Opinion
No. 61054-6-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-11653-2, Douglas D. McBroom, J., entered November 30, 2007.
Affirmed by unpublished per curiam opinion.
This appeal arises from a defamation lawsuit filed by Boualem Habib against attorney Harold Winther. The claim was based on Winther's characterization of Habib as a "fruitcake" in a letter he wrote to City of Seattle officials challenging a land use violation. The trial court dismissed Habib's claim on summary judgment but denied Winther's motion for attorney fees and sanctions under CR 11, RCW 4.84.185, and RCW 4.24.510. On appeal, Winther contends that the trial court erred in denying attorney fees and sanctions. We disagree and affirm.
FACTS
Boualem Habib and his family lived in an apartment at "Alki Shores," a multi-use building consisting of a commercial space on the main floor and residential apartments above. The "Celtic Swell," an Irish restaurant and pub, has occupied space in the main floor of the Alki Shores building since July 2004.
The Habibs, who lived at Alki Shores prior to the establishment of the Celtic Swell, disliked the late night noise and activity emanating from the pub. Habib attended community meetings regarding the noise problems and lodged numerous complaints with the police and city officials. The Alki Community Council brought these concerns to the attention of the City of Seattle Department of Planning and Development (DPD), which investigated the Celtic Swell and subsequently issued a land use violation.
On November 15, 2006, attorney Harold Winther wrote a lengthy letter to DPD Director Diane Sugimura. The letter was copied to a number of other government officials. Winther stated that his letter was a "final pre-litigation effort" to convince DPD that the land use violation lodged against the Celtic Swell was "ethically, factually, and legally in error." Clerk's Papers (CP) at 59. On the last page of the letter, Winther referred to Habib as a "fruitcake." CP at 69.
Habib, who describes himself as a religious, heterosexual Muslim man, filed a defamation lawsuit against Winther asserting that the letter falsely labeled him as a homosexual. Winther brought a motion for summary judgment, arguing that Habib had failed to prove defamation and asserting that the term "fruitcake" referred to Habib's strange conduct and behavior, not to his sexual orientation. Winther also requested attorney fees and costs incurred in defending against a frivolous lawsuit pursuant to RCW 4.84.185 and CR 11. He also characterized Habib's defamation action as a "Strategic Lawsuit Against Public Participation" (SLAPP), thereby conferring absolute civil immunity and entitling him to mandatory attorney fees and penalties under Washington's anti-SLAPP statute, RCW 4.24.510. Habib argued that Winther's characterization of him as a "fruitcake" was meant to pejoratively label him as a homosexual. Habib denied that his lawsuit was a SLAPP and argued that Winther was no well-meaning whistleblower.
According to Winther, these behaviors included dangling string-tied notes from his balcony over space occupied by Celtic Swell patrons; peering through the front window at seated patrons; sweeping or dropping water and debris onto the Celtic Swell patio seating area; camcording the Celtic Swell's premises and activities; walking into the Celtic Swell displaying enmity and uttering negative comments; calling the police; and "parading back and forth on the front sidewalk pushing a presumptively occupied baby buggy." CP at 28.
The trial court noted that Webster's dictionary defined "fruitcake" as a cake with fruit and nuts or as an eccentric person, but did not refer to sexual orientation. Habib's counsel acknowledged that he did not know the term "fruitcake" could mean "homosexual" until Habib informed him about numerous references he had found online. The trial court acknowledged that it, too, had found such references online. The trial court dismissed the case on summary judgment, concluding that although the term "fruitcake" was ambiguous, it was not libelous per se when viewed in context. But the court declined to award attorney fees and sanctions for a frivolous lawsuit. The court also rejected without comment Winther's characterization of Habib's claim as a SLAPP lawsuit.
Winther's sole contention on appeal is that the court erred in denying attorney fees and statutory damages. Habib did not cross-appeal the dismissal of his claim on summary judgment.
ANALYSIS
Attorney Fees — Frivolous Lawsuit
Winther challenges the trial court's denial of attorney's fees pursuant to RCW 4.84.185 and CR 11 sanctions. The standard of review under the statute or rule is abuse of discretion. State ex. rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Washington State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
Under RCW 4.84.185, the trial court may require the nonprevailing party to pay the prevailing party's attorney fees and expenses incurred in opposing an action that is "frivolous and advanced without reasonable cause." "A lawsuit is frivolous when it cannot be supported by any rational argument on the law or facts." Tiger Oil Corp. v. Dep't of Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997). "The statute is designed to discourage abuses of the legal system by providing for an award of expenses and legal fees to any party forced to defend against meritless claims advanced for harassment, delay, nuisance, or spite." Skimming v. Boxer, 119 Wn. App. 748, 756, 82 P.3d 707 (2004).
CR 11 provides that the trial court may impose sanctions for two types of problems related to legal filings: those that are not well grounded in fact and warranted by law, and filings interposed for any improper purpose. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 217, 829 P.2d 1099 (1992). The threshold for imposing CR 11 sanctions is high. Skimming, 119 Wn. App at 755. "The purpose behind CR 11 is to deter baseless filings and to curb abuses of the judicial system." Bryant. 119 Wn.2d at
219. "If a complaint lacks a factual or legal basis, the court cannot impose CR 11 sanctions unless it also finds that the attorney who signed and filed the complaint failed to conduct a reasonable inquiry into the factual and legal basis of the claim." Id. at
220. CR 11 sanctions are not warranted "merely because an action's factual basis proves deficient or a party's view of the law proves incorrect." Doe v. Spokane and Inland Empire Blood Bank, 55 Wn. App. 106, 111, 780 P.2d 853 (1989). To impose sanctions, the court must conclude that the claim has absolutely no chance of success. In re Cooke, 93 Wn. App. 526, 529, 969 P.2d 127 (1999).
Winther argues that the trial court abused its discretion in denying attorney fees and sanctions because the claim was frivolous, advanced without reasonable cause, and not well grounded in fact or law. Winther further suggests that the trial court judge was biased against him because Habib's counsel worked as a clerk in his law firm many years ago. Habib argues that the trial court did not abuse its discretion in denying fees and sanctions where the modern usage of the term "fruitcake" is ambiguous.
Winther also challenges a statement in Habib's declaration in which Habib asserted that Winther had been disbarred and prohibited from practicing law in Ohio for falsely accusing a federal judge of corruption, bribery, and fraudulent abuse of office and power. Winther's appellate briefs included materials that were not brought before the trial court and were not made part of the record on appeal. Winther did not seek permission to submit them to this court. We will not consider them now. RAP 9.12; RAP 10.3(a)(8).
Although Habib's counsel insisted that he had timely mailed his response to Winther's summary judgment motion, Winther claimed that he had not yet received it at the time of the summary judgment hearing. This may explain why Winther did not bring this issue to the attention of the trial court. But the record shows that Winther refused the court's offer of a continuance. Accordingly, Winther waived the right to appeal any issues arising from it. See Wagner v. Wagner, 95 Wn.2d 94, 102, 621 P.2d 1279 (1980) ("[w]aiver is the intentional relinquishment of a known right.").
The trial court disclosed the prior association at the beginning of the summary judgment hearing and stated that it would not prejudice its decision.
A defamation plaintiff must prove four essential elements falsity, an unprivileged communication, fault, and damages. Maison de France, Ltd. v. Mais Oui!, Inc., 126 Wn. App. 34, 43-44, 108 P.3d 787 (2005). A private individual need prove only negligence to establish fault, not actual malice. Demopolis v. Peoples Nat'l Bank of Washington, 59 Wn. App. 105, 108 n. 1, 796 P.2d 426 (1990). The standard is whether the defendant knew or should in the exercise of reasonable care have known that the statement would create a false impression in some material respect. Vern Sims Ford, Inc. v. Hagel, 42 Wn. App. 675, 680, 713 P.2d 736 (1986).
The primary issue at the summary judgment hearing was whether Winther's use of the term "fruitcake" could create a false impression that Habib was a homosexual man. Although the trial court ruled that the term was not libelous per se when viewed in context, it denied attorney fees and sanctions because it found that the claim was not frivolous or advanced without a factual basis. At the summary judgment hearing, Habib's counsel explained that he conducted online research to determine whether the term "fruitcake" could be a pejorative reference to sexual orientation. The trial court confirmed this modern usage of the term and contrasted it with traditional definitions in finding that the term was ambiguous. Accordingly, the court stated, "I can see that there is some reason for this lawsuit that you've brought for sure." Report of Proceedings (Nov. 30, 2007) at 30. Under the circumstances, this ruling was not an abuse of discretion.
Attorney Fees — SLAPP Suit
Winther contends that the trial court erred in denying his request for attorney fees and statutory damages pursuant to Washington's anti-SLAPP statute, RCW 4.24.510. The trial court's interpretation and application of the anti-SLAPP statute is reviewed de novo. Emmerson v. Weilep, 126 Wn. App. 930, 935, 110 P.3d 214 (2005).
A SLAPP occurs when a communication made to influence a governmental action or outcome triggers "'(a) a civil complaint or counterclaim (b) filed against nongovernment individuals or organizations . . . on (c) a substantive issue of some public interest or social significance.'" Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 382, 46 P.3d 789 (2002) (quoting George W. Pring Penelope Canan, SLAPPs: Getting Sued for Speaking Out, 8-9 (1996)).
RCW 4.24.510 provides in relevant part,
A person who communicates a complaint or information to any branch or agency of federal, state, or local government, . . . is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall receive statutory damages of ten thousand dollars.
The statute "grants immunity from civil liability for those who complain to their government regarding issues of public interest or social significance." Skimming v. Boxer, 119 Wn. App. 748, 758, 82 P.3d 707 (2004) (citing Right-Price, 146 Wn.2d at 382). Because "[i]nformation provided by citizens concerning potential wrongdoing is vital to effective law enforcement and the efficient operation of government," the statute "protect[s] individuals who make good-faith reports to appropriate governmental bodies." RCW 4.24.500.
The communication at issue in this case was a letter written by Winther to city officials contesting a land use violation lodged against the Celtic Swell. Winther's letter stated that he was representing the Celtic Swell in the matter. Winther argues that the anti-SLAPP statute applies because his letter communicated a complaint or information to a government agency regarding a matter reasonably of concern to the agency. We disagree. Communications to the city regarding conditions at the Celtic Swell may be an issue of public or social significance protected by the anti-SLAPP statute. But a dispute concerning a code violation is a private matter between the city and the Celtic Swell, even if some members of the public are interested in the outcome. The purpose of Winther's letter was not to "make a good-faith report" of "information . . . concerning potential wrongdoing," but rather to advance legal arguments challenging the city's decision. The trial court did not err in concluding that the anti-SLAPP statute did not apply.
Attorney Fees — Frivolous Appeal
Habib contends that he is entitled to reasonable attorney fees pursuant to RAP 18.9(a), which permits this court to award such fees as a sanction for filing a frivolous appeal. "An appeal that is affirmed simply because an appellant's arguments are rejected is not frivolous." In re Estate of Pesterkoff, 37 Wn. App. 418, 424, 680 P.2d 1062 (1984). We decline to award fees under RAP 18.9.