### LED 

## APPEALS di' I 

### 7 

### 4 R! 9 

### AN 8: 47 T, y 

### IN THE COURT OF APPEALS OF THE STATE OF WASHIN( DIVISION II FREDERICK J. KARPMAN and ELLEN S. KARPMAN, Trustees of the KARPMAN TRUST, Appellants,

V. OLEG ROZENFELD, aka OLEG 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. No. 42830 - 0 -II

ORDER CORRECTING UNPUBLISHED OPINION

The unpublished opinion filed November 19, 2013 is corrected as follows: The caption is changed so that Frederick J. Karpman and Ellen S. Karpman, Trustees of the Karpman Trust, are listed as Respondents and 

### Oleg Rozenfeld, et ux., is listed as Appellant.No. 42830 - 0 -II
DATED this

# e ay of / % , 2014.

IT IS SO ORDERED. Hunt,J.

2i



### IN THE COURT OF APPEALS OF THE STATE OF WASHIN I)WISION H FREDERICK J. KARPMAN and ELLEN S. KARPMAN, Trustees of the KARPMAN TRUST, Appellants,

V. OLEG ROZENFELD, aka OLEG 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. No. 42830 - 0 -H 

### FILED 

## C01JRT OF APPEALS D1VfJ1Of4 if 201" 

### NOV 19 

### AM 8: 38

UNPUBLISHED OPINION

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 ofdefault and an order denying his 

## 1 Mason County Title Insurance Company was dismissed from the action without costs or attorneyfees bythe Amended Judgmentfiled 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 ofthis-appeal.No. 42830 - 041

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 motionto 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 ofRozenfeld's motionto vacate, do not address denial of his other motions because they are moot, and award the Karpmans attorneyfees 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. 

### ThisAgreement included a " Financing Addendum,"
which provided that Rozenfeld' s obligation to purchase the home was contingent on his "[ g]ood f] aith" 

## efforts to obtain financing through a Federal Housing Administration (FHA) loan.4

3 

### Normally,we do not accept direct appeals ofinterlocutory orders such as these. Nevertheless; our court has treated this case thus far as a direct appeal. Thus, in the interests ofjudicial economy and resolving the parties' case on the merits, we neither dismiss this " appeal" nor compel Rozenfeld to appeal the final defaultjudgment. See RAP 1. 2(a) and (c). 

## 4This FHA loancontingencyprovided,inpertinentpart: This Agreement is contingent on Buyer obtaining the following loan or loans to purchase the 

### Property: ... FHA.... 

### Ifnot 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. Ji No. 42830-0-11
Clerk' s Papers ( CP) at 114, 115. 

### This Financing Addendum also required Rozenfeld to obtain the Karpmans' written consentbefore changing lenders. 

### 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 

### propertyregardless ofwhetherhe hadbeen ableto obtain an FHAloan. H. PROCEDURE A. - Service of Summons and Complaint 

### Two months later, on June 30, the Karpmans sued Rozenfeld for breach ofcontract. The 

### Karpmans were unsuccessful in attemptingto serve Rozenfeld in person athis 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.
9No. 42830-0- 11
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 Longbranch, Washington address for Rozenfeld.

### 6 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 ofthese 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 awindowhe sawaman fitting Rozenfeld's description. When OlgaAlmanskaya came out onto the front porch, Sanford asked for Rozenfeld, stating that he had legal documents for him. Almanskayatold Sanford that Rozenfeld was not home. Sanford gave Almanskayathe

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 onthe hood of Sanford's car, but hetold her he was leaving the papers with her andthat 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 complaintthat 

### Sanford had leftwithAlmanskayathe daybefore. Rozenfeld signedthe certified mail receiptfor the letter on August 4.


### 6 The Karpmans also hired William Peckto 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. 0No. 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 failure to obtain a loan . 7 A Cobalt Mortgage representative called .Rozenfeld about the 

### subpoenas and the lawsuit.8 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 ofdefault 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 movedto vacate the order of default. In support ofhis motion,9 he submitted Ahnanskaya'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 clearfrom the record when Cobalt contacted Rozenfeld orwhen it released the documents. 

### 9 Rozenfeld also argued that his " meritorious defense" to the action entitled him to have the default set aside. Br. ofAppellant at 18. This defense appears to be that, although he was unable 

### to meet the financing contingency ofthe Agreement, his loan-seeking efforts were made in good faith and therefore he did not default on the agreement.
5No. 42830-0-11



### 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 

### hadpersonally deliveredthesummons and complaintto heratthe 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 forfailing 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 Rozenfeldhadfailed to show prejudice from 

## any irregularity in the service of the .subpoenas on the banks, and because the subpoenaed 

## documents were already inthe court's file.10 Instead, the superior court invitedthe parties to consider entering into an agreed orderto redact anypersonal identifiers inthe documents under GR 15.11


### to The superior court also ruled thatanyfailure to have served Rozenfeld withthe supoenaswas harmless. 

### 11 The record does not showthatthe parties everreached such an agreement.
relNo. 42830 - 0 -II 

### The superior court subsequently issued written orders denying the motion to quash and the motion to set aside the default. Rozenfeld appeals these orders.12 ANALYSIS I. MOTION TO SETASIDE ORDER of DEFAULT Rozenfeld argues that, under CR 55, the trial court had. "good cause" to.set aside the
order of default ( 1) because he presented sufficient evidence of " excusable neglect! 13; ( 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 responseto the Karpmans' lawsuit,wedo notreachhis argumentabout meritorious defenses. A. Standard ofReview Washington courts generally disfavor default orders and judgments. 

### See Trinity Universal Ins. Co. ofKansas v. Ohio Cas. Ins. Co., No. 67832 - 9 - I, 2013 WL 4562718, at * 3 Wash. Ct.

### App. Aug. 19, 2013) (

### citing Griggsv.AverbeckRealty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 ( 1979)). 

### A superior court may vacate an order ofdefault for good cause or " upon
such terms as the court deems just." CR . 55( c)( 1); 

### SeekSys., Inc.v. Lincoln Moving / Global 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 showthat Rozenfeld appealed this defaultjudgment. 

### 13 Rozenfeld argues that the superior court should have vacated the order ofdefault 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.

7No. 42830 - 0 -II Lines, Inc., 63 Wn. 

### App. 266, 271, 818 P.2d 618 ( 1991). 

### In determining whether the parry 

### seekingto set aside an orderofdefaulthas shown good cause underCR55(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)), affd sub nom., Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 ( 2007). The 

### superior court has broad discretion in ruling on whetherthe facts demonstrate excusable neglect; 

### in so doing, it may make credibility determinations and weigh facts in order to resolve the issue.14 

### See Johnson v. 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 ofthe trial court, subject to the good cause requirement of CR 55(c). Where the decision or order ofthe trial court is a matter ofdiscretion, 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 -1I B. Failure to Show Excusable Neglect / Good Cause 

### Here, the superior court reviewed declarations submitted by the parties detailing the manner of service ofthe 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 the recipient to sign for it; the 

### return receipt bore the printed name " Oleg Rozenfeld" as having accepted delivery ofthis letter on August 4. CP at 158. 

### Rozenfeld does not contest that Almanskayawas properly served on his behalftwo days 

## earlieronAugust2. Yethewaited morethan20days15 afterservicebefore contacting coun. sel.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 thathe had ' never signed for or received the certified letter on August 4. 

### Rozenfeld correctlyargues that excusable neglectand due diligence arenotthe onlyways to show " good cause." Br. of Appellant at 15. 

### But he mistakenly contends that the superior is CR 12(a)(1) requires adefendantto serve his answerwithin 20 days ofservice ofthe 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 ofAppearance on September 6.No. 42830 - 0 -11 court concluded that " excusable neglect is an indispensable element of `good cause' under CR 

### 55" in setting aside an order ofdefault. Br. ofAppellant at 15. Instead,the superior court noted that a " defaultjudgment" 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 afactor in atrial court's finding offailure 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 — 

### thatthe superior court implicitlyfound
not credible his sole evidence of " good cause" and " excusable neglect," 

### namely, his and Alrnanskaya' 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. Atlantic - Richfield Co., 88 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 excuseforhis delay in respondingtothe summons and complaint. C. " Meritorious Defense" Because.itfound that there was no good cause to set aside the default, the superior court 

### did not reach the question ofwhether 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 defaultjudgment"; and (2) he had a meritorious defense to the Karpmans' suit. Br. ofAppellant at 16. This argument also fails.
10No. 42830 - 0 -II Rozenfeld cites Canam Hambro Systems in support ofhis argument that his meritorious 

### defense constitutes good cause forvacating the order ofdefault. He is correctthat 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 ofthe defense was the sole basis forthe 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 defense was " untenable."

## 17 Canam,33 Wn.App.at456. 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 retreatfrom the primary requirementforvacating an orderofdefault under 

### CR 55(c), namelythe showing ofgood cause, including its excusable neglect component: 

## 17More specifically,the appellate courtruled:

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. at456 (emphasis added).
11No. 42830 - 0 -11 CR 55( c) provides: " For good cause shown and upon such terms as the court deemsjust, the court may set aside an entry of default ...." In contrast with CR 60( e), 

### which requires that a defendant seeking to vacate a defaultjudgment show ameritorious defense to the action, aparty seeking to set aside an order of 

### default under CR 55(c) prior to the entry ofthejudgment 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; yetthe trial
court had focused on only the merits of the defense, which it had wrongly decided. Canam, 33 

### Wn.App. at453, 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 reversingthe 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 ofthe trial court, subject to the good cause requirement of CR 55(c). Where the decision or order ofthe trial court is a matter of discretion, it will not 

### be disturbed on review except on a clear showing ofabuse 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. at453 -54.

12

### j No. 42830 - 0 -II 1 

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



### court abused its discretion in setting aside an order ofdefault, not a defaultjudgment. We hold thatthe superior court did not abuse its considerable discretion in denying Rozenfeld's motionto set aside the order ofdefault. 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,atthe time these subpoenas were issued,the superior court lackedjurisdiction over 

### him. He also complains thatthe Karpmans nevermailed him or otherwise served him withthese 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 

### subpoenaswasmoot,18 andwe donotfurtherconsiderthisissue.19

18 CR 55( a)(2) precludes' a defaulted party from responding to or " otherwise.

### defending] "- against a pleading -

without leave of court. Because Rozenfeld defaulted and the superior court left the 

### order ofdefault 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, ifthe question is merelyacademic, or ifa substantial question no longer exists." ( internal citations omitted)). 

### 19 Even ifthere had been some sort of defect in the subpoenas' service, once the subpoenaed documents became part ofthe court record,the superior court could have protected Rozenfeld's 

## privacyby (1) following the superior court's suggestionto meetwiththe Karpmansto 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).
13No. 42830 - 0 -II B. Motion for Sanctions 

### Rozenfeld also argues that the superior court erred infailing 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 request for sanctions was also. moot

### 20 We hold,therefore,thatthe superior court did not abuse 

### its discretion in denying Rozenfeld's requestforsanctions underCR45 afteritdenied 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 ofdiscretion in-

the superior court's refusal to impose such discovery sanctions. See Lodis v. Corbis 

### Holding' s, Inc., 172 Wn.

## App. 835, 854, 292 P.3d 779 (2013) (

### citing Howellv.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 

### thatthe subpoenaed banks eitherwere subject to undue burden or expense or sought CR 45(c)( 1) sanctions below.
14i No. 42830 - 0 -II litiIIation.

### 21 CP at 112. Because the Karpmans arethe prevailingparty,we awardthem costs and 

### I attorneyfees 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..

Maxa, J.

zi Rozenfeld also requests fees based on this contractual -language. Because he is not the 

### prevailing parry,he is not entitledto attorneyfees underthisprovision.
15