author: Andrus, J.

text:
    Andrew Lee BENJAMIN, as Successor Administrator of the Estate of Lue Alice Green, Appellant, v. Dalynne SINGLETON and John Doe Singleton, her Husband, and the Marital Community Composed Thereof, and Law Office of B. Craig Courley, PLLC, a Washington Professional Limited Liability Company, d/b/a Gourley Law Group, Respondent.
    No. 77684-3-I
    Court of Appeals of Washington, Division 1.
    FILED: January 28, 2019 PUBLICATION ORDERED February 28, 2019
    Robert B. Gould, Law Office of Robert B. Gould, PO Box 6227, Edmonds, WA, 98026-1200, for Appellant.
    Rodney L. Umberger Jr., Daniel Velloth, Williams Kastner & Gibbs PLLC, 601 Union St. Ste. 4100, Seattle, WA, 98101-2380, for Respondent.
   Andrus, J.

¶1 Successor administrator Andrew Benjamin appeals the dismissal of his legal malpractice claim against Dalynne Singleton, the attorney for predecessor administrator Leonardo Monk. Because "neither an estate beneficiary nor a successor personal representative has privity of contract to bring a malpractice cause of action" against the attorney for a predecessor personal representative, Trask v. Butler, 123 Wash.2d 835, 847, 872 P.2d 1080 (1994), we affirm.

FACTS

¶2 Lue Alice Green died intestate on April 20, 2005. Green had eight children and three grandchildren entitled to inherit from her estate. The sole estate asset was a home located at 1425 East Union Street, in the Capitol Hill neighborhood of Seattle (the East Union Property). At the time of Green's death and until the probate was filed, some of Green's children lived in the East Union Property.

Benjamin contends that the shared living situation ended when one of Green's sons, Monk, moved into the East Union Property with his girlfriend and his girlfriend's child, over the objection of other family members.

¶3 Monk filed a probate action in King County Superior Court on June 16, 2016. Attorney Julie Christenson originally appeared on behalf of Monk. With the apparent consent of the beneficiaries, the court appointed Monk administrator of Green's estate without bond and granted letters of administration.

¶4 On August 2, 2016, Dalynne Singleton appeared on behalf of Monk. Singleton sought and obtained an order authorizing and approving the sale of the East Union Property. In mid-November 2016, Monk sold the East Union Property with net proceeds of $501,651.99, which he placed into an unblocked Wells Fargo bank account. Monk then spent over $110,000 of the proceeds for his personal use, violating a court order to disperse the proceeds to Green's beneficiaries.

¶5 Benjamin alleged that on December 16, 2016, the court removed both Monk and Singleton. The court appointed Benjamin as successor administrator on December 19, 2016. On February 1, 2017, the trial court found that Monk had illegally converted $160,245.57 of estate assets and ordered him to repay this sum to the estate. The court also directed Benjamin to report the conversion of funds to the King County Prosecutor for the imposition of criminal charges. Furthermore, the court suspended payment of attorney fees to Singleton and to John Woodbery, the attorney hired by two of Green's beneficiaries, Edward and Freddie Lee Green. Finally, the court ordered Benjamin to "investigate, retain counsel regarding, and give notice of a potential professional liability claim on behalf of the Estate and its beneficiaries against Ms. Singleton for failing to make banking arrangements that would protect the estate and its beneficiaries from improper withdrawals."

¶6 Benjamin filed this action against Singleton and the law firm for which she worked, alleging legal malpractice and breach of fiduciary duty. Singleton moved to dismiss Benjamin's complaint under Civil Rule 12(b)(6), arguing that Benjamin lacked standing under Trask v. Butler, The trial court granted Singleton's motion to dismiss. Benjamin appeals.

ANALYSIS

¶7 We review a dismissal for failure to state a claim de novo. Tenore v. AT&T Wireless Servs., 136 Wash.2d 322, 329-30, 962 P.2d 104 (1998). Dismissal is appropriate only if it appears beyond doubt the plaintiff cannot prove any set of facts that would justify recovery. Id. In reviewing the record, we assume the plaintiff's allegations are true. Id. at 330, 962 P.2d 104.

¶8 Benjamin alleged Singleton breached the standard of care of a reasonable probate attorney by failing (1) to inform the probate court of the discord between Monk and the other heirs, (2) to require Monk to post a bond, (3) to seek the appointment of a guardian ad litem for a developmentally disabled heir, (4) to ensure the proceeds from the house sale were placed into a blocked or interest-bearing trust account, and (5) to disclose Monk's theft of proceeds to the court. Benjamin also alleged that Singleton owed a fiduciary duty to Benjamin and to the estate beneficiaries, which she breached through her acts of malpractice.

¶9 The facts of this case are analogous to those in Trask. In that case, Laurel Slaninka, the personal representative for the estates of her parents, Johanna and George Trask, breached her fiduciary duty in the management of the estate's real property, and the court removed her as personal representative of both estates. Trask, 123 Wash.2d at 838-39, 872 P.2d 1080. Laurel's brother, Russell, was appointed as successor personal representative. Id. at 837, 839, 872 P.2d 1080. Laurel and Russell signed a settlement agreement whereby Laurel gave Russell her share of the estate in exchange for a release of liability. Id. at 839, 872 P.2d 1080. Russell then filed a malpractice suit against Laurel's attorney, Richard Butler, who had represented her in a quiet title action and the sale of the estate's real property, alleging Butler had negligently advised Laurel, resulting in a loss of $90,000 from the estate. Id.

¶10 The Court recognized that traditionally, the only person who can sue an attorney for malpractice is the client. Id. at 840, 872 P.2d 1080. After applying a six-factor balancing test, it held that an attorney representing a personal representative owes no duty of care to either the estate or estate beneficiaries because they are incidental, rather than intended, beneficiaries of the attorney-client relationship. Id. at 845, 872 P.2d 1080. The Court clearly held that a successor personal representative, on behalf of an estate, lacks the requisite privity of contract to bring a malpractice action against the predecessor personal representative's attorney. Id. at 847, 872 P.2d 1080.

¶11 Like Laurel, Monk hired an attorney to assist him in probating his mother's estate, and the attorney assisted him in obtaining an order authorizing and approving the sale of Green's home. Like Laurel, Monk misused estate assets and was removed as administrator. Benjamin, like Russell, was appointed to succeed Monk as administrator. Benjamin has not demonstrated why he would be deemed an intended beneficiary of Singleton's legal services when the Supreme Court held that Russell was not. Benjamin argues he stands in a different position than Russell did in Trask v. Butler because he is not a beneficiary of the estate. But Benjamin brings this lawsuit in his representative capacity for the estate. His complaint seeks damages "caused to [the] Plaintiff Estate." It, thus, makes no difference whether Benjamin is a beneficiary of the estate. The Supreme Court's holding in Trask is clear: Singleton did not owe a duty of care to the estate. ¶12 Benjamin asserts standing under In re Guardianship of Karan, 110 Wash. App. 76, 38 P.3d 396 (2002) and Estate of Treadwell v. Wright, 115 Wash. App. 238, 61 P.3d 1214 (2003). Those cases, however, are distinguishable because both involved attorneys hired to establish guardianships where, as both courts explicitly said, the ward was the only intended beneficiary of the legal services the attorneys provided. See Karan, 110 Wash. App. at 78-79, 85-86, 38 P.3d 396 (attorney's failure to comply with statutory requirements resulted in guardian mismanaging the ward's funds, giving successor guardian standing to sue attorney on behalf of ward because services were not performed for the benefit of anyone other than the ward); Treadwell, 115 Wash. App. at 241, 61 P.3d 1214 (successor guardian had standing to sue on behalf of ward after attorney's omission of bond requirement in signed guardianship order resulted in issuance of letters of guardianship without restrictions, resulting in the guardian depleting the ward's assets). Both Karan and Treadwell are factually distinguishable because Singleton's legal services did not involve the creation of a guardianship. Her legal services were performed for the benefit of her client, Monk, and as in Trask, the estate and Green's heirs were incidental, not actual, beneficiaries of her services. The facts of Trask are more directly analogous.

¶13 Benjamin also argues that denying him standing insulates negligent attorneys from liability. The Supreme Court rejected this policy argument in Trask. The estate and its beneficiaries have a legal remedy. "[T]he personal representative owes the beneficiaries of an estate a fiduciary duty to act in the estate's best interest. If the personal representative's conduct falls below this standard, the estate beneficiaries may bring a cause of action against the personal representative for breach of fiduciary duty." Trask, 123 Wash.2d at 843, 872 P.2d 1080. Those harmed by a personal representative's mismanagement of an estate do not lack legal redress.

¶14 The Trask court also recognized that, under Washington probate laws, estate beneficiaries have the ability to take a proactive role in the management of the estate and to seek court orders directing a personal representative's actions. Id. at 844, 872 P.2d 1080. The estate beneficiaries had the ability to take measures to protect their interests against possible malfeasance by Monk.

¶15 Finally, the Supreme Court determined that the "unresolvable conflict of interest that an estate attorney encounters in deciding whether to represent the personal representative, the estate, or the estate heirs unduly burdens the legal profession." Id. at 845, 872 P.2d 1080. It decided this policy concern trumped the possibility that estate beneficiaries would be unable to recoup money wrongfully converted by a predecessor personal representative. See also Parks v. Fink, 173 Wash. App. 366, 388-89, 293 P.3d 1275 (2013) (beneficiary of will lacked standing to sue decedent's attorney for negligent preparation of will; imposing duty of care diminished attorney's duty of undivided loyalty to client).

¶16 The same policy considerations exist here. Singleton owed an undivided duty of loyalty to Monk. Requiring Singleton to act in the best interest of the estate or all its heirs would create the risk of interfering with her duty of undivided loyalty to him. The risk of such interference outweighs the risk of harm to the other beneficiaries.

¶17 Affirmed.

WE CONCUR:

Chun, J.

Mann, A.C.J.

      The terms "administrator," "personal representative," and "successor administrator" may be used interchangeably. RCW 11.02.005(11).

      Singleton disputes this characterization of the December 16, 2016 order, contending that she voluntarily withdrew. The December 16, 2016 order is not a part of the record on appeal.

      Singleton was employed as an independent contractor by the law firm of Respondent Law Office of B. Craig Gourley, PLLC. We refer to the Respondents collectively as "Singleton."

      Benjamin also relies on In re the Estate of Williams, 153 Wash. App. 1047, 2009 WL 5092865 (Div. 1, 2009). Because it was decided prior to 2013, it does not meet the requirements of General Rule 14.1, and we will not consider its applicability to this appeal.


source: Caselaw Access Project

author: Chun, J.

license: Public Domain

text:
    Theresa BOYLE and Kent Boyle, Husband and Wife, Appellants, v. John W. LEECH and Brenda G. Leech, Husband and Wife, Respondents.
    No. 79069-2-I
    Court of Appeals of Washington, Division 1.
    Filed January 28, 2019 Publication Ordered March 5, 2019
    Warren J. Daheim, Attorney at Law, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, 98402-4314, for Appellants.
    Kyle Anthony Jones, James N. Mendel, Tyson & Mendes, LLP, 200 W Mercer St. Ste. 411, Seattle, WA, 98119-3958, Thomas Henry Oldfield, Oldfield Law Office, 1212 S Fernside Dr., Tacoma, WA, 98465-1303, Mark Dietzler, Law Offices of Mark Dietzler, 1001 4th Ave. Ste. 3300, Seattle, WA, 98154-1125, for Respondents.
    PUBLISHED OPINION
   Chun, J.

¶1 The Boyles brought a nuisance action against their neighbors, the Leeches, for staining caused by debris from a tree on the latter's property. The trial court granted the Leeches' motion for summary judgment, ruling as a matter of law that the Boyles did not establish actionable nuisance. We affirm.

I.

BACKGROUND

¶2 John Leech lived at his current residence as a child in the 1950s. He moved back to the property in 1995 and currently lives there with his wife. A coastal redwood tree has grown on the property since Leech first lived there, and he believes that someone planted the tree in the 1930s. Leech estimates the trunk of the tree sits approximately 70 feet from the boundary line with the Boyles' neighboring property. He also estimates the branches stop approximately 50 feet before the boundary line. Leech stated he has received no prior complaints about the tree from the neighbors.

¶3 The Boyles moved into their home in July 2013. Wind blows debris from the Leeches' tree onto the Boyles' property.

Sometimes, this debris causes staining. The staining does not remove easily, and requires power washing or strong cleaning products.

¶4 The Boyles hired Brian Allen, a certified arborist, to inspect the tree on the Leeches' property. Allen determined the sap and cones from the tree contains tannic acid, which stains the Boyles' property. In his report, Allen stated the tree "is dying slowly," causing excessive sap and cone production. Despite this diagnosis, Allen noted the "[t]ree is not currently considered high risk." On a 1 to 10 health scale (1 being the highest risk, with the potential for critical failure at any moment), Allen ranked the health of the tree as close to a 7. As a recommendation, the report provides, "Due to client's motivations, and the potential for continued and worsening damage to surrounding property, removal is recommended."

¶5 Because of the staining, the Boyles filed a nuisance action against the Leeches on September 28, 2016. The Boyles requested $5,000 in damages and asked the court to order the Leeches to abate the nuisance.

¶6 On June 26, 2017, the Leeches moved for summary judgment, arguing the Boyles failed to establish a prima facie case of nuisance.

¶7 The trial court granted the Leeches' motion for summary judgment on August 25, 2017. The Boyles filed a motion for reconsideration, which the court denied.

¶8 The Boyles appeal.

II.

ANALYSIS

A. Nuisance

¶9 The Boyles assert the trial court erred by ruling that debris from a tree wholly on a neighboring party's property cannot constitute a nuisance as a matter of law. The Leeches argue the Boyles did not establish a nuisance caused by any unlawful act or omission. Additionally, the Leeches contend the tree cannot constitute a nuisance because it exists entirely on their property. We conclude the trial court did not err by granting summary judgment in favor of the Leeches.

¶10 Appellate courts review de novo a trial court order granting summary judgment. MJD Props. LLC v. Haley, 189 Wash. App. 963, 968, 358 P.3d 476 (2015). Thus, on review, an appellate court engages in the same inquiry as the trial court and considers the facts in the light most favorable to the nonmoving party. Lewis v. Krussel, 101 Wash. App. 178, 182, 2 P.3d 486 (2000). A trial court properly grants summary judgment where the case presents no genuine issues of material fact and a party is entitled to judgment as a matter of law. Lewis, 101 Wash. App. at 182, 2 P.3d 486. "A material fact is one that affects the outcome of the litigation." Lewis, 101 Wash. App. at 182, 2 P.3d 486.

¶11 RCW 7.48.010 defines "actionable nuisance" as follows:

The obstruction of any highway or the closing of the channel of any stream used for boating or rafting logs, lumber or timber, or whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief.

In Washington, "an unreasonable interference with another's use and enjoyment of property" constitutes a nuisance. Wallace v. Lewis County, 134 Wash. App. 1, 18, 137 P.3d 101 (2006) (citing Kitsap County v. Allstate Ins. Co., 136 Wash.2d 567, 592, 964 P.2d 1173 (1998) ); see also MJD Props. LLC, 189 Wash. App. at 970, 358 P.3d 476 ("An activity constitutes a nuisance when it interferes unreasonably with a neighbor's use and enjoyment of his or her property.").

¶12 In nuisance cases, the trial court mainly considers whether a party reasonably uses his or her property. MJD Props. LLC, 189 Wash. App. at 970, 358 P.3d 476 ;

Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 689, 709 P.2d 782 (1985) (providing that "unreasonableness of the interference is necessary for liability"). To determine whether a use is reasonable, courts balance the rights, interests, and convenience unique to the case. Mustoe v. Ma, 193 Wash. App. 161, 169, 371 P.3d 544 (2016). Trial courts consider all the surrounding facts and circumstances. Jones v. Rumford, 64 Wash.2d 559, 563, 392 P.2d 808 (1964) ; Mustoe, 193 Wash. App. at 169, 371 P.3d 544 ("In a nuisance case, the fundamental inquiry concerns whether the use of certain land can be considered reasonable in relation to all the facts and circumstances."). "While reasonableness is typically a question of fact, a court may resolve such questions as a matter of law where reasonable minds could come to only one conclusion." Lakey v. Puget Sound Energy, Inc., 176 Wash.2d 909, 924, 296 P.3d 860 (2013).

¶13 Here, the tree grows entirely on the Leeches' property, without branches overhanging onto the Boyles' yard. Leech believes the tree has been on the property for 80 years. Aside from the Boyles, no neighbor has ever complained to Leech about the tree.

¶14 The Boyles describe the tree as "a dying tree shedding toxic debris." Though their expert opined that the tree is dying slowly, he determined the tree remained relatively healthy. The expert's report describes the tree's debris as "excessive" rather than toxic. The report further explains there is only a "potential" for continued damage and recommends removal "due to client's motivations."

¶15 The Leeches did not act unreasonably with regard to the tree, especially given the tree is located entirely on their property. As such, the Boyles cannot establish nuisance as a matter of law. The Leeches are not required to remove the tree to prevent staining from occurring on the Boyles' property. Cf. Gostina v. Ryland, 116 Wash. 228, 232, 199 P. 298 (1921) ("the person over whose land [branches] extend may cut them off, or have his action for damages ... but he may not cut down the tree").

¶16 No published case in Washington (or elsewhere, apparently) addresses a nuisance action regarding a tree situated wholly on another's property. However, the Washington Supreme Court's opinion in Gostina, provides insight. In Gostina, the Supreme Court determined that overhanging tree branches or encroaching roots onto a neighboring property constitute nuisances. Gostina, 116 Wash. at 231, 199 P. 298. Furthermore, a property owner who permits his or her tree to extend onto a neighboring property commits "an unequivocal act of negligence." Gostina, 116 Wash. at 232, 199 P. 298. Accordingly, the case holds a party may cut back to the property line any tree branches or roots that intrude onto his or her property. Gostina, 116 Wash. at 233, 199 P. 298. In dicta, the Court noted, "[t]he remainder of the trees will doubtless shed their leaves and needles upon the [plaintiff's] premises; but this they must endure positively without remedy." Gostina, 116 Wash. at 235, 199 P. 298.

¶17 Other courts have reached similar conclusions. In Cannon v. Neuberger, 1 Utah 2d 396, 268 P.2d 425 (1954), a plaintiff sued a neighbor to remove the trees on their property that encroached onto his. The plaintiff appealed the trial court's order, which denied his request for an order requiring the defendants to either remove the trees at issue or control their growth to prevent them from overspreading or dropping leaves, twigs, and branches. Cannon, 1 Utah 2d at 397, 268 P.2d 425. In affirming the trial court's order, the Utah Supreme Court noted as follows:

It is common knowledge that winds break branches from trees, and that trees in this climate, hard wood or otherwise, shed twigs, branches, leaves or needles. To hold trees to be nuisances subject to abatement in equity, or subject to actions at law for damages, merely because leaves or twigs or even branches in the ordinary course of affairs may be blown from them onto neighbors' lots, would be to condemn to abolition all shade trees in communities sufficiently settled to have perils of such experiences.

Cannon, 1 Utah 2d at 399, 268 P.2d 425.

¶18 The Intermediate Court of Appeals of Hawaii discussed the issue in Whitesell v. Houlton, 2 Haw. App. 365, 632 P.2d 1077 (1981). Although this case also addressed tree branches that overhung a neighbor's property, the court held "that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit." Whitesell, 2 Haw. App. at 367, 632 P.2d 1077. Certainly, if natural debris from an overhanging tree should not constitute a nuisance, neither should such debris from a tree that does not encroach onto neighboring property.

¶19 Finally, in Ponte v. DaSilva, 388 Mass. 1008, 446 N.E.2d 77 (1983), the plaintiff suffered injury when she slipped on branches that had fallen onto her property from a neighbor's overhanging tree. The Supreme Judicial Court of Massachusetts held "[t]he failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor's property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance." Ponte, 388 Mass. at 1010, 446 N.E.2d 77. Following Ponte, the Kentucky Court of Appeals also concluded that "[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees." Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551, 552 (1985).

¶20 Wind blowing natural debris from the Leeches' tree causes staining on the Boyles' property. We decide that this-debris from a tree wholly on another's property-does not constitute a nuisance. Cases from other courts accord with this conclusion. Therefore, the trial court did not err in granting summary judgment in favor of the Leeches.

B. Attorney Fees on Appeal

¶21 In their request for attorney fees, the Leeches cite RAP 18.1 and request "any and all statutory costs and fees that they may be entitled to as the prevailing party." However, RAP 18.1"requires more than a bald request for attorney fees on appeal. Argument and citation to authority are required under the rule to advise the court of the appropriate grounds for an award of attorney fees and costs." Stiles v. Kearney, 168 Wash. App. 250, 267, 277, P.3d 9 (2012). Because the Leeches fail to provide any grounds for an attorney fee award on appeal, we deny their request.

¶22 Affirmed.

WE CONCUR:

Schindler, J.

Appelwick, C.J.

      Additionally, nothing in the record suggests the tree's roots encroach onto the Boyles' property.

      Because we determine the trial court did not err in ordering summary judgment, we similarly decide the court properly denied the Boyles' motion for reconsideration.


text:
    GREENSUN GROUP, LLC, Appellant, v. CITY OF BELLEVUE, Respondent.
    No. 77635-5-I
    Court of Appeals of Washington, Division 1.
    FILED: March 4, 2019
    Bryan Wesley Krislock, Davidson, Kilpatric & Krislock, PLLC, 520 Kirkland Way Ste. 400, Kirkland, WA, 98033-6256, Kenneth Harry Davidson, Attorney at Law, PO Box 817, Kirkland, WA, 98083-0817, for Appellant.
    Jessica Anne Skelton, Athanasios P. Papailiou, Jamie L. Lisagor, Matthew J. Segal, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Respondent.
    PUBLISHED OPINION
   Chun, J.

¶1 Greensun Group LLC (Greensun) brought a claim against the City of Bellevue (the City) for tortious interference with business expectancy. We address whether the trial court properly dismissed the claim on summary judgment. In doing so, we discuss each element of the tort. And we discuss the affirmative defense of privilege.

¶2 Upon passage of Initiative 502 (I-502) in 2012, the City issued a regulation prohibiting marijuana retail shops from being located within 1,000 feet of each other (the 1,000 Foot Separation). In 2014, the City denied Greensun a license to operate such a shop after determining the business planned to locate too close to another shop deemed "first-in-time."

¶3 Greensun then filed this action against the City, claiming violations of the due process and privileges and immunities clauses of the Washington State Constitution. The trial court dismissed the case on summary judgment. Greensun appealed. Because the City adopted its first-in-time rule without engaging in formal rule-making, this court invalidated it.

¶4 On remand, Greensun amended its complaint to claim tortious interference with business expectancy. On cross-motions for summary judgment, the trial court dismissed Greensun's claim and declared the City had remedied the rule-making issue identified in the first appeal.

¶5 Because genuine issues of fact exist as to the tortious interference claim, we affirm in part and reverse in part the trial court's order denying Greensun's motion for partial summary judgment and granting the City's summary judgment motion. We remand the case for trial.

I.

BACKGROUND

A. Facts

¶6 On November 6, 2012, Washington passed I-502. Laws of 2013, ch. 3 § 41. I-502, in part, legalized the possession of limited amounts of marijuana and directed the Washington State Liquor Control Board (the LCB) to develop and implement rules to regulate and tax recreational marijuana retailers by December 31, 2013.

¶7 Greensun's managing members, Seth Simpson and David Ahl, leased a retail space at 10600 Main Street, Bellevue, Washington on November 29, 2012. They planned to open a retail marijuana shop there. As such, Greensun made several upgrades to the building. It intended to operate a medical marijuana business at the space until the LCB implemented the regulations for recreational marijuana. Greensun applied to the City for a building permit on January 8, 2013.

¶8 The City opposed Greensun's attempt to open a medical marijuana operation, claiming the proposed use violated Bellevue's Land Use Code (LUC). The City obtained injunctive relief prohibiting the opening of a medical marijuana facility at the location. Greensun then abandoned its plan to open a medical marijuana store. However, because it still planned to use the space for recreational marijuana, it extended its lease through June 30, 2016.

¶9 The LCB then opened the application process for retail marijuana licenses. Greensun applied. By March 1, 2014, the LCB had screened Greensun's application and listed it as one of 19 qualified applicants for licenses in Bellevue.

¶10 On March 17, 2014, the City adopted Ordinance 6156, which extended Ordinance 6133 B-1 for an additional six months and implemented a new restriction-the 1,000 Foot Separation. Under the restriction, no marijuana retailer could be located within 1,000 feet of any other marijuana retailer.

¶11 On April 2, 2014, the LCB announced it would process license applications "with geographic distribution and population density in mind." To this end, the LCB allocated a predetermined number of initial licenses for recreational marijuana stores to each jurisdiction. If the number of applicants in a jurisdiction exceeded its number of licenses, the LCB would use a lottery system to determine which applicants it would license. The LCB stated it expected to issue the initial retail licenses in "batches" during the first week of July 2014.

¶12 The LCB initially allocated four such licenses for Bellevue. Because 19 qualified applicants sought to open shops in Bellevue, the LCB held a lottery on May 2, 2014. Greensun ranked fifth. Two other applicants, Par 4 Investments LLC (Par 4) and High Society, ranked in the top four.

¶13 On May 7, 2014, the City e-mailed High Society about the 1,000 Foot Separation. It explained that "[a] retailer will 'lock down' their location upon submittal of a complete building permit application. This means that once we determine a building permit application complete for review that [sic] we will apply the 1,000 foot separation from that property."

¶14 On May 16, 2014, Par 4 applied for its building permit.

¶15 Greensun met with the City on May 19, 2014. At the meeting, it told the City the LCB would likely disqualify High Society's application because the business listed the wrong address. It asked how the 1,000 Foot Separation would be applied if Greensun became one of the four lottery winners. The City advised Greensun it would give priority to the applicant who first submitted a complete building permit application. Greensun mentioned it had submitted a complete application for 10600 Main Street in 2013. The City responded that the LCB had to have designated an applicant as a lottery winner to establish priority.

¶16 On May 21, 2014, the City made the determination that Par 4's building permit application was complete.

¶17 On May 27, 2014, a reporter from The Seattle Times asked the City about how it would enforce the 1,000 Foot Separation. The City responded that it "will consider the first retail applicant who submits a complete building permit as the 'first in,' against which the other applicants will be compared for conformance with the requirement."

¶18 Around the end of May 2014, Greensun applied to the City for a business license to operate a retail marijuana shop at 10600 Main Street. On June 3, 2014, the City sent a letter to Greensun stating that it "can only approve a business license application for the four selected retailers." The City denied the application.

¶19 The City received Par 4's marijuana license application from the LCB on June 4, 2014. The City approved Par 4's proposed location at 10697 Main Street, but stated it "reserves all rights accorded under law to enforce violations of city ordinances and codes as exist now or as hereafter amended."

¶20 On June 5, 2014, the LCB notified Greensun that it became one of the four lottery winners because of High Society's disqualification. The LCB told the City about Greensun's new status on June 9, 2015.

¶21 In an email to High Society on June 11, 2014, the City stated that Par 4 had "locked down" their location for purposes of the 1,000 Foot Separation.

¶22 The City then determined it would not use the timing of building permit applications for the first-in-time test. The City deemed the method inequitable because the "[v]esting of a building permit had no connection to the Washington State Liquor Control Board's program." Instead, the City decided to tie the first-in-time determinations to when the LCB issued its licenses. The City did so without engaging in formal rule-making.

¶23 On June 24, 2014, the City informed applicants that "[i]n the event two or more retail marijuana applicants seek licensing from the LCB and are located within 1000 feet of another potential retail applicant, the City shall consider the entity that is licensed first by the LCB to be the 'first-in-time' applicant." The City detailed the application process, explaining that if the LCB approves an application, the applicant will receive a payment request for a $1,000 license fee. The City said, once the LCB receives the fee, it will send a conditional approval letter that acts as a 30-day marijuana license until the applicant receives a business license with the marijuana endorsement from the Washington State Department of Revenue Business Licensing Service. The City indicated the issuance date for the 30-day license would determine which applicant had priority for the purposes of the 1,000 Foot Separation.

¶24 The City approved Greensun's marijuana license application on June 25, 2014. The application listed 10600 Main Street as Greensun's address. As with Par 4, the approval notice provided that the City "reserves all rights accorded under law to enforce violations of city ordinances and codes as exist now or as hereafter amended."

¶25 On July 1, 2014, Greensun tendered payment of its license fee to the LCB.

¶26 On July 2, 2014, High Society obtained a temporary restraining order (TRO) against the LCB. The TRO prohibited the LCB from licensing retail marijuana applicants except for the four original lottery winners. The LCB then told Greensun it could not accept its license fee payment. ¶27 The same day, an LCB employee emailed the City a copy of High Society's complaint. The City responded, "[I]t sounds like if [the LCB] issue[s] a license for a Bellevue retail store on Monday, it likely would be to Par 4 Investments (based on the status of Novelty Tree, Happy Highway, and High Society)? Can you please confirm?" The LCB indicated that the City had assumed correctly.

¶28 Par 4 paid the license fee to the LCB on July 3, 2014.

¶29 The LCB issued the first batch of marijuana retailer licenses on July 7, 2014. Par 4 received its conditional approval letter from the LCB via email at 9:17 a.m. that day. The letter sent to Par 4 was misdated July 3, 2014. Upon receiving the letter from the LCB, Par 4's attorney e-mailed it to the City. The City replied, "Consistent with my letter to your client dated June 24, 2014, [Par 4] is first in time for purposes of application of the 1,000 foot separation requirement between retail marijuana outlets." At 1:08 p.m. that same day, the LCB issued Par 4 a corrected letter with the date changed to July 7, 2014.

¶30 The initial batch of licensed applicants omitted Greensun. However, later in the day on July 7, a court lifted High Society's TRO. The LCB emailed Greensun its conditional approval letter at 3:04 p.m. on July 7. The LCB then issued an updated list of the retail marijuana licenses to include Greensun. After the LCB added Greensun to the list, counsel for Par 4 emailed the City asking if this affected its first-in-time status. The City responded it did not.

¶31 At 4:19 p.m. on July 7, Greensun received an email with a letter from the City attached. The letter provided that the City had deemed Par 4 first-in-time. Accordingly, the City told Greensun it may not open a marijuana retail store at 10600 Main Street. Greensun claimed the City incorrectly deemed Par 4 to be first-in-time because the LCB issued the conditional license dated July 3, 2014 in error.

¶32 The City then engaged in the following inquiries: Chad Barnes, an Assistant City Attorney for the City, contacted Assistant Attorney General Kim O'Neal, who represented the LCB. He did so "to better understand the timing of the conditional approval letters issued by the LCB." O'Neal informed the City "that the LCB currently takes the position that the July 3, 2014 letter received by [Par 4] was not the actual marijuana retail license." O'Neal clarified that "that the actual licenses were issued following the July 7, 2014 online notice." When asked if the LCB could determine which applicant it had licensed first, O'Neal "indicated that their system was not set up for such a query."

¶33 On July 11, 2014, the City sent letters to Par 4 and Greensun asking them to provide any information that may indicate whom the LCB had licensed first.

¶34 Counsel for Par 4 responded on July 14, 2014. Par 4 noted it placed first in the LCB lottery. It said it paid the license fee on July 3, 2014 and the LCB issued its conditional approval letter the same day. Par 4 also asserted it had received its initial conditional approval letter on the morning of July 7, 2014, and Greensun did not receive its letter until after the court lifted the TRO later in the day. Lastly, Par 4 stated it should be licensed because the City confirmed Par 4's status as first-in-time on July 7, 2014.

¶35 Greensun's attorney responded on July 21, 2014. Greensun pointed out it first applied for a building permit 18 months prior and thus had first-in-time status under the City's original method. It further contended the LCB had issued the July 3, 2014 letter to Par 4 in error because it had intended to issue all of the licenses simultaneously. Greensun argued the LCB issued both Par 4's and Greensun's licenses on July 7, 2014. Additionally, Greensun noted it "passed [its] final inspection first and [was] invoiced on July 1st prior to [Par 4]."

¶36 On July 29, 2014, the City informed Greensun via letter that it had "determined that [Par 4] was licensed by the LCB before [Greensun]. Consequently, [Par 4] is 'first-in-time' for the purposes of applying the separation requirements established in Ordinance No. 6156." The letter further explained the City's decision as follows:

The City's decision is based on the fact that on July 3, 2014, the LCB sent [Par 4]
a letter indicating it was approving [Par 4]'s marijuana retailer license and directed that the letter be posted as [Par 4]'s temporary permit. The LCB subsequently sent [Par 4] a revised temporary operating permit on July 7, 2014 at 1:08 pm.
...
The City's decision is further supported by the LCB's records that indicated [Par 4's] license was approved on July 6, 2014. [Greensun's] license was not approved until July 7, 2014.
...
The City will not grant [Greensun] a business license to operate a retail marijuana outlet at 10600 Main Street based on the separation requirement in Ordinance 6156.

¶37 The next day, July 30, 2014, the City's legal planner and assistant attorney emailed other city employees and directed them not to approve Greensun's license.

¶38 Par 4 opened its retail marijuana store on October 7, 2014.

B. Procedural History

¶39 Greensun filed a complaint against the City on November 3, 2014. The complaint alleged the City had violated the due process and privileges and immunities clauses of the Washington State Constitution and sought declaratory and injunctive relief. In the complaint, Greensun claimed it "would have been able to open its retail store in less than a week of [the LCB's] issuance of its license on July 7, if the City of Bellevue had issued its requested business license."

¶40 On May 20, 2015, the trial court granted summary judgment in favor of the City and dismissed Greensun's suit. The trial court ruled the City did not act in an arbitrary and capricious manner in denying Greensun a business license. Greensun appealed to this court.

¶41 On August 3, 2015, during the pendency of the first appeal, the Bellevue City Council engaged in formal rulemaking and passed Ordinance 6253 to legislatively adopt its first-in-time rule. The ordinance specified as follows:

If two or more marijuana retail applicants seek licensing from the state and propose to locate within 1,000 feet of each other, the City shall consider the entity who is licensed first by the state liquor and cannabis board to be the "first-in-time" applicant who is entitled to site the retail use. First-in-time determinations will be based on the date and time of the state-issued license or conditional license, whichever is issued first.

¶42 On June 13, 2016, this court reversed the trial court's summary judgment order. City of Bellevue v. Greensun Group, LLC, No. 73646-9-I, 2016 WL 3338073 (Wash. Ct. App. June 13, 2016) (unpublished) https://www.courts.wa.gov/opinions/pdf/736469.pdf ( Greensun I ). The decision invalidated the first-in-time rule and related decisions because the City adopted the rule without engaging in rule-making procedures. Greensun I, No. 73646-9-I, slip op. at 15-17. This court remanded "for further proceedings consistent with" the opinion from the first appeal. Greensun I, No. 73646-9-I, slip op. at 18. Our Supreme Court denied the City's petition for review.

¶43 On February 14, 2017, Greensun moved for leave to amend its complaint. Greensun sought to "add a claim for monetary damages caused by the City of Bellevue's tortious interference with its business expectancy." The trial court granted Greensun's motion. Greensun filed its amended complaint on February 28, 2017.

¶44 The parties filed cross-motions for summary judgment. Greensun sought partial summary judgment on the issue of liability with respect to its claim for tortious interference. The City asked the court to dismiss Greensun's suit and to grant declaratory relief confirming it remedied the rule-making issue. On November 2, 2017, the court denied Greensun's motion, granted the City's motion, and dismissed Greensun's claims with prejudice.

¶45 Greensun appeals.

II.

ANALYSIS

¶46 Greensun claims the trial court erred by entering summary judgment for the City and denying its motion for partial summary judgment. Greensun asserts that, as a matter of law, it establishes liability for its tortious interference with business expectancy claim. The City counters that Greensun fails to raise a material issue of fact as to any of the claim's elements.

¶47 Appellate courts review de novo a trial court's grant of summary judgment. Woods View II, LLC v. Kitsap County, 188 Wash. App. 1, 18, 352 P.3d 807 (2015). We will affirm a summary judgment order only "if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Woods View II, LLC, 188 Wash. App. at 18, 352 P.3d 807. Reviewing courts conduct the same inquiry as the trial court and view all facts and their reasonable inferences in the light most favorable to the nonmoving party. Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wash.2d 342, 350, 144 P.3d 276 (2006).

¶48 A plaintiff must prove five elements to establish a prima facie case of tortious interference with a business expectancy. Pac. Nw. Shooting Park Ass'n, 158 Wash.2d at 351, 144 P.3d 276. Specifically, a plaintiff must show "(1) the existence of a ... [valid] business expectancy; (2) that [the defendant] had knowledge of that [expectancy]; (3) an intentional interference inducing or causing ... termination of the ... expectancy; (4) that [the defendant] interfered for an improper purpose or used improper means; and (5) resultant damage." Pac. Nw. Shooting Park Ass'n, 158 Wash.2d at 351, 144 P.3d 276. If a plaintiff establishes all five elements, the defendant may demonstrate a privilege protecting its actions. Commodore v. Univ. Mech. Contractors, Inc., 120 Wash.2d 120, 137, 839 P.2d 314 (1992). We address each element in turn.

A. Existence of a Business Expectancy

¶49 Greensun claims it "had a valid business expectancy in operating a retail marijuana store." The City asserts Greensun fails to prove this element because (1) the company did not identify a third party with which it would have had a business relationship had it opened its store; and (2) it did not have a right to open its store in violation of the City's LUC. We conclude Greensun raises a genuine issue of material fact as to this element.

¶50 To establish a valid business expectancy, courts require something less than an enforceable contract. Scymanski v. Dufault, 80 Wash.2d 77, 83, 491 P.2d 1050 (1971). Instead, a "valid business expectancy includes any prospective contractual or business relationship that would be of pecuniary value." Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Group. Inc., 114 Wash. App. 151, 158, 52 P.3d 30 (2002). Courts allow tortious Interference claims "where a defendant's acts destroy a plaintiff's opportunity to obtain prospective customers." Caruso v. Local Union No. 690, 33 Wash. App. 201, 207, 653 P.2d 638 (1982), rev'd on other grounds, 100 Wash.2d 343, 670 P.2d 240 (1983). Washington courts require a plaintiff to show only that its "future business opportunities are a reasonable expectation and not merely wishful thinking." Life Designs Ranch, Inc. v. Sommer, 191 Wash. App. 320, 337, 364 P.3d 129 (2015) (internal quotations and citations omitted); Woods View II, LLC, 188 Wash. App. at 30, 352 P.3d 807 (determining the plaintiff had an expectancy in a business development project that ultimately failed). ¶51 Greensun established that after Washington passed I-502, it leased a retail space in Bellevue in order to open a recreational marijuana store. Greensun made improvements to the store to prepare it for such use. Furthermore, the LCB issued Greensun a marijuana retailer license. The company made arrangements to acquire inventory and had staff available to begin operations. Greensun's plan to open a marijuana retail shop was not merely wishful thinking. It demonstrated a material issue as to its valid business expectancy.

¶52 The City's arguments to the contrary do not persuade us. The City cites Pac. Nw. Shooting Park Ass'n to argue a claim of tortious interference with a business expectancy requires the plaintiff to show a relationship with identifiable third parties. But this argument appears to conflate the claim at issue with the closely related tort of interference with a contractual relationship. The Pac. Nw. Shooting Park Ass'n case concerned whether the plaintiff had a valid contractual relationship, rather than a valid business expectancy. Pac. Nw. Shooting Park Ass'n, 158 Wash.2d at 352-53, 144 P.3d 276. As Greensun alleges interference with a valid business expectancy, the case is inapposite here.

¶53 The City also argues Greensun did not have a valid business expectancy because opening its store would have violated the LUC. But this argument dodges the underlying question of whether the City engaged in actionable conduct, which led to the first-in-time determinations at issue; and these determinations led to the City's denial of a license to Greensun based on the LUC.

¶54 Furthermore, the City does not cite legal authority to support its claim that a plaintiff must demonstrate an enforceable legal right to meet the first element. And case law runs contrary to such a claim. See, e.g., Scymanski, 80 Wash.2d 77 at 82-83, 491 P.2d 1050 (allowing a tort action for wrongful interference where the contract interfered with was not enforceable because it violated the statute of frauds).

¶55 In light of the foregoing, Greensun has presented sufficient evidence to raise a genuine issue as to whether it had a reasonable expectation of opening a recreational marijuana business at 10600 Main Street.

B. Knowledge of the Expectancy

¶56 The parties next dispute whether the City had knowledge of Greensun's business expectancy. We determine Greensun raises a genuine issue of material fact as to this element.

¶57 The second element of a tortious interference claim requires the defendant to have known of the plaintiff's business expectancy.

Pac. Nw. Shooting Park Ass'n, 158 Wash.2d at 351, 144 P.3d 276. This element requires only that the defendant knew of facts giving rise to the presence of the business expectancy. Calbom v. Knudtzon, 65 Wash.2d 157, 165, 396 P.2d 148 (1964). The facts need merely show the defendant had "awareness of 'some kind of business arrangement.' " Woods View II, LLC, 188 Wash. App. at 30-31, 352 P.3d 807 (citing Topline Equip., Inc. v. Stan Witty Land, Inc., 31 Wash. App. 86, 93, 639 P.2d 825 (1982) ) (finding the second element satisfied where the county knew of the plaintiffs business plans despite the later failing of those plans).

¶58 The City knew Greensun hoped to open a recreational marijuana shop in Bellevue. Greensun applied to the City for a building permit. The City knew the LCB lottery selected Greensun as one of the four lottery winners and it approved the intended location in the company's business license application. Greensun spoke with the City about the 1,000 Foot Separation on several occasions and the City asked it to submit evidence regarding which applicant was first-in-time.

¶59 The City asserts Greensun did not allege sufficient facts "as a matter of law to establish that the City knew its actions would terminate any identifiable relationship Greensun may have had." This, however, misstates the test. A defendant needs only to be aware of facts that suggest an expectancy existed, and "[i]t is not necessary that the [defendant] understand the legal significance of such facts." Calbom, 65 Wash.2d at 165, 396 P.2d 148. That the City knew of Greensun's plans to open a store suffices to raise a genuine issue of material fact as to whether the City knew of Greensun's expectancy.

C. Intentional Interference Inducing or Causing a Breach or Termination of the Expectancy

¶60 Greensun asserts it meets the third element because the City intentionally denied its business license. The City responds by contending the "good faith effort to enforce its LUC does not constitute intentional and improper interference." But the analysis of intentional interference does not consider good faith. We decide that Greensun raises a genuine issue of material fact as to the element of intentional interference.

¶61 A party intentionally interferes with a business expectancy if it "desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action." Newton Ins. Agency & Brokerage, Inc., 114 Wash. App. at 158, 52 P.3d 30.

¶62 On July 7, 2014, the City notified Greensun that Par 4 had first-in-time status and that Greensun could not open its retail marijuana store at 10600 Main Street. In a letter dated July 29, 2014, the City told Greensun, "The City will not grant [Greensun] a business license to operate a retail marijuana outlet at 10600 Main Street based on the separation requirement in Ordinance 6156." After the City determined it would not grant Greensun a license, the City's legal planner and assistant attorney emailed other City employees, telling them not to approve Greensun's license.

¶63 The City does not dispute that its actions interfered with Greensun's ability to open a retail marijuana store. Rather, the City argues it did not intentionally interfere because it acted in good faith. Whether the City acted in good faith, however, does not matter under this element, which concerns only whether the defendant had the intent to do the interfering act. Accordingly, viewing the facts in a light most favorable to the Greensun, a genuine issue exists as to the third element.

D. Interfered with Improper Means

¶64 Greensun claims the City acted with improper means by acting in an arbitrary and capricious manner. The City denies this. In Greensun I, we "decline[d] to address the more troubling claim by Greensun that the questionable first in time decision here constitutes arbitrary and capricious action by the City." No. 73646-9-l, slip op. at 17, n.13. We reach the question here. We conclude Greensun has presented sufficient evidence of arbitrary and capricious conduct to raise a genuine issue of material fact as to improper means. ¶65 A claim for tortious interference can be established by demonstrating the defendant acted with improper motive, improper means, or both. Pleas v. City of Seattle, 112 Wash.2d 794, 804-05, 774 P.2d 1158 (1989). Here, Greensun alleges only improper means.

¶66 Tortious interference through improper means "arises from ... the defendant's ... use of wrongful means that in fact cause injury to plaintiff's contractual or business relationships." Pleas, 112 Wash.2d at 803-04, 774 P.2d 1158. To show improper means, the plaintiff must demonstrate the defendant had a duty not to interfere. Pleas, 112 Wash.2d at 804, 774 P.2d 1158. To establish such a duty, the plaintiff may point to a statute, regulation, recognized common law, or established standard of trade or profession. Libera v. City of Port Angeles, 178 Wash. App. 669, 676-77, 316 P.3d 1064 (2013) (citing Pleas, 112 Wash.2d at 804, 774 P.2d 1158 ).

¶67 When determining whether a party acted with improper means, courts analyze the method by which the defendant interfered with the expectancy. Wash. Trucking Ass'n v. Emp't Sec. Dep't, 192 Wash. App. 621, 651, 369 P.3d 170 (2016), rev'd on other grounds, 188 Wash.2d 198, 393 P.3d 761 (2017). Courts can consider a city's arbitrary and capricious actions as evidence of improper means. Pleas, 112 Wash.2d at 805, 774 P.2d 1158. "A court need not find that a defendant acted with ill will, spite, defamation, fraud, force, or coercion in order to find improper purpose or means." Libera, 178 Wash. App. at 677, 316 P.3d 1064.

¶68 The City does not dispute that arbitrary and capricious conduct can serve as evidence of improper means. Instead, it argues it did not act in such a manner. Such conduct is defined as follows:

Arbitrary and capricious refers to willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action. Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous.

Singh v. Covington Water Dist., 190 Wash. App. 416, 424, 359 P.3d 947 (2015) (internal quotations and citations omitted).

¶69 In March 2014, the City decided to implement the 1,000 Foot Separation by creating a first-in-time rule. Throughout May, the City told applicants it would make the first-in-time determination based on which applicant first applied for a building permit. When Greensun informed the City it had submitted a complete application, a City employee stated the applicant first had to be designated as a lottery winner by the LCB. As early as June 11, 2014, the City stated Par 4 was first-in-time.

¶70 Roughly two weeks before the LCB issued the licenses, the City changed course and defined the first-in-time applicant as the one who first received a license from the LCB. The City decided on this method even though the LCB stated in April that it expected to issue licenses in batches. The City adhered to this method despite the inability of the LCB system to determine which applicant it had licensed first. As this court noted in Greensun I:

The City's failure to notice the LCB's public announcement that "initial retail licenses will issued [sic] in batches (10-20) in most populous areas" (included Par 4 and Greensun) triggered a series of ad hoc City decisions intended to implement its unworkable first in time rule. As Drews later described it, "we did not issue a written policy about [the "lock down" rule]. We didn't publish it. We had to make decisions on the fly and-Well, that's probably not a good way to say it." The City's assistant attorney acknowledged licenses were issued in batches and the LCB's system was not set up to "determine which entity was actually first in time." Even the ultimate first in time winner, Par 4, complained to the City about its "illogical first in time rule":
The City's pursuit and reliance on the State's actual license 'issuance order' is illogical and a waste of time for all parties involved where those records likely do not exist.

No. 73646-9-I, slip op. at 15, n. 11 (internal citations omitted).

¶71 Moreover, although the LCB first issued Par 4 a license dated July 3, 2014, it told the City the license was not the actual marijuana retail license. The LCB confirmed it issued all of the licenses on July 7, 2014. Notwithstanding this information from the LCB, the City justified its determination that Par 4 was first-in-time "based on the fact that on July 3, 2014, the LCB sent [Par 4] a letter indicated it was approving [Par 4]'s marijuana retailer license." The City went on to say its "decision is further supported by the LCB's records that indicated [Par 4]'s license was approved on July 6, 2014." Both of these dates were incorrect as the LCB told the City it did not issue any licenses before July 7, 2014.

¶72 Viewing the evidence in the light most favorable to Greensun, there remains a genuine issue of material fact as to whether the City acted with improper means through arbitrary and capricious conduct.

E. Resultant Damage

¶73 The parties dispute whether the City's actions caused Greensun damages. The City argues Greensun cannot demonstrate it suffered damages and cannot prove the City proximately caused any such damages. We disagree.

¶74 A party must prove a claim of damages with reasonable certainty. Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wash. App. 702, 315 P.3d 1143 (2013). Thus, the party must produce evidence sufficient to support its claim. Mut. of Enumclaw Ins. Co., 178 Wash. App. at 715-16, 315 P.3d 1143. "Evidence of damage is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture." Mut. of Enumclaw Ins. Co., 178 Wash. App. at 716, 315 P.3d 1143.

¶75 Though Greensun asks to have a trial to determine the exact amount of its damages, it has produced sufficient evidence that it suffered damages when it could not open a recreational marijuana store. Greensun alleged it would have opened its store but for the City's refusal to issue it a business license. It submitted evidence that it would have been able to open its store within a week of receiving its license, and therefore lost profits from that time forward. To support this claim, Greensun points to the net profits of $2,577,614 in 2015, and $3,760,535 in 2016, generated by its licensed retail store in Des Moines. Simpson contends the Des Moines store is very similar to the store Greensun would have opened in Bellevue. Both spaces, he contends, are around 3,000 square feet, located on a major arterial, and have convenient customer parking. In another declaration, Simpson points to the LCB's published gross sales reported by each of its licensees. According to the LCB website, Par 4 reported $300,000 in gross sales for its first month of operation. Viewed in the light most favorable to Greensun, this evidence raises a material issue of fact as to whether the company suffered damages as a result of the City's conduct.

F. Privilege

¶76 Once a plaintiff establishes all five elements of a tortious interference claim, the burden shifts to the defendant to demonstrate the interference was justified or the actions were privileged. Pleas, 112 Wash.2d at 805, 774 P.2d 1158. The City contends it established its actions were privileged as a matter of law. We disagree. We conclude the evidence presented raises material issues of fact.

1. Good Faith

¶77 The City first claims its actions were privileged because it based its conduct on a good faith interpretation of the zoning ordinance. Good faith may privilege an interferor's actions and thereby serve as an affirmative defense to a tortious interference claim. Moore v. Commercial Aircraft Interiors, LLC, 168 Wash. App. 502, 511-12, 278 P.3d 197 (2012) (describing good faith as an affirmative defense); see, also, Singer Credit Corp. v. Mercer Island Masonry Inc., 13 Wash. App. 877, 884, 538 P.2d 544, 549 (1975) (describing good faith as a privilege). "It [is] well established that '[o]ne who in good faith asserts a legally protected interest of his own which he believes may be impaired by the performance of a proposed transaction is not guilty of tortious interference.' " Brown v. Safeway Stores, Inc., 94 Wash.2d 359, 375, 617 P.2d 704 (1980) (quoting Singer Credit Corp., 13 Wash. App. at 884, 538 P.2d 544 ). The burden of proving privilege rests with the defendant. Pleas, 112 Wash.2d at 800, 774 P.2d 1158.

¶78 That the interferor is reasonably mistaken about the law does not defeat the privilege. See Leingang v. Pierce County Med. Bureau, Inc., 131 Wash.2d 133, 930 P.2d 288 (1997) ; see, also, Restatement (Second) of Torts § 773 (1979). An interferor may assert the good faith privilege based on an honest but incorrect belief. See Restatement (Second) of Torts § 773 (1979).

¶79 As to the claim that it acted arbitrarily and capriciously, the City contends it acted in good faith because it sought to enforce its zoning laws by applying the 1,000 Foot Separation through a neutral method and offered to help Greensun find another location after it denied its license. It offers the following interpretation of the 1,000 Foot Separation requirement:

Under the City's zoning ordinances, Greensun and Par 4 became "marijuana" retailers subject to the 1,000 [sic] Separation rule at the time the LCB issued them licenses. Thus, at the time Greensun received its marijuana license from the LCB, it was in violation of the 1,000 Foot Separation because the LCB had already issued a license [sic] Par 4 for a location within 1,000 feet of the Greensun's Premises.

¶80 However, as discussed above, the City's decision to use the timing of the LCB licensing for the first-in-time determinations was questionable. The City originally implemented a system where applicants would "lock down" a location based on building permit applications. It then abandoned that to instead link the first-in-time determinations to which applicant the LCB licensed first, even though the LCB stated it would issue the licenses in "batches." After the LCB informed the City that its system could not determine which applicant had been licensed first, the City asked the applicants to submit evidence as to who the LCB licensed first. This prompted even Par 4 to complain about the City's "illogical first in time rule." In Greensun I, we described the City's actions as "ad hoc" and "troubling." No. 73646-9-I, slip op. at 15, n. 11, and 17, n.13.

¶81 Viewing the evidence in the light most favorable to Greensun, there is a material issue of fact as to whether the City acted in good faith. Likewise, when the evidence is viewed in the light most favorable to the City, there is a material issue of fact as to good faith. Accordingly, Greensun was not entitled to summary judgment as to liability. See C.L. v. Dep't of Soc. & Health Servs., 200 Wash. App. 189, 203-04, 402 P.3d 346 (2017). In tortious interference cases, "when there is room for different views, the determination of whether the interference was improper or not is ordinarily left to the [trier of fact]." Quadra Enters., Inc. v. R. A. Hanson Co., Inc., 35 Wash. App. 523, 527, 667 P.2d 1120 (1983) (internal quotations and citations omitted) (addressing the good faith privilege in a tortious interference claim).

2. Discretionary Immunity

¶82 Second, the City argues its actions were privileged based on discretionary immunity. When the legislature passed RCW 4.92.090, it abolished sovereign immunity. Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 252, 407 P.2d 440 (1965). However, courts still provide a narrow exception that immunizes "high level discretionary acts exercised at a truly executive level." Chambers-Castanes v. King County, 100 Wash.2d 275, 281, 669 P.2d 451 (1983) ; Avellaneda v. State, 167 Wash. App. 474, 480, 273 P.3d 477 (2012). The immunity does not privilege ministerial or operational government acts. Taggart v. State, 118 Wash.2d 195, 214, 822 P.2d 243 (1992). Moreover, a "State [or City] is immune only if it can show that the decision was the outcome of a conscious balancing of risks and advantages." Taggart, 118 Wash.2d at 215, 822 P.2d 243 ; see, also, King v. City of Seattle, 84 Wash.2d 239, 246, 525 P.2d 228 (1974), overruled on other grounds by City of Seattle v. Blume, 134 Wash.2d 243, 947 P.2d 223 (1997) ("The fact that an employee normally engages in 'discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision."). Put another way, the immunity does not protect a city from liability for their arbitrary and capricious acts. King, 84 Wash.2d at 247, 525 P.2d 228. As discussed above, Greensun raises an issue of material fact as to whether the City acted in an arbitrary and capricious manner. Accordingly, the City is not entitled to summary judgment on discretionary immunity grounds.

III.

CONCLUSION

¶83 The trial court properly denied Greensun's summary judgment motion because issues of fact remain as to the City's liability. The trial court erred in granting the City's motion for summary judgment because Greensun has submitted evidence to raise genuine issues of fact as to the elements of a claim for tortious interference with business expectancy. We affirm in part and reverse in part the order denying Greensun's motion for partial summary judgment and granting the City's summary judgment motion. We remand the case for trial.

WE CONCUR:

Andrus, J.

Mann, J.

      For clarity, this opinion refers to appellant as "Greensun" although the business also used its trade names in the events leading up to this case.

      Ordinance 6133 B-1 constituted the first ordinance to include interim zoning controls to regulate recreational marijuana. It did not contain a 1,000 foot separation requirement between retailers.

      For clarity, this opinion refers to this retailer as "Par 4" although the company also used trade names in the events leading up to this case.

      The "four selected retailers" refers to the four winners of the LCB lottery.

      Though the summary judgment motions and order focused on Greensun's tortious interference claim, the City also asked the court to dismiss any remaining constitutional claims and Greensun's request for declaratory relief if the court chose to revisit those claims after the first appeal. Greensun's current appeal concerns only its claim for tortious interference.

      More recently, our Supreme Court listed three elements for a prima facie case of tortious interference. See Elcon Const., Inc. v. E. Wash. Univ., 174 Wash.2d 157, 168, 273 P.3d 965 (2012) ("A claim of intentional interference requires (1) the existence of a valid contractual relationship of which the defendant has knowledge, (2) intentional interference with an improper motive or by improper means that causes breach or termination of the contractual relationship, and (3) resultant damage."). Because the tests contain essentially the same elements, we apply the five-element test, as do the parties.

      The City also cites two Division III cases, Hudson v. City of Wenatchee, 94 Wash. App. 990, 974 P.2d 342 (1999) and Evergreen Moneysource Mortg. Co v. Shannon, 167 Wash. App. 242, 274 P.3d 375 (2012), to support this proposition. We do not read Hudson to go so far as to require a plaintiff to prove it would have had a relationship with a specific prospective customer but for the defendant's interference. To be sure, such a requirement would conflict with well-established case law, which allows tortious interference claims for interference with prospective contractual or business relationships. See Scymanski, 80 Wash.2d at 83, 491 P.2d 1050 ; Life Designs Ranch, Inc., 191 Wash. App. 320 at 337, 364 P.3d 129 ; Caruso, 33 Wn. App. at 207, 653 P.2d 638. Likewise. Evergreen does not apply. In that case, the plaintiff claimed the defendants improperly diverted its customers. 167 Wash. App. at 259, 274 P.3d 375. The court found the plaintiff did not have an expectancy because it could not demonstrate the defendant took any customers from it. 167 Wash. App. at 259, 274 P.3d 375.

      Also, the parties dispute whether Greensun's store would have violated the LUC's 1,000 Foot Separation requirement. While neither party disputes that the store locations were within 1,000 feet of one another, they dispute when a violation of the 1,000 Foot Separation requirement would occur: (1) when the City licensed two applicants with proposed locations within 1,000 feet of each other; or (2) when two marijuana shops actually opened within 1,000 feet.

      However, as discussed below, good faith conduct can support an affirmative defense.

      In light of this conclusion, we do not reach the question whether the City's failure to engage in formal rule-making constituted improper means.

      Greensun's first assignment of error provides, "The King County Superior Court erred in granting the City of Bellevue's Cross-Motion for Summary Judgment, granting the City's request for declaratory relief, and dismissing all Greensun's claims for relief." However, Greensun does not make any argument regarding the trial court's declaratory relief award in its briefing. Greensun only states the formal rule-making conducted by the City after Greensun I does not retroactively cure its tortious interference. A party abandons the assignments of error that it does not discuss in its brief. Zabka v. Bank of Am. Corp., 131 Wash. App. 167, 174, 127 P.3d 722 (2005). Because Greensun does not provide argument challenging the trial court's declaratory relief award, it abandons the issue on appeal.