78179-1 FILED

Court of Appeals
78179-1
Division I
State of Washington
713012018 1:16 PM

No. 78179-1

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON
DIVISION I

IRYNA KOBETS, ET ANO,

Respondents-Appel Iants,

V.

YOEL & JOSEPH ENGINEERING,

ET ANO,

Plaintiffs- Respondents.

BRIEF OF APPELLANTS IRYNA KOBETS, ET ANO

Attorneys for Appellants

Natalia Litchev, WSBA No. 40520
Litchev Law Finn
600 108th Avenue NE, Suite 650
Bellevue, WA 98004
(425) 999-9061

Attorneys for Respondents

Travis S. Eller, WSBA No. 26923
Eller Law Firm, PLLC
800 5th A venue, Suite 4100
Seattle, WA 98104
(206) 801-1188 (425) 641-8010
 TABLE OF CONTENTS

I. INTRODUCTION AND SUMMARY OF ARGUMENT ...................... }

II. ASSIGNMENT OF ERROR .............................................................. 1

III. STATEMENT OF THE CASE ...................................................... 2

IV. STATEMENT OF GROUNDS FOR REVIEW ...............................4

V. STANDARl" OF REVIEW .............................................................. 4

VI.ARGUMENT .................................................................................. 5

A. The trial court violated Tenant's statutory due process rights

when the court refused to allow to present evidence of defense
to eviction and/or to continue the hearing, to examine the
defendant and to set the trial date ..................................... 5
l. The trial court abused its discretion and violated the
Tenants' statutory rights when it refused to allow to present
evidence of defense offered at the time of the show cause
hearing ............................................................... 5
2. The trial court abused its discretion and violated the
Tenants' statutory due process rights when it failed to
continue the matter ............................................... 12
3. The trial court abused its discretion and violated the
Tenants' due process rights when it failed to swear in and
examine the Tenants upon learning of a defense to
eviction ............................................................. 14
4. The Court erred in failing to set the trial date and instead
entering a judgment for money despite the defense of offsets
asserted by the Defendants ..................................... 19
8. The trial court erred when it denied motion for CR60 relief.... 20
l. Commissioner erroneously found that the Court's refusal to
allow counsel to present evidence of defense was the issue
of admissibility and not appropriate for CR60 motion while
it was a due process/irregularity/substantial justice issue
······································································20
2. Commissioner erroneously ruled that denial of a request for
continuance did not rise to a CR60 violation despite a due
 process violation was alleged by the requesting
party ...........................................................................24

VII.ATTORNEY'S FEES ON APPEAL. ........................................ 25

VIIl.c·oNCLUSION .................................................................. 26

11
 TABLE OF AUTHORITIES

Cases

Aiken v. Aiken,
187 Wn.2d 491,499,502,503,505,387 P.3d 680 (2017) ................... 16

Carlstrom v. Hanline,
98 Wash.App. 780, 788, 990 P.2d 986 (2000) ........................ 19

Christensen v. Ellsworth,
162 Wash.2d 365, 372, 173 P.3d 228 (2007) ................................... 7

Dependency ofT.l.G.,
139 Wn. App. 1, 16, ,J 22, 156 P.3d 222 (2007) ........................ 4

Dix v. /CT Group, Inc.,

160 Wash.2d 826,833, 161 PJd 1016 (2007) .........................5

Faciszewski v Brown,
187 Wash 2d 308,321 (2016) .......................................... 16

In re Marriage of Ebbighausen,
42 Wash.App. 99. 102 (1985) .............................................. 21

Kennei,vick Irrigation Dist. v. 51 Parcels of Real Prop.,

70 Wn.App. 368,371 (1993) ............................................... 22

Leda v. Whisnand,
150 Wn.App. 69, 73,207 P.3d 468 (Div. 1 2009).4, 6, 7, 11, 14, 21

Mathews v. Eldridge,
424 U.S. 319, 335, 96 S.Ct. 893. 4 7 L.Ed.2d 18 ( 1976) ..................... 16

Mauson v. Mauson,
95 Wn.App. 592, 606, 976 P.2d 157 (1999) .................................. 26

Ill
 Meadow Park Garden Assoc. v. Cantey,
54 Wash.App. at 374-75, 773 P.2d 875 .............................. 19

Perry v. Sindermann,
408 U.S. 593, 601-02, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) .... 16

Sintra, Inc. v. City ofSeattle,

96 Wn. App. 757,761,980 P.2d 796 (1999) ......................... .4

State v. Chapman.
140 Wn.2d 436. 450, cert. denied, 531 U.S. 984 (2000) .................... l 5

State v. Kelly,
32 Wn.App. 112, 114-115, 645 P.2d 1146 (1982) ................... 13

Tatham v. Rogers,
170 Wn.App. 76, 81 (2012) .................................................... 21

Topl{!(v. Chicago Ins. Co..

130 Wn.App. 301,303 (2005) ......................................... 21

Turner v. Kohler,
54 Wn.App. 688,693, (1989) .......................................... 24

Wash. State Phys. Ins. Exch. & Ass'n v. Fisons Corp.,

122 Wash.2d 299,339,858 P.2d 1054 (1993) ....................... .4

Statutes

RCW 59.18.380 ................................. l. 5, 7, 14, 15, 16, 17, 18, 19, 22, 25

RCW 59.18.100 ................................................................. ... 14

RCW 2.24.050 ................................................................... .... 23

Rules

RAP 2.2 (a)( 1) .................................................................. ....... 4

IV
ER 102
'.T
....................................................................................22

CR s·$.(b)(3) ...... ....................................................................22

II
Ii
:!

j:

I!
 1 I. INTRODUCTION AND SUMMARY OF THE
2 ARGUMENT
3 This case is about the family with three young children ("the
4 Tenants"), who were evicted from their rental home. During the hearing on
5 the order to show cause, court commissioner pro tern declined to allow
6 presentation of certain documents offered at the time of the hearing, which
7 would have supported the Tenants' defense to the eviction (rent abatement.)
8 The court further failed to take the Tenants' sworn testimony and failed to
9 continue the matter. The trial court proceeded to issue the writ of restitution
IO and the judgment against the Tenants. The Tenants moved to vacate the writ
l l of restitution and the judgment but their motion was denied. The Tenants
12 appeal.
13 The Tenants argue that their due process rights were violated when
14 the court declined to review the evidence offered at the hearing claiming
15 that those should have been filed in advance and failed to swear in the
16 Tenant and to question him as mandated by RCW 59.18.380.
17 II. ASSIGNMENT OF ERROR
18 I . Whether the trial court erred in issuing a writ of restitution and a
19 judgment against the Tenants when their statutory due process rights
20 have been violated by the trial court's declining to review evidence
21 (Assignment of Error No I)
22 2. Whether the trial court erred in issuing a writ of restitution and a
23 judgment against the Tenants when their statutory due process rights
24 have been violated by the trial court's failing to continue the hearing
25 (Assignment of Error No 2)

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-/
natalia@eastsidcattomc
y.com
 3. Whether the trial court erred in issuing a writ of restitution and a
2 judgment against the Tenants when their statutory due process rights
3 have been violated by the trial court's failing to swear in and question
4 the Tenants (Assignment of Error No 3)
5 4. Where the court erroneously denied Tenant' motion to vacate (No 4)
6 III. STATEMENT OF THE CASE
7 This case involves an eviction issue brought by the landlord
8 ("Landlord") against the tenant ("Tenant") for non-payment of rent; the
9 tenant asserted a defense of rent abatement due to the repairs done by the
IO Tenant after notice of the defective conditions was given and Landlord
11 declined to repair. CP 141, 142, 143, 144, 118-140.
12 When the Tenant moved into the property, he discovered that major
13 appliances, such as dishwasher, washer and dryer were not operational. CP
14 142, 118-140. He also discovered other issues, such as the cracked window
15 (moisture seeping in during rains), leaking refrigerator, two leaking faucets,
16 backdoor damaged and could not be locked. CP 144, 118-140. Tenant
17 contacted the Landlord and requested repairs. CP 141. Tenant's counsel at
18 the time sent a letter to the Landlord regarding the defective conditions. CP
19 118-121. The Landlord promised to repair but failed to do so within the
20 statutory time. CP 141. RT 11 : 1-9.
21 The Tenant submitted an estimate for the repairs CP 146. The
22 Landlord acknowledged receipt and asked for the price of additional items
23 to be fixed. CP 146. The Tenant then performed the repairs because he has
24 three small children in the family and they needed to have working
25 appliances as soon as possible. RT 18: 13. The Tenant also had to replace

Litchev Law Finn

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering llC v Kobe/s
Ph 425-999-9061 CASE NO. No. 78179-/
natalia@eastsideauorne 2
y.com
 I the warped flooring under the leaking refrigerator. RT 17:16-19.When the
2 Tenant requested the Landlord to reimburse his expenses or abate the rent,
3 the Landlord declined. CP 147, RT 17:9-25.
4 Moreover, Landlord stated that if the Tenant does not pay rent on
5 time he would evict him and contact the credit bureaus so he would never
6 be able to rent again. CP 150. The Tenant was afraid to just not pay rent. so
7 he continued to pay rent until finally in January (2018) he decided to file a
8 lawsuit to abate the rent and for other damages in district court. CP 152-158,
9 RT 17:9-25, RT 18:1-18.

10 The Landlord filed the Complaint for Eviction with the King County
11 Superior Court on January 25, 2018 CP 1-4 and Motion for Order to Show
12 Cause CP 5-6, CP 79-80.
13 On February 05, 2018, the Tenant filed Response to the Complaint.
14 CP 24-34.
15 The Landlord failed to appear at the show cause hearing before
16 Commissioner Judson on February 8, 2018, and it was continued. RT 5:16-
17 22, CP 77 I: 19-25. Commissioner Judson ordered for continuance. CP 68-
18 68.
19 At the second show case hearing before Commissioner Pro Tern
20 Garrett on February 15, 2018, Tenant's attorney sought to introduce
21 evidence of the defense pertaining to rent abatement but the Commissioner
22 denied the request on the ground the request has been made too late. RT
23 28: 15-19. Tenant's attorney then asked the court for a short continuance to
24 allow the Court to review the evidence proving that Tenant gave notice of
25 defective conditions to the Landlord. The court denied the request for

Litchev Law Firm

600 108111 Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue, WA 98004 Yoe/ & Joseph Engineering LLC v Kobels
Ph 425-999-9061 CASE NO. No. 78/79-/
n11111lin@cnstsidca1tomc
)'.Clllll
3
 continuance and signed the order for the writ and the judgment. RT:8-31.
2 On February 20, 2018, Tenant filed the Motion to vacate the writ
3 and the judgment under CR 60. CR 94-166, RT 32:18-21.
4 On February 26, 2018 Tenant filed Application and Declaration for
5 Temporary Stay of Writ of Restitution Pending the Hearing on the Motion
6 to Vacate. CP 190-206. Judge Schubert granted Order Staying Writ on the
7 same date. CP 207-208
8 On February 28, 20 l 8, the motion to vacate was heard before
9 Commissioner Pro Tern Moore. The Court denied the Motion to vacate and
l O Ordered Lifting Stay Of Writ. CP 217-218. RT 52:23-24. Revision was
11 denied. CP217-218.
12 This appeal was timely filed on March 15, 2018. CP 236-243.
13 IV. STATEMENT OF GROUNDS FOR REVIEW
14 This appeal is taken after the writ of restitution and final judgment
15 entered. RAP 2.2 (a)(l).
16 V. STANDARD OF REVIEW
17 Interpretation of a statute and its application to a set of facts is a
18 question of law reviewed de novo by the appellate court. See Sintra, Inc. v.
19 City oJSeattle, 96 Wn. App. 757,761,980 P.2d 796 (1999); Dependencyo
20 T.L.G., 139 Wn. App. 1, 16,122, 156 P.3d 222 (2007).
21 Refusal to allow to present evidence at a show cause hearing is
22 reviewed for abuse of discretion. Leda v. Whisnand, 150 Wn.App. 69, 73,
23 207 P.3d 468 (Div. l 2009). A trial court abuses its discretion when its order
24 is manifestly unreasonable or based on untenable grounds." Wash. State
25 Phys. Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299,339, 858 P.2d

Litchev Law Finn

600 108 11' Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue, WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-/
natalia@eastsideattorne 4
y.com
 1 1054 (1993). A trial court necessarily abuses its discretion if its ruling is

2 based on an erroneous view of the law. Dix v. JCT Group, Inc., 160 Wash.2d

3 826,833, 161 P.3d 1016 (2007).

5 VI. ARGUMENT
6 A. THE TRIAL COURT VIOLATED TENANTS' STATUTORY
7 DUE PROCESS RIGHTS WHEN THE COURT REFUSED TO
ALLOW TO PRESENT EVIDENCE OF DEFENSE TO
8 EVICTION AND/OR TO CONTINUE THE HEARING, TO
EXAMINE THE DEFENDANT AND TO SET THE TRIAL
9 DATE
10
1. The trial court abused its discretion and violated the Tenants'
11 statutory rights when it refused to allow to present evidence of
defense offered at the time of the show cause hearing.
12

13
RCW 59.18.380 provides, in relevant part:
14
At the time and place fixed for the hearing of plaintitrs
15
motion for a writ of restitution, the defendant, or any
16 person in possession or claiming possession of the
property, may answer, orally or in writing, and assert any
17 legal or equitable defense or set-off arising out of the
tenancy .... The court shall examine the parties and
18
witnesses orally to ascertain the merits of the complaint and
19 answer, and if it shall appear that the plaintiff has the right
to be restored to possession of the property, the court shall
20 enter an order directing the issuance of a writ of restitution.
21
22 This Court has interpreted is as follows: " Phrased in a less verbose

23 fashion, the statute allows the defendant to appear for the first time at an
24 11
unlawful detainer show cause hearing and assert, either orally or in
25
writing," 11 any legal or equitable defense" to the plaintiffs request for a writ

Litchev Law Firm

600 108 th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering llC v Kobets
Ph 425-999-9061 CASE NO. No. 78/79-/
natalia@castsideauorne 5
y.com
 of restitution. The statute then imposes on the trial court an affirmative duty
2 to examine the parties and witnesses, ascertain whether such defenses have

3
merit and, thus, determine whether a writ of restitution should issue." Leda
4
v. Whisnand, 150 Wn.App. 69, 79, 207 P.3d 468 (2009)
5

6 In Whisnand, the tenant and his counsel appeared at the show cause

7 hearing and attempted to introduce evidence of a defense to eviction (the

8
date of termination of the tenancy) but the court declined to examine the
9
tenant or have the tenant's attorney examine his client and stated that the
JO
tenant was given an opportunity to submit his evidence in writing but failed
11
12 to do so.

13 The Whisnand Court found that the tenant was not given an adequate
14
opportunity to present his defenses. The Court explained that tenants are
15
"permitted to orally assert any legal defense to the issuance of a writ of
16
17 restitution for the first time at the statutorily required show cause hearing.
18 There is a sound public policy behind this flexibility: given the relatively

19 low financial stakes in the average residential rental dispute and the
20
resulting difficulty that most persons at risk of eviction face in retaining
21
attorneys, the legislature has relieved such litigants of the burdens of
22
23 formality associated with Civil Rule 8 pleading. " Id., at 81. The Court also

24 stated that trial courts may not "properly disregard evidence that credibly
25
supports a legitimate defense. This is especially so where, as in RCW

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & .Joseph Engineering LLC v Kobets
Ph425-999-9061 CASE NO. No. 78179-/
na1alia@eastsidea11ome 6
y.com
 59.18.380 show cause hearings, summary rulings routinely determine
2 whether a trial is available at all, and so routinely constitute the only

3
opportunity to present any evidence. Indeed, the prejudicial effect of the
4
trial court's refusal to take testimony in this case is manifest. Whisnand
5
6 sought to present evidence that, if true, would have established that he had

7 been given insufficient notice by the Ledas of their intent to terminate his
8
tenancy. This evidence, if true, would have mandated a conclusion that the
9
trial court had no authority to issue a writ ofrestitution." Id., 82 referring to
10
l l Christensen v. Ellsworth, 162 Wash.2d 365,372, 173 P.3d 228 (2007).

12 The situation is similar in the present case in that an attorney for the

13 tenant attempted to present evidence during the order to show cause hearing,
14
which if true, would have established a defense to the eviction. Namely,
15
counsel attempted to present evidence that the Tenant gave notice to the
16
17 Landlord regarding certain material defective conditions that the Landlord
18 failed to remediate, that the Tenant send e-mails and a letter from former

19 counsel regarding the same. Counsel for the Tenant stated she had the
20
evidence with her and was ready to show it to the court, but the court
21
declined.
22
23 THE COURT: It's a real simple question. Your client
either put a request in writing to the landlord in detail or
24 he didn't.
MS. LITCHEV: He did. He did. RT: 13:14-17.
25

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 >'oel & .Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-/
natal ia@ca.~tsideattome
y.com 7
 The counsel had the additional documents with her in the
2 courtroom that had not been earlier submitted to the court:
3

4 THE COURT: [... ]So this doesn't sound like there was
a conversation in advance of making the repairs; is that
5 fair?
6 MS. LITCHEV: There was a conversation in advance.
THE COURT: This document doesn't support that, does it?
7 MS. LITCHEV: This one does not.
THE COURT: Okay.
8 MS. LITCHEV: But I have other emails.
9 THE COURT: I don't. Counsel, what -- have we not -- this
matter got continued from another time, right?
10 MS. LITCHEV: Yes.
THE COURT: So that gave you all the time to present, and
11
I don't -- is that part of -- isn't that a core requirement?
12 Am I missing something? Isn't that a kind of a core
requirement, giving the landlord an opportunity to repair
13 first?
14
MR. ELLER: Yes. And also --
MS. LITCHEV: He wasn't --
15 MR. ELLER: -- in the Landlord-Tenant Act to inspect after
before you can just present an invoice --
16 THE COURT: And expect --
17 MR. ELLER: -- and expect it to be deducted.
THE COURT: Yeah. So is that a misstatement of the law,
18 right, Counsel?
MS. LITCHEV: It's not.
19 THE COURT: Okay. So do you have evidence of--
20 MS. LITCHEV: Yeah, I do. There was a letter from a prior
attorney to --
21 THE COURT: Perhaps I should rephrase. Right now for me
to --
22 MS. LITCHEV: I have it with me, yes, and my client has
23 email communications. RT 15:12-25, 16:1-18.
[... ]
24
25

Litchev Law Finn

600 I081h Ave NE
Sui1c650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & .Joseph Engineering LLC v Kobers
Ph 425-999-906 I CASE NO. No. 78179-/
na1alia@eas1side11uorne 8
y.com
 1 Counsel also made her offer of proof:

2 MS. LITCHEV: So my client requested several times that

3 there were repairs and -- however, they were denied. Not
actually denied, but the landlord said that they would be
4 performed. But that never happened, so my client went
ahead. And he has three small children and a wife living
5 with them, so they needed to have working appliances. And
6 there are other security issues with the property, such as
the door was not closing at the end. There was the broken
7 window, seeping water, leaking faucets, leaking
refrigerator. He had to replace -- fix them and replace the
8
flooring under the refrigerator because it got damaged. So
9 all of those required expenses, which he did. He did
advance those expenses, but when he requested the
10 landlord -- and there was a letter from -- he had a prior
attorney, Petrenko Law Firm, and that attorney sent a letter
11
on September 25th, 2017, to Mr. Obisanya, to which I was not
12 privy to their -- I only have the letter, but apparently
nothing was done with regards to that letter.
13 So after multiple requests that the rent be abated,
however, this did not happen. [.. } RT 17:8-28, 18: 1.
14
15 [... ]
16 MS. LITCHEV: So I have -- regarding the offer of proof, I
17 have more emails here, and if the Court allows me to make a
copy. I will make a copy of those. Those emails state --
18
THE COURT: You're really kidding, aren't you, Counsel?
19 So you -- we've -- this case has been delayed. You were in
20 here this morning. You needed to run out to make more
copies to present things. I've allowed that to be
21 submitted, and now you're asking me, "Do you want more
information? I can go come up with it." You should have
22 done that well in advance of that hearing, and you know
23 that. So just why don't you --

24 MS. LITCHEV: I apologize.

25
THE COURT: -- stop while you're behind on that and keep

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & .Joseph Engineering llC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-1
na1alia@eas1sidea11ome 9
y.com
 moving with an argument.
2 MS. LITCHEV: Yeah. I apologize, Your Honor. The fact
3 that the motion was continued had nothing to do with my
client. It's because Mr. Obisanya didn't appear last time
4 for the hearing. That's why the motion was --
5 THE COURT: No. My point is you had additional
6 opportunity to submit extra evidence to the benefit of your
client and you for some reason chose not to. That's not my
7 problem, and I'm not going to consider additional matters,
papenvork that you've chosen not to submit at this time.
8
9 MS. LITCHEY: Okay. My understanding is.just like
Counsel just said, that the briefing is not required. You
IO can bring evidence to the hearing, and I think the equity --
II
THE COURT: You've brought me the evidence. Did you have
12 other evidence?

13 MS. LITCHEV: I do have other evidence.

14
THE COURT: Well, what is it that -- is it --
15
MS. LITCHEV: Just what you requested. The emails which
16 contain communications from Counsel.
17
THE COURT: I'm -- no.[ ... ) RT 25:2-25, 26:1-9.
18
It is clear from the record that the attorney for the Tenants
19
20 apologized for the fact that some documents and e-mails brought to her by

21 the Tenant that morning did not get copied prior to the hearing as she
22 thought she had enough information copied, but she offered the court to see
23
those additional e-mails right there at the hearing. This presented a viable
24
defense to the eviction, because the Tenant would be entitled to the rent
25

Litchev Law Firm

600 IOWh Ave NE
Suite650 APPElLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC v Kobels
Ph 425-999-9061 CASE NO. No. 78179-1
na1alia'!feas1sideat1omc IO
}'.com
 1 abatement in the amount of at least two months rent. The court declined

2 stating that counsel was supposed to provide evidence in advance of the

3
hearing.
4
Just like in Whisnand, where the commissioner was found to have
5
6 abused his discretion when he did not allow the tenant to testify on the

7 grounds that he should have presented evidence in advance, in this case the
8
court commissioner abused his discretion when he declined to consider
9
evidence brought to the hearing by counsel for the tenant, in violation of the
10
Tenants' statutory due process rights.
11

12 Counsel for the Tenant specifically noted that the process allows to

13 bring the documents to the hearing but the court still declined. Then counsel
14
for the Tenant stated that also equity warranted that the documents be
15
reviewed by the court:
16

17 MS. LITCHEV: So you would rather evict a person and a

family rather than see the evidence that showed that they
18 were requesting the rent abatement, they were requesting the
repairs and they didn't get the repairs? RT 26: 10-13
19

20 The Court responded in the way that was not responsive to the

21 counsel's statement, which was about the fairness of the process, but instead
22 showed his appearance of bias favoring landlord:

23
THE COURT: So you ask me, is it fair to evict somebody. I would
24 ask, and it would be appropriate for Plaintiff to ask, is it fair for
me to not receive the rent that I had asked for that it was
25
contractually agreed to be paid on a regular basis, on a

Litchev Law Firm

600 I081h Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue, WA 98004 Yoe/ & Joseph Engineering llC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-/
natalia@castsidea1tornc
y.com 11
 monthly basis. And so, you know, I don't think that that's
particularly helpful at this point. RT 27: 13-19.
2

3 The Opposing counsel did not specifically object to presentation of

4 further evidence at the hearing:

5
MR. ELLER: I think we should -- unless there's some other offer
6 of proof I am not hearing and the Court wants to give more time
to the defense to present one, I move for the judgment I am
7 1 asking for, which is rent for January and February through
2 today. RT: 21 :23-25, 22: 1-2.
8
9 Thus, the court declined to review the evidence offered at the

IO hearing only for the reason that it was previously not presented. The offer
11
of proof by counsel at a minimum established that there is a viable defense
12
to the eviction. The Court should have allowed presentation of evidence in
13
support of the defense to eviction.
14

15 2. The trial court abused its discretion and violated the Tenants'
statutory due process rights when it failed to continue the matter.
16 The decision to deny the defendant a continuance may be disturbed
17
on appeal "upon a showing that the defendant was prejudiced or that the
18
result of the trial would likely have been different had the motion been
19

20 granted [ ... ] There are no mechanical tests to determine whether the denial

21 of a continuance inhibits a defense or otherwise deprives a defendant of a

22
fair trial. We must examine the totality of the circumstances in each case,
23
particularly the reasons presented to the trial judge at the time the request is
24
denied." State v. Kelly, 32 Wn.App. 112, l 14-115, 645 P.2d 1146 (1982).
25

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue, WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph425-999-9061 CASE NO. No. 78179-/
natalia'.@c1L~1sidc111torne 12
y,COIII
 In this case, counsel for Tenant asked for the continuance to
2 accommodate the Court, as the Court apparently needed advance notice to
3
review the documents, because it declined to review without it.
4
The opposing counsel objected to continuance:
5

6 MR. ELLER: They should have been able to produce them before
today. RT 28:13-14.
7
The Court agreed with the opposing counsel, erroneously believing
8
9 that a party was lo brief the court in advance and may not bring the evidence

l O to the hearing:
11
THE COURT: Yeah. I hear the request. I've heard
12 argument to it. I am going to deny that. There was
opportunity. There was adequate opportunity to be prepared
13 for this hearing, Counsel, and you're just, frankly, not.
So no. RT 28:15-19.
14
15 Here, the court abused its discretion when it denied continuance,

16 which was requested to accommodate the court because counsel was ready
17
to present evidence at that hearing but was not allowed to.
18
In the Tenants' motion to vacate, they attached the evidence, such
19
20 as the letter to Landlord from the Tenants' former counsel and also thee-

21 mails that establish that the Tenant requested that the Landlord repair the
22 following defective conditions as early as October 5, 2017: CP 118-121.
23
Those documents establish that had the commissioner reviewed
24
those, it would have been clear that the Tenant gave notice to the Landlord
25

Li1chev Law Firm

600 I08th /we NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph425-999-9061 CASE NO. No. 78179-1
natalia@castsideattorne 13
y.COlll
 of the defects on numerous occasions, and that the Landlord failed to fix

2 those defects, that the Tenants sent an invoice to the Landlord and that he

3
agreed to the Tenants incurring the expense. An outcome of the show cause
4
hearing would have been different because a trial date would likely have
5
6 been set on the issue of whether the Tenant was entitled to the rent

7 abatement and in what amount, and whether that would have precluded the
8
eviction due to zero rent due or whether an offset against the rent due was
9
warranted under RCW 59.18.100.
10
If the court commissioner felt like he needed additional time to
11
12 review the documents offered at the show cause hearing, he should have at

13 least continued the hearing. The commissioner failed to either review or

14
continue the hearing to allow for such review.
15
3. The trial court abused its discretion and violated the Tenants' due
16 process rights when it failed to swear in and examine the Tenants
17 upon learning of a defense to eviction.

18 The trial court had the affirmative duty to swear in and examine the

19 Tenant upon learning of a defense to the eviction. RCW 59.18.380, Leda v.

20
Whisnand, 150 Wn.App. 69, 79, 207 P.3d 468 (2009.)
21
If the statute's meaning is plain on its face, then courts must give
22

23 effect to its plain meaning as an expression of what the Legislature intended.

24 Stale v. Chapman, 140 Wn.2d 436, 450, cert. denied, 531 U.S. 984 (2000).

25 Here, the statute is clear as it states in relevant part:

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 >'oel & Joseph Engineering llC v Kobet.,·
Ph 425-999-9061 CASE NO. No. 78179-1
natal ia@castsidcallornc J4
y.com
 [.. ] The court shall examine the parties and witnesses
orally to ascertain the merits of the complaint and
2 answer, and if it shall appear that the plaintiff has the
3 right to be restored to possession of the property, the
court shall enter an order directing the issuance of a
4 writ of restitution, returnable ten days after its date,
restoring to the plaintiff possession of the property and
5 if it shall appear to the court that there is no substantial
6 issue of material fact of the right of the plaintiff to be
granted other relief as prayed for in the complaint and
7 provided for in this chapter, the court may enter an
order and judgment granting so much of such relief as
8
may be sustained by the proof, and the court may grant
9 such other relief as may be prayed for in the plaintiffs
complaint and provided for in this chapter, then the
10 court shall enter an order denying any relief sought by
the plaintiff for which the court has determined that
II
the plaintiff has no right as a matter oflaw. RCW
12 59.18.380
The language of the statute is clear and unambiguous: the court
13
examine the parties and witnesses orally; there are no conditions,
14 ••shall"
15 qualifications, or ambiguities in this statute as to the courts duties.
16 By not allowing the Tenants to be sworn in and examined under
17
RCW 59.18.380, the trial court deprived the Tenants of their statutory right
18
to due process. The courts have long recognized the importance of
19
20 examining witnesses, including by the judges themselves, as ..a powerful

21 instrument in eliciting truth or discovering error in statements." Aiken v.

22 Aiken, 187 Wn.2d 491. 505. 387 P.3d 680 (2017). The Aiken court
23
mandates to apply the Mathews test in determining whether "'live testimony
24
or cross-examination is required" i.e. "' ( 1) the private interest impacted by
25

Litchev Law Firm

600 I081h /\ve NE
Suite<>S0 APPELLANT'S OPENING BRIEF
Bellevue. W/\ 98004 Yoe! & .Joseph Engineering LLC v Kobel.\'
Ph 425-999-9061 CASE NO. No. 78179-/
11111nlia@ens1side1111orne 15
y.com
 the government action, (2) " the risk of an erroneous deprivation of such
2 interest through the procedures used, and the probable value, if any, of
3
additional or substitute procedural safeguards," and (3) the government
4
interest, including the additional burden that added procedural safeguards
5
6 would entail. Aiken at 499, 502, citing Mathews v. Eldridge, 424 U.S. 319,

7 335. 96 S.Ct. 893, 47 L.Ed.2d 18 ( 1976).

8
In applying the first part of the three-prong test to the present case,
9
the Tenants have a cognizable interest in their home under the lease
10
contract. Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 33
11
12 L.Ed.2d 570 ( 1972), overruled on other grounds in Rust v. Sullivan, 500

13 U.S. 173 ( 1990 ). Further, there is a high risk of the error in a proceeding on
14
an order to show cause hearing, "as it is the first (and sometimes the only)
15
step of the eviction process" Faciszewski v Brown, 187 Wash 2d 308, 321
16
17 (2016), referring to RCW 59.l 8.380. Furthermore, the impact of a court
18 error cannot be reversed because once the writ of restitution is issued, the

19 tenants will be evicted as the revision and appeal are lengthy processes.
20
Lastly, by adopting RCW 59.18.380, the Legislature intended to ensure due
21
process is afforded to tenants before their property interest is removed.
22
23 Thus, all three prongs favor the Tenants and they were to be afforded

24 due process, which was the intent of the legislature in enacting RCW
25
59.18.380 i.e. live testimony and examination was required and the Tenant

Litchcv Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & .Joseph Engineering LLC v Kobe1s
Ph 425-999-9061 CASE NO. No. 78179-/
na1alia@i:a.~1sidcauornc 16
y.com
 was to be sworn in and examined by the court, when the issues during the
2 proceeding called for such examination. In fact, the Court attempted to

3
examine the Tenant on some questions but did not swear him in and only
4
perforn1ed limited inquiry. RT 8:10-17; 19:l-8; 23:8-25, 24:1-24.
5

6 The Court asked counsel for the Tenants that she had only two

7 options: counsel argument or witness testimony. Counsel for the Tenants

8
stated that she would like to argue but if the Court would has questions for
9
the witness; the court can swear in and examine the witness:
10
THE COURT: Okay. Well, there's either going to be
I1
argument or testimony. You get to pick, Counsel. Which is
12 it?

13 MS. LITCHEV: It's going -- I will argue, but if you ever

want to have questions for, you can.
14

15 THE COURT: No. I don't want two people talking at once

is my point.
16
17 MS. LITCHEV: Okay.

18 THE COURT: So ...

19 MS. LITCHEV: I will -- he's -- it's the first time with

20 my client in the courtroom, so ...

21 THE COURT: That's your job, not my job. RT 10:12-23

22 Thus. the Court effectively declined to swear in the Tenant,
23
erroneously imposing an unreasonable condition on counsel's argument that
24
there be no witness testimony.
25

Litchev Law Finn

600 I08 1h Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78 I 79-/
natalia@castsidcattornc 17
y.com
 During the hearing, the Court did proceed to ask questions of the

2 Tenant, whom counsel made available to testify, but not on the issue of the

3
defense to eviction (rent abatement), which was disallowed, as stated
4
hereinabove. The court had an affim1ative duty to examine the Tenant on
5
6 the issue of the presented defense or allow counsel to examine the witness,

7 when the alleged facts became known to the court, as happened in this case,
8
when counsel for the Tenant stated that evidence exists and is ready to be
9
presented to the court that the Tenant had given notice of defects, requested
10
repairs etc., as stated hereinabove. Instead, the court stated it was not its job
11
12 to examine the witness and that counsel needed to choose between witness

13 testimony and client argument.

14
This matter was also raised m the Tenant's motion to vacate
15
judgment heard by the Commissioner Pro Tern Moore. CP94-166. The court
16

17 erroneously stated that the Court did not have an affirmative duty to

18 examine under RCW 59.18.380 because it was the Tenant's obligation to

19 put on his testimony. However, the trial court did not let counsel examine

20
the Tenant either because the court limited the proceeding by disallowing
21
witness testimony explaining that the court '"did not want two people
22
23 talking." RT 10: 12-23. There was no basis in law or equity for such

24 restriction. Even if the court planned on accepting counsel's offer of proof:

25
then it should have allowed counsel to present the defense on the evidence

Litchcv Law Finn

<,oo I081h Ave NE
Suite650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & .Joseph Engineering lLC v Kobels
Ph 425-999-9061 CASE NO. No. 78179-1
11utali11@1cas1side111tornc 18
y.cmn
 (documents and e-mails) or let the counsel examine the witness. At any rate,
2 the court had an atlirmative duty to foster administration of justice under
3
the applicable statutes and court rules, rather than declining to review
4
evidence for no legitimate reason (a.k.a. "willy-nilly" RT 49:2-21)
5

6 4. The Court erred in failing to set the trial date and instead entering
a judgment for money despite the defense of offsets asserted by
7 the Defendants.
8 "'A show cause hearing is not the final determination of the rights of
9
the parties in an unlawful detainer action." Carlstrom v. Hanline:i. 98
10
Wash.App. 780, 788, 990 P.2d 986 (2000). Instead, show cause hearings
11
12 are summary proceedings to determine the issue of possession pending a

13 lawsuit. Meadow Park Garden Assoc. v. Cantey. 54 Wash.App. 371,375,

14
773 P.2d 875 (1989). lfthere are genuine issues of material fact regarding
15
possession or defenses raised by the tenant, the matter is set for trial. See
16
RCW 59.18.380.
17

18 In the present case, the court entered the judgment despite the

19 presented defense of offsets. The Tenant attempted to testify about it (but

20
was not sworn in) and the documents were introduced into the record
21
showing that the Tenants expended monies to repair appliances, doors,
22
23 faucets. refrigerator. replaced warped flooring underneath the leaking
24 refrigerator etc. RT 17: 18-20, CP 144, l I 8-140. The opposing counsel

25 distracted the court with allegations that the repairs were about repainting

Litchev Law Firm

600 I08 th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
lkllcvuc. WA 98004 Yoe/ & Joseph Engineering llC v Kobels
Ph 425-999-9061 CASE NO. No. 78 I 79-/
1111111lit1@c11stsidcu11ornc 19
y.com
 of the walls and cosmetic issues, but a non-functional dishwasher is hardly
2 a cosmetic issue and so on. The court responded with "It's a lot of money

3
to spend on someone else's property" and denied relief. RT 19:7-8. Perhaps
4
it is a lot of money but the parties had an understanding that the Tenant
5
6 would expend the money and recci ve the rent abatement. CP 141, 146.

7 The court commissioner should have assigned the trial date, not
8
summarily adjudicate the issue of offsets finding that the Tenants were not
9
entitled to any offsets.
IO
B. THE TRIAL COURT ERRED WHEN IT DENIED MOTION
II
FOR CR60 RELIEF.
12 I. Commissioner Erroneously Found that the Court's refusal to allow
counsel to present evidence of defense was the issue of admissibility
13 and not appropriate for CR60 motion while it was a due
process/irregularity/substantial justice issue.
14
15 The trial court made no decision about admissibility of the evidence or

16 lack thereof because the court never even looked at the evidence.

17
Evidence that credibly supports the defense to eviction may not be
18
properly disregarded by the court, and less so on the basis that it was not
19
20 submitted to the court earlier: it is abuse of discretion and a due process

21 violation. Sec Leda v. Whisnand, 150 Wn.App. 69, 79-81, 207 P.3d 468
22 (2009) and discussion hcreinabove in A(l ). A due process violation gives

23
rise to a CR60 motion. Top/iffv. ChicCtgo Ins. Co., 130 Wn.App. 301, 303
24
(2005) (vacating judgment under CR60(b)( I 1) was proper for due process
25

Litchev Law Finn

600 I08' h Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering llC v Kobet.,·
Ph 425-999-9061 CASE NO. No. 78179-1
na1aliaf?cas1sidca1tornc 20
y.com
 1 violation) ; see also Tatham v. Rogers, 170 Wn.App. 76, 81 (2012). When

2 a court disregards a person's due process rights, the resulting judgment is

3
void. In re Marriage qf Ebbighausen, 42 Wash.App. 99, 102 (1985).
4
Here, even the opposing counsel admitted that the issue was raised
5
6 before and in the Response, as well as the district court action, but objected

7 to the presentation of the e-mails to the court that corroborate that (not to
8
the admissibility.) RT 19:21-23. Thus, the evidence appeared to credibly
9
support the defense to the eviction and the court should have allowed
10
presentation of such evidence.
11

12 The Tenant stated at the hearing for the Motion to Vacate that their

13 due process rights were violated. However, the court declined to allow
14
presentation of the evidence, stating that it was hard to believe that a
15
commissioner would "willy-nilly" decline to review the documents but that
16
is what judges do every day." RT 49:2-
17 it was an admissibility issue, "that's

18 21. However, it was not an issue of the admissibility because the court

19 without reviewing the evidence is unable to make a ruling as to its

20
admissibility or lack thereof. Here, the court plainly refused to even look at
21
the documents so the Tenant has no opportunity to be heard for no legal or
22
23 equitable reason. It was not an evidentiary issue but a plain due process

24 violation warranting CR 60 motion.

25

Litchev Law Firm

600 I081h Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue, WA 98004 Yoe/ & Joseph Engineering LLC v KobeJs
Ph 425-999-9061 CASE NO. No. 78/79-I
1111tnlin@cns1sidc1111orne 21
y.Clllll
 The Tenant also argued that it was a procedural irregularity under
2 CR60(b )(I), which is defined is a failure to adhere to some prescribed rule

3
or mode of proceeding. Kennewick Irrigation Dist. v. 51 Parcels of Real
4
Prop., 70 Wn.App. 368, 371 (1993) (the Court failed to examine a party
5
6 prior under CR 55(b)(3),judgment vacated due to irregularity.) Here, it was

7 a violation of RCW 59.18.380 prescribing the necessity to examine a party

8
(in addition to any other evidence or argument presented), as well as a
9
violation of ER 102 that states that the rules of evidence "shall be construed
10
to secure fairness in administration, elimination of unjustifiable expense and
11
12 delay, and promotion of growth and development of the law of evidence to

13 the end that the truth may be ascertained and proceedings justly
14
determined." ER 102. Here, the Tenant alleged in their Motion to Vacate,
15
in effect, that Commissioner Garrett did not promote the administration of
16
in an
17 ER l 02, while no court rule or statute demands that the documents

18 unlawful detainer action be presented to the court in advance of the show

19 cause hearing. Commissioner Moore erroneously ruled that this issue was

20
not appropriate for a Motion to Vacate and that the Motion for revision
21
should have been brought instead. RT 50:23. However, the Tenant were not
22
23 obligated to move to revise, it is a matter of right and not an obligation.

24 RCW 2.24.050 (" Any party in interest may have such revision[ ... ]") The
25
Tenant considered the propriety of a CR60 motion as the faster route to

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
llcllcvuc. WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-1
1m1alia@ea~tsidea1torne 22
y.com
 relief in the time-sensitive case of eviction, versus a Motion for Revision,

2 which could have taken weeks, if not months, before the matter could be

3
heard by ajudge. CP 94-166.
4
Finally. the Tenant argued that substantial justice was not served.
5
6 The court declined to review the documents offered as proof by Tenant,

7 stating that Tenant was to present all records in advance. Counsel's

8
argument that she brought the documents and had it available for the
9
Court's review was disregarded.
10
The Tenant argued that the courtroom was empty at that
11
12 time, with only one case coming in near the end of the subject

13 matter, and it is hard to understand the court's decision not to

14
review the documents or continue the hearing if the court needed
15
advance notice, when the matter concerned the roof over the heads
16
children. CP 100. The court was
17 of 5 people, three of them small

18 to foster administration of justice, which prefers litigants to be

19 heard on the merits generally and specifically mandates it in RCW

20
58.18.380.
21
2. Commissioner Erroneously Ruled That Denial Of A Request For
22
Continuance Did Not Rise To A CR60 Violation Despite A Due
23 Process Violation Was Alleged By The Requesting Party.

24 The Defendants alleged in their motion to vacate that not only did

25 the court decline to review relevant evidence and fail to examine the party,

Litchev Law Firm

600 I081h Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC" Kobets
Ph 425-999-9061 CASE NO. No. 78179-1
natalia@eastsideuuorne 23
y.com
 it also declined a short continuance to the Defendants to make a copy for
2 the opposing counsel, after having previously granted a one-week

3
continuance to the Plaintiff.
4
"A court may deny a motion for a continuance when '(1) the
5
6 requesting party does not ofter a good reason for the delay in obtaining the

7 desired evidence; (2) the requesting party does not state what evidence
8
would be established through the additional discovery; or (3) the desired
9
evidence will not raise a genuine issue of material fact. " Turner v. Kohler,
10
54 Wn.App. 688, 693, ( 1989). In this case, the requesting party requested a
11
12 continuance only because the court had stated erroneously that all evidence

13 was to be presented to the court in advance of the hearing. The requesting

14
party had the evidence available for the court's review at the time of the
15
hearing and the offer of proof was made (e-mails and letter from former
16
and demand for repair) Counsel offered the
17 counsel re notice of defects

18 evidence for review to court and counsel or to make copies for the opposing

19 counsel; alternatively, the documents could have been simply shown to the

20
Plaintiffs counsel prior to be given to the Court. A five-minute break
21
would have afforded enough time to make a copy of the letter and e-mails
22
23 addressed to Plaintiff to Plaintiff's counsel. Alternatively, if the court was

24 not inclined to review evidence unless it was presented prior to a hearing,

25
then the court's should have entertained its own request by allowing a short

Litchev Law Firm

600 108th Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC \' Kobe1s
Ph425-999-906I CASE NO. No. 78/79-J
nmalia'lrcastsidcallomc 24
y.com
 continuance. It was erroneous to deny a short break or a continuance to
2 allow for presentation of the existing evidence brought by the Defendants

3
to the OSC hearing when the law explicitly stated that any evidence may be
4
presented at the time and place of the hearing. RCW 59.18.380. Thus, the
5
6 Defendants were unreasonably denied an opportunity to be heard.

7 Furthermore, the denial violated the appearance of fairness doctrine: the

8
court has entertained the continuance requested by the Plaintiff for failure
9
to appear without a justified reason, without granting attorney's fees to the
10
Defendants, but then denying the Defendants' request for continuance so
11
12 that the documents may be submitted according to the unreasonable court's

13 demand "prior to the hearing."

14
Therefore, denial of the continuance rose to the level of a due
15
process violation and CR 60 relief was warranted, as stated and supported
16
cited hereinabove but was erroneously denied by
17 by authority
18 Commissioner Moore.
19 VII. ATTORNEY'S FEES ON APPEAL
20
The Tenants should be awarded fees on appeal on the basis of the
21
parties' Lease, providing for an award of foes to prevailing party.
22
23 The Tenants should also be awarded tees on appeal on the basis of

24 the Landlord's intransigent conduct. "A party's intransigence in the trial

25
court can also suppoi1 an award of attorney fees on appeal." Ma/Ison v.

Litchev Law Finn

600 I08 1h Ave NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78li9-1
m11alia'g!eas1sidea11orne 25
y.com
 Mattson, 95 Wn.App. 592, 606, 976 P.2d I 57 (1999.) Here, the Landlord
2 caused its attorney to submit a declaration under penalty of perjury stating:

3
"6. Defendants' counsel cited to additional emails not in the record.
4 Commissioner pro tern Garrett several times asked counsel to
produce these emails. She was not able to comply and did not
5
produce the additional emails when requested." CP 174.
6
As is evidenced from the reporter's transcript, the above is a plain
7
misrepresentation of what had transpired in the courtroom, in an attempt to
8
9 thwart administration ofjustice. Had counsel for the Landlord not submitted

10 this statement, commissioner Moore would have considered the request and
II
most likely would have granted relief; in the presence of this statement,
12
however, he declined to do so. Thus, the Tenants should be able to recover
13
their attorney's fees both for the trial and on appeal.
14

15
VIII. CONCLUSION
16
The court commissioner, upon seeing that the evidence is being
17

18 offered that would allow a defense to eviction, should have reviewed such
19 evidence, or, at least to allow a short continuance ifhe needed to review

20 the documents in advance and set the trial date.

21
For the reasons stated herein, APPELLANT respectfully request
22
that this Court grant the relief requested and find the trial court's issuance
23
of the writ ofrestitution improper, vacate the judgment and award of fees
24
and remand for trial.
25
Respectfully submitted,

Litchev Law Firm

600 1081h Ave NE
Suite650 APPELLANT'S OPENING BRIEF
Bellevue. WA 98004 Yoe/ & Joseph Engineering LLC v Kobets
Ph 425-999-9061 CASE NO. No. 78179-/
natalia@castsideattorne 26
y.corn
 Dated: July 30, 2018 LITCHEV LAW FIRM

3 NATALIA LITCH
Attorney for APPEL
4 and Defendants
SERGEY KO BETS, IR YNA
5 KO BETS and their minor
children
6
7
8
9 CERTICATE OF SERVICE

lO I certify that on July 30.2018, the foregoing Opening Appellants' Brief was
11 filed with the Court of Appeals, Division I, and e-served via the Washington
12 State Appellate Coutts' eFiling System on Travis S. Eller of Eller Law Firm,

13 PLLC.

14

15 DATED this 30 th day of July, 2018

16
17 By:~
Natalia ~ 0520
18
19

20
21
22

23

24
25

Litchev Law Firm

600 l08111 /\ ve NE
Suite 650 APPELLANT'S OPENING BRIEF
Bellevue, W /\ 98004 Yoe/ & Joseph Engineering I.LC v Kobets
Ph425-999-9061 CASE NO. No. 78179-1
natalia@c11stsidca1tornc 27
y.com
 LITCHEV LAW FIRM

July 30, 2018 - 1:16 PM

Transmittal Information

Filed with Court: Court of Appeals Division I

Appellate Court Case Number: 78179-1
Appellate Court Case Title: Yoel & Joseph Engineering LLC, et ano, Respondents v. Iryna Kobets, et ano,
Appellants
Superior Court Case Number: 18-2-02216-9

The following documents have been uploaded:

• 781791_Briefs_20180730130433D1285050_0886.pdf
This File Contains:
Briefs - Appellants
The Original File Name was Appellants opening brief_78179-1.pdf

A copy of the uploaded files will be sent to:

• paralegal@eastsideattorney.com
• travis.eller@accessevictions.com
• travis.eller@injurytravis.com
Comments:

Sender Name: Natalia Litchev - Email: natalia@eastsideattorney.com

Address:
600 108TH AVE NE STE 650
BELLEVUE, WA, 98004-5110
Phone: 425-999-9061

Note: The Filing Id is 20180730130433D1285050