                                                                                                              1" fL. ED
                                                                                                     COURT OF A " rE,' LS
                                                                                                         DIVISIO          7

                                                                                                       JAN      4 AN -:       26
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                                                                                                 BY
                                                                                                          O        T




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

GREGORY R. HART,                                                                  No. 43304- 4- 11


       Respondent /
                  Cross -Appellant,




CITY OF LAKEWOOD, a municipal                                            UNPUBLISHED OPINION
corporation,




       Appellant /
                 Cross -Respondent,


CITY OF LAKEWOOD POLICE
DEPARTMENT, a municipal corporation; and
CITY OF LAKEWOOD PARKS
DEPARTMENT, a municipal corporation,


                                     Defendants.


       JOHANSON, A.C. J. —            The city of Lakewood ( City) appeals from the trial court' s order

denying summary judgment on Gregory R. Hart' s defamation claim against the City. Hart cross

appeals, claiming that the trial court erred in granting summary judgment to the City on Hart' s

malicious prosecution and intentional infliction of emotional distress claims against the City.

We reverse the trial court' s denial of summary judgment on the defamation claim because Hart

failed to   establish a prima      facie defamation     case against     the    City.   We affirm the trial court' s


dismissal of Hart' s malicious prosecution and intentional infliction of emotional distress claims

because Hart    also   failed to   establish prima   facie   cases on   those   claims.
No. 43304 -4 -II



                                                           FACTS


         In May 2007, Hart removed and took possession of a City -
                                                                 owned gate from an area near

a   Lakewood     park.   After a City employee reported that Hart was damaging and dismantling the

gate, Lakewood police officers responded and arrested Hart for malicious mischief and theft.


         The City charged Hart with one count of third degree malicious mischief and one count

of   third degree theft.    Lakewood Municipal Court determined that the City produced sufficient

evidence of probable cause        to   support      the   charges.    A jury found Hart not guilty of third degree

malicious mischief and        guilty   of   third   degree theft. Hart appealed his conviction to the superior


court, which found that the municipal trial court had erred in not offering a " claim of title" jury

instruction relating to the         gate' s   ownership.         Clerk'   s   Papers ( CP)          at   69.   Accordingly, the

superior court remanded the matter to the municipal court for retrial, which resulted in a jury

acquitting Hart of the third degree theft.

         Following his      acquittal,      Hart    sued   the   City   in    superior    court,         claiming ( 1)   malicious




prosecution, (    2) defamation, and ( 3) intentional and negligent infliction of emotional distress.


Hart asserted that as a result of his prosecution related to the gate incident, he suffered harm to


his professional reputation and his relationship with his domestic partner, Dianna Kilponen.

          Hart based his defamation claim on an undated " Officer Safety Info" memorandum about

Hart that Lakewood Police Sergeant John Unfred circulated to the Fife Police Department' s

Investigations Division       sometime after         Hart'   s gate   incident. CP       at   78.    Kilponen worked for the


Fife Police Department and read the memo. It detailed Hart' s substantial criminal history and his

interactions with law enforcement personnel. The one -
                                                     page memo concluded,


                   The bottom line is that Mr. Hart has a strong dislike of law enforcement, is
          very   aggressive   and    irrational,     and   is known to carry        weapons.              He also enjoys



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No. 43304 -4 -II



           documenting scenes with cameras. I don' t know if he' s trying to bait [ o] fficers
           into something or just paranoid, but please use caution when contacting.

CP   at   78.    While Hart did not dispute the criminal history that Sergeant Unfred chronicled in the

memo, he claimed the phrase " very aggressive and irrational" was defamatory.

           The    City   moved   to    dismiss Hart' s   claims on    summary judgment.             Hart conceded that he


had no claim for negligent infliction of emotional distress, but he opposed the City' s motion

relating to the remaining          claims.     The trial court granted the City' s motion in part, dismissing

Hart' s malicious prosecution, and intentional and negligent infliction of emotional distress


claims as a matter of law, but it denied the City' s motion to dismiss the defamation claim..

           The City then asked the trial court to reconsider its order regarding Hart' s defamation

claim.      The trial court denied the reconsideration motion, declining to rule as a matter of law

whether         Sergeant Unfred' s      characterization of    Hart      as "   very   aggressive   and   irrational"   was a



factual statement or opinion.


           Following these proceedings at the trial court, the parties stipulated to stay their litigation

pending         outcome   of   their   appeals.    The City appeals the trial court' s denial of its summary

judgment         and reconsideration motions        that   would   have dismissed Hart'       s   defamation    claim.   Hart


cross appeals, claiming that the trial court erred in granting summary judgment to the City on his

malicious         prosecution    and    intentional infliction      of    emotional      distress   claims. -   We granted


discretionary review.

                                                         ANALYSIS


           We review summary judgment orders de novo, viewing the facts in the light most

favorable to the nonmoving party.                 Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d


16, 26, 109 P. 3d 805 ( 2005).            Trial courts properly grant summary judgment where the pleadings


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No. 43304 -4 -II



and affidavits show no genuine issue of material fact and the moving party is entitled to

judgment            as a matter of   law. CR 56( c).     When reviewing an order on summary judgment, we

consider solely the issues and evidence the parties called to the trial court' s attention on the

summary judgment motion. RAP 9. 12.

                                                        DEFAMATION


              The City claims that the trial court erred when it did not grant summary judgment to

dismiss Hart' s defamation              claim.    Even assuming, without deciding, that Sergeant Unfred' s

words constituted an actionable factual statement and not an opinion, Hart failed to establish that


the City knew the alleged defamatory statement was false; and the common interest qualified

privilege applies to bar Hart' s defamation claim.'

              A defamation plaintiff must establish four essential elements to recover for a defamation

claim: (       1)   falsity, (2)   an unprivileged communication        to   a   third party, ( 3)   fault, and ( 4) damages.


Bender v. City ofSeattle, 99 Wn.2d 582, 599, 664 P. 2d 492 ( 1983).

                                                             A. FAULT


              The City asserts that the trial court should have dismissed Hart' s defamation claim on

summary judgment because he failed to establish the City' s fault by presenting evidence that

Sergeant Unfred knew                or should   have known the     alleged       defamatory      statement was   false.   The


City is correct. The degree of fault required by private figures alleging defamation is negligence.

Mark      v.   Seattle Times, 96 Wn.2d 473, 483, 635 P. 2d 1081 ( 1981), cent. denied, 457 U. S. 1124


     1982).    Thus, a plaintiff must show that the person making a defamatory statement knew, or in



 1
     Because we conclude that Hart fails to establish fault or that the common interest qualified
privilege does not apply, we decline to address whether Sergeant Unfred' s communication was a
statement of           fact   or opinion, or whether   the   communication was          false.
No. 43 3 04 -4 -II



the exercise of reasonable care, should have known that the statement was false or would have

created a    false impression in         some material respect.             Mark, 96 Wn.2d at 483 ( quoting Taskett v.

KING Broadcasting Corp., 86 Wn.2d 439, 445, 546 P.2d 81 ( 1976)).

          Here, the City claims that " the record is devoid of any evidence" to show that Sergeant

Unfred knew       or should       have known that his              characterization of         Hart   as "    very aggressive and


irrational"   was    false   or    created       a    false impression.         Br.    of   Appellant    at    15.   To rebut this


argument, Hart states that he " has cited numerous facts and statements within the record showing

that there is simply     no evidence             that   he is dangerous         or a   threat to   law   enforcement. "  2 Br. of

Resp' t   Cross -
          /      Appellant        at   20.      But in his brief, Hart does not cite any facts or statements to

support his argument or demonstrate that he was not " very aggressive and irrational."

           The record is devoid of any evidence that would have advised Sergeant Unfred or anyone

else   that characterizing Hart          as "   very      aggressive and       irrational"   was   false.     To the contrary, the

uncontested     facts that Sergeant Unfred                 cites   in his   memo prior       to characterizing Hart as " very



aggressive     and   irrational"       appear        consistent with     his    characterization.        For example, Sergeant


Unfred describes Hart' s prior arrest for pointing a handgun at a motorist. during a road rage

incident, as well as an arrest for shooting motorbike riders with steel ball bearings from a sling

shot.     The memo also recounts Hart' s arrest relating to prostitution; at the time of arrest, he was

carrying a firearm and knife, and within an hour of his arrest, he bailed out and returned in his

van, driving back and forth in the area where police were continuing to conduct a prostitution

sting   operation.    Six months after his prostitution -
                                                        related arrest, Hart sent police a video of him


confronting      a   prostitute        and      client,    and the video showed Hart complaining about law




2 Hart does not claim that the City defamed him by saying he is dangerous or a threat to law
enforcement.

                                                                     5
No. 43304 -4 -II


enforcement' s        lack   of   focus   on   prostitution.     Finally, Sergeant Unfred' s memo detailed that

during a more recent arrest, Hart took pictures of officers as they contacted him and that on the

afternoon that Sergeant Unfred wrote the memo, officers observed Hart flipping them off and

photographing them as they patrolled.

        Based on this evidence of Hart' s road rage aggression and his confrontational attitude,


coupled with his criticism of police for not targeting prostitution just months after he was

arrested   in   a     prostitution -
                                   related       matter,   one   may reasonably   conclude      that Hart     is " very


aggressive      and    irrational."       Because Hart cites to no evidence in the record that rebuts this


characterization, he does not show that Sergeant Unfred knew, or in the exercise of reasonable

care, should have known that his statement was false or would have created a false impression in

some material respect. Thus, Hart failed to establish a prima facie defamation case, and the trial


court erred in not dismissing this claim on summary judgment. See Mark, 96 Wn.2d at 483.

                                                 B. QUALIFIED PRIVILEGE


        The City also asserts that the common interest qualified privilege bars Hart' s defamation

claim. Again, the City is correct.

        The common interest qualified privilege applies when the declarant and recipient have a

common interest in the communication' s subject matter. Moe v. Wise, 97 Wn. App. 950, 957 -58,

989 P. 2d 1148 ( 1999),            review      denied, 140 Wn.2d 1025 ( 2000).       The qualified privilege is

available for persons involved in the same organizations, partnerships, associations or enterprises


who are    communicating           on matters of common          interest. Moe, 97 Wn.   App.   at   958.   And when a


qualified privilege applies, a plaintiff cannot establish a prima facie defamation case unless the


plaintiff clearly and convincingly shows that the declarant knew of the statement' s falsity and



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No. 43304 -4 -II



recklessly disregarded the knowledge.                      Woody      v.   Stapp,   146 Wn.      App.   16, 21,    189 P. 3d 807


 2008).


          Here,    Lakewood Police Sergeant Unfred sent a safety memo to the Fife Police

Department to       advise   it   of   safety   concerns      relating to Hart.        Because this document was sent


between nearby police departments on a matter of common interest, officer safety relating to a

local citizen, Sergeant Unfred' s memo falls within the scope of the common interest qualified


privilege. See Moe, 97 Wn. App. at 957 -58. And as analyzed in the preceding section, Hart does

not   demonstrate that Sergeant Unfred                     made   a    false   statement.        Accordingly, Hart does not

establish a prima facie defamation case. See Woody, 146 Wn. App. at 21.

          Hart    contends   that Sergeant Unfred'            s statement       characterizing Hart        as "   very aggressive


and irrational" went " beyond the scope of what constitutes reasonable police conduct" because it

drew unsupported factual conclusions about Hart and suggested personal animus toward Hart for

exercising his Second Amendment rights to carry firearms and First Amendment rights to

document     scenes with cameras.               Br.   of   Resp' t /Cross -Appellant        at   21.    But as outlined above,


Hart does not-show that the record does not support Sergeant Unfred' s characterization of Hart.


And advising fellow police officers of Hart' s propensity to carry and brandish firearms and use

video cameras does not demonstrate a personal animus against Hart, but rather provides officers


with information to help them better prepare themselves to safely perform their duties.

          Hart next contends that the qualified privilege does not apply because the memo was

improperly disseminated such that nonpolice entities, including Kilponen and Hart' s business

associate, Bill Gates, Sr., became aware of the allegations and consequently discontinued their

relationships with Hart. Here, the record demonstrates that Kilponen learned of the memo in her


capacity    as a   Fife Police Department             employee.            Because Kilponen learned of the memo as a


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No. 43304 -4 -II



member of a police organization and not as a member of the public, the qualified privilege still


applies.     See Moe, 97 Wn.                App.     at   957 -58.    And the record does not demonstrate that Gates


received     a   copy      of    the     memo       and,       consequently,    discontinued his relationship with Hart.

According to Hart' s own declaration, Gates no longer assisted him with business ventures

 because ' of the          City    of    Lakewood'         s   conduct   of
                                                                              prosecuting [ Hart] for unfounded criminal


misconduct."          CP    at    134.      Thus, Hart admits that Sergeant Unfred' s memo had nothing to do

with Gates severing his business relationship with Hart.

           Finally, Hart cites Kilponen' s declaration in which she stated that Sergeant Unfred' s

memo " was not sent in the usual format for officer notes and information, of which [ she was /is]

familiar."       CP   at   148.    Thus, Hart asserts that we must infer that the memo was not sent in the

regular     course    of   business but            as part of a personal        attack on   Hart.   Hart, however, does not


establish how Sergeant Unfred submitted this safety memo to the Fife Police Department such

that the     common        interest      qualified privilege         would not     apply.    And he offers no evidence to


demonstrate that Sergeant Unfred held                           a personal    animus   against   Hart.   Again, Hart does not


demonstrate that the common interest qualified privilege does not apply.

            We hold that there are no questions of fact regarding Sergeant Unfred' s absence of fault

and   the   application of         the   qualified privilege.         Accordingly, we hold that the trial court erred in

failing to grant the City' s summary judgment motion on Hart' s defamation claim.

                                                               CROSS APPEAL


                                                      MALICIOUS PROSECUTION


            Hart claims that the trial court erred in dismissing his malicious prosecution claim

because the City had no evidence to support its malicious mischief charge against Hart and

because      a material     issue      of   fact   existed     regarding the   City -owned   gate   that the   City   accused   Hart
No. 43304- 4- 11



of   damaging   and   stealing.          But the City is entitled to immunity in initiating prosecutions, and it

had probable cause to prosecute Hart, thus barring Hart' s malicious prosecution claim.

        To maintain a malicious prosecution claim, a plaintiff must plead and establish that ( 1)


the defendant instituted            or continued          the   prosecution, (       2) there was want of probable cause for


the institution    or continuation of               the   prosecution; (       3) the defendant instituted or continued the


prosecution    through    malice, (         4) the proceedings terminated on the merits in favor of the plaintiff


or were abandoned, and ( 5) the plaintiff suffered injury or damage as a result of the prosecution.

Hanson v. City ofSnohomish, 121 Wn.2d 552, 558, 852 P. 2d 295 ( 1993).

        A prosecuting attorney, acting in a quasi-judicial capacity, is, as a matter of public policy,

immune from        liability   for       acts     done in her      or   his    official   capacity.     Creelman v. Svenning, 67

Wn.2d 882, 884, 410 P. 2d 606 ( 1966). "                          The public policy which requires immunity for the

prosecuting attorney, also requires immunity for both the state and the county for acts of judicial

and quasi-judicial officers              in the   performance of         the duties       which rest upon      them."   Creelman, 67


Wn.2d at 885. Here, because the City prosecutor charged Hart with malicious mischief within its

official capacity in its performance of its duties, the City enjoys immunity from Hart' s malicious

prosecution claim. See Creelman, 67 Wn.2d at 884.


         Moreover, before trial, the municipal trial court found probable cause to allow the case to

be tried.     Evidence    supports           this    finding. Specifically, Lakewood police received a 911 call

reporting "   vandalism        in   progress"        that involved "          damaging"        and "   dismantling" a gate leading

onto   City   property.   CP        at    174.     A witness told police that Hart had bragged to neighbors about


breaking the gate and taking part of it, and Hart told another witness that he had pulled down the

gate. Officers then found and recovered the gate from Hart' s property after he admitted taking it.

Finally,    evidence shows          that the       City   maintained          the   gate at   that location.    Given this evidence,


                                                                        0
No. 43304 -4 -II



the trial court reasonably found that the City established probable cause that Hart committed

third degree malicious mischief.


                              INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


          Finally, Hart asserts that the trial court erred when it dismissed his intentional infliction

of emotional     distress   claim.    But the trial court properly denied this claim because Hart failed to

establish a prima facie case.


          To   recover     for intentional infliction         of emotional        distress,   a plaintiff must prove (       1)


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


 3)   actual   severe   emotional     distress    on   the   plaintiff' s part.     Snyder v. Med. Serv. Corp. of E.

Wash., 145 Wn.2d 233, 242, 35 P. 3d 1158 ( 200 1) ( quoting Birklid                      v.   The   Boeing   Co., 127 Wn.2d


853, 867, 904 P. 2d 278 ( 1995)).             Liability for intentional infliction of emotional distress exists

when conduct is so outrageous in character and so extreme in degree; as to go beyond all


possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community.        Grimsby     v.   Samson, 85 Wn.2d 52, 59, 530 P. 2d 291 ( 1975).                    Whether the conduct


complained of i-s sufficiently extreme to result in liability is a preliminary question for the trial

court   before   a claim    may     go   to the   jury. Pettis v. State, 98 Wn. App. 553, 563, 990 P.2d 453

 1999).


          To determine      whether conduct         is sufficiently    extreme, courts consider         the   following: (   a)




the   position occupied       by    the defendant; (    b) whether the plaintiff was peculiarly susceptible to

emotional      distress,   and   if the defendant knew this fact; ( c)        whether the defendant' s conduct may

have been      privileged under       the   circumstances; (     d) the degree of emotional distress caused by a

party must be severe as opposed to a mere annoyance, inconvenience, or embarrassment which

normally occurs in a confrontation of the parties; and ( e) the actor must be aware that there is a
                                                                10
No. 43304 -4 -II



high probability that his conduct will cause severe emotional distress and he must proceed in a

conscious disregard of it. Birklid, 127 Wn.2d at 867 ( quoting Phillips v. Hardwick, 29 Wn. App.

382, 388, 628 P. 2d 506 ( 1981)).


           Here, Hart asserts that the City' s outrageous conduct consisted of charging and trying

Hart on misdemeanor theft and malicious mischief counts when it lacked any evidence to sustain

the   charges.   This logic fails to consider that, as analyzed above, the City' s evidence sufficiently

established probable cause         that Hart   committed   these   crimes.   Therefore, because the City had

probable cause to pursue these criminal charges, it was not conducting itself extremely or

outrageously.      Absent a showing of extreme or outrageous conduct, Hart' s intentional infliction

of emotional distress claim fails. Accordingly, we affirm the trial court' s dismissal of this claim.

           We reverse the trial court' s denial of summary judgment on Hart' s defamation claim

because Hart failed to          establish   a prima   facie defamation   case.   We affirm the trial court' s


dismissal of Hart' s malicious prosecution and intentional infliction of emotional distress claims

because Hart failed to establish prima facie cases on those claims.


           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 in accordance with RCW


2. 06. 040, it is so ordered.




                                                               HANSON, A.C. J.
We concur:




Bn R' N, E
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