* Jeff Haley, Appellant V. Amazon.com Services, Llc, Respondent

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEFF HALEY,
Appellant,
v.
AMAZON.COM SERVICES, LLC, f/k/a
AMAZON.COM SERVICES, INC., f/k/a
AMAZON FULFILLMENT SERVICES,
INC.,
Respondent.
DIVISION ONE
No. 83010-4-I
OPINION PUBLISHED IN PART
DWYER, J. — Summary judgment is a mechanism for dismissing claims
that are unsupported by law or fact. It is not a tool for assessing the weight or
credibility of a party’s evidence.
Here, the trial court dismissed plaintiff Jeff Haley’s complaint by granting a
motion for summary judgment filed by defendant Amazon.com Services, LLC. In
dismissing the complaint, the trial court declined to credit some of Haley’s
evidence because it was “self-serving,” found that Haley’s evidence was not
credible, and made a series of findings resolving factual issues in Amazon’s
favor. Because material questions of disputed fact should not be resolved on
summary judgment, we reverse.
I
Jeff Haley was the founder and president of OraHealth USA, Inc.
(OraHealth). From 2004 until 2019, OraHealth manufactured a product called
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/2
2
XyliMelts, an adhering disc designed to combat dry mouth. OraHealth sold its
products wholesale to Amazon, which then sold OraHealth’s products to the
public.
On December 28, 2011, an employee of OraHealth agreed to a marketing
development fund (MDF) agreement1 (the MDF Agreement) with Amazon, which
took effect on January 1, 2012. Pursuant to this agreement, Amazon would
deduct 10 percent of the net receipts from the sale of OraHealth products before
remitting payment to OraHealth. The MDF Agreement stated that it would
“automatically renew on the same terms for additional periods of one year each
unless either Vendor or Amazon gives the other party written notice of non-
renewal at least 60 days before the end of the term.”
During 2012, Amazon made the 10 percent deduction from OraHealth’s
net receipts on a monthly basis. Haley sent an e-mail to Amazon employee Hiley
Olsen in June 2012 objecting to the deductions and expressing his desire to
obtain a lower MDF rate. Although OraHealth was unable to successfully
negotiate a lower MDF rate, it did raise its prices by 6 percent in order to offset
the monthly deductions.
From 2013 to 2015, Amazon made no deductions from OraHealth’s net
receipts. In January 2016, Amazon sent a notice to OraHealth via e-mail stating
that it had conducted an audit and it intended to deduct $47,679.44 from the next
disbursement of funds to OraHealth. This amount represented 10 percent of
1 This agreement is alternatively referred to as the “2012 Agreement,” “MDF/Coop
Agreement,” “Co-op Allowance,” or “Base Accrual” throughout the record.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/3
3
OraHealth’s net proceeds for the entire 2014 calendar year. On or about March
1, 2016, OraHealth sent a letter to Amazon protesting the proposed deduction.
Amazon did not respond to the letter and made the deduction.
In August 2016, Amazon sent another notice via e-mail to OraHealth
stating that it intended to deduct $81,857.16 from the next disbursement. This
amount represented 10 percent of OraHealth’s net proceeds for the entire 2015
calendar year. OraHealth renewed its objection to this proposed deduction.
Amazon made the deduction in October 2016 without resolving OraHealth’s
objection.
Amazon made no deductions from OraHealth’s 2016 proceeds during the
2016 calendar year. It was not until March 2018 that Amazon deducted 10
percent of OraHealth’s 2016 net proceeds from its disbursement, in an amount of
$34,328.71.
In March 2017, Amazon requested that OraHealth accept the updated
terms of its MDF Agreement in Vendor Central.2 A screenshot of the Vendor
Central page dated March 11, 2017, shows the “New Base Accrual/Marketing
Development Funds (MDF)” at “13.65% Base Accrual” and the “Current Base
Accrual/Marketing Development Funds (MDF)” as “0.00% Base Accrual.”
OraHealth did not agree to the 13.65 percent rate and was able to negotiate an
MDF rate of 6 percent for the remainder of the year.
In March 2018, Amazon again requested that OraHealth accept the
updated terms of its agreements in Vendor Central. On March 8, 2018, Haley
2 Vendor Central is the interface through which Amazon interacted with OraHealth.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/4
4
contacted Amazon to confirm the MDF rate for 2018. Amazon replied that the
MDF rate was 20 percent. Haley insisted to Amazon that he had not accepted
the 20 percent MDF rate and, in a series of e-mails that followed, attempted to
negotiate a 6 percent MDF rate in line with the previous year’s figure. Those
negotiations ultimately failed. OraHealth then ceased selling its products to
Amazon.
In May 2018, Amazon made a deduction of $28,017, representing 20
percent of OraHealth’s net receipts for April 2018, from its disbursement to
OraHealth.
Haley filed suit against Amazon on July 22, 2020, asserting claims for
declaratory relief, unjust enrichment, accounts receivable, and violation of the
Consumer Protection Act3 (CPA). Haley filed a motion for partial summary
judgment on November 9, 2020, seeking entry of judgment on his claim for
declaratory relief. In support of this motion, Haley submitted his declaration,
testifying to the facts as he perceived them and attaching multiple documents.
Therein, Haley asserted that:
I paid specific attention to the auto-renewal provision, and I
contacted Amazon in October of 2012—more than 60 days before
the end of the year. I recall submitting a form via Vendor Central
instructing Amazon not to renew the 2012 MDF Agreement. I no
longer have access to this written communication.
. . . I also followed up by phone to confirm that the MDF was
not going to renew the following year. At least one Amazon
representative acknowledged that they had received the email
in May and confirmed that the 2012 MDF Agreement would not
automatically renew.
3 Ch. 19.86 RCW.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/5
5
Haley also testified that, as far as he could recall, the MDF Agreement did
not appear in Vendor Central with the other agreements between OraHealth and
Amazon that were in force between 2013 and 2017. Haley stated that had
Amazon continued deducting 10 percent of OraHealth’s net receipts into 2013,
he would have both increased his prices and again notified Amazon in writing to
not renew the MDF Agreement.
In response to Haley’s motion, Amazon submitted a declaration from
Gianmarco Vairo, a paralegal in Amazon’s litigation department, stating that he
had conducted a search of Amazon’s records and was unable to “identify any
additional documents or communications from Mr. Haley or any other OraHealth
representative with Amazon between 2012 and when Amazon began assessing
post-audit coop fee deductions in 2016 other than the email chain attached as
Exhibit 1[4] to Ms. Olsen’s declaration.”
The trial court denied Haley’s motion for partial summary judgment on
December 4, 2020. In its 10-page order, the trial court entered a number of
factual findings and related legal conclusions. On page three of its order, the trial
court entered a finding that, “The Court finds that Mr. Haley never repudiated the
2012 Agreement.” In the same paragraph, the trial court further found that “Mr.
Haley changed OraHealth’s pricing and shipping cost structure in
acknowledgment that coop fees were required.” In the following paragraph, the
trial court made the express finding that Mr. Haley did not repudiate the 2012
4 Exhibit 1 to Olsen’s declaration are the e-mails between Olsen and Haley from June
2012.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/6
6
MDF Agreement. That paragraph of the trial court’s order reads as follows:
Mr. Haley claims that he repudiated the 2012 Agreement in
communications with unidentified Amazon representative(s) in
October 2012. Mot. at 6:3-7 (“Mindful of the automatic renewal
clause in the 2012 MDF Agreement, Haley reached out to Amazon
through Vendor Central and by phone around October 2012, and at
least one Amazon representative affirmed that Haley had properly
communicated a cancellation of the 2012 MDF Agreement for the
following year.”). But Mr. Haley offers no evidence supporting that
he had any further communications with Amazon regarding the
2012 Agreement after his May and June 2012 emails with Ms.
Olsen. See Haley Decl. ¶¶ 10-11. In any event, Mr. Haley’s phone
communications with Amazon would be ineffective to cancel the
2012 Agreement, which required advance “written notice” for any
valid termination. Haley Decl. Ex. 2. The Court also notes that Mr.
Haley never mentioned these purported October 2012
communications with Amazon in either of his two previously filed
complaints in this action (Dkt. 1 & 22) or in the six complaints he
brought in his 2017-18 action against Amazon concerning these
same deductions. See OraCoat, Dkt. 1, 16, 18, 23, 26, 29B. [5] The
Court finds that Mr. Haley did not effectively repudiate the 2012
Agreement in writing at any point in 2012.
On April 9, 2021, the parties filed dueling motions for partial summary
judgment. Amazon asked the trial court to dismiss all of Haley’s claims other
than the account receivable claim for 2018. Haley, on the other hand, requested
that the trial court enter judgment in his favor on his accounts receivable claims
for 2014 through 2018. Both parties submitted affidavits and other evidentiary
material in support of their arguments.
The trial court entered orders on both motions on May 7, 2021. In both
orders, the trial court relied in part on its prior order denying Haley’s first motion
for partial summary judgment. First, in denying Haley’s second motion for partial
5 The trial court noted that it relied in part upon previous filings in OraCoat v. Amazon
Fulfillment Servs., Inc., No. 17-2-30301-1 KNT. The only pleading from that case included in our
appellate record is the fourth amended complaint.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/7
7
summary judgment, the trial court found that the motion was “an untimely and
improper attempt to seek reconsideration of the Court’s Order” on the first
summary judgment motion. Second, in granting Amazon’s motion for partial
summary judgment, the trial court reiterated that it had previously made “findings”
that it was now treating as conclusive. In paragraph three of the order, the trial
court stated:
In its previous Order, the Court found and concluded that (1)
“Amazon undisputedly exercised its express contract rights in
conducting the audits and deducting for the overpayments that Mr.
Haley challenges,” Order ¶ 3; (2) “Mr. Haley never repudiated the
2012 Agreement,” id. ¶ 6; and (3) “ [t]he deductions were validly
taken, “ id. ¶ 8. Nothing in the evidence the parties submitted with
respect to Amazon’s summary judgment motion changes any of the
Court’s prior findings or conclusions.
Moreover, in paragraph eight of the order, the trial court concluded, “The
Court dismisses Mr. Haley’s account receivable claim with respect to the
challenged deductions under the 2012 Agreement, given that the Court has
found these were validly taken.”
The trial court dismissed Haley’s CPA claim both as being time barred and
because it concluded that Haley could not satisfy the statutory public interest
requirement. Haley’s claim for unjust enrichment was also dismissed as being
time barred. The only claim remaining following the trial court’s order was the
account receivable claim for deductions made pursuant to the 2018 MDF
Agreement.
On July 15, 2021, the parties executed and filed a “Stipulation and Order
of Voluntary Dismissal of Remaining Claim With Prejudice; Entry of Final
Judgment,” dismissing Haley’s one remaining claim and striking the trial date.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/8
8
The trial court signed the order the same day. Haley then appealed.6
II
Haley asserts that he presented a triable issue of material fact concerning
the termination of the 2012 MDF Agreement and that the trial court erred when it
refused to credit his declaration and entered summary judgment in Amazon’s
favor. Amazon contends that Haley’s declaration was “self-serving” and did not
need to be accepted “at face value,” and was therefore insufficient to create a
triable issue of fact.7 The trial court, for its part, treated the issue as conclusively
proved in Amazon’s favor in its ruling on Haley’s first summary judgment motion.
Haley is correct. The trial court erred.
A
We review de novo a trial court’s decision on summary judgment. Boyd v.
Sunflower Props. LLC, 197 Wn. App. 137, 142, 389 P.3d 626 (2016).
Accordingly, we engage in the same inquiry as the trial court. Green v.
Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151
P.3d 1038 (2007).
Summary judgment is properly granted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
6 Haley seeks review of the dismissal of his accounts receivable and CPA claims; he
does not challenge the trial court’s dismissal of his declaratory judgment and unjust enrichment
claims.
7 Amazon also argues that summary judgment was proper on Haley’s accounts
receivable claims because Washington does not permit equitable estoppel to be used offensively.
This argument fails as Haley’s invocation of equitable estoppel was defensive. See Wilson v.
Dep’t of Ret. Sys., 15 Wn. App. 2d 111, 124-25, 475 P.3d 193 (2020).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/9
9
moving party is entitled to a judgment as a matter of law.” CR 56(c). “A ‘material
fact’ is a fact upon which the outcome of the litigation depends, in whole or in
part.” Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974) (quoting CR
56(c)).
The party moving for summary judgment bears the initial burden of
showing that there is no disputed issue of material fact. Young v. Key Pharms.,
Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The burden then shifts to the
nonmoving party to present evidence that an issue of material fact remains.
Young, 112 Wn.2d at 225. This the party may accomplish by submitting
affidavits setting forth any facts that would be admissible as evidence and
attaching any documents that would be similarly admissible. CR 56(e). The
party may also support its position by submitting depositions, answers to
interrogatories, and admissions. CR 56(e).
When reviewing the affidavits and other evidentiary material, the trial court
must construe all evidence and the reasonable inferences therefrom in favor of
the nonmoving party. Boyd, 197 Wn. App. at 142 (citing Holmquist v. King
County, 182 Wn. App. 200, 207, 328 P.3d 1000 (2014)). Only if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact”
should summary judgment be granted. CR 56(c). If this standard is not met, the
matter must proceed to trial.
The purpose of summary judgment is to avoid useless trials where there is
no genuine factual issue to be decided. Preston v. Duncan, 55 Wn.2d 678, 681,
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/10
10
349 P.2d 605 (1960). However, “a trial is not useless, but is absolutely
necessary where there is a genuine issue as to any material fact.” Balise v.
Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963) (citing Preston, 55 Wn.2d
681); accord Barber v. Bankers Life & Cas. Co., 81 Wn.2d 140, 144, 500 P.2d 88
(1972).
On summary judgment, the trial court may not weigh the evidence, assess
credibility, consider the likelihood that the evidence will prove true, or otherwise
resolve issues of material fact. Davis v. Cox, 183 Wn.2d 269, 290, 351 P.3d 862
(2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston
County, 191 Wn.2d 392, 423 P.3d 223 (2018); Duckworth v. City of Bonney
Lake, 91 Wn.2d 19, 21-22, 586 P.2d 860 (1978), abrogated on other grounds by
Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019). “The function of a
summary judgment proceeding, or a judgment on the pleadings is to determine
whether or not a genuine issue of fact exists, not to determine issues of fact.”
State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 425, 367 P.2d 985 (1962).
Our summary judgment standard precludes resolution of issues of
material fact because our constitution protects the right to have factual issues
decided by a jury. Specifically, article I, section 21 of our state constitution holds
sacred the right to trial by jury, which “guarantees litigants the right to have a jury
resolve questions of disputed material facts.” Davis, 183 Wn.2d at 289. This
right is fundamental in our judicial system. As our Supreme Court has explained,
adjudication by the trial court on the merits of nonfrivolous factual issues invades
the role of the jury and violates the right to a jury trial. Davis, 183 Wn.2d at 294.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/11
11
However, the right to trial on disputed issues of fact is not reserved solely
for litigants bringing claims to which the right to a jury extends. The right to a jury
afforded by article I, section 21 attaches only to causes of action in which a jury
was available in 1889. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 648, 771 P.2d
711, 780 P.2d 260 (1989). Excluded from this ambit are claims brought in equity,
which includes claims such as dissolution, child custody, partition, probate,
requests for an accounting, and claims for injunctive or declaratory relief, to
name but a few. However, litigants pursuing these types of claims may not be
deprived of the right to trial merely because they are not entitled to a jury. Our
civil rules make clear that CR 56, and the limits on when it may be utilized, are
applicable in “all suits of a civil nature whether cognizable as cases at law or in
equity,” whether or not a constitutional right to a jury trial exists. CR 1.
Accordingly, persons who bring suits in equity are as much entitled to a trial on
disputed issues of material fact as are those who bring suits at law. Indeed, we
have previously reversed trial court orders that deny litigants in equitable actions
their right to a trial on disputed issues of material fact. See, e.g., S.D. Deacon
Corp. of Wash. v. Gaston Bros. Excavating, Inc., 150 Wn. App. 87, 90, 206 P.3d
689 (2009) (“The summary procedure” for release of frivolous mechanics’ liens
“is not to be used as a substitute for trial where there is a legitimate dispute about
the amount of work done and money paid.”); In re Marriage of Lane, 188 Wn.
App. 597, 604, 354 P.3d 27 (2015) (“[T]here is no dispute the right to trial” in
dissolution action “is a substantial right.”).
In short, “summary judgment should not be used as a means to ‘cut
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/12
12
litigants off from their right to a trial.’” Garbell v. Tall’s Travel Shop, Inc., 17 Wn.
App. 352, 353, 563 P.2d 211 (1977) (quoting Bernal v. Am. Honda Motor Co., 87
Wn.2d 406, 416, 553 P.2d 107 (1976)). As stated by our Supreme Court:
The summary judgment rule will best serve its purpose when
we all, bench and bar alike, become aware that, . . . .
“. . . Summary judgment procedure is not a catch
penny contrivance to take unwary litigants into its toils and
deprive them of a trial, it is a liberal measure, liberally
designed for arriving at the truth. Its purpose is not to cut
litigants off from their right of trial by jury if they really have
evidence which they will offer on a trial, it is to carefully test
this out, in advance of trial by inquiring and determining
whether such evidence exists.”
Preston, 55 Wn.2d at 683 (alteration in original) (quoting Whitaker v. Coleman,
115 F.2d 305, 307 (5th Cir. 1940)).
B
1
With these principles in mind, we turn to the case at hand. Amazon
asserts that the trial court’s decision to grant summary judgment in its favor was
correct because Haley’s “self-serving declaration . . . is not sufficient to defeat
summary judgment.”8 Thus, it asserts, the trial court properly refused to credit
Haley’s testimony contained in his declaration. We disagree.
Because the purpose of summary judgment is to determine whether
evidence exists, Zempel, 59 Wn.2d at 425, the trial court must consider all
admissible evidence presented to it. Rather than weighing the evidence, the
court must view all facts and reasonable inferences therefrom in the light most
8 Br. of Resp’t at 29.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/13
13
favorable to the nonmoving party. In accordance with these rules, a court may
not disregard a party’s declaration simply because it believes the testimony to be
“self-serving.” Indeed, classifying a party’s declaration as “self-serving” is
essentially meaningless. All evidence submitted by a party should be self-
serving. That is the purpose of introducing evidence: to lend credence to the
party’s theory of the case.
The court’s decision in Newton Ins. Agency & Brokerage, Inc. v.
Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 52 P.3d 30 (2002), on which
Amazon relies, does not stand for a contrary proposition. In Newton, we stated
that, “[i]n opposing summary judgment, a party may not rely merely upon
allegations or self-serving statements.” 114 Wn. App. at 157. We did not explain
what we meant by this statement, nor did we discuss the evidence submitted by
the parties. However, for this proposition we cited three sources: CR 56, Young,
112 Wn.2d 216, and Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001).
CR 56(e), concerning the evidence that a party may submit when filing or
defending against a motion for summary judgment, states:
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of a pleading, but a response, by affidavits or
as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.
As dictated by the rule, the only requirements for an affidavit or declaration
to be considered are that it “shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein.” CR 56(e). Thus,
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/14
14
far from excluding a party’s favorable testimony, the rule explicitly contemplates
that a party will submit testimony in its own favor when responding to a summary
judgment motion.
Young and Seybold reiterated the rule delineated in CR 56(e). The
Supreme Court in Young stated that, in responding to a motion for summary
judgment, “the nonmoving party cannot rely on the allegations made in its
pleadings.” 112 Wn.2d at 225. In Seybold, we echoed the Supreme Court and
stated that in responding to the defendant’s motion for summary judgment, “the
plaintiff may not rely upon the allegations in his pleadings. He must respond with
affidavits or other documents allowed by Civil Rule 56(e).” 105 Wn. App. at 676.
It is apparent from the cited sources that our court in Newton did not
purport to announce some new rule forbidding a party to submit testimony in its
own favor when responding to a summary judgment motion. Rather, we simply
reiterated the requirement articulated in CR 56(e) that a party may not rely on its
pleadings and must submit evidence in response to a motion for summary
judgment. By “self-serving statements,” we clearly meant allegations contained
in a pleading and not, as Amazon would have us read it, a party’s declaration or
affidavit testimony as to his recollection of the events.
2
To the extent that any appellate decision can be read to exclude “self-
serving” declarations from consideration on summary judgment, those cases
were effectively repudiated by Division Two in two recent cases. In Reagan v.
Newton, 7 Wn. App. 2d 781, 436 P.3d 411 (2019), the trial court granted
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/15
15
summary judgment to the defendant, Newton, on Reagan’s medical battery
claim. Newton urged the appellate court to affirm the trial court’s ruling because
Reagan “relie[d] only on her own self-serving testimony that he intentionally
injured her.” Reagan, 7 Wn. App. 2d at 806. Division Two rejected that
argument, holding that “a party’s declaration is enough to create a question of
fact where her . . . testimony was based on her personal observations.” Reagan,
7 Wn. App. 2d at 806. Accordingly, the appellate court reversed the trial court’s
order granting summary judgment to Newton.
Division Two addressed a similar argument the following year in Mackey
v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 459 P.3d 371, review denied,
195 Wn.2d 1031 (2020). There, plaintiff Mackey brought a retaliation claim
against her employer, Home Depot. The trial court granted summary judgment in
Home Depot’s favor. On appeal, Home Depot argued that summary judgment
was proper because Mackey had not provided evidence that she engaged in any
protected activity, despite having submitted a declaration testifying that she had
complained of another employee’s discriminatory actions to the store manager.
Mackey, 12 Wn. App. 2d at 574-75. Home Depot asserted that Mackey’s
declaration was properly disregarded because “Mackey’s statement is not
sufficient to show that she actually complained before her termination because it
was self-serving, was unsubstantiated, and could not be corroborated.” Mackey,
12 Wn. App. 2d at 575. Division Two again rejected this argument, holding that
“on summary judgment a nonmoving party’s declaration must be taken as true
and can create a genuine issue of material fact even if it is ‘self-serving.’”
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/16
16
Mackey, 12 Wn. App. 2d at 575 (quoting Reagan, 7 Wn. App. 2d at 806). Thus,
the court concluded that Mackey’s declaration constituted sufficient evidence to
establish a question of fact that she had engaged in protected activity.
3
Here, Haley submitted a declaration stating that he notified Amazon in
writing of his desire to not renew the 2012 MDF Agreement. Rather than
accepting this declaration as true, the trial court, at Amazon’s urging, disregarded
it as “self-serving.” But Haley’s declaration submitted in response to Amazon’s
motion for summary judgment is not a pleading; it is evidence. In accordance
with CR 56(e) and pertinent case law, Haley’s testimony should have been
considered by the trial court so long as the declaration was made on personal
knowledge, set forth admissible facts, and showed that he was competent to
testify.
Haley’s testimony about his own actions was clearly made on his personal
knowledge, as it recounted the actions he took in his business relationship with
Amazon. There is no dispute that Haley was competent to testify.
That Haley’s testimony served his purpose by supporting his claims in no
way makes the evidence inadmissible. Rather, Haley’s testimony was
admissible if it was relevant. ER 402. To be relevant, Haley’s declaration
needed to make facts at issue “more probable or less probable” than they would
be without the evidence. ER 401. Haley’s assertion in his declaration that he
contacted Amazon in writing to cancel the MDF Agreement in 2012, makes more
probable his allegation that he did not have an MDF Agreement with Amazon
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/17
17
between 2013 and 2016. His testimony was therefore relevant to the issues
presented on summary judgment.9
As admissible evidence, Haley’s testimony in his declaration should have
been considered and construed in the light most favorable to him as the
nonmoving party. As our case law makes evident, Haley was not required to
corroborate his testimony or prove himself credible in order to defeat Amazon’s
motion for summary judgment. The declaration alone was sufficient. The trial
court erred by failing to construe all facts and inferences presented in Haley’s
declaration in his favor when deciding Amazon’s motion for summary judgment.
C
Amazon further argues that, even if Haley’s declaration was not “self-
serving,” the trial court properly declined to credit Haley’s declaration testimony
that he submitted a written repudiation of the 2012 MDF Agreement to Amazon in
October 2012. This is so, Amazon asserts, because trial courts are not required
to take a party’s declaration “at face value” when ruling on a motion for summary
judgment. We disagree.
1
When deciding a motion for summary judgment, the court must view all
facts and reasonable inferences therefrom in the light most favorable to the
nonmoving party. Boyd, 197 Wn. App. at 142. The corollary of this rule is that
“on summary judgment a nonmoving party’s declaration must be taken as true”
9 Had Amazon believed that any evidence presented in Haley’s declaration was
inadmissible, it had a remedy by filing a motion to strike the inadmissible statements. Amazon
did not do so.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/18
18
unless it is inadmissible on other evidentiary grounds. Mackey, 12 Wn. App. 2d
at 575.
Federal Rule of Civil Procedure 56 jurisprudence recognizes a narrow
exception to this principle that applies only when the nonmovant’s evidentiary
proffer is so implausible that no reasonable person could conclude that its
assertions of fact can be true.10 This does not mean that the evidentiary proffer
is insufficient to convince a unanimous jury of the truth of the proffered facts. Nor
does it mean that most persons would not be so convinced. Only when no
reasonable person could find the proffered facts to be true does the principle
apply.
One of the very few cases in which this narrow exception has been
applied is Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686
(2007). Therein, the plaintiff filed a civil rights action against a deputy sheriff,
alleging the use of excessive force during a vehicle pursuit. Scott, 550 U.S. at
375-76. The civil defendant filed a motion for summary judgment seeking to
dismiss the claim. Scott, 550 U.S. at 376.
In response to the motion, the plaintiff submitted a declaration stating that
he remained in control of his vehicle at all times, slowed for intersections,
signaled for turns, and did not run any motorists off the road. Scott, 550 U.S. at
379. The pursuing police officer denied that this was true.
Crucially, a video recording was submitted to contravene the plaintiff’s
testimony. This video showed the plaintiff swerving around over a dozen cars,
10 This is sometimes phrased as “not taking the opponent’s declaration at face value.”
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/19
19
forcing vehicles off the road to avoid collisions, running multiple red lights, and
driving in the center left-turn-only lane. Scott, 550 U.S. at 379-80. Given the
events depicted on the video, the Supreme Court determined that the plaintiff’s
“version of events is so utterly discredited . . . that no reasonable jury could have
believed him.” Scott, 550 U.S. at 380. The Court thus held that “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott, 550 U.S. at 380. In short, the plaintiff’s declaration set forth
facts that were so implausible, given the complete record, that no reasonable
person could believe those facts to be true.
The Scott decision also highlights a necessary restriction on resort to this
exception. Scott does not invite a trial court to decide that a party’s witness is
more credible than the witnesses for the opposing party. Instead, in Scott, the
plaintiff’s testimony was shown to be directly at odds with a piece of evidence
that was not capable of being impeached—a video of the events at issue. The
trial court was not allowed to discount the plaintiff’s declaration on the basis of
finding countervailing testimony to be greatly more persuasive. Instead, it was
the neutral but clear video evidence that demonstrated that the plaintiff’s
testimony was not possibly accurate and, therefore, did not present an issue that
needed to be determined by a jury.
To be clear, the Scott exception applies when (1) the moving party and the
nonmovant submit declarations or deposition testimony that directly contradict
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/20
20
one another as to a material fact, and (2) the moving party also submits neutral,
unimpeachable, irrefutable, and unrebuttable evidence that clearly demonstrates
the truth of that set forth in the moving party’s evidentiary submission. Only then
may the nonmovant be denied the benefit of the summary judgment standard—to
have its tendered evidence viewed as true and be given the benefit of all
inferences arising therefrom.
In Scott, this was described as a function of the “no reasonable person”
standard of summary judgment decision-making. In truth, however, there is more
to it. Scott should also be viewed as a decision based on prudential concerns:
no procedural rule should compel the courts and the justice system to give
credence to blatantly perjured testimony or the evidentiary product of known false
statements made under oath. In sum, the decision in Scott was as compelled by
the need to protect the integrity of the court as it was by the application of a
summary judgment analysis.
2
(a)
Scott, however, finds no corollary in Washington’s CR 56 jurisprudence.
Although Amazon correctly notes that occasional Washington appellate decisions
have recited a platitude about nonmovants not being entitled to have their
declarations “taken at face value,” a review of the case law demonstrates that
this supposed principle has been far more frequently stated than applied.
Indeed, Washington’s CR 56 case law is bereft of any reported decision in which
the supposed principle has been utilized to justify denying a nonmovant of the
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/21
21
benefits of the rule—to have its evidence treated as true and to be given the
benefit of all inferences therefrom—on the basis Amazon urges here—that the
moving party’s evidence is so persuasive that no reasonable person could
believe the nonmovant’s version of events.
Indeed, Washington’s CR 56 jurisprudence contains no decision quite like
the Scott case. In Washington, the cases stating the supposed principle that a
nonmovant’s declaration need not be accepted at “face value” fall instead into
three categories:
(1) Cases in which the principle is recited but not applied;
(2) Cases in which an ultimate fact at issue (e.g., due diligence,
reasonableness) is unsupported by predicate facts; and
(3) Cases applying the notion based on the prudential concern of not
rewarding perjury or false swearing at the expense of the integrity of
the courts.
(b)
This third category of cases—those based on a prudential concern—is
both easy to describe and has no application to the present litigation.
“‘“When a party has given clear answers to unambiguous [deposition]
questions which negate the existence of any genuine issue of material fact, that
party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.”’” Cornish
Coll. of the Arts v. 1000 Virginia Ltd. P’ship, 158 Wn. App. 203, 227, 242 P.3d 1
(2010) (alteration in original) (quoting Marshall v. AC&S, Inc., 56 Wn. App. 181,
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/22
22
185, 782 P.2d 1107 (1989) (quoting Van T. Junkins & Assocs., Inc. v. U.S.
Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984))). In this way, courts will not take
the declaration “at face value.”
However, “[t]his rule is a narrow one. The ‘self-serving affidavit’ must
‘directly contradict’ the affiant’s ‘unambiguous sworn testimony’ previously given.”
Taylor v. Bell, 185 Wn. App. 270, 294, 340 P.3d 951 (2014) (quoting Kaplan v.
Nw. Mut. Life Ins. Co., 100 Wn. App. 571, 576, 990 P.2d 991, 6 P.3d 1177
(2000)); accord Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 322, 14 P.3d
789 (2000) (“While [the] statements contain potential inconsistencies, they are
not necessarily contradictory, and certainly do not rise to the level of clear
contradiction necessary to invoke the Marshall rule.”). “Moreover, if the
subsequent affidavit offers an explanation for previously given testimony,
whether the explanation is plausible is an issue to be determined by the trier of
fact.” Taylor, 185 Wn. App. at 294 (citing Safeco Ins. Co. v. McGrath, 63 Wn.
App. 170, 175, 817 P.2d 861 (1991)).
(c)
Nothing in the record of this dispute between Haley and Amazon calls for
or authorizes application of the prudential rule set forth in Marshall and discussed
in Taylor and similar decisions. In fact, this third category of decisions—those
applying this prudential rule—are the only Washington appellate opinions which
authorize denying the nonmovant the benefit of the standards of CR 56—that the
nonmovant’s evidence be treated in the light most favorable to the nonmovant
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/23
23
and that the benefit of all inferences arising from that evidence be given to the
nonmovant.
(d)
We next discuss the first category of “face value” appellate opinions.
These are decisions in which the platitude was stated but not applied. Instead, in
those cases, the decision is invariably best understood as simply holding that
even when the nonmovant was given the benefits of all of the evidence
presented, a material question of fact was not established. See, e.g., Shoulberg
v. Pub. Util. Dist No. 1 of Jefferson County, 169 Wn. App. 173, 280 P.3d 491
(2012);11 Dombrosky v. Farmers Ins. Co. of Wash., 84 Wn. App. 245, 928 P.2d
1127 (1996).12
(e)
Our discussion of the second category of “face value” opinions requires
more nuance. Some confusion has arisen from these cases. But when the
decisions are understood for what they are—opinions resting on the distinction
between ultimate facts and predicate facts—it is clear that the opinions are
correctly decided. It is equally clear that they have nothing whatsoever to do with
resolution of the Haley-Amazon dispute.
Of the cases falling into this category, two are far and away most
prominent in terms of subsequent citations to them appearing in appellate
11 Cited at Br. of Resp’t at 22.
12 Cited at Br. of Resp’t at 22.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/24
24
opinions that recite but do not apply the supposed “face value” principle. We will
discuss each in turn.
The first of these was decided nearly six decades ago. That case,
Meissner v. Simpson Timber Co., 69 Wn.2d 949, 421 P.2d 674 (1966), was a
breach of contract dispute. Meissner was a Simpson Timber employee who, in
early 1952, co-invented “a process of fabricating a wood fibre acoustical tile . . .
which seemed to have significant economic potential.” Meissner, 69 Wn.2d at
951. The company sought to obtain “an assignment of the coinventors’ rights
therein.” Meissner, 69 Wn.2d at 951. Meissner was informed of the company’s
intent by a personal friend, Charles Devlin, who was a corporate officer. Devlin
told Meissner that Simpson Timber would “‘probably’” give Meissner “‘an
extraordinary bonus or a royalty arrangement,’” Meissner, 69 Wn.2d at 951, in
exchange for the assignment.
In April 1952, Meissner signed an “‘Agreement of Assignment of
Invention’” tendered by Simpson Timber. Meissner, 69 Wn.2d at 952. It recited
consideration of “‘One Dollar ($1.00) and other valuable consideration.’”
Meissner, 69 Wn.2d at 952.
Sometime in the spring of 1952 an “executive meeting” was held among
several corporate officers. At this meeting, it was agreed among these officers
that Meissner should receive a monetary bonus plus “20 per cent of certain
royalty income.” Meissner, 69 Wn.2d at 952. Devlin mentioned this to Meissner
in a conversation taking place in the fall of 1952, at a dinner party at Devlin’s
home. Meissner, 69 Wn.2d at 953. Devlin also made clear that he had not been
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/25
25
directed by company officials to inform Meissner of the royalty discussion.
Meissner, 69 Wn.2d at 954. Instead, to Meissner, it was “‘like a good friend
passing along some good news.’” Meissner, 69 Wn.2d at 954.
In March 1955, Meissner was officially informed by the company that
“$10,000 had been appropriated as compensation for the assignment.”
Meissner, 69 Wn.2d at 955. Of this amount, $6,000 was paid to Meissner.
Meissner, 69 Wn.2d at 955. Meissner accepted the payment as “‘full
compensation’” for his assigned interest. Meissner, 69 Wn.2d at 955.
In 1958, Simpson Timber began granting licenses to other businesses “to
produce the acoustical tile invented by” Meissner. Meissner, 69 Wn.2d at 955.
In 1963, Meissner sued, seeking 20 percent of the royalties thus obtained by
Simpson Timber. Meissner, 69 Wn.2d at 955.
Meissner’s breach of contract claim was premised on his contention that
he was “‘orally promised’” 20 percent of royalties. Meissner, 69 Wn.2d at 955.
Our Supreme Court analyzed the issue as follows:
The ultimate question thus becomes: Assuming the fact of
the conversation, and the truth of the statements therein made, are
these facts sufficient to raise a genuine issue as to the existence of
a promise by defendant to pay plaintiff the royalties he seeks in this
lawsuit? It is our considered opinion that they do not.
Meissner, 69 Wn.2d at 956 (footnote omitted).
The court then proceeded to utilize various verbs to explain its method of
analysis, employing the types of verbs often later appearing in various “‘not take
at face value’” opinions. The court, it said, would “‘pierce such formal allegations
of fact’” and not allow “mere assertion[s]” or “bare allegations” that would not
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/26
26
allow “reasonable men” to conclude that an oral promise was made. Meissner,
69 Wn.2d at 951, 955-57 (quoting Reed v. Streib, 65 Wn.2d 700, 706, 399 P.2d
338 (1965)).
But the true basis for the court’s decision is found elsewhere in its opinion.
Put simply, the ultimate fact (whether a promise was made) was not established
by the proffered predicate facts (Meissner was told that members of the board
intended to offer royalty payments). As the court reasoned:
The evidence discloses, at most, that defendant, at one time,
had intended to pay royalties to plaintiff, and that this intention was
disclosed to him. But an intention to do a thing is not a promise to
do it. An ‘intention’ is something formed in the mind of a man; a
‘promise’ is an express undertaking or agreement to carry the
purpose into effect.
. . . .
. . . Conceding the truth of the allegations, then, we hold that they
are without legal probative force. On trial, such evidence would
compel the direction of a verdict in favor of the defendant.
Meissner, 69 Wn.2d at 957.
To be clear, what the court in Meissner did not “take at face value” was
Meissner’s deposition testimony that he had received an oral promise. This
ultimate fact, the court ruled, even when giving Meissner the benefit of the truth
of the predicate evidence he presented and the inferences therefrom, was not
established by the predicate facts adduced, i.e., the existence of a mere intention
to later make a promise.
The second opinion sometimes cited in support of the purported “not take
at face value” principle was decided 30 years ago. That case, Allen v. State, 118
Wn.2d 753, 826 P.2d 200 (1992), arose out of the December 1979 Pierce County
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/27
27
murder of Stephen Allen. Allen’s widow ultimately commenced the wrongful
death lawsuit at issue, asserting that the State was liable because Stephen’s
murderers were free to kill him only because they had been negligently paroled.
Stephen died on December 18, 1979. Allen, 118 Wn.2d at 754-55.
Beverly, his widow, was not present. In the aftermath, Beverly spoke with police,
who were then unaware of the identity of Stephen’s killers. Allen, 118 Wn.2d at
755. Beverly then returned to her Mount Vernon home.
After several months, Beverly ceased contact with the police. Allen, 118
Wn.2d at 755.
In May 1982, a jury found John Anderson and Robert Stratton guilty of
Stephen’s murder. Allen, 118 Wn.2d at 755. Both men were on parole at the
time of the murder. Allen, 118 Wn.2d at 755. Beverly maintained that she was
unaware of this until September 1985. Allen, 118 Wn.2d at 757.
Members of her family, however, became aware much earlier:
• Beverly’s father, who lived in Mount Vernon, learned of the convictions in
1983, when he was sent news clippings describing the murder trial. Allen,
118 Wn.2d at 756. The father did not inform Beverly because he did not
want to cause her stress. Allen, 118 Wn.2d at 756.
• In March 1984, Beverly’s son, Troy, discovered the articles when visiting
his grandfather. Troy showed the articles to an attorney in May 1984.
The attorney suggested that there might be a cause of action against the
State “for the manner in which it paroled Steve Allen’s killers.” Allen, 118
Wn.2d at 756. However, Troy did not inform his mother of this because he
did not want to upset her. Allen, 118 Wn.2d at 756.
On October 9, 1985, Beverly, having recently learned of the convictions,
filed a wrongful death suit on behalf of herself and her children. Allen, 118
Wn.2d at 757.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/28
28
The State moved for summary judgment, claiming that Beverly’s cause of
action had accrued no later than May 1982 when various newspapers, including
those distributed in Skagit County, reported on the results of the murder trial.
Allen, 118 Wn.2d at 757. Thus, the State alleged, the applicable 3-year limitation
period expired no later than May 1985—several months before Beverly filed her
complaint. Allen, 118 Wn.2d at 757. Beverly, the State claimed, had not
exercised due diligence to learn of the factual basis of her cause of action.
Due diligence presents a fact question. In Allen, it was an ultimate fact.
The predicate facts were those that supported or did not support the conclusion
that Beverly had exercised due diligence.
The Supreme Court ruled that Beverly’s claim that she had exercised due
diligence was not enough to establish that fact. This was so, the court ruled,
because the predicate facts did not support it. Beverly did not take steps to stay
in contact with the police, acted as though she “wanted to put her husband’s
death behind her,” and did not even read local newspapers containing articles
about the trial of Stephen’s murderers. Allen, 118 Wn.2d at 758-60. Thus, even
when she was given the benefit of the summary judgment standard as to her
proffered predicate facts, “reasonable minds could only conclude that due
diligence would have alerted Beverly Allen to the factual basis for her action
more than 3 years before she filed suit.” Allen, 118 Wn.2d at 760.
In this way—the failure to proffer predicate facts that, if true, would
establish the ultimate fact—the Allen case did not accept Beverly’s declaration of
having exercised due diligence at “face value.”
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/29
29
(f)
We now return to the dispute between Haley and Amazon. Here, no
similar situation exists. Haley’s declaration was based on his firsthand
knowledge and directly states the actions he took. He was competent to so
testify and his testimony, when credited, establishes a clear dispute of fact.
The trial court’s grant of summary judgment cannot be approved of on this
basis.
D
The trial court should not have entered findings of fact when deciding
Haley’s first summary judgment motion in Amazon’s favor. The court later
compounded its error by utilizing those factual findings in granting Amazon relief
in the summary judgment orders giving rise to this appeal.
A trial court may only enter findings of fact when ruling on a motion for
summary judgment under the limited circumstances outlined in CR 56(d).
Pursuant to this rule, if a motion for summary judgment is not dispositive on all
aspects of the case, the trial court can make findings as to material facts that
exist “without substantial controversy.” However, the trial court may do so only
upon a motion that does not seek adjudication of the case as a whole. CR 56(d).
Furthermore, the trial court must examine the pleadings and evidence before it
and inquire of counsel to ensure that the facts are agreed. CR 56(d). This did
not happen here. Furthermore, in its order, the trial court must specify which
facts exist without contention and which remain in controversy. CR 56(d). The
trial court’s order here did not so specify.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/30
30
When the trial court does make findings of fact without following the
procedures dictated in CR 56(d), its findings are nullities. Duckworth, 91 Wn.2d
at 21-22. Because findings of fact in an order on summary judgment not entered
pursuant to CR 56(d) are nullities, the trial court errs by relying on those findings
in entering a subsequent order. Hamilton v. Huggins, 70 Wn. App. 842, 849, 855
P.2d 1216 (1993).
Here, the trial court made numerous findings of fact in rendering its order
denying Haley’s first motion for partial summary judgment. Notably, the trial court
entered a finding that “Mr. Haley did not effectively repudiate the 2012
Agreement in writing at any point in 2012.” Whether Mr. Haley notified Amazon
in writing of his desire to not renew the 2012 MDF Agreement is clearly a fact,
and it is one that is highly disputed by the parties. As such, the trial court never
should have entered findings of fact declaring the Agreement renewed and
binding after December 31, 2012.
The trial court’s findings of fact should have been treated as nullities when
the court considered Amazon’s later motion for summary judgment. This is
especially so as the procedural posture of the parties had reversed; Haley was
now the nonmovant. Instead, the trial court concluded that its factual finding that
Haley did not repudiate the 2012 Agreement effectively established that the MDF
Agreement remained valid, thus warranting dismissal of Haley’s accounts
receivable claims. In this, the court erred. Haley’s claims were neither proved
nor disproved on his earlier motion for partial summary judgment. The only
conclusion appropriately reached by the denial of Haley’s summary judgment
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/31
31
motion is that material issues of fact existed at the time the order was entered.
Any other conclusion was unfounded.
Haley’s testimony that he notified Amazon in writing of his repudiation of
the 2012 MDF Agreement is sufficient to establish a material question of fact on
Haley’s accounts receivable claims.13 The trial court erred by finding that
testimony not credible, entering findings of fact to that effect, and dismissing
Haley’s accounts receivable claims following this resolution of a factual dispute.
Because material issues of disputed fact existed, the trial court should not have
granted summary judgment in favor of Amazon. We therefore reverse the trial
court’s order with respect to Haley’s accounts receivable claims.
A majority of the panel having determined that only the foregoing portion
of this opinion will be printed in the Washington Appellate Reports and that the
remainder shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
III
Amazon next asserts that the trial court correctly dismissed Haley’s CPA
claims as barred by the applicable four-year statute of limitations. This is so,
Amazon contends, because Washington does not recognize a continuing tort
doctrine applicable to CPA claims and, therefore, any later deductions from
OraHealth’s receipts do not save a claim that accrued in February 2016. This
13 To be clear, in resolving Amazon’s summary judgment motion, the trial court erred both
by not viewing the evidence in the light most favorable to Haley and by instead giving the
paralegal’s declaration submitted by Amazon the benefit of all inferences from the evidence (e.g.,
the paralegal was properly trained, the paralegal did his work correctly, Amazon’s system was
foolproof, etc.).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/32
32
argument is without merit. Haley does not allege a continuing tort. A continuing
tort is one where “‘no single incident in a continuous chain of tortious activity can
“fairly or realistically be identified as the cause of significant harm”’” Hill v. Dep’t
of Transp., 76 Wn. App. 631, 638, 887 P.2d 476 (1995) (quoting Page v. United
States, 729 F.2d 818, 821-22 (D.C.Cir.1984)). Here, there was no allegation of a
continuous chain of tortious activity. Rather, Haley alleges that four separate
deductions taken by Amazon were the cause of his injuries. Amazon took those
deductions in February 2016, August 2016, March 2018, and May 2018.
Haley filed his lawsuit against Amazon in July 2020. Because there is no
allegation of a continuing tort, Haley correctly concedes that his CPA claim based
on the February 2016 deduction is barred by the statute of limitation. See RCW
19.86.120 (statute of limitation for CPA claims is four years). However, Haley’s
CPA claims based on the October 2016, March 2018, and May 2018 deductions
were timely made.
Unlike McFarling v. Evaneski, 141 Wn. App. 400, 171 P.3d 497 (2007),
upon which Amazon relies, this is not an instance in which the plaintiff suffered
ongoing damages as the result of a single tortious action by the defendant.14
Rather, Haley allegedly suffered damages as the result of four distinct actions
taken by Amazon. The trial court erred when it dismissed Haley’s CPA claims in
their entirety as being time barred.
IV
Amazon next avers that Haley’s CPA claims should nevertheless be
14 The tortious act in McFarling was a motor vehicle collision. See 141 Wn. App. at 402.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/33
33
dismissed in full because Haley did not present evidence on a question of
material fact. Specifically, Amazon alleges that there is no evidence that
Amazon’s challenged actions affect the public interest. We agree.
A plaintiff asserting a claim under the CPA must present evidence of “(1)
an unfair or deceptive act or practice (2) occurring in trade or commerce (3)
affecting the public interest, (4) injury to a person’s business or property, and (5)
causation.” Behnke v. Ahrens, 172 Wn. App. 281, 290, 294 P.3d 729 (2012)
(citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d
778, 784-85, 719 P.2d 531 (1986)).
The plaintiff has the burden to show that the unfair or deceptive act has
“‘the capacity to deceive a substantial portion of the public.’” Indoor
Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 74-75,
170 P.3d 10 (2007) (quoting Hangman Ridge, 105 Wn.2d at 785). Whether an
act has the capacity to deceive a substantial portion of the public is usually a
question of fact. Behnke, 172 Wn. App. at 292. However, “a breach of a private
contract affecting no one but the parties to the contract is not an act or practice
affecting the public interest.” Hangman Ridge, 105 Wn.2d at 790. For a private
dispute to affect the public interest, the plaintiff must show either that the action
constitutes a per se violation of the CPA, or that it is likely that other persons
have been or will be injured in exactly the same manner. Hangman Ridge, 105
Wn.2d at 790-91.
Haley does not argue that Amazon’s challenged actions constituted a per
se violation of the CPA. Rather, Haley asserts that three pieces of evidence
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/34
34
submitted to the trial court support his claim that Amazon’s conduct affected or
would affect other persons in the exact same manner. First, Haley submitted a
copy of the decision entered in Goped Ltd. LLC v. Amazon.com Inc., 2018 WL
834591 (D. Nev. Feb. 12, 2018). In that case, the plaintiff brought claims against
Amazon for declaratory relief, violation of the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, fraud, unjust enrichment, and deceptive trade
practices. Goped, 2018 WL 834591, at *1. Although the factual allegations
made by the plaintiff are similar to the ones made by Haley, this trial court
decision is not evidence that other persons have been injured in the exact same
manner. This is particularly so given that the court dismissed the plaintiff’s
claims therein due to a lack of evidence. Goped, 2018 WL 834591, *4-5. Even
were we to consider this decision as evidence, however, it would not by itself be
sufficient to demonstrate a public interest impact. The question of public interest
is whether “many” consumers would be affected by the defendant’s actions, not
whether one other consumer may have been so affected. Hangman Ridge, 105
Wn.2d at 790.
Second, Haley relies upon an investigative report by the United States
House Subcommittee on Antitrust, Commercial and Administrative Law. Haley
did not provide a copy of this report to the trial court but, instead, extracted one
quotation therefrom and provided an Internet link to the report in a footnote to his
response to Amazon’s summary judgment motion. This was not sufficient. A
party responding to a summary judgment motion must demonstrate the existence
of a material issue of fact through use of “pleadings, depositions, answers to
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/35
35
interrogatories, . . . admissions on file, [and] affidavits.” CR 56(c). For an
appellate court to consider evidence on an appeal from a summary judgment
order, the evidence must have been “called to the attention of the trial court.”
RAP 9.12. Merely providing an Internet link to a document may alert the trial
court to its existence, but does not properly call its contents to the trial court’s
attention. See Gartner, Inc. v. Dep’t of Revenue, 11 Wn. App. 2d 765, 776-77,
455 P.3d 1179 (2020) (striking reference to website in appellate brief where party
had not provided documentation of evidence contained on website). If the
plaintiff wishes for the trial court to review documents obtained from the Internet
in connection with a summary judgment motion, the proper method of doing so is
to attach those documents to an affidavit. CR 56(e); see also Milligan v.
Thompson, 110 Wn. App. 628, 635, 42 P.3d 418 (2002) (trial court did not err by
refusing to consider ER 904 documents on summary judgment, as they had not
been provided to the court). Because the investigative report was not submitted
to the trial court as an attachment to an affidavit, it was not “called to the attention
of the trial court.” Accordingly, we will not consider it as part of the evidence on
appeal.
Third, Haley relies on a website from Riverbend Consulting. As with the
House investigative report, Haley did not provide a copy of any documents from
the website to the trial court but instead set forth a link to the website in a
footnote in his response to Amazon’s motion for partial summary judgment.
Accordingly, the contents of this website also were not “called to the attention of
the trial court” and will not be considered on appeal.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 83010-4-I/36
36
In sum, Haley provides no evidence that “many” other persons have been
or will be injured in exactly the same manner as OraHealth. Nothing in our
record presents a triable issue of fact as to whether Amazon’s conduct affected
the public interest. Thus, the trial court did not err by dismissing Haley’s CPA
claims.
Reversed in part, affirmed in part, and remanded for further proceedings.
WE CONCUR:
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.