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Mitchell v. A.F. Evans Company

The Court of Appeals of Washington, Division One
Feb 23, 2009
148 Wn. App. 1045 (Wash. Ct. App. 2009)

Opinion

No. 60259-4-I.

February 23, 2009.

Appeal from a judgment of the Superior Court for King County, No. 06-2-01550-9, Gregory P. Canova, J., entered June 8, 2007.


Affirmed by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Dwyer, J.


Henry Ben Mitchell appeals the trial court's summary judgment order dismissing his claims for disability and racial discrimination under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, malicious prosecution, abuse of process, intentional infliction of emotional distress, negligent hiring and supervision, intentional interference with economic advantage, and violation of 42 U.S.C. § 1983. Because Mitchell neither shows that he was treated differently from tenants outside of his protected class who engaged in similar misconduct nor provides a medical nexus between his disability and need for accommodation, he fails to establish a prima facie case of discrimination. Mitchell's other claims also lack merit because evidence in the record shows that all of the actions taken against Mitchell were based on his violation of the lease agreement and protection order. We, therefore, affirm.

Background

Mitchell is an African American who has a disability under the Fair Housing Act (FHA). In September 2000 he moved into the Lake Washington Apartments managed by A.F. Evans Company. Evans, a California corporation, and Southeast Effective Development (SEED), a Washington nonprofit corporation, are members of a limited liability company that owns the apartments. As a tenant, Mitchell signed a lease agreement listing rules governing the apartments. The agreement included specific rules prohibiting harassment by residents and requiring residents to reasonably cooperate with security personnel.

42 U.S.C. § 3601. Mitchell received rent subsidies under Section 8 throughout his tenancy at the apartments.

In May 2004 Evans hired Christina King as the community manager of the apartments. Soon afterwards, Mitchell complained to King about finding urine in a clothes dryer. Mitchell claimed that King seemed "indifferent" to his complaint while King asserted that Mitchell called her a racist when she refused to follow him to the laundry room. Similar events followed, although none led to actions taken against Mitchell until July 28, 2004. On that day, Mitchell visited and phoned the management and security office to complain about new security personnel. In these interactions, Mitchell verbally abused and threatened the staff. Security officers escorted Mitchell from the management office, and the Seattle Police Department was contacted for assistance. Due to this incident, King issued a 10-day notice to comply with rental agreement or quit premises.

Before King's arrival, Mitchell had been issued notices for verbally threatening and harassing conduct.

After this 10-day notice was issued, there was an increase in both the frequency and threatening nature of Mitchell's contacts with the management and staff. As a result, on August 2, 2004, King issued a 20-day notice to terminate tenancy. This 20-day notice stated that Mitchell's tenancy ended on August 31, 2004.

Following the advice of the police department, King petitioned the King County Superior Court for a temporary order of protection on the next day. The court granted King's petition, and, on August 17, 2004, it issued an order of protection valid for one year. The protection order required Mitchell to stay at least 50 feet away from King, her residence, and the management office. The order further directed Mitchell to communicate with the office only in writing or through an attorney.

About the same time the one-year protection order was entered, Mitchell's counsel, Charles Hamilton, mailed a letter dated August 3, 2004, to Evans' corporate office in Oakland, California. King later received this letter by facsimile. In the letter, Hamilton requested a written explanation for the 10-day notice. He also asserted that Mitchell "is a handicapped individual who is protected by Washington's Law Against Discrimination." Hamilton stated:

I would agree that Mr. Mitchell is loud . . . and . . . repetitive at times. These are manifestations, in part, of his disability. On the other hand, your employees certainly should have been around Mr. Mitchell long enough to know that what they find objectionable is his personality and is not the kind of threatening verbal behavior which warrants their threats to him of eviction or contacting the police.

According to King, this letter was the first time she was notified about Mitchell's disability.

On August 20, 2004, Mitchell filed charges of disability and racial discrimination with the Seattle Office for Civil Rights (SOCR). In the SOCR complaint, Mitchell alleged that King harassed him, falsely accused him of illegal activities, and issued the 20-day notice to vacate based on his race. Mitchell also claimed that the management staff treated African American residents differently in violation of the FHA, with evictions targeting African Americans since King's tenure. Finally, Mitchell claimed that King's refusal to respond to Hamilton's letter, which served as notice of his disability, constituted a failure to accommodate under the FHA.

One month later, on September 22, 2004, King called the Seattle police to report that Mitchell was violating the order. After calling the police twice that day, around 6:30 p.m., King flagged down a police car and told Officer Christopher Johnson that Mitchell had violated the order by phoning her. Mitchell explained to Johnson that he had a friend call to complain about a broken heater. But Johnson reported, "At the time of the arrest, I saw no evidence of a broken heater and Mr. Mitchell's apartment did not seem cold." Believing that there was probable cause, Johnson arrested Mitchell.

On the same day as Mitchell's arrest, a three-day notice to terminate tenancy was posted and mailed to Mitchell. The notice stated that Mitchell had failed to comply with the 10-day notice and had violated the protection order on "several occasions, including but not limited to August 23, August 25, September 4, September 8 and September 16." When Mitchell did not vacate as required by the three-day notice, Evans initiated an unlawful detainer action, with the summons and complaint served on Mitchell on October 10, 2004. Mitchell never responded to the summons, and a default judgment was entered on October 21, 2004.

Mitchell was arrested a second time for violating the protection order on October 28, 2004, around 1:50 p.m. On that day, Mitchell followed King from the laundry room to the maintenance office and demanded to have his carpet cleaned. King repeatedly told Mitchell to leave the office. When King threatened to call the police, Mitchell left the maintenance office and walked back to the laundry room where he remained for about 30 minutes, staring at her. King called security to escort her back to the main office. Security Officer Mark Fields walked King back to her office, with Mitchell following them and calling out to them. Mitchell then called the office about six times that afternoon.

King phoned the police, and Officer David Ellithorpe arrived. King furnished Ellithorpe with a copy of the protection order and a written statement.

King's supervisor, Lindy Harvey, and Fields also reported that Mitchell had been violating the protection order. Before going to Mitchell's apartment, Ellithorpe received a report that Mitchell had also called 911, stating that he was having a verbal dispute with King and that he wanted an officer to come to the complex. But when Ellithorpe, accompanied by two other officers, knocked on Mitchell's door, Mitchell refused to answer. The officers were turning to leave when they learned that Mitchell had called the precinct wanting to know why three officers were at his door. The officers returned and arrested Mitchell. Mitchell was charged with violating the protection order, and the court found probable cause for his detention. Mitchell was able to secure bail and moved from the Lake Washington Apartments to another Section 8 apartment building on October 30, 2004.

On February 25, 2005, the SOCR completed its investigation into Mitchell's claims and concluded that "no reasonable cause exists to believe that an unfair practice has occurred with respect to your charge of discrimination." Mitchell was informed that he had 30 days to appeal the findings to the Seattle Human Rights Commission. The record contains no evidence that Mitchell appealed this decision.

On June 30, 2005, Mitchell was tried before a jury for violating the protection order and acquitted. Over a year later, on August 24, 2006, Mitchell filed a complaint against King, Evans, and SEED, alleging disability and racial discrimination under the WLAD, malicious prosecution, abuse of process, intentional infliction of emotional distress, negligent hiring and supervision, intentional interference with economic advantage, and violation of 42 U.S.C. § 1983.

Respondents filed a motion for summary judgment on April 20, 2007, supported by eleven declarations. On June 8, 2007, the court granted the summary judgment motion but denied Evans' motion for attorney fees and costs under CR 11 and RCW 4.84.185.

One of the supporting declarations was subsequently stricken because the declarant was unavailable. Respondents also included a videotape of the August 17, 2004, hearing.

Standard of Review

We review an order of summary judgment de novo, engaging in the same inquiry as the trial court. Summary judgment is appropriate if the moving party demonstrates the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. The party opposing the motion must produce specific facts that establish an issue of material fact. Summary judgment is proper if, based on all the evidence, the court is satisfied that reasonable persons could reach only one conclusion.

Callahan v. Walla Walla Hous. Auth., 126 Wn. App. 812, 818, 110 P.3d 782 (2005) (citing Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 134, 64 P.3d 691 (2003)).

Callahan, 126 Wn. App. at 818 (citing CR 56(c) and Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000)).

Callahan, 126 Wn. App. at 818-19 (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 12-14, 721 P.2d 1 (1986)).

Callahan, 126 Wn. App. at 819 (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).

The trial court's denial of fees under RCW 4.84.185 and sanctions under CR 11 is reviewed for abuse of discretion. An abuse of discretion exists when the trial court's exercise of discretion was manifestly unreasonable or based on untenable grounds.

Biggs v. Vail, 119 Wn.2d 129, 137, 830 P.2d 350 (1992).

Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).

Discussion

A. WLAD Discrimination Claims

1. Disparate Treatment

Mitchell contends that the trial court erred in dismissing his disparate treatment claims under the WLAD. In examining these claims, our courts look to the analysis of Title VII and FHA discrimination claims and apply the three-part burden of proof test established in McDonnell Douglas Corp. v. Green. First, the plaintiff has the burden of proving a prima facie case of discrimination. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove that the legitimate reasons asserted by the defendant are, in fact, pretextual. Within this framework, if the plaintiff fails to establish a prima facie case or to rebut the defendant's alternative explanation for the adverse action, the defendant is entitled to summary judgment.

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001) (applying McDonnell Douglas framework to state law discrimination claim), overruled on other grounds by McClarty v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006). See also Green v. Cal. Court Apartments, LLC, No. C-07-334-MJP, 2008 WL 681835, at *4 (W.D. Wash. March 10, 2008) ("Washington's Law Against Discrimination is interpreted in the same manner as the Fair Housing Act.") (citing Kees v. Wallenstein, 161 F.3d 1196, 1199 (9th Cir. 1998)).

McDonnell Douglas 411 U.S. at 802.

McDonnell Douglas 411 U.S. at 802.

McDonnell Douglas 411 U.S. at 804.

Callahan, 126 Wn. App. at 819 (citing Hill, 144 Wn.2d at 181).

Here, Mitchell fails to make the requisite prima facie showing of disability or racial discrimination. To establish a prima facie case of discrimination under either factor, Mitchell must show that (1) he belongs to a protected class; (2) he met the minimum qualifications to live in the Lake Washington Apartments; (3) respondents, knowing that Mitchell was a member of the protected class, harassed and evicted him for his alleged misconduct; and (4) tenants, who are not members of Mitchell's protected class, engaged in similar misconduct and were not harassed or evicted.

Callahan, 126 Wn. App. at 819 ("The specifics of the prima facie case are suggested by the particular form of discrimination alleged.").

Mitchell fails to establish a prima facie case because he does not show that respondents treated him differently from tenants outside his protected class who violated the same rules prohibiting harassment and requiring residents to reasonably cooperate with security personnel. In fact, none of the declarations submitted by Mitchell involve similar misconduct. For example, the declarations of Zena Dobson and Jeff Lane only reflect that Mitchell is capable of successfully interacting with some apartment managers, while Thomasine Francosi's declaration only shows that King did not accommodate her request to leave open a gate for emergency purposes. The declaration of Kirstin Hill involves alleged violations of rules regarding maintenance and occupancy. Finally, Nor Sheikh's declaration alleges that King attempted to convince employees to identify Mitchell as a drug dealer.

Even if Mitchell had made a prima facie showing with these declarations, respondents would still be entitled to summary judgment because they established a legitimate, nondiscriminatory reason for their actions, which Mitchell failed to show was pretextual. Respondents demonstrated that they issued notices and terminated Mitchell's tenancy for his verbally abusive and threatening behavior that violated the lease agreement and protection order.

Mitchell nonetheless argues that his showing is sufficient to survive summary judgment under Riehl v. Foodmaker, Inc. He argues that Riehl "define[s] the quantum of a plaintiff's proof in a disparate treatment claim. The discriminatory factor producing the adverse action need only be a `substantial factor' and not a `determining factor.'" Mitchell further argues that Riehl "advise[s] that the trier of fact must be allowed to address the question of whether the misbehaviors which trigger an adverse action are manifestations of a disability and whether that disability-driven behavior is a `substantial factor' in the adverse action taken."

Mitchell also relies on Gambini v. Total Renal Care, Inc., 480 F.3d 950 (9th Cir. 2007) and Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128 (9th Cir. 2001) as standing for the same proposition. As in Riehl, however, the plaintiffs in Gambini and Humphrey both established a prima facie case of discrimination.

But Riehl is distinguishable. There, Mark Riehl made a prima facie showing that he was treated differently from another employee. Riehl also presented evidence showing that his employer's articulated reasons for firing him were questionable. For example, Riehl showed that he had obtained a higher score on his performance evaluation and had more experience than the employee replacing him.

In contrast with Riehl, Mitchell has not made a prima facie showing that he was treated differently from a tenant outside his protected class who engaged in similar misconduct. Mitchell also did not produce evidence demonstrating that respondents' reasons for evicting him were questionable. Thus, we affirm the trial court's order granting summary judgment.

2. Failure to Accommodate

Mitchell argues that the court erred in dismissing his failure to accommodate claim under the WLAD. He contends that the letter mailed by Hamilton provided notice of his disability to respondents, so they were required to take affirmative measures to create an accommodation.

To establish a prima facie case of failure to reasonably accommodate a disability, Mitchell must show that (1) he has a disability; (2) respondents knew or should have known about the disability; (3) he needed accommodation in order to benefit from housing; (4) respondents knew or should have known of Mitchell's need for an accommodation; and (5) respondents denied an available, medically necessary accommodation.

Our Supreme Court recently changed the definition of "disability" for WLAD claims and adopted the definition of disability set forth in the federal Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. See McClarty, 157 Wn.2d at 228. But the new definition does not affect this analysis. Respondents do not dispute that Mitchell has a disability.

Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133, 1135 (N.D. Cal. 2000) (stating elements of prima facie case of housing discrimination) (citing United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997)). See also Riehl, 152 Wn.2d at 145 (stating elements of prima facie case for failure to accommodate).

Here, Mitchell fails to make a prima facie showing because he does not establish that his disability needs accommodation. In Riehl, our Supreme Court held that at summary judgment, a plaintiff must "provide competent evidence establishing a nexus between the disability and the need for accommodation." The court further explained:

Competent evidence establishing a nexus between a disability and the need for accommodation will vary depending on how obvious or subtle the symptoms of the disability are. . . . Where the disability and need for accommodation is obvious, such as a broken leg, the medical necessity burden will be met upon notice to the employer, and the inquiry will not be if accommodation is needed, but rather what kind of accommodation is needed. However, in the case of depression or PTSD, a doctor's note may be necessary to satisfy the plaintiff's burden to show some accommodation is medically necessary.

The court concluded that Riehl did not provide a nexus between his disabilities — depression and PTSD — and his need for accommodation. The court reasoned that "the need to accommodate [Riehl's] disability was not obvious and required greater documentation to survive summary judgment."

As in Riehl, Mitchell does not provide a nexus between his disabilities — cognitive and learning disabilities — and his need for accommodation. Like Riehl's depression and PTSD, Mitchell's cognitive and learning disabilities are not obvious and, therefore, greater medical documentation is required to survive summary judgment. Indeed, Hamilton's letter not only fails to provide the necessary medical nexus between Mitchell's disability and need for accommodation but also fails to articulate a reasonable accommodation. Accordingly, Mitchell does not establish a prima facie case for failure to accommodate. The trial court properly granted summary judgment on the failure to accommodate claim.

Dr. Jeffrey Lee states Mitchell has "cognitive and learning disabilities" that "contribute to [his] frustration, impulsivity, and [his] lack of insight regarding the effect of his speech and behavior on other people." Lee states that these disabilities "arose following head trauma as a child and family physical abuse."

B. Malicious Prosecution

To maintain an action for malicious prosecution action, a plaintiff must prove:

"(1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution."

Clark v. Baines, 150 Wn.2d 905, 911, 84 P.3d 245 (2004) (quoting Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993)).

Although the plaintiff must prove all of these elements, "malice and want of probable cause constitute the gist of a malicious prosecution action." Here, Mitchell fails to present evidence to create a genuine issue of material fact regarding probable cause.

Hanson, 121 Wn.2d at 558 (citing Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 496-97, 125 P.2d 681 (1942)).

A plaintiff bringing a malicious prosecution action establishes a prima facie case that there was no probable cause by proving that the criminal proceedings were dismissed or terminated in his favor. "The facts necessary, however, to establish probable cause present a question of law to be decided by the court." "[I]f facts sufficient to establish probable cause are shown and are undisputed, then the court should declare, as a matter of law, that there was probable cause and dismiss the action." "[P]roof of probable cause is a complete defense to an action for malicious prosecution."

Peasley, 13 Wn.2d at 498.

Pallett v. Thompkins, 10 Wn.2d 697, 700, 118 P.2d 190 (1941).

Pallett, 10 Wn.2d at 700 (citing Hightower v. Union Sav. Trust Co., 88 Wash. 179, 152 P. 1015 (1915)).

Olsen v. Fullner, 29 Wn. App. 676, 678, 630 P.2d 492 (1981) (citing Pace v. Brodie-Nat'l, Inc., 60 Wn.2d 654, 656, 374 P.2d 1000 (1962)).

In this case, Mitchell showed a prima facie case of lack of probable cause by presenting evidence of his acquittal. But this prima facie case was rebutted by respondents' evidence showing that there were sufficient facts establishing probable cause to institute and continue Mitchell's prosecution. Significantly, Mitchell's prosecution was instituted after he was arrested twice for violating the protection order. Both arrests were supported by facts that there was probable cause to arrest Mitchell. In the first arrest, King reported to Officer Johnson that Mitchell had violated the order by phoning her. Mitchell's explanation was that he had a friend call the office about a broken heater. Yet Johnson's investigation did not reveal any heating problems in Mitchell's apartment. In the second arrest, King furnished Officer Ellithorpe with a written statement that Mitchell had been arguing with her about having his carpet cleaned. King's report was corroborated by two other witnesses, Fields and Harvey. More important, Mitchell's own statements constituted evidence that he violated the order as he called 911 reporting that he was having a verbal dispute with King. As a matter of law, these facts establish probable cause to institute and continue Mitchell's prosecution.

Mitchell mistakenly focuses on King's statements in the law enforcement information form. He claims that these statements falsely represented that he possessed guns and had alcohol and drug problems. But Mitchell was neither prosecuted nor arrested for these reasons. Rather, Mitchell was arrested for violating the protection order — based on the factual circumstances stated above — and prosecuted for these violations. Because respondents proved probable cause, Mitchell's claim fails.

Mitchell also claims that King "tried to destroy [Mitchell's] Section 8 government subsidized housing needs." This allegation, however, is primarily based on portions of Eric Swenson's declaration that were struck by the trial court.

C. Abuse of Process

The tort of abuse of process requires a plaintiff to show "`(1) the existence of an ulterior purpose to accomplish an object not within the proper scope of the process, and (2) an act in the use of legal process not proper in the regular prosecution of the proceedings.'"

Saldivar v. Momah, 145 Wn. App. 365, 388, 186 P.3d 1117, (2008) (quoting Mark v. Williams, 45 Wn. App. 182, 191, 724 P.2d 428 (1986)).

Here, Mitchell asserts that "[t]he process abused in this case included . . . the use of the eviction process, coupled with the intent to use a prosecution to obtain [Mitchell's] incarceration as a way of preventing his response to eviction proceeding[s]." No evidence, however, supports that Mitchell's eviction or criminal proceedings were manipulated to achieve an improper purpose. Therefore, no genuine issue of material fact exists with respect to the abuse of process claim.

D. Intentional Infliction of Emotional Distress

The elements of intentional infliction of emotional distress are "`(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.'" Mitchell argues that the trial court erred in dismissing his claim of intentional infliction of emotional distress because respondents' "unlawful attempts to aggravate, incite, and evict an indigent person with a mental disability constitutes . . . intolerable conduct."

Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 242, 35 P.3d 1158 (2001) (quoting Birklid v. Boeing Co., 127 Wn.2d 853, 867, 904 P.2d 278 (1995)).

Evidence in the record does not support that respondents' conduct was unlawful or intended to harass Mitchell. Rather, the evidence shows that Mitchell violated both the terms of the lease agreement and the protection order. In this light, respondents' conduct is not "so outrageous in character and extreme in degree that it goes beyond all possible bounds of decency." Further, Mitchell did not present any evidence that he suffered severe emotional distress as a result of respondents' actions. His claim fails.

Snyder, 145 Wn.2d at 242 (citing Birklid, 127 Wn.2d at 867).

E. Negligent Hiring and Supervision

In order to establish a claim for negligent hiring and supervision, the plaintiff must prove that (1) the defendant knew or should have known of the employee's unfitness and (2) retaining the employee was a proximate cause of the plaintiff's injuries.

Betty Y. v. Al-Hellou, 98 Wn. App. 146, 149, 988 P.2d 1031 (1999) (citing Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 252-53, 868 P.2d 882 (1994)).

Mitchell's claim lacks merit as respondents took reasonable steps in hiring King. In his declaration, Michael Geiger, the manager who hired King, described the application process. Both he and the regional manager interviewed King. The human resources director was also involved. Geiger conducted a background check, a credit check, and a standardized personality test. After hiring King, Geiger trained her for three weeks.

See Scott v. Blanchet High Sch., 50 Wn. App. 37, 42-44, 747 P.2d 1124 (1987) (holding that a high school took reasonable steps in hiring a teacher who was subsequently accused of becoming sexually involved with a student when the school contacted the teacher's previous employers and conducted two personal interviews with the applicant prior to hiring him).

Mitchell presents no evidence suggesting that respondents knew or should have known that King was unfit or likely to cause harm. Similarly, there is no evidence that respondents failed to exercise ordinary care in King's supervision. The trial court properly entered summary judgment on the negligent hiring and supervision claim.

See Scott, 50 Wn. App. at 44.

F. Interference with Economic Advantage

Mitchell contends his claim for intentional interference with a business expectancy should not have been dismissed. To prevail on this claim, Mitchell must show (1) the existence of a valid contractual relationship or business expectancy; (2) respondents had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) respondents interfered for an improper purpose or used improper means; and (5) resultant damage.

Hudson v. City of Wenatchee, 94 Wn. App. 990, 998, 974 P.2d 342 (1999).

Respondents correctly point out that Mitchell's claim fails because nothing in the record establishes that he suffered any damages resulting from their actions. Mitchell cannot assert any financial harm as he continues to receive Section 8 rent subsidies after moving out of the Lake Washington Apartments.

See Hudson, 94 Wn. App. at 998 (dismissing intentional interference with business expectancy claim when the plaintiffs alleged monetary loss that was not supported in the record).

Indeed, Mitchell's counsel concedes in briefing that "[i]t is true that actual monetary loss to Mr. Mitchell cannot readily be calculated." His claim has no merit.

G. Section 1983 Claim

To establish a cause of action under 42 U.S.C. § 1983, a plaintiff must establish that a federally protected constitutional or statutory right has been violated by state action or persons acting under color of state law. Mitchell claims that his right to free speech has been violated on grounds that he "was prosecuted and evicted for . . . exercising his First Amendment rights to complain about tenant conditions." The record does not support this characterization. Mitchell was prosecuted for violating the protection order and evicted for failing to comply with the notices issued by respondents. The trial court properly granted summary judgment on the § 1983 claim.

42 U.S.C. § 1983 provides in part:

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

Van Blaricom v. Kronenberg, 112 Wn. App. 501, 508, 50 P.3d 266 (2002) (citing Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990); Torrey v. City of Tukwila, 76 Wn. App. 32, 37, 882 P.2d 799 (1994)).

H. Fees and CR 11 Sanctions

CR 11 sanctions are appropriate if three conditions are met: "(1) the action is not well grounded in fact, (2) it is not warranted by existing law, and (3) the attorney signing the pleading has failed to conduct a reasonable inquiry into the factual or legal basis of the action." If the claim is found to be frivolous, the trial court may award attorney fees to the opposing party under RCW 4.84.185. An appeal is frivolous if it "presents no debatable issues upon which reasonable minds might differ, and that it is so devoid of merit that there is no possibility of reversal."

Lockhart v. Greive, 66 Wn. App. 735, 743-44, 834 P.2d 64 (1992).

Layne v. Hyde, 54 Wn. App. 125, 135, 773 P.2d 83 (1989).

In this case, Mitchell provided evidence for his belief that respondents discriminated against him based on his mental disability and race — namely, the declarations by other tenants and apartment managers. While this evidence did not establish a prima facie case or support his other claims, it provided some factual basis. We affirm the trial court's decision to deny Evans' motion for attorney fees and costs under CR 11 sanctions or attorney fees for a frivolous lawsuit under RCW 4.84.185.

Conclusion

Mitchell's disability and racial discrimination claims fail because he does not make a prima facie showing that tenants outside of his protected class who engaged in similar misconduct received differential treatment or that a medical nexus existed between his disability and need for accommodation. Mitchell's remaining claims also fail because evidence in the record establishes that Mitchell's violations of the lease agreement and protection order led to the actions taken against him. We affirm the trial court's order granting summary judgment on all claims.

WE CONCUR:


Summaries of

Mitchell v. A.F. Evans Company

The Court of Appeals of Washington, Division One
Feb 23, 2009
148 Wn. App. 1045 (Wash. Ct. App. 2009)
Case details for

Mitchell v. A.F. Evans Company

Case Details

Full title:HENRY BEN MITCHELL, Appellant, v. A.F. EVANS COMPANY, INC., ET AL.…

Court:The Court of Appeals of Washington, Division One

Date published: Feb 23, 2009

Citations

148 Wn. App. 1045 (Wash. Ct. App. 2009)
148 Wash. App. 1045