COURT OF APPEALS 

### DIVISION II 2U I it 

### OEC 30 AM 947 STATE OF WASHINGTON BY UTY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II DAVID HYYTINEN, an individual, Appellant,

v. CITY OF BREMERTON and the STATE OF WASHINGTON, in its capacity as legal representative ofthe Washington State Patrol, Respondents. No. 45117 - 4 -II
UNPUBLISHED OPINION

BJORGEN, A.C.J. — 

### David Hyytinen appeals the summaryjudgment orders issued in 

### favor ofthe City ofBremerton (City) andthe State ofWashington,as legal representative ofthe Washington State Patrol (Patrol), 

### concerning avehicle thatthe City sold to him. Hyytinen sued the City and the Patrol afterthe Patrol seized as stolen property avehicle Hyytinen had purchased from the Bremerton Police Department (BPD). Hyytinen' s complaint alleged ( 1) breach of contract, (2) fraud, (3) unjust enrichment, (4) negligence, and (5) violation ofhis right to due process under the federal constitution. Hyytinen later moved to amend the complaint to allege a state constitutional due process claim against the Patrol, which motion the trial court denied.No. 45117 - 4 -II


### The trial court granted summaryjudgment in favor ofBremerton and the Patrol on the grounds that the statute oflimitations barred Hyytinen' s contractual claims; Hyytinen' s failure to 

### complywith the notice -

of - claim statute and to plead sufficient factual allegations barred the fraud and negligence claims; the unjust enrichment claim failed because a contract controlled the terms ofsale; and no independent cause of action supported the federal due process claim. Because genuine issues ofmaterial fact remain as to whether Hyytinen' s purchase contract with 

### the Citywas voidable based on mutual mistake offact and whether he has metthe requirements ofunjust enrichment, we reverse summaryjudgment in favor ofthe City on Hyytinen' s unjust enrichment claim and remand to the trial court for adjudication ofthat claim and the related issue ofmutual mistake. We affirm the trial court' s order of summaryjudgment on Hyytinen' s other 

### claims against the City and his claims against the Patrol. FACTS In 2004, the BPD seized a 2002 Cadillac Escalade from Darryl Anthony Shears, a suspect 

### in a drug investigation. Shears forfeited the Escalade to BPD as part ofa stipulated settlement agreement, and the State ofWashington issued a certificate oftitle naming BPD as the legal
owner in March 2006. 

### Although BPD knewthat Shears had two felony convictions for possession ofstolen 

### property and forgery, it did not checkwhetherthe publicly visible vehicle identification number VIN), a unique sequence ofnumbers and letters assigned to each new motor vehicle at the 

### factory, matched the Escalade' s confidential VIN, marked in various concealed locations generally known only to law enforcement. See State v. Owens, 180 Wn.2d 90, 93, 323 P.3d 1030

2No. 45117 - 4 -II
2014) and United States v. Short, 4 F. 3d 475, 480 - 81 ( 7th Cir. 1993) ( discussing nature and
purpose of confidential VINs). Instead, BPD ran the license plate number through
certain law enforcement data bases, none of which listed the Escalade as stolen.' The BPD advertised the Escalade in the newspaper and sold it to Hyytinen for $ 21, 500 through a private 

### auction company on June 30, 2007. 

### Later,the State Department ofLicensing learned that California authorities had discovered another 2002 Escalade with the same VIN, and in April 2011, sent Hyytinen a letter 

### requesting that he have the Escalade' sVIN inspected bythe Patrol. On May 2, the Department ofLicensing sent Hyytinen a letter informing him that it had cancelled the certificate of 

### ownership forthe Escalade because it had issued the certificate in error and because Hyytinen had not responded to the April inspection request.2 When Hyytinen presented the Escalade to the Patrol for a VIN inspection on July 5, 

### 2011, . the Patrol determined thatthe VIN appearing on the dashboard and driver's side door were forgeries and did not match the confidential VIN marked elsewhere on the vehicle. The Patrol


### We note that in its motion for summaryjudgment, the City represented to the trial courtthat the BPD ran the VIN through a law enforcement database, and that "[ a] 11 ofthe information available to the City revealed that the Escalade was not stolen." Clerk' s Papers (CP) at 340 - 41. 

### In its briefhere, the City repeats these claims. Randy Plumb, the officerwho performed the 

### inspection, however,only claimed to have checked the license plate number. Plumb admitted in his deposition that he knew about the confidential VIN system, including at least some ofthe 

### confidential VIN locations, but expressly denied ever checking the publicly visible VIN or comparing it to the confidential VIN. Thus, contrary to the City' s representations, ( 1) it did not 

### check eitherthe public VIN orthe confidential VIN in any database, and (2) the City had information available to it that would have revealed the Escalade' s stolen status. After we directed counsel' s attention to these misrepresentations at oral argument, the City submitted an 

### errata" amending its briefto omitthe erroneous assertions. 

### 2 Hyytinen apparently did not receive this second letter,which the Department ofLicensing sent to an address different from that appearing on the first letter. 3No. 45117 - 4 -II 

### immediately seized the Escalade, informing Hyytinen that itwould not return the vehicle to him and that he needed to remove his personal property from it and find anotherwayto get home. The Patrol concedes that it never notified Hyytinen ofthe seizure in writing by certified mail, as 

### required bythe statute authorizing such seizures, or ofhis rightto a hearing atwhich he could attempt to establish valid title to the Escalade. 

### The Patrol discovered that a car dealership in Canada had reported the Escalade stolen in November 2002. On August 5, 2011, the Patrol informed Hyytinen that the dealership' s 

### insurance company wantedto auction the Escalade to recoup the money it had paid out on the dealership' s claim. 

### The Patrol subsequently released the Escalade to the auctioneer. PROCEDURAL HISTORY 

### Hyytinen filed this lawsuit on September 21, 2011, naming only BPD as defendant and 

## statingvarious causes ofaction,including breach ofcontract,fraud,andunjustenrichment.3 Hyytinen submitted atort claim form to the City on November 3, 2011, and amended the 

### complaint to name the City as a defendant the next day. On February 6, 2012, Hyytinen amended the complaint again, adding a negligence claim based on the BPD' s failure to checkthe 

### Escalade' s VIN priorto selling it and clarifying the contractual claim by alleging breach ofthe implied warranty ofgood title. On September 5, 2012, Hyytinen submitted a tort claim form to the State ofWashington, 

### informing itthat he intended to amend his complaint to add the Washington State Patrol as a defendant. On December 13, Hyytinen again amended his complaint, naming "the State of 

### Washington, in its capacity as legal representative ofthe Washington State Patrol" as adefendant
3 Hyytinen also alleged a violation ofthe Consumer Protection Act, chapter 19.86 RCW, and an 

### unlawful taking, but does not contestthetrial court's dismissal ofthose claims in this appeal. 4No. 45117 - 4 -II 

### and adding a cause ofaction forviolation ofhis federal due process rights bythe Patrol. Clerk's Papers ( CP) at 309 -16. Although he later argued thatthis third amended complaint included a 

### negligence claim against the Patrol, its negligence cause ofaction alleged onlythe same facts 

### underlying his initial negligence claim against the City. 

### The City moved for summaryjudgment, arguing that (1) the statute oflimitations in Washington' s codification of the Uniform Commercial Code (U.C. C.) barred Hyytinen' s

contractual claims; (2) Hyytinen' s failure to submit a tort claim form at least 60 days prior to filing suit, as required 

### by RCW 4. 96.020(4), required dismissal of his fraud and negligence

claims against the City; (3) Hyytinen's fraud claim failed as a matter of law because he alleged 

### neither thatthe City made anyfalse representation offact northatthe City knewthatthe Escalade had been stolen; (4) Hyytinen' s negligence claim failed as a matter of law because the 

### BPD owed Hyytinen no dutyto verify Shears' s ownership ofthe Escalade; and (5) Hyytinen's unjust enrichment claim failed as a matter oflaw because a contract governed his relationship 

### with BPD with respectto the Escalade and because the BPD, having surrendered the Escalade in return for Hyytinen's payment, did not receive any benefit for which it did not pay. 

### The Patrol also moved for summaryjudgment, arguing that Hyytinen's due process claim failed as a matter oflaw because ( 1) he had no constitutionally protected property interest in the Escalade; (2) given Hyytinen' s actual notice ofthe seizure, the existence of a readily discoverable procedure under state law to dispute that seizure alone satisfied the requirements of due process; and (3) Hyytinen failed to invoke 42 U.S. C. section 1983, the federal statute 

### creating a cause ofaction for deprivation ofafederal right under color ofstate law,and did not name a " person" within the meaning ofsection 1983 as a defendant. The Patrol also alleged that Hyytinen' s claims against it were frivolous and requested an attorney fee award. After hearing 5No. 45117 - 4 -II 

### argument from Hyytinen and the City,the trial court granted the City' s summaryjudgment motion and dismissed Hyytinen' s claims against it with prejudice. The trial court granted summaryjudgment in favor ofthe Patrol on Hyytinen' s constitutional claims two weeks later. However, when the Patrol noted an order for entry of 

### judgment dismissing the suit, Hyytinen opposed it, arguing that the third amended complaint also stated a negligence claim against the Patrol. The trial court agreed with Hyytinen and dismissed only the constitutional claim. 

### The Patrol then moved for summaryjudgment on the negligence claim on the ground that the complaint did not allege any conduct by the Patrol that would amount to negligence. 

### Hyytinen then moved to amend the complaint again to " clarify" his negligence claim against the Patrol and add a due process claim based on the Washington Constitution' s due process clause. WASHINGTON CONSTITUTION, art. 1, § 3; CP at 922 - 30. The trial court denied Hyytinen' s motion 

### on the grounds that it was untimely and unfairly prejudicial to the Patrol and that no authority supported the proposition that a state due process claim would survive where a federal claim had failed as a matter oflaw. 

### The trial court ultimately granted the Patrol' s summaryjudgment motion and dismissed Hyytinen's suit, enteringjudgment in favor ofthe Patrol for $200 in statutory attorney fees and declining to award reasonable attorney fees. Hyytinentimely appeals. ANALYSIS 

### Hyytinen contends that the trial court erred in dismissing on summaryjudgment his claims against both the City and the Patrol. After setting forth the relevant standards ofreview, 

### we firstaddressthetrial court' s grant ofsummaryjudgmenttothe City,then considerthe trial

6No. 45117 - 4 -II
court' s denial of Hyytinen' s motion to amend the complaint and its dismissal ofhis claims against the Patrol. I. STANDARD OF REVIEW 

### We review a grant ofsummaryjudgment de novo and perform the same inquiry as the trial court. Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 407 - 08, 282 P.3d 1069 2012); Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P.3d 318 ( 2009). A 

### court should grant summaryjudgment only if " the pleadings, depositions, answers to interrogatories, and admissions on file,togetherwith the affidavits, ifany, show that there is no 

### genuine issue asto any material fact and thatthe moving party is entitled to ajudgment as a
matter of law." CR 56(c). 

### A party moving for summaryjudgment bears the burden ofdemonstrating thatthere is no genuine issue ofmaterial fact. Atherton Condominium Apartment - Owners Ass 'n Bd. ofDirs.v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 ( 1990). " A material fact is one upon which the outcome of the litigation depends in whole or in part." Atherton, 115 Wn.2d at 516. Ifthe 

### moving party satisfies its burden,the nonmoving party must present evidence demonstrating that a material fact remains in dispute. Atherton, 115 Wn.2d at 516. Ifthe nonmoving party fails to do so, and reasonable persons could reach but one conclusion from all the evidence, then 

### summaryjudgment is proper. Vallandigham v. Clover ParkSch. Dist.No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 ( 2005). 

### In determining whether summaryjudgment was proper, we must consider all facts, and the reasonable inferences that follow from them, in the light most favorable to the nonmoving party. 

### Vallandigham, 154 Wn.2d at 26; Atherton, 115 Wn.2d at 516. Thus, we considerthe record herein the light most favorable to Hyytinen. 7No. 45117 - 4 -II
We review the denial ofa motion to amend a pleading for abuse ofdiscretion. Kwiatkowski v. Drews, 142 Wn.

### App. 463, 496, 176 P. 3d 510 (2008). The relevant court rule 

### provides, however,that "leave shall be freely given" to apartyto amend its pleadings "when justice so requires." CR 15( a). 

### Delay alone does not necessarily suffice tojustify denial ofa
motion to amend; instead, "[ t] he touchstone for denial ofan amendment is the prejudice such
amendment would cause the nonmoving party." Caruso v. Local Union No. 690 glint?Bhd.of Teamsters, Chauffeurs, Warehousemen & Helpers ofAm., 100 Wn.2d 343, 350, 670 P.2d 240 1983). II. HYYTINEN' S CLAIMS AGAINST THE CITY 

### Hyytinen argues that the trial court erred in dismissing his claims againstthe City on 

### summaryjudgment because (1) the four - year U.C.C. statute oflimitations does not apply to his breach of contract claim; (2) his contract with BPD is void and therefore does not bar his unjust enrichment claim; and (3) he complied with the notice of claim statute and alleged sufficient facts to support his fraud and negligence claims. We consider each contention in turn. A. Contractual Claims Against the City Hyytinen contends that the U.C.C.' s four - year statute of limitations, codified in Washington as RCW 62A.2-725( 1), 

### does not bar his contract claims against the City. In his 

### reply brief,Hyytinen argues forthe firsttime that equitable tolling should extend the limitations period. We hold that the U.C.C. limitation period plainly applies and bars Hyytinen' s .
contractual claims.

Washington' s enactment ofthe U.C. C. covers all " transactions in goods," RCW 62A.2- 102; that is " all things . . which are movable at the time of identification to the contract for
sale." RCW 62A.2 -105. The statute thus applies to BPD' s sale ofthe Escalade to Hyytinen. 8No. 45117 - 4 - I1

The U.C. C. statute of limitations provides that "[

### a]n action for breach ofany contract for
sale must be commenced within four years after ... the breach occurs, regardless ofthe aggrieved party' s lack of knowledge ofthe breach." RCW 62A.2 -725. Hyytinen argues that this 

### limitations period applies only to the contract, defined as " thetotal legal obligation that results from the parties' agreement," but not to the broader " agreement." Br. ofAppellant at 25 - 26. His 

### brieffails to explain, however, howthe dutyto deliverthe Escalade with good title falls outside the contract, as defined. Consequently, his argument is unavailing, and RCW 62A.2 -725, on its face, would bar any contractual claim Hyytinen might bring. Nevertheless, Hyytinen argues that the statute of limitations should be tolled under the equitable tolling doctrine because of BPD' s bad faith. RCW 62A.2-725(4) specifies that "[t] his
section does not alter the law on tolling ofthe statute of limitations." Washington courts have
adopted the " equitable tolling" doctrine, which "' permits a court to allow an action to proceed
when justice requires it, even though a statutory time period has nominally elapsed. ' In re Carlstad, 150 Wn.2d 583, 593, 80 P.3d 587 (2003) ( 

### quoting State v. Duvall, 86 Wn.App. 871, 874, 940 P.2d 671 ( 1997)). 

### Hyytinen,however, raises equitable tolling forthe first time in his reply brief. We generally decline to consider issues not raised in the trial court, RAP 2. 5( a), and "[ a]n issue
raised and argued for the first time in a reply brief is too late to warrant consideration." Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992). For this reason, and 

### because we hold below that Hyytinen has adequately preserved his unjust enrichment claim, 

### which is inconsistent with his equitable tolling argument, we decline to consider equitable tolling

9No. 45117 - 4 -II


### further. Hyytinen' s contract claims are barred bythe statute oflimitations. B. Unjust Enrichment 

### Hyytinen contends that he is entitled to restitution from the City based on unjust enrichment. Hyytinen argues that he may invoke this equitable remedy even though a contract 

### governed his transaction with the City because eitherthe parties failed to agree to the essential terms and thus no valid contract formed or, in the alternative, because the contract " is void as against public policy." Br. ofAppellant at 29. In his reply brief,Hyytinen argues more 

### specifically that he may avoid the contract due to material misrepresentation or mutual mistake offact.

### The City maintains that, so long as acontract governs theirrelationship, Hyytinen has no unjust enrichment claim against BPD. The City contends that "[ t]he stolen nature ofthe Escalade does not eliminate any of the elements of a contract claim," and thus, the fact that Hyytinen " may not have received what he bargained for ... does not invalidate the contract." 

### Br. ofResp' t (City ofBremerton) at 10. 

### Our Supreme Court has characterized the theory ofunjust enrichment on which Hyytinen

relies as a " contract implied in law" or " quasi contract." 

### Young v. Young, 164 Wn.2d 477, 484- 85, 191 P. 3d 1258 ( 2008). 

### The Young court articulated the elements ofsuch an unjust
enrichment claim as "( 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, 164 Wn.2d at 484 - 85. 

### The Young court specified also that 

### u]njust enrichment is the method of recovery forthe value ofthe benefit retained absent any
contractual relationship." 164 Wn.2d at 484 ( emphasis added).

10No. 45117 - 4 - I1
The mere existence of a contract between the parties does not preclude an unjust

enrichment claim, however. See Chandler v. Wash. Toll Bridge Auth., 17 Wn.2d 591, 604, 137 P.2d 97 ( 1943) ( 

### Party may not bring an implied contract action relating to the same matter 

### covered by avalid express contractwhen the alleged implied contract is in contravention ofthe
valid express contract.). The U.C.C. defines " contract" as " the total legal obligation that results from the parties'
agreement as determined 

### by this title as supplemented by any other applicable laws." RCW 62A. 1- 201( 12). Under RCW 62A.2 -312, " 

### there is in a contract for sale a warranty bythe seller that ... [ t] he title conveyed shall be good, and its transfer rightful." 

### This warranty oftitle is thus 

### part ofthe total legal obligation resulting from Hyytinen' s agreement with BPD, as 

### supplemented bythe U.C.C. Therefore, the terms ofthe express contract cover the matter at issue here, and, under the rule stated in Chandler, 17 Wn.2d at 604, the existence ofa valid contract would bar Hyytinen' s unjust enrichment claim. 

### Hyytinen argues in his reply briefthat his unjust enrichment claim mayproceed because either a valid contract never formed orthe contract was voidable due to mutual mistake. As 

### noted,we generally decline to consider issues raised forthefirsttime in a reply brief. Here, however, Hyytinen made the following argument, under the heading " No Valid Contract," in 

### opposition to the City' s summaryjudgment motion: 

### A valid contract exists only where the following elements are found: an offer, acceptance, consideration ( mutual promises or performance), legal capacity and legal substance and compliance with the statue of frauds. The Escalade' s stolen status precluded the BPD from entering into a valid contract.

11No. 45117 - 4 -II
CP 478 -79. Because Hyytinen raised the issue in the trial court and presented closely analogous 

### arguments that sufficiently raised the validity ofthe contract in his opening brief,we address the claim on its merits. First, Hyytinen contends that no contract formed because BPD' s material misrepresentation induced his assent to the agreement. The Restatement ( Second) ofContracts

section 164( 1) ( 1981) explains that 

### i]faparty' s manifestation ofassent is induced by either a fraudulent or amaterial 

### misrepresentation by the otherparty upon whichthe recipient isjustified in relying, the contract is voidable by the recipient. Under this rule, " even a material innocent misrepresentation can render a contract voidable." 

### Yakima County Fire Prot.Dist.No. 12 v. City ofYakima, 122 Wn.2d 371, 390, 858 P.2d 245 1993). This argument' s Achilles' heel is the fact that Hyytinen never had contact with anyone at 

### BPD priorto buying the Escalade. The Restatement defines " misrepresentation" as " an assertion that is not in accord with the facts." RESTATEMENT (SECOND) OF CONTRACTS, § 159 ( 1981). The 

### comment notes that such an assertion " commonlytakes the form ofspoken or written words," but also acknowledges that "[ 

### a]n assertion may also be inferred from conduct otherthan words." RESTATEMENT ( SECOND) OF CONTRACTS, § 159, cmt. a ( 1981). 

### Hyytinen does not point to any specific words or conduct of BPD' s that amounted to an
assertion that it had good title. Instead, he merely asserts that "[ i]mplicit in its offer of sale was the BPD' s representation that the Escalade had good title" and notes that, as a law enforcement 

### agency, BPD " stood in a superior position ofknowledge and ability to investigate" the matter. Reply Br. ofAppellant at 19 n.8.

12No. 45117 - 4 -II


### As discussed above, BPD arguably held itselfout as the legal owner ofthe Escalade. However, Hyytinen also admitted that he knew BPD had seized the vehicle. Under these 

### circumstances, merely offering an item for sale is not sufficientto qualify as a misrepresentation that would require the conclusion that a contract never was formed. Hyytinen also invokes the doctrine ofmutual mistake offact. The doctrine provides that w]here a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed 

### exchange ofperformances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake. RESTATEMENT ( SECOND) OF CONTRACTS, § 152( 1) ( 1981). 

### The "test ofmateriality is whether the

contract would have been entered into had the parties been aware ofthe mistake." Simonson v. Fendell, 101 Wn.2d 88, 92, 675 P. 2d 1218 ( 1984). The Restatement illustrates these principles 

### with an example involving facts somewhat analogous to those here: A,aviolinist, contracts to sell and B, another violinist,to buy aviolin. Both A and B believe that the violin is a Stradivarius, but in fact it is a clever imitation. A 

### makes no express warranty and, because he is not a merchant with respect to 

### violins, makes no implied warranty ofmerchantability under Uniform Commercial Code § 

### 2 -314. The contract is voidable by B. RESTATEMENT ( SECOND) OF CONTRACTS, § 152, at cmt. g, illustration 14 ( 1981). Washington courts have adopted the mutual mistake doctrine. See Simonson, 101 Wn.2d at 91 -92. 

### The remedy for mutual mistake is restitution: A person who renders performance under a contract that is subjectto avoidance by reason of mistake ... has a claim in restitution to recover the performance or its value, as necessary to prevent unjust enrichment. RESTATEMENT (THIRD) OF RESTITUTION & UNJUST ENRICHMENT, § 34( 1) ( 2011). Thus, mutual 

### mistake offact concerning the seller' stitle may make a contractvoidable and entitle the buyerto restitution. Ifthe contract between Hyytinen andthe City were voidable on this basis and if

13No. 45117 - 4 -II Hyytinen voided it, no express contract would bar Hyytinen' s unjust enrichment claim. Chandler, 17 Wn.2d at 604. Genuine issues ofmaterial fact remain as to whether the elements ofmutual mistake are 

### present. Those issues include, but are not necessarily limited to, whether both parties atthe time 

### ofcontracting were mistaken as to a basic assumption on which the contractwas made, whether that mistake had a material effect on the agreed exchange of performances, and whether Hyytinen bears the risk ofthe mistake. RESTATEMENT (SECOND) OF CONTRACTS § 152( 1). 

### According to Restatement (Second) ofContracts section 154, at 402 - 03, a partybears the risk of

a mistake when 

### a) the risk is allocated to him by agreement ofthe parties, or b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or 

### c) the risk is allocated to him bythe court on the ground that it is reasonable in the circumstances to do so. 

### Similarly, genuine issues ofmaterial fact are presentas to whether Hyytinen meets the elements ofan unjust enrichment claim,assuming the contract is voidable for mutual mistake of fact. Those elements include ( 1) whether BPD received a benefit, (2) whether the received benefit is at Hyytinen' s expense, and (3) whether the circumstances make it unjust for the 

### defendant to retain the benefit without payment. See Young, 164 Wn.2d at 484 - 85. In sum, issues ofmaterial fact remain on Hyytinen' s unjust enrichment claim and on the 

### question ofmutual mistake, which must be resolved before the unjust enrichment claim may be 

### reached. Consequently,the trial court erred in granting the City summaryjudgment on Hyytinen' s claim of unjust enrichment.

14No. 45117 - 4 -II

C. Tort Claims Against the City 

### Hyytinen claims that the trial court erred in dismissing his fraud and negligence claims 

### againstthe City, arguing thatthe claims raise material questions offact and that he complied with RCW 4.96.020' s notice - of - claim requirements. The City counters that courts require 

### s]trict compliance" with the 60 - day notice -

of - claim requirement and that Hyytinen failedto plead sufficient facts in support ofhis fraud and negligence claims. Br. ofResp't (City of Bremerton) at 11. We agree with the City. 

### In Bosteder v. City ofRenton, our Supreme Court4 addressed the precise issue presented here regarding the notice ofclaim statute:

Because the original complaint asserted a trespass claim against the city, 

### and the complaint was served on the same day the claim for damages was filed, 

### thereby commencing the action, Bosteder did not comply with the 60 - day waiting period requirement. His attemptto rectifythat problem by amending his complaint 60 days later does not change that fact. See RCW 4. 16. 170; RCW 4.96. 020(4). We require strict compliance with the procedural requirements of the claim filing statute. 155 Wn.2d 18, 47, 117 P. 3d 316 (2005), 

### superseded by statute on other grounds, Wright v. Terrell, 162 Wn.2d 192, 195 n. 1, 170 P.3d 570 (2007). Thus, the fact that Hyytinen amended his 

### complaint more than 60 daysafter filing the notice ofclaim does not remedy his failure to comply with the statute' s procedural requirements. Because the statute of limitation has not yet run on Hyytinen' s tort claims, however, the 

### question remains whether the trial court erred in dismissing these claims with prejudice. See RCW 4. 16. 080(2). 

### In the case on which the City relies, Troxell v. Rainier Public School District


### 4 Although only fourjustices signed the majority opinion ofthe court,Justice Ireland's separate opinion agreed with the majority opinion on this point. Bosteder, 155 Wn.2d at 59 (Ireland,J., agree[d] with the majority except as it holds thatthe claim filing statute applies to individuals "). 15No. 45117 - 4 - II
No. 307,the court noted that the trial court had dismissed Troxell' s suit with prejudice b] ecause the statute of limitations had run." 154 Wn.2d 345, 349, 111 P. 3d 1173 ( 2005). Where the limitations period has not yet expired, the plaintiffwould presumably remain free to 

### reinstitute the suit after filing the notice ofclaim and waiting 60 days. See Dyson v. King County, 61 Wn.App. 243, 245 -46, 809 P.2d 769 ( 1991) ( 

### holding the county estopped from 

### asserting the plaintiffhad failed to comply with a notice ofclaim provision because it "waited until the applicable statute of limitations had run" before raising the defense). 

### In dismissing the fraud and negligence claims, however,the trial court also relied on the 

### City's argumentthat Hyytinen' s tort claims raised no issue ofmaterial fact. We agree. With respect to Hyytinen' s fraud claim,the City' s argument plainly carries the day. The failure to 

### prove by clear, cogent, and convincing evidence any element offraud "is fatal to recovery." Markov v. ABC Transfer & Storage Co., 76 Wn.2d 388, 395, 457 P.2d 535 ( 1969). The elements
offraud include " a representation of existing fact, ... its 

### falsity, [and] the speaker' s knowledge
of its falsity." Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d' 157, 166, 273 P.3d 965 ( 2012). As discussed above, Hyytinen points to no specific words or conduct amounting to an assertion that BPD had good title to the Escalade, other than the mere fact that BPD, a law enforcement 

### agency, offered the Escalade for sale. Even were we to consider this a representation ofexisting 

### fact, Hyytinen points to no evidence that BPD actually knew it was false at the time. Thus, his fraud claim fails from the outset. We hold that the trial court did not err in dismissing the fraud claim on summaryjudgment.

Hyytinen' s negligence claim presents a closer question. " The elements of a negligence 

### cause ofaction are the existence ofa dutyto the plaintiff,breach ofthe duty, and injuryto

16No. 45117 - 4 - II

plaintiff proximately caused 

### by the breach." 

### Hertog,ex rel. S.A.H.v. City ofSeattle, 138 Wn.2d 265, 275, 979 P.2d 400 ( 1999). The Uniform Controlled Substances Act, chapter 69.50 RCW, 

### imposes a duty on law enforcement agencies that seize property under its forfeiture provision to cause notice to be served within fifteen days following the seizure on the owner of 

### the property seized and the person in charge thereof and any person having any known right or interest therein, ... of the seizure and intended forfeiture of the seized property. RCW 69.50.505( 3). 

### Based on this, Hyytinen argues that (1) BPD had a duty under RCW 69. 50. 505( 3) to notify the Escalade' s true owner ofthe seizure; (2) given what BPD knew about 

### Shears and its special knowledge ofthe confidential VIN system, it breached that duty by not 

### comparing the Escalade' s public VIN with the confidential VIN; and (3) thatthis failure proximately caused Hyytinen to pay foravehicle thatwould later be seized without compensation returned to him. 

### The City counters thatthe duty imposed by RCW 69.50.505(3) runs to persons with an 

### ownership interest in the property atthe time ofseizure, not to a subsequent purchaser of 

### forfeited property. The Cityfurther contends that BPD fulfilledthis duty by checking the Escalade' s license plate in a law enforcement database and notifying Shears, the only person listed as owner therein. We find the first argument persuasive. The notice provision in the Uniform Controlled Substances Act' s forfeiture provision 

### plainly aims to protect innocent owners, whose propertywas used for illegal purposes without their consent, from 

### losing their property. See, e.g., RCW 69.50. 505( 1)( g), ( h) (specifying that n] o personal property may be forfeited ... to the extent ofthe interest ofan owner, by reason 

### ofany act or omission which that owner establishes was committed or omitted withoutthe
owner' s knowledge or consent "). Because Hyytinen had no interest in the Escalade at the time
17No. 45117 - 4 -II


### ofthe initial seizure, BPD owed him only the duty it generally owes to the public to remove 

### stolen property from the stream ofcommerce. Therefore,the public duty doctrine governs Hyytinen' s negligence claim. 

### The public duty doctrine provides that "no liability may be imposed for a public official' s negligent conduct unless it is shown that `the duty breached was owed to the injured person as an 

### individual and was not merely the breach ofan obligation owed to the public in general.' Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 ( 1988) ( quoting J & B Dev. Co. v. King County, 100 Wn.2d 299, 303, 669 P.2d 468 ( 1983)). An exception to the doctrine arises where the Legislature enacts legislation for the protection of persons ofthe plaintiffs class." Taylor, 111 Wn.2d at 164. Here, however, Hyytinen falls outside the class the relevant provisions in RCW 69.50. 505 aim to protect. The only other possibly relevant exception to the 

### public duty doctrine,5 where amunicipality' s agents have a " special relationship" to the plaintiff,
requires " an express assurance given 

### by the public official." Munich v. Skagit Emergency Commc' n Ctr., 175 Wn.2d 871, 879, 288 P. 3d 328 (2012). As already discussed, Hyytinen points to no such express assurance. For these reasons, Hyytinen' s arguments fail underthe public duty doctrine. The trial 

### court did not err in dismissing his tort claims againstthe City on summaryjudgment. III. HYYTINEN' S CLAIMS AGAINST THE PATROL Hyytinen argues that the Patrol ( 1) violated his right to due process under the federal constitution, (2) violated his rights under state statutes and the state constitution, and (3) 

### negligently caused him damages. We first address Hyytinen' s federal due process claim,then 5 For a discussion ofthe exceptions to the public duty doctrine, see Bailey v. Town ofForks, 108 Wn.2d 262, 268 -

69, 737 P. 2d 1257 ( 1987), 

### amended by 753 P.2d 523 ( 1988). 18No. 45117 - 4 -II


### considerwhether the trial court abused its discretion in denying leave to amend the complaintto add the state law claims. A. Due Process Claims Against the Patrol Hyytinen contends that the Patrol violated his due process rights under the federal 

### constitution byfailing to notify him in writing ofhis rightto a hearing to contest the seizure, as required 

### by RCW 46. 12. 725( 2). Hyytinen maintains that this prejudiced him because, as a buyer 

### in the ordinary course ofbusiness, he could have demonstrated good title to the vehicle at such a hearing under RCW 62A. 1- 201( 9), or because he could have negotiated with the true ownerto protect his rights. 

### The Patrol maintains that Hyytinen failed to properly raise a due process claim because his pleadings do not name any individual defendant or invoke 42 U.S.C. section 1983, the statute 

### creating a cause ofaction forthe violation offederal rights under color ofstate law. On the merits ofthe due process claim, the Patrol counters that, given Hyytinen' s actual notice ofthe 

### seizure, the availability ofa readily discoverable procedure for a post-deprivation hearing satisfies the requirements ofdue process regardless ofthe Patrol' s failure to provide the notice 

### required by RCW 46. 12.725(2).

In City of West Covina v. Perkins, the United States Supreme Court held that, "[ w]hen the police seize property for a criminal investigation ... , due process does not require them to provide the owner with notice of state - law remedies." 525 U.S. 234, 240, 119 S. Ct. 678, 142 L. Ed. 2d 636 ( 1999). The Perkins court acknowledged that "[ i] ndividualized notice that the
officers have taken the property is necessary ... 

### because the property owner would have no other
reasonable means of ascertaining who was responsible for his loss," but held that "[ n] o similar
rationalejustifies requiring individualized notice of state - law remedies ... 

### established by 19No. 45117 - 4 -II

published, generally available state statutes and case law." 525 U.S. at 241. Those state law 

### remedies, including the rightto a hearing to contest the seizure, are set out in RCW 42. 12.725: Thus, regardless ofwhether Hyytinen properly pled a section 1983 claim or named a defendant subject to suit under section 1983, the Patrol' s admitted failure to comply with the notice 

### requirements ofRCW 46. 12.725(2) did not violate the federal due process clause.6 B. State Law Claims Against the Patrol Hyytinen also contends that the trial court abused its discretion in denying his motion to amend his complaint to include a due process claim based on the Washington Constitution. In 

### addition to recasting the federal due process claim discussed above as a state law claim, Hyytinen further contends thatthe Patrol violated his due process rights by refusing to release the vehicle to him, as required 

### by RCW 46. 12. 725( 3), once he presented evidence of lawful 

### ownership. Hyytinen also argues thatthe Patrol' s failure to comply with RCW 46. 12.725' s notice requirements amounted to negligence per se, and that the trial court erred by dismissing 

### this claim on summaryjudgment. Hyytinen further maintains thatthe Patrol violated the statute governing seizure of stolen vehicles " as a matter of law," presenting the same arguments offered in support of his due process claims. Br. ofAppellant at 23 -25. The Patrol counters thatthe trial court did not abuse its discretion in denying Hyytinen' s motion to add a state constitutional claim to his complaint because Hyytinen never contended

6 Hyytinen seeks to distinguish Perkins on the ground that the police seized the property at issue there pursuant to a search warrant, noting that "a seizure of personal property without a warrant is per se unreasonable unless law enforcement has probable cause to believe the property holds contraband or evidence of a crime." 

### Reply Br. ofAppellant at 9 -10. Perkins, however, relied on 

### the presence of "published, generally available state statutes and case law" establishing state -law 

### remedies in holding that individualized notice ofsuch remedies was not required. 525 U.S. at 241. State law remedies here are similarly available. 20No. 45117 - 4 -II
that our constitution' s due process clause offers more protection than the federal equivalent, and 

### the court had already dismissed the federal due process claim. The Patrol further contends that 

### Hyytinen failed to allege any conduct by itthat could give riseto avalid negligence claim. We find the Patrol' s arguments persuasive. As discussed, Hyytinen' s state law claims against the Patrol amount to a negligence claim and a claim based on the due process clause ofthe Washington Constitution and RCW 46. 12.725' s notice requirements. As for the first claim,the negligence cause of action in 

### Hyytinen' s amended complaint did not allege any conduct bythe Patrol at all. The only duty mentioned in his complaint's negligence section is that imposed by the Uniform Controlled 

### Substances Actto notify the rightful owner ofseized property, which duty Hyytinen alleges BPD breached, not the Patrol. Indeed,the only factual allegation anywhere in the complaint against the Patrol is that it "did not provide Mr. Hyytinen with notice or a hearing regarding its intentto
seize the vehicle." CP at 310 -11. 

### Turning to the state due process claim, even underthe most generous interpretation of notice pleading,the complaint cannot be read to give the Patrol notice ofany claim otherthan the federal due process claim we have already rejected. Thus, unless the trial court erred in denying Hyytinen' s motion to amend his complaint to state a due process cause of action under the 

### Washington Constitution and to " clarify" the negligence claim againstthe Patrol, Hyytinen' s arguments fail. C. Motion to Amend Complaint As discussed, we review a trial court' s denial of a motion to amend a pleading for abuse
of discretion. Kwiatkowski, 142 Wn.

### App. at 496. CR 15 provides that "leave shall be freely given" to a party to amend its pleadings " when justice so requires." 

### As noted, delay alone does 21No. 45117 - 4 -II

not necessarilyjustify denial of a motion to amend; instead, "[ t]he touchstone for denial of an
amendment is the prejudice such amendment would cause the nonmoving party." Caruso, 100 Wn.2d at 350. 

### In denying Hyytinen' s motion to amend,the trial court relied on three grounds: 

### Hyytinen's 18 -month delay in seeking to amend, prejudice to the Patrol due to the fact that the motion came afterthe Patrol had already prevailed on its first summaryjudgment motion, and,

most importantly, [ on] the futile nature ofthe proposed amendment." VRP (June 14, 2013) at 13. Specifically, the trial court noted that "[

### t]here is simply no authority forthe proposition that

a state due process claim is any different from a federal due process claim." VRP (June 14, 2013) at 13. 

### Although Hyytinen points outthat state courts may interpret their constitutions to provide greater protections than the United States Constitution, he points to no authority establishing that 

### Washington' s courts have done so in the context ofthe right to notice of state law remedies for 

### seizure ofproperty. Hyytinen's briefing present no Gunwall7 analysis from which we could conclude that our state' s constitution provides greater protection than the federal constitution on 

### this issue, nor does he pointto any statute creating a cause ofaction for a state agency' s failure to 

### complywith RCW 46. 12.725' snotice requirements. Thetrial court did not abuse its discretion in denying Hyytinen' s motion to amend based on its conclusion that amendment ofthe pleadings to include Hyytinen' s state law claims would be futile. 

### As for the negligence claim, Hyytinen does not show any material issue offact as to whether the Patrol' s failure to notify him ofhis right to a hearing proximately caused any

7 See State v. Gunwall, 106 Wn.2d 54, 61 -62, 720 P.2d 808 ( 1,986). 22No. 45117 - 4 -II damages. Hyytinen obtained counsel well before the Patrol disposed ofthe Escalade, and his 

### attorneys presumably informed him ofhis rightto attempt to establish his title to it at a hearing. With that knowledge, the absence ofthe same information from the Patrol would have no effect. 

### Further, the law clearly establishes that Hyytinen had no valid claim againstthe true owner. The relevant U.C. C. provision provides:

A purchaser ofgoods acquires all title which his or her transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. 

### Any entrusting ofpossession ofgoods to a merchant who deals in goods of that kind gives him or her power to transfer all rights ofthe entruster to a buyer in ordinary course ofbusiness. RCW 62A.2 -403. Even ifa court accepted Hyytinen' s argument that he qualified as a " good faith purchaser for value," or that BPD entrusted the Escalade to a merchant who deals in goods ofthe kind, Hyytinen' s claim would fail against the true owner. As a leading treatise explains, When the entruster does not have title to the goods, no title is created in the purchaser from the entrustee 

### by virtue of U.C. C. § 2 - 403. Thus, the purchaser of a 

### stolen automobile does not acquire anytitle eventhoughthe purchaserbuys in good faith from a dealer and a facially valid title certificate had been obtained. 3A LAWRENCE' S ANDERSON ON THE U.C. C. § 2-403: 122, at 711 - 12 ( rev. 3d ed. 2002) (footnotes omitted). 

### Thus, the hearing that the Patrol' s negligence allegedly denied him would have availed Hyytinen nothing. 

### Hyytinen' s remedy lies with the BPD, notthe Patrol. Thetrial court did not abuse its 

### discretion in denying Hyytinen' s motion to amend.his complaint, andthus did not err in dismissing his claims againstthe Patrol. With respectto those claims,we affirm.

23No. 45117 - 4 -II

IV. ATTORNEY FEES 

### Hyytinen requests reasonable attorney fees on appeal. He bases his claim on RCW 69. 50.505(6), 

### which mandates attorney fees to a " claimant [who] substantially prevails" in proceedings under the Uniform Controlled Substances Act' s civil forfeiture provision. Br. of 

### Appellant at 46 -

47. He also claims that " equity would require that in orderto do substantial justice, Mr. Hyytinen should be awarded all fees and costs ofthis suit." Br. ofAppellant at 47. 

### Forthe firsttime in his reply brief,Hyytinen also requests fees from the Patrol under 42 U.S.C.
section 1988(b), 

### which gives courts discretion to award fees to the prevailing party in a section 1983 suit. 

### Hyytinen' s claims based on RCW 69.50.505(6) and 42 U.S. C. section 1988(b) plainly fail: he did not institute this suit under either provision, nor has he prevailed on the claims he 

### based on those provisions. In addition, Hyytinen presents no argument or authority in his 

### opening briefto support his claim for an equitable award ofcosts and reasonable attorneyfees as RAP 18. 1( b) requires. We denythe request. CONCLUSION 

### Genuine issues ofmaterial fact remain as to whether Hyytinen' s contract with the City was voidable based on mutual mistake offact and whether he has met the requirements ofunjust enrichment. Therefore, we reverse summaryjudgment in favor ofthe City on Hyytinen' s unjust enrichment claim and remand to the trial court for adjudication ofthat claim and the related issue ofmutual mistake. We affirm the trial court' s order ofsummaryjudgment on Hyytinen' s other

24No. 45117 - 4 -II
claims against the City and his claims against the Patrol. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed forpublic record in accordance with RCW 2.06.040, it is so ordered.

I concur:

I concur in the result only:

25