       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STEPHEN FACISZEWSKI and
VIRGINIA L KLAMON,                               No. 72611-1-1


                     Respondents,                DIVISION ONE

       v.

                                                 PUBLISHED OPINION
MICHAEL R. BROWN and
                                                                               CO
JILLA.WAHLEITHNER,
                                                                               en


                     Appellants.                 FILED: February 1,2016


       J. Leach — Michael Brown and his wife, Jill Wahleithner (Tenants), appeal

the trial court's decision evicting them from a house owned by Stephen

Faciszewski and his wife, Virginia Klamon (Landlords). The Tenants challenge

the sufficiency of the service and the contents of the notice terminating their

tenancy and the award of unpaid rent, attorney fees, and cost to Landlords. The

Landlords properly served the termination notice and it provided the Tenants with

adequate notice about the Landlords' just cause for eviction. And because the

trial court properly awarded the Landlords unpaid rent for the period of unlawful

detainer, along with attorney fees and court costs, we affirm.

                                      FACTS


      The Tenants leased a house in Seattle from the Landlords. The Landlords

lived in a house next door. After the lease expired, Tenants continued to live in
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the house on a month-to-month basis.       In February 2014, the Tenants had a

parking dispute with neighbors about a disabled person's access to those

neighbors' house. The Landlords intervened and asked the Tenants not to park

in a certain area that blocked access.


       Faciszewski unsuccessfully attempted to serve the Tenants personally

with a notice terminating tenancy. Faciszewski then taped a copy of the notice to

the front door of the rental property. He also mailed a copy to the Tenants at the

same address. The notice required the Tenants to vacate the house on or before

July 31 so that one or more members of Landlords' immediate family could use it

as a primary residence.

      The Tenants claim to have been at the rental property when Faciszewski

taped the notice to the door. The Tenants actually received the notice and did

not vacate the rental premises on or before July 31.

      On August 1, the Landlords filed a complaint for unlawful detainer and

requested a show cause hearing.1 At the show cause hearing, the Tenants

alleged retaliation as a defense to the complaint. A court commissioner rejected

this defense. But the commissioner set the case for trial because of "subsequent

questions at issue" as to who was going to live in the house. The Landlords filed

a motion to revise the commissioner's ruling.


        RCW 59.18.365.
NO. 72611-1-1/3




      The trial court revised the commissioner's decision, struck the trial date,

and entered an order for a writ of restitution.      The trial court found that the

Landlords provided the Tenants with adequate notice to vacate and satisfied the

just cause provision of the Seattle Municipal Code (SMC).2 The trial court
concluded that the Landlords were entitled to possession of the rental property, a

writ of restitution, unpaid rent, court costs, and attorney fees. The trial court also

concluded that the Tenants' subjective belief about the Landlords' stated reason

for the eviction did not excuse the Tenants' noncompliance with the termination

notice. The trial court denied the Tenants' motion for reconsideration.

       The trial court entered judgment in favor of the Landlords, awarding them

unpaid rent from August 1 to September 19, attorney fees, and court costs. The

Tenants appeal.

                             STANDARD OF REVIEW

       Generally, if the parties base their trial court arguments entirely on written

materials, we review the record de novo.3 Interpretation of a statute presents a

question of law that we review de novo.4 The adequacy of a notice terminating
tenancy presents a mixed question of law and fact that we also review de novo.5

       2 SMC 22.206.160(C).
       3 Indigo Real Estate Servs.. Inc. v. Wadsworth, 169 Wn. App. 412, 417,
280 P.3d 506 (2012).
       * Ruvalcaba v. Kwana Ho Baek, 175 Wn.2d 1, 6, 282 P.3d 1083 (2012).
       5 Hall v. Feiaenbaum, 178 Wn. App. 811, 819, 319 P.3d 61, review denied,
180 Wn.2d 1018 (2014); RCW 59.12.030.
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NO. 72611-1-1/4




                                    ANALYSIS


       The Tenants assert two reasons why the trial court should have dismissed

the Landlords' complaint or conducted a trial before evicting them: the Landlords

did not properly serve the termination notice and the notice did not state sufficient

facts in support of the reason for termination. The Tenants also claim that the

trial court should   not have awarded the Landlords back rent because the


Landlords refused to accept payment offered after service of the termination

notice. We disagree with each of the Tenants' assertions.

      A statutory unlawful detainer action provides a summary process for

resolving a dispute between a landlord and a tenant about the right to possession

of leased property.6    At the beginning of this action or anytime later in the

proceedings, the landlord may ask the court for a writ of restitution restoring to it

possession of the property.7 For residential property, a landlord who wants a writ

of restitution must schedule a show cause hearing.8 At the show cause hearing,

the court decides if the landlord has shown that no substantial issue of material


fact exists about the landlord's right to possession and any other relief

requested.9 If so, the court grants this relief. If not, the court sets the case for


       6 Munden v. Hazelriqq. 105 Wn.2d 39, 45, 711 P.2d 295 (1985); RCW
59.12.030.
       7 RCW 59.12.090.
       8 Indigo. 169 Wn. App. at 421; RCW 59.18.370.
       9 RCW 59.18.380.
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trial unless the court decides the landlord has no legal right to the relief

requested and dismisses the case.10

        Although a show cause hearing is not the final determination of the rights

of the parties in an unlawful detainer action, the trial court frequently decides the

necessity of a trial at the hearing.11 As occurred here, the show cause hearing

often provides the only opportunity for a tenant to present any evidence.12

        The Tenants contend that substantial material issues of fact exist about


adequate service, the content of the notice, and just cause for terminating the

tenancy. As a result, they claim that the trial court should have dismissed this

case or set it for trial.


Sufficiency of Service

        The Tenants contend that the Landlords did not properly serve the notice

terminating their tenancy.   The Tenants also assert that even if the time and

manner of service was proper, Faciszewski's declaration of service did not

comply with the statutory form and content requirements.

        RCW 59.12.040 controls service of the termination notice and provides

three methods of service:


        10 RCW 59.18.380.
      11 Indigo. 169 Wn. App. at 421; Carlstrom v. Hanline, 98 Wn. App. 780,
788, 990 P.2d 986 (2000); Leda v. Whisnand. 150 Wn. App. 69, 81-82, 207 P.3d
468 (2009).
        12 Indigo. 169 Wn. App. at 421; Carlstrom, 98 Wn. App. at 788; Leda, 150
Wn. App. at 82.
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NO. 72611-1-1/6




        Any notice provided for in this chapter shall be served either (1) by
        delivering a copy personally to the person entitled thereto; or (2) if
        he or she be absent from the premises unlawfully held, by leaving
        there a copy, with some person of suitable age and discretion, and
        sending a copy through the mail addressed to the person entitled
        thereto at his or her place of residence; or (3) if the person to be
        notified be a tenant, or an unlawful holder of premises, and his or
        her place of residence is not known, or if a person of suitable age
        and discretion there cannot be found then by affixing a copy of the
        notice in a conspicuous place on the premises unlawfully held, and
        also delivering a copy to a person there residing, if such a person
        can be found, and also sending a copy through the mail addressed
        to the tenant, or unlawful occupant, at the place where the
        premises unlawfully held are situated.

        A court has no power to give a landlord relief from a holdover tenancy

unless the landlord gives a tenant proper notice.13

        The Tenants claim that the Landlords could not use the third service

alternative because they were home when the Landlords taped the notice to their

door.   Thus, they contend, because they could be found at their residence,

service by posting and mailing was not available. We disagree.

        As this court has previously observed, the repeated use of the word "or" in

RCW 59.12.040 implies that (1), (2), and (3) are equal alternatives for notice.14

In Hall v. Feigenbaum,15 the landlord posted a three-day notice to pay rent or

vacate at the unlawfully held premises. The landlord also mailed a copy to that

address, even though he knew the commercial tenant was no longer doing


        13 Leda, 150 Wn. App. at 85.
        14 Hall, 178 Wn. App. at 820.
        15 178 Wn. App. 811, 816, 820, 319 P.3d 61 (2014).
                                         -6-
NO. 72611-1-1/7




business at that location.16 The tenant in Hall argued that service was insufficient

because the landlord knew his home address but did not mail the notice there.17

This court held that service of the notice was proper because the tenant did not

provide evidence that he provided the landlord with his home address.18

       Here, the Tenants contend the Landlords did not properly serve the notice

because they were home when Faciszewski taped it to their door. Faciszewski

stated in his declaration of service, "I attempted to deliver a copy of said Notice

into the hands of the defendants but was unable to do so."        Tenants offer no

evidence challenging the truth of this statement.      Instead, in their respective

declarations, they state, "While we were home on June 29, 2014, Mr.

Faciszewski taped a notice of termination on our door," and nothing more. They

make no claim that Faciszewski did not take some action to attempt service

before taping the notice on it. They cite no authority supporting their claim that

Faciszewski needed to provide greater detail in his declaration of service about

his attempt.

       Accepting the Tenants' argument would allow a tenant to refuse to answer

the door and completely avoid service. The Tenants do not reconcile their view

with any ordinary meaning of the word "found" or the statutory provision giving


       16 Hall, 178 Wn. App. at 816, 820.
       17 Hall. 178 Wn. App. at 820.
       18 Hall, 178 Wn. App. at 820-21.
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NO. 72611-1-1/8




the landlord an alternative method of service by posting and mailing a notice to

quit the premises.19 The Landlords complied with RCW 59.12.040 by taping a

copy of the notice to the front door and sending a copy through the mail

addressed to the Tenants because Faciszewski could not find them.


      Tenants rely on Weiss v. Glemp,20 where our Supreme Court held that the

plaintiff's service did not satisfy the requirements for serving a civil summons21

because the process server saw the defendant through a window, did not give

the documents to the defendant's secretary who came to the door, and left the

documents for the defendant on an outside windowsill.        In Weiss, the court

analyzed RCW 4.28.080(15),22 a statute that does not apply to this case.

Instead, as the parties agree,       RCW 59.12.040 applies.         Unlike RCW

4.28.080(15), RCW 59.12.040 provides for service of a notice by affixing a copy

of the notice to a conspicuous place on the premises and sending a copy by mail

if a suitable person "cannot be found."23 The legislature created a more forgiving

process for serving an unlawful detainer preeviction notice24 as opposed to a

summons in a civil action.25



      19 RCW 59.12.040(3).
      20 127 Wn.2d 726, 731-33, 903 P.2d 455 (1995).
      21 See RCW 4.28.080(15).
      22 Weiss, 127 Wn.2d at 731.
      23 RCW 59.12.040(3).
      24 RCW 59.12.040.
      25 RCW 4.28.080(15).
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NO. 72611-1-1/9




Adequate Notice

      The Tenants challenge the sufficiency of the content of Landlords'

termination notice. They claim it did not give adequate notice because it failed to

state sufficient facts in support of the reason for terminating the tenancy. The

Tenants also contend that the Landlords did not have just cause to terminate the

tenancy, as required by the applicable city ordinance. Again, we disagree.

      A landlord must obtain a court order to evict a residential tenant.26 Before

a court grants this relief, the tenant must receive an opportunity to contest the

eviction at a show cause hearing.27 In Seattle, a landlord cannot evict, or attempt

to evict, a residential tenant unless the landlord can prove in court that just cause

exists.28 With a termination notice, the landlord must provide a written statement

of the reason for the termination and facts supporting that reason.29 The reasons

for just cause include the following:

       The owner seeks possession so that the owner or a member of his
       or her immediate family may occupy the unit as that person's
       principal residence and no substantially equivalent unit is vacant
       and available in the same building. . . . There shall be a rebuttable
       presumption of a violation of this subsection ... if the owner or a
       member of the owner's immediate family fails to occupy the unit as
       that person's principal residence for at least 60 consecutive days
       during the 90 days immediately after the tenant vacated the unit


       26 RCW 59.18.290(1).
       27 SMC 22.206.160(C); RCW 59.18.380.
       28 SMC 22.206.160(C).
       29 SMC 22.206.160(C)(3).
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NO. 72611-1-1/10



       pursuant to      a   notice of termination    or   eviction    using this
       subparagraph as the cause for eviction.[30]

       If a tenant believes that the owner does not intend to carry out the stated

reason for eviction and complains to the city, the landlord must file a certification

with the city stating the owner's intent to carry out the stated reason for eviction.31

A tenant has a private claim for damages against an owner who evicts, or

attempts to evict, the tenant because an immediate family member or owner

intends to use the premises but does not fulfill or carry out this reason for

terminating the tenancy.32

       The Landlords served a notice to quit at the rental property.               The

Landlords' notice to quit the premises stated, "[W]e seek to possess the Property

so that at least one immediate family member (or, in the alternative, one of us)

may occupy the Property as a principal residence."                   After the Tenants

complained to the city, the Landlords filed a certified declaration with the city of

Seattle, stating that the Landlords intended to use the property as a primary

residence for an immediate family member33

       Tenants contend that the notice "simply parroted the language" of the

statute34 and that the Landlords must provide specific information. Copying the



       30   SMC   22.206.160(C)(1)(e).
       31   SMC   22.206.160(C)(4).
       32   SMC   22.206.160(C)(6), (7).
       33   SMC   22.206.160(C)(4).
       34   SMC   22.206.160(C)(1)(e).
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NO. 72611-1-1/11




language of SMC 22.206.160(C)(1)(e) without adding more detailed, specific

information does not make the notice insufficient. The plain language of SMC

22.206.160(C)(3) does not require a landlord to provide more specific

information, such as the name of the person or people moving in, when they are

moving in, or why they are moving to the premises.         The Tenants have not

provided any authority indicating that the Landlords were required to disclose this

type of specific information. We conclude that the Landlords included sufficient

facts to support their reason for terminating the tenancy in the notice because the

language complied with the requirements stated in SMC 22.206.160(C)(1)(e) and

SMC 22.206.160(C)(3).

      The Tenants also claim that the Landlords did not have just cause to

terminate the tenancy because of conflicting information about Faciszewski's

mother's plans. However, the Tenants have only demonstrated that they do not

believe the Landlords' stated reason for terminating the tenancy, not that the

Landlords did not carry out the stated reason.

       In Housing Authority v. Silva,35 the landlord commenced an unlawful

detainer action alleging that the tenant had habitually failed to comply with his

lease obligations by causing four disturbances over a 3.5-year period.          To

terminate the tenancy for just cause, the landlord had to serve the tenant with


       35 94 Wn. App. 731, 736, 972 P.2d 952 (1999).
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NO. 72611-1-1/12




three 10-day notices within a 12-month period.36 The landlord only provided two

10-day notices within the 12-month period.37 This court held that the landlord

failed to prove just cause for eviction.38

       Unlike the landlord in Silva, the Landlords here could not carry out the

stated reason for eviction because the Tenants did not vacate the rental property.

In Silva, the tenant could point to a specific way in which the landlord did not

meet the just cause requirement. Here, the Tenants can only point to a parking

dispute involving the neighbors and background information about Faciszewski's

parents to question the Landlords' sincerity. Although the Tenants may doubt

this sincerity, to defend the unlawful detainer action, the Tenants must prove that

the Landlords did not comply with Seattle's ordinance. They have not raised any

substantial material question of fact about compliance.

       The Tenants assert that the information they presented to the trial court at

least raised a question of fact about the Landlords' just cause because the

claimed immediate family member did not intend to move in.           However, the

Tenants' reliance on the evidence they presented is misplaced.

       With SMC 22.206.160, the city provides tenants added protections not

available to them under Washington law.39 The city has adopted substantive

       36 Silya, 94 Wn. App. at 736.
       37 Sjjva, 94 Wn. App. at 736.
       38 Silya, 94 Wn. App. at 736.
       39 Ch. 59.18 RCW, Residential Landlord-Tenant Act of 1973.
                                         -12-
NO. 72611-1-1/13




provisions and procedures applicable to the eviction process and safeguards to

ensure landlord compliance.40 The city also has provided remedies for a tenant

who questions the landlord's intent or compliance with Seattle's ordinance.41 The

tenant can demand a certification of the reason for termination.    The landlord's


failure to provide the certification provides a defense to an eviction action. The

landlord's failure to carry out the reason stated in the certification provides the

tenant with a claim for damages up to $2,000. We decline the Tenants' request

that we rewrite the ordinance to provide another remedy.

       Seattle's ordinance reflects policy decisions made by its legislative body.

The Tenants make policy arguments for an additional remedy that body did not

provide. They ask for the right to contest the truthfulness of the certification in

the unlawful detainer action.    The city's legislative body has the authority to

consider this policy choice. That authority does not belong to this court, whose

fundamental function is review of lower court decisions.42

       Because the Tenants did not believe the Landlords, they sought the

remedy provided by SMC 22.206.160(C)(4).            Faciszewski filed the proper

certification with the city.   After Faciszewski filed the certification, Seattle's




       40 SMC 22.206.160(C).
       41 SMC 22.206.160(C)(4), (7).
       42 Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 505, 198 P.3d 1021
(2009).
                                        -13-
NO. 72611-1-1/14




ordinance provided the Tenants with an exclusive remedy for a false certification,

a private action for damages up to $2,000.43

       Unlawful detainer actions are summary proceedings.44 If a tenant does

not believe a landlord's stated reason for eviction, that tenant can file a complaint

with the city.45    The tenant's disbelief, even if justified, does not provide a

defense to an unlawful detainer action.          Once the landlord files the proper

certification with the city, the tenant's remedy is limited to a private right of action

if the landlord does not fulfill the stated reason for eviction.46

Damages

       The Tenants contend that they do not owe any unpaid rent. The Tenants

sent a check for the August 2014 rent after it was due. The Landlords rejected

the payment. On revision, the trial court concluded that the Tenants owed the

Landlords unpaid rent. RCW 59.18.290(2) states,

       It shall be unlawful for the tenant to hold over in the premises or
       exclude the landlord therefrom after the termination of the rental
       agreement except under a valid court order so authorizing. Any
       landlord so deprived of possession of premises in violation of this
       section may recover possession of the property and damages
       sustained by him or her, and the prevailing party may recover his or
       her costs of suit or arbitration and reasonable attorney's fees.




       43   SMC 22.206.160(C)(7).
       44   Indigo, 169 Wn. App. at 421; Carlstrom, 98 Wn. App. at 788.
       45   SMC 22.206.160(C)(4).
       46   SMC 22.206.160(C)(6), (7).
                                          -14-
NO. 72611-1-1/15




       A landlord who prevails in an unlawful detainer action is entitled to

judgment for the damages caused by an unlawful detainer.47 The Tenants assert

that "'[one] who prevents a thing may not avail himself of the nonperformance

which he has occasioned,'"48 but that did not happen here. The Landlords are

entitled to recover damages.

       The Tenants' attempt to pay August rent was not an attempt to perform an

existing contract that the other party frustrated. The Landlords had terminated

that contract, and the Tenants unlawfully detained the property. Therefore, the

Landlords have not "availed" themselves of any nonperformance that they

caused.   The judgment for unpaid rent payment placed the Landlords in the

position they would have been in had the Tenants not unlawfully detained the

rental property.

Attorney Fees

       The Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, allows

the prevailing party in an unlawful detainer action to recover reasonable attorney

fees and costs.49 The trial court properly awarded the Landlords reasonable

attorney fees and costs.       We award attorney fees and costs on appeal to

Landlords, as the prevailing party, provided they comply with RAP 18.1.


       47 RCW 59.18.290(2).
       48 Payne v. Ryan, 183 Wash. 590, 597, 49 P.2d 53 (1935).
       49 RCW 59.18.290.
                                       -15-
NO. 72611-1-1/16




                                 CONCLUSION


       Because the Landlords properly served a factually sufficient notice to quit

the premises that provided the Tenants with a notice containing sufficient facts to

support just cause to terminate the tenancy and the trial court properly awarded

the Landlords the unpaid rent, attorney fees, and costs, we affirm.




WE CONCUR:




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                                       -16-
