Kay Kayongo, V. State Of Washington ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KAY KAYONGO, an individual, ) No. 81884-8-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
STATE OF WASHINGTON; KING )
COUNTY; CITY OF TUKWILA, )
)
Respondents. )
)
HAZELRIGG, J. — Kay Kayongo appeals an order dismissing her claims
under CR 12(b)(6) for failure to state a claim upon which relief can be granted, and
denying her motion for CR 11 sanctions. Because the trial court did not err in
dismissing her claim and did not abuse its discretion in declining to order sanctions,
we affirm.
FACTS
In February 2020, Kay Kayongo filed a complaint against the City of
Tukwila, King County, and the State of Washington. She alleged injury to personal
property and personal injury and sought damages in the amount of $22 billion.
From what this court can discern from the filings, Kayongo alleges the defendants
stole her personal property and information when they “re-engineered” various
government buildings, private buildings, and streets, depriving “plaintiff’s right to
No. 81884-8-I
its earning benefit.” She also alleges “wrongful and willful misconduct” by the
defendants arising out of several alleged assaults on the King County Metro buses
and on public areas around King County Metro bus stops. She alleges the King
County Sheriff failed to prevent her injury and/or failed to arrest the perpetrators.
The defendants all filed motions to dismiss for failure to state a claim upon
which relief can be granted, and alternatively as to the claims arising from some of
the assaults, expiration of the statute of limitations. The King County superior court
dismissed all claims with prejudice. The defendants additionally requested the
superior court find Kayongo was a vexatious litigant and impose certain limitations
on her ability to continue to file suit against various government entities, but those
requests were denied. Kayongo filed a motion for reconsideration, asking the
superior court to reverse its dismissal and to order sanctions against the
defendants under CR 11. The superior court denied the motions for sanctions and
reconsideration. Kayongo appeals.1
1 As a preliminary matter, in her replies Kayongo objects to the response brief of each of
the government entities on two bases: purported noncompliance with RAP 10.4(a)(1), and the
failure of the respondents to cross appeal. Kayongo misunderstands the RAP and appellate
procedure. For the following reasons, her objection to each response brief is denied.
RAP 10.4(a)(1) sets out the requirements for printed or hardcopy briefs filed with the court.
Each of the government entities filed their response briefs electronically. As such, this RAP is not
applicable.
Further, as the respondents to the appeal Kayongo filed, the State, King County and City
of Tukwila are each permitted to respond to the assignments of error she raises in her opening
brief. They need not file their own notices of appeal to do so. Just as in the trial court, as a
fundamental consideration of fairness and due process, a party to a case may rebut the arguments
of the opposition.
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ANALYSIS
I. Motion to Dismiss
We review a dismissal under CR 12(b)(6) de novo. Trujillo v. Nw. Tr.
Servs., Inc., 183 Wn.2d 820, 830, 355 P.3d 1100 (2015). When considering this
issue on appeal, “We presume that the plaintiff’s factual allegations are true and
draw all reasonable inferences from the factual allegations in plaintiff’s favor,”
and may consider hypothetical facts. Id. at 830. A complaint may be dismissed
“‘if it appears beyond doubt that the plaintiff can prove no set of facts, consistent
with the complaint, which would entitle the plaintiff to relief.’” Yurtis v. Phipps,
143 Wn. App. 680, 689, 181 P.3d 849 (2008) (quoting Lawson v. State, 107
Wn.2d 444, 448, 730 P.2d 1308 (1986)). While the record designated on appeal
does not contain a transcript of the hearing on the motion to dismiss, the parties
have provided the various pleadings and orders of the court such that the record
before us is sufficient to properly review the assignments of error.2
Our state has “liberal rules of procedure,” where “pleadings are primarily
intended to give notice” to the opposing party and the court about the “general
nature of the claim asserted.” Lewis v. Bell, 45 Wn. App. 192, 197, 724 P.2d 425(1986). Although our civil rule permits inexpert pleading, “insufficient pleading”
is not allowed. Id. “A pleading is insufficient when it does not give the opposing
party fair notice of what the claim is and the ground upon which it rests.” Id.Because Kayongo’s complaint failed to give the opposing parties, and the court,
2 Kayongo also failed to designate several of the motions and briefs of the government
entities from the trial court in the record on appeal, however each of the respondents provided
copies of those filings as appendices to their response briefs.
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fair notice of her claims, the superior court did not err in dismissing her complaint
against each of the government entities.
A. Claims Against the State of Washington
Kayongo claims injury to property for stolen information and unauthorized
use of her information. She alleges the defendants used her ideas to re-engineer
government buildings, schools, houses, and apartments. She alleges that “re-
engineering” of various buildings, including buildings at the University of
Washington and the University of Washington law library constituted a theft of
her information. She also claims personal injuries after allegedly being assaulted
on King County Metro buses and walking to/from bus stops.
The tort of conversion “is the unjustified, willful interference with a chattel
that deprives a person entitled to the property of possession.” Repin v. State,
198 Wn. App. 243, 270, 392 P.3d 1174 (2017). There must be a willful or
unlawful taking, and the true owner must demonstrate “some assertion of right
or title.” Id. at 271.
Kayongo fails to allege any facts demonstrating she 1) had chattel 2) that
was willfully or unlawfully taken and 3) the taking deprived her of possession.
The bare allegation of “an increasing of [re-engineering] in the territory of State
of Washington [including] University of Washington buildings and Law Library” is
not sufficient to give the defendant fair notice of the grounds underlying her claim.
Kayongo does attach an exhibit, but it is simply a photograph of the University of
Washington library. This not sufficient to give the court and opposing parties fair
notice of her claim, even under our liberal pleading requirements.
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As to the assaults, Kayongo alleges that the State of Washington was
negligent. To establish a claim of negligence, a plaintiff must establish duty,
breach, causation, and resulting harm. Norg v. City of Seattle, __ Wn. App. __,
491 P.3d 237, 240 (2021). In a claim against a government entity, “a plaintiff
must show that the duty breached was owed to an individual and was not a
general obligation owed to the public.” Id.Kayongo fails to establish any state agent or agency that was involved in
the assaults. The State correctly notes that simply because an event which may
give rise to a claim occurs within the territorial boundaries of the State of
Washington, such an event does not automatically create liability on the part of
the State. Kayongo further fails to state any facts demonstrating that the State
would be liable for the alleged assaults.
Because Kayongo’s complaint does not give fair notice as to her claim,
nor allege any facts giving rise to a legal claim, her complaint against the State
of Washington was properly dismissed.
B. Claims Against King County
Similarly, Kayongo alleges that the addition of security desks at the King
County Administration Buildings, the addition of a consulting room at the King
County jail, “re-engineering” in King County libraries, and denial of access from
the King County courthouse to the King County Administration Building caused
injury to her property and support her request for an award for $22 billion in
damages. She also alleges several assaults that occurred on the King County
Metro system, or walking to/from King County Metro bus stations, as additional
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bases for the damages award she seeks. She alleges that none of the
perpetrators of these assaults were ever arrested despite her requests to the
King County Sherriff to do so.
Kayongo again fails to allege facts demonstrating any of the defendants
willfully or unlawfully interfered with her rightful property. She also fails to allege
facts demonstrating that she was owed a duty different from that of the general
public. Because she fails to state facts which would give rise to relief under the
law, the superior court properly dismissed her complaint against King County.3
C. Claims Against City of Tukwila
Kayongo alleges that the City of Tukwila stole her property by
“continuously re-engineering the specific part of the Avenue to which the incident
and the injury caused the filed record/information keep with them . . . including
re-engineering of Foster High School.”
Again, Kayongo fails to allege facts demonstrating the defendants
wrongfully interfered with her property, depriving her of rightful title, or that she
was owed a duty different from that of the general public. Because she fails to
state facts which would give rise to relief under the law, the superior court
properly dismissed her complaint.
3 King County argues that two of Kayongo’s allegations fall beyond the statute of limitations
under RCW 4.16.080. The superior court did not dismiss the complaint on these grounds, but rather
dismissed all of Kayongo’s claims for failure to state a claim upon which relief can be granted.
Because we find the superior court properly dismissed on this ground, we need not reach this issue,
despite the fact that Kayongo dedicates a significant portion of her briefing to challenging this
assertion.
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The superior court properly dismissed Kayongo’s claim against the City of
Tukwila for failure to state a claim upon which relief can be granted.
II. CR 11 Sanctions
In addition to their respective motions to dismiss, each of the government
entitles requested the trial court find Kayongo is a vexatious litigant and take steps
to prevent her from filing future suits without an attorney or pre-screening by the
court. Courts have “inherent power to control the conduct of litigants who impede
the orderly conduct of proceedings,” including by placing restrictions on litigants
who abuse the judicial process. Yurtis, 143 Wn. App. at 693. Upon a “specific and
detailed showing of a pattern of abusive and frivolous litigation,” trial courts may
enjoin a party from engaging in litigation. Id. (quoting Whatcom County v. Kane,
31 Wn. App. 250, 253, 640 P.2d 1075 (1981)). These nearly identical requests by
the State, County and City, though denied by the trial court, were the basis of
Kayongo’s motion for CR 11 sanctions against each of the defendants.
We review a trial court’s decision to deny CR 11 sanctions under an abuse
of discretion standard. Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App.
720, 745, 218 P.3d 196 (2009). A court abuses its discretion if its decision was
“based on untenable grounds or reasons.” Skimming v. Boxer, 119 Wn. App. 748,
754, 82 P.3d 707 (2004). “We apply an objective standard to determine whether
sanctions are merited,” analyzing whether “a reasonable attorney in a like
circumstance could believe” their filing of pleadings to be justified in fact and in
law. Id.-7-
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The purpose of sanctions under CR 11 is to deter “baseless filings:” ones
which are “not well grounded in fact, or not warranted by existing law or a good
faith argument for altering existing law.” Bldg. Indus. Ass’n of Wash., 152 Wn.
App. at 745. This is a high bar to meet, and a court should only impose sanctions
“when it is patently clear that a claim has absolutely no chance of success.” Id.
“The fact that a complaint does not prevail on its merits is not enough.” Id.
Kayongo dedicates a significant portion of her briefing on appeal to the
respondents’ request to deem her a vexatious litigant, despite the fact that the
court declined to so find. In her opening brief, Kayongo mischaracterizes the ruling
of the trial court by stating that the judge denied the request because it was
“frivolous.” There is nothing in the orders signed by the judge to indicate that he
found that request by any of the government entities was frivolous. The mere fact
that the court declined to find Kayongo was a vexatious litigant is not sufficient to
order sanctions under CR 11. Kayongo had the burden to demonstrate the filing
was baseless, and has the burden on appeal to demonstrate the superior court
abused its discretion by finding otherwise.
Kayongo appears to suggest in briefing that the filing of the motions to
dismiss and seeking a ruling that she is a vexatious litigant constituted both
malicious harassment and malicious prosecution. However, she cites criminal
statutes for this proposition, neither of which are applicable in the context of this
appeal from civil litigation. To be clear, where a plaintiff brings a suit for damages
against a party, as Kayongo did here, that party may vigorously defend against
those allegations by utilizing the many tools of litigation available under our court
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rules, including motions to dismiss. The respondents filed motions to dismiss
under CR 12(b)(6) and the trial court judge granted each of those motions as
proper under the law. Nothing in the record demonstrates that procedure or that
outcome was based on maliciousness, but rather one of the many possible
outcomes that may occur when a party makes the weighty decision to initiate
litigation, whether represented by counsel or proceeding pro se.
Throughout her briefing, Kayongo appears to merely repeat the arguments
and allegations that she presented to the trial court. Because Kayongo fails to
identify or engage with the standard of review on appeal or otherwise argue how
the trial court erred as to its rulings in the initial hearing and on reconsideration, we
affirm the superior court.
Affirmed.
WE CONCUR:
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