FILED
SEPTEMBER 1, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CLUB LEVEL, INC. and RYAN FILA, )
a single man, ) No. 32830-9-III
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
CITY OF WENATCHEE, a municipal )
corporation, WENATCHEE POLICE )
DEPARTMENT, an agency of the City of )
Wenatchee, CHIEF TOM ROBBINS in )
his individual capacity as Chief of the . )
Wenatchee Police Department, CAPTAIN )
KEVIN DRESKER in his individual )
capacity as a Captain of the Wenatchee )
Police Department, SERGEANT CHERI )
SMITH in her individual capacity as a )
Sergeant ofthe Wenatchee Police )
Department, and SERGEANT MARK )
HUSON in his individual capacity as a )
Sergeant of the Wenatchee Police )
Department, )
)
Respondent. )
KORSMO, J. Club Level and its owner, Ryan Fila, brought this action in the
Chelan County Superior Court against the City of Wenatchee and four of its police
officers concerning police investigations and treatment of the club. As other courts have
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done in related filings by the plaintiffs against other defendants, the trial court granted
summary judgment to these defendants. We affirm.
FACTS
The complaint, filed August 30, 2013, alleged seven causes of action: negligent
supervision, defamation, false light, conspiracy, negligent infliction of emotional distress,
outrage, and tortious interference with a business relationship. Most of the claims were
based on actions ofthe police department in aggressively enforcing various laws,
particularly those involving violations of state alcohol laws, against the club, its
employees, and its patrons. The defendants also were accused of conspiring with
Washington State Liquor Control Board (WSCLB) employees to drive the club out of
business.
The defamation and false light claims had a different basis. Mr. Fila was friends
with a Wenatchee Police Department (WPD) officer, Sergeant Stephyne Silvestre. WPD
conducted a disciplinary investigation I of Sylvestre concerning an allegation that she had
shared with Mr. Fila confidential information about a complaint to the police department
against him. The woman who initiated the complaint described Mr. Fila in an interview
as manipulative, having a temper, and accused him of attempting to scam her friend. A
copy of this interview was included in Silvestre's disciplinary file and was among the
I As a result of the investigation, Silvestre was demoted.
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materials obtained by the Wenatchee World newspaper pursuant to a public records
request for the disciplinary file.
The Chelan County action was the third suit filed by the plaintiffs relating to these
matters. In 2012, Club Level and Mr. Fila filed a complaint in the federal court for
Eastern Washington against all of the same defendants who were named in the Chelan
County action. The federal complaint was based on the same factual allegations as those
at issue here. It included four constitutional claims brought under the authority of 42
U.S.C. § 1983 and several state law tort claims. The federal court in 2013 granted
summary judgment on the federal law claims and then dismissed without prejudice the
accompanying state law claims. The plaintiffs refiled the state claims shortly thereafter
as the basis for the Chelan County suit.
Also in 2012, the plaintiffs sued the WSLCB, its directors, and several employees
in the Thurston County Superior Court. Once again, the essence of many of the causes of
action was aggressive enforcement of the liquor control laws by the WSLCB officers.
Included among the allegations was a contention that the WSLCB employees engaged in
a civil conspiracy with the WPD to drive the club out of business. The plaintiffs
eventually withdrew many of the claims and the trial court ultimately resolved the final
four allegations over the course of two summary judgment proceedings. With respect to
the civil conspiracy allegation, the Thurston County Superior Court concluded that the
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plaintiffs had produced no evidence to establish that the purpose of the alleged
conspiracy was to harm the plaintiffs' business. All of the counts were dismissed.
The plaintiffs appealed to Division Two of this court. By way of unpublished
opinion, that court affirmed the summary judgment dismissal of the Thurston County
action. See Club Level, Inc. v. Wash. State Liquor Control Bd., et al., noted at 185 Wn.
App. 1016 (2014), review denied, 183 Wn.2d 1003 (2015). With respect to the
conspiracy allegation, Division Two agreed with the trial court that the plaintiffs failed to
produce any evidence establishing that the purpose of the civil conspiracy was to put the
plaintiffs out of business. See Club Level, slip op. at *12. The Washington Supreme
Court subsequently denied the plaintiffs' petition for review.
While the Thurston County ruling was on appeal, the Chelan County defendants
sought summary judgment in this case. The trial court granted the motion and the
plaintiffs timely appealed to this court. This court heard oral argument while the petition
for review of the Division Two case was still pending. After that petition was denied,
both counsel in this action promptly notified this court of that action. 2
ANALYSIS
Club Level and Mr. Fila challenge the dismissal of all but the outrage claim. We
address first the conspiracy allegation, before next addressing the negligent infliction of
2 We commend both attorneys for their professionalism in providing the prompt
notification.
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emotional distress, tortious interference, and negligent supervision claims. Finally, we
treat the defamation and false light claims together.
Before addressing the individual claims, it is appropriate to address the well
settled standards that govern review of a summary judgment. This court reviews a
summary judgment de novo, performing the same inquiry as the trial court. Lybbert v.
Grant County, 141 Wn.2d 29,34,1 P.3d 1124 (2000). The facts, and all reasonable
inferences to be drawn from them, are viewed in the light most favorable to the
nonmoving party. Id. If there is no genuine issue of material fact, summary judgment
will be granted if the moving party is entitled to judgment as a matter of law. Id.
The moving party bears the initial burden of establishing that it is entitled to
judgment because there are no disputed issues of material fact. Young v. Key Pharm.,
Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Ifa defendant makes that initial
showing, then the burden shifts to the plaintiff to establish there is a genuine issue for the
trier-of-fact. Id at 225-226. The plaintiff may not rely on speculation or having its own
affidavits accepted at face value. Seven Gables Corp. v. MGMlUA Entm 't Co., 106
Wn.2d 1, 13, 721 P.2d 1 (1986). Instead, it must put forth evidence showing the
existence of a triable issue. Id
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Civil Conspiracy
The trial court dismissed this claim on the basis of collateral estoppel, reasoning
that the same conspiracy claim had failed in Thurston County on the same evidence. CP
at 1064. We agree.
The complaint alleged that WPD entered into a civil conspiracy with the WSLCB
for the purpose of forcing the closure of plaintiffs businesses. CP at 24. A civil
conspiracy requires proof that (1) two or more people entered into an agreement to
accomplish an unlawful purpose or use unlawful means to accomplish a proper purpose
and (2) they had an agreement to accomplish the object of the conspiracy. Corbit v. Jl.
Case Co., 70 Wn.2d 522,528-529,424 P.2d 290 (1967). Citing this authority, the
Thurston County'court determined that the plaintiffs had failed to establish any proof of
the second element. CP at 625-626.
In general, collateral estoppel precludes relitigation of the same issue in a
subsequent action involving the parties. 3 Christensen v. Grant County Hosp. Dist. No.1,
152 Wn.2d 299,306,96 P.3d 957 (2004). In order to prevail on a claim of collateral
estoppel, the party seeking application of the doctrine bears the burden of showing that
3 This is distinguished from the doctrine of res judicata, also known as claim
preclusion, which applies to related lawsuits between parties. In general, res judicata
prevents the litigation of claims which were or should have been brought in a previous
final litigation between the same parties. Hadley v. Cowan, 60 Wn. App. 433, 440-441,
804 P.2d 1271 (1991). See generally, Philip A. Trautman, Claim and Issue Preclusion in
Civil Litigation in Washington, 60 WASH. L. REv. 805 (1985).
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(1) the identical issue was decided, (2) there was a final judgment on the merits, (3) the
party against whom the doctrine is asserted must have been a party (or in privity with a
party) to the earlier proceeding, and (4) application of collateral estoppel will not work an
injustice against the estopped party. Id. at 307. The estopped party must have had a "full
and fair opportunity to litigate the issue in the earlier proceeding." Id.
Club Level initially argued that collateral estoppel could not be applied since the
defendants in this action were not parties to the Thurston County action. It now concedes
that Washington no longer requires mutuality of parties. Rather, the party against whom
collateral estoppel is asserted is the only party who needed to be involved in the prior
litigation. State v. Mullin-Coston, 152 Wn.2d 107, 113-114,95 P.3d 321 (2004);
Christensen, 152 Wn.2d at 307. Club Level instead argues that the evidence is different
and that it would work an injustice to apply collateral estoppel against it.
The club has not identified what evidence is different in this proceeding. Its
pleadings in the Chelan and Thurston matters are largely identical. Indeed, many of the
Chelan County documents include text that appears to have been lifted from those filed in
Thurston County. While the club understandably focuses on the behavior of the WPD
actors instead of the WSLCB employees at issue in Thurston County, the fact remains
that it has failed to identify any evidence that is different in this proceeding than what
was before the Thurston County court. Most critically, it has not identified any evidence,
new or old, concerning an improper purpose of the purported conspiracy. Law
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enforcement officers agreeing to aggressively focus on law violators is neither unusual
nor lmproper. The club's argument does not preclude application of collateral estoppel
here.
Similarly, there is nothing unjust about applying collateral estoppel in this
instance. The plaintiffs contend that the federal district court, Thurston County Superior
Court, and Division Two of the Court of Appeals all erred in dismissing or affirming the
dismissal of the other actions. Absent demonstration of actual error in dismissing this
cause of action, there can be nothing unjust about applying the earlier decisions. This
argument, too, fails.
The trial court correctly determined that the same issue-the existence of a
conspiracy to put the plaintiffs out of business-was present in both state court
proceedings. It did not err in giving preclusive effect to the Thurston County ruling.
Collateral estoppel was properly applied to this claim.
Negligent Infliction ofEmotional Distress
The trial court dismissed this cause of action because there was no evidence that
Mr. Fila had experienced any emotional distress. CP at 1064. We again agree with the
trial judge's assessment of the record.
Typically, a claim of negligent infliction of emotional distress involves a family
member who views a "physically injured loved one shortly after a traumatic accident."
Colbert v. Moomba Sports, Inc., 163 Wn.2d 43, 49, 176 P.3d 497 (2008). Division Two
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of this court has expressly stated that "officers owe no duty to use reasonable care to
avoid inadvertent infliction of emotional distress on the subjects of criminal
investigations." Keates v. Vancouver, 73 Wn. App. 257,269, 869 P.2d 88 (1994).
Compensation for emotional distress damages must come from some other tort theory.
Id. The City relied primarily on Keates in its motion for summary judgment. The trial
court, however, focused on the fact that there was no objective evidence of emotional
distress. CP at 1064. This has long been a requirement for recovery under this tort.
Hunsley v. Giard, 87 Wn.2d 424,435,553 P.2d 1096 (1976).
In his motion for reconsideration, Mr. Fila argued that the city had deposed his
therapist and knew the objective evidence supporting his claim that he would present at
trial. CP at 1078. However, Mr. Fila never presented any of that evidence to the trial
court. In light of the trial judge's resolution of the issue at summary judgment and the
fact that the city did not concede the point in its answer to the reconsideration request,
Mr. Fila needed to present his objective evidence of emotional distress. There being none
in the record, the trial court did not err.
This claim was properly dismissed in accordance with Hunsley.
Tortious Interference
The trial court dismissed this claim on the basis that the record lacked any
evidence that the defendants knew about the contractual relationship between the
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plaintiffs and their landlord. Again, the record does not support each element of the
claim and the trial court properly dismissed this cause of action.
This tort requires proof of an intent to interfere with a private business
relationship, not merely a showing that interference would be a foreseeable consequence
of the defendants' actions. Burke & Thomas, Inc. v. Masters, 92 Wn.2d 762, 768-769,
600 P.2d 1282 (1979) (declining to apply this tort to a public union that had gone on
strike since the purpose of the strike was to obtain negotiation concessions rather than
injure private businesses). The elements of a claim of tortious interference with a
business relationship that a party must establish are (1) the existence of a valid
contractual relationship or business expectancy, (2) defendants had knowledge of that
relationship or expectancy, (3) an intentional interference causing or inducing breach or
termination of the relationship or expectancy, (4) defendants interfered for an improper
purpose or used improper means, and (5) resultant damages. Sintra Inc. v. Seattle, 119
J
Wn.2d 1,27-28, 829 P.2d 765 (1992). The City contended in its motion that none of
these elements were established, but the trial court focused solely on the second element
in its ruling. CP at 1064. We, therefore, will do the same.
As applied to the facts of this case, the essence of this claim is a contention that,
consistent with the conspiracy allegation, the officers interfered with the relationship
between plaintiffs and their landlord for the improper purpose of forcing the plaintiffs out
of business. Club Level contends that the police had knowledge of the landlord-tenant
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relationship, but points to no evidence in the record supporting that view. Since the
essence of this tort is intentional interference with a specific business relationship,
knowledge of that relationship is understandably a critical element. Club Level did not
present any proof on that point. The trial court correctly dismissed this cause of action.
Negligent Supervision
Club Level next contends that the city committed a tort by negligently supervising
the four named police officer defendants in its employ. The trial court dismissed this
count on the basis of collateral estoppel, citing to the ruling of Judge Shea in the Eastern
District Court proceeding. Division Two's opinion also addressed this same tort,
although in the context of the WSLCB employees, and rejected it on the basis of
vicarious liability. We affirm the trial court on both of those rationales.
The essence of the tort of negligent supervision is the failure to prevent an
employee, acting outside of the scope of employment, from using equipment or
instrumentalities of employment to harm others. Niece v. Elmview Grp. Home, 131
Wn.2d 39, 48, 929 P .2d 420 (1997). The "outside the scope of employment" factor
distinguishes this tort from other actions in which the employer is vicariously liable for
the torts of an employee acting within the scope of employment. ld. Thus, when an
employer concedes that the employee's actions are within the scope of employment, this
tort does not apply because vicarious liability will apply. LaPlant v. Snohomish County,
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162 Wn. App. 476, 479-480, 271 P.3d 254 (2011); Gilliam v. D.S.HS., 89 Wn. App. 569,
584-585,950 P.2d 20 (1998).
The first problem in addressing this issue is that the appellants have not briefed or
argued the trial court's application of collateral estoppel to this claim. On this basis
alone, we could refuse to consider the challenge. E.g., Hawkins v. Casey, 38 Wash. 625,
626,80 P. 792 (1905); Donner v. Blue, 187 Wn. App. 51,65,347 P.3d 881 (2015). But
even if we review the claim, it appears that the trial court correctly applied collateral
estoppel here. The federal court expressly found that each of the three constitutional
claims put before it (due process, first amendment, and fourth amendment violation
claims) failed for insufficient evidence. 4 CP at 609,612,614-615. The district court
judge then also determined that qualified immunity applied to each of the constitutional
claims. He summed up the evidence thusly:
At best, Plaintiffs have demonstrated that officers issued lawful citations
and acted within the statutory power given to them, which is a significant
factor in showing that a reasonable officer would consider the action
constitutional.
CP at 616. Stated another way, this is a finding that the officers were acting within the
scope of their employment. The evidence presented in federal court did not show that the
officers acted outside the scope of their employment and Club Level has not presented
4 The fourth contention, an alleged equal protection violation, was withdrawn by
the plaintiffs.
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any new evidence in this proceeding. Thus, the trial court correctly applied collateral
estoppel to this claim.
Instead of addressing the trial court's rationale, the appellants have simply
attempted to argue that this cause of action does apply to the facts of this case. They
made the same argument in their appeal from the Thurston County ruling. There,
Division Two concluded that this claim was not established with respect to the WSLCB.
Club Level, slip op. at *11. Although that analysis dealt with different actors and cannot
be the basis for applying collateral estoppel in this case, we do agree with that reading of
the evidence. As with the actions of the WSLCB employees, the claims made against the
WPD defendants all related to actions taken by them in the scope of their employment.
WPD would have been vicariously liable for those actions, if proven. It therefore cannot
be separately liable for a failure to supervise tortious behavior outside the scope of
employment. LaPlant, 162 Wn. App. at 480; Gilliam, 89 Wn. App. at 584-585. No such
behavior was established by the evidence.
The trial court correctly determined that the federal court had found the actions
within the scope of employment and thus properly applied collateral estoppel to this
claim. As with the related claim made in the Thurston County appeal, the evidence never
established any tortious behavior outside the scope of employment that could possibly
have made the employer liable for failure to supervise. For both reasons, this claim was
correctly dismissed.
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Defamation and False Light Claims
The remaining claims of defamation and false light were resolved together by the
trial court on the basis that there was no evidence that defendants made any false
statements and no evidence that Mr. Fila stated under oath that the statements in the
police report were false. CP at 1064. We likewise treat these two claims as one and
again agree with the trial court.
"When a defendant in a defamation action moves for summary judgment, the
plaintiff has the burden of establishing a prima facie case on all four elements of
defamation: falsity, an unprivileged communication, fault, and damages." LaMon v.
Butler, 112 Wn.2d 193, 197,770 P.2d 1027 (1989). This must consist of specific,
material facts, rather than mere conclusory statements. Id. (citing Herron v. Tribune
Publ'g Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987)).
Here, the trial court dismissed the defamation claim because Mr. Fila failed to
present any evidence of falsity. Our search of the record reveals no such evidence, nor
does Mr. Fila on appeal point to any such evidence in the record. Because he has not
established a prima facie case of defamation, the trial court properly dismissed his claim
on summary judgment.
The false light claim suffers from a similar infirmity. A false light claim arises
when a person publishes statements that place another in a false light if (1) the false light
would be highly offensive and (2) the publisher knew of or recklessly disregarded the
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falsity of the publication and the subsequent false light it would place the other in.
Eastwoodv. Cascade Broad. Co., 106 Wn.2d 466,470-471,722 P.2d 1295 (1986). "So,
like defamation, false light claims require a showing of falsity and knowledge of, or
reckless disregard for, that falsity." Corey v. Pierce County, 154 Wn. App. 752, 762,225
P.3d 367 (2010).
As with the defamation claim, the trial court properly dismissed Mr. Fila's false
light claim because he has provided no evidence of falsity. Furthermore, he has not
provided any evidence that the police knew or even suspected that any of the statements
were false or portrayed him in a false light. For both reasons this claim failed. The trial
judge correctly dismissed the contention.
The trial court properly granted summary judgment to the defendants. That order
is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Fearm J. Siddoway, C.J.
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