Kathie Costanich v. Dshs

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KATHIE COSTANICH,
No. 68744-1-
Appellant,
DIVISION ONE
v.

UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND r-3
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HEALTH SERVICES (DSHS); SANDRA <_«-> --" 7-^
DURON and JOHN DOE DURON; CAROL
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SCHMIDT and JOHN DOE SCHMIDT; O-r,
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BEVERLY PAYNE, and JOHN DOE -i- : -"Vi ~
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PAYNE; JAMES BULZOMI and JANE T»
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DOE BULZOMI; ROBERT STUTZ and —., T"^
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JANE DOE STUTZ; INGRID McKENNY „•''-/')
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and JOHN DOE McKENNY, —

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Respondents. FILED: November 4, 2013

Appelwick, J. — In 2001, the Department of Social and Health Services

investigated allegations that Costanich physically and emotionally abused foster

children in her care. DSHS made a formal emotional abuse finding, because Costanich

swore around the children. Her foster care license was eventually revoked. Costanich

sued DSHS on several theories. The trial court eventually dismissed Costanich's

negligent investigation and outrage claims on summary judgment. We affirm.

FACTS

Kathie Costanich has been a licensed foster parent in Washington since 1983.

Costanich v. Dep't of Soc. & Health Servs.. 627 F.3d 1101, 1103 (2010); Costanich v.

Dep't of Soc. & Health Servs.. 138 Wn. App. 547, 552, 156 P.3d 232 (2007), reversed in

part by, 164 Wn.2d 925, 194 P.3d 988 (2008). She specializes in caring for sexually

aggressive youth and medically fragile infants. Costanich, 138 Wn. App. at 552. In July
No. 68744-1-1/2

2001, Costanich had six children living in her home: three male foster children, K. (15),

J. (12), and P. (10); one male under dependency guardianship, F. (17); and two sisters

also under dependency guardianship, E. (8) and B. (4).1 Costanich, 627 F.3d at 1103-

04. All of her foster children were victims of abuse or neglect, and many had

behavioral, developmental, and medical problems. Costanich, 138 Wn. App. at 552. At

the time, the Department of Social and Health Services (DSHS) described the

Costanich foster home as a "'unique and valuable resource ... unsurpassed by any

foster home in the State.'" ]d. (alteration in original). Costanich was also president of

the Foster Parents of Washington State and a trainer for DSHS. id.

E. and B. lived with Costanich since infancy. They are both enrolled members of

the Kalispel Tribe (Tribe). With the Tribe's permission, Costanich became their

dependency guardian pursuant to court orders entered in 1996 and 1998. The orders

required Costanich to provide E.'s and B.'s birth mother with visitation, consult the Tribe

and the mother on cultural and religious issues, and maintain contact with the Tribe.

The Tribe would not allow Costanich to adopt the girls.

Child Abuse Investigation

In summer 2001, Sandra Duron, a social worker for Child Protective Services

(CPS),2 began investigating K'.s statements to his therapist that Costanich physically
and emotionally abused the children in her care. Costanich, 627 F.3d at 1104. K.

claimed that Costanich put her hands around F.'s neck and said, "'I'll kill you bastard'"

after seeing an altercation between F. and one of her aides. Id. F.'s account of the

1We referto the children only by theirfirst initials to protecttheir privacy.
2 CPS is a branch of DSHS.
No. 68744-1-1/3

incident was basically the same. Id. K. also said Costanich told P. to move his "'black

ass'" and clean his room. jd. And, K. claimed that Costanich called E. a "'cunt'" and

saw her grab E.'s hair, jd. Duron reported that J. told her he saw Costanich rub urine-

soaked sheets in P.'s face. jd. Costanich acknowledged that she openly swore around

the children, but did so to take the "power" out of profanity.

In her report, Duron indicated that all the children claimed Costanich used

profanity regularly, and all but one claimed she directed profanity at them and used

physical violence, jd. All the adults Duron interviewed also admitted Costanich used

profanity, but they differed on whether it was directed at the children and whether

Costanich used physical violence. Id. A clinical psychologist who reviewed Duron's

records but did not interview the children opined that swearing at children may lead to or

exacerbate behavioral problems. Id, Duron concluded that the emotional abuse

allegation was "'founded,'" but the physical abuse allegation was "'inconclusive.'" jd.

In November 2001, DSHS told Costanich that if she did not appeal its emotional

abuse finding and agreed to participate in a corrective management plan, it would not

seek termination of her guardianship of E. and B. Id. at 1105. By that time, DSHS had

removed P. and J. from the Costanich home. In December 2001, DSHS made a formal

finding of emotional abuse. Id On March 14, 2002, DSHS informed Costanich that it

upheld the finding of emotional abuse after internal review, jd. Costanich requested an

administrative hearing on March 24, 2002. Id.

Meanwhile, DSHS urged the Kalispel Tribe to take jurisdiction and remove E. and

B. from Costanich's care. The Tribe initially refused. On March 28, 2002, four days

after Costanich requested the administrative hearing, DSHS filed a motion to terminate
No. 68744-1-1/4

her guardianship of E. and B. The petition was supported by Duron's declaration that

Costanich "'uses profanity, name-calling, and derogatory racial terms as means to

discipline and intimidate the children.'" ]d

On April 12, 2002, the day the contested termination hearing was scheduled,

Costanich and the Tribe entered an agreed motion and order transferring jurisdiction to

tribal court. The guardianship termination motion was never heard by the juvenile court.

Per the Tribe's request, however, DSHS continued to exercise "courtesy supervision" of

the girls, conducting home visits and reporting to the Tribe. Costanich subsequently

entered a visitation order with the Tribe, agreeing that E. and B. would live with the

Tribe for 30 days in the summer of 2002. The Tribe returned E. and B. to Costanich

after the 30 days.

Administrative Appeal of Emotional Abuse Finding and License Revocation

On August 16, 2002, DSHS revoked Costanich's foster care license. Costanich,

138 Wn. App. at 553. Costanich appealed both the finding of abuse and the revocation

of her license. Id. In late 2002 and early 2003, an administrative law judge (ALJ) held

19 days of evidentiary hearings and heard testimony from 49 witnesses. Costanich,

627 F.3d at 1106. The ALJ overturned the DSHS decision, finding that the children

were not emotionally abused, but in fact were thriving based on their therapists' and

social workers' testimony. Costanich, 138 Wn. App. at 553. The ALJ found that K.'s

hearsay statements lacked credibility and Costanich's swearing was never directed at

the children. Id at 556-57, 558-59.

DSHS appealed and the DSHS Board of Appeals review judge reversed the

ALJ's decision. Id. at 553. He found there was substantial evidence that Costanich
No. 68744-1-1/5

threatened to kill F., told P. to move his "'black ass,'" called E. names, and swore at the

children, jd He concluded that this constituted emotional abuse and justified revoking

Costanich's license. ]d Costanich appealed and the superior court reversed the review

judge's final administrative decision. Id The superior court awarded Costanich

attorney fees under the equal access to justice act, RCW 4.84.350. Id.

DSHS appealed from the superior court's reversal, jd The primary issue on

appeal was the level of deference the review judge owed the ALJ. jd. at 554. We held

that the review judge acted outside the scope of his authority in making additional,

contradictory findings based solely on hearsay evidence, jd at 559. We set aside the

review judge's decision, reinstated the ALJ's decision, affirmed the superior court's

decision to award Costanich attorney fees, and awarded Costanich attorney fees on

appeal.3 Id at 564. We concluded that "although DSHS was justified initially in its
concerns about Costanich's use of profanity, the evidence before the ALJ shows that

DSHS was not substantially justified in revoking her license once it became aware of

the problems with Duron's investigation." Id

Federal Appeal of § 1983 Claims

While Costanich's administrative appeal was pending in superior court, she filed

another action in state court against DSHS and six DSHS agents, asserting 42 U.S.C.

§ 1983 claims, as well as negligent infliction of emotional distress, outrage, negligent

3 DSHS filed a motion to modify the Commissioner's award of $46,239 in attorney
fees. Costanich, 164 Wn.2d 928. We granted the motion and denied Costanich
attorney fees but sanctioned DSHS for not raising its arguments earlier, id Costanich
then filed a petition for review, jd The Washington Supreme Court held that the equal
access to justice act provides a statutory cap of $25,000 for each level of judicial review.
Id. at 934-35.
No. 68744-1-1/6

investigation, malicious prosecution, and abuse of process. Costanich, 627 F.3d at

1106 & n.9. DSHS removed the action to federal court, where it was held pending the

state court appeal, id at 1106. The individual defendants then moved for summary

judgment, asserting absolute and qualified immunity, jd at 1106-07. Costanich also

moved for partial summary judgment on her § 1983 claims, arguing that Duron's

fabrication of evidence deprived her of her right to due process. Jd at 1107. The

district court granted the defendants' cross motion for summary judgment on all federal

claims and declined to exercise supplemental jurisdiction over the state tort claims, jd

Both Costanich and DSHS cross appealed to the Ninth Circuit, id

The Ninth Circuit held that deliberately fabricating evidence in civil child abuse

proceedings violates due process when a liberty or property interest is at stake, id. at

1108. The court held that genuine issues of material fact existed as to whether Duron

deliberately fabricated evidence during her investigation, which led to termination

proceedings and license revocation.4 id. The Ninth Circuit recognized that Costanich

produced evidence of Duron misquoting and misrepresenting witness statements, id at

1111. For instance, Duron's report indicated she interviewed 34 people, id at 1112.

She later admitted that she had only brief contact with 18 of the identified witnesses, id

The Ninth Circuit explained that Duron's "misrepresentations about interviewing the

children's doctors were especially significant." id. Duron stated that she interviewed

4 To sustain a deliberate fabrication of evidence claim, the plaintiff must, at a
minimum, point to evidence that supports at least one of two propositions: (1)
defendants continued their investigation despite the fact that they knew or should have
known that the plaintiff was innocent, or (2) defendants used investigative techniques
that were so coercive and abusive that they knew or should have known that those
techniques would yield false information. Costanich, 627 F.3d at 1111.
No. 68744-1-1/7

three therapists and received reports from a fourth, which lent credibility to her report.

Id. But, she testified before the ALJ that she did not actually speak to any medical

professionals, id Duron also admitted that she never interviewed K.'s therapist,

despite suggesting in her report that she had a conversation with him. id She further

conceded that in her meeting with K., "'K. wouldn't say much,'" so she "'just kind of

summarized what he was saying.'" Jd

Other witnesses also pointed out that Duron's report contained evidence and

statements they never made. Jd For example, according to Duron's report of her

interview with Diane Isley, F.'s guardian ad litem, Isley stated that Costanich, in

reference to a child that might try to run away, said she would "'chain the little shit to the

bed.'" id. Isley declared in a sworn letter, however, that she never made this statement

and never talked to Duron about such a child, id Duron also reported that another

aide, Crystal Hill, said that Costanich was "'always calling E. a fucking cunt, and bitch.'"

Jd (internal quotation marks omitted). But, in a sworn letter, Hill stated, '"I have never

seen her directly swear face to face at one of the children.'" id The Ninth circuit

concluded that Duron's purposeful use of quotation marks around many of the

purported witness statements—including Isley's and Hill's statements—could support a

trier of fact's conclusion that she deliberately fabricated evidence, id

Also contrary to Duron's report, witnesses' sworn letters expressed positive

descriptions of the Costanich foster home. Jd In fall 2001 and spring 2002, J.'s, K.'s,

E.'s, and B.'s therapists wrote to DSHS reporting that the children were doing well in

Costanich's home and strongly recommended against their removal. Jd. at 1104.

Specifically, J's therapists noted his substantial improvements in Costanich's home and
No. 68744-1-1/8

expressed their belief that DSHS "'did not, in a reasonable manner, consult with [J.'s]

providers on how his removal from the foster home was to be conducted.'" Jd at 1105.

E.'s and B.'s therapist also prepared a sworn letter describing the loving, nurturing

relationship between Costanich and the girls, and warned DSHS of the "'emotional

damage that removing them will cause.'" Jd Likewise, K.'s therapist wrote of the

stability in Costanich's home and the progress K. made there, and emphasized that

moving K. "'would be detrimental to K.'s emotional and mental health.'" Jd

The Ninth Circuit concluded that Duron's errors were not a question of tone or

characterization, but rather actual misrepresentations. Jd at 1113. The court

acknowledged that Duron could have believed Costanich was guilty of emotional abuse.

Id. However, that belief did not permit or excuse deliberate falsification of evidence. Jd.

Nevertheless, the Ninth Circuit held that Duron was entitled to qualified immunity,

because the right to due process in proceedings adjudicating a foster care license and

terminating guardianship was not clearly established at the time of the investigation. Jd

at 1108.

State Court Negligent Investigation and Outrage Claims

Following the two appeals, Costanich pursed her remaining tort claims in state

court, including negligent investigation and outrage. Costanich's negligent investigation

claim related only to events surrounding E.'s and B.'s guardianship. Costanich and

DSHS made cross motions for summary judgment. The trial court denied Costanich's

motion for partial summary judgment. The court granted DSHS's motion in part,

dismissing Costanich's outrage claim. However, the court refused to dismiss

Costanich's negligent investigation claim, finding genuine issues of material fact as to

8
No. 68744-1-1/9

whether Costanich was a de facto parent or guardian with standing to sue under RCW

26.44.010.

The trial court subsequently requested additional briefing from the parties

regarding the application of Roberson v. Perez, 156 Wn.2d 33, 123 P.3d 844 (2005), to

Costanich's negligent investigation claim. The court presumed for the purposes of

summary judgment that DSHS made a biased or faulty investigation. However, the

court concluded that DSHS made no harmful placement decision as a matter of law,

because Costanich voluntarily removed E. and B. from the jurisdiction of the

dependency court. The trial court therefore held that Roberson controlled and

dismissed Costanich's negligent investigation claim. Costanich appeals.

DISCUSSION

Costanich argues that the trial court erred in dismissing her negligent

investigation claim when it found that DSHS did not make a harmful placement decision.

She also argues that the trial court erred in dismissing her outrage claim, because the

Ninth Circuit already held that genuine issues of material fact exist as to whether Duron

deliberately fabricated evidence. Lastly, she asks that we vacate the trial court's award

of costs to DSHS.

We review an order granting summary judgment de novo. Hadlev v. Maxwell,

144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). We review all facts and reasonable

inferences drawn from the facts in the light most favorable to the nonmoving party.

CTVC of Haw. Co. v. Shinawatra, 82 Wn. App. 699, 708, 919 P.2d 1243, 932 P.2d 664

(1996). Summary judgment is proper only when there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Peterson
No. 68744-1-1/10

v. Groves, 111 Wn. App. 306, 310, 44 P.3d 894 (2002). Unsupported, conclusory

allegations or argumentative assertions are not sufficient to defeat summary judgment.

Vacova Co. v. Farrell, 62 Wn. App. 386, 395, 814 P.2d 255 (1991). Instead, the plaintiff

must put forth evidence showing a triable issue exists. Seven Gables Corp. v. MGM/UA

Entm'tCo., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986).

I. Negligent Investigation Claim

Costanich argues that the trial court erroneously dismissed her negligent

investigation claim on summary judgment. She points out that the trial court agreed

there were fact questions as to whether DSHS's investigation was biased or faulty.

However, the court ruled that DSHS did not make a harmful placement decision as a

matter of law under Roberson. Costanich contends this was error, because there are

genuine issues of material fact as to whether she voluntarily sent E. and B. to live with

the Tribe. She argues that DSHS's "negligent and outrageous conduct plainly coerced

[her] to give up her daughters temporarily, fearing that she would otherwise lose them

forever."

Washington courts recognize an implied cause of action against DSHS for

negligent investigation of child abuse allegations under chapter 26.44 RCW. Roberson,

156 Wn.2d at 44-45. However, negligent investigation claims are cognizable only when

DSHS conducts a biased or faulty investigation that leads to a harmful placement

decision, such as placing a child in an abusive home, removing the child from a

nonabusive home, or failing to remove the child from an abusive home. Jd at 45.

In Roberson. the city of Wenatchee and Douglas County investigated child abuse

allegations in the publicized "Wenatchee sex ring." Jd at 36. Honnah Sims learned that

10
No. 68744-1-1/11

police reports identified her as among those accused of abusing children. Jd Fearing

imminent arrest, she sent her 13 year old son to live with a grandparent in Kansas,

relinquishing guardianship to that grandparent. Jd. Sims was eventually acquitted of all

charges, and her son returned to the family after living with his grandparent for seven

months. Jd Sims later sued DSHS for negligent investigation, arguing that sending her

son away was a preemptive move tantamount to constructive removal. Jd at 37, 46.

The Washington Supreme Court rejected this argument and held there was no

harmful placement as a matter of law, because Sims sent her son away through

voluntary acts. Jd at 46-47. The court recognized three reasons why extending the

cause of action for negligent investigation to include such "constructive placement"

would be problematic and beyond the statute. Jd. at 46. First, any harm resulting from

the investigation would be purely speculative in nature. Jd It would be difficult to

determine what placement action, if any, that DSHS might have taken. Jd Second,

claimants asserting constructive placement could largely control the extent of their

damages. Jd Because damages reflect disruption to the family unit, the length of such

a disruption is proportionate to the damage. Jd Sims, for example, determined the

length of time that her son was away from home. Jd Third, extending harmful

placement to include constructive placement could encourage individuals to frustrate

investigations. Jd. at 47. Thus, constructive placement is insufficient to meet the legal

standard for a harmful placement decision. Jd

Costanich argues that her case is comparable to Tvner v. Dep't of Soc. & Health

Servs., 141 Wn.2d 68, 1 P.3d 1148 (2000), rather than Roberson. In Tvner, a DSHS

caseworker filed a dependency petition alleging that Tyner sexually abused his children.

11
No. 68744-1-1/12

Id. at 73-74. As a result, the court prohibited all contact and separated Tyner from his

children for several months. Jd at 73, 75. The caseworker subsequently completed an

investigation and concluded that the abuse allegations were unfounded. Jd at 74.

However, he failed to inform the court of his finding and the court continued to restrict

Tyner's contact with his children. Jd at 74-75. The Supreme Court held that the judge's

no-contact order will act as a superseding cause, "precluding liability of the State for

negligent investigation, only if all material information has been presented to the court

and reasonable minds could not differ as to this question." Jd at 88. Costanich argues

that like in Tvner, DSHS failed to provide the Tribe with all relevant information, such as

statements from E.'s and B.'s therapists that they would suffer emotional harm if they

were removed from Costanich's care.

However, Tvner is distinguishable. In that case, the children were actually

removed from Tyner's care, because DSHS neglected to turn over relevant information

to the court. Jd. at 73-74. In contrast, DSHS made no placement decision here.

Costanich voluntarily transferred jurisdiction to the Tribe. Once the Tribe had

jurisdiction, DSHS had no input or control over any subsequent placement decision.

Costanich nevertheless attempts to distinguish Roberson, because here DSHS filed a

motion to terminate her guardianship of E. and B. However, in Roberson, on the day of

Sims's arrest, CPS filed a dependency petition for her son and obtained a court order to

take him into shelter care.5 156 Wn.2d at 51 (Sanders, J., dissenting). We can infer,

then, that an unexecuted placement decision does not constitute harmful placement

5 The dissent argued that this "unexecuted" placement decision "was a
placement decision nonetheless," with "harmful consequences." Roberson, 156 Wn.2d
at 52.

12
No. 68744-1-1/13

when the guardian preempts the State's removal of the child. By signing the agreed

order with the Tribe, Costanich controlled the extent of her damages by determining the

length of time that E. and B. were away from her home. DSHS did not make that

decision. Costanich did. Like Roberson, we cannot say for sure that the juvenile court

would have terminated Costanich's guardianship.

The record also shows that Costanich never actually transferred guardianship of

E. and B. to the Tribe. Rather, she signed a visitation order agreeing that E. and B.

would live on the reservation with tribal elders for 30 days. This was consistent with the

terms Costanich agreed to in becoming E.'s and B.'s guardian. The order specified that

the visit was "intended to be a summer vacation for the children," so they could

participate in tribal events and visit extended family. The order also noted that

Costanich and her husband "will visit the children" on the reservation during their

summer vacation. The Tribe acknowledged that the "children have a parent/child

relationship" with Costanich. And, a handwritten note on the order stated that the

Costaniches "fully support the girls' close and continuing relationship with their Tribe

[and] are pleased that the girls have this opportunity to know their relatives [and] other

members [and] to learn more about their culture [and] customs." At the end of the 30

day summer vacation, the Tribe returned E. and B. to Costanich. E. lived with

Costanich until June 2010 and B. still lives with her.

Costanich nevertheless contends that she did not voluntarily enter the agreed

orders transferring jurisdiction and granting visitation, because DSHS's conduct was so

egregious that she felt forced to relinquish guardianship of E. and B. to the Tribe. Even

if true, this is the type of constructive placement argument the Supreme Court expressly

13
No. 68744-1-1/14

rejected in Roberson.6 In Roberson, Sims felt forced to send her son away, fearing the
State would take him from her. 156 Wn2d at 36, 46. Here, Costanich alleges that she

felt forced to transfer jurisdiction and agree to summer visitation with the Tribe, because

DSHS would otherwise take E. and B. away from her. We hold that Roberson controls

and Costanich's agreement to transfer jurisdiction to the Tribe and allow summer

visitation was at most constructive placement. This preempted any harmful placement

decision by DSHS, so Costanich's negligent investigation claim fails as a matter of law.7

II. Outrage Claim

Costanich argues that the trial court erred in dismissing her outrage claim on

summary judgment. She contends that the Ninth Circuit already held that Duron made

material misrepresentations in her report, which is sufficient to support her outrage

claim. Even if Duron's misrepresentations are not sufficiently outrageous, Costanich

argues, the Ninth Circuit also held that there are genuine issues of material fact as to

whether Duron deliberately fabricated evidence. She contends that it is "outrageous

and utterly intolerable for a government employee to lie under oath and to fabricate

6 Constructive placement is comparable to constructive discharge in the
employment context. David K. DeWolf & Keller W. Allen, 16 Washington Practice:
Tort Law and Practice § 1.27, at 50 (3d ed. 2006). Constructive discharge occurs
when an employer engages in a deliberate act or pattern of conduct that makes working
conditions so intolerable that a reasonable person would feel compelled to resign.
Washington v. Boeing Co., 105 Wn. App. 1, 15, 19 P.3d 1041 (2000). In essence,
constructive discharge occurs when an employee feels forced to resign because of
intolerable conditions, as opposed to voluntarily resigning. Jd. at 15-16. This
comparison makes it clear that Costanich is asserting constructive placement.
7 The State argues that we can affirm on the alternative ground that Costanich
lacked standing to bring a negligent investigation claim. Because there was no harmful
placement decision, however, we need not reach the issue of standing.

14
No. 68744-1-1/15

grossly inflammatory evidence during a civil investigation," especially when the

children's therapists said they were thriving in Costanich's home.

To establish the tort of outrage, or intentional infliction of emotional distress, a

plaintiff must show (1) extreme and outrageous conduct; (2) intentional or reckless

infliction of emotional distress; and (3) severe emotional distress as a result. Reid v.

Pierce County. 136 Wn.2d 195, 202, 961 P.2d 333 (1998). To prove extreme and

outrageous conduct, it is not enough to show that the defendant acted with tortious or

criminal intent, intended to inflict emotional distress, or even acted with malice. Grimsby

v. Samson. 85 Wn.2d 52, 59, 530 P.2d 291 (1975). Rather, the conduct must be "'so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.'" Jd (emphasis omitted) (quoting Restatement (Second) of Torts § 46

cmt. d (1965)). The question of whether certain conduct is sufficiently outrageous is

ordinarily for the jury, but the court must initially determine if reasonable minds could

differ on whether the conduct was sufficiently extreme to result in liability. Dicomes v.

State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989).

The second two elements of outrage are satisfied here. The Ninth Circuit held

that genuine issues of material fact exist as to whether Duron deliberately fabricated

evidence during her investigation. Costanich, 627 F.3d at 1108. This satisfies the

intentional or reckless infliction of distress prong for the purposes of surviving summary

judgment. Likewise, Costanich alleged that she suffered from anxiety, depression,

nausea, humiliation, and sleeplessness as a result of the investigation and abuse

finding. Outrage does not require a showing of objective symptoms that constitute a

15
No. 68744-1-1/16

diagnosable disorder. Kloepfel v. Bokor. 149 Wn.2d 192, 197-98, 66 P.3d 630 (2003).

Rather, emotional distress includes "'all highly unpleasant mental reactions, such as

fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment,

worry, and nausea.'" Jd (quoting Restatement (Second) of Torts § 46 cmt. j, at 77

(1965)). Costanich's alleged symptoms clearly meet this standard.

The question is then whether DSHS's conduct was sufficiently extreme and

outrageous to become a question for the jury. Costanich relies on Corey v. Pierce

County. 154 Wn. App. 752, 764, 225 P.3d 367 (2010), to argue that it was.8 Barbara

Corey worked as a prosecutor for 20 years. Jd at 757. After she resigned, Pierce

County Prosecuting Attorney Gerry Home publically accused her of criminal behavior

despite knowing that an internal investigation revealed little substance. Jd at 764.

Home also implied that Corey mishandled public funds. Jd These comments

devastated Corey, both emotionally and professionally. Jd. at 759. As a prosecutor and

public servant, such allegations were "particularly loathsome" to Corey and went beyond

the mere insults and indignities. Jd at 764. Thus, Home's behavior was sufficiently

outrageous to warrant liability. Jd

In Corey, we distinguished Home's outrageous actions from those in Dicomes.

Id. In that case, Deanna Dicomes worked as an executive secretary for the Department

of Licensing (DOL). 113 Wn.2d at 614-15. After she exposed budget data that created

a public uproar, DOL initiated a "'management study'" as an allegedly pretextual way to

8 In contrast, DSHS relies on Waller v. State, 64 Wn. App. 318, 824 P.2d 1225
(1992), to argue that the conduct here was not outrageous. Waller is distinguishable,
though, because the DSHS caseworkers there were at most grossly negligent. Jd at
337. While negligence is insufficient to establish outrageous conduct, here we have a
question of fact as to whether Duron's conduct was deliberate.

16
No. 68744-1-1/17

fire Dicomes. Jd at 616. The court found no atrocious, intolerable conduct where DOL

terminated Dicomes by privately delivering a termination letter and briefly responding to

media inquiries about the dismissal. Jd at 630. The fact of pretextual discharge was

not sufficient to support her outrage claim. Jd At worst, Dicomes's allegations

amounted to bad faith, but not outrage. Jd at 631. Likewise, in Lawson v. Boeing Co.,

several female employees complained that Charles Lawson sexually harassed them.

58 Wn. App. 261, 263, 792 P.2d 545 (1990). Lawson alleged that these employees

"deliberately, maliciously and outrageously lied about him," which resulted in his

demotion. Jd at 263, 270. We held that Lawson's contentions were not so outrageous

in character and so extreme in degree as to warrant liability for outrage. Jd at 270.

Even if true, DSHS's conduct here was not so outrageous in character and so

extreme in degree as to be regarded as atrocious and utterly intolerable in civilized

society.9 The record shows that Duron recorded and considered both favorable and
unfavorable accounts of Costanich's behavior. Duron's finding of inconclusive physical

abuse also indicates that she did not give complete credence to unsubstantiated

allegations against Costanich. In contrast to Corey, where Home falsely accused her of

criminal behavior, all the children in the Costanich home reported that Costanich used

9 Costanich argues that her expert, Darlene Flowers, testified that DSHS has a
history of making adverse findings, revoking licenses, and taking other retaliatory
measures against vocal foster parents like Costanich. On appeal, DSHS moved to
strike Costanich's reference to "testimony" by expert Flowers. Flowers's curriculum
vitae (CV) and proposed testimony is included in the record as an attachment to
DSHS's motion in limine to exclude her testimony. In response to DSHS's motion in
limine, Costanich claimed that DSHS mistakenly assumed the Flowers's CV was an
expert report. It does not appear from the trial record before us that Flowers testified or
was qualified as an expert. No expert opinion is properly before us, so we grant
DSHS's motion to strike.

17
No. 68744-1-1/18

profanity regularly, and all but one claimed she directed profanity at them. At worst,

DSHS's conduct was reprehensible and Duron conducted her investigation in bad faith.

However, as Dicomes and Lawson hold, such conduct is not sufficiently extreme to

result in liability. We hold that the trial court properly dismissed Costanich's outrage

claim on summary judgment.

Because we affirm on all assignments of error, there is no basis for us to reverse

the trial court's award of costs to DSHS.

We affirm.

WE CONCUR:

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18