       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PEGGI NORTHWICK,                                 No. 72517-3-1


                     Respondent,                 DIVISION ONE



                                                 UNPUBLISHED OPINION
ANDREW LONG,

                     Petitioner.                 FILED: November 30, 2015


       Leach, J. — A commissioner of this court granted Andrew Long's request

for discretionary review of the trial court's order denying his motion to dismiss for

insufficient service of process.   Long challenges the trial court's denial of his

request for an evidentiary hearing, its consideration of the process server's

testimony, and the denial of his motion.        The trial court did not abuse its

discretion by denying Long's untimely request for an evidentiary hearing or by

considering the challenged evidence. Because Northwick presented prima facie

proof of proper service and Long did not present clear and convincing evidence

to show otherwise, we affirm the trial court and remand for further proceedings.

                                      FACTS


       On March 6, 2014, Peggi Northwick started this lawsuit by filing a

summons and complaint for damages against Andrew Long in King County

Superior Court. The complaint alleged that Long was the at-fault driver in a car
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collision.   Northwick served Long by leaving copies of the summons and

complaint with his father at a Snohomish, Washington, address. Records show

Long's car registered to this address.

        Long filed a motion to dismiss, claiming insufficient service of process.

Long supported his motion with a declaration from his father, Hoeun Long.1 Long

did not provide his own declaration. In Hoeun's declaration, he said that Andrew

moved out some time before December 25, 2013.        Hoeun also said that a man

came to his house on March 8, 2014, and that Hoeun told the man that Andrew

was his son. Hoeun said that the man did not ask if Andrew lived with him at that


time. Hoeun also stated that the man did not request, nor did Hoeun offer to tell

him, Andrew's current address. Hoeun also said in his declaration that Andrew

had his own car in his name, did not receive mail at the Snohomish house, and

was working and going to school in Texas.

        Northwick deposed her process server, Randy Bennett, on July 21, 2014.

Bennett testified that on March 8, 2014, he went to Andrew's last known address,

in Snohomish, Washington, to serve the summons and complaint.            Bennett

spoke to Hoeun at the door.     Hoeun identified himself as Andrew's father and

said Andrew lived there. When Bennett told Hoeun that he had a delivery for

Andrew, Hoeun told Bennett that Andrew was not home but would be home very



        1 Because the parties share the same last name, we refer to them by their
first names for clarity. We intend no disrespect.
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late that night.   Bennett explained to Hoeun that he was dropping off legal

documents, and Hoeun agreed to deliver them to Andrew. According to Bennett,

Hoeun then again confirmed that Andrew lived at the address.

       Bennett left the house, stopped approximately a half mile away, and wrote

all of his notes about the conversation on his messenger slip. The declaration of

service was filed with the clerk of the trial court on March 24, 2014.        At his

deposition, Bennett testified that getting multiple confirmations of the residence of

the defendant from a coresident was his typical practice. Bennett also testified

about his review of Andrew's vehicle identification from the Washington

Department of Licensing (DOL) database, a TransUnion Locate report, and a

U.S. Postal Service trace which confirmed that Andrew resided at the Snohomish

address as late as May 8, 2014.

       Hoeun says he did not give the documents to Andrew. Andrew's defense

counsel disclosed Andrew's Texas address in a letter dated July 8, 2014,

responding to efforts from Northwick's counsel to depose Andrew.

       Andrew filed a motion to dismiss on June 18, 2014.         After hearing oral

argument, the trial court denied the motion. On September 2, 2014, the trial

court denied Andrew's motion for reconsideration and his request for an

evidentiary hearing. Andrew asked for discretionary review.
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                            STANDARD OF REVIEW


      We review the sufficiency of service of process de novo.2            As a

consequence, we also review evidentiary rulings on admissibility made in

connection with this issue de novo.3   We review for abuse of discretion a trial

court's denial of a request for an evidentiary hearing.4 A trial court abuses its

discretion when it makes a manifestly unreasonable decision or bases it on

untenable grounds.5

                                   ANALYSIS


      Andrew makes three claims: (1) that he was not properly served, (2) that

the trial court should not have considered parts of Bennett's deposition

testimony, and (3) that the trial court should have conducted an evidentiary

hearing before ruling on his motion.

Service of Process


      Andrew first challenges the sufficiency of service of process. A plaintiff

may serve process personally on a defendant or by leaving a copy of the

summons at the defendant's usual abode with a person of suitable age and




      2 Scanlan v. Townsend. 181 Wn.2d 838, 847, 336 P.3d 115 (2014).
      3 Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); Keck
v. Collins     Wn.2d      , 357 P.3d 1080, 1085 (2015).
        4 Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994).
      5 In re Pet, of Duncan. 167 Wn.2d 398, 402, 219 P.3d 666 (2009).
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discretion who resides there.6    Proper service of the summons and complaint

provides the court with personal jurisdiction over a party.7

      When a defendant challenges service of process, the plaintiff has the

initial burden of proof to establish a prima facie case of proper service.8 A

plaintiff can establish a prima facie case by providing a declaration of a process

server, regular in form and substance.9 Then the challenging party must show by

clear and convincing evidence that service was improper.10

       Here, the parties agree that Bennett did not serve Andrew with a copy of

the summons and complaint.        Therefore, Northwick must show that Bennett

completed proper substitute service by serving at Andrew's usual place of abode

a person of suitable age and discretion who resides at that address.11 The term

"usual place of abode" means '"such center of one's domestic activity that service

left with a family member is reasonably calculated to come to one's attention




       6 RCW 4.28.080(15).
       7 Woodruff, 76 Wn. App. at 209-10 (citing Lee v. W. Processing Co., 35
Wn. App. 466, 469, 667 P.2d 638 (1983)).
     8 Gross v. Sunding, 139 Wn. App. 54, 60, 161 P.3d 380 (2007) (citing
Woodruff, 76 Wn. App. at 209-10).
       9 State ex rel. Couohlin v. Jenkins, 102 Wn. App. 60, 65, 7 P.3d 818
(2000).
       10 Woodruff, 76 Wn. App. at 210.
       11 Streeter-Dvbdahl v. Nguvet Huynh, 157 Wn. App. 408, 412-13, 236
P.3d 986 (2010).
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within the statutory period for [the] defendant to appear.'"12 The parties dispute

the location of Andrew's abode at the time Northwick attempted service.

      Andrew agrees Northwick met her initial prima facie burden with Bennett's

declaration of service but contends Hoeun's declaration demonstrated it was


"highly probable" that Andrew did not reside at the Snohomish address, rebutting

any presumption created by the declaration of service.13 Andrew argues that the

burden then shifted back to Northwick to ultimately demonstrate proper service

by a preponderance of the evidence that Andrew resided at the Snohomish

address. Northwick responds that Andrew did not produce clear and convincing

evidence that proper service did not occur. As a result, Andrew failed to satisfy

his burden under the burden-shifting analysis.

      To support her position, Northwick cites cases where the defendant failed

to produce clear and convincing evidence, including no credible evidence of a

different place of usual abode. In State ex rel. Couqhlin v. Jenkins,14 Division

Two of this court concluded that affidavits from the defendant's mother and ex-


wife, stating that the defendant did not live at the place where substitute service

occurred, did not amount to clear and convincing evidence of improper service of

process when weighed against evidence of mail to and from that address which

       12 Streeter-Dvbdahl, 157 Wn. App. at 413 (alteration in original) (internal
quotation marks omitted) (quoting Sheldon v. Fettiq, 129 Wn.2d 601, 610, 919
P.2d 1209 (1996)).
      13 In re Pet, of LaBelle, 107 Wn.2d 196, 209, 728 P.2d 138 (1986).
       14 102 Wn. App. 60, 64-65, 7 P.3d 818 (2000).
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demonstrated he did reside there. And in Woodruff v. Spence,15 the court held

that the defendant failed to establish that service was insufficient, even though

the defendant did establish he was not at the residence on the date of service

and denied ever actually receiving the documents served.

      Northwick also contrasts Andrew's evidence with evidence a court has

found clear and convincing. In Gross v. Evert-Rosenberg,16 the court held that

for purposes of substitute service, a house owned by the defendant but leased to

her daughter and son-in-law was not the defendant's house of usual abode

because the defendant produced evidence that she had established a new

address by notifying the post office, obtaining a new driver's license, and

informing her regular creditors. Andrew did not produce any similar evidence.

      Andrew    contends   that   Northwick's   evidence,   the   declaration   and

deposition of Bennett, and the information from the subsequent investigation

merely show that Andrew did not promptly update his contact information with the

post office and DOL. Andrew asserts that these reports failed to demonstrate

that he was actually living at the Snohomish address on March 8, 2014. Andrew

uses two Washington cases to support his argument that this type of evidence is

insufficient to establish that a particular home is a defendant's abode.         In

Streeter-Dvbdahl v. Nguvet Huvnh,17 this court noted, "[T]he use of a particular

       15 88 Wn. App. 565, 570-71, 945 P.2d 745 (1997).
       16 85 Wn. App. 539, 541, 543, 933 P.2d 439 (1997).
       17 157 Wn. App. 408, 414, 236 P.3d 986 (2008).
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address for a limited purpose is not a critical factor in determining a center of

domestic activity." Similarly in Vukich v. Anderson.18 the Division Three of this

court held that the defendant's unrefuted evidence was clear and convincing

when he presented evidence of a California bank account, home purchase,

lease, and tenant's statement showing he resided elsewhere.

       Northwick distinguishes these cases. Northwick points out that in cases in

which the court found clear and convincing evidence of improper service, the

defendant, unlike Andrew, presented substantial evidence that would have been

available to a reasonably diligent plaintiff.19

       We agree with Northwick. Northwick, through a registered process server,

served Andrew within the statutory period at his last known address. Although

Andrew presented a declaration from his father stating that Andrew had not lived

at the Snohomish address since December 2013, he did not present his own

declaration. Northwick responded with evidence challenging Hoeun's credibility:

evidence that Hoeun told the process server that Andrew would be home later

that same evening and that Andrew lived at the address.           Northwick also

presented evidence that Andrew's address on file with the post office and the

      18 97 Wn. App. 684, 690-91, 985 P.2d 952 (1999).
      19 Vukich, 97 Wn. App. at 690-91 (defendant presented unrefuted
evidence of other residence included a lease, tenant's statement, California bank
account, California home purchase, and mail forwarding); Streeter-Dvbdahl, 157
Wn. App. at 411-12 (defendant's evidence of other residence included property
records showing she purchased a different residence almost eight months before
service was attempted at the old address).
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NO. 72517-3-1/9



DOL at the time of service was the Snohomish address. Andrew produced no

similar evidence for a different address. He provided no documentation relating

to housing, banking, and other activities highly probative of domestic activity

linking him to a different address.20   When a party fails to produce relevant

evidence within its control without satisfactory explanation, the trial court is

permitted to draw the inference that the evidence would be unfavorable to the

nonproducing party.21

      We conclude that Andrew failed to prove by clear and convincing evidence

that service was improper.

Hearsay

      Andrew next asserts that the trial court improperly relied on Bennett's

testimony about his conversation with Hoeun because it constituted inadmissible

hearsay that the trial court should not have considered.

      "'Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted."22 An error in admitting evidence that does not prejudice the

defendant is not grounds for reversal.23 "[Ejrror is not prejudicial unless, within


      20 Evert-Rosenberg, 85 Wn. App. at 543; Streeter-Dvbdahl, 157 Wn. App.
at 414; Vukich, 97 Wn. App. at 690-91.
       21 Lvnott v. Nat'l Union Fire Ins. Co., 123 Wn.2d 678, 689, 871 P.2d 146
(1994).
      22 ER 801(c).
      23 State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).
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NO. 72517-3-1/10



reasonable probabilities, the outcome of the trial would have been materially

affected had the error not occurred."24

      Although the trial court indicated in its ruling that it was not relying on

Bennett's statements in the deposition about Hoeun for the truth they asserted,

Andrew contends that in making credibility determinations, the trial judge had to

rely on the truth of Bennett's statements. Andrew analogizes these statements to

those in Enslev v. Mollmann.25 In that case, this court concluded that portions of

a deposition, in which a witness said a bartender told him that the defendant had

glassy eyes and should not be served, were inadmissible hearsay.26
       But in Enslev, the bartender's statements were being offered to prove that

the defendant showed obvious signs of intoxication.     However, here, Hoeun's

statements were not offered to prove the truth of the matter asserted. Hoeun's

statements were used to show their effect on Bennett's reasoning. Bennett told

Hoeun that he had a delivery for Andrew; Hoeun said that Andrew would be

home later that evening and confirmed, more than once, that he lived there with

Andrew. Northwick did not offer Bennett's testimony about Hoeun's statements

to prove that Andrew was returning that night, or that Hoeun lived there with

Andrew, but to prove the effect that it had on the listener: that Bennett "didn't


       24 State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); accord State
v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
       25 155 Wn. App. 744, 230 P.3d 599 (2010).
       26 Enslev, 155 Wn. App. at 748, 751 -55.
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NO. 72517-3-1/11



need to ask his address because [Hoeun] said he lived there and said he would

be back that night." In his deposition, Bennett testified that had Hoeun said

Andrew moved away, Bennett would have asked for another address.

      Also, Hoeun denied that Bennett even asked if Andrew resided at the

Snohomish address. In evaluating Hoeun's credibility, the court could consider

which witness's version of the conversation comported with ordinary human

experience and conclude that an experienced process server would likely ask if a

person resided at an address before leaving process there. Thus, we conclude

that Bennett's statements about his conversation with Hoeun were not hearsay

because the statements were not offered for the truth of the matter they asserted.

Evidentiary Hearing

       Andrew contends that the trial court abused its discretion when it weighed

credibility without holding an evidentiary hearing when presented with a

legitimate conflict in the evidence.

       Andrew argues that the trial court unfairly compared Hoeun's declaration

to Bennett's deposition because Hoeun "could not have anticipated the manner

in which his declaration would be questioned." Andrew asserts that because the

trial court had to make a credibility determination between Hoeun and Bennett, it

must conduct a fact-finding hearing, and failing to do so was an abuse of

discretion.



                                       -11-
NO. 72517-3-1/12



       Northwick asserts that the trial court properly weighed the evidence.

Additionally, Northwick points out that Andrew's counsel had the opportunity to

cross-examine Bennett at the deposition, whereas Northwick could not cross-

examine Hoeun. Andrew replies that the trial court abused its discretion when it

relied on the "subjective beliefs" of Bennett instead of holding an evidentiary

hearing. Additionally, Andrew argues that the court, in acting as the fact-finder

on the issue of service, needed to hear the testimony of the witnesses to properly

weigh credibility and resolve disputed facts.27

       The trial court, in its discretion, may direct that an issue raised by motion

be heard on oral testimony if needed to make a just determination of the

outcome.28 The party challenging the trial court's decision not to conduct a

hearing must make a clear showing of abuse of discretion.29               In some

circumstances, a trial court may abuse its discretion by failing to hold an

evidentiary hearing.30

       Although the trial court could have held an evidentiary hearing with live

testimony, the trial court had discretion not to do so. In Woodruff. Division Three

of this court reversed the judgment of the trial court and remanded the case for



       27 State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
       28 Woodruff, 76 Wn. App. at 210; CR 43(e)(1).
       29 Farmer v. Davis, 161 Wn. App. 420, 430, 250 P.3d 138 (2011) (citing jn
re Pet, of Schuoler, 106 Wn.2d 500, 512, 723 P.2d 1103(1986)).
       30 Woodruff, 76 Wn. App. at 210.
                                        -12-
NO. 72517-3-1/13



an evidentiary hearing on the issue of service.31 The defendant filed an affidavit

stating that he was not at his residence on the day of the alleged service.32 The

defendant also provided affidavits from two other individuals who were at the

address that day and said they did not see a process server.33 The court found

that the defendant's affidavits presented an issue of fact that could be resolved

only by determining the credibility of the witnesses.34

       Unlike   in Woodruff,       where the defendant presented three sworn

documents attesting to the defendant's whereabouts, Andrew did not present his

declaration and relied exclusively on one from his father.      More significantly,

unlike Woodruff, Andrew had the opportunity to cross-examine the plaintiffs

primary witness, Bennett, and present any weakness in his testimony to the

court. He did not challenge the veracity of Northwick's documentary evidence.

He fails to show how the lack of an evidentiary hearing prejudiced him or was

needed by the trial court to evaluate the credibility of the two primary witnesses.

Andrew completely controlled the evidence produced by Hoeun and had a full

opportunity to discover and test Bennett's testimony.

       We also find important the timing of Andrew's request. Andrew did not

ask for an evidentiary hearing until after the trial court ruled against him.


       31 Woodruff,   76   Wn.   App.   at   210.
       32 Woodruff,   76   Wn.   App.   at   209.
       33 Woodruff,   76   Wn.   App.   at   209-10.
       34 Woodruff,   76   Wn.   App.   at   210.
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NO. 72517-3-1/14



Apparently, Andrew thought the trial court record was adequate until it did not

produce the result he desired. Under the facts of this case, the trial court did not

abuse its discretion by not holding an evidentiary hearing.

                                  CONCLUSION


       Because Northwick proved her prima facie case and Andrew did not

demonstrate by clear and convincing evidence that service was improper, the

trial court properly denied the motion to dismiss. The trial court appropriately

considered Bennett's statements about his conversation with Hoeun because

Northwick did not offer them to prove the truth of the matter asserted. Because

the trial court had a sufficient record to evaluate witness credibility, Andrew

cannot show prejudice from the lack of an evidentiary hearing, and Andrew

waited too long to request one. The trial court did not abuse its discretion by

denying his untimely request. Thus, we affirm the trial court and remand for

further proceedings.




                                                    M~J
WE CONCUR:




  T>'"M'v i ^                                     W-A f aT .

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