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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOSEPH N. D’AMICO, FORT CASE NO. 20-5253 RJB 11 DISCOVERY CORP., a Washington corporation, SECURITY SERVICES ORDER ON DEFENDANT 12 NORTHWEST, INC., a Washington ROBERT GEBO’S MOTION FOR corporation, SUMMARY JUDGMENT 13 Plaintiffs, 14 v. 15 JEFFERSON COUNTY, a Washington County, DAVID STANKO, ROBERT 16 GEBO, KATHLEEN KLER, DAVID SULLIVAN, KATE DEAN, GREG 17 BROTHERTON, 18 Defendants.
19 This matter comes before the Court on Defendant Robert Gebo’s Motion for Summary 20 Judgment (Dkt. 54) and his motion to strike (Dkt. 67). The Court has considered the pleadings 21 filed regarding the motions and the file herein. 22 This case arises over a Plaintiff Joseph D’Amico and his companies’ - Security Services 23 Northwest, Inc. (“SSNW”) and Fort Discovery Corp. - operation of a gun range in Jefferson 24 1 County, Washington on property commonly known as “Fort Discovery.” Dkt. 1. Defendant 2 Gebo, a special investigator with the Jefferson County Sherriff’s Office, now moves for 3 summary judgment dismissal of the claims asserted against him. Dkt. 54. For the reasons 4 provided below, the motion (Dkt. 54) should be granted and the claims asserted against him 5 dismissed.
6 I. RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY 7 A. RELEVANT BACKGROUND FACTS 8 Prior to 1992, Plaintiff D’Amico, through Plaintiff SSNW, ran a security services 9 business on the subject property which it leased from a third person who is not a party in this 10 lawsuit. Dkt. 61-1, at 5. The use of the property became the subject of a land use dispute, and a 11 Washington State Court of Appeals Division II decision found that in 1992, when Jefferson 12 County enacted a zoning code, “its provisions for use of the land that SSNW had been leasing for 13 its operations clashed with SSNW’s ongoing business, particularly when SSNW expanded its 14 operations to include a paramilitary training base with increased use of its firing ranges and other
15 facilities.” Sec. Servs. Nw., Inc. v. Jefferson Cty., 156 Wn. App. 1008 (2010). 16 By way of background to that litigation, Plaintiff D’Amico states that in 2004, he 17 attempted to apply for a building permit to add a bunkhouse and classroom to the shooting range. 18 Dkt. 61, at 4. He asserts that his application was refused, but that he built the buildings anyway 19 in the spring of 2005. Id. The Plaintiff maintains that a group of property owners across 20 Discovery Bay from the shooting range, formed a group called “Discovery Bay Alliance,” and 21 made several noise complaints about the activities on the property. Id. In July and August of 22 2005, Defendant Jefferson County issued stop work orders. Id. Plaintiff D’Amico and the 23 County then engaged in lengthy state court and administrative proceedings, which included at 24 least two decisions from the Washington State Court of Appeals Division II. Security Services 1 Northwest Inc., v. Jefferson County, 144 Wn.App. 1002 (2008) and Sec. Servs. Nw., Inc. v. 2 Jefferson Cty., 156 Wn. App. 1008 (2010). This case is intertwined with these prior proceedings, 3 and so the procedural history of those matters will be recounted here as provided in the 2010 4 Washington State Court of Appeals Division II decision Sec. Servs. Nw., Inc. v. Jefferson Cty., 5 156 Wn. App. 1008 (2010):
6 In 2005 Jefferson County issued stop work orders to [SSNW] after receiving several noise complaints and learning that SSNW had constructed several 7 unpermitted buildings and was conducting military special forces weapons training on its property, which at the time was zoned as rural residential. SSNW 8 appealed the County's enforcement orders to the County's hearing examiner, arguing that its activities were protected as a nonconforming use. 9 The hearing examiner disagreed, ruling that SSNW had no legal prior 10 nonconforming use rights as of January 6, 1992, because SSNW had violated the building code when it constructed three new buildings without the required 11 permits. While awaiting the hearing examiner's ruling, the Jefferson County Superior Court granted the County's request for a temporary restraining order as 12 well as preliminary injunction against SSNW.
13 SSNW filed a [Land Use Petition Act] appeal in Kitsap County Superior Court, asserting that the hearing examiner had erred in finding no prior legal 14 nonconforming uses. The superior court ruled that (1) the County's land use enforcement actions were valid; (2) the hearing examiner had erred in denying 15 that SSNW had established any legal prior nonconforming use; and (3) by 1992, SSNW had established a limited nonconforming use by virtue of its predecessor's 16 security services on the site. The superior court also ruled, however, that most of the challenges raised by SSNW are without merit. The superior court affirmed (1) 17 the hearing examiner's decision to uphold the County's stop work orders, concluding that the hearing examiner did not err in finding that the stop work 18 orders were properly issued by the County, and that proper procedure was followed by the County in its enforcement actions, and (2) the hearing examiner’s 19 ruling that SSNW had no legal nonconforming rights to use the property for its post–1992 expanded security services business. In essence, the superior court 20 found that the County's land use enforcement actions related only to SSNW's clearly illegal post–1992 activities, especially the erection of buildings without 21 permits and on-site training of third parties.
22 The superior court remanded for another hearing to determine the scope of SSNW's nonconforming use as of January 6, 1992, when the County enacted the 23 zoning code that rendered SSNW's later uses illegal. The purpose of this hearing was to establish the use which may be made of the property by SSNW following 24 the Examiner's modified decision. In the meantime, the superior court ordered 1 that the temporary restraining order and the preliminary injunction would remain in effect pending the Hearing Examiner's final decision. SSNW appealed. 2 Affirming the superior court on appeal, [Washington Court of Appeals Division 3 II] similarly reversed the hearing examiner's decision that SSNW had no legal prior nonconforming use rights as of January 6, 1992 . . . [and] affirmed the 4 superior court's ruling that SSNW had limited nonconforming use rights as of January 6, 1992, which were properly limited to its pre–1992 activities. [It] held 5 that (1) neither the hearing examiner nor the superior court erred in concluding that SSNW's current activities constituted an impermissible expansion of its pre– 6 1992 uses and (2) SSNW has not lost any vested property right. [It] also noted, however, that the record was insufficient to show SSNW's activities as of 1992 7 and its subsequent potentially legal intensification of those previously existing activities. Expanding the scope of the trial court's remand order, [it] remanded for 8 a new hearing to determine the boundaries of SSNW’s nonconforming use rights and to consider additional evidence on intensification of pre–1992 uses. 9 On remand, the parties stipulated that SSNW's pre–1992 security services 10 business included the following components as of January 6, 1992: armed and unarmed site security; armed and unarmed armored car security; armed and 11 unarmed K–9 detection and tracking; security alarm installation, monitoring, and security response; dispatching services, including armed and unarmed security 12 guards; security service training for employees; armed and unarmed land patrol; and armed and unarmed maritime patrol. The parties also stipulated that these 13 pre–1992 security services activities used the old Gunstone farm house for offices, a conference room, and living accommodations but that three new 14 buildings SSNW erected without permits in 2005 to provide new accommodations were not preexisting nonconforming uses. 15 On July 27, 2009, a new hearing examiner ruled on remand that SSNW's pre– 16 1992 nonconforming uses consisted of armed and unarmed site security . . . and alarm installation and monitoring. The hearing examiner also ruled that since 17 1992, SSNW had lawfully intensified the following prior nonconforming uses: unlimited increase in the number of off-site employees . . . and use of a dock for 18 marine security training.
19 The hearing examiner further concluded that the following were either unlawful post–1992 expansions or uses that had not occurred before 1992: more than 18 20 armed and unarmed security personnel working on or from the site and needing weapons training; third-party use of or training at the shooting ranges; and use of 21 helicopters for training or surveillance.
22 Sec. Servs. Nw., Inc. v. Jefferson Cty., 156 Wn. App. 1008 (2010). 23 24 1 According to the Plaintiff, after five years of expensive litigation, Defendant Jefferson 2 County did not attempt to shut his gun range down again for several years and so, he continued 3 operations. Dkt. 61, at 5. 4 In November of 2014, Defendant David Stanko was elected as Jefferson County Sheriff 5 for his first term. Dkt. 61. He served as sheriff for a four-year term. Id.
6 In 2015, Defendant Jefferson County passed a Noise Control Ordinance. Jefferson 7 County Code (“JJC”) 8.70. Enforcement of the Noise Control Ordinance “is the responsibility of 8 the Jefferson County Sheriff,” JCC 8.70.303, and penalties escalate: a warning is to be issued 9 first, then a civil infraction, and then if there is no compliance, a criminal charge can be filed 10 with the possibility of a fine or 90 days in jail, JCC 8.70.70(1)(a)-(c). A “lawful discharge of 11 firearms” is not considered a violation of the ordinance. JCC 8.70.060(18). 12 Plaintiff D’Amico points to various emails he states that he acquired from a public 13 records request that show that Sheriff Stanko was receiving emails from people in the 14 community complaining about noise out at Fort Discovery. Dkt. 61. Plaintiff D’Amico points
15 out that Sheriff Stanko had to run for re-election in 2018. Id. 16 According to Joseph Nole, Jefferson County’s undersheriff at the time, in January 2017, a 17 group of people came to the department to see the Sheriff and discuss the activities going on out 18 at Fort Discovery. Dkt. 62-1, at 27. (Undersheriff Nole was elected as sheriff in November of 19 2018, beating Sheriff Stanko; Nole is the current sheriff). Id. Undersheriff Nole states that he got 20 “pulled” into the meeting. Id. He states the visitors gave him copies of 2009 and 2010 court 21 orders related to SSNW and discussed their theory that there are people shooting illegally out on 22 the Fort Discovery property (because of the 2009 and 2010 court orders limiting who can shoot 23 out there) and so the noise ordinance was being broken. Id. at 27-28. Intrigued by the idea, 24 Undersheriff Nole states that he conferred with Michael Hass, the Jefferson County Prosecuting 1 Attorney, and David Alvarez, the chief civil attorney, and asserts they told him “they wouldn’t 2 do anything” even if he came up with anything to send them. Id., at 28. Feeling it was “kind of 3 a civil matter,” he told Sheriff Stanko that he didn’t think it was something they should get 4 involved with – that it might lead to litigation. Id. Nole states that prior to Sheriff Stanko’s 5 tenure, the department had a policy of not responding to complaints of noise coming from Fort
6 Discovery. Dkt. 62-1, at 30. According to Nole, the complaints were recorded but the 7 department took no action on them. Id. He states that he does not know why prior sheriffs did 8 not act on the noise complaints regarding Fort Discovery. Id. 9 Soon after undersheriff Nole indicated that he did not think they should get involved, 10 sometime in late January 2017, Sheriff Stanko assigned Defendant Gebo (the moving party here) 11 to investigate who was using the facilities at Fort Discovery. Dkt. 62-1, at 6. (In January 2017 12 to April 2017, Defendant Gebo, who was retired from the Seattle Police Department, was a paid 13 part-time special investigator for the Jefferson County Sheriff’s Department. Dkt. 62-1, at 3-4. 14 After he realized he couldn’t continue to be paid for that position as well as being a Jefferson
15 County Civil Service Commissioner, he continued on with the department as a volunteer. Id.) In 16 any event, Defendant Gebo states that Sheriff Stanko gave him copies of 2009 and 2010 court 17 orders relating to SSNW and told him to investigate whether “any of those things that . . . Fort 18 Discovery was not supposed to be doing were actually happening.” Id. Sheriff Stanko also gave 19 Gebo a printout purportedly from Fort Discovery’s website listing “satisfied customers.” Dkt. 20 55, at 3. 21 Defendant Gebo states that he began contacting, by phone and by email, the U.S. Coast 22 Guard, the Federal Bureau of Investigation, the U.S. Customs & Border Protection, the 23 Washington State Patrol, the Kitsap County Sheriff’s Office, and the Clallam County Sheriff’s 24 1 Office, “to see if they used the facilities out at Fort Discovery,” and if so, how they used the 2 facilities. Dkt. 62-1, at 4-5. 3 For example, on March 14, 2017, Defendant Gebo emailed the Captain Chris Old at the 4 Washington State Patrol: 5 Captain Old – Sheriff Stanko suggested I contact you regarding your knowledge of WSP’s involvement in range training, SWAT and sniper training, 6 bomb disposal and post-blast investigation training that may have occurred on property known as “Fort Discovery” in Jefferson County since 2009. 7 By way of explanation [SSNW] is owned and operated by Mr. Joe D’Amico providing private security services as well as a large range area which 8 has been used by local and federal police agencies for firearms, SWAT, sniper and related training. The range and related structures are known as “Fort 9 Discovery.” In 2009 a court order was issued strictly limiting the range and related 10 operations and disallowing any “third party” training at the facility. It is alleged that the court order has been largely ignored through the years as agencies and 11 groups of agencies have used the facility for live fire range training, sniper training, helicopter operations, and other related operational training. 12 We are interested in determining if any members of the Washington State Patrol, in groups or individually, have been involved in any training operations at 13 Fort Discovery since 2009. It is quite likely that the attendees and their agencies had no knowledge of the preexisting court order. 14 Dkt. 61-1, at 38. In an email a few days later with another person at the Washington State Patrol, 15 Gebo acknowledges that, “[f]or a variety of reasons these alleged violations of the prior court 16 order have been largely ignored by law enforcement and the Jefferson County Prosecutor’s 17 Office even though the owners of neighboring properties have repeatedly reported and 18 complained. That situation has recently changed.” Id., at 39. 19 By way of further example, on March 20, 2017, Gebo emailed the United States Coast 20 Guard: 21 Lt. Comdr. Bor – I hope I am addressing this request for information to the 22 proper place. The Jefferson County Sheriff’s Office and the Jefferson County 23 Prosecuting Attorney’s Office are interested in knowing specific dates and times number of USCG personnel types of weapons and amount of ammo fired fees 24 paid and copies of contracts related to the Coast Guard using a range and training 1 facility known as “Fort Discovery” in Jefferson County Washington since 2009. This request for information should be considered an official request for 2 information under the Freedom of Information Act. By way of background, in 2009, Jefferson County filed a lawsuit against 3 [SSNW] the owners and operators of Fort Discovery alleging the operation violated several building and land use codes. A lengthy court battle ensued with 4 the case being heard by the Washington State Court of Appeals which remanded the case back to the county. The result of the court action was an order directing 5 SSNW to roll their activities back to the level they were involved in in 1992 and that no “third party training” should occur at Fort Discovery. 6 Since that time SSNW has largely ignored the existence of this court order as large numbers of local state and federal agencies have used the range and 7 related facilities for training and weapons qualification. For a variety of reasons repeated complaints and reports by concerned neighbors and citizens were also 8 largely ignored. That situation has recently changed. The matter is likely headed for additional hearings in court. It is widely 9 accepted the agencies using the facilities at Fort Discovery were not aware of the 2009 court order. There is no date set for any court hearing(s) but your prompt 10 response is appreciated. If you should have any questions regarding this request for information please contact me. 11 Id., at 41. Gebo sent a similar email to the Kitsap County Sheriff’s Office (Dkt. 61-1, at 42) and 12 the Department of Homeland Security (Dkt. 61-1, at 53). 13 According to Gebo, several of the witnesses he contacted asked him “if their 14 agency/organization should continue to use the range facilities at Fort Discovery. In each of 15 those inquiries [his] answer was that the situation was likely headed for additional court hearings 16 and that they should make their own decision as to what they, or their agency, should do.” Dkt. 17 55, at 4. 18 Plaintiff D’Amico states that he had a Facebook news page and that he criticized Sheriff 19 Stanko on it. Dkt. 61, at 3. He asserts that on March 2, 2017, he posted on Facebook about his 20 view that Sheriff Stanko was responsible for a death in the jail. Id. 21 Over the next several months, through his investigation, Gebo learned that several 22 agencies had paid to use Fort Discovery’s gun ranges after 2009 and 2010. Dkt. 55, at 3. On 23 June 26, 2017, Sheriff Stanko emailed Gebo and asked him to tell CORPES, a retired law 24 1 enforcement group of which Gebo was a member, that Sheriff Stanko did not “endorse nor 2 support any [weapons] qualifying at Fort Discovery until court order is complied with in full. 3 Please tell them no qualifying at Fort Discovery.” Dkt. 61-1, at 26. 4 Defendant Gebo met with Phil Hunsucker, a Jefferson County prosecutor, regarding the 5 status of his investigation of Fort Discovery. Dkt. 62-1, at 11. On August 31, 2017, Gebo
6 received an email from Sheriff Stanko that states that “Phil Hunsucker would like us to carry the 7 investigation one step further . . . could you inquire with the Revenue folks.” Dkt. 61-1, at 51. 8 Gebo contacted the Washington Department of Revenue about Fort Discovery particularly after 9 noticing that one of the receipts sent to him by “Valley Swat” for services out at Fort Discovery 10 did not include any tax charges. Dkts. 55, at 5; and 61-1, at 17. Further, Gebo states that he was 11 asked by the Jefferson County Prosecutor’s Office to investigate whether those who used Fort 12 Discovery were also being served meals for possible health code violations. Dkt. 62-1, at 13. 13 Under Washington Administrative Code 246-215-08600(1), it is a misdemeanor to operate a food 14 establishment without a permit. Jefferson County has incorporated the Washington Department of
15 Health’s Food Services Code. JCC 8.05.020. 16 Gebo states that he did not make the charging decisions; he conducted the investigation 17 and turned the information he found over to the prosecutor. Dkt. 55, at 4-5. He also states he did 18 not take any enforcement action, seek a search warrant, or arrest anyone. Id. 19 According to Plaintiff D’Amico, Gebo’s contacts with his customers “drove them off.” 20 Dkt. 61, at 14. By way of example, he points to a May 17, 2017 email from the U.S. Coast 21 Guard indicating that it would not use his facility until the legal issues are resolved. Id. Plaintiff 22 D’Amico states that the following customers of the facility from 2000-2016 never returned: 23 divisions of the U.S. Coast Guard, divisions of the U.S. Customs and Border Protection, 24 divisions of the U.S. Department of Homeland Security, “Valley Swat,” and Washington State 1 Parks Police. Id. According to the Second Amended Complaint, the Plaintiffs’ landlord evicted 2 them in September of 2017. Dkt. 37, at 10. 3 The Second Amended Complaint makes claims against Defendant Gebo for violations of 4 Washington’s Consumer Protection Act, RCW 19.86, et. seq., tortious interference with a 5 business expectancy, and for civil conspiracy. Dkt. 37.
6 B. PROCEDURAL HISTORY 7 On June 4, 2020, Defendants Jefferson County Board of Commissioners Kathleen Kler, 8 David Sullivan, Kate Dean, and Greg Brotherton moved for summary judgment dismissal of the 9 42 U.S.C. § 1983 claims asserted against them, arguing that they were entitled to absolute 10 immunity from a suit brought against under 42 U.S.C. § 1983 for their legislative activities. Dkt. 11 19. Their motion was granted and those parties, except Defendant Kler, were dismissed. Dkt. 12 36. The parties stipulated to the dismissal of the additional claims made against Defendant Kler 13 and she was dismissed. Dkt. 50. 14 Defendant Gebo now moves for summary judgment dismissal of all claims made against
15 him. Dkt. 54. The Plaintiffs respond and oppose the motion. Dkt. 60. Defendant Gebo has 16 replied and moves to strike portions of the Plaintiffs response. Dkt. 67. The motions are ripe for 17 consideration. This opinion will first consider Defendant Gebo’s motion to strike (Dkt. 67) and 18 then his motion for summary judgment (Dkt. 54). 19 II. DISCUSSION 20 A. MOTION TO STRIKE 21 Defendant Gebo moves to strike portions of the Plaintiffs’ response which points to evidence 22 that is either not in the record or does not support Plaintiffs’ contentions. Dkt. 67. 23 The motion to strike should be denied without prejudice. While the Court recognizes that 24 some of the Plaintiffs’ claims are not supported by the citation to the record they provide or is 1 not in the record, a motion to strike is not necessary. The Court is able to separate fact from 2 supposition. 3 B. SUMMARY JUDGMENT STANDARD 4 Summary judgment is proper only if the pleadings, the discovery and disclosure materials 5 on file, and any affidavits show that there is no genuine issue as to any material fact and that the
6 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). The moving party is 7 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 8 showing on an essential element of a claim in the case on which the nonmoving party has the 9 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 10 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 11 for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 12 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some 13 metaphysical doubt.”). See also Fed. R. Civ. P. 56 (d). Conversely, a genuine dispute over a 14 material fact exists if there is sufficient evidence supporting the claimed factual dispute,
15 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty 16 Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors 17 Association, 809 F.2d 626, 630 (9th Cir. 1987). 18 The determination of the existence of a material fact is often a close question. The court 19 must consider the substantive evidentiary burden that the nonmoving party must meet at trial – 20 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 21 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 22 of the nonmoving party only when the facts specifically attested by that party contradict facts 23 specifically attested by the moving party. The nonmoving party may not merely state that it will 24 discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial 1 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). 2 Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not 3 be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 4 C. CLAIM UNDER WASHINGTON’S CPA 5 Washington’s CPA was enacted to protect the public from “unfair or deceptive acts or
6 practices in the conduct of any trade or commerce.” Indoor Billboard/Washington, Inc. v. 7 Integra Telecom of Washington, Inc., 162 Wn.2d 59, 73, 170 P.3d 10, 17 (2007)(quoting RCW 8 19.86.020). To make a CPA claim, “a plaintiff must establish five distinct elements: (1) unfair or 9 deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) 10 injury to plaintiff in his or her business or property; (5) causation.” Hangman Ridge Training 11 Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 780 (1986); Keodalah v. Allstate 12 Insurance Co., 194 Wash.2d 349, 349-350 (2019). 13 The Plaintiffs’ claims against Defendant Gebo for violations of the CPA should be 14 dismissed. The Plaintiffs have failed to point to issues of fact on the first and second elements,
15 that Defendant Gebo engaged in a “deceptive act or practice occurring in trade or commerce.” 16 Defendant Gebo was investigating potential violations of the county code. The Plaintiffs have 17 failed to demonstrate that Defendant Gebo’s emails or phone calls were deceptive. While he 18 appears to commit scrivener’s errors in his emails occasionally, pointing to a 1992 court order 19 rather than the 2009 hearing examiner’s decision, for example, and indicates that hearings may 20 occur, the Plaintiffs fail to show that these were deceptive statements. 21 Defendant Gebo’s motion for summary judgment dismissal of the CPA claim (Dkt. 54) 22 should be granted. This claim should be dismissed. 23 24 1 D. CLAIM FOR TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY 2 In order to make a claim for tortious interference with a contractual relationship or business 3 expectancy, a Washington plaintiff must prove five elements: 4 (1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference 5 inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and 6 (5) resultant damage.
7 Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 350 (2006). 8 The claim for tortious interference with a business expectancy asserted against Defendant 9 Gebo should be dismissed. The Plaintiffs have failed to point to issues of fact on the fourth 10 element, that he “interfered for an improper purpose or used improper means.” Pac. Nw. 11 Shooting Park, at 350. The Plaintiffs assert that Defendant Gebo “induced the breach of Fort 12 Discovery’s contracts for political purposes.” Dkt. 60. The Plaintiffs then go on to discuss 13 political pressure, that in the Plaintiffs’ view, Sheriff Stanko was operating under. There is no 14 evidence that Gebo was motivated by a political purpose. 15 The Plaintiffs argue that the Jefferson County Sheriff’s Office does not enforce building 16 or land use code violations and so maintain that this was an improper investigation. The 17 Plaintiffs fail to acknowledge that this was not a building or land use code violation 18 investigation. Under Washington law, county sheriff’s and their deputies enforce the laws of 19 their counties and investigate potential violations of the law. RCW 36.28.010, 38.28.011, and 20 36.28.020. The Plaintiffs’ fail to acknowledge that the sheriff and his appointed representative, 21 Defendant Gebo, had jurisdiction to investigate potential criminal violations of the noise 22 ordinance, health codes, or tax laws. The noise ordinance excluded legal discharges of firearms; 23 conversely, the illegal discharge of firearms was covered by the noise ordinance. Despite the 24 Plaintiffs’ expert’s assertion that the investigation was a fishing expedition, the Plaintiffs fail to 1 point to any evidence that Gebo’s investigating was done for an improper purpose. Likewise, 2 their contention, that Gebo’s use of county resources to contact Fort Discovery’s customers was 3 improper because the investigation was inappropriate, fails. The Plaintiffs have failed to point to 4 evidence that Gebo’s investigation was for an improper purpose or by improper means, 5 accordingly, they have failed to show that his use of county resources to conduct the
6 investigation was tortious. 7 Defendant Gebo’s motion for summary judgment dismissal of the tortious interference 8 with a business expectancy claim (Dkt. 54) should be granted. This claim should be dismissed 9 with prejudice. 10 E. CLAIM FOR CIVIL CONSPIRACY 11 Under Washington law, “[a] conspiracy is a combination of two or more persons who 12 contrive to commit a criminal or unlawful act, or to commit a lawful act for criminal or unlawful 13 purposes.” Adams v. King County, 164 Wash.2d 640, 660 (2008)(internal citation omitted). For 14 there to be a conspiracy, Plaintiff must allege that the Defendants “entered into an agreement of
15 some kind with the other conspirators to accomplish the object of the conspiracy.” John Davis & 16 Co. v. Cedar Glen # Four, Inc., 75 Wash.2d 214, 223, (1969). 17 The Plaintiffs claim for civil conspiracy against Defendant Gebo should be dismissed. 18 The Plaintiffs have failed to point to issues of material fact that supports the existence of an 19 agreement that Defendant Gebo and another entered into “to commit a criminal or unlawful act,” 20 or to “commit a lawful act for criminal or unlawful purposes.” Adams, at 660. Defendant Gebo 21 was investigating possible violations of the county noise ordinance, tax laws and health codes at 22 the direction of the Sheriff and county prosecutor. 23 Defendant Gebo’s motion for summary judgment dismissal of the civil conspiracy claim 24 (Dkt. 54) should be granted. This claim should be dismissed with prejudice. 1 F. CONCLUSION 2 Defendant Gebo’s motion should be granted (Dkt. 54) and all claims asserted against him 3 should be dismissed. The Court need not reach Defendant Gebo’s remaining arguments for 4 dismissal. 5 III. ORDER
6 Therefore, it is hereby ORDERED that: 7 Defendant Robert Gebo’s motion to strike (Dkt. 67) IS DENIED WITHOUT 8 PREJUDICE; 9 Defendant Robert Gebo’s Motion for Summary Judgment (Dkt. 54) IS 10 GRANTED; and 11 The claims asserted against Defendant Robert Gebo ARE DISMISSED WITH 12 PREJUDICE. 13 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 14 to any party appearing pro se at said party’s last known address.
15 Dated this 1st day of February, 2021. A 16
17 ROBERT J. BRYAN 18 United States District Judge
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