Mark Matthews, V. City Of Tacoma

Filed Washington State Court of Appeals Division Two October 20, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II MARK MATTHEWS, No. 60671-2-II Appellant, v. UNPUBLISHED OPINION CITY OF TACOMA, Respondent. Veljacic, C.J. — Mark Matthews appeals the trial court’s orders granting summary judgment in the City of Tacoma’s favor and denying his cross-motion for summary judgment. On appeal, Matthews argues that the trial court erred in granting the City’s motion for summary judgment, abused its discretion by excluding admissible evidence, and violated his right to due process. Finding no error, we affirm. FACTS I. BACKGROUND On April 15, 2020, the City issued a site development permit to Pioneer Land Development, LLC (Pioneer). The permit authorized Pioneer to begin construction at a parcel located at 46th and East D Street. Pioneer was going to develop the plot of land “into six residential parcels.” Clerk’s Papers (CP) at 223. An image depicting the development project is as follows: 60671-2-II CP at 95. “[T]he project entailed site grading, new building construction, construction of storm and sewer facilities, [and] roadway construction.” CP at 189. More specifically, part of the project entailed installing a curtain drain “stretching across the back of the lots on the development” and grading the slope of the hill “up to the property line” on lots 5 and 6. CP at 190. The permit required Pioneer, among other things, “[t]o indemnify and hold the City of Tacoma harmless from any and all damages done to any person or property which may [have arisen] from the construction encompassed by the Special Permit.” CP at 251. Matthews’s property, located at 4609 East C Street, adjoined the plot Pioneer owned and was located uphill of the proposed development in lot 6. 2 60671-2-II Around February 2021, the excavation of lot 6 up to Matthews’s property was complete. Then, “heavy rainfall (or some other water source) eroded part of the hillside” between lot 6 and Matthews’s property, resulting in “some of the soil from [Matthews’s] property to slough into the excavated area.” CP at 96. Afterward, Matthews contacted the City, expressing his concern “that Pioneer had graded on his property.” CP at 189. In response, Misty Hahn-Zwosta, the City’s assigned construction inspector, went to the site and spoke with Bud Lockard, the construction manager for Pioneer. “By the time [Hahn-Zwosta] inspected, Pioneer had . . . already installed [anti-erosion] fabric and rock over the hill, including [a] small area over the property line.” CP at 190. Except for this incident, the City had not received any confirmation from Pioneer that it was working beyond the property stakes. An image depicting the damage and some of the repair efforts is as follows: 3 60671-2-II CP at 355.1 Matthews submitted a formal complaint with the City in May. In Matthews’s communications with the City, he “allege[d, in part, that] a perforated drain was installed on his property.” CP at 226. Scott Haydon, the construction inspector lead for the “City’s Planning and Development Services Department,” went to “inspect the site to determine if there was any violation.” CP at 222, 224. Haydon observed that Pioneer “had already taken appropriate measures to resolve the issue by the time of [his] inspection, including anti-erosion fabric and rocks at the top and bottom of the slope.” CP at 224. Haydon also observed that “[t]he dirt slope, retaining wall, rocks and ditch [were] on the lot owne[d] and developed by Pioneer. The drain [was] not on Mr. Matthews’[s] property.”2 CP at 226. Moreover, “[i]t did not appear that [Pioneer] had deliberately crossed the property line, and [Haydon] did not find any violation as a result of [the] inspection.” CP at 225. In other words, there was no “clear evidence that would warrant a Stop Work Order being issued.” CP at 191.3 Because of this, the City closed the file on Matthews’s complaint. 1 The red dotted line across the image depicts the property line between Matthews’s property and the property Pioneer was developing. 2 In his declaration, Haydon recounted that Matthews’s believed that part of the drain to address the erosion was installed on his property. But Haydon explained that “this [was] not accurate” because “[t]he drain itself [was] not on” Matthews’s property and was instead a “small amount of fabric/rock.” CP at 226. The City subsequently advised Matthews that he could remove the dirt, fabric, and rock placed by Pioneer if he wished to do so. 3 Haydon explained in a declaration that “[t]he City would not have taken additional steps—such as a stop work order—unless there was a life safety issue or a potential critical area violation.” CP at 225-26. 4 60671-2-II When communicating with Matthews, the City maintained “that it would not be possible for the City to be a party to a potential property line dispute between developers and/or neighboring property owners.” CP at 244. This is because “[t]he City does not have the resources to assign staff to survey private development.” CP at 245. The City advised Matthews to “address any potential encroachment issue with the property owner (Pioneer), their surveyor, or to hire a surveyor of his own to confirm the correct placement of the stakes and/or the encroachment.” CP at 244. II. MATTHEWS’S FIRST LAWSUIT Matthews, with the assistance of counsel, filed a lawsuit against Pioneer in January 2022. Matthews asserted four causes of action in his complaint: injunctive relief, a violation of RCW 4.24.630 (waste),4 trespass and continuing trespass, and negligence. Pioneer moved for partial summary judgment, and ultimately, Matthews and Pioneer stipulated to the dismissal of all claims with prejudice. III. MATTHEWS’S SECOND LAWSUIT Matthews proceeded to file a second lawsuit against the City in July 2023. In the second case, Matthews had five causes of action: injunctive relief, violations of RCW 4.24.630 (waste), trespass and continuing trespass, negligence (failure to enforce RCW 4.96.010),5 and 4 RCW 4.24.630 provides a cause of action against individuals “who go[] onto the land of another and . . . remove[] timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land.” 5 RCW 4.96.010 establishes liability for the tortious conduct of local governmental entities. 5 60671-2-II discrimination under RCW 49.60.030.6 Three of the five causes of action in his complaint were the same as the causes of action he pursued in the first case. In his complaint, Matthews makes claims that first require that Pioneer be found liable. Matthews alleged that the City has refused to take responsibility for Pioneer’s trespass, allowed Pioneer to continue to cause damage to his property, and allowed Pioneer to violate his bundle of rights. Additionally, Matthews alleged that the City’s actions constituted a continuing trespass by allowing Pioneer to install the drainage system on his property. Under the second cause of action that the City violated RCW 4.24.630, Matthews alleged that despite him explicitly telling Pioneer to stay off the property and imploring the City for help, the City failed to intervene and allowed Pioneer to wrongfully enter onto his property, excavate, or use machines to cut into the property, all of which caused waste or injury to the land under RCW 4.24.630. Matthews then alleged that the City acted “wrongfully” because it intentionally approved and unreasonably allowed Pioneer to conduct the aforementioned acts to the land. CP at 6. Under the third cause of action, Matthews alleged that the City’s actions constituted trespass and continuing trespass, causing and continuing to cause significant damage to his property in violation of RCW 9A.52.080. As for his two new causes of action, Matthews alleged that the City was negligent under RCW 4.96.010 because it failed to enforce city ordinances and state laws that prohibited Pioneer from damaging his property. To that end, Matthews alleged that the City discriminated against him under RCW 49.60.030 by not issuing a stop work order against Pioneer when the City had allegedly done so in other comparable situations—the only difference here being that Matthews is a Black man. 6 RCW 49.60.030 creates a right to be free from discrimination based on protected classes and provides legal remedies for individuals harmed by discriminatory acts across employment, public accommodations, housing, credit, insurance, commerce, and breastfeeding in public. 6 60671-2-II In Matthews’s deposition, he acknowledged that City officials themselves did not trespass onto nor did they cause the damage to his property. He also confirmed that no City official “explicitly promise[d him] that a stop work order would be issued.” CP at 139. And he explained that the City did not “make any assurances or promises to [him], other than that [the City] would inspect the site pursuant to [his] allegations.” CP at 139. The City also told Matthews that he “should [have been] working with the contractor to resolve any property dispute.” CP at 129. Regarding his discrimination claim, Matthews explained that he obtained an Excel spreadsheet detailing stop work orders in a public disclosure record from the City. Beyond that, Matthews did not “have any information about the stop work orders outside what [he] got from [a conversation with his] neighbor,” Paul. CP at 143. Paul, who was white, allegedly obtained a stop work order issued by the City arising out of a property line dispute. Nowhere in the public disclosure records did it indicate “the race of the person making the request for a stop work order.” CP at 145. Matthews later moved to file a copy of Lockard’s deposition from the first lawsuit. The City opposed Matthews’s motion under CR 32(a) because it was not a party in the previous lawsuit and did not have an opportunity to participate in the deposition. The trial court agreed with the City and denied Matthews’s motion. Trial was set for April 24, 2025.7 The City moved for summary judgment and noted a hearing for March 14. The City contended that all of Matthews’s claims should be dismissed, 7 The trial date is not in the record as the scheduling order, the motions to continue trial, and the trial court’s orders granting those motions were not included. We take judicial notice of the trial court’s order setting Matthews’s trial date for April 24, 2025. See Spokane Rsch. & Def. Fund v. City of Spokane, 155 Wn.2d 89, 98, 117 P.3d 1117 (2005) (courts “‘may take judicial notice of the record in the case presently before [it] or in proceedings engrafted, ancillary, or supplementary to it’”) (internal quotation marks omitted) (quoting In re Adoption of B.T., 150 Wn.2d 409, 415, 78 P.3d 634 (2003)). 7 60671-2-II asserting that res judicata and the public duty doctrine barred several of the claims and that the remainder were supported by insufficient evidence. Matthews filed a combined opposition to the City’s motion for summary judgment and cross-motion for summary judgment on February 20, noting a hearing for April 11. Matthews’s filing relied on several documents, including: a letter from a surveyor that noted that “there appeared to be some encroachment of digging by” Pioneer along the back of Matthews’s property (Ex. A), CP at 314; a copy of a geotechnical engineering report (Ex. B); portions of Lockard’s deposition (Ex. C); pictures of the alleged damage (Ex. D); and the City’s records that allegedly showed the issuance of stop work orders in similar cases (Ex. E).8 And in Matthews’s declaration, he recounted a personal encounter with “Paul, a non-Black male, whom [Matthews] met and spoke with about a stop work order issued in his case.”9 CP at 308. 8 Exhibit E contained an abridged version of the public record disclosure Matthews obtained. Matthews had received a disclosure of over 800 pages, edited some of the records, and created a summary of stop work orders, including a “Key Takeaways” section, which is as follows: The City of Tacoma has issued numerous Stop Work Orders . . . for encroachment onto both private and public property. Many of these violations involved minor infractions, such as roof overhangs and fences; nevertheless, [stop work orders] were still issued. This establishes a pattern of enforcement for encroachment, which contradicts Tacoma’s refusal to issue [a stop work order] in Mr. Matthews’s case. CP at 371. 9 In the City’s reply in support of its motion for summary judgment, the City included the declaration of Mindee Weber, the permit compliance supervisor over major projects in the City’s Planning and Development Services Department, Site Building Division. Weber reviewed exhibit E in Matthews’s cross-motion for summary judgment and explained that Matthews misinterpreted the City’s records and the proffered documents did not show “that the City issued Stop Work Orders for alleged property line encroachments.” CP at 402. 8 60671-2-II The City moved to strike Matthews’s cross-motion for summary judgment and exhibits A, B, C, and E. The City argued that Matthews’s cross-motion was untimely filed and all exhibits were inadmissible hearsay. The trial court considered the City’s motion for summary judgment on March 14. The trial court found that Matthews’s cross-motion was untimely under CR 56(c) because he did not note the hearing for his motion more than 14 days before trial, as required by the court’s scheduling order and CR 56. The trial court also granted the City’s motion for summary judgment. The trial court remarked that “there [was] a strong argument in favor of res judicata” barring some of Matthews’s claims. Rep. of Proc. (RP) (Mar. 14, 2025) at 30. And the trial court noted that it appeared the reason Matthews filed the lawsuit against the City was based on his dissatisfaction with the result in the first lawsuit against Pioneer. The trial court then determined that the public duty doctrine barred Matthews’s waste and trespass claims. And the trial court concluded that there was insufficient evidence to support Matthews’s discrimination claim, meaning he could not establish a genuine issue of material fact on an essential element of his claim.10 10 While Matthews’s appeal was pending, Matthews moved to supplement the record to include Lockard’s deposition, public record disclosures stored on a USB drive, and other documents and photographs depicting the damage done to his property. The commissioner stayed Matthews’s appeal to allow for the trial court to clarify what documents it considered when granting the City’s motion for summary judgment. The trial court ultimately confirmed that it did not consider Lockard’s deposition because it ruled that it was inadmissible hearsay. And the trial court also confirmed that it did not review or consider the materials on the USB drive. But the trial court did review any documents on the drive “that may have been attached to [Matthews’s] response and cross[-]motion.” CP at 563. 9 60671-2-II Matthews appeals.11 ANALYSIS We review orders granting summary judgment de novo, “‘engag[ing] in the same inquiry as the trial court.’” SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014) (internal quotation marks omitted) (quoting Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000)). “A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000); CR 56(c). A material fact is a “‘fact upon which the outcome of the litigation depends, in whole or in part.’” Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979) (quoting Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974)). “[A]n adverse party may not rest upon the mere allegations or denials of a pleading” to prove that a genuine issue of material fact exists. CR 56(e). And “[a]ffidavits containing conclusory statements without adequate factual support are [similarly] insufficient to defeat a motion for summary judgment.” Boyer v. Morimoto, 10 Wn. App. 2d 506, 520, 449 P.3d 285 (2019). Furthermore, a party cannot rely on unauthenticated or hearsay evidence. Hunt, 181 Wn.2d at 141. 11 While reviewing the briefing in this case, it became apparent to this court that numerous authorities in Matthews’s briefing were problematic. For example, some citations for cases and municipal ordinances clearly do not support the propositions that Matthews’s cites to them for. Even worse, some authorities do not exist altogether, leading us to believe that this is the work of generative artificial intelligence. The use of this technology to draft legal documents is a rising trend. While such technology offers many advantages, it comes with serious drawbacks—such as the dilemma before us. Failure to support arguments with adequate legal authority violates RAP 10.3(a)(3). Pursuant to RAP 10.3(a)(3), we decline to address any argument in Matthews’s brief that is not supported by adequate legal authority. 10 60671-2-II We view all submitted facts and reasonable inferences in the light most favorable to the nonmoving party. Id. at 140. When reviewing an order granting summary judgment, we consider only “evidence and issues called to the attention of the trial court.” RAP 9.12. We may affirm “‘a trial court’s disposition of a motion for summary judgment or judgment as a matter of law on any ground supported by the record.’” 21st Mortg. Corp. v. Nicholls, 25 Wn. App. 2d 795, 803-04, 525 P.3d 962 (2023) (internal quotation marks omitted) (quoting Johnson v. Wash. State Liquor & Cannabis Bd., 197 Wn.2d 605, 611, 486 P.3d 125 (2021)). I. RES JUDICATA BARS MATTHEWS’S CLAIMS FOR INJUNCTIVE RELIEF, WASTE, AND TRESPASS AND CONTINUING TRESPASS Matthews argues that the trial court erred in concluding that the doctrine of res judicata barred his claims for injunctive relief, waste, and trespass and continuing trespass. We disagree. A. Standard of Review We review the applicability of res judicata de novo. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004); Lynn v. Dep't of Lab. & Indus., 130 Wn. App. 829, 837, 125 P.3d 202 (2005). B. Legal Principles Res judicata bars the relitigation of claims determined by a final judgment, as well as claims the plaintiff could or should have litigated in the prior litigation. Storti v. Univ. of Wash., 181 Wn.2d 28, 40, 330 P.3d 159 (2014). The doctrine “prohibits the same parties from litigating a second lawsuit on the same claim or any other claim” arising from the same transaction or series of transactions “that could have been, but was not, raised in the first suit.” Cook v. Brateng, 180 Wn. App. 368, 373, 321 P.3d 1255 (2014). “A matter should have been raised and decided earlier if it is merely an alternate theory of recovery or an alternate remedy.” Eugster v. Wash. State Bar Ass’n, 198 Wn. App. 758, 790, 397 P.3d 131 (2017). Res judicata does not apply where a 11 60671-2-II reasonably diligent party could not have raised unresolved claims in the prior litigation. See Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865-66, 93 P.3d 108 (2004). Filing two separate lawsuits based on the same event, or claim splitting, is prohibited in Washington. Ensley v. Pitcher, 152 Wn. App. 891, 898, 222 P.3d 99 (2009). The doctrine of res judicata or claim preclusion, rests on the ground that a matter that has been litigated, or on which there was an opportunity to litigate in a prior action, should not be litigated again. Id. at 899. Res judicata bars claim splitting if the claims are based on the same cause of action. Id. “The threshold requirement of res judicata is a valid and final judgment on the merits in a prior suit.” Id. Dismissal of an action “with prejudice operates as a final adjudication on the merits.” Marshall v. Thurston County, 165 Wn. App. 346, 352 n3, 267 P.3d 491 (2011). Once it has been established that there has been a final judgment, we determine whether subsequent claims are precluded by examining whether the two actions share an “‘identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made.’” Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wn.2d 94, 108, 297 P.3d 677 (2013) (quoting Mellor v. Chamberlin, 100 Wn.2d 643, 645-46, 673 P.2d 610 (1983)). The party asserting res judicata bears the burden of establishing all elements. Richert v. Tacoma Power Util., 179 Wn. App. 694, 704, 319 P.3d 882 (2014). C. Matthews’s Lawsuit 1. Final Judgment Here, there was a final judgment in the previous action arising out of the settlement between Matthews and Pioneer. 12 60671-2-II 2. Subject Matter When “determining the identity of subject matter,” we look to “‘the nature of the claim or cause of action and the nature of the parties.’” Marshall, 165 Wn. App. at 353 (internal quotation mark omitted) (quoting Hayes v. City of Seattle, 131 Wn.2d 706, 712, 934 P.2d 1179 (1997)). “Courts generally focus on the asserted theory of recovery rather than simply the facts underlying the dispute.” Id. Here, Matthews’s causes of action for injunctive relief, waste, and trespass and continuing trespass are nearly identical to the causes of action pursued in the first lawsuit. Like the first lawsuit, Matthews is seeking injunctive relief to remove a drainage system that was allegedly installed on his property, which Pioneer disputed. And Matthews is pursuing monetary damages for the alleged damage and trespass and continuing trespass caused by Pioneer resulting from its development of the 46th and East D Street property, which Pioneer also disputed. 3. Cause of Action This factor does not hinge on the specific cause of action; rather, courts consider: (1) whether the rights or interests established in the prior judgment would be destroyed or impaired by the prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the suits involved infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Pederson v. Potter, 103 Wn. App. 62, 72, 11 P.3d 833 (2000). A party does not need to prove all factors to demonstrate res judicata bars a claim. Kuhlman v. Thomas, 78 Wn. App. 115, 122, 897 P.2d 365 (1995). Here, the second, third, and fourth factors are easily satisfied. As for the second and fourth factors, it is evident that both lawsuits arise out the same transactional nucleus: the damage to Matthews’s property allegedly resulting from Pioneer’s development of the 46th and East D Street 13 60671-2-II property. And the second lawsuit rests on a substantial amount of evidence at issue in the first lawsuit. In fact, one of Matthews’s assignments of error on appeal relates to the trial court’s denial of his motion to file Lockard’s declaration from the first lawsuit. Regarding the third factor, it is evident that both lawsuits revolve around the same infringed right: Matthews’s enjoyment and use of his property.12 4. Persons and Parties “Generally, for a party to be the same persons or parties for res judicata purposes, they must have the same identities as the parties from the previous litigation.” Penner v. Cent. Puget Sound Reg’l Transit Auth., 25 Wn. App. 2d 914, 925, 525 P.3d 1010 (2023). But the identity of parties can be “‘nominally different’” and still “‘be, in legal effect, the same.’” Rains v. State, 100 Wn.2d 660, 664, 674 P.2d 165 (1983) (internal quotation marks omitted) (quoting Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S. Ct. 907, 84 L. Ed. 1263 (1940)). Courts have routinely recognized that defendants in separate actions are the same when they are in privity with each other. E.g., Ensley, 152 Wn. App. at 902. “A nonparty is in privity with a party if that party adequately represented the nonparty’s interest in the prior proceeding.” Feature Realty, Inc. v. Kirkpatrick & Lockhart Preston Gates Ellis, LLP, 161 Wn.2d 214, 224, 164 P.3d 500 (2007). For example, “the employer/employee relationship is sufficient to establish privity.” Kuhlman, 78 Wn. App. at 121. Here, even though Pioneer was the only defendant named in Matthews’s first lawsuit, it adequately represented the City’s interests. The City, as the permitting authority enabling Pioneer to begin development, was adjacent to the litigation in that lawsuit. Matthews’s claims in the first 12 Res judicata could still bar Matthews’s claims even if the first factor is not present. Kuhlman, 78 Wn. App. at 122. 14 60671-2-II lawsuit were premised on Pioneer negligently damaging and trespassing onto his property, which the City allegedly allowed and which is at issue in this lawsuit. But Matthews’s injunctive relief, waste, and trespass claims against the City are derivative of his claims against Pioneer. To be clear, Matthews’s claims against the City are not that the City trespassed or caused waste to his property, but that it allowed Pioneer to do so. Because Matthews’s first lawsuit addressed whether Pioneer committed waste or trespass, Pioneer adequately represented the City’s interests, and they are in privity. Moreover, the permit given to Pioneer required it “[t]o indemnify and hold the City . . . harmless from any and all damages done to any person or property which may [have risen] from the construction encompassed by the” permit. CP at 251. In other words, Pioneer had a direct, contractual obligation to assume financial responsibility for any liability arising out of the same construction activities that formed the basis of Matthews’s claims. Consequently, Pioneer and the City shared the same legal objective—defeating liability arising from the alleged damage and trespass to Matthews’s property. Therefore, we conclude that Pioneer adequately represented all other defendants in the prior actions, meaning it was in privity with the City. 5. The Quality of the Persons For or Against Whom the Claim is Made This factor focuses on the identity of the party whom res judicata is asserted against. See Carter v. MultiCare Health Sys, 31 Wn. App. 2d 755, 771-72, 553 P.3d 98 (2024). Here, it is undisputed that Matthews was the plaintiff in both lawsuits. Accordingly, all five factors have been satisfied. Even when viewing the facts in the light most favorable to Matthews, there is no set of facts upon which he could recover. Therefore, we conclude that Matthews’s claims for injunctive relief, waste, and trespass are barred by res 15 60671-2-II judicata, and the trial court did not err in dismissing Matthews’s claims on this basis at summary judgment.13 II. MATTHEWS’S NEGLIGENCE CLAIM IS BARRED BY THE PUBLIC DUTY DOCTRINE Matthews argues that the trial court erred in concluding that his negligence claim was barred by the public duty doctrine. We disagree. A. Standard of Review Whether the public duty doctrine applies is a question of law that we review de novo. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784, 30 P.3d 1261 (2001). B. Legal Principles Under the public duty doctrine, “governmental entities may be held liable only ‘to the same extent as if they were a private person or corporation.’” Norg v. City of Seattle, 200 Wn.2d 749, 758, 522 P.3d 580 (2023) (emphasis omitted) (quoting RCW 4.96.010(1)). “[T]he public duty doctrine provides ‘a mechanism for focusing upon whether a duty is actually owed to an individual claimant rather than the public at large.’” Id. at 758 (quoting J&B Dev. Co. v. King County, 100 Wn.2d 299, 304-05, 669 P.2d 468 (1983), overruled on other grounds by Meaney v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988)). “If the duty that the government allegedly breached was owed to the public at large, then the public duty doctrine applies; if the duty was owed to an individual, then the public duty doctrine does not apply.” Id. “[T]he public duty doctrine applies only to claims based on an alleged breach of ‘special 13 Because we conclude that Matthews’s claims for injunctive relief, waste, and trespass are barred by res judicata, we need not address Matthews’s remaining arguments associated with these causes of action, including the evidentiary issues pertaining to Lockard’s declaration and a geotechnical report Matthews obtained. 16 60671-2-II governmental obligations [that] are imposed by statute or ordinance.’” Id. (alteration in original) (quoting Beltran-Serrano v. City of Tacoma, 193 W.2d 537, 549, 442 P.3d 608 (2019)). It has long been established that “no duty is owed by [a] local government to a claimant alleging negligent issuance of a building permit or negligent inspection to determine compliance with the building codes.” Taylor v. Stevens County, 111 Wn.2d 159, 168, 759 P.2d 447 (1988). Instead, “[t]he duty to ensure compliance rests with individual permit applicants, builders and developers.” Id. This is so because “the duty to issue building permits and conduct inspections is to protect the health and safety of the general public.” Id. at 164-65. Moreover, if a local government “were liable for the negligence of a private developer, based on approval under existing regulations, then the municipalities, and ultimately the taxpayers, would become the guarantors or insurers for the actions of private developers whose development damages neighboring properties.” Phillips v. King County, 136 Wn.2d 946, 961, 968 P.2d 871 (1998). There are four exceptions to the public duty doctrine: “‘(1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship.’” Norg, 200 Wn.2d at 758 (quoting Munich v. Skagit Emergency Commc’n Ctr., 175 Wn.2d 871, 879, 288 P.3d 328 (2012)). “The legislative intent exception to the public duty doctrine applies when the statute or regulation that establishes a governmental duty expressly identifies and protects a particular and defined class of persons.” Vergeson v. Kitsap County, 145 Wn. App. 526, 537, 186 P.3d 1140 (2008). “Absent such express identification, we will not imply such legislative intent.” Id. Under the public duty doctrine's failure to enforce exception, “[a] public official owes a duty to an individual if (1) the official has a duty to enforce a statute, (2) the official has actual knowledge of a statutory violation, (3) the official fails to correct the violation, and (4) the plaintiff is within the class the statute protects.” Smith v. City of Kelso, 112 Wn. App. 277, 282, 48 P.3d 17 60671-2-II 372 (2002). “This exception applies only where there is a mandatory duty to take a specific action to correct a known statutory violation.” Donohoe v. State, 135 Wn. App. 824, 849, 142 P.3d 654 (2006). “Such a duty does not exist if the government agent has broad discretion about whether and how to act.” Halleran v. Nu West Inc., 123 Wn. App. 701, 714, 98 P.3d 52 (2004). The plaintiff has the burden to establish each element of the failure to enforce exception. Atherton Condo. Apt.–Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 531, 799 P.2d 250 (1990). Courts construe the exception narrowly. Id. “A special relationship imposing an actionable duty to perform arises between the plaintiff and a government entity when ‘(1) there is a direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff.’” Cummins v. Lewis County, 156 Wn.2d 844, 854, 133 P.3d 458 (2006) (internal quotation marks omitted) (quoting Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998)). C. Matthews’s Appeal Here, Matthews’s negligence claim is barred by the public duty doctrine. The obligations Matthews identifies arise solely from the City’s general regulatory authority over land-use permits, inspections, and nuisance conditions—duties owed to the public as a whole, not individuals such as Matthews. For example, TMC 8.30, one of the chapters of the Tacoma Municipal Code that Matthews relies on,14 identifies conditions that may constitute public nuisances but vests enforcement determinations squarely within the discretion of City officials. Nothing in the 14 After diligent review of the authorities Matthews cited, we determined that Matthews’s citations to the other provisions of the Tacoma Municipal Code either clearly do not support the proposition Matthew cited to them for or do not exist. 18 60671-2-II ordinance imposes mandatory, nondiscretionary enforcement steps or evidences any intent to protect a defined class of adjacent landowners. Accordingly, any duty alleged by Matthews is a duty owed to the public at large, meaning that the public duty doctrine bars his claim. Phillips, 136 Wn.2d at 963-64. Furthermore, no exception to the public duty doctrine applies. The legislative-intent exception does not apply because neither TMC 8.30 nor any state statute Matthews cited identifies a particular, circumscribed class of persons intended to receive special protection. See TMC 8.30.030-050; Taylor, 111 Wn.2d at 164-66.15 Instead, these provisions protect community-wide health, safety, and welfare. The failure-to-enforce exception is similarly unavailable. Nothing in the record suggests the City had a mandatory duty to issue a stop work order. Additionally, the record does not support that the City had actual knowledge of a statutory violation. Quite the opposite. Haydon’s inspection concluded that the contractor had not deliberately crossed the property line, had already taken corrective measures, and that no code violation existed. Finally, the special-relationship exception does not apply. Matthews received no express assurances from City officials and cannot show justifiable reliance. For starters, Matthews acknowledged that no City official “explicitly promise[d him] that a stop work order would be issued.” CP at 139. And Matthews also confirmed that the City did not “make any assurances or 15 Halvorson v. Dahl, 89 Wn.2d 673, 675-78, 574 P.2d 1190 (1978), is an example where our Supreme Court found that the legislative intent exception applied. Halverson involved a fatal hotel fire where the City of Seattle allegedly had six years of actual knowledge of serious, ongoing violations of the Seattle Housing Code. Id. at 677-78. The ordinance at issue expressly protected building occupants. Id. at 677. Matthews’s case is distinguishable from Halverson. TMC 8.30, in contrast, does not identify a protected class or impose mandatory enforcement duties. Compare TMC 8.30, with Halverson, 89 Wn.2d at 677 n.1. Moreover, the record shows no longstanding knowledge of a violation, let alone a violation at all. 19 60671-2-II promises to [him], other than that [the City] would inspect the site pursuant to [his] allegations.” CP at 139.16 And the City also emphasized that Matthews needed to work with Pioneer to address the problem. Therefore, even when viewing the evidence in the light most favorable to Matthews, we conclude that the trial court properly dismissed Matthews’s claim for negligence under the public duty doctrine at summary judgment. III. THE TRIAL COURT PROPERLY DISMISSED MATTHEWS’S DISCRIMINATION CLAIM Matthews argues that the trial court erred in dismissing his discrimination claim under RCW 49.60.030 at summary judgment.17 We disagree. A. Standard of Review Again, we review orders granting summary judgment de novo. Hunt, 181 Wn.2d at 140. But we review the trial court’s decisions regarding the admission of evidence for abuse of discretion. Helmbreck v. McPhee, 15 Wn. App. 2d 41, 55, 476 P.3d 589 (2020). B. Legal Principles RCW 49.60.030, the Washington Law Against Discrimination (WLAD), creates a right to be free from discrimination based on protected classes and provides legal remedies for individuals harmed by discriminatory acts across employment, public accommodations, housing, etc. 16 Matthews does not argue the applicability of the rescue doctrine exception, so we need not address it. 17 For what appears to be an argument raised for the first time on appeal, Matthews claims that the trial court also erred in dismissing his § 1983 claim. Nowhere in the record below did Matthews argue or discuss a § 1983 claim. As such, we will not consider it for the first time on appeal. RAP 2.5(a). Additionally, in Matthews’s reply brief, he appears to argue that the City’s actions amounted to an unconstitutional taking. Regardless of whether this argument is being raised for the first time on appeal, raising a new argument in a reply brief is too late to warrant consideration. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).