Yanlu Liu v. Great Ocean Capital Holding, Llc

ZUISE}CT l5 §ii 8:35 lN THE COURT OF APPEALS OF THE STATE OF \NASH|NGTON D|ViSlON ONE YAN¥.U t.lU and Al HUA PAN, husband and wife, residing in King County, Washington; PENG Zl-iANG and ZHONG¥UAN PAN, husband and wife, residing in Ontario, Canada, No. 76576~1-| Respondents, GREAT OCEAN CAP|TAL HOLD|NG, LLC, a Washington limited liabiiity company; HU‘( Y|NG CHEN and XUE P|NG WANG, husband and wife, residing in Washington state; UNPUB¥_|SHED OP|N|ON l'-'|LED: October 15, 2018 ) ) ) ) ) ) ) ) v. ) ) ) ) ) ) ) ) Appellants. ) l VERELLEN, J. - Great Ocean Capita| Holding, LLC cha|ienges the tfial courts jurisdiction and authority to enterjucigment on Zt\ongyuan Pan’s claim under the Washington State Securities Act, chapter 21.20 RCW (WSSA). Great Ocean fai!s to establish the trial court lacked subject matter jurisdiction or either field or conflict preemption applies. Great Ocean aiso argues the triai court erred in granting summary judgment in Pan's favor but fails to estabtish the existence of a genuine issue of material fact. Great Ocean’s other challenges to the trial court’s orders striking Great No. 76576-?-|/2 Ocean’s answer and determining Pan was entitled to rescission of her investment are similarly without merit Therefore, we atfirm. E_A_QI§ Great Ocean is a United States Citizen and immigration Service designated regionai center for purposes of the EB-S immigrant investor Prograrn. Appeliants Huy Ying Chen and Xue Ping Wang, husband and wife, own a majority interest in Great Ocean. Respondents Yanlu Liu and Ai Hua Pan, husband and wife, own a minority interest. Yan|u Liu and Ai Hua pan are the parents of Zhongyuan Pan. Pan invested $519,500 in Great Ocean for the purpose of obtaining a visa through the EB-S Program. The EB-5 Program ai|ows foreign investors and their families to obtain residency in the United States. |n November 2015, Pan and her parents filed a lawsuit against Great Ocean for breach ot contract, fraudulent and negligent n"iisrepresentation1 violation of the WSSA, vioiation of the Consumer Protection Act, chapter 19.86 RCW, breach of fiduciary duty, and accounting1 The trial court entered orders granting partial summary judgment on Pan’s WSSA claim, striking Great Ocean's answer and affirmative defenses and entering findings of fact, conclusions ot iaw, and judgment on Pan’s WSSA claim The principal amount of judgment was $519,500 for Pan’s initiai investment 1 Respondents’ ciaims for breach of contract, fraud1 and viotation of the Consumer Protection Act were submitted for arbitration Following partial summaryjudgment on Pan’s WSSA ctaim, respondents voluntarily dismissed all other claims No. 76576-1-!/3 Great Ocean appeals ANALYS|S l. Jurisdiction Great Ocean contends the trial court lacked subject matterjurisdiction to render judgment in this case. We review whether a court has subject matter jurisdiction de novo.2 “‘A judgment entered by a court that lacks subject matter jurisdiction is void.”’3 "As courts of general jurisdiction, superior courts have long had the ‘power to hear and determine ail matters, legal and equitabie, . . . except in so far as these powers have been expressly denied,”’4 in light of this broad grant of subject matter jurisdiction, “courts may only tind a lack of jurisdiction under compelling circumstancesl such as when it is explicitly timited by the Legis|ature or Congress.”5 Here, the triai court decided Pan’s WSSA claim Washington State superior courts have subject matter jurisdiction to decide WSSA claims. And Great Ocean fails to offer any compeiling authority that the trial court lacked subject matter jurisdiction to renderjudgment on Pan’s WSSA ciaim. Oddly, Great Ocean cites to 2 pouqhertv v. Den’t of Labor & lndus., 150 Wn.2d 310, 314 , 76 P.3d 1183 (2003). 3 Cole v. Harvevland, LLC, 163 Wn. App. 199, 205 , 258 P.3d 70 (20i1) (quoting Mariev v. Dep’t of Lat)or & |ndus.. 125 Wn.2d 533, 541 , 886 P.2d 189 (1994)). 4 in re |Vlarriade of Maior. 71 Wn. App. 531, 533 , 859 P.2d 1262 (1993) (alteration in original) (quoting State ex rei. Martin v. Superior Court, 101 Wash. 81, 94 , 172 P. 257 (1918)). 5 § at 534. No. 76576*1-|/4 a federal regulation addressing preemption of state laws in the area of chemical facility ami-terrorism standards.6 Great Ocean makes the conclusory argument that a state trial court does not have jurisdiction over matters touching on immigration But this is not an immigration case, and Great Ocean cannot establish lack of subject matter jurisdiction simply because ot Great Ocean’s status as a United States Citizen and immigration Service designated regional center or the nature of the EB~S program. The trial court did not tack jurisdiction to renderjudgrnent against Great Ocean on Pan’s VVSSA ciaim. ll. Preem_r._)t§on Great Ocean argues the trial court’s authority to enterludgment on Pan’s WSSA ciairn is preempted by federai |aw. A state law can be preempted in two ways: (1) field preemption (express or impiied) or (2) conflict preemption7 “|f Congress indicates an intent to occupy a given field (expiicitiy or impiiediy), any state law failing within that field is preempted; even if Congress has not indicated an intent to occupy a field, state law is still preempted to the extent it would actually conflict with federal law.”8 “Such a conflict occurs (1) When compliance with both taws is physically 6 _S_Y Br. of Appel|ant at 22~23 (citing 6 C.F.R. § 27.405 ). 7 lnlandboatmen’s Union of the P§c. v. Dep’t of Transg., 119 Wn.2d 697 , 701l 836 P.Zd 823 (1992). eli NO. 76576~1-|/5 impossible, or (2) when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”9 i'iere, Great Ocean fails to establish field preemption The federai statutes cited by Great Ocean do not expressly or impliedly address a Washington State superior court's authority to hear a WSSA ciaim.10 As to conflict preemption, Great Ocean argues the return ot Pan’s investment stands as an obstacle to the purpose of the EB-5 program to foster foreign investment and job creation. But Great Ocean faiis to cite any compe|iing authority to support this argument Additional|y, under 15 U.S.C. § 77r(c)(1)(A)(i), states retain the authority “under the laws of such [s]tate to investigate and bring enforcement actions, in connection with securities or securities transactions . . . with respect to_fraud or deceit." We conclude Pan’s WSSA claim is not preempted by federal law. |ii. Partial Surnmarv Judqment-WSSA Ciaim Great Ocean contends the trial court erred in granting partial summary judgment on Pan’s WSSA ciaim. We review an order granting summary judgment de novo.11 “t`he moving party has the burden of showing that there is no genuine issue as to any material 9 |d_.at 702. 1° S_ee_ Br. of Appe|iant at 27 (citing 15 U.S,C. § 771 (a)(i) (Feclera| Energy Administration Comptrolier General, powers and duties)). li CR 56(c); Ranqer ins. Co. v. Pierce County, 164 Wn.2d 545, 552 , 192 P.3d 886 (2008). NO. 76576-1-|/6 fact.”12 A response to a summary judgment motion ‘“must set forth specific facts showing that there is a genuine issue for trial.”113 “To establish liability under the WSSA, the purchaser of a security must prove that the seiler and/or others made material misrepresentations or omissions about the security, and the purchaser relied on those misrepresentations or omissions."l4 On iVlay 6, 2016, Pan filed a motion for partial summary judgment on her WSSA claim. Specificaliy, Pan requested “an Order holding that: (1) The statements in the Private Piacement Mernorandum (“PPM”) Were materially misleading; (2) That Plaintlffs’ reiiance on the statements made in the PPM was reasonab|e.”15 The court addressed the two issues separately On June 3, 2016, the trial court granted Pan’s motion for partial summary judgment as to the first issue and determined Great Ocean’s statements in the PPii/i that it “had secured an [ejighty (80) year lease with the Port of Longview were materia|, faise, and misieading.”“"* On September 27, 20t6, the court granted the motion as to the second issue and iz indoor Billboard/Wash., inc. v. lnteqra Te|ecom of Wash., lnc.. 162 Wn.2d 59, 70 , 170 P.3d 10 (2007). 13 State v. |Vlandatorv Poster Agencv. inc., 199 Wn. App. 506, 517 , 398 P.3d 1271 (quoting CR 56(e)), review denied, 189 Wn.2d 1021 (2017). 14 Stewart v. Estate of §teiner, 122 Wn. App. 258, 264 , 93 P.3d 919 (2004) (citing Rcw 21.20.010(2)). 15 Clerk’s Papers (CP) at 414-15. 16 CP at 2062. NO. 76576-1-|/7 determined “Pan [r]easonab|y relied on materially false and misleading statements set forth in the PPl\/l."l"' “A ‘rnateriai fact' is one ‘to which a reasonable [person] would attach importance in determining his [or her] choice of action in the transaction in question."116 A “misrepresentation" is a false statement regarding an existing fact19 Here1 the PPM provides information about Great Ocean's investor-funded projects At issue are the statements contained in the PPM concerning a lease With the Port of Longview and Great Ocean’s plans to build a cold storage facility: The Project currently consists of approximately 65 acres of land for long term 80 years lease (40 years plus 40 years right’s extension) from Port of t_ongview with 500,000 Sq. Ft. warehouse for further project re~deve|opment, that is entitled and ready for the construction 01500,000 Sq. Ft packinghouse and CA (Cold Atmospheres) cold- storage warehouse at Port of Longview, Washington.lml i'he PPNi also describes the packinghouse as “shovel ready."21 But in response to interrogatories, Great Ocean admitted that “Great Ocean and Huy Ying Chen did not enter into a contractually binding lease agreement With the Port of Longview."22 Despite this response, Great Ocean argues the statements in the PPM were not 17 CP at 1162. 13 Guarino v. lnteractive Objects. inc., 122 Wn. App. 95, 114 , 86 P.3d 1175 (2004) (a|terations in origina|) (quoting Aspelund v. Olerich, 56 Wn. App. 477 , 481~ 82, 784 P.2d 179 (1990)). 19 Havens v. C & D Plastics. inc., 124 Wn.2d 158, 182 , 876 P.2d 435 (1994) (negligent misrepresentation claim). 20 CP at 57. 21 CP at 52. 22 CP at 435. NO. 76576-1 -|18 false because they had in fact entered into a “pre-contract” with the Port of Longview. Great Ocean’s briefing rests on semantics rather than meaningful authority or argument Great Ocean cites minutes from a February 26, 2013 meeting between Great Ocean and representatives from the Port ot Longview and argues the meeting minutes constitute a “pre*contract.”23 `i“he meeting minutes memorialize that “[Port of Longview] agree iease maximum years for 80 years."24 But the minutes also state “[Port of Longview] will provide a fair lease price," clear evidence that Great Ocean had not yet secured an enforceable lease. At the February 26, 2013 meeting, the lease was discussed, not finalized As to materiality, Pan submitted a declaration stating, “|f my father and l knew the statement from PPM and Chen were not true, we would not invest money into the project.”25 Great Ocean fails to establish the existence of a genuine issue of material fact as to whether the statements in the PPM were materiaily misleading As to the second issue, Whether Pan reasonably relied on the statements, under the WSSA, the investor must also show the reiiance was reasonable “‘under the surrounding circumstances.’”26 in general1 whether reliance is reasonable is a 23 CP at 1208. 24 CP at 1212. 25 CP at 2078. 23 Federal Horne i_oan Bank v. __Barclavs Canita|, inc., 1 Wn. App. 2d 551, 565, 406 P.3d 686 (2017) (quoting @tureSeiect Portfolio lqumt.. lnc. v. Tremont Grp_. l-iol<:iingsl inc., 175 Wn. App. 840, 868 , 309 P.3d 555 (2013), gf_f'c_i, 180 Wn.2d 954 (2014)), review granted, 190 Wn.2d 1018 (2018). No. 76576-1-|/9 factual incjuiry.27 But "if reasonable minds could reach only one conciusion, summary judgment on this element is proper.”23 To determine whether reliance is reasonable, we apply the factors from Stewa_rt v. Estate of Steiner.29 No individual factor is necessarily dispositive.30 “`i'he factors are: ‘('l) the sophistication and expertise of the plaintiff in financial and securities matters, (2) the existence of longstanding business or personal relationships; (3) access to the relevant information, (4) the existence of a fiduciary relationship, (5) concealment of the fraud, (6) the opportunity to detect the fraud, (7) whether the plaintiff initiated the stock transaction or sought to expedite the transaction, and (8) the generality or specificity of the misrepresentations.*”[313 in opposition to Great Ocean’s motion for summaryjudgrnent, Pan submitted a declaration that she “viewed Captain Chen as my uncie.”32 She also stated, “Captain Chen was a family friend and at that time t did not have any reason to believe what he told us was not the truth."33 Pan acknowledged that she did some translating work for Great Ocean, but she stated she “did not create the content of the documents.”34 “Liltimately, while i may have had access to some of Great Ocean’s records1 l did not have complete access to all of its records.”35 27 |d. 25 _jg__" [29] 122 Wn. App. 258 , 93 P.3d 919 (2004). 39 Barciays, 1 Wn. App, 2d at 568 (citing Stewart1 122 Wn. App. at 274). Sl _ig_i_. (quoting Stewart, 122 Wn. App. at 274 ). 32 CP at 2079. 33 § 34 CP at 2081. 35 CP at 2082. NO. 76576-1-l/10 On appeal, Great Ocean does not address the §t§wa_rt factors and does not specifically contend Pan failed to establish reasonable reliance Rather, Great Ocean attempts to address reasonable reliance by arguing that Pan is barred from recovery under WSSA due to her various misrepresentations But the individual arguments concerning Pan’s alleged misrepresentations are conclusory and speculative36 First, Great Ocean argues Pan misrepresented her date of entry into the tJnited States. Great Ocean speculates Pan had actual knowledge of the preliminary nature of the lease agreement because she happened to be in the Linited States at the time of the February 2013 meeting between Great Ocean and the Port of Longview. Great Ocean accurately cites garino v. interactive Obiects, j_r_j_c_:_. for the proposition that actual knowledge would defeat a WSSA claim37 but fails to present specific evidence to support the contention that Pan was present at the meeting Second, Great Ocean argues Pan misrepresented herself as a “sophisticated" and “accredited” investor in the subscription agreement she signed. in her declaration, Pan stated, “i did not have any reason to believe what [Chen] told us was not the truth” and “| assumed that Great Ocean had a lease.”38 Great Ocean contends these statements reveal Pan was not a sophisticated or 36 See B_oguch v. Mover Corp,. 153 Wn. App. 595, 610 , 224 P.3d 795 (2009)) (“a party resisting summaryjudgment cannot satisfy his or her burden of production merely by relying on conclusory ailegations, speculative statements, or argumentative assertions”). 37 122 wn. App. 95, 143, 86 P.3d 1175 (2004). 38 oP at 2079. [10] No. 76576-1-|/1 1 accredited investor because she “biindiy invested $500,000.00 without conducting any due diligence.”39 But Great Ocean provides insufficient citation to the record to establish a misrepresentation and insufficient citation to authority to establish that Pan’s alleged misrepresentation bars recovery. This conclusory argument is not persuasive Great Ocean fails to establish the existence of a genuine issue of material fact whether Pan’s reliance on the statements in the PPM was reasonable. As a resuit, we conclude the trial court did not err in granting Pan’s motion for partial summary judgment on the WSSA ciaim. lV. Striking Answer Great Ocean argues the trial court erred in striking its answer and affirmative defenses based on the failure to supplement its answers to discovery We review a motion to strike made in conjunction with a motion for summary judgment de novo.“0 Before imposing a harsh discovery sanction, a trial court is required to consider the factors from Burnet v. Spokane Ambulance: A trial court may impose only the most severe discovery sanctions upon a showing that (1) the discovery violation Was willful or deliberate, (2) the violation substantially prejudiced the opponents ability 10 Plepafe lOl' iflai, and (3) the court explicitly considered less severe sanctions.Wl 39 Br. of Appeiiant at 37. 4° §__Qgthwick v. Seattie Policg Officer John Doe, 145 Wn. App. 292 , 297l 186 P.3d 1089 (2008). 41 Teter v. Deck, 174 Wn.2d 207, 216-17 , 274 P.3d 336 (2012) (citing Burnet v. Sbokane Ambulance, 131 Wn.2d 484, 496-97 , 933 P.2d 1036 (1997)). [11] No. 76576-1~|/12 “Findings regarding the Burnet factors must be made on the rc-)cord."42 Here, the court sufficiently addressed the Burnet factors in its order striking defendants answer and afnrmative defenses entered on November 28, 2016.43 We conclude the trial court did not err in granting the motion to strike. V. dudgment Great Ocean challenges the trial court's award of damages, arguing that Pan’s failure to make a demand under RCW 21 .20.430 precludes any award of damages Under RCW 21 .20.430(2): Any person who buys a security in violation of the provisions of RCW 21 .20.010 is liable to the person selling the security to him or her, who may sue either at law or in equity to recover the security, together with any income received on the security, upon tender of the consideration received, costs, and reasonable attorneys’ feesl or if the security cannot be recovered, for damages Damages are the value of the security when the buyer disposed of it, and any income received on the security, less the consideration received for the security, plus interest at eight percent per annum from the date of disposition, costs, and reasonable attorneys’ fees. “The unambiguous language of RCW 21 .20.430(2) provides that a defrauded seller may sue for rescission to recover the security."44 42 gat217. 43 The court determined the violation was willfu|, the refusal to provide discovery frustrated the ability to prosecute plaintiffs’ ciaims, the court’s use of monetary sanctions Was ineffective, and striking portions of the answer was the least harsh effective remedy available 44 Heieriius v. cheiius, 131 wn. App. 421, 432, rzo P.3d 954 (2005). [12] l\lo. 76576-1-|/13 liere, the trial court concluded, “The purpose and intent of the remedies set forth in RCW § 21 .20.430 is rescission of the investment," and Pan was entitled to a return of her initial investment of $519,500.45 Great Ocean contends the trial court erred in determining Pan was entitled to rescission of her investment because she failed to demand a return of her investment prior to initiating her lawsuit46 RCW 21 .20,430(4)(b) provides: No person may sue under this section if the buyer or seller receives a written rescission offer, which has been passed upon by the director before suit and at a time when he or she owned the security, to refund the consideration paid together with interest at eight percent per annum from the date of payment, less the amount of any income received on the security in the case of a buyerl or plus the amount of income received on the security in the case of a seller.47 Great Ocean fails to point to any evidence it issued a written rescission offer to Pan. Rather, Great Ocean argues Pan was not entitled to judgment because she never demanded return of her capital contribution Great Ocean does not cite any authority to support the argument that Pan must make a demand before filing a lawsuit under the WSSA. We conclude the trial court did not err in determining Pan was entitled to rescission and awarding a principal judgment amount of $519,500. 45 CP at 1338. 46 Although Great Ocean frames the issue in terms of the adequacy of the court’s findings of fact, it is not a true sufficiency challenge but rather a restatement of Great Ocean’s theory that Pan is not entitled to rescission 17 (Emphasls added.) [13] ND. 76576-1-|/14 Vl. lVlotion to Strike in Great Ocean’s reply brief, Great Ocean renews its motion to strike respondents brief. On Niarch 15, 2018, Great Ocean moved to strike respondents brief and to remand to the trial court for RAP 9.11 proceedings On Aprii 5, 2018, Commissioner l\ieel denied the motion and directed Great Ocean to include such a motion in its briefing to the panell in the original motion, Great Ocean argued respondents improperly supplemented the record on appeal without complying With RAP 9.11. Great Ocean claimed the respondents improperly supplemented the record with evidence that Pan withdrew her EB~5 application and evidence that she demanded return of her investment prior to filing the lawsuit Because respondents have not complied with RAP 9.11, we decline to consider this evidence because it is not part of the record on appeal.‘18 The absence of this evidence has no impact on the outcome of the merits of Great Ocean’s appeal. 43 Harbison v. Garden Val|ev Outtitters. inc., 69 Wn. App. 590, 593-94 , 849 P.2d 669 (1993) ("RAP 9,11 is a limited remedy under which this court may direct that additional evidence may be taken if all of the following six criteria are metz (1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party’s failure to present the evidence to the trial court, (4) the remedy available to a party through postjudgment motions in the trial court is inadequate or unnecessarily expensivel (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court.”) (quoting RAP 9.1l(a)). [14] NO. 76576-1-|/'¥5 V|l. Fees on Appea| Pan seeks fees on appeal under the subscription agreement and RAP t8.1. “RAP 18.1(b) requires more than a bald request for attorney fees on appea|."49 The request must be accompanied by citation to authority, argument and citation to the record.50 Here, Pan claims the subscription agreement contains a fee clause but provides no citation to the record identifying such a provision51 intl 6£“"") Q' Ma.q., !@C~'-'r' \Ne deny Pan’s request for fees on appeal. Therefore, we aflin'n. WE CONCUR: 49 Thweatt v. i'|omnte|, 67 Wn. App. 135, 148 , 834 P.2d 1058 (1992). 50 Gardner v. First i-leritage Bank, 175 Wn. App. 650, 677 , 303 P.3d 1065 (2013). 51 See in re Estate of Lint. 135 Wn.2d 518, 532 , 957 P.2d 755 (1998) (courts are not obligated “to cornb the recor ” where counsel has failed to support arguments with citations to the record).