IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON PAUL J. PASTOR, JR., PIERCE COUNTY ) No. 82262-4-I SHERIFF, ) ) DIVISION ONE Respondent/Cross-Appellant, ) ) PUBLISHED OPINION v. ) ) REAL PROPERTY COMMONLY ) DESCRIBED AS 713 SW 353RD PLACE, ) FEDERAL WAY, KING COUNTY, ) WASHINGTON, and all appurtenances ) and improvements thereon, ) ) Defendant In Rem, ) ) Interested Party: MEI XIA HUANG, ) ) Appellant/Cross-Respondent. ) )

HAZELRIGG, J. — The Pierce County Sheriff moved to seize the Defendant Real Property, commonly described as 713 SW 353rd Place, Federal Way, Washington, after his department served a search warrant there and discovered a sophisticated illegal marijuana grow operation. Mei Xia Huang intervened as an interested party in the civil forfeiture proceedings and claimed ownership of the Defendant Real Property. After Huang backed out of a settlement offer she had proposed, the trial court ultimately granted summary judgment for the Pierce County Sheriff and ordered forfeiture. Huang raises numerous constitutional challenges in her appeal and the Pierce County Sheriff cross-appeals the trial No. 82262-4-I/2

court’s denial of its motion to enforce Huang’s settlement agreement under CR 2A. Finding no merit in Huang’s various claims, we affirm the summary judgment and forfeiture order. Accordingly, we need not reach the cross-appeal.

FACTS

Officers from the Pierce County Sheriff Department (PCS) executed a search warrant on May 20, 2019 at the Defendant Real Property in Federal Way, commonly described as 713 SW 353rd Place, where law enforcement discovered that the home there had been converted to support and contain a sophisticated marijuana grow operation. Mei Xia Huang was on the property at the time the warrant was executed and had in her possession $20,400 in cash and her Washington State Identification Card with the address of the Defendant Real Property listed on it.

On June 3, 2019 PCS sent a “Notice of Seizure and Intended Forfeiture” of personal property to Huang by “regular and certified U.S. Mail” at the Defendant Real Property address. On June 8, 2019, Huang responded through her attorney and asserted “ownership of all” the items “seized from our client’s residence.” On July 25, 2019, PCS commenced an in rem action by filing its “Summons and Notice of Intended Seizure and Forfeiture” and “Complaint of Forfeiture in Rem” and moved “For Issuance of Warrant for Arrest in Rem.” PCS filed a lis pendens on the Defendant Real Property on July 30, 2019, naming Huang as “Grantor” whose “right, title and interest is intended to be affected.”

On August 9, 2019, the trial court issued a “Warrant of Arrest in Rem Authorizing Seizure of Real Property” and then five days later on August 14, the No. 82262-4-I/3

Warrant, Summons, Complaint, Lis Pendens and other documents were posted “in a conspicuous place” on Defendant Real Property. Two days following the posting of the documents, Huang’s attorney entered a notice of appearance on her behalf. A “Declaration of Due Diligence” was filed by PCS on August 22, 2019, which indicated Huang could not be located for purpose of personal service. On September 5, 2019, a PCS deputy went to the Defendant Real Property and, finding no person in possession at that time, taped a copy of the warrant for arrest in rem to the front door.

On September 17, 2019, PCS moved the trial court to authorize service by publication under RCW 4.28.100(6), which was granted the following day. Less than a week later, Huang filed an “Answer and Affirmative Defenses,” which argued Huang, as defendant in rem and interested party, had not been served properly under the law. At the end of September, PCS moved to continue the trial date and other litigation deadlines. On October 8th, Huang filed written opposition to the continuance, but it was granted over her objection on October 17, 2019. A little over a week after the continuance was granted, PCS served Huang’s counsel with its first set of interrogatories and requests for production, some of which went to Huang’s affirmative defense that she had not been properly served under the relevant law. Though a CR 26(i) conference was required due to Huang’s repeated delay in responding, she did eventually file her responses on January 10, 2020. However, Huang failed to provide any information regarding her assertions as to lack of service; noting only that she found some of the interrogatories and requests for production that went to such inquiry objectionable.

No. 82262-4-I/4

On January 23, 2020, PCS sought to serve Huang at the California address listed on her vehicle registration. Then in April 2020, PCS moved for summary judgment and order of forfeiture and, on May 1, 2020, moved to compel discovery under CR 37 based on her continued avoidance of her discovery obligations. Two days after Huang responded to PCS’ summary judgment motion, and the day before the hearing on its CR 37 motion1, Huang made a settlement offer to PCS. The parties then engaged in an exchange of counteroffers over email until Huang made a settlement offer that was acceptable to PCS. PCS clearly communicated its acceptance of Huang’s offer to her counsel via email that same day. The court was advised that an agreed resolution had been reached and PCS moved to strike the hearing on its motion for summary judgment, as well as the trial date. But, less than a week later, Huang reneged on the offer and refused to sign the final settlement agreement prepared by PCS.

In July 2020, PCS moved for summary judgment to enforce the settlement agreement under CR 2A, contract principles, and equitable estoppel. Huang did not dispute the records of her settlement negotiations nor the applicability of equitable estoppel to the issue before the court, but claimed that no contract existed and further asserted that the agreement was unenforceable as an impermissible excessive fine under the Eighth Amendment to the United States Constitution. Huang’s declaration regarding the matter admitted that she voluntarily authorized her attorney to make the counteroffer, but then No. 82262-4-I/5

acknowledged that after her offer was accepted by PCS, she simply “decided I did not want to do it” and refused to sign.

In August 2020, citing the negotiation emails, the trial court “determine[d] that on June 3, 2020, Plaintiff and interested party Mei Xia Huang entered into a settlement agreement that is binding under contract law and CR 2A,” and that the “terms of that agreement are stated in the email sent by [PCS’ counsel] on June 3, 2020, at 4:08 p.m.” and “[n]o reasonable fact finder could find that Plaintiff and Huang did not enter into that agreement.” But the trial court also denied enforcement of the agreement based on Huang’s argument that the agreement violated her rights under the Eighth Amendment and because PCS had not established Huang knowingly, voluntarily and intelligently waived those rights.

PCS sought discretionary review of that ruling in this court and while that motion was pending here, PCS renoted the hearing in the trial court on its summary judgment motion on the merits which it had previously stricken in light of the settlement agreement. The motion for summary judgment was granted in December 2020 and awarded PCS a final order of forfeiture because “Huang’s brief denial of knowledge is thoroughly contradicted by the objective, circumstantial evidence that demonstrates her knowledge” that the property was being used for drug purposes and because she had “not carried her burden to demonstrate an Eighth Amendment violation.”

Huang timely appealed.

No. 82262-4-I/6

ANALYSIS

I. Overview of Jurisdiction

We begin our analysis with a cursory overview of types of jurisdiction in light of the framing of some of Huang’s challenges on appeal and the parties’ conflation of terminology in briefing. “‘Jurisdiction is the power and authority of the court to act.’” ZDI Gaming Inc. v. State ex rel. Wash. State Gambling Comm’n, 173 Wn.2d 608, 617, 268 P.3d 929 (2012) (internal quotation marks omitted) (quoting Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 315, 76 P.3d 1183 (2003).

A. Subject Matter Jurisdiction

Subject matter jurisdiction is the authority of a court to hear and decide the type of controversy at issue. Banowsky v. Guy Backstrom, DC, 193 Wn.2d 724, 731, 445 P.3d 543 (2019). If a tribunal lacks subject matter jurisdiction, the implication is that it does not have authority to decide the claim at all or order any type of relief. Id.

Because the absence of subject matter jurisdiction is a defense that can never be waived, judgments entered by courts acting without subject matter jurisdiction must be vacated even if neither party initially objected to the court’s exercise of subject matter jurisdiction and even if the controversy was settled years prior. In re Marriage of McDermott, 175 Wn. App. 467, 479, 307 P.3d 717 (2013). When a court acts without subject matter jurisdiction the consequences of that action are “draconian and absolute.” Cole v. Harveyland, LLC, 163 Wn. App. 199, 205, 258 P.3d 70 (2011). We review the question of whether a court had subject matter jurisdiction de novo. McDermott, 175 Wn. App. at 479. The trial court had subject matter jurisdiction to hear the civil forfeiture proceedings.

No. 82262-4-I/7

B. Original Jurisdiction

Original jurisdiction is related to subject matter jurisdiction. Original jurisdiction means an action may be filed in a particular court. Ledgerwood v. Lansdowne, 120 Wn. App. 414, 420, 85 P.3d 950 (2004). Our state constitution vests the superior court with original jurisdiction “in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court.” WASH. CONST. art IV, § 6. “The constitution thus gives the superior courts universal original jurisdiction, from which the legislature is empowered to ‘carve out’ the limited jurisdiction of inferior courts.” Ledgerwood, 120 Wn. App. at 419 (quoting Young v. Clark, 149 Wn.2d 130, 134, 65 P.3d 1192 (2003)). RCW 2.08.010 grants original jurisdiction to the superior courts in all cases in which the value of the property in controversy is in excess of three hundred dollars. This statute is intended to codify article IV, section 6 of the Washington Constitution. City of Walla Walla v. $401, 333.44, 164 Wn. App. 236, 248, 262 P.3d 1239 (2011). Original jurisdiction to hear this civil forfeiture matter was properly with the superior court.

C. Personal Jurisdiction

Most relevant to this case is personal jurisdiction, also known as specific jurisdiction or general jurisdiction. See State v. LG Elec’s, Inc., 185 Wn. App. 394, 411, 341 P.3d 346 (2015). A challenge on this basis is waived if not timely asserted. Modumetal, Inc. v. Xtalic Corp., 4 Wn. App. 2d 810, 836, 425 P.3d 871 (2018). “Specific jurisdiction, which since ‘has become the centerpiece of modern jurisdictional theory,’ requires that suit arise out of or relate to the defendant’s No. 82262-4-I/8

contacts with the forum.” LG Elec’s, Inc., 185 Wn. App. at 411 (internal quotation marks omitted) (quoting Daimler AG v. Bauman, 571 U.S. 117, 127–28, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014)).

General jurisdiction, which since “[has played] a reduced role,” permits the exercise of personal jurisdiction over a nonresident defendant where the defendant’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Id. (alterations in original) (internal quotation marks omitted) (quoting Daimler, 571 U.S. at 128). We review claims with regard to personal jurisdiction de novo. Failla v. FixtureOne Corp., 181 Wn.2d 642, 649, 336 P.3d 1112 (2014). Huang’s assignment of error as to personal jurisdiction will be analyzed in detail below.

D. In rem Jurisdiction

“In rem jurisdiction is far more analogous to personal jurisdiction than to subject matter jurisdiction.” City of Walla Walla, 164 Wn. App. at 249 (internal quotation marks omitted). “[S]eizure of the res is a prerequisite to the initiation of [in rem] forfeiture proceedings [because] that property must be seized to fix and preserve in rem jurisdiction.” Id. at 250. This is particularly true with movable personal goods since it would be impossible to determine the competent forum until seizure of such property is achieved. Id. Here, in rem jurisdiction was obtained when PCS posted the seizure notice on the Defendant Real Property on June 3, 2019.

No. 82262-4-I/9

II. Challenges to Jurisdiction and Due Process

A. Notice Provisions of RCW 69.50.505

Huang argues that because PCS failed to personally serve her within fifteen days of the seizure of the property, the trial court lacked jurisdiction to render judgment on the matter. This is incorrect. The relevant notice provision is set out in RCW 69.50.505(3), which states in relevant part:

The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with chapter 62A.9A RCW, or a certificate of title, shall be made by service upon the secured party or the secured party’s assignee at the address shown on the financing statement or the certificate of title. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen day period following the seizure. (Emphasis added). This statute explicitly contemplates either personal service or substitute service of the interested party.

Further, RCW 69.50.505(3) is not focused on jurisdiction as Huang posits, which would essentially function as a statute of limitations. Instead, RCW 69.50.505(3) serves to establish a framework for two purposes: timely notice and resolution of the question of forfeiture. First, the 15-day notice is aimed at providing No. 82262-4-I/10

notice to the person at risk of losing the property at issue, expressly including by means of substitute service. Second, RCW 69.50.505, when read as a whole, also seeks to ensure timely disposition of forfeiture matters so that the seizing agency is not able to encumber the property in question longer than necessary for judicial review.

Here, Huang seeks to use RCW 69.50.505(3) to argue the trial court could not adjudicate the matter at hand because she was not personally served within 15 days of the seizure of her property such that the court did not have jurisdiction to hear the civil forfeiture action. We reject this claim as a mischaracterization of the statute. After the seizure on August 9, PCS repeatedly attempted personal service. A “Declaration of Due Diligence” was filed by PCS on August 22, 2019, which indicated Huang could not be located for purpose of personal service. On September 18, 2019, PCS received approval from the court2 to proceed with substitute service by publication as authorized by the rules of civil procedure. CR 4(d)(3); RCW 69.50.505(3) (“Service of notice of seizure of real property shall be made according to the rules of civil procedure”). Substitute service encompasses service by publication pursuant to RCW 4.28.100. CR(4)(d)(3). The statute contemplates service by weekly publication in a newspaper for six consecutive weeks. RCW 4.28.110. It could never be completed within 15 days. Clearly, the legislature was not treating service to be completed within 15 days as jurisdictional,