          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


HARMONY NASON,                     )            No. 74011-3-1
                                   )
                   Appellant,      )
                                   )            DIVISION ONE
                   v.              )
                                   )
HOBAN AND ASSOCIATES, INC. d/b/a)
COAST REAL ESTATE SERVICES, )
HARMONY HOUSE EAST                 )
ASSOCIATION, COMPASS HEALTH )
As successors to Family Counseling )
Services of Snohomish County, AND )
DOES 1-20, Inclusive,              )            UNPUBLISHED OPINION
                                   )
                   Respondents.    )            FILED: June 12, 2017
                                   )

       MANN,J. —To defeat a properly supported motion for summary judgment, the

nonmoving party may not rely on the allegations set forth in the complaint, but must

identify evidence establishing a genuine factual issue for trial. Harmony Nason failed to

respond to the defendants' motion for summary judgment and did not submit or identify

any admissible evidence supporting her claims under state and federal law. The trial

court granted the defendants' motion and dismissed Nason's claims on summary

judgment. We affirm.
No. 74011-3-1/2


                                        FACTS

       Harmony House East Association (HHEA) is a nonprofit organization that owns

Harmony House East(Harmony House), a three-bedroom group residence in Monroe,

Washington. Harmony House receives funding from the United States Department of

Housing and Urban Development(HUD) under section 811 of the Cranston-Gonzalez

National Affordable Housing Act of 1990 (Section 811), 42 U.S.C.§ 8013. Each of the

three bedrooms at Harmony House is rented at a subsidized rate to a person who has a

chronic mental illness. The residents share common areas of the home, including the

kitchen, bathrooms, and living room.

       Nason, who suffers from chronic mental illness, entered into a lease with HHEA

and became a tenant of Harmony House in August 2007. Nason was homeless before

she moved into Harmony House. Nason's lease requires her to permit the landlord, or

the landlord's agents, to enter the home to perform inspections, maintenance, and

repairs.

       For approximately five years, between April 2010 and late 2014, Coast Real

Estate Services (Coast) provided property management services for Harmony House.

Because of the nature of the property and its tenants, Harmony House requires

enhanced property management. The property must undergo rigorous inspections to

maintain its HUD funding. Additional funders of the affordable housing units also have

the right to inspect the property.

       After years of Nason repeatedly complaining to Coast and HHEA about

scheduling and insufficient advanced notice to tenants when entry into the house was

required, Nason filed a housing discrimination complaint with the Washington State

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No. 74011-3-1/3


Human Rights Commission (Commission) in 2012. Nason alleged that Coast and

HHEA refused to reasonably accommodate her disability. The Commission conducted

an investigation and in December 2012, concluded that the "preponderance of the

evidence does not support a finding that Respondent failed to reasonably accommodate

Complainant's disability." The Commission further concluded:

      Respondent and Complainant engaged in a prolonged interactive process
      to determine a way to accommodate Complainant's request for notice of
      entry and to allow for Respondent's business needs and support of the
      home. Although Respondent did not grant Complainant's specific
      accommodation request, Respondent's reasonable accommodation of
      prior written notice for maintenance on two Thursdays per month with a
      three-hour window is a reasonable alternative accommodation.

      In 2013, acting pro se, Nason filed a complaint against HHEA, Coast, and a third

entity, Compass Health. Nason alleged that Compass Health, a provider of community

mental health services, was contractually obligated to provide mental health support

services to tenants of Harmony House and failed to do so. Nason also claimed that

Compass Health personnel encouraged her to apply for housing at Harmony House

while misrepresenting the nature of supportive services she would receive as a tenant.

Nason's complaint also alleged that Coast stopped consistently providing 48-hours'

notice prior to entry and generally failed to inform tenants when the scheduled

maintenance would not occur. Based on these factual allegations, Nason asserted

numerous causes of action under both state and federal law, including violations of the

Washington Law Against Discrimination, ch. 49.60 RCW,the Fair Housing Act, 42

U.S.C.§ 3601-3619; Section 811, section 504 of the Rehabilitation Act of 1973,29

U.S.C. § 794; the Washington Consumer Protection Act, ch. 19.86 RCW; and the

Residential Landlord-Tenant Act, ch. 59.18 RCW.

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No. 74011-3-1/4


       Compass Health was dismissed on summary judgment on June 6, 2014.

Approximately one month later, in July 2014, counsel for HHEA and Coast took Nason's

deposition and asked her about the factual basis for her claims against the remaining

defendants and the nature of the relief she was seeking. Nason testified that through

her lawsuit, she sought compliance with the prior notice requirements set forth in the

Residential Landlord-Tenant Act of 1973, RCW 59.18.150(6), and she believed that

reasonable accommodation of her disability should include involvement in the process

of scheduling repairs and inspections. When asked whether she sought relief apart

from accommodation with respect to maintenance, repairs, and inspections, Nason said

she wanted "parties" to be "held accountable for the state the program is in," she sought

"assistance with the program," and wanted the court to "revisit the function of the

program." Nason did not specifically mention mental health services or any other

supportive services.

       During the deposition, Nason became increasingly reluctant to answer defense

counsel's questions and eventually refused to continue until she was able to retain

counsel. Defense counsel agreed to continue the deposition and asked Nason to

inform him when she hired counsel so that he could renote the deposition. Although an

attorney represented Nason for a brief period thereafter, neither Nason nor her attorney

rescheduled the deposition during that period.

       On July 31, 2015, more than a year and a half after Nason filed her lawsuit,

HHEA and Coast filed a motion for summary judgment. The defendants claimed there

were no genuine issues of material fact to preclude summary judgment and that Nason

could not establish the elements of the nine causes of action she raised.

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No. 74011-3-1/5


        Nason did not respond to the motion. Three days before the scheduled hearing

on the defendants' summary judgment motion, Nason filed a motion to continue, under

an incorrect cause number. She asserted that the defendants failed to respond to

discovery requests she propounded in June 2014, and that without access to the

information she sought through discovery, she could not "fully prove her case" or

answer the motion for summary judgment. Nason did not provide an affidavit in support

of the motion nor did she note the motion for a hearing.

        Nason appeared at the summary judgment hearing and orally requested a

continuance. She reiterated her claim that because the defendants had not responded

to her outstanding requests for discovery, she lacked the evidence needed to support

her claims. Specifically, she stated that she had requested copies of contracts involving

HHEA, Coast, and Compass Health "to provide proof of responsibility." The court

denied the motion for a continuance because Nason failed to demonstrate that she was

entitled to a continuance under CR 56(f) and granted the defendants' motion for

summary judgment. Nason appeals the trial court's order granting summary judgment.2

                                              ANALYSIS

                                                       1

        When reviewing a grant of summary judgment, an appellate court undertakes the

same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434,437,656 P.2d 1030

(1982). We consider the evidence and the reasonable inferences therefrom in the light

         1 It appears from the record that Nason previously obtained the contracts between HUD and
HHEA directly from HUD.
         2 After the court granted the defendants' motion, Nason filed a motion for reconsideration and an
affidavit in support of her previously-filed motion to continue. The record on review does not include a
ruling on this motion. Nason appeals only the court's August 28, 2015 order granting summary judgment
in favor of the defendants.
                                                 -5-
No. 74011-3-1/6


most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896

P.2d 665 (1995). Summary judgment is appropriate "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); White v. State, 131 Wn.2d 1, 9, 929

P.2d 396 (1997).

       The specific application of this standard is subject to a burden-shifting scheme.

The moving party can satisfy its initial burden under CR 56 by demonstrating the

absence of evidence supporting the nonmoving party's case. Young v. Key Pharms.,

Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989). The burden then shifts to the

nonmoving party to set forth specific facts demonstrating a genuine issue for trial.

Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118

Wn.2d 1, 8-9, 820 P.2d 497(1991). In so doing, the nonmoving party "must set forth

specific facts that sufficiently rebut the moving party's contentions" and "may not rely on

speculation, argumentative assertions that unresolved factual issues remain, or in

having its affidavits considered at face value." Seven Gables Corp. v. MGM/UA Entm't

Co., 106 Wn.2d 1, 13, 721 P.2d 1(1986).

       If the plaintiff fails to meet this burden on an element for which the plaintiff bears

the burden of proof at trial, then summary judgment is warranted "since a complete

failure of proof concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial." Young, 112 Wn.2d at 225 (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265

(1986)). Where the nonmoving party fails to file a response to a motion for summary

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No. 74011-3-1/7


judgment, the appellate court's review is limited to consideration of only those

documents submitted by the moving party in support of the motion. Pearson v. Gray, 90

Wn. App. 911, 915, 954 P.2d 343(1998).

                                               11

       Nason contends that the defendants failed to satisfy their initial burden on

summary judgment because their motion failed to address causes of action she

asserted in her complaint that were based on the defendants'failure to provide required

supportive services to tenants of Harmony House. We disagree.

       The defendants identified each cause of action Nason asserted in her lawsuit

and sought dismissal of all claims. The defendants argued that Nason produced no

evidence to support any of her claims and was not entitled to relief under any cause of

action raised in her complaint. In support of their motion, the defendants submitted

evidence outlining Coast's efforts to accommodate Nason's disability by providing

advance notice, minimizing visits and entry to the house, and taking into account her

scheduling requests to the extent it was able to do so without compromising its

obligations to inspect and maintain the property. According to declaration testimony

submitted by the defendants, following the negotiations in 2012, the defendants

generally provided at least 48 hours' notice, often rescheduled maintenance upon

Nason's requests, and informed Nason and other residents when entry was not

required. Nevertheless, Nason continued to deny maintenance access to the property.

The defendants also presented evidence to show that the Commission had considered

similar allegations and determined that Nason was not denied reasonable

accommodation. And while Nason's complaint raised allegations against Compass

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No. 74011-3-1/8


Health based upon its failure to provide mental health and case management services

to tenants, the defendants relied on Nason's deposition testimony to show that she was

not raising similar claims with respect to Coast and HHEA.

       The defendants therefore satisfied their initial burden under CR 56 of

demonstrating an absence of evidence supporting Nason's claims. Contrary to Nason's

argument, her vague deposition testimony expressing general dissatisfaction with "the

program" does not provide support for a claim that either Coast or HHEA violated a

legal or contractual obligation to provide or make available specific supportive services

to Harmony House tenants.

       As explained, once the moving party has met its initial burden under CR 56,

       the non-moving party may not rely on the allegations in the pleadings but
       must set forth specific facts by affidavit or otherwise that show a genuine
       issue exists. Additionally, any such affidavit must be based on personal
       knowledge admissible at trial and not merely on conclusory allegations,
       speculative statements or argumentative assertions.

Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744(1992)(citations

omitted). Nason's reliance on facts set forth in her complaint is to no avail. Even if the

complaint alleged that Coast and HHEA were obligated to provide mental health

services to Nason and failed to do so, she was not entitled to rely on those allegations

in the absence of evidence to support them.

      "On review of an order granting or denying a motion for summary judgment the

appellate court will consider only evidence and issues called to the attention of the trial

court." RAP 9.12. Here, Nason failed to submit any evidence or materials opposing

summary judgment. Even so, she contends the trial court improperly granted the

defendants' motion without considering her previously-filed evidence that established

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No. 74011-3-1/9


the existence of genuine issues of material fact precluding summary judgment. In

particular, Nason claims that evidence in the record shows that following the

Commission's decision, Coast failed to consistently provide 48 hours' advanced notice

when entry into the house was required and often did not inform the tenants when the

scheduled maintenance would not occur. She also maintains that the evidence

establishes that the defendants were obligated and failed to provide supportive services

to Harmony House tenants. However, the record citations she provides do not support

her assertions of fact.3 To the extent that Nason filed a 2013 declaration stating that

"there has never been a support service plan in place for this home," and asserting that

Coast ceased to comply with its earlier agreements with respect to notice and

scheduling, Nason did not bring this evidence to the attention of the trial court.

Therefore, we do not consider it. Based on the motion and supporting documents that

were before the trial court, the trial court did not err in dismissing Nason's claims on

summary judgment.

        Affirmed.




                                                            An-t)
WE CONCUR:




        3 Most, if not all, of the factual allegations in Nason's appellate brief are not supported by
accurate references to the appellate record. See RAP 10.3(a)(5)(party must include reference to the
record for each factual statement in brief).
                                                 -9-
