FILED
SEPTEMBER 3, 2026
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
WASHINGTON STATE HUMAN ) No. 40350-5-III RIGHTS COMMISSION, presenting the ) case in support of the complaints filed by ) SHARELL NEAL, CAROL RICHEY, and ) GARY COX, )
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Appellants, )
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v. )
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ROBERT SARACENO and FRANCINE ) SARACENO, the marital community ) comprised thereof and d/b/a ACTION ) AUTO AND BOAT REPAIR, a/k/a ) UNPUBLISHED OPINION ACTION AUTO SALES, a/k/a ACTION ) AUTO REPAIR, a/k/a ACTION AUTO; ) and FRANCINE SARACENO, ) individually and as personal representative ) of the ESTATE OF ROBERT JOHN ) SARACENO, )
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Respondents. )
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WASHINGTON STATE HUMAN ) RIGHTS COMMISSION, )
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Appellant, )
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Wash. State Human Rights Comm’n v. Saraceno
v. )
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FRANCINE SARACENO, personal ) representative of the ESTATE OF ) ROBERT JOHN SARACENO, )
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Respondent. )
MURPHY, J. — Robert and Francine Saraceno 1 owned multiple rental properties.
The Washington State Human Rights Commission (Commission) received three complaints of sex discrimination in housing and started an investigation. According to regulations, investigations are to be completed in 100 days. The investigation in this case took nearly two and one-half years. During that time, Robert died. Regardless of Robert’s death, the Commission brought suit against the Estate of Robert Saraceno (Estate) and Francine alleging violations of Washington’s Law Against Discrimination (WLAD), chapter 49.60 RCW. Following a bench trial, the trial court dismissed the claims without reaching the merits, applying the equitable defense of laches.
The Commission appeals, contending (1) the trial court erred in applying laches, (2) the trial court’s findings of fact lack substantial evidence, and (3) the trial court erred in awarding attorney fees and costs to the prevailing defendants. The Estate and Francine respond that the trial court correctly applied laches and the fee award was proper. The
1 For clarity, we refer to Robert and Francine by their first names. No disrespect is intended.
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Estate additionally argues the Commission’s creditor claim against the Estate is barred by RCW 11.40.100.
We hold the trial court did not err when it applied laches and affirm the dismissal.
We also affirm the award of attorney fees and costs. Because we affirm on the basis of laches, we do not reach the Estate’s further contentions.
FACTS
Background Robert and Francine Saraceno were married for 43 years and co-owned several rental properties. The rentals were community property, but Robert purchased and managed all of the properties. Francine was not involved in the rental operations, did not meet or communicate with tenants, and had no knowledge of any discrimination at the properties. Complaints and investigation On July 31, 2019, Sharell Neal filed a housing discrimination complaint with the Commission against the Saracenos. On August 9, 2019, Gary Cox and Carol Richey filed similar complaints alleging discrimination on the basis of sex. On August 12 and 15, respectively, the Commission sent the Saracenos notices of the complaints and requested a response. The Saracenos denied all allegations a few days later through their attorney.
Regulations require the Commission to complete an investigation within 100 days of receipt of a complaint. See WAC 162-08-09401(5). On November 22, December 5,
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and December 10, 2019, the Commission mailed initial notices to the Saracenos regarding each of the three complaints, stating the Commission would not be able to complete the investigation within 100 days. The letters explained, “[c]ompletion within the time frame specified by law is impracticable” because the Commission needed to perform interviews, investigate the complaints further, and make conciliation efforts. Clerk’s Papers (CP) at 209-11. The Commission further explained, “due to the large number of complaints we have recently received, competing demands require a delay in completing this investigation.” CP at 209-11. The Commission stated it expected to complete the investigation within 60 days. 2 On December 27, 2019, the Commission’s Civil Rights Specialist, Heidi Termer, sent another letter to the Saracenos stating the investigation had been “temporarily on hold due to a . . . large influx of housing discrimination cases over the past year,” but the investigation was proceeding. 3 Termer requested a list of all tenants with contact information, any lease agreements, as well as an in-person interview with the Saracenos. Through counsel, the Saracenos again denied all allegations, declined to be interviewed, and did not provide requested documentation. During the investigation, the Commission
2 The Commission sent three separate letters, one for each complaint, regarding the investigation timeline. The letters relative to the complaints made by Richey and Cox were identical. The letter related to Neal’s complaint was substantively the same but listed six reasons why completion of the investigation in the specified timeframe was impracticable.
3 Based on the record, December 27, 2019, is the last dated letter the Commission sent specifically advising on the status of the investigation.
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identified six additional former tenants who reported discrimination and harassment similar to what Neal, Richey and Cox allegedly experienced. 4 Robert died on July 26, 2021. Francine was appointed personal representative of the Estate.
In December 2021, approximately two-and-a-half years after receipt of the complaints, the Commission completed its investigation and issued a finding of reasonable cause. Conciliation failed when an agreement on monetary terms could not be reached. At Francine’s request, the Commission forwarded the case to the attorney general’s office for further proceedings. Francine elected to have the matter litigated in superior court. Trial court proceedings On June 2, 2022, the Commission on behalf of the three complainants filed suit against the Estate and Francine individually. 5 The Estate and Francine answered and asserted affirmative defenses but did not expressly plead laches.
4 These former tenants did not file complaints with the Commission. Regardless, the Commission sought damages on their behalf.
5 The Commission also brought claims against the marital community of Robert and Francine Saraceno, but that claim was dismissed through summary judgment proceedings as the marital community dissolved upon the death of Robert. This claim is not on appeal.
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Motion for partial summary judgment The Estate and Francine filed a motion for partial summary judgment. Among other contentions, the Estate and Francine argued (1) the investigation was not completed within 100 days, as required by regulation, (2) the claims were barred by the three-year statute of limitations in RCW 4.16.080, (3) the Deadman’s statute barred any testimony against the defendants and, therefore, there was no proof of the claims or their timeliness, and (4) laches barred the complaint. The motion did not provide argument on the application of laches. Rather, the word “laches” appeared in a section header titled: “Limitations For Actions Of Sexual Harassment And Laches,” and in one sentence in the conclusion: “The statute of limitations coupled with delay of investigation due to backlog of two and one-half years constitute laches prejudicial to the defendant.” CP at 47, 52 (some capitalization omitted).
In its response, the Commission argued the WLAD action was not barred by the statute of limitations or by laches. Specifically, the Commission argued the Estate and Francine raised laches in passing, provided no authority or argument for its application, and failed to plead laches as an affirmative defense. Alternatively, the Commission argued the Estate and Francine could not show they were prejudiced as “they had ample notice of the housing discrimination complaints.” CP at 98.
In reply, the Estate and Francine did not refer directly to laches but argued,
Plaintiff’s delay in investigating the complaints severely prejudiced the Defendants. Robert Saraceno died. If [t]he State had complied with its own
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regulations, Robert Saraceno would have been alive and been able to defend against the unfounded allegations of the complainants.
CP at 332 (emphasis omitted).
The trial court conducted a hearing on the summary judgment motion. At the hearing, Francine’s counsel argued prejudice:
If the State had even been close in their rules, Mr. Saraceno would have been alive. We are grossly prejudiced by the State’s dragging their feet on this. Statute of limitations on the claims of the individuals have lapsed. Mr.
Saraceno has passed away. We have no way to counter the allegations of these claimants, and it’s totally unfair because there’s no way that [counsel for the Estate] and I can defend the case without a witness who’s going to be able to step up and say what happened.
1 Rep. of Proc. (RP) (Mar. 10, 2023) at 16.
In response, counsel for the Commission argued:
[T]his repeated assertion of [laches], they did not raise this as an affirmative defense, but also the Court of Appeals in the Voris[6] case was very clear that [laches] is not a defense that’s available so long as the individual against whom the complaint is made knows about the complaint. And there is no evidence to the contrary in this case. Mr. and Mrs. Saraceno both became aware of the complaint within I believe ten days of them being filed.
1 RP (Mar. 10, 2023) at 31.
In reply, Francine’s counsel argued:
[Francine] has the burden to prove that an unreasonable delay on the part of the Commission resulted in a change of conditions, her position, which would make it inequitable to enforce the claim. . . . [Case law] doesn’t say we can’t apply [laches] to the State, it just says, look, you have to show that
6 Voris v. Wash. State Human Rights Comm’n, 41 Wn. App. 283, 704 P.2d 632 (1985).
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you’ve been damaged. I don’t know how we can show we’ve been damaged other than we don’t have a witness. And if they had followed, even getting close to following their requirements, this case should have been over two years ago.
1 RP (Mar. 10, 2023) at 45-46.
In a written decision, the trial court ruled the three-year statute of limitations, contained in RCW 4.16.080, did not apply to actions brought by the Commission under RCW 49.60.230. Rather, the relevant statute of limitations required individuals to bring a complaint to the Commission within one year of the alleged unfair real estate practice. Then, if a complaint is timely filed, the relevant “administrative process dictates the timeline” with the trial court denying the motion for partial summary judgment. 7 CP at 435. The trial court did not rule on the issue of laches. 8 Trial and posttrial briefing A bench trial was scheduled. The Commission submitted a trial memorandum addressing, among other things, the defendants’ affirmative defenses, but did not address
7 The trial court made several additional rulings not challenged on appeal. Namely, the trial court dismissed the marital community as a party, dismissed the Commission’s claim for injunctive relief, and ruled that the Deadman’s statute excluded all statements made by Robert to Neal, Richey, or Cox, but ruled that such statements could be presented against Francine individually.
8 Initially, the trial court dismissed the Commission’s claim made on behalf of Neal as untimely under RCW 49.60.230(2)(a) as Neal filed the complaint beyond the one-year timeframe. On reconsideration, however, the trial court reversed that decision determining it was a factual question as to whether Neal was timely in filing her complaint.
The Estate and Francine filed a motion for discretionary review with this court, challenging the trial court’s ruling on the statute of limitations and the Deadman’s statute. This court declined to accept interlocutory review.
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laches. The Estate and Francine submitted a trial brief, arguing that all complaints were outside the statute of limitations, and that it took the Commission “1005 days to complete (SHOULD be done in 100 days) ten times as long.” CP at 535 (bold face omitted). The Estate and Francine requested attorney fees. Laches, by name, was not asserted.
Prior to trial, the court heard the parties’ arguments on motions in limine. No party raised laches.
During trial, 15 witnesses testified, including the 3 complainants and the 6 prior tenants who had been interviewed by the Commission. Termer testified that parties are asked as a matter of practice to provide a list of witnesses and any evidence or documentation. The Saracenos did not provide any information beyond a denial of allegations. In response to cross-examination about the length of time it took to investigate, Termer testified:
Q Ms. Termer, aren’t these investigations supposed to be completed within 100 days?
A There is language in the law that indicates that it is expected that such investigations be completed within 100 days. However, also it is understood cases can be complex and there can be extenuating circumstances that can cause investigations to take longer.
....
Q . . . In this case, your investigation took over a hundred days, correct?
A Yes, it did.
Q And when it hit that hundred-day point, did you send a letter to the Saracenos indicating that the investigation could not be done within the hundred-day time frame?
A The Commission sends those letters as a general practice, and I believe that in this case, yes, such a letter was sent for each of the three cases.
Q And would that letter then start the clock for another hundred days?
....
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THE WITNESS: Procedurally, I have never seen anything that restarts the clock for another hundred-day period.
1 RP (Nov. 6, 2023) at 221-22.
At the conclusion of the presentation of evidence, the trial court requested supplemental briefing. As part of this request, the trial court invited the parties to address any issues they felt necessary. To allow time for briefing, the court scheduled closing arguments for a later date.
In its supplemental brief, the Commission addressed (1) Francine’s direct and vicarious liability, (2) the availability of damages, and (3) issues related to the Commission’s claims as a creditor of the Estate. The Commission did not address laches or any affirmative defense related to timeliness.
The Estate’s posttrial brief solely addressed issues related to the Commission’s claims as a creditor of the probate estate and did not address laches.
Francine’s posttrial brief focused on (1) Francine’s direct and vicarious liability, (2) application of the Deadman’s statute, (3) the viability and credibility of the claims made by complainants, and (4) laches. Specifically, Francine’s supplemental brief stated that “[l]aches can be raised as a defense to [a] sexual harassment claim” when the Commission delayed filing the action. CP at 626. Francine argued the State failed to comply with the relevant time limits and Robert passed away “before he could defend himself.” CP at 627. Francine concluded that “[t]he doctrine of Laches . . . should apply, and the Court should dismiss all claims.” CP at 633.
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At closing arguments, counsel for the Commission argued against laches:
Now, defendants also raise [laches] as a defense, which as we pointed out on summary judgment they did not plead in their answer. But even if they had, that defense is still not available to them.
There is ample case law holding that equitable defenses, such as [laches], do not apply to government agencies. . . .
But even the Voris case, which defendants cite on page 11 of their brief, expressly held that a defendant could not assert [laches] against the Human Rights Commission in a housing discrimination case.
Now, like the defendant in Voris, the defendants here had ample notice of the complaints against them, and they had every opportunity to participate in the investigation and the conciliation process. There is no evidence that the Commission delayed unreasonably in bringing this matter.
2 RP (Dec. 14, 2023) at 726-27.
The Estate’s counsel did not address laches. The Estate argued it was entitled to attorney fees under the WLAD as a prevailing party, among other grounds.
Francine’s counsel extensively addressed the timeliness of the Commission’s claims, the prejudice to Francine, and the applicability of laches. Her counsel argued that if the Commission had met its deadlines, then the investigation would have been completed and a final determination made by July 2020. Robert died in July 2021 and had the Commission not delayed, he “would have been alive to respond to the allegations against him” for at least a year. 2 RP (Dec. 14, 2023) at 752. Counsel argued that due to Robert’s death, “it’s impossible for Francine to address the adverse testimony” brought against her because she had “no information, was not involved in any of the rental negotiations or knew any of the tenants.” 2 RP (Dec. 14, 2023) at 752.
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Findings of fact and conclusions of law The trial court dismissed the Commission’s case based on laches. Relevant on appeal, the trial court’s findings of fact included the following:
30. At trial, Heidi Termer, a civil rights specialist for the Commission, testified but did not provide any basis for why the investigation was not completed within 100 days of receiving the complaints.
31. If the Commission had completed its investigation within 100 days of receiving the complaints–in December of 2019–it is more likely than not that Mr. Saraceno would have been able and available to participate in the civil action filed by the Commission, in Spokane County Superior Court.
32. Due to the lengthy delay in the Commission’s investigation and reasonable cause finding, Mr. Saraceno was unavailable to testify at trial and Ms. Saraceno provided credible testimony that she had no personal knowledge of any of the allegations against the Saracenos.
CP at 655. The trial court concluded laches applied and ruled:
Here, . . . there was a change in conditions that would make it inequitable to enforce the claims. While the Commission delayed in concluding its investigation, Mr. Saraceno passed away. Mr. Saraceno is the only person with knowledge regarding the allegations, hence it would be inequitable to enforce the claims against Ms. Saraceno and the Estate of Mr. Saraceno.
CP at 679.
The trial court ruled the Estate and Francine had not waived laches by failing to affirmatively plead it. Additionally, the trial court ruled that, while public policy limits the applicability of laches to government entities, the facts of this case did not preclude laches as a defense. The trial court relied on the fact that Robert was deceased, which prejudiced the defense of the Estate and Francine. Lastly, the trial court found the
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defendants were the prevailing parties and awarded costs and fees pursuant to RCW 49.60.340.
The Commission now appeals from the trial court’s findings of fact and conclusions of law.
ANALYSIS
1. Laches We conduct de novo review of the trial court’s decision to apply laches, and we review the fashioning of an equitable remedy for an abuse of discretion.9 In re Marriage of Tupper, 15 Wn. App. 2d 796, 810, 478 P.3d 1132 (2020); Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005); West v. Walla Walla City Council, 34 Wn. App. 2d 195, 203, 567 P.3d 634 (2025).
The Commission contends that the trial court erred by applying laches and dismissing the case, relying on four arguments: (1) the Estate and Francine waived laches by failing to plead it, (2) laches cannot be applied against a government agency acting in an enforcement capacity, (3) laches cannot be applied to prevent an action previously
9 The Estate and Francine argue this court should review the trial court’s decision to apply laches for abuse of discretion, citing In re Marriage of Capetillo, 85 Wn. App. 311, 932 P.2d 691 (1997). However, to the extent Capetillo suggests we apply an abuse of discretion standard, it was overruled by our Supreme Court’s decision in Niemann v. Vaughn Community Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005). The remaining cases cited by the Estate are either unpublished, and thus not binding, or federal cases. The Estate provides no argument as to why we should rely on federal law in disregard of Niemann. We decline to apply the standards from federal case law.
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ruled timely under a statute of limitations, and (4) the trial court misapplied the three laches factors.
“The party asserting laches bears the burden of proof.” Tupper, 15 Wn. App. 2d at 811. Laches is an “extraordinary defense” to be applied “only when a party, knowing his rights, takes no steps to enforce them and the condition of the other party has in good faith become so changed that the party cannot be restored to his or her former state.” Global Neigh. v. Respect Wash., 7 Wn. App. 2d 354, 383, 434 P.3d 1024 (2019). The main component of laches is not so much the period of delay in bringing the action, but the resulting prejudice and damage to others. Id. Damages can arise when an unreasonable delay leads to “a change of conditions or position which would make it inequitable to enforce the claim.” Voris, 41 Wn. App. at 288.
1.1 Waiver The Commission argues the Estate and Francine waived laches because they did not affirmatively plead it in their answer under CR 8(c), and the defense was not tried by express or implied consent. We disagree.
“Washington is a notice pleading state.” Gunn v. Riely, 185 Wn. App. 517, 528, 344 P.3d 1225 (2015). Although affirmative defenses are generally waived if not pleaded, asserted in a CR 12(b) motion, or tried by express or implied consent, strict compliance is not always required when the opposing party had fair notice and suffered no prejudice. Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn. App. 427, 433-34, 842 P.2d 1047 (1993);
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Hogan v. Sacred Heart Med. Ctr., 101 Wn. App. 43, 54, 2 P.3d 968 (2000); Malgarini v. Wash. Jockey Club, 60 Wn. App. 823, 826, 807 P.2d 901 (1991). To determine “whether the parties impliedly tried an issue, [we] consider the record as a whole, including whether the issue was mentioned before the trial [court] and in opening arguments, the evidence on the issue admitted at the trial, and the legal and factual support for the trial court’s conclusions regarding the issue.” Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999). Analysis should be given as to whether the plaintiff had the opportunity to address the argument and whether prejudice was suffered. Dixon v. Crawford, McGilliard, Peterson & Yelish, 163 Wn. App. 912, 919 n.7, 262 P.3d 108 (2011). When failure to plead an affirmative defense does not affect the substantial rights of the party, noncompliance will be considered harmless. Id.
Here, although the Estate and Francine did not formally plead laches in their answer, they raised it—albeit briefly—in Francine’s motion for partial summary judgment. The Commission responded to the issue in its briefing and discussed it at the summary judgment hearing, with counsel for the Commission responding on the merits. The record is replete with ongoing arguments asserted by the Estate and Francine that the delay in the Commission’s investigation was central to the dispute. Not only did the Commission have the opportunity to put on evidence about the basis for its delay, it presented evidence about this issue. In closing arguments, the Commission argued against the applicability of laches.
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On appeal, the Commission asserts it was prejudiced by the trial court’s consideration of laches. As evidence of prejudice, the Commission only offers the trial court’s ultimate decision to dismiss its claim based on laches. The Commission has not shown it was surprised by the defense of laches, nor that its ability to present its case was impaired. Instead, the record shows that the Commission consistently argued both that laches was not properly raised, and, alternatively, that the elements of laches were not met. Because the Commission received fair notice of the defense and suffered no prejudice to its substantial rights, the defense of laches was not waived.
1.2 Application of laches to a government acting in an enforcement capacity
The Commission contends laches cannot be applied against it because it was acting as a government agency enforcing the WLAD pursuant to its police power. We disagree.
Generally, equitable defenses are disfavored against governmental entities when such defenses would interfere with governmental duties, but there is no per se bar against applying equitable defenses against the government. Hous. Auth. v. Ne. Lake Wash. Sewer & Water Dist., 56 Wn. App. 589, 593, 784 P.2d 1284 (1990); see Voris, 41 Wn. App. at 287-88. Courts consider public policy functions on a case-by-case basis. See Hous. Auth., 56 Wn. App. at 593.
The WLAD is a regulatory law enacted under the legislature’s police power to “promote the health, peace, safety, and general welfare of the people of Washington.”
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Ockletree v. Franciscan Health Sys., 179 Wn.2d 769, 773 n.2, 317 P.3d 1009 (2014) (plurality opinion); see also RCW 49.60.010. The WLAD is a remedial statute that is to be liberally construed to eliminate discrimination. State v. City of Sunnyside, 3 Wn.3d 279, 316, 550 P.3d 31 (2024); WAC 162-08-013(1). (“These rules shall be interpreted liberally to promote justice and to facilitate the decision of cases on the merits.”).
The Commission cites Housing Authority for its proposition that applying laches would interfere with its exercise of governmental duties. In Housing Authority, a governmental water and sewer district tried to collect four years of undercharges from a county housing authority. 56 Wn. App. at 590-91. We held that the water and sewer district’s statutory duty to avoid rate discrimination and preferences required it to collect undercharges, and therefore, the housing authority could not assert laches. Id. at 591, 595.
The concerns present in Housing Authority do not apply in this case. The Commission correctly notes that it has a broad remedial duty under the WLAD to prevent and eliminate discrimination. However, applying laches in the circumstances presented here would not prevent the Commission from fulfilling its mission. Rather, applying laches encourages reasonable diligence in investigations. Unreasonable delay, and the death of the sole knowledgeable witness, created an obvious injustice for the remaining defendants such that laches was justified. Public policy supports holding the Commission to reasonable timelines rather than insulating prolonged inaction that prejudices private
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parties. 10 Therefore, laches was available as a defense against the Commission under these circumstances.
1.3 Laches and cause of action timely under the statute of limitations
The Commission argues laches cannot apply because the trial court ruled the suit was timely under the applicable statute of limitations. We disagree.
Laches shields against untimely claims and “statutes of limitations serve a similar function.” SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580 U.S. 328, 334, 137 S. Ct. 954, 197 L. Ed. 2d 292 (2017). “When Congress enacts a statute of limitations, it speaks directly to the issue of timeliness and provides a rule for determining whether a claim is timely enough to permit relief.” Id. “[A]pplying laches within a limitations period specified by Congress would give judges a ‘legislation-
10 As a separate argument, the Estate contends laches is barred when a government entity seeks to enforce public rights rather than private rights. The Estate argues that, here, the Commission sought to enforce the rights of private persons against another private party, and, therefore, laches was available as a defense. This argument misrepresents the Commission’s role. In State v. LG Electronics, Inc., our Supreme Court looked to the statutory provisions authorizing the action in order to determine if the legislature intended the action to “benefit [ ] the public generally, even if private individuals might benefit specifically.” 186 Wn.2d 1, 14, 375 P.3d 636 (2016). The court noted that it had previously held an action to be an exercise of governmental function where it derived its authority from the State’s police power. Id. at 14-15. “WLAD is a regulatory law enacted under the legislature’s police power to promote the health, peace, safety, and general welfare of the people of Washington.” Ockletree, 179 Wn.2d at 773 n.2. Therefore, the Commission, in bringing actions under the WLAD, acts to preserve public rights. See WAC 162-08-061 (“The commission assumes that persons who complain to it are as interested in the elimination and prevention of discrimination in general as in their individual cases.”).
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overriding’ role that is beyond the Judiciary’s power.” Id. at 335 (quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 664, 134 S. Ct. 1962, 188 L. Ed. 2d 979 (2014)). “[C]ourts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” Petrella, 572 U.S. at 667.
Here, the trial court correctly held that the only relevant limitations period was the one-year deadline for individuals to file complaints with the Commission. See RCW 49.60.230(2)(a). Neither party assigns error to this ruling. See Halvorsen v. Ferguson, 46 Wn. App. 708, 722, 735 P.2d 675 (1986) (“Failure to assign error to the [superior] court’s conclusions of law precludes consideration on appeal.”). No statute of limitations governed the length of the Commission’s investigation or the time to file suit in superior court. Because no legislative judgment on timeliness constrained the Commission, laches remained available.
1.4 Application of the three laches factors The Commission argues that, even if the trial court appropriately applied laches, the trial court erred in its application of the three necessary factors for laches.
Laches bars claims when (1) the plaintiff knew, or had a reasonable opportunity to discover, the facts constituting a cause of action, (2) the plaintiff unreasonably delayed commencing an action, and (3) the defendant was materially prejudiced by the delay in bringing the action. Davidson v. State, 116 Wn.2d 13, 25, 802 P.2d 1374 (1991). We determine all three factors are supported by substantial evidence.
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1.4.1 Knowledge of facts constituting a cause of action The trial court found the Commission was
made aware of the complaints in July and August of 2019. During its investigation, the Commission learned of additional reports relevant to its investigation. Therefore, the Commission had knowledge of the facts creating a potential cause of action.
CP at 679. The Commission argues that, as a neutral arbiter under the WLAD, it could not and did not know whether there were facts constituting a cause of action until after it completed its investigation, made a reasonable cause determination, and conciliation failed. See WAC 162-08-061(1); RCW 49.60.240(3); RCW 49.60.340. The Commission contends that while it possessed the facts alleged in the complaints as early as July 2019, it lacked knowledge of facts that would constitute a cause of action until after the procedural prerequisites were satisfied, i.e., until conciliation failed. We disagree.
No Washington statute or case supports treating conciliation failure as the moment when a party obtains knowledge of facts constituting a cause of action. The WLAD requires prompt investigation upon receipt of a complaint. RCW 49.60.240(1)(c). Analogies can be drawn from the discovery rule, which postpones limitation periods only until a plaintiff exercising due diligence should have discovered the basis for the claim, reinforces that knowledge attaches when the plaintiff reasonably suspects the wrongful act. See Allen v. State, 118 Wn.2d 753, 757-58, 826 P.2d 200 (1992). Here, the Commission had such knowledge by July and August 2019, when it received the complaints.
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The point at which a plaintiff should have discovered the injury is ordinarily a question for the trier of fact. Nichols v. Peterson Nw, Inc., 197 Wn. App. 491, 500-01, 389 P.3d 617 (2016). The trial court resolved this issue against the Commission, and substantial evidence supports its finding. The Commission bore the burden of showing it could not have discovered the basis for the claims earlier through due diligence, Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599, 603, 123 P.3d 465 (2005), but offered no persuasive evidence that its role as a neutral investigator delayed its knowledge of the facts alleged in the very complaints it received and accepted for processing in July and August 2019.
1.4.2 Unreasonable delay by plaintiff The Commission next challenges the contention that it unreasonably delayed its investigation. A delay “can only be considered unreasonable if it occurs ‘under circumstances permitting diligence.’” In re Marriage of Hunter, 52 Wn. App. 265, 270, 758 P.2d 1019 (1988). To determine “whether the delay was inexcusable,” we “may look to a variety of factors including similar statutory and rule limitation periods.” Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 848-49, 991 P.2d 1161 (2000).
While the statutory scheme does not impose a time limitation on the Commission’s investigations, the Commission is subject to regulations under WAC 162- 08-09401:
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(5) The commission shall complete its investigation of an allegation of an unfair practice in a real estate transaction within one hundred days of filing a duly prepared and signed complaint with the commission, unless it is impracticable to do so.
(6) If the commission is unable to complete the investigation of the complaint within one hundred days of filing, commission staff will advise the parties in writing of the reasons for not completing the investigation in the time allotted.
(Emphasis added.)
Here, the Commission offered no persuasive reason or evidence to explain why its investigation substantially exceeded the presumptive 100-day period under WAC 162-08- 09401, nor why complying with that timeframe was impracticable. Termer testified that complex cases can take longer to investigate. In this case, she contacted and interviewed more than a dozen witnesses without assistance from the Saracenos. While the Commission points to the Saracenos’ lack of cooperation as explanation for its delay, the Saracenos had no obligation to assist the Commission with its investigation. Moreover, the investigation expanded to include numerous noncomplainant witnesses, beyond the statutory scope. RCW 49.60.240(2) (“The investigation shall be limited to the alleged facts contained in the complaint.”). The expanded scope of investigation, beyond the facts alleged in the complaints, presumably contributed to the Commission’s significant delay.
While the Commission advised the Saracenos of the delay in two separate notices, those notices likewise failed to explain why the Commission needed twoand one-half years to complete its investigation. The initial notice indicated the Commission needed an
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additional 60 days to investigate because it had received a large number of complaints. The second notice sent on December 27, 2019, again explained that the investigation had been “temporarily on hold due to a . . . large influx of housing discrimination cases over the past year,” but the case was now proceeding. CP at 219. Another two years elapsed before the Commission issued its finding of reasonable cause. A general backlog does not excuse such prolonged inaction and the Commission offered no other reasonable basis for its delay. 11 The trial court did not err in concluding the Commission unreasonably delayed its investigation.
1.4.3 Damage to defendant resulting from delay The Commission lastly contends the Estate and Francine did not suffer prejudice because of the delayed investigation. Relying on Voris, the Commission argues that because the Saracenos received notice of the complaints against them within weeks of the complaints being filed, they had opportunities to respond and preserve evidence and thus cannot assert laches. In Voris, the defendant received notice of the complaint against her
11 In further explanation of the delay in the investigation, the Commission notes that it conducted the investigation between late 2019 through 2021 and, therefore, the investigation largely occurred during the COVID-19 pandemic. The Commission asks this court to take judicial notice of the COVID-19 pandemic. The Commission did not raise this before the trial court. Because the trial court did not have an opportunity to consider this, we decline to take judicial notice. See King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 142 Wn.2d 543, 549 n.6, 14 P.3d 133 (2000) (“Even though ER 201 states that certain facts may be judicially noticed at any stage of a proceeding, RAP 9.11 restricts appellate consideration of additional evidence on review.”).
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within 15 days of its filing, even though the Commission’s action did not proceed to a hearing until threeand one-half years later. 41 Wn. App. at 285-86, 288. This court held that, “[b]ecause Mrs. Voris had knowledge of the pending claim by no later than November 19, 1977, she may not now assert laches on the basis of her failure to preserve evidence.” Id. at 288.
The case before us is factually distinct from Voris. Robert—the primary actor of the complaints—died during the investigation, nearly two years after the Commission received the initial complaints. The trial court found Francine never entered any of the rental units, never met nor contacted any of the tenants or prospective tenants, and did not provide assistance or input on the management of the rentals. The trial court also found that while Francine was aware that she and Robert received mail from the Commission, she did not open the mail. The Commission does not challenge these findings on appeal. See Halvorsen, 46 Wn. App. at 722 (“Unchallenged findings of fact become verities on appeal.”).
Without personal knowledge of the events or tenant interactions, neither Francine nor the Estate could offer evidence about what occurred. Such inability to offer evidence does not equate to a right to put on a winning defense, as asserted by the Commission. There is no guarantee that Robert’s testimony would have resulted in a successful defense. Rather, the prejudice to the Estate and Francine stems from their inability to mount any meaningful defense with the absence of the sole witness with knowledge.
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The Commission also argues that because it sued Francine in her individual capacity as co-owner of the rental properties, laches does not apply. The Commission argues that Francine’s status as a property owner gives rise to liability for harassment under the WLAD.
Liability under the WLAD extends to owners or managers who engage in harassment or who “knew or should have known of the harassment and failed to take remedial action.” Tafoya v. State Human Rights Comm’n, 177 Wn. App. 216, 228, 311 P.3d 70 (2013). In the employment context, as referenced in Tafoya, a complainant can show an employer knew or should have known of the harassment by proving that complaints were made to the employer, or by proving such pervasive sexual harassment at the workplace as to infer the employer had constructive knowledge. Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985); see also Tafoya, 177 Wn. App. at 228.
Here, Francine cannot be held liable for Robert’s alleged harassment. The Commission does not allege, nor does the record indicate, that Francine directly engaged in harassment. As discussed above, the record likewise does not indicate Francine knew or should have known of the harassment. The trial court found no evidence that Francine knew of the harassment. No tenant complained directly to Francine. Finally, without participating in the acquisition or management of the rental properties, Francine could not have constructively known about the harassment.
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The Commission exclusively cites federal case law interpreting the Fair Housing Act (FHA) for its proposition that Francine can be held liable solely based on her status as co-owner of the rental properties. See United States v. Veal, 365 F. Supp. 2d 1034, 1040-41 (W.D. Mo. 2004); Alexander v. Riga, 208 F.3d 419, 432-33 (3d Cir. 2000); Walker v. Crigler, 976 F.2d 900, 904-05 (4th Cir. 1992). We decline to apply nonbinding federal law to this case.
The Commission lastly argues that finding prejudice based on Robert’s death produces an unreasonable result, namely, that any claim would be barred by laches when a key witness dies during the pendency of the action. We do not find this argument persuasive. For laches to apply, the defendant must first demonstrate unreasonable delay by the plaintiff. Here, had the Commission acted without unreasonable delay, laches would not apply. 12 We hold the trial court did not err in applying laches.
12 The Estate raised a further argument that, because the trial court applied the Deadman’s statute to bar testimony from the complainants against the Estate, there were no admissible facts, and the case became frivolous “per se.” Amended Br. of Resp’t at 33. However, the trial court’s ruling on the application of laches did not rely in any way on the application of the Deadman’s statute. Further, no party assigned error to the trial court’s order on the motion for partial summary judgment nor did the Estate file a crossappeal . This issue is not properly on appeal, and this court declines to consider it. See RAP 10.3(g); see also Palomarez v. Wilcox, No. 36842-4-III, slip op. (unpublished portion) at 15 n.11 (Wash. Ct. App. Nov. 5, 2020), https://www.courts.wa.gov/opinions /pdf/368424_pub.pdf.
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2. Findings of fact and substantial evidence The Commission argues that three of the trial court’s findings of fact related to the Commission’s delayed investigation were not supported by substantial evidence. We review a trial court’s challenged findings of fact for substantial evidence. See Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). “Substantial evidence is ‘defined as a quantum of evidence sufficient to persuade a rational fair- minded person the premise is true.’” McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227 (2012). The finder of fact may make reasonable inferences from the evidence presented. Adler v. Univ. Boat Mart, Inc., 63 Wn.2d 334, 337-38, 387 P.2d 509 (1963). However, “the existence of a fact cannot rest upon guess, speculation or conjecture.” State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972).
“If the standard is satisfied, a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently.” Sunnyside Valley Irrig. Dist., 149 Wn.2d at 879-80. However, “unsupported findings [of fact] cannot stand.” Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 345, 858 P.2d 1054 (1993).
The Commission challenges the following three findings of fact:
30. At trial, Heidi Termer, a civil rights specialist for the Commission, testified but did not provide any basis for why the investigation was not completed within 100 days of receiving the complaints.
31. If the Commission had completed its investigation within 100 days of receiving the complaints–in December of 2019–it is more likely than not
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that Mr. Saraceno would have been able and available to participate in the civil action filed by the Commission, in Spokane County Superior Court.
32. Due to the lengthy delay in the Commission’s investigation and reasonable cause finding, Mr. Saraceno was unavailable to testify at trial and Ms. Saraceno provided credible testimony that she had no personal knowledge of any of the allegations against the Saracenos.
CP at 655 (footnote omitted).
2.1 Finding of fact 30 Regarding finding 30, the Commission argues it provided a basis to explain the length of the investigation. The Commission points to the letters it sent to the Saracenos in November and December 2019, notifying them the investigation would be delayed due to a large influx of complaints.
As an initial matter, finding 30 states that Termer did not provide a basis for the delay in the investigation. By pointing solely to the letters contained in the record, the Commission fails to indicate how the trial court erred in finding that Termer did not explain the delay in the investigation.
Regarding Termer, she testified that she contacted and interviewed more than a dozen witnesses without assistance from the Saracenos. However, when asked on cross-examination about the 100-day timeline, Termer simply testified that the investigation took more than 100 days and that the Commission sent a letter to the Saracenos indicating the investigation was delayed. She did not explain the delay or why, after sending the December 27, 2019 letter, no
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subsequent letters were sent to the Saracenos to explain the ongoing delay or give a timeline for the investigation’s anticipated conclusion.
Substantial evidence supports the trial court’s finding that Termer did not provide a basis for the delayed investigation.
2.2 Findings of fact 31 and 32 Regarding findings 31 and 32, the Commission argues these two findings of fact rely on speculation and conjecture and are therefore not supported by substantial evidence. In support of its argument, the Commission notes that 23 months elapsed between the issuance of the Commission’s reasonable cause finding and the case going to trial. Based on this timeline, the Commission argues that even if it had completed its investigation within the 100 days, Robert would have died before trial. It further argues there is no evidence Robert would have been “able and available” to testify at trial if the Commission had concluded its investigation within 100 days.
This does not, however, give weight to the timeline of what would have happened if the Commission had focused its investigation on the claims made in the submitted complaints, rather than broaden the scope of the investigation to tenants, going back to 2005, who had not made claims.
The trial court’s challenged findings of fact were supported by substantial evidence.
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3. Award of attorney fees and costs to the Estate and Francine The Commission contends there was no basis to award fees and costs to the Estate and Francine under RCW 49.60.340. The Commission argues the trial court could only award fees and costs if it found the Commission’s action to be groundless, frivolous, or unreasonable. We affirm the award of fees.
This court reviews a trial court’s award of attorney fees for an abuse of discretion.
See Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998). To reverse an attorney fee award, we must find the trial court exercised its discretion on untenable grounds or for untenable reasons. Chuong Van Pham v. City of Seattle, 159 Wn.2d 527, 538, 151 P.3d 976 (2007). “Attorney fees may be recovered only when authorized by statute, a recognized ground of equity, or agreement of the parties.” Perkins Coie v. Williams, 84 Wn. App. 733, 742-43, 929 P.2d 1215 (1997). In this case, the trial court awarded attorney fees under the WLAD, which states in relevant part:
In any administrative proceeding brought under RCW 49.60.225 or any court proceeding arising therefrom, or any civil action under this section, the administrative law judge or the court in its discretion may allow the prevailing party, other than the commission, reasonable attorneys’ fees and costs.
RCW 49.60.340(6).
The Commission argues that, in civil rights actions, the court should only award fees where the plaintiff’s action was “frivolous, unreasonable, or without foundation.” Appellant’s Opening Br. at 68. The Commission relies on several cases that held, in the
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context of 42 U.S.C. §1983 and the FHA, courts should only award fees after finding the plaintiff’s action to be unfounded or frivolous. See Wash. State Republican Party v. Wash. State Pub. Disclosure Comm’n, 141 Wn.2d 245, 289, 4 P.3d 808 (2000); Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978); Abdelhalim v. Lewis, 90 F.4th 265, 272 (4th Cir. 2024). These courts imposed this requirement based on a public policy concern that “Congress did not want to discourage plaintiffs from bringing reasonable cases.” Abdelhalim, 90 F.4th at 271-72.
No Washington case law exists to support the Commission’s contention that the same requirement applies to lawsuits brought by the Commission under the WLAD. The plain language of the WLAD imposes no required finding that the action was frivolous or unfounded. Rather, the WLAD simply states that a prevailing party, other than the Commission, can recover attorney fees and costs. See RCW 49.60.340(6). We decline to impose a barrier to the recovery of fees not included by the legislature.
The Estate argues that it was also entitled to attorney fees under the probate code and that it should receive an award of fees from the former tenants who did not file complaints with the Commission. We decline to consider these arguments as they were not ruled on by the trial court. See Rones v. Safeco Ins. Co., 119 Wn.2d 650, 656, 835 P.2d 1036 (1992).
We affirm the award of attorney fees to the Estate and Francine.
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APPELLATE FEES AND COSTS
The Estate and Francine contend they should be awarded attorney fees on appeal under RAP 18.1 and RAP 14.2. The Estate also argues it is entitled to appellate fees under the WLAD and the probate code, and because the Commission’s appeal was frivolous. We decline to make an award of attorney fees or costs to any party.
CONCLUSION
The trial court properly applied laches and substantial evidence supported its findings of fact. We affirm the judgment of dismissal and the award of attorney fees and costs.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
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Murphy, J.
WE CONCUR:
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Lawrence-Berrey, J.
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Cooney, A.C.J.