FILED
COURT OF APPEALS DIV
STATE OF WAS11610:!
201111 24 fJi 9: 23
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FABIAN VAKSMAN, and all other No. 74795-9-1
occupants,
DIVISION ONE
Appellant,
V. UNPUBLISHED OPINION
BRYCE D. LYSTAD,
Respondent. FILED: July 24, 2017
SCHINDLER, J. — Representing himself pro se, Fabian Vaksman appeals the
order granting a writ of restitution under the Residential Landlord-Tenant Act of 1973,
chapter 59.18 RCW. We affirm.
FACTS
Bruce D. Lystad owned a residence located at 3712 Shelby Road in Lynnwood.
In June 2015, Lystad rented a room to Fabian Vaksman for $550 per month. Rent was
due on the 10th of each month.
Four months later on October 8, 2015, Lystad notified Vaksman that effective
November 10, 2015, the monthly rent would increase from $550 to $650 per month.
The notice states that if Vaksman does not want to pay the new amount, he should
provide notice as soon as possible or no later than October 20, 2015. The notice
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states, in pertinent part:
Please be advised that effective November 10, 2015, the monthly rent for
the premises you now occupy shall be increased to $650.00 per month.
This is a change from your present rent of $550.00 per month.
Should you wish to continue your month-to-month tenancy, this new
amount will be required. If you do not wish to pay this new amount,
please provide your notice as soon as possible or no later than the legally
required date of October 20th, 2015.
On November 11, 2015, Lystad's sister Cynthia Lystad issued a three-day notice
to Vaksman to pay rent or vacate. The notice states the rent of $650 due on November
10 is in arrears. Cynthia Lystad signed the notice as the "landlord's agent." Vaksman
did not pay the past-due amount or vacate the room.
On November 18, Bruce Lystad filed an unlawful detainer action. Lystad
requested the court terminate the tenancy and issue a writ of restitution directing the
Snohomish County Sheriff to restore possession.
Representing himself pro se, Vaksman filed an answer. Vaksman alleged
Cynthia Lystad was not a "licensed real estate agent," the notice to vacate was
"fraudulent," and the eviction was "unlawful retaliation."
On December 2, the court entered an order directing Vaksman to pay the rent
owed into the court registry by December 10, 2015, or file a sworn statement that he did
not owe the rent. The order states, "If you fail to do one of the above on or before the
deadline date, the Sheriff could evict you without a hearing even if you have also
received a notice that a hearing has been scheduled." Vaksman did not comply with the
court order.
On December 15, a commissioner issued a writ of restitution to the Snohomish
County Sheriff. The writ directed the sheriff to deliver possession of the room to Bruce
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Lystad.
On December 17, Vaksman filed a motion to revise the commissioner's order
granting the writ of restitution. Vaksman argued that because he did not move into the
room until June 12, the rental period began on the 12th of each month. Vaksman also
argued that when Cynthia Lystad issued the three-day notice, she was acting as an
unlicensed managing broker in violation of RCW 18.85.331.
On December 22, Snohomish County Sheriff Deputy Ross served the writ of
restitution on Vaksman. The next day, the court entered an order staying the writ of
restitution pending a decision on the motion to revise.
On January 22, 2016, the court entered an order denying the motion for revision
and vacating the stay. The order states, in pertinent part:
Bruce Lystad is the Plaintiff in this matter and the court is satisfied that
Cynt[h]ia Lystad has authority to act as his agent. There is a dispute as to
when the rental period started. Plaintiff claims the 10th and Defendant
claims the 12th of the month. There is a 30 day notice change letter given
on the 8th of the month indicating that the rent would be $650.00 per
month as of the 10th of the following month. The Defendant hasn't paid
anything into the court registry despite the[RCW]59.18.375 notice. The
Plaintiff had no obligation to change the rental period or accept a partial
payment. The stay is vacated and the Sheriff shall not conduct the
physical eviction until 5 February 2016.
The motion to revise is denied. The timing ran from the 10th of the
month until the 9th of the next month. The 3 day notice was properly
served and the defendant has acknowledged receiving it.
On February 9, the court entered an order denying Vaksman's motion for
reconsideration. On February 9, a commissioner granted the motion to issue a new
order for a writ of restitution. The commissioner found the December 15, 2015 writ of
restitution had expired and issued a new writ of restitution. The order states, "In the
event that it is not possible to return the Writ within the required ten days there shall be
No. 74795-9-1/4
an automatic extension for an additional twenty days." On February 18, Snohomish
County Sheriff Deputy Giralmo served the new writ of restitution on Vaksman.
ANALYSIS
Vaksman challenges the order denying his motion to revise the commissioner's
decision to issue a writ of restitution and the order granting the writ of restitution.1
The decision of a court commissioner is subject to revision by the superior court.
RCW 2.24.050.2 RCW 2.24.050 states, in pertinent part:
All of the acts and proceedings of court commissioners hereunder shall be
subject to revision by the superior court. Any party in interest may have
such revision upon demand made by written motion, filed with the clerk of
the superior court, within ten days after the entry of any order or judgment
of the court commissioner. Such revision shall be upon the records of the
case, and the findings of fact and conclusions of law entered by the court
commissioner.
On revision, the superior court reviews de novo the findings of fact and
conclusions of law of the commissioner based upon the evidence and issues presented
to the commissioner. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132(2004). The
superior court is "authorized to determine its own facts based on the record before the
commissioner." In re Marriaoe of Dodd, 120 Wn. App. 638:644, 86 P.3d 801 (2004).
The Residential Landlord-Tenant Act of 1973(RLTA), chapter 59.18 RCW,
creates a special and summary proceeding for the recovery of possession of real
property. Nous. Auth. of City of Seattle v. Silva, 94 Wn. App. 731, 734, 972 P.2d 952
(1999). To take advantage of the summary proceeding, a landlord must comply with the
requirements of the unlawful detainer statute. Nous. Auth. of City of Everett v. Terry,
1 Although we are mindful that Vaksman represents himself pro se, we hold self-represented
litigants to the same standards as attorneys. In re Marriage of Olson,69 Wn. App. 621,626, 850 P.2d
527 (1993).
2 See also WASH. CONST. art. IV, § 23.
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No. 74795-9-1/5
114 Wn.2d 558, 563-64, 789 P.2d 745 (1990). Because unlawful detainer statutes are
in derogation of the common law, we must strictly construe the statutes in favor of the
tenant. Terry, 114 Wn.2d at 563.
Vaksman contends the three-day notice signed by Cynthia Lystad to pay rent or
vacate is "not legally valid" because she issued the notice as an unlicensed "managing
broker" in violation of RCW 18.85.331. But RCW 18.85.331 does not apply.
Under the RLTA, a landlord may give written notice to the tenant for the failure to
pay rent. RCW 59.18.170.3 The RLTA defines a "landlord" as the owner of a dwelling
unit or any person designated as a representative of the owner, including an agent or
property manager. RCW 59.18.030(14).
"Landlord" means the owner, lessor, or sublessor of the dwelling unit or
the property of which it is a part, and in addition means any person
designated as representative of the owner, lessor, or sublessor including,
but not limited to, an agent, a resident manager, or a designated property
manager.
RCW 59.18.030(14).
The record supports the finding that Cynthia Lystad had the authority to issue the
three-day notice to pay or vacate as the representative of the landlord Bruce Lystad.
Vaksman also contends the three-day notice to pay rent or vacate is invalid
because of a "fraudulent date." The notice states Vaksman did not pay rent for the
rental period of November 10 to December 9, 2015. Vaksman argues the rental period
began on the 12th of each month because he did not move in until June 12, 2015. But
3 RCW 59.18.170 states:
If at any time during the tenancy the tenant fails to carry out the duties required by RCW
59.18.130 [(e.g., paying "the rental amount at such times and in such amounts as
provided for in the rental agreement")] or 59.18.140, the landlord may, in addition to
pursuit of remedies otherwise provided by law, give written notice to the tenant of said
failure, which notice shall specify the nature of the failure.
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No. 74795-9-1/6
other than his own self-serving affidavit, nothing in the record supports the contention
that he did not move until June 12, 2015 or that the parties agreed the rental period
should begin on the 12th of each month. The record supports the court's finding that
the rental period began on the 10th of each month. As noted by the court, the notice on
October 8, 2015 states that the rent would increase effective November 10, 2015 and
the landlord had not obligation to change the rental period.
Next, Vaksman contends the court ignored the "facts of retaliation." At a show
cause hearing in an unlawful detainer action, the court may not disregard evidence that
credibly supports a legitimate defense. Faciszewski v. Brown, 187 Wn.2d 308, 321, 386
P.3d 711 (2016).
RCW 59.18.240 prohibits a landlord from retaliating against a tenant for any good
faith and lawful complaint or assertion of rights. RCW 59.18.240 provides, in pertinent
part:
So long as the tenant is in compliance with this chapter, the landlord shall
not take or threaten to take reprisals or retaliatory action against the
tenant because of any good faith and lawful:
. . ..
(2) Assertions or enforcement by the tenant of his or her rights and
remedies under this chapter.
"Reprisal or retaliatory action" shall mean and include but not be
limited to any of the following actions by the landlord when such actions
are intended primarily to retaliate against a tenant because of the tenant's
good faith and lawful act:
(a) Eviction of the tenant;
(b) Increasing the rent required of the tenant.
The court found the "retaliation statute does not apply to the facts in this case."
The record supports the court's finding. The record shows Cynthia Lystad issued
Vaksman a notice to pay rent or vacate because he had not paid his rent. Vaksman
argues Cynthia Lystad evicted him in retaliation for a "valid police complaint." But
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No. 74795-9-1/7
nothing in the record supports his argument.
In the alternative, Vaksman contends the sheriff executed an "expired writ."
RCW 59.18.380 states that a court "shall enter an order directing the issuance of a writ
of restitution, returnable ten days after its date," following a hearing on a motion for a
writ of restitution "if it shall appear that the plaintiff has the right to be restored to
possession of the property." RCW 59.18.380 provides, in pertinent part:
At the time and place fixed for the hearing of plaintiffs motion for a writ of
restitution, the defendant, or any person in possession or claiming
possession of the property, may answer, orally or in writing, and assert
any legal or equitable defense or set-off arising out of the tenancy. If the
answer is oral the substance thereof shall be endorsed on the complaint
by the court. The court shall examine the parties and witnesses orally to
ascertain the merits of the complaint and answer, and if it shall appear that
the plaintiff has the right to be restored to possession of the property, the
court shall enter an order directing the issuance of a writ of restitution,
returnable ten days after its date, restoring to the plaintiff possession of
the property.
Nothing in the statute prohibits a court from extending the 10-day period to return
a writ of restitution. Here, the court entered an order issuing a writ of restitution to the
sheriff on February 9, 2016. The order states, "In the event that it is not possible to
return the Writ within the required [10] days there shall be an automatic extension for an
additional [20] days." The sheriff executed the writ on March 1, 2016, and returned the
writ on March 8, 2016. Because the order included an automatic 20-day extension of
the statutory 10-day period, the sheriff timely executed and returned the writ before it
expired 30 days after February 9, 2016.
Vaksman also claims the court did not have jurisdiction to consider his motion for
reconsideration. Vaksman argues the court lacked jurisdiction because "[c]ome
Feb[ruary] 9, 2016, the trial court Judge was scheduled to be elsewhere and not on duty
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No. 74795-9-1/8
for civil motions."4 But the record shows the judge signed the order denying Vaksman's
motion to reconsider on February 9, 2016.
Without citation to authority, the landlord Bruce Lystad requests an award of
attorney fees on appeal. We deny the request for attorney fees. A party must devote a
section of the brief to the fee request. RAP 18.1(b). The rule "requires more than a
bald request" for attorney fees. Thweatt v. Hommel,67 Wn. App. 135, 148, 834 P.2d
1058 (1992). Citation to authority is required under the rule. Austin v. U.S. Bank of
Wash., 73 Wn. App. 293, 313, 869 P.2d 404(1994).
We affirm.
creS6--1`\•41_9.0_,
WE CONCUR:
4 Emphasis in original.
8