Wash. Court of Appeals published opinion — 389189_pub.pdf

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trial within 30 days. See Meadow Park Garden Assocs. v. Canley, 54 Wn. App. 371,

373-74, 773 P.2d 875 (1989) (citing former RCW 59.18.380 (1973)).

Even if a landlord convinces the court of a likelihood of success on the merits and

obtains a writ of restitution, trial may still be necessary. See IBF, LLC v. Heuft, 141 Wn.

App. 624, 634-35, 174 P.3d 95 (2007); see also Webster, 18 Wn. App. 2d at 256 (noting

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38918-9-III
Kiemle & Hagood Co. v. Daniels

the issue of possession pending trial “is entirely distinct from the final resolution” of the

parties’ rights). There is a distinction between possession and the right to possession.

Pleasant, 126 Wn. App. at 387. Similar to the summary judgment context, if a tenant

raises “a genuine issue of . . . material fact” pertaining to a defense against eviction, the

case must go to trial, even if the tenant has temporarily lost possession pursuant to a writ

of restitution. RCW 59.18.380; see also Faciszewski, 187 Wn.2d at 315 n.4. The right to

trial is by jury unless waived. RCW 59.12.130.

ANALYSIS

Operative notices

The parties dispute which presuit notices remained viable at the time K&H

initiated the unlawful detainer action on January 10, 2022. According to K&H, suit was

based on the November 3 notice to comply or vacate and the December 27 notice to quit

and vacate. Ms. Daniels counters that the November 3 notice expired after 60 days

pursuant to RCW 59.18.190. Thus, the only operative notice was the one issued on

December 27. We agree with Ms. Daniels.

Under RCW 59.18.190, a notice giving a tenant the opportunity to remedy

nonconformance with a rental requirement expires after 60 days “unless the landlord