28.100(2). RCW 4.28.100(2) does not authorize service by

publication merely because the [plaintiffs] were unable to locate [the defendant], despite

diligent efforts.").

        If anything, the record shows that Song was unaware of Ness's lawsuit and her

attempts to serve him. Ness filed the lawsuit nearly three years after the accident

occurred. Song admits that he moved to the Covington address shortly after the

accident and continues to reside there. He also admits that he found the business card

James Harris left on his doorstep, but he did not understand why the card was left there.

Like in Pascua and Charboneau, "nothing in the record shows that [the defendant] was

trying to conceal himself to avoid service of process, as opposed to simply being

ignorant of the existence of the suit." Charboneau, 118 Wn. App. at 364; Pascua. 126

Wn. App. at 531.

        Because Ness fails to demonstrate Song acted with the intent required by the

statute, service by publication was improper.




      7 In her untimely filed response brief, Ness argued, "The plaintiff is not required to
show facts that clearly suggest an attempt to avoid service. The plaintiff is only required
to show that all statutory conditions are present for service by publication." But one of
the necessary statutory conditions is a demonstration of intent. Bruff, 87 Wn. App. at
612; Pascua, 126 Wn. App. at 526.


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                                      CONCLUSION

       Because the trial court acted within its discretion when it declined to consider

Ness's untimely filed response and because the response and declarations fail to

demonstrate the necessary intent for service by publication, we affirm the trial court's

order granting Song's motion for summary judgment of dismissal.




WE CONCUR:




                     ^




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