COURT C" Ar'j J.MZ 0-V
2013 SEP 23 AM 8: 17
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN WORTHINGTON, No. 68979-7-1
Appellant, DIVISION ONE
v.
CITY OF BREMERTON; CITY OF UNPUBLISHED POULSBO; CITY OF PORT ORCHARD; CITY OF AUBURN; STATE OF FILED: September 23. 2013 WASHINGTON; ROBERT MCKENNA; CHRISTINE GREGOIRE; CARLOS RODRIGUEZ; FRED BJORNBERG; and MIKE POSTON, individually and in their official capacity,
Respondents.
Cox, J. - John Worthington appeals the summary judgment dismissal of
his lawsuit against several municipal and state defendants. Because
Worthington's claims are barred by the statute of limitations, we affirm. On January 12, 2007, the Kitsap County Superior Court issued a warrant
to search Worthington's home for marijuana, drug paraphernalia, and other
specified items. The warrant was executed later that day by law enforcement officers from several different jurisdictions. Detective Roy Alloway of the
Bremerton Police Department and Agent Fred Bjornberg, a Washington State
Patrol (WSP) officer cross-deputized with the federal Drug Enforcement Agency (DEA) were among these officers. Six marijuana plants and a grow light were discovered in Worthington's home. According to Worthington, Detective Alloway No. 68979-7-1/2
stated he did not plan to seize the marijuana plants due to Worthington's status
as a medical marijuana patient. But Agent Bjornberg stated he would confiscate
the plants. The marijuana plants were ultimately placed into evidence at the
Kitsap County Sheriffs Office. Worthington was never charged with a crime.
At the time of the search and seizure, Detective Alloway was assigned to
the West Sound Narcotics Enforcement Team (WestNET), a regional task force
created to combat drug trafficking. Members of WestNET include Mason and
Kitsap Counties, WSP, and the cities of Poulsbo, Port Orchard, and Bremerton.
Agent Bjornberg was assigned to another regional drug task force, the Tahoma
Narcotics Enforcement Team (TNET), whose members include Pierce County,
the cities of Tacoma and Auburn, WSP and the DEA. .
On December 21, 2009, Worthington filed suit against 50 separate
defendants, including the State of Washington, the cities of Bonney Lake,
Bremerton, Port Orchard, Poulsbo, Puyallup, and Tacoma as well as several
elected state officials and law enforcement officers. The gist of Worthington's 70-
page complaint was that the defendants engaged in a conspiracy to "undermine
the state medical marijuana law, by using federal grant contracts, statement of
assurances, regional task force agreements, interlocal agreements, interagency
agreements, and federally cross designated state law enforcement personnel, to
by-pass the affirmative defense in RCW 69.51A.040, and seize Worthington's
medical marijuana on behalf of the DEA and refer cases to the federal courts." In
-2- No. 68979-7-1/3
addition to declaratory and injunctive relief, Worthington alleged federal causes
of action for violations of 42 U.S.C. §§ 1983, 1985 and 1986, the Americans with
Disabilities Act, and the Health Insurance Portability and Accountability Act
(HIPAA). His state law claims included intentional infliction of emotional distress,
negligence, and trespass to land under RCW 4.24.630. The defendants
removed the case to federal district court, which dismissed the complaint for lack
of standing.1
On January 17, 2012, Worthington filed this action against the state of
Washington and the cities of Bremerton, Poulsbo, Port Orchard and Auburn as
well as several elected state officials and law enforcement officers. The basis for
Worthington's complaint was again the 2007 search of his home and seizure of
his marijuana plants. Worthington sought compensatory damages for
negligence, conversion, trespass to land, nuisance, and "breach of duty" under
chapter 69.51 RCW. Worthington also sought declaratory and injunctive relief
regarding "[t]he TNET policy to seize marijuana for the federal government" and
"[t]he WEST NET Interlocal agreement to use the NCIS[2] in Washington State police actions."
1 Worthington v. Washington State Attorney General's Office, No. C10-0118JLR, 2010 WL 1576717 (W.D. Wash. April 20, 2010) (unpublished). 2 NCIS stands for Naval Criminal Investigative Service; it is unclear from the record how the NCIS was involved in Worthington's case.
-3- No. 68979-7-1/4
Worthington and the defendants made cross-motions for summary
judgment. The trial court denied Worthington's motion and granted summary
judgment in favor of the defendants "based on collateral estoppel, res judicata
and a failure to comply with the statute of limitations."
Worthington appeals the order granting summary judgment and the denial
of his motion for reconsideration.
STATUTE OF LIMITATIONS
Summary judgment is appropriate if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.3 The moving
party must demonstrate the absence of any genuine issue of fact and entitlement
to judgment as a matter of law; thereafter, the nonmoving party must show
specific facts evidencing a genuine issue of material fact.4 Our review of
summary judgment is de novo, and we may affirm the order on any theory within
the pleadings and the proof.5 We review a motion for reconsideration for an
abuse of discretion.6
3CR 56(c). 4 Magula v. Benton Franklin Title Co.. Inc.. 131 Wn.2d171, 182, 930 P.2d 307 (1997). 5 Pottery. Washington State Patrol. 165 Wn.2d 67, 78, 196 P.3d 691 (2008). 6 Drake v. Smersh, 122 Wn. App. 147, 151, 89 P.3d 726 (2004).
-4- No. 68979-7-1/5
It is undisputed that the statute of limitations for each of Worthington's
claims is three years.7 Because Worthington filed the present suit more than five
years after the 2007 search and seizure, it is untimely.
Citing the discovery rule, Worthington argues that the statute of limitations
should be tolled due to "acts of fraud which were not discovered until 2011."
Worthington claims that, based on the statement of Agent Bjornberg, he initially
believed that his marijuana plants had been seized by the federal government
and he had no recourse to pursue the recovery of his property in state court.
Worthington asserts that it was not until 2011, in response to his public records
requests, that he discovered that WestNET had actually taken the marijuana
plants and placed them into evidence at the Kitsap County Sheriffs Office.
Under the discovery rule, when there is a delay between an injury and the
plaintiff's discovery of it, a cause of action accrues for purposes of the statute of
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COURT C" Ar'j J.MZ 0-V
2013 SEP 23 AM 8: 17
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN WORTHINGTON, No. 68979-7-1
Appellant, DIVISION ONE
v.
CITY OF BREMERTON; CITY OF UNPUBLISHED POULSBO; CITY OF PORT ORCHARD; CITY OF AUBURN; STATE OF FILED: September 23. 2013 WASHINGTON; ROBERT MCKENNA; CHRISTINE GREGOIRE; CARLOS RODRIGUEZ; FRED BJORNBERG; and MIKE POSTON, individually and in their official capacity,
Respondents.
Cox, J. - John Worthington appeals the summary judgment dismissal of
his lawsuit against several municipal and state defendants. Because
Worthington's claims are barred by the statute of limitations, we affirm. On January 12, 2007, the Kitsap County Superior Court issued a warrant
to search Worthington's home for marijuana, drug paraphernalia, and other
specified items. The warrant was executed later that day by law enforcement officers from several different jurisdictions. Detective Roy Alloway of the
Bremerton Police Department and Agent Fred Bjornberg, a Washington State
Patrol (WSP) officer cross-deputized with the federal Drug Enforcement Agency (DEA) were among these officers. Six marijuana plants and a grow light were discovered in Worthington's home. According to Worthington, Detective Alloway No. 68979-7-1/2
stated he did not plan to seize the marijuana plants due to Worthington's status
as a medical marijuana patient. But Agent Bjornberg stated he would confiscate
the plants. The marijuana plants were ultimately placed into evidence at the
Kitsap County Sheriffs Office. Worthington was never charged with a crime.
At the time of the search and seizure, Detective Alloway was assigned to
the West Sound Narcotics Enforcement Team (WestNET), a regional task force
created to combat drug trafficking. Members of WestNET include Mason and
Kitsap Counties, WSP, and the cities of Poulsbo, Port Orchard, and Bremerton.
Agent Bjornberg was assigned to another regional drug task force, the Tahoma
Narcotics Enforcement Team (TNET), whose members include Pierce County,
the cities of Tacoma and Auburn, WSP and the DEA. .
On December 21, 2009, Worthington filed suit against 50 separate
defendants, including the State of Washington, the cities of Bonney Lake,
Bremerton, Port Orchard, Poulsbo, Puyallup, and Tacoma as well as several
elected state officials and law enforcement officers. The gist of Worthington's 70-
page complaint was that the defendants engaged in a conspiracy to "undermine
the state medical marijuana law, by using federal grant contracts, statement of
assurances, regional task force agreements, interlocal agreements, interagency
agreements, and federally cross designated state law enforcement personnel, to
by-pass the affirmative defense in RCW 69.51A.040, and seize Worthington's
medical marijuana on behalf of the DEA and refer cases to the federal courts." In
-2- No. 68979-7-1/3
addition to declaratory and injunctive relief, Worthington alleged federal causes
of action for violations of 42 U.S.C. §§ 1983, 1985 and 1986, the Americans with
Disabilities Act, and the Health Insurance Portability and Accountability Act
(HIPAA). His state law claims included intentional infliction of emotional distress,
negligence, and trespass to land under RCW 4.24.630. The defendants
removed the case to federal district court, which dismissed the complaint for lack
of standing.1
On January 17, 2012, Worthington filed this action against the state of
Washington and the cities of Bremerton, Poulsbo, Port Orchard and Auburn as
well as several elected state officials and law enforcement officers. The basis for
Worthington's complaint was again the 2007 search of his home and seizure of
his marijuana plants. Worthington sought compensatory damages for
negligence, conversion, trespass to land, nuisance, and "breach of duty" under
chapter 69.51 RCW. Worthington also sought declaratory and injunctive relief
regarding "[t]he TNET policy to seize marijuana for the federal government" and
"[t]he WEST NET Interlocal agreement to use the NCIS[2] in Washington State police actions."
1 Worthington v. Washington State Attorney General's Office, No. C10-0118JLR, 2010 WL 1576717 (W.D. Wash. April 20, 2010) (unpublished). 2 NCIS stands for Naval Criminal Investigative Service; it is unclear from the record how the NCIS was involved in Worthington's case.
-3- No. 68979-7-1/4
Worthington and the defendants made cross-motions for summary
judgment. The trial court denied Worthington's motion and granted summary
judgment in favor of the defendants "based on collateral estoppel, res judicata
and a failure to comply with the statute of limitations."
Worthington appeals the order granting summary judgment and the denial
of his motion for reconsideration.
STATUTE OF LIMITATIONS
Summary judgment is appropriate if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.3 The moving
party must demonstrate the absence of any genuine issue of fact and entitlement
to judgment as a matter of law; thereafter, the nonmoving party must show
specific facts evidencing a genuine issue of material fact.4 Our review of
summary judgment is de novo, and we may affirm the order on any theory within
the pleadings and the proof.5 We review a motion for reconsideration for an
abuse of discretion.6
3CR 56(c). 4 Magula v. Benton Franklin Title Co.. Inc.. 131 Wn.2d171, 182, 930 P.2d 307 (1997). 5 Pottery. Washington State Patrol. 165 Wn.2d 67, 78, 196 P.3d 691 (2008). 6 Drake v. Smersh, 122 Wn. App. 147, 151, 89 P.3d 726 (2004).
-4- No. 68979-7-1/5
It is undisputed that the statute of limitations for each of Worthington's
claims is three years.7 Because Worthington filed the present suit more than five
years after the 2007 search and seizure, it is untimely.
Citing the discovery rule, Worthington argues that the statute of limitations
should be tolled due to "acts of fraud which were not discovered until 2011."
Worthington claims that, based on the statement of Agent Bjornberg, he initially
believed that his marijuana plants had been seized by the federal government
and he had no recourse to pursue the recovery of his property in state court.
Worthington asserts that it was not until 2011, in response to his public records
requests, that he discovered that WestNET had actually taken the marijuana
plants and placed them into evidence at the Kitsap County Sheriffs Office.
Under the discovery rule, when there is a delay between an injury and the
plaintiff's discovery of it, a cause of action accrues for purposes of the statute of
limitations when the plaintiff knew, or in the exercise of due diligence should have
known, the essential elements of the cause of action.8 Courts may apply the
7 RCW 4.16.080. While there is no explicit statute of limitations for claims brought under the Uniform Declaratory Judgments Act, chapter 7.24 RCW, the "right to declaratory relief should be barred when [the] right to coercive relief is barred." City of Federal Way v. King County, 62 Wn. App. 530, 537, 815 P.2d 790 (1991) (citing 15 L. Orland & K. Tegland, Wash. Prac, Trial Practice-Civil § 613 (4th ed. 1986)), superseded by statute on other grounds. 8Crisman v. Crisman. 85 Wn. App. 15, 20, 931 P.2d 163 (1997).
-5- No. 68979-7-1/6
discovery rule where the defendant fraudulently conceals a material fact from the
plaintiff, thereby depriving the plaintiff of knowledge of the accrual of the action.9
But to invoke the discovery rule based on fraudulent concealment or
misrepresentation, a plaintiff must either: (1) affirmatively plead and prove the
nine elements of fraud, or (2) show that the defendants breached an affirmative
duty to disclose a material fact.10 Assuming without deciding that the discovery
rule applies to Worthington's claims, we hold that he fails to meet this burden. As
a result, he fails to identify any genuine issue of fact regarding the application of
the discovery rule to toll the statute of limitations.
Worthington additionally argues that the doctrines of equitable estoppel
and equitable tolling should apply to toll the statute of limitations because "the
defendants pretended to be fully empowered DEA agents acting on behalf of the
federal government" but "that was all a hoax which was purposely withheld for
years." A defendant will be equitably estopped from asserting the statute of
limitations when the defendant's actions have fraudulently, deceptively or in bad
faith induced a plaintiff to delay commencing suit until the statute of limitations
has run.11 But Worthington's bald accusations that Agent Bjornberg
9kL 10 id 11 Del Guzzi Const. Co., Inc. v. Global Northwest. Ltd.. Inc., 105 Wn.2d 878, 885, 719P.2d 120, 124(1986).
-6- No. 68979-7-1/7
misrepresented himself as a federal agent are not supported by the record, and
are consequently insufficient to satisfy the requirements of equitable estoppel.
Because the trial court properly dismissed Worthington's complaint as
untimely, we need not address whether his complaint was also barred by the
principles of res judicata or collateral estoppel.
Worthington also failed to establish any of the grounds under CR 59(a)
justifying a reconsideration of the trial court's order. The court did not abuse its
discretion in denying reconsideration.
We affirm the summary judgment order and the order denying
reconsideration.
UD7^tTt WE CONCUR:
-7-