Opinion
No. 64324-0-I.
Filed: April 11, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-2-05619-6, Mary Yu, J., entered October 16, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Leach, J.
Roger Skinner appeals the trial court's summary judgment dismissal of his claims against the City of Medina and five of its employees. We hold that his failure to comply with former RCW 4.96.020 (2006), the claim filing statute, bars his claims against the City and its employees. RCW 4.24.510, the anti-SLAPP (strategic lawsuits against public participation) statute, also bars his action against the employees. Skinner has failed in his burden to prove beyond a reasonable doubt that either statute is unconstitutional. Additionally, RCW 4.24.510 is a proper basis for the imposition of statutory damages and attorney fees in favor of the employees against Skinner. The trial court did not abuse its discretion in awarding the amount of fees that it imposed against him under this statute. We affirm.
We deny Respondents' Motion to Strike Legal Arguments Raised by Appellant for the First Time on Appeal.
Roger Skinner was a police officer with the City for 15 years. The department terminated Skinner after two employees reported that he made inappropriate comments to them. Briana Beckley reported that Skinner told her that the Chief of Police, Jeffrey Chen, referred to Beckley and Linda Crum as "monkeys at a keyboard" and said that "any monkey could do [their] job." Crum also reported that Skinner told her that Chief Chen made the same statement. In addition, Beckley reported that Skinner told her "[o]ne thing I've noticed is that even though there are a lot of Asian people in Seattle, there aren't a lot of Asians as supervisors at [sic] Seattle. I think Asians don't make good managers because people don't like them."
Clerk's Papers at 133.
Id.
Beckley and Crum reported these comments to Daniel Yourkoski, who was serving as the Acting Chief of Police while Chief Chen was out of town. Yourkoski reported the complaints to Chief Chen and Doug Schulze, the City Manager. The City Manager initiated an investigation. Based on the results of that investigation, he issued Skinner a notice that he would be discharged based upon the seriousness of his actions, the overall negative impact on the organization, and the chance of similar problems in the future. Skinner was allowed to present his version of the events and any mitigating information at a Loudermill hearing attended by City Manager Schulze and Chief Chen. City Manager Schulze then discharged Skinner.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
Skinner appealed his termination to the Medina Civil Service Commission. During a public hearing, Beckley, Chief Chen, Crum, City Manager Schulze, and Yourkoski (collectively "the employees") all testified against Skinner. The Commission upheld Skinner's termination.
Skinner then filed two claims with the City. The first claim was filed on November 10, 2008. He re-filed the same claim again on January 21, 2009.
He commenced this action on January 29, 2009, eight days after he filed the second claim. In his complaint, he stated claims for wrongful termination, negligent hiring, and negligent supervision of the employees. He also stated a claim of negligent infliction of emotional distress against each employee.
The City and the employees moved for summary judgment, claiming that Skinner did not comply with the claim filing requirements of former RCW 4.96.020 (2006). They also claimed that his action was prohibited under RCW 4.24.510, Washington's anti-SLAPP statute. The trial court granted summary judgment to the City and the employees. The court also awarded attorney fees and statutory damages to the employees under RCW 4.24.510. Skinner appeals.
CLAIM FILING STATUTE
Skinner argues that he complied with the terms of the claim filing statute, former RCW 4.96.020 (2006). He also claims that this statute violates the privileges and immunities clause of article I, section 12, of the state constitution. For the first time on appeal, he also makes other claims not argued below. None of his arguments are persuasive.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We review de novo a trial court's order granting summary judgment, taking all facts and inferences in the light most favorable to the nonmoving party.
Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 497, 210 P.3d 308 (2009) (citing Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007)).
Compliance with Statute
Skinner argues that he satisfied the requirements of former RCW 4.96.020 (2006). We hold that he did not.
Former RCW 4.96.020 (2006) provides that:
(1) The provisions of this section apply to claims for damages against all local governmental entities and their officers, employees, or volunteers, acting in such capacity.
. . . .
(3) . . . If the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which the claim is required to be filed, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant.
(4) No action shall be commenced against any local governmental entity, or against any local government entity's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.
Former RCW 4.96.020(3), (4) (2006) (emphasis added).
Plaintiffs are required to comply with statutory claim filing procedures. '"Although the claim filing statutory scheme authorizes substantial compliance with the laws specifying the content of the notice of claim, strict compliance is clearly emphasized with the filing procedures themselves."' Failure to strictly comply with statutory filing requirements will result in dismissal of the action.
Delos Reyes v. City of Renton, 121 Wn. App. 498, 502, 86 P.3d 155 (citing Williams v. State, 76 Wn. App. 237, 248, 885 P.2d 845 (1994)), review denied, 152 Wn.2d 1031 (2004).
Id. (quoting Sievers v. City of Mountlake Terrace, 97 Wn. App. 181, 183, 983 P.2d 1127 (1999) (citing Pirtle v. Spokane Pub. Sch. Dist. No. 81, 83 Wn. App. 304, 309, 921 P.2d 1084 (1996))).
Id. (citing Sievers, 97 Wn. App. at 183).
Here, Skinner claims in his briefing that he provided the City with a verified claim on January 21, 2009 and then filed his lawsuit on January 29, 2009. He claims this filing was necessary to satisfy the statute of limitations with respect to the employees who are also defendants in this lawsuit. His attorney sent a letter to the City, dated February 5, 2009, advising that he would not take any further action in this lawsuit until he re-served the City after sixty days had passed. Skinner also claims that the City's filing and service of its answer and its discovery after the February 5 letter and before 60 days had passed since his January 21 filing relieved him of any duty to serve the City again.
Amended Brief of Appellant at 20.
Id.
Id.
Id.
First, these arguments are unsupported by any citation to case or statutory authority. We must assume that he has found none.
State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978) (courts may assume that where no authority is cited, counsel has found none after search).
Second, and more importantly, these arguments do nothing to show compliance with the plain words of the statute. We assume, for purposes of argument only, that he filed a verified claim with the City on January 21, 2009. Subsection (4) of the statute makes clear that this action for tortious conduct could not be filed "until sixty days have elapsed after the claim has first been presented to and filed with" the City. It is undisputed that Skinner filed this lawsuit on January 29, which was before 60 days had elapsed from his January 21 claim filing. What the City did by way of answer or discovery in this lawsuit is irrelevant to the fact that Skinner prematurely commenced this action.
Former RCW 4.96.020(4) (2006) (emphasis added).
Skinner does not argue that he substantially complied with the time for filing an action under this statute. In any event, the supreme court addressed that argument in Medina v. Public Utility District Number 1 of Benton County. There, the supreme court considered whether a plaintiff may substantially comply with the time requirements of former RCW 4.96.020 (1993). The plaintiff filed a tort claim against the County two days before the statute of limitations was to expire. He then filed suit against the County in superior court four days before the 60-day waiting period under former RCW 4.96.020 (1993) was to expire. He served the County with the summons and complaint three months later. The County raised the affirmative defense of failure to comply with the waiting period in an amended answer. The plaintiff argued that he substantially complied with former RCW 4.96.020 (1993). The supreme court held that this statute is not subject to substantial compliance with respect to the time for filing:
147 Wn.2d 303, 53 P.3d 993 (2002).
Id. at 309. Former RCW 4.96.020 (1993) included a 60 day waiting period almost identical to the one required by former RCW 4.96.020 (2006). The main difference is that the 1993 requirement only applied to actions against local government entities and not its officers, employees, or volunteers. This difference is immaterial to the issue of substantial compliance.
Id. at 307.
Id. at 308.
Id.
Id.
Id. at 315-16.
[W]here time requirements are concerned, this court has held that 'failure to comply with a statutorily set time limitation cannot be considered substantial compliance' with the statute. The purpose of [former] RCW 4.96.020(4) [(1993)] is to establish a period of time for government defendants to investigate claims and settle those claims where possible. Compliance with a waiting period can be achieved only through meeting the time requirements of the statute.
Id. at 317 (internal quotation marks and citations omitted) (emphasis added) (citing City of Seattle v. Pub. Emp't Relations Comm'n, 116 Wn.2d 923, 929, 809 P.2d 1377 (1991); Forseth v. City of Tacoma, 27 Wn.2d 284, 297, 178 P.2d 357 (1947)).
For the first time in his reply brief, Skinner argues that he also filed an unverified claim with the City on November 10, 2008. His new position is that this unverified claim would have permitted him to file suit on January 29, 2009, allegedly complying with the 60-day requirement of the statute. This argument fails for several reasons.
Reply Brief of Appellant at 11.
First, Skinner's claim submitted on November 10, 2008, was neither signed nor verified by Skinner. Verification is required to comply with the filing requirements of former RCW 4.96.020 (2006). Skinner does not argue that he was incapacitated, a minor, or a non-resident of Washington at the time the claim was filed, entitling him to have his agent present the claim. Therefore, the November filing, which was neither signed nor verified by Skinner, was not in compliance with the claims filing statute.
See Schoonover v. State, 116 Wn. App. 171, 184, 64 P.3d 677 (2003); Delos Reyes, 121 Wn. App. at 503-04; Johnson v. King County (Metro Transit), 148 Wn. App. 220, 226-27, 198 P.3d 546 (2009). But see Gates v. Port of Kalama, 152 Wn. App. 82, 90, 215 P.3d 983 (2009) (holding that verification is not required for compliance with RCW 4.96.020).
See RCW 4.96.020(3) (2006).
Second, Skinner's argument rests on a Division Two case, Gates v. Port of Kalama, which holds that a claimant need not personally verify his or her tort claim under former RCW 4.96.020 (2006). We note that the holding in Gates departs from an earlier Division Two case and two Division One cases. More importantly, this is an argument that he did not raise in his opening brief, despite the fact that the case was published before his opening brief was filed. We do not generally address arguments first raised in a reply brief. We adhere to that rule here and will not address this new argument.
152 Wn. App. 82, 215 P.3d 983 (2009).
Id. at 90.
See Schoonover, 116 Wn. App. at 184.
See Johnson, 148 Wn. App. at 226-27; Delos Reyes, 121 Wn. App. at 503-04.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); see RAP 10.3(c).
Constitutional Challenges
Skinner claims that the statute, as applied, violates the federal constitution and article I, section 12, of the state constitution. Specifically, he claims that it provides government employees a privilege not available to other state citizens. We conclude that we need not reach the merits of this constitutional claim.
Equal protection under the law is guaranteed by both the Fourteenth Amendment to the United States Constitution and article I, section 12, of the Washington Constitution. "The appropriate level of scrutiny in equal protection claims depends upon the nature of the classification or rights involved." Strict scrutiny applies to suspect classifications, such as race, alienage, and national origin. "Strict scrutiny also applies to laws burdening fundamental rights or liberties. Intermediate scrutiny applies only if the statute implicates both an important right and a semi-suspect class not accountable for its status." Absent a fundamental right or suspect class, or an important right or semisuspect class, rational basis review is appropriate.
State v. Hirschfelder, 170 Wn.2d 536, 550, 242 P.3d 876 (2010).
Id. (citing Am. Legion Post No. 149 v. Dep't of Health, 164 Wn.2d 570, 608, 192 P.3d 306 (2008)).
Id. (citing Am. Legion Post No. 149, 164 Wn.2d at 608-09).
Am. Legion Post No. 149, 164 Wn.2d at 609 (internal quotation marks and citations omitted).
Hirschfelder, 170 Wn.2d at 550 (citing Am. Legion Post No. 149, 164 Wn.2d at 609).
Here, Skinner made no equal protection claim under the federal constitution below. Moreover, he does not argue why, under RAP 2.5(a) or other authority, we should review any new assertion of federal constitutional claims on appeal.
See Clerk's Papers at 44 n. 1.
As for the state claim under article I, section 12, Skinner's argument below was limited to the assertion that the statute "unquestionably provide[s] government employees with a privilege not afforded to employees of private corporations." On appeal, Skinner's only argument is that a fundamental right is implicated here, requiring strict scrutiny of the statute as applied. He did not make that argument below. And he does not argue why we should reach his new argument on appeal under RAP 2.5(a) or other authority. Accordingly, we will not further address this constitutional claim.
Clerk's Papers at 47.
ANTI-SLAPP STATUTE
Skinner argues that RCW 4.24.510, the anti-SLAPP statute, was unconstitutionally applied to him because it also violates article I, section 12 of the state constitution. Specifically, he claims that it provides immunity for the employees that is not available to employees of private corporations. He also makes other constitutional arguments. We conclude that we need not reach the merits of this constitutional claim.
Amended Brief of Appellant at 11.
As a preliminary matter, there is no genuine issue of material fact that the employees qualify for immunity under the statute. Skinner does not challenge immunity on this basis. And, based on the plain language of the statute, they are covered by it. During a public hearing before the Medina Civil Service Commission, all of the employees testified as witnesses against Skinner. They explained the offensive and racist remarks Skinner made during his employment for the City. In doing so, they were "person[s] who communicate[d] a complaint or information to [a] branch . . . of . . . local government . . . regarding [a] matter reasonably of concern to that . . . organization[,]" as required for immunity under the statute.
Skinner made no equal protection claim under the federal constitution below. And he does not argue why, under RAP 2.5(a) or other authority, we should review any new assertion of federal constitutional claims on appeal.
See Clerk's Papers at 44 n. 1.
Skinner did challenge RCW 4.24.510 on the basis of article I, section 12, below. But his argument was limited to the assertion that the statute provides the employee defendants a special immunity under RCW Title 4, Chapter 24, that is not generally provided to other citizens. There is no citation to case or other authority to support this claim.
Clerk's Papers at 46.
He now solely argues that a fundamental right is implicated, requiring strict scrutiny of the statute as applied. But, he did not make that argument below. And, as we observed previously in this opinion, he does not argue why we should reach any expanded argument on appeal under RAP 2.5(a) or other authority. Accordingly, we will not further address this constitutional claim.
ATTORNEY FEES
Skinner argues that the attorney fees awarded to the employees were not properly segregated and were not reasonable. We disagree.
Washington only allows a party to recover attorney fees under a statute, contract, or some well-recognized principle of equity. Where attorney fees are only recoverable on some of a party's claims, the award must reflect a segregation of the time spent on the varying claims. But, "the court is not required to artificially segregate time in a case . . . where the claims all relate to the same fact pattern, but allege different bases for recovery."
Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 525, 210 P.3d 318 (2009) (citing Quality Food Ctrs. v. Mary Jewell T, LLC, 134 Wn. App. 814, 817, 142 P.3d 206 (2006)).
Dice v. City of Montesano, 131 Wn. App. 675, 690, 128 P.3d 1253 (2006) (citing Hume v. Am. Disposal Co., 124 Wn.2d 656, 672, 880 P.2d 988 (1994)).
Ethridge v. Hwang, 105 Wn. App. 447, 461, 20 P.3d 958 (2001).
The appellate court reviews attorney fee awards made pursuant to a statute for abuse of discretion. "When it takes a view no reasonable person would take, or applies the wrong legal standard to an issue, a trial court abuses its discretion."
Humphrey Indus., Ltd. v. Clay Street Assoc., LLC, 170 Wn.2d 495, 506, 242 P.3d 846 (2010).
Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265 (2000) (citing State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997)).
Here, each of Skinner's claims arose out of the same fact pattern: his termination due to comments he allegedly made to Beckley and Crum. The trial court dismissed his actions under two statutes, former RCW 4.96.020 (2006) and RCW 4.24.510. However, only RCW 4.24.510 allows an award of attorney fees:
A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense. . . .
Skinner does not contest the awardability of fees, only the amount.
In a declaration supporting the employees' motion for attorney fees, their attorney explained that $27,024.30 out of $38,895.70 in fees was expended to prepare a defense under RCW 4.24.510. The declaration includes 25 pages of redacted invoices as support.
The trial court awarded attorney fees under RCW 4.24.510 in the amount of $27,024.30. In a handwritten note on the order, the trial court stated that "[t]he ct reviewed all of the billing statements submitted finds that the amounts requested are reasonable that the claims have been segregated. The rate is consistent with that of comparable attorneys in the Puget Sound area."
Clerk's Papers at 337.
The trial court did not abuse its discretion in its award of attorney fees to the employees. The amount awarded on this particular defense was properly segregated from the total amount of fees incurred. Further, the amount awarded was supported by detailed billing statements and reviewed by the trial court.
Skinner argues that the attorney for the employees supported the $27,024.30 figure with "only a conclusory and arbitrary statement in her declaration. . . ." This is untrue. As described above, and in the trial court's order, detailed billing statements supported the amount.
Amended Brief of Appellant at 17.
Skinner appears to argue that the award was not properly segregated because the attorney for the employees did not specifically calculate the fees expended for the former RCW 4.96.020 (2006) defense and the malicious prosecution counterclaim. He cites no authority for this argument. The only amount relevant to the award was the fees incurred establishing a defense under RCW 4.24.510. This amount was properly segregated from the total fees incurred. Skinner's argument is not persuasive.
Skinner argues that some of the charges in the billing statements are "seemingly" not related to the RCW 4.24.510 defense. He cites a number of specific charges that he claims were erroneously included. Each was also challenged in his objection to the motion for attorney fees at the trial court. In a supplemental declaration, the attorney for the employees responded to each of Skinner's challenges, providing the same explanations for the charges that are now included in the Brief of Respondents. Skinner's claim that "defendants have simply provided a pack of invoices to the court with no explanation as to their relevance" is not true. Based upon the explanations provided by the employees' attorney and considered by the trial court, the court did not abuse its discretion in finding these fees reasonable.
We affirm the summary judgment order and judgment for attorney fees.