No. 58716-1-I.The Court of Appeals of Washington, Division One.
November 13, 2007.
PER CURIAM.
Michael Adam Assenberg appeals the superior court’s issuance of a writ of restitution and an order denying his motion to set a supersedeas bond. Because the record adequately supports the court’s decision to issue the writ, and the motion for a supersedeas bond was untimely, we affirm.
The record establishes that Anacortes Housing Authority (AHA) is a publicly funded housing authority that receives federal funding and provides Section 8 housing to low income individuals in Skagit County, Washington. Carla Kearney was a long-time resident of AHA housing and was a recipient of Section 8 housing subsidies. She lived in a three bedroom apartment with her two minor children when she sought permission to add Michael Assenberg to her lease. This addition required a rental application in which Assenberg disclosed that he had a disability or handicap, but he indicated “No” to the question, “Is there any special equipment/needs required due to a disability/handicap?” Assenberg suffers from extreme pain resulting from a debilitating back injury that occurred 21 years ago, and he uses marijuana to alleviate the pain. Without it, he claims his convulsions are so bad that he passes out many times each day. His physician agrees that standard medical treatment and medications are not as effective as marijuana in treating his pain. Assenberg and Kearney did not disclose the marijuana use during the application process because they believed that if they had, AHA would not have leased the apartment to them.
AHA executed a new lease in July 2005, adding Assenberg as a tenant. As a requirement of tenancy, Assenberg and Kearney signed a Crime Free/Drug Free Rental Addendum. Per the addendum, Kearney and Assenberg agreed not to engage in “drug-related criminal activity” defined as behavior that violates the RCW Uniform Controlled Substances Act or the Federal Controlled Substances Act. Assenberg and Kearney also received a copy of AHA’s pet policy when the new lease was issued.
In August 2005, another tenant complained that Assenberg and Kearney were violating AHA’s pet policy by keeping snakes in their unit. Because AHA’s policy prohibits snakes, it issued a Notice to Comply or Vacate and Notice of Intent to Evict to Assenberg and Kearney. In response, Assenberg claimed that the snakes, a five year old red-tailed boa and a twenty-one year old gopher snake, were service animals. He provided a letter from his treating physician stating that he suffered from depression and the snakes were his “therapy pets” and that they served as “magnets for heat” that assisted in pain management. AHA agreed to let Assenberg keep the snakes if (1) he provided a declaration from a professional that the snakes were necessary, that they were not poisonous or otherwise a danger to others’ safety; (2) he kept the snakes in a cage when staff was present or when the snakes were being transported; and (3) he agreed to indemnify, defend, and hold AHA harmless for any injury that might result from the snakes. Assenberg refused to comply with the conditions.
Around this time, Assenberg also informed AHA that he was using marijuana for medical purposes by providing AHA with a one-page form, signed by his physician, titled “Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State.” He also requested that AHA move him into a four bedroom apartment so he could increase his marijuana cultivation.
On September 30, 2005, AHA served notice of termination on Assenberg and Kearney for violation of the pet policy and use and possession of a controlled substance. Upon receiving the notice, Assenberg filed a pro se discrimination action against AHA, alleging that AHA violated their civil rights by terminating their tenancy. Specifically, they alleged that AHA failed to reasonably accommodate Assenberg’s disabilities by failing to grant exceptions to AHA’s pet policy and drug policy. AHA removed the suit to the United States District Court for the Western District of Washington in Seattle and stopped the termination proceeding pending the outcome of the discrimination case. On May 25, 2006, Judge Robert S. Lasnik entered summary judgment in favor of AHA on all issues and dismissed the suit. Assenberg secured legal counsel and appealed Judge Lasnik’s order to the Ninth Circuit Court of Appeals on June 19.
On June 2, AHA brought an unlawful detainer action in Skagit County Superior Court against Assenberg and Kearney based on the 2005 lease termination notice. Assenberg and Kearney appeared pro se at the show cause hearing, which was held on June 23. The superior court made written findings and conclusions and issued a writ of restitution. Assenberg and Kearney brought a motion to stay the writ, which was heard on June 29. This motion was denied and the eviction was carried out on July 6. The attorney representing Assenberg in the pending federal appeal appeared in the unlawful detainer action and moved the court on July 6 to set a supersedeas bond. That motion was denied on July 11. Assenberg and Kearney, represented by counsel, appeal.
WRIT OF RESTITUTION
Assenberg contends that the superior court erred in issuing a writ of restitution in the unlawful detainer proceeding. Unlawful disability discrimination may be a defense to an unlawful detainer action Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 626, 45 P.3d 627
(2002). Assenberg contends he established this defense. He assigns error to the court’s written legal conclusion that issues of medical marijuana and service animals were res judicata based on Judge Lasnik’s summary judgment order. He argues that there is no res judicata effect to a decision that is being appealed and has not yet become final. At the time the writ was issued, he had filed an appeal to the Ninth Circuit Court of Appeals. It is still pending.
A trial court’s application of res judicata is reviewed de novo Atlantic Cas. Ins. Co. v. Oregon Mut. Ins. Co., 137 Wn. App. 296, 302, 153 P.3d 211 (2007). This court may affirm the lower court’s ruling on any grounds adequately supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Because the record in this action adequately supports the conclusion that a writ of restitution should issue, we do not need to reach the issue of whether the court properly relied upon the res judicata effect of the federal court order.
At the show cause hearing, the court allowed Assenberg to make all arguments earlier presented in the federal case. The court also permitted Assenberg to present additional arguments, including evidence relating to the requirements of Washington’s Medical Marijuana Act as a defense to the unlawful detainer action. In addition, the court had before it the federal court order, which contained a cogent and thorough analysis of the controlling law and the medical marijuana and service animal issues. The court considered declarations from Assenberg’s physician, veterinarian, and deposition testimony from Carla Kearney in addition to many other supporting documents.
Although the court did not make findings on the medical marijuana or service animal issues, the record does not contain evidence sufficient to support findings substantiating Assenberg’s defense of unlawful disability discrimination. Judge Lasnik’s summary judgment order fully explains why all of the evidence, even when considered in the light most favorable to Assenberg, does not establish that the AHA unreasonably refused to accommodate his disability. We conclude the record supports the termination of Assenberg’s tenancy for possession of a controlled substance and noncompliance with the pet policy. The trial court did not err in issuing the writ of restitution.
supersedeas bond
The court entered judgment in the unlawful detainer action on June 23, 2006. Assenberg’s motion to set a supersedeas bond under RAP 8.1 and CR 62 was heard on July 11. Assenberg brought the motion to set a bond before he filed a notice of appeal in this case. Assenberg contends that the court erred in denying his motion to set a supersedeas bond.
The trial court concluded that the supersedeas bond was barred because Assenberg’s appeal of Judge Lasnik’s order to the Ninth Circuit Court of Appeals does not trigger rights under either CR 62 or RAP 8.1. The trial court was correct in so concluding.
This court reviews de novo the interpretation of court rules. League of Women Voters of Wash. v. King County Records Div., 133 Wn. App. 374, 378, 135 P.3d 985 (2006).
Civil Rule 62(a) concerns automatic stays. It provides in relevant part, “Upon the filing of a notice of appeal, enforcement of judgment is stayed until the expiration of 14 days after entry of judgment.” It expressly “does not limit the right of a party to a stay otherwise provided by statute or rule.” Civil Rule 62(f). Assenberg contends his right to a stay is “otherwise provided” by RAP 8.1.
RAP 8.1 provides that “[a]ny party to a review proceeding has the right to stay enforcement of a money judgment, or a decision affecting real, personal or intellectual property, pending review.” RAP 8.1(b). The rule also provides, “Except where prohibited by statute, a party may obtain a stay of enforcement of a decision affecting rights to possession . . . of real property . . . by filing in the trial court a supersedeas bond or cash. . . .” RAP 8.1(b)(2).
The trial court ruled, in part, that RAP 8.1 does not apply because a stay was “prohibited by statute.” The statute in question is RCW 59.18.390, which prohibits a stay of a writ of restitution where the tenant has engaged in drug-related activity. At the July 11 hearing, AHA argued that one reason it had terminated Assenberg’s tenancy was his possession of a controlled substance. This, it argued, was drug-related activity, which violated RCW 59.18.390 and barred the setting of a supersedeas bond. The trial court agreed with AHA and concluded that Assenberg’s supersedeas bond was barred by RCW 59.18.390(1).
Assenberg argues that his marijuana use is not drug-related activity as defined by RCW 59.18.130: “that activity which constitutes a violation of chapter 69.41, 69.50, or 69.52 RCW.” He argues that because the trial court did not make findings that he had violated these statutes or consider his Medical Marijuana Act defense, RCW 59.18.390(1) does not constitute a bar to setting a supersedeas bond.
We need not consider the argument based on the definition of “drug-related activity” because even if Assenberg is correct that there was no statutory bar to the granting of a stay, he has not established that he was a “party to a review proceeding” at the time he moved to set a supersedeas bond under RAP 8.1. He had not yet filed a notice of appeal from the writ of restitution. The trial court concluded that his application for a stay was untimely, but left the door open for him to renew his application once he filed his notice of appeal. Assenberg did not do so. Instead, he stands on his position that when he moved for supersedeas, he was a party to the appeal of Judge Lasnik’s decision, and this was sufficient to trigger his right to set a supersedeas bond to stay the state court’s writ of restitution.
As both parties acknowledged before the superior court, the Rules of Appellate Procedure govern actions in state courts and control the matter here. Assenberg has cited no case in which a court granted supersedeas as to its own order based on the moving party’s status as a party to a review proceeding in some other court. Assenberg argues that the rule is remedial and should be given a broad interpretation. Assenberg’s proposed interpretation is too open-ended. We cannot conclude the drafters intended the rule to mean being a party to any review proceeding anywhere. We conclude Assenberg was not a “party to a review proceeding” as contemplated by RAP 8.1. Therefore, the trial court correctly denied his request to set a supersedeas bond.
Affirmed.