motion to reconsider worthington v wa ag et al

7/28/2019 Motion to Reconsider Worthington v Wa Ag Et Al

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RECEIVeD COURT OF APPEALS DIVISION ONE SEP 252013

COURT OF APPEALS, DIVISION I OF THE STATE OF WASHINGTON

JOHN WORTHINGTON, CASE NO. 68979 -7- IAppellant,

v. MOTION TO RECONSIDERWASHINGTONSTATEATTORNEYGENERAL ET AL,

Respondents,

I. Identify ofMoving PartyAppellant John Worthington, 4500 SE 2ND PL ofRenton Washington

respectfully asks for the relief designated in Part 2.II. Statement ofRelief Sought

The Appellant respectfully requests the Washington State Court of Appealsto reconsider its Unpublished Opinion dated September 23,2013, and grantWorthington's request for remand or grant Worthington ajudgment in hi s favor.

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m. Facts Relevant to Motion1 2 On September 23,2013, the Washington State Court of Appeals affirmed 3 the trial court's ruling that Worthington's claims were barred by statute of 4 limitations. The Appellate Court did not rule on Res Judicata or Collateral6 Estoppel. On page 6 of the opinion, the Appellate court ruled that Worthington did7 not meet any of the two prongs required to invoke the discovery rule. Worthington8 respectfully argues otherwise. Also on page 6 and 7 of the opinion, the Appellate9

Court ruled Equitable Estoppel and Equitable Tolling did not apply because11 Worthington could not prove Bjomberg was a federal agent. Worthington12 respectfully argues he only had to prove Bjomberg acted in bad faith. Worthington13 also argues there is no defense for Collateral Estoppel or Res Judicata available,14

because there has never been any officer or agency that has admitted to the16 controversy.17 IV. Grounds for Relief and Argument18 A. The Discovery Rule Applies19

The Appellate Court appeared to rule Worthington did not meet either prong21 of the Discovery Rule. Worthington respectfully argues that he did meet the second22 prong required to invoke the Discovery Rule. The second prong of the criteria2324 required to invoke the Discovery Rule as identified in the Appellate court's

decision was:26

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Or (2) Show that the defendants breached an affirmative duty todisclose material fact.Worthington properly argued in his briefs to the Appellate Court that the

defendants had the affirmative duty under RCW 69.50.505 (3) to disclose thematerial fact of who seized property and who was obligated to proceed withforfeiture proceedings which were deemed commenced by the seizure. l

Worthington relied upon the Washington State Supreme Court En Baneruling in Washington. Mut. Sav. Bank v. Hedreen, 125 Wn.2d 521,526,886 P.2d 1121 (1994). (Citing Oates v. Taylor, 31 Wn.2d 898, 904, 199 P.2d 924 (1948), andargued the defendants breached their duty under RCW 69.50.505 (3) to disclosethe material fact ofwho seized his property.

The Washington State Court of Appeals for Division I also relied on thatsame case law in Delta Development Company v. Bob Hsiyuan Yeh (2002),which was authored by one of the panel members in this case, the HonorableJudge Mary K. Becker who wrote the following:

In addition, where a party has a duty to disclose a fact, thesuppression of that fact is tantamount to an affIrmative misrepresentation.Crisman v. Crisman, 85 Wn. App. 15,22,931 P.2d 163 (1997); WashingtonMut. Sav. Bank v. Hedreen, 125 Wn.2d 521, 526, 886 P.2d 1121 (1994).

It is well settled that the suppression of a material fact which a partyis bound in good faith to disclose is equivalent to a false representation.

1 See RCW 69.50.505 (3) In the event of seizure pursuant to subsection (2) of this section,proceedings for forfeiture shall be deemed commenced by the seizure.

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Where the law imposes a duty on one partyl to disclose all material factsknown to him and not known to the other, silence) or concealment in violation ofthis duty with intent to d ~ c e i v e will amount to fraud as being a deliberate suppressionof the truth and equivalent to the assertion of a falsehood. Oates v. Taylor, 31 Wn.2d898,902-03, 199 P.2d 924 (1948) (quoting 37 C.J.S. 244, Fraud, sec. 16a)

In this case it is well settled that despite signing Interlocal agreements toconduct seizure forfeitures pursuant to RCW 69.50.505 (3), th e defendantsreasoned they did not have to follow th e statute based on the belief thatWorthington was not charged with a crime. Indeed to this day Worthington stilldoes not know who actually seized his property. The Washington State Courtof Appeals for Division I failed to rule properly on the legislative intent of RCW69.50.505 (3), or argue how it is now a discretionary statute after property isseized. For their part the Respondents have admitted they violated RCW 69.50.505

The Appellate Court also failed to notice that when forfeiture had takenplace, the 15 notice of intent to seize pursuant to RCW 69.50.505 (3 ) was not filedas the defendants all remained silent. This act also represents a failure to disclose a2 The law imposed upon the defendants was RCW 69.50.505 (3).The defendants admittednumerous times they did not abide by RCW 69.50.505 (3), despite signing InterlocalAgreement contracts declaring all seizure forfeitures would be conducted under RCW69.50.505. (CP 290, CP 589.)) The defendants still remain silent on who actually seized the property. (See Page 15 Defendants response brief. ("Defendant'S did not make any representations to the district court concerning the identity of the officer who took Mr. Worthington's plants") In addition, the defendants argued 'Who took Worthington's plants was a red herring" on Page 14 of the Respondents' response brief. 4 Page 14, 15 and 44 of the Respondents response brief.

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1 required fact which is required for forfeiture and also triggers the Discovery Rule.23 The author of this disputed opinion, the Honorable Judge Ronald E. Cox, along4 with another Judge on this panel, the Honorable Judge Mary K Becker, agreed that

the notice of 15 day intent to seize was mandatory in Snohomish Regional Drug6 Task Force v. Real Property Known as 20803 Poplar Way, 150 Wash.App. 387,78 208 P.3d 1189 (2009).That Court defmed a right to be heard in seizure forfeiture9 laws as the "Bedrock Principles" underlying this statute as shown below:

~ 30 We also note that reading RCW 69.50.505(3) through (5) together, as11 we must, it is clear that the legislature intended that notice and an12 opportunity to be heard are bedrock principles underlying this statute.Forfeiture of the interests ofYatin and Vijay on this record does violence to13 these principles.14 WEST NET and TNET did the same violence to Worthington when they failed to

follow Those "bedrock principals" underlying RCW 69.50.505 (3) and allow1617 Worthington to be heard. Although the pro se Worthington is no Hunter Thompson18 or Billy Morelli, Worthington did rely on the same case law identified in Bruett v.19 Real Property Known as 18328 11th Ave. N.E 93 Wash.App. 290,968 P.2d 91321 (1998), and should have been given notice and he should have been heard.22 Even though Bruett did not apply in that case, the Judges on that panel23 acknowledged Bruett case law and what was at that time "Bedrock Principles" of24 RCW 69.50.505 (3). The Pro Se Worthington can only pray the two judges on this26 panel that presided over Snohomish Regional Drug Task Force v. Real Property

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Known as 20803 Poplar Way, 150 Wash.App. 387, 208 P.3d 1189 (2009), nowauthoring and concurring inconsistently with that decision in this case, be fair andapply those same" Bedrock Principles."

As shown above the Appellate Court erred when ruling Worthington'sarguments did not invoke the second prong of the Discovery Rule, and also erredby deciding that Worthington did not identify any issue ofgenuine fact.

B. Worthington showed and proved the issue of genuine factThe issue ofgenuine fact is whether WEST NET or TNET violated their

duty under RCW 69.50.505 (3). Worthington not only identified that as an issue ofgenuine fact to be decided by the trier of fact, Worthington proved that fact whenhe got the Respondents to admit they did not follow RCW 69.50.505(3)5.

As shown above, Worthington should have prevailed on his motion forsummary judgment ifnot for the unequal application of the "Bedrock Principles"ofWashington State Seizure Forfeiture laws outlined in RCW 69.50.505 (3). TheAppellate Court has ignored those "Bedrock Principles" and has given theRespondents an extremely charitable decision which achieves an absurd resultwhere a group of law enforcement agencies can; (1) show up at your door withouta copy of the warrant;(2) force you out ofyour house at gunpoint; (3) seize your

5 Page 14, 15 and 44 of the Respondents response brief.

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property and never tell you who took i t Courts are not supposed to be interpreting1 2 a statute that leads to an absurd result (See SEIU Healthcare 775NW v. Gregoire, 3 168 Wn.2d 593,598-99,229 P.3d 774 (2010).4 This is not the Wild West and we do have laws in this state or specifically6 in this case "Bedrock Principles." that were at one time mandatory to follow.7 Inexplicably those "Bedrock Principles" are now shown to be discretionary in this8 decision without the identification of any case law that supports this new 9

discretionary exception to RCW 69.50.505 (3). "In the absence of ambiguity, we 11 will give effect to the plain meaning of the statutory language." In re Marriage of12 Schneider, 173 Wash.2d 353,363,268 P.3d 215 (2011). Clearly, the Court of13 Appeals for Division I did not properly give Effect to the "plain meaning" ofRCW14

69.50.505 (3) and carry out its legislative intent16 C. Equitable Estoppel and Equitable Tolling Applies17 The Appellate Court also erred when it ruled Equitable Estoppel did not1819 apply. Here a factual mistake by the Appellate Court explains Worthington tried to

invoke Equitable Estoppel & Equitable Tolling based on Bjomberg not being a21 federal agent, when Worthington argued Bjomberg acted in bad faith. Bjomberg22 never provided a federal property seizure report after WEST NET picked up the2324 state's Kitsap County Superior Court paper work and allegedly left Worthington's

property. Until Bjomberg can provide such a federal property seizure report he26

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will continue to be acting in bad faith, since WEST NET did not claim to be12 seizing Worthington's property for Bjomberg. Furthermore, WEST NET will also3 continue to be acting in bad faith until they renew a property seizure report they 4 previously retracted and removed from the premises of the initial raid.

As shown above Worthington respectfully argues Equitable Estoppel and67 Equitable Tolling should have been invoked because neither agency involved acted8 in good faith by following the applicable "Bedrock Principles" ofRCW 69.50.5059

(3).11 D. Collateral Estoppel and Res Judicata Does Not Apply12 I f the Appellate Court reverses its opinion that Worthington met the second13 prong of the discovery rule and could invoke the Discovery Rule or Equitable14

Estoppel and Equitable T o l l i n g ~ the Appellate court should rule the Doctrines of16 Res Judicata or Collateral Estoppel does not apply. Those Doctrines should not17 apply on the grounds that the defendants themselves did not make any1819 representations to the district court concerning the identity of the officer who took

Mr. Worthington's plants. There is no person or agency to apply an Estoppel to.21 You can't apply an Estoppel to "not me."22 Without any identities of a seizing officer or seizing agency ever being2324 established an Estoppel simply cannot apply. "An Estoppel must be mutual and

cannot be determined in absence from the controversy" Owens v. Kuro, 56 Wn.2d26

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564,568,354 P.2d 696 (1960).By the defendants own admission, the identity of the seizing officer or the

seizing agency has never been disclosed and has always been absent from thecontroversy. Therefore, for those reasons and the other reasons argued inWorthington's briefs, Collateral Estoppel and Res Judicata do not apply.

v. CONCLUSIONBased on the foregoing, and in the interest of consistency and fair play

Worthington respectfully requests the Washington State Court ofAppealsreconsiders and reverses its opinion signed on September 23, 2013.Respectfullysubmitted this 25th day ofSeptember 2013

BY ~ L l G ~ & JJohn Worthington4500 SE 2ND PL.Renton W A.98059

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Certificate of ServiceI certify that on the date and time indicated below, I caused to be served viaemail, a true and complete copy of the MOTION TO RECONSIDER, to theattorneys of record in this case.

ROBERT CHRISTIE 2100 WESTLAKE AVENUE N SUITE 206 SEATTLE. WA.981 09 206-957-9669 [email protected] MARK KOONTZ

TH345 6 STREET, SUITE 600 BREMERTON, WA. 98337 360-473-5161 [email protected] STEWART ESTES 800 FIFTH AVENUE. SUITE 4141 SEATTLE, WA. 98104-3175 206-623-8861 [email protected] CROFT 800 FIFTH AVENUE, SUITE 2000 SEATTLE. WA. 98104-3188 206-464-7352 [email protected]

I declare under penalty ofperjury under the laws of the United States thatthe foregoing is True and correct.Respectfully executed on this 25th day of September, 2013

BY ; j L ( A J a t I ~'John Worthington" 4500 SE 2ND PL.

Renton WA.98059

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motion to reconsider worthington v wa ag et al

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