Faciszewski v. Brown

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This opinion was filed for record

IIJPReME COURT, 8TIIII OF -IIIG'ION
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SUPREME qOURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STEPHEN FA CISZEWSKI and
VIRGINIA L. KLAMON,

Respondents, NO. 92978-5

v.
ENBANC
MICHAEL R. BROWN and JILL A.
WAHLEITHNER,

Petitioners.

STEPHENS, I.-This case concerns provisions of Seattle's "Just Cause

Eviction Ordinance," codified at Seattle Municipal Code 22.206.160(C). We must

determine whether the court in an unlawful detainer action can consider evidence

challenging just cause once the landlord files the certification allowed under Seattle

Municipal Code 22.206.160(C)(4).

The court commissioner presiding over the show cause hearing in this case set

the matter for trial after determining that there were issues of fact as to the landlords'
Faciszewski, et al. v. Brown, et al., 92978-5

stated reason for the eviction. The King County Superior Court revised the

commissioner's ruling, issued a writ of restitution restoring possession of the

property to the landlords, and struck the trial date because "the statutory scheme does

not require ... a trial once [the landlord files a] statement under penalty of perjury."

Verbatim Transcript of Proceedings (VTP) (Sept. 2, 2014) at 22-23. The Court of

Appeals affirmed, reading the Just Cause Eviction Ordinance to provide only for

posteviction remedies once the landlord files a certification with the city of Seattle

(City). We reverse the Court of Appeals and remand to the superior court.

FACTS AND PROCEDURAL HISTORY

Michael R. Brown and Jill A. Wah1eithner (Tenants) received a notice of

eviction from Stephen Faciszewski and Virginia L. Klamon (Landlords) invoking

Seattle Municipal Code (SMC) 22.206.160(C)(1)(e). Clerk's Papers (CP) at 1, 2, 14.

In accordance with that provision, the notice stated Landlords were terminating the

tenancy because "[Landlords] seek to possess the Property so that at least one

immediate family member (or, in the alternative, one of us) may occupy the [Seattle]

Property as a principal residence." Id. at 22. Landlords subsequently clarified that

Faciszewski's parents would be moving into the house so that Faciszewski could care

for his ailing father. Id. at 45-46; VTP (Aug. 12, 2014) at 3. Following his father's

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death, Faciszewski inclicated that only his mother planned to move into the house. CP

at46.

Because of an earlier dispute, Tenants believed that Landlords' stated reason was

a pretext. Id. 1 Tenants thus began researching Faciszewski's parents on the Internet.

Tenants learned the following facts regarding Faciszewski's mother: (1) she owned a

home in Colorado that was not listed for sale or for rent, id. at 46, 82-83; (2) she was
<

scheduled to teach a class at a Colorado center in the fall, id. at 46, 72-73; (3) she

volunteered at a Colorado hospital for many years and continued to do so, id. at 80-81;

and (4) she had not informed the center or the hospital of any plans to move, id. at 46,

80-81. Citing this information, Tenants complained to the City, and in response

Landlords filed with the City a certification of intent to carry out the stated reason.

Because the certification provided that "[Faciszewsld] or/and ... his mother" would

occupy the property, id. at 77 (emphasis added), Tenants continued to believe

Landlords' stated reason was a pretext. Accordingly, Tenants refused to comply with

the notice of eviction.

1
Tenants had a parking dispute with a disabled neighbor regarding her ability to
access her property. Landlords intervened and requested that Tenants not park on certain
parts of the street. Landlords subsequently stated in an e-mail to Tenants that Tenants'
refusal to comply with Landlords' request would "necessitate [l]ease non-renewal." CP at
15-16, 19.

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Landlords subsequently brought an unlawful detainer action in King County

Superior Court. Landlords asked the court to terminate the tenancy, enter a writ of

restitution restoring Landlords to possession of the property, and award damages and

reasonable attorney fees and costs. Landlords also moved the court for an order

requiring Tenants to appear and show cause why a writ of restitution should not issue.

In response, Tenants submitted four declarations supporting their claim that Landlords

did not have just cause for the eviction as required by the Just Cause Eviction Ordinance

(JCEO). Tenants also claimed that service of process and the contents of the eviction

notice were insufficient.

At the show cause hearing, Tenants requested a trial on the issue of just cause.

VTP (Aug. 12, 2014) at 6. The court commissioner concluded "that there are issues

[as to the mother and as to the husband] that require more extensive time than we

have here, so I will set the matter for trial." !d. at 7.

Pursuant to RCW 2.24.050, Landlords moved the superior court to revise the

commissioner's ruling. On September 2, 2014, the court held a hearing on

Landlords' motion. Tenants contended that Landlords had not met their burden of

proving that just cause exists because Landlords submitted only the sworn certification

of intent. Tenants requested that they be able to engage in more fact-finding, such as

requiring declarations, depositions, or interrogatories. The court granted Landlords'

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motion to revise, issued a writ of restitution, and struck the trial date. In so doing, the

court stated, "[A]s I read 22.206.160, it ends with this statement under penalty of

perjury.... [T]he statutory scheme does not require or even permit a trial once we

have this statement under penalty of perjury." VTP (Sept. 2, 2014) at 22-23

(referring to SMC 22.206.160(C)(4). The superior court subsequently entered

judgment against Tenants, awarded Landlords attorney fees and costs, and denied
'
Tenants' motion for reconsideration.

Tenants appealed, and Division One of the Court of Appeals affirmed. It held

that under the Seattle ordinance:

If a tenant does not believe a landlord's stated reason for eviction, that tenant
can file a complaint with the city. The tenant's disbelief, even if justified, does
not provide a defense to an unlawful detainer action. Once the landlord files the
proper certification with the city [pursuant to SMC 22.206.160(C)(4)], the
tenant's remedy is limited to a private right of action [pursuant to SMC
22.206.160(C)(7)] if the landlord does not fulfill the stated reason for eviction.

Faciszewski v. Brown, 192 Wn. App. 441, 453-54, 367 P.3d 1085 (2016) (footnote

omitted).

Tenants filed a petition for review in this court, challenging both this holding

and the Court of Appeals' resolution of other issues. We granted review solely on

the question of whether Tenants ''were entitled to a trial on the just cause for the

termination of the lease." Order, Faciszewski v. Brown, No. 92978-5 (Wash. Aug. 3,

2016).

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ANALYSIS

In revising the commissioner's ruling,2 the superior court interpreted the

JCEO as requiring a finding of just cause (and thus not permitting a trial) once the

landlord files a sworn certification of intent. VTP (Sept. 2, 2014) at 22-23. The

superior court's interpretation of a statute involves a question of law, which we

review de novo. King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142

Wn.2d 543, 555, 14 P.3d 133 (2000).

I. Background on Washington's Landlord-Tenant Law and Seattle's
JCEO

Title 59 RCW sets out Washington's landlord-tenant law. Chapter 59.12

RCW governs unlawful detainer actions, while chapter 59.18 RCW, known as the

Residential Landlord-Tenant Act of 1973 (RLTA), governs the rights and remedies

of residential landlords and tenants.

"An unlawful detainer action is a statutorily created proceeding that provides

an expedited method of resolving the right to possession of property." Christensen

v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228 (2007). The term "unlawful

2
Commissioners' rulings are "subject to revision by the superior court." RCW
2.24.050. "On revision, the superior court reviews both the commissioner's fmdings of
fact and conclusions of law de novo based upon the evidence and issues presented to the
commissioner." State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). Once the
superior court makes a decision on revision, the appeal is from that decision. Id. This
court therefore reviews the superior court's ruling, not the commissioner's. Jd.

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detainer" is statutorily defined. !d. at 371. "A tenant of real property for a term less

than life is guilty of unlawful detainer ... [w ]hen he or she holds over or continues

in possession ... of the property ... after the expiration of the term." RCW

59.12.030(1); see also RCW 59.18.290(2) ("It shall be unlawful for the tenant to

hold over in the premises or exclude the landlord therefrom after the termination of

the rental agreement."). To regain possession of the property, the landlord may file

an unlawful detainer action against the tenant. RCW 59.12.070. Upon filing an

unlawful detainer action, the landlord may request the court to issue a writ of

restitution restoring the property to the landlord. RCW 59.12.090. For residential

property, a landlord seeking a writ of restitution must request a show cause hearing.

RCW 59.18.370. 3

At the show cause hearing, the court must "examine the parties and witnesses

orally to ascertain the merits of the complaint and answer." RCW 59.18.380. If the

court determines that the landlord is entitled to possession of the property, the court

"enter[s] an order directing the issuance of a writ of restitution." !d. Otherwise, the

3
RCW 59.18.370 states that residential landlords "may" request a show cause
hearing, but this provision has been interpreted as requiring residential landlords to afford
tenants such a hearing. See Indigo Real Estate Servs., Inc., v. Wadsworth, 169 Wn. App.
412, 421, 280 P.3d 506 (2012). In addition to the RLTA, the JCEO provides that a show
cause hearing is mandatory. SMC 22.206.160(C)(l) (a court may issue an order evicting
a residential tenant "only after the tenant has an opportunity in a show cause hearing to
contest the eviction").

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court may deny the landlord's motion and "enter an order directing the parties to

proceed to trial." Id. In making this determination, the court must decide whether

"there is a substantial issue of material fact as to whether ... the [landlord] is entitled

to other relief as is prayed for in [the] complaint ... or [whether] there is a genuine

issue of a material fact pertaining to a legal or equitable defense." Id. 4

At the center of this case are provisions of Seattle's JCEO. The JCEO

provides:

Pursuant to provisions of the state [RLTA] (RCW 59.18.290), owners[SJ may
not evict residential tenants without a court order, which can be issued by a
court only after the tenant has an opportunity in a show cause hearing to
contest the eviction (RCW 59.18.380). Owners of housing units shall not

4
As the Northwest Justice Project's amicus brief explains, the show cause hearing
has characteristics of both a preliminary injunction and a summary judgment proceeding.
Br. of Amicus Curiae Nw. Justice Project at 12-14. Compare RCW 59.18.380 (at the show
cause hearing, "[t]he court shall examine the parties and witnesses orally to ascertain the
merits of the complaint and answer, and if it shall appear that the [landlord] has the right
to be restored to possession of the property [on the merits], the court shall enter an order
directing the issuance of a writ of restitution" (emphasis added)), with Rabon v. City of
Seattle, 135 Wn.2d 278, 285, 957 P.2d 621 (1998) ("In deciding whether a party [seeking
relief through a preliminary injunction] has a clear legal or equitable right, the court
examines the likelihood that the moving party will prevail on the merits. An injunction
will not be issued in a doubtful case." (emphasis added) (citations omitted)); compare
RCW 59.18.380 (at the show cause hearing, "if it shall appear to the court that there is no
substantial issue of material fact of the right of the [landlord] to be granted other relief ...
the court may enter an order and judgment" (emphasis added)), with Dean v. Fishing Co.
of Alaska, Inc., 177 Wn.2d 399, 405, 300 P.3d 815 (2013) ("Summary judgment is
appropriate if 'there is no genuine issue as to any material fact' and 'the moving party is
entitled to a judgment as a matter oflaw."' (quoting CR 56(c))).
5
In this context, "owner" is synonymous with "landlord." See RCW 59.18.030(14)
(defining "landlord" as "the owner . . . of the dwelling unit"); SMC 22.204.160(D)
(defining "owner" as "any person who ... has title or interest in any building").

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evict or attempt to evict any tenant, or otherwise terminate or attempt to
terminate the tenancy of any tenant unless the owner can prove in court that
just cause exists.

SMC 22.206.160(C)(l) (emphasis added). The JCEO provides an exclusive list of

circumstances that constitute just cause. !d. One such circumstance is when

[t]he owner seeks possession so that the owner or a member of his or her
immediate family may occupy the unit as that person's principal
residence ... and the owner has given the tenant at least 90 days' advance
written notice of the date the tenant's possession is to end.... "Immediate
family" includes the owner's domestic partner[,] . . . spouse, parents,
grandparents, children, brothers and sisters of the owner, of the owner's
spouse, or of the owner's domestic partner.

!d. at (C)(l)(e).

If the tenant believes the landlord "does not intend to carry out the stated

reason for eviction" and complains to the city director, the landlord must "complete

and file with the Director a certification stating [his or her] intent to carry out the

stated reason for the eviction." !d. at (C)(4). The JCEO further provides that "[t]he

failure of the owner to complete and file such a certification after a complaint by the

tenant shall be a defense for the tenant in an eviction action based on this ground."

!d. The JCEO does not specifically address what effect the filing of a certification

has on an unlawful detainer action. However, SMC 22.206.160(C)(5) provides, "In

any action commenced to evict or to otherwise terminate the tenancy of any tenant,

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it shall be a defense to the action that there was no just cause for such eviction or

termination as provided in this Section 22.206.160."6

SMC 22.206.160(C)(6) makes it a violation of the JCEO for a landlord to seek

to evict a tenant on one of the stated grounds for just cause "without fulfilling or

carrying out the stated reason for or condition justifying the termination of such

tenancy." The JCEO provides tenants with "a private right for action for damages

up to $2,000, costs of suit, or arbitration and reasonable attorney's fees" for any such

violation. !d. at (C)(7).

We must determine whether the landlord's certification of intent is dispositive

on the issue of just cause in an unlawful detainer proceeding, thus leaving the tenant

with only the posteviction remedies the JCEO provides. 7 We believe the JCEO

6 Relying on this provision, Landlords argue that Tenants bear the burden of
showing the lack of just cause for eviction as an affinnative defense. Suppl. Br. ofResp'ts
at 8. Tenants counter that proof of just cause is part of Landlords' burden of proof at the
show cause hearing, pointing to SMC 22.206.160( C)( 1) 's language that the landlord "'shall
not evict or attempt to evict any tenant ... unless the owner can prove in court that just
cause exists."' Suppl. Br. of Pet'rs at 7 (alteration in original) (quoting SMC
22.206.160(C)(l). Resolution of this case does not depend on the burden of proof, as the
sole question here concerns whether the court in an unlawful detainer action can even
consider evidence relating to just cause once the landlord files the certification allowed
under SMC 22.206.160(C)(4).
7 We confine our review to interpreting the JCEO, as that is all the lower courts did.

Although at oral argument Landlords contended that the Court of Appeals considered the
substance of Tenants' evidence, their briefing suggests otherwise. See Suppl. Br. of
Resp'ts at 9 (arguing to affirm the Court of Appeals because the JCEO provides the tenant
with only two opportunities to challenge the landlord's reason for eviction: (l) the tenant
may complain to the City, in which case the landlord must file a certification, and (2) the

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operates in harmony with the RLTA and unlawful detainer procedures when SMC

22.206.160(C)(4) is read not to make the landlord's certification determinative of

"just cause." The purpose of the JCEO is best served by reading the remedies

provided when the landlord fails to fulfill or carry out the stated reason for eviction

as nonexclusive. The City that enacted the JCEO reads it this way, and such a

reading retains the integrity of both the unlawful detainer process and the ordinance. 8

We therefore reverse the lower courts' interpretation of the JCEO and remand to the

superior court for further proceedings consistent with our interpretation of the

ordinance.

II. Seattle's JCEO Allows the Tenant To Challenge the Landlord's
Certification of Just Cause in an Unlawful Detainer Proceeding

Few cases have discussed Seattle's JCEO. The parties direct us to Housing

Authority v. Silva, 94 Wn. App. 731, 972 P.2d 952 (1999), but it does not address

the issue in this case. Br. of Appellants at 31-32; Suppl. Br. of Resp'ts at 16. In

Silva, the court held that the landlord did not have just cause under SMC

tenant may bring a private cause of action for damages against a landlord who fails to carry
out the stated intent); see also Wash. Supreme Court oral argument, Faciszewski v. Brown,
No. 92978-5 (Nov. 8, 2016), at 24 min., 37 sec., recording by TVW, Washington State's
Public Affairs Network, http://www.tvw.org (acknowledging the statement in the Court of
Appeals opinion that once the landlord's certification is filed, the tenant has only
posteviction remedies, but arguing that statement does not reflect Landlords' position).
8
In its amicus brief, the City describes the remedies provided in the JCEO as
nonexclusive. Br. of Amicus Curiae City of Seattle at 7.

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22.206.160(C)(l )(d) because the landlord provided the tenant with only two 10-day

notices within a 12-month period, while the ordinance required three notices. Silva,

94 Wn. App. at 736. Silva demonstrates that tenants can use the landlord's lack of

just cause as a defense in an eviction action. Beyond that, Silva does not help us

resolve the issue in the present case.

Tenants also direct us to New Jersey cases interpreting a similar New Jersey

state just cause eviction law. Pet. for Review at 11; Suppl. Br. ofPet'rs at 5-6. These

cases are not particularly helpful. Tenants primarily rely on Durruthy v. Brunert, in

which the court held that the owner of a building with two residential and two

commercial units could invoke a provision of New Jersey's Anti-Eviction Act

permitting the owner of a building "'of three residential units or less'" to evict a

tenant upon a showing that the owner '"seeks to personally occupy a unit."' 228

N.J. Super. 199, 200, 549 A.2d 456 (1988) (quoting N.J. STAT. ANN. 2A:l8-

6l.l(l)(3)). Durruthy interprets the meaning of"building of three residential units

or less," which has nothing to do with the issue in the present case. See id. at 201.

The only relevant portion of the case states that "the record before [the court] does

not justify" a finding that the owner intends to personally occupy the unit, as the

testimony was incomplete and "neither the witnesses nor counsel focused on the

factual question whether [the owners] had adequately proved their asserted bona fide

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intention to occupy" the unit. Id. at 203. Although this language parallels the

requirement under SMC 22.206.160(C)(1) that landlords must "prove in court that

just cause exists," it does not address the main inquiry in this case: whether the

landlord's certification under SMC 22.206.160(C)(4) is dispositive on the question

of just cause. Durruthy is therefore not helpful.

Tenants also rely on Hale v. Farrakhan, 390 N.J. Super. 335, 915 A.2d 581

(2007). Suppl. Br. ofPet'rs at 6. In Hale, the court held that in a wrongful eviction

action, the landlord has the burden of proving his failure to personally occupy the

unit was not arbitrary. 390 N.J. Super. at 337. Because Hale concerned wrongful

eviction actions brought by tenants, rather than unlawful detainer actions brought by

landlords, the case is of limited usefulness. While Hale provides some insight as to

why New Jersey state courts also place the burden of proof on the landlord in an

unlawful detainer action, id. at 340-41, the issue in the present case does not concern

who bears the burden of proof. Rather, this case concerns the ability of the tenant to

present evidence rebutting the landlord's certification of intent.

Lastly, Tenants rely on N'Jie v. Mei Cheung, No. 09-919, 2011 WL 809990

(D.N.J. Mar. 1, 2011) (unpublished), aff'd, 504 F. App'x 108 (3d Cir. 2012). Suppl.

Br. of Pet'rs at 6. In N'Jie, the court granted the landlords' motion for summary

judgment regarding just cause for nonrenewal of a lease agreement. 2011 WL

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809990, at *2-3. The court found that the landlords showed an "authentic, subjective

intention to personally occupy" the unit. Id. at *3. Because the tenants merely

disputed the landlords' reason for wanting to personally occupy the unit, rather than

the landlords' actual intention to do so, the court found that the tenants failed to raise

a genuine issue of material fact. Id. Although N'Jie suggests that the tenant may

dispute the landlord's actual intentions before being evicted, the present case again

involves a distinct issue. Accordingly, N'Jie does not guide us in resolving this case.

Given the limited guidance in case law on the issue presented in this case, our

focus must be on reading the language of the ordinance in a commonsense manner.

We carefully examine the text in light of the stated purpose of the JCEO, which is

to "protect from eviction those tenants who may be subjected to misuse of those just

causes." Seattle Ordinance 117942, at 3 (Dec. 14, 1995). Indeed, the text of the

ordinance itself suggests that the city council intended to prevent "arbitrary

eviction[s]." SMC 22.200.020(D). In this regard, the JCEO should be understood

as remedial in nature. "'A remedial statute is one which relates to practice,

procedures[,] and remedies."' Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 223-

24, 173 P.3d 885 (2007) (quoting State v. McClendon, 131 Wn.2d 853, 861, 935

P.2d 1334 (1997) (plurality opinion)). "[W]e construe remedial statutes liberally in

accordance with the legislative purpose behind them." Jametsky v. Olsen, 179

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Wn.2d 756, 763, 317 P.3d 1003 (2014). "The same rules of construction apply to

interpretations of municipal ordinances as to interpretations of state statutes." City

of Puyallup v. Pac. Nw. Bell Tel. Co., 98 Wn.2d 443, 448, 656 P.2d 1035 (1982).

Because the JCEO is a remedial ordinance designed to prevent arbitrary evictions,

we interpret it liberally to accomplish this purpose. See Jametsky, 179 Wn.2d at

763. 9

SMC 22.206.160(C)(1) provides that a tenant cannot be evicted without

having the opportunity for a show cause hearing. A show cause hearing must be

meaningful, as it is the first (and sometimes the only) step of the eviction process in

which the tenant is able to participate. See, e.g., Leda v. Whisnand, 150 Wn. App.

69, 83, 207 P.3d 468 (2009) (a tenant "subject to an action for unlawful detainer

9
Landlords contend that courts should interpret the JCEO strictly in their favor.
Resp. Br. at 9. They argue, "Just as the unlawful detainer act grants landlords an
accelerated eviction process unknown at common law, the [JCEO] grants tenants additional
procedural and substantive rights unknown at common law." Id. Because the unlawful
detainer act is in derogation of the common law, it is strictly construed in favor of the
tenant. !d. According to Landlords, it therefore follows that the JCEO, which is also in
derogation of the common law, should be strictly construed in favor of the landlord. Id. at
10. While this argument has some logical appeal, it overlooks the fact that the proceeding
at issue is actually an unlawful detainer action, not a special proceeding under the JCEO.
Even if we agree that tenants must strictly comply with JCEO provisions (for example, by
making a timely complaint to the director under subsection (C)(4), this does not lessen the
burden on landlords to establish just cause for eviction. Compare RCW 59.18.200(l)(a)
(requiring only that a residential landlord in Washington provide a tenant with 20 days'
advance written notice), with SMC 22.206.160(C)(l) (requiring a residential landlord in
Seattle to have "just cause" before evicting a tenant).

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[must] be afforded 'a meaningful opportunity to be heard'" (quoting Carlstrom v.

Hemline, 98 Wn. App. 780, 790, 990 P.2d 986 (2000))). The Court of Appeals

acknowledged this point: "Although a show cause hearing is not the final

determination of the rights ofthe parties in an unlawful detainer action, the trial court

frequently decides the necessity of a trial at the hearing. As occurred here, the show

cause hearing often provides the only opportunity for a tenant to present any

evidence." Faciszewski, 192 Wn. App. at 446 (emphasis added) (footnote omitted).

At a show cause hearing, "[t]he court shall examine the parties and witnesses orally

to ascertain the merits of the complaint and answer." RCW 59.18.380. The court

may not "disregard evidence that credibly supports a legitimate defense." Leda, 150

Wn. App. at 81. Otherwise, RCW 59.18.380 would be rendered meaningless,

"nothing more than a requirement that superior courts hold perfunctory and

purposeless hearings on matters to be decided solely on the pleadings." I d. at 84.

In the context of the JCEO, a show cause hearing is not meaningful if it does

not provide a tenant with the opportunity to contest the landlord's certification of

just cause. The only opportunity to contest the certification appears to be at the show

cause hearing, where a tenant has the "opportunity ... to contest the eviction." SMC

22.206.160(C)(1 ). The JCEO does not specify what effect the filing of a certification

has on the determination of just cause at a show cause hearing. Subsection (C)(4)

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addresses only the effect of not filing a certification, providing that "[t]he failure of

the [landlord] to complete and file such a certification after a complaint by the tenant

shall be a defense for the tenant in an eviction action based on this ground." In the

context of the JCEO as a whole, it seems unreasonable to infer that the certification

is otherwise dispositive of the determination of just cause.

First, in contrast to other provisions of the ordinance, SMC 22.206.160(C)(4)

does not delineate any adjudicatory authority of the director to make this

determination. See, e.g., SMC 22.206.235(A) (authorizing the director to "issue an

order ... containing the decision within fifteen (15) days of the date that the review

[of a notice of violation] is completed"); see also SMC 22.206.280(F) ("The Director

shall request in writing that the City Attorney take enforcement action."). This

suggests that the director plays no role in determining the legitimacy of the

landlord's certification, certainly not for purposes of an unlawful detainer action.

Second, although the JCEO provides tenants with posteviction remedies if the

landlord does not follow through on the stated grounds for eviction, nothing in the

JCEO suggests that the city council intended the landlord's certification to prevent

the tenant from taking advantage of preeviction remedies. The City describes its

ordinance as follows: The JCEO "provides that an owner's failure to make a

requested certification is a defense to eviction .... [It] goes no further. It does not

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stop a tenant from rebutting a certification in an unlawful detainer action." Br. of

Amicus Curiae City of Seattle at 3. Rather, "the purpose of a pre-eviction

certification is to help assure----not conclusively prove----that the owner's claimed

cause actually exists." !d. at 10. As Tenants correctly note, "[I]n an unlawful

detainer action, what happens after the tenant has been evicted is not the issue."

Reply Br. of Appellants at 18-19 (emphasis added). Given that the remedy under

SMC 22.206.160(C)(4) was intended to ensure that "the invoked causes actually

exist," Seattle Ordinance 117942, at 3, and that nothing in SMC 22.206.160(C)(4)

prevents the tenant from contesting the eviction in a show cause hearing before the

eviction, a reasonable reading is that the tenant must have the opportunity to contest

the veracity of the landlord's certification at the show cause hearing. 10

While the remedies under the JCEO provide an incentive for landlords to act

fairly, nothing in the JCEO suggests that posteviction remedies are a tenant's

exclusive remedy once the landlord files a certification. Given that the JCEO is

more protective of tenants than is state law, it would seem odd that the ordinance

10
This interpretation of the JCEO does not undermine the summary nature of
unlawful detainer proceedings. See Amicus Curiae Mem. of Rental Hous. Ass'n of Wash.
at 8 (noting that show cause hearings are "designed to be more efficient than trials"); see
also Christensen, 162 Wn.2d at 375-76 (the purpose of the unlawful detainer statute "is to
provide a landlord with a speedy, efficient procedure by which to obtain possession of the
premises after a breach by the tenant"). It simply recognizes that the JCEO does not
fundamentally alter such proceedings.

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would leave a tenant with a lesser ability to defend against an unlawful detainer when

a landlord files a certification. Moreover, the remedy provisions of SMC

22.206.160(C)(6) and (7) do not rest on whether the landlord can prove just cause in

an action to terminate a tenancy. Instead, they provide a separate cause of action if,

after an eviction or attempted eviction on certain grounds, the landlord does not

fulfill or carry out the stated reason. With respect to the eviction action itself, two

provisions of the JCEO clearly provide that the landlord must have just cause, SMC

22.206.160(C)(l), and that the lack of just cause can be raised by the tenant

defending against the action, SMC 22.206.160(C)(5).

We hold that Seattle's JCEO does not restrict the tenant's opportunity to

contest the truthfulness of the landlord's certification at an unlawful detainer show

cause hearing. It follows that a judicial officer at the show cause hearing may accept

relevant evidence ofjust cause and the landlord's certification is not dispositive. The

lower courts erred by refusing to consider the evidence Tenants presented on the

issue of just cause and relying solely on Landlords' certification.

III. Attorney Fees

Landlords request attorney fees pursuant to RAP 18.1. Suppl. Br. ofResp'ts

at 19. The RLTA provides that "the prevailing party [in an unlawful detainer action

regarding a holdover tenant] may recover his or her costs of suit ... and reasonable

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attorney's fees." RCW 59.18.290(2). Both the superior court and the Court of

Appeals awarded attorney fees to Landlords under the RLTA. CP at 245;

Faciszewski, 192 Wn. App. at 455.U Landlords do not prevail under our

interpretation of the JCEO, and we thus deny their request and reverse the award of

fees below.

Tenants also request attorney fees pursuant to RAP 18.1. Pet. for Review at

20. That rule requires the party to "devote a section of its opening brief to the request

for the fees," providing that "[r]equests made at the Court of Appeals will be

considered as continuing requests at" this court. RAP 18.l(b). Although Tenants

requested attorney fees only in their petition for review in this court, they requested

fees in their opening brief at the Court of Appeals. Br. of Appellants at 37-38.

Accordingly, we treat Tenants' request for fees under RCW 59.18.290(2) as

continuing. See RAP 18.1 (b). Because Tenants prevail in this court, they are entitled

11
While the Court of Appeals awarded fees pursuant to RCW 59.18.290(2), it is
unclear which provision the superior court relied on. Landlords cited to RCW 59.18.410
at the superior court, CP at 263, and again cite to that provision in their briefing, Suppl. Br.
ofResp'ts at 19. RCW 59.18.410 provides, "If upon the trial the verdict of the jury or, if
the case be tried without a jury, the finding of the court be in favor of the [landlord] ... the
court may award statutory costs and reasonable attorney's fees." That provision further
states, "This section also applies if the writ of restitution is issued pursuant to a final
judgment entered after a show cause hearing conducted in accordance with RCW
59.18.380." Both provisions appear to support an award of attorney fees to the prevailing
landlord.

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to attorney fees and we remand to the superior court to determine the amount of fees

and expenses to be awarded to Tenants. See, e.g., Humphrey Indus., Ltd. v. Clay St.

Assocs., LLC, 176 Wn.2d 662, 677, 295 P.3d 231 (2013) (reversing the trial court's

award of fees); see also RAP 18.l(i); RCW 59.18.290(2).

CONCLUSION

We reverse the Court of Appeals and remand to the superior court for further

proceedings consistent with our interpretation of the JCEO. That the purpose of the

JCEO is to prevent arbitrary evictions and provide tenants with more protections than

under state law suggests that the tenant's posteviction remedies are not exclusive once

the landlord files a certification. Nothing in the JCEO itself prevents the tenant from

challenging the landlord's certification. Rather, the JCEO expressly requires that the

tenant have the opportunity to contest the eviction at the show cause hearing. We hold

that such an opportunity includes contesting the landlord's certification of intent.

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WE CONCUR:

'

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