IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ARIELLA KLEIN, individually, 

Appellant,

v.

CRIS SIMMONS DDS PLLC (d/b/a 

WILLIAM C SIMMONS, DDS), a 

professional limited liability company 

licensed to do business in Washington

State,

Respondent.

No. 84141-6-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, A.C.J. — Ariella Klein challenges the trial court’s dismissal of 

her claims against Cris Simmons DDS PLLC on summary judgment. Klein fails to 

establish that the trial court erred in any respect. Therefore, we affirm.

FACTS

In August 2018, Ariella Klein, a resident of New York, sought Simmons’ 

services for temporomandibular joint (TMJ) therapy. Klein sent copies of her 

dental records and insurance card to Simmons’ office in advance of her inperson appointment. According to Klein, her insurance company required 

preauthorization before it would cover the cost of TMJ therapy.

Simmons submitted the preauthorization form to Klein’s insurer for a 

computed tomography scan of her face (Face CT) on August 23, 2018. Simmons 

performed the Face CT on August 28, 2018. That same day, Klein’s insurer denied 
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preauthorization for the Face CT, as it deemed the procedure not medically 

necessary. Simmons submitted additional documentation to Klein’s insurer and 

asked it to reconsider the denial. Allegedly, in January 2019, Klein contacted 

Simmons to express her frustration about the amount of time she had spent 

speaking to her insurer to obtain coverage for her TMJ treatment, which, she 

stated, was the result of Simmons’ poor billing practices. Klein’s insurer did not 

approve coverage for the Face CT until June 24, 2019.

Klein filed suit against Simmons for failure to obtain informed consent in 

violation of RCW 7.70.030(3), failure to follow the standard of care in violation of 

RCW 7.70.040, patient abandonment in violation of RCW 18.32.683, professional 

negligence, violation of the Consumer Protection Act1 (CPA), unjust enrichment, 

and negligent infliction of emotional distress. On April 8, 2022, two months after 

Klein filed her first amended complaint, Simmons moved for summary judgment 

on all of Klein’s claims. The trial court granted the motion and dismissed Klein’s 

complaint with prejudice. Klein filed a motion for reconsideration, which the trial 

court denied.

Klein timely appealed.

ANALYSIS

I. Standard of Review

Klein appeals the trial court’s order dismissing her claims for lack of 

informed consent, patient abandonment, violation of the CPA, unjust enrichment, 

and negligent infliction of emotional distress on Simmons’ motion for summary 

 1 Ch. 19.86 RCW.
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judgment.2 Dismissal on summary judgment “shall” be ordered if “there is no 

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

judgment as a matter of law.” CR 56(c). This court reviews an order of dismissal 

on a motion for summary judgment de novo, conducting the same inquiry as the 

trial court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998);

Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). 

We take “‘all facts and inferences in the light most favorable to the nonmoving 

party.’” Jackowski v. Borchelt, 174 Wn.2d 720, 729, 278 P.3d 1100 (2012) (quoting

Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007)). 

“We may affirm on any basis supported by the record whether or not the argument 

was made below.” Bavand v. OneWest Bank, FSB, 196 Wn. App. 813, 825, 385

P.3d 233 (2016). A defendant may prevail on summary judgment if they make an 

initial showing that there is an “absence of an issue of material fact,” and the 

plaintiff in response fails to establish a genuine question of material fact. Young v.

Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

II. Informed Consent

Klein first asserts that the trial court erred by dismissing her claim for failure 

to obtain informed consent. Klein contends that the trial court misinterpreted her 

claim as sounding in medical malpractice, when it should have been interpreted as 

a claim about Simmons’ business practices. We disagree.

 2 Klein does not challenge the dismissal of her claims for breach of the standard of care 

and professional negligence. 
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Contrary to Klein’s assertion, the trial court did not misinterpret her claim. 

Klein’s complaint specifically alleges that Simmons failed to obtain her informed 

consent in violation of RCW 7.70.030(3). Her contention that she intended to make 

some other form of informed consent claim is thus without merit.

“Informed consent focuses on the patient's right to know [their] bodily 

condition and to decide what should be done.” Burnet v. Spokane Ambulance, 54 

Wn. App. 162, 168, 772 P.2d 1027 (1989) (citing RCW 7.70.050). To establish a 

prima facie case for lack of informed consent, the plaintiff must demonstrate all of 

the following:

(a) That the health care provider failed to inform the patient of 

a material fact or facts relating to the treatment;

(b) That the patient consented to the treatment without being 

aware of or fully informed of such material fact or facts;

(c) That a reasonably prudent patient under similar 

circumstances would not have consented to the treatment if informed 

of such material fact or facts;

(d) That the treatment in question proximately caused injury 

to the patient.

RCW 7.70.050(1).

However, Klein does not identify any authority that holds that the likelihood 

of insurance coverage is a material fact relating to treatment. Accordingly, we

presume that none exists. 21st Mortg. Corp. v. Nicholls, 25 Wn. App. 2d 795, 806, 

525 P.3d 962, review denied sub nom. Robertson v. Residential Funding Co., LLC,

1 Wn.3d 1023 (2023). Further, Klein did not allege, nor did she present evidence

to establish that she was injured in any way by the medical treatment she received 

from Simmons. Because Klein did not provide evidence to support a prima facie 
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case of lack of informed consent, the trial court did not err by dismissing the claim 

on summary judgment.

III. Patient Abandonment

Klein next avers that the trial court erred by dismissing her cause of action 

for patient abandonment in violation of RCW 18.32.683. Specifically, she contends 

that the trial court misread Simmons’ February 13, 2019 e-mail as providing 

referrals for a new provider when it did not do so. This argument is irrelevant. No 

court in Washington has ever recognized a cause of action for violation of RCW 

18.32.683. Klein presents no authority indicating that RCW 18.32.683 implies a 

cause of action. Because there is no such cause of action as patient 

abandonment, the trial court properly dismissed the claim.

IV. Consumer Protection Act

Klein also asserts that the trial court erred by dismissing her claim for 

violation of the CPA because, as she contends, she presented evidence of an 

impact on the public interest. We disagree.

The CPA prohibits “[u]nfair methods of competition and unfair or deceptive 

acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. “To 

prevail in a private CPA claim, the plaintiff must prove (1) an unfair or deceptive 

act or practice, (2) occurring in [the conduct of] trade or commerce, (3) affecting 

the public interest, (4) injury to a person's business or property, and (5) causation.”

Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 37, 204 P.3d 885 (2009). 
No. 84141-6-I/6

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“Failure to satisfy even one of the elements is fatal to a CPA claim.” Sorrel v. Eagle

Healthcare, Inc., 110 Wn. App. 290, 298, 38 P.3d 1024 (2002).

“Ordinarily, a breach of a private contract affecting no one but the parties to 

the contract is not an act or practice affecting the public interest.” Hangman Ridge

Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 790, 719 P.2d 531

(1986)). Where, as here, a complaint involves a private dispute concerning the 

provision of professional services, factors indicating public interest include the 

following:

(1) Were the alleged acts committed in the course of defendant's 

business? (2) Did defendant advertise to the public in general? (3) 

Did defendant actively solicit this particular plaintiff, indicating 

potential solicitation of others? (4) Did plaintiff and defendant occupy 

unequal bargaining positions?

Id. at 790-91. Ultimately, “it is the likelihood that additional plaintiffs have been or 

will be injured in exactly the same fashion that changes a factual pattern from a 

private dispute to one that affects the public interest.” Id. at 790.

Klein did not present any evidence to establish that her private dispute with 

Simmons had any effect on the public interest. The only evidence Klein offered to 

demonstrate a public interest impact were a handful of poor online reviews of 

Simmons. In addition to constituting inadmissible hearsay under ER 802, none of 

the situations described in the reviews bear any resemblance to what Klein alleges 

to have experienced. Contrary to Klein’s assertion, the public interest element of 

a CPA claim is not satisfied merely because the business or industry as a whole 

is of public importance. Rather, the plaintiff must instead demonstrate that “the 

challenged acts or practices affect the public interest.” Dix v. ICT Grp., Inc., 160 
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Wn.2d 826, 837, 161 P.3d 1016 (2007) (emphasis added). Because Klein failed 

to make this showing, the trial court did not err by dismissing her CPA claim on 

summary judgment.

V. Unjust Enrichment

Klein avers that the trial court erred by dismissing her unjust enrichment 

claim. More directly, Klein contends that she presented evidence of unfair 

business practices that prohibited her from making a rational decision, which 

rendered the services performed of “no value” to her. We disagree.

To establish a prima facie claim for unjust enrichment, the plaintiff must 

demonstrate the following 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.” Young v. Young, 

164 Wn.2d 477, 484-85, 191 P.3d 1258 (2008). A claim for unjust enrichment 

exists only in the absence of an actual contract. Id. at 484.

Klein does not address any of the elements of an unjust enrichment claim 

in her brief. She cites no authority for her contention that the Face CT scan 

Simmons performed was completely valueless. We will not consider arguments 

unsupported by authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d

801, 809, 828 P.2d 549 (1992). Even if we were to consider Klein’s claim on its 

merits, her acknowledgement of the existence of a contract with Simmons 
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precludes her claim for unjust enrichment.3 The trial court did not err by dismissing 

this cause of action.

VI. Negligent Infliction of Emotional Distress

Finally, Klein asserts that the trial court erred by dismissing her claim for 

negligent infliction of emotional distress. She contends that the stress she endured 

exacerbated her TMJ, satisfying the requirement to show objective symptomology. 

We disagree.

A plaintiff asserting a claim for negligent infliction of emotional distress must 

show all of the elements of a negligence claim—duty, breach, causation, and 

damages—plus objective symptomology of the claimed distress. Kumar v. Gate

Gourmet, Inc., 180 Wn.2d 481, 505, 325 P.3d 193 (2014). Klein satisfies none of 

these elements. 

Klein repeatedly declares in her briefing to this court that Simmons had 

various duties under the law. However, the nonmoving party in summary judgment 

proceedings may not simply rely on their own argument or conclusions to satisfy 

their burden; our case law is clear that “[c]onclusory statements and speculation 

will not preclude a grant of summary judgment.” Elcon Constr., Inc. v. E. Wash.

Univ., 174 Wn.2d 157, 169, 273 P.3d 965 (2012). In neither her response to 

summary judgment nor her brief on appeal does Klein cite any legal authority or 

provide any evidence that Simmons possessed a duty under the law to ensure that 

Klein’s insurance would cover all services provided. Further, Klein provides no 

 3 Although Klein repeatedly refers to a “breach of contract” in her brief, she did not assert 

a claim for breach of contract in her complaint.
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evidence that she suffered any injury as the result of Simmons’ actions. The only 

mention of Klein’s stress or exacerbation of her TMJ is in her first amended 

complaint. A nonmoving party cannot rely on allegations in their pleadings in 

response to a motion for summary judgment. Young v. Key Pharm., 112 Wn.2d at 

225. Klein was required to present actual evidence to support her claim and she 

failed to do so. As such, the trial court did not err by dismissing her claim for 

negligent infliction of emotional distress.

Klein did not present a prima facie case on any of her claims. The trial court 

did not err in granting summary judgment to Simmons.4

Affirmed.

WE CONCUR:

 4 On March 26, 2024, Klein filed an “Addendum to Brief and Reply Brief” which discussed 

and provided information from other litigation unrelated to her suit against Simmons. Because 

those matters are outside the scope of this appeal, we decline to consider them.