Mei Xia Huang v. Kannin Law Firm, P.S.

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MEI XIA HUANG, an Individual, Appellant, v. KANNIN LAW FIRM, P.S., a Washington Professional Services Corporation, and; JOHN JOSEPH KANNIN IV, Individually and on behalf of the Marital Community Comprised of JOHN JOSEPH KANNIN IV and JANE/JOHN DOE KANNIN, Respondent.

No. 86148-4-I

Court of Appeals of Washington, Division 1

October 7, 2024

UNPUBLISHED OPINION

Coburn, J.

This is Mia Xia Huang's second appeal related to the Pierce County Sheriff's Department (PCS) seizure of her real property in Federal Way following the execution of a search warrant and discovery of a sophisticated illegal cannabis grow operation inside the house. In the first appeal, this court affirmed the order forfeiting her property and rejected her argument that she was not properly served under RCW 69.50.505(3). Pastor v. 713 SW 353rd Place, 21 Wn.App. 2d 415, 427, 506 P.3d 658, review denied 200 Wn.2d 1005, 516 P.3d 378 (2022). Now Huang appeals the summary judgment dismissal of her legal malpractice suit against the attorney who represented her in that civil forfeiture hearing. We affirm.

STATEMENT OF THE CASE

On August 6, 2018, police and firefighters responded to a house fire in Tacoma.

In the process of extinguishing the fire, firefighters discovered a sophisticated cannabis grow operation. After obtaining a warrant, police searched the home and discovered 423 cannabis plants and a Western Union receipt for $900 from De Qiang Yang at 713 SW 353rd Place in Federal Way to Zhou Fu Chen.

After discovering the receipt in the Tacoma house, deputy Kristian Nordstrom began surveilling the Federal Way property. On May 3, 2019 Nordstrom applied for and was granted a search warrant for the Federal Way property. The warrant then expired due to unforeseen circumstances. He then applied for another search warrant on May 15. In it he included the information that was the basis for obtaining the first warrant and explained as much in his affidavit for the May 15 warrant, which included the following information.

Nordstrom had been employed by PCS for 25 years and, at the time of the affidavit, was assigned to the Special Investigations Unit as a narcotics investigator. Nordstrom also included his various education and training that exceeded his "in-house training" with PCS, including in the areas of street drugs enforcement and indoor cannabis cultivation. He stated that he has experience with drug-related investigations and has assisted in hundreds of narcotics and evidence search warrants for illegal substances.

Nordstrom listed various items and methods that indoor cannabis grow operations use to avoid law enforcement detection. These include, for example, "blacked out or covered windows doors or other visibly detectable areas to avoid outsiders from identifying any portion of the grow operation." Additionally, Nordstrom described, based on his training and experience, that the odor associated with growing cannabis is "'skunky'" or "'pungent sweet musty.'" He stated that information about the manufacture, distribution, or sale of controlled substances can often be found in receipts and other records. "Papers showing ownership, residency occupancy and other indicia corroborate" can indicate how long illegal drug activity has occurred or where it has occurred.

According to Nordstrom's affidavit, the investigation following the discovery of the Western Union receipt confirmed that the Federal Way "house's outward appearance was consistent with other homes which have been converted into marijuana grows." Specifically, most of the windows' blinds were drawn and "covered so effectively that no light is ever visible through the windows." Similarly, the garage door was never fully open, "if it is opened at all." During the surveillance, PCS observed a white Toyota Sienna with a Washington license plate registered to Yang at 713 SW 353rd Place, a white Lexus SUV registered to Huang at a California address, and a maroon Toyota Sienna registered to Jiankang Chen at a Puyallup address.

Nordstrom described that on May 2 Yang's car was parked in the driveway and Huang's car was parked nearby in the cul-de-sac where the house was located. On this day, "the breeze was coming from the west/southwest." Nordstrom walked into the "short cul-de-sac" of only four homes from the northeast and could smell the odor of growing cannabis "immediately after rounding the corner of the house on the northwest corner." Directly downwind of the property, the odor of growing cannabis "only got stronger" as the officer walked toward the property "at the west/southwest head of SW 353^rd PL." Nordstrom walked slowly north of 7th Avenue SW and stopped frequently to ensure that the odor was not coming from "either of the other homes on the north side of SW 353^rd PL." Nordstrom verified that no person or entity had a license to grow or process cannabis at the address, and that no medicinal cannabis cooperative was registered there.

Nordstrom's affidavit also included information obtained after May 3, 2019. Nordstrom explained that after the May 3 search warrant expired, surveillance operations at 713 SW 353rd Place continued. During the continued investigation, Nordstrom again observed Yang's Toyota Sienna and Huang's white Lexus SUV at the residence. Nordstrom wrote that on May 15, 2019, he "saw two people leave the residence in the white Lexus SUV; neither loaded anything into the vehicle before leaving the neighborhood." Nordstrom explained that day he and detective Chad Dickerson were surveilling the subject home. "[W]ithout trespassing on the property, Detective Dickerson was able to position himself directly downwind of 713 SW 353^rd PL." "From this vantage point, when the breeze kicked up, Detective Dickerson was able to smell what he recognized as the odor of growing marijuana coming from 713 SW 353^rd PL." Nordstrom wrote:

In the Affiant's opinion, some of the above described equipment, chemicals, and circumstances seen or suspected to be found in the described location(s) during this investigation are consistent with items that would be required during the manufacture of marijuana, and that some of those items present a health and safety hazard to both individuals and the environment as defined in R.C.W. 70.105D.020(5), and should be destroyed pursuant to R.C.W. 69.50.511.

A superior court judge approved the search warrant, which was executed on May 20. As a result of the search, PCS discovered the home had been converted into a sophisticated cannabis grow operation. PCS detained Huang during their initial entry into the house. Huang's valid Washington State Identification Card listed her home address as the 713 SW 353rd Place Federal Way property.

In early June, Huang hired Kannin, who represented her through the forfeiture proceedings. After the court granted PCS's summary judgment motion and ordered the forfeiture of Huang's property, Kannin filed a notice of withdrawal. Huang retained replacement counsel and later appealed the forfeiture order to this court, raising multiple constitutional issues. In part, Huang turned to "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." Pastor, 21 Wn.App. 2d at 426-27. This court rejected Huang's arguments after 1) noting that Huang conflated jurisdiction terminology, 2) confirming that RCW 69.50.505(3) explicitly contemplates either personal service or substitute service of the interested party, and 3) discussing in detail how the sheriff's office complied with the notice provision of RCW 69.50.505(3). Id. at 419, 423, 425-29. We need not repeat this court's analysis here.

In November 2022, Huang filed a legal malpractice complaint against Kannin. Huang alleges that Kannin breached his duty of care in two ways. First, by failing to "raise the issue of the Pierce County Sheriff's Department failure to serve Ms. Huang with the Notice of Seizure within the 15-days required by RCW 69.50.505(3) in defense of the motion for summary judgment." Second, Huang alleges that Kannin breached his duty by failing to challenge probable cause underlying the search warrant executed on May 20, 2019.

Both parties moved for summary judgment. Kannin argued that Huang could not establish Kannin breached his standard of care because she did not have a standard of care expert and could not establish proximate cause because there was probable cause to issue the search warrant and Huang "had no viable jurisdiction, notice, or due process defenses." Huang requested the trial court to hold as a matter of law that the search warrant was not supported by probable cause. The trial court granted Kannin summary judgment and denied Huang's partial summary judgment as moot. The court later denied Huang's motion for reconsideration. Huang appeals.

DISCUSSION

We review summary judgments de novo. Strauss v. Premera Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019). Summary judgment is appropriate when "'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Strauss, 194 Wn.2d at 300 (alteration in original) (internal quotation marks omitted) (quoting Rangers Ins Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008)); CR 56(c). Summary judgment is appropriate only where a trial would be "useless." Wheeler v. Ronald Sewer Dist., 58 Wn.2d 444, 446, 364 P.2d 30 (1961).

We must construe all facts and inferences in favor of the nonmoving party. Scrivener v. Clark College, 181 Wn.2d 439 444, 334 P.3d 541 (2014). "At the very least, to support a motion for summary judgment the moving ...