Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NORMAN WHERRETT, an individual; and
ANABELLA WHERRETT, an individual                 )

       Appellants and Cross                      )
Respondents,
                                                 )
              v.
                                                 )
LAVONNE EKREN, an individual; MARY 
WHITE, an individual; and DAVID WHITE,           )
an individual, 
                                                 )
       Respondents and Cross
Appellants,                                      )

MARLIS CROSSON,                                  )

       Respondent,                               )

ADRIENNE ZUCKERBERG, and                         )
individual; and KATHY ADMIRE, an 
individual,                                      )

       Defendants.                               )

                                                 )

                                                 )

                                                 )

                                                 )

                                                 )

                                                 )

                                                 )

                                                 )

                                                 )

                                                 ) 

No. 65914-6-I/2

                                                            No. 65914-6-I
                                                            (consolidated with 
                                                            No. 66110-8-I)

                                                            DIVISION ONE

                                                            UNPUBLISHED OPINION

                                                            FILED: February 21, 2012

                                                  )

       Appelwick, J.  --  Tensions arose among neighbors in a Redmond cul-de-sac 

after the Wherretts began parking numerous vehicles and buses on their property and 

on the street.  Tensions heightened as the neighbors petitioned the city to change 

parking ordinances.  Eventually, the neighbors obtained antiharassment orders against 

Norman Wherrett and made repeated complaints to the Redmond Police Department 

and the city's code compliance office.  The Wherretts sued the neighbors for 

harassment.  The trial court granted summary judgment against the Wherretts, 

determining that the neighbors had immunity for their communications with government 

entities under state anti-SLAPP statutes.  However, the court denied statutory damages 

against the Wherretts.  We affirm the order of summary judgment                 and award of 

                                                   2 

No. 65914-6-I/3

attorneys' fees, but remand for further findings relative to bad faith that are necessary 

to resolve the issue of statutory damages.

                                            FACTS
       In 2004, Norman and Anabella Wherrett moved into a new home in Redmond.  

Mary White, David White, LaVonne Ekren, and Marlis Crosson (collectively, the 

neighbors) all live in the same cul-de-sac as the Wherretts.   David White is Mary 

White's adult son and caretaker.

       In 2007 or 2008, Norman Wherrett began to collect vehicles and buses.  He 

parked them on the Wherretts' property and on the street.  The neighbors became 

frustrated  about the eyesore, and started petitioning for changes to city parking 

ordinances.  

       In 2008, Norman Wherrett accused David White of damaging vehicles on the 

Wherretts' property.  Wherrett then sought an antiharassment order.  After the district 

court denied the request, David White succeeded in obtaining a temporary 

antiharassment order against Wherrett on August 18, 2008.  White obtained a 1 year 

antiharassment order on September 10, 2008.  On May 5, 2009, Crosson obtained a 

temporary  antiharassment       order.  Crosson and Ekren each obtained 90                 year 

antiharassment orders on July 28.  

       Both before and after they obtained antiharassment orders, the neighbors made 

numerous complaints to the Redmond Police Department (RPD) and the city code 

compliance office.  Most of their early communications are complaints to the RPD about 

the Wherretts' vehicles.     Other calls to the RPD allege that Norman Wherrett was 

                                                   3 

No. 65914-6-I/4

tampering with mailboxes, that he was at home even though he had told the court he 

would be out of town, and that Norman Wherrett was violating an antiharassment order.  

The neighbors also wrote e-mails to each other, to a code compliance officer and an 

RPD officer who were familiar with the ongoing situation, and to the organizer of a 

volunteer emergency response team that Wherrett was training to become a part of.  

       In addition to their communications, the neighbors have monitored the 

Wherretts' activities, including keeping track of where they park their vehicles.  They 

have taken pictures of the Wherretts' yard and vehicles.  In a call to the RPD, David 

White said he had videotape of Norman Wherrett tampering with mailboxes.   Also, 

Ekren purposely walks on the sidewalk in front of the Wherretts' home, even though 

she has an antiharassment order against Norman Wherrett and she could cross the 

street and walk on the other side.

       The Wherretts sued Ekren, Crosson, and the Whites for civil harassment, 

malicious harassment, intentional infliction of emotional distress, and negligent 

infliction of emotional distress.  They later agreed to dismiss the malicious harassment 

claim.  

       The trial court granted summary judgment in favor of Ekren, Crosson, and the 

Whites.  It found that the defendants were immune pursuant to RCW                     4.24.510, 

Washington's anti-strategic lawsuits against public participation (anti-SLAPP) statute.  

It awarded attorney fees, but denied  their requests for statutory damages.  The 

Wherretts appeal the order granting summary judgment.  Ekren and the Whites cross-

appeal the denial of statutory damages.

                                        DISCUSSION

                                                   4 

No. 65914-6-I/5

   I.  The anti-SLAPP Statute Does Not Contain a Good Faith Requirement

       RCW 4.24.510 immunizes persons who communicate a complaint or information 

to a branch or agency of federal, state, or local government that is reasonably of 

concern to the agency.  It was enacted in response to legislative concern that lawsuits

were being used to intimidate citizens from exercising their rights under the First 

Amendment and article I, section 5 of the Washington State Constitution to report 

potential wrongdoing to government agencies.  Segaline v. Dep't of Labor & Indus., 169 

Wn.2d 467, 473, 238 P.3d 1107 (2010).

       The stated legislative purpose of RCW 4.24.500 through 4.24.520 is to protect 

individuals who make good-faith reports to appropriate governmental bodies.  RCW 

4.24.500.  Former      RCW     4.24.510  (1989)  expressly required that the protected 

communications be made in good faith.  But, the legislature eliminated the good faith 

language in a 2002 amendment.  Laws of 202, ch. 232, § 2.  And, it modified a 

provision that  awards $10,000 in statutory damages to a successful defendant, as 

applicable "unless the court finds that the complaint or information was communicated 
in bad faith.1  Id.

       1 RCW 4.24.510 provides:

       A person who communicates a complaint or information to any branch or 
       agency of federal, state, or local government, or to any self-regulatory 
       organization that regulates persons involved in the securities or futures 
       business and that has been delegated authority by a federal, state, or 
       local government agency and is subject to oversight by the delegating 
       agency, 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 

                                                   5 

No. 65914-6-I/6

       The Wherretts argue that the statute still requires that the communications be 

made in good faith.  They claim that the stated purpose in RCW 4.24.500 should carry 

through to RCW       4.24.510.  Therefore, they assert that there are issues of fact 

regarding the neighbors' conduct and whether their communications were made in 

good faith.  

       First, statutory policy statements do not give rise to enforceable rights and 

duties.  Bailey v. State, 147 Wn. App. 251, 263, 191 P.3d 1285 (2008).  Second, the 

plain language of the current statute only requires the court to consider bad faith when 

awarding statutory damages.  Bad faith is a defense that the plaintiff who fails on the 

underlying merits must establish to defeat an award of statutory damages.  Thus, good 

faith is not a defense which the defendant must prove to defeat the plaintiff's claims.

       Next, the Wherretts argue that, if the statute does not have a good faith element, 

then it is unconstitutional because it is overbroad and restricts their right of access to 

the courts.     When the constitutionality of a statute is challenged, the statute is 

presumed to be constitutional, and the burden is on the party challenging the statute to 

prove its unconstitutionality beyond a reasonable doubt.  Tunstall v. Bergeson, 141 

Wn.2d 201, 220, 5 P.3d 691 (2000).

       The 2002 amendments were made to reflect that "the United States Constitution 

protects advocacy to government, regardless of content or motive.  Laws of 2002, ch. 

232, § 1.  Indeed, the United States Supreme Court has held that petitions to the 

government are protected regardless of intent or purpose, so long as the 

       dollars.  Statutory damages may be denied if the court finds that the 
       complaint or information was communicated in bad faith.

                                                   6 

No. 65914-6-I/7

communications are intended to influence government decisions.  See, e.g., City of 

Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379, 111 S. Ct. 1344, 113 L. Ed.

2d 382 (1991); Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 

U.S. 49, 49-60, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993).  The Wherretts have not 

met their burden to establish that the anti-SLAPP statute is unconstitutional beyond a 

reasonable doubt.

   II. Summary Judgment

       We review a summary judgment order de novo.  Hadley v. Maxwell, 144 Wn.2d 

306, 310-11, 27 P.3d 600 (2001).  Summary judgment is appropriate if there is no 

genuine issue as to any material fact and the moving party is entitled to judgment as a 

matter of law.  CR 56(c).  The evidence is construed in the light most favorable to the 

nonmoving party.  Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).  

We review the order based solely on the record before the trial court at the time of the 

motion for summary judgment.  RAP 9.12; Wash. Fed'n of State Emps., Council 28 v. 

Office of Fin. Mgmt., 121 Wn.2d 152, 163, 849 P.2d 1201 (1993).            But, the order may 

be affirmed on any grounds raised below and properly before this court.  Tropiano v. 

City of Tacoma, 105 Wn.2d 873, 876-77, 718 P.2d 801 (1986).

       The Wherretts claim that, even if the anti-SLAPP statute does not require that 

communications be made in good faith, their claims can still survive.  They argue that

there is no immunity for the neighbors' conduct and communications with 

nongovernment parties, and that  some communications were not of reasonable 

concern to the applicable agency.  

       A.     Civil Harassment

                                                   7 

No. 65914-6-I/8

       The Wherretts acknowledge that they are statutorily precluded from recovering 

damages for civil harassment under chapter 10.14 RCW.  Nevertheless, they contend 

their claim can survive because they requested an antiharassment order, and the anti-

SLAPP statute does not preclude equitable remedies, such as an antiharassment

order.  

       First, the Wherretts' claim that they requested an antiharassment               order is 

dubious.  In their complaint, the Wherretts specifically requested monetary damages

and added that they "will also seek leave of this court for appropriate orders to restrain 

and/or prohibit further harassing conduct."  They did not request an antiharassment

order.

       Second, they rely on Emmerson v. Weilep, in which the court held that RCW 

4.24.510 does not apply to a petition for a temporary protection order, because it is not 

a civil action for damages.  126 Wn. App. 930, 937,  110 P.3d 214 (2005).  Their 

reliance ignores that this case is a civil action for damages.  The Wherretts' civil 

harassment claim necessarily fails.  They remain free to separately petition for 

antiharassment orders against the neighbors.

       B.     Negligent Infliction of Emotional Distress

       To succeed on       their negligent infliction of emotional distress claim, the 

Wherretts must prove (1) duty, (2) breach of that duty, (3) proximate cause, (4) damage 

or injury, and (5) objective symptomatology that is susceptible to medical diagnosis and 

proven by medical evidence.  Hunsley v. Giard, 87 Wn.2d 424, 434-36, 553 P.2d 1096 

(1976); Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424 (1998).

       The Wherretts' claim fails as a matter of law because they have not provided 

                                                   8 

No. 65914-6-I/9

any evidence, or even allegations, of objective symptomatology that would allow their 

case to go forward.  The sole basis for their claim is a portion of Norman Wherrett's 

declaration in which he says that his family has seen a psychiatrist "for stress from 

these incidents"    and that their young daughter has exhibited inappropriate and 

aggressive behavior.  That claim is insufficient to establish objective symptomology.  

The neighbors were entitled to summary judgment.

       C. Intentional Infliction of Emotional Distress

       The Wherretts'  intentional infliction of emotional distress claim requires (1) 

extreme and outrageous conduct, (2) intentional or reckless infliction of emotional 

distress, and (3) resulting in actual severe emotional distress.  Snyder v. Med. Serv. 

Corp. of E. Wash., 98 Wn. App. 315, 321, 988 P.2d 1023 (1999), aff'd, 145 Wn.2d 233, 

35 P.2 407 (2000).  If reasonable minds could not differ in determining that the conduct 

is not extreme and outrageous, then summary judgment is appropriate.  Id. at 322.  The 

Wherretts argue that their claim should survive based on  the neighbors' conduct, 

communications      between the neighbors and                nongovernment parties, and 

communications that were not reasonably of concern to an agency.  We hold that 

summary judgment was proper.

           1. Ekren

       Ekren called the RPD two times.  On June 21, 2008, she reported that Norman 

Wherrett threatened her with a lien, and requested officer contact.  On May 16, 2009, 

Ekren alleged that she walked by Norman Wherrett, who was outside washing his car, 

and he made disparaging comments and pig calls.  In the context of the ongoing 

altercations, and the RPD's involvement, these calls were of reasonable concern to the 

                                                   9 

No. 65914-6-I/10

agency.

       Ekren also sent e-mails to police officers and city officials.  She wrote to a police 

officer who was aware of the ongoing situation that Wherrett growled at her that 

morning.  She wrote to a code compliance officer that the Wherretts had machinery on 

their property, and it looked like they were building a second driveway.  She wrote to a 

police officer and a code compliance officer that Norman Wherrett was harassing 

service people, and specifically that he had approached a tow truck driver in the cul-de-

sac.  As it turns out, not all of her allegations were true.  But, given the ongoing 

altercations with Norman Wherrett          and the continuing       dialogue about parking 

ordinances, her communications were of reasonable concern to the RPD and the code 

compliance officer.

       In May 2009, Norman Wherrett was training to become a member of the 

Community Emergency Resource Team (CERT).  Ekren e-mailed the CERT volunteer 

coordinator and contact person.  She expressed concern that Norman Wherrett would 

believe he acquired new rights by being part of the team, asked if the program 

conducted background checks, and relayed that she had "heard that records exist in 

more than one court in King County."  The Wherretts' argument that there is no 

immunity for that e-mail presupposes, without argument or explanation, that there is no 

immunity for communications made to a volunteer acting on behalf of the local 

government.  Regardless, the e-mail does not evidence extreme and outrageous 

conduct.  Ekren merely expressed her concern about Norman Wherrett's participation 

in the program, and relayed a piece of gossip about his criminal background.

       Ekren also wrote e-mails to other neighbors.  In one, neighbor Kathy Admire told 

                                                  10 

No. 65914-6-I/11

Ekren that the first strategy of war is to divide and conquer, and that the Wherretts had 

won because the neighbors were beginning to disagree about how far to push them.  In 

another, Ekren relayed to another neighbor that Admire  had seen someone looking 

under the car covers on the Wherretts' property and speculated that perhaps they were 

now perpetrating insurance fraud.  At best, those e-mails provide marginal evidence 

about the neighbors' motivations and tactics.  But, that purpose is immaterial.  The anti-

SLAPP statute does not require good faith.      And, those e-mails were not communicated 

to Wherrett.  They were obtained in discovery.  They could not have formed the 

predicate of the complaint.

       Further, Ekren's conduct was not extreme and outrageous.  The Wherretts argue 

that Ekren walked on their side of the street, when she could have easily walked on the 

other side of the street.  Although it would have been prudent to cross the street, 

walking on a public sidewalk does not entitle the Wherretts to maintain a lawsuit 

against her.  The Wherretts also argue that the neighbors kept them under surveillance 

by taking pictures of the Wherretts' vehicles and yard, and possibly making a video 

tape of Norman Wherrett tampering with mailboxes.  The neighbors took the pictures to 

document where the Wherretts were parking their vehicles, which was necessary due 

to their ongoing dialogue with city officials.  All of the photographs and the video tape 

were taken of things clearly in public view.  This conduct cannot be used to maintain 

the Wherretts' claims against any of the neighbors.

           2. Crosson

       Crosson called the RPD six          times.  On June 18, 2007, Wherrett moved 

Crosson's garbage cans.  They had an altercation, and Crosson asked the RPD to 

                                                  11 

No. 65914-6-I/12

come and tell Wherrett to stay off her property.  On October 9, 2007, she called the 

RPD to report that it looked like Wherrett was selling cars on the street.  On February 

18, 2008, she called to report that Wherrett had 17 cars parked on the street and she 

was worried that an aid car or fire truck could not pass through.  On May 19, 2008, she 

called to report that Wherrett was removing mailbox posts.  On May 7, 2009, Wherrett 

approached Crosson's daughter and said good morning.  Crosson called because she 

felt threatened.  On August 2, 2009, Crosson called after she found Wherretts' garbage 

cans in front of her yard, and thought it was a violation of her antiharassment order.  

Crosson had immunity for each of those calls because they were about acts which were 

of reasonable concern to the RPD.

       After Wherrett approached Crosson's daughter, Crosson wrote an e-mail to 

Ekren advising her that they should call the police anytime Wherrett approaches their 

friends or family.  That e-mail is not probative of any relevant issue.

           3. Mary and David White

       The Whites made nine calls to the RPD.  On August 3, 2006, David and Mary 

called to report that Wherrett had been going through the neighborhood mailboxes a 

few weeks earlier.  On May 19, 2008, David called to say he had video of Norman 

Wherrett destroying mailboxes.  On August 18, 2008, David obtained a temporary 

antiharassment order against Wherrett.  On August 23, 2008, David called because 

Wherrett had parked his car in front of the Whites' residence and alleged that Wherrett 

had to stay 100 feet away pursuant to an antiharassment order.  The officer who 

responded noted that the judge had specifically declined David's request to put in a 

distance restriction.  On August 30, 2008, David called to report that Wherrett had told 

                                                  12 

No. 65914-6-I/13

a judge he could not come to court because he was out of town, but that he was 

actually home.  David acknowledged that he only saw Wherrett's car, and did not 

actually see Wherrett.  On August 31, 2008, David called again to say he saw Wherrett 

moving his cars and covering them up.  On September 10, 2008, David obtained a 1-

year antiharassment order.  The order provided that Wherrett could not come within 10 

feet of David.  On September 27, 2008, David called because Wherrett parked a car 

within 10 feet of White's residence, and walked to the middle of the street and took a 

picture of David.  The responding officer determined there was no violation.  On 

January 18, 2009, David called and said he saw Wherrett place a bag on the curb with 

a body in it.  David admitted he got carried away with his thoughts.  On March 21, 2009, 

he called after Wherrett picked up a branch that had fallen from one of Crosson's trees 

and threw it back into Crosson's yard.  He believed Wherrett had violated the 

antiharassment order that was by then in place.  On May 8, 2009, David called because 

Wherrett was talking to the Whites' yard worker.  The responding officer determined 

there was no violation because Wherrett didn't come onto the property, contact David, 

or come within ten feet of David.

       These calls were all of reasonable concern to the RPD.  David White's claim that 

Wherrett placed a body on the sidewalk lacked a basis in fact.  But, good faith is not a 

prerequisite to immunity.  While the lack of basis in fact may go to the issue of statutory 

damages, that call alone is not sufficiently extreme or outrageous to allow the 

Wherretts to survive summary judgment.

   III. Statutory Damages

       A party that defeats a lawsuit because it had immunity pursuant to RCW 

                                                  13 

No. 65914-6-I/14

4.24.510 is entitled to $10,000 in statutory damages.  However, the trial court may 

disallow the damages if it finds that the party acted in bad faith.  RCW 4.24.510.  The 

trial court summarily denied Ekren, Crosson, and the Whites' request for statutory 

damages below without making specific findings that they acted in bad faith.  This was 

error. The Whites and Ekren cross appeal the trial court's denial of their request for 

statutory damages.

       To support its denial of statutory damages, the trial court should have entered 

findings on whether or not any of the actions were taken in bad faith.  As to Mary 

White, it is unclear that she made any communications at all.  The RPD call log 

suggests there was one call made by both Mary and David White.  The rest of the calls 

are from David White alone.  The Whites specifically argue that Mary is entitled to 

statutory damages because she did not make any communications at all.  Mary White 

was granted summary judgment and prevailed.  Unless Wherrett establishes she acted 

in bad faith, she is entitled to statutory damages.

       We remand for the trial court to enter appropriate findings as to the bad faith of 

each of the defendants based on the summary judgment record.

   IV. CR 11 Sanctions

       After winning on summary judgment below, the Whites asked for CR 11 

sanctions.  The trial court denied the request, ruling that the Whites failed to show (1) 

that the action was not well grounded in fact, (2) that it was not warranted by law, or (3) 

that plaintiffs' counsel failed to conduct a reasonable inquiry into the factual or legal 

basis of the action.  

       CR 11 sanctions may be imposed if an attorney brings claims that are baseless 

                                                  14 

No. 65914-6-I/15

and signed without reasonable inquiry.  Bryant v. Joseph Tree Inc., 119 Wn.2d 210, 

217, 829 P.2d 1099 (1992).  A claim is baseless if it is (a) not well-grounded in fact, or 

(b) not warranted by existing law or a good faith argument for the alteration of existing 

law.  Id. The attorney's reasonable inquiry is judged based on the time available to the 

signer, the extent of the attorney's reliance on the client's factual assertions, whether 

the attorney accepted the case from another attorney, the complexity of the factual and 

legal issues, and the need for discovery to develop factual circumstances underlying 

the claim.  Id. at 220-21.  Sanctions should be imposed only when it is patently clear 

that a claim has absolutely no chance of success. In re Cooke, 93 Wn. App. 526, 529, 

969 P.2d 127 (1999).  Sanctions are not appropriate when an action is undertaken as a 

good faith argument for the extension, modification, or reversal of existing law.  Doe v. 

Spokane & Inland Empire Blood Bank, 55 Wn. App. 106, 121-22, 780 P.2d 853 (1989).  

       We use an objective standard to determine whether a reasonable attorney in like 

circumstances could believe his or her actions to be factually and legally justified.  

Madden v. Foley, 83 Wn. App. 385, 390, 922 P.2d 1364 (1996).  We will only overturn 

a trial court's denial of CR 11 sanctions for an abuse of discretion.  Fluke Capital & 

Mgmt. Svs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986).

       The trial court did not abuse its discretion by denying CR 11 sanctions.  

Plaintiffs' counsel argued for a different statutory interpretation of the anti-SLAPP 

statute and its 2002 amendments.  It was not an abuse of discretion to conclude that it 

was a good faith argument.  We will not award sanctions merely because his theory 

failed.

   V. Attorney Fees

                                                  15 

No. 65914-6-I/16

       Ekren, Crosson, and the Whites request reasonable attorney fees for this appeal 

pursuant to RCW 4.24.510 and RAP 18.1.  We award them reasonable fees and 

expenses incurred in defending the Wherretts' appeal.

       We affirm summary judgment dismissing the Wherretts' claims, and remand for 

further findings relative to bad faith that are necessary to resolve the issue of statutory 

damages.

WE CONCUR:

                                                  16