       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                           DIVISION ONE


ROBERT GIMERA and CHONGHWA                          )           No. 79852-9-I
GIMERA, a married couple,                           )
                                                    )           UNPUBLISHED OPINION
                               Appellants,          )
                                                    )
              v.                                    )
                                                    )
FIRST BAPTIST CHURCH OF ROSE                        )
HILL, a not-for-profit corporation, and             )
BRENT FORE,                                         )
                                                    )
                               Respondents.         )


        ANDRUS, A.C.J. – Three years after making large monetary donations to First

 Baptist Church of Rose Hill, ChongHwa Gimera commenced this suit, seeking a

 return of the funds, contending that she was suffering from mental illness at the

 time she made the gifts and could not form the requisite donative intent. The trial

 court dismissed Gimera’s claim against First Baptist on summary judgment on two

 independent grounds—Gimera failed to show she lacked capacity to bring the

 lawsuit within the applicable two-year statute of limitations and failed to

 demonstrate a genuine issue of material fact as to her donative intent in 2015. We

 conclude that Gimera’s claim is time-barred by the statute of limitations and affirm

 the dismissal of her claim.




      Citations and pin cites are based on the Westlaw online version of the cited material.
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                                            FACTS

        ChongHwa Gimera alleged that she made charitable donations in early

2015 to First Baptist Church of Rose Hill in Redmond. These donations included

a monthly donation of $370 between January and March 2015, as well as two large

donations—a $10,000 check and a $7,500 check, both in February 2015. Gimera

further alleged that she had cashed out her husband Robert’s 1 401k account in

order to write the large checks to First Baptist.

        On April 26, 2018, Gimera commenced this lawsuit, seeking an order

requiring First Baptist and its pastor, Brent Fore, to return the $17,500. Gimera,

who alleged that she had been diagnosed with schizoaffective disorder in 2003, 2

claimed that her mental illness precluded her from forming the requisite donative

intent in February 2015. Gimera further claimed that she did not realize until

December 2016 that her mental illness had caused her to withdraw Robert’s 401k

funds and make the February 2015 donations.

        In July 2018, First Baptist asked Gimera in discovery to produce medical

records to substantiate her alleged mental illness, but Gimera refused to comply

with the church’s request to identify her health care providers, to sign a medical

release to allow First Baptist to subpoena the records from those providers, or to

produce her medical records, claiming that these requests were an invasion of




1
  To avoid confusion, this opinion refers to Robert Gimera by his first name. We mean no
disrespect.
2
   “Schizoaffective disorder is a mental health disorder that is marked by a combination of
schizophrenia symptoms, such as hallucinations or delusions, and mood disorder symptoms, such
as depression or mania.”          https://www.mayoclinic.org/diseases-conditions/schizoaffective-
disorder/symptoms-causes/syc-20354504 (last visited 3/27/2020).


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privacy. In December 2018, Gimera produced some financial and medical records

to First Baptist. Among the documents were letters from Drs. Iris M. Del Toro,

dated June 2, 2018, and Brian D. Jaeger, dated May 21, 2018, both confirming

Gimera’s diagnosis of schizoaffective disorder. Dr. Del Toro, who diagnosed

Gimera with schizoaffective disorder in 2003, noted that Gimera’s mental illness

was episodic in nature and that it would result in “psychotic symptoms” followed by

a clearing of those symptoms. Neither doctor, however, opined that Gimera was

experiencing psychosis when she made the February 2015 donations to First

Baptist.

       On January 9, 2019, Gimera prepared a declaration in which she argued

that First Baptist’s discovery request was unreasonable. A few days later, on

January 14, Gimera produced some documents indicating she had been

involuntarily committed for psychiatric treatment in 2002 and 2006.

       After Gimera’s limited document production, First Baptist filed a motion to

compel discovery from Gimera. First Baptist sought an order requiring Gimera to

identify her and Robert’s health care providers, to produce copies of all health care

or medical records, and to produce any legal guardianship records in their

possession. It appears that Gimera, in response to this motion, filed a motion for

a protective order to restrict First Baptist’s access to her medical records, although

that motion is not in the record before us.

       The trial court granted First Baptist’s motion to compel and denied Gimera’s

motion for a protective order on February 21, 2019. The court ordered Gimera to

answer First Baptist’s interrogatories and requests for production within 14 days of



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the order. It also required Gimera to sign and deliver to First Baptist’s counsel a

medical authorization to release records to First Baptist within seven days of the

order. The court ruled that if the Gimeras failed to comply with the order, “they

shall be precluded from offering any evidence of their alleged mental incapacity to

form the intent to make a charitable gift to Defendants at trial or in dispositive

motions.” Gimera did not comply with this court order.

      Gimera moved for summary judgment on February 25, 2019.              Gimera

argued that the evidence she had produced to First Baptist during discovery

demonstrated that she had a history of mental illness and that she lacked donative

intent in February 2015. Gimera did not attach any evidence to her summary

judgment motion; instead, it appears that she relied on a set of medical records

she had filed under seal with the court in December 2018 and January 2019.

      First Baptist moved for summary judgment on March 8, 2019, and filed an

opposition to Gimera’s motion on March 20, 2019.         First Baptist argued that

because Gimera refused to produce or otherwise authorize First Baptist to request

her medical records from her providers, Gimera was precluded from presenting

evidence of her mental illness to support the allegation that she suffered from

symptoms of her schizoaffective disorder in February 2015 and could not form the

requisite donative intent when she made the donations to First Baptist. It further

argued that Gimera also could not show that the applicable statute of limitations

tolled until December 2016, when she claimed she realized that she was suffering

from mental illness when she made the donations in February 2015.




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        On April 5, 2019, the trial court granted First Baptist’s motion for summary

judgment and denied Gimera’s motion for summary judgment. The trial court

found that Gimera had failed to comply with its February 21, 2019 discovery order

and that it was appropriate to sanction Gimera under CR 37(b)(2)(B) for her

noncompliance by precluding her from offering evidence of her or Robert’s alleged

mental incapacity to form the intent to make charitable gifts to First Baptist. It ruled

that even if it were to consider the medical evidence Gimera proffered, it was

insufficient to create a genuine issue of material fact. It deemed the letters from

Drs. Del Toro and Jaeger insufficient to raise a genuine issue of fact as to Gimera’s

capacity to make gifts because neither doctor so stated. The trial court further

concluded that Gimera’s lawsuit was barred by the two-year statute of limitations

of RCW 4.16.130. The trial court thus dismissed Gimera’s claims against First

Baptist and Brent Fore with prejudice. Gimera appeals.

                                            ANALYSIS

        Gimera raises two main assignments of error on appeal. 3 First, she

challenges the trial court’s order excluding her evidence for non-compliance with

the discovery order, arguing that the trial court did not give her adequate time to




3
  As First Baptist points out, Gimera’s briefing does not comply with the Rules of Appellate
Procedure (RAP), specifically RAP 10.3(a). Although we agree that the briefing does not cite to
any legal authorities or references to relevant parts of the record, her assignments of error are clear
enough to allow First Baptist to respond and for this court to address them.

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comply. 4 Second, she contends that the trial court erred in dismissing her claims

as time-barred or as unsupported factually. 5

    Order Compelling Discovery and Exclusion of Evidence as Sanction for Non-
                                  Compliance

        We review a trial court's order compelling discovery and any order imposing

discovery sanctions for abuse of discretion. Wash. State Physicians Ins. Exch. &

Ass’n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993); Richardson v.

Gov’t Employees Ins. Co., 200 Wn. App. 705, 711, 403 P.3d 115 (2017). “A trial

court exercises broad discretion in imposing discovery sanctions under CR 26(g)

or 37(b), and its determination will not be disturbed absent a clear abuse of

discretion.” Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

“A trial court abuses its discretion when its order is manifestly unreasonable or

based on untenable grounds.” Fisons, 122 Wn.2d at 339. A discretionary decision

rests on untenable grounds or is based on untenable reasons if the trial court relies

on unsupported facts or applies the wrong legal standard. Magana v. Hyundai

Motor Am., 167 Wn.2d 570, 582-83, 220 P.3d 19 (2009). The court's decision is

manifestly unreasonable if the court, despite applying the correct legal standard to

the supported facts, adopts a view that no reasonable person would take. Id. at

583.




4
 Assignment of Error No. 2 asserts that the discovery order granted to First Baptist was issued
only a few days before the discovery cutoff and failed to provide Gimera with sufficient time to act
on it.
5
 Assignments of Error Nos. 1 and 3 assert that the statute of limitations should have been tolled
until December 2016 and the applicable limitations period was three years. Assignments of Error
4 through 6 generally challenge the trial court’s conclusion that her evidence was insufficient.

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       Gimera argues that the trial court should not have disregarded her evidence

of her mental incapacity because she was not provided sufficient time to comply

with the court’s order. We conclude that the record does not support her argument.

       The trial court’s February 21, 2019 discovery order provided Gimera with

14 days to complete specific interrogatories and requests for production. The

order also gave Gimera 7 days in which to sign a medical release. When Gimera

failed to comply with the discovery order, First Baptist filed its summary judgment

motion on March 8, 2019, exactly 14 days after entry of the trial court’s order.

Counsel for First Baptist notified the court that Gimera had neither answered the

specified interrogatories or requests for production, nor signed the medical

release.

       The hearing on the summary judgment motions did not occur until April 5,

2019, almost six weeks after the trial court had ordered Gimera to answer First

Baptist’s discovery. Gimera had still not complied with the order, despite admitting

she had reviewed the order. At the summary judgment hearing, Gimera argued

that she did not realize the order required her to sign a medical release and

assumed defense counsel could simply contact her medical providers and speak

with them directly about her condition. When the court challenged her explanation,

she said that with the discovery cutoff so near, she did not know what she “was

able to do and not able to do.” The trial court rejected this justification for her non-

compliance because it had to treat her, a self-represented plaintiff, no differently

than it treated attorneys.




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       We conclude that the trial court did not abuse its discretion.        A self-

represented litigant is generally held to the same standard as an attorney unless

that person suffers from a significant mental disability such that they are incapable

of understanding the legal proceedings. Carver v. State, 147 Wn. App. 567, 575,

197 P.3d 678 (2008). We have no evidence of such disability here. Gimera filed

her own motions and prepared responsive pleadings to First Baptist’s motions,

advocating her positions and citing court rules and case law to support her

arguments. She submitted declarations in which she represented to the court that

she was competent to testify about the facts of her case. The court’s discovery

order was very clear, and Gimera’s pleadings and her statements at the hearing

did not demonstrate a mental disability that precluded her from understanding the

plain language in the order. We find no abuse of discretion in the trial court’s

discovery sanctions order.

                               Summary Judgment

       Gimera next contends that the trial court erred in concluding her claim was

time-barred, arguing that her mental illness precluded her from filing the lawsuit in

a timely manner. We disagree.

       We review summary judgment orders de novo, considering all of the

evidence and reasonable inferences in the light most favorable to the non-moving

party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary

judgment is appropriate when there is no genuine issue of material fact. Id.

       The trial court determined that the applicable statute of limitations in this

case is RCW 4.16.130 which provides: “An action for relief not hereinbefore



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provided for, shall be commenced within two years after the cause of action shall

have accrued.” Gimera contends the statute of limitations is three years, rather

than two, but she does not cite to any statute for this proposition. But the limitation

period for seeking to revoke a gift is not specifically provided for in any other

statute. Thus, the court correctly concluded that the default, two-year limitations

period applies. Gimera made her gifts to the church in February 2015 and did not

file her lawsuit until April 2018, more than two years after the events giving rise to

her claim. Unless there is a basis for tolling the limitations period, her claims are

time-barred.

       Gimera argues that under RCW 4.16.190, the statute of limitations should

have been tolled until December 2016, when she realized that she was

experiencing an episode of psychosis at the time she made the donations. While

a defendant carries the burden of proof to show that a plaintiff’s claims are time-

barred, the plaintiff bears the burden of proof “if he or she alleges that the statute

was tolled and does not bar the claim.” Rivas v. Overlake Hosp. Med. Ctr., 164

Wn.2d 261, 267, 189 P.3d 753 (2008). Under RCW 4.16.190:

       [I]f a person entitled to bring an action mentioned in this chapter . . .
       be at the time the cause of action accrued . . . incompetent or
       disabled to such a degree that he or she cannot understand the
       nature of the proceedings . . . the time of such disability shall not be
       a part of the time limited for the commencement of action.

“For this statute to apply, the plaintiff's incompetency or disability must exist at the

time the cause of action accrues.” Rivas, 164 Wn.2d at 267.

       Gimera failed to make an adequate showing of incompetency or disability

to justify tolling the statute of limitations until December 2016, some 21 months



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after she made the gifts to the church. Gimera’s evidence did not demonstrate an

incompetency or disability between February 2015 and December 2016 that was

so significant that she was incapable of understanding her legal rights at any point

during that time period. Indeed, Dr. Del Toro, in her letter, indicated that she was

responding to Gimera’s letters from May 2016 regarding the possibility that

Gimera’s tithing may have occurred during times of psychotic thinking. Dr. Del

Toro’s letter strongly suggests that Gimera was well enough by May of 2016 to

seek Dr. Del Toro’s opinion regarding her mental illness. And there is nothing in

Dr. Del Toro’s letter to provide the trial court with any dates on which Gimera was

suffering from an episode of psychosis. Because Gimera’s symptoms are, as Dr.

Del Toro described, episodic, we cannot conclude from this record that Gimera

was experiencing psychosis from February 2015 to December 2016 to justify

tolling the statute of limitations.

       We conclude that the trial court did not err in dismissing Gimera’s claim as

time-barred. Because we so conclude, we need not address the issue of the

sufficiency of the evidence to defeat summary judgment on the merits.

       Affirmed.




WE CONCUR:




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