IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON RICHARD AZPITARTE, Appellant,

v. GAYLE SAUVE and JANE DOE SAUVE, and the marital community composed thereof; BURIEN COLLISION CENTER, INC.; WILLIAM WESTOVER and JANE DOE WESTOVER, and the marital community composed thereof; MUSCLE CARS NORTHWEST, INC.; CHARLES LILLARD and JANE DOE LILLARD, and the marital community composed thereof; and JONG DOE and JANE DOE #1-10, Defendants, DANIEL SPINO and JANE DOE SPINO, and the marital community composed thereof, Respondents. No. 70751-5-1 DIVISION ONE UNPUBLISHED OPINION

FILED: June 15, 2015 

### Appelwick, J. — Azpitarte appeals the trial court's order granting summary 

### judgmentof his claims against Spino. Azpitarteargues that the trial court erred in finding that his claims were barred by the applicable statute oflimitations, becausethe discovery rule should apply in this case. The discovery rule requires a plaintiffto use due diligence 

### in discovering the basisfor the cause of action. BecauseAzpitartefailed to exercise due diligence, he is not entitled to benefit from the discovery rule. We affirm. FACTS 

### Richard Azpitarte seeks the recovery of a vehicle that he alleges was fraudulently 

### transferred to Daniel Spino by Gayle Sauve and/or Burien Collision Center, Inc. TheNo. 70751-5-1/2

vehicle was one of several of Azpitarte's that were seized by King County and then 

### transferred to third party purchasers. Azpitarte v. Sauve, noted at 172 Wn. App. 1050, 2013 WL 223042, at *1. The underlying proceedings for how these vehicles were 

### impounded and subsequently sold are set out in previously issued opinions addressing the same nucleus offacts.1 

### On December 10, 2010, Azpitarte filed an action for conversion and replevin 

### against Sauve, his marital community, and his business, Burien Collision Center. ]d. 

### Azpitarte alleged that Sauve illegally obtained possession of Azpitarte's 1970 Chevrolet Chevelle Super Sportfrom a tow yard. Id. Azpitarte filed his suit more than three years 

### after Sauve obtained possession of the car—i.e., after the statute of limitations had 

### expired.2 Id at *2. But, Azpitarte argued he was entitled to application of the discovery rule to tollthe statute of limitations, because Sauve fraudulently concealed the fact that 

### he had obtained the carfrom CedarRapids Towing in the fall of 2004. l± In other words, 

### Azpitarte claimed thatSauve's fraud preventedhimfrom discovering thefactual basis of his allegations until 2007. Id The trial court rejected Azpitarte's equitable tolling 

### argument and ultimately dismissed the suit on summaryjudgmentfor untimeliness. Id. at*2-3. Affirming thetrial court'sdecision, the CourtofAppealsfound thatAzpitartefailed 1In 2005, Azpitarte first pursued litigation against King County for claims related to the initial seizure, arising from zoning code violations. See King Countvv. Azpitarte, noted at 130Wn. App. 1047,2005WL 3462784; King Countvv. Azpitarte, noted at 136 

### Wn. App. 1021, 2006WL 372405; OrderGranting Motion to Dismiss, Azpitarte v. King Countv, No. C07-1998-JCC , 2009 WL564732 (W.D.Wash. Mar. 3, 2009); King Countv 

### v. Azpitarte. noted at 172 Wn. App. 1047, 2013 WL 222534. In 2010, Azpitarte 

### commenced litigation against Sauve and several other defendants. SeeAzpitarte, 2013 WL 223042, at *1. 

### 2It is undisputed that Sauve registered the '70 Chevelle Super Sport in his name 

### with the Department ofLicensing in August 2005 and thatAzpitarte did notfile suituntil December 2010. Azpitarte, 2009 WL 223042, at *2.No. 70751-5-1/3



### to identify any genuine issue of fact as to application of the discovery rule to extend the statute oflimitations. ]d. at *3. 

### The litigation here is nearly identical to the litigation Azpitarte broughtinthe above case, except that the instant case involves a different car—a 1969 Chevrolet Chevelle— 

### and another buyer—Spino. On February 24, 2005, Spino purchased the '69 Chevelle, and on March 14, 2005, he registered the car in his name with the Department of Licensing (DOL). On March 26, 2012, Azpitarte sued Spino for conversion, fraud, and replevin. InAugust, he amended his complaintto add a civil conspiracyclaim. He alleged 

### that Spino did not obtain the '69 Chevelle through "legitimate" means—i.e., at a legal auction. He also claimed that, on March 14, 2005, Spino and Sauve used a forged abandoned vehicle report (AVR) to fraudulently obtain title for Spino. Just as he did in his previous suit against Sauve, Azpitarte argued that the discovery rule extended the statute of limitations. Specifically, he stated that, due to Sauve's and Spino's misrepresentations, he did not discover the grounds for his fraud and conspiracy claims on the '69 Chevelle untilMarch 27, 2009. Thetrial courtdismissed the case on summaryjudgment, because itfound no genuine issue of material fact that Azpitarte failed to file his complaint before the limitations period had run. The court also awarded Spino attorney fees for responding to a frivolous lawsuit. Azpitarte appeals. He challenges the dismissal of his case as well as the award of attorney fees.
DISCUSSION Azpitarte argues that the trial court erred in dismissing his claims on summary 

### judgment. Heassertsthatthediscovery rulesaves his causes of action from being barredNo. 70751-5-1/4 

### bythe applicable statute of limitations. In addition, he challenges the trialcourt's award offees to Spino below. 

### This court reviews a trialcourt's summaryjudgmentorderde novo. Allen v. State, 118 Wn.2d 753, 757, 826 P.2d 200 (1992). A motion for summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled tojudgment as a matter of law. CR 56(c). I. Statute of Limitations on Property-Based Claims 

### For conversion, replevin, fraud, and civil conspiracy actions, the statute of limitations is three years. RCW 4.16.080(2) (for "[a]n action for taking, detaining, or 

### injuring personal property, including an action for the specific recovery thereof); RCW 4.16.080(4) (fraud). The parties do not dispute that Azpitarte filed his suit about seven years after Spino obtained possession ofthe car, well beyond the applicable statute of limitations. Rather, they dispute whetherthe discovery rule should apply, and ifso, when Azpitarte discovered the basis for his causes of action. Generally, a cause of action accrues, and the applicable statute of limitations begins to run, when a party has a right to apply to a courtfor relief. U.S. Oil &Ref. Co. v. Dep't of Ecology. 96 Wn.2d 85, 91, 633 P.2d 1329 (1981). The discovery rule operates to tollthe date ofaccrual untilthe plaintiffknows or, through the exercise ofdue diligence, should have known allthefacts necessaryto establish a legal claim. Crisman v. Crisman, 85 Wn. App. 15, 20, 931 P.2d 163 (1997). As a threshold matter, the discovery rule requires a plaintiff to use due diligence in discovering the basis for the cause of action. Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599, 604, 123 P.3d 465 (2005). Due diligence, with respectto the discovery rule, is a question offact unless reasonable mindsNo. 70751-5-1/5


### could reach but one conclusion. See Allen, 118 Wn.2d at 760. The plaintiffbears the burden of provingthatthe necessaryfacts could not be discovered in time. G.W. Constr. 

### Corp. v. Prof'lServ. Indus.. Inc.. 70 Wn. App. 360, 367, 853 P.2d 484 (1993). Here, Azpitarte asserts that "the grounds for fraud and conspiracy on the ['69 

### Chevelle] were not knownuntil after March 27, 2009." Only onthatdate, Azpitarte claims,
did he 

### learn[ ] forthefirst time, that [Spino] had acquired the carusing an AVRthat had been generated as a resultof a carauction. Itwas not until a shorttime later that Azpitarte learned that in fact, the AVR had been altered and that the real purchase ofthe carwas made by Burien Collision. 

### However, Azpitarte's claim as to the application ofthe discovery rule fails for several

reasons. First, Azpitartefails to identifyany evidenceto demonstratethathe could not have, 

### through the exercise ofdue diligence, discovered thefactual basis for his property-based claims within three years of the date on which Spino registered the '69 Chevelle in his


### name with the DOL in2005.3 This is fatal to his argument. Second, Azpitarte cites no facts from the record to supportthe bald assertion that Spino participated inanyfraud or forgery. Azpitarteclaimsthat "Spino had to be involved" withthefraud thatprevented him from discovering thefactual basis of his allegations until March 27, 2009. Specifically, Azpitarte alleges that Spino, in league with Sauve—and,



### 3In his opening brief, Azpitarte submits only a summary argument that, because "[t]his could be a [sic] costly and prohibitively expensive for someone in Azpitarte's position," "reasonable minds could have concluded that a diligent search would not include hiring an attorney to continually keep looking for 120 vehicles."No. 70751-5-1/6 

### likely, an unnamed DOL insider4—acquired the vehicle using a forged AVR. Azpitarte asserts that this forgery prevented him from learning ofthe alleged fraud until March 27, 

### 2009, when he received a written report from a police investigation5 into Cedar Rapids Towing,the companythat had towed Azpitarte's cars. From this, Azpitarte claims thathe 

### "produced direct uncontroverted evidence to this court that the defendants used forged and fraudulently produced documents to first hide, and then convert stolen vehicles." He is mistaken. Azpitarte has not provided any facts to establish the existence offraud, much less 

### Spino's involvement insaid fraud. Citing to his own pleadings and declarations, he offers nothing more than speculation and suspicion to bolster his unsupported legal 

### conclusions.6 Such conclusory statements are insufficient to raise a genuine issue of material fact, and the statute of limitations has clearly expired. Overton v. Consol. Ins. Co.. 145 Wn.2d 417, 430-31, 38 P.3d 322 (2002). Azpitarte has notmethis burden to show he acted with due diligence indiscovering the basis for his causes ofaction. The trial court did not abuse its discretion indeclining to apply the discovery rule to Azpitarte's claims ofconversion, fraud, civilconspiracy, and replevin. Consequently, these claims are time-barred. 

### 4 In his opening brief, Azpitarte alleges, "Since the titling involved the use of obviously forged documents, there was a strong possibility that the defendants had help from someone inside DOL where it would be as [sic] simple matter to predate the application." 

### 5Although Azpitarte claims he did not obtain documentary proof of his claims until March 27, 2009, the record reflects that the initial investigation of Cedar Rapids Towing took place in May 2005. Azpitarte supplies no justification for this four-year delay. 

### 6For example, Azpitarte points to "[Clerk's Papers] 205-208" for his allegation of forgery based on "suspicious" handwriting discrepancies on the AVR. However, that citation merely refers backto unsubstantiated statements from his own briefing below.No. 70751-5-1/7

II. Civil RICO Claims 

### Inaddition to his property-based claims, Azpitarte alleges that Spino committed a 

### violation ofthe Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 

### §1961-19687 His civil RICO claims rely on the same alleged fraudulent actions as his property-based claims discussed above. On appeal, he asserts that the discovery rule also applied to his civil RICO claims. 

### Civil RICO claims are subjectto a four year statute of limitations. Agency Holding Corp. v. Mallev-Duff&Assoc. Inc.. 483 U.S. 143, 156, 107 S. Ct. 2759, 97 L. Ed. 2d 121 

### (1987). Underthe "injurydiscovery" rule, the civil RICO limitations period begins to run when a plaintiffknows or should have known ofthe injurythatunderlies his action. Pincay

v. Andrews. 238 F.3d 1106, 1109 (9th Cir. 2001). The statute oflimitations begins to run
as soon as the plaintiffhas either actual or constructive notice of his injuries, jd. at 1109. Equitabletolling "applieswhen the plaintiff is preventedfrom asserting a claim bywrongful conduct on the part ofthe defendant, or when extraordinary circumstances beyond the plaintiff's control made it impossible to file a claim on time." Stoll v. Runvon, 165 F.3d 1238, 1242 (9th Cir. 1999). Here, Azpitarte fails to show that either of these situations applies to trigger equitable tolling. First, he has not provided any facts to support his bare assertions of wrongful conduct on Spino's part. As discussed previously, Azpitarte relies on only conjecture for his baseless claims and, in doing so, he improperly resurrects issues 

### 7 Azpitarte assigns error to the trial court's denial of his motion to amend his complaint to add civil RICO allegations. It is unclear from the record that the trial court did in fact deny Azpitarte's motion, and Azpitarte fails to cite any specific order denying the motion. However, because we conclude that his claims would have been properly dismissed, we do not further address this assignment oferror.No. 70751-5-1/8 previously resolved by other courts. Order of Dismissal, Azpitarte v. Spino. No. C13- 

### 1413-RSM (W.D. Wash. Nov. 14, 2014) (W.D. Wash. Dismissal) (dismissing Azpitarte's RICO claims as insufficientlypleaded and untimely). 

### Second, he fails to demonstrate that extraordinary circumstances beyond his control made itimpossiblefor him to file a timely claim—i.e., within four years ofthe date on which Spino registered the '69 Chevelle in his name withthe DOL in2005.8 

### The trial court did not abuse its discretion indeclining to apply the discovery rule, 

### and Azpitarte's civil RICO claims are similarlytime-barred.9

III. Attorney Fees and Sanctions Azpitarte challenges the attorney fees awarded below. RCW4.84.185 authorizes the trial courtto award the prevailing party reasonable expenses, including attorneyfees, incurred inopposing a frivolous action. Koch v. Mut. ofEnumclaw Ins. Co., 108Wn. App. 500, 510, 31 P.3d 698 (2001). A lawsuit is "frivolous" when itcannotbe supported by any rational argument on the law or facts. Tiger Oil Corp. v. Dep't of Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997). We review a trial court's award under RCW 4.48.185 for an abuse of discretion. Koch, 108 Wn. App. at 510. Here, the trial court awarded fees to Spino in the amount of $5,000 pursuant to RCW4.48.185. The courtfound Azpitarte's suitto befrivolous and continued inbad faith



### 8 Azpitarte's near constant litigation of the same underlying events since they transpired belies any claim that circumstances beyond his control have disrupted his ability to file this action. 9We need not address Azpitarte's remaining meritless arguments: his contention that his claims are not barred by res judicata or collateral estoppel, his allegations that none ofthedefendantswere bonafide purchasers, his requestfor recoveryofthevehicles or damages, and his motion for a continuance pursuantto CR 56(f).

8No. 70751-5-1/9


### on the basis that Azpitarte had brought the action well beyond the statute oflimitations, despite knowledge of that fact from a prior lawsuit involving the same issues and the
same parties—less Spino. Consideringthe lack of merit toAzpitarte's repeatedlylitigated 

### claims,10 wefind that the trial courtdid not abuse itsdiscretion in finding thatAzpitarte advanced this frivolous suit without reasonable cause. 

### Next, Spino requests fees, pursuant to RAP 18.9(a), for defending a frivolous appeal. Azpitarte's appeal is frivolous. Spino is entitled to costs and reasonable attorney fees incurred on appeal.
We affirm.

WE CONCUR: 

# ^,V/vn^^ ^,0.

10 In addition to the previously discussed lawsuit filed against Sauve in King County, Azpitarte also filed suit inthe United States District CourtfortheWestern District of Washington, alleging the same civil RICO allegations against the same defendants aboutthe same vehicles at issue here. W.D. Wash. Dismissal. Inotherwords, Azpitarte's suit here is nearly identical not only to the King County lawsuit against Sauve, but also to litigation he filed atthe district court. The district courtdismissed Azpitarte's complaint as untimely and insufficiently pleaded. Id. In its order dismissing the case, the court noted that it "[did] not look fondly on [Azpitarte's] continuing and ever more futile efforts to relitigate a series of events that multiple courts have decided do not amount to any actionable offense. The precioustime and resources ofthe courthouse mustbe reserved 

### for claimants with viable grievances and guarded against depletion by individuals who already know their efforts to be in vain."