Opinion
No. 63156-0-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-2-16038-6, William L. Downing, J., entered January 9, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Schindler, C.J., and Grosse, J.
Nathan and Bunthoeun Yin appeal the trial court's order denying their motion to stay all proceedings in a civil case based on a pending criminal investigation. Because the Yins fail to demonstrate any abuse of discretion in the trial court's decision to impose certain limits on discovery and defer consideration of a limited stay until a later hearing, we affirm.
Western Cartage, Inc., Seattle Bulk Rail Station, Inc., Washington Transportation, Inc., and Seattle Transload, Inc., are related corporations operating in the Port of Seattle. Between 2002 or 2003 and 2008, the companies employed Nathan Yin as an accountant and his wife Bunthoeun in clerical or administrative positions. In February 2008, the companies' Controller investigated a vendor's inquiry and found evidence that Nathan Yin embezzled a total of $819,135.91 from the companies over the course of several years. President Eric Rangeloff confronted Yin, who admitted to having embezzled $57,000 and to having a gambling problem. On February 11, Yin submitted a statement to the Port of Seattle Police Department, admitting to embezzling approximately $65,000 from the companies by cashing several fraudulent checks beginning in the summer of 2007. On February 19, police arrested and administratively booked Yin for investigation of theft.
On May 9, 2008, the companies filed a suit for damages against the Yins. In an amended complaint filed September 18, 2008, the companies alleged violations of the Washington Criminal Profiteering Act, Chapter 9A.82 RCW, as well as conversion by theft and fraud, and conspiracy to defraud. On December 23, 2008, the companies obtained an order setting a hearing on January 23, 2009, to show cause as to the issuance of a prejudgment writ of attachment. The companies also moved for partial summary judgment for $819,135.91 as well as treble damages, attorney fees and expenses under the Criminal Profiteering Act, RCW 9A.82.100, designating a hearing date of January 23, 2009. The companies scheduled depositions for the Yins for January 15, 2009.
On December 31, 2008, the Yins filed a motion to stay all proceedings in the civil matter until the resolution of expected criminal charges. The companies responded, arguing that the court should deny the motion for a stay or narrowly tailor a stay of discovery to preserve the Yins' Fifth Amendment rights. On January 9, 2009, the trial court ordered:
That Defendants' Motion to Stay Proceedings is DENIED in all respects, except that:
A. The Court defers ruling on defendants' Motion to Stay Proceedings so far as it relates to the amount (only) sought in plaintiff's Motion for Partial Summary Judgment, to allow the Court hearing that motion to conduct the necessary balancing test under King v. Olympic Pipe Line, 104 Wn. App. 338, 16 P.3d 45 (2000) to determine whether to grant defendants a stay as to that limited extent, and:
B. Plaintiffs' deposition of defendants on January 15, 2009 shall be limited to examination concerning defendants assets and liabilities necessary for preparation for the prejudgment writ of attachment hearing on January 23, 2009.
C. These limitations are imposed without prejudice to plaintiffs' and defendants' right to seek modification of the stay at such time as may be appropriate.
Clerk's Papers at 34.
On January 23, 2009, the trial court granted the companies' motion for partial summary judgment and directed issuance of a prejudgment writ of attachment. On February 5, 2009, the companies requested entry of final judgment and dismissal of all remaining claims and filed a motion to fix the amount of attorney fees. On February 12, 2009, the trial court entered a final judgment against the Yins as well as an award of attorney fees.
The Yins appeal only the January 9, 2009 order denying the motion to completely stay proceedings. Although the Yins identified the summary judgment order and final judgment in their notice of appeal, they have not assigned any error or presented any argument in their brief regarding those orders. Accordingly, we review only the January 9 order. The companies request attorney fees on appeal.
RAP 10.3(g).
MOTION TO STAY PROCEEDINGS
The Yins claim that the trial court abused its discretion by denying their motion to completely stay proceedings in the civil matter until the criminal case had been charged and tried. We disagree.
The court has inherent power to stay proceedings where the interest of justice so requires. We review a court's determination on a motion to stay proceedings or grant a protective order for abuse of discretion. "Whether a court abuses its discretion in controlling discovery depends on the interests affected and the reasons for and against the decision."
King v. Olympic Pipeline Co., 104 Wn. App. 338, 350, 16 P.3d 45 (2000).
Id. at 348.
Id.
The Yins contend that the decision in King v. Olympic Pipeline Co. required the court to grant their motion for a stay of the entire civil proceeding. But as this court stated in that opinion, "The mere pendency of related civil and criminal proceedings does not prevent the civil proceedings from going forward." When ruling on a stay request, courts consider such factors as the extent to which a defendant's Fifth Amendment rights are implicated; the similarities between the civil and criminal cases; the status of the criminal case; the potential prejudice to plaintiffs of a delay; the burden imposed on defendants; court convenience; and the interests of nonparties and the public. In balancing these factors on a case by case basis, courts have available a wide array of options.
Id. at 352.
Id. at 352-53.
Id. at 353.
Here, while denying the Yins' motion for a stay of all proceedings, the trial court specifically addressed the particular proceedings actually pending at the time of the motion for a stay in the January 9 order. The trial court imposed significant limits on discovery by restricting the companies' scheduled depositions of the Yins to an examination of their assets and liabilities necessary to the motion for prejudgment writ of attachment. The Yins do not assign error to this portion of the order or explain how it was inadequate to preserve their Fifth Amendment rights or how it imposed improper burdens on them.
Regarding the pending summary judgment motion, the trial court merely deferred ruling on a more limited stay relating to the amount sought in the motion to allow the judge hearing the motion to balance the factors identified in King v. Olympic Pipeline. The order did not prevent the Yins from arguing at the scheduled summary judgment hearing that the relevant factors weighed in favor of a limited stay of proceedings. The Yins have not provided a transcript of the summary judgment hearing or assigned error to any ruling made at that hearing. Contrary to the Yins' claim, the trial court's January 9 order did not force Yin to choose between defending himself in the imminent criminal action and participating in the civil action, but specifically provided certain protections as well as the possibility of additional relief.
Moreover, the Yins' repeated claim that the January 9 order negatively impacted their Fifth Amendment rights is particularly unpersuasive in light of Yin's prior admissions to company officials and police that he had embezzled a substantial amount. In sum, the Yins fail to demonstrate that the trial court's decision to provide less protection than a stay of the entire case was unreasonable or based on untenable grounds or reasons.
See, e.g., Federal Sav. and Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (1989) (where defendant had already given partial deposition which provided support for summary judgment motion and nothing prevented him from responding to motion with information that did not tend to incriminate him, any burden on fifth amendment privilege imposed by civil case was negligible.)
ATTORNEY FEES
The companies claim they are entitled to attorney fees under RAP 18.1(a) and RCW 9A.82.100(1)(a). We agree.
A party may recover attorney fees when authorized by a private agreement, statute, or recognized ground of equity. RCW 9A.82.100(1)(a) provides: "A person who sustains injury . . . by an act of criminal profiteering . . . may file an action in superior court for the recovery of damages and the costs of the suit, including reasonable investigative and attorney's fees." The trial court granted the companies' motion for attorney fees under this statute. The companies are also entitled to an award of fees on appeal, subject to compliance with RAP 18.1.
Mellor v, Chamberlin, 100 Wn.2d 643, 649, 673 P.2d 610 (1983).
We affirm the trial court's order and award the companies their attorney fees on appeal, subject to compliance with RAP 18.1(d).
WE CONCUR: