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affirming dismissal of claims based on expert witness immunity
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No. 31247-6-II
April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No: 01-2-01331-5. Judgment or order under review. Date filed: 11/24/2003. Judge signing: Hon. F Mark McCauley.
Counsel for Appellant(s), Anthony David Gipe, Thompson Gipe PC, 1900 W Nickerson St Ste 209, Seattle, WA 98119.
Counsel for Respondent/Cross-Appellant, Michael James Bond, Attorney at Law, 2200 6th Ave Ste 600, Seattle, WA 98121-1849.
Raymond Victor Bottomly, Gardner Bond Trabolsi St Louis Clement, 2200 6th Ave Ste 600, Seattle, WA 98121.
Bobbi and John Hoechlin sued Kathleen Urbiha, a handwriting analyst, for malicious prosecution, abuse of process, defamation, outrage, and civil rights violations under 42 U.S.C. sec. 1983. The trial court ruled that witness immunity barred the Hoechlins' suit and granted Urbiha's motion for summary judgment. The trial court determined that Urbiha was entitled to absolute immunity as an expert witness in the State's forgery prosecution against the Hoechlins and granted Urbiha's motion for summary judgment. The Hoechlins appeal summary judgment, challenging Urbiha's qualifications as an expert and the trial court's finding that she was a witness in the Hoechlins' criminal case.
Urbiha cross-appeals, contending that the trial court erred by finding that Washington's anti-SLAPP statute, former RCW 4.24.510 (1999), did not apply to expert witnesses and by denying her request for attorney fees under that statute.
'SLAPP' is an acronym for 'Strategic Lawsuits Against Public Participation.' See Gontmahker v. City of Bellevue, 120 Wn. App. 365, 366 n. 1, 85 P.3d 926 (2004).
We affirm the trial court's determination that, as a witness in a criminal case, Urbiha is immune from suit. But we also hold that former RCW 4.24.510 applies to witnesses who act in good faith. Thus we remand for a trial to determine whether Urbiha was performing her duties in good faith and, as a result, is entitled to attorney fees in defending against the Hoechlins' suit.
Because Urbiha is not the substantially prevailing party, however, we deny her request for attorney fees in this appeal.
FACTS Underlying Facts and Criminal Charges
In April 1997, some residents of Surfside, a small unincorporated community near Ocean Park in Pacific County, began receiving unsolicited magazine subscriptions and mail-order products. The residents, including Mike and Pat Ullock, Mal and Luella Swanson, Nancy Shallow, Stephen Herrington, and Mary Ann Archer (collectively, the Neighbors) believed that the orders for these items had been forged. Suspecting that another Surfside resident, Elizabeth Fenner, forged the orders, they hired Urbiha, a handwriting analyst, to review the order cards they retrieved from the companies sending the unwanted items.
The Neighbors had had not-so-neighborly conflicts with Fenner arising out of Fenner and the Neighbors' participation in the Surfside Homeowners Association (SHOA).
The Neighbors contacted Urbiha after seeing her telephone book advertisement.
Urbiha, a 'QDE Diplomate' of the American Board of Forensic Examiners (ABFE), asked the Neighbors to provide her with handwriting samples from anyone who might be responsible for the forged documents. The Neighbors sent samples of the individual Neighbors' handwriting. They also sent Urbiha samples of Fenner's handwriting, as well as that of Bobbi Hoechlin, Fenner's friend. After reviewing the order cards and the handwriting samples, Urbiha opined that Fenner was the forger.
The initials 'QDE' stand for 'Questioned Document Examiner.' Clerk's Papers (CP) at 121.
The Hoechlins were retired and participated in charitable organizations with Fenner, a widow.
The Neighbors began receiving a new round of unsolicited mail in February 1998. One of the Neighbors, Mal Swanson, told Urbiha that the handwriting on the new order forms did not appear to match the earlier handwriting and asked Urbiha to conduct further investigation. On February 10, 1998, after reviewing the forms, Urbiha sent Mal Swanson a letter stating that, in her opinion, the new order forms had all been filled out by the same person and that there was 'a distinct possibility that these documents . . . may have been filled out by Bobbi Hoechlin.' Clerk's Papers (CP) at 20.
Bobbi Hoechlin asserts that the Neighbors singled her out because she was Fenner's friend and because she wrote a December 18, 1997 letter to Pacific County Prosecutor Michael Smith supporting Fenner and questioning the Neighbors' motives in pursuing the case.
Around May 1998, the Pacific County Prosecutor, Michael Smith, sent Urbiha's February 10, 1998 opinion letter and the supporting documents to the Washington State Patrol Crime Laboratory for review. On June 22, 1998, a forensic document examiner for the state, Rosemary Brehm, concluded that Bobbi Hoechlin 'cannot be identified or eliminated as the writer/signer of the mail order cards. There are indications she is not the writer of the handwriting.' CP at 184. Smith expressed his disappointment with the lab's findings in a July 16, 1998 letter to one of the neighbors, Mike Ullock. But he decided to pursue the investigation of Fenner and Bobbi Hoechlin.
In a September 18, 1998 letter to Mike Ullock, Urbiha reiterated her conclusion that Bobbi Hoechlin forged the order cards. Then, in a September 22, 1998 letter to Mike Ullock, Smith requested that Mike Ullock have Urbiha provide him with suspected forgeries that had not been reviewed by the State crime lab. In his letter, Smith discussed his strategy:
'[S]he [presumably, State document examiner Brehm] can't testify as to her opinion on samples she has not seen.' CP at 191. It seems that Mike Ullock passed on Smith's request to Urbiha, because in an October 15 letter to Smith, Urbiha stated that she was sending 'copies of the documents you requested. . . . I am sending you ten copies of Questioned Documents that I believe were penned by [Fenner] and ten copies . . . that appear to be in the handwriting of [Bobbi] Hoechlin.' CP at 220.
On November 5, 1998, Smith charged Bobbi Hoechlin with 10 counts of forgery. By a letter dated April 30, 1999, Urbiha told the Hoechlins' attorney that she could not testify to Bobbi Hoechlin's guilt beyond a reasonable doubt. Bobbi Hoechlin filed a Knapstad motion to dismiss the charges. In May 1999, the Pacific County Superior Court granted the motion and dismissed the charges against Bobbi Hoechlin.
Former RCW 9A.60.020(1)(b) (1975). The information asserted that Bobbi Hoechlin had forged orders for, among other things, magazine subscriptions and a 'Cat Nap Plate' from the Danbury Mint. CP at 196.
In Urbiha's view, it was 'highly probable' that Bobbi Hoechlin produced the forgeries. Urbiha stated that she generally issues four categories of opinions, and she considers 'highly probable' just short of 'unqualified,' or beyond a reasonable doubt, the category reflecting the highest degree of certainty. CP at 204, 202. At some point, Bobbi Hoechlin apparently issued to the court an undated document stating under penalty of perjury that she reached the same conclusion. Although the document is marked 'Affidavit,' it does not indicate that it was sworn before an officer authorized to administer oaths. Nor does it meet the requirements for certification of unsworn statements under RCW 9A.72.085 (for example, it does not contain the date and place of execution).
State v. Knapstad, 41 Wn. App. 781, 706 P.2d 238 (1985), aff'd, 107 Wn.2d 346 (1986).
But Smith had also charged Fenner with forging the orders. And in July 1999, Urbiha testified for the State at Fenner's trial. Testifying for the defense, both Brehm and another handwriting expert, James Green, disputed Urbiha's findings and questioned her conclusions as to the authorship of the forgeries.
The defense experts also questioned Urbiha's qualifications as a handwriting expert. Urbiha testified that although she was an ABFE diplomate, under then-current guidelines she would not qualify to become an ABFE member because she had not undergone the requisite apprenticeship program. Green also testified that Urbiha would not meet American Society of Questioned Document Examiners guidelines.
Apparently, Urbiha initially became involved in questioned document examination through graphology, an unrelated field of handwriting analysis dealing with the study of personality through handwriting. She had become involved with graphology when she was a psychiatric nurse.
Fenner was acquitted following a bench trial. In finding her not guilty, the trial court stated that Urbiha's conclusions were entitled to some weight, but it concluded that the defense experts were 'more logical and made a little bit more sense to me.' CP at 132.
The Hoechlins' Civil Case
In November 2001, the Hoechlins sued Pacific County, Smith, the Neighbors, and Urbiha in the Grays Harbor County Superior Court. The Hoechlins asserted claims for malicious prosecution, abuse of process, defamation, outrage, and civil rights violations under 42 U.S.C. sec. 1983. In April 2002, the Hoechlins settled their lawsuit with the County and Smith. In July 2002, the remaining defendants moved for summary judgment. Following oral arguments, the court issued an oral ruling stating Urbiha is 'an expert in this area, at least by training and experience and her work; maybe she doesn't have all the qualifications that some of the other experts have, but that really goes more to weight.' CP at 326-27. The trial court then dismissed on summary judgment the claims against Urbiha based on expert witness immunity as set forth in Bruce v. Byrne-Stevens Assocs. Eng'rs, Inc., 113 Wn.2d 123, 776 P.2d 666 (1989).
That statute provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The court continued,
I also note there was no expert that came in on behalf of [Hoechlin] to say that they've reviewed her qualifications and that she committed some sort of malpractice of she was totally unqualified. It was simply their kind of chipping away at the weight of her opinions and ability, not so much her right to testify as an expert.
CP at 327.
The court denied the other defendants' summary judgment motions. According to the Hoechlins' brief, the claims of the other defendants have since settled or been dismissed.
The court also stated that Washington's anti-SLAPP statute, former RCW 4.24.510, probably did not apply to Urbiha's actions, but it requested additional briefing and did not make a final ruling.
The court noted that the 2002 revision to the statute (Laws of 2002, ch. 232 sec. 2) did not apply.
After reviewing supplemental briefing, the court entered a written order granting Urbiha's motion for summary judgment and denying her request for attorney fees under former RCW 4.24.510. Both parties appeal: the Hoechlins from the grant of summary judgment and Urbiha from the denial of attorney fees.
The trial court also denied her request for attorney fees under RCW 4.84.185, which provides in part:
In any civil action, the court having jurisdiction may, upon written findings by the judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense.
ANALYSIS Absolute Immunity for Expert Witnesses
The Hoechlins first contend that summary judgment on the issue of Urbiha's immunity was inappropriate.
We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court. Int'l Bhd. of Elec. Workers, Local Union No. 46 v. TRIG Elec. Constr. Co., 142 Wn.2d 431, 434-35, 13 P.3d 622 (2000), cert. denied, 532 U.S. 1002 (2001). We consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
'A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.' Deatherage v. Examining Bd. of Psychology, 134 Wn.2d 131, 135, 948 P.2d 828 (1997) (quoting Restatement (Second) of Torts sec. 588 (1977)). Witness immunity promotes full and frank testimony, which, in turn, protects the integrity of the judicial process. Gustafson v. Mazer, 113 Wn. App. 770, 775, 54 P.3d 743 (2002) (citing Bruce, 113 Wn.2d at 126). Witness immunity applies in a broad range of circumstances and has been extended to witnesses before grand juries and other pretrial proceedings; to guardians, therapists, and attorneys who submit reports to family court; and to probation officers allegedly submitting false statements in pretrial bond reports. Bruce, 113 Wn.2d at 126-27.
'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.' Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 382, 46 P.3d 789 (2002) (quoting Restatement (Second) of Torts sec. 559 (1977)), cert. denied, 540 U.S. 1149 (2004). A defamation plaintiff must prove four essential elements regarding the allegedly defamatory statement: (1) falsity; (2) an unprivileged communication; (3) fault; and (4) damages. Demopolis v. Peoples Nat'l Bank of Wash., 59 Wn. App. 105, 108-09, 796 P.2d 426 (1990) (citing LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989); Mark v. Seattle Times, 96 Wn.2d 473, 482-83, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982)).
Bruce, the case the trial court relied on here, involved an engineer who, as an expert, testified as to the cost to stabilize the soil on the plaintiff's property. 113 Wn.2d at 124. The trial court found in the plaintiff's favor and awarded the plaintiff a judgment for exactly that amount. Bruce, 113 Wn.2d at 124. But the actual cost of the repair was twice the amount the expert witness testified to at trial. Bruce, 113 Wn.2d at 124-25. The plaintiff sued the expert for negligence, contending that, but for the expert witness's negligent analysis and testimony, the plaintiff would have been awarded the true cost of repair. Bruce, 113 Wn.2d at 125. But a Supreme Court plurality held that absolute witness immunity barred the suit. Bruce, 113 Wn.2d at 138.
The Bruce plurality determined that, as a general rule, a witness in judicial proceedings is absolutely immune from any civil liability based on his or her testimony, not just suits for defamation. 113 Wn.2d at 125 (citing Briscoe v. LaHue, 460 U.S. 325, 330-31, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983)). Bruce's application of the immunity rule extended the traditional rule because it expanded the claims to which absolute immunity applied. The Supreme Court later noted its approval of this extension. See Deatherage, 134 Wn.2d at 137 (citing Bruce, 113 Wn.2d at 126).
In Bruce, one justice concurred in the result only. The four justices who dissented would have limited witness immunity to suits against such witnesses for defamatory statements and would have held that the fact that the engineer testified in court should not shield him from liability for professional negligence. Bruce, 113 Wn.2d at 138 (Pearson, J., dissenting).
Arguing that absolute immunity should not apply here, the Hoechlins cite Twelker v. Shannon Wilson, Inc., 88 Wn.2d 473, 564 P.2d 1131 (1977). There, a defendant engineering firm raised absolute immunity to bar a defamation claim based on statements it had made in an engineering report before the initiation of a lawsuit. Twelker, 88 Wn.2d at 474-75. The plaintiff, also an engineer, contended that the defendant in its report had made false statements about the content of the plaintiff's original report and that these statements defamed his professional reputation. Twelker, 88 Wn.2d at 475. Our Supreme Court held that absolute immunity did not extend to such statements. Twelker, 88 Wn.2d at 478. The court noted: Absolute immunity . . . should be confined to cases where there is supervision and control by other authorities, such as courts of justice, where proceedings are under the able and controlling influence of a learned judge, who may reprimand, fine and punish as well as expunge from records statements of those who exceed proper bounds, and who may themselves be disciplined when necessary.
Twelker, 88 Wn.2d at 476 (quoting Mills v. Denny, 245 Iowa 584, 588-89, 63 N.W.2d 222 (1954)).
Bruce distinguished Twelker on the ground that the defendant in Bruce was hired specifically for litigation purposes and was therefore entitled to the absolute privilege. 113 Wn.2d at 137. And, citing Bruce, we held that witness immunity barred a suit for negligence and defamation based on a psychologist's preparation of a memorandum opining that the mother in a custody dispute had a psychological condition that might endanger the health of her child. The psychologist's memorandum was part of the long, complex evaluation process that culminated in her testimony at the custody hearings and trial. . . . Likewise, [the psychologist] based her memorandum on the psychological evaluations she performed, prepared the memorandum at [the guardian ad litem's] request for use in a court proceeding, testified days later about the memorandum, and eventually testified at the custody trial.
Gustafson, 113 Wn. App. 776 (citing Bruce, 113 Wn.2d at 135). We noted that the underlying policy behind expert witness immunity supports the scope of that immunity:
Witness immunity must extend to the basis of the witness' testimony, or the policies underlying such immunity would be undermined. An expert's courtroom testimony is the last act in a long, complex process of evaluation and consultation with the litigant. There is no way to distinguish the testimony from the acts and communications on which it is based. Unless the whole, integral enterprise falls within the scope of immunity, the chilling effect of threatened litigation will [lead to less objective expert testimony and discourage anyone who is not a full time professional expert witness from testifying], regardless of the immunity shielding the courtroom testimony.
Gustafson, 113 Wn. App. at 775-76 (quoting Bruce, 113 Wn.2d at 135).
Here, Urbiha's expert opinion was before the court in the form of a letter to the Hoechlins' attorney. See Gustafson, 113 Wn. App. at 778. And Bruce, Gustafson, and even Twelker hold that the immunity of expert witnesses, and indeed witnesses generally, extends not only to their testimony but also to acts and communications that occur in connection with their testimonial preparation or those actions providing the basis for their testimony. 113 Wn.2d at 135; 113 Wn. App. at 776; see also 88 Wn.2d at 475. Urbiha acted in preparation for both Bobbi Hoechlin and Fenner's criminal proceedings. These actions were the basis for the court's dismissal of Bobbi Hoechlin's charges. Thus, the trial court correctly concluded that Urbiha was absolutely immune from suit arising out of her opinions and prospective testimony.
Improper Issue Preclusion
The Hoechlins also contend that the trial court's treatment of Urbiha as an expert witness was based on her testimony in the Fenner case and that this constituted improper issue preclusion. She argues that 'Urbiha's alleged expertise in the Fenner case was the basis of the trial court's dismissal of Urbiha under Bruce. It was improper to hold that . . . decision . . . was binding.' Br. of Appellant at 22.
But Urbiha's status as an expert is not relevant to her immunity here. All witnesses, not just experts, are immune from suit. The Bruce plurality merely expanded the claims to which absolute immunity potentially applied.
But assuming arguendo that Urbiha's status as an expert is important in this case, Bobbi Hoechlin's assertion that the trial court improperly applied issue preclusion, thereby denying her due process, is unfounded. Urbiha did not argue issue preclusion before the trial court and there is no indication in the record that the court considered itself bound by the Fenner criminal court's treatment of Urbiha. Of course, the Fenner transcript was one of the materials before the trial court on summary judgment. Thus, it would have been entirely proper for the trial court to consider the underlying information in the Fenner case in reaching its decision.
The elements of collateral estoppel or issue preclusion are: (1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied. Reninger v. Dep't of Corr., 134 Wn.2d 437, 449, 951 P.2d 782 (1998) (citing Southcenter Joint Venture v. Nat'l Democratic Policy Comm., 113 Wn.2d 413, 418, 780 P.2d 1282 (1989)).
The Fenner transcript was attached as Exhibit 1 to the declaration of the Hoechlins' trial attorney opposing Urbiha's summary judgment motion. And other information before the trial court submitted by the Hoechlins indicated that Urbiha had at least some expertise on the subject of document examination.
It seems that the Hoechlins are really arguing that the facts before the trial court do not support the trial court's determination that Urbiha was an expert. Arguing that a trial on the matter of Urbiha's expert status is necessary, the Hoechlins point out the following 'uncontested facts:'
(1) Urbiha was never qualified as an expert witness in any case prior to the Fenner criminal case.
(2) Urbiha never worked for a forensic documents unit or apprenticed to a certified examiner.
(3) Before Urbiha provided the Neighbors with an opinion, she had only testified before a court on a matter of 'graphoanalysis,' or the analysis of personality through handwriting, a discipline criticized by the defense experts in the Fenner case.
(4) Urbiha would not currently qualify as an ASFE diplomate in questioned documents examination.
Summary judgment is appropriate where there is no disputed issue of material fact and where judgment is appropriate as a matter of law. CR 56(c). And, as the Hoechlins, themselves, point out, the above were the 'uncontested facts' before the trial court on the summary judgment motion. Thus, the trial court was clearly aware of these uncontested facts when it made its determination that Urbiha qualified as an expert witness. Although on summary judgment we review matters of law de novo, the admissibility and scope of an expert's testimony is a matter within the trial court's discretion. Orion Corp. v. State, 103 Wn.2d 441, 462, 693 P.2d 1369 (1985). We affirm the trial court's decision whether to treat Urbiha as an expert based on these 'uncontested facts.' The trial court noted that it was aware that Urbiha's qualifications were in question. But it determined that any reservations regarding Urbiha's qualifications would have gone to the weight accorded her testimony. Moreover, we note that the criminal court actually relied on Urbiha's expert opinion in dismissing the charges against Bobbi Hoechlin.
Int'l Bhd. of Elec. Workers, Local Union No. 46, 142 Wn.2d at 434-35.
A trial court abuses its discretion when its discretion is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The court did not apply issue preclusion. More to the point, it did not err in granting summary judgment for Urbiha on the issue of her status as a witness, expert or not.
Attorney Fees and Costs under Former RCW 4.24.510
On cross-appeal, Urbiha contends that under Washington's anti-SLAPP statute, she is entitled to her attorney fees and costs before the trial court and on appeal.
The statute, first passed in 1989, was amended in 1999 and 2002. The 1999 version of the statute, in effect when the Hoechlins filed their claim, states:
In 2002, the statute was amended to remove the affirmative good faith requirement. Laws of 2002, ch. 232, sec. 2. The statute now provides, 'Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith.' RCW 4.24.510 (emphasis added).
See Harris v. City of Seattle, 302 F. Supp. 2d 1200, 1202 n. 1 (W.D. Wash. 2004).
A person who in good faith communicates a complaint or information to any 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 shall be entitled to recover costs and reasonable attorneys' fees incurred in establishing the defense.
Former RCW 4.24.510 (Laws of 1999, ch. 54, sec. 1). The statute was enacted recognizing the fact that information provided by citizens concerning potential wrongdoing is vital to effective law enforcement and that the threat of a civil action for damages could be a deterrent to citizens who wish to report such information to law enforcement agencies. Dang v. Ehredt, 95 Wn. App. 670, 681, 977 P.2d 29 (citing RCW 4.24.500), review denied, 139 Wn.2d 1012 (1999). Former RCW 4.24.510 supplies immunity in more than just defamation claims.
We affirm the trial court's determination that, as a witness in a criminal case, Urbiha is immune from suit. But we also hold that former RCW 4.24.510 applies to witnesses who act in good faith. Thus we remand for a trial to determine whether Urbiha was performing her duties in good faith and, as a result, is entitled to attorney fees in defending against the Hoechlins' suit.
Applicability to Expert Witnesses
Statutory interpretation is a question of law subject to de novo review. State v. Beaver, 148 Wn.2d 338, 344, 60 P.3d 586 (2002); Berger v. Sonneland, 144 Wn.2d 91, 104-05, 26 P.3d 257 (2001). We interpret the statute 'to best advance the legislative purpose,' State v. C.J., 148 Wn.2d 672, 685, 63 P.3d 765 (2003), and begin our analysis with the plain meaning interpretation of the relevant statutory language in light of the underlying legislative purposes. Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003). We interpret the statute in its entirety, reviewing all provisions of the statute in relation to each other. In re Detention of Williams, 147 Wn.2d 476, 490, 55 P.3d 597 (2002); see also Wagg v. Estate of Dunham, 146 Wn.2d 63, 73, 42 P.3d 968 (2002). And we strictly construe a statutory grant of immunity. Plano v. City of Renton, 103 Wn. App. 910, 911-12, 14 P.3d 871 (2000) (citing Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437-38, 824 P.2d 541, review denied, 119 Wn.2d 1011 (1992)). But where a statute is not ambiguous, we do not construe it. City of Seattle v. Ballsmider, 71 Wn. App. 159, 163 n. 3, 856 P.2d 1113 (1993).
The anti-SLAPP statute applies to a 'person who in good faith communicates a complaint or information to any agency of federal, state, or local government.' Former RCW 4.24.510. While the Hoechlins argue that the statute cannot apply to Urbiha because the legislature did not intend to supply immunity to expert witnesses, the plain language of the statute includes no such reservation or exclusion. Although arguably Urbiha was acting as an expert witness, not a citizen informant, she communicated information to the Pacific County prosecutor regarding a criminal matter. The statute entitles Urbiha to recover her costs and reasonable attorney fees if she acted in good faith.
A federal case found that the same version of the statute granted immunity to a firm that was hired to investigate civil rights violations by a city for statements issued in the report the firm prepared. Harris, 302 F. Supp. 2d at 1202.
Good Faith
Former RCW 4.24.510 states that '[a] person prevailing upon the defense provided for in this section shall be entitled to recover costs and reasonable attorneys' fees incurred in establishing the defense.' But in order to recover costs and reasonable attorney fees incurred in establishing this immunity, Urbiha must have acted in good faith. Good faith flows from a 'mind indicating honesty and lawfulness of purpose.' Whaley v. Dep't of Soc. Health Serv., 90 Wn. App. 658, 669, 956 P.2d 1100 (1998) (citing Tank v. State Farm Fire Cas. Co., 105 Wn.2d 381, 385, 715 P.2d 1133 (1986)); Yuille v. Dep't of Social Health Serv., 111 Wn. App. 527, 533, 45 P.3d 1107 (2002), review denied, 148 Wn.2d 1003 (2003). Because good faith is wholly a question of fact, it is not generally a proper subject for summary judgment. Only when reasonable persons could reach but one conclusion is summary judgment appropriate. Whaley, 90 Wn. App. at 668.
Anti-SLAPP statute immunity essentially codifies the common law qualified privilege for communications to a public officer who is authorized or privileged to act on the matter communicated. See Gilman v. MacDonald, 74 Wn. App. 733, 738, 875 P.2d 697, review denied, 125 Wn.2d 1010 (1994) (citing Getchell v. Auto Bar Sys. Northwest, Inc., 73 Wn.2d 831, 836, 440 P.2d 843 (1968)). Such a qualified privilege protects the maker from liability for an otherwise defamatory statement unless it can be shown that the maker abused the privilege. Gilman, 74 Wn. App. at 738 (citing Bender v. Seattle, 99 Wn.2d 582, 600, 664 P.2d 492 (1983)). The burden of establishing abuse of a qualified privilege rests on the defamed party (here, Bobbi Hoechlin), who must show by clear and convincing evidence the declarant's knowledge of the falsity, or his or her reckless disregard as to the falsity of the statement. Gilman, 74 Wn. App. at 738 (citing Lillig v. Becton-Dickinson, 105 Wn.2d 653, 658, 717 P.2d 1371 (1986); Bender, 99 Wn.2d at 601)). The Hoechlins had the ultimate burden of proving Urbiha's lack of good faith. Failure to investigate or act with reasonable grounds for belief in the truth of a statement, without more, is insufficient to establish abuse of a qualified privilege because there must be some evidence of reckless disregard as to the falsity of a statement. See Gilman, 74 Wn. App. at 739. But here, the Hoechlins did present some evidence that Urbiha acted with reckless disregard for Bobbi Hoechlin's rights by purposely submitting, at the prosecutor's request, writing samples not reviewed by the State crime lab. Accordingly, they presented sufficient evidence to preclude judgment as a matter of law on the matter of 'good faith' under former RCW 4.24.510. But we cannot conclude on this record that all reasonable persons would find that Urbiha acted with reckless disregard for Bobbi Hoechlin's rights by deliberately selecting those writing samples. An issue of fact exists regarding Urbiha's 'reckless disregard' for Bobbi Hoechlin's rights. See Gilman, 74 Wn. App. at 739.
For example, in a claim for malicious prosecution at the common law 'malice [may] be shown . . . by proving that the prosecution complained of was undertaken from improper or wrongful motives or in reckless disregard of the rights of the plaintiff.' Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 502, 125 P.2d 681 (1942) (emphasis added).
Indeed, the record before us shows that Smith sent a letter requesting that the Neighbors have Urbiha provide a selection of samples not reviewed by the State crime lab for use in charging Bobbi Hoechlin and that Urbiha sent a letter to Smith enclosing such samples.
On this record, we cannot say as a matter of law that Urbiha acted in good faith, as required by the statute. Thus, remand for resolution of the matter is necessary. If the trier of fact determines that Urbiha acted in good faith, she is entitled to an award of reasonable attorney fees under former RCW 4.24.510.
Attorney Fees On Appeal
Urbiha also seeks attorney fees on appeal under RAP 14.2 and former RCW 4.24.510.
RAP 14.2 states in part:
A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. If there is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party.
Because we remand for further proceedings, namely a trial on the matter of Urbiha's good faith, Urbiha has not substantially prevailed. A ruling on attorney fees and costs is premature.
We affirm the trial court's determination that, as a witness, Urbiha has immunity from the Hoechlins' suit. But we reverse the trial court's judgment that former RCW 4.24.510 cannot apply to Urbiha and we remand for trial on the matter of whether Urbiha acted in good faith when she opined that Bobbi Hoechlin forged the product orders she examined.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and BRIDGEWATER, J., Concur.