Michael Henne v. City Of Yakima ( 2013 )

FILED
NOV. 7, 2013
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
MICHAEL HENNE, ) No. 30902-9-111
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
CITY OF YAKIMA, a Municipal )
Corporation, )
)
Appellant. )
KULIK, J. - Michael Henne, a Yakima police officer, filed a complaint against the
city of Yakima (City) for alleged retaliatory use ofintemal investigations. The trial court
denied the City's anti-SLAPp l motion to strike several claims in Mr. Henne's complaint.
Mr. Henne then amended his complaint to remove the offending claims.
We conclude that the City is a legal entity and, therefore, could file its motion to
strike under RCW 4.24.525. But we also conclude that the offending claims were
removed from Mr. Henne's complaint and, thus, the issue is now moot. Accordingly, we
dismiss the appeal.
1 Strategic Lawsuit Against Public Participation, RCW 4.24.510.
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Henne v. City ofYakima
FACTS
The City hired Michael Henne as a police officer in 1998 and promoted him to
sergeant in 2007. Between January 2008 and February 2011, the City received four
reports of potential misconduct by Officer Henne within the scope of his employment as a
police officer. These complaints included allegations of(1) rude conduct with other
police officers, (2) dishonesty involving an alleged assault against Officer Henne, (3) a
rule violation failure to broadcast emergency information about a suspect's location, and
(4) a possible illegal search. The City subsequently conducted internal investigations of
the reports and ultimately cleared Officer Henne of all allegations.
On November 4,2011, Officer Henne filed a complaint in Yakima County
Superior Court against the City, alleging in part that after he was promoted to sergeant,
Lieutenant Nolan Wentz began harassing him and telling other officers that Officer
Henne should not have been promoted. Officer Henne alleged that some police officers
started harassing him by filing false reports against him, which resulted in unwarranted
internal investigations. Officer Henne also maintained that the City failed to discipline
city employees when they disseminated information about the investigations to other city
employees and in the community. Officer Henne complained that the City failed to
follow its own internal investigation policies by neglecting to investigate facts in his favor
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and failing to give him notice of findings or copies of internal investigation files. Officer
Henne asserts that even after he was cleared of all allegations, he was transferred to a less
desirable position and "had to endure continuing criticism and harassment by [police
department] officers and leadership." Clerk's Papers (CP) at 10.
Officer Henne's causes of action included, in relevant part, that the City
(1) interfered with his rights by reassigning him to a less desirable position after he
refused to resign from his position while he was under investigation, (2) harassed and
retaliated against him by subjecting him to numerous unwarranted internal investigations,
and (3) failed to investigate and discipline numerous officers for their unprofessional
behavior. Officer Henne asked for damages due to lost wages and benefits, lost
opportunities for advancement, emotional distress, pain, embarrassment, and humiliation.
He also asked for injunctive relief to enjoin the City from perpetuating the hostile work
environment.
The City filed a motion on December 30, 2011, to strike the claims related to the
internal investigations under Washington's anti-SLAPP statute. It maintained that these
claims were protected under the statute because they involved "'public participation and
petition.'" CP at 15.
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On January 30, 2012, Officer Henne moved to amend the complaint under CR 15
and strike the City's motion as moot. He pointed out that CR 15 allows for liberal
amendment of a complaint unless the defendant can show actual prejudice. He also
argued that the City's motion to strike "is brought on its mistaken belief that the Plaintiff
is claiming the Defendant unlawfully harassed and retaliated against Plaintiff by initiating
and/or conducting internal investigations." CP at 129. He emphasized that the heart of
his amended complaint was the City's negligent hiring and supervision of city employees
and the breach of police department policies and procedures relating to internal
investigations outlined in the collective bargaining agreement and the civil service rules.
Officer Henne explained that he was not alleging that complaints should not be
investigated, but that the investigations were improperly conducted. The City countered
that Officer Henne could not avoid the consequences of the anti·SLAPP statute by
amending the complaint.
At the hearing, the City argued that the anti·SLAPP statute was designed to protect
local governments from actions that are based upon communications and proceedings in
those local governments, i.e., lawsuits based on public participation, pointing out "this
lawsuit is about ... suing the city for the alleged acts of its agents in reporting internal
investigation matters." CP at 318. Officer Henne countered that the government is not a
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"person" for purposes oftheanti-SLAPP statute.
The court denied the motion to strike and granted Officer Henne's motion to
amend. Officer Henne's amended complaint removed all allegations related to the City's
internal investigations. The remaining causes of action included allegations that the City
failed to adequately supervise the chief of police and curtail the harassment by other
police officers against Officer Henne, breached internal investigation policies by failing
to keep the internal investigation confidential, and improperly removed Officer Henne
from his position and improperly tried to intimidate him into resigning.
The City appeals.
ANALYSIS
Mootness
The dispositive issue is whether the amendment of the complaint moots this
appeal. The City argues that Officer Henne cannot avoid the anti-SLAPP statute by
amending the complaint to remove the claims arising from the internal investigations,
which it claims are protected under the SLAPP statute. Citing Navellier v. Sletten, 106
Cal. App. 4th 763,131 Cal. Rptr. 2d 201 (2003), it urges us to follow California
precedent, which generally prohibits an "eleventh hour amendment to plead around a
motion to strike under the anti-SLAPP statute." Id. at 772. California courts reason that
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allowing a SLAPP plaintiffleave to amend the complaint once the court finds the
defendant has made a prima facie showing undermines the legislature's goal of quick
dismissal of meritless SLAPP suits. Id. (quoting Simmons v. Allstate Ins. Co., 92 Cal.
App.4th 1068, 1073-74, 112 Cal. Rptr. 2d 397 (2001».
Officer Henne counters that once he amended his complaint to remove the claims
arising from the internal investigations, the City's appeal was moot. He points out that he
is not complaining about the City's internal investigations of him; instead, the amended
complaint alleges that the City failed to follow its own policies regarding such
investigations. In sum, he argues that the operative document before us is the amended
complaint, which effectively disposes of the entire appeal.
Here, the motion to amend was filed before the City filed its answer and before the
parties engaged in discovery. There is no showing of prejudice, dilatory practice, or
undue delay. A different situation might be presented if the City had notified Mr.
Henne's counsel that the claims violated the anti-SLAPP statute, had warned that a
motion would be filed if Mr. Henne did not voluntarily amend his complaint, had given
him a reasonable amount of time to make that amendment and yet Mr. Henne had failed
to take action-thereby making it necessary for the City to prepare a motion. Absent
prejudice, dilatory practice, or undue delay, Officer Henne had a right to amend his
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complaint while the anti-SLAPP motion was pending. Thus, the amended complaint
supersedes the original complaint. With the removal of the allegations relating to the
City's internal investigations of Officer Henne, the issues raised in this appeal are moot.
The City as a Legal Entity Under RCW 4.24.525
RCW 4.24.525 is significantly broader than RCW 4.24.510 in scope and purpose
and contains a detailed definition that includes "an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association, joint venture, or any other
legal or commercial entity." RCW 4.24.525(1)(e). A California court2 interpreting
California's anti-SLAPP statute has held that "[t]he anti-SLAPP suit statute is designed to
protect the speech interests of private citizens, the public, and governmental speakers."
Bradbury v. Superior Court, 49 Cal. App. 4th 1108, 1117, 57 Cal. Rptr. 2d 207 (1996)
(emphasis added). The court reasoned that "[g]ovemment can only speak through its
representatives" and that "[a] public entity is vicariously liable for the conduct of its
employees acting within the scope of their employment." Id at 1114. Further, noting
that under the federal civil rights statute, municipalities and counties are treated as
persons, the court held that a "person" under the California anti-SLAPP statute "must be
2 Because Washington's anti-SLAPP statute was modeled after California's
statute, California cases are persuasive authority for interpreting the Washington statute.
Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1110 (W.D. Wash. 2010).
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read to include a governmental entity." Id. Given the statute's plain language and
California precedent, the City, which is a municipal corporation and a recognized "legal
entity," falls within the meaning of the anti-SLAPP statute.
The amendment of the complaint moots the other issues raised on appeal.
Accordingly, we dismiss the appeal as moot.
Attorney Fees
Both parties request attorney fees on appeal. The City requests attorney fees and
costs under RCW 4.24.S2S(6) and RAP lS.1. RCW 4.24.S2S(6)(a) requires an award of
attorney fees "to a moving party who prevails, in part or in whole, on a special motion to
strike." Because the City is not the prevailing party on the motion to strike, we deny its
attorney fees request.
Officer Henne contends that statutory penalties, costs and attorney fees should be
awarded to him. However, his request for expenses is inadequate. To receive an award
of costs and attorney fees on appeal, a party must devote a section of its opening brief to
the request. RAP lS.l(b); Phillips Bldg. Co. v. An, S1 Wn. App. 696, 700-0S, 91S P.2d
1146 (1996). The court rule requires more than a bald request for attorney expenses on
appeal. Phillips Bldg., SI Wn. App. at 70S. The party seeking costs and attorney fees
must provide argument and citation to authority to establish that such expenses are
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warranted. Id. Officer Henne has failed to do so. Accordingly, we deny his request for
attorney fees.
Kulik J.
I CONCUR:
~.J.
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FEARING, J. (concurring in part and dissenting in part) 1 agree with the
majority's second ruling that a city is a "person" for purposes of Washington's anti­
SLAPP (Strategic Lawsuits Against Public Participation) statute, RCW 4.24.525. 1 write
separately, in part, because 1 believe the issue merits additional analysis. 1 also write
separately because the majority fails to provide directions to the trial court as to what
steps to take as a result of this ruling. Presumably, the majority wishes no steps to be
taken, to which 1 respectfully disagree.
1 dissent from the majority's first ruling dismissing the appeal as moot. 1 also
respectfully question the majority's ruling on an important substantive question after
declaring the appeal moot. 1 would remand the case to the trial court to continue with its
review as to whether the anti-SLAPP statute applies to any of the claims in Officer
Michael Henne's first and/or amended complaint and to determine whether to award city
of Yakima the statutory penalty and reasonable attorney fees and costs incurred by reason
of Officer Henne's asserting claims that offend the statute.
MOOTNESS
Michael Henne sued Yakima, in part, claiming he was subjected to unwarranted
internal investigations. He alleged in one paragraph in his causes of action: "4.5
Defendant by and through its agents harassed and retaliated against Plaintiff by
subjecting him to numerous unwarranted internal investigations." Clerk's Papers at 12.
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This claim impliedly objected to the city's response to complaints about the conduct of
Officer Henne on matters that could be of public importance.
Yakima brought a motion, pursuant to the anti-SLAPP statute, to strike allegations
in the complaint. As a result, Officer Henne amended his complaint to remove paragraph
4.5. Yakima proceeded with its motion anyway and argued it should still be awarded,
despite the amendment, reasonable attorney fees and costs and the statutory penalty for
having to bring the motion to strike. The trial court did not address whether the awards
are proper despite an amendment to remove offending language, since it ruled that a city
is not a "person" under the statute.
On appeal, Yakima continues to argue it should be awarded the penalty and fees
and costs regardless of whether Henne amended his complaint. The majority agrees with
the city that the trial judge erred when ruling the city was not protected by the statute.
But then the majority ignores the question of whether Yakima is entitled to an award.
Whether Yakima should receive any award is an active, viable question that should be
addressed. The appeal is not moot.
A case is moot "when it involves only abstract propositions or questions, the
substantial questions in the trial court no longer exist, or a court can no longer provide
effective relief." Spokane Research & De! Fundv. City ofSpokane, 155 Wn.2d 89, 99,
117 P.3d 1117 (2005); State v. Slattum, 173 Wn. App. 640, 647, 295 P.3d 788, review
denied, 178 Wn.2d 1010 (2013). Generally, this court may not consider a case if the
issue presented is moot. In re Det. ofR.R., 77 Wn. App. 795, 799, 895 P.2d 1 (1995)
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(quoting In re Cross, 99 Wn.2d 373,377,662 P.2d 828 (1983)). We may provide
Yakima relief in the form of statutory awards or by remanding to the trial court to decide
whether an award is proper.
ANTI-SLAPP STATUTE
A legal bully employs the legal system in order to punish someone who publicly
spoke about the bully's conduct and in order to quiet someone from speaking, in the
future, about that conduct. Typically, the bully's conduct is a matter of public
importance. Examples of legal bullying include Lance Armstrong suing the Sunday
Times for suggesting he used banned substances and Texas ranchers suing Oprah Winfrey
and Ellensburg's Mad Cowboy Howard Lyman for depicting American beef as unsafe.
For the latter case see Texas BeefGroup v. Winfrey, 201 FJd 680 (5th Cir. 2000). Oprah
Winfrey and the Sunday Times had resources to pay their respective defenses, but many
defendants face bankruptcy when faced with defending a legal bully's suit. The legal
bully does not necessarily sue to win, but to intimidate. University of Denver Professors
George W. Pring and Penelope Canan coined the term "Strategic Lawsuit Against Public
Participation (SLAPP)," to describe such suits. Tom Wyrwich, A Cure for a "Public
Concern)1: Washington's New Anti-SLAPP Law, 86 WASH. L. REv. 663, 666 (2011).
The cases involve not only lawsuits traditionally associated with free speech, such as libel
and defamation suits, but other actions such as business interference, conspiracy, or
trespass. Id.3
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In February 2010, the Washington state legislature passed its Act Limiting
Strategic Lawsuits Against Public Participation. LAWS OF 2010, ch. 118. The
Washington Act protects the free expression of Washington citizens by shielding them
from meritless lawsuits designed only to incur costs and chill future expression.
Wyrwich, supra, at 663. Washington's Act was modeled on California's influential anti-
SLAPP statute. Id.
The 2010 Washington Act contains a declaration of purpose:
(1) The legislature finds and declares that:
(a) It is concerned about lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for
the redress of grievances;
(b) Such lawsuits, called "Strategic Lawsuits Against Public
Participation" or "SLAPPs," are typically dismissed as groundless or
unconstitutional, but often not before the defendants are put to great
expense, harassment, and interruption of their productive activities;
(c) The costs associated with defending such suits can deter
individuals and entities from fully exercising their constitutional rights to
petition the government and to speak out on public issues;
(d) It is in the public interest for citizens to participate in matters of
public concern and provide information to public entities and other citizens
on public issues that affect them without fear of reprisal through abuse of
the judicial process; and
(e) An expedited judicial review would avoid the potential for abuse
in these cases.
(2) The purposes of this act are to:
(a) Strike a balance between the rights of persons to file lawsuits and
to trial by jury and the rights of persons to participate in matters of public
concern;
(b) Establish an efficient, uniform, and comprehensive method for
speedy adjudication of strategic lawsuits against public participation; and
(c) Provide for attorneys' fees, costs, and additional reliefwhere
appropriate.
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LA WS OF 2010, ch. 118, § 1. The legislature directed the courts to liberally interpret the
Act. "This Act shall be applied and construed liberally to effectuate its general purpose
of protecting participants in public controversies from an abusive use of the courts."
LAWS OF 2010, ch. 118, § 3.
Washington's anti-SLAPP statute, codified at RCW 4.24.525, allows a party to
bring a special motion to strike a claim that is based on an action involving public
participation and petition. An "action involving public participation and petition"
includes "[a]ny ... lawful conduct in furtherance of the exercise of the constitutional
right of free speech in connection with an issue of public concern, or in furtherance of the
exercise of the constitutional right of petition." RCW 4.24.525(2)(e). A party bringing a
special motion to strike has the initial burden of showing by a preponderance of the
evidence that the claim is based on an action involving public participation and petition.
If the moving party meets this burden, then the responding party must establish by clear
and convincing evidence a probability of prevailing on the claim. If the responding party
meets this burden, the court must deny the motion to strike. RCW 4.24.525(4)(b).
If a party prevails on an anti-SLAPP motion to strike, the offending party incurs
sanctions. In such event, the court shall award, to a moving party, costs of litigation and
any reasonable attorney fees incurred in connection with each motion on which the
moving party prevailed. RCW 4.24.525(6)(a)(i). The court shall also award the
prevailing movant an additional amount of$10,000. RCW 4.24.525(6)(a)(ii).
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RCW 4.24.525 demands expedited review of the "moving party's" motion to
strike and the stay of discovery until the court resolves the motion. See RCW
4.24.525(5)(a)-(c). The trial court's denial of Yakima's motion is before this Court of
Appeals on interlocutory review because "[ e]very party has a right of expedited appeal
from a trial court order on the special motion or from a trial court's failure to rule on the
motion in a timely fashion." RCW 4.24.525(5)(d).
RCW 4.24.525 is not Washington's first anti-SLAPP statute. In 1989,
Washington adopted the nation's first anti·SLAPP law still codified at RCW 4.24.500 to
.520. The law, known as the "Brenda Hill Bill," provides immunity from civil liability
for claims based on good faith communication with the government regarding any matter
"reasonably of concern." Wyrwich, supra, at 669. The Brenda Hill Bill was not without
defect, since it provided no method for early dismissal. Id. With courts unable to dismiss
SLAPPs before discovery, defendants had no means of escaping the significant legal
expenses SLAPPs intend to inflict. Id. at 670.
CITY AS "PERSON" UNDER ANTI-SLAPP STATUTE
The one pertinent question the majority addresses is whether the city of Yakima is
a "person" entitled to recover the penalties and costs afforded in the anti·SLAPP statute.
The statute allows recovery to a prevailing "moving party." RCW 4.24.525(6)(a). A
'''moving party' means a person on whose behalf the motion described in subsection (4)
of this section is filed seeking dismissal of a claim." RCW 4.24.525(l)(c). In tum, the
statute defines a "person" broadly as "an individual, corporation, business trust, estate,
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trust, partnership, limited liability company, association, joint venture, or any other legal
or commercial entity." RCW 4.24.525(l)(e) (emphasis added).
No Washington decision answers the question of whether a city is a "person"
entitled to the protections of the 2010 anti-SLAPP statute, nor does any Washington
decision involve a government entity as a "moving party." A city, particularly one as
large as Yakima, is not typically viewed as a party that may be intimidated by SLAPP
suits, and thus the purpose of anti-SLAPP statutes is not a tailor fit in the context of
Yakima seeking protection. Since the statute seeks to preserve free speech rights and
government entities do not possess free speech rights, a forceful argument is made that a
government entity should not be considered a "person" under RCW 4.24.525(l)(e).
Our state's high court in Segaline v. Department 0/ Labor and Industries, 169
Wn.2d 467,238 P.3d 1107 (2010) ruled that a government entity is not a "person" under
the 1989 anti-SLAPP statute, RCW 4.24.500 to .520, for the reasons expressed above.
Nevertheless, the 1989 statute did not define the word "person." The statute also read
that it was designed to protect "individuals who make good faith reports to appropriate
governmental bodies." RCW 4.24.500 (emphasis added).
RCW 1.16.080( 1) is a guiding light to the interpretation of all statutes. The statute
reads: "The term 'person' may be construed to include the United States, this state, or any
state or territory, or any public or private corporation or limited liability company, as well
as an individual." But as the court in Segaline noted, the provision does not compel the
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court to broadly construe "person," but rather the use of "may" permits the court to
interpret "person" to include such entities. Segaline, 169 Wn.2d at 474.
We are not free to use our own judgment and rule that a government entity should
not receive protections under RCW 4.24.525. Instead, we must apply the statute's broad
definition of "person." A reviewing court's primary goal is to determine and give effect
to the legislature's intent and purpose in creating the statute. Woods v. Kittitas County,
162 Wn.2d 597, 607,174 P.3d 25 (2007); Am. Cont'l Ins. Co. v. Steen, 151 Wn.2d 512,
518,91 P.3d 864 (2004). If the statute's meaning is plain on its face, then the court must
give effect to that plain meaning as an expression oflegislative intent. Woods, 162
Wn.2d at 607; State v. J.M, 144 Wn.2d 472,480,28 P.3d 720 (2001). We must give
meaning to every word and interpret the statute as written. Enter. Leasing, Inc. v. City 0/
Tacoma Fin. Dep't, 139 Wn.2d 546, 552, 988 P.2d 961 (1999); Prosser Hill
Coal. v. County o/Spokane, 309 P.3d 1202, 1207 (2013).
With the majority, I conclude that a "person" under the 20lO anti-SLAPP statute
includes a government entity such as a city. My conclusion is based upon principles of
statutory interpretation and decisions from California. "Person" under the 2010 statute,
unlike the 1989 version, includes a "corporation" and "any legal entity," both which,
under lay and legal definitions, include a city and any other government entity.
Courts should consider the meaning that naturally attaches and take into
consideration the meaning that attaches from the context. State v. Ratliff, 140 Wn. App.
12, 16, 164 P.3d 516 (2007). In construing statutory language, words must be given their
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usual and commonly accepted meaning. In re Adoption ofLybbert, 75 Wn.2d 671, 674,
453 P.2d 650 (1969). RCW 4.24.525(1)(e) omits the terms "city," "government entity,"
and "municipal corporation." Such an omission might lead one to conclude a municipal
corporation was not desired as a "person" under the anti-SLAPP statute. Many statutory
definitions of "persons" include a "government entity" or "municipal corporation," which
suggests the omission of such words is intentional. See RCW 5.51.010(3); RCW
7.04A.01O(6); RCW 23B.01.400(23); RCW 70.l05D.020(19). At the same time, if the
legislature did not wish a government entity to be included as a "person," the legislature
could have expressly stated such through exceptions.
Under RCW 4.24.525(1)(e), a "person" includes a "corporation," not simply a
private or for profit corporation. Alternate lay definitions for a "corporation" include
"the municipal authorities of a town or city," and "a body formed and authorized by law
to act as a single person" although "constituted by one or more persons" and legally
endowed with "various rights and duties together with the capacity of succession."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 510 (1993). Black's Law
Dictionary includes a "public" "political" and "municipal" corporation within its
classifications of "corporation." BLACK'S LAW DICTIONARY 391-93 (9th ed. 2009).
RCW 4.24.525(1)(e) also defines a "person" as any "legal or commercial entity."
Black's Law Dictionary defines a "legal entity" as "[a] body, other than a natural person,
that can function legally, sue or be sued, and make decisions through agents." BLACK'S,
supra, at 976. A city has a legal existence, by which it may make decisions, sue, and be
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sued. A city is a "legal entity." In many decisions, government or public entities are
referred to as legal entities. See, e.g., Pub. Util. Dist. No. 1 ofSnohomish County v.
Taxpayers & Ratepayers ofSnohomish County, 78 Wn.2d 724, 737, 479 P.2d 61 (1971).
RCW 4.24.525(1)(e) partially defines a "person" as "any other legal or
commercial entity." (Emphasis added.) Use of the word "or" denotes that
noncommercial entities are included. We presume that the word "or" does not mean
"and" and that a statute's use of the word "or" is disjunctive to separate phrases unless
there is a clear legislative intent to the contrary. HJS Dev., Inc. v. Pierce County, 148
Wn.2d 451, 473 n.95, 61 PJd 1141 (2003); State v. Weed, 91 Wn. App. 810,813,959
P .2d 1182 (1998). Noncommercial entities include nonprofits and government entities.
Because the California anti-SLAPP statute served as a model for the Washington
Act, courts can use the borrowed statute rule to interpret the Washington Act. Fielder v.
Sterling Park Homeowners Ass'n, 914 F. Supp. 2d 1222,1234 (w.n. Wa. 2012) (court
used California law to interpret Washington anti-SLAPP statute); Aronson v. Dog Eat
Dog Films, Inc., 738 F. Supp. 2d 1104, 1110 (w.n. Wa. 2010); Wyrwich, supra, at 689.
The California Code of Civil Procedure grants a "person," sued for exercising aright to
petition or free speech, the opportunity to file a special motion to strike the offending
claims. CAL. CIV. PROC. § 425.16(b)(1). The statute does not define the term "person."
Nevertheless, California courts have held that a municipal corporation is a "person"
under the state's anti-SLAPP statute. Schaffer v. City & County ofSan Francisco, 168
Cal. App. 4th 992, 85 Cal. Rptr. 3d 880 (2008); Visher v. City ofMalibu, 126 Cal. App.
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4th 364, 367 n.l, 23 Cal. Rptr. 3d 816 (2005); Bradbury v. Superior Court, 49 Cal. App.
4th 1108, 1114, 57 Cal. Rptr. 2d 207 (1996).
In short, municipal corporations are persons, my friend.
AVOIDANCE OF ANTI-SLAPP STATUTE BY AMENDMENT
The majority and I do not dispute that Officer Henne was entitled to amend his
complaint to exclude any language that offends the anti-SLAPP statute. I disagree with
the majority, however, in that the majority fails to address the principal purpose of the
appeal--determining whether or not Officer Henne avoids the statute's repercussions by
the amendment. The statute's provisions do not help us answer this question. No
Washington decision has addressed the question of whether the plaintiff may escape the
statutory sanctions by an amendment, so I rely upon the purpose of the statute.
The key concern of anti-SLAPP laws is to spare the moving party from the
expense of defending a lawsuit brought to quell free expression. That purpose is
thwarted if a plaintiff can amend his complaint to avoid payment of those fees. One can
argue that, if the case is quickly dismissed by an anti-SLAPP motion, the fees incurred by
the defendant are minimal such that they should not be shifted to the claimant. But the
fees will not always be minimal. Preparing the motion involves analysis of facts and
claims as well as legal research and writing. Because of the importance of exercising free
speech and the worth of a discussion of matters of public concern, the statute considers
any fees too high. The one exercising its rights should not bear any costs. Thus, I would
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allow the city of Yakima to recover the penalty and reasonable attorney fees and costs, if,
upon remand, Yakima "prevails" on its motion to strike.
No California decision directly addresses this important issue. In Navellier v.
Sletten, 106 Cal. App. 4th 763,131 Cal. Rptr. 2d 201 (2003), the court addressed a
plaintiff seeking to amend his complaint, after the motion to strike was granted, to assert
claims that did not offend the anti-SLAPP statute. Our case is in a different posture since
Officer Henne filed his motion to amend before any motion hearing. Nevertheless, the
California court denied the motion to amend wishing to preclude the plaintiff from
escaping the provisions of the statute by amending the complaint. This wish is served by
imposing the statutory awards when a motion to amend is filed to avoid those awards.
ALLEGATIONS PROHIBITED BY ANTI-SLAPP STATUTE
Michael Henne denies that any of the allegations in his first complaint offended
the anti-SLAPP statute. He argues that the complaint did not seek recovery for the
internal investigations of the Yakima Police Department but for a failure to follow city
procedures and for violating the collective bargaining agreement. He further argues that
the focus of his complaint was negligent supervision and hiring of employees, not
negligent investigating. Finally, he contends he amended his complaint only as a matter
of precaution.
Since the trial court denied Yakima's motion for relief under the anti-SLAPP
statute, based upon the trial court's view that a municipal corporation was not protected
by the statute, the trial court did not address whether the first complaint, nor if any
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provisions of the amended complaint, violate the statute. The parties have not fully
briefed nor argued whether the anti-SLAPP statute prohibits any of the allegations in
plaintiff's initial or amended complaint. Therefore, I would remand to the trial court to
determine whether any allegations offend the statute. The trial court should strike any
offending language in the amended complaint.
If the trial court finds the anti-SLAPP statute prohibits any claim in Michael
Henne's original or amended complaint, the parties should brief the court regarding
whether the city of Yakima is entitled to the $10,000 statutory award and attorney fees
and costs.
California's statute, like the Washington statute, reads that a prevailing movant
"shall" be awarded reasonable attorney fees and costs and the statutory penalty. See CAL.
CIV. PRoe. § 425.16(b)(1); RCW 4.24.525(6)(a). Nevertheless, California courts have
refused to grant the prevailing party, on a motion to strike, the statutory penalty and fees
and costs when the motion was of limited success.
In Moran v. Endres, 135 Cal. App. 4th 952, 953-54, 37 Cal. Rptr. 3d 786 (2006),
church members filed suit, alleging that defendants committed various torts as part of a
wrongful attempt to control the church and asserting causes of action for defamation,
false light, intrusion upon seclusion, assault, battery, and civil conspiracy, among others.
Defendants filed a special motion to strike the complaint under the anti-SLAPP statute.
The trial court granted defendants' motion only as to the civil conspiracy cause of action.
The trial court denied any statutory award on the ground that the anti-SLAPP motion had
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such insignificant effect on the lawsuit that defendants could not be viewed as prevailing
for purposes of attorney fees award. The California Court of Appeals affirmed, reasoning
that awarding the statutory penalty would not further the legislature's purpose. The
California legislature enacted the anti-SLAPP statute to prevent parties from using the
judicial process to chill public participation. CAL. CIV. PROC. § 425.16. In Endres, the
California Court of Appeals noted, "[n]either the public's nor defendants' right to
participate was advanced by [their] motion." 135 Cal. App. 4th at 955. Granting their
motion, the court found, was an "illusory victory." Id. at 954. The factual allegations did
not change and the possible recovery remained the same. Id.; see also Brown v. Elec.
Arts, Inc., 722 F. Supp. 2d 1148, 1155 (C.D. Cal. 2010) (applying California law, the
court, in suit brought by the National Football League's greatest running back, Jim
Brown, denied an anti-SLAPP statute award because the motion's importance was
insignificant to the case).
Washington's statute is based on the California statute. Bruce E.H. Johnson and
Sarah K. Duran, A View From The First Amendment Trenches: Washington State's New
Protections For Public Discourse And Democracy, 87 WASH. L. REV. 495,518'(2012).
Like the California legislature, our legislature was "concerned about lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances." LAWS OF 2010, ch. 118, § 1. To "[e]stablish an
efficient, uniform, and comprehensive method for speedy adjudication of strategic
lawsuits against public participation," the legislature, "[p]rovide[d] for attorneys' fees,
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costs, and additional relief where appropriate." LAWS OF 2010, ch. 118, § 1 (emphasis
added). But, unlike California's anti-SLAPP statute-which requires its courts to award
fees, costs, and the statutory penalty to "prevailing" movants-RCW 4.24.525(6)(a)
requires courts to award reasonable attorney fees, costs, and the statutory penalty to "a
moving party who prevails, in part or in whole."
If the trial court finds Washington's anti-SLAPP statute prohibits claims in
Michael Henne's original or amended complaint, I would direct the parties to brief the
trial court on whether the city of Yakima prevailed for purposes ofRCW 4.24.525. More
specifically, the parties should brief whether RCW 4.24.525 requires a court to award
fees, costs, and the statutory penalty to a moving party who prevails in part, but whose
victory is illusory and which does not further the legislature's stated intent-advancing
public participation.
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