 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 RON GIPSON,
                                                    No. 79351-9-I
                          Appellant,
                                                    DIVISION ONE
                V.
                                                    UNPUBLISHED OPINION
 SNOHOMISH COUNTY,

                          Respondent.               FILED: March 2, 2020



      ANDRUS, J.      —     Ron Gipson appeals the dismissal of his Public Records

Act1 (PRA) complaint against Snohomish County. We affirm the dismissal of

Gipson’s PRA claim as time-barred under the one-year statute of limitations in

RCW 42.56.550(6).

                                        FACTS

      On January 18, 2017, Ron Gipson served on Snohomish County (County)

a public records request relating to the County’s internal investigation and

disciplinary action against him. That same day, the County acknowledged receipt

of the request and assigned it tracking number K013594-011817. On January 23,

2017, the County sent an email to Gipson indicating records would be available by

February 28, 2017. On February 27, 2017, the County sent another email to

Gipson with an update indicating responsive records would be available by

March 28, 2017.

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No. 79351-9-1/2

       On March 28, 2017, the County sent an email to Gipson stating: “The first

installment is ready,” and produced a DVD with a letter indicating it included

“records responsive to request number K013594.”

       On April 28, 2017, the County sent an email to Gipson stating: “The 2nd

installment of records responsive to your request is now available      .   .   .   .“   This

second installment (a DVD) was the final installment of responsive documents,

though the County included a letter stating it was the “1st and final installment of

records responsive to request number K013594.” The letter further stated: “If you

have any questions, please contact me at 425-388-6349.” Over two months later,

on July 18, 2017, Gipson sent an email to the County stating:

       In regards to PRR K013594-011817 there has been no
       communication from Sf0 Co whether or not this PRR is closed.
       Therefore, it leads me to believe that Snohomish County has more
       installments to issue. If this is not correct please let [me] know.

That same day, the County responded: “Yes, this request was closed. You picked

up the final installment in May.”

       On July 5, 2018, Gipson filed a lawsuit against the County alleging the

County violated the PRA in responding to his request. The County moved for

summary judgment, asserting the claim was barred by the statute of limitations

because it was not brought within one year of the County’s production of the final

installment of records. The trial court granted the County’s motion and dismissed

the complaint, finding no issues of material fact and concluding: “The statute of

limitations was triggered by the last production of records on an installment basis

on April 28, 2017.” The court also rejected Gipson’s argument that equitable tolling

should apply. Gipson appeals.


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No. 79351-9-1/3

                                   DISCUSSION

       “Judicial review of all agency actions taken or challenged under

RCW42.56.030 through 42.56.520 shall be de novo.” RCW 42.56.550(3). De

novo is also the standard of review for summary judgment. Spokane Research &

Def. Fund v. City of Spokane, 155 Wn.2d 89, 106, 117 P.3d 1117 (2005). In

reviewing an order on summary judgment, we perform the same inquiry as the trial

court. Sheikh v Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). “We consider

all facts submitted and all reasonable inferences from the facts in the light most

favorable to the nonmoving party.” Rublee v. Carrier Corp., 192 Wn.2d 190, 199,

428 P.3d 1207 (2018).        “Summary judgment is proper when the record

demonstrates there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” Munich v. Skagit Emergency Commc’ns

Ctr., 175 Wn.2d 871, 877, 288 P3d 328 (2012).

       The PRA establishes a one-year statute of limitations for judicial review of

agency actions. RCW 42.56.550(6) provides: “Actions under this section must be

filed within one year of the agency’s claim of exemption or the last production of a

record on a partial or installment basis.”      In Belenksi v. Jefferson County,

186 Wn.2d 452, 378 P.3d 176 (2016), our Supreme Court clarified that the statute

does not limit triggering events to those listed in RCW 42.56.550(6), recognizing

“the legislature intended to impose a one year statute of limitations beginning on

an agency’s final, definitive response to a public records request.” 186 Wn.2d at

460. In Belenski, the county responded it had no responsive records, even though

Belenski had information indicating that the responsive records did exist.      186



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No. 79351-9-1/4

Wn.2d at 455-456.      Although the county’s response was not a claim of an

exemption or the last production in a series of installments, the court nevertheless

held the agency’s statement that it had no documents to produce was a “final,

definitive response” sufficient to trigger the statute of limitations. As the court

explained:

       Regardless of whether this answer was truthful or correct, the
       county’s definitive, final response to Belenski’s PRA request was
       sufficient to put him on notice that the County did not intend to
       disclose records or further address this request. If Belenski was
       unsatisfied with this answer, he could sue to hold the County in
       compliance with the PRA as soon as it gave this response—there
       was no need for him to wait an additional 25 months before bringing
       his cause of action.

186 Wn.2d at 460-461. The court held the claim was time-barred under the statute.

186 Wn.2d at 459.      But because Belenski raised “legitimate concerns [about]

allowing the statute of limitations to run based on an agency’s dishonest response,”

it remanded the case to the trial court to resolve any factual disputes and determine

if the doctrine of equitable tolling applied. 186 Wn.2d at 461-62.

      As in Belenski, the undisputed facts establish that Snohomish County’s last

production of records on an installment basis occurred on April28, 2017, when the

County produced the second, and final, installment. While the letter identified the

second installment incorrectly as the “1st” installment,” the letter clearly and

unequivocally stated that its production was the “final installment.” As the court

held in Belenski, the statute of limitations began to run at the time of the county’s

final, definitive response “[r]egardless of whether this answer was truthful or

correct.” 186 Wn.2d at 461 (County’s response that it had no responsive records

was a final definitive response even though the records may have in fact existed).


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The County’s unequivocal statement that the second DVD was the “final

installment” amounted to a final, definitive response sufficient to put Gipson on

notice that the County would produce no further records. Accordingly, the one-

year statute of limitations began to run on April 28, 2017. Unless there was a

factual basis to equitably toll the statute of limitations, Gipson’s claim—filed on July

18, 2018—was untimely.

        Gipson argues on appeal that the trial court erred in failing to equitably toll

the statute of limitations. He contends he was confused by the letter’s reference

to the “1st and final installment,” and did not have notice that the County

considered the request closed until it confirmed this fact on July 18, 2017. But

Gipson fails to demonstrate a factual basis for applying equitable tolling here.2

Equitable tolling permits a court to allow an action to proceed when justice

requires, even though a statutory time period has nominally elapsed.                  City of

Bellevue v. Benyaminov, 144 Wn. App. 755, 760, 183 P3d 1127 (2008). A statute

of limitations may be tolled for equitable reasons when the circumstances show

bad faith, deception, or false assurances by the defendant, and the exercise of due

diligence by the claimant. Millay v. Cam, 135 Wn.2d 193, 205, 955 P.2d 791

(1998); Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 812, 818 P.2d

1362 (1991). The party asserting that equitable tolling applies bears the burden of

proof. Price v. Gonzalez, 4 Wn. App. 2d 67, 77, 419 P.3d 858 (2018). “Courts

typically permit equitable tolling to occur only sparingly, and should not extend it to

a garden variety claim of excusable neglect.” Price, 4 Wn. App. 2d at 76.


        2 Gipson appears to confuse the doctrine of equitable estoppel with equitable tolling.

Equitable estoppel is not the appropriate test for tolling the statute of limitations.


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No. 79351-9-1/6

       Gipson presented no evidence that the County acted in bad faith, engaged

in any deception, or provided him with any false assurances. Unlike Belenski, the

County did not falsely claim to have no responsive records when the plaintiff knew

responsive records existed. The County did not tell Gipson there would be further

installments after April 28, 2017, and did not tell him his request was still open in

an effort to prevent him from filing a lawsuit. At most, Gipson had evidence of a

typographical error in a letter. But when he asked the County to confirm if it had

further installments to produce, the County responded in the negative immediately,

further indicating that the County was not trying to deter Gipson from initiating

litigation if he believed he had a basis for doing so. Gipson presented insufficient

evidence to create a genuine issue of material fact that the County acted in bad

faith and this conduct prevented him from timely asserting a PRA claim.

       Additionally, Gipson also failed to create a genuine issue of material fact as

to whether he exercised due diligence. If he was confused by the language of the

April 28 letter, he did not explain what, if anything, prevented him from seeking

clarification sooner than July. And once he became aware of the County’s position

that the April 28 installment was the final one, he did not explain what, if anything,

prevented him from initiating his PRA lawsuit between July 2017 and April 2018.

As the court made clear in Belenski, he could have initiated his lawsuit immediately

if dissatisfied with the County’s response. 186 Wn.2d at 461.

       Gipson contends that not applying equitable tolling here would lead to

“absurd and inconsistent results,” noting that if he had learned 364 days later that

the April 28, 2017 DVD was the County’s “final action,” he would have only one



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No. 79351-9-1/7

day “to act upon this false statement.” But this factual hypothetical is not the record

before us. He did receive notice on April 28. That notice was unequivocal. He

waited two months to seek clarification without evidence as to why he waited such

a lengthy period of time. He then immediately learned that the County considered

its April 28 production to be the final one. And he presented no evidence that the

County took any action that prevented him from filing the lawsuit in a timely

manner. Under the facts of this case, summary judgment was appropriate.

      Affirmed.




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WE CONCUR:



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