                                                             • FILED
                                                      COURT OF APF'EALS DIV I
                                                       STATE OF WASHINGTON

                                                       2018 SEP 24 AM 8:35



          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 LYDIA LUTAAYA,               )
                              )               No. 77178-7-1
                   Appellant, )
                              )              DIVISION ONE
             V.               )
                              )              UNPUBLISHED OPINION
 BOEING EMPLOYEES CREDIT      )
 UNION,                       )
                              )
                 Respondent. )               FILED: September 24, 2018
                                        )

          CHUN, J. — Lydia Lutaaya had a bank account, mortgage, and car loan

through Boeing Employees Credit Union (BECU). She defaulted on both loans,

resulting in foreclosure on her condominium and repossession of her car. She

brought a lawsuit alleging multiple claims against BECU including defamation

and intentional infliction of emotional distress. The trial court dismissed most of

the claims on CR 12(b)(6) and summary judgment motions. After a bench trial,

the court found for BECU on the defamation and emotional distress claims.

Lutaaya appeals the trial court's rulings in favor of BECU. Finding no error, we

affirm.

                                      FACTS

          Lutaaya belonged to BECU as a member. In 2006, she obtained a

mortgage from BECU to buy a condominium, secured by a deed of trust. She
No. 77178-7-1/2


secured a car loan from BECU in 2010. In late 2014, Lutaaya's payments on the

loans became inconsistent. She subsequently ceased paying on both loans.

        Lutaaya began making angry accusations about the conduct of BECU and

the Renton Police Department(RPD). She sent letters to BECU, alleging RPD

stole her identity, hacked her home Internet and accounts, and published a

"wanted" notice with her photograph on a government website. She claimed

BECU and RPD solicited money for attendees to a conference using her face

and identity.1 She also accused BECU of acting in concert with the RPD to force

foreclosure of her home. She made irate phone calls to BECU's phone banking

center, and visited multiple BECU branches, requesting information about her

accounts and making similar allegations.

        Due to Lutaaya's increasingly hostile behavior and resulting concern for

the safety of the staff and credit union members, BECU banned her from all

branches. The ban restricted Lutaaya to banking by mail, telephone, and

Internet.

        BECU filed a complaint for replevin in King County Superior Court to

repossess the car and obtain a deficiency judgment. Lutaaya contested the

claim. The court entered judgment in favor of BECU on April 24, 2015. Lutaaya

did not appeal this judgment; BECU repossessed the car. BECU also executed

a nonjudicial foreclosure and trustee's sale of Lutaaya's condominium. Lutaaya

did not seek judicial intervention during foreclosure and the trustee's sale


        I Lutaaya alleges BECU and RPD collaborated to steal her identity by claiming she was
the "Face of Boeing." She claims that RPD and BECU organized a conference at the superior
court and solicited money from companies in order to meet her.
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No. 77178-7-1/3


occurred in September 2015. After the sale, Lutaaya refused to vacate the

property, forcing BECU to bring suit for unlawful detainer. In response to the

motion for unlawful detainer, Lutaaya continued to allege BECU and RPD

engaged in fraudulent behavior to force her to default on her loans.

       Lutaaya, representing herself, filed suit against BECU in September 2015.

She made wide-ranging allegations, including violation of her "banking rights,"

interference with her right to sue, wrongful foreclosure on her condominium and

repossession of her car, misrepresentation, defamation, and emotional distress.

The trial court dismissed most of these claims on the pleadings. BECU then filed

a motion for summary judgment on the remaining claims, which related to

banking rights, defamation, and infliction of emotional distress. The trial court

granted summary judgment for BECU except as to the defamation claim.

       Lutaaya's defamation claim proceeded to a bench trial. At that time, the

trial court also considered the claim for intentional infliction of emotional distress,

determining the claim arose from the defamation issue. Lutaaya appeared as

her only witness. She claimed several BECU employees had called her a

prostitute, and said she was crazy or mentally ill during various visits to multiple

BECU branch offices. She argued other BECU patrons overheard these

comments, which caused her considerable emotional distress.

       BECU called two employees to testify about the alleged statements.

Lutaaya had specifically named one of the witnesses, William Morris, as a

perpetrator of the defamation. During her testimony, Lutaaya gave an accurate

description of Morris and his desk area at one of the BECU branches. But in his

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testimony, Morris stated he did not recognize Lutaaya and had never helped her

at a BECU branch. He also testified he had not made statements that Lutaaya

was a prostitute or that she was crazy, nor had heard other BECU employees

make such statements. Morris further testified he would never make the alleged

comments as they are "completely unprofessional." He indicated those types of

statements did not adhere to the standards of professionalism of BECU

branches.

       The other employee, Adam Johnson, also testified such statements would

deviate from BECU's culture of professionalism and respect. Despite having

alleged a BECU employee named Adam made defamatory remarks, Lutaaya

admitted she did not recognize Johnson. Johnson testified he was the only

Adam working in the lobby of the branch at issue in her allegations but had never

seen Lutaaya or helped her at the bank branch.

       The trial court found the BECU witnesses' testimony credible and

Lutaaya's testimony not credible. The trial court ruled in favor of BECU,

determining Lutaaya had failed to meet her burden on the elements of the

defamation or intentional infliction of emotional distress claims. Lutaaya filed a

motion to reconsider, which the court denied.

       Lutaaya appeals.

                                    ANALYSIS

       Representing herself on appeal, Lutaaya challenges the trial court's

dismissal of her claims and judgment in favor of the defendant. As a preliminary

matter, we note our expectation that self-represented litigants comply with the

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No. 77178-7-1/5


procedural rules on appeal. State Farm Mut. Auto Ins. Co. v. Avery, 114 Wn.

App. 299, 310, 57 P.3d 300(2002). Failure to do so may preclude appellate

review. State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).

        Lutaaya's briefing falls below the standards set forth in RAP 10.3.2

Despite the deficiencies, we may elect to address an issue inadequately briefed.

State Farm Mut. Auto Ins. Co., 114 Wn. App. at 310. Therefore, to the extent

possible, we have considered the merits of Lutaaya's claims.3

                           Claims Dismissed on the Pleadinas

        The trial court dismissed many of Lutaaya's claims with prejudice in

response to BECU's motion to dismiss under CR 12(b)(6). A defendant may

move to dismiss a complaint for "failure to state a claim upon which relief can be

granted." CR 12(b)(6). In evaluating such a motion, the court's inquiry focuses

on whether the plaintiffs claim suffices legally. Gorman v. Garlock, Inc., 155

Wn.2d 198, 215, 118 P.3d 311 (2005). "A CR 12(b)(6) motion may be granted

only where there is not only an absence of facts set out in the complaint to

support a claim of relief, but there is no hypothetical set of facts that could


          2 For example, assignments of error should be concise statements of each error made by
the trial court with issues pertaining to the assignments of error. RAP 10.3(a)(4). Here, Lutaaya
generally assigns error to the trial court's ruling in favor of BECU and makes a series of
allegations about BECU's conduct. Similarly, Lutaaya's statement of the case continues the
allegations against BECU instead of providing a fair statement of the facts and procedures
relevant to the issues on review. See RAP 10.3(a)(5). Lutaaya fails to make meaningful legal
arguments or cite to relevant authority as required by RAP 10.3(a)(6). Her opening brief raises
facts and issues unrelated to the trial court's decisions and does not address the trial court's
verdict in the defamation lawsuit. Generally, passing treatment of an issue or lack of reasoned
argument does not suffice to warrant judicial review. Joy v. Dep't of Labor & Indus., 170 Wn.
App. 614, 629, 285 P.3d 187(2012).
          3 We note Lutaaya has raised issues and facts for the first time on appeal, including
allegations BECU and RPD conspired to kill her. While we consider the merits of many of
Lutaaya's claims, we decline to review arguments and facts raised for the first time on appeal.
See Carrera v. Olmstead, 189 Wn.2d 297, 302 n.3, 401 P.3d 304(2017).

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No. 77178-7-1/6


conceivably be raised by the complaint to support a legally sufficient claim."

Worthington v. Westnet, 182 Wn.2d 500, 505, 341 P.3d 995(2015). "The

purpose of CR 12(b)(6) is to weed out complaints where, even if that which the

plaintiff alleges is true, the law does not provide a remedy." Alexander v.

Sanford, 181 Wn. App. 135, 142, 325 P.3d 341 (2014).

       A CR 12(b)(6) motion presents a legal question with facts considered only

as a background for the legal determination. Contreras v. Crown Zellerbach

Corp., 88 Wn.2d 735, 742, 565 P.2d 1173(1977). A trial court's ruling on a

motion to dismiss for failure to state a claim presents a question of law reviewed

de novo. Worthington, 182 Wn.2d at 506. The court presumes the truth of the

plaintiffs allegations. Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 837

(2007).

       1. Vehicle Repossession

       Lutaaya's complaint alleged BECU "falsely" repossessed her vehicle. The

parties previously litigated this issue with final judgment entered for BECU.

Because of this prior litigation, res judicata bars Lutaaya's claims concerning

repossession.

      "Res judicata refers to 'the preclusive effect of judgments, including the

relitigation of claims and issues that were litigated, or might have been litigated,

in a prior action." Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d

898(1995)(quoting Philip A. Trautman, Claim and Issue Preclusion in Civil

Litigation in Washington, 60 WASH. L. REv. 805, 805 (1985)). Res judicata

applies when the prior judgment has concurrence of identity with a subsequent

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No. 77178-7-1/7


action in "(1) subject matter,(2) cause of action, and (3) persons and parties, and

(4)the quality of the persons for or against whom the claim is made." Loveridqe,

125 Wn.2d at 763. The quality of the persons for or against whom the claim is

made "simply requires a determination of which parties in the second suit are

bound by the judgment in the first suit." Ensley v. Pitcher, 152 Wn. App. 891,

905, 222 P.3d 99(2009).4

         Both Lutaaya's complaint and BECU's replevin lawsuit pertain to disputed

possession of the car, have the same cause of action, and involve identical

parties who are bound by the original judgment in the suit for replevin. The car

repossession claim satisfies all of the requirements for preclusive effect under

res judicata. As a result, the trial court properly dismissed any claim relating to

the repossession of Lutaaya's car.

          2. Nonjudicial Foreclosure

         Lutaaya claims BECU wrongfully engaged in nonjudicial foreclosure and

sale of her condominium. Her condominium was secured by a deed of trust.

The deed of trust act(DTA) provides a procedure for restraining a trustee sale.

RCW 61.24.130. Failure to bring a lawsuit as outlined under this procedure "may

result in a waiver of any proper grounds for invalidating the Trustee's sale."



          4 Parties bound by the first judgment include all parties to the litigation plus all parties in
privity with them. Enslev, 152 Wn. App. at 905. "The quality of persons or parties is relevant in
situations where the parties to two lawsuits are the same but one or the other acts in a different
capacity in the two proceedings." Berschauer v. Phillips Constr. Co. v. Mut. of Enumclaw Ins.
Co., 175 Wn. App. 222, 231, 308 P.3d 681 (2013). For example, an insurance company had
different qualities when it defended against a claim for damages in arbitration as an adversary
and then defended in litigation in the quasi-fiduciary role as insurer. Forston-Kemmerer v.
Allstate Ins. Co., 198 Wn. App. 387, 406, 393 P.3d 849 (2017). Lutaaya and BECU serve in the
same capacity in both lawsuits here.

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No. 77178-7-1/8


RCW 61.24.040(1)(f)(1X). Waiver occurs if the party "(1) received notice of the

right to enjoin the sale,(2) had actual or constructive knowledge of a defense to

foreclosure prior to the sale, and (3)failed to bring an action to obtain a court

order enjoining the sale." Albice v. Premier Mort. Servs. of Wash., Inc.,

174 Wn.2d 560, 569, 276 P.3d 1277(2012).

       BECU provided evidence that the successor trustee complied with all

notice requirements in chapter 61.24 RCW, presumably including the right to

enjoin the sale under RCW 61.24.130. While Lutaaya made multiple allegations

of wrongdoing with respect to her mortgage prior to the trustee's sale in

September 2015, she made no attempt to enjoin the sale. As a result, she

waived her claims under the DTA.

       One of Lutaaya's allegations included BECU's participation in mortgage

fraud with RPD,"by adding RPD on [her] mortgage." Under the DTA,failure to

enjoin a trustee's sale does not waive a.common law fraud claim.

RCW 61.24.127. But a plaintiff must plead a fraud claim with particularity.

McAfee v. Select Portfolio Servicing, Inc., 193 Wn. App. 220, 232, 370 P.3d 25

(2016); see CR 9(b). Lutaaya made only vague allegations of fraud and,

therefore, failed to meet this burden. The trial court properly dismissed the

claims pertaining to foreclosure and sale of Lutaaya's condominium.

        3. Complaints against RPD

       Lutaaya raised several claims pertaining to actions allegedly attributable to

RPD. These allegations implicate RPD rather than BECU. As a result, these

claims against BECU were misplaced and properly dismissed on the pleadings.

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No. 77178-7-1/9




       4. Interference with Right to Sue

       Lutaaya alleged all the clerks in the superior court were instructed not to

file the required documents and to confuse her when she went to the clerk's desk

to file documents. This claim refers solely to the actions of the superior court,

none of which are attributed to BECU. Because these allegations do not

establish a claim against BECU,the trial court properly dismissed it on the

pleadings.

        5. Misrepresentation

       Lutaaya claims BECU "lied to the companies that paid into the conference

that'lam the face of Boeing' in an effort to make a lot of money." She further

alleges BECU used an image of her face to solicit money without her consent.

Lutaaya provides no further information as to the subject of the conference, the

companies involved, or BECU's actions with respect to the alleged

misrepresentation. Without these critical facts, the vague allegations failed to

provide BECU with fair notice of the claim against it. See CR 8(a); Estate of

Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App.

828, 853-54, 313 P.3d 431 (2014). Therefore the trial court did not err by

dismissing this claim on the pleadings.




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No. 77178-7-1/10


                           Violation of Banking Rights

      Lutaaya claims BECU denied her access to her bank accounts and

violated her "banking rights." BECU moved for summary judgment. The trial

court granted the motion as to the banking rights claim, finding Lutaaya had not

provided a legally actionable claim or evidence, other than her statements, as

needed to survive the motion. We agree with the trial court's conclusion.

      A trial court properly enters summary judgment when there exists no

genuine issues of material fact and the moving party deserves judgment as a

matter of law. CR 56(c); Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402,

408, 282 P.3d 1069 (2012). The court must consider facts and all reasonable

inferences in the light most favorable to the nonmoving party. Intl Ass'n of

Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 223, 45 P.3d 186

(2002). "Summary judgment should be granted only if a reasonable person

would reach but one conclusion." Intl Ass'n of Firefighters, 146 Wn.2d at 223.

      The appellate court reviews an order of summary judgment de novo.

Enterprise Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988 P.2d 961

(1999).

      Lutaaya argues BECU denied her access to her bank accounts. The

record does not support this claim. BECU banned Lutaaya from all branch

locations due to safety concerns, but she maintained access to banking through

the telephone, mail, and the Internet. She had an online banking account and

BECU submitted evidence she had access to her banking records online, as



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verified by BECU's in-house counsel. In addition, BECU provided Lutaaya with

paper copies of her banking records for the time period covered by the complaint.

       Lutaaya claimed BECU failed to present her accounts for review during

the court hearing and submitted false documents related to her mortgage and car

loan. As noted above, BECU provided evidence that she could access her

accounts online and that it had given her paper copies of her banking records.

She provided no evidence of the documents'fraudulence and her allegations

alone cannot defeat summary judgment. See Newton Ins. Agency & Brokerage,

Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157, 52 P.3d 30(2002)("In

opposing summary judgment, a party may not rely merely upon allegations or

self-serving statements, but must set forth specific facts showing that genuine

issues of material fact exist.").

       Because all evidence points to the availability of online banking, no

genuine issues of material fact remain, entitling BECU to summary judgment.

                                    Defamation

       At trial, the court found for BECU on the defamation claim after

determining Lutaaya had failed to establish any of the elements of defamation.

We find no error.

       A plaintiff bringing a defamation action must prove four elements: falsity,

an unprivileged communication, fault, and damages. Mark v. Seattle Times, 96

Wn.2d 473, 486,635 P.2d 1081 (1981). "Before the truth or falsity of an

allegedly defamatory statement can be assessed, a plaintiff must prove that the

words constituted a statement of fact, not an opinion." Robel v. Roundup Corp.,

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No. 77178-7-1/12


148 Wn.2d 35, 55, 59 P.3d 611 (2002). The First Amendment protects

expressions of opinion, precluding actions thereon. Robe!, 148 Wn.2d at 55

(citing Camer v. Seattle Post-lntelligencer, 45 Wn. App. 29, 39, 723 P.2d 1195

(1986)).

       Where the trial court has weighed the evidence, the reviewing court plays

a limited role and determines whether substantial evidence supports the findings

of fact, and whether those findings in turn support the trial court's conclusions of

law. Ford Motor Co. v. City of Seattle, Exec. Servs. Dep't, 160 Wn.2d 32, 56,

156 P.3d 185(2007). "Substantial evidence to support a finding of fact exists

where there is sufficient evidence in the record 'to persuade a rational, fair-

minded person of the truth of the finding." Heqwine v. Longview Fibre Co., 162

Wn.2d 340, 353, 172 P.3d 688(2007)(quoting In re Estate of Jones, 152 Wn.2d

1, 8, 93 P.3d 147(2004)). We will not substitute our judgment for that of the trial

court, reweigh the evidence, or adjudge witness credibility. In re Marriage of

Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572(2007).

       Here, Lutaaya alleged BECU employees said she was a prostitute and

called her crazy or mentally ill. The trial court found Lutaaya's testimony not

credible on these allegations. The trial court found the testimony of the BECU

employees credible. We do not review such credibility determinations on appeal.

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850(1990).

       Because Lutaaya called only herself as a witness and the trial court found

her lacking in credibility, she failed to prove BECU employees had made the

disparaging remarks. Without demonstrating the existence of any allegedly

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defamatory statements, Lutaaya cannot establish the required elements for a

defamation claim. Given this inability to meet the burden of proof for her

defamation claim, the trial court did not err in its verdict for BECU.

                      Intentional Infliction of Emotional Distress

       Lutaaya appeals the trial court's determination that she did not satisfy the

elements of intentional infliction of emotional distress. We agree with the trial

court's conclusion.

       A claim for intentional infliction of emotional distress requires proof of

three elements:"(1) extreme and outrageous conduct,(2) intentional or reckless

infliction of emotional distress, and (3) actual result to plaintiff of severe

emotional distress." Trujillo v. Nw. Trustee Servs. Inc., 183 Wn.2d 820, 840, 355

P.3d 1100(2015)(quoting Kloepfel v. Bokor, 149 Wn.2d 192, 195,66 P.3d 630

(2003)). A plaintiff must demonstrate outrageous conduct so extreme as to go

beyond all possible bounds of decency. Kloepfel, 149 Wn.2d at 196. Mere

insults, indignities, and annoyances do not rise to the level of outrageousness

required for intentional infliction of emotional distress. Kloepfel, 149 Wn.2d at

196.

       The law limits review, once again, to determining whether substantial

evidence supports the findings of fact, and whether those findings in turn support

the trial court's conclusions of law. Ford Motor Co., 160 Wn.2d at 56.

       As discussed above, Lutaaya failed to prove BECU employees made

derogatory statements about her. As a result, she has not established the

existence of any extreme and outrageous conduct as required for intentional

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infliction of emotional distress. She has not met her burden of proof on this

element. The trial court properly entered verdict for BECU.

      Affirmed.


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WE CONCUR:



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