Creer Legal v. Monroe School District

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CREER LEGAL, d/b/a for attorney, )
Erica Krikorian, real party in interest, )
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) DIVISION ONE cs)
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Appellant, )
) No. 76814-0-1
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MONROE SCHOOL DISTRICT, a ) Vg
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Respondent. ) FILED: August 13, 2018
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DWYER, J. — Over the course of her representation of Erica Miller,
'(PRA)requests to the Monroe
attorney Erica Krikorian made Public Records Act.
School District (the District). Krikorian then negotiated a settlement with the
District in which Miller released any potential PRA claims. Krikorian, asserting
that the PRA claims were hers, later filed suit against the District for an alleged
denial of her opportunity to inspect requested records. The trial court granted
summary judgment to the District on the theory that Krikorian lacked standing to
prosecute this action. We affirm, holding that Krikorian, as Miller's agent, did not
own the cause of action and could not prosecute it once it was released by Miller.
I Ch. 42.56 RCW.
No. 76814-0-1/2
In December 2014, Erica Miller filed suit in the United States District Court
against the District, alleging civil rights violations related to the seclusion and
restraint of her autistic child. She was represented by Erica Krikorian of Creer
Legal (Krikorian) and Brian Krikorian.2 In the course of litigation, Krikorian sent
the District two PRA requests on behalf of Miller. Krikorian e-mailed the first
request on February 12, 2015. The District produced records to Miller's
attorneys in installments. On April 27, 2015, Krikorian sent an e-mail to the
District both requesting additional records and following up on the first request.
Krikorian threatened to file a lawsuit under the PRA based on the District's failure
to produce records responsive to the first request, noting that the records were
necessary for depositions in the civil rights litigation. The District produced
records to Miller's attorneys in installments.
On June 4, 2015, Miller filed a motion to show cause in federal district
court, alleging that the District wrongfully withheld records from her under the
PRA. The district court denied the motion.
On January 13, 2016, Miller filed another motion to show cause for a PRA
violation. She requested that she be awarded $55,250 in attorney fees, noting
that in the time since the original motion,"another 75 hours of attorney time has
been invested." The court denied Miller's motion, but the District was ordered to
produce any remaining responsive documents.
2 We refer to plaintiff Erica Krikorian, doing business as Creer Legal, as "Krikorian."
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No. 76814-0-1/3
Miller's suit was tried in federal district court. The jury returned a defense
verdict. Miller was ordered to pay $17,224.07 in costs to the District. Thereafter,
she and the District entered into a settlement agreement in which the District
agreed to waive execution on the cost bill in consideration for Miller waiving her
right to appeal and releasing all claims, including those under the PRA. In so
doing, Miller and the District agreed to
hereby release, acquit and forever discharge each other, their
employees, agents, board members, attorneys in this litigation, and
assigns of and from any and all claims, demands, actions, causes
of action, or damages of whatever nature, known or unknown, to
the date of the settlement, including, but not limited to... claims
brought pursuant to the Washington Public Records Act... .
PLAINTIFF and DEFENDANTS individually represent and warrant
that they individually are the sole owner of all such claims,
demands, actions, causes of action, or damages released and
discharged hereunder.
(Emphasis added.)
On October 25, 2016, Krikorian filed a PRA complaint in superior court
against the District alleging violations related to the two requests made in the
course of representing Miller. Both parties filed motions for summary judgment.
On April 5, 2017, the trial court granted the District's motion for summary
judgment, dismissing Krikorian's PRA claims on the basis that she lacked
standing. The trial court did not rule on Krikorian's motion. Krikorian appeals.
II
This case presents two related questions. First, does the same alleged
PRA violation support more than one cause of action? Second, who is entitled to
prosecute a PRA cause of action?
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No. 76814-0-1/4
A
We review summary judgment de novo. Hearst Commc'ns, Inc. v. Seattle
Times Co., 154 Wn.2d 493, 501, 115 P.3d 262(2005). Summary judgment is
proper where there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of laW. Hertoq v. City of Seattle, 138 Wn.2d 265,
275, 979 P.2d 400(1999). We engage in the same inquiry as the trial court and
consider the facts and reasonable inferences therefrom in the light most
favorable to the nonmoving party. Hertog, 138 Wn.2d at 275.
"The PRA 'is a strongly worded mandate for broad disclosure of public
records." Yakima County v. Yakima Herald—Republic, 170 Wn.2d 775, 791, 246
P.3d 768(2011)(internal quotation marks omitted)(quoting Soter v. Cowles
Publ'q Co., 162 Wn.2d 716, 731, 174 P.3d 60(2007)). Under the PRA, all state
and local agencies must promptly disclose any public record on request unless
the record falls under a statutory exemption. RCW 42.56.520, .550(1); Wood v.
Lowe, 102 Wn. App. 872, 876, 10 P.3d 494(2000). "Agencies shall not
distinguish among persons requesting records, and such persons shall not be
required to provide information as to the purpose for the request." RCW
42.56.080(2).
B
Neither party in this case takes a position on our first inquiry, whether
the same alleged PRA violation supports more than one cause of action. But we
read the Act to provide for a single cause of action arising from an alleged PRA
denial, regardless of how many individuals were involved in making the request.
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No. 76814-0-1/5
If the agency fails to disclose records, then
[u]pon the motion of any person having been denied an opportunity
to inspect or copy a public record by an agency, the superior court
in the county in which a record is maintained may require the
responsible agency to show cause why it has refused to allow
inspection or copying of a specific public record or class of records.
RCW 42.56.550(1). This provision authorizes any person to file "the motion" if
that person was "denied an opportunity" to inspect requested records. This
reference to "the motion" establishes the cause of action for a PRA violation.
The statute then ties the cause of action to the alleged violation: "denied an
opportunity to inspect." The PRA references a cause of action in the singular—
the motion—and links that singular cause of action to the alleged denial while
also linking the denial to the request. In so doing, RCW 42.56.550 provides that
there is but one cause of action per alleged denial under the PRA.
C
Having established that the denial of an opportunity to inspect records
gives rise to a single cause of action under the PRA, we turn to this question:
who is authorized to bring that action? Both parties in this case argue that this is
a question of standing. While this is an understandable viewpoint, given the
existing appellate court opinions on the matter, a standing framework is not
useful here. The question of ownership of the cause of action is the more
appropriate inquiry. In this case, the question of ownership is resolved by resort
to the law of agency.
The District's position is that Krikorian acted as Miller's attorney-agent with
respect to the PRA request and litigation. The District contends that because
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No. 76814-0-1/6
Miller, Krikorian's principal, owned the cause of action and released that cause of
action in her settlement with the District, Krikorian, as a mere agent, cannot
maintain her PRA claims. The District is correct.
"Agency is the fiduciary relationship that arises when one person (a
"principal") manifests assent to another person (an "agent") that the agent shall
act on the principal's behalf and subject to the principal's control, and the agent
manifests assent or otherwise consents so to act." RESTATEMENT(THIRD)OF
AGENCY § 1.01 (AM. LAW INST. 2006). "The elements of common-law agency are
present in the relationships between . . . client and lawyer." RESTATEMENT
(THIRD)OF AGENCY § 1.01 note c. The burden of establishing the agency
relationship rests on the party asserting its existence. Hewson Constr., Inc. v.
Reintree Corp., 101 Wn.2d 819, 823,685 P.2d 1062(1984).
The evidence in the record incontrovertibly supports the District's position
that Krikorian acted as Miller's agent with respect to the records requests. In
federal district court motions, Krikorian repeatedly represented that Miller made
the PRA requests: "Miller has been requesting documents reflecting the subject
communications since January 2015"; "Miller submitted a second PRA request";
"Miller has been requesting documents reflecting the subject communications."
A second federal court PRA motion referenced "Miller's request" and "Miller's
PRA request".
These motions also alleged that it was Miller who was harmed by the
wrongful withholding of records, and requested penalties on her behalf: "Miller
should have been given access to an electronic folder containing the requested
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No. 76814-0-1/7
emails." Alleging that the District wrongfully withheld records, "Miller respectfully
requests an award of penalties against defendants in the amount of $27,200 -
$100 per day for each of the 272 days [that] have lapsed since April 14."
Miller's PRA motions even requested an award of attorney fees. When
arguing that "Miller is entitled to an award of attorneys' fees", the court was told
that,
[a]s a result of the District's conduct, Krikorian was forced to invest
approximately 45 hours attempting to obtain the records and
resolve this ongoing dispute. . .. Krikorian has made every
imaginable attempt to find a solution to this dispute and has granted
every requested courtesy. Yet, six months into this action, Miller is
still without communications having to do with her child and the
District's use of aversive interventions. As such, Miller respectfully
requests that this Court grant an award of attorneys' fees in the
amount of $30,875, pursuant to the declaration of Erica Krikorian.
The second PRA motion requests an award of even more attorney fees,
explaining that,
[a]t the time of the original motion, Miller had incurred $30,875 in
attorneys' fees in connection with the dispute arising out of the
Board Member emails. Since that time, another 75 hours of
attorney time has been invested in the review of the subsequent
productions, cataloging [the] nature and date of the content
produced and in negotiations with opposing counsel for an informal
resolution. As such, Miller respectively [sic] requests an award of
$55,250 in attorneys' fees pursuant to paragraph 21 of the
Declaration of Erica Krikorian.
This is all clear evidence that Krikorian was acting as Miller's agent with
respect to the PRA claims.
Further, in negotiating the settlement between Miller and the District,
Krikorian communicated with the District on Miller's behalf. Significantly, Miller
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No. 76814-0-1/8
represented in her settlement agreement with the District that she was the sole
owner of the PRA claim.
In support of her argument that she owns the PRA claim, Krikorian points
only to the fact that she, herself, e-mailed the PRA requests to the District. This
is not in dispute. Rather, it provides additional evidence that Krikorian sent the
requests as an agent on behalf of a client. The first request states, "since we are
in litigation, I am directing the request to you, as opposed to my client submitting
the request directly to the district. However, if you prefer that she submit the
request directly please let me know so she can proceed accordingly." And in the
second records request, Krikorian discusses the federal court litigation at length,
contextualizing her requests as being taken in furtherance of her client's goals in
that lawsuit.
The records requests, federal court motions, and settlement agreement
support that Krikorian was Miller's agent from the inception of the PRA request to
its settlement. Krikorian acted "on the principal's behalf and subject to the
principal's control." She submitted the request on behalf of Miller, filed motions
to enforce the requests on behalf of Miller, and negotiated the resolution of the
PRA claims on behalf of Miller. By releasing the PRA claim as its sole owner,
Miller demonstrated that Krikorian, as agent, was subject to her control. Viewing
the evidence in the light most favorable to Krikorian, there is no indication that
she was anything other than Miller's agent with respect to the PRA requests and
claims.
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No. 76814-0-1/9
Miller released the PRA cause of action in the settlement agreement. An
agent derives from her principal only such powers as the principal has.
Schorman v. McIntyre, 92 Wash. 116, 119, 158 P. 993(1916). Because Miller,
as principal, extinguished the cause of action, Krikorian, as agent, cannot assert
rights that Miller no longer possesses. Moreover, because Krikorian was Miller's
agent, it is irrelevant that Krikorian was not a party to the settlement agreement.3
In further support of this outcome, our Rules of Professional Conduct
(RPC) militate against the inference that an attorney-agent would find herself as
anything other than the client's agent in the prosecution of such a cause of
action. These rules provide, as follows:
CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC
RULES
(a) A lawyer shall not enter into a business transaction with a
client or knowingly acquire an ownership, possessory, security or
other pecuniary interest adverse to a client unless:
(1)the transaction and terms on which the lawyer acquires
the interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing in a manner that can be
reasonably understood by the client;
(2)the client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the advice of
an independent lawyer on the transaction; and
(3)the client gives informed consent, in a writing signed by
the client, to the essential terms of the transaction and the lawyer's
role in the transaction, including whether the lawyer is representing
the client in the transaction.
3 Krikorian cites Eblinq v. United States Dep't of Justice, 796 F. Supp. 2d 52(D.D.C.
2011), for authority that Miller cannot waive Krikorian's right to a PRA cause of action. In that
case, the court held that the requestor's nephew did not, in a plea agreement, waive the
requestor's right to make a Freedom of Information Act(FOIA)(5 U.S.C.A. § 552) request. Ebling
is not analogous because it relates to waiver of the right to make a records request, not the right
to maintain a cause of action. Also, there was no indication in Eblinq that the aunt and nephew
had a recognized principal-agent relationship, such that the nephew could affect the rights of the
aunt.
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No. 76814-0-1/10
....
(i) A lawyer shall not acquire a proprietary interest in the
cause of action or subject matter of litigation the lawyer is
conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's
fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a
civil case.
RPC 1.8.
Krikorian asserts that she has an independent propriety interest in the
PRA cause of action that Miller attested to be hers alone. If this were so,
Krikorian would be afoul of RPC 1.8(a). During settlement negotiations,
Krikorian's asserted interest in a PRA cause of action was directly adverse to her
client's interest in settling the case. The record lacks evidence that Krikorian
made the necessary disclosures to overcome this conflict of interest.
Moreover, if Krikorian had an interest in the PRA cause of action as a co-
principal along with Miller, that would be in clear violation of RPC 1.8(i), because
Krikorian's asserted interest does not involve acquiring a lien to secure a fee or
contracting with a client for a reasonable contingency fee.
The parties refer us to three Washington cases that, while discussing
similar issues as concerning standing, can easily be seen as consistent with the
agency law framework that we utilize.4 In Germeau v. Mason County, 166 Wn.
4 Krikorian also cites a number of federal cases on standing to maintain a FOIA cause of
action. These cases are inapposite. Not only do federal courts have a different test for standing,
but FOIA bestows a cause of action only on the individual who personally signs and submits the
request. Hairo v. United States Citizenship & Immigration Servs., 811 F.3d 1086, 1105 (9th Cir.
2016). This approach was rejected in Kleven and Cedar Grove.
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No. 76814-0-1/11
App. 789, 271 P.3d 932(2012), a representative of a guild requested county
public records. The representative later brought a PRA suit against the county.
The county argued that the guild, not the representative, had standing to bring
the PRA action. The court disagreed, reasoning that the representative had
standing because he had a personal stake in receiving the requested
information. Germeau, 166 Wn. App. at 804. Viewing this case through an
agency framework, the representative requested public records as an agent of
the guild. He then continued, as an agent, to prosecute the cause of action for a
violation related to the request, with no indication either that he was acting
outside the authority given to him by the guild or that he would have kept for
himself any monetary recovery resulting from the action.
In Kleven v. City of Des Moines, 111 Wn. App. 284, 44 P.3d 887(2002),
an attorney submitted a public records request to the city without mentioning a
client. The client later sued the city under the PRA. The city argued that the
client lacked standing because the attorney communicated the request.
However, because the attorney certified that he had made the request on behalf
of the client, the court concluded that the client had a personal stake in the PRA
claim and, thus, standing to bring suit. Kleven, 111 Wn. App. at 290-91.
Similarly, in Cedar Grove Composting, Inc. v. City of Marysville, the undisclosed
client of an attorney requester was found to have standing to maintain a later
PRA cause of action arising from the request. 188 Wn. App. 695, 712-13, 354
P.3d 249 (2015).
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No. 76814-0-1/12
These decisions are harmonious with today's decision. The attorney-
agents in Kleven and Cedar Grove took their actions on behalf of properly
undisclosed principals. Those principals owned the PRA cause of action and
later prosecuted that cause of action. Because they owned the cause of action,
the principals, of course, had standing to bring the action.5
Government agencies, forbidden to inquire into the purpose of a PRA
request, cannot examine the nature of a requestor's interest as we have done
here. But application of the law of agency should give governments reason for
serenity. Governments, as the third party in the principal-agent relationship, may
be assured that they are responding properly to a request by relying on principles
of apparent authority.6 A government can discharge its duties under the PRA by
providing records to an agent acting with actual or apparent authority.
111
Krikorian requests an award of attorney fees pursuant to RCW
42.56.550(4), which mandates a fee award to any person denied the opportunity
to inspect records under the PRA. As Krikorian has not established a PRA
violation, she is not entitled to an award of fees.7
5 A cause of action is a thing with value. It is owned and can be conveyed. In any
particular case, a body of law will exist to assist in determining ownership, e.g., the laws of
agency, personal property, corporations, partnerships, etc.
6 "Apparent authority is the power held by an agent or other actor to affect a principal's
legal relations with third parties when a third party reasonably believes the actor has authority to
act on behalf of the principal and that belief is traceable to the principal's manifestations."
RESTATEMENT(THIRD)OF AGENCY § 2.03.
7 No purpose would be served by our review of the trial court's determination not to rule
on Krikorian's summary judgment motion. Krikorian's request that we do so is, therefore, denied.
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No. 76814-0-1/13
The District requests an award of attorney fees, costs, and terms under
RAP 18.9(a), claiming that Krikorian filed a frivolous appeal. "An appeal is
frivolous if there are 'no debatable issues upon which reasonable minds might
differ, and it is so totally devoid of merit that there was no reasonable possibility'
of success." West v. Thurston County, 169 Wn. App. 862, 868, 282 P.3d 1150(2012)(internal quotation marks omitted)(quoting In re Recall Charges Against
Feetham, 149 Wn.2d 860, 872, 72 P.3d 741 (2003)). Krikorian's appeal is not
frivolous, as it presented an issue warranting a published opinion. We decline to
award fees or terms to either party. The District may recover the costs otherwise
available to parties who prevail in our court.
Affirmed.
WE CONCUR:
filGtaii1 4,C,T.
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