. ... ,~. .. ''""""'' .......-..._,....,,..

"'::1"' ... ..,, ..,.., ...................... ..., ...... .

r-. .

OESR~'~f:rELT

~w
!SLANO COUNTY CLER~
,.r,., r, , LJf.

.J-1_Jd:

Lu I u H

13

p~1
11

3;rfj~ HONORABLE DAVE NEEDY

Skagit County Supe1ior Comt

4
5
6

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF ISLAND

,.;;,r.\,'\

~""~ 8
r ..... .. \
\.J. ,J 9
'
'
1-' r '

,r

f--110

JONATHAN DEEGAN and ALICE O'GRADY,

on behalf of themselves and others similarly
situated,

r-~
/ '

~-HI
.
l

PI ainti ffs,

,prf'"}

"'"'-sci{

2
V.

:r '\

NO. 14-2-00705-6

PLAINTIFFS' OPPOSITION TO
MOTION TO DISMISS UNDER
CIVIL RULE 12(b)(6)

''-,~'13
r

,t.ir')

. fJ'

. '"'j 4
15
16

17

WINDERMERE REAL ESTATE/CENTERISLE, INC., a Washington corporation; and

ACORN PROPERTIES, INC. dba RE/MAX
ACORN PROPERTIES, INC., a Washington
corporation,
Defendants.

18
19
20
21

22
23
24
25

26
27

Originals held at Terrell Marshall Daudt & Willie PLLC

SENT on AUGUST 13, 2015 VIA FAX FOR FILING IN ISLAND COUNTY SUPERIOR COURT
PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS

UNDER CTVTL RULE 12(B)(6)

CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & Wn..LIB PLLC

936 North 34th S!reet, Suite 300
Seallle. Washington 98103-8869
TEL. 206 .816.6603 FAX 206.350.3528
www. tmdwlaw. com

 ... ,..,

Page No.

2
.,

-:ii-- ..,. "' ' ....... -- - -- - --- - ..

TABLE OF CONTENTS

:)

0 I \"'"'W/ ........ ... ..,, .... ..,, ...

I.

INTRODUCTION ...................... ........... ....... ................................. .... ........................... ..... 1

II.

STATEMENT OF F1\CTS ...... ............. ..... ... ........ ....... ......... .... ............................... .......... 2

TTT.

EVIDENCE RELIED UPON ........... :... .. .... ........................ ....................................... ........ 6

IV.

STATEMENT OF ISSUES .......... ........ ...... ....................... ............................. ................... 6

V.

ARGUMENT AND AUTHORITY ................................. ~ ................... ............................. 6

7
8

A.

Standard of Review ................ ........................ ................ .................. .... ................. 6

10

B.

The CPA Does Not Impose a Duey oflnquiry ............................................ ....... ... 7

11

C.

Assuming a Duey of Inquiry Exists, Further lnqui1y Would Have

Been Fruitless ..... .......... ....... .. ... ...... .. ............. ................ .. ...... ............... ................. 8

12
13

I.

Plaintiffs do not have an Unlimited Duty of Inquiry ..... ............................ 8

14

2.

Whether Further Inquiry is Fruitless is a Question ofFact.. ..................... 9

15

D.

16
17

ICC 9.44.050 May Support a CPA Claim ........................................................... 12

1.

ICC 9.44.050 is Constitutional ............................... .. ........................... .... 13

2.

CPA Exemptions Must be Nan-owly Consnucd ........................ ............ .14

3.

Plaintiffs Have Pied Public Interest Impact.. ............ .. .... ........ ................. 15

18
19
E.

Plaintift:s' Claims are Independent of the Disclosures Mandated in

Form 17 ....... .... .. ............ ....... ............ .... ........... .. ... ... ... ..... ....... ...... ...... ~ ............ .... 16

F.

22

The Statute of Limitations Docs Not Bar Dccgau's Claims Against

Acorn ........ .......... ............... ..... ..... .... ...................... ....... ... ...... .... ........... ............... 19

23

1.

20

21

24

Deegan' s CPA Claim Accmed Less Than Four Years Before

the Complaint Was Filed ................. .. ....................... ..... .......................... 19

25
26
27
PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS
UNDER CIVTL RULE I 2(B)(6) - i
CASE NO. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE J'LLC

936 North 34th Street. Suite 300
Seattle. Washington 981038869
TEL. 206 .816 .6603 FAX 206 .350.3526
www .tmdwlaw.com

t-rom:

I IVIUVV t' L L\..,

......

2.

1
2

.,

G.

:,

IV.

\""""WI ----. - - - - -

Deegan Discovered the Injury to His Property and Acorn's

Deceptive Act Less Than Four Years Before the Complaint
Was Filed ..... .... .. ..... ............................... ..... ......... ....................................21

In che Alternative, Leave to Amend Should be Granted .. .................. ............. ... .24

CONCLUSION ............................... ... .......... ............................................... ........ ...... .... ..24

5
6
7
8
9

10

11
12
13

14

15
16
17
18
19
20
21

22
23
24
25
26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

PLAINTIFFS' OPPOSITION TO MOTTON TO DISMISS

UNDER CTVIL RULE I 2(B)(6) - ii
CASE NO. 14-2-00705-6

936 North 34th Street, Suite 300

Seattle, Washington 98 103-8869
TEL 206.81 6.6603 FAX 206.350.3528
www.lm dwlaw.com

'

... ...
~

..., ..,,

.......... -. -- - --- . ...

TABLE OF AUTHORITIES
Page No.

...

.)

5
6

STATE CASES
Allen v. State,
118 Wn.2d 753, 826 P .2d 200 (1992) ....................... ;........ ....... ............... ....................... 23
Aungst v. Roberts Const. Co., Inc.,
95 Wn .2d 439, 625 P.2d 167 ( 1981) ............................... ....... ....... .................................... 7

7
8
9
10

11
12

13

Bain v. Metro. A1ortg. Grp., Inc.,

175 Wn.2d 83,285 P.3d 34 (2012) ... ..................................................... ................... ......20
Bloor v. Fritz,
143 Wn. App. 718, 180 P.3d 805 (2008) ............. .......... ........................ .............. ...... ...... 16
Brown v. City of Yakima,
116 Wn.2d 556, 807 P.2d 353 (1991) ............................................................ ..... 13, 14, 17
Burbo v. Harley C. Douglas, Inc.,
125 Wn. App. 684, 106 P.3c.i 258 (2005) ..... ............... .............. ......... ............ .... ..............16

14

15
16
17

Caruso v. Local Union No. 690 oflnt'l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers ofAm.,
I 00 Wn .2d 343, 670 P.2d 240 ( 1983) ... ..................... ... ............ ..... ............................ .....24

Davis v. Cox,
183 Wn.2d 269,351 P.3d 862 (2015) ... .. ..... .. ......... .... ............ ........ ........ .. ....... ........... .. .... 8

18
19
20
21

22

Dickson v. Kates,
132 Wn. App . 724, 133 P.3d 498 (2006) ............. .......... ........... ....... ............. .. .... ...... ......... 9
Douglas v. Visser,
173 Wn. App. 823, 295 P.3d 800 (20 I 3) ......... .. ........... .......... .. ... ............... .... ............. 9, I 0

Edrnondr; v. .John L. Scott Real Estate, Inc.,

87 Wn . App. 834, 942 P.2d I 072 ( 1997) ....................... .... .. ................. ...... ..... .. ............ .. 10

23
24
25
26

Goodrnan v. Goodman,
128 Wn.2d 366, 907 P.2d 290 (1995) ... ....... ........... .. ..... ........ ....... ........... ........ ......... ...... 21
Grijjith v. Centex Real Estate Corp.,
93 Wn. App. 202,969 P.2d 486 (1998) .......................... ..... ......... ........... ...................... 7, 8

27
PLAINTIFFS ' OPPOSITION TO MOTION TO DISMISS
UNDER CIVIL RULE 12(8)(6)- iii
CASE No. 14-2-00705-6

TERRELL MARSHALL D AUDT & WILLIE PLLC

93 6 North 34th Street, SuH e 30 0
Sea llle, Wash ington 981 03 -8 869

TEL. 206.816 .6603 FAA 206.350.3528

www.tmdw1 aw.com

Halvorson v. Dahl,
89 Wn .2d 673,574 P.2d 1190 (1978) .... ...... .......... .......... ................................ .. ...........6, 9

1
2

Hangman Ridge Training Stables, lnc. v. Safeco Title lns. Co.,

105 Wn.2d 778,719 P.2d 531 (1986) .................... ........ ........... .................................. 6, 19

3
4

Hojfer v. State,
110 Wn.2d 415, 755 P.2d 781 (1988) .................... ...... ......... :...........................................6

Holiday Resort Cmty. Ass'n v. Echo Lake Assoc., LLC,

134 Wn. App. 210, 135 P.3d 499 (2006) ................... .. .. ...... ........... ... ...... ........ ... ..... .......... 6

7
In re Estate o_f Stover,
178 Wn. App . 550,315 P.3d 579 (2013) .................. ................... .... .. .... ......... .......... ....... 14

8
9

Johnston v. Beneficial Mgmt. Cmp. ofAm.,

85 Wn.2d 637, 538 P.2d 513 (1975) .... ................... .... ...................................................... 8

10
11

Lenci v. City of Seattle,

63 Wn.2d 664,388 P.2d 926 (1964) ..... ....................... ............ ....... .. ......... .. ............ ....... 13

12

Mayer v. Sto Indus. lnc.,

123 Wn. App. 443, 98 P.3d 116 (2004) .. .......... ............ .... .. .. .... ............. .. .... .................... 19

13
14

McRae v. Bolstad,
101 Wn.2d 161,676 P .2d496 (1984) ....................... .... ............. .. ...................... ....... 16, 19

15
16

Afurphey v. Grass,
164 Wn. App. 584,267 P.3d 376 (2011) ......................... ..................... ... ............ ...... ... ... 20

17

Puget Sound Serv. Cmp. v. Dalarna Mgmt. Cmp.,

51 Wn. App. 209, 752 P.2d 1353 ( 1988) ....... .... .......... ... ..... ........ ..... .. .... ........ .. .................7

18
19

Samuelson v. Cmty. Coll. Dist. No . 2,

75 Wn. App. 340, 877 P.2d 734 (l 994) ............... ... .... ... .. ... ........ ... .......... ....... .... .21 , 22, 23

20
21

Sherwoodv. Bellevue Dodge, Inc.,

35 Wn. App. 741 , 669 P.2d 1258 (1983) ......... ...... .... ........... .... .. ..... .............. ..... ...... .. ...... . 7

22

23

Sloan v. Thompson,
128 Wn. App. 776, 115 P.3d 1009 (2005) ....................... ... ... .... ... ....... .. ............... .......7, 11

24

State v. Peterson,
100 Wn.2d 788,674, P.2d 1251 (1984) ... .. ........... .. .. .. .. ................ .................. ..... .... .14, 15

25

26
27
TERRELL MARSHALL DAUDr & WnLIE

PLAINTIFFS' OPPOSITfON TO MOTION TO DfSMTSS

UNDER ClVTL RULE I 2(B)(6}- iv

CASE No. 14-2-00705-6

936 North 34th Street, Suite 300

Seattle, Washington 981038869

TEL. 206 .816.6603 FAX 206 .350:3528

www.lmdwtaw.co m

PLLC

1
2

5
6

State v. Seattle Taxicab & Transfer Co.,

90 Wash. 416, I 56 P. 83 7 ( 1916) ................ .... ................... ............ .... ............... ...... ........ 15
Steineke v. Russi,
145 Wn. App. 544, 190 P.3<l 60 (2008) .... ... ..... ...... ................................ .......... ............... 1 l
Svendsen v. Stock,
143 Wn.2d 546, 23 P.3d 455 (2001) .... ....................... ...... ... ........ .... .. ................ ....... 16, 17

Tenore v. AT & T Wire/es.~ Servs. ,

136 Wn.2d 322, 962 P.2d I 04 ( 1998) ...... ............. .. ... .... ........ .............. ... ................. ....... 21

7
8
9

10

II

Vogl v. Seattle-Firs! Nat'! Bank,

117 Wn.2d 541, 817 P.2d 1364 (1991) ............... ....... ... ................. ............ ................. 7, 14
Wardv. Bd. ofCnty. Comm 'rs, Skagit Cnty.,
86 Wn. App. 266, 936 P.2<l 42 (l 997) .......................................... ................. ......... .... ..... 13
Wright v. Jeckle,
I 04 Wn. App. 478, 16 P.3d 1268 (200 I ) .......... ....... .... ............... ... .................................... 6

12
13

FEDER,\.L CASES

14

15
16
17

Full': v. World S&.L Ass'n,

Case No. 08-0343, 2008 WL 5246440 (W.D. Wash. Dec. 17, 2008) ......... .................... 22
)Herritt v. Countrywide Fin. Corp.,
759 F.3d 1023 (9th Cir. 2014) ... ......... ...... ....... ..................... ....................... ... ...... ...... ..... 22

18
STA TE CONSTITUTION

19
20

Const. A.rt. l 1 .... .... ............................. ..................... ........... ... ...... .... .. ....... ... .. ....... .... ................... 12

21

STATE STATUTES

22
RCW 7.72.010(4) ................ .......... ... ........ ..... ....... .... ............ .. ... .. ....... ..... ... .... ... ........ .... .. .............. 7

23
24

RCW 19.86.120 .... .... ............ ......... ........................................ ... ..... ...................... ..... ....... ........... . 19

25

RCW 19.86.920 ....................... ............ .. .. .... ... .. .... .. ..... .... ...... .... .... ...... ... ............... ....... .............. ... 6

26

RCW 64.06.030 ... ..... .. .... .... ........... ..... ................ ............... ..... ..... .......................... ..... ..... ... ....... .. 15

27
PLAlNTlFFS ' OPPOSlTTON TO MOTION TO DISMISS
UNDER ClVTL RULE I 2(B)(6) - v
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLI!

936 North J4lh Street, Suite 300
Seattle, W ashington 98103-8869
TEL. 206.816 .6603 FAA 206.350.3528
www .tm dwlaw.com

PLLC

. --- .. ,---, - - --- -

RCW 64 .06.013 ................ ......................................... .......... ... .. .......... ............................. ............ 17

RCW 64.06.015 ..................................... ................................ ...................................................... 17
RCW 64.06.020 ................ ......................................... ............................................................... ... 17

RCW 64.06.050(2) ...... ........ ..... .......... ..... ................... ........................... ......................... ............. 17
RCW 64.06.060 ............. :......... .......... ..................................... ...... ............................. ... ... ............. . 1

COUNTY CODES

8
9

10

ICC 9.44.050 ....... ... .. ..... ........ ... .. ............................. ....... ......... ... ....... ... ....... ... ......... ............ Passini
ICC 14.0IB.100 ....................... .. .. ......... ................. ................... .................... ... ............. ....... Passim

11
12
13
14

STATE RULES

CR 12(b)(6) ................. ....... ... ... ....... ........................ ........ ...... ..... ............ ...................... .. ............. 11
CR 15(a) ................. .. ...................................... ..... ..... .... ... .... .... ............ ..... ........... .... ...... ... ........... 24

15
16
17

18
19
20

21

22
23
24
25

26
27
PLATNTIFFS' OPPOSITTON TO MOTION TO DISMISS
UNDER CIVIL RULE I 2(B)(6) - vi
CASE NO. 14-2-00705-6

TERllELL MARSHALL DAUDT & W ILLIE PLLC

936 North 34th Street, Suite 300
Seallle, Washington 981038869
TEL. 206 .816 .6603 FAX 206 .350 .3528
www .tmdwJaw.com

111. J ML.IVY rL.LV

r o,-. .

TI

\-'VVJ .JI V-V""l'..,U

I. INTRODUCTION

1
2

Plaintiffs purchased homes on Whidbey lsland in lsland County. ln connection with

that purchase they were given a disclosure related to noise abatement restlictions for new

consauction and alterations to existing structures. But no one, neither the seller nor the broker,

provided a second, required disclosure that warned of severe jct noise from US Navy airplanes

in the area. When Plaintiffs discovered that they had not been given the appropriate disclosure,

robbing them of the ability to make an informed decision about whether to purchase and how

much to pay for property in a severely noise impacted area, they brought suit under

Washington's Consun1er Protection Act, RCW ch. 19.86 et seq. ("CPA") against the brokers

10

tliat listed their property. Defendants now seek to escape liability for failing to provide this

11

required disclosure.

12

Defendants ask too much. They ask this Court to disregard Plaintiffs' well pled

13

allegations and weigh the evidence to come to the conclusion that Plaintiffs breached a duty of

14

further inqui1y. But as Plaintiffs demonstrate, even if a duty existed, a factual issue exists as to

15

whether such inquiry ,voul<l have been frnitless. A motion to dismiss is not the proper method

16

to resolve issues of fact.

17

18
19
20
21

22
23
24

Further, without citation to any authority, Defendants ask this Cowt to broadly construe

the seller disclosures required by RCW ch. 64.06 ("Form 17") because by legislative decree
those disclosures do not have any public interest impact for purposes of the CPA. See RCW
64.06.060. In doing so, Defendants ask this Court to ignore settled Jaw requiring a11
e_xemptions to the CPA to be narrowly construed.
Finally, :laintiff Deegan's claim is not ban-ed by the statute of limitations. For these
reasons and those stated below, Plaintiffs respectfully request that the Court deny Defendants'
motion to dismiss.

25

26
27
PLA !NT!FFS' OPPO 'f
UNDER CTHL RULE'S! ; ION TO MOTION TO DISMISS
CASE No. 14-2-00705-6 .(8)(6) - I

ltl?l/flf, MAJ?JJMUPAlJJ)l& Wl1J;Jl f U.

916NOJf/J 34/IJ S!reel, Sutle J(JIJ
TEL~ a/lie, Was/JiJgton 98/0J.8869

'06.8!5.660J , FAX20,J50.
www./mrfw1..., -- o.

.J5l8

~rom:

I MUVV t'LLI..

IV.

1
2

I" Q~,;-

I I '-'1

... .., .,...,, , ._.,,_.,. .., - - -

II. STATEMENT OF FACTS

Plaintiffs Jonathan Deegan and Alice O'Grady purchased property on Whidbey Island

in Island County. Complaint ,i,i 9- 10. Defendants were the listing offices and agents for the

homes they purchased and used a fom, created in 200 I by the Northwest Multiple Listing

Service ("MLS"), Fo1m 22\V. Complaint ,i,i 5-6. When making their purchases, the 2001

version of Form 22\V contained only one disclosure mandated by Island County Code ("ICC")

14.0IB.100, which warned them that certain noise abatement restrictions for new construction

and alterations to existing stmctures existed for property within certain "noise zones."

Complaint ,i,i 2, 6, 7, 2 1, 22, 23; see also Declaration of Jason T. Dennett in Support of Motion

10

to Dismiss Under Civil Rule l 2(b)(6), Ex. I & 2. But Defendants were also reqLiired to provide

11

another, difterent disclosure related to the severe jet noise on Whidbey Island caused by US

12

Navy aircraft in the area. This disclosure is mandated by a different Ts land County ordinance -

13

ICC 9.44.050. Complaint ,I,I 3, 16, 18, 19, Ex . A.

14

The following chart compares the two ordinances and their required disclosures.

15
16
Title: Airport and Aircraft Operations Noise
Disclosure Ordinance

Title: Noise Level Reduction Ordinance

17
18

Passed in 1992

Passed in 1993

19

No cross reference to ICC 14.0lB

No cross reference to ICC 9.44

20

Decibel Levels:

Decibel Levels :

21

Zone 2: 65-75

Zone 2: 60 to 70

22

Zone 3: Greater than 75

Zone 3: Greater than 70

See ICC 9.44.040

See ICC 14.0lB.040

23
24
25

26
27
PLAINTIFFS ' OPPOSITION TO MOTION TO DISMISS

UNDER CTVTL RULE I 2(B)(6) 2

CASE No. 14-2-00705-6

T ERRE LL M ARSHALL DAUDT & WILLIE

936 North 34th Street, Suite 300
Se atlle, Wa shinglon 98103-88 69
TEL. 206 .8 16 .6603 FAX 206.350.3528

www.lmdwlaw.co m

PLLC

1
2

4
5
6

Refers reader to the Community Planning

Liaison Office at NAS Whidbey Island and
the Island County Planning and Community
Development Department for "more specific
information regarding airport operation and
aircraft noise."

Refers reader to the "Noise Level Reduction

Ordinance," ICC 14.0 I B, "to dete1111ine the
restrictions which have been placed on the
subject property if any."

See ICC 14.0lB.100

See ICC 9.44.050

Noise Zones on Map differ from ch. 14.0 lB
ICC

Noise Zones on Map differ from ch. 9.44

ICC

Sets seller disclosure standards for homes

sold in noise impacted areas.

Sets sound proofing standards for new

construction and alterations to existing
dwellings.

Disclosure refers to:

Disclosure refers to:

Five active airport facilities (and names

chem);

Ault Field and OLF Coupeville are

tactical military jet aircraft facilities and
used for practice sessions;

8
9

10

11
12

13

14

15

Practice sessions may be scheduled both

day an<l night;

Jet noise may exceed the average noise

level and is not confined to the
boundaries of the noise zones; and

Noise generated by a single flyover of a

military jet may exceed 1OODBA.

16
17
18
19
20

Restrictions related to building

construction in noise zones.

See ICC 14.0IB.100

See ICC 9.44.050

22

Provides that when in conflict with more

restrictive laws, the more restrictive law
gove111s.

23

See ICC 14.0lB.150.

21

24

The thrust oflCC 9.44.050 is to warn of severe noise impacts by jet activity during

25

flyovers and practice sessions. Indeed, prospective purchasers should have been wamed of

26

increased decibel levels over 1OODBA.

27
PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS

UNDER ClVTL RULE I 2(B)(6) - 3

CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 North 34th Street, Suite 300
Seattle. Wa shington 98103 -88 69
TEL. 206.816.6603 FAX 206 .350 .3 528

www.tmdwlaw.com

PLLC

< ....... .

Tl

\~WV]

oJov- .................

The thrust ofTCC 14.0IB.100 is completely different. It warns only oflimitations on

consuuction and would not apply to any home buyer not contemplating either new construction

or alterations to existing sttuctures.

The differences between the ICC 9.44.050 disclosure and the ICC 14.0 IB. I00

disclosure arc further illustrated by comparing the ctuTCnt F01m 22W, which was revised in

2014 in an effort to comply with ICC 9.44.050, and the 2001 version of Form 22W that was

provided to Plaintiffs:

8
9

10

11
12

13
14

15

16
17

18
19

20
21

22
23
24

25
26

Island County Code Section 9.44.050

Disdoswe Statement
The Property may be located within
Airp01t Environs mapped impacted area.
There are currently 5 (five) active airport
facilities in Island County. The Oak Harbor
Airpa.t'k, the South Whidbey Airpark, and the
Camano Airpark are general av1at10n
facilities and ,uc identified on maps available
from the Island County Planning and
Community Development Depattment. Ault
Field and OLF Coupeville are tactical
military jet aircraft facilities and are also
identified on maps available from the Island
County
Planning
and
Community
Development Department. Both Ault Field
and OLF Coupeville are used for Field
CatTier Landing Practice (FCLP) purposes.
Practice sessions are routinely scheduled
during day and night periods.

The Property is located within an

Airport Noise Zone 2 or 3 Impacted area.
Persons on the premises may be exposed to a
significant noise level as a result of airport
operations. Island County has placed certain
restrictions on construction of property
within airport noise zones. Before
purchasing or leasing the above property,
you should consult the Island County Noise
Level Reduction Ordinance to dete1mine the
restrictions which have been placed on the
Property, if any.

Property in the vicinity of Ault Field

and
OLF
Coupeville
will
routinely
experience significant jet aircraft noise. As a
result airpott noise zones have been
identified in the immediate area of Ault Field
and OLF Coupeville. Jet aircraft noise is not,
however, confined to the boundaries of these
zones.

27
PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS
UNDER CIVIL RULE I 2(B)(6) - 4
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE PLLC

936 North 34th Street, Suite JOO
Seattle, Washington 981038869
TEL. 206.816.6603 FAX 206.350.3526
wwv,1.tmdwlaw.com

1
2

3
4

Additionally, the noise generated by

the single flyover of a military jet may
exceed the average noise level depicted by
the airport noise zones and may exceed 100
( one-hundred) dba.

More specific infonnation regarding

airport operation and aircraft noise can be
obtained by calling the Community Planning
Liaison Oflice at NAS Whidbey Island and
the Island County Planning and Community
Development Department.

Island County Code Section 14.018.100

Disclosure Statement

5
6

10
11
12

13
14

15
16

The Property may be located within

an Ai1port Noise Zone 2 or 3 impacted area.
Persons on the premises may be exposed to a
significant noise level as a result of airpo1t
operations. Island County has placed certain
restrictions on construction of prope1ty
within airport noise zones. Before purchasing
or leasing the Property, you should consult
the Island COlmty Noise Level Reduction
Ordinance to determine the restrictions which
have been placed on the Prope1ty, if any.
In recent years, Navy aircraft activity on Whidbey Island has clramatically increased and

17
18

community members complained to the Island Coru1ty government that they were never told

19

about the extremely loud noise and vibrations they now had to endure. Complaint 1 6. After

20

investigation, Island County's government discovered that the complaints had merit - real

21

estate sellers and brokers were not giving TCC 9.44.0SO's mandatory disclosure. Id.

22

Although Defendants now use the updated Fonn 22W revised in 2014, it still does not include

23

the map of the impacted noise zones. ld.

24

activity on Whidbcy Island have reduced the value of Plaintiffs' and Class members' property.

25

Id. 11 ~-

11117, 27.

~11 6, 24.

The noise and vibrations caused by Navy jet

26
27
PLATNTTFFS' OPPOSITION TO MOTION TO DlSMISS
UNDER ClVTL RULE I 2(B)(6) - 5
CASE NO. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLlE

936 North 34th Street, Suite 300
Seattle, W ashington 98103-8869
TEL. 206 .816 .6603 FAA 206 .350.3528
www.lmdwlaw.co111

PLLC

I ... A .

I \ ........ , ... ,.., . ... _,. ... ._.

III. EVIDENCE RELIED UPON

1
2

Plaintiffs reJy on the compJa1nt on tile in this action .

IV. STATEMENT OF ISSUES

4

l.

Whether Plaintiffs' complaint states a claim on which relief may be granted;

2.

Whether Plaintiff Deegan filed his claim within the statute of limitations; and

3.

Whether leave to amend should be granted if the court finds the allegations in

the complaint insufficient.

V. ARGUMENT AND AUTHORITY

8
9

A.

Standard of Re,iew

10

Dismissal of a complaint under Civil Rule 12(b)(6) is appropriate only if the complaint

11

alleges no facts that would justify recovery. Wright v. Jeckle, 104 Wn. App. 478,481, 16 P.3d

12

1268 (200 I). All allegations of fact and any reasonable inferences therefrom must be accepted

13

as true, and a court may consider hypothetical facts not in the record. Id; see also Holiday

14

Resort Cmty. Ass'n v. Echo Lake Assoc. , LLC, 134 Wn. App. 210, 218-19, 135 P.3d 499 (2006).

15

"[A ]ny hypothetical situation conceivably raised by the complaint defeats a CR l 2(b )( 6)

16

motion if it is legally sufficient to support plaintiffs claim." Halvorson v. Dahl, 89 Wn.2d 673,

17

674, 574 P.2d 1190 (1978). Civil Rule 12(b)(6) motions should be granted "sparingly and with

18

care" an<l "only in che unusual case in which plaintiff includes allegations that show on the face

19

of the complaint that there is some insuperable bar to relief." Hoffer v. State, 110 Wn.2d 415,

20

755 P.2d 781 ( 1988). "All pleadings shall be so construed as to do substantial justice." CR

21

8(t) .

22

CPA claims have five elements: (I) an unfair or deceptive act; (2) that occuned in trade

23

or commerce; (3) that atkcts the public interest; (4) an injmy to the plaintift's business or

24

property; and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co. , 105

25

Wn.2d 778, 784-85, 719 P .2d 531 (1986) . The purpose of the CPA is to protect the public and

26

to foster fair and honest competition. RCW 19 .86. 920. The CPA expressly provides that it is

27

PLAINTIFFS' OPPOSITTON TO MOTION TO DISMISS

UNDER CIVTL RULE I 2(B)(6) - 6
CASE NO. 14-2-00705-6

TEil.RF.LL MARS HALL D AUDT & W ILLIE

93 6 North 34th Street. S<1ite 300
Sea ttle, Washington 98103,8869
T EL. 206 .816 .6603 FAX 206.350.352 8
www.tm dwl aw.co m

PLLC

r-rom:

I IVIU\IV r"LLV

I Al'

-.

\VUU/

._..,...., ..,..., ... ._.

-::,<.o

................... - . - -- - ---

to be liberally construed so that "its beneficial purposes may be served.'' Id. "[T]o serve those

beneficial purposes, comts must nan-owly consttue the scope of the exemption provisions of the

CPA." Vogt v. Seatlle-First Nat'! Bank. 117 Wn.2d 541,552,817 P.2d 1364 (1991).

B.

The CPA Does Not Impose a Duty of Inquiry

Defendants would read into the CPA a duty of further inquiry. But that duty is based in

tort and fraudulent concealment. See e.g. Sloan v. Thompson, 128 Wn. App . 776, 785, 115

P.3d 1009, 1013 (2005); Puget Sound Serv. Corp. v. Dalarna Mgmt. Corp., 51 Wn. App. 209,

213, 752 P.2d 1353 (1988). The CPA, by contrast, is rooted neither in tort nor contract. Aungst

v. Roberts Const. Co., Inc., 95 Wn.2d 439,442, 625 P .2d 167 (1981). Indeed, the Washington

10

Supreme Cowt has found that the "Consumer Protection Act created a cause of action not

11

previously known to the common law." ld. Thus, "it [is] unnecessary to categorize allegations

12

of violations of the Consumer Protection Act .. . as other than simply violations of [that] act."

13

Id. Other courts have clarified that principle. In Sherwood v. Bellevue Dodge, Inc., 35 Wn.

14

App. 741,749,669 P.2d 1258 (1983), the court of appeals held that "[a]n action may be based

15

in patt upon a violation of the CPA and, in pait, upon tmt." Consequently, a plaintiff can

16

;,recover 1mder the CPA for a violation of that act, and, separately for .. . tort." Id. In fact,

17

Washington cmuts have allowed CPA claims to go forward where tort-based claims have been

18

precluded under the "economic loss mle." See, e.g., Grijjith v. Cemex Real Estate C01p., 93

19

Wn. App. 202,206, 969 P.2d 486 (1998). And the Legislature has even refused to group CPA

20

claims in the category of tott-based claims. For example, when it enacted the Product Liability

21

Act, RCW 7. 72.0 l O- .060, the Legislature defined a "product liability claim" to include "any

22

claim or action" based on "[s]trict liability in tott" or "negligence" but not "fraud, intentionally

23

caused ha1111 or a claim under the consumer protection act, chapter 19.86 R CW."

24

RCW 7.72.010(4) (2003) (emphasis added).

25
26

Just as the remedies available in a tort claim are separate and distinct from those
available in a CPA claim, so too aie the rights and duties that attach in tort distinct from U1e

27
PLAINTIFFS' OPPOSTTTON TO MOTION TO DTSMISS
UNDER CIVIL RULE I 2(B)(6) - 7
CASE NO. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 North 34th Street, Suite 300
Seatlle, Washington 98103-8869
TEl. 206.816.6603 FAX 206 .350.3528
www.tmdw1aw.com

PLLC

rrom:

I IVIUVV 1"'LL\...

c3A. TI \"VQJ .., I

.:;r-u... ...Jv

CPA context. See Johnston v. Ben[!ficial Mgmt. Corp. o/Am. , 85 Wn .2d 637,640,538 P.2d

513 ( 1975) (stating that the CPA 's '"unfair or deceptive acts or practices' ... is a new concept

and has no common law equivalent.") Thus, while a Plaintiff must establish that she satisfied

her duty offu1ther inquily in a fraudulent concealment case, no such duty exists in the CPA

context. Rather, a plaintiff must establish only the clements of the CPA claim. Herc, Plaintiffs

have pied chat Defendants' Fmm 22W notice constitutes an unfair or deceptive act. Any

examination of Plaintiffs' investigation of the noise is improper in the CPA context.

Defendants should not be allowed to read into the CPA common law tort duties that the

legislatw-e declined to create. See Davis v. Cox, 183 Wn.2d 269,351 P.3d 862,868 (2015)

10

(recognizing that a court '"cannot add words or clauses to an unambiguous statute when the

11

legislature has chosen not to include that language."' (quoting Stale v. Delgado, 148 Wn.2d

12

723, 727, 63 P.3d 792 (2003)).

13
14

C.

Assuming a Duty of Inquiry Exists, Further Inquiry Would Have Been Fruitless
Defendants' argument that Plaintiffs should have discovered both the existence of ICC

15

9.44.050 and the extent of the jct noise the ordinance warns of collapses into a single inqui1y:

16

Whether a reasonable investigation into the warnings provided under ICC 14.0lB.100 would

17

have led to the <liscovety ofICC 9.44.050 and its severe jet noise warnings, or whether such an

18

inqui1y would have been frnitless. Here, further inqui1y would have been fmitless.

19
20

I.

Plaintiffs do not have an Unlimited Duty of Inquiry

A general duty to disclose exists when facts known to the seller or its agent a.re not

21

easily <lif,coverable by the buyer. Griffith v. Centex Real Estate Corp., 93 Wn. App. 202,214,

22

969 P.2d 486 ( 1998). The failure to disclose may constitute an unfair or deceptive practice that

23

forms the basis of a CPA claim. Id. (citing Testa v. Ross Dunmire Oldsmobile, Inc., 16 Wn.

24

App. 39, 51, 554 P.2d 349 ( 1976)).

25
26

If a buyer is on notice of certain defects, and ti.11th er inqui1y would lead to the discove1y

that those defects were more severe than originally believed, then no duty of further disclosure

27
PLATNTlFFS' OPPOSTTTON TO MOTTON TO DTSMlSS
UNDER CTVTL RULE I 2(B)(6) - 8
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & Wll,LIE

936 North 34\h Street, Suite 300
Seattle, Washington 98103-8869
TEL. 206. 81 6 .6603 FAX 206.350.3528
www .lmdwlaw.com

PLLC

exists. See Douglas v. Visser, 173 Wn. App . 823,832,295 P.3d 800 (2013). In contrast, if

further inquiry wou1d have been fruitless, then it is not necessa1y. Id. at 833 .

...

A plaintiff's duty of inquiry is not limitless:

:,

We caution that the Douglas cs did not have a duty to perform

exhaustive invasive inspection, or endlessly assail the Vissers
They merely had to make huther
with further questions.
inquiries after discovering rot or at trial show that further inqui1y
would have been fruitless.

5
6

7
8
9

10

11
12
13
14
15
16

17

Id. at 834. See also Dickson v. Kates, 132 Wn. App. 724, 737, 133 P.3d 498 (2006) (finding
that real property purchaser is not required to search for encumbrances outside the chain of
title).
Here, Plaintiffs were required to look no farther than "The Noise Level Reduction
Ordinance" referenced in the disc1osure they received. And futther inqui1y into

rec

14.0 I B. l 00 would not have led to discovery of rec 9.44.050 because no cross reference exists.
Thus, any hypothetical further inqui1y would have been fluitless both as to the existence of ICC
9.44.050 and the jet noise disclosed by ICC 9.44.050. See Halvorson. 89 Wn.2d at 674 ("[A]ny
hypothetical situation conceivably raised by the complaint defeats a CR 12(b)( 6) motion if it is
legally sufficient to support plaintiffs claim.").
Whether Further Inquiry is Fruitless is a Question of Fact

18

2.

l9

The prima1y authority on which Defendant relies, Douglas v. Visser, 173 Wn. App. 823,

20

295 P .30 800 (2013), is a decision after a bench trial at which the court made extensive findings

21

of fact-not a motion to dismiss. Id. at 829-30. In Douglas, the plaintiffs contended that a

22

reasonable inquiry would not have put them on notice of the extent of the damage that the

23

defendants had hidden - that is, futther inquity would have been tiuitless. Id. at 832. The

24

court agreed that if futther inquiry had been tiuitless, the plaintiffs would have prevailed. Id. at

25

834. However, after a trial at which the court was able to weigh the evidence, it found that

26
27
PLA1NT1FFS' OPPOS1TTON TO MOTION TO DISMISS
UNDER ClVTL RULE I 2(B)(6) - 9
CASE No. 14-2-00705-6

T ERRELL MARSHALL D AUDT & Wn.LIE

936 North 341h Street , Suite 300
Seallle, Wa shington 9810 38869

TEL. 206.61 6.6603, FAA 206 .350.3526

www.lmdwlaw.com

PLLC

given the nature of the defects that were found- relating to the roof and the siding - further

investigation would have turned up more extensive defects of that character. Id

...

:>

Defendants rely on Douglas for the proposition that so long as a buyer is on notice of

the existence of a defect, a buyer cannot establish an unfair or deceptive act under the CPA

even where the seller has failed to disclose the nature and extent of the defect. Defendants'

reliance on Douglas is misplaced. Douglas involved the seller's failure to disclose the

existence of rot and water damage--defects whose disdosure is not specifically regulated by

statute or ordinance. Id. at 826-27. By contrast, here, the Island County Council has evaluated

the nature of the property deficiency and determined the specific form and content of the

10

disclosure statement that wi11 put a buyer on notice of the defect. Through ICC 9.44.050 the

11

Island County Council established that the Fonn 22W notice provided by Defendants was

12

insunicient to put the buyers on inquiry notice. Accordingly, Douglas is inapplicable.

13

Moreover in Edmonds v. John L. Scot/ Real Es/ale, Tnc., 87 Wn. App. 834,942 P.2d

14

1072 (1997), the Comt of Appeals explicitly hclc.i that au agent's misrepresentation of the

15

condition of real property constitutes a deceptive act under the CPA even where the buyer was

16

aware of the condition, but not its extent. Id at 848. In that case, the buyer, Edmonds,

17

inspected a house and found pooled water in the basement. A subsequent inspection report

18

confirmed the existence of a water problem in the basement. Id at 841. The seller's property

19

information form "failed to disclose ... the extent of the previous drainage work." Id. at 848.

20

Upon discovering additional flooding, Edmonds terminated the transaction and sought the

21

retum of her earnest money. When John L. Scott detennined Edmonds was in breach and

22

refused to retum her earnest money, Edmonds sued alleging inlcr alia fraudulent concealment

23

and CPA violations. Following a bench trial, the appellate court affim1ed the trial court's

24

dete1mination that the seller's agent violated the CPA "by failing to disclose the extent of the

25

drainage work that had been perfonned." Id. at 843. The court reached this conclusion despite

26

the fact Edmonds had personally observed the water and had received an inspection report

27
PLAINTIFFS' OPPOSlTTON TO MOTION TO DISMISS
UNDER ClVTL RULE I 2(B)(6) - I 0
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WU..LlE PLLC

936 North 34th Streel, su;te 300
Seattle, Wash;ngton 98103 -8869
TEL. 206 .816 .6603 FAX 206 .350.3526

www.tmdwlaw.com

detailing the existence of the water problem. The court reasoned that an incomplete disclosure

"may 1nduce the purchaser into buy1ng propetty under a false belief as to its condition." Id. at

...

849 .

.)

The case of Sloan v. Thompson, 128 Wn. App. 776, 115 P.3d 1009 (2005), also makes

clear that a buyer has no duty to further investigate where such investigation would be fruitless.

In Sloan, following a bench trial, the appellate court found that the plaintiffs had no duty of

further inquily into detects in the home they purchased, even though they had rented the home

for six years and had experienced a multitude of problems before filing suit. During their six

year rental, the plaintiffs experienced roof leakage, rotting decks, electrical problems, plwnbing

10

problems, and water contamination. Id. at 789. Further, the purchase contract for Uie home

11

provided the sale was "as is." Id. at 782. After the completion of the purchase, the plaintiffs

12

discovered strucrural defects in the framing of the house and defects in the septic system. Id. at

13

790. The court held that the problems the plaintiffs experienced before purchase would not

14

have put them on notice of these additional defects because they were not of the same character

15

that the plaintiffs had experienced. ld at 789-90. That is, fi11ther inquiry into the detects the

16

plaintiffs knew about would have been fruitless in info1111ing them about the defects of which

17

they were unaware. See also Steineke v. Russi, 145 Wu. App. 544, 564-65, 190P.3d 60 (2008)

18

(finding no duty to further investigate roof leakage where seller represented no leakage had

19

occurred and expert testified that a reasonable property examination would not have uncovered

20

damage from leaks).

21

Here, no trial has yet taken place. The case is at the pleadings stage. Plaintiffs have

22

pied that they did not receive the appropriate disclosure (~I 2); that they were unable to make

23

infonned decisions about purchasing their homes because of the failure to receive the

24

disclosure required by 9.44.050 (~ 3); and that they received only the disclosure required under

25

lCC 14.01B.100

26

pleadings. CR 12(b)(6).

(~~

9-10). These allegations must be taken as true at this stage of the

27

PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS

UNDER ClVTL RULE I 2(B)(6) - I I
CASE No. I 4-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 North 34th Street, Suite 300

. Seattle, Washington 98103-8869

TEL. 206 .816 .6603 FAX 206 .350 .3528
www.tmdwlaw.com

PLLC

, .... ~.

1
2

\ '-UY/ .... , .... .........,. ........

As illustrated by the cha.rt comparing the two ordinances in Section II, supra, a question
of face exists as to whether disclosure related to building and conscmction limitations under
ICC 14.0 lB.100 would lead to the discovery of the extensive noise warnings contained in ICC

9.44.050. Even if potential purchasers looked up the "Noise Reduction Ordinance" referenced

in the ICC 14.018.100 disclosure - which they would have no reason to do unless they were

interested in new constrnction or soundproofing - they would find no reference to ch. 9.44 ICC.

Disclosures about limitations to construction are 11ot the same as disclosures about frequencies

of landings and potential noise levels. ICC 9.44.050 is a mandatory disclosure designed to

info1m and protect the public. Failure to give it is a violation of law. Defendants argue in

10

essence that if potential buyers heard one plane flying overhead they would be on notice of

11

potential noise and the failw-e co give the legally required disclosure would not be actionable.

12

That position should be rejected. Defendants cannot obtain dismissal of Plaintiffs' complaint

13

by al1eging, without further discovery and fact finding, that further inquiry would not have been

14

fruitless.

15

D.

16

ICC 9.44.050 Ma)' Support a CPA Oabn

Washington's legislature passed RCW ch. 64.06 in 1995. In contrast, ICC 9.44.050

17

became law three years prior, in 1992. Defendants incorrectly argue that ICC 9.44.060

18

contradicts RCW ch. 64.06 because it requires a disclosure not required by that statute. Usually

19

when an ordinance contradicts a statute, it is unconstitutional (i.e., preempted). See Const. Art.

20

11, 11 ("Any county, city, town or township may make and enforce within its limits all such

21

1ocal police, sanitary and otherregulations as are not in conflict with general laws .").

22

But Defendants make the unusual argument that ICC 9.44.050 is not unconstitutional,

23

but rather that it should be "read into" RCW ch. 64.06 as an additional required disclosure.

24

Defendants make this unusual argument, without citation to any authority, because they hope

25

(incmrectly) to take advantage of the language in RCW ch. 64.06.060, which exempts the

26

disclosures mandated in RCW 64.06.020 ("Form 17") from the CPA: "[t]he legislature finds

27
PLAINTIFFS' OPPOSITlON TO MOTION TO DISMISS

UNDER ClVTL RULE I 2(B)(6) - 12

CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 Norih 34th Street. Suite 300
Seattle, Washington 98103-8869
TEL. 206 .816 .6603 FAX 206 .350 .3526
www .tmdwlaw.com

PLLC

'

._.,~ ,

, . . . . ,., ,

'v - "'--,. "'"'

that the practices covered by this c11apter are not matters vitally affecting the public interest for

the purpose of applying the consumer protection act, chapter 19.86 RCW."

But ifTCC 9.44.050 contradicts RCW ch. 64.06 (it does not), then it is preempted and

cannot be enforced. And if ICC 9.44.050 is preempted, then it cannot be "read into" the Fom,

17 disdosurcs as Defendants argue, as exemptions to the CPA must be nanow1y constrncd.

1.

Courts will not presume that an ordinance is unconstitutional. Lenci v. City of Seattle,

ICC 9.44.050 is Constitutional

63 Wn.2d 664, 668,388 P .2d 926 (1964) (''Eve1y presumption will be in favor of

constitutionality."). Preemption by state statute may only occur when the legislature expressly

10

states its intention to preempt an entire field or by necessary implication. Bmwn v. City of

11

Yakima, 116 Wn.2d 556,560, 807 P.2d 353 (1991).

12

Here, the legislature did not intend RCW ch. 64.06 to preempt the field. To the

13

contraty, RCW 64.06.070 provides that all rights that existed in 1995 continue to exist after the

14

passage of RCW ch . 64.06:

15

Except as provided in RCW 64.06.050, nothing in this chapter

shall extinguish or impai.J any rights or remedies of a buyer of
real estate against the settler or against any agent acting for the
seller othe1wise existing pursuant to common law, statute, or
contract; nor shall anything in this chapter create any new right or
remedy for a buyer of real property other than the right or
recision exercised in the basis and within the time limits provided
in this chapter. 1

16
17
18
19
20

Jndeed, the Washington Supreme Court weighed in on this issue on 2001 . In Svendsen
21

v. Stock, l 43 Wn.2d 546, 23 P.3d 455 (200 I), the Court stated:
22
23
24
25
26
27

1 This

language also indicates that the legislature did not intend to occupy the field in the area
of seller disclosures, thus no preemption by necessary implication exists either. See, e.g.
Brown, 116 Wn .2d at 560 (finding lack of p reemption by necessmy implication where language
of statute indicated that local municipalities could enact more restrictive ordinances); Wardv.
Bd ofCnty. Comm'rs, Skagit Cnty., 86 Wn. App. 266,274, 936 P.2<l 42 (1997) (refusing to
find LUPA superseded or replaced deadl ines for deciding applications under local zoning
codes).
PLAlNTTFFS ' OPPOS ITTON TO MOTION TO DISMISS
UNDER ClVlL RULE I 2(B)(6) - 13
CASE No. 14-2- 00705-6

T ERRELL MARSHALL DAUDT & WILLIE PLLC

936 North 341 h Str eet, Suite 30 0
Seattle , Wash ington 98103-8869
TEL. 206. 81 6 .6603
206 .350.3528
www.tmdwlaw.com

FAA

trom:

'MU VV t'LL\.,

c:tA . .,. , lo!UOJ ..> 1.:,-0't::JV

Qr, ,

. -~-- _......... ....... - . __ - - -- ... .

.,. ,

\"''JV/ .......... . .., .... .,....,

It is difficult to believe that the Legislature intended to eviscerate

preexisting protections afforded to home buyers prior to the

adoption of the seller disclosure statute. A more reasonable
interpretation of the legislature's intent is that it expressly
reserved all existing remedies for residential purchasers in RCW
64.06.070.

2
3
4

Id. at 558. Because neither express preemption nor preemption by necessa1y implication exists,

unless ICC 9.44.050 contradicts the mandates in RCW ch. 64.06, it is constitutional.

The Washington Supreme Court has stated that a "local ordinance does not conflict with

a state statute in the constitutional sense merely because the ordinance prohibits a wider scope

of activity." Brovm, 116 Wn.2d at 562. Here, Island County's ordinance requires disclosure of

lo

severe noise from aircraft in the propetty's location - it does not prohibit or contradict any of

JI

the disclosmes in Fonn 17 and may be enforced without infringing in any way on the mandates

J2

contained in RCW ch. 64.06. In short, the two laws may be hannonized. See id. at 563

J3

("because the statute and the ordinance are both prohibitory, they a.re not 'cont.radict01y in the

14

sense that they cannot coexist' and should not 'deemed inconsistent. . . "') (citing Seattle v. Eze,

15

1 J 1 Wn.2d 22, 33, 759 P.2d 366 (1988)). Because the statute and the ordinance may be

16

harmonized, ICC 9.44.050 is not preempted and not unconstitutional.

17

2.

18

Defendants ask this Court to construe ICC 9.44.050 as a disclosure required by Form 17

CPA Exemptions Must be Nanowly Construed

19

so that it is subject to RCW 64.06.060 (exempting all disclosures in Form 17 from having

20

public interest impact under the CPA). But legal authority prevents such interpretation because

21

exemptions from CPA liability, such as those contained in RCW ch. 64.06, must be 11a1rnwly

22

construed. See Vogt, 117 Wn.2d at 552.

23

Here, the legislature, which .is presumed to legislate with knowledge of the law, has

24

chosen not to include a noise disclosure in Form 17. See In re Estate of Stover, 178 Wn. App.

25

550, 563, 315 P .3d 579 (2013) (holding state legislarure presumed to enact laws with full

26

knowledge of state laws, including rules of civil procedure); State v. Peterson, 100 Wn.2d 788,

27
PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS
UNDER ClVIL RULE I 2{B)(6) I 4
CASE NO. 14-2-00705 -6

TERRELL MARSHALL DAUDT & WILLII

936 North 34th Street. Suite JOO
Seattle, Washington 98103-8869

TEL. 206 .816 .6603 FAX 206 .J50.J52B

www.tmdwlaw .com

PLLC

. -~-

-~ .... --- -- --- - --- ....

791, 674, P.2d 1251 ( 1984) (holding state legislature is presumed to be aware of Washington

Administrative Code provisions when passing legislation); State v. Seattle Taxicab & Tran~fer

Co., 90 Wash. 416, 427, 156 P. 837 ( 1916) (finding the legislature is presumed to know what

types of bond companies do business in Washington state when passing legislation related to

bonds). Indeed, Fonn 17 has been amended several times since its passage in 1995 to require

disclosmes about: (1) Sex offenders residing in the neighborhood, S.S .B . 6153, 58th Leg., Reg.

Sess. (\Va. 2004); (2) Unimproved land and condominiums, S.S.B. 5895, 60th Leg., Reg. Sess.

(Wa. 2007); (3) Fire protection zones, S.H.B. 1506, 62nd Leg., Reg. Sess. (Wa. 2011); {4)

Smoke and carbon monoxide alarms, S.S.B. 6472, Reg. Sess. (Wa. 2012); and (5) Handicap

10

access via elevators, stair lifts, or wheelchair lifts, S.S.B. 5156, Reg. Sess. (Wa.2015) . Noise

11

disclosures have not been among the amendments made by the legislature. It cannot be

12

presumed that the failure to include such language is a legislative oversight.

13

Further, RCW ch. 64.06 implements state policy providing rescission as the sole

14

remedy after receiving Fon11 17 disclosures. The statute mandates that Fom1 17 disclosures

15

must be made at least five days after mutual acceptance, and the buyer must be given three days

16

in which to rescind for any reason after receipt. RCW 64.06.030.

17

In contrast, a buyer receiving a noise disclosure under ICC 9.44.050 cannot

18

automatically rescind. They a.re neither given the notice within five <lays of murual acceptance

19

nor do they have a right to rescind within three days after receipt. See Complaint ,I 7 (alleging

20

that noise disclosures, if given, are provided immediately prior to closing). The policy

21

expressed by RCW ch . 64.06 will not be served if Defendants' argument is accepted.

22

..,

23

Plaintiff-; should be given the opportunity to prove that the failure to provide the

.)

Plaintiffs Have Pied Public Interest Impact

24

required noise disclosure has public interest impact. To prove public interest impact a court

25

analyzes the following factors: ( 1) whether the acts were committed in the course of

26

defendant's business, (2) whether the defendants advertised to the public, (3) whether the

27
PLAlNTTFFS' OPPOSITTON TO MOTION TO DTSMISS
UNDER CIVIL RULE I 2(B)(6) - 15
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WU.LIE

936 NMn 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. 206 .816 .6603 Ff<X 206 .350 .3528
www.1mdwfaw.com

PLLC

-;:7-

---

- - - - -- - - -

--

defendant actively solicited the plaintiff, or (4) whether the parties occupied unequal bargaining

positions. Svend,en, 143 W.2d at 559. No single factor is disposicive, nor must a plaintiff

prove all four factors. Bloor v. Frit:::, 143 Wn. App. 718, 736-37, 180 P.3d 805 (2008).

For example, in, Bloor v. Fritz, the appellate court found that the real estate agent failed

to disclose a material fact to the buyer - that the property had been used for methamphetamine

manufacture. Id. at 737. That fact combined with the fact that the conduct occuned in the

course of the agent's business, that the property was advettised to the public through the

Multiple Listing Se1vice ("MLS"), and that the parties occupied tmequal bargaining postures

constituted public interest impact under the CPA. Id Likewise in Burbo v. Harley C. Douglas,

10

Inc., 125 Wn. App. 684, 106 P.3d 258 (2005), the appellate court found that having advertised

11

a home with concealed defects to the public through the MLS sufficiently established public

12

interest impact. Id. at 700-01. See also .McRae v. Bolstad, 101 Wn.2d 161,166,676 P.2d 496

13

( 1984) (finding public interest impact because property had been placed on the MLS without

14

disclosing defects).

15

Here, Plaintiffs allege that Defendants were the listing offices and agents for the homes

16

they purchased. Complaint ,i 5. Indeed, Defendants used a form created by the MLS. Id.

17

Defendants were listing these properties on the MLS, using a non-confonning and insufficient

18

form created by the MLS. These allegations demonsa-ate that Defendants were using a public

19

database to advertise homes to the home buying public in the course of their business chat were

20

accompanied by inaccurate disclosures. These allegations, when taken as tme as they must be

21

for purposes of this motion, are sufficient to meet the public interest impact prong of the CPA.

22

E.

1 6.

Plaintiffs' Oaims al'e Independent of the Disclosuns Mandated in Form 17

23

Defendants argue that RCW 64.06.050(2) limits a real estate broker's liability for ill.!.

24

disclosures, 11otjust those mandated by Fom1 17. Motion at 11. This section provides that a

25

real estate broker is "not liable for any enor, inaccuracy, or omission in the real property

26

transfer disclosure statement if the licensee had no actual knowledge of the enor, inaccuracy, or

27
PLAINTIFFS ' OPPOSITION TO MOTTON TO DISMISS
UNDER CIVIL RULE I 2(B)(6) - I 6
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 North 34 th Street, Suite 300
Seattle, Washington 98103-8869
TEL. 206 .816.660 3 FAX 206 .J50.J52B
www.tmdwlaw.com

PLLC

omission." RCW 64.06.050(2). Defendants further contend that because Plaintiffs do not

allege that Defendants had actual knowledge of the defect, Defendants cannot be liable under
the CPA.

But RCW 64.06.050(2) applies only to the seller disclosure statement mandated by

RCW ch. 64.06. Indeed, RCW 64.06.005(4) expressly defines "seller disclosure statement" as

"the fmm to be completed by the seller of residential real property as prescribed by this

chapter," Form 17. The statute requires the seller to ''deliver to the buyer a completed seller

disclosure statement in the following format and that contains, at a minimum, the following

information." See RCW 64.06.013 (commercial real property), RCW 64.06.015 (unimproved

10

residential real property), RCW 64.06.020 (improved residential real property). The thrust of

11

the provision is that these are things that the seller of a property has reason to know and must

12

disclose but the agent may not knov..

13

Moreover, the Supreme Cou1t held that where an agent has independent knowledge of

14

a defect, and failed to disclose the knowledge to the buyer, the broker violates the CPA.

15

Svendsen, 143 Wn.2<l at 555. Here, the violation does not include any of the disclosures

16

required by Form 17. ICC 9.44.050 is not a "seller disclosure statement" as chat term is defined

17

by RCW ch. 64.06; it is a disclosure about conditions in the surrounding area. It expressly

18

provides: "The obligation to comply with the provisions of this chapter are upon the property

19

owner and their agents." ICC 9.44.060. Defendant's argument proves too much: to accept

20

their non-textual argument would eliminate key protection for prospective buyers.

21

Defendants further contends that the Island County Code cannot impose liabi11ty on

22

Defendants in the absence of actual knowledge, and if it did, it "would be unenforceable as

23

inconsistent with RCW 64.06.050(2)." Motion at 11. The two provisions are not at all in

24

conflict. See Brown, 116 Wn.2<l at 561 ("the statute should not be construed as restricting

25

Yakima's power to regulate fireworks If the t\vo enactments can be harmonized."). There is

26

nothing in the state statute that prevents a locality from requiring an additional <lisclosw-e

27
PLATNTTFFS' OPPOSTTTON TO MOTTON TO DISMISS
UNDER CTVIL RULE I 2(B)(6) 17
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WIT.LIE

936 North 34th Street. SuHe 300
Seattle, Washington 98103,8869
TEL 206.816 .6603 FAx 206 .350.3528
www.tmdwlaw.com

PLLC

concerning unique1y local conditions, such as the presence of military jets in Whidbey Island.

Indeed, the statute expressly enables counties and municipalities to create additional "rights or
remedies."

Defe11dants also assert that ICC 9.44 .060 limits their liability for failure to provide the

required disclosure. Motion at 11 . Defendants misrepresent this provision by quoting

selectively from it. The full provision states as follows:

This chapter is not intended to create any class of persons to be

benefited or protected nor to create any reliance relationship
between Island County and landowners, land pmchasers, their
successors, occupants, or users of structures built with or without
a building pc1rnit, or any other persons. This chapter is not
intended to create any duty running in favor of particular persons.
The obligation to comply with the provisions of this chapter are
upon the property owner and their agents. Acts or omissions to
act by Island County, its officials or employees under this chapter
shall not create any liability on the part of Island County or its
officials or employees.

8
9
10

II
12

13
14

15

16
17

18
19
20

21
22

23
24
25

26

ICC 9.44.060.
The thrust of this provision is putting the obligation to disclose on property owners and
their agents, and exempting Island County from any duty, obligation, or liability, whether it be
for requiring the disclosure, or for damages related to conditions in the impacted areas. And by
its use of "reliance" and "duty," the provision clearly contemplates exempting Island County
from damages in tort. It says nothing about whether a real estate agent' s failure to comply with
its express obligation to disclose consrirutes an unfair or deceptive act under the CPA.
Last, Defendants erroneously state that the complaint "allege[s] Defendants were
unaware of their error and that when Defendants became aware of the error, they changed the
Form 22 W." Motion at 11. The complaint contains no allegations about what Defendants
knew about the information th ey failed to disclose to Plaintiffs. Defendants' knowledge will
certainly be a relevant topic of discovery, in detennining the appropriate measure of damages.
However, Plaintiffs' CPA claim does not tum on what Defendants knew, but on what they did.

27
PLATNTIFFS' OPPOSTTJON TO MOTION TO DISMISS
UNDER CTVTL RULE I2(B)(6) - 18
CASE NO. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 North 34th Street , Suite 300
Seattle, Wash ing ton 9810 3,8869
TEL. 206. 816.660 3 FAX 206.350.3528
www.lmdwlaw.co m

PLLC

See McRae, IO I Wn.2d at 167 (distinguishing between the elements of common law fraud and

the CPA and holding that the CPA has no intent element but rather requires proof of the

capacity to deceive) . Defendants were required by law to provide a specific disclosure, and

when Defendants were warned that it was violating the law, Defendants provided an updated

(but still flawed disclosure). Complaint~~ 6-7. The questions that the factfindcr must decide

are whether Defendants' violations of the law constituted unfair or deceptive practices under

the CPA, and if they did, the proper measure of damages for those violations. If "actual

knowledge" were a requirement, and it is not, it would be a fact question that che Court cannot

decide on this motion.

10

11

F.

The Statute of Limitations Does Not Bar Deegan's Claims Against Acorn
The general rule is that actions for violations of the Washington Consumer Protection

12

Act must be "commenced within four years after the cause of action accrues." RCW

13

l 9.86. 120. However, the "discove1y rule" has been applied to extend the time 1n which CPA

14

claims must be filed. See Mayer v. S/o Indus. Inc., 123 Wn . App. 443,463, 98 P.3d 116

15

(2004), ajjirmed in part, reversed in part on other grounds, 156 Wn.2d 677, 132 P.3d 115

16

(2006) ( extending CPA starute of limitations based on delayed discovery of c.hy rot behind

17

defendant's defective siding product). Accordingly, there are two issues involved in applying

18

the four-year statute oflimitacions to Deegan's CPA claims. First, did Deegan's CPA claim

19

accrne more than four years before the Complaint was filed? Second, when did Deegan

20

discover all of the facts giving rise to his CPA claim?

21
22

23
24
25
26

l.

Deegan's CPA Claim Accrne<l Less Than Four Years Before the Complaint Was
Filed

CPA claims have five elements: (1) an unfair or deceptive act; (2) that occune<l in trade
or commerce; (3) that affects the public interest; (4) an injmy to the plaintiffs business or
property; and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., l 05
Wn.2d 778, 784-85, 719 P.2d 531 (1986). The statute oflimitations "begins to tun when all

27
PLAINTIFFS' OPPOSlTTON TO MOTION TO DISMISS
UNDER ClVTL RULE I 2(B)(6) - 19
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & \Vll,LIE

936 North 34th S1ree1, Suite 300

Seattle, Washington 98103-8869

TEL. 206 .616 .6603 FAX 206.350.3526
www.1mdwlaw.com

PLLC

rrom:

rax. ,...,

I JVIUV\I l'"'I...L\..,

\"Ut>J ..> 1~04::,u

f""Q~o::;;

,~1,11

..,.., ..................................

'

elements necessary to the claim exist and the p1aintiffhas a right to seek relief in the courts."

Murphey v. Grass, 164 Wn. App. 584, 589, 267 P.3d 376 (2011 ).

Acorn's "unfair or deceptive act," the failure to provide the proper noise disclosure,

occurred at the time that Deegan purchased his prope1fy in 2006. However, the "injury"

sustained by Deegan manifested later. It is not unusual for a CPA ''injury" to occur well after

the unfair or deceptive act that caused the injury. See Bain v. Metro. Af
ortg. G,p., Inc., 175

Wn.2d 83, 118, 285 P.3d 34(2012) (finding deceptive designation of ineligible beneficiary in

deed of tlust can cause later injury to borrower attempting co deal with actual note holder).

The injury sustained by Deegan was the devaluation of bis property value. Complaint

lO

~142 ("Plaintiffs . .. suffered injury in fact and economic loss because they "paid more for their

11

rea1 property on Whidbey Island than that property would have been worth if the requited

12

disclosure had been given, and their properties will sell (or rent) for less than the otherwise

13

would, due to the proper disclosure they are required to furnish to prospective purchasers and

14

renters.") Although the Navy has operated military aircraft over Whidbcy Island for decades,

15

the Navy recently introduced a much noisier aircraft, aptly named the "Growler." Complaint

16

1 6.

17

introduction of the Growler and the number of Growler flights increased clramatically,

18

triggering a 2013 auditory study of the Growler's noise impacts. Complaint ,r 26. Later in

19

2013, public complaints about the Growlers led to an investigation by the Island County

20

Director of Planning and Community Development, which found that the disclosure forms

21

being used in the area by real estate brokers failed to include the disclosure language required

22

by ICC 9.44.050. Complaint~ 6.

23

The negative impact to property values at issue in this case occurred only after the

The Complaint does not allege that the Growlers appeared in 2005, as implied in

24

Acorn's Motion. Motion at 14 n.9. The Complaint alleges that the Navy began a process of

25

phasing out a quieter aircraft, the Prowler, in 2005. Complaint 125. The Navy planned to

26

replace the Prowler with the Growler, but that replacement prncess occurred gradually in che

27
PLAINTIFFS' OPPOSITTON TO MOTION TO DISMISS
UNDER CIVIL RULE I 2(B)(6) - 20
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE PLLC

936 No1h 341h S1reel, Suile 300
Seallle, Washinglon 98103-8869
TEL. 206.816 .6603 FAA 205.350.3526
www.lmdwlaw.com

"'"

\"-W ..... /

, y . ..,...,.,..,..

years fo11owing 2005. Complaint ~I 25. The Complaint is not specific concerning the year in

which Growlers were first used on Whidbey Island. Nor does the Complaint describe when the

frequency and timing of Grovvler flights began to negatively affect property values.

Under CR I 2(b)(6), dismissal is appropriate only if "it appears beyond doubt that the

plaintiff cannot prove any set of facts which would justify recovery." Tenore v. AT & T

Wireless Sen 1s., 136 Wn.2d 322, 330, 962 P.2d 104 (1998). In undertaking such an analysis, "a

plaintiffs allegations are presumed to be true and a court may consider hypothetical facts not

included in the record." Id. The devaluation to Deegan's property value occurred well after he

purchased his property. Ongoing discove1y will demonstrate that the Growler flights began to

10

II

affect Deegan 's property values within four years before the filing of the Complaint.
2.

12

13
14

15
16

17
18
19

20
21
22

23
24
25

26
27

Deegan Discovered the lnjmv to His Property and Acorn's Deceptive Act Less
Than Fom Years Before the Complaint Was Filed

"Under the discove1y rule, a cause of action accrues when the plaintiff knew or should
have known the essential elements of the cause of action." Allen v. State, 118 Wn.2d 753, 75758, 826 P.2<l 200 (1992). When a plaintiff discovered the elements of their claim, and whether
the plaintiff exercised reasonable diligence in investigating the claim, are questions of fact to be
determined at trial. Goodman v. Goodman, 128 Wn.2d 366,373, 907 P.2d 290 (1995)
("Whether the statute oflirnitations bars a suit is a legal question, but the jury must decide the
underlying factual questions unless the facts are susceptible of but one reasonable
interpretation."); Samuelson v. Cmty. Coll. Dist. No. 2, 75 Wn. App. 340, 346, 877 P.2d 734
(1994) ("The point at which the plaintiff should have discovered the injmy is a question for the
llier of fact.").
Acorn's entire statute of limitations argument rests on the unsupported assertion that
Deegan should have discovered the Growler noise problems "[a]t some point during the four
years after he purchased his home, had he used reasonable diligence." Motion at 14. The
Complaint does not allege any facts that compel this conclusion. As discussed above, the noise
impacts from the Growlers that have adversely affected property values are a relatively recent

PLAINTIFFS' OPPOSITTON TO MOTION TO DISMISS

UNDER CIVIL RULE 12(13)(6) - 21
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WU.LIE

936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. 206.816.6503 FAX 206.350.3528
www.lmdwlaw .com

PLLC

'_.,,., ,

..

\"""""'}

___ ...............

.... ::, ................ ... - - - - - -

- - - . , w,

occurrence. Deegan is entitled to present evidence at trial that will demonstrate that a

reasonable buyer would not have discovered the injury to his prope1ty until the undisclosed

detect became apparent.

Deegan also discovered A.cam's deceptive act, the failure to provide the disclosure

required by ICC 9.44.050, no earlier than 2013 . Acom cites a 96-ycar old case for the

proposition that ' 'ignorance of the law is not excusable," suggesting that Deegan should be

deemed to have known about ICC 9.44.050. Motion at 14 n. 10. Acorn's argument is both

circular and outdated. Acorn's argument is circular because there would be no unfairness or

deception in Acorn's failure to provide the notice required by ICC 9.44.050 if Deegan were

10

deemed to have knowledge of ICC 9.44.050 as a matter ofJaw. Such a presumption would

11

effectively nullify the requirement that brokers provide the disclosure. Furthermore,

12

Washington law does not impose a rigid presumption of knowledge of the law on plaintiffs for

13

purposes of analyzing the discovery mle. Samuelson, 75 Wn. App. at 346 (rejecting

14

defendants' argument that plaintiff should have been presumed to know his rights for

15

retirement benefits when he first became employed). Where the law requires the disclosure of

16

the Jaw itself, the discove1y rule can be applied to toll the statute of limitations until such time

17

as the plaintiff knew or reasonably should have learned about the required disclosure. Id; A

18

defendant's failure to provide specific disclosures required by law tolls the applicable statute of

19

limitations. Merritt v. Count,ywide Fin. Cmp., 759 F .3d 1023, 1036-41 (9th Cir. 2014) (one-

20

year RESPA statute oflimitations tolled where disclosure form was not provided and buyer did

21

not know about concealed "markup" fees charged or identity of seller); Fultz v. World S&L

22

Ass'n, 2008 WL 5246440, at *6 (W.D. Wash . Dec. 17, 2008) (one-year TTLA statute of

23

limitations tolled where TILA disclosure failed to disclose specific details required by federal

24

regulations and plaintiff alleged that they could not have known that particular disclosures were

25

missing.)

26
27
PLAINTIFFS ' OPPOSITION TO MOTION TO DISMISS
UNDER CIVIL RULE I 2(B)(6) - 22
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE

936 North 341h S1ree1. Suite 300
Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528
www.1mdwlaw. com

PLLC

The fact that the noise disclosure ordinance was in existence at the time that Deegan

purchased his property bolsters Deegan's position that it was reasonable for Deegan to be

unaware of the noise impacts at the time that he purchased his prope1ty. ICC 9.44.050 was

passed precisely because the County recognized that the military jet noise impacts were not

widely known, and it was appropriate to place the burden of disclosure on listing real estate

brokers who are supposed to be familiar with the properties that they are selling. In Samuelson

v. C,nty. Coll. Dist. No. 2, a community college instructor sued his employer for failing to

notify him that he was eligible for participation in a retirement plan as required by law. The

college argued that he should have known of his eligibility because it was set forth in the

10

Washington Administrative Code, relying on the general rule that "people are presumed to

11

know the law." Samuelson, 75 Wn. App. at 347. The Court rejected that argument, noting that

12

"[i]f employees were presumed to know all of the benefits they are eligible to receive under

13

administrative rules, there would be no need to require employees to make an election as the

14

regulation requires."

15

This case is unlike the three cases cited by Acom holding that the plaintiffs' claims

16

were barred by the statute of limitations. In Allen v. State, 118 W n.2d 753, 826 P .2d 200

17

(1992), the plaintiff waited over five years to sue the state of Washington for negligently

18

paroling the men who mmdered the plaintiffs husband. The issue in Allen was whether the

19

plaintiff had exercised reasonable diligence in investigating her claim in view of the fact that

20

her husband's killers had been tried and convicted of the murder less than three years after it

21

took place, and the plaintiff had broken off contacts with the law enforcement officers

22

investigating the killing. The plaintiff's claims were dismissed on summary judgment. Tn

23

Strong v. Clark, 56 Wn .2d 230, 352 P.2d 183 (1960), the Comt upheld a summary judgment

24

ruling that a bankmptcy trustee's fraudulent conveyance action was time baITe<l when all of the

25

facts revealing insufficient consideration for the property transfer were disclosed in the

26

recorded sale contract long before the statute had rnn. Finally, O'Neil v. Estate of Murtha, 89

27
PLAINTIFFS' OPPOSTTTON TO MOTTON TO DISMISS
UNDER ClVTL RULE I 2(B)(6) - 23

CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE PLLC

936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. 206.816 .6603 FAX 206 .350.3526
www.tmdwJaw.com

~rom: I JVIUVV ~LL'-'

rax.

1 \4'UOJ ..)l::f;J~OV

...... .

'o

\"""'""/ . . -. ... ..,_..,..,

Wn. App. 67, 94 7 P.2d 1252 ( 1997) dealt with enforcement of a promissory note in which the

borrower agreed to pay "when able." Because the case involved no fraudulent concealment of

the borrower's financial ability to pay, the Court declined to apply the discovety rule.

Whether Deegan's claim accrued within the four-year period before the Complaint was

filed, or whether he learned of the injruy to his property during that time, arc facts that should

be developed dming discovery and presented at Ilia!. Acorn's request to adjudicate the

application of the statute oflimitations to Deegan's CPA claim on a CR 12(b)(6) motion to

dismiss should be rejected.

lO

G.

In the Alte1native, Lean to Amend Should be Granted

Should the Court find any of Plaintiffs' allegations wanting, Plaintiffs seek leave to

II

amend the complaint. Leave to amend should be freely granted when justice so requires. CR

12

l 5(a). "The touchstone for denial of an amendment is the prejudice such amendment would

13

cause the nonmoving party." Caruso v. Local Union No. 690 of Int'/ Bhd. of Teamsters,

14

Cha71ffeurs, Warehousemen & Helpers ~fAm., I 00 Wn.2d 343, 350, 670 P.2d 240 ( 1983)

15

(finding no abuse of discretion in pc1mitting amendment to complaint five years and four

16

months after it was filed). This case is in its infancy. Defendants will suffer no undue

17

prejudice should Plaintiffs be granted permission to amend their complaint to further clarify

18

their allegations against Defendants under the CPA.

19

VI. CONCLUSION

20

For the foregoing reasons, Plaintiffs respectfully request that the Court deny

21

Defendants' motion to dismiss, or in the alternative, grant Plaintiffs leave to amend.

22

23
24
25

26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

PLAINTIFFS' OPPOSITTON TO MOTION TO DTSMISS

UNDER CIVTL RU1-E I 2(B)(6) - 24
CASE No. 14-2-00705-6

936 North 34th Street. SL1ite 300

Seattle. Washington 98103-8869
TEL. 206.816 .6603 FAX 206 .350.3528
www .lmdwtaw.com

re,\. . .,.,

\4UVJ .Jl~V"t;.JV

........ .. ,....... -, ........ _ ..............

RESPECTFULLY SUBMITTED AND DATED this 13th day of August, 2015.

TERRELL MARSHALL DAUDT & WILLIE PLLC

.,

:,

5
6

7
8

By: .,_,. --,1-__,_..,..,..___ _ _ _ _ _ _ __

., WSBA #26759
Em .-15'fe1Tell@tmdwlaw.com
Mary B. Reiten, WSBA #33623
Email: mrcitcn@tm<lwlaw.com
Samuel J. Strauss, WSBA #46971
Ema1 I: sstrauss@tmdwlaw.com
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 350-3528

10
11
12

13
14

Michael D. Daudt, WSBA #25690

E111a1 I: mi ke@daudtlaw.com
DAUDT LAW PLLC
200 West Thomas Street, Suite 420
Seattle, Washington 98119
Telephone: (206) 445- 7733
Facsimile: (206) 445-7399

15
16
17
18
19

Steven A. Skalct
Email: sskalet@findjustice.com
Cra1g L. Briskin
Email: cbriskin@findjustice.com
MEHRI & SKALET PLLC
1250 Connecticut Avenue NW, Suite 300
Washington, DC 20036
Telephone: (202) 822-5100
Facsimile: (202) 822-4997

20
21
22
23

24
25

Attorneys for Plaintijj.1r

26
27
PLAINTIFFS' OPPOSTTTON TO MOTION TO DISMISS
UNDER ClVlL RULE I 2(B)(6) - 25
CASE No. 14-2-00705-6

TERRELL MARSHALL DAUDT & WILLIE PLLC

936 North 341h Street , Suite 300
Seattle, Wa shington 98103-8869
TEL. 206 .816.6603 FAX 206.350.3528
www.lmdwlaw.com

rl

vrn.

I IVIVVV r"'L.L\,,,

raA . .,., l~U'OJ ..J 1:1~:.;J't;;JV

-6!:fq

VV'-'t

""'-' .,.._., .., , ._.,. - -

- - ,u

THE HONORABLE DA VE NEEDY

Skagit County Superior Comt

1
2
3

IN THE SUPERIOR COURT OF THE ST ATE OF WASHINGTON

IN AND FOR THE COUNTY OF ISLAND

5
6

JONATHAN DEEGAN and ALICE O'GRADY,

on behalf of themselves and others similarly
situated,
Plaintiffs,

8
9

10

11
12

13

V.

NO: I 5-2-00165-0

GR 17 DECLAR<\. TION REGARDING

PLAINTIFFS' OPPOSITION TO
MOTION TO DISMISS UNDER
CIVIL RULE 12(B)(6)

WINDERMERE REAL ESTATE/CENTERISLE, TNC., a Washington corporation; and

ACORN PROPERTIES, INC. dba RE/MAX
ACORN PROPERTIES, INC., a Washington
corporation,
Defendants.

14

15
16

17
18
19
20
21

22

23
24

I, Mary B. Reiten, hereby declare:

1.

I am the attorney for Plaintiffs in the above-captioned action and make this

declaration pursuant to GR 17.

2.

I have examined the foregoing Opposition to Motion to Dismiss under Civil Rule

12(b)( 6), determined that it consists of thirty-three (33) pages (including this declaration), and
that it is complete and legible.

I declare under penalty of pe1jrny under the laws of the State of Washington that the
foregoing is true and correct.
EXECUTED at Seattle, Washington this 13th day of August, 20 15.

25

26
27

O riginals held at Terrell Marshall Daudt & W illie PLLC Maiy

SENT on ii. UGi.;ST 13. 20 l .:i VIA f-AX rnR rILING IN ISLAND
GR 17 DECLARATION REGARDING PLAINTIFFS'

OPPOSITION TO MOTTON TO DTSMTSS UNDER CTVTL

RULE 12(B)(6) - I
CASE NO. 15-2-00 165-0

TERRELL MARSHALL VAUDT & WILLIE PLLC

936 North 34th Street . Su;te 300
Seatlle, W ash;nglon 98103-8869
TEL. 206 .816 .6603 FAX 2 06 .350.3528
www.tmdwlaw.com