                                                                                  COURT OF APPEALS
                                                                                     DIVISION II

                                                                                 2U I it OEC 30 AM 947

                                                                                 STATE OF WASHINGTON

                                                                                  BY
                                                                                              UTY


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II


DAVID HYYTINEN, an individual,                                                   No. 45117 -4 -II


                                        Appellant,
                                                                          UNPUBLISHED OPINION

           v.




 CITY OF BREMERTON and the STATE OF
 WASHINGTON,             in     its    capacity   as   legal
 representative of the Washington State Patrol,


                                         Respondents.



          BJORGEN, A.C. J. —          David Hyytinen appeals the summary judgment orders issued in

favor of the City of Bremerton (City) and the State of Washington, as legal representative of the

Washington State Patrol ( Patrol),          concerning a vehicle that the City sold to him. Hyytinen sued

the City and the Patrol after the Patrol seized as stolen property a vehicle Hyytinen had

purchased       from the Bremerton Police Department ( BPD). Hyytinen' s complaint alleged ( 1)


breach    of contract, ( 2)   fraud, ( 3)   unjust enrichment, ( 4)   negligence, and ( 5) violation of his right


to due process under the federal constitution. Hyytinen later moved to amend the complaint to

allege a state constitutional due process claim against the Patrol, which motion the trial court


denied.
No. 45117 -4 -II




       The trial court granted summary judgment in favor of Bremerton and the Patrol on the

grounds that the statute of limitations barred Hyytinen' s contractual claims; Hyytinen' s failure to

comply with the notice -of c- laim statute and to plead sufficient factual allegations barred the

fraud and negligence claims; the unjust enrichment claim failed because a contract controlled the

terms of sale; and no independent cause of action supported the federal due process claim.

Because genuine issues of material fact remain as to whether Hyytinen' s purchase contract with


the City was voidable based on mutual mistake of fact and whether he has met the requirements

of unjust enrichment, we reverse summary judgment in favor of the City on Hyytinen' s unjust

enrichment claim and remand to the trial court for adjudication of that claim and the related issue

of mutual mistake. We affirm the trial court' s order of summary judgment on Hyytinen' s other

claims against the City and his claims against the Patrol.

                                               FACTS


       In 2004, the BPD seized a 2002 Cadillac Escalade from Darryl Anthony Shears, a suspect

in a drug investigation. Shears forfeited the Escalade to BPD as part of a stipulated settlement

agreement, and the State of Washington issued a certificate of title naming BPD as the legal

owner in March 2006.


        Although BPD knew that Shears had two felony convictions for possession of stolen

property and forgery, it did not check whether the publicly visible vehicle identification number

 VIN), a unique sequence of numbers and letters assigned to each new motor vehicle at the


factory, matched the Escalade' s confidential VIN, marked in various concealed locations

generally known only to law enforcement. See State v. Owens, 180 Wn.2d 90, 93, 323 P. 3d 1030




                                                   2
No. 45117 -4 -II




2014)     and   United States   v.   Short, 4 F. 3d 475, 480 -81 ( 7th Cir. 1993) (      discussing nature and

purpose of confidential    VINs). Instead, BPD ran the license plate number through


certain   law   enforcement   data bases,     none of which     listed the Escalade      as stolen.'   The BPD


advertised the Escalade in the newspaper and sold it to Hyytinen for $21, 500 through a private

auction company on June 30, 2007.

          Later, the State Department of Licensing learned that California authorities had

discovered another 2002 Escalade with the same VIN, and in April 2011, sent Hyytinen a letter

requesting that he have the Escalade' s VIN inspected by the Patrol. On May 2, the Department

of Licensing sent Hyytinen a letter informing him that it had cancelled the certificate of

ownership for the Escalade because it had issued the certificate in error and because Hyytinen
had not responded to the April inspection request.2

          When Hyytinen presented the Escalade to the Patrol for a VIN inspection on July 5,

2011, .the Patrol determined that the VIN appearing on the dashboard and driver' s side door were

forgeries and did not match the confidential VIN marked elsewhere on the vehicle. The Patrol




  We note that in its motion for summary judgment, the City represented to the trial court that the
BPD   ran   the VIN through      a   law   enforcement   database,   and   that "[   a] 11 of the information
available to the City    revealed      that the Escalade was     not stolen."    Clerk' s Papers ( CP) at 340 -41.
In its brief here, the City repeats these claims. Randy Plumb, the officer who performed the
inspection, however, only claimed to have checked the license plate number. Plumb admitted in
his deposition that he knew about the confidential VIN system, including at least some of the
confidential VIN locations, but expressly denied ever checking the publicly visible VIN or
comparing it to the     confidential       VIN. Thus, contrary to the      City' s representations, ( 1) it did not
check either the public VIN or the confidential VIN in any database, and (2) the City had
information available to it that would have revealed the Escalade' s stolen status. After we
directed counsel' s attention to these misrepresentations at oral argument, the City submitted an
 errata" amending its brief to omit the erroneous assertions.

2 Hyytinen apparently did not receive this second letter, which the Department of Licensing sent
to an address different from that appearing on the first letter.
                                                            3
No. 45117 -4 -II




immediately seized the Escalade, informing Hyytinen that it would not return the vehicle to him

and that he needed to remove his personal property from it and find another way to get home.

The Patrol concedes that it never notified Hyytinen of the seizure in writing by certified mail, as

required by the statute authorizing such seizures, or of his right to a hearing at which he could

attempt to establish valid title to the Escalade.


        The Patrol discovered that a car dealership in Canada had reported the Escalade stolen in

November 2002.       On August 5, 2011, the Patrol informed Hyytinen that the dealership' s

insurance company wanted to auction the Escalade to recoup the money it had paid out on the

dealership' s   claim.   The Patrol subsequently released the Escalade to the auctioneer.

                                      PROCEDURAL HISTORY


        Hyytinen filed this lawsuit on September 21, 2011, naming only BPD as defendant and

stating various causes of action, including breach of contract, fraud, and unjust enrichment.3
Hyytinen submitted a tort claim form to the City on November 3, 2011, and amended the

complaint to name the City as a defendant the next day. On February 6, 2012, Hyytinen

amended the complaint again, adding a negligence claim based on the BPD' s failure to check the

Escalade' s VIN prior to selling it and clarifying the contractual claim by alleging breach of the

implied warranty of good title.

        On September 5, 2012, Hyytinen submitted a tort claim form to the State of Washington,

informing it that he intended to amend his complaint to add the Washington State Patrol as a
defendant. On December 13, Hyytinen again amended his complaint, naming " the State of

Washington, in its capacity as legal representative of the Washington State Patrol" as a defendant


 3 Hyytinen also alleged a violation of the Consumer Protection Act, chapter 19. 86 RCW, and an
 unlawful taking, but does not contest the trial court' s dismissal of those claims in this appeal.
                                                     4
No. 45117 -4 -II




and adding a cause of action for violation of his federal due process rights by the Patrol. Clerk' s
Papers ( CP) at 309 -16. Although he later argued that this third amended complaint included a

negligence claim against the Patrol, its negligence cause of action alleged only the same facts

underlying his initial negligence claim against the City.

          The City moved for summary judgment, arguing that ( 1) the statute of limitations in

Washington' s     codification of     the Uniform Commercial Code ( U. C. C.) barred Hyytinen' s


contractual claims; (    2) Hyytinen' s failure to submit a tort claim form at least 60 days prior to


filing   suit, as required   by   RCW 4. 96. 020( 4),   required dismissal of his fraud and negligence

claims against    the   City; ( 3) Hyytinen' s fraud claim failed as a matter of law because he alleged

neither that the City made any false representation of fact nor that the City knew that the

Escalade had been       stolen; (   4) Hyytinen' s negligence claim failed as a matter of law because the

BPD owed Hyytinen no duty to verify Shears' s ownership of the Escalade; and ( 5) Hyytinen' s

unjust enrichment claim failed as a matter of law because a contract governed his relationship

with BPD with respect to the Escalade and because the BPD, having surrendered the Escalade in

return for Hyytinen' s payment, did not receive any benefit for which it did not pay.

          The Patrol also moved for summary judgment, arguing that Hyytinen' s due process claim

failed as a matter of law because ( 1) he had no constitutionally protected property interest in the

Escalade; ( 2) given Hyytinen' s actual notice of the seizure, the existence of a readily


discoverable procedure under state law to dispute that seizure alone satisfied the requirements of


due process; and ( 3) Hyytinen failed to invoke 42 U. S. C. section 1983, the federal statute

creating a cause of action for deprivation of a federal right under color of state law, and did not

name a " person" within the meaning of section 1983 as a defendant. The Patrol also alleged that

Hyytinen' s claims against it were frivolous and requested an attorney fee award. After hearing

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No. 45117 -4 -II




argument from Hyytinen and the City, the trial court granted the City' s summary judgment

motion and dismissed Hyytinen' s claims against it with prejudice.

       The trial court granted summary judgment in favor of the Patrol on Hyytinen' s

constitutional claims two weeks later. However, when the Patrol noted an order for entry of

judgment dismissing the suit, Hyytinen opposed it, arguing that the third amended complaint also

stated a negligence claim against the Patrol. The trial court agreed with Hyytinen and dismissed

only the constitutional claim.

       The Patrol then moved for summary judgment on the negligence claim on the ground that

the complaint did not allege any conduct by the Patrol that would amount to negligence.

Hyytinen then moved to amend the complaint again to " clarify" his negligence claim against the

Patrol and add a due process claim based on the Washington Constitution' s due process clause.

WASHINGTON CONSTITUTION,         art.   1, §   3; CP at 922 -30. The trial court denied Hyytinen' s motion


on the grounds that it was untimely and unfairly prejudicial to the Patrol and that no authority

supported the proposition that a state due process claim would survive where a federal claim had

failed as a matter of law.

        The trial court ultimately granted the Patrol' s summary judgment motion and dismissed

Hyytinen' s suit, entering judgment in favor of the Patrol for $200 in statutory attorney fees and

declining to award reasonable attorney fees. Hyytinen timely appeals.

                                                   ANALYSIS


        Hyytinen contends that the trial court erred in dismissing on summary judgment his

claims against both the City and the Patrol. After setting forth the relevant standards of review,

we first address the trial court' s grant of summary judgment to the City, then consider the trial



                                                         6
No. 45117 -4 -II




court' s denial of Hyytinen' s motion to amend the complaint and its dismissal of his claims

against the Patrol.


                                        I. STANDARD OF REVIEW


         We review a grant of summary judgment de novo and perform the same inquiry as the

trial court. Macias   v.   Saberhagen Holdings, Inc., 175 Wn.2d 402, 407 -08, 282 P. 3d 1069


 2012); Torgerson     v.   One Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009). A


court should grant summary judgment only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of   law." CR 56( c).


         A party moving for summary judgment bears the burden of demonstrating that there is no
genuine issue of material fact. Atherton Condominium Apartment -Owners Ass 'n Bd. ofDirs. v.

Blume Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990). " A material fact is one upon which


the   outcome of   the litigation depends in   whole or   in   part."   Atherton, 115 Wn.2d at 516. If the


moving party satisfies its burden, the nonmoving party must present evidence demonstrating that

a material fact remains in dispute. Atherton, 115 Wn.2d at 516. If the nonmoving party fails to

do so, and reasonable persons could reach but one conclusion from all the evidence, then

summary judgment is proper. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16,

26, 109 P. 3d 805 ( 2005).


         In determining whether summary judgment was proper, we must consider all facts, and

the reasonable inferences that follow from them, in the light most favorable to the nonmoving

party.   Vallandigham, 154 Wn.2d at 26; Atherton, 115 Wn.2d at 516. Thus, we consider the

record herein the light most favorable to Hyytinen.


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No. 45117 -4 -II




          We review the denial of a motion to amend a pleading for abuse of discretion.

Kwiatkowski       v.   Drews, 142 Wn. App. 463, 496, 176 P. 3d 510 ( 2008). The relevant court rule


provides, however, that " leave shall be freely given" to a party to amend its pleadings " when

justice   so requires."     CR 15( a).    Delay alone does not necessarily suffice to justify denial of a

motion    to   amend;     instead, "[ t] he touchstone for denial of an amendment is the prejudice such


amendment would cause            the nonmoving party."        Caruso v. Local Union No. 690 glint? Bhd. of

Teamsters, Chauffeurs, Warehousemen & Helpers                    ofAm.,   100 Wn.2d 343, 350, 670 P.2d 240


 1983).


                                     II. HYYTINEN' S CLAIMS AGAINST THE CITY


          Hyytinen argues that the trial court erred in dismissing his claims against the City on

summary judgment because ( 1) the four -year U.C. C. statute of limitations does not apply to his

breach    of   contract   claim; (   2) his contract with BPD is void and therefore does not bar his unjust

enrichment claim; and ( 3) he complied with the notice of claim statute and alleged sufficient


facts to support his fraud and negligence claims. We consider each contention in turn.

A.        Contractual Claims Against the City

          Hyytinen contends that the U.C. C.' s four -year statute of limitations, codified in

Washington       as    RCW 62A.2- 725( 1),     does not bar his contract claims against the City. In his

reply brief, Hyytinen argues for the first time that equitable tolling should extend the limitations

period. We hold that the U.C.C. limitation period plainly applies and bars Hyytinen' s .

contractual claims.



          Washington' s       enactment of the    U.C. C.   covers all " transactions   in   goods,"   RCW 62A.2-


102; that is " all things . .        which are movable at the time of identification to the contract for


sale."    RCW 62A.2 -105. The statute thus applies to BPD' s sale of the Escalade to Hyytinen.


                                                             8
No. 45117 -4 -I1




          The U.C. C.       statute of       limitations       provides       that "[   a] n action for breach of any contract for

sale must   be     commenced within               four   years after ...        the breach occurs, regardless of the


aggrieved   party'    s   lack   of   knowledge          of the   breach." RCW 62A.2 -725. Hyytinen argues that this


limitations period applies only to the contract, defined as " the total legal obligation that results

from the   parties'       agreement,"        but   not   to the broader " agreement." Br. of Appellant at 25 -26. His



brief fails to explain, however, how the duty to deliver the Escalade with good title falls outside

the contract, as defined. Consequently, his argument is unavailing, and RCW 62A.2 -725, on its

face, would bar any contractual claim Hyytinen might bring.

          Nevertheless, Hyytinen argues that the statute of limitations should be tolled under the

                                                                      bad faith. RCW 62A.2- 725( 4)                          that "[ t] his
equitable   tolling doctrine because               of    BPD'     s                                           specifies




section   does     not alter   the    law    on   tolling     of the statute of         limitations." Washington courts have


adopted    the "   equitable     tolling" doctrine,            which "'    permits a court to allow an action to proceed


when   justice     requires    it,    even   though      a    statutory time      period    has nominally     elapsed. '       In re


Carlstad, 150 Wn.2d 583, 593, 80 P. 3d 587 ( 2003) (                             quoting State v. Duvall, 86 Wn. App. 871,

874, 940 P. 2d 671 ( 1997)).


          Hyytinen, however, raises equitable tolling for the first time in his reply brief. We

generally decline to         consider        issues   not raised        in the trial     court,   RAP 2. 5( a),   and "[   a] n issue

raised and argued          for the first time in          a   reply brief is too late to          warrant consideration."        Cowiche


Canyon     Conservancy           v.   Bosley,     118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992). For this reason, and


because we hold below that Hyytinen has adequately preserved his unjust enrichment claim,

which is inconsistent with his equitable tolling argument, we decline to consider equitable tolling




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No. 45117 -4 -II




further. Hyytinen' s contract claims are barred by the statute of limitations.

B.         Unjust Enrichment


           Hyytinen contends that he is entitled to restitution from the City based on unjust

enrichment. Hyytinen argues that he may invoke this equitable remedy even though a contract

governed his transaction with the City because either the parties failed to agree to the essential

terms and thus no valid contract formed or, in the alternative, because the contract " is void as

against public    policy."   Br. of Appellant at 29. In his reply brief, Hyytinen argues more

specifically that he may avoid the contract due to material misrepresentation or mutual mistake

of fact.


           The City maintains that, so long as a contract governs their relationship, Hyytinen has no
unjust enrichment claim against           BPD. The       City   contends     that "[ t]he stolen nature of the


Escalade does     not eliminate     any   of   the   elements of a contract claim,"      and thus, the fact that


Hyytinen " may      not   have   received what       he bargained for ... does not invalidate the contract."


Br. of Resp' t (City of Bremerton) at 10.

           Our Supreme Court has characterized the theory of unjust enrichment on which Hyytinen

relies as a " contract    implied in law"       or " quasi contract."        Young v. Young, 164 Wn.2d 477, 484-

85, 191 P. 3d 1258 ( 2008).        The Young court articulated the elements of such an unjust

enrichment claim as "(       1) the defendant receives a benefit, (2) the received benefit is at the

plaintiff' s expense, and ( 3) the circumstances make it unjust for the defendant to retain the

benefit    without payment."       Young,      164 Wn. 2d    at   484 -85.   The Young court specified also that

     u] njust enrichment is the method of recovery for the value of the benefit retained absent any

contractual     relationship."     164 Wn.2d at 484 ( emphasis added).




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No. 45117 -4 -I1




         The mere existence of a contract between the parties does not preclude an unjust

enrichment claim,        however. See Chandler        v.   Wash. Toll Bridge Auth., 17 Wn.2d 591, 604, 137


P.2d 97 ( 1943) (   Party may not bring an implied contract action relating to the same matter

covered by a valid express contract when the alleged implied contract is in contravention of the
valid express contract.).



         The U.C. C. defines " contract" as " the total legal obligation that results from the parties'

agreement as      determined     by this title   as supplemented      by     any   other applicable   laws." RCW


62A. 1- 201( 12). Under RCW 62A.2 -312, "             there is in a contract for sale a warranty by the seller

that ... [ t] he title   conveyed shall   be   good, and    its   transfer   rightful."   This warranty of title is thus

part of the total legal obligation resulting from Hyytinen' s agreement with BPD, as

supplemented by the U.C. C. Therefore, the terms of the express contract cover the matter at

issue here, and, under the rule stated in Chandler, 17 Wn.2d at 604, the existence of a valid

contract would bar Hyytinen' s unjust enrichment claim.


         Hyytinen argues in his reply brief that his unjust enrichment claim may proceed because

either a valid contract never formed or the contract was voidable due to mutual mistake. As

noted, we generally decline to consider issues raised for the first time in a reply brief. Here,

however, Hyytinen         made   the   following   argument, under         the   heading " No   Valid Contract," in


opposition to the City' s summary judgment motion:

          A valid contract exists only where the following elements are found: an offer,
          acceptance,      consideration ( mutual promises           or performance),        legal capacity and
          legal   substance and compliance with            the    statue of   frauds.     The Escalade' s stolen

          status precluded the BPD from entering into a valid contract.




                                                              11
No. 45117 -4 -II




CP 478 -79. Because Hyytinen raised the issue in the trial court and presented closely analogous

arguments that sufficiently raised the validity of the contract in his opening brief, we address the

claim on its merits.


          First, Hyytinen contends that no contract formed because BPD' s material

misrepresentation induced his assent to the agreement. The Restatement ( Second) of Contracts

section   164( 1) ( 1981) explains that

          i]f a party' s manifestation of assent is induced by either a fraudulent or a material
          misrepresentation by the other party upon which the recipient is justified in relying,
          the contract is voidable by the recipient.

Under this      rule, "   even a material innocent misrepresentation can render a contract voidable."


Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 390, 858 P.2d 245

 1993).


          This argument' s Achilles' heel is the fact that Hyytinen never had contact with anyone at


BPD prior to buying the Escalade. The Restatement defines " misrepresentation" as " an assertion

that is   not   in   accord with    the   facts."   RESTATEMENT ( SECOND) OF CONTRACTS, § 159 ( 1981).              The


comment notes that such an assertion " commonly takes the form of spoken or written words,"

but   also acknowledges        that "[    a] n assertion may also be inferred from conduct other than words."

RESTATEMENT ( SECOND) OF CONTRACTS, § 159, cmt. a ( 1981).


          Hyytinen does not point to any specific words or conduct of BPD' s that amounted to an

assertion   that it had      good   title. Instead,   he merely    asserts   that "[ i]mplicit in its offer of sale was


the BPD' s representation that the Escalade had good title" and notes that, as a law enforcement

agency, BPD " stood in a superior position of knowledge and ability to investigate" the matter.

Reply Br. of Appellant at 19 n.8.



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No. 45117 -4 -II




       As discussed above, BPD arguably held itself out as the legal owner of the Escalade.

However, Hyytinen also admitted that he knew BPD had seized the vehicle. Under these


circumstances, merely offering an item for sale is not sufficient to qualify as a misrepresentation

that would require the conclusion that a contract never was formed.

       Hyytinen also invokes the doctrine of mutual mistake of fact. The doctrine provides that

        w] here a mistake of both parties at the time a contract was made as to a basic
       assumption on which the contract was made has a material effect on the agreed
        exchange of performances, the contract is voidable by the adversely affected party
       unless he bears the risk of the mistake.

RESTATEMENT ( SECOND) OF CONTRACTS, § 152( 1) (                 1981).     The " test of materiality is whether the

contract would     have been   entered   into had the     parties   been   aware of the mistake."   Simonson v.


Fendell, 101 Wn.2d 88, 92, 675 P. 2d 1218 ( 1984).              The Restatement illustrates these principles


with an example involving facts somewhat analogous to those here:

        A, a violinist, contracts to sell and B, another violinist, to buy a violin. Both A and
        B believe that the     violin   is   a   Stradivarius, but in fact it is   a clever   imitation. A

        makes no express warranty and, because he is not a merchant with respect to
        violins, makes no implied warranty of merchantability under Uniform Commercial
        Code §     2 -314. The contract is voidable by B.

RESTATEMENT ( SECOND) OF CONTRACTS, § 152,                  at cmt.   g, illustration 14 ( 1981).   Washington


courts have adopted the mutual mistake doctrine. See Simonson, 101 Wn.2d at 91 -92.

        The remedy for mutual mistake is restitution:

        A person who renders performance under a contract that is subject to avoidance by
        reason of mistake ...      has a claim in restitution to recover the performance or its
        value, as necessary to prevent unjust enrichment.

RESTATEMENT ( THIRD) OF RESTITUTION & UNJUST ENRICHMENT, § 34( 1) ( 2011).                          Thus, mutual


mistake of fact concerning the seller' s title may make a contract voidable and entitle the buyer to

restitution. If the contract between Hyytinen and the City were voidable on this basis and if


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No. 45117 -4 -II




Hyytinen voided it, no express contract would bar Hyytinen' s unjust enrichment claim.

Chandler, 17 Wn.2d at 604.


       Genuine issues of material fact remain as to whether the elements of mutual mistake are


present. Those issues include, but are not necessarily limited to, whether both parties at the time

of contracting were mistaken as to a basic assumption on which the contract was made, whether

that mistake had a material effect on the agreed exchange of performances, and whether


Hyytinen bears the   risk of   the   mistake.   RESTATEMENT ( SECOND) OF CONTRACTS § 152( 1).



According to Restatement ( Second) of Contracts section 154, at 402 -03, a party bears the risk of

a mistake when



        a) the risk is allocated to him by agreement of the parties, or
        b) he is aware, at the time the contract is made, that he has only limited knowledge with
       respect to the facts to which the mistake relates but treats his limited knowledge as
        sufficient, or

        c) the risk is allocated to him by the court on the ground that it is reasonable in the
        circumstances to do so.


        Similarly, genuine issues of material fact are present as to whether Hyytinen meets the

elements of an unjust enrichment claim, assuming the contract is voidable for mutual mistake of

fact. Those elements include ( 1) whether BPD received a benefit, (2) whether the received

benefit is at Hyytinen' s expense, and ( 3) whether the circumstances make it unjust for the

defendant to retain the benefit without payment. See Young, 164 Wn.2d at 484 -85.

        In sum, issues of material fact remain on Hyytinen' s unjust enrichment claim and on the

question of mutual mistake, which must be resolved before the unjust enrichment claim may be

reached. Consequently, the trial court erred in granting the City summary judgment on

Hyytinen' s claim of unjust enrichment.




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No. 45117 -4 -II




C.        Tort Claims Against the City

          Hyytinen claims that the trial court erred in dismissing his fraud and negligence claims

against the City, arguing that the claims raise material questions of fact and that he complied

with RCW 4. 96. 020' s notice -of c- laim requirements. The City counters that courts require

     s] trict compliance" with the 60 -day notice -of -claim requirement and that Hyytinen failed to

plead sufficient facts in support of his fraud and negligence claims. Br. of Resp' t (City of

Bremerton)     at    11.   We agree with the City.

          In Bosteder v. City ofRenton, our Supreme Court4 addressed the precise issue presented

here regarding the notice of claim statute:

                     Because the original complaint asserted a trespass claim against the city,
          and the complaint was served on the same day the claim for damages was filed,
          thereby commencing the action, Bosteder did not comply with the 60 -day waiting
          period requirement. His attempt to rectify that problem by amending his complaint
          60 days later does     not change    that fact. See RCW 4. 16. 170; RCW 4. 96. 020(4). We

          require strict compliance with the procedural requirements of the claim filing
          statute.



155 Wn.2d 18, 47, 117 P. 3d 316 ( 2005),            superseded by statute on other grounds, Wright v.

Terrell, 162 Wn.2d 192, 195          n. 1,   170 P. 3d 570 ( 2007). Thus, the fact that Hyytinen amended his


complaint more than 60 days after filing the notice of claim does not remedy his failure to

comply with the statute' s procedural requirements.

           Because the statute of limitation has not yet run on Hyytinen' s tort claims, however, the


question remains whether the trial court erred in dismissing these claims with prejudice. See

RCW 4. 16. 080(2).          In the case on which the City relies, Troxell v. Rainier Public School District



4 Although only four justices signed the majority opinion ofthe court, Justice Ireland' s separate
opinion agreed with the majority opinion on this point. Bosteder, 155 Wn.2d at 59 ( Ireland, J.,
 agree[ d] with the majority except as it holds that the claim filing statute applies to individuals ").
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No. 45117 -4 -II




No. 307, the court noted that the trial court had dismissed Troxell' s suit with prejudice

  b] ecause the       statute of   limitations had   run."   154 Wn.2d 345, 349, 111 P. 3d 1173 ( 2005).


Where the limitations period has not yet expired, the plaintiff would presumably remain free to

reinstitute the suit after filing the notice of claim and waiting 60 days. See Dyson v. King

County, 61        Wn.   App.   243, 245 -46, 809 P. 2d 769 ( 1991) (      holding the county estopped from

asserting the plaintiff had failed to comply with a notice of claim provision because it "waited

until the applicable statute of limitations had run" before raising the defense).

            In dismissing the fraud and negligence claims, however, the trial court also relied on the

City' s argument that Hyytinen' s tort claims raised no issue of material fact. We agree. With

respect to Hyytinen' s fraud claim, the City' s argument plainly carries the day. The failure to

prove by clear, cogent, and convincing evidence any element of fraud " is fatal to recovery."

Markov       v.   ABC Transfer & Storage Co., 76 Wn.2d 388, 395, 457 P. 2d 535 ( 1969). The elements


of   frau d include " a   representation of    existing fact, ...   its   falsity, [ and]   the speaker' s knowledge


of   its   falsity." Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d' 157, 166, 273 P. 3d 965 ( 2012).

As discussed above, Hyytinen points to no specific words or conduct amounting to an assertion

that BPD had good title to the Escalade, other than the mere fact that BPD, a law enforcement


agency, offered the Escalade for sale. Even were we to consider this a representation of existing

fact, Hyytinen points to no evidence that BPD actually knew it was false at the time. Thus, his

fraud claim fails from the outset. We hold that the trial court did not err in dismissing the fraud

claim on summary judgment.

            Hyytinen' s   negligence claim presents a closer question. "            The elements of a negligence


cause of action are the existence of a duty to the plaintiff, breach of the duty, and injury to



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plaintiff   proximately    caused   by the breach." Hertog, ex rel. S.A.H. v. City ofSeattle, 138 Wn.2d

265, 275, 979 P. 2d 400 ( 1999). The Uniform Controlled Substances Act, chapter 69. 50 RCW,


imposes a duty on law enforcement agencies that seize property under its forfeiture provision to

         cause notice to be served within fifteen days following the seizure on the owner of
         the property seized and the person in charge thereof and any person having any
         known     right or   interest therein, ...      of the seizure and intended forfeiture of the
         seized property.


RCW 69. 50. 505( 3).       Based on this, Hyytinen argues that ( 1) BPD had a duty under RCW

69. 50. 505( 3) to notify the Escalade'     s   true   owner of the seizure; (       2) given what BPD knew about


Shears and its special knowledge of the confidential VIN system, it breached that duty by not

comparing the Escalade' s public VIN with the confidential VIN; and (3) that this failure

proximately caused Hyytinen to pay for a vehicle that would later be seized without
compensation returned to him.


         The City counters that the duty imposed by RCW 69. 50. 505( 3) runs to persons with an

ownership interest in the property at the time of seizure, not to a subsequent purchaser of

forfeited property. The City further contends that BPD fulfilled this duty by checking the

Escalade' s license plate in a law enforcement database and notifying Shears, the only person

listed as owner therein. We find the first argument persuasive.

          The notice provision in the Uniform Controlled Substances Act' s forfeiture provision

plainly aims to protect innocent owners, whose property was used for illegal purposes without

their   consent,   from   losing their property.       See,   e. g.,   RCW 69. 50. 505( 1)( g), ( h) ( specifying   that

  n] o personal    property may be forfeited ...          to the extent of the interest of an owner, by reason

of any act or omission which that owner establishes was committed or omitted without the

owner' s    knowledge     or consent ").   Because Hyytinen had no interest in the Escalade at the time



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No. 45117 -4 -II




of the initial seizure, BPD owed him only the duty it generally owes to the public to remove

stolen property from the stream of commerce. Therefore, the public duty doctrine governs

Hyytinen' s negligence claim.


         The public duty doctrine provides that " no liability may be imposed for a public official' s

negligent conduct unless it is shown that `the duty breached was owed to the injured person as an

individual and was not merely the breach of an obligation owed to the public in general.'

Taylor   v.   Stevens   County,   111 Wn.2d 159, 163, 759 P. 2d 447 ( 1988) (      quoting J &B Dev. Co. v.

King County, 100        Wn.2d 299, 303, 669 P. 2d 468 ( 1983)).        An exception to the doctrine arises


 where the Legislature enacts legislation for the protection of persons of the plaintiff s class."

Taylor, 111 Wn.2d at 164. Here, however, Hyytinen falls outside the class the relevant


provisions in RCW 69. 50. 505 aim to protect. The only other possibly relevant exception to the

public duty doctrine,5 where a municipality' s agents have a " special relationship" to the plaintiff,

requires " an express assurance given        by   the   public official."   Munich v. Skagit Emergency

Commc'    n   Ctr., 175 Wn.2d 871, 879, 288 P. 3d 328 ( 2012).          As already discussed, Hyytinen

points to no such express assurance.


         For these reasons, Hyytinen' s arguments fail under the public duty doctrine. The trial

court did not err in dismissing his tort claims against the City on summary judgment.

                               III. HYYTINEN' S CLAIMS AGAINST THE PATROL


         Hyytinen argues that the Patrol ( 1) violated his right to due process under the federal

constitution, (2) violated his rights under state statutes and the state constitution, and ( 3)


negligently caused him damages. We first address Hyytinen' s federal due process claim, then



5 For a discussion of the exceptions to the public duty doctrine, see Bailey v. Town ofForks, 108
Wn.2d 262, 268 -69, 737 P. 2d 1257 ( 1987), amended by 753 P.2d 523 ( 1988).

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No. 45117 -4 -II




consider whether the trial court abused its discretion in denying leave to amend the complaint to

add the state law claims.


A.        Due Process Claims Against the Patrol


          Hyytinen contends that the Patrol violated his due process rights under the federal


constitution by failing to notify him in writing of his right to a hearing to contest the seizure, as

required   by RCW       46. 12. 725( 2). Hyytinen maintains that this prejudiced him because, as a buyer


in the ordinary course of business, he could have demonstrated good title to the vehicle at such a

hearing    under   RCW 62A. 1- 201( 9), or because he could have negotiated with the true owner to


protect his rights.


          The Patrol maintains that Hyytinen failed to properly raise a due process claim because

his pleadings do not name any individual defendant or invoke 42 U. S. C. section 1983, the statute

creating a cause of action for the violation of federal rights under color of state law. On the

merits of the due process claim, the Patrol counters that, given Hyytinen' s actual notice of the


seizure, the availability of a readily discoverable procedure for a post- deprivation hearing

satisfies the requirements of due process regardless of the Patrol' s failure to provide the notice


required by RCW 46. 12. 725( 2).

          In   City   of West Covina   v.   Perkins, the United States Supreme Court held that, "[ w]hen the


police seize     property for   a criminal    investigation ... ,   due process does not require them to


provide    the   owner with notice of state -law remedies."          525 U.S. 234, 240, 119 S. Ct. 678, 142 L.


Ed. 2d 636 ( 1999). The Perkins             court acknowledged      that "[   i] ndividualized notice that the


officers   have taken the property is necessary ...         because the property owner would have no other

reasonable means of        ascertaining who      was responsible      for his loss," but held that "[ n] o   similar



rationale   justifies requiring individualized       notice of state -  law    remedies ...   established by

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No. 45117 -4 -II




published,      generally   available state statutes and case       law." 525 U.S.    at   241.   Those state law


remedies, including the right to a hearing to contest the seizure, are set out in RCW 42. 12. 725:

Thus, regardless of whether Hyytinen properly pled a section 1983 claim or named a defendant

subject to suit under section 1983, the Patrol' s admitted failure to comply with the notice

requirements of RCW 46. 12. 725( 2) did not violate the federal due process clause.6

B.       State Law Claims Against the Patrol


         Hyytinen also contends that the trial court abused its discretion in denying his motion to

amend his complaint to include a due process claim based on the Washington Constitution. In

addition to recasting the federal due process claim discussed above as a state law claim,

Hyytinen further contends that the Patrol violated his due process rights by refusing to release

the   vehicle   to him,   as required   by RCW      46. 12. 725( 3), once he presented evidence of lawful


ownership. Hyytinen also argues that the Patrol' s failure to comply with RCW 46. 12. 725' s

notice requirements amounted to negligence per se, and that the trial court erred by dismissing

this claim on summary judgment. Hyytinen further maintains that the Patrol violated the statute

governing seizure         of stolen vehicles " as   a   matter of   law,"   presenting the same arguments offered

in support of his due process claims. Br. of Appellant at 23 -25.

          The Patrol counters that the trial court did not abuse its discretion in denying Hyytinen' s

motion to add a state constitutional claim to his complaint because Hyytinen never contended




6 Hyytinen seeks to distinguish Perkins on the ground that the police seized the property at issue
there pursuant to a search warrant, noting that " a seizure of personal property without a warrant
is per se unreasonable unless law enforcement has probable cause to believe the property holds
contraband or evidence of a crime."  Reply Br. of Appellant at 9 -10. Perkins, however, relied on
the presence of "published, generally available state statutes and case law" establishing state -law
remedies in holding that individualized notice of such remedies was not required. 525 U.S. at
241.    State law remedies here are similarly available.
                                                             20
No. 45117 -4 -II




that our constitution' s due process clause offers more protection than the federal equivalent, and

the court had already dismissed the federal due process claim. The Patrol further contends that

Hyytinen failed to allege any conduct by it that could give rise to a valid negligence claim. We

find the Patrol' s arguments persuasive.


         As discussed, Hyytinen' s state law claims against the Patrol amount to a negligence claim

and a claim based on the due process clause of the Washington Constitution and RCW

46. 12. 725' s notice requirements. As for the first claim, the negligence cause of action in


Hyytinen' s amended complaint did not allege any conduct by the Patrol at all. The only duty

mentioned in his complaint' s negligence section is that imposed by the Uniform Controlled

Substances Act to notify the rightful owner of seized property, which duty Hyytinen alleges BPD

breached, not the Patrol. Indeed, the only factual allegation anywhere in the complaint against

the Patrol is that it "did not provide Mr. Hyytinen with notice or a hearing regarding its intent to

seize   the   vehicle."      CP at 310 -11.


         Turning to the state due process claim, even under the most generous interpretation of

notice pleading, the complaint cannot be read to give the Patrol notice of any claim other than the

federal due process claim we have already rejected. Thus, unless the trial court erred in denying

Hyytinen' s motion to amend his complaint to state a due process cause of action under the


Washington Constitution and to " clarify" the negligence claim against the Patrol, Hyytinen' s

arguments fail.


C.        Motion to Amend Complaint


          As discussed, we review a trial court' s denial of a motion to amend a pleading for abuse

of   discretion. Kwiatkowski, 142 Wn.             App.   at   496.   CR 15 provides that " leave shall be freely

given"   to   a   party to   amend   its   pleadings " when    justice   so requires."   As noted, delay alone does

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No. 45117 -4 -II




not   necessarily   justify denial      of a motion    to amend; instead, "[      t] he touchstone for denial of an


amendment       is the   prejudice such amendment would cause                the nonmoving party."     Caruso, 100


Wn.2d at 350.


          In denying Hyytinen' s motion to amend, the trial court relied on three grounds:

Hyytinen' s 18 -month delay in seeking to amend, prejudice to the Patrol due to the fact that the

motion came after the Patrol had already prevailed on its first summary judgment motion, and,

 most     importantly, [ on]    the futile   nature of   the    proposed amendment."        VRP ( June 14, 2013) at


13.   Specifically,      the trial   court noted   that "[   t]here is simply no authority for the proposition that

a state   due   process claim        is any different from     a   federal due   process claim."   VRP (June 14,


2013) at 13.


           Although Hyytinen points out that state courts may interpret their constitutions to provide

greater protections than the United States Constitution, he points to no authority establishing that

Washington' s courts have done so in the context of the right to notice of state law remedies for

seizure of property. Hyytinen' s briefing present no Gunwall7 analysis from which we could

conclude that our state' s constitution provides greater protection than the federal constitution on

this issue, nor does he point to any statute creating a cause of action for a state agency' s failure to

comply with RCW 46. 12. 725' s notice requirements. The trial court did not abuse its discretion

in denying Hyytinen' s motion to amend based on its conclusion that amendment of the pleadings

to include Hyytinen' s state law claims would be futile.

           As for the negligence claim, Hyytinen does not show any material issue of fact as to

whether the Patrol' s failure to notify him of his right to a hearing proximately caused any




 7 See State v. Gunwall, 106 Wn.2d 54, 61 -62, 720 P. 2d 808 ( 1,986).

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No. 45117 -4 -II




damages. Hyytinen obtained counsel well before the Patrol disposed of the Escalade, and his

attorneys presumably informed him of his right to attempt to establish his title to it at a hearing.

With that knowledge, the absence of the same information from the Patrol would have no effect.

         Further, the law clearly establishes that Hyytinen had no valid claim against the true

owner. The relevant U.C. C. provision provides:


                    A purchaser of goods acquires all title which his or her transferor had or had
         power to transfer except that a purchaser of a limited interest acquires rights only
         to the   extent of   the interest   purchased.   A person with voidable title has power to
         transfer a good title to a good faith purchaser for value.


                    Any entrusting of possession of goods to a merchant who deals in goods of
          that kind gives him or her power to transfer all rights of the entruster to a buyer in
          ordinary course of business.

RCW 62A.2 -403. Even if a court accepted Hyytinen' s argument that he qualified as a " good

faith   purchaser   for   value,"   or that BPD entrusted the Escalade to a merchant who deals in goods


of the kind, Hyytinen' s claim would fail against the true owner. As a leading treatise explains,

         When the entruster does not have title to the goods, no title is created in the
          purchaser      from the       by virtue of U.C. C. § 2 -403. Thus, the purchaser of a
                                    entrustee


          stolen automobile does not acquire any title even though the purchaser buys in good
          faith from a dealer and a facially valid title certificate had been obtained.

3A LAWRENCE'         S   ANDERSON ON THE U. C. C. § 2- 403: 122,   at   711 - 12 ( rev. 3d   ed.   2002) ( footnotes


omitted).   Thus, the hearing that the Patrol' s negligence allegedly denied him would have availed

Hyytinen nothing.

          Hyytinen' s remedy lies with the BPD, not the Patrol. The trial court did not abuse its

discretion in denying Hyytinen' s motion to amend.his complaint, and thus did not err in

dismissing his claims against the Patrol. With respect to those claims, we affirm.




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No. 45117 -4 -II




                                              IV. ATTORNEY FEES


          Hyytinen requests reasonable attorney fees on appeal. He bases his claim on RCW

69. 50. 505( 6),   which mandates attorney fees to a " claimant [ who] substantially prevails" in

proceedings under the Uniform Controlled Substances Act' s civil forfeiture provision. Br. of


Appellant at 46 -47. He also claims that " equity would require that in order to do substantial

justice, Mr. Hyytinen      should   be   awarded all   fees   and costs of   this   suit."   Br. of Appellant at 47.


For the first time in his reply brief, Hyytinen also requests fees from the Patrol under 42 U.S. C.

section   1988( b),   which gives courts discretion to award fees to the prevailing party in a

section 1983 suit.


          Hyytinen' s claims based on RCW 69. 50. 505( 6) and 42 U.S. C. section 1988( b) plainly

fail: he did not institute this suit under either provision, nor has he prevailed on the claims he

based on those provisions. In addition, Hyytinen presents no argument or authority in his

opening brief to support his claim for an equitable award of costs and reasonable attorney fees as

RAP 18. 1( b) requires. We deny the request.

                                                 CONCLUSION


          Genuine issues of material fact remain as to whether Hyytinen' s contract with the City

was voidable based on mutual mistake of fact and whether he has met the requirements of unjust


enrichment. Therefore, we reverse summary judgment in favor of the City on Hyytinen' s unjust

enrichment claim and remand to the trial court for adjudication of that claim and the related issue

of mutual mistake. We affirm the trial court' s order of summary judgment on Hyytinen' s other




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No. 45117 -4 -II




claims against the City and his claims against the Patrol.

        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.




 I concur:




 I concur in the result only:




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