       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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                                                                                                          550
RICHARD AZPITARTE,
                                                          No. 72961-6-
                        Appellant,                                                                i

                                                          DIVISION ONE
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                                                          UNPUBLISHED OPINION
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KING COUNTY, DENOBI OLEGBA,                                                                   07
                                                                                                         3S
ELIZABETH DERAITUS, STEPHANIE
WARDEN, LAMAR REED, SCOTT
LAVIELLE, and SYDNEY JACKSON,

                        Respondent.                       FILED: June 6, 2016


         SPEARMAN, J. - Richard Azpitarte filed two federal lawsuits against King

County and other defendants, alleging various acts of retaliation, including

harassment by helicopter. In each case, the federal district court entered a final

judgment dismissing the action on the merits. Azpitarte then filed a third lawsuit
against the same defendants in King County Superior Court. Concluding that
collateral estoppel and res judicata barred Azpitarte's attempt to relitigate the

identical claims, the trial court dismissed the action. Finding no error, we affirm.

                                                    FACTS

         For purposes of this appeal, the relevant facts are undisputed.1 Azpitarte

alleges that ever since he won a discrimination lawsuit against King County in 1989,



    1Virtually all of Azpitarte's factual assertions and legal arguments are unsupported by any
meaningful reference to the record or citation to relevantauthority, in violation of RAP 10.3(a)(5) and
(6).
No. 72961-6-1/2



the County has engaged in a continuing campaign of retaliation against him. He

claims the County's acts of retaliation included the enforcement of code violations

involving the accumulation of junk, debris, and vehicles on his property, the negligent

removal of vehicles from his property, and the County's regular use of a helicopter to

"buzz his house ... in the middle of the night... [and] hover over his house, shining

spotlights in windows."2

       On October 31, 2007, Azpitarte filed a lawsuit (Azpitarte I) against the County

and other defendants (collectively the County) in King County Superior Court,

alleging claims based on retaliation. In December 2007, the defendants removed the

action to federal court. On March 3, 2009, the federal district court dismissed

Azpitarte I with prejudice for failure to prosecute and failure to comply with the court's

orders and rules. The district court noted Azpitarte's "pattern of unprofessionalism

and unreasonable delay throughout [the] entire litigation, from discovery, to motion

briefing, to mediation, to the preparation of pretrial statement."3

       Azpitarte filed a second lawsuit in federal court in July 2010 (Azpitarte II),

raising similar federal claims and state claims based on the alleged acts of retaliation.

The district court dismissed the action on June 23, 2011. The court found that

Azpitarte's claims of harassment through March 3, 2009, were based on the same

facts underlying his claims in Azpitarte I. Because Azpitarte I dismissed those claims
with prejudice, the court concluded that res judicata barred the same claims through
March 3, 2009, in Azpitarte II. The court further determined that although res judicata



    2 Br. of App. at 4.

    3 Clerk's Papers (CP) at 127.
No. 72961-6-1/3



did not bar Azpitarte's claims for helicopter harassment occurring after the dismissal

in Azpitarte I, his allegations did not state a claim under 42 U.S.C. § 1983. The court

dismissed Azpitarte's claims "arising after March 3, 2009" without prejudice. The

court denied Azpitarte's motion for reconsideration on August 2, 2011, and Azpitarte

appealed to the Ninth Circuit.

       On November 30, 2011, while his appeal in Azpitarte II was pending, Azpitarte

filed the current action (Azpitarte III) in Snohomish County Superior Court. Azpitarte

alleged essentially the identical facts and state law claims that he raised in Azpitarte

N. The trial court later granted the County's motion to change venue to King County.

       On January 3, 2013, the Ninth Circuit affirmed the district court's dismissal of

Azpitarte's state and federal claims arising before March 3, 2009, agreeing that they

were barred by res judicata. The court remanded Azpitarte's § 1983 claim based on

ongoing helicopter harassment after March 3, 2009, concluding that he had

sufficiently pleaded a Fourteenth Amendment violation. Azpitarte v. King County.

2013 WL 29485 (9th Cir. 2013) (citing Ninez v. City of Los Angeles, 147 F.3d 867,

871 (9th Cir. 1998)).

       On remand, the only claims remaining before the district court in Azpitarte II

involved Azpitarte's allegations of helicopter harassment occurring after March 3,

2009. The County moved for summary judgment, contending that Azpitarte had

failed to present any evidence of helicopter harassment occurring after March 3,

2009. After granting Azpitarte's request for additional time to present materials, the

district court concluded that Azpitarte's supplemental materials provided no evidence

of helicopter harassment occurring after March 3, 2009. On October 8, 2014, the



                                             -3-
No. 72961-6-1/4



court granted summary judgment and dismissed Azpitarte's remaining state and

federal claims with prejudice.

       Azpitarte moved for reconsideration, asserting that the district court lacked

jurisdiction to dismiss his state law claims. The district court concluded that it had

jurisdiction and denied reconsideration on November 5, 2014.

       Azpitarte did not appeal the district court orders.

       In Azpitarte III, the County moved for summary judgment, arguing that res

judicata barred Azpitarte from relitigating the same claims rejected in Azpitarte II.

The trial court granted the County's motion on December 5, 2014.

       Azpitarte appeals.

                                          DISCUSSION

       Azpitarte contends the trial court erred in dismissing his state claims based on

the preclusive effect of Azpitarte II. He argues that neither collateral estoppel nor res

judicata bars his claims in Azpitarte III because the federal district court in Azpitarte II

lacked subject matter jurisdiction to rule on the merits of his state claims. Azpitarte

also contends the trial court abused its discretion by not allowing discovery.

       An appellate court reviews the trial court's decision on summary judgment de

novo. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). We engage "in

the same inquiry as the trial court, with questions of law reviewed de novo and the

facts and all reasonable inferences from the facts viewed in the light most favorable

to the nonmoving party." Christensen v. Grant County Hosp. Dist. No. 1. 152 Wn.2d

299, 305, 96 P.3d 957 (2004). Whether collateral estoppel or res judicata bar

relitigation of an issue or claim is reviewed de novo. ]d. Summary judgment is
No. 72961-6-1/5



proper only if there is no genuine issue of material fact. CR 56(c); Keck, 184 Wn.2d

at 370.

          Collateral estoppel, or issue preclusion, prohibits parties from relitigating

issues in a subsequent proceeding, even if they assert different claims or causes of

action. Christensen, 152 Wn.2d at 306. The party seeking to apply collateral

estoppel must establish:

          (1) the issue decided in the earlier proceeding was identical to the
          issue presented in the later proceeding, (2) the earlier proceeding
          ended in a judgment on the merits, (3) the party against whom
          collateral estoppel is asserted was a party to, or in privity with a party
          to, the earlier proceeding, and (4) application of collateral estoppel
          does not work an injustice on the party against whom it is applied.
Id, at 307.

          "Res judicata, or claim preclusion, prohibits the relitigation of claims and

issues that were litigated, or could have been litigated, in a prior action." Pederson v.

Potter, 103 Wn. App. 62, 67, 11 P.3d 833 (2000). Res judicata applies ifthe prior

judgment has "a concurrence of identity" with the subsequent action in (1) subject
matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons

for or against whom the claim is made. Rains v. State. 100 Wn.2d 660, 663, 674

P.2d 165 (1983). Res judicata "'is intended to prevent relitigation of an entire cause

of action and collateral estoppel is intended to prevent retrial of one or more of the

crucial issues or determinative facts determined in previous litigation.'" Christensen,

152 Wn.2d at 306 (quoting Luisi Truck Lines. Inc. v. Wash. Utils. &Transp. Comm'n.

72 Wn.2d 887, 894, 435 P.2d 654 (1967)).
No. 72961-6-1/6


       When determining the preclusive effect of a federal court decision, this court

applies federal law. DeiaVu Everett-Federal Way, Inc. v. City of Federal Way, 96

Wn. App. 255, 262, 979 P.2d 464 (1999).

       On appeal, Azpitarte does not dispute that Azpitarte II and Azpitarte III

involved the identical parties, the identical state claims based on alleged helicopter

harassment occurring after March 3, 2009, and the identical factual allegations.

Moreover, the application of collateral estoppel would not work an injustice against

Azpitarte. As the district court noted, Azpitarte had an "ample opportunity"4 to

present evidence of helicopter harassment occurring after March 3, 2009, but failed

to do so. See DeiaVu, 96 Wn. App. at 261.

       Azpitarte's primary contention is that the district court failed to enter a final

judgment on the merits. Application of both collateral estoppel and res judicata

requires a valid and final judgment on the merits. Thomson v. King County. 163 Wn.

App. 184, 190, 259 P.3d 1138 (2011); Christiansen. 152 Wn.2d at 307.

       Azpitarte asserts that the district court "declined jurisdiction of the state related

issues using its powers under 28 U.S.C. 1367(c)"5 when it dismissed his state claims
without prejudice, and that the court therefore lacked supplemental jurisdiction after
the Ninth Circuit remanded the case. In addition, Azpitarte alleges that he did not

appeal the district court's dismissal of his state claims, that "[o]nly the federal issues
were litigated on appeal. . . ,"6 and that, in any event, the district court failed to notify



    4 CP at 76.

    5 Br. of App. at 10.

    6 Id. at 11.
No. 72961-6-1/7



him that it was exercising supplemental jurisdiction on remand. Azpitarte reasons

that as a result, the district court "lacked subject matter jurisdiction,"7 the resulting

judgment was void, and the court therefore failed to enter a final judgment on the

merits.

          But Azpitarte has not provided any references to the record, citations to

relevant authority, or legal argument to support these conclusory allegations.

Moreover, Azpitarte challenged the district court's exercise of supplemental

jurisdiction in his motion for reconsideration. In denying reconsideration, the district
court expressly ruled that it "continued to have supplemental jurisdiction over

[Azpitarte's] related state law claims."8 Because Azpitarte did not appeal the district
court's order, the court's judgment became final, and Azpitarte may not now

collaterally challenge the court's exercise of subject matter jurisdiction:
          A party that has had an opportunity to litigate the question of
          subject-matter jurisdiction may not... reopen that question in a
          collateral attack upon an adverse judgment. It has long been the
          rule that principles of res judicata apply to jurisdictional
          determinations—both subject matter and personal.

Insurance Corp. of Ireland. Ltd. v. Compagnie des Bauxites de Guinee. 456 U.S.

694, 702 n.9, 102 S. Ct. 2099, 2104 n.9, 72 L.Ed.2d 492 (1982) (citations omitted).

"If the parties against whom judgment was rendered did not appeal, the judgment

becomes final and the court's subject matter jurisdiction is insulated from collateral

attack." Roval Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th

Cir. 1992) (citing Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1053 (5th Cir. 1987)).


     7 Id, at 12.

     8 CP at 76.
No. 72961-6-1/8


       In his reply brief, Azpitarte contends that he may collaterally attack the district

court's subject matter jurisdiction in Azpitarte II because he was denied "a fair

opportunity to appeal" when "the federal court rescinded the indigency order that

allowed the appeal."9 But Azpitarte cites no authority suggesting that such

circumstances have any effect on the finality of the district court's order for purposes

of collateral estoppel or res judicata. We therefore decline to consider his argument.

See Saunders v. Lloyd's of London. 113 Wn.2d 330, 345, 779 P.2d 249 (1989)

(appellate court will decline to review an issue that is unsupported by cogent

argument and briefing).

       In summary, the district court's dismissal of Azpitarte's state claims in

Azpitarte II was a final judgment on the merits. Accordingly, the trial court in

Azpitarte III did not err in dismissing the identical claims based on the preclusive

effect of Azpitarte II.

       Azpitarte contends that he should have been allowed "further discovery"10 in

Azpitarte III. But he has not assigned error to any specific trial court ruling denying

his request for further discovery. Azpitarte refers to a motion to compel, but neglects

to mention that the trial court expressly determined that Azpitarte did not file or

authorize the motion. Because Azpitarte has not challenged or even addressed the




    9 Reply Br. at 4.

    10 App. Br. at 12.


                                              -8-
No. 72961-6-1/9



trial court's ruling, he has not demonstrated any error or abuse of discretion.

       Affirmed.




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