SNIDER v. TOWN OF RAINIER, 27268-7-II (Wash.App. 7-12-2002)

No. 27268-7-II.The Court of Appeals of Washington, Division Two.
Filed: July 12, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Thurston County, No. 99-2-01049-1, Hon. Richard A. Strophy, April 20, 2001, Judgment or order under review.

Counsel for Appellant(s), John Stocks, Van Siclen Stocks Firkins, 721 45th St. NE, 4508 Auburn Way N, Auburn, WA 98002.

Counsel for Respondent(s), Eileen M. Lawrence, Attorney At Law, 22603 238th Place SE, Maple Valley, WA 98038.

Erin F. Rice, Attorney At Law, 22603 238th Pl SE, Maple Valley, WA 98038-8335.

ELAINE M. HOUGHTON, J.

Harry Snider appeals from a trial court order dismissing his various claims against the Town of Rainier. We affirm.

FACTS
Snider and officials of the Town of Rainier (Rainier) have been antagonistic since 1994. Snider believes that Rainier targeted him for being outspoken at town council meetings and in the local press. He alleges that, in retaliation, `(e)lected officials in the town of Rainier used coercive tactics to deter (him) from speaking out and pursuing his rights, including his right to free speech, . . . to criticize and question public officials about their conduct, and . . . to pursue and operate his business.’ Appellant’s Brief at 4.

On December 1, 1997, Snider gave Rainier statutory notice under RCW 4.96.020 of his claim for damages against it. Approximately one and one-half years later, on June 4, 1999, Snider filed and served a summons and complaint. In it, he alleged that beginning in August 1994, and continuing through the time of the complaint, agents of Rainier `violated (his) civil rights, abused their power, and . . . engaged in illegal spot zoning and malicious prosecution among other illegal tortious conduct.’ Clerk’s Papers (CP) at 308.

Snider alleged that the retaliation took two forms: `(1) creation and enforcement of ordinances specifically targeting plaintiff’s business; and (2) failure by Rainier’s police and officials to adequately prosecute claims made by plaintiff or to protect him from the illegal retaliations.’ CP at 315.

Snider alleged interference with business expectancies, `intentional, reckless, and/or negligent infliction of emotional distress,’ `defamation and false light,’ negligence, abuse of power, malicious prosecution, assault and battery, and false arrest. CP at 316. He also alleged a cause of action under 42 U.S.C. § 1983[1] for violation of his civil rights under color of law. The evidence Snider claims supports his allegations is as follows.[2]

Snider owned an automobile repair business located across the street from the Town Hall. Adjacent to Snider’s business is a piece of land and public right of way owned by Rainier. Snider apparently parked his customers’ vehicles in the right of way and on Rainier’s property. On August 22, 1994, Mayor Mike Elliott wrote to Snider and asked him to move vehicles associated with Snider’s business off Rainier’s property.

Apparently, Snider did not comply with this request. On December 27, 1994, Snider received a document entitled `Notice to Abate Unsafe or Unlawful Condition (Nuisance).’ CP at 106. This notice told Snider that he was in violation of Ordinance 334 for `(o)bstructing or enroaching (sic) upon or rendering unsafe for passage any public easement, right-of-way (sic), highway, private way, street, alley, park, square, driveway, lake, or stream in the town.’ CP at 106.

On January 30, 1995, Snider received a letter notifying him that he was delinquent in paying his 1994 business and occupation taxes. This notice advised him that if he did not pay the taxes in full by January 31, 1995, he would be in violation of Ordinance 353. Ordinance 353 provided, in relevant part, that nonpayment of taxes would prevent Snider from renewing his business license, which would prevent him from being able to do business in Rainier. Ordinance 353 further provided that `(a)ny person . . . who fails or refuses . . . to pay the tax when due . . . is guilty of a misdemeanor.’ CP at 116.

On April 11, 1995, Snider received another Notice of Civil Infraction for Failure to Abate Nuisance for parking violations. Snider lost business because Rainier ticketed his customers’ vehicles when parked near his shop.

On July 25, 1995, the Mayor and the Rainier Town Council passed a new parking ordinance, Ordinance 361. This ordinance was more comprehensive than past ordinances and included both commercial and noncommercial vehicles. Snider alleges that Rainier drafted this ordinance specifically to target him.

To support this charge, Snider submitted several declarations. Council member Mike Liefer stated that the ordinance is unreasonable because `(e)verybody who parks on the street in town will be in violation of this ordinance,’ apparently suggesting that it would only be selectively enforced. CP at 25. Charlene Logan, a former mayor, stated that `(i)t appears that if our officials cannot control a citizen one way, they just write up an ordinance, (and) pass it at the next meeting. Then it is enforced only on the person . . . for which it was written.’ CP at 269. Another Rainier citizen, Charles Oliver, also stated his belief that Snider was being targeted.

A former Rainier police officer, Andrew Ditzel, declared that, while a member of the Rainier Police Department, he received instructions directly from Mayor Elliott and the police chief to ticket any vehicles parked on town property adjacent to Snider’s business. He was not instructed to ticket vehicles parked on other town property. This upset Ditzel and made him `sick to (his) stomach’ because he believed that the Mayor and the chief of police were harassing Snider. CP at 30. Jim Swilley, another former Rainer police officer, also declared that he believed that Snider had been singled out for selective enforcement of Rainier’s ordinances. Snider claims that media attention on Rainier officials prevented them from enforcing the new parking ordinance against him for about a year. Later, on May 30, 1996, Snider received a notice that he was in violation of Ordinance 361. According to Snider, on December 20, 1997, he received another parking violation citation.[3]

As further evidence of Mayor Elliott’s animus, Snider alleges that the Mayor and his son, James Elliott, grabbed Snider’s arm on August 26, 1995. Snider claims that James Elliott threatened to harm him by yelling that he would `kick his ass.’ CP at 287. To support this charge, Snider provided a declaration from his father, William E. Snider.

On October 2, 1995, Snider reported to the police that a member of the Rainier Town Council had driven erratically and forced him to take evasive action. Former Rainier police officer Swilley declared that he cited the council member for negligent driving. But because the complainant was Snider, the chief of police did not forward Swilley’s investigation to the prosecutor, and the case was dismissed. Swilley also declared that Mayor Elliott and the chief of police implemented a policy that required all later investigations involving town officials to be referred to the chief of police.

On February 13, 1996, Snider approached Mayor Elliott as he entered his truck. Snider claims that he told the Mayor that Snider would go to the media concerning corruption that he believed the Mayor was involved in. But the Mayor told the police that Snider threatened his life. Snider was arrested. Snider was released, but he was served with a restraining order preventing him from entering the Rainier Town Hall and preventing contact with Mayor Elliott or his family.

Despite the restraining order, Snider claimed that on February 15, 1996, the Mayor’s son, James Elliott, taunted him by following him closely in his car, lunging at him, and driving in front of Snider’s house shouting obscenities. Snider claims, that despite witness statements supporting Snider’s assertions, the police did not arrest James Elliott. Snider alleged that more than a year later, on July 3, 1997, James Elliott again screamed at Snider and threatened to harm him. Snider reported the incident, but James Elliott was not arrested.

Snider also claims that he was arrested `on bogus charges’ of reckless driving in 1997 and in May 1999, which were dismissed in court. Appellant’s Brief at 25. Snider provides only his own declaration to support this.

On September 25, 2000, Rainier filed a motion for summary judgment to dismiss Snider’s claims on various grounds, which the trial court granted. Snider appeals.

ANALYSIS
Standard of Review

We review orders of summary judgment by engaging in the same inquiry as the trial court. Milligan v. Thompson, 90 Wn. App. 586, 593, 953 P.2d 112 (1998) (citing Failor’s Pharmacy v. Department of Social
Health Serv., 125 Wn.2d 488, 493, 886 P.2d 147 (1994)). Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no issues of material fact. CR 56(c). We consider the evidence in the light most favorable to Snider, as the nonmoving party, and review questions of law de novo. Milligan, 90 Wn. App. at 593. Statutes of Limitations, Lack of Prima Facie Case

The trial court dismissed Snider’s claims of defamation, false arrest, malicious prosecution, assault, battery, and violations of his civil rights because they were time barred by the statutes of limitations. The trial court also indicated that Snider failed to introduce sufficient evidence to create material issues of fact on these claims, as well as for the claims of outrage and negligent and intentional infliction of emotional distress.

A statute of limitations bars a claim that a plaintiff fails to bring within the proscribed time.[4] RCW 4.16.005. When bringing a claim against a government entity, the claimant must file a notice with the government entity and wait for 60 days before filing the complaint. RCW 4.96.020(4).

The statute of limitations is tolled for 60 days after the government body is given the required notice of the claim. RCW 4.96.020(4). Filing the claim with the government entity does not commence the claim for purposes of the statute of limitations. See Sievers v. City of Mountlake Terrace, 97 Wn. App. 181, 183-84, 983 P.2d 1127 (1999) (holding that a claim is commenced by serving a copy of the summons and complaint or by filing the complaint, as provided by CR 3(a)). Here, although Snider gave Rainier his notice of intent to sue for damages on December 1, 1997, that filing only tolled the statute for 60 days. When the 60-day period ended, the statute continued to run. Snider filed his complaint on June 4, 1999. June 4, 1999, is therefore the date to use when determining whether Snider filed his complaint for claims against Rainier within the applicable statutes of limitations.

Claims of defamation, assault, battery, or false imprisonment must be commenced within two years of the date of the alleged tortious conduct. RCW 4.16.100(1). False arrest is also governed by this two-year period. Heckart v. Yakima, 42 Wn. App. 38, 39, 708 P.2d 407 (1985).

Here, because of the 60-day waiting period, to meet the statute of limitations, the alleged tortious conduct giving rise to one of the these claims must have occurred no more than 2 years and 60 days before June 4, 1999. Therefore, the incidents must have occurred on or after April 5, 1997.

Defamation

Snider appears to base his defamation claim on Mayor Elliott’s report to police that Snider threatened to kill him,[5] which occurred on February 13, 1996. Because this date was before April 5, 1997, it does not fall within the applicable statute of limitations.

False Arrest

Snider’s claim of false arrest also is based on his February 13, 1996 arrest for intimidating a public servant.[6] This claim is thus also time barred because it falls outside the applicable statute of limitations.

Assault and Battery

The basis of Snider’s assault and battery claim is the August 1995 incident when Mayor Elliott allegedly grabbed Snider’s arm. Again, this claim is barred because it falls outside the applicable statute of limitations.

Malicious Prosecution

A claim for malicious prosecution (abuse of process) must be brought within three years from the time the allegedly tortious acts are committed. RCW 4.16.080(2); Nave v. City of Seattle, 68 Wn.2d 721, 724, 415 P.2d 93 (1966). Therefore, to fall within the statute of limitations, the alleged tortious conduct giving rise to this claim must have occurred no longer than 3 years and 60 days before June 4, 1999.

Snider’s claim of malicious prosecution is also based partly on his February 13, 1996 arrest. This event falls outside the statute of limitations because it did not happen within 3 years and 60 days of June 4, 1999.

Snider also bases this claim on the prosecution of various parking violations and delinquent municipal business and occupation tax. Snider alleges that Rainier `interfere(d) with (Snider’s vehicle repair) business through the use of a non-commercial nuisance ordinance, and or other ordinances that were not yet in existence or which were specifically passed to target Mr. Snider.’ Appellant’s Brief at 8.

Snider provides the following dates for these incidents. On December 27, 1994, Snider received a notice to abate a nuisance regarding parking violations. On January 13, 1995, Snider received a notice indicating that he was delinquent in paying business and occupation taxes for the previous year. On January 30, 1995, Snider received a second notice regarding delinquent taxes. On April 11, 1995, Snider received another notice to abate a nuisance by violating parking ordinances. On May 30, 1996, Snider received a notice that he was in violation of a new parking ordinance. On January 20, 1997, Snider received another parking violation notice.

The operative date for determining the statute of limitations for these claims is also the June 4, 1999 filing date. The May 30, 1996 and January 20, 1997 parking violation notices occurred within the statute of limitations. That is, within 3 years and 60 days before June 4, 1999. If Snider were able to establish a prima facie case for malicious prosecution (abuse of process) based on these two incidents, this claim survives. To maintain an action for malicious prosecution, Snider must plead the following elements: (1) the prosecution was instituted or continued by the defendants; (2) without probable cause; (3) and through malice; (4) the proceedings were terminated in favor of the plaintiff; and (5) the plaintiff suffered injury as a result. See Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993). Malice may be inferred from lack of probable cause and from proof that the investigation or prosecution was undertaken with improper motives or reckless disregard for the plaintiff’s rights. Turngren v. King County, 104 Wn.2d 293, 306, 705 P.2d 258 (1985).

Here, although Snider alleges a multitude of improper motives, he does not provide evidence that the May 30, 1996 and January 20, 1997 parking violations terminated in his favor, as is required. Thus, this claim fails.

42 U.S.C. § 1983

Claims for civil rights violations under 42 U.S.C. § 1983 must be commenced within three years of the alleged violation. Hayes v. City of Seattle, 76 Wn. App. 877, 880, 888 P.2d 1227 (1995) (`a uniform application of state law limitation periods for personal injury actions is best suited to the remedial purposes of section 1983′), affirmed, 131 Wn.2d 706 (1997). Here, to fall within the statute of limitations, Snider must establish that the conduct giving rise to this claim occurred no more than 3 years and 60 days (the notice period) before June 4, 1999.

Snider appears to base this claim on the same conduct that supported his prosecutorial misconduct claim: the May 30, 1996 and January 20, 1997 parking violation notices. These incidents occurred within the applicable statute of limitations.

To succeed on a claim under 42 U.S.C. § 1983, Snider must establish two elements: (1) the violation of a right secured by the Constitution or laws of the United States and (2) that a person acting under the color of state law committed the violation. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Snider believes that his right to free speech has been violated, but he does not effectively argue how Rainier violated this right. His claim fails.

Intentional Infliction of Emotional Distress/Outrage

The trial court dismissed Snider’s claim of intentional infliction of emotional distress for failing to set forth a prima facie case. The elements of intentional infliction of emotional distress (outrage) are “(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.” Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 242, 35 P.3d 1158 (2001) (quoting Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987) (other citations omitted)).

The conduct alleged must be so outrageous in character and extreme in degree that it goes beyond all possible bounds of decency. It must be regarded as atrocious and intolerable in a civilized community. Snyder, 145 Wn.2d at 242.

Here, the only conduct that could arguably meet this standard is James Elliott’s. Snider alleges that on February 15, 1996, and on July 3, 1997, the Mayor’s son, James Elliott, `harassed and threatened (Snider) by approaching him.’ Appellant’s Brief at 23. But even if this behavior crossed the high bar of being beyond all possible bounds of decency, the younger Elliott is not a party to this lawsuit. Thus, this claim fails. Continuing Violation Doctrine

Snider next contends that the various statutes of limitations do not bar his claims because Rainier’s conduct was part of a continuing violation of Snider’s rights.

The continuing violation doctrine is traditionally used in employment discrimination claims. See Milligan, 90 Wn. App. at 595. It was developed to address two different types of employment discrimination: serial violations and systemic violations. Milligan, 90 Wn. App. at 595. Here, Snider alleges that, because Rainier engaged in conduct that is sufficiently analogous to serial violations in the employment discrimination context, we should extend the doctrine to allow his claims that fall outside statutes of limitations to proceed.

Serial violations are “composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate (actionable) wrong(.)” Milligan, 90 Wn. App. at 595 (quoting Sabree v. United States Bhd. of Carpenters Joiners Local No. 33, 921 F.2d 396, 400 (1st Cir. 1990)). In order to apply the continuing violation doctrine for serial violations, first, at least one of the discriminatory acts in the series must have occurred within the statute of limitations period. Milligan, 90 Wn. App. at 595. Second, there must be a substantial relationship or nexus between the timely and untimely claims. Milligan, 90 Wn. App. at 595. If these two requirements are met, the claimant can, in essence, reach back and recover the earlier acts that occurred outside the limitation period. Milligan, 90 Wn. App. at 595.

When determining whether a substantial relationship exists between the timely and untimely conduct, courts consider three factors: (1) whether the alleged acts involve the same type of conduct; (2) whether the alleged acts are recurring; and (3) whether the untimely act should have triggered the employee’s (here, Snider’s) awareness of and duty to assert his or her rights because it has a degree of permanence. Milligan, 90 Wn. App. at 595 (citing Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)). Permanence is the most important factor. Milligan, 90 Wn. App. at 595. It is an inquiry into what the plaintiff knew or should have known at the time of the untimely discriminatory act. Sabree, 921 F.2d at 402. “A claim arising out of an injury which is `continuing’ only because a putative plaintiff knowingly fails to seek relief” is the kind of claim a statute of limitations is intended to bar. Sabree, 921 F.2d at 402 (quoting Roberts v. Gadsden Mem’l Hosp., 850 F.2d 1549, 1550 (11th Cir. 1988)). In other words, a plaintiff may sue for acts that occurred outside of the statute of limitations if it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct because the acts are not actionable as discrete violations of the law. Stolzenburg v. Ford Motor Co., 143 F.3d 402, 405 (8th Cir. 1998).

We do not reach whether the continuing violation doctrine should be expanded beyond the employment discrimination context. Even assuming this doctrine is appropriately applied here, Snider fails to establish that there is a substantial relationship or nexus between the timely and untimely claims.

First, Snider’s claims of defamation, false arrest, assault and battery, and malicious prosecution each support separate causes of action and should have triggered Snider’s awareness of his duty to assert his rights.

Second, the only claims that may not have signaled to Snider that he was being discriminated against were the repeated parking violation notices. Snider argues that he was not aware of a discriminatory pattern until he had received several notices.

Yet Snider believed that he was the subject of retaliation from 1994. Snider signed a declaration stating that he became a vocal critic of the Mayor at a town council meeting in July 1994. Next, under the heading `First Retaliation,’ Snider states that Mayor Elliott wrote a letter on August 22, 1994, declaring “(t)he council has asked that your vehicles be removed from town property.” CP at 240. Snider then complained about the alleged retaliation later that month. He states, `I attended the next town council meeting on August 23, 1994, and I discussed the letter that I had received.’ CP at 240.

Because Snider believed that the Mayor was retaliating against him by issuing parking violation notices as early as 1994, his claim is not analogous to one in which the pattern of acts puts the plaintiff on notice after the pattern is established within the limitation period. A serial violation claim fails if the person knew or should have known that the earlier acts, which were untimely at the time of asserting the claim, were discriminatory at the time that they were taking place. `A knowing plaintiff has an obligation to file promptly or lose his claim.’ Sabree, 921 F.2d at 402; see also Milligan, 90 Wn. App. at 595.

Therefore, even if this doctrine applied to Snider’s claims and the claims would survive on their merits, this doctrine would not prevent his cause of action from being time barred.

Immunity

Snider further contends that the trial court erred in finding that immunity bars his 42 U.S.C. § 1983 claim is barred by immunity. Because his claims otherwise fail, we need not reach this issue.

Sanctions

Rainier requests sanctions from Snider for filing a frivolous appeal under RAP 18.9(a). Here, Snider raises a debatable issue of law: whether the continuing violation doctrine applies to his case. Our rejection of this argument does not render it frivolous. We therefore deny Rainier’s request for sanctions.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: SEINFELD, J., QUINN-BRINTNALL, A.C.J.