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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
65927-8 |
| Title of Case: |
Paulette Weston, Appellant V. Bernard J. Harrigan Et Al., Respondents |
| File Date: |
04/16/2012 |
SOURCE OF APPEAL
----------------
| Appeal from King County Superior Court |
| Docket No: | 09-2-13951-2 |
| Judgment or order under review |
| Date filed: | 04/16/2010 |
| Judge signing: | Honorable Richard D Eadie |
JUDGES
------
| Authored by | J. Robert Leach |
| Concurring: | Anne Ellington |
| C. Kenneth Grosse |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | John Edward Woodbery |
| | Woodbery Law Group PS |
| | 800 Bellevue Way Ne Ste 400 |
| | Bellevue, WA, 98004-4273 |
Counsel for Respondent(s) |
| | Kathryn Marie Battuello |
| | Attorney General of Washington, Torts Di |
| | 800 5th Ave Ste 2000 |
| | Seattle, WA, 98104-3188 |
|
| | Catherine Hendricks |
| | WA Attorney General |
| | 800 5th Ave Ste 2000 |
| | Seattle, WA, 98104-3188 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PAULETTE WESTON, ) NO. 65927-8-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
BERNARD JOSEPH HARRIGAN, a )
single person, and CARLOS D. )
BENAVIDEZ and KINDRA )
BENAVIDEZ, husband and wife )
and their marital community, and )
WASHINGTON LIQUOR CONTROL )
BOARD, a Division of the State of )
Washington, )
)
Respondents. ) FILED: April 16, 2012
)
Leach, C.J. -- Albertsons fired Paulette Weston after she sold alcohol to
an underage person during a compliance check conducted by the Washington
State Liquor Control Board (Liquor Control Board). Weston appeals a trial
court's summary dismissal of her tortious interference claim against the Liquor
Control Board. She contends the trial court erred by (1) concluding that she
failed to establish a prima facie case of tortious interference, (2) determining that
the dismissal of criminal charges against her did not operate as res judicata to
bar the Liquor Control Board's defenses, and (3) denying her motion to compel
production of the driver's license used in the purchase. Weston has not
produced any evidence of intent, a necessary element of her tortious
NO. 65927-8-I / 2
interference claim. Because she cannot establish a prima facie case of tortious
interference, we do not reach the issue of whether the doctrine of res judicata
barred the Liquor Control Board's defenses. Finally, Weston fails to
demonstrate how production of the driver's license would have enabled her to
prove her case. We affirm.
FACTS
On September 29, 2005, Liquor Control Board agents conducted ten
routine compliance checks, including one at the Albertsons grocery store where
Paulette Weston worked as a cashier. Around 7:20 p.m., L.C., an underage
investigative aide, entered Albertsons, chose a bottle of wine to purchase, and
randomly selected Weston's checkout lane.1 L.C. carried her vertically formatted
Washington State driver's license, which showed L.C.'s birth date as December
1985.2 Liquor Control Board agents Bernard Harrigan and Carlos Benavidez
supervised L.C.'s actions. During the transaction between L.C. and Weston,
Harrigan stood behind L.C. in line, and Benavidez positioned himself on the
other side of Weston's register in an unoccupied checkout lane.
1 The Liquor Control Board monitors whether licensed businesses are
following liquor laws by using underage operatives who attempt to purchase
alcohol during compliance checks.
2 Washington State issues vertically formatted licenses to individuals
under the age of 21. Dodge City Saloon, Inc. v. Wash. State Liquor Control Bd.,
No. 41454-6-II, 2012 WL 621588, at *1 n.2 (Wash. Ct. App. Feb. 28, 2012).
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NO. 65927-8-I / 3
When Weston scanned the bottle of wine for purchase, the register
prompted her to verify that L.C. was at least 21 years old. When she asked L.C.
for identification, L.C. gave Weston her driver's license. Instead of L.C.'s birth
date, Weston mistakenly keyed the license's expiration date, 12-05-06, into the
computer. Because the computer read the date as December 5, 1906, it
accepted the sale. L.C. paid for the wine with a $20 bill and received her
change. She handed the wine and the receipt to the agents and left the store.
The receipt showed a transaction time of 7:21 p.m.
Harrigan displayed his badge to Weston and informed her that she had
sold alcohol to a minor. Weston insisted the register had cleared the sale and
told Harrigan, "I could be fired for this." Harrigan replied, "No . . . . You'll get a
warning." Dawn Sedowsky, Weston's supervisor, approached Weston's check
stand. Harrigan explained to Sedowsky what had occurred and informed
Weston and Sedowsky that he would be filing a criminal citation against Weston.
Harrigan then left the store to join Benavidez and L.C. in the parking lot.
Harrigan entered a departure time of 7:45 p.m. into his log.
That evening, Weston wrote a statement admitting that she had sold wine
to L.C. but asserting that she had done so unintentionally. She noted, "There
was a man pressuring [L.C.] and me next in line the whole time." Weston also
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NO. 65927-8-I / 4
claimed that L.C. asked her for a pack of cigarettes.3 According to Weston,
Harrigan and Benavidez engaged in disruptive behavior that scared and
distracted her during the transaction.4 Later, Weston disclaimed her admission
that she entered the wrong birth date, stating that she had never entered an
incorrect date in her 23 years as an Albertsons cashier.
Albertsons placed Weston on temporary leave pending investigation. As
part of its internal investigation, Albertsons reviewed Weston's statement, her
personnel file, and the electronic journal report for the transaction.5 The
electronic journal report confirmed that Weston had sold a bottle of wine on
September 29, 2005, at 7:21 p.m. to an individual with a birth date of 12-05-06.
Because this was Weston's second violation of Albertsons' policy prohibiting the
sale of alcohol and tobacco to minors, Albertsons terminated her employment.6
Weston challenged the termination decision through her union. Shortly
before the arbitration hearing, Albertsons offered to reinstate Weston, but she
3 The receipt does not indicate that Weston sold L.C. a pack of cigarettes.
4 Weston alleged that Harrigan was scruffy and "acting in a hurry and he
was agitated, and I thought that he was a crack-head or a meth-head. He was
picking up magazines and slamming them down, and then he'd move over here
and he'd move over here, then he'd lean up like he was going to talk to me and
then he'd go back . . . . He was leering at me over his glasses."
5 The electronic journal is "the store's electronic copy of the receipts for all
tendered transactions."
6 In 2002, Weston sold tobacco to an underage individual. At Albertsons'
request, she signed a "Last and Final Agreement" and agreed that if she sold to
a minor again, she would lose her job.
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NO. 65927-8-I / 5
declined the offer because it did not include back pay. The arbitrator upheld
Albertsons' decision to terminate Weston's employment.
In February 2006, Weston received a summons to appear in King County
District Court on the charge of furnishing liquor to a minor.7 At her arraignment,
the court dismissed the case upon the State's request. The docket indicates that
the case was dismissed with prejudice.
In 2008, Weston filed a civil rights action against the Liquor Control Board
in the United States District Court for the Western District of Washington. She
alleged that the Liquor Control Board agents violated her procedural and
substantive due process rights under the Fifth and Fourteenth Amendments by
engaging in distracting behavior. She also alleged state law claims for tortious
interference and negligence. The district court granted the Liquor Control
Board's motion for summary judgment, dismissed Weston's federal claim, and
declined supplemental jurisdiction over Weston's state law claims. A three-
judge panel of the Ninth Circuit Court of Appeals affirmed the district court.
Weston then sued Harrigan, Benavidez, and the Liquor Control Board in
superior court, alleging tortious interference with an employment relationship.
Weston claimed that the Liquor Control Board knew she was employed by
Albertsons, which had a no-tolerance policy for the sale of alcohol to minors, and
7 RCW 66.44.270.
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NO. 65927-8-I / 6
that the Liquor Control Board used improper means to conduct the compliance
check. The asserted improper means included failing to adhere to Liquor
Control Board regulations, using an altered driver's license to induce Weston to
enter the wrong birth date, using a false sales receipt to prove the purchase, and
engaging in distracting and harassing behavior. The Liquor Control Board filed
counterclaims for malicious prosecution and maintaining a frivolous action.
Weston moved for partial summary judgment, arguing that the dismissal
of the criminal charge against her operated as res judicata, barring the Liquor
Control Board from asserting a defense to her claim. The trial court denied
Weston's motion. Based on its view that Weston had failed to establish a prima
facie case of tortious interference, the Liquor Control Board moved for summary
judgment. Weston moved to compel the production of L.C.'s driver's license.
The trial court denied Weston's motion to compel and granted the Liquor Control
Board's motion for summary judgment. Weston filed a motion for
reconsideration, which the trial court also denied.
Weston appeals.
STANDARD OF REVIEW
This court reviews summary judgment orders de novo, engaging in the
same inquiry as the trial court.8 Summary judgment is proper if, viewing the facts
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NO. 65927-8-I / 7
and reasonable inferences in the light most favorable to the nonmoving party, no
genuine issues of material fact exist and the moving party is entitled to judgment
as a matter of law.9 A genuine issue of material fact exists if reasonable minds
could differ regarding the facts controlling the outcome of the litigation.10
To avoid summary judgment, the plaintiff must establish a prima facie
case on the essential elements of her claim.11 If the plaintiff fails to make a
sufficient showing of the essential elements, summary judgment for the
defendant is appropriate because "'a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other
facts immaterial.'"12
This court reviews a trial court's rulings on reconsideration and on a
motion to compel discovery for an abuse of discretion.13 An abuse of discretion
occurs when the trial court's decision is manifestly unreasonable or based on
untenable grounds.14
8 Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22
(2003).
9 CR 56(c); Michak, 148 Wn.2d at 794-95.
10 Hulbert v. Port of Everett, 159 Wn. App. 389, 398, 245 P.3d 779, review
denied, 171 Wn.2d 1024, 257 P.3d 662 (2011).
11 Boguch v. Landover Corp., 153 Wn. App. 595, 609, 224 P.3d 795
(2009).
12 Boguch 153 Wn. App. at 609 (quoting Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989)).
13 Drake v. Smersh, 122 Wn. App. 147, 151, 89 P.3d 726 (2004);
Rhinehart v. Seattle Times Co.,51 Wn. App. 561, 574, 754 P.2d 1243 (1988).
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NO. 65927-8-I / 8
ANALYSIS
Weston's Tortious Interference Claim
Weston claims the trial court erred by granting the Liquor Control Board's
summary judgment motion after determining that Weston had not established a
prima facie case of tortious interference. To prove tortious interference with a
contractual relationship, the plaintiff must produce evidence sufficient to support
each of the following five elements: (1) the existence of a valid contractual
relationship, (2) the defendant's knowledge of that relationship, (3) an intentional
interference inducing or causing a breach or termination of the relationship, (4)
improper purpose or the use of improper means, and (5) resultant damage.15
Weston contends that genuine issues of material fact remain regarding
the third and fourth factors -- whether the Liquor Control Board's interference was
intentional and whether the Liquor Control Board used improper means.
Because Weston produced no evidence indicating that the agents intended to
interfere with her employment contract, we do not discuss whether the agents
used improper means in conducting their investigation.
Interference is intentional where the actor actually desired to bring about
14 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
15 Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930
P.2d 288 (1997).
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NO. 65927-8-I / 9
the interference or the actor knew that interference is certain or substantially
certain to occur as a result of his or her actions.16 Contrary to Weston's
assertion, no evidence in the record indicates that the agents intentionally
interfered with her employment contract. The agents did not know about
Albertsons no-tolerance policy before the sale.17 When Weston told Harrigan
that she could be fired for selling alcohol to a minor, Harrigan insisted that she
would receive only a warning. Additionally, it is undisputed that L.C. selected
Weston's check stand at random. Weston produced no evidence that the
agents were aware of Weston's agreement with Albertsons that any future
violations by Weston would result in immediate termination. In addition, she
presented no evidence that the agents desired to bring about Weston's
termination or that the agents knew her termination was substantially likely to
occur. Weston therefore failed to raise a genuine issue of material fact
regarding intent.
Weston contends that a plaintiff can establish intentional interference by
16 Restatement (Second) of Torts § 766B cmt. d (1979); see also Newton
Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151,
158, 52 P.3d 30 (2002) (quoting Restatement (Second) of Torts § 766B cmt. d).
17 Weston claims that the Liquor Control Board agents knew Albertsons
had a no-tolerance policy regarding the sale of alcohol to minors. But the page
in the record that Weston cites does not establish that the agents had this
knowledge when they decided to perform a compliance check at Albertsons.
Rather, it establishes that the agents knew about the no-tolerance policy after
Weston made the sale.
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NO. 65927-8-I / 10
proving improper purpose or means. Because intent is a distinct element of
tortious interference, we disagree. Before 1989, a plaintiff needed to prove only
four elements to prevail on a tortious interference claim: (1) a valid contract, (2)
knowledge, (3) intentional interference causing breach, and (4) damages.18 In
Pleas v. City of Seattle,19 our Supreme Court added a fifth element -- that the
defendant interfered either for an improper purpose or by improper
means -- drawn from the Restatement (Second) of Torts. Decisions after Pleas
demonstrate that intentional interference remains an element separate and
distinct from the improper purpose or means element.20 Further, the pattern jury
instruction for tortious interference with a contract describes the same five
elements.21 Finally, requiring a plaintiff to prove intentional interference is
consistent with other jurisdictions that have looked to the Restatement (Second)
of Torts for guidance.22 Based on these considerations, we do not find Weston's
18 Pleas v. City of Seattle, 112 Wn.2d 794, 800, 774 P.2d 1158 (1989)
(citing Calbom v. Knudtzon, 65 Wn.2d 157, 162-63, 396 P.2d 148 (1964)).
19 112 Wn.2d 794, 803-05, 774 P.2d 1158 (1989).
20 Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120, 137, 839
P.2d 314 (1992); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 28, 829 P.2d 765
(1992); Leingang, 131 Wn.2d at 157; Pac. Nw. Shooting Park Ass'n v. City of
Sequim, 158 Wn.2d 342, 351, 144 P.3d 276 (2006).
21 6A Washington Practice: Washington Pattern Jury Instructions: Civil
352.01, at 419-20 (5th ed. 2005).
22 See, e.g., Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 19
(1st Cir. 1979) ("[I]ntent to cause harm in the sense that defendant must evince
'malice' toward plaintiff is not required, merely that defendant must act with the
purpose of causing the specific harm cited, viz., interfering with the known
contract."); Straube v. Larson, 287 Or. 357, 360-61, 600 P.2d 371 (1979) ("If the
person whose actions interfere does not have the intent to cause the result, his
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NO. 65927-8-I / 11
argument persuasive.
Because Weston cannot demonstrate intent, she cannot establish a prima
facie case of intentional interference. As a result, her claim fails. The trial court
did not err by granting the Liquor Control Board's summary judgment motion.
For these same reasons, the trial court did not abuse its discretion by denying
Weston's motion for reconsideration.
Because we resolve this issue in the Liquor Control Board's favor, we
need not decide whether the doctrine of res judicata precludes the Liquor
Control Board from asserting a defense to Weston's tortious interference claim.
Weston's Motion To Compel
Weston claims the trial court erred by denying her motion to compel
production of the driver's license L.C. used during the compliance check. A trial
court has broad discretion under CR 26 to manage the discovery process and, if
necessary, limit the scope of discovery.23 The trial court denied Weston's
motion to compel as "essentially moot" after granting the Liquor Control Board's
motion for summary judgment. Weston claims the trial court abused its
conduct does not subject him to liability. However, even if he does not act for the
purpose of interfering or does not desire it but knows that the interference is
substantially certain to occur from his action and is a necessary consequence
thereof, his interference is intentional as contemplated by the rule.").
23 CR 26(b), (c); Nakata v. Blue Bird, Inc., 146 Wn. App. 267, 277, 191
P.3d 900 (2008).
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NO. 65927-8-I / 12
discretion. At the time the parties moved for summary judgment, however, the
record already contained a photocopy of L.C.'s license. Weston does not
explain why this photocopy was insufficient to allow her to argue her case.
Because Weston fails to explain how the trial court's decision prejudiced her,
she fails to demonstrate why she is entitled to relief.24
Attorney Fees
The Liquor Control Board appears to contend that Weston's appeal was
frivolous and requests an award of attorney fees and costs on appeal. Although
the Liquor Control Board does not cite the applicable rule, RAP 18.9 gives this
court discretion to award attorney fees to a party responding to a frivolous
appeal.25 "An appeal is frivolous if, considering the entire record, the court is
convinced that the appeal presents no debatable issues upon which reasonable
24 In her assignments of error regarding her motion to compel discovery,
Weston challenges more than the trial court's denial of her motion to compel
production of L.C.'s license. But Weston provides no argument or analysis for
these assignments of error in her brief. This court does not consider
assignments of error not supported by argument or reference to the record. RAP
10.3(a)(6).
25 Johnson v. Mermis, 91 Wn. App. 127, 137, 955 P.2d 826 (1998). RAP
18.9(a) reads in pertinent part,
The appellate court on its own initiative or on motion of a party may
order a party or counsel, or a court reporter or other authorized
person preparing a verbatim report of proceedings, who uses these
rules for the purpose of delay, files a frivolous appeal, or fails to
comply with these rules to pay terms or compensatory damages to
any other party who has been harmed by the delay or the failure to
comply or to pay sanctions to the court.
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NO. 65927-8-I / 13
minds might differ and that it is so devoid of merit that there is no possibility of
reversal."26 We resolve doubts in favor of the appellant.27 Resolving all doubts
in Weston's favor, we conclude that sanctions or fees are not appropriate. We
decline to exercise our discretion to award fees in this case and deny the Liquor
Control Board's request.
CONCLUSION
Because Weston failed to establish a prima facie case for tortious
interference with her employment relationship, the trial court did not err by
granting the Liquor Control Board's summary judgment motion. Because
Weston cannot establish a prima facie case of tortious interference, we do not
reach the issue of whether the doctrine of res judicata barred the Liquor Control
Board's defenses. Finally, the trial court did not abuse its discretion by denying
Weston's motion to compel. For these reasons, we affirm.
WE CONCUR:
26 Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007).
27 Lutz Tile, 136 Wn. App. at 906.
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NO. 65927-8-I / 14
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