IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALLEN WATKINS and JANIS CLARK,

Appellants,

v.

ESA MANAGEMENT, LLC,

Respondent.

No. 85225-6-I

DIVISION ONE

PUBLISHED OPINION

FELDMAN, J. — Allen Watkins and Janis Clark (appellants) filed a complaint 

asserting forcible entry and detainer claims against ESA Management LLC (ESA), 

which owned and managed the Extended Stay of America property where they 

resided before ESA entered the unit, removed their belongings, and denied 

reentry. ESA, in turn, filed a motion to dismiss the complaint, and the superior 

court granted that motion. In doing so, the trial court erred in two significant 

respects. First, the superior court erred by failing to treat ESA’s motion to dismiss 

as one for summary judgment and give appellants a reasonable opportunity to 

present pertinent evidence pursuant to CR 12(b)(6). Second, the superior court 

erred in granting ESA’s motion even though appellants effectively rebutted ESA’s 

substantive argument. We therefore reverse the superior court’s order of dismissal 

and remand the matter for further proceedings. Lastly, ESA represents that there 

is a new tenant in the unit where appellants seek to be restored. If there exists a 
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new tenant after remand, that new tenant is a necessary party under RCW 

59.12.060 and must be joined if they assert a right to possess the property. 

I.

Appellants were hotel guests residing at an Extended Stay of America 

property in Tukwila, Washington owned and managed by ESA. In August 2022, 

ESA filed an unlawful detailer proceeding, claiming that appellants were

substantially behind in their payment of rent. A show cause hearing was scheduled 

for October 18, 2022, but continued on two occasions and finally scheduled for 

December 2, 2022. However, prior to the hearing, ESA purportedly concluded that 

appellants had abandoned the property. Based on this belief, ESA entered 

appellants’ unit, removed their belongings, and denied appellants reentry. Having 

engaged in self-help, ESA voluntarily dismissed its unlawful detainer action. 

Unable to reenter their unit, appellants filed the instant action for forcible 

entry and detainer on December 29, 2022 and filed a writ of restitution to return to 

the unit pending the result of the action. A commissioner set a hearing on the writ 

of restitution for January 23, 2023 and directed that ESA file a response by January 

18 and appellants file a reply by January 20. Instead of complying with the briefing 

schedule, ESA filed a motion titled “DEFENDANT’S MOTION TO DISMISS” on 

January 23, 2023 and noted the motion for a hearing the same day. In its motion, 

ESA argued that appellants had abandoned the property and therefore were not 

in possession of the property as required to obtain relief under RCW 59.12.010 

(forcible entry) and RCW 59.12.020 (forcible detainer). To support its 

abandonment argument, ESA attached to its motion a declaration of a general 

manager of the Extended Stay of America property asserting that appellants 
No. 85225-6-I

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abandoned the premises following a “huge fight.” After ESA filed its motion, the 

court continued the hearing to February 1, 2023. Appellants then filed a 

responsive brief on January 30, 2023 titled “PLAINTIFF’S REPLY IN SUPPORT 

OF MOTION FOR WRIT OF RESTITUTION PURSUANT TO RCW 59.12.090 and 

RESPONSE TO DEFENDANT’S MOTION TO DISMISS.” 

At the hearing on February 1, 2023, a commissioner heard oral argument 

on ESA’s motion to dismiss despite appellants’ assertion that the motion had not 

properly been noted for decision and was, in effect, an untimely response to their 

motion for a writ of restitution. Addressing the merits of the motion to dismiss, and 

without permitting appellants to testify, the commissioner concluded that 

appellants had not provided a sufficient basis to rule in their favor on their 

underlying claims for forcible entry and detainer. The commissioner granted ESA’s 

motion to dismiss and declined to rule on ESA’s oral motion for a judgment for 

unpaid rent. Finally, appellants filed a motion for revision. A superior court judge 

denied the motion to revise, adopted the commissioner’s oral findings and rulings, 

and granted ESA’s motion to dismiss. Id. This timely appeal followed. 

II.

A.

Appellants claim that the superior court erred when it “converted ESA’s 

motion to dismiss into a motion for summary judgment without giving appellants 

an opportunity to submit pertinent evidence.” We agree.

“Generally, we review the superior court’s ruling, not the commissioner’s. 

But when the superior court denies a motion for revision, it adopts the 

commissioner’s findings, conclusions, and rulings as its own.” State ex rel. J.V.G. 
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v. Van Guilder, 137 Wn. App. 417, 423, 154 P.3d 243 (2007) (citing In re Marriage 

of Stewart, 133 Wn. App. 545, 550, 137 P.3d 25 (2006)). As discussed below, the 

dispositive issue here is the proper application of CR 12(b)(6), which governs 

motions to dismiss. The application of a court rule to a particular set of facts is a 

question of law subject to de novo review. Wiley v. Rehak, 143 Wn.2d 339, 343, 

20 P.3d 404 (2001). 

The essential purpose of a CR 12(b)(6) motion to dismiss is “‘to determine 

if a plaintiff can prove any set of facts that would justify relief.’” Freedom Found. 

v. Teamsters Local 117 Segregated Fund, 197 Wn.2d 116, 139, 480 P.3d 1119

(2021) (quoting P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 203, 289 P.3d 638 

(2012)). “Generally, in ruling on a CR 12(b)(6) motion to dismiss, the trial court 

may only consider the allegations contained in the complaint and may not go 

beyond the face of the pleadings." Rodriguez v. Loudeye Corp., 144 Wn. App. 

709, 725, 189 P.3d 168 (2008). But in ruling on a motion to dismiss, a court “may 

take judicial notice of public documents if their authenticity cannot be reasonably 

disputed” and may likewise consider “[d]ocuments whose contents are alleged in 

a complaint” even when such documents “are not physically attached to the 

pleading.” Id. at 725-26.

The issue here is what procedural protections apply when a moving party 

submits with a CR 12(b)(6) motion, and the court does not exclude, documents 

that are not subject to judicial notice or attached to or referenced in the operative 

pleading. Addressing that issue, CR 12(b) states, 

If, on a motion asserting the defense numbered (6) to dismiss for 

failure of the pleading to state a claim upon which relief can be 

granted, matters outside the pleading are presented to and not 
No. 85225-6-I

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excluded by the court, the motion shall be treated as one for 

summary judgment and disposed of as provided in rule 56, and all 

parties shall be given reasonable opportunity to present all material 

made pertinent to such a motion by rule 56.

The rule is clear and unequivocal: if matters outside the pleading are presented to 

and not excluded by the court in deciding a motion to dismiss, the motion shall be 

treated as one for summary judgment and all parties shall be given reasonable 

opportunity to present pertinent evidence.

“A court rule ‘must be given its plain meaning, and when the language is 

clear a court cannot construe it contrary to its plain language.’” In re Carlstad, 114 

Wn. App. 447, 455, 58 P.3d 301 (2002) (quoting City of Kirkland v. Ellis, 82 Wn. 

App. 819, 826, 920 P.2d 206 (199)). Thus, for example, this court held in Zurich 

Services Corporation v. Gene Mace Construction that “once extrinsic evidence is 

admitted and considered, a motion on the pleadings should be converted to a 

motion of summary judgment” and “[i]n that event, all parties must be given 

reasonable opportunity to present all material made pertinent to such a motion by 

CR 56.” 26 Wn. App. 2d 10, 21, 526 P.3d 46 (2023) (quoting P.E. Sys., LLC v. 

CPI Corp., 176 Wn.2d at 206, and CR 12(c)). The court also recognized in Zurich 

that “affidavits . . . are extrinsic evidence that may not be considered as part of the 

pleadings.” Id.

Here, the superior court was required to treat ESA’s motion to dismiss as a 

motion for summary judgment because ESA presentedand the court did not 

excludea declaration that presented matters outside the pleading, including 

factual assertions regarding appellants’ purported intent to abandon the property. 

Because ESA submitted this declaration and the superior court did not exclude it, 
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the court was required by CR 12(b) to treat ESA’s motion as one for summary 

judgment and give appellants a reasonable opportunity to present all material 

made pertinent to such a motion by CR 56. The court erred when it failed to do 

so.1 

B.

The superior court’s procedural error, as recounted above, requires that the 

matter be remanded for summary judgment proceedings in accordance with the 

substantive and procedural requirements of CR 56. We need not do so here 

because appellants also argue, and we again agree, that dismissal of their claims 

“cannot be upheld under CR 12(b)(6) [or] CR 56.” 

Because ESA’s motion was, in substance, a summary judgment motion, 

“the standard of review on appeal is the same as for summary judgment.” 

Blenheim v. Dawson & Hall Ltd., 35 Wn. App. 435, 438, 667 P.2d 125 (1983); 

Zurich, 26 Wn. App. 2d at 24. A motion for summary judgment may be granted 

when there is “no genuine issue as to any material fact and . . . the moving party 

is entitled to a judgment as a matter of law.” Ramey v. Knorr, 130 Wn. App. 672, 

685, 124 P.3d 314 (2005) (quoting CR 56). “The standard of review for a summary 

judgment order is de novo . . . viewing the facts and reasonable inferences in the 

light most favorable to the nonmoving party.” Id. 

 1 Although Appellants asserted at the February 1, 2023 hearing that ESA had not properly 

noted its motion to dismiss for decision, they did not argue that the court could not properly consider 

the attached declaration without treating the motion to dismiss as one for summary judgment and 

giving appellants a reasonable opportunity to present pertinent evidence. The better practice is to 

specifically object, citing the controlling portion of CR 12(b), as failure to do so could potentially 

constitute waiver. See e.g. Zurich, 26 Wn. App. 2d at 35 (“court may imply an otherwise unstated 

waiver . . . where it appears affirmatively from the record no affected party was prejudiced”);

Podbielancik v. LPP Mortg. Ltd. 191 Wn. App. 662, 666, 362 P.3d 1287 (2015) (“If a party fails to 

object to an affidavit or bring a motion to strike improper portions of an affidavit, any error is 

waived.”).
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Summary judgment motions are governed by “‘a burden-shifting scheme.’” 

Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 114, 531 P.3d 265 (2023) 

(quoting Bucci v. Nw. Tr. Servs., Inc., 197 Wn. App. 318, 326, 387 P.3d 1139 

(2016)). “The moving party bears the initial burden ‘to prove by uncontroverted 

facts that there is no genuine issue of material fact.’” Id. (quoting Jacobsen v. 

State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)). If the moving party satisfies its 

burden, then the burden shifts to the nonmoving party to “‘set forth specific facts 

evidencing a genuine issue of material fact for trial.’” Id. (quoting Schaaf v. 

Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995)).

Three statutes govern proof of appellants’ claims. First, regarding forcible 

entry claims, RCW 59.12.010 states as follows:

Every person is guilty of a forcible entry who either—(1) By breaking 

open windows, doors or other parts of a house, or by fraud, 

intimidation or stealth, or by any kind of violence or circumstance of 

terror, enters upon or into any real property; or—(2) Who, after 

entering peaceably upon real property, turns out by force, threats or 

menacing conduct the party in actual possession.

Second, the forcible detainer statute, RCW 59.12.020, states in relevant part:

Every person is guilty of a forcible detainer who . . . in the nighttime, 

or during the absence of the occupant of any real property, enters 

thereon, and who, after demand made for the surrender thereof, 

refuses for the period of three days to surrender the same to such 

former occupant. The occupant of real property within the meaning 

of this subdivision is one who for the five days next preceding such 

unlawful entry was in the peaceable and undisturbed possession of 

such real property.

Lastly, RCW 59.12.140, titled “Proof in forcible entry and detainer,” states:

On the trial of any proceeding for any forcible entry or forcible 

detainer the plaintiff shall only be required to show, in addition to a 

forcible entry complained of, that he or she was peaceably in the 

actual possession at the time of the forcible entry; or, in addition to a 
No. 85225-6-I

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forcible detainer complained of, that he or she was entitled to the 

possession at the time of the forcible detainer.

Thus, to obtain relief for forcible entry and detainer, appellants were required to 

show that (1) ESA entered their unit in their absence, (2) ESA refused to allow 

them to reenter the unit for three days, and (3) they were in peaceable and 

undisturbed possession of the property for five days preceding the forcible entry. 

ESA argued below that appellants’ claims failed as a matter of law because 

they abandoned the property and therefore were not in peaceable and undisturbed 

possession of the property for five days preceding the forcible entry. Construing 

RCW 59.12.140 (quoted above), our Supreme Court has held that a plaintiff, “on 

the question of possession, [is] only required to show that he was, for the period 

of five days next preceding... entry, in the peaceable and undisturbed possession

of the property.” Randolph v. Husch, 159 Wash. 490, 495, 294 P. 236 (1930). The 

Court has also explained that to have peaceable and undisturbed possession “[i]t 

is not essential that there be a continuous personal presence on the land, but there 

must be exercised at least some actual physical control with the intent and 

apparent purpose of asserting dominion.” Id. at 496. “The true intent of the statute 

by these words and by the five-day limitation is to exclude a momentary or 

scrambling actual possession; not to describe a constructive possession.” Id.

ESA’s motion to dismiss and accompanying declaration do not establish, as 

a matter of law, that appellants were not in peaceable and undisturbed possession 

of the property for five days preceding the forcible entry. The declaration states 

that on November 6 or 7, 2022 appellants got into a “huge fight” and police were 

called to the property to intervene. Then, shortly after the fight, appellants “left the 
No. 85225-6-I

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Property.” Based on these events—leaving the property for a few days following 

a fight—ESA’s declarant summarily concludes that appellants “chose to voluntarily 

leave the Property.” This declaration, consisting entirely of self-serving speculation 

and bald assertion, falls well short of proving by uncontroverted facts that there is 

no genuine issue of material fact as to whether appellants abandoned the property. 

But even if ESA met its initial burden of production on summary judgment, 

appellants’ verified complaint sets forth specific facts evidencing a genuine issue 

of material fact for trial. While Washington courts have not squarely decided the 

issue, the Ninth Circuit has held that “a verified complaint may serve as an affidavit 

for purposes of summary judgment if it is based on personal knowledge and if it 

sets forth the requisite facts with specificity.” Moran v. Selig, 447 F.3d 748, 759, 

n.16 (9th Cir. 2006). We apply that rule here because the verified complaint sets 

forth the requisite facts with specificity and states, under penalty of perjury, that 

the statements in the complaint are true and correct. Thus, the complaint is in all 

material respects comparable to a declaration. 

As to the content of the verified complaint, it asserts that “Mr. Watkins was 

temporarily absent from his unit beginning on or about November 9, 2022. Mr. 

Watkins intended to return to his unit and left all his belongings inside the unit as 

well as his car in the parking lot.” These facts sufficiently rebut ESA’s 

abandonment argument because they show that appellants left their belongings in 

the unit, as well as a car in the parking lot, evidencing an intent to return and not 

abandon the unit. That is especially so when the assertions in the verified 

complaint are viewed in the light most favorable to appellants (the nonmoving 

parties), as required. See Ramey, 130 Wn. App. at 685.
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Indeed, not only does the record preclude dismissal, the commissioner’s 

oral ruling, which the superior court ultimately adopted, similarly recognizes an 

extant controversy regarding whether appellants were in peaceable and 

undisturbed possession at the time of the forcible entry:

Counsel, I’m going to -- I am going to grant the motion to dismiss. I 

don’t believe at this point that you have sufficient basis here for this 

Court to either certify or rule on an unlawful detainer case given the

facts that we have here. There may have been a difference of opinion 

about whether your clients had vacated voluntarily. They left their 

things there, and it’s -- that’s not an uncommon scenario when 

tenants leave. Sometimes they have no other place to go and they 

can’t take their things and they leave them. I don’t know, it’s 

speculation on my part. But I -- but it is not enough for me to say that 

this matter should go forward to trial.

(Emphasis added.) Because there is a genuine issue of material fact as to whether 

appellants were in peaceable and undisturbed possession of the property for five 

days preceding the forcible entry, their claims were not properly subject to 

dismissal under CR 56. The superior court’s dismissal order, whether premised 

on CR 56 or CR 12, is accordingly reversed.2

C.

Finally, ESA argues that appellants cannot properly seek a writ of restitution 

to their former premises without joining the tenant currently residing in the unit as 

an indispensable party under CR 19 and controlling case law. Because this issue 

 2 Although we review the trial court proceedings under CR 56, we would reach the same 

result even if we were to conclude that the superior court could properly decide ESA’s motion to 

dismiss under CR 12. “We review the trial court’s ruling on a motion to dismiss de novo. Factual 

allegations are accepted as true, and unless it appears beyond doubt that the plaintiff can prove 

no set of facts consistent with the complaint that would entitle him or her to relief, the motion to 

dismiss must be denied.” Becker v. Cmty. Health Sys., Inc., 184 Wn.2d 252, 257-58, 359 P.3d 746 

(2015). Additionally, the court “must assume the truth of facts alleged in the complaint, as well as 

hypothetical facts, viewing both in the light most favorable to the nonmoving party.” Didlake v. 

State, 186 Wn. App. 417, 422, 345 P.3d 43 (2015). For the same reasons set forth above, the 

facts alleged in appellants’ verified complaint—accepted as true and viewed favorably to 

appellants—preclude dismissal under CR 12(b)(6) as well as CR 56.
No. 85225-6-I

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may recur on remand, we choose to address the issue and hold, consistent with 

ESA’s arguments, that appellants must comply with RCW 59.12.090.

Under RCW 59.12.090, a 

plaintiff at the time of commencing an action of forcible entry or 

detainer or unlawful detainer, or at any time afterwards, may apply 

to the judge of the court in which the action is pending for a writ of 

restitution restoring to the plaintiff the property in the complaint 

described, and the judge shall order a writ of restitution to issue. 

(Emphasis added.) Here, appellants described the property for which they sought 

relief in their verified complaint as “15451 53rd Ave S, #110, Tukwila, WA 98188.” 

Because appellants specifically described their previous unit in their complaint, 

they may only be restored to that unit under RCW 59.12.090. 

It necessarily follows that appellants must join a new tenant of the unit (if 

any) to maintain their forcible entry and detainer action. Laffranchi v. Lim, 146 Wn. 

App. 376, 383, 190 P.3d 97 (2008), is instructive on this point. In Laffranchi, 

DeVore leased a four-bedroom house from Lim. Id. at 378. At the time the lease 

was signed, the property was subject to a deed of trust between Lim, as grantor, 

and Lender Homecomings Financial Network, Inc., as beneficiary. Id. at 379. 

When Lim failed to make payments on the obligation secured by the deed of trust,

Laffranchi purchased the property at a trustee’s sale. Id. Laffranchi subsequently 

filed an eviction summons and complaint for unlawful detainer and served it at the 

property’s address with the caption “Tony Laffranchi v. Tomas Oscar Lim and 

Maida Lim, et al.” Id. at 379. Laffranchi obtained a writ of restitution directing the 

sheriff to remove the defendants and all others from the property. Id. at 380. 

On appeal, we held that “Laffranchi’s failure to join DeVore as a defendant 

deprived the court of subject matter jurisdiction under chapter 59.12 RCW.” Id. at 
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384.3 We applied RCW 59.12.060, which states: “[n]o person other than the tenant 

of the premises, and subtenant, if there be one, in the actual occupation of the 

premises when the complaint is filed, need be made parties defendant in any 

proceeding under this chapter . . . .” Applying that statutory requirement, we 

concluded that if DeVore continues to assert a right to possession, Laffranchi must 

join him as a party to maintain his unlawful detainer action. Laffranchi, 146 Wn. 

App. at 387.

ESA represents that there is a new tenant in the unit where appellants seek 

to be restored. As in Laffranchi, we conclude that if there exists a new tenant after 

remand, that new tenant is a necessary party under RCW 59.12.060 and must be 

joined if they assert a right to possess the property. Accordingly, we remand the 

matter for further proceedings consistent with RCW 59.12.060 (if applicable).

4

Reversed and remanded.

WE CONCUR:

 3 Although Laffranchi refers to “subject matter jurisdiction,” we have since clarified “[i]f the 

type of controversy is within the superior court’s subject matter jurisdiction, as it is here, then all 

other defects or errors go to something other than subject matter jurisdiction.” MHM & F, LLC v. 

Pryor, 168 Wn. App. 451, 460, 277 P.3d 62 (2012) (internal quotation marks omitted).

4 ESA also argues that even if appellants did not abandon the premises, it is entitled to use 

self-help if no breach of the peace occurs. However, “no landlord, including one not governed by 

the [Residential Landlord Tenant Act], may ever use nonjudicial, self-help methods to remove a 

tenant.” Gray v. Pierce County Hous. Auth., 123 Wn. App. 744, 757, 97 P.3d 26 (2004). Further, 

RCW 59.18.290 states that it “is unlawful for the landlord to remove or exclude from the premises 

the tenant thereof except under a court order so authorizing.” Thus, we reject this argument.