Elvira Davison, / Cross v. King County

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ELVIRA DAVISON, ) No. 77652-5-I
Appellant,
)
v. )
KING COUNTY, KING COUNTY )
SHERIFF’S OFFICE, KING COUNTY ) UNPUBLISHED OPINION
DEPARTMENT OF PUBLIC DEFENSE )
And KING COUNTY ASSOCIATED ) FILED: October 14, 2019
COUNSEL FOR THE ACCUSED, )
Respondent. )
__________________________________________________________________________________)
VERELLEN, J. — After nonprofit law firm Associated Counsel for the Accused
(ACA) fired Elvira Davison for violating policies regarding client funds, Davison
sued King County, the King County Department of Public Defense (DPD), and the
King County Associated Counsel for the Accused (KCACA) for employment
discrimination and related torts. Although ACA is a separate entity distinct from
King County, DPD, or KCACA, Davison sued under a theory of successor liability
as a matter of law based on Dolan v. King County.1 Because the narrow facts in
Dolan do not support successor liability as a matter of law for employment
1172 Wash. 2d 299, 258 P.3d 20(2011).
No. 77652-5-1/2
discrimination or other torts, and the record does not support any other theory of
successor liability, the trial court properly granted summary judgment on all claims.
Therefore, we affirm.
FACTS
ACA was a private, nonprofit law firm founded in 1973. Under a contract
with King County, ACA provided indigent criminal defense and dependency
services for the county. ACA employed Davison as a forensic social worker until
she was fired on May 30, 2013. That July, the county terminated its contracts with
ACA and all other private law firms providing similar services. In November, King
County voters passed a county charter amendment authorizing the creation of
DPD and its subdivisions. The county began providing all indigent defense
services through newly created DPD and its subdivisions, including KCACA. ACA
rebranded itself Irving C. Paul Law Group (ICPLG), stopped providing indigent
legal services, and began distributing its remaining funds with the intent of
dissolving itself.
Davison first filed suit in July of 2016. Her original complaint named King
County, the King County Sheriff’s Office, DPD, and KCACA as defendants.2 It did
not name ACA or ICPLG as defendants. Davison later filed an amended
complaint naming King County, the King County Sheriff’s Office,3 DPD, and “King
2 Clerk’s Papers (CP) at 2.
~ Davison stipulated to dismissal of the King County Sheriff’s Office as a
defendant during the pendency of this appeal.
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No. 77652-5-1/3
County Associated Counsel for the Accused aka Irving C. Paul Law Group’ as
defendants.4 Davison asserted that she “worked for [KCACA}, originally known as
Irving C. Paul Law Group.”5
The court initially relied on Dolan v. King County6 to conclude that ACA and
King County were the same organization as a matter of law. The court later
granted summary judgment and dismissed all of Davison’s claims.
Davison appealed. King County7 cross appealed the court’s conclusion that
it is a successor to ACA.
ANALYSIS
We review an order granting summary judgment de novo.8 Summary
judgment is appropriate when “there is no genuine issue as to any material fact”
and “the moving party is entitled to a judgment as a matter of law.”9 We view the
evidence in a light most favorable to the nonmoving party.1° Because Davison’s
4CPat493.
5CPat494.
6 172 Wash. 2d 299, 258 P.3d 20 (2011).
~ We refer to King County to include agencies DPD and KCACA except
where otherwise noted.
8Loeffelholzv. Univ. of Wash., 175 Wash. 2d 264, 271, 285 P.3d 854 (2012).
~ CR 56(c); Ranger Ins. Co. v. Pierce County, 164 Wash. 2d 545, 552, 192
P.3d 886 (2008) (quoting Locke v. City of Seattle, 162 Wn.2d 474,483, 172 P.3d
705 (2007)).
10 Loeffelholz, 175 Wash. 2d at 271.
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No. 77652-5-1/4
claims depend upon her arguments that King County is a successor in interest to
ACA as a matter of law,11 we begin by considering King County’s cross appeal.
King County contends Dolan is “not comparable” to the case here and does
not establish its liability either vicariously or as a successor.12 Dolan held “that
[King County] has exerted such a right of control over [ACA and other] defender
organizations as to make them agencies of the county.”13 Davison relies on this
holding to argue ACA has been an agency of King County since Dolan was
decided in 2011 and thus is a successor in interest to ACA. But Dolan is limited to
the narrow legal issue it decided.
In Dolan, the court considered whether private law firms contracted to
provide indigent defense, such as ACA, were an “arm and agency” of King County
solely to determine whether their employees were “public employees” under the
Public Employee Retirement System (PERS) statute, RCW41.40.010(12).14 The
court applied the “right of control” test, which is typically used to determine
whether an employment relationship between two parties is that of employer and
~1 See Report of Proceedings (RP) (Aug. 25, 2017) at 150-51 (Davison
stating that ICPLG does not need to be served as an individual party “because we
already have King County” and acknowledging “If [ICPLG] is not considered a part
of the county, and they are a separate nonprofit, private entity. then the
. .
argument that they could be brought in or should be brought in as a separate party
should stand.”). Notably, at the conclusion of that hearing, the court ruled, “As a
matter of law. ICPLG is not a separately named defendant in this lawsuit.” ki.
. .
at 164.
12 Resp’t’s Br. at 43.
13 Dolan, 172 Wash. 2d at 320.
14 Id. at 315.
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No. 77652-5-1/5
employee or employer and independent contractor.15 The court considered the
county’s degree of control over the law firms’ budgeting and operational decisions.
On this analysis, the court concluded “the county has exerted such a right of
control over the defender organizations as to make them agencies of the
county.
Recently in LaRose v. King County,17 Division Two of this court considered
whether Dolan required holding King County vicariously liable for conduct of the
Public Defender Association (PDA), an equivalent entity to ACA. The plaintiff, a
former PDA employee, argued King County was vicariously liable under Dolan for
PDA’s alleged violations of the Washington Law Against Discrimination,18 including
hostile work environment, negligence, and discrimination.19 But “Dolan [was] not
directly applicable” because “[t]he court’s holding in Dolan was limited to the
context of retirement benefits eligibility.”20 The fact-specific nature of the right of
control test meant Dolan’s holding could not be mechanistically applied to a
question of vicarious liability.21 Because the legal issues and facts differed in
LaRose from Dolan, the court declined to conclude King County was vicariously
15 J.~ at 314 (citing Hollingbery v. Dunn, 68 Wash. 2d 75, 80-81, 411 P.2d 431
(1966)).
~Id. at 320.
178 Wash. App. 2d 90, 437 P.3d 701 (2019).
18 Ch. 49.60 RCW.
19 LaRose, 8 Wash. App. 2d at 129.
20 Id.
21 ki. at 129-30.
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liable as a matter of law.22 Under the circumstances in LaRose, the right of control
test showed King County was not vicariously liable for PDA’s conduct.23
We agree with the LaRose court that Dolan is a narrow decision confined
only to issues of PERS eligibility. It does not compel the conclusion that King
County is vicariously liable for ACA’s conduct. Notably, under the right of control
test relied upon in Dolan, King County had no control over and no involvement in
ACA’s personnel decisions regarding Davison, including her claims for
unemployment benefits and for relief through the Equal Opportunity Employment
Commission and National Labor Relations Board. Because King County had no
control over Davison’s termination, it is not vicariously liable for the termination
itself or any harm resulting from it.
Nor is King County ACA’s successor under Dolan. Despite Dolan’s broadly
written holding, nothing in the decision’s reasoning suggests the Supreme Court
intended to make King County ACA’s successor as a matter of law. Questions of
successor liability are distinct from questions of vicarious liability. Aside from
Dolan, Davison offers no Washington authority to show that a government agency
can be the successor to a private corporation. Further, Davison offers no authority
establishing that such a successor would be liable for the predecessor’s
discriminatory or tortious conduct. Consistent with LaRose, Dolan is limited to its
22 Id. at 130.
23 Id.
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narrow facts and, thus, is legally distinguishable. It does not stand for the
proposition that King County is subject to successor liability as a matter of law.
Davison raises other theories of successor liability in her response to King
County’s cross appeal. But as her trial attorney admitted, “I don’t have the
documentation,” to prove successor liability.24 Consistent with this admission, the
appellate record does not support a finding of successor liability.
Dolan is narrowly limited to eligibility for retirement benefits. Davison fails
to show King County is ACA’s successor. The trial court did not err by dismissing
all claims against the only named defendants, King County, KCACA, and DPD.
Because all of Davison’s theories of liability depend upon successor liability, we
need not consider the issues raised by her appeal.
We affirm.
WE CONCUR:
~Q~eQ9€~
24 RP (June 30, 2017) at 56.
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