                                                                                          Filed
                                                                                    Washington State
                                                                                    Court of Appeals
                                                                                     Division Two

                                                                                    January 18, 2017


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 JAY GEROW, an individual and ZDI                               No. 47983-4-II
 GAMING, INC., a Washington corporation,

                       Appellants,

        v.                                                UNPUBLISHED OPINION

 STATE OF WASHINGTON, by and through
 the WASHINGTON STATE GAMBLING
 COMMISSION, AND THE Governor’s
 Office of Christine Gregoire; Rick Day,
 individually and in his official capacity as
 Director of the Washington State Gambling
 Commission; John Ellis, individually and in
 his official capacity as a Gambling
 Commissioner; Janice Niemi, individually
 and in her former official capacity as a
 Gambling Commissioner; Peggy Ann
 Bierbaum, individually and in her official
 capacity as a Gambling Commissioner; Kevin
 Rojecki, individually and in his official
 capacity as a Gambling Commissioner; and
 Margarita Prentice, individually and in her
 official    capacity   as    a     Gambling
 Commissioner,

                       Respondents.


       MAXA, A.C.J. – Jay Gerow and his gambling equipment company ZDI Gaming, Inc.

(collectively “Gerow”) appeal the dismissal of his claims against the Washington State Gambling

Commission, Gambling Commission director Rick Day in his individual and official capacities,
No. 47983-4-II


the five Gambling Commission commissioners in their individual and official capacities, and

Governor Christine Gregoire (collectively “the State”).

       Gerow’s claims arose from the Gambling Commission’s denial of his application to use a

cash card feature on the electronic pull-tab machine that he marketed and the Gambling

Commission’s subsequent changes to gambling regulations designed to prevent use of the cash

card feature. He asserted claims for, among others, violation of 42 U.S.C. § 1983, negligence,

and tortious interference with a contract or business expectancy. The trial court dismissed all of

Gerow’s claims under CR 12(c) and on summary judgment.

       We hold that the trial court properly dismissed Gerow’s claims because (1) regarding the

§ 1983 claims, (a) collateral estoppel based on Gerow’s prior federal lawsuit prevented him from

contesting that the individual defendants had legislative immunity from claims regarding 2008

amendments to gambling regulations, (b) res judicata based on the prior federal lawsuit barred all

claims relating to the State defendants’ actions before Gerow filed the federal lawsuit, and (c)

Gerow did not present sufficient evidence or argument to avoid summary judgment on any

remaining claims; (2) RCW 9.46.095 provided immunity to the Gambling Commission and

individual commissioners on Gerow’s tort claims; (3) the trial court did not err in dismissing all

tort claims against Governor Gregoire; (4) under the public duty doctrine, the Gambling

Commission director did not owe Gerow a duty of care; and (5) Gerow did not establish a valid

business expectancy to support his tortious interference with a contract claim.

       Accordingly we affirm the trial court’s dismissal of Gerow’s claims against all

defendants.




                                                 2
No. 47983-4-II


                                             FACTS

Gerow’s Electronic Pull-Tab Machine

       Gerow manufactured and marketed a VIP (video interactive play) electronic pull-tab

machine featuring a video display screen and a currency bill acceptor housed in a decorative

cabinet. The VIP machine simulated the sounds and displays of a video slot machine, but only

issued paper pull-tabs. The machine required a player to purchase the pull-tab with currency and

required that players redeem all winning pull tabs with a cashier. The Gambling Commission

approved this version of the VIP machine in 2002.

       Gerow sought to upgrade his VIP machine by adding a cash card acceptor that would

allow a player to purchase pull-tabs with a prepaid cash card instead of currency. The upgraded

VIP machine also would automatically credit pull-tab winnings of $20 or less back to the cash

card. A player who stopped playing the VIP machine with a balance on the card could use it to

purchase food, drink, or merchandise, or redeem it for cash at the establishment featuring the

VIP machine.

Denial of Approval and Litigation

       In 2005, Gerow filed an application with the Gambling Commission seeking approval to

market the upgraded VIP machine with the cash card acceptor. The Gambling Commission

denied his application. Gerow filed a petition for declaratory relief with the Gambling

Commission. An administrative law judge (ALJ) found that the upgraded VIP machine’s use of

a cash card to initiate gaming and as a way to collect small prizes would violate two regulations:

one prohibiting gambling without prepayment by cash, check, or electronic bank transfer and

another requiring that all prizes be in either cash or merchandise. The Gambling Commission



                                                3
No. 47983-4-II


issued a final declaratory order upholding the ALJ’s decision that the upgraded VIP machine

violated gambling regulations.

       Gerow appealed that decision to superior court. In 2007, the superior court reversed the

Gambling Commission’s decision and held that the upgraded VIP complied with existing

regulations because a cash card was equivalent to cash. The superior court ruled that the

Gambling Commission’s denial of Gerow’s application was arbitrary and capricious and

remanded the matter to the Gambling Commission for action consistent with the superior court’s

order and findings. The Gambling Commission appealed and obtained a stay of the superior

court’s ruling pending the appeal.

       In 2009, this court affirmed the superior court’s ruling that the cash card feature did not

violate regulations existing at the time of the application. ZDI Gaming, Inc. v. Wash. State

Gambling Comm’n, 151 Wn. App. 788, 809-10, 214 P.3d 938 (2009). In 2012, the Supreme

Court affirmed and held that the upgraded VIP machine with cash card feature did not violate

gambling regulations existing at the time of the application. ZDI Gaming, Inc. v. Wash. State

Gambling Comm’n, 173 Wn.2d 608, 621-23, 268 P.3d 929 (2012).

2008 Gambling Regulations and Litigation

       In response to the superior court’s ruling that the upgraded VIP machine did not violate

gambling regulations, the Gambling Commission considered various rule changes. In January

2008, the Gambling Commission ultimately adopted two new regulations (collectively, 2008

regulations).1 First, it adopted former WAC 230–14–047 (2008), a regulation outlining the


1
 For a procedural history of the Gambling Commission’s regulations, see Gerow v. Wash. State
Gambling Comm’n, 181 Wn. App. 229, 233-36, 324 P.3d 800 (2014).



                                                 4
No. 47983-4-II


features that were permitted in electronic pull-tab machines. This regulation allowed the use of

cash cards to purchase pull tabs but not to receive a credit for winnings.2 Second, it adopted

WAC 230–06–003, a regulation that defined “cash” as currency and as not including electronic

representations of money or methods of payment.

       In February 2008, Gerow filed a lawsuit in superior court challenging the 2008

regulations under the Administrative Procedure Act (APA). See Gerow v. Wash. State Gambling

Comm’n, 181 Wn. App. 229, 236, 324 P.3d 800 (2014). In 2012, the superior court ruled that the

Gambling Commission properly adopted the 2008 regulations and that they were not arbitrary

and capricious. Gerow appealed. In 2014, this court ruled that the 2008 regulations were invalid

because they were not adopted by a three commissioner majority as required by RCW

9.46.050(2). Id. at 244-45.

Federal Court Lawsuit

       In addition to challenging the 2008 regulations under the APA in state court, in February

2008 Gerow filed a complaint in federal court against the State and the Gambling Commission

director and commissioners. The federal court complaint alleged that the Gambling Commission

and its representatives violated 42 U.S.C. § 1983 by adopting the 2008 regulations and taking

other actions in retaliation for Gerow’s successful appeal of the commission’s denial of his

application for the VIP upgrade. He also asserted claims for negligence, tortious interference

with a contract or business expectancy, and violation of the Washington Constitution.




2
  WAC 230–14–047 was amended in 2014 and now allows electronic video pull-tab dispensers
that accept cash cards to automatically credit pull-tab winnings of $20 or less back to the cash
card. WAC 230–14–047(4).


                                                 5
No. 47983-4-II


       The State moved for judgment on the pleadings under Fed. R. Civ. P. 12(c). In October,

the federal district court dismissed Gerow’s § 1983 claim. The court ruled that the Gambling

Commission director and commissioners were entitled to legislative immunity for their quasi-

legislative rulemaking actions. The court did not reach the merits of the remaining state law

claims and ultimately dismissed those claims without prejudice on jurisdictional grounds.

       In June 2010, the Ninth Circuit Court of Appeals affirmed. The court held that the

district court correctly applied the test for legislative immunity and did not err in finding that the

Gambling Commission director and commissioners were entitled to legislative immunity.

Current Lawsuit

       In October 2008, after the dismissal of his federal lawsuit, Gerow filed this lawsuit in

superior court asserting multiple claims against the Gambling Commission, the Gambling

Commission director and commissioners, and Governor Gregoire.

       Gerow filed an amended complaint in May 2012. He asserted claims for a violation of 42

U.S.C. § 1983 against the director and commissioners and claims for negligence and tortious

interference with a contract or business expectancy against all defendants for their part in

denying use of the upgraded VIP machine and adopting the 2008 regulations aimed at keeping

the upgraded VIP machine off the market.3




3
  The complaint asserts several additional claims not at issue in this appeal – outrage, violations
of the Washington Constitution, wrongful retaliation in violation of public policy,
defamation/false light, violations of the open public meetings act, and declaratory/injunctive
relief.


                                                  6
No. 47983-4-II


Dismissal and Summary Judgment

         In October 2012, the State filed a CR 12(c) motion for dismissal on the pleadings seeking

to dismiss all tort claims against the Gambling Commission and individual commissioners on the

grounds that they were immune from suit under RCW 9.46.095. The trial court granted the

State’s motion and dismissed the negligence and tortious interference claims against the

Gambling Commission and its commissioners.

         In May 2013, the State filed a summary judgment motion on all remaining claims against

all remaining defendants. The trial court granted summary judgment in part, dismissing Gerow’s

§ 1983 claims against the individual defendants and the negligence claims against the Gambling

Commission director and the governor.     The trial court granted Gerow’s CR 56(f) motion to

continue the state’s motion regarding the tortious interference claim against the Gambling

Commission director and the governor, allowing him more time to conduct discovery on that

claim.

         In June 2015, the State filed a summary judgment motion on Gerow’s only remaining

cause of action – the tortious interference claim. The trial court granted summary judgment and

dismissed Gerow’s tortious interference claim against the Gambling Commission director and

the governor. At that point all of Gerow’s claims against all defendants had been dismissed.

         Gerow appeals the trial court’s CR 12(c) and summary judgment rulings.

                                           ANALYSIS

A.       STANDARD OF REVIEW

         We review a dismissal under CR 12(c) de novo. Ent v. Wash. State Criminal Justice

Training Comm’n, 174 Wn. App. 615, 621, 301 P.3d 468 (2013). A dismissal under CR 12(c) is



                                                 7
No. 47983-4-II


appropriate only if the plaintiff cannot prove any set of facts that would justify recovery. Id. at

622. On review, we presume that the allegations in the plaintiff’s complaint are true and we may

also take as true hypothetical facts offered by the plaintiff. Id.

       We review a trial court’s order granting summary judgment de novo. Keck v. Collins,

184 Wn.2d 358, 370, 357 P.3d 1080 (2015). We review the evidence and all reasonable

inferences from the evidence in the light most favorable to the nonmoving party. Id. Summary

judgment is appropriate where there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Keck, 184 Wn.2d at 370. “An issue of

material fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for

the nonmoving party.” Keck, 184 Wn.2d at 370. If reasonable minds can reach only one

conclusion on an issue of fact, that issue may be determined on summary judgment. Sutton v.

Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 865, 324 P.3d 763 (2014).

       When seeking summary judgment, the initial burden is on the moving party to show there

is no genuine issue of material fact. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 169,

273 P.3d 965 (2012). Once the moving party has made such a showing, the burden is on the

nonmoving party to set forth specific facts that rebut the moving party’s contentions and indicate

a genuine issue of material fact. Id. But conclusory statements and speculation submitted by the

nonmoving party will not preclude summary judgment. Id.

B.     42 U.S.C. § 1983 CLAIMS

       Gerow argues that the trial court erred in granting summary judgment in favor of the

State on his 42 U.S.C. § 1983 claims against the Gambling Commission director and

commissioners, which were premised on alleged violations of his free speech and due process



                                                   8
No. 47983-4-II


rights.4 We hold that the trial court properly dismissed Gerow’s § 1983 claims because (1)

collateral estoppel applied to establish legislative immunity for Gerow’s § 1983 claims against

the Gambling Commission director and commissioners, (2) res judicata applied to bar all § 1983

claims based on any Gambling Commission actions before Gerow filed the federal lawsuit in

2008 because those claims were or could have been asserted in that lawsuit, and (3) Gerow did

not create genuine issues of material fact for his § 1983 claims regarding other alleged actions.

        1.   Legal Principles

        42 U.S.C. § 1983 seeks to protect citizens who have been deprived of their constitutional

rights by someone acting under the color of state law. That statute states:

        Every person who, under color of any statute, ordinance, regulation, custom, or
        usage, of any State or Territory or the District of Columbia, subjects, or causes to
        be subjected, any citizen of the United States or other person within the jurisdiction
        thereof to the deprivation of any rights, privileges, or immunities secured by the
        Constitution and laws, shall be liable to the party injured in an action at law, suit in
        equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

        A plaintiff may not bring suit under § 1983 in state court against the State or against a

state official acting in an official capacity because a state is not a person subject to suit within the

meaning of § 1983. Wash. State Republican Party v. Pub. Disclosure Comm’n, 141 Wn.2d 245,

285-86, 4 P.3d 808 (2000). Similarly, state agencies are not subject to § 1983 actions. Hontz v.

State, 105 Wn.2d 302, 309, 714 P.2d 1176 (1986). But a plaintiff may assert § 1983 claims



4
  Which defendants Gerow asserted the § 1983 claims against is somewhat unclear. The
amended complaint focuses the § 1983 claims on the Gambling Commission director and
commissioners. Gerow also states in his briefing that the governor is liable for § 1983 violations,
but he cites no evidence or authority supporting this statement. Therefore, to the extent Gerow
claims that the governor is liable under § 1983, we do not address that claim.


                                                   9
No. 47983-4-II


against government officials in their individual capacities for actions taken under color of state

law. Republican Party, 141 Wn.2d at 286.

       2.   Collateral Estoppel – Legislative Immunity

       The State argues that collateral estoppel applies to Gerow’s § 1983 claims because the

federal district court ruled that legislative immunity applied to Gerow’s § 1983 claims, which are

identical to his current claims. We hold that collateral estoppel barred Gerow’s current § 1983

claims against the Gambling Commission director and commissioners to the extent that they

concerned the adoption of the 2008 regulations, but not to the extent that the claims related to

other alleged actions.

       Collateral estoppel, also called issue preclusion, bars relitigation of a specific issue

decided in one action in a subsequent action involving the same parties. Christensen v. Grant

County Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004). To prevail on a collateral

estoppel argument, the party seeking application of the doctrine bears the burden of showing that

(1) the issue decided in the prior action was identical to the one presented in the second action,

(2) the prior action ended in a judgment on the merits, (3) the party against whom collateral

estoppel is asserted was a party to or in privity with a party to the earlier action, and (4)

application of collateral estoppel will not work an injustice on the estopped party. Dot Foods,

Inc. v. Dep’t of Rev., 185 Wn.2d 239, 254, 372 P.3d 747 (2016). We review de novo whether

collateral estoppel applies. Christensen, 152 Wn.2d at 305.

       Regarding the first requirement, collateral estoppel “may be applied to preclude only

those issues that have actually been litigated and necessarily and finally determined in the earlier

proceeding.” Id. at 307. Here, the issue decided in the federal action was whether the Gambling



                                                  10
No. 47983-4-II


Commission director and commissioners had legislative immunity regarding the adoption of the

2008 regulations. That issue was identical to one of the issues in the current case.

       The second and third elements also were clearly satisfied. The federal court entered a

judgment on the merits, and Gerow was a party in the federal action. Regarding the fourth

requirement, the party against whom collateral estoppel is asserted must have had a full and fair

opportunity to litigate the issue in the earlier proceeding. Id. Applying collateral estoppel would

not work an injustice on Gerow because he had an opportunity to fully present the issue both in

federal district court and in the Ninth Circuit.

       The State seems to suggest that collateral estoppel also would bar all § 1983 claims

regarding the Gambling Commission’s refusal to approve Gerow’s upgraded VIP machine. But

the federal court addressed only the claim that adoption of the 2008 regulations violated § 1983

and decided that claim based on legislative immunity. The federal court did not address any

other claims, and therefore collateral estoppel did not apply to other claims.

       We hold that collateral estoppel applies to the issue of whether the Gambling

Commission director and commissioners have legislative immunity regarding the adoption of the

2008 regulations.

       3.   Res Judicata

       The State argues that res judicata applied to Gerow’s § 1983 claims because the federal

court claims were identical to the current claims. We hold that res judicata applied to bar all §

1983 claims regarding any actions that occurred before Gerow filed the federal lawsuit because

those claims were or could have been asserted in that lawsuit, but did not bar claims regarding

later conduct.



                                                   11
No. 47983-4-II


       Res judicata, also called claim preclusion, applies when a plaintiff’s claim against a party

has been determined by final judgment in one action and the plaintiff asserts the same claim

against the same party in a subsequent action. Emeson v. Dep’t of Corr., 194 Wn. App. 617,

626, 376 P.3d 430 (2016). Res judicata applies both to matters that were actually litigated in the

first action and those that could have been raised and with reasonable diligence should have been

raised in the first action. Id. In other words, res judicata applies when a previous claim for

which there was a final judgment on the merits and the current claim are so similar that the

current claim should have been litigated in the former action. Storti v. Univ. of Wash., 181

Wn.2d 28, 40, 330 P.3d 159 (2014).

       The threshold requirement of res judicata is a final judgment on the merits in the first

action. Emeson, 194 Wn. App. at 626. We then must consider whether the claims in the two

actions involve substantially the same evidence and the same transactional nucleus of facts.

Storti, 181 Wn.2d at 40. Res judicata applies when the first and second actions involve the same

(1) subject matter, (2) cause of action, (3) persons or parties, and (4) quality of persons for or

against whom the decision is made. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254

P.3d 818 (2011). We review de novo whether res judicata applies. Emeson, 194 Wn. App. at

626.

       Here, the threshold requirement of a final judgment on the merits in the first action was

satisfied. A grant of summary judgment is a final judgment on the merits. Id. In addition,

requirements two, three, and four clearly were satisfied. Regarding requirement two, both the

federal action and the current action asserted a cause of action for 42 U.S.C. § 1983 violations.




                                                  12
No. 47983-4-II


Regarding requirements three and four, Gerow and ZDI Gaming were plaintiffs and the

Gambling Commission director and commissioners were defendants in both actions.

       At issue here is the first requirement – whether the current action involved the same

subject matter as the federal action. Comparing the federal court complaint with the complaint in

the current action indicates that the subject matter of the two actions is the same. The facts

alleged in both complaints are substantially similar. Both complaints provide details and

allegations regarding the Gambling Commission’s denial of approval of Gerow’s upgraded VIP

machine, the new 2008 regulations, and enforcement actions against Gerow.

       Although Gerow does not expressly address res judicata, he seems to assert three

arguments. First, he claims that the federal case “was understood to be a limited challenge to the

newly adopted rules prohibiting ZDI’s upgrade.” Br. of Appellant at 17. He argues that the

federal court addressed only the 2008 regulations, not enforcement activities. But as noted,

Gerow’s federal complaint included extensive allegations not related to the 2008 regulations,

including acts surrounding the denial of the upgraded VIP machine. The federal court’s

summary judgment order interpreted Gerow’s complaint as only pertaining to rulemaking and

summarily dismissed his § 1983 claim based on legislative immunity for adopting the 2008

regulations. But the limited scope of the order does not mean that the other allegations were at

issue in federal court. If Gerow believed that the federal court erred in dismissing claims not

related to the 2008 regulations, his remedy was to file an appeal in that action.

       Second, Gerow argues that he did not have the ability to assert the same arguments in the

federal action that he could now because this court and the Supreme Court had not yet ruled on

his challenge to the Gambling Commission’s denial of his upgraded VIP machine. Therefore, he



                                                 13
No. 47983-4-II


asserts that his claims for erroneous enforcement and retaliatory misconduct were not yet ripe

when he filed the federal lawsuit. However, before Gerow filed the federal lawsuit the superior

court had ruled that the Gambling Commission’s denial of Gerow’s application was arbitrary and

capricious. As a result, Gerow could have asserted and did assert claims in federal court

regarding the Gambling Commission’s conduct other than adopting the 2008 regulations.

       Third, Gerow argues that the federal court could not have considered the defendant’s

actions that occurred after 2008 that are included in the amended complaint in the current action.

We agree with this argument. Res judicata will not operate if a necessary fact was not in

existence at the time of the prior proceeding. Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320,

331, 941 P.2d 1108 (1997). Allegations regarding facts that have not yet occurred at the time of

the first action necessarily cannot constitute the same subject matter as the first action for res

judicata purposes.

       Accordingly, we hold that Gerow’s § 1983 claims were barred by res judicata to the

extent that they related to the Gambling Commission’s actions before Gerow filed his federal

court lawsuit in 2008, but not for any alleged actions that occurred after that date.

       4.    Merits of Post-Federal Lawsuit § 1983 Claims

       Gerow argues that the trial court erred in granting summary judgment in favor of the

Gambling Commission director and commissioners on his § 1983 claims relating to actions after

he filed the federal lawsuit. The State argues that to the extent collateral estoppel or res judicata

do not bar Gerow’s § 1983 claims, the claims fail because they are unsupported by evidence.

We agree with the State.




                                                  14
No. 47983-4-II


            a.   First Amendment Violation

       Gerow argues that the Gambling Commission director and commissioners violated his

right to free speech under the First Amendment to the United States Constitution by taking

retaliatory actions against him for challenging their denial of his application for the upgraded

VIP machine.

       Courts have recognized that a person has a protected interest in commenting on the

actions of government officials and that a state response designed to retaliate against and chill

political expression strikes at the heart of the First Amendment. CarePartners LLC v. Lashway,

545 F.3d 867, 877 (9th Cir. 2008). But in order to assert a claim for retaliation based on the

exercise of free speech rights, the plaintiff must show that retaliation based on the protected

conduct was a substantial or motivating factor behind the defendant’s actions. Id.

       In meeting the burden to show that the protected conduct was a substantial or motivating

factor, the plaintiff cannot rely on speculation or conclusory statements. See Elcon, 174 Wn.2d

at 169 (stating general summary judgment rule). “A plaintiff’s belief that a defendant acted from

an unlawful motive, without evidence supporting that belief, is no more than speculation or

unfounded accusation about whether the defendant really did act from an unlawful motive.”

Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001).

       Here, Gerow argues that after he prevailed in his appeal of the Gambling Commission’s

initial denial of the upgraded VIP machine, the Gambling Commission director and commission




                                                 15
No. 47983-4-II


imposed arbitrary restraints to stop approval of his upgraded VIP, and the director and at least

one commissioner were openly hostile toward him.5

       But Gerow failed to produce sufficient competent evidence to create a genuine issue of

material fact about the defendants’ motivations. Gerow provided evidence showing that in 2007

his lab fees were doubled and in 2008 he was audited by commission staff. He also provided his

own declaration in which he states that the director and a commissioner were hostile toward him

and did not communicate with him. In support, he provided meeting minutes from a 2007

commission meeting in which a commissioner expresses her displeasure about being included in

Gerow’s lawsuit.

       Gerow’s evidence is insufficient for several reasons. First, his evidence comes from

2007 and 2008, and as discussed above, res judicata bars claims based on actions occurring

before Gerow filed his federal suit.

       Second, Gerow presented no evidence that he was being singled out or targeted by the lab

fee increase or audit. The letter the Gambling Commission sent to Gerow indicated that the fee

increase was implemented in December 2006, and the increase seemed to apply to all similar

submissions, not just Gerow’s.

       Third, Gerow does not present any evidence showing that the motive behind the fee

increase, audit, or hostility was retaliation for Gerow’s appeal. Gerow relies merely on the fact

that the events occurred after his successful appeal. But in this case, the timing of events is not



5
  Gerow also argues that the director and commission retaliated by contemplating a ban on all
electronic pull-tabs and passing the 2008 regulations. But as discussed above, those claims are
barred by collateral estoppel.



                                                 16
No. 47983-4-II


enough to create a genuine issue of material fact and Gerow offers no other evidence indicating

that the defendants had unlawful motives. See CarePartners LLC v. Lashway, 428 Fed. Appx.

734, 735 (9th Cir. 2011). He does not support his claim with any actual evidence showing the

defendants’ intentions. He provides only speculation to show that there were unlawful

retaliatory motives behind the defendants’ actions.6

       Accordingly, we hold that the trial court did not err in granting summary judgment in

favor of the Gambling Commission director and commissioners on Gerow’s § 1983 claims for

actions after filing of the federal lawsuit because Gerow failed to create a genuine issue of

material fact that they violated his First Amendment rights.

            b.    Due Process Violation

       Gerow argues that the Gambling Commission director and commissioners violated his

due process rights through irrational and arbitrary enforcement activity. The State argues that

Gerow received due process in his APA challenge of the Gambling Commission’s denial of his

application. We decline to address Gerow’s argument.

       Gerow asserts that the Gambling Commission and director violated his due process rights

by doubling his lab fees, delaying review of the upgraded VIP, authorizing audits of Gerow, and

sending threatening letters to Gerow’s customers. He also claims that Gambling Commission




6
  Further, even Gerow’s speculation fails to support his argument because he claims that the
Gambling Commission and director continued to impose obstacles to the upgraded VIP
machine’s approval not to retaliate for Gerow’s successful APA appeal, but instead to give tribes
a market advantage. He states that the Gambling Commission and director were motivated by an
interest in obtaining a revenue sharing compact with a tribe. Such a motive would negate the
suggestion that the Gambling Commission and director were motivated by retaliation.



                                                17
No. 47983-4-II


representatives were openly hostile to him and restricted his participation in Gambling

Commission meetings.

       But Gerow does not explain how this conduct, even if it occurred, violated his due

process rights. And he cites no authority to support his claim. We need not address an argument

if the appellant cites no supporting authority. See RAP 10.3(a)(6) (appellate brief should contain

argument in support of issues presented for review, together with citations to legal authority); see

also Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014) (“We do not

consider conclusory arguments that are unsupported by citation to authority.”). Therefore, we do

not address Gerow’s due process argument.

C.     NEGLIGENCE AND TORTIOUS INTERFERENCE CLAIMS

       Gerow argues that the trial court erred in dismissing his negligence and tortious

interference with a contract or business expectancy claims against the Gambling Commission

and individual commissioners based on immunity under RCW 9.46.095. He also argues that the

trial court erred in granting summary judgment in favor of the Gambling Commission director

and governor on the tort claims. We disagree.

       1.   Statutory Immunity for Gambling Commission and Commissioners

       RCW 9.46.095 provides that the Gambling Commission and its members shall not be

personally liable in any action for damages.7 Gerow argues that RCW 9.46.095 does not provide

immunity from liability, but instead is an indemnification provision. We disagree.



7
  Statutory immunity created by state law cannot apply to § 1983 claims created by federal law.
Martinez v. California, 444 U.S. 277, 284 n.8, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980); Monroe
v. City of Lawrence, 124 F. Supp. 3d 1097, 1128 (D. Kan. 2015).



                                                18
No. 47983-4-II


             a.    Principles of Statutory Interpretation

       Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen,

179 Wn.2d 756, 761, 317 P.3d 1003 (2014). The primary goal of statutory interpretation is to

determine and give effect to the legislature’s intent. Id. at 762. To determine legislative intent,

we first look to the plain language of the statute. Id. We consider the language of the provision

in question, the context of the statute in which the provision is found, and related statutes. Ass’n

of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340

P.3d 849 (2015).

       To discern the plain meaning of undefined statutory language, we give words their usual

and ordinary meaning and interpret them in the context of the statute in which they appear.

AllianceOne Receivables Mgmt., Inc. v. Lewis, 180 Wn.2d 389, 395, 325 P.3d 904 (2014). And

“[r]elated statutory provisions must be harmonized to effectuate a consistent statutory scheme

that maintains the integrity of the respective statute.” Koenig v. City of Des Moines, 158 Wn.2d

173, 184, 142 P.3d 162 (2006).

       If a statute is unambiguous, we apply the statute’s plain meaning as an expression of

legislative intent without considering other sources of such intent. Jametsky, 179 Wn.2d at 762.

If the plain language of the statute is susceptible to more than one reasonable interpretation, the

statute is ambiguous. Id. We resolve ambiguity by considering other indications of legislative

intent, including principles of statutory construction, legislative history, and relevant case law.

Id.




                                                  19
No. 47983-4-II


             b.    Analysis

        RCW 9.46.095, which is entitled “Gambling commission – Proceedings against,

jurisdiction – Immunity from liability,” provides in relevant part:

        Neither the commission nor any member or members thereof shall be personally
        liable in any action at law for damages sustained by any person because of any acts
        performed or done, or omitted to be done, by the commission or any member of the
        commission, or any employee of the commission, in the performance of his or her
        duties and in the administration of this title.

(Emphasis added.)

        First, Gerow argues that RCW 9.46.095 should not be interpreted as providing immunity

because the legislature uses clearer language when it intends to grant immunity. In support of

this argument, Gerow cites RCW 4.24.510 (“[I]s immune from civil liability for claims based

upon the communication to the agency . . . .”), RCW 18.64.005(9) (“Be immune, collectively

and individually, from suit in any action, civil or criminal . . . .”), RCW 18.89.080 (“[A]re

immune from suit in any civil action . . . .”), and RCW 26.44.060(5) (“[S]hall not be subject to

civil liability arising out of his or her cooperation.”).

        Gerow is correct that RCW 9.46.095 does not use the word “immunity.” But the statute’s

plain language states that the Gambling Commission and its members cannot “be personally

liable in any action at law for damages.” RCW 9.46.095. Gerow is suing the Gambling

Commission and its commissioners for damages at law. Therefore, RCW 9.46.095 plainly states

that they cannot be personally liable.8



8
  The caption of RCW 9.46.095 also clearly suggests that it provides immunity for the Gambling
Commission and its members. However, a statute’s caption is prepared by the code reviser and
is not part of the statute. State v. T.A.W., 144 Wn. App. 22, 26, 186 P.3d 1076 (2008); see RCW
1.08.015(2)(l). The actual title of the act, when part of a legislative enactment, may be


                                                   20
No. 47983-4-II


       Second, Gerow argues that RCW 9.46.095 applies only to suits against Gambling

Commission commissioners in their personal capacities, not in their official capacities. He

focuses on the word “personally,” arguing that RCW 9.46.095 simply assures that the State and

not the commissioners themselves must pay any damages caused by their misconduct. He claims

that RCW 9.46.095 really is an indemnification provision that protects commissioners against

personal exposure to damages.

       However, RCW 9.46.095 addresses liability, not payment. The statute states that the

Gambling Commission and its members are not liable for damages. It does not provide that the

State will pay any damages if liability is established. And the term “personally” cannot refer

only to the commissioners’ personal exposure because the statute also applies the term to the

Gambling Commission itself. The Gambling Commission has no “personal” capacity.

       Further, if RCW 9.46.095 is interpreted simply as an indemnification provision, it

becomes a useless statute. RCW 4.92.075 and RCW 4.24.490 already provide indemnity to state

officers and employees. We will not interpret a statute in a way that renders it meaningless. See

Newton v. State, 192 Wn. App. 931, 938, 369 P.3d 511, review denied, 186 Wn.2d 1003 (2016).

       We hold that RCW 9.46.095 provides immunity to the Gambling Commission and its

commissioners from damages actions at law for acts in the performance of their duties. Gerow’s

tort claims are actions at law for damages based on the performance of their official duties.

Accordingly, we hold that the trial court did not err in dismissing Gerow’s negligence and




considered as a source of legislative intent, T.A.W., 144 Wn. App. at 26, but the title of the act
adopting the section that became RCW 9.46.095 does not describe the section.


                                                 21
No. 47983-4-II


tortious interference claims against the Gambling Commission and its commissioners based on

immunity under RCW 9.46.095.

       2.    Liability of Governor

       Gerow asserted claims against Governor Gregoire for negligence and tortious

interference with a contact or business expectancy. But he presented no evidence that the

governor was involved in any way in the denial of his application for the upgraded VIP or any

retaliatory actions against him. On appeal, he presents no argument that the governor was liable

for his claims. Therefore, we hold that the trial court did not err in dismissing all tort claims

against Governor Gregoire.

       3.    Negligence Claims

       Gerow argues that the trial court erred in dismissing his negligence claims against the

Gambling Commission director. The State argues that the trial court correctly dismissed

Gerow’s negligence claims because, under the public duty doctrine, he could not show that there

was a special relationship creating a duty to him. We agree with the State.

             a.   Legal Principles

       The threshold determination in a negligence claim is whether the defendant owed the

plaintiff a duty of care. Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 459 (2006).

When the defendant in a negligence action is a governmental entity, the public duty doctrine

provides that a plaintiff must show the duty breached was owed to him or her in particular rather

than a duty owed to the public in general. Munich v. Skagit Emergency Commc’ns Ctr., 175

Wn.2d 871, 878, 288 P.3d 328 (2012). This is because “a duty owed to all is a duty owed to

none.” Id.



                                                 22
No. 47983-4-II


        There are four exceptions to the public duty doctrine. Id. at 879. One is the special

relationship exception. Id. Under this exception, the governmental entity owes a duty to a

particular plaintiff if there is a “special relationship” between the entity and the plaintiff that

gives rise to such a duty. Id. A special relationship exists if three elements are established: (1)

direct contact or privity between the public entity and the injured plaintiff that sets the plaintiff

apart from the general public, (2) express assurances given to the plaintiff by the public entity,

and (3) justifiable reliance by the plaintiff. Id.

        Regarding the second element, assurances cannot be implied. Cummins, 156 Wn.2d at

855. Instead, the plaintiff “must have sought an express assurance” and “the government must

have unequivocally given that assurance.” Id.

             b.   Special Relationship Analysis

        Gerow argues that the three elements required for a special relationship are met because

(1) he had privity based on his direct contact with commission staff and as the exclusive

applicant for the upgraded VIP machine, (2) he was expressly told that the upgraded VIP

machine did not comply and would not be approved, and (3) he relied on that erroneous denial to

his detriment by not marketing the VIP machine which in fact complied with the rules.

        But Gerow misconstrues the nature of the express assurance requirement. When the

governmental entity expressly assures the plaintiff that it will perform an act, a special

relationship is created and the entity may owe the plaintiff a duty to perform that act. See

Munich, 175 Wn.2d at 881-84. For example, when a 911 operator assures a caller that law

enforcement officers are on the way, a special relationship exists and the 911 entity owes the

caller a duty to provide the promised assistance. Id. at 881-82.



                                                     23
No. 47983-4-II


       Here, Gerow argues that the Gambling Commission and its director were negligent in

wrongfully failing to approve his application for an upgraded VIP. A special relationship may

have been created if the Gambling Commission had expressly assured Gerow that it would

approve the application if he developed the upgraded VIP. But the Gambling Commission gave

no such assurance. It expressly informed Gerow that it would not approve the application. The

Gambling Commission’s denial of Gerow’s application obviously was not an express assurance

that it would approve the application.

       Gerow provides no authority for the proposition that requesting that a governmental

entity perform an act somehow creates a special relationship giving rise to a duty to perform that

act. Such a rule would convert every governmental entity’s receipt of an application or request

into a special relationship giving rise to an actionable duty to approve the application. No

authority suggests that the special relationship exception should be extended so far. Instead, the

remedy is to appeal the decision under the APA – which Gerow did.

       Another case involving an emergency call to dispatch is instructive. In Cummins v. Lewis

County, the plaintiff alleged that a county 911 dispatch unit was negligent in not responding

when her husband called with a medical emergency. 156 Wn.2d at 850. She argued that calling

911 and requesting assistance was enough to create a special relationship because the 911 system

provided an “inherent assurance” that assistance would be provided. Id. at 856. The Supreme

Court rejected this argument, holding that a special relationship could be created only if the 911

operator actually gave the caller an unequivocal statement that assistance would be forthcoming.

Id. at 855-56.




                                                24
No. 47983-4-II


       Because Gerow cannot establish the express assurance element of a special relationship,

the public duty doctrine applies. Accordingly, we hold that the trial court did not err in granting

summary judgment on Gerow’s negligence claims.

       4.   Tortious Interference with a Contract or Business Expectancy

       Gerow argues that the trial court erred in granting summary judgment in favor of the

Gambling Commission director on his tortious interference with a contract or business

expectancy claim. The State argues, among other things, that summary judgment was correct

because Gerow failed to present evidence of a valid contract or business expectancy. We agree

with the State.

             a.   Legal Principles

       A claim of tortious interference with a contract or business expectancy requires “(1) the

existence of a valid contractual relationship of which the defendant has knowledge, (2)

intentional interference with an improper motive or by improper means that causes breach or

termination of the contractual relationship, and (3) resultant damage.” Elcon, 174 Wn.2d at 168.

       A valid business expectancy is any prospective contractual or business relationship that

would be of pecuniary value. Manna Funding, LLC v. Kittitas County, 173 Wn. App. 879, 897,

295 P.3d 1197 (2013). “ ‘All that is needed is a relationship between parties contemplating a

contract, with at least a reasonable expectation of fruition. And this relationship must be known,

or reasonably apparent, to the interferor.’ ” Id. (quoting Scymanski v. Dufault, 80 Wn.2d 77, 84-

85, 491 P.2d 1050 (1971)).

       “A plaintiff must show future business opportunities ‘are a reasonable expectation and

not merely wishful thinking,’ but certainty of proof is not needed.” Life Designs Ranch, Inc. v.



                                                25
No. 47983-4-II


Sommer, 191 Wn. App. 320, 337, 364 P.3d 129 (2015) (quoting Caruso v. Local Union No. 690,

Int’l Bhd. of Teamsters, 33 Wn. App. 201, 208, 653 P.2d 638 (1982)), review denied, 185 Wn.2d

1022 (2016). For example, in Life Designs Ranch the plaintiff met its burden to show a valid

business expectancy through its historical referral and enrollment records to show that it could

reasonably expect a certain number of referrals and enrollments. 191 Wn. App. at 337.

            b.   Analysis

       Although Gerow does not specifically identify the “business expectancy” with which the

Gambling Commission director interfered, his argument appears to be that the Gambling

Commission’s actions interfered with his relationship with his pull-tab machine customers. But

there is no evidence that this relationship was affected. Gerow submitted his own declaration

stating that his upgraded VIP machine “would have been competitive,” but did not submit

evidence that there were interested customers. Clerk’s Papers at 699. “Conclusory statements

and speculation will not preclude a grant of summary judgment.” Elcon, 174 Wn.2d at 169.

       Gerow also submitted declarations from William Tackitt and David Fretz. Tackett

simply stated that he is a restaurant owner who offers pull-tabs and that he has been denied

access to improved pull-tab technology. He did not say that he would have been interested in

purchasing an upgraded VIP machine. Fretz stated that he operates cardrooms, but does not

offer pull-tabs because they are not profitable. Fretz did not state that the upgraded VIP would

have been profitable or that he would have been interesting in purchasing one.

       Gerow could have presented evidence of sales of his VIP machine once it was approved

or evidence that a cash card function made the upgraded VIP machine more marketable. Instead,

he presented nothing more than wishful thinking and asked the trial court to assume without



                                                26
No. 47983-4-II


evidence that there were customers interested in purchasing an upgraded VIP. Gerow’s own

statement that his upgraded VIP would have been competitive and the declarations of Tackett

and Fretz are not sufficient to show Gerow had a valid contract or business expectancy with

which the Gambling Commission interfered.

        Accordingly, we hold that the trial court did not err in granting summary judgment in

favor of the Gambling Commission director on Gerow’s tortious interference with a contract or

business expectancy claim.

                                          CONCLUSION

        We affirm the trial court’s dismissal of Gerow’s claims against all defendants.

        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 in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.


 We concur:




 JOHANSON, J.




 MELNICK, J.




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