Universal Life Church Monastery Storehouse, Appellant V. R.l.k., Llc, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
UNIVERSAL LIFE CHURCH ) No. 80505-3-I
MONASTERY STOREHOUSE, a )
Washington corporation; and )
VISIONARY VENTURES, INC., a )
Washington corporation, )
)
Appellants, )
)
v. )
)
R.L.K., LLC, a Washington limited ) UNPUBLISHED OPINION
liability company; RODNEY KRAFKA, )
an individual residing in the state of )
Washington, and FEREYDOON )
ABOOSAIDI, an individual residing in )
the state of Washington, )
)
Respondents. )
)
VERELLEN, J. — Several Washington decisions make passing references to
a possible award of attorney fees for bad faith prelitigation misconduct, but in
application, that theory is narrow and circumscribed. Where the bad faith conduct
involves a prelitigation disregard of judicial authority, then, akin to contempt, a
court may impose attorney fees. Otherwise, the doctrine only applies to a short list
of five causes of action which inherently involve a form of bad faith allowing an
award of attorney fees as damages.

No. 80505-3-I/2
2
Here, Universal Life Church Monastery Storehouse prevailed at trial on the
majority of its claims against Rodney Krafka, R.L.K., LLC, but Universal Life
Church does not allege any prelitigation disregard of judicial authority, and none of
the five causes of action were implicated. The trial court did not err in rejecting
Universal Life Church’s request for attorney fees for bad faith prelitigation
misconduct. And Universal Life Church failed to establish a statutory or equitable
indemnity basis for an award of attorney fees.
Therefore, we affirm.
FACTS
In 2013, Rodney Krafka leased a portion of a commercial building and one
parking space behind the building from Fereydoon Aboosaidi. In 2016, Krafka
transferred his 2013 lease to R.L.K., LLC.
In 2017, Universal Life Church leased the remainder of the building from
Aboosaidi, including the mezzanine and the kitchen, together with the rest of the
parking lot behind the building. Visionary Ventures Inc. (VVI), the owner of a
neighboring business, entered into an agreement with ULC which permitted VVI to
use ULC’s leased space. George Freeman was the president of the board of ULC
and the president of VVI.1
ULC and R.L.K. had ongoing disputes largely because R.L.K. often parked
on ULC’s leased space.
1 We refer to Rodney Krafka and R.L.K., LLC collectively as “R.L.K.” and we
refer to Universal Life Church and Visionary Ventures Inc. collectively as “ULC.”

No. 80505-3-I/3
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In March 2017, R.L.K. sued Aboosaidi and Freeman for tortious
interference with R.L.K.’s parking rights and business and civil conspiracy. ULC
filed a motion to intervene, which the trial court denied.
On June 28, 2017, ULC commenced the present action against R.L.K. and
Aboosaidi. ULC’s initial complaint alleged claims for quiet title and ejectment,
declaratory relief, injunctive relief, libel and slander, tortious interference, and
fraud. The complaint did not assert any claim against Aboosaidi, but he was
named as an additional party. In its prayer for relief, ULC requested “an award of
attorney’s fees and legal costs against R.L.K. and Krafka in an amount to be
determined by the Court.”2
On March 18, 2018, ULC filed an amended complaint adding claims for
damages against R.L.K. for vandalism and trespass and against Aboosaidi for
failing to take legal action against R.L.K. and violating ULC’s covenant of quiet
enjoyment. The prayer for relief maintained ULC’s request for attorney fees.
In August 2019, after a five-day bench trial, the court ruled in favor of ULC
as to most of its claims. ULC filed a motion for an award of attorney fees based
upon RCW 4.24.630, equitable indemnity, and the court’s inherent equitable
powers “for prevailing on their claim of defamation against Krafka.”3 On August
21, the trial court issued detailed findings of fact and conclusions of law but did not
2 Clerk’s Papers (CP) at 8.
3 CP at 2579-86.

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4
make any findings or conclusions supporting a statutory or equitable claim for
attorney fees.
The trial court awarded defamation damages to ULC for $75,000 and to VVI
for $75,000; a permanent injunction against R.L.K. for trespassing; a declaratory
judgment recognizing ULC’s exclusive possession of ULC’s leased premises; an
order ejecting R.L.K. from ULC’s leased premises and quieting title in ULC’s favor;
and $54,176 in damages against R.L.K. for trespass.4 The court dismissed
Aboosaidi’s claim for forfeiture and ejectment but awarded Aboosaidi attorney fees
against R.L.K. based upon the fee provision in their lease agreement.5
The court denied ULC’s request for attorney fees, finding that “[p]laintiffs did
not adequately plead the basis of their claim for fees to put [d]efendants R.L.K. on
notice, and [p]laintiffs are not entitled to fees under statute or in equity.”6 The
court dismissed “[a]ll other claims, counterclaims, and cross-claims” with
prejudice.7
ULC appeals.
4 CP at 562-92, 596-600.
5 R.L.K. initially appealed, but R.L.K. later moved to withdraw its appeal,
which this court granted.
6 CP at 3076-78.
7 CP at 592.

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ANALYSIS
I. Bad Faith Prelitigation Misconduct
ULC contends it is entitled to attorney fees “for prevailing on [its] claim of
defamation against [R.L.K.]” due to R.L.K.’s bad faith prelitigation misconduct.8
We review a claim for attorney fees under a theory of bad faith prelitigation
misconduct de novo.9 We follow the American rule requiring a contract, statute, or
equitable basis for an award of attorney fees.10
Bad faith can warrant a claim for attorney fees.11 Several Washington
cases mention the concept of attorney fees based upon bad faith prelitigation
misconduct, but few courts have applied that doctrine and even then, only in
narrow circumstances.12 One way to establish bad faith is through prelitigation
misconduct. “Pre-litigation misconduct refers to ‘obdurate or obstinate conduct
that necessitates legal action’ to enforce a clearly valid claim or right.”13
The court in Rogerson Hiller v. Port of Port Angeles clarified that “[t]he
award of attorney’s fees for prelitigation misconduct can be compared to a
8 Appellant’s Br. at 24.
9 Greenbank Beach & Boat Club, Inc. v. Bunney, 168 Wn. App. 517, 524-28,
280 P.3d 1133 (2012).
10 City of Seattle v. McCready, 131 Wn.2d 266, 273-74, 931 P.2d 156 (1997).
11 Greenbank, 168 Wn. App. at 524-28.
12 See Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927,
982 P.2d 131 (1999) (little precedent for what constitutes bad faith as basis for
attorney fees).
13 Rogerson, 96 Wn. App. at 927 (quoting Jane P. Mallor, Punitive Attorneys’
Fees for Abuses of the Judicial System, 61 N.C.L. REV. 613, 632 (1983)).

No. 80505-3-I/6
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‘remedial fine[ ] imposed by a court for civil contempt’ in that the party acting in
bad faith is wasting private and judicial resources.”14 And consistent with this
observation in Rogerson, the court in Greenbank Beach and Boat Club v. Bunney
noted that “[i]n general, a court may resort to its inherent powers only to protect
the judicial branch in the performance of its constitutional duties, when reasonably
necessary for the efficient administration of justice.”15 And in Greenbank, after
observing that prelitigation misconduct refers to “obdurate or obstinate” conduct
that necessitates legal action to enforce a clearly valid claim or right, the court
stated:
Prelitigation misconduct may serve as the basis for an award
of fees in the case of “enforcement of judicial authority, as where
misconduct of a party amounting to contempt of court has caused
the opposing party to incur counsel fees, or where a person retains
possession of property after a judicial determination of the wrongful
character of his possession, thus forcing the party wronged to the
expense of further proceedings to recover possession or otherwise
enforce his rights.”[16]
The Greenbank court held, “Prelitigation misconduct, to be sanctionable by an
order to pay the other party’s attorney fees, necessarily involves some disregard of
judicial authority.”17 Here, ULC makes no argument that R.L.K. engaged in
prelitigation misconduct in disregard of judicial authority.
14 96 Wn. App. at 918, 928, 982 P.2d 131 (1999) (quoting Mallor, Punitive
Attorneys’ Fees, supra at 633).
15 168 Wn. App. 517, 525, 280 P.3d 133 (2012).
16 Id. at 526 (quoting Guay v. Bh. Bldg. Ass’n, 87 N.H. 216, 177 A. 409, 413
(1935)).
17 Id.

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The only other arguable category of bad faith prelitigation misconduct
attorney fees are five causes of action that allow an award of attorney fees as
damages. Those causes of action are limited to malicious prosecution, wrongful
garnishment, wrongful attachment, actions to dissolve a wrongful temporary
injunction, and slander of title.18
The court in Rorvig v. Douglas added slander of title to this short list, by
focusing on the Restatement (Second) of Torts § 633.19
The Restatement provides:
(1) The pecuniary loss for which a publisher of injurious falsehood is
the subject to liability is restricted to
(a) the pecuniary loss that results directly and immediately
from the effect of the conduct of third persons, including impairment
of vendibility or value caused by disparagement, and
(b) the expense of measures reasonably necessary to
counteract the publication, including litigation to remove the doubt
cast upon vendibility of value of disparagement.[20]
Specifically, the court in Rorvig reasoned that slander of title is a type of the
general tort of publication of an injurious falsehood, which is generally limited to
disparagement of property.21 The court held that “[a]ttorney fees incurred in
18 Rorvig v. Douglas, 123 Wn.2d 854, 863-64, 873 P.2d 492 (1994).
19 123 Wn.2d 854, 863-64, 873 P.2d 492 (1994).
20 RESTATEMENT (SECOND) OF TORTS: PECUNIARY LOSS § 633 (Oct. 2020
Update).
21 “The general principle stated in this [s]ection is applied chiefly in cases of
the disparagement of property in land, chattels or intangible things or of their quality.”
RESTATEMENT (SECOND) OF TORTS: PECUNIARY LOSS § 623A cmt a. (Oct. 2020
Update).

No. 80505-3-I/8
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removing the cloud from the title and restoring vendibility are necessary expenses
of counteracting the effects of slander.”22
Here, none of the causes of action recognized in Rorvig apply. ULC only
pleaded claims of quiet title and ejectment, declaratory relief, injunctive relief, libel
and slander, tortious interference, and fraud.
First, ULC relies on R.L.K.’s defamatory statements as the bad faith
prelitigation misconduct. But defamation is not one of the five causes of action
recognized in Rorvig.
Second, at oral argument ULC emphasized fraud by R.L.K. It is especially
troublesome that in 2016, R.L.K. forged a purported 2012 lease giving R.L.K. the
right to occupy the mezzanine ultimately leased to ULC. But fraud is not one of
the causes of action recognized as a form of bad faith prelitigation misconduct.
And neither the findings of fact nor the limited record before us reveals any
actionable use of the forged lease by R.L.K.
Even if we apply the reasoning from Rorvig and analyze ULC’s claims
under the Restatement (Second) of Torts § 623A’s general principle of liability for
publication of an injurious falsehood, none of ULC’s causes of actions qualify as
an injurious falsehood disparaging property.23 And the trial court made no finding
of publication as required by Restatement (Second) of Torts § 623A. None of the
22 Rorvig, 123 Wn.2d at 863.
23 RESTATEMENT (SECOND) OF TORTS: PECUNIARY LOSS § 623A (Oct. 2020
Update); Rorvig, 123 Wn.2d at 863-64.

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five causes of action qualifying for an award of bad faith prelitigation misconduct
fees applies here.
Third, at the core of ULC’s arguments is the troublesome nature of R.L.K.’s
many malicious and fraudulent acts. But the standard urged by ULC would
necessarily require an award of attorney fees for any equitable claim based on
fraud or on many intentional torts. Such an extension of prelitigation misconduct
as a basis for attorney fees would erode the American rule. As recognized in
Greenbank, “‘[t]o allow an award of attorney fees based on bad faith in the act
underlying the substantive claim would not be consistent with the rationale behind
the American rule regarding attorney fees.’”24
ULC does not establish that the narrow doctrine for an award of attorney
fees based upon bad faith prelitigation misconduct applies here.
II. RCW 4.24.630
ULC contends that it is entitled to attorney fees under RCW 4.24.630 for
prevailing on its claim of statutory trespass.25
24 Greenbank, 168 Wn. App. at 527 (quoting Shimman v. Int’l Union of
Operating Eng’rs, Local 18, 744 F.2d 1226, 1231 (1984)). ULC also relies on an
unpublished decision holding that a neighbor using a path across the adjacent
owners’ property had acted in bad faith, allowing an award of attorney fees in a quiet
title action. Gunn v. Riely, 200 Wn. App. 1039 (2017) (unpublished). But Gunn does
not address the established limitations on bad faith prelitigation misconduct as a
ground for attorney fees.
25 RCW 4.24.630 is often referred to as the “waste statute.” See, e.g., Porter
v. Kirkendoll, 194 Wn.2d 194, 211, 449 P.3d 627 (2019).

No. 80505-3-I/10
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We review whether a statutory provision authorizes an award of attorney
fees de novo.26
RCW 4.24.630(1) establishes liability for “(1) removing valuable property
from the land, (2) wrongfully causing waste or injury to the land, and (3) wrongfully
injuring personal property or real estate improvements on the land.”27 The statute
includes recovery for “reasonable attorneys’ fees and other litigation-related
costs.” The statute is designed to prevent the “wrongful invasion of a right in land
that is protected by RCW 4.24.630.”28
Here, ULC did not plead a claim under RCW 4.24.630.29 The trial court
also did not enter any findings of fact or conclusions of law under RCW 4.24.630.
The court’s conclusions of law containing references to trespass30 are made only
in the context of common law trespass. For example “[t]he court has concluded
26 Tradewell Grp. Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053 (1993).
27 Clipse v. Michels Pipeline Const., Inc., 154 Wn. App. 573, 578-79, 225 P.3d
492 (2010).
28 Colwell v. Etzell, 119 Wn. App. 432, 438, 81 P.3d 895 (2003).
29 In ULC’s first amended complaint, ULC pleaded claims for quiet title and
ejectment; declaratory relief; injunctive relief; libel and slander; tortious interference;
fraud; and damages. ULC concedes that it did not plead a claim under
RCW 4.24.630. In its opening brief, ULC argues that the trial court entered
declaratory relief in favor of ULC under CR 57 and RCW 7.24, neither of which ULC
pleaded in its complaint. And the trial court entered an order ejecting R.L.K. from the
premises and an order quieting title against R.L.K. for exclusive possession of the
property based on RCW 7.28.010, a statute that ULC also did not plead. ULC
contends that its “request for attorney’s fees based on RCW 4.24.630 . . . should be
treated no differently.” Appellant’s Br. at 17. But ULC provides no authority that
would compel the trial court to consider RCW 4.24.630 in this setting.
30 See CP at 587-88.

No. 80505-3-I/11
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after hearing all of the evidence that Krafka and R.L.K. trespassed upon ULC’s
property and converted ULC’s property to their own use.”31 The conclusions of law
do not mention statutory trespass or RCW 4.24.630. And common law trespass
does not trigger an award of attorney fees under RCW 4.24.630. Because ULC
failed to plead a claim of statutory trespass and the court did not enter findings or
conclusions under RCW 4.24.630, ULC is not entitled to attorney fees under that
statute.32
III. Equitable Indemnity
ULC contends that it is entitled to attorney fees under equitable indemnity
for prevailing on its trespass claim. We review a claim for attorney fees under a
theory of equitable indemnity de novo.33
Equitable indemnity, also known as the ABC rule, allows an innocent party
to recover attorney fees from a wrongdoer for their wrongful act or omission.34 A
plaintiff, “B,” must prove “(1) a wrongful act or omission by A toward B; (2) such act
or omission exposes or involves B in litigation with C; and (3) C was not connected
with . . . the wrongful act or omission of A toward B.”35
31 CP at 590.
32 To the extent ULC contends it satisfied the second and third grounds for
statutory trespass under RCW 4.24.630, its failure to allege or obtain findings
supporting a claim under RCW 4.24.630 preclude an award of attorney fees under
that statute.
33 Newport Yacht Basin Ass’n of Condo. Owners v. Supreme Nw., Inc., 168
Wn. App. 86, 105, 285 P.3d 70 (2012).
34 Tradewell, 71 Wn. App. at 126-27.
35 Manning v. Loidhamer, 13 Wn. App. 766, 769, 538 P.2d 136 (1975).

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Specifically, “‘where the acts or omissions of a party to an agreement or
event have exposed one to litigation by third persons—that is, to suit by persons
not connected with the initial transaction or event—the allowance of attorney’s fees
may be a proper element of consequential damages.’”36 But a plaintiff “may not
recover attorney fees under a theory of equitable indemnity if, in addition to the
wrongful act or omission of A, there are other reasons why B became involved in
litigation with C.”37 The ABC rule contemplates equitable recovery for a “third
party [that is] dragged into litigation by other parties.”38 “[I]n order to award fees
under the theory of equitable indemnification, the evidence must satisfy all [three]
elements of the doctrine.”39
36 Evanston Ins. Co. v. Penhall Co., 13 Wn. App. 2d 863, 879, 468 P.3d 651
(2020) (citing Armstrong Constr. Co. v. Thomson, 64 Wn.2d 191, 195, 390 P.2d 976
(1964)), review denied, 196 Wn.2d 1040, 479 P.3d 713 (2021).
37 Tradewell, 71 Wn. App. at 128.
38 Lamar Outdoor Advertising v. Harwood, 162 Wn. App. 385, 397, 254 P.3d
208 (2011); see also Aldrich & Hedman, Inc., v. Blakely, 31 Wn. App. 16, 19, 639
P.2d 235 (1982) (“[w]here the natural and proximate consequence of the acts or
omissions of a party to an agreement or an event have exposed one to litigation with
a third person, equity may allow attorney’s fees as an element of consequential
damages.”); Manning, 13 Wn. App. at 772 (“‘where the wrongful act of the defendant
has involved the plaintiff in litigation with others or placed him in such relation with
others as makes it necessary to incur expense to protect his interest, such costs and
expenses, including attorneys’ fees, should be treated as the legal consequences of
the original wrongful act and may be recovered as damages’”) (quoting 22 AM. JUR.
2D Damages, § 166 (1965)); Tradewell, 71 Wn. App. at 126 (“where the natural and
proximate consequences of a defendant’s wrongful act put the plaintiff in litigation
with others and the action generating the expense is instituted by a third party not
connected with the original transaction.”).
39 Tradewell, 71 Wn. App. at 126-27.

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Here, it is undisputed that R.L.K. trespassed on ULC’s leased property and
that the landlord, Aboosaidi, was not connected to R.L.K.’s trespass.
ULC argues that it can recover under the ABC rule because it, “B,” had “no
choice” but to sue its landlord Aboosaidi, “C,” when it also sued R.L.K., “A.” But
ULC is not a third party that was dragged into litigation. ULC commenced this
litigation against R.L.K. and Aboosaidi in an attempt to efficiently resolve a variety
of claims in one proceeding. ULC made a pragmatic decision to initiate litigation,
which is distinct from ULC being “dragged into” litigation with Aboosaidi because of
the wrongful acts or omissions of R.L.K. Because ULC commenced this action
and was not a party unwillingly brought into the litigation by another party, the ABC
rule is inapplicable.
We need not address the trial court’s alternative rationale that ULC did not
give adequate notice of its theories for an award of attorney fees, or whether
attorney fees as a form of damages was adequately presented to the court prior to
judgment.
IV. Fees on Appeal
ULC contends that it is entitled to attorney fees for prevailing on its statutory
and equitable claims. But ULC is not the prevailing party.
R.L.K. argues that it is entitled to attorney fees under RAP 18.9 because
ULC’s claims for attorney fees were frivolous. An appeal is frivolous if it “presents
no debatable issues and is so devoid of merit that there is no reasonable

No. 80505-3-I/14
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possibility of reversal.”40 Because ULC raised debatable issues on appeal, ULC’s
appeal is not frivolous.
R.L.K. contends that it is entitled to costs under RCW 4.84.080.
RCW 4.84.080 provides that the prevailing party on appeal is entitled to two
hundred dollars, sometimes referred to as “statutory attorney fees.”41 Because
R.L.K. is the prevailing party on appeal, R.L.K. is entitled to costs on appeal,
including statutory attorney fees of $200 under RCW 4.84.080, upon R.L.K.’s
compliance with RAP 14.4(a).
Therefore, we affirm.
WE CONCUR:
40 Streater v. White, 26 Wn. App. 430, 434, 613 P.2d 187 (1980).
41 RCW 4.84.080; 14A DOUGLAS J. ENDE, WASHINGTON PRACTICE: CIVIL
PROCEDURE § 36:17, at 677-78 (2018).