## iH\SMl21 m fire; IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON^
RICHARD AZPITARTE, Appellant

v. JASON BISCAY, JANE DOE BISCAY, and the marital community composed thereofand MARVIN BURNETT, JANE DOE BURNETT and the marital community composed thereof, No. 72749-4-1

DIVISION ONE UNPUBLISHED OPINION

Respondents. ) FILED: June 27, 2016 SPEARMAN, J. — Richard Azpitarte appeals orders granting respondents' motions to vacate default orders andjudgments and dismissing his claims againstthem

on summaryjudgment. We affirm. FACTS InJune 2004, Azpitarte failed to comply with a court order requiring him to


### remove vehicles stored on his property. Several months later, King County hired Cedar 

### Rapids Towing (Cedar Rapids) to tow away a numberofAzpitarte's vehicles, including
a 1984 Chevrolet ramp truck. Since thattime, Azpitarte has engaged innearcontinuous 

### litigation involving the removal and sale of hisvehicles.1

1Azpitarte initially sued King Countyforthe seizure of thevehicles. See King County v. Azpitarte, noted at 130Wn. App. 1047, 2005 WL 3462784; King County v. Azpitarte. noted at 136 Wn. App. 1021, 2006 WL 372405; Order Granting Motion to Dismiss, Azpitarte v. King County. No. C07-1998-JCC, 2009 WL564732 (W.D.Wash. Mar. 3, 2009); King County v. Azpitarte. noted at 172 Wn. App. 1047, 2013 WL 222534. In2010, Azpitarte began suing the purchasers of his seized vehicles. SeeAzpitarte v. Sauve, noted at 172Wn. App. 1050, 2013 WL 223042, at *1; Azpitarte v. Sauve. noted at 188 Wn. App. 1016, 2015 WL 3766529, at *5.No. 72749-4-1/2 

### In June 2005, Cedar Rapids sold the 1984Chevrolet ramp truck toJason Biscay. In January 2006, Biscayregistered the truck in his own name. In 2008, Biscay sold the truck to Marvin Burnett. 

### InMarch 2012, Azpitarte filed this action againstJason and Brenda Biscay and Marvin Burnett forconversion, replevin, fraud, and misrepresentation. The complaint sought damages and an order requiring the return ofthe ramp truck. 

### On June 18, 2012, the Biscays filed a pro se "Response" denying Azpitarte's allegations offraud and misrepresentation. The Biscays also claimed they had not "received anything regarding this case . . . until May 31st [sic], 2012." Clerk's Papers at 14. InJune 2012, Azpitarte obtained an order ofdefault against Burnett. InJune 2013, Azpitarte moved to compel the Biscays to engage in discovery. The court denied the motion without prejudice, ruling thatAzpitarte's "last attempt to communicate with the Defendantwas inJuly 2012, almost one year ago," and that he
was "required to meet and confer" with the Biscays. CP at 66. InAugust 2013, the court ordered Azpitarte and the Biscays to resolve their discovery disputes or hire a discovery master. 

### InSeptember2013, the court ordered "completion of joint confirmation of trial readiness" and warned that noncompliance could result in sanctions, including entry of

a default order. CP at 96. 

### On September24, 2013, Azpitarte moved for sanctions and an orderofdefault against the Biscays for failure to comply with discovery requests.No. 72749-4-1/3 

### On October7, 2013, the courtdeclared the Biscays in default forfailing to
answerdiscovery questions or respond to the order compelling resolution of the discovery dispute. 

### The court subsequently entered separate defaultjudgments againstthe Biscays and Burnettfor $115,000. 

### In May 2014, the Biscays moved to vacate the defaultjudgmentagainstthem. They denied receiving service ofAzpitarte's pleadings or notice ofhearings afterthe

summons and complaint and claimed those omissions constituted "good cause" to vacate thejudgment under CR 55. They also argued thatAzpitarte's false claims of service amounted to fraud under CR 60(b)(4), that there had at least "been a mistake, inadvertence and/or irregularity inobtaining [the] order ofdefault" under CR 60(b)(1), that default was an excessive discovery sanction, and thatAzpitarte's claims were time barred. CP at 138-39. Azpitarte opposed the motion, arguing in partthatthree 

### certificates of mailing demonstrated that he did infact serve the Biscays. 

### Burnett moved to join inthe Biscays' motion to vacate. He alleged that, after 

### receiving notice ofthe suit, he spoke withAzpitarte by phone. Burnett claimed that after he described the poorcondition ofthe truck, Azpitarte told him he "would not proceed" 

### with his lawsuit against him. Burnett alleged that he received no further notice of any proceedings. Azpitarte confirmed that he spoke with Burnett by phone. He alleged, however, that Burnetttold him "he was not going to defend this lawsuit because it would 

### take too much money to hire an attorney . . . when the carwasn'tworth that much." CP at 177. Because Burnett indicated he was not going to appear, Azpitarte did not provide him pleadings or notice ofsubsequent proceedings.No. 72749-4-1/4 

### On June 26, 2014, the superior court entered an "Orderon Motion to Vacate 

### Default Judgment." The courtfound inpartthat "the Defendants" did not receive notice 

### "as to critical hearings leading to the entry of the order [.]" (Emphasis added). The order vacated the defaultjudgmentagainstthe Biscays, but failed to expressly mention the judgmentagainst Burnett or Burnett's motion to join inthe Biscays' motion to vacate. On July 21, 2014, the Biscays and Burnett moved to vacate the orders ofdefault due, in part, to lack of notice. 

### On August 1, 2014, the courtvacated the orders ofdefault againstthe Biscays and Burnett, stating: THE COURT FINDS that there were irregularities ofprocedure and fact inthe obtaining ofthe orders
.. . and that notice to the Defendants neitherwas accomplished as to critical hearings leading to the entry of the order nor complied with the court's instruction to hold an in-person conference on discovery issues
.... CP at 338. Respondents moved for summaryjudgment, arguing thatAzpitarte's conversion and replevin claims were barred by the statute of limitations, "the bona fide purchaser law," and resjudicata. CP at 441. Azpitarte responded in partthatthe Biscays had not moved for summaryjudgment on his fraud/misrepresentation claim. The Biscays 

### countered that all ofAzpitarte's claims "have a three year statute of limitations, and since there is no separate showing offact that wouldjustify the court in applying the discovery rule to only the fraud claim but not the others, this claim need not be addressed on its merits as it is untimely." CP at 362. In October 2014, the court dismissed Azpitarte's claims on summaryjudgment and later denied his motion for reconsideration. Azpitarte appealed both the summaryNo. 72749-4-1/5 

### judgmentorderand the earlierordervacating his defaultjudgment. Respondents filed a motion on the merits to affirm. Because this court has suspended the motion on the merits procedure, we denied the motion. Findings of Fact 

### Azpitarte first contends the superior court entered insufficientfindings with its orders vacating the defaultjudgments. He claims "there was no finding or orderwith respect to Burnett's motion to set aside the defaultjudgment." BriefofAppellant at 20. For unknown reasons, the court did neglect to enter an ordervacating the default judgment against Burnett. Nevertheless, the court's August 1, 2014 order set aside the underlying default orders against both Burnett and the Biscays. And as previously noted, that order included a finding that "there were irregularities of procedure and fact 

### inthe obtaining ofthe Orders" and "notice to the Defendants neitherwas accomplished
as to critical hearings leading to the entry ofthe order nor complied with the court's instruction to hold an in-person conference on discovery issues." CP at 338. Once a default order is set aside for lack ofnotice, any defaultjudgment relying on that order is void. Servatron. Inc. v. IntelligentWireless Products, Inc., 186 Wn. App. 666, 679-80, 

### 346 P.3d 831 (2015). Furthermore, it is clearfrom the record thatthe court's reasons 

### forvacating the default orders and the Biscays'judgment ofdefaultwere essentially the
same. As discussed below, Azpitarte's challenges to those reasons on appeal fail. In sum, Azpitarte fails to demonstrate any prejudice from the court's failure to expressly vacate the defaultjudgment against Burnett. 

### Azpitarte also contends the court's basis for vacating the defaultjudgment 

### againstthe Biscays "was only a general finding thatthe defendants were not notified ofNo. 72749-4-1/6



### some motions butthe court does not say with specificity which deliveries were not 

### made." Briefof Appellant at 20. While more specificity would have been preferable, the court's finding is sufficientto permit meaningful review. 

### Azpitarte's claim that the court erred infailing to enterfindings on summary judgment is meritless. Findings are not required on summaryjudgmentand when entered are superfluous on review. Redding v. Virginia Mason Med. Ctr.. 75 Wn. App. 424, 426, 878 P.2d 483 (1994) (reviewing court may disregard findings offact entered

on summaryjudgment because no such findings are required); Duckworth v. City of Bonnev Lake. 91 Wn.2d 19, 21-22, 586 P.2d 860 (1978). Vacation of Default Orders and Default Judgment Azpitarte next contends respondents "supplied unreliable declarations containing multiple misrepresentations which precluded setting aside the orders of default 

### Brief ofAppellant at 21. Under CR 55(c), a court may set aside an orderofdefaultfor good cause shown. Under CR 60(b), a defaultjudgment may be set aside for a variety ofreasons, including mistakes, inadvertence, excusable neglect or irregularity in 

### obtaining ajudgment or order and a voidjudgment. When a courtdetermines that a 

### party did not receive proper notice prior to a default, they are entitled to vacation of both the order, as well as anyjudgment, ofdefault. Servatron, Inc. v. IntelligentWireless Products, Inc., 186Wn. App. at 679. We review a trial court's decision to vacate a 

### default order andjudgmentfor abuse ofdiscretion. Aecon Bldgs, Inc. v. Vandermolen Const. Co., Inc.. 155 Wn. App. 733, 738, 230 P.3d 594 (2009). Our review is guided by 

### policies disfavoring defaults and favoring the resolution ofdisputes on their merits. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). Because

6No. 72749-4-1/7 

### defaults are disfavored, we are less likely to find an abuse ofdiscretion when a court vacates a default orderorjudgmentthan when itdoes not. See Griggs, 92 Wn.2d at 582. 

### Azpitarte contends there was no basis to vacate the default against Burnett because he never appeared in the action and thus was not entitled to notice. But 

### Azpitarte overlooks the undisputed fact that Burnett and Azpitarte spoke by phone shortly afterthe suit commenced. According to Burnett, he told Azpitarte the vehicle was in poor condition and Azpitarte replied that he would not proceed with the suit against 

### him. Azpitarte provides no authority or analysis as to what constitutes an appearance.2 Nor does he provide any authority or analysis regarding the resolution ofconflicting 

### declarations in a motion to vacate.3 We need not considerarguments that are unsupported by pertinent authority, references to the record, or meaningful analysis. 

### See generally RAP 10.3(a)(6) (parties are required to supporttheir arguments with 

### citations to legal authority and references to relevant parts ofthe record); Cowiche Canyon Conservancy v. Bosley. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments 

### not supported by authority); Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (issues unsupported by adequate argument and authority); Norcon Builders, LLC v. GMP Homes VG, LLC. 161 Wn. App. 474, 486, 254 P.3d 835 (2011) 

### ("Wewill not consider an inadequately briefed argument."); State v. Camarillo, 54 Wn. App. 821, 829, 776 P.2d 176 (1989) (citing Bohn v. Cody. 119 Wn.2d 357, 368, 832

2We note that a single phone call may be sufficient to constitute an informalappearance in a lawsuit. Sacotte Const.. Inc. v. National Fire &Marine Ins. Co., 143 Wn. App. 410, 416, 177 P.3d 1147 (2008). 3In addition, itappears that Azpitarte did not request an evidentiary hearing below for any conflict in the declarations and thus waived the issue. Leen v. Demopolis, 62 Wn. App. 473, 478-79, 815 P.2d 269 (1991). (Demopolis waived argumentthat court should have conducted evidentiary hearing on conflicting affidavits by not raising itbelow.)No. 72749-4-1/8 

### P.2d 71 (1982)) (no references to the record); RAP 10.3(a). Azpitarte's omissions are fatal to this claim. 

### Azpitarte's briefing regarding the Biscays' motion to vacate is similarly deficient. He claims he provided them sufficient notice of all pleadings and proceedings leading up to the default. But statements in his briefing concerning the law ofnotice are unsupported by any authority. Also, the factual statements inthe argument sections of his opening and reply briefs are not supported by references to the record, and the statement of substantive facts in his opening briefis supported by a single reference to the record. These violations of RAP 10.3 and the aforementioned case law preclude review.4 Finally, to the extentAzpitarte contends the motions to vacate were untimely, he 

### provided no meaningful analysis or authority until his reply brief. This was too late. Cowiche Canyon, 118 Wn.2d at 809 (issues first raised in reply are too late to warrant 

### consideration). Furthermore, contrary to Azpitarte's assertions, a motion to vacate a 

### default order and defaultjudgmentmay be filed more than one year afterthejudgment because a lack ofnotice for either renders thejudgmentvoid. Servatron, 186 Wn. App.

at 679.

4Although we do notdecide the question, the superiorcourt's finding regarding procedural irregularitiesappears to be supported by the record. It is undisputed that Azpitarte did not provide Burnett notice of the default proceedings. The Biscays alleged they "had no actual notice of any of the hearings or discovery requested, and no notice that a default had been entered." CP at 136. Specifically, they alleged they received no notice of the motion for Burnett's order of default, the motions to compel answers to discovery, a motion tochangethe trial date, the motion and/or order requiring the parties to meet and conferon discovery issues, the ordercompelling the Biscays to answer discovery within five days, the motion and order of defaultagainstthe Biscays, and the motion for ajudgmentof default. In response, Azpitarte provided three certificates ofmailing forundescribed items mailed on August 23, 2013, September9, 2013, and December 17, 2013. In an attached declaration, he mentioned the three certificates but did not say what he mailed on those dates or provide proof that he provided notice of the other motions, orders, or hearings the Biscays claimed they never received. 8No. 72749-4-1/9 Summary Judgment 

### Azpitarte also contends the superiorcourt erred in granting summaryjudgment because the respondents' declarations allegedly contained various misrepresentations. Butnowhere in his opening briefdoes he address respondents' arguments belowthat his claims are barred bythe statute of limitations. Although he raises arguments to that effect in his reply brief, they come too late. Cowiche Canyon. 118 Wn.2d at 809. In 

### addition, the record provided is insufficient since itdoes not contain Azpitarte's August 26, 2014 response to the motion for summaryjudgment. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988) (appellant has the burden to provide a record sufficientto review issues raised on appeal). In any event, the court did not err in granting summaryjudgment. It is undisputed that the statute of limitations for conversion, replevin, and fraud/misrepresentation 

### claims 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). It is undisputed thatAzpitarte filed his suit roughly seven years after 

### Biscay purchased the truck, and four years after Burnett bought it from Biscay. Thus, if the limitations period commenced on or around these dates ofsale, then Azpitarte's action was filed beyond the three-year statute of limitations. 

### Azpitarte argues, however, thatthere are fact questions as to whether, underthe 

### discovery rule, the limitations period commenced much laterwhen he discovered facts supporting the elements of his causes of action. Under the discovery rule, a cause of action does not accrue, and the applicable statute oflimitations does not begin to run, 

### until a party knows or inthe exercise ofdue diligence should know the facts establishingNo. 72749-4-1/10 

### a legalclaim. Crisman v. Crisman. 85 Wn.App. 15, 20, 931 P.2d 163 (1997). It is the plaintiff's burden to prove thatthe necessary facts could not have been discovered 

### during the limitations period. G.W. Constr. Corp. v. ProfI Serv. Indus.. Inc.. 70 Wn. App. 360, 367, 853 P.2d 484 (1993). Azpitarte contends there is an issue offact as to 

### whetherthe necessary facts could have been discovered during that period. We disagree. 

### Azpitarte admits that "immediately" after Cedar Rapids towed his vehicles away in2004, he wentto the tow lotand discovered that some of his vehicles, including the truck at issue in this case, were missing. CP at 369. Shortly thereafter, Azpitarte allegedly saw the truck on the side ofthe highway and contacted the state patrol. A state patrol officer "advised him to file for title because [the officer's] investigation on May 18, 2005 showed no AVR [Abandoned Vehicle Report] and no vehicle on [Cedar 

### Rapids'] premises as required by state law."5 Reply Br. at 6. InJune 2005, Biscayfiled

an "Abandoned Vehicle Report - Affidavit of Sale" for the truck with the Department of Licensing. InJanuary 2006, Biscay registered the truck with DOL in his own name. Azpitarte knew by no laterthan 2007 that his vehicles were being sold by Cedar Rapids 

### and not always through a legal auction. These facts triggered a duty to use diligence. But as in his previous cases involving othervehicles, Azpitarte fails to demonstrate an issue offact on his claim that he could not have discovered, through the exercise of due diligence, the facts supporting his causes of action more than three

5While Azpitarte claims he did not know the facts supporting his fraud/misrepresentation claim until he obtained a "falsified AVR" and police investigation report in2009, we have previously noted, and Azpitarte admits, "that the initial [police] investigation ofCedar Rapids Towing took place in May 2005." Azpitarte v. Sauve. noted at 188 Wn. App. 1016, 2015 WL 3766529, at *5. 10No. 72749-4-1/11 

### years before he filed this suit in March,2012.6While he points out statutory limitations

on access to government records containing the names and addresses ofvehicle 

### owners, he overlooks the fact that the statute expressly contemplates access to such 

### records by an attorney or private investigator. Former RCW 46.12.380(4) (2010). Azpitarte makes no showing that he could not access DOLrecords ofthe Biscays' and Burnett's vehicle registrations through an attorney or private investigator. Azpitarte also states in conclusory fashion that summaryjudgmentwas improper because he "could not attend oral argument and the defendants never served a key declaration on him . . . ." Brief ofAppellant at 2. These arguments are unsupported by meaningful argument and authority. His contention that summaryjudgmentwas improper because respondents never challenged the fraud/misrepresentation claim in 

### his amended complaint is contrary to the record.7 Affirmed.8 

### 4-C- tt*\o.) 

# •&
WE CONCUR:

# i, A<--> Y* yUJ^Q&t.A

6See Azpitarte v. Sauve, 188 Wn. App. 1016 at *3 (after noting that sale and registration of subject vehicle occurred in 2005, and that Azpitarte claimed that second purchaserused forgedAVR to fraudulently obtain title, this court held that "Azpitarte has not met his burden to show he acted with due diligence in discovering the basis for his causes of action. The trial court did not abuse its discretion in declining to apply the discovery rule to Azpitarte's claims of conversion, fraud, civil conspiracy, and replevin. Consequently, these claims are time-barred."); Azpitarte v. Sauve, noted at 172Wn. App. 1050, at *3,2013 WL223042 (noting that vehicle was sold and AVR filed in2004, that itwas registered with DOL in 2005, and that Azpitarte claimed he did not discovergrounds for fraud until he received police investigation report in 2009, we held that "Azpitartefails to identify any genuine issue of factas to application of the discovery rule to toll or extend the statute of limitations."). 7Contrary to Azpitarte's assertions, respondents argued in their summaryjudgmentpleadings that allof his causes of action, including his fraud / misrepresentation claim, were time barred. 8Because we conclude Azpitarte failed to carry his burden on appeal due to deficiencies in his briefing, we do not reach his motion to strike portions ofrespondents' brief. 11