David Hyytinen, V City Of Bremerton ( 2014 )


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  •                                                                                   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,                                                   No. 45117 -4 -II
    Appellant,
    UNPUBLISHED OPINION
    v.
    CITY OF BREMERTON and the STATE OF
    WASHINGTON,             in     its    capacity   as   legal
    representative of the Washington State Patrol,
    Respondents.
    BJORGEN, A.C. J. —          David Hyytinen appeals the summary judgment orders issued in
    favor of the City of Bremerton (City) and the State of Washington, as legal representative of the
    Washington State Patrol ( Patrol),          concerning a vehicle that the City sold to him. Hyytinen sued
    the City and the Patrol after the Patrol seized as stolen property a vehicle 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 of his 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 summary judgment in favor of Bremerton and the Patrol on the
    grounds that the statute of limitations barred Hyytinen' s contractual claims; Hyytinen' s failure to
    comply with the notice -of c- laim statute and to plead sufficient factual allegations barred the
    fraud and negligence claims; the unjust enrichment claim failed because a contract controlled the
    terms of sale; and no independent cause of action supported the federal due process claim.
    Because genuine issues of material fact remain as to whether Hyytinen' s purchase contract with
    the City was voidable based on mutual mistake of fact and whether he has met the requirements
    of unjust enrichment, we reverse summary judgment in favor of the City on Hyytinen' s unjust
    enrichment claim and remand to the trial court for adjudication of that claim and the related issue
    of mutual mistake. We affirm the trial court' s order of summary judgment 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 of a stipulated settlement
    agreement, and the State of Washington issued a certificate of title naming BPD as the legal
    owner in March 2006.
    Although BPD knew that Shears had two felony convictions for possession of stolen
    property and forgery, it did not check whether the publicly visible vehicle identification number
    VIN), a unique sequence of numbers 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 Wash. 2d 90
    , 93, 
    323 P.3d 1030
    2
    No. 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 of Licensing 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' s VIN inspected by the Patrol. On May 2, the Department
    of Licensing sent Hyytinen a letter informing him that it had cancelled the certificate of
    ownership for the 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 that the 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 summary judgment, the City represented to the trial court that the
    BPD   ran   the VIN through      a   law   enforcement   database,   and   that "[   a] 11 of the information
    available to the City    revealed      that the Escalade was     not stolen."    Clerk' s Papers ( CP) at 340 -41.
    In its brief here, the City repeats these claims. Randy Plumb, the officer who 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 of the
    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 either the public VIN or the 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 brief to omit the erroneous assertions.
    2 Hyytinen apparently did not receive this second letter, which the Department of Licensing sent
    to an address different from that appearing on the first letter.
    3
    No. 45117 -4 -II
    immediately seized the Escalade, informing Hyytinen that it would not return the vehicle to him
    and that he needed to remove his personal property from it and find another way to get home.
    The Patrol concedes that it never notified Hyytinen of the seizure in writing by certified mail, as
    required by the statute authorizing such seizures, or of his right to a hearing at which 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 wanted to 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
    stating various causes of action, including breach of contract, fraud, and unjust enrichment.3
    Hyytinen submitted a tort 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 check the
    Escalade' s VIN prior to selling it and clarifying the contractual claim by alleging breach of the
    implied warranty of good title.
    On September 5, 2012, Hyytinen submitted a tort claim form to the State of Washington,
    informing it that 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 of the Washington State Patrol" as a defendant
    3 Hyytinen also alleged a violation of the Consumer Protection Act, chapter 19. 86 RCW, and an
    unlawful taking, but does not contest the trial court' s dismissal of those claims in this appeal.
    4
    No. 45117 -4 -II
    and adding a cause of action for violation of his federal due process rights by the Patrol. Clerk' s
    Papers ( CP) at 309 -16. Although he later argued that this third amended complaint included a
    negligence claim against the Patrol, its negligence cause of action alleged only the same facts
    underlying his initial negligence claim against the City.
    The City moved for summary judgment, arguing that ( 1) the statute of limitations 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 that the City made any false representation of fact nor that the City knew that the
    Escalade had been       stolen; (   4) Hyytinen' s negligence claim failed as a matter of law because the
    BPD owed Hyytinen no duty to verify Shears' s ownership of the Escalade; and ( 5) Hyytinen' s
    unjust enrichment claim failed as a matter of law because a contract governed his relationship
    with BPD with respect to 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 summary judgment, arguing that Hyytinen' s due process claim
    failed as a matter of law because ( 1) he had no constitutionally protected property interest in the
    Escalade; ( 2) given Hyytinen' s actual notice of the 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 of action for deprivation of a federal right under color of state law, and did not
    name a " person" within the meaning of section 1983 as a defendant. The Patrol also alleged that
    Hyytinen' s claims against it were frivolous and requested an attorney fee award. After hearing
    5
    No. 45117 -4 -II
    argument from Hyytinen and the City, the trial court granted the City' s summary judgment
    motion and dismissed Hyytinen' s claims against it with prejudice.
    The trial court granted summary judgment in favor of the 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 summary judgment 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 of law.
    The trial court ultimately granted the Patrol' s summary judgment motion and dismissed
    Hyytinen' s suit, entering judgment in favor of the Patrol for $200 in statutory attorney fees and
    declining to award reasonable attorney fees. Hyytinen timely appeals.
    ANALYSIS
    Hyytinen contends that the trial court erred in dismissing on summary judgment his
    claims against both the City and the Patrol. After setting forth the relevant standards of review,
    we first address the trial court' s grant of summary judgment to the City, then consider the trial
    6
    No. 45117 -4 -II
    court' s denial of Hyytinen' s motion to amend the complaint and its dismissal of his claims
    against the Patrol.
    I. STANDARD OF REVIEW
    We review a grant of summary judgment de novo and perform the same inquiry as the
    trial court. Macias   v.   Saberhagen Holdings, Inc., 
    175 Wash. 2d 402
    , 407 -08, 
    282 P.3d 1069
    2012); Torgerson     v.   One Lincoln Tower, LLC, 
    166 Wash. 2d 510
    , 517, 
    210 P.3d 318
    ( 2009). A
    court should grant summary judgment only if "the pleadings, depositions, answers to
    interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
    genuine issue as to any material fact and that the moving party is entitled to a judgment as a
    matter of   law." CR 56( c).
    A party moving for summary judgment bears the burden of demonstrating that there is no
    genuine issue of material fact. Atherton Condominium Apartment -Owners Ass 'n Bd. ofDirs. v.
    Blume Dev. Co., 
    115 Wash. 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 Wash. 2d at 516
    . If the
    moving party satisfies its burden, the nonmoving party must present evidence demonstrating that
    a material fact remains in dispute. 
    Atherton, 115 Wash. 2d at 516
    . If the nonmoving party fails to
    do so, and reasonable persons could reach but one conclusion from all the evidence, then
    summary judgment is proper. Vallandigham v. Clover Park Sch. Dist. No. 400, 
    154 Wash. 2d 16
    ,
    26, 
    109 P.3d 805
    ( 2005).
    In determining whether summary judgment 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 Wash. 2d at 26
    ; 
    Atherton, 115 Wash. 2d at 516
    . Thus, we consider the
    record herein the light most favorable to Hyytinen.
    7
    No. 45117 -4 -II
    We review the denial of a motion to amend a pleading for abuse of discretion.
    Kwiatkowski       v.   Drews, 
    142 Wash. App. 463
    , 496, 
    176 P.3d 510
    ( 2008). The relevant court rule
    provides, however, that " leave shall be freely given" to a party to amend its pleadings " when
    justice   so requires."     CR 15( a).    Delay alone does not necessarily suffice to justify 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 v. Local Union No. 690 glint? Bhd. of
    Teamsters, Chauffeurs, Warehousemen & Helpers                    ofAm.,   
    100 Wash. 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 against the City on
    summary judgment because ( 1) the four -year U.C. C. statute of limitations 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 for the first time 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 of the    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 of the Escalade to Hyytinen.
    8
    No. 45117 -4 -I1
    The U.C. C.       statute of       limitations       provides       that "[   a] n action for breach of any contract for
    sale must   be     commenced within               four   years after ...        the breach occurs, regardless of the
    aggrieved   party'    s   lack   of   knowledge          of the   breach." RCW 62A.2 -725. Hyytinen argues that this
    limitations period applies only to the contract, defined as " the total legal obligation that results
    from the   parties'       agreement,"        but   not   to the broader " agreement." Br. of Appellant at 25 -26. His
    brief fails to explain, however, how the duty to deliver the 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
    bad faith. RCW 62A.2- 725( 4)                          that "[ t] his
    equitable   tolling doctrine because               of    BPD'     s                                           specifies
    section   does     not alter   the    law    on   tolling     of the 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 Wash. 2d 583
    , 593, 
    80 P.3d 587
    ( 2003) (                             quoting State v. Duvall, 
    86 Wash. App. 871
    ,
    874, 
    940 P.2d 671
    ( 1997)).
    Hyytinen, however, raises equitable tolling for the 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 Wash. 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
    9
    No. 45117 -4 -II
    further. Hyytinen' s contract claims are barred by the statute of limitations.
    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 either the 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. of Appellant at 29. In his reply brief, Hyytinen argues more
    specifically that he may avoid the contract due to material misrepresentation or mutual mistake
    of fact.
    The City maintains that, so long as a contract governs their relationship, Hyytinen has no
    unjust enrichment claim against           BPD. The       City   contends     that "[ t]he stolen nature of the
    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. of Resp' t (City of Bremerton) at 10.
    Our Supreme Court has characterized the theory of unjust enrichment on which Hyytinen
    relies as a " contract    implied in law"       or " quasi contract."        Young v. Young, 
    164 Wash. 2d 477
    , 484-
    85, 
    191 P.3d 1258
    ( 2008).        The Young court articulated the elements of such 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 Wash. 2d at 484
    -85.   The Young court specified also that
    u] njust enrichment is the method of recovery for the value of the benefit retained absent any
    contractual     
    relationship." 164 Wash. 2d at 484
    ( emphasis added).
    10
    No. 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 Wash. 2d 591
    , 604, 
    137 P.2d 97
    ( 1943) (   Party may not bring an implied contract action relating to the same matter
    covered by a valid express contract when the alleged implied contract is in contravention of the
    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 by the seller
    that ... [ t] he title   conveyed shall   be   good, and    its   transfer   rightful."   This warranty of title is thus
    part of the total legal obligation resulting from Hyytinen' s agreement with BPD, as
    supplemented by the U.C. C. Therefore, the terms of the express contract cover the matter at
    issue here, and, under the rule stated in 
    Chandler, 17 Wash. 2d at 604
    , the existence of a valid
    contract would bar Hyytinen' s unjust enrichment claim.
    Hyytinen argues in his reply brief that his unjust enrichment claim may proceed because
    either a valid contract never formed or the contract was voidable due to mutual mistake. As
    noted, we generally decline to consider issues raised for the first time in a reply brief. Here,
    however, Hyytinen         made   the   following   argument, under         the   heading " No   Valid Contract," in
    opposition to the City' s summary judgment 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.
    11
    No. 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 of the 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) of Contracts
    section   164( 1) ( 1981) explains that
    i]f a party' s manifestation of assent is induced by either a fraudulent or a material
    misrepresentation by the other party upon which the recipient is justified 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 of Yakima, 
    122 Wash. 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 prior to 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 " commonly takes the form of spoken or written words,"
    but   also acknowledges        that "[    a] n assertion may also be inferred from conduct other than 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 of knowledge and ability to investigate" the matter.
    Reply Br. of Appellant at 19 n.8.
    12
    No. 45117 -4 -II
    As discussed above, BPD arguably held itself out as the legal owner of the Escalade.
    However, Hyytinen also admitted that he knew BPD had seized the vehicle. Under these
    circumstances, merely offering an item for sale is not sufficient to qualify as a misrepresentation
    that would require the conclusion that a contract never was formed.
    Hyytinen also invokes the doctrine of mutual mistake of fact. 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 of performances, 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 of materiality is whether the
    contract would     have been   entered   into had the     parties   been   aware of the mistake."   Simonson v.
    Fendell, 
    101 Wash. 2d 88
    , 92, 
    675 P.2d 1218
    ( 1984).              The Restatement illustrates these principles
    with an example involving facts somewhat analogous to those here:
    A, a violinist, contracts to sell and B, another violinist, to buy a violin. 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 of merchantability 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 Wash. 2d at 91
    -92.
    The remedy for mutual mistake is restitution:
    A person who renders performance under a contract that is subject to 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 of fact concerning the seller' s title may make a contract voidable and entitle the buyer to
    restitution. If the contract between Hyytinen and the City were voidable on this basis and if
    13
    No. 45117 -4 -II
    Hyytinen voided it, no express contract would bar Hyytinen' s unjust enrichment claim.
    
    Chandler, 17 Wash. 2d at 604
    .
    Genuine issues of material fact remain as to whether the elements of mutual mistake are
    present. Those issues include, but are not necessarily limited to, whether both parties at the time
    of contracting were mistaken as to a basic assumption on which the contract was made, whether
    that mistake had a material effect on the agreed exchange of performances, and whether
    Hyytinen bears the   risk of   the   mistake.   RESTATEMENT ( SECOND) OF CONTRACTS § 152( 1).
    According to Restatement ( Second) of Contracts section 154, at 402 -03, a party bears the risk of
    a mistake when
    a) the risk is allocated to him by agreement of the 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 by the court on the ground that it is reasonable in the
    circumstances to do so.
    Similarly, genuine issues of material fact are present as to whether Hyytinen meets the
    elements of an 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 Wash. 2d at 484
    -85.
    In sum, issues of material fact remain on Hyytinen' s unjust enrichment claim and on the
    question of mutual mistake, which must be resolved before the unjust enrichment claim may be
    reached. Consequently, the trial court erred in granting the City summary judgment on
    Hyytinen' s claim of unjust enrichment.
    14
    No. 45117 -4 -II
    C.        Tort Claims Against the City
    Hyytinen claims that the trial court erred in dismissing his fraud and negligence claims
    against the City, arguing that the claims raise material questions of fact and that he complied
    with RCW 4. 96. 020' s notice -of c- laim requirements. The City counters that courts require
    s] trict compliance" with the 60 -day notice -of -claim requirement and that Hyytinen failed to
    plead sufficient facts in support of his fraud and negligence claims. Br. of Resp' 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 of claim 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 attempt to rectify that 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 Wash. 2d 18
    , 47, 
    117 P.3d 316
    ( 2005),            superseded by statute on other grounds, Wright v.
    Terrell, 
    162 Wash. 2d 192
    , 195          n. 1,   
    170 P.3d 570
    ( 2007). Thus, the fact that Hyytinen amended his
    complaint more than 60 days after filing the notice of claim 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 four justices signed the majority opinion ofthe court, Justice Ireland' s separate
    opinion agreed with the majority opinion on this point. 
    Bosteder, 155 Wash. 2d at 59
    ( Ireland, J.,
    agree[ d] with the majority except as it holds that the claim filing statute applies to individuals ").
    15
    No. 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 Wash. 2d 345
    , 349, 
    111 P.3d 1173
    ( 2005).
    Where the limitations period has not yet expired, the plaintiff would presumably remain free to
    reinstitute the suit after filing the notice of claim 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 plaintiff had failed to comply with a notice of claim 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 argument that Hyytinen' s tort claims raised no issue of material 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 of fraud " is fatal to recovery."
    Markov       v.   ABC Transfer & Storage Co., 
    76 Wash. 2d 388
    , 395, 
    457 P.2d 535
    ( 1969). The elements
    of   frau d 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 of existing
    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 summary judgment.
    Hyytinen' s   negligence claim presents a closer question. "            The elements of a negligence
    cause of action are the existence of a duty to the plaintiff, breach of the duty, and injury to
    16
    No. 45117 -4 -II
    plaintiff   proximately    caused   by the breach." Hertog, ex rel. S.A.H. v. City ofSeattle, 
    138 Wash. 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 of the seizure; (       2) given what BPD knew about
    Shears and its special knowledge of the confidential VIN system, it breached that duty by not
    comparing the Escalade' s public VIN with the confidential VIN; and (3) that this failure
    proximately caused Hyytinen to pay for a vehicle that would later be seized without
    compensation returned to him.
    The City counters that the duty imposed by RCW 69. 50. 505( 3) runs to persons with an
    ownership interest in the property at the time of seizure, not to a subsequent purchaser of
    forfeited property. The City further contends that BPD fulfilled this 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 property was 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 of the interest of an owner, by reason
    of any act or omission which that owner establishes was committed or omitted without the
    owner' s    knowledge     or consent ").   Because Hyytinen had no interest in the Escalade at the time
    17
    No. 45117 -4 -II
    of the initial seizure, BPD owed him only the duty it generally owes to the public to remove
    stolen property from the stream of commerce. 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 of an obligation owed to the public in general.'
    Taylor   v.   Stevens   County,   
    111 Wash. 2d 159
    , 163, 
    759 P.2d 447
    ( 1988) (      quoting J &B Dev. Co. v.
    King County, 
    100 Wash. 2d 299
    , 303, 
    669 P.2d 468
    ( 1983)).        An exception to the doctrine arises
    where the Legislature enacts legislation for the protection of persons of the plaintiff s class."
    
    Taylor, 111 Wash. 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 a municipality' 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 Wash. 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 under the public duty doctrine. The trial
    court did not err in dismissing his tort claims against the City on summary judgment.
    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 of the exceptions to the public duty doctrine, see Bailey v. Town ofForks, 
    108 Wash. 2d 262
    , 268 -69, 
    737 P.2d 1257
    ( 1987), amended by 
    753 P.2d 523
    ( 1988).
    18
    No. 45117 -4 -II
    consider whether the trial court abused its discretion in denying leave to amend the complaint to
    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 by failing to notify him in writing of his right to 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 of business, 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 owner to
    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 of action for the violation of federal rights under color of state law. On the
    merits of the due process claim, the Patrol counters that, given Hyytinen' s actual notice of the
    seizure, the availability of a readily discoverable procedure for a post- deprivation hearing
    satisfies the requirements of due process regardless of the 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
    rationale   justifies requiring individualized       notice of state -  law    remedies ...   established by
    19
    No. 45117 -4 -II
    published,      generally   available state statutes and case       
    law." 525 U.S. at 241
    .   Those state law
    remedies, including the right to a hearing to contest the seizure, are set out in RCW 42. 12. 725:
    Thus, regardless of whether 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 of RCW 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 that the 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 that the 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 summary judgment. Hyytinen further maintains that the 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. of Appellant at 23 -25.
    The Patrol counters that the 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. of Appellant 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 of such remedies was not 
    required. 525 U.S. at 241
    .    State law remedies here are similarly available.
    20
    No. 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 it that could give rise to a valid 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 of the 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 by the Patrol at all. The only duty
    mentioned in his complaint' s negligence section is that imposed by the Uniform Controlled
    Substances Act to notify the rightful owner of seized 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 intent to
    seize   the   vehicle."      CP at 310 -11.
    Turning to the state due process claim, even under the most generous interpretation of
    notice pleading, the complaint cannot be read to give the Patrol notice of any claim other than 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 against the 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
    21
    No. 45117 -4 -II
    not   necessarily   justify 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 Wash. 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 after the Patrol had already prevailed on its first summary judgment motion, and,
    most     importantly, [ on]    the futile   nature of   the    proposed amendment."        VRP ( June 14, 2013) at
    13.   Specifically,      the trial   court noted   that "[   t]here is simply no authority for the 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 out that 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 of the right to notice of state law remedies for
    seizure of property. 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 point to any statute creating a cause of action for a state agency' s failure to
    comply with RCW 46. 12. 725' s notice requirements. The trial court did not abuse its discretion
    in denying Hyytinen' s motion to amend based on its conclusion that amendment of the pleadings
    to include Hyytinen' s state law claims would be futile.
    As for the negligence claim, Hyytinen does not show any material issue of fact as to
    whether the Patrol' s failure to notify him of his right to a hearing proximately caused any
    7 See State v. Gunwall, 
    106 Wash. 2d 54
    , 61 -62, 
    720 P.2d 808
    ( 1,986).
    22
    No. 45117 -4 -II
    damages. Hyytinen obtained counsel well before the Patrol disposed of the Escalade, and his
    attorneys presumably informed him of his right to attempt to establish his title to it at a hearing.
    With that knowledge, the absence of the same information from the Patrol would have no effect.
    Further, the law clearly establishes that Hyytinen had no valid claim against the true
    owner. The relevant U.C. C. provision provides:
    A purchaser of goods 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 of possession of goods to a merchant who deals in goods of
    that kind gives him or her power to transfer all rights of the entruster to a buyer in
    ordinary course of business.
    RCW 62A.2 -403. Even if a 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
    of the 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       by virtue of U.C. C. § 2 -403. Thus, the purchaser of a
    entrustee
    stolen automobile does not acquire any title even though the purchaser buys 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, not the Patrol. The trial court did not abuse its
    discretion in denying Hyytinen' s motion to amend.his complaint, and thus did not err in
    dismissing his claims against the Patrol. With respect to those claims, we affirm.
    23
    No. 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 order to do substantial
    justice, Mr. Hyytinen      should   be   awarded all   fees   and costs of   this   suit."   Br. of Appellant at 47.
    For the first time 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 brief to support his claim for an equitable award of costs and reasonable attorney fees as
    RAP 18. 1( b) requires. We deny the request.
    CONCLUSION
    Genuine issues of material fact remain as to whether Hyytinen' s contract with the City
    was voidable based on mutual mistake of fact and whether he has met the requirements of unjust
    enrichment. Therefore, we reverse summary judgment in favor of the City on Hyytinen' s unjust
    enrichment claim and remand to the trial court for adjudication of that claim and the related issue
    of mutual mistake. We affirm the trial court' s order of summary judgment on Hyytinen' s other
    24
    No. 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, but will be filed for public record in accordance with RCW 2. 06.040,
    it is so ordered.
    I concur:
    I concur in the result only:
    25