                                                                                                     FILED
                                                                                               COUP,T      A' PFA S
                                                                                                   DI riSlfl  if



                                                                                             201' NOV 19    AN 8: 38



      IN THE COURT OF APPEALS OF THE STATE OF WASHIN(


                                            DIVISION II

FREDERICK J. KARPMAN and ELLEN S.                                        No. 42830 -0 -II
KARPMAN,         Trustees   of   the    KARPMAN
TRUST,


                                 Appellants,


       V.



OLEG ROZENFELD, aka OLEG                                           UNPUBLISHED OPINION
SHKLYARENKO, aka OLEG
FHKLWAREMKO, aka OLEG
SHKLARENKO, aka OLEG
SHKLYAPENKO, aka OLEG
HKLYARENKO, aka OLEY SHKL, aka
OLEY YARENKO, a single person,


                                 Respondent


and




MASON COUNTY TITLE INSURANCE
COMPANY, a Washington corporation,)


                                 Defendant.


       HUNT, J. —     Oleg Rozenfeld2 appeals two orders in a lawsuit filed by Frederick J. and

Ellen S. Karpman, Trustees         of   the Karpman      Trust ( the " Karpmans ")   claiming that he had

breached a real estate purchase and sale agreement: an order of default and an order denying his


1 Mason County Title Insurance Company was dismissed from the action without costs or
attorney fees by the Amended Judgment filed on December 13, 2011.

2 Although the caption has several aliases listed for Oleg Rozenfeld, we will refer to the
appellant as   Rozenfeld for the   purposes of   this   appeal.
No. 42830 -04I



motion        to   quash   subpoenas and          for   sanctions.           He argues that the superior court erred in ( 1)


denying his         motion     to   set aside   its   order of      default; ( 2)       denying his motion to quash subpoenas

duces tecum issued to Rozenfeld' s banks;                            and (       3)   denying his request for subpoena -related

sanctions against          the   Karpmans. 3      We affirm the superior court' s denial of Rozenfeld' s motion to

vacate,       do not address denial of his other motions because they are moot, and award the

Karpmans attorney fees and costs on appeal.

                                                                    FACTS


                           I. PURCHASE AND SALE AGREEMENT; FINANCING ADDENDUM


              On March 26, 2011, Oleg Rozenfeld and Frederick and Ellen Karpman entered into a

Real Estate Purchase                and   Sale Agreement ( " Agreement ")                  requiring Rozenfeld to purchase the

Karpmans' Shelton              residence     by   April 29.         This Agreement included a " Financing Addendum,"

which provided            that Rozenfeld'       s obligation        to   purchase       the home   was contingent on       his "[ g] ood

                                                                                                                                       4
    f]aith"    efforts    to   obtain     financing     through          a   Federal     Housing    Administration ( FHA) loan.




3
    Normally, we do not accept direct appeals of interlocutory orders such as these. Nevertheless,
our     court      has   treated this case thus         far    as    a   direct       appeal.   Thus, in the interests of judicial
economy            and   resolving the      parties'    case    on       the     merits, we     neither   dismiss this "   appeal"   nor

compel Rozenfeld to appeal the final default judgment. See RAP 1. 2( a) and ( c).


4 This FHA loan contingency provided, in pertinent part:
        This Agreement is contingent on Buyer obtaining the following loan or loans to
                  the Property: ...
              purchase               FHA....   If not waived, the Financing Contingency
        shall survive the Closing Date.
Clerk' s Papers ( CP) at 114. An " FHA loan" is a mortgage loan provided by federally qualified
lenders and insured by the Federal Housing Administration. The lenders here were Sterling
Savings Bank and Cobalt Mortgage.



                                                                             2
No. 42830 -0 -II



Clerk' s Papers ( CP)     at    114, 115.       This Financing Addendum also required Rozenfeld to obtain

the Karpmans' written consent before changing lenders.5
       Before entering into the Agreement, Rozenfeld had provided the Karpmans with a letter

from FHA -
         insured Sterling Savings Bank pre- approving him for a loan, subject to several

conditions,   including     verification        of   Rozenfeld' s income        and   assets.   After entering into the

Agreement, Rozenfeld           applied     to   Sterling   for   an   FHA loan.   Before Sterling formally resolved

his application, however, and without first seeking the Karpmans' written consent, Rozenfeld

withdrew   his loan   application         from Sterling     and applied to      Cobalt Mortgage for     a   loan.   Cobalt


denied his loan application for insufficient stable income and irregular employment.

       Rozenfeld failed to meet the April 29 deadline for purchasing the Karpmans' home.

Under the terms        of      the   Financing       Addendum,         Rozenfeld' s changing lenders without the

Karpmans' written consent waived the financing contingency, obligating him to purchase the

property regardless of whether he had been able to obtain an FHA loan.

                                                       II. PROCEDURE


                                      A. Service of Summons and Complaint


        Two   months      later,     on   June 30, the Karpmans         sued   Rozenfeld for breach    of contract.   The


Karpmans were unsuccessful in attempting to serve Rozenfeld in person at his Sylmar, California

address which he had used on the Agreement, on his home loan bank applications, and in other



5 The Financing Addendum further qualified the FHA loan contingency with the following
pertinent provision:

        If Buyer .... (        iii) changes the lender without Seller' s prior written consent after
        the   agreed    upon         time    to   apply     for   financing     expires,   then the Financing
        Contingency shall be deemed waived.
CP at 114.




                                                                  3
No. 42830 -0 -II



matters    as   late   as   June 2011.           The Karpmans then mailed a letter to Rozenfeld at his Sylmar

address;    but it      was        returned       as    undeliverable          with   expired   forwarding,      which   showed   a


                                                                           6
Longbranch, Washington                    address      for Rozenfeld.           The Karpmans hired a private investigator,


who    found four       possible          addresses       for Rozenfeld in the Los Angeles                   area.   The Karpmans


attempted to serve Rozenfeld at each one of these addresses, but none proved successful.

          The Karpmans then hired process server Darrin Sanford to serve their summons and


complaint on       Rozenfeld         at   the   expired     forwarding         Longbranch   address.    Sanford understood that


Rozenfeld       might   be trying to            avoid service.       On August 2, Sanford approached the Longbranch


house; through a window he saw a man fitting Rozenfeld' s description. When Olga Almanskaya

came out onto the front porch, Sanford asked for Rozenfeld, stating that he had legal documents

for him. Almanskaya told Sanford that Rozenfeld                                was not   home. Sanford gave Almanskaya the


summons and complaint,                but       she    tried to   refuse   them, saying, " He is       not    my husband."   CP at


145.   She followed Sanford down the driveway, repeating that she could not accept the papers.

She tried to leave them on the hood of Sanford' s car, but he told her he was leaving the papers

with her and that she had been served.


          The    next       day,    the Karpmans'            counsel mailed a certified letter to Rozenfeld at the


Longbranch address, informing him that he had been served by the summons and complaint that

Sanford had left with Almanskaya the day before. Rozenfeld signed the certified mail receipt for

the letter on August 4.




6 The Karpmans also hired William Peck to inspect Rozenfeld' s Sylmar residence on June 2, at
which     time Peck         noted    that "[     t] here was no furniture inside the house and it appeared to have
been   abandoned."           CP at 61.



                                                                       M
No. 42830 -0 -II



                                                            B. Subpoenas


           On July 12, the Karpmans issued subpoenas duces tecum to Sterling Savings, Cobalt

Mortgage,        Prudential        Northwest        Real     Estate,       and   Mason   Title   Insurance-   Company,    all



companies involved in the purchase and sale transaction, for information about Rozenfeld' s

                                         7
failure to       obtain      a   loan.       A Cobalt Mortgage representative called Rozenfeld about the


subpoenas        and   the   lawsuit.$ The banks produced the requested documents, which were filed


with the court.


                                                              C. Default


           Rozenfeld did not file an answer or otherwise respond to the Karpmans' summons and


complaint. On August 23, the superior court entered an order of default against Rozenfeld. Two


days later, Rozenfeld' s counsel contacted the Karpmans and asked them to stipulate to an order


vacating the default; the Karpmans declined.                       On September 15, Rozenfeld moved to vacate the


order of    default. In          support of   his   motion,   9 he submitted Almanskaya' s declaration that ( 1) she

had   received " correspondence"               for Rozenfeld delivered to the Longbranch              address; (   2) she had


placed the " correspondence" in her " incoming mail" box and had neither given it to Rozenfeld



7
    None    of   these    subpoenas were            mailed   to   or   served on   Rozenfeld.     Two of the subpoenaed
banks, Cobalt Mortgage and Sterling Savings Bank, responded to the subpoena and released
Rozenfeld' s loan application documents to the Karpmans.


8 Despite Rozenfeld' s request not to provide the documents, Cobalt released them, although it is
not clear from the record when Cobalt contacted Rozenfeld or when it released the documents.

9
    Rozenfeld      also   argued      that his "    meritorious        defense" to the action entitled him to have the
default    set aside.     Br. of Appellant          at   18. This defense appears to be that, although he was unable
to meet the financing contingency of the Agreement, his loan- seeking efforts were made in good
faith and therefore he did not default on the agreement.




                                                                       F
No. 42830 -0 -II



nor told him about it; and ( 3) she did not give the documents to Rozenfeld until after he had

received      the    August 24 letter from Karpmans'                  counsel.   CP   at   219, 220.   Almanskaya' s


declaration did not mention her August 2 encounter and discussion with Sanford or that Sanford


had personally delivered the summons and complaint to her at the Longbranch address.

         Rozenfeld also advised the Karpmans that he believed that the subpoenas to the banks


had been improperly issued and that he would move to strike any declarations that relied on

information         obtained   from the   subpoenaed          documents.     When the Karpmans relied on some


information obtained from the subpoenas in responding to Rozenfeld' s motion to vacate,

Rozenfeld moved to quash the subpoenas and for sanctions against the Karpmans on September


28.


         The superior court denied Rozenfeld' s motion to vacate, ruling that Rozenfeld had not

shown excusable neglect for failing to respond to the summons and complaint and, thus, did not

meet   the    standard   for setting   aside a   default     order under    CR 55.    The superior court also denied


Rozenfeld' s motion to quash the subpoenas because Rozenfeld had failed to show prejudice from


any irregularity in the service of the subpoenas on the banks, and because the subpoenaed
                                                             10
documents       were    already in the    court' s   file.        Instead, the superior court invited the parties to


consider entering into an agreed order to redact any personal identifiers in the documents under
         11
GR 15.




10
     The superior court also ruled that any failure to have served Rozenfeld with the supoenas was
harmless.

11
     The record does not show that the parties ever reached such an agreement.




                                                                  2
No. 42830 -0 -II



          The superior court subsequently issued written orders denying the motion to quash and
                                                                                                       12
the   motion       to   set aside   the default. Rozenfeld             appeals       these orders.


                                                                ANALYSIS


                                       I. MOTION TO SET ASIDE ORDER OF DEFAULT


          Rozenfeld           argues     that,   under     CR 55, the trial           court   had " good         cause"     to set aside the

                                                                                                            13; (
order    of   default ( 1) because he                 presented sufficient evidence of " excusable neglect "                            2) on


learning      about       the   Karpmans'             lawsuit, he had          acted       with   due diligence;          and (   3)   he had


meritorious         defenses to the Karpmans'                   claims.       Br.     of   Appellant        at   8.    Because the record


supports the superior court' s finding that Rozenfeld failed to show good cause for his delayed

response to the Karpmans' lawsuit, we do not reach his argument about meritorious defenses.

                                                         A. Standard of Review


          Washington            courts      generally         disfavor       default       orders    and       judgments.         See Trinity

Universal Ins. Co. of Kansas                     v.   Ohio Cas. Ins. Co., No. 67832 -9 -I, 2013 WL 4562718,                             at *   3


 Wash. Ct.         App. Aug. 19,         2013) (      citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599

P. 2d 1289 ( 1979)).             A    superior court          may   vacate     an order of          default for       good cause or " upon



such    terms      as   the   court   deems just."         CR 55( c)( 1);     Seek Sys., Inc. v. Lincoln MovinglGlobal Van



12 One month after Rozenfeld filed his November 16, 2011 appeal from these orders, on
December 13, the superior court entered final judgment against Rozenfeld, awarding damages
and     attorney fees to the Karpmans for Rozenfeld'                             s    violation      of     the Agreement.         Our court
records do not show that Rozenfeld appealed this default judgment.

13
      Rozenfeld argues that the superior court should have vacated the order of default under either
CR 55( c),         which governs motions                 to   vacate   an    order of       default,      or   CR 60( b),    which governs

motions       to   vacate a     default judgment. The issue, here, however, is whether the superior court
improperly denied Rozenfeld' s motion to vacate the order of default before it was reduced to
judgment. Therefore,                we   apply the CR 55( c)( 1) "           good cause" test.




                                                                         7
No. 42830 -0 -II




Lines, Inc., 63 Wn.         App.     266, 271, 818 P. 2d 618 ( 1991).                   In determining whether the party

seeking to       set aside an order of      default has   shown good cause under                 CR 55(   c),   the superior court



may    consider excusable neglect and             due diligence         as   factors.    Seek Sys., Inc.,        63 Wn. App. at

271.


              Courts determine      excusable neglect on a case -            by -case   basis.    Gutz v. Johnson, 128 Wn.


App.     901, 918 -19, 117 P. 3d 390 ( 2005) (            citing Norton v. Brown, 99 Wn. App. 118, 123, 992

P. 2d 1019 ( 1999)), aff d       sub nom.,      Morin     v.   Burris, 160 Wn.2d 745, 161 P. 3d 956 ( 2007).                  The


superior court has broad discretion in ruling on whether the facts demonstrate excusable neglect;

in so doing, it may make credibility determinations and weigh facts in order to resolve the
         14
issue.          See Johnson Y. Cash Store, 116 Wn.                 App. 833, 847 -49,             68 P. 3d 1099 ( upholding


superior court' s ruling that neglect was inexcusable based on credibility determinations and

weight of evidence).




                     The decision to set aside an order of default is generally within the
              discretion of the trial court, subject to the good cause requirement of CR 55( c).
               Where the decision or order of the trial court is a matter of discretion, it will not
              be disturbed on review except on a clear showing of abuse of discretion, that is,
              discretion manifestly unreasonable, or exercised on untenable grounds, or for
              untenable reasons."




Canam Hambro Sys., Inc.              v.   Horbach, 33 Wn.        App.   452, 453 -54, 655 P. 2d 1182 ( 1982) ( quoting


State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)).




14
     We do       not review   the    superior court' s     credibility determinations.             Morse v. Antonellis, 149
Wn.2d 572, 574, 70 P. 3d 125 ( 2003) (             citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850
 1990)).
No. 42830 -0 -II




                            B. Failure to Show Excusable Neglect /
                                                                 Good Cause


          Here, the superior court reviewed declarations submitted by the parties detailing the

manner of service of the Karpmans' summons and complaint on Rozenfeld and Rozenfeld' s and


Almanskaya' s    responses    to this    service.    Process server Darrin Sanford declared that, when he


served    Almanskaya    at   Rozenfeld'     s   Longbranch, WA             residence   on   August 2, 2011,   he had


informed her that     she    was    being   served   with   legal     papers    for Rozenfeld.    The next day, on

August 3, the Karpmans' counsel sent a certified letter to Rozenfeld at the same Longbranch


address, telling him that Almanskaya had been served with a summons and complaint against

him.     The certified letter bore a return receipt, which required the recipient to sign for it; the


return receipt bore the printed name " Oleg Rozenfeld" as having accepted delivery of this letter

on August 4. CP at 158.


          Rozenfeld does not contest that Almanskaya was properly served on his behalf two days

earlier on   August 2. Yet he      waited more      than 20      days 15   after service before contacting counsel. 16

Rozenfeld explained this delay by claiming that Almanskaya had not given him the summons

and complaint before the court entered the default order. He did not, however, argue that he had


never signed for or received the certified letter on August 4.


          Rozenfeld correctly argues that excusable neglect and due diligence are not the only ways

to   show " good cause."      Br.   of   Appellant   at   15.     But he mistakenly contends that the superior

15
     CR 12( a)( 1) requires a defendant to serve his answer within 20 days of service of the summons
and complaint.




16 Rozenfeld declared that he had contacted legal counsel after receiving the summons and
complaint    from Almanskaya, he had            contacted     legal   counsel on     August 24, 2011.    Rozenfeld' s
counsel filed a Notice of Appearance on September 6.




                                                            WI
No. 42830 -0 -II



court concluded that " excusable neglect is an indispensable element of `good cause' under CR


55" in setting         aside an order of      default. Br.        of   Appellant     at   15.   Instead, the superior court noted


that    a "   default judgment"          should not    be     vacated unless "        it can be shown that there is a good


cause,    including       excusable neglect,      to   set   it   aside" under   CR 60( b). VRP at 12 ( emphasis added).


Again, failure to show excusable neglect is a factor in a trial court' s finding of failure to show

good cause        for   not   timely responding         to    a   lawsuit.    Seek Sys., Inc., 63 Wn.            App.   at   271.   But


Rozenfeld'       s argument misses a          different      key factor here —that the superior court implicitly found

not     credible    his    sole   evidence      of " good         cause"     and "    excusable      neglect,"      namely, his and

Almanskaya'        s    claim   that   she   had failed to        give   him the     summons and complaint.              VRP at 12.


We defer to the           superior court on matters               of witness     credibility.       Davis v. Dep' t of Labor &

Indus., 94 Wn.2d 119, 124, 615 P. 2d 1279 ( 1980) ( citing Beeson                                  v.            Richfield Co., 88
                                                                                                        Atlantic -


Wn.2d 499, 563 P. 2d 822 ( 1977)); Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P. 3d 125 ( 2003)


 citing State      v.   Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990)).                            Thus, Rozenfeld was left


with no credible excuse for his delay in responding to the summons and complaint.

                                                  C. " Meritorious Defense"


              Because it found that there was no good cause to set aside the default, the superior court


did not reach the question of whether Rozenfeld might have asserted a meritorious defense had


he timely answered the summons and complaint. Nevertheless, Rozenfeld argues on appeal that

 1) "   excusable neglect is not required to set aside an order of default under the less stringent


standards of CR 55 where the defendant presents a meritorious defense before the entry of a

default judgment ";           and ( 2)   he had   a meritorious          defense to the Karpmans'           suit.   Br. of Appellant


at 16. This argument also fails.




                                                                       10
No. 42830 -0 -II



          Rozenfeld cites Canam Hambro Systems in support of his argument that his meritorious


defense   constitutes good cause           for vacating the    order of         default. He is correct that this was the


result   in Canam.    But, unlike here, the superior court in Canam had examined and rejected the


defendant' s meritorious defense in a summary fashion, ignoring material questions of fact, in

denying    the   motion   to   set aside   the    order of   default. 33 Wn.         App.     at   454 -55.     This substantive


ruling on the merits of the defense was the sole basis for the denying the motion; the superior

court never addressed excusable neglect for defendant Horbach' s delay in responding to the

summons      and complaint.           Canam, 33 Wn.      App.       at   454.    And, in reversing the superior court,

Division One of our court held that its ruling on the legal and factual merits of Horbach' s
                                 17
defense   was " untenable."           Canam, 33 Wn. App. at 456.

          The Canam court did not hold that the superior court must examine potential meritorious


defenses   as possible good cause           for vacating     an order of        default   under    CR 55(     c).   Rather, it held


that an asserted defense to an .action can be good cause to set aside an order of default but that


the superior court in that instance had erred in considering the asserted defense and reaching an

untenable    conclusion        on its   merits.    Canam, 33 Wn.           App.     at    455 -56.    In so doing, however,

Division One did not retreat from the primary requirement for vacating an order of default under

CR 55( c), namely the showing of good cause, including its excusable neglect component:



17 More specifically, the appellate court ruled:
                   While excusable neglect and a meritorious defense are not necessarily
          required to set aside an order of default as opposed to a default judgment,
          assertion of    the two       provides   the good cause         required    by    CR 55(    c).   The reasons

          given by the trial court for refusing to set aside the default are, as discussed
          above, untenable.


Canam, 33 Wn. App. at 456 ( emphasis added).



                                                               11
No. 42830 -0 -II



                  CR 55( c)       provides: "      For good cause shown and upon such terms as the
         court   deems just, the      court   may      set aside an    entry   of   default ...."       In contrast with
         CR 60( e), which requires that a defendant seeking to vacate a default judgment
         show a meritorious defense to the action, a party seeking to set aside an order of
         default under CR 55( c) prior to the entry of the judgment need only show good
         cause.    See Johnston       v.   Medina Improvement Club, Inc., 10 Wn.2d 44, 116 P. 2d
         272 ( 1941) ( antedates Civil Rules).


Canam, 33 Wn.       App.     at   453 (   alteration   in    original) ( second emphasis added).             The Canam court


noted that in support of his motion to set aside the order of default, defendant Horbach had


submitted an affidavit asserting both excusable neglect and a meritorious defense; yet the trial

court   had focused     on   only the      merits of     the defense,    which      it had wrongly decided.         Canam, 33


Wn. App. at 453, 455.

         Here, in   contrast, at      the    outset    the    superior court addressed            the   required " good    cause"




component    for setting      aside an order of           default   under   CR 55(        c);   and it ruled that Rozenfeld' s


failure to   show     excusable      neglect      in his delayed         response        to the Karpmans'        summons      and




complaint was sufficient reason              to   deny   his   motion.    VRP       at   12.    Thus, the superior court here


did not need to address Rozenfeld' s potential meritorious defenses, as the superior court had


erroneously determined in Canam.                  Despite reversing the superior court' s untenable conclusion

in Canam, the appellate court nevertheless recognized:


                   The decision to set aside an order of default is generally within the
         discretion of the trial court, subject to the good cause requirement of CR 55( c).
          Where the decision or order of the trial court is a matter of discretion, it will not
         be disturbed on review except on a clear showing of abuse of discretion, that is,
         discretion manifestly unreasonable, or exercised on untenable grounds, or for
         untenable reasons."          State ex rel. Carroll v. Junker, 79 Wn. 2d 12, 26, 482 P. 2d
         775 ( 1971).


Canam, 33 Wn. App. at 453 -54.




                                                                  12
No. 42830 -0 -II



         In accordance with Canam, we reiterate that the issue before us is whether the superior

court abused         its discretion in setting        aside an order of          default,    not a   default judgment. We hold


that the superior court did not abuse its considerable discretion in denying Rozenfeld' s motion to

set aside the order of default.

                                                         II. MOOT MOTIONS


                                                         A. Motion To Quash


         Rozenfeld next argues that the superior court erred in denying his motion to quash the

Karpmans'        subpoenas           duces tecum      served     on the     banks to    which   he had    applied   for loans.   He


contends that, at the time these subpoenas were issued, the superior court lacked jurisdiction over

him. He also complains that the Karpmans never mailed him or otherwise served him with these

bank    subpoenas.          Because we affirm the superior court' s denial of Rozenfeld' s motion to vacate .


the order of default, the judgment of default against him stands, his motion to quash these

                                18
subpoenas was moot,                  and we do not further consider this issue. 19




18
     CR 55(    a)(   2)   precludes adefaulted party from responding to or " otherwise defend[ ing]" against
a    pleading    without      leave of court. Because Rozenfeld defaulted and the superior court left the
order of   default intact, he            no    longer has   a   live   case or   controversy.        See Price v. Price, 174 Wn.

App.    894, 902, 301 P. 3d 486 ( 2013) (                citing Pentagram Corp. v. Seattle, 28 Wn. App. 219, 223,
622 P. 2d 892 ( 1981)) ( the Court                  of   Appeals " consider[ s] a case moot if there is no longer a

controversy between the parties, if the question is merely academic, or if a substantial question
no    longer   exists." (    internal citations omitted)).


19 Even if there had been some sort of defect in the subpoenas' service, once the subpoenaed
documents became part of the court record, the superior court could have protected Rozenfeld' s
privacy by ( 1) following the superior court' s suggestion to meet with the Karpmans to agree on
protective redactions;               or ( 2)   asking the   superior court       to   seal   the documents   under   GR 15.      The
record does not show that Rozenfeld pursued either alternative; thus, he failed to preserve a
potential GR 15 issue for appeal. RAP 2. 5( a).




                                                                       13
No. 42830 -0 -II



                                                    B. Motion for Sanctions


          Rozenfeld also argues that the superior court erred in failing to impose sanctions against

the Karpmans        for   failing   to   serve      him   with    the third party   subpoenas       duces tecum.      Because


Rozenfeld' s motion to quash the subpoenas was moot once the superior court defaulted him, his

                                        20
request   for   sanctions was also moot.                  We hold, therefore, that the superior court did not abuse


its discretion in denying Rozenfeld' s request for sanctions under CR 45 after it denied his motion

to quash the bank subpoenas.

                                                      III. ATTORNEY FEES


          The Karpmans request attorney fees under RAP 18. 1 and the underlying real estate

contract    provision      for awarding " attorney fees                   and   expenses"    to the prevailing party in




20 Even were we to address the merits of Rozenfeld' s motion for sanctions, we would find no
abuse of discretion in the superior court' s refusal to impose such discovery sanctions. See Lodis
v. Corbis Holdings, Inc., 172 Wn. App. 835, 854, 292 P. 3d 779 ( 2013) ( citing Howell v. Spokane

   Inland Empire Blood Bank, 117 Wn. 2d 619, 629, 818 P. 2d 1056 ( 1991)                                      and Wash. State
Physicians Ins. Exch. &             Ass' n    v.   Fisons    Corp.,      122 Wn.2d 299, 338, 858 P. 2d 1054 ( 1993)).
Contrary    to Rozenfeld'      s    argument,        the mandatory language in CR 45( c)( 1)                 does not compel
imposition      of sanctions        under     the    circumstances        here because CR 45( c)( 1)          clearly refers to
sanctions    for   imposing    undue      burden     or expense on        the " person   subject   to that   subpoena," which

here   were     the banks,    not    Rozenfeld.           CR 45( c)( 1) (    emphasis     added).     See also Wash. State
Physicians Ins. Exch. & Ass'             n,   122 Wn.2d      at   338.    Furthermore, the record contains no evidence
that the subpoenaed banks either were subject to undue burden or expense or sought CR 45( c)( 1)
sanctions below.




                                                                   14
No. 42830 -0 -II



               21
litigation.         CP at 112. Because the Karpmans are the prevailing party, we award them costs and

attorney fees on appeal.

          Affirmed.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with ' RCW

2. 06. 040, it is so ordered.




                                                                 Hunt, J.




lviaxa, .i .




21
     Rozenfeld        also   requests   fees based   on   this   contractual   language.   Because he is not the
prevailing party, he is not entitled to attorney fees under this provision.



                                                             15
