       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PUGET SOUND SECURITY PATROL,                     No. 74545-0-1
INC., a Washington corporation,
                                                 DIVISION ONE
                    Appellant,

       v.                                        PUBLISHED OPINION


WILLIAM BATES, an individual,
KATHRYN BATES, his wife, and
the marital community composed
thereof,

                     Respondents.                FILED: January 9, 2017


       Leach, J. — Puget Sound Security Patrol Inc. appeals the trial court's

dismissal of its action against Kathryn Bates. After Kathryn's husband, William

Bates, violated the noncompete provision of his employment contract with Puget

Sound, it sued Kathryn and William1 for civil conspiracy and asked that the trial

court impose a constructive trust on earnings that William contributed to their

shared expenses. When the trial court granted summary judgment for Kathryn, it

also struck a supplemental brief and three declarations as untimely.

       Because the supplemental brief was untimely argument, the trial court

properly excluded it. Because Puget Sound submitted the three declarations in


       1We refer to the parties by their first names for clarity and intend no
disrespect.
No. 74545-0-1 / 2




opposition to Kathryn's motion to strike certain factual assertions and not in

opposition to her summary judgment motion, the trial court did not need to

perform an analysis under Burnet v. Spokane Ambulance2 before striking them.

Because no genuine issue of material fact existed about Kathryn's alleged

conspiracy with William to accomplish an unlawful purpose or a lawful purpose

through unlawful means or that they made an agreement to do so, the trial court

correctly dismissed the conspiracy claim. And because Puget Sound failed to

plead facts sufficient to support an unjust enrichment claim, the trial court

properly dismissed that claim too. We affirm.3

                                      FACTS


       Kathryn and William Bates married in 2005. William began working as a

business development manager for Puget Sound in July 2009. But he did not

finalize the terms of his employment until that September, when he signed a

noncompete agreement in which he agreed not to directly or indirectly compete



       2 131 Wn.2d 484, 933 P.2d 1036 (1997).
       3 We deny Kathryn's motion to strike the appendices in Puget Sound's
appellate brief. Appendices A, B, and E were part of the trial court record. We
decide below that the trial court properly struck the e-mail in Appendix E.
Appendix C is a public record. And Appendix D is a notice of unavailability; it
does not affect our analysis. In any case, "[s]o long as there is an opportunity (as
there was here) to include argument in the party's brief, the brief is the
appropriate vehicle for pointing out allegedly extraneous materials—not a
separate motion to strike." Enastrom v. Goodman, 166 Wn. App. 905, 909 n.2,
271 P.3d 959 (2012).
No. 74545-0-1 / 3




with Puget Sound or work for any competing entity within 24 months of working

there.    Kathryn suggested edits to the noncompete provision before William

signed the agreement. She is a human resources manager and has reviewed

and edited noncompete agreements as part of her work. She did not read the

final version of William and Puget Sound's agreement before William signed it.

She first read it after Puget Sound brought this suit.

         William resigned from Puget Sound in October 2010 and began working

for U.S. Security Associates Inc. the same month. The next month, he signed an

employment agreement with U.S. Security. Kathryn witnessed his signature on

the U.S. Security contract.    U.S. Security competes with Puget Sound in the

Washington security services market.

         William told U.S. Security about his noncompete with Puget Sound before

signing the new agreement. A U.S. Security officer told William "not to worry

about" the noncompete provision. Kathryn discussed potential consequences of

the noncompete with William and advised him to get U.S. Security's written

confirmation that it would "support him if anything happens"—presumably, if

Puget Sound sued him for violating the noncompete. She also saw an e-mail to

William from a U.S. Security recruiter indicating U.S. Security would do so.

         While working   at   U.S.   Security, William   intentionally violated the

noncompete provision when he convinced a significant Puget Sound customer,

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No. 74545-0-1 / 4




VersaCold Corporation, to switch to U.S. Security. Puget Sound does not allege

that Kathryn had any involvement in the VersaCold transaction.

       Puget Sound sued William in August 2011, alleging violation of the

Uniform Trade Secrets Act,4 breach of contract, and tortious interference with

business relationships. Puget Sound added parties and claims over the next two

years, amending its complaint twice. The third amended complaint added claims

for civil conspiracy and "constructive trust" and added Kathryn as a defendant.

Puget Sound alleged that Kathryn conspired with William to violate the

noncompete and asked that the trial court impose a constructive trust on

William's "unfair earnings," including amounts William contributed to his and

Kathryn's household expenses.              Kathryn and William have a premarital

agreement to keep their finances separate. They share a joint bank account

where William deposits his paychecks.             Kathryn withdraws funds from that

account to pay William's contributions to monthly expenses.

       Kathryn scheduled a summary judgment hearing for August 30, 2013.5

Puget Sound's response was due 11 days before the hearing, August 19. Puget

Sound filed a response brief on August 16. It then filed a supplemental brief on




       4Ch. 19.108 RCW.
       5 The trial court denied Puget Sound's request to amend its complaint a
fourth time, 10 court days before trial.
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August 22, without the trial court's permission. Puget Sound appended to the

brief an e-mail from William to U.S. Security.6

         Also on August 22, Kathryn moved to strike portions of Puget Sound's

opposition brief. Puget Sound then filed an opposition to the motion to strike,

attaching supporting declarations by George Schaeffer, D. James Davis, and Jeff

Kirby.

         At the summary judgment hearing, the trial court excluded the

supplemental brief and the Kirby declaration.      Three weeks later, it issued a

written order striking the supplemental brief and all three declarations.

         The trial court granted Kathryn's motion for summary judgment, dismissing

Puget Sound's conspiracy and "constructive trust" claims and dismissing Kathryn

as an individual.    The trial court noted it was not dismissing the remedy of

constructive trust or the claim against the Bates community.

         The next week, William filed a bankruptcy petition that automatically

stayed this litigation. In an adversary proceeding, the bankruptcy court found

that the noncompete agreement was an enforceable contract, that William

intentionally breached it, and awarded Puget Sound a nondischargeable


       6 Kathryn had seen the e-mail at her deposition. It appears to be from
William to a U.S. Security employee and reads in full: "Henry: If you need
anything here is an email address I set up through my wife's company. Not
much to be said, I hope you are doing well! WB2." It was sent in August 2011,
almost a year after William left Puget Sound.
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No. 74545-0-1 / 6




$121,737.61 judgment against William. After the bankruptcy proceeding, Puget

Sound appealed the trial court's ruling in this case.

                             STANDARD OF REVIEW


       This court reviews an order granting summary judgment de novo,

performing the same inquiry as the trial court.7 We will affirm summary judgment

where no genuine issue as to any material fact exists and the moving party is

entitled to judgment as a matter of law.8 The nonmoving party "must set forth

specific facts rebutting the moving party's contentions" and may not rely on

speculation, argumentative assertions that unresolved factual issues remain, or

on having its affidavits considered at face value.9

                                     ANALYSIS


       Stricken Evidence and Supplemental Brief

       Puget Sound first contends that the trial court erred in striking its

supplemental brief and declarations by George Schaeffer, James Davis, and Jeff

Kirby. We disagree.

       A party responding to a summary judgment motion must "file and serve

opposing affidavits, memoranda of law or other documentation not later than 11



      7 Owen v. Burlington N. Santa Fe R.R.. 153 Wn.2d 780, 787, 108 P.3d
1220 (2005).
      8 Owen, 153Wn.2dat787.
       9 Wash. Fed. Sav. v. Klein, 177 Wn. App. 22, 27-28, 311 P.3d 53 (2013).
                                         -6-
No. 74545-0-1 / 7




calendar days before the [summary judgment] hearing."10 If a responding party

cannot timely present "facts essential to" oppose summary judgment, that party

may request a continuance by filing an affidavit explaining why it cannot do so.11

       All four documents were untimely here. As Kathryn's summary judgment

hearing was on August 30, Puget Sound had to submit its briefing and evidence

by August 19. Puget Sound did not ask for a continuance. Instead, it filed the

supplemental brief on August 22, three days late.12 After Kathryn moved to strike

portions of Puget Sound's original brief, Puget Sound attached the three

declarations to its opposition to that motion to strike, filed August 27. To the

extent Puget Sound submitted the three declarations in opposition to the

summary judgment motion, the declarations were eight days late.

       When considering whether to strike untimely evidence filed in response to

a summary judgment motion, a trial court must first consider on the record the

factors identified in Burnet: (1) was the untimeliness willful, (2) will the other

party suffer substantial prejudice because of the violation, and (3) would a lesser

sanction suffice.13   This court reviews the trial court's decision for abuse of

discretion.14 If the trial court strikes the evidence without doing a Burnet analysis,

       10 CR 56(c).
       11 CR 56(f).
       12 Puget Sound concedes that the brief was untimely.
       13 Burnet, 131 Wn.2d at 494; Keck v. Collins, 184 Wn.2d 358, 368-69, 357
P.3d 1080(2015).
      14 Keck, 184Wn.2dat362.
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No. 74545-0-1 / 8




it abuses its discretion.15 This court cannot perform a Burnet analysis when the

trial court did not.16

          Here the trial court did not need to conduct a Burnet analysis because

Puget Sound did not submit the challenged declarations in opposition to a

summary judgment motion. It instead submitted these declarations in support of

its opposition to Kathryn's motion to strike parts of Puget Sound's summary

judgment response. Puget Sound did not ask to amend its summary judgment

response by adding the declarations. The trial court considered the declarations,

for the purpose Puget Sound submitted them. As the authority Puget Sound

offers relates only to evidence submitted in opposition to a summary judgment

motion, the trial court did not err in excluding the three declarations without a

Burnet analysis.

          No Burnet analysis was required before striking the supplemental brief

either.    That brief consisted of untimely legal argument, not evidence.          The

Burnet line of cases is premised on parties' due process rights to present

evidence;17 Puget Sound cites no authority applying the Burnet reasoning to

          15 Keck, 184Wn.2dat362.
          16 Jones v. City of Seattle. 179 Wn.2d 322, 339, 314 P.3d 380 (2013).
          17 See Burnet, 131 Wn.2d at 494; Keck, 184 Wn.2d at 369 ("The 'purpose
[of summary judgment] is not to cut litigants off from their right of trial by jury jf
they really have evidence which they will offer on a trial, it is to carefully test this
out, in advance of trial by inquiring and determining whether such evidence
exists.'" (alteration in original) (internal quotation marks omitted) (quoting Preston
v. Duncan, 55 Wn.2d 678, 683, 349 P.2d 605 (1960))).
                                          -8-
No. 74545-0-1 / 9




untimely argument and offers no persuasive argument why it should. Because

the supplemental brief was untimely, the trial court did not abuse its discretion by

excluding it.

        Civil Conspiracy

        Next, Puget Sound challenges the trial court's dismissal of its civil

conspiracy claim. Because Puget Sound presented no evidence that Kathryn

intended to help her husband violate his noncompete agreement, it did not create

a genuine issue of material fact about the alleged conspiracy.

       "'Mere suspicion or commonality of interests is insufficient to prove a

conspiracy.'"18 Rather, a plaintiff "must prove by clear, cogent, and convincing

evidence that (1) two or more people combined to accomplish an unlawful

purpose, or combined to accomplish a lawful purpose by unlawful means; and (2)

the conspirators entered into an agreement to accomplish the conspiracy."19

"'[When] the facts and circumstances relied upon to establish a conspiracy are as

consistent with a lawful or honest purpose as with an unlawful undertaking, they

are insufficient.'"20




       18 All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d 367
(2000) (quoting Wilson v. State. 84 Wn. App. 332, 351, 929 P.2d 448 (1996)).
       19 All Star Gas, 100 Wn. App. at 740.
       20 All Star Gas, 100 Wn. App. at 740 (alteration in original) (quoting Lewis
Pac. Dairymen's Ass'n v. Turner, 50 Wn.2d 762, 772, 314 P.2d 625 (1957)).
                                        -9-
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        Puget Sound relies on Sterling Business Forms, Inc. v. Thorpe,21 where

Division Three found a summary dismissal improper because the record included

evidence sufficient for a fact finder to find clear and convincing evidence of a

conspiracy. The plaintiff sued several former employees and Schumacher, the

president of a client company.        The employees had created a rival business

using   confidential    information   about   Sterling's     business   and    customers.

Schumacher loaned the employees money for the new business and helped

them    obtain   bank   loans.   Evidence     showed       that   Schumacher   knew the


employees worked as top managers for Sterling and could infer they were

soliciting Sterling customers and that Schumacher used Sterling's confidential

information to obtain financing.22

        Kathryn relies on All Star Gas, Inc. v. Bechard,23 where Division Three

affirmed a trial court's decision that two brothers, Rick and Randy, did not

conspire to violate Randy's noncompete agreement with the plaintiff. The trial

court made an unchallenged finding that the alleged conspirator, Rick, "did not

have actual or constructive notice" of the noncompete agreement until the

plaintiff sued.24 Division Three noted that "[n]othing in the record suggests Rick

had an unlawful motive or used unlawful means when he agreed to form [a

        21 82 Wn. App. 446, 454, 918 P.2d 531 (1996).
        22 Sterling, 82 Wn. App. at 451-52.
        23 100 Wn. App. 732, 734, 998 P.2d 367 (2000).
        24 All Star Gas, 100 Wn. App. at 741.
                                          -10-
No. 74545-0-1 /11




competing company] with Randy" and that there was "no evidence of any

agreement between Randy and Rick to conspire."25

          Puget Sound has not shown a genuine issue of material fact about either

mode of civil conspiracy.

          Puget Sound points to six facts that it contends satisfy its summary

judgment burden when considered in the aggregate:                  Kathryn used her

professional skills to help William negotiate his noncompete agreement; Kathryn

recommended that William negotiate protection from U.S. Security; Kathryn

witnessed William's signature on the U.S. Security contract; Kathryn toasted two

Puget Sound officers at a fundraising event after William falsely told them he was

not working in the security business;26 Kathryn set up an e-mail account for

William through her work; and Kathryn benefitted from William's breach through

his increased contributions to household expenses.

          These facts do not create a fact issue about Kathryn conspiring with

William to accomplish an unlawful purpose or a lawful purpose through unlawful

means. Kathryn's connection to William's unlawful acts is distinguishable from

the alleged conspirators' actions in Sterling and All Star Gas. In those cases, the

alleged conspirators took affirmative steps to "combin[e]" with the primary


          25 All Star Gas, 100 Wn. App. at 741.
          26 This fact comes from the Kirby declaration, which the trial court properly
struck.
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No. 74545-0-1/12




defendants in violating the agreements, by financing a rival business using the

plaintiff's confidential information in Sterling and by forming a business to rival

the plaintiff's in All Star Gas.27 Here, in contrast, the evidence Puget Sound

points to is equally consistent with a lawful purpose.

      While Puget Sound emphasizes Kathryn's experience with noncompete

agreements as a human resources manager, it does not explain how helping

William negotiate his contract with Puget Sound could be part of an effort to help

him violate that contract later.   Instead, that fact allows only the inference that

Kathryn knew the noncompete agreement existed.

       The evidence that Kathryn helped William set up an e-mail address

through her work consists of a two-line e-mail that Puget Sound first attached to

its supplemental brief. As discussed above, the trial court properly struck that

brief and the e-mail with it. Moreover, William sent the e-mail almost a year after

he left Puget Sound and well after the events that Puget Sound asserts constitute
                                                         «



a conspiracy.    None of the facts Puget Sound introduced could create an

inference that Kathryn setting up an e-mail address for her husband was

inconsistent with a lawful purpose.

       Kathryn witnessing a signature on the U.S. Security contract is also

consistent with a lawful purpose. This signature merely acknowledges that the


       27 Sterling, 82 Wn. App. at 451-52; All Star Gas, 100 Wn. App. at 734-35.
                                         -12-
No. 74545-0-1/13




person signing the document is who the person claims to be; it does not make

the witness a party to the document or even show that the witness has read it.28

      The trial court properly struck the testimony about the incident at the

fundraiser, as discussed above.     And the intent that Kirby and Puget Sound

ascribe to Kathryn raising her glass is, in any case, sheer conjecture.

       Kathryn's advice to William to seek U.S. Security's indemnity agreement

does not show an unlawful purpose or unlawful means, either. As the trial court

noted, "This is a contract dispute." William testified that U.S. Security did not

believe the Puget Sound noncompete clause was enforceable. If Kathryn was

aware of William's noncompete agreement with Puget Sound, she was also

aware that Puget Sound might try to enforce it against William. Kathryn advising

him to ask U.S. Security for indemnification does not support an inference that

she had an unlawful purpose or unlawful means.         Kathryn explained that she

made that suggestion because "it's good practice to do for any salesperson when

entering in an employment agreement" and that her companies had given such

assurances before. While a fact finder could disbelieve Kathryn, Puget Sound

presented no alternative evidence from which one could find an unlawful

purpose.



      28 An "attesting witness" is "[s]omeone who vouches for the authenticity of
another's signature by signing an instrument that the other has signed." Black's
Law Dictionary 1838 (10th ed. 2014).
                                        -13-
No. 74545-0-1 /14




          Finally, William's contributions to joint expenses shows only that the two

spouses agreed, as most spouses do, to share their living expenses.           Puget

Sound cannot use those contributions to demonstrate an "unlawful purpose"

either.


          Puget Sound urges this court to consider these facts in the aggregate, but

doing so does not make them more persuasive. At most, they demonstrate that

Kathryn was aware that William had a noncompete agreement with Puget Sound

and advised him to seek protection from U.S. Security should Puget Sound sue

him.      This does not show that Kathryn intended to help William violate his

noncompete agreement.

          Likewise, Puget Sound presented no evidence that Kathryn and William

made an agreement to accomplish the alleged conspiracy. Puget Sound must

present more than a suspicion of an agreement to avoid summary judgment.29

As Puget Sound has not shown specific, material facts creating an issue about

an agreement between Kathryn and William to violate William's noncompete

agreement, Puget Sound did not meet this burden.

          Unjust Enrichment

          Finally, Puget Sound claims that the trial court erred in dismissing its

unjust enrichment claim for insufficient pleading. Puget Sound asserts that its


          29 See All Star Gas, 100 Wn. App. at 740.
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No. 74545-0-1/15




"constructive trust" claim and reference to "unfair earnings" provided Kathryn with

enough notice that Puget Sound was claiming unjust enrichment.

       Washington courts require a party to give proper notice of a claim to

opposing parties in its pleadings through "a 'concise statement of the claim and

the relief sought.'"30 Courts construe pleadings "to do substantial justice,"31 and

even if a claim "'is not a vision of precise pleading'" or is mislabeled, it may still

give the notice CR 8 requires.32 Parties may clarify initial pleadings in the course

of summary judgment proceedings.33

       Unjust enrichment is "an independent basis of substantive liability."34 A

claim for unjust enrichment has three elements: "(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."35 "Enrichment alone will not suffice to invoke the remedial powers of a

court of equity. It is critical that the enrichment be unjust both under the



       30 Champagne v. Thurston County, 163 Wn.2d 69, 84, 178 P.3d 936
(2008) (quoting Pac. Nw. Shooting Park Ass'n v. City of Seguim, 158 Wn.2d 342,
352, 144 P.3d 276 (2006)); CR 8(a).
      31 CR 8(f).
      32 Burnet, 131 Wn.2d at 492 (quoting Schoening v. Grays Harbor Cmty.
Hosp., 40 Wn. App. 331, 336-37, 698 P.2d 593 (1985)); State v. Adams, 107
Wn.2d 611, 620, 732 P.2d 149 (1987).
       33 Adams, 107 Wn.2d at 620.
       34 Davenport v. Wash. Educ. Ass'n, 147 Wn. App. 704, 725, 197 P.3d 686
(2008).
       35 Young v. Young, 164 Wn.2d 477, 484-85, 191 P.3d 1258 (2008).
                                         -15-
No. 74545-0-1/16




circumstances and as between the two parties to the transaction."36 Thus, to

recover for unjust enrichment the plaintiff must plead both unjust retaining of

benefits and why an equitable remedy is necessary.37 It must allege all of the

material facts that constitute the gist of the cause of action.38

         The trial court correctly dismissed Puget Sound's purported unjust

enrichment claim. Puget Sound's complaint did not merely mislabel an unjust

enrichment claim; it failed to plead facts supporting the elements of this claim.

While Puget Sound arguably pleaded the first two elements by alleging William

had "unfair earnings" and that Kathryn benefitted from those earnings, its

complaint did not plead facts necessary to show an equitable remedy was

necessary. Because Puget Sound's claim fails on the merits, we do not consider

Kathryn's argument that Puget Sound waived it by not assigning error to the trial

court's denial of its motion to amend its complaint.




      36 Farwest Steel Corp. v. Mainline Metal Works, Inc., 48 Wn. App. 719,
732,741 P.2d58(1987).
         37 Hughes v. Chattem. Inc., 818 F. Supp. 2d 1112, 1124-25 (S.D. Ind.
2011).
         38 66 Am. Jur. 2d Restitution and Implied Contracts § 159 (2016).
                                          -16-
No. 74545-0-1/17




                                 CONCLUSION


      Because the trial court did not err in striking untimely evidence or briefing,

dismissing the unsupported conspiracy claim, or dismissing the unpleaded unjust

enrichment claim, we affirm.




WE CONCUR:




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                                        -17-
