       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




MEGAN ROAKE,
                                                              No. 73337-1-1                                    c/>o

                            Appellant,                                                                         si
                                                              DIVISION ONE
                                                                                                               Or]
        v.
                                                                                                          CO

                                                                                                               c/>mr
MAXWELL DELMAN,                                               PUBLISHED OPINION

                                                                                                          U3
                            Respondent.                       FILED: June 13. 2016
                                                                                                               ~JL "•-




        Spearman, J. — The Sexual Assault Protection Order (SAPO) Act,

chapter 7.90 RCW, establishes a special proceeding for a victim of sexual

assault to obtain a civil protection order. Megan Roake filed a petition for a

protection order under the SAPO Act. The trial court found that Roake failed to

establish reasonable fear and dismissed. Because the proceeding was

procedurally irregular and rested on an erroneous interpretation of the SAPO Act,

we reverse and remand.1

                                                 FACTS

        Roake and Maxwell Delman had a sexual encounter and dispute whether

it was consensual. Several months after the encounter, Roake filed a petition for

a protection order under RCW 7.90. Roake's petition describes the alleged



             Respondent's motion to retitle the caption of this case and to use initials in the opinion
is denied.
No. 73337-1-1/2


sexual assault. The petition also states that Roake only knew Delman based on

the evening of the sexual assault, she did not know what he was capable of, and

she feared encountering him at the University of Washington, where both Roake

and Delman were students. The commissioner set a hearing date and granted

Roake an ex parte temporary protection order valid until the full hearing.

       At the hearing, Roake began to testify to the alleged assault. While she

was testifying, Delman objected that he had not received all of the evidence that

Roake had provided the court. The trial court granted a ten-day continuance.

       Shortly before the next hearing date, Delman filed a motion to dismiss

under CR 12(c). Delman submitted documentary evidence with his motion,

including several declarations testifying to his good character. He did not submit

his own declaration. At the hearing, Delman argued that Roake had failed to

allege or prove that Delman made specific statements or actions giving rise to a

reasonable fear of future dangerous acts, as required by RCW 7.90.020. He

relied on Roake's petition, the declarations she submitted, and the transcript of

the ex parte hearing. He also argued that, because Roake had failed to prove

reasonable fear at the ex parte hearing, the temporary protection order was

invalid.


           Roake disputed that reasonable fear is an element that must be proved at

a full SAPO hearing. She relied on the plain language of RCW 7.90.090(1 )(a),

which states that the court shall issue a protection order if it finds by

preponderance of evidence that nonconsensual sexual conduct occurred. Roake
No. 73337-1-1/3


argued that her petition met the statutory requirements but that, in any case, the

sufficiency of the petition and the validity of the temporary order are moot at the

full hearing. She asserted that if the court decided that reasonable fear was an

issue the parties could present testimony on that issue.

       The trial court considered Roake's petition, the timing of the petition, the

declarations submitted by Roake, and the transcript of the ex parte hearing. The

court granted Delman's motion to dismiss and denied Roake's SAPO petition.

The court did not hear further testimony and denied Roake's request to provide

further briefing. In its order, the trial court stated that Roake "failed to establish

that she had any reasonable fear of future dangerous acts from the Respondent

and therefore the temporary order was invalid." Clerk's Papers (CP) at 98.

       Roake appeals. She argues that the trial court's order denying her petition

rested on an incorrect interpretation of the SAPO Act and was procedurally

irregular.

                                     DISCUSSION


       This case involves interpretation of the SAPO Act, ch. 7.90 RCW. We

review questions of statutory interpretation de novo. Pham v. Corbett, 187 Wn.

App. 816, 831, 351 P.3d 214 (2015) (citing State v. Wentz, 149 Wn.2d 342, 346,

68 P.3d 282 (2003)). In interpreting statutes, our aim is to discern and implement

the Legislature's intent. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516,

526, 243 P.3d 1283 (2010) (citing Arborwood Idaho, LLC v. City of Kennewick,

151 Wn.2d 359, 367, 89 P.3d 217 (2004)). We begin with the plain meaning of
No. 73337-1-1/4


the statute. Id. We may discern the statute's plain meaning from "'the language at

issue, the context of the statute in which that provision is found, related

provisions, and the statutory scheme as a whole.'" id. (quoting State v. Engel,

166 Wn.2d 572, 578, 210 P.3d 1007 (2009)). Where the plain meaning is

unambiguous, we "'will not construe the statute otherwise.'" State v. J.P., 149

Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting State v. Wilson, 125 Wn.2d 212,

217, 883 P.2d 320 (1994)).

       In construing a statute, all the statutory language must be given effect,

"'with no portion rendered meaningless or superfluous.'" J.P., 149 Wn.2d at 450

(quoting Davis v. Dep't of Licensing, 137 Wn. 2d 957, 963, 977 P.2d 554 (1999)).

Just as we cannot delete words, "we 'must not add words where the legislature

has chosen not to include them.'" Lake. 169 Wn.2d at 526 (quoting Rest. Dev..

Inc.. v. Cananwill. Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)). We must

assume that "'the legislature means exactly what it says.'" Davis. 137 Wn.2d at

963-64 (quoting State v. McCraw. 127 Wn.2d 281, 288, 898 P.2d 838 (1995)).

       The SAPO Act establishes a special proceeding for a victim of sexual

assault to obtain a civil protection order. RCW 7.90.005. The Act includes a

legislative declaration recognizing that sexual assault "inflicts humiliation,

degradation, and terror on victims." RCW 7.90.005. The declaration

acknowledges that a victim of sexual assault may not receive relief from the

criminal justice system and may not qualify for protection under other types of

civil orders. RCW 7.90.005. The SAPO Act specifically applies to victims who
No. 73337-1-1/5


have experienced a single incident of nonconsensual sexual conduct. RCW

7.90.030(1)(a).

       To seek a protection order under the SAPO Act, a victim of sexual assault

files a petition with the court. RCW 7.90.040(1). Upon receipt of the petition, the

court must order a full hearing to be held within fourteen days. RCW 7.90.050.

The SAPO Act creates a mechanism for the petitioner to receive an ex parte

temporary protection order valid until the contested hearing. RCW 7.90.110(1),

.120(1). Ifthe petitioner prevails at the hearing, the Act requires the court to grant

a final protection order valid for up to two years. RCW 7.90.120(2). At issue are

the SAPO Act's requirements for a petition, an ex parte temporary protection

order, and a final protection order.

The SAPO Petition


       Chapter 7.90.020 RCW addresses the SAPO petition. The statute states

in relevant part:

              A petition for relief shall allege the existence of
       nonconsensual sexual conduct or nonconsensual sexual
       penetration, and shall be accompanied by an affidavit made
       under oath stating the specific statements or actions made at the
       same time of the sexual assault or subseguentlv thereafter,
       which give rise to a reasonable fear of future dangerous acts, for
       which relief is sought.

RCW 7.90.020(1) (emphasis added). The plain language of the statute indicates

that a SAPO petition must contain two substantive allegations: (1) "the existence

of nonconsensual sexual conduct or nonconsensual sexual penetration" and (2)

a statement of the "specific statements or actions...which give rise to a
No. 73337-1-1/6


reasonable fear of future dangerous acts." The clauses are joined by the word

"and," indicating that both allegations must be included in the petition.

       Roake argues that sexual assault reasonably causes the victim to fear the

offender. She thus asserts that, if a petition alleges that a sexual assault

occurred and states that the petitioner fears the respondent, it satisfies RCW

7.90.020. Friends of the court King County Sexual Assault Resource Center,

Washington Coalition of Sexual Assault Programs, Legal Voice, Northwest

Justice Project, and Pacifica Law Group support this position.

       The amicus briefs point to research indicating that sexual assault shatters

a victim's sense of safety. The vast majority of survivors experience fear and

anxiety after a sexual assault, and many survivors experience post-traumatic

stress disorder. Amici argue that a sexual assault in itself is sufficient to give rise

to a reasonable fear of future dangerous acts by the perpetrator.

       We do not minimize the trauma that sexual assault leaves in its wake or

dispute that a survivor may reasonably fear the person who assaulted her based

on the assault alone. But the plain language of RCW 7.90.020 requires that a

SAPO petition allege that nonconsensual sexual contact occurred and state "the

specific statements or actions made at the same time of the sexual assault or

subsequently thereafter, which give rise to a reasonable fear of future dangerous

acts. . . ." RCW 7.90.020(1). The "specific statements or actions" must be

separate from the sexual assault itself, because the requirement would otherwise

be redundant. We must construe statutes so that "'no portion is rendered
No. 73337-1-1/7


meaningless or superfluous.'" J.P., 149 Wn.2d at 450 (quoting Davis. 137 Wn.2d

at 963).

       The language of RCW 7.90.020 is susceptible to only one reasonable

reading. Where the plain language is unambiguous, we "will not construe the

statute otherwise." JJV, 149 Wn.2d at 450. We conclude that RCW 7.90.020(1)

has two elements. A petition for a protection order under the SAPO Act must

include both (1) an allegation that a sexual assault occurred and (2) the specific

statements or actions, other than the assault itself, that cause the petitioner to

reasonably fear future dangerous acts from the respondent.

       The phrase "future dangerous acts" is not defined in the SAPO Act. Roake

argues that the phrase should be interpreted broadly because any future

interaction with the offender poses a danger to the psychological well-being of a

survivor of sexual assault. Appellant's Brief at 40-41. We need not interpret

"future dangerous acts" here. But we note that even if any future interaction with

the respondent poses a danger, a petitioner must nevertheless allege some

specific statement or action that gives rise to a reasonable fear of that danger.

The Temporary and Final Protection Orders

       We next consider the requirements for a temporary and a final protection

order under the SAPO Act. Chapter 7.90.090 RCW addresses a petitioner's

burden of proof. The statute makes the issuance of a protection order mandatory

if the petitioner establishes that a sexual assault occurred and meets the

requirements of a referenced statute:
No. 73337-1-1/8


          If the court finds by a preponderance of the evidence that the
      petitioner has been a victim of nonconsensual sexual conduct or
      nonconsensual sexual penetration by the respondent, the court
      shall issue a sexual assault protection order; provided that the
      petitioner must also satisfy the requirements of RCW 7.90.110
      for ex parte temporary orders or RCW 7.90.120 for final orders.

RCW 7.90.090(1 )(a).

      Both referenced statutes concern notice requirements. The first, RCW

7.90.110, addresses an ex parte temporary order. It requires the petitioner to

establish that a sexual assault occurred and to show that there is good cause to

grant a temporary order despite any lack of service or notice:

         (1) An ex parte temporary sexual assault protection order
    shall issue if the petitioner satisfies the requirements of this
    subsection by a preponderance of the evidence. The petitioner
    shall establish that:
          (a) The petitioner has been a victim of nonconsensual sexual
    conduct or nonconsensual sexual penetration by the respondent;
    and
          (b) There is good cause to grant the remedy, regardless of
     the lack of prior service of process or of notice upon the
     respondent, because the harm which that remedy is intended to
     prevent would be likely to occur ifthe respondent were given any
     prior notice, or greater notice than was actually given, of the
     petitioner's efforts to obtain judicial relief.

RCW 7.90.110(1).

       The second referenced statute, RCW 7.90.120, addresses the notice

requirements for a full hearing:

      A full hearing, as provided in this chapter, shall be set for not
      later than fourteen days from the issuance of the temporary
      order...Except as provided in RCW 7.90.050, 7.90.052, or
      7.90.053, the respondent shall be personally served with a copy
      of the ex parte temporary sexual assault protection order along
      with a copy of the petition and notice of the date set for the
      hearing.


                                         8
No. 73337-1-1/9




RCW7.90.120(1)(a).

       We see no ambiguity in the burden of proof statute, RCW 7.90.090. And

neither party argues that the statute is ambiguous. The plain language of the

statute directs the court to issue a protection order if the petitioner proves by

preponderance of the evidence that the sexual assault occurred and shows that

she satisfied the Act's notice requirements. Notably, RCW 7.90.090 does not

require that a petitioner prove each of the allegations that must be included in a

SAPO petition.

       As discussed, a SAPO petition must allege both (1) that a sexual assault

occurred, and (2) the existence of specific statements or actions that give rise to

a reasonable fear that the respondent will perpetrate future dangerous acts.

RCW 7.90.020. But a petitioner is not required to prove the second allegation. At

the hearing, a petitioner only has the burden to prove that a sexual assault

occurred. RCW 7.90.090(1 )(a). If the petitioner proves this allegation by a

preponderance of the evidence and shows that he or she met the procedural

requirements specific to a temporary or a final order, the court "shall issue" a

protection order. RCW 7.90.090(1 )(a).

       Delman argues that a petitioner must logically prove the same allegations

that must be asserted in the petition. He asserts that a requirement to prove

"specific statements or actions that give rise to a reasonable fear of future

dangerous acts" may be inferred from RCW 7.90.110(1)(b). Delman is mistaken.
No. 73337-1-1/10


       RCW 7.90.110(1 )(b) provides that a petitioner may obtain an ex parte

temporary protection order if he or she shows "good cause to grant the

remedy...because the harm which that remedy is intended to prevent would be

likely to occur if the respondent were given any prior notice, or greater notice

than was actually given, of the petitioner's efforts to obtain judicial relief." RCW

7.90.110(1)(b). The statute addresses a petitioner's obligation to give notice to

the respondent. To obtain a temporary order without providing that notice, a

petitioner must show "good cause." The statute requires the petitioner to show

that the "harm" which the protection order is intended to prevent would be likely

to occur if the respondent were given notice. The statute does not require or

create an inference that a petitioner must prove "specific statements or actions

that give rise to a reasonable fear of future dangerous acts." And RCW 7.90.110

expressly applies only to a temporary protection order. There is no basis to infer

that it has any application to a final protection order.

       Delman also argues that it is absurd to read the Act as setting a lower

burden to obtain a final protection order than for a petition or a temporary

protection order. Delman asserts that by including "specific statements or actions

that give rise to a reasonable fear of future dangerous acts" as a petition

requirement in RCW 7.90.020, the Legislature implicitly included it as an

allegation that must be proven under RCW 7.90.090. Thus, Delman asks us to

read this allegation into RCW 7.90.090 in order to reconcile the inconsistency




                                           10
No. 73337-1-1/11


between the requirements for a SAPO petition and the showing necessary to

issue a SAPO.2

       But our role is "'to interpret the statute as enacted,'" not to add words or

subtract them. Woods v. Kittitas County. 162 Wn.2d 597, 614, 174 P.3d 25

(2007) (quoting Skagit Surveyors and Engineers, LLC v. Friends of Skagit

County, 135 Wn.2d 542, 567, 958 P.2d 962 (1998)). "Just as we 'cannot add

words or clauses to an unambiguous statute when the legislature has chosen not

to include that language,' we may not delete language from an unambiguous

statute." JP,, 149 Wn.2d at 450 (quoting State v. Delgado, 148 Wn.2d 723, 727,

63 P.3d 792 (2003)). When a statute is clear on its face, we must decline to

change it even ifwe "believe[] the Legislature intended something else but did

not adequately express it." Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638

(2002) (quoting Wash. State Coalition for the Homeless v. Dep't of Soc. & Health

Servs., 133 Wn.2d 894, 904, 949 P.2d 1291 (1997)).

       We conclude that the SAPO Act, by its plain language, requires that a

petition include an allegation that the respondent made specific statements or

actions giving rise to a reasonable fear of future dangerous acts. However, the

Act does not require that a petitioner prove this allegation to obtain a protection

order. The SAPO Act is clear that at a full hearing for a final protection order, the

petitioner has the burden to prove by a preponderance of the evidence that a


        2 However, an equal argument could be made to reconcile the inconsistency by removing
the requirement of "specific statements or actions" from RCW 7.90.020. Arguably, this would be
consistent with RCW 7.90.040(1), which mentions only an allegation of sexual assault as required
in a SAPO petition.


                                              11
No. 73337-1-1/12


sexual assault occurred. The petitioner must also show that she has satisfied the

Act's notice requirement. If the petitioner meets this burden, the court "shall

issue" a final protection order.

The Motion for Judgment on the Pleadings Under CR 12(c)

       We next consider whether the trial court erred in dismissing Roake's

SAPO petition in response to Delman's motion for judgment on the pleadings

under CR 12(c). Delman contends that the trial court properly granted his CR

12(c) motion based on both Roake's petition and all of the evidence in the record.

Roake argues that the trial court's order should be reversed because the

proceedings did not meet the requirements of CR 12(c) or CR 56 and were

therefore irregular.

       This court reviews a dismissal under CR 12(c) or CR 56 de novo. Didlake

v. Washington State, 186 Wn. App. 417, 422, 345 P.3d 43, review denied. 184

Wn.2d 417 (2015). The civil rules apply to special proceedings except where they

are inconsistent with statutory requirements specific to the special proceeding.

CR 81(a); Christensen v. Ellsworth. 162 Wn.2d 365, 374-76, 173 P.3d 228

(2007). CR 12(c) provides that "[ajfter the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings."

But when matters outside the pleadings are considered the motion may no longer

be treated as a motion for judgment on the pleadings and must be treated as a

motion for summary judgment:

       If, on a motion for judgment on the pleadings, matters outside the
       pleadings are presented to and not excluded by the court, the


                                         12
No. 73337-1-1/13


       motion shall be treated as one for summary judgment and
       disposed of as provided in rule 56, and all parties shall be given
       reasonable opportunity to present all material made pertinent to
       such a motion by rule 56.

CR 12(c).

       In this case, matters outside the pleadings were presented to and not

excluded by the court. Along with his motion, Delman attached several

declarations, evidence of a University of Washington student conduct hearing,

and an article concerning unfounded investigations into child sex abuse. At the

hearing, Delman argued that his motion should be granted based on Roake's

petition, the transcript of the ex parte hearing, and the declarations she

submitted. The court considered each of these items. The motion must therefore

be evaluated as a motion for summary judgment under CR 56.

       Under CR 56(c), a motion for summary judgment "shall be filed and

served not later than 28 calendar days before the hearing." CR 56(c). And a

hearing on a motion for summary judgment shall be heard "more than 14

calendar days before the date set for trial." ]d. These requirements are

inconsistent with the SAPO Act, under which the court must order the full hearing

to be held within fourteen days of receipt of the petition. RCW 7.90.050.

Accordingly, we conclude that CR 56 does not apply and that Delman's motion

was not properly before the court.3




       3We express no opinion on whether a timely CR 12(c) motion would have been proper in
the context of a SAPO proceeding.


                                            13
No. 73337-1-1/14


       Furthermore, even if Delman's motion was properly before the court, it

was improperly granted. To survive a motion for summary judgment, a plaintiff

must produce evidence that raises a question of material fact as to each element

that must be proved. Young v. Key Pharmaceuticals. Inc.. 112 Wn.2d 216, 225,

770 P.2d 182 (1989) (citing Celotex Corp.. v. Catrett. 477 U.S. 317, 322, 106

S.Ct. 2548, 91 LEd.2d 265 (1986)).

       Delman requested dismissal arguing that Roake had failed to prove

specific statements or actions giving rise to a reasonable fear of future

dangerous acts. The trial court's order dismissing Roake's petition states that she

"failed to establish that she had any reasonable fear of future dangerous acts

from the Respondent." CP at 98. But as discussed above, the SAPO Act does

not require a petitioner to prove the "specific statements or actions" allegation.

The only substantive allegation Roake had to prove was that a sexual assault

occurred. The record before the trial court raised a question of material fact as to

that issue.


       The trial court also indicated that it granted Delman's motion because "the

temporary order was invalid." CP at 98. But the SAPO Act provides no basis for

considering the validity of the temporary order in determining whether to grant a

final protection order. Under RCW 7.90.090, the petitioner has the burden to

prove that a sexual assault occurred and that she met the procedural

requirements specific to a final order. RCW 7.90.090(1); RCW 7.90.120. The

validity of the ex parte temporary order is irrelevant to this determination. The trial



                                          14
No. 73337-1-1/15


court erred in considering the validity of the ex parte order in determining whether

to grant a final protection order under the SAPO Act.

       Delman's motion to dismiss was not properly before the trial court and the

trial court granted that motion based on an erroneous reading of the SAPO Act.

We accordingly reverse and remand for further proceedings. We do not reach

Roake's further arguments that the trial court erred in considering the timing of

her petition and in denying her a full hearing.

       Reverse and remand.




WE CONCUR:
                                                        -Cr (r^t* r*
                                                                      3
    T?'-*«"i, Aeg                                       /---/ 4




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