Lauriane Narin v. Mohamed S. Abubakar

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LAURIANE NARIN,
DIVISION ONE
Appellant,
No. 78923-6-I
V.
UNPUBLISHED OPINION
MOHAMED S. ABUBAKAR; and JANE
DOE, husband and wife, individually
and in the marital community comprised
thereof,
FILED: November 12, 2019
Respondent.

DWYER, J. — Lauriane Narin appeals from the trial court’s order dismissing

her personal injury action against Mohamed Abubakar based on her failure to

effect service of process within the statutory limitation period. The trial court

neither abused its discretion by denying Narin’s motion to continue the summary

judgment hearing nor erred in striking portions of the evidence Narin submitted in

response to the motion. And because Narin failed to accomplish valid service of

process when she caused to be delivered a copy of the summons and complaint

to Abubakar’s brother at a place where Abubakar did not reside, the trial court

properly granted summary judgment. We affirm.

On August 7, 2014, Lauriane Narin and Mohamed Abubaker were

involved in an automobile collision in Seattle. Abubakar provided the

investigating officer with a Seattle address on 30th Avenue S., which was his
 No. 78923-6-1-1/2

mother’s residence and the location where Abubakar had his mail delivered at

the time.

Three days before the statute of limitations expired, on August 4, 2017,

Narin filed a personal injury action against Abubakar. On August 16, counsel for

Abubakar filed a notice of appearance, “reserving all defenses including but not

limited to defects in jurisdiction and service of process.”

Narin twice unsuccessfully attempted to serve Abubakar with legal

process in September 2017.1 Then, on September 28, 2017, Narin served

Abubakar by delivering a copy of the summons and complaint to his brother at a

residence located at 3011 S. Holly Street, in Seattle. According to the

declaration of service, the individual who accepted the legal documents was an

unidentified male of Middle Eastern descent with an accent, who was a resident

of the home and Abubakar’s “roommate.”

Three weeks later, before the 90-day period for service expired, Abubakar

answered the complaint, and asserted insufficient service of process as a

defense.2

Several months later, Abubakar filed a motion for summary judgment,

seeking dismissal of the complaint on the ground that Narin failed to accomplish

valid service within 90 days of filing her complaint, as required by ROW 4.16.170.

Abubakar filed a brief supportive declaration stating that he never lived at the S.

1 Narin first attempted to serve Abubakar on September 24 at the 30th Avenue S.
address identified in the police report. The next day, on September 25, Narin attempted to serve
Abubakar at a residence on SE Ramona Street in Portland, Oregon. Abubakar’s mother resided
at that address and informed the process server that Abubakar did not live there and only visited
on occasion.
2 ~ ROW 4.16.170 (tolling the statute of limitations for 90 days from the date of filing

the complaint).

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No. 78923-6-1-1/3

Holly Street residence and that, since 2014, he has resided at an apartment on

Martin Luther King Jr Way S. (MLK) in Seattle. Abubakar provided no

corroborative evidence, apart from a copy of his Washington driver’s license,

issued in December 2016, listing the MLK apartment as his address.

Narin opposed the motion with declarations of the process server and two

investigators employed by ABC Legal Services, the entity she retained to locate

and serve Abubakar. The ABC employees described their investigation into

Abubakar’s home address and referenced certain documents they relied upon,

including an attached document identified as an “Accurint report.”

Abubakar asked the court to strike portions of the testimony of the ABC

employees and the Accurint report. Narin filed a motion seeking leave to

supplement the evidence and to continue the hearing. Without ruling on either of

these motions, the trial court denied the motion for summary judgment without a

hearing.

Approximately two months after the court entered its order, defense

counsel informed plaintiff’s counsel of her intent to file another motion for

summary judgment with additional documentation to establish Abubakar’s

residency.

In June 2018, approximately five months after the court denied his first

motion, Abubakar filed a second motion for summary judgment. In the

declaration he filed in support of the motion, Abubakar explained that at the time

of the collision, he was living with friends, but was not named on a lease.

Abubakar said that, since November 2014, the MLK apartment had been his

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No. 78923-6-1-1/4

permanent residence. He further stated, “[t]his address is where my mail is

delivered, where I prepare meals and sleep each night, and where I spend time

with friends and family.” He said that for a period of a few months in the summer

of 2015, his girlfriend and children lived with him at the MLK apartment.

Abubakar explained that, at the time of the attempted service in

September 2017, three of his brothers were living at the S. Holly Street

residence, including Fadil, who accepted documents from the process server.

According to Abubakar’s declaration, Fadil has some “learning disabilities,” does

not read well, and did not deliver any legal documents to him.

Abubakar attached several exhibits to his declaration, including copies of

lease documents establishing that he had rented the MLK apartment

continuously from November 14, 2014. He also submitted copies of electricity

bills in his name, car payment bills, a Washington Department of Licensing

vehicle registration certificate issued in February 2017, a copy of his Washington

driver’s license, and a copy of a 2016 employment application for a position

Abubakar held in 2016 and 2017. All of these documents referenced the MLK

apartment as Abubakar’s home address.

Abubakar also supplied Fadil’s declaration, who confirmed that Abubakar

had never lived at the S. Holly Street residence. Fadil stated that he

remembered the delivery of ‘legal papers,” but understood that the documents

were for another brother, Ahmed, who also resided at the S. Holly Street

residence. Fadil said that his native language is Somali, and that he has

~ We refer to Abubakar’s brothers by first names for clarity.

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No. 78923-6-~-II5

“learning disabilities and cannot read.” Fadil denied telling the process server

that Abubakar lived with him.

Narin again opposed the motion, relying on the evidence that she

presented in her response to Abubakar’s first summary judgment motion. She

argued that summary judgment was inappropriate because Abubakar was ‘at

least associated” with the S. Holly Street address and there were insufficient

facts to conclude that service at that address was invalid. Alternatively, Narin

requested a continuance under CR 56(f), arguing that, in light of the new

evidence, she should have an opportunity to depose “several key witnesses,”

including Abubakar, his brothers, and ABC employees and investigators.

Prior to the hearing, Abubakar again moved to strike portions of the

declarations of the ABC employees and the process server.

Following a hearing, the court entered an order granting Abubakar’s

motion to strike and a separate order denying Narin’s motion for a continuance

and granting Abubakar’s motion for summary judgment. The court later denied

reconsideration of both orders.

Narin appeals, challenging the trial court’s decisions (1) denying her

motion to continue, (2) granting the motion to strike and (3) granting Abubakar’s

summary judgment motion dismissing her lawsuit.

Narin contends that the court abused its discretion by denying her CR

56(f) motion to continue the summary judgment hearing to allow her to conduct

discovery.

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No. 78923-6-1-116

Under CR 56(f), the court may order a continuance to allow a nonmoving

party to obtain discovery needed to respond to the motion “[sjhould it appear

from the affidavits of a party opposing the motion that, for reasons stated, the

party cannot present by affidavit facts essential to justify the party’s opposition.”

We review a trial court’s ruling on a CR 56(f) motion for abuse of discretion.

Bavand v. OneWest Bank, FSB, 196 Wn. App. 813, 822, 385 P.3d 233 (2016).

The trial court may deny the motion for a continuance if: “(1) the requesting party

does not offer a good reason for the delay in obtaining the desired evidence; (2)

the requesting party does not state what evidence would be established through

the additional discovery; or (3) the desired evidence will not raise a genuine issue

of material fact.” Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989).

When a party requests a continuance merely to seek information already

provided by a declaration, the trial court does not abuse its discretion by denying

the request. Farmerv. Davis, 161 Wn. App. 420, 431, 250 P.3d 138 (2011). The

trial court granted summary judgment to the defendants in Farmer because the

plaintiff failed to serve a copy of the summons upon a person of suitable age and

discretion at the defendant’s place of usual abode. 161 Wn. App. at 423. On

appeal, Farmer challenged the denial of his motion for a continuance to allow him

to depose Davis and Davis’s mother regarding Davis’s usual abode. Farmer,

161 Wn. App. at 430. However, both individuals had already provided

declarations that unequivocally stated, with supporting facts, that the place of

service had not been Davis’s usual abode for more than two years before the

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No. 78923-6-1-1/7

attempted service. Farmer, 161 Wn. App. at 431. The appellate court upheld the

trial court’s denial of the motion to continue. Farmer, 161 Wn. App. at 431.

Narin contends that, unlike the plaintiff in Farmer, she made the required

showing to justify a continuance. We disagree. Narin’s counsel stated that if the

matter were continued, he expected to receive responses to outstanding

interrogatories and to depose Abubakar and Fadil. Counsel did not identify any

information that outstanding discovery responses would provide that was

relevant to the issue of service. And when the court pointed out that both

Abubakar and Fadil had provided definitive declarations with regard to

Abubakar’s usual place of abode, counsel suggested that depositions would

allow him to ask “follow-up questions” and to “go deeper.” The only specific area

of inquiry Narin’s counsel mentioned was whether Abubakar had ever used the

S. Holly Street address to apply for credit.

These facts are analogous to those in Farmer because Narin requested a

continuance for the primary purpose of deposing witnesses who had already

provided unequivocal declarations about Abubakar’s usual abode. Farmer, 161

Wn. App. at 431. Like the plaintiff in Farmer, Narin offered nothing, beyond

speculation, to suggest that she might be able to elicit “potentially contradictory

evidence” from those witnesses. 161 Wn. App. at 431. And, as the trial court

here pointed out, any evidence that Abubakar used the address for a discrete

purpose, such as a credit application, would not undermine the evidence

establishing that the MLK apartment was Abubakar’s usual abode for purposes

of service.

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No. 78923-6-1-1/8

Narin also maintains that she demonstrated a good reason for the delay in

obtaining the evidence because defense counsel prevented her from deposing

Abubakar and refused to engage in discovery. But there was no evidence before

the court to indicate that Narin took any steps to take Abubakar’s deposition, or

made an express request to do so, and that opposing counsel failed to

cooperate. Defense counsel’s declaration provides:

At no time during the course of this litigation has plaintiff’s counsel
ever requested I make Mr. Abubakar available for deposition.
Plaintiff’s counsel has never noted the deposition of Mr. Abubakar
or any other witness. Plaintiff’s counsel has never taken any steps
to compel defendant’s answer to plaintiff’s discovery requests nor
has counsel propounded any other written discovery regarding the
service of process defense.

No evidence in the record contradicts this testimony. This is so even if we

were to consider the evidence Narin submitted to support her motion for

reconsideration and the untimely declaration of Narin’s former counsel. Evidence

that plaintiff’s counsel once brought up the issue of Abubakar’s deposition in a

conversation with defense counsel does not establish that defense counsel

refused to make her client “available” for deposition. At the summary judgment

hearing, Narin’s counsel admitted that, despite being on notice of the likelihood of

a second motion supported by additional evidence, other than “reaching back out

to ABC,” he had not engaged in any discovery in the five-month period following

the court’s denial of the first motion. As in Farmer, Narin failed to note any

depositions while the case was pending and “if there had been obstacles to

taking the desired depositions,” failed to explain why she had not moved for a

continuance earlier. 161 Wn. App. at 431.

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No. 78923-6-1-1/9

Next, Narin cites Coggle v. Snow, 56 Wn. App. 499, 508, 784 P.2d 554

(1990), to argue that the trial court failed to fully appreciate that justice is the

“primary consideration” in ruling on a motion for a continuance and

inappropriately relied, to some extent, on the shortcomings of her counsel.

Again, we disagree. In Coggle, a medical negligence case, the trial court abused

its discretion by denying a motion for a continuance when the plaintiff’s new

counsel had insufficient time to rebut a summary judgment motion. 56 Wn. App.

at 508. There was a good reason for the delay because Coggle’s first counsel

retired and new counsel began representing Coggle only one week after the

opposing party filed the motion for summary judgment. Coggle, 56 Wn. App. at

508. Significantly, this court held that Coggle had met the other criteria fora

continuance by specifically identifying the evidence he sought, an affidavit from

the treating physician, and explaining how that evidence would rebut the key

defense expert’s testimony. Coggle, 56 Wn. App. at 508.

The facts here are not comparable to those in Coggle. And Narin’s

suggestion that the trial court failed to make justice its primary consideration or

unfairly penalized her for her counsel’s dilatory conduct is unwarranted. The

court carefully and thoroughly analyzed Narin’s request, recognizing the

consequences of denial. In this case, justice simply did not require continuing

the summary judgment hearing to allow further discovery when Narin failed to

meet her obligation to identify information she would obtain that would raise a

genuine issue of material fact.4

~ We a’so reject Narin’s contention that a continuance was warranted because she was
caught ‘by surprise” when the court granted the defense motion to strike and thereby reversed its

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No. 78923-6-1-1/10

Narin next challenges the court’s decision to strike portions of the

evidence she submitted in response to the summary judgment motion.

“A court cannot consider inadmissible evidence when ruling on a motion

for summary judgment.” Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842

(1986). Under CR 56(e), “opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify to the matters

stated therein.” Although a trial court’s ruling on a motion to strike is generally

reviewed for abuse of discretion, when a motion to strike is made in conjunction

with a motion for summary judgment, the standard of review is de novo.

Southwick v. Seattle Police Officer John Doe No. 1, 145 Wn. App. 292, 297, 186

P.3d 1089 (2008).

Narin challenges the trial court’s decision to strike the declaration of

former counsel, filed the day before the summary judgment hearing.5 She

argues that the trial court abused its discretion by striking the evidence as

untimely without first applying the factors set forth in Burnet v. Spokane

Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). See Keck v. Collins, 184

Wn.2d 358, 368-69, 357 P.3d 1080 (2015) (Burnet test applies to untimely

prior ruling on admissibility. She did not make this argument at the hearing or on reconsideration.
Narin had notice of Abubakar’s renewed evidentiary objections. The trial court’s failure to rule on
the first motion to strike when it denied Abubakar’s initial summary judgment motion was not a
prior determination of admissibility.
~ The court’s order granting the motion to strike does not refer to the attorney’s
declaration but the court orally granted the motion at the summary judgment hearing.

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No. 78923-6-I-Ill I

affidavits submitted in response to a summary judgment motion when the

affidavits are germane to the factual issues raised by the motion).

The declaration in question was not relevant to the factual issue before the

court on summary judgment—i.e., whether Narin accomplished valid service

within the statutory limitation period. The declaration related only to Narin’s

request for a continuance and her explanation as to why she had not already

deposed defense witnesses. Moreover, Narin fails to allege, much less

establish, that she was prejudiced by the trial court’s ruling. See Vant Leven v.

Kretzler, 56 Wn. App. 349, 353-54, 783 P.2d 611(1989) (when affidavits

submitted by party seeking a CR 56(f) continuance are insufficient to establish a

good reason for delay in obtaining desired evidence, denial of continuance is

within the trial court’s discretion). As explained in the preceding discussion, the

attorney’s declaration testimony that the attorney “discussed” Abubakar’s

deposition with defense counsel does not demonstrate that Narin sought to

depose the defendant and was prevented from doing so.

Narin also challenges the court’s decision to strike the “Accurint report”

attached to the declarations of ABC investigator Sean Woods.6 The document

includes only a “LexID” number to identify the source of the information.7

Abubakar moved to strike the exhibit as unauthenticated.

6 Narin submitted two declarations of Sean Woods, dated one day apart. The challenged

exhibit is attached to both.
~ The Lexis Accurint database is used to locate people and businesses by reviewing “83+
billion public records.” https:I/www. Iexisnexis.com/en-us/products/accurint-for-Iegal
professionals.page (last visited October 28, 2019).

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 No. 78923-6-1-1/12

On appeal, Narin contends that the exhibit is admissible under ER

803(17). ER 803(17) is an exception to the hearsay rule that allows admission of

“{m]arket quotations, tabulations, lists, directories, or other published

compilations, generally used and relied upon by the public or by persons in

particular occupations.” But Narin did not rely on this provision as a basis to

admit the evidence in the trial court. Absent manifest constitutional error, we

decline to consider arguments raised for the first time on appeal. See RAP

2.5(a). But even if Narin had preserved the issue, and we assume the exhibit

was properly authenticated and admissible under ER 803(17),8 Narin was not

prejudiced by the court’s ruling because the evidence fails to raise a genuine

issue of material fact about the validity of service.

The report lists 15 addresses with an apparent connection to the

defendant’s name. First on the list is Abubakar’s mother’s Portland residence,

which, as the parties agree, is not Abubakar’s usual abode. Second on the list is

the MLK address where Abubakar resides, with a corresponding date range of

January 2015 to August 2017. The S. Holly Street address is fourth on list with a

single corresponding date of March 2017. The Accurint report does not reveal

the underlying documents or data that provided the basis for connecting

Abubakar’s name to any of the addresses listed. Without that information, the

document creates no inference that the S. Holly Street residence (or any other

listed address for that matter) was Abubakar’s usual abode at the time of service

8 See U.S. Bank, Nat’I Ass’n v. UBS Real Estate Sec., Inc., 205 F. Supp. 3d 386, 441
(S.D.N.Y. 2016) (finding evidence from Accurint database to be admissible under parallel federal
rule).

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 No. 78923-6-1-1/13

or cast doubt on the evidence submitted by Abubakar in support of his motion for

summary judgment.

As to the declarations of the ABC investigators, Narin claims, without

further elaboration, that “there is a difference between a hearsay statement and

non-hearsay proffers.” This assertion fails to adequately address the testimony

or basis for the motion to strike. For instance, in addition to describing his search

of “third party credit header data,” Joe Fetheroif states in the stricken portion of

his declaration that “Credit header records reflect that 3011 S Holly St., Seattle

98108 is the defendant’s most recent address in the State of Washington.” Narin

fails to explain why this testimony is a “non-hearsay proffer,” as opposed to a

hearsay statement offered to prove the matter asserted. See ER 801(c). And

Narin provides no reasoned argument that would allow us to conclude that

Woods’s testimony about the content of certain Oregon and Washington records

is not hearsay because physical documents do not exist or because ABC does

not have access to them. We decline to further address this claim.9

IV

Finally, Narin argues that service at the S. Holly Street address satisfied

either RCW 4.28.080(16) or (17) and it was error for the trial court to conclude

otherwise. Thus, she contends that the order granting summary judgment must

be reversed.

~ With respect to the declaration of the process server, we reject Narin’s contention that
the court did not strike any part of his testimony. While the handwritten portion of the order does
not reference the process server’s declaration, the order clause makes it clear that the court
granted Abubakar’s request to strike paragraphs four and seven of his declaration.

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No. 78923-6-1-1/14

We review the grant of a motion for summary judgment de novo. This

court engages in the same inquiry as the trial court. Benjamin v. Wash. State

Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999). Summary judgment is

appropriate if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121

Wn.2d 243, 249, 850 P.2d 1298 (1993); CR 56(c).

A personal injury plaintiff must commence suit within three years. RCW

4.16.080(2). She may do so by filing the complaint or serving the summons.

RCW 4.16.170. If she commences by filing, then she must serve the defendant

personally within 90 days from the date of filing. RCW 4.16.170.

Among other methods, a plaintiff can personally serve a defendant by (1)

delivering a copy of the summons to the defendant, or (2)(a) leaving a copy of

the summons at the defendant’s usual abode (b) with a person of suitable age

and discretion (c) then resident therein. RCW 4.28.080(16). Service under the

latter alternative, commonly called “abode” or “substitute” service must satisfy all

three elements. Sheldonv. Fetti~, 129 Wn.2d 601, 607, 919 P.2d 1209 (1996);

Gerean v. Martin-Joven, 108 Wn. App. 963, 969, 33 P.3d 427 (2001).

The term “usual abode” is liberally construed and refers to the “center of

one’s domestic activity [such that] service left with a family member is reasonably

calculated to come to one’s attention.” Sheldon, 129 Wn.2d at 610 (quoting

Sheldon v. Fetti~, 77 Wn. App. 775, 781, 893 P.2d 1136 (1995)). While “most

people generally maintain only one house of usual abode,” our Supreme Court

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No. 78923-6-1-1/15

has held that “under certain circumstances a defendant can maintain more than

one house of usual abode.” Sheldon, 129 Wn.2d 611.

Narin concedes that the exhibits submitted by Abubakar establish beyond

dispute that he resides at the MLK apartment. Nevertheless, she claims the

evidence fails to explain his connection to the S. Holly Street residence and does

not foreclose the possibility that, like the defendant in Sheldon, Abubakar

maintains more than one usual abode. See Sheldon, 129 Wn.2d at 611.

Sheldon involved attempted service of process on an adult defendant,

Sharon Fettig, at her parents’ Seattle home. Sheldon, 129 Wn.2d at 606. Fettig

had moved to Chicago for flight attendant training eight months prior to the

attempted service, but thereafter maintained a number of formal and informal

connections to her parents’ Seattle residence. Sheldon, 129 Wn.2d at 604-05.

As Sheldon makes clear, the usual abode inquiry turns on indicia of domestic

activity and use of an address for purposes such as voting, car registration, car

insurance, and the receipt of mail. See, ~ Sheldon, 129 Wn.2d 610-11. It

also depends on factors that logically establish the center of domestic activity,

including basic concepts such as where the defendant sleeps and eats and the

frequency of visits. .~, ~ Sheldon, 129 Wn.2d at 610, 612.

The use of a particular address “for a limited purpose is not a critical factor

in determining a center of domestic activity.” Streeter—Dybdahl v. Nquyet Huynh,

157 Wn. App. 408, 414, 236 P.3d 986 (2010). In Streeter-Dyblahl, service of a

summons and complaint on a person, other than the defendant, at a residence

where the defendant no longer lived and only visited occasionally to pick up mail,

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No. 78923-6-1-1/16

was invalid. 157 Wn. App. at 415. In that case, although the Department of

Licensing listed the defendant’s former Seattle residence as her current address

and she kept a special box there for mail, there was no probative evidence of

domestic activity sufficient to conclude the defendant maintained more than one

place of usual abode. Streeter-Dybahl, 157 Wn. App. at 415.

Likewise here, Narin cites no facts that establish or even reasonably

indicate that Abubakar centered his domestic activities at his brothers’ home at

any time. Even viewed in the light most favorable to Narin, the evidence in the

record demonstrates only that Abubakar centered his domestic activities at a

separate location, the MLK apartment. Abubakar resided there for almost three

years before the attempted service. He used the MLK address to receive mail,

pay bills, for his vehicle registration, his driver’s license, and a job application.

The only evidence before the court indicates that Abubakar never lived at the S.

Holly Street address and there was no evidence that he stayed there or used the

residence as a point of contact. There is no true question of fact as to whether

Abubakar established that the S. Holly Street residence was not his usual abode

and therefore service at that location was not valid.

Alternatively, Narin contends that service at S. Holly Street satisfied the

requirements of RCW 4.28.080(17). This provision provides:

In lieu of service under subsection (16) of this section, where the
person cannot with reasonable diligence be served as described,
the summons may be served as provided in this subsection, and
shall be deemed complete on the tenth day after the required
mailing: By leaving a copy at his or her usual mailing address with a
person of suitable age and discretion who is a resident, proprietor.
or agent thereof, and by thereafter mailing a copy by first-class
mail, postage prepaid, to the person to be served at his or her usual

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No. 78923-6-1-1/17

mailing address. For the purposes of this subsection, “usual mailing
address” shall not include a United States postal service post office
box or the person’s place of employment.

(Emphasis added.)

But, as the trial court noted, even assuming Narin could show “reasonable

diligence,” there was no evidence that Abubakar used the S. Holly Street address

for purposes of receiving any mail, let alone evidence that it was his “usual

mailing address.” The only evidence in the record demonstrated that Abubakar’s

usual abode and center of his domestic activities was other than at his brothers’

house. With no facts indicating otherwise, the only reasonable conclusion is that

his usual mailing address was also the MLK apartment address.

The trial court did not err in concluding there was no valid abode service

under RCW 4.28.080(16) or service under RCW 4.28.080(17) at the defendant’s

usual mailing address. The trial court did not err in granting summary judgment.

Affirmed.

WE ONCUR:

D~4~ ‘7cr