Segura v. Cabrera

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JOSE SEGURA and TABETHA GONZALEZ, ) ) No. 90088-4 Petitioners, ) ) v. ) ) EnBanc ROGACIANO and RAQUEL CABRERA, ) ) Respondents. ) Filed: OCT 2 9 2015

MADSEN, C.J.-RCW 59.18.085 of the Residential Landlord-Tenant Act of 1973

(RL TA), which is intended to provide relocation assistance to tenants, does not allow

recovery for emotional distress. The statute's plain language and its stated purpose

compel this result. The trial court and the Court of Appeals were correct in so

determining. We affirm.

FACTS

Rogaciano and Raquel Cabrera bought a house in Pasco, Washington, in 2007. In

2011, they obtained a license from the city to rent the house as a single residential unit.

Contrary to the license, the Cabreras rented the upstairs and the basement as separate

apartments. No. 90088-4

On July 3 ~ 2011, the Cabreras leased the basement to Jose Segura and Tabetha

Gonzalez (collectively Segura) for a year's term. Segura paid $600 for the first month's

rent, $600 for a rental security deposit, and $150 as a deposit for electric utility service.

Five days later, the city of Pasco Code Enforcement Office inspected the property and

found that the Cabreras had converted the single family dwelling into a duplex without a

permit and that the basement unit was uninhabitable. Accordingly, the city ordered

Segura to vacate the premises within 20 days.

Segura sought compensation from the Cabreras. On July 14, Segura gave the

Cabreras a written demand for refund of prepaid deposits and rent and for monetary

relocation assistance, as provided by RCW 59.18.085(3). The Cabreras did not respond

to the letter. Mr.: Cabrera later stated in a deposition that he ignored it because an

attorney told him "there was no problem." 1 Clerk's Papers (CP) at 115-16.

On July 19, the Cabreras gave Segura a notice to vacate by August 7, 20 11.

Segura claimed that after sending the demand letter but before this move-out deadline,

Mr. Cabrera entered the unit without notice, changed the locks, removed some of

Segura's personal property, and tried to have Segura's car towed from the property.

Segura sued the Cabreras on July 26 for damages under the RL TA. The Cabreras

filed an answer, alleging, as the only affirmative defense, that"[ d]efendant had no

knowledge it was illegal." CP at 199.

1 The Cabreras have appeared prose throughout the proceedings. They have, however, submitted no responsive briefing in the Court of Appeals or in this court. The Rental Housing Association of Washington submitted an amicus brief supporting the Cabreras.

2 No. 90088-4

On June 22, 2012, Segura moved for summary judgment, seeking $1,200.00 for

the first month's prepaid rent and the security deposit, $150.00 for the utility deposit,

$2,000.00 in relocation assistance, $200.00 in gas expenses related to moving into a new

home, $1,000.00 in emotional distress damages, 2 and $5,209.55 in attorney fees and

costs.

The trial court granted Segura's motion for summary judgment but rejected the

request for emotional distress damages, concluding they were not recoverable under

RCW 59.18.085(3). The court denied Segura's motion for reconsideration, reasoning,

"The relationship of the parties arises from a contract to lease real property. The

misconduct on the part of the landlord was intentional but it is not an intentional tort.

The damages are limited to those identified in the statute RCW 59.18.[0]85(3)." CP at

12.

The Court of Appeals affirmed the denial of emotional distress damages in a

published, split decision. Segura v. Cabrera, 179 Wn. App. 630, 319 P .3d 98, review

granted, 181 Wn.2d 1006, 332 P.3d 985 (2014). Relying on this court's opinion in White

River Estates, the majority in the Court of Appeals held that emotional distress damages

were not recoverable because a landlord could violate RCW 59.18.085(3)(a) '"by

conduct not amounting to an intentional tort."' !d. at 63 7 (quoting White River Estates v.

Hiltbruner, 134 Wn.2d 761, 769, 953 P.2d 796 (1998)). The Court of Appeals also

2 Segura described these damages as "representing additional damages for the anxiety, worry, inconvenience, and upheaval inflicted upon the plaintiffs and their children from being forced to vacate their home on a few days' notice shortly after signing a year's lease [and] the harassment and illegal lock-out suffered at the defendants' hands, including missing property." CP at 64.

3 No. 90088-4

reasoned that the language ofRCW 59.18.085(3)(e) "implies out of pocket or financial

damages incurred by relocation .... This interpretation better suits the statute's purpose,

which suggests the 'actual damages' provided in RCW 59.18.085(3)(e) are limited to

reasonable moving expenses." Id.

This court granted Segura's petition for review.

ANALYSIS

Statutory interpretation resolves whether the RL TA allows displaced tenants to

recover emotional distress damages. See White River Estates, 134 Wn.2d at 765. The

purpose of statutory interpretation is to determine the legislature's intent and to apply it.

State v. Evans, 177 Wn.2d 186, 192,298 P.3d 724 (2013). When possible, we derive the

legislature's intent solely from the statute's plain language, considering the text of the

provision at issue, the context of the statute, related provisions, and the statutory scheme

as a whole. Id.

"Whether emotional distress damages are available following a statutory violation

will depend on the language of the particular statute at issue." Hiltbruner, 134 Wn.2d at

765. Reading RCW 59.18.085's provisions together reveals that the statute's purpose is

to provide assistance to relocate displaced tenants, make the landlord responsible for such

assistance, authorize the city to step in as needed to facilitate such relocation, and provide

a means for the City to seek reimbursement from the landlord where the city has stepped

in to provide such assistance.

4 No. 90088-4

Here, RCW 59.18.085 provides that a landlord shall not rent a unit that does not

meet applicable codes. RCW 59.18.085(1). If the landlord knowingly does so, the tenant

shall recover the greater of three months' rent or treble the actual damages sustained as a

result of the violation. RCW 59.18.085(2). Ifthe appropriate government agency

requires that the tenant vacate the premises, the tenant shall also recover any prepaid

deposit and rent.. !d. Additionally, the tenant may be entitled to relocation assistance as

follows:

If a governmental agency responsible for the enforcement of a building, housing, or other appropriate code has notified the landlord that a dwelling will be condemned or will be unlawful to occupy due to the existence of conditions that violate applicable codes, statutes, ordinances, or regulations, a landlord, who knew or should have known of the existence of these conditions, shall be required to pay relocation assistance to the displaced tenants.

RCW 59.18.085(3)(a). The statute sets the amount of relocation assistance ($2,000 or

three times the monthly rent, whichever is greater), notes other damages the tenant is

entitled to from the landlord, specifies how payment to the tenant is to be made, sets a

time frame for such payments, and authorizes the governmental entity to step in anq

advance the relocation assistance to the displaced tenant if the landlord fails to meet the

statutory time schedule for such payments. 3 The statute also provides a time limit in

3 Subsections (3)(b) and (c) provide: (b) Relocation assistance provided to displaced tenants under this subsection shall be the greater amount of two thousand dollars per dwelling unit or three times the monthly rent. In addition to relocation assistance, the landlord shall be required to pay to the displaced tenants the entire amount of any deposit prepaid by the tenant and all prepaid rent. (c) The landlord shall pay relocation assistance and any prepaid deposit and prepaid rent to displaced tenants within seven days of the governmental

5 No. 90088-4

which the landlord must reimburse the city for any relocation assistance advancements

that the city has paid the tenant; civil penalties and interest for the landlord's

noncompliance with the stated time limits; and attorney fees and costs to the city if it

must pursue legal action against the landlord to receive such reimbursements, penalties,

and interest. See RCW 59.18.085(3)(£)-(h).

Notably, subsection (3)(e) sets the parameters of the damages available to a tenant

under the statute.

Displaced tenants shall be entitled to recover any relocation assistance, prepaid deposits, and prepaid rent required by (b) of this subsection. In addition, displaced tenants shall be entitled to recover any actual damages sustained by them as a result of the condemnation, eviction, or displacement that exceed the amount of relocation assistance that is payable. In any action brought by displaced tenants to recover any payments or damages required or authorized by this subsection (3 )(e) or (c) of this subsection that are not paid by the landlord or advanced by the city, town, county, or municipal corporation, the displaced tenants shall also be entitled to recover their costs of suit or arbitration and reasonable attorneys' fees.

RCW 59.18.085(3)(e) (emphasis added). In giving effect to the legislature's intent, we

look to the statute's plain and ordinary meaning, reading the enactment as a whole,

harmonizing its provisions by reading them in context with related provisions. Quadrant

agency set:J.ding notice of the condemnation, eviction, or displacement order to the landlord. The landlord shall pay relocation assistance and any prepaid deposit and prepaid rent either by making individual payments by certified check to displaced tenants or by providing a certified check to the governmental agency ordering condemnation, eviction, or displacement, for distribution to the displaced tenants. If the landlord fails to complete payment of relocation assistance within the period required under this subsection, the city, town, county, or municipal corporation may advance the cost of the relocation assistance payments to the displaced tenants. RCW 59.18.085(3)(b), (c).

6 No. 90088-4

Corp. v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd., 154 Wn.2d 224, 239-40, 110 P .3d

1132 (2005). Reading the provisions of the statute together, the plain language provides

that the tenant is entitled to receive the relocation assistance amounts as calculated in

subsection (3)(b) but may also seek, via legal action against the landlord, the tenant's

actual costs of relocation that exceed the relocation assistance amount as calculated in

subsection (3)(b). The statute provides relocation assistance; it simply does not address

or encompass emotional distress damages.

Further, if there were any doubt as to the statute's purpose, the legislature

expressly spelled it out. The statute's stated purpose is twofold: First, "to establish a

process by which displaced tenants would receive fimds for relocation from landlords

who fail to provide safe and sanitary housing after due notice of building code or health

code violations." LAws OF 2005, ch. 364, § 1 (emphasis added). And second, "to

provide enforcement mechanisms to cities, towns, counties, or municipal corporations

including the ability to advance relocation funds to tenants who are displaced as a result

of a landlord's failure to remedy building code or health code violations and later to

collect the full amounts of these relocation funds, along with interest and penalties, from

landlords." Id. The statute's plain language and the legislature's express provision of

"funds for relocation" cannot legitimately be stretched to include emotional distress

damages.

Segura cites Rasor v. Retail Credit Co., 87 Wn.2d 516, 554 P.2d 1041 (1976), and

Martini v. Boeing Co., 137 Wn.2d 357, 971 P.2d 45 (1999), for the proposition that actual

7 No. 90088-4

damages includes damages for emotional distress. But Rasor concerned damages

available under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, whose

purpose is '"to protect an individual from inaccurate or arbitrary information about

himself in a consumer report that is being used as a factor in determining the individual's

eligibility for credit, insurance or employment."' Rasor, 87 Wn.2d at 520 (quoting

Porter v. Talbot Perkins Children's Servs., 355 F. Supp. 174, 176 (S.D.N.Y. 1973)).

Martini addressed claims of discrimination under Washington's Law Against

Discrimination (WLAD) (chapter 49.60 RCW). See Martini, 137 Wn.2d at 366-68. The

purpose ofWLAD is to protect the "public welfare, health, and peace of the people"

because "discrimination threatens [their] rights and proper privileges." RCW 49.60.010.

Both the FCRA and WLAD guard against harm to the person. The inclusion of

emotional distress damages in those cases is not surprising, as such provision comports

with the purpose and protections afforded by the statutes in question. But no similar

purpose is present in this case. Here, the text of the statute, as discussed above, attests

that the legislature is concerned only with return of a tenant's money and assisting the

tenant in getting relocated, not in providing redress for a personal injury or protecting

against harm to the person. There is no similarity to the types of situations presented in

Rasor and Martini, which involved different statutes with different language and different

purposes.

For the same reason, Segura's citation to Ellingson v. Spokane Mortgage Co., 19

Wn. App. 48, 573 P.2d 389 (1978), and Conrad v. A/derwood Manor, 119 Wn. App. 275,

8 No. 90088-4

78 P.3d 177 (2003), as support is also unavailing. Ellingson addressed claims of

discrimination under the WLAD, and Conrad addressed claims under the abuse of ·

vulnerable adults statute (chapter 74.34 RCW). See Ellingson, 19 Wn. App. at 54;

Conrad, 119 Wn. App. at 280. These cases too are distinguishable, as they addressed

statutes and circumstances that are not present here.

We have never adopted a single definition of the term "actual damages." Indeed,

in the appropriate case, we have limited "actual damages" to include only recovery for

pecuniary harm. For example, the Washington Consumer Protection Act (CPA) allows a

person harmed under the statute "to recover the actual damages sustained by him or her

... together with the costs of the suit, including a reasonable attorney's fee." RCW

19.86.090. As in this case, the statute included language allowing recovery for "actual

damages." Nevertheless, after analyzing the language in context, we held that the CPA

does not allow recovery for emotional distress. Wash. State Physicians Ins. Exch. &

Ass'n v. Fisons Corp, 122 Wn.2d 299,318, 858 P.2d 1054 (1993). We examined the

purpose of the statute at issue, reasoning that the CPA concerns injuries to "'business or

property,"' not personal injuries. Id. Therefore, "actual damages" did not include

emotional distress. Id.

Similarly, as the Supreme Court recently observed, "actual damages" has a

"chameleon-like quality" because "the precise meaning of the term 'changes with the

specific statute in which it is found."' Fed. Aviation Admin. v. Cooper, _U.S._, 132

S. Ct. 1441, 1450, 1449, 182 L. Ed. 2d 497 (2012) (quoting Cooper v. Fed. Aviation

9 No. 90088-4

Admin., 622 F.3d 1016 (9th Cir. 2010) (holding "actual damages" does not include

emotional distress damages as used in the Privacy Act of 1974, codified in part at 5

U.S.C. § 552a)). As the Court noted, sometimes the term includes emotional distress

damages, while in other contexts it includes only pecuniary harm. !d. at 1449.

As discussed, in this case, the statute provides for the recovery of financial losses

caused by displacement; it simply does not address or reasonably encompass emotional

distress damages.

CONCLUSION

We hold that RCW 59.18.085 of the RLTA provides relocation assistance to

tenants. Recovery for emotional distress damages is not available under this statute. We

affirm.

10 No. 90088-4

11 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

No. 90088-4 GORDON McCLOUD, J. (concurring in result)-The Residential Landlord-

Tenant Act of 1973 (RLTA), chapter 59.18 RCW, entitles displaced tenants to

recover, "[i]n addition to" "any relocation assistance," "any actual damages

sustained by them . . . that exceed the amount of relocation assistance that is

payable." RCW 59.18.085(3)(b), (e). The majority holds that the plain language

and stated purpose of this statute compel limiting a displaced tenant's recovery to

financial losses only. 1 Majority at 10.

But the legislature's use of the broad, inclusive adjective "any" to modify

"actual damages," along with its specification that such damages are recoverable "in

addition" to relocation costs, compels the opposite conclusion. In addition, we

presume that the legislature, when it enacted the RLT A, was aware of our decisions

in Rasor v. Retail Credit Co., 87 Wn.2d 516,529,554 P.2d 1041 (1976), and Martini

1 Emotional distress damages are a type of noneconomic damages. RCW 4.56.250(l)(b) defines "noneconomic damages" as "subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship."

1 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

v. Boeing Co., 137 Wn.2d 357,368,370,971 P.2d 45 (1999), recognizing that actual

damages include emotional distress damages.

I therefore respectfully disagree with the majority's conclusion that the RLTA

bars displaced tenants from recovering emotional distress damages. But I concur in

the majority's result that Jose Segura and Tabetha Gonzalez (collectively Segura)

cannot recover emotional distress damages here. The statute allows recovery of such

actual damages only when they exceed the statutory $2,000 of relocation assistance.

RCW 59.18.085(3)(b), (e). Segura's request for $1,200 in actual damages does not

exceed that $2,000 amount. Therefore, the RL TA prohibits them from recovering

actual damages, including emotional distress damages, in this case.

I. STANDARD OF REVIEW

We review issues of statutory interpretation de novo. O.S. T v. Regence

BlueShield, 181 Wn.2d 691, 696, 335 P.3d 416 (2014). We begin with the statute's

plain language, considering the text of the provision in question, the statute's

context, and the statutory scheme as a whole. State v. Evans, 177 Wn.2d 186, 192,

298 P.3d 724 (2013). Our objective is to determine and to apply the legislature's

intent. O.S. T, 181 Wn.2d at 696.

2 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

II. THE STATUTORY LANGUAGE

This case requires us to construe the statutory term "actual damages" as used

in RCW 59.18.085(3)( e) and to decide if the right to recover such "actual damages"

includes a right to recover emotional distress damages.

RCW 59.18.085 states, in relevant part,

(3)(a) If a governmental agency responsible for the enforcement of a building, housing, or other appropriate code has notified the landlord that a dwelling will be condemned or will be unlawful to occupy due to the existence of conditions that violate applicable codes, statutes, ordinances, or regulations, a landlord, who knew or should have known of the existence of these conditions, shall be required to pay relocation assistance to the displaced tenants ....

(e) Displaced tenants shall be entitled to recover any relocation assistance, prepaid deposits, and prepaid rent required by (b) of this subsection. In addition, displaced tenants shall be entitled to recover any actual damages sustained by them as a result of the condemnation, eviction, or displacement that exceed the amount of relocation assistance that is payable ....

(Emphasis added.) As the majority notes, the RL TA contains no definition of

"actual damages," so whether the RL TA authorizes displaced tenants to recover

emotional distress damages sustained as a result of their displacement is a matter of

statutory interpretation.

3 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

III. THE LEGISLATURE DECIDED THAT TENANTS CAN RECOVER "ANY ACTUAL DAMAGES" "[I]N ADDITION" TO THE LISTED AMOUNTS; THIS LANGUAGE Is BROAD AND UNAMBIGUOUS

A. The Majority's Holding Conflicts with the Statute's Plain Language

The plain statutory language of the RLT A gives displaced tenants the right to

recover "any actual damages sustained by them as a result of the ... displacement,"

"[i]n addition" to economic damages specifically enumerated in the statute

("relocation assistance, prepaid deposits, and prepaid rent"). RCW 59.18.085(3)(e)

(emphasis added). By limiting the recovery under this statute to economic damages

only, and by further limiting these damages to "relocation assistance," majority at

10, the majority's holding conflicts with both statutory phrases italicized

immediately above.

First, the statutory word "any" is a broad modifier. See State v. Sutherby, 165

Wn.2d 870, 880-82, 204 P.3d 916 (2009); State v. Westling, 145 Wn.2d 607, 611-

12, 40 P.3d 669 (2002). This broad language supports an expansive reading of the

statute.

Second, we must give full effect to the language "in addition" to. The statute

specifies that "any" actual damages are available not as part of, but "in addition" to

the enumerated damages, including damages that "exceed the amount of relocation

assistance that is payable." RCW 59.18.085(3)(e). Thus, the statute's context, in

4 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

addition to its express language, reveals the legislature's intent to permit the

recovery of emotional distress damages; a contrary interpretation would render the

legislature's use of this broad language meaningless. 2

The majority relies on an argument that no party has made: that the language

"that exceed the amount of relocation assistance that is payable" shows an intent to

limit the amount of available damages to relocation damages only. Majority at 6-7.

But this interpretation is problematic for two reasons. First, it treats the concluding

language as a limit on both the amount and the nature of damages that a displaced

tenant is entitled to recover. The statute's plain language defies such a reading. The

statute says "that exceed," which refers to an amount, not a type of damages.

Second, this interpretation treats the language "that is payable" as a limit on "actual

damages" when, grammatically, it can be read only as modifying the immediately

preceding phrase "relocation assistance."

B. The Majority's Holding Conflicts with This Court's Decisions Interpreting the Term "Actual Damages" in Other Statutes

In addition to failing to recognize the broad nature of the statutory language,

the majority rejects the definition of "actual damages" established by our prior

2 See Cornu-Labat v. Hasp. Dist. No. 2, 177 Wn.2d 221, 231, 298 P.3d 741 (2013) ("We interpret statutes to give effect to all the language used so that no portion is rendered meaningless or unnecessary." (citing State v. JP., 149 Wn.2d 444, 450, 69 P.3d 318 (2003))). 5 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

decisions. Majority at 7-8. In Rasor, we interpreted the term "actual damages" as

used in the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681n, 1681o.

87 Wn.2d at 529. This statute permits a plaintiff to recover "an amount equal to ...

any actual damages sustained by the consumer as a result of the failure" of a credit

reporting agency to comply with the statutory requirements. 15 U.S.C. §§ 1681n,

1681 o. The plaintiff in Rasor alleged that a credit report stating she had a reputation

of living with more than one man out of wedlock "damaged her personally and in

her business reputation in the small community, and that she suffered emotionally

from the experience." 87 Wn.2d at 531. We explained that Congress's intent in

enacting "this remedial legislation" was "'to protect the reputation of a consumer"'

from the improper preparation and use of inaccurate or arbitrary information in credit

reports, including protection from false rumors. !d. at 529, 520-21 (quoting Ackerley

v. Credit Bureau of Sheridan, Inc., 385 F. Supp. 658, 659 (D. Wyo. 1974)).

Comparing the plaintiff's injury to the actual injury suffered in a defamation action,

we recognized in Rasor the "generally accepted legal meaning" of"actual damages"

for defamatory falsehood:

In reference to the type of harm suffered, the term "actual damages" has a generally accepted legal meaning. Although it declined to define "actual injury," the United States Supreme Court recently noted the variety of harm which may result when damage is actually sustained.

6 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

!d. at 529 (emphasis omitted) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,

350, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)). Noting that "actual damages" denotes

both the type of damage award and the nature of injury for which a plaintiff may

recover damages, we also stated in Rasor, "In this sense, the term has a second,

consonant and established meaning. '"actual" damages are synonymous with

compensatory damages'. Thus, actual damages, flowing from injury in fact, are to

be distinguished from damages which are 'nominal,' 'exemplary' or 'punitive."' !d.

at 530 n.3 (citations omitted) (quoting Werder v. Hoffman, 238 F. Supp. 437, 445

(M.D. Pa. 1965)). We therefore held that "actual damages" under the FCRA

includes all of the elements of compensatory awards generally, including harm to

business reputation and emotional suffering. !d. at 530.

In Martini, we again construed the term "actual damages" and reached the

same conclusion. 137 Wn.2d at 364. Martini discussed "actual damages" as used

in Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, which

7 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

mandates "liberal construction." 137 Wn.2d at 364; RCW 49.60.020. The plaintiff

alleged disability discrimination and sought front and back pay. Martini, 137 Wn.2d

at 361. The WLAD permits the recovery of "the actual damages sustained by the

person" but contains no definition of the term "actual damages." RCW

49.60.030(2). Although emotional distress damages were not directly at issue in

Martini, we cited Rasor and concluded that RCW 49.60.030(2) authorizes the

recovery of full compensatory damages, including "damages for emotional distress,"

and excluded only nominal, exemplary, or punitive damages. Martini, 137 Wn.2d

at 370, 367-68.

Since 1976, we have consistently stated that this is the established meaning of

"actual damages." Rasor, 87 Wn.2d at 530 n.3. We presume that the legislature

knew the controlling law in the area in which it was legislating when it passed RCW

59.18.085 in 2005. Wynn v. Earin, 163 Wn.2d 361, 371, 181 P.3d 806 (2008) (citing

Price v. Kitsap Transit, 125 Wn.2d 456, 463, 886 P.2d 556 (1994)). 3 Although the

3 The Court of Appeals relied in large part on White River Estates v. Hiltbruner, 134 Wn.2d 761, 953 P.2d 796 (1998). In that case, however, we held that when a statute is silent about the damages available for its violation, emotional distress damages are available only if the statutory violation requires conduct amounting to an intentional tort, as opposed to mere negligence. !d. at 766. White River Estates' intentional-versus- negligent test does not apply to the RL TA, which explicitly describes the damages recoverable for a landlord's violation. See RCW 59.18.085(3)(e).

8 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

majority dismisses these cases as "involv[ing] different statutes with different

language and different purposes," majority at 8, nothing in Rasor or Martini suggests

that their discussions of "actual damages" were limited to the statutes at issue in

those cases. 4

The majority argues that under Federal Aviation Administration v. Cooper,

_U.S._, 132 S. Ct. 1441, 1449, 182 L. Ed. 2d 497 (2012), '"the precise meaning

of the term ["actual damages"] "changes with the specific statute in which it is

found."' Majority at 9 (internal quotation marks omitted) (quoting Cooper, 132 S.

Ct. at 1449). But that case does not control here. The issue presented in Cooper

was-seemingly-whether the term "actual damages" in the civil remedies

provision of the Privacy Act of 197 4 includes compensation for mental and

emotional harm. 5 U.S.C. § 552a. But because the Privacy Act of 1974 applied to

4 The majority asserts that we said the opposite in Washington State Physicians Insurance Exchange & Ass'n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993). Majority at 9. It is true that in Fisons we disallowed recovery of emotional distress damages under the Consumer Protection Act, chapter 19.86 RCW, which affords "actual damages." Fisons, 122 Wn.2d at 318. But that was not just because ofRCW 19.86.090's language allowing an individual "to recover ... actual damages sustained." (Emphasis added.) In fact, we explained that there was no right to emotional distress damages in that context because the statute limited the right to sue to a "person who is injured in his or her business or property by a violation of [the act]." RCW 19.86.090 (emphasis added). In Fisons, we ruled, "'The phrase "business or property" also retains restrictive significance. It would, for example, exclude personal injuries suffered."' Fisons, 122 Wn.2d at 318 (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979)). The statute at issue in this case, in contrast, contains no such limiting language. 9 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

damages from the government, the question was actually narrower: "because the

Privacy Act waives the Federal Government's sovereign immunity, the question we

must address is whether it is plausible to read the statute, as the Government does,

to authorize only damages for economic loss." Cooper, 132 S. Ct. at 1453 (emphasis

added). Given that narrow issue, that Court entered the narrow holding that the civil

remedies provision did not waive the United States' sovereign immunity with

respect to such recovery. Id. The Court explained, "When waiving the

Government's sovereign immunity, Congress must speak unequivocally. Here, we

conclude that it did not. As a consequence, we adopt an interpretation of 'actual

damages' limited to proven pecuniary or economic harm." Id. This case, in contrast,

does not involve the scope of sovereign immunity. In addition, this case deals with

the interpretation of a Washington, not a federal, statute; the answer to our question

is controlled by state, not federal, law.

IV. SEGURA CANNOT RECOVER EMOTIONAL DISTRESS DAMAGES HERE

Although the RLT A permits displaced tenants to recover emotional distress

damages as actual damages, I agree with the majority that Segura is entitled to no

actual damages in this case. RCW 59.18.085(3)(e) states that displaced tenants can

recover "any actual damages sustained by them . . . that exceed the amount of

relocation assistance that is payable." (Emphasis added.) The "relocation

10 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)

assistance that is payable" to displaced tenants is "the greater amount of two

thousand dollars per dwelling unit or three times the monthly rent." RCW

59.18.085(3)(b ).

Here, Segura is entitled only to actual damages that exceed $2,000 because

this amount is greater than three times Segura's monthly rent of $600. Segura

requested $1,000 for emotional distress and $200 for gasoline expenses-both

components of"actual damages." But the $1,200 total that Segura claims as actual

damages does not exceed the $2,000 payable to Segura as relocation assistance.

Therefore, Segura can recover no actual damages under the RLTA.

The legislature detennined that a displaced tenant could recover "actual

damages." It placed no limit on these "actual damages." In fact, RCW

59.18.085(3)(e) authorizes "any" such "actual damages." The statute's plain, broad

language, as well as controlling Washington case law interpreting the legal meaning

of this term, thus authorize displaced tenants to recover emotional distress damages

for a landlord's violation ofthe RLTA.

In this case, however, Segura's requested actual damages do not exceed

$2,000. For that reason, Segura may not recover actual damages, including

emotional distress damages, in this case. I therefore concur in the result.

11 Segura v. Cabrera, No. 90088-4 (Gordon McCloud, J., Concurring in Result)