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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- I
Appellant,
v.
MOTION TO RECONSIDER
WASHINGTONSTATEATTORNEY
GENERAL ET AL,
Respondents,
I. Identify of Moving Party
Appellant John Worthington, 4500 SE 2ND PL ofRenton Washington
respectfully asks for the relief designated in Part 2.
II. Statement of Relief Sought
The Appellant respectfully requests the Washington State Court ofAppeals
to reconsider its Unpublished Opinion dated September 23,2013, and grant
Worthington's request for remand or grant Worthington ajudgment in his favor.
[J COpy
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m. Facts Relevant to Motion
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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
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limitations. The Appellate Court did not rule on Res Judicata or Collateral
6 Estoppel. On page 6 ofthe opinion, the Appellate court ruled that Worthington did
7 not meet any of the two prongs required to invoke the discovery rule. Worthington
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respectfully argues otherwise. Also on page 6 and 7 ofthe opinion, the Appellate
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Court ruled Equitable Estoppel and Equitable Tolling did not apply because
11 Worthington could not prove Bjomberg was a federal agent. Worthington
12 respectfully argues he only had to prove Bjomberg acted in bad faith. Worthington
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also argues there is no defense for Collateral Estoppel or Res Judicata available,
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because there has never been any officer or agency that has admitted to the
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IV. Grounds for Relief and Argument
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A. The Discovery Rule Applies
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The Appellate Court appeared to rule Worthington did not meet either prong
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ofthe Discovery Rule. Worthington respectfully argues that he did meet the second
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prong required to invoke the Discovery Rule. The second prong of the criteria
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24 required to invoke the Discovery Rule as identified in the Appellate court's
decision was:
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Or (2) Show that the defendants breached an affirmative duty to
disclose 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 the
material fact of who seized property and who was obligated to proceed with
forfeiture proceedings which were deemed commenced by the seizure.
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Worthington relied upon the Washington State Supreme Court En Bane
ruling in Washington. Mut. Sav. Bank v. Hedreen, 125 Wn.2d 521,526,886 P.2d 1
121 (1994). (Citing Oates v. Taylor, 31 Wn.2d 898, 904, 199 P.2d 924 (1948), and
argued the defendants breached their duty under RCW 69.50.505 (3) to disclose
the material fact ofwho seized his property.
The Washington State Court of Appeals for Division I also relied on that
same case law in Delta Development Company v. Bob Hsiyuan Yeh (2002),
which was authored by one ofthe panel members in this case, the Honorable
Judge Mary K. Becker who wrote the following:
In addition, where a party has a duty to disclose a fact, the
suppression ofthat fact is tantamount to an affIrmative misrepresentation.
Crisman v. Crisman, 85 Wn. App. 15,22,931 P.2d 163 (1997); Washington
Mut. 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 party
is 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) ofthis 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 facts
known to him and not known to the other, silence) or concealment in violation of
this duty with intent to d ~ c e i v e will amount to fraud as being a deliberate suppression
ofthe truth and equivalent to the assertion of a falsehood. Oates v. Taylor, 31 Wn.2d
898,902-03, 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 to
conduct seizure forfeitures pursuant to RCW 69.50.505 (3), the defendants
reasoned they did not have to follow the statute based on the belief that
Worthington was not charged with a crime. Indeed to this day Worthington still
does not know who actually seized his property. The Washington State Court
of Appeals for Division I failed to rule properly on the legislative intent of RCW
69.50.505 (3), or argue how it is now a discretionary statute after property is
seized. For their part the Respondents have admitted they violated RCW 69.50.505
The Appellate Court also failed to notice that when forfeiture had taken
place, the 15 notice of intent to seize pursuant to RCW 69.50.505 (3) was not filed
as the defendants all remained silent. This act also represents a failure to disclose a
2 The law imposed upon the defendants was RCW 69.50.505 (3).The defendants admitted
numerous times they did not abide by RCW 69.50.505 (3), despite signing Interlocal
Agreement contracts declaring all seizure forfeitures would be conducted under RCW
69.50.505. (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 ofthe
Respondents' response brief.
4 Page 14, 15 and 44 ofthe Respondents response brief.
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1 required fact which is required for forfeiture and also triggers the Discovery Rule.
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The author of this disputed opinion, the Honorable Judge Ronald E. Cox, along
4 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 Drug
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Task Force v. Real Property Known as 20803 Poplar Way, 150 Wash.App. 387,
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8 208 P.3d 1189 (2009).That Court defmed a right to be heard in seizure forfeiture
9 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, as
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we must, it is clear that the legislature intended that notice and an
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opportunity to be heard are bedrock principles underlying this statute.
Forfeiture of the interests ofYatin and Vijay on this record does violence to
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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 allow
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17 Worthington to be heard. Although the pro se Worthington is no Hunter Thompson
18 or Billy Morelli, Worthington did rely on the same case law identified in Bruett v.
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Real Property Known as 18328 11th Ave. N.E 93 Wash.App. 290,968 P.2d 913
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(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 panel
23 acknowledged Bruett case law and what was at that time "Bedrock Principles" of
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RCW 69.50.505 (3). The Pro Se Worthington can only pray the two judges on this
26 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), now
authoring and concurring inconsistently with that decision in this case, be fair and
apply those same" Bedrock Principles."
As shown above the Appellate Court erred when ruling Worthington's
arguments did not invoke the second prong of the Discovery Rule, and also erred
by deciding that Worthington did not identify any issue of genuine fact.
B. Worthington showed and proved the issue of genuine fact
The issue of genuine fact is whether WEST NET or TNET violated their
duty under RCW 69.50.505 (3). Worthington not only identified that as an issue of
genuine fact to be decided by the trier of fact, Worthington proved that fact when
he 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 for
summary judgment if not for the unequal application of the "Bedrock Principles"
of Washington State Seizure Forfeiture laws outlined in RCW 69.50.505 (3). The
Appellate Court has ignored those "Bedrock Principles" and has given the
Respondents an extremely charitable decision which achieves an absurd result
where a group of law enforcement agencies can; (1) show up at your door without
a copy ofthe 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 it Courts are not supposed to be interpreting
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2 a statute that leads to an absurd result (See SEIU Healthcare 775NW v. Gregoire,
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168 Wn.2d 593,598-99,229 P.3d 774 (2010).
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This is not the Wild West and we do have laws in this state or specifically
6 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 this
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decision without the identification of any case law that supports this new
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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 of
12 Schneider, 173 Wash.2d 353,363,268 P.3d 215 (2011). Clearly, the Court of
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Appeals for Division I did not properly give Effect to the "plain meaning" ofRCW
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69.50.505 (3) and carry out its legislative intent
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C. Equitable Estoppel and Equitable Tolling Applies
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The Appellate Court also erred when it ruled Equitable Estoppel did not
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19 apply. Here a factual mistake by the Appellate Court explains Worthington tried to
invoke Equitable Estoppel & Equitable Tolling based on Bjomberg not being a
21 federal agent, when Worthington argued Bjomberg acted in bad faith. Bjomberg
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never provided a federal property seizure report after WEST NET picked up the
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24 state's Kitsap County Superior Court paper work and allegedly left Worthington's
property. Until Bjomberg can provide such a federal property seizure report he
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will continue to be acting in bad faith, since WEST NET did not claim to be
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2 seizing Worthington's property for Bjomberg. Furthermore, WEST NET will also
3 continue to be acting in bad faith until they renew a property seizure report they
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previously retracted and removed from the premises of the initial raid.
As shown above Worthington respectfully argues Equitable Estoppel and
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7 Equitable Tolling should have been invoked because neither agency involved acted
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in good faith by following the applicable "Bedrock Principles" ofRCW 69.50.505
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(3).
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D. Collateral Estoppel and Res Judicata Does Not Apply
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Ifthe Appellate Court reverses its opinion that Worthington met the second
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prong ofthe discovery rule and could invoke the Discovery Rule or Equitable
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Estoppel and Equitable T o l l i n g ~ the Appellate court should rule the Doctrines of
16 Res Judicata or Collateral Estoppel does not apply. Those Doctrines should not
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apply on the grounds that the defendants themselves did not make any
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19 representations to the district court concerning the identity ofthe officer who took
Mr. Worthington's plants. There is no person or agency to apply an Estoppel to.
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You can't apply an Estoppel to "not me."
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Without any identities of a seizing officer or seizing agency ever being
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24 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.2d
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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 the
controversy. Therefore, for those reasons and the other reasons argued in
Worthington's briefs, Collateral Estoppel and Res Judicata do not apply.
v. CONCLUSION
Based on the foregoing, and in the interest of consistency and fair play
Worthington respectfully requests the Washington State Court ofAppeals
reconsiders and reverses its opinion signed on September 23, 2013.Respectfully
submitted this 25
th
day of September 2013
BY
~ L l G ~ & J
John Worthington
4500 SE 2ND PL.
Renton W A.98059
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Certificate of Service
I certify that on the date and time indicated below, I caused to be served via
email, a true and complete copy ofthe MOTION TO RECONSIDER, to the
attorneys ofrecord in this case.
ROBERT CHRISTIE
2100 WESTLAKE AVENUE N . SUITE 206
SEATTLE. W A.981 09
206-957-9669
bob@christielawgroup.com
MARK KOONTZ
TH
345 6 STREET, SUITE 600
BREMERTON, WA. 98337
360-473-5161
mark.koontz@ci.bremerton.wa.us
STEWART ESTES
800 FIFTH AVENUE. SUITE 4141
SEATTLE, WA. 98104-3175
206-623-8861
sestes@kbmlawyers.com
ALLISON CROFT
800 FIFTH AVENUE, SUITE 2000
SEATTLE. WA. 98104-3188
206-464-7352
ailisonc@atg.wa.gov
I declare under penalty of perjury under the laws ofthe United States that
the foregoing is True and correct.
Respectfully executed on this 25th day of September, 2013
BY
'John Worthington
" 4500 SE 2ND PL.
Renton WA.98059
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