Le & Associates, P.s., Respondent V. Robert Diaz-luong And Lan Thi Nguyen, Appellants

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LE & ASSOCIATES, P.S., a
professional service corporation,
Respondent,
ROBERTO DIAZ-LUONG and
LAN THI NGUYEN, husband and
wife, and the marital community
comprised thereof,
Appellants,
and
ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY,
a foreign corporation, and FARMERS
INSURANCE COMPANY, a foreign
corporation, and GEICO INDEMNITY
COMPANY, a foreign corporation,
Defendants,
v.
EDWARD K. LE and VIENNA T. LE,
Individually and as spouses/partners,
Respondents.
No. 73944-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: September 26, 2016
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TRICKEY, A.C.J. — In this third appeal from litigation spanning nearly a
decade, 	appellants 	Roberto 	Diaz-Luong 	and 	Lan Thi 	Nguyen 	challenge the
dismissal of their counterclaims and third party claims for willful noncompliance
with court orders. We affirm.

No. 73944-1-1/2
FACTS
Most of the pertinent facts and 	procedural history are set forth in our
previous decisions in this case1 and will be repeated here only when necessary
to explain our decision.
Appellants 	are 	attorneys 	formerly 	employed 	by 	the 	law 	firm 	Le 	&
Associates, 	P.S. (the firm). 	In 2007, the firm sued them for quantum meruit,
tortious interference with business expectancy, 	replevin, 	and other causes of
action. 	The firm alleged that when appellants separated from the firm, they
downloaded client files, 	printed hard copies, and used the information to solicit
business in violation of a separation agreement with the firm.
Appellants pleaded counterclaims and third party claims, including claims
for 	unpaid 	wages, 	quantum 	meruit, 	tortious 	interference, 	injunctive 	relief,
replevin, conversion, and embezzlement.
In 2008, the firm obtained a preliminary injunction which, among other
things, 	prohibited 	appellants 	from 	using, 	copying, 	modifying, 	or 	deleting
information in the files or database of the firm. The injunction also required them
to 	identify all computers containing the 	misappropriated client 	list, pay for a
professional to examine all computers and hard drives, and return all hard copies
of any client files to the firm.
1 Le & Assocs., P.S. v. Diaz-Luonq. noted at 157 Wn. App. 1040 (2010); Le & Assocs.
P.S. v. Diaz-Luonq. noted at 169 Wn. App. 1010 (2012).

No. 73944-1-1/3
In 2008 and 2009, the court found appellants in contempt for violating the
terms of the injunction and the court's prior orders.
In 2010, we affirmed the contempt orders. We concluded that the court's
findings were supported by substantial evidence and that the contempt orders
were within the court's discretion. 	We held that monetary sanctions imposed by
the trial court were civil remedial sanctions, not punitive sanctions, and awarded
fees on appeal under RCW 7.21.030(3).
Meanwhile, the firm obtained yet another contempt order for appellants'
continued 	noncompliance 	with 	prior 	orders. 	The 	noncompliance 	included
appellants' failure to timely identify flash drives; lying about their existence; using
data-destroying software to destroy data on the flash drives; violating an order to
refrain from copying, destroying, deleting, or modifying any computer, storage
device, electronic data; failing to identify the computer used to falsify a second
USB (universal serial bus) drive; failing to disclose a computer containing client
data; continuing to possess electronic client files; continuing to possess hard
copies of client files; and failing to pay costs caused by their contempt.
In 	2012, 	we 	upheld 	the 	contempt 	order 	and 	rejected 	appellants'
challenges to the court's findings and sanctions. 	We also awarded fees and
costs on appeal under RCW 7.21.030(3).
In February and April of 2014, the superior court clerk filed motions to
dismiss for want of prosecution. 	Shortly thereafter, appellants requested, and the
court set, a trial date. 	The court issued an amended case schedule and ordered

No. 73944-1-1/4
the parties to engage in alternative dispute resolution (ADR) by March 16, 2015,
or face sanctions.
In March 	2015, the firm and third 	party defendants moved to dismiss
appellants' counterclaims and third party claims, arguing that appellants had not
engaged in ADR and were still not complying with the court's orders. 	The court
granted the motion, stating in pertinent part that appellants'
willful noncompliance with court Orders continues.
. . . The [firm has] proven . . . that in the four years and six
months since the entry of the . . . 2010 Order, and for over two
years and eight months since the Court of Appeals affirmed the
Order, 	defendants 	have 	taken 	no 	actions 	to 	comply 	with 	the
requirements of that Order or the Preliminary Injunction, Contempt
Order, and Sanctions Order. . ..
. . . Defendant's noncompliance with the courts' Orders was
found 	to 	be 	willful 	and 	intentional, 	and 	their 	continued
noncompliance is also willful and intentional.
. . . The court in its Orders . . . imposed a variety of sanctions
... to induce them to comply with the court's Orders. . . . None of
these 	sanctions 	have 	resulted 	in 	defendants' 	compliance.
Defendants have not only willfully refused to comply for more than
six years, but in the interim have engaged in additional violations . .
. . . The court cannot allow this matter to languish indefinitely
with no disposition, waiting for defendants to comply. 	. . . 	The
administration of the court system requires that this case be closed.
Without closure, [the firm] and third-party defendants will be greatly
prejudiced. 	They have incurred hundreds of thousands of dollars in
attorney fees 	which 	have 	not 	been 	paid 	by 	defendants 	....
Defendants' noncompliance with the court's Orders is prejudicial to
the 	interests 	of 	the 	[firm] and 	its 	clients. 	Noncompliance 	is
prejudicial 	to 	[the 	firm's] 	ability 	to 	defend 	against 	defendants'
claims. 	Requiring [the firm] to indefinitely be subject to this lawsuit
pending defendants' compliance with court orders is prejudicial,
expensive and unjust. 	It would be prejudicial to require [the firm]

No. 73944-1-1/5
and third-party defendants to proceed to trial without defendants'
compliance.
... 	No 	lesser sanction 	than 	a 	dismissal 	of defendants'
claims will be effective to close this matter. 	Lesser sanctions have
been tried for years with no effect.^
Citing both its inherent authority to enforce its orders and CR 41, the court
dismissed appellants' counterclaims and third party claims with prejudice and
awarded the firm $129,132.35 in attorney fees.
The 	court 	subsequently 	granted 	the 	firm's 	motion 	to 	dismiss 	its
undetermined 	claims against appellants and 	entered a 	final 	judgment. 	This
appeal followed.
STANDARD OF REVIEW
Courts have discretion to dismiss a lawsuit for noncompliance with a court
order under CR 41(b),3 and for reasons falling within the court's inherent power
to manage its own affairs,4 including dilatoriness other than that described in CR
2 Clerk's Papers (CP) at 292-93.
3 CR 41(b) authorizes dismissal of a claim for failure "to comply with court rules or any
order of the court." 	Will v. Frontier Contrs.. Inc.. 121 Wn. App. 119, 128, 89 P.3d 242
(2004) (dismissal under CR 41(b) for noncompliance with a court order).
4 Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962)
("The authority of a court to dismiss sua sponte for lack of prosecution has generally
been considered an 'inherent power,' governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases."); accord Wagner v. McDonald, 10 Wn. App. 213, 217,
516 P.2d 1051 (1973).

No. 73944-1-1/6
41(b)(1).5 	We 	will 	not 	disturb 	a 	court's 	exercise 	of discretion 	unless 	it is
manifestly unreasonable or based on untenable grounds or reasons. 	Mayer v.
Sto Indus., Inc.. 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
When, as here, the trial court enters findings of fact and conclusions of
law, we review the findings for substantial evidence and the conclusions of law
for sufficient support in the findings of fact. 	Nelson Const. Co. of Femdale, Inc. v.
Port of Bremerton. 20 Wn. App. 321, 326-27, 582 P.2d 511 (1978).
ANALYSIS
Appellants contend the superior court abused its discretion in dismissing
their counterclaims and third party claims. 	For the first time on appeal, they
contend the court could not dismiss those claims without first finding: 	(1) that
their noncompliance was willful; (2) that the firm's ability to prepare for trial was
substantially prejudiced; and (3) that lesser sanctions would not suffice. 	But this
court does not normally consider arguments raised for the first time on appeal.
RAP 	2.5(a). 	It is appellants' 	burden 	to 	demonstrate some 	basis for 	us 	to
consider their claims for the first time on appeal. 	State v. Grimes, 165 Wn. App.
172, 	185-86, 	267 	P.3d 	454 	(2011). 	They 	have 	not 	carried 	that 	burden.
5 Wallace v. Evans. 131 Wn.2d 572, 577, 934 P.2d 662 (1997); Bus. Servs. of Am. II.
Inc. v. WafterTech. 	LLC. 174 Wn.2d 304, 308, 311, 274 P.3d 1025 (2012) (where
dismissal is for dilatoriness of a type not 	described 	by CR 41(b)(1), courts retain
"'inherent discretion'" to dismiss for want of prosecution. 	Such dilatoriness 	includes
"'unacceptable litigation practices other than mere inaction.'" Other bases for dismissal
under the court's inherent authority include willful failure to comply with court orders or
rulings, failure to appear, or filing late briefs, (quoting Snohomish Cty. v. Thorp Meats,
110Wn.2d 163, 169, 750 P.2d 1251 (1988): Wallace, 131 Wn.2d at 577)).

No. 73944-1-1/7
Accordingly, we need not consider their claims. 	RAP 2.5(a); State v. Kirkman.
159 Wn.2d 918, 926, 155 P.3d 125 (2007).
Furthermore, the firm contends, and appellants do not dispute, that the
authorities appellants cite for application of the dismissal 	prerequisites listed
above are inapposite. 	Specifically, the firm contends the cited cases apply only
when dismissal is a sanction for violations of discovery or scheduling orders.6
The firm points out that the dismissal prerequisites applied in those cases have
not been applied when, 	as here, the dismissal 	rests on 	the court's inherent
authority to 	dismiss for 	noncompliance with contempt orders and/or want of
prosecution.7 Appellants do not address these contentions.
Even 	if 	the 	three 	dismissal 	prerequisites 	cited 	by 	appellants 	were
applicable here, appellants' arguments would fail because the superior court's
findings satisfy those prerequisites. 	First, the superior court expressly found that
appellants' 	noncompliance 	was 	willful 	and 	intentional. 	Appellants 	do 	not
challenge that finding or question its support in the record.
6 Appellants cite Rivers v. Wash. State Conf. of Mason Contrs.. 145 Wn.2d 674, 41 P.3d
1175 	(2002) 	(violation of discovery 	order); 	Marina 	Condo. 	Homeowner's Ass'n 	v.
Stratford at the Marina. LLC. 161 Wn. App. 249, 260, 254 P.3d 827 (2011) (discovery
violations); and Will v. Frontier Contrs., Inc., 121 Wn. App. 119, 129, 89 P.3d 242 (2004)
(failure to timely serve amended complaint).
7 Resp't Br. at 22; cf Dewitt v. Mullen. 193 Wn. App. 548, 556-58, 375 P.3d 694 (2016)
(willfulness, prejudice, and lesser sanctions factors "usually are applied when the trial
court imposes sanctions for discovery violations" and do not apply to dismissal under CR
40(d) when plaintiff is not prepared to proceed to trial); Foss Mar. Co. v. Brandewiede,
190 Wn. App. 186, 195, 359 P.3d 905 (2015), review denied. 185 Wn.2d 1012, 367 P.3d
1083 (2016) (dismissal prerequisites are "limited to CR 37(b)(2)"). We note that while a
showing of prejudice to the ability to prepare for trial makes sense when the dismissal is
for discovery violations and the like, it arguably makes less sense when dismissal is for
dilatory conduct or want of prosecution.

No. 73944-1-1/8
Second, the court expressly found that the firm would be prejudiced if it
proceeded to 	trial without appellants' 	compliance with the court orders. 	The
findings of fact state in part:
Defendants' noncompliance with the court's Orders is prejudicial to
the 	interests 	of 	the 	[firm] 	and 	its 	clients. 	Noncompliance 	is
prejudicial 	to 	the 	[firm's] 	ability 	to 	defend 	against 	defendants'
claims. 	Requiring [the firm] to indefinitely be subject to this lawsuit
pending defendants' 	compliance with court orders 	is prejudicial,
expensive and unjust. 	It would be prejudicial to require plaintiff and
third-party 	defendants 	to 	proceed 	to 	trial 	without 	defendants'
compliance.[8]
Citing our decision in Marina Condominium Homeowner's Ass'n, 161 Wn.
App. 	249, 260, 254 P.3d 827 (2011), appellants claim these findings are too
conclusory and fail to demonstrate specific prejudice to the firm's 	"ability to
prepare for trial."9 	We held in Marina that "mere conclusions" are insufficient to
satisfy the prerequisites to dismissal discussed above. 	161 Wn. App. at 261.
But the court's findings in the present case were not mere conclusions.
The 	court found 	that appellants destroyed 	evidence and 	had 	still not
complied 	with 	prior 	court 	orders, 	including 	the 	contempt 	order 	entered 	in
September 2010. 	More specifically, the court pointed to "specifications 1, 4, 5, 8
and 9" in the 2010 contempt order.10 	Those specifications included appellants'
refusal to identify the computer used to falsify USB drive evidence, the failure to
identify an additional computer potentially containing client files, refusal to turn
8 CP at 293.
9 Appellants' Opening Br. at 7.
10 CP at 291-92.
8

No. 73944-1-1/9
over paper copies of the firm's files 	and documents. 	Appellants' continuing
failure 	to comply with 	those specifications substantially prejudices the firm's
ability to prepare for trial of its claims against appellants.
Appellants argue that there must be a showing of prejudice to the firm's
defense against appellants' counterclaims before their counterclaims can be
dismissed. 	But they cite no authority supporting that claim. 	Nor do they respond
to the firm's contention that appellants cannot "withhold and destroy evidence,
substantially impairing [the firm's] ability to put on [its] case, while preserving their
own counterclaims."11
Third, the court also expressly found that lesser sanctions had already
been tried 	and would 	not be effective. 	Echoing 	their argument regarding
prejudice, appellants contend dismissal was an improper sanction because the
contemptuous conduct related to the firm's claims, not to their counterclaims for
wages. 	But once again, appellants cite no supporting authority. 	Nor do they
respond to the firm's argument that "the nexus is obvious—[appellants'] dilatory
conduct has made 	it impossible for 	[the firm] 	to pursue [its] claims, 	so the
appropriate sanction is losing the right to pursue counterclaims."12
Appellants' remaining arguments fail because they rest on the premise,
rejected 	above, 	that 	the 	court 	abused 	its 	discretion 	in 	dismissing 	their
counterclaims.
11 Br. of Resp'ts at 27.
12 Br. of Resp'ts at 27-28.

No. 73944-1-1/10
The firm requests fees and costs on appeal, arguing that the appeal is
frivolous. 	RAP 18.9; Granville Condo. Homeowners Ass'n v. Kuehner, 177 Wn.
App. 543, 557, 312 P.3d 702 (2013) ("RAP 18.9(a) allows us to award . . .
attorney fees and costs to an opposing party, when a party brings a frivolous
appeal."). 	We conclude the appeal is frivolous and award the firm reasonable
attorney fees and costs subject to its compliance with RAP 18.1.
Affirmed.
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WE CONCUR:
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10