### 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Appellant, DIVISION ONE V. UNPUBLISHED OPINION SNOHOMISH COUNTY,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 RCW42.56.550(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 ofthe requestand assigned ittracking number K013594-011817. On January23, 2017, the Countysentan email to Gipson indicating recordswould 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.

1 Ch. 42.56 ROWNo. 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 letterstating itwas the “1st and final installment of records responsive to request number K013594.” The letterfurtherstated: “Ifyou have anyquestions, please contact me at425-388-6349.” Overtwo months later,
on July 18, 2017, Gipson sent an email tothe 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 installmentsto issue. Ifthis is not correct please let [me] know. Thatsameday, the County responded: “Yes, this requestwas closed. You picked up thefinal 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 summaryjudgment, asserting the claim was barred by the statute of limitations because itwas not broughtwithin one year ofthe County’s production ofthefinal 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 bythe last production of records on an installment basis
onApril 28, 2017.” The courtalso rejected Gipson’s argumentthatequitabletolling should apply. Gipson appeals.

2No. 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 reviewforsummaryjudgment. Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 106, 117 P.3d 1117 (2005). In reviewing an orderon 

### summaryjudgment, we perform the same inquiryasthetrial 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 tojudgment as a matterof 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 forjudicial review of agency actions. RCW42.56.550(6) provides: “Actions underthis section must be filed within one yearofthe agency’s claim ofexemption orthe last production ofa 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 thatthe 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

3No. 79351-9-1/4

Wn.2d at 455-456. Although the county’s response was not a claim of an exemption orthe 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 towait an additional 25 months before bringing his cause ofaction. 186Wn.2d at460-461. The courtheldthe claim wastime-barred underthestatute. 186 Wn.2d at 459. But because Belenski raised “legitimate concerns [about] allowingthestatute oflimitationsto run based on an agency’s dishonest response,” it remandedthe casetothetrial courtto resolve anyfactual disputes and determine ifthe doctrine ofequitable tolling applied. 186 Wn.2d at461-62. As in Belenski, the undisputed facts establish that Snohomish County’s last production ofrecords 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 atthe time ofthe county’s final, definitive response “[r]egardless of whether this answer was truthful or correct.” 186 Wn.2d at461 (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 oneyear statute of limitations began to run on April 28, 2017. Unless there was a factual basisto equitablytoll the statute oflimitations, Gipson’s claim—filed on July 18, 2018—was untimely. Gipson argues on appeal thatthe trial court erred in failing to equitablytoll the statute of limitations. He contends he was confused bythe 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 Bellevuev. Benyaminov, 144Wn. App. 755, 760, 183 P3d 1127 (2008). Astatute of limitations may be tolled for equitable reasons when the circumstances show badfaith, deception, orfalse assurances bythedefendant, and the exercise ofdue 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 partyasserting thatequitabletolling applies bearsthe burden of proof. Price v. Gonzalez, 4 Wn. App. 2d 67, 77, 419 P.3d 858 (2018). “Courts typically permit equitabletolling to occuronlysparingly, and should notextend itto
a garden variety claim ofexcusable neglect.” Price, 4Wn. App. 2d at 76.

2 Gipson appears to confuse the doctrine of equitable estoppel with equitable tolling. Equitable estoppel is notthe appropriate testfortolling the statute of limitations. 5No. 79351-9-1/6 Gipson presented no evidence thatthe County acted in bad faith, engaged in anydeception, or provided him with anyfalse assurances. Unlike Belenski, the Countydid notfalsely claim to have no responsive recordswhen the plaintiff knew responsive records existed. The Countydid nottell Gipson therewould befurther installments afterApril 28, 2017, and did not tell him his requestwas 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 Countyto confirm if it had furtherinstallmentsto produce, the County responded inthe negative immediately, further indicating that the County was not trying to deter Gipson from initiating litigation if he believed he had a basis fordoing 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 alsofailed to create a genuine issue ofmaterial fact as towhether he exercised due diligence. If he was confused bythe language ofthe April 28 letter, he did not explain what, if anything, prevented him from seeking clarification soonerthan July. And once he became aware ofthe County’s position thattheApril 28 installmentwas thefinal one, he did not explain what, ifanything, prevented him from initiating his PRA lawsuit between July 2017 and April 2018. Asthe court madeclearin Belenski, he could have initiated his lawsuit immediately ifdissatisfied with the County’s response. 186 Wn.2d at461. Gipson contends that not applying equitable tolling here would lead to “absurd and inconsistent results,” noting that if he had learned 364 days laterthat the April 28, 2017 DVD was the County’s “final action,” he would have only one

6No. 79351-9-1/7

day“to act upon thisfalse statement.” Butthisfactual hypothetical is notthe record before us. He did receive notice on April 28. That notice was unequivocal. He waited two monthsto seek clarification withoutevidence astowhy hewaited such
a lengthy period oftime. Hethen immediately learned thatthe County considered its April 28 production to be the final one. And he presented no evidence thatthe County took any action that prevented him from filing the lawsuit in a timely
manner. Underthe facts ofthis case, summaryjudgmentwas appropriate. Affirmed.



## ~1 ~‘ WE CONCUR:

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