Date: 12-22-2016

Case Style:

Case Number: 92978-5

Judge: Debra L. Stephens

Court: Supreme Court of Washington on appeal from the Superior Court, King County

Plaintiff's Attorney:

Evan Loeffler

Jeana Kay Poloni

Chris Cutting

Sidney Charlotte Tribe

Defendant's Attorney:

Tom Keane

Description: This case concerns provisions of Seattle's "Just Cause
Eviction Ordinance," codified at Seattle Municipal Code 22.206.160(C). We must
determine whether the court in an unlawful detainer action can consider evidence
challenging just cause once the landlord files the certification allowed under Seattle
Municipal Code 22.206.160(C)(4).
The court commissioner presiding over the show cause hearing in this case set
the matter for trial after determining that there were issues of fact as to the landlords'
Faciszewski, et al. v. Brown, et al., 92978-5
stated reason for the eviction. The King County Superior Court revised the
commissioner's ruling, issued a writ of restitution restoring possession of the
property to the landlords, and struck the trial date because "the statutory scheme does
not require ... a trial once [the landlord files a] statement under penalty of perjury."
Verbatim Transcript of Proceedings (VTP) (Sept. 2, 2014) at 22-23. The Court of
Appeals affirmed, reading the Just Cause Eviction Ordinance to provide only for
posteviction remedies once the landlord files a certification with the city of Seattle
(City). We reverse the Court of Appeals and remand to the superior court.
FACTS AND PROCEDURAL HISTORY
Michael R. Brown and Jill A. Wah1eithner (Tenants) received a notice of
eviction from Stephen Faciszewski and Virginia L. Klamon (Landlords) invoking
Seattle Municipal Code (SMC) 22.206.160(C)(1)(e). Clerk's Papers (CP) at 1, 2, 14.
In accordance with that provision, the notice stated Landlords were terminating the
tenancy because "[Landlords] seek to possess the Property so that at least one
immediate family member (or, in the alternative, one of us) may occupy the [Seattle]
Property as a principal residence." Id. at 22. Landlords subsequently clarified that
Faciszewski's parents would be moving into the house so that Faciszewski could care
for his ailing father. Id. at 45-46; VTP (Aug. 12, 2014) at 3. Following his father's
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death, Faciszewski inclicated that only his mother planned to move into the house. CP
at46.
Because of an earlier dispute, Tenants believed that Landlords' stated reason was
a pretext. Id. 1 Tenants thus began researching Faciszewski's parents on the Internet.
Tenants learned the following facts regarding Faciszewski's mother: (1) she owned a
home in Colorado that was not listed for sale or for rent, id. at 46, 82-83; (2) she was
<
scheduled to teach a class at a Colorado center in the fall, id. at 46, 72-73; (3) she
volunteered at a Colorado hospital for many years and continued to do so, id. at 80-81;
and ( 4) she had not informed the center or the hospital of any plans to move, id. at 46,
80-81. Citing this information, Tenants complained to the City, and in response
Landlords filed with the City a certification of intent to carry out the stated reason.
Because the certification provided that "[Faciszewsld] or/and ... his mother" would
occupy the property, id. at 77 (emphasis added), Tenants continued to believe
Landlords' stated reason was a pretext. Accordingly, Tenants refused to comply with
the notice of eviction.
1 Tenants had a parking dispute with a disabled neighbor regarding her ability to
access her property. Landlords intervened and requested that Tenants not park on certain
parts of the street. Landlords subsequently stated in an e-mail to Tenants that Tenants'
refusal to comply with Landlords' request would "necessitate [l]ease non-renewal." CP at
15-16, 19.
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Landlords subsequently brought an unlawful detainer action in King County
Superior Court. Landlords asked the court to terminate the tenancy, enter a writ of
restitution restoring Landlords to possession of the property, and award damages and
reasonable attorney fees and costs. Landlords also moved the court for an order
requiring Tenants to appear and show cause why a writ of restitution should not issue.
In response, Tenants submitted four declarations supporting their claim that Landlords
did not have just cause for the eviction as required by the Just Cause Eviction Ordinance
(JCEO). Tenants also claimed that service of process and the contents of the eviction
notice were insufficient.
At the show cause hearing, Tenants requested a trial on the issue of just cause.
VTP (Aug. 12, 2014) at 6. The court commissioner concluded "that there are issues
[as to the mother and as to the husband] that require more extensive time than we
have here, so I will set the matter for trial." !d. at 7.
Pursuant to RCW 2.24.050, Landlords moved the superior court to revise the
commissioner's ruling. On September 2, 2014, the court held a hearing on
Landlords' motion. Tenants contended that Landlords had not met their burden of
proving that just cause exists because Landlords submitted only the sworn certification
of intent. Tenants requested that they be able to engage in more fact-finding, such as
requiring declarations, depositions, or interrogatories. The court granted Landlords'
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motion to revise, issued a writ of restitution, and struck the trial date. In so doing, the
court stated, "[A]s I read 22.206.160, it ends with this statement under penalty of
perjury .... [T]he statutory scheme does not require or even permit a trial once we
have this statement under penalty of perjury." VTP (Sept. 2, 2014) at 22-23
(referring to SMC 22.206.160(C)(4). The superior court subsequently entered
judgment against Tenants, awarded Landlords attorney fees and costs, and denied
' Tenants' motion for reconsideration.
Tenants appealed, and Division One of the Court of Appeals affirmed. It held
that under the Seattle ordinance:
If a tenant does not believe a landlord's stated reason for eviction, that tenant
can file a complaint with the city. The tenant's disbelief, even if justified, does
not provide a defense to an unlawful detainer action. Once the landlord files the
proper certification with the city [pursuant to SMC 22.206.160(C)(4)], the
tenant's remedy is limited to a private right of action [pursuant to SMC
22.206.160(C)(7)] if the landlord does not fulfill the stated reason for eviction.
Faciszewski v. Brown, 192 Wn. App. 441, 453-54, 367 P.3d 1085 (2016) (footnote
omitted).
Tenants filed a petition for review in this court, challenging both this holding
and the Court of Appeals' resolution of other issues. We granted review solely on
the question of whether Tenants ''were entitled to a trial on the just cause for the
termination of the lease." Order, Faciszewski v. Brown, No. 92978-5 (Wash. Aug. 3,
2016).
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ANALYSIS
In revising the commissioner's ruling,2 the superior court interpreted the
JCEO as requiring a finding of just cause (and thus not permitting a trial) once the
landlord files a sworn certification of intent. VTP (Sept. 2, 2014) at 22-23. The
superior court's interpretation of a statute involves a question of law, which we
review de novo. King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142
Wn.2d 543, 555, 14 P.3d 133 (2000).
I. Background on Washington's Landlord-Tenant Law and Seattle's
JCEO
Title 59 RCW sets out Washington's landlord-tenant law. Chapter 59.12
RCW governs unlawful detainer actions, while chapter 59.18 RCW, known as the
Residential Landlord-Tenant Act of 1973 (RLTA), governs the rights and remedies
of residential landlords and tenants.
"An unlawful detainer action is a statutorily created proceeding that provides
an expedited method of resolving the right to possession of property." Christensen
v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228 (2007). The term "unlawful
2 Commissioners' rulings are "subject to revision by the superior court." RCW
2.24.050. "On revision, the superior court reviews both the commissioner's fmdings of
fact and conclusions of law de novo based upon the evidence and issues presented to the
commissioner." State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). Once the
superior court makes a decision on revision, the appeal is from that decision. Id. This
court therefore reviews the superior court's ruling, not the commissioner's. Jd.
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Faciszewski, et al. v. Brown, et al., 92978-5
detainer" is statutorily defined. !d. at 371. "A tenant of real property for a term less
than life is guilty of unlawful detainer ... [ w ]hen he or she holds over or continues
in possession ... of the property ... after the expiration of the term." RCW
59.12.030(1); see also RCW 59.18.290(2) ("It shall be unlawful for the tenant to
hold over in the premises or exclude the landlord therefrom after the termination of
the rental agreement."). To regain possession of the property, the landlord may file
an unlawful detainer action against the tenant. RCW 59.12.070. Upon filing an
unlawful detainer action, the landlord may request the court to issue a writ of
restitution restoring the property to the landlord. RCW 59.12.090. For residential
property, a landlord seeking a writ of restitution must request a show cause hearing.
RCW 59.18.370.3
At the show cause hearing, the court must "examine the parties and witnesses
orally to ascertain the merits of the complaint and answer." RCW 59.18.380. If the
court determines that the landlord is entitled to possession of the property, the court
"enter[s] an order directing the issuance of a writ of restitution." !d. Otherwise, the
3 RCW 59.18.370 states that residential landlords "may" request a show cause
hearing, but this provision has been interpreted as requiring residential landlords to afford
tenants such a hearing. See Indigo Real Estate Servs., Inc., v. Wadsworth, 169 Wn. App.
412, 421, 280 P.3d 506 (2012). In addition to the RLTA, the JCEO provides that a show
cause hearing is mandatory. SMC 22.206.160(C)(l) (a court may issue an order evicting
a residential tenant "only after the tenant has an opportunity in a show cause hearing to
contest the eviction").
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court may deny the landlord's motion and "enter an order directing the parties to
proceed to trial." Id. In making this determination, the court must decide whether
"there is a substantial issue of material fact as to whether ... the [landlord] is entitled
to other relief as is prayed for in [the] complaint ... or [whether] there is a genuine
issue of a material fact pertaining to a legal or equitable defense." Id.4
At the center of this case are provisions of Seattle's JCEO. The JCEO
provides:
Pursuant to provisions of the state [RLTA] (RCW 59.18.290), owners[SJ may
not evict residential tenants without a court order, which can be issued by a
court only after the tenant has an opportunity in a show cause hearing to
contest the eviction (RCW 59.18.380). Owners of housing units shall not
4 As the Northwest Justice Project's amicus brief explains, the show cause hearing
has characteristics of both a preliminary injunction and a summary judgment proceeding.
Br. of Amicus Curiae Nw. Justice Project at 12-14. Compare RCW 59.18.380 (at the show
cause hearing, "[t]he court shall examine the parties and witnesses orally to ascertain the
merits of the complaint and answer, and if it shall appear that the [landlord] has the right
to be restored to possession of the property [on the merits], the court shall enter an order
directing the issuance of a writ of restitution" (emphasis added)), with Rabon v. City of
Seattle, 135 Wn.2d 278, 285, 957 P.2d 621 (1998) ("In deciding whether a party [seeking
relief through a preliminary injunction] has a clear legal or equitable right, the court
examines the likelihood that the moving party will prevail on the merits. An injunction
will not be issued in a doubtful case." (emphasis added) (citations omitted)); compare
RCW 59.18.380 (at the show cause hearing, "if it shall appear to the court that there is no
substantial issue of material fact of the right of the [landlord] to be granted other relief ...
the court may enter an order and judgment" (emphasis added)), with Dean v. Fishing Co.
of Alaska, Inc., 177 Wn.2d 399, 405, 300 P.3d 815 (2013) ("Summary judgment is
appropriate if 'there is no genuine issue as to any material fact' and 'the moving party is
entitled to a judgment as a matter oflaw."' (quoting CR 56( c))).
5 In this context, "owner" is synonymous with "landlord." See RCW 59.18.030(14)
(defining "landlord" as "the owner . . . of the dwelling unit"); SMC 22.204.160(D)
(defining "owner" as "any person who ... has title or interest in any building").
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evict or attempt to evict any tenant, or otherwise terminate or attempt to
terminate the tenancy of any tenant unless the owner can prove in court that
just cause exists.
SMC 22.206.160(C)(l) (emphasis added). The JCEO provides an exclusive list of
circumstances that constitute just cause. !d. One such circumstance is when
[t]he owner seeks possession so that the owner or a member of his or her
immediate family may occupy the unit as that person's principal
residence ... and the owner has given the tenant at least 90 days' advance
written notice of the date the tenant's possession is to end .... "Immediate
family" includes the owner's domestic partner[,] ... spouse, parents,
grandparents, children, brothers and sisters of the owner, of the owner's
spouse, or of the owner's domestic partner.
!d. at (C)(l)(e).
If the tenant believes the landlord "does not intend to carry out the stated
reason for eviction" and complains to the city director, the landlord must "complete
and file with the Director a certification stating [his or her] intent to carry out the
stated reason for the eviction." !d. at (C)(4). The JCEO further provides that "[t]he
failure of the owner to complete and file such a certification after a complaint by the
tenant shall be a defense for the tenant in an eviction action based on this ground."
!d. The JCEO does not specifically address what effect the filing of a certification
has on an unlawful detainer action. However, SMC 22.206.160(C)(5) provides, "In
any action commenced to evict or to otherwise terminate the tenancy of any tenant,
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Faciszewski, eta!. v. Brown, et al., 92978-5
it shall be a defense to the action that there was no just cause for such eviction or
termination as provided in this Section 22.206.160."6
SMC 22.206.160(C)(6) makes it a violation of the JCEO for a landlord to seek
to evict a tenant on one of the stated grounds for just cause "without fulfilling or
carrying out the stated reason for or condition justifying the termination of such
tenancy." The JCEO provides tenants with "a private right for action for damages
up to $2,000, costs of suit, or arbitration and reasonable attorney's fees" for any such
violation. !d. at (C)(7).
We must determine whether the landlord's certification of intent is dispositive
on the issue of just cause in an unlawful detainer proceeding, thus leaving the tenant
with only the posteviction remedies the JCEO provides.7 We believe the JCEO
6 Relying on this provision, Landlords argue that Tenants bear the burden of
showing the lack of just cause for eviction as an affinnative defense. Suppl. Br. ofResp'ts
at 8. Tenants counter that proof of just cause is part of Landlords' burden of proof at the
show cause hearing, pointing to SMC 22.206.160( C)( 1) 's language that the landlord "'shall
not evict or attempt to evict any tenant ... unless the owner can prove in court that just
cause exists."' Suppl. Br. of Pet'rs at 7 (alteration in original) (quoting SMC
22.206.160(C)(l). Resolution of this case does not depend on the burden of proof, as the
sole question here concerns whether the court in an unlawful detainer action can even
consider evidence relating to just cause once the landlord files the certification allowed
under SMC 22.206.160(C)(4).
7 We confine our review to interpreting the JCEO, as that is all the lower courts did.
Although at oral argument Landlords contended that the Court of Appeals considered the
substance of Tenants' evidence, their briefing suggests otherwise. See Suppl. Br. of
Resp'ts at 9 (arguing to affirm the Court of Appeals because the JCEO provides the tenant
with only two opportunities to challenge the landlord's reason for eviction: (l) the tenant
may complain to the City, in which case the landlord must file a certification, and (2) the
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operates in harmony with the RLTA and unlawful detainer procedures when SMC
22.206.160(C)(4) is read not to make the landlord's certification determinative of
"just cause." The purpose of the JCEO is best served by reading the remedies
provided when the landlord fails to fulfill or carry out the stated reason for eviction
as nonexclusive. The City that enacted the JCEO reads it this way, and such a
reading retains the integrity of both the unlawful detainer process and the ordinance. 8
We therefore reverse the lower courts' interpretation of the JCEO and remand to the
superior court for further proceedings consistent with our interpretation of the
ordinance.
II. Seattle's JCEO Allows the Tenant To Challenge the Landlord's
Certification of Just Cause in an Unlawful Detainer Proceeding
Few cases have discussed Seattle's JCEO. The parties direct us to Housing
Authority v. Silva, 94 Wn. App. 731, 972 P.2d 952 (1999), but it does not address
the issue in this case. Br. of Appellants at 31-32; Suppl. Br. of Resp'ts at 16. In
Silva, the court held that the landlord did not have just cause under SMC
tenant may bring a private cause of action for damages against a landlord who fails to carry
out the stated intent); see also Wash. Supreme Court oral argument, Faciszewski v. Brown,
No. 92978-5 (Nov. 8, 2016), at 24 min., 37 sec., recording by TVW, Washington State's
Public Affairs Network, http://www.tvw.org (acknowledging the statement in the Court of
Appeals opinion that once the landlord's certification is filed, the tenant has only
posteviction remedies, but arguing that statement does not reflect Landlords' position).
8 In its amicus brief, the City describes the remedies provided in the JCEO as
nonexclusive. Br. of Amicus Curiae City of Seattle at 7.
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22.206.160(C)(l )(d) because the landlord provided the tenant with only two 1 0-day
notices within a 12-month period, while the ordinance required three notices. Silva,
94 Wn. App. at 736. Silva demonstrates that tenants can use the landlord's lack of
just cause as a defense in an eviction action. Beyond that, Silva does not help us
resolve the issue in the present case.
Tenants also direct us to New Jersey cases interpreting a similar New Jersey
state just cause eviction law. Pet. for Review at 11; Suppl. Br. ofPet'rs at 5-6. These
cases are not particularly helpful. Tenants primarily rely on Durruthy v. Brunert, in
which the court held that the owner of a building with two residential and two
commercial units could invoke a provision of New Jersey's Anti-Eviction Act
permitting the owner of a building "'of three residential units or less'" to evict a
tenant upon a showing that the owner '"seeks to personally occupy a unit."' 228
N.J. Super. 199, 200, 549 A.2d 456 (1988) (quoting N.J. STAT. ANN. 2A:l8-
6l.l(l)(3)). Durruthy interprets the meaning of"building of three residential units
or less," which has nothing to do with the issue in the present case. See id. at 201.
The only relevant portion of the case states that "the record before [the court] does
not justify" a finding that the owner intends to personally occupy the unit, as the
testimony was incomplete and "neither the witnesses nor counsel focused on the
factual question whether [the owners] had adequately proved their asserted bona fide
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intention to occupy" the unit. Id. at 203. Although this language parallels the
requirement under SMC 22.206.160(C)(1) that landlords must "prove in court that
just cause exists," it does not address the main inquiry in this case: whether the
landlord's certification under SMC 22.206.160(C)(4) is dispositive on the question
of just cause. Durruthy is therefore not helpful.
Tenants also rely on Hale v. Farrakhan, 390 N.J. Super. 335, 915 A.2d 581
(2007). Suppl. Br. ofPet'rs at 6. In Hale, the court held that in a wrongful eviction
action, the landlord has the burden of proving his failure to personally occupy the
unit was not arbitrary. 390 N.J. Super. at 337. Because Hale concerned wrongful
eviction actions brought by tenants, rather than unlawful detainer actions brought by
landlords, the case is of limited usefulness. While Hale provides some insight as to
why New Jersey state courts also place the burden of proof on the landlord in an
unlawful detainer action, id. at 340-41, the issue in the present case does not concern
who bears the burden of proof. Rather, this case concerns the ability of the tenant to
present evidence rebutting the landlord's certification of intent.
Lastly, Tenants rely on N'Jie v. Mei Cheung, No. 09-919, 2011 WL 809990
(D.N.J. Mar. 1, 2011) (unpublished), aff'd, 504 F. App'x 108 (3d Cir. 2012). Suppl.
Br. of Pet'rs at 6. In N'Jie, the court granted the landlords' motion for summary
judgment regarding just cause for nonrenewal of a lease agreement. 2011 WL
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809990, at *2-3. The court found that the landlords showed an "authentic, subjective
intention to personally occupy" the unit. Id. at *3. Because the tenants merely
disputed the landlords' reason for wanting to personally occupy the unit, rather than
the landlords' actual intention to do so, the court found that the tenants failed to raise
a genuine issue of material fact. Id. Although N'Jie suggests that the tenant may
dispute the landlord's actual intentions before being evicted, the present case again
involves a distinct issue. Accordingly, N'Jie does not guide us in resolving this case.
Given the limited guidance in case law on the issue presented in this case, our
focus must be on reading the language of the ordinance in a commonsense manner.
We carefully examine the text in light of the stated purpose of the JCEO, which is
to "protect from eviction those tenants who may be subjected to misuse of those just
causes." Seattle Ordinance 117942, at 3 (Dec. 14, 1995). Indeed, the text of the
ordinance itself suggests that the city council intended to prevent "arbitrary
eviction[s]." SMC 22.200.020(D). In this regard, the JCEO should be understood
as remedial in nature. "'A remedial statute is one which relates to practice,
procedures[,] and remedies."' Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 223-
24, 173 P.3d 885 (2007) (quoting State v. McClendon, 131 Wn.2d 853, 861, 935
P.2d 1334 (1997) (plurality opinion)). "[W]e construe remedial statutes liberally in
accordance with the legislative purpose behind them." Jametsky v. Olsen, 179
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Wn.2d 756, 763, 317 P.3d 1003 (2014). "The same rules of construction apply to
interpretations of municipal ordinances as to interpretations of state statutes." City
of Puyallup v. Pac. Nw. Bell Tel. Co., 98 Wn.2d 443, 448, 656 P.2d 1035 (1982).
Because the JCEO is a remedial ordinance designed to prevent arbitrary evictions,
we interpret it liberally to accomplish this purpose. See Jametsky, 179 Wn.2d at
763.9
SMC 22.206.160(C)(1) provides that a tenant cannot be evicted without
having the opportunity for a show cause hearing. A show cause hearing must be
meaningful, as it is the first (and sometimes the only) step of the eviction process in
which the tenant is able to participate. See, e.g., Leda v. Whisnand, 150 Wn. App.
69, 83, 207 P.3d 468 (2009) (a tenant "subject to an action for unlawful detainer
9 Landlords contend that courts should interpret the JCEO strictly in their favor.
Resp. Br. at 9. They argue, "Just as the unlawful detainer act grants landlords an
accelerated eviction process unknown at common law, the [ JCEO] grants tenants additional
procedural and substantive rights unknown at common law." Id. Because the unlawful
detainer act is in derogation of the common law, it is strictly construed in favor of the
tenant. !d. According to Landlords, it therefore follows that the JCEO, which is also in
derogation of the common law, should be strictly construed in favor of the landlord. Id. at
10. While this argument has some logical appeal, it overlooks the fact that the proceeding
at issue is actually an unlawful detainer action, not a special proceeding under the JCEO.
Even if we agree that tenants must strictly comply with JCEO provisions (for example, by
making a timely complaint to the director under subsection (C)( 4), this does not lessen the
burden on landlords to establish just cause for eviction. Compare RCW 59.18.200(l)(a)
(requiring only that a residential landlord in Washington provide a tenant with 20 days'
advance written notice), with SMC 22.206.160(C)(l) (requiring a residential landlord in
Seattle to have "just cause" before evicting a tenant).
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[must] be afforded 'a meaningful opportunity to be heard'" (quoting Carlstrom v.
Hemline, 98 Wn. App. 780, 790, 990 P.2d 986 (2000))). The Court of Appeals
acknowledged this point: "Although a show cause hearing is not the final
determination of the rights ofthe parties in an unlawful detainer action, the trial court
frequently decides the necessity of a trial at the hearing. As occurred here, the show
cause hearing often provides the only opportunity for a tenant to present any
evidence." Faciszewski, 192 Wn. App. at 446 (emphasis added) (footnote omitted).
At a show cause hearing, "[t]he court shall examine the parties and witnesses orally
to ascertain the merits of the complaint and answer." RCW 59.18.380. The court
may not "disregard evidence that credibly supports a legitimate defense." Led a, 150
Wn. App. at 81. Otherwise, RCW 59.18.380 would be rendered meaningless,
"nothing more than a requirement that superior courts hold perfunctory and
purposeless hearings on matters to be decided solely on the pleadings." I d. at 84.
In the context of the JCEO, a show cause hearing is not meaningful if it does
not provide a tenant with the opportunity to contest the landlord's certification of
just cause. The only opportunity to contest the certification appears to be at the show
cause hearing, where a tenant has the "opportunity ... to contest the eviction." SMC
22.206.160(C)(1 ). The JCEO does not specify what effect the filing of a certification
has on the determination of just cause at a show cause hearing. Subsection (C)( 4)
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addresses only the effect of not filing a certification, providing that "[t]he failure of
the [landlord] to complete and file such a certification after a complaint by the tenant
shall be a defense for the tenant in an eviction action based on this ground." In the
context of the JCEO as a whole, it seems unreasonable to infer that the certification
is otherwise dispositive of the determination of just cause.
First, in contrast to other provisions of the ordinance, SMC 22.206.160(C)( 4)
does not delineate any adjudicatory authority of the director to make this
determination. See, e.g., SMC 22.206.235(A) (authorizing the director to "issue an
order ... containing the decision within fifteen (15) days of the date that the review
[of a notice of violation] is completed"); see also SMC 22.206.280(F) ("The Director
shall request in writing that the City Attorney take enforcement action."). This
suggests that the director plays no role in determining the legitimacy of the
landlord's certification, certainly not for purposes of an unlawful detainer action.
Second, although the JCEO provides tenants with posteviction remedies if the
landlord does not follow through on the stated grounds for eviction, nothing in the
JCEO suggests that the city council intended the landlord's certification to prevent
the tenant from taking advantage of preeviction remedies. The City describes its
ordinance as follows: The JCEO "provides that an owner's failure to make a
requested certification is a defense to eviction .... [It] goes no further. It does not
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stop a tenant from rebutting a certification in an unlawful detainer action." Br. of
Amicus Curiae City of Seattle at 3. Rather, "the purpose of a pre-eviction
certification is to help assure----not conclusively prove----that the owner's claimed
cause actually exists." !d. at 10. As Tenants correctly note, "[I]n an unlawful
detainer action, what happens after the tenant has been evicted is not the issue."
Reply Br. of Appellants at 18-19 (emphasis added). Given that the remedy under
SMC 22.206.160(C)(4) was intended to ensure that "the invoked causes actually
exist," Seattle Ordinance 117942, at 3, and that nothing in SMC 22.206.160(C)(4)
prevents the tenant from contesting the eviction in a show cause hearing before the
eviction, a reasonable reading is that the tenant must have the opportunity to contest
the veracity of the landlord's certification at the show cause hearing.10
While the remedies under the JCEO provide an incentive for landlords to act
fairly, nothing in the JCEO suggests that posteviction remedies are a tenant's
exclusive remedy once the landlord files a certification. Given that the JCEO is
more protective of tenants than is state law, it would seem odd that the ordinance
10 This interpretation of the JCEO does not undermine the summary nature of
unlawful detainer proceedings. See Amicus Curiae Mem. of Rental Hous. Ass'n of Wash.
at 8 (noting that show cause hearings are "designed to be more efficient than trials"); see
also Christensen, 162 Wn.2d at 375-76 (the purpose of the unlawful detainer statute "is to
provide a landlord with a speedy, efficient procedure by which to obtain possession of the
premises after a breach by the tenant"). It simply recognizes that the JCEO does not
fundamentally alter such proceedings.
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would leave a tenant with a lesser ability to defend against an unlawful detainer when
a landlord files a certification. Moreover, the remedy provisions of SMC
22.206.160(C)(6) and (7) do not rest on whether the landlord can prove just cause in
an action to terminate a tenancy. Instead, they provide a separate cause of action if,
after an eviction or attempted eviction on certain grounds, the landlord does not
fulfill or carry out the stated reason. With respect to the eviction action itself, two
provisions of the JCEO clearly provide that the landlord must have just cause, SMC
22.206.160(C)(l), and that the lack of just cause can be raised by the tenant
defending against the action, SMC 22.206.160(C)(5).
We hold that Seattle's JCEO does not restrict the tenant's opportunity to
contest the truthfulness of the landlord's certification at an unlawful detainer show
cause hearing. It follows that a judicial officer at the show cause hearing may accept
relevant evidence of just cause and the landlord's certification is not dispositive. The
lower courts erred by refusing to consider the evidence Tenants presented on the
issue of just cause and relying solely on Landlords' certification.
III. Attorney Fees
Landlords request attorney fees pursuant to RAP 18.1. Suppl. Br. ofResp'ts
at 19. The RLTA provides that "the prevailing party [in an unlawful detainer action
regarding a holdover tenant] may recover his or her costs of suit ... and reasonable
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attorney's fees." RCW 59.18.290(2). Both the superior court and the Court of
Appeals awarded attorney fees to Landlords under the RLTA. CP at 245;
Faciszewski, 192 Wn. App. at 455.U Landlords do not prevail under our
interpretation of the JCEO, and we thus deny their request and reverse the award of
fees below.
Tenants also request attorney fees pursuant to RAP 18.1. Pet. for Review at
20. That rule requires the party to "devote a section of its opening brief to the request
for the fees," providing that "[r]equests made at the Court of Appeals will be
considered as continuing requests at" this court. RAP 18.l(b). Although Tenants
requested attorney fees only in their petition for review in this court, they requested
fees in their opening brief at the Court of Appeals. Br. of Appellants at 37-38.
Accordingly, we treat Tenants' request for fees under RCW 59.18.290(2) as
continuing. See RAP 18.1 (b). Because Tenants prevail in this court, they are entitled
11 While the Court of Appeals awarded fees pursuant to RCW 59.18.290(2), it is
unclear which provision the superior court relied on. Landlords cited to RCW 59.18.410
at the superior court, CP at 263, and again cite to that provision in their briefing, Suppl. Br.
ofResp'ts at 19. RCW 59.18.410 provides, "If upon the trial the verdict of the jury or, if
the case be tried without a jury, the finding of the court be in favor of the [landlord] ... the
court may award statutory costs and reasonable attorney's fees." That provision further
states, "This section also applies if the writ of restitution is issued pursuant to a final
judgment entered after a show cause hearing conducted in accordance with RCW
59.18.380." Both provisions appear to support an award of attorney fees to the prevailing
landlord.
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to attorney fees and we remand to the superior court to determine the amount of fees
and expenses to be awarded to Tenants. See, e.g., Humphrey Indus., Ltd. v. Clay St.
Assocs., LLC, 176 Wn.2d 662, 677, 295 P.3d 231 (2013) (reversing the trial court's
award of fees); see also RAP 18.l(i); RCW 59.18.290(2).

Outcome: CONCLUSION
We reverse the Court of Appeals and remand to the superior court for further
proceedings consistent with our interpretation of the JCEO. That the purpose of the JCEO is to prevent arbitrary evictions and provide tenants with more protections than under state law suggests that the tenant's posteviction remedies are not exclusive once the landlord files a certification. Nothing in the JCEO itself prevents the tenant from challenging the landlord's certification. Rather, the JCEO expressly requires that the
tenant have the opportunity to contest the eviction at the show cause hearing. We hold that such an opportunity includes contesting the landlord's certification of intent.

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