      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 VALA FOUROOHI,                          )         No. 79448-5-I
                                         )
                     Appellant,          )         DIVISION ONE
                                         )
              v.                         )         UNPUBLISHED OPINION
                                         )
 JOAN THOMAS,                            )
                                         )
                     Respondent.         )
                                         )

      HAZELRIGG, J. — Joan Thomas believed that her former neighbor, Vala

Fouroohi, was stalking her for years. Since 2014, Thomas had been reporting her

concerns to law enforcement. However, the police found little to no evidence of

stalking and never pursued the various complaints. Thomas filed suit against

Fouroohi for harassment, assault, intentional infliction of emotional distress,

negligent infliction of emotional distress, and requested an injunction.     After

discovery, Fouroohi was permitted to amend his answer and he added

counterclaims of malicious harassment and intentional infliction of emotional

distress. Thomas asserted statutory immunity under RCW 4.24.510. On motion

for partial summary judgment, the trial court dismissed Fouroohi’s counterclaims

finding they were predicated on Thomas’ reporting to the police and statutory

immunity under RCW 4.24.510 applied. Fouroohi appeals and argues he was

denied his right to trial by jury on the counterclaims, that RCW 4.24.510 does not
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provide immunity to Thomas, and that the award of attorney fees and costs to

Thomas under the statute was improper. We disagree and affirm the trial court.


                                     FACTS

      Vala Fouroohi and Joan Thomas first came into contact when Fouroohi

showed Thomas and her husband a rental home in 2010, which was adjacent to

the one in which the Thomases were residing. In 2011, Fouroohi moved into the

home he had shown Thomas. Thomas and Fouroohi were neighbors for three

years when Thomas began to notice things she thought were odd.

      In the spring of 2014, Thomas recalled Fouroohi watching her in a “leering”

fashion. Thomas began reporting her concerns to the police in September 2014.

In October 2015, Thomas sought a restraining order against Fouroohi in King

County Superior Court. The petition was served on Fouroohi, which was the first

time he became aware of Thomas’ reports to the police. Fouroohi contacted

Bellevue Police Officer Jim Keene to inquire as to why he had not previously been

made aware of Thomas’ reports. Keene informed Fouroohi that he had stopped

by Fouroohi’s residence after the initial report, but no one was home. Keene did

not pursue the report further because he did not think Thomas’ claims had merit.

      Thomas’ first report, made September 13, 2014, alleged that Fouroohi was

using technology to track her at home and that he moved his car to be in view of

her bathroom window when she showered. Thomas did not believe that Fouroohi

was in the car, but that the vehicle must be equipped with surveillance cameras.

      Ten days later, Thomas called the police and alleged similar behavior,

including a claim that Fouroohi was shining his lights into her window early in the



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morning of the previous day. Thomas contacted the police again the day after her

second report claiming that Fouroohi was shining a bright light into her home. Later

in October, Thomas reported Fouroohi was following her in a black car; the police

arrived, but Fouroohi was not present. Approximately a month later, she contacted

police to inform them that, while she was staying at a hotel, her electronics had

been tampered with through laser technology and she would not turn her cellphone

on due to fear that Fouroohi could access her electronics. In December 2014,

Thomas briefly moved to Atlanta, Georgia to stay with her sister. After returning

to Washington, Thomas moved from her Bellevue home to Renton in June 2015.

Thomas continued her reporting of what she characterized as Fouroohi stalking

her.

       In December 2015, Thomas was denied a permanent protection order. The

judge found there was “very, very limited evidence” to prove Fouroohi had engaged

in any stalking behavior toward Thomas. In late July 2016, Thomas called 911

alleging Fouroohi had driven up close behind her and was honking while she was

on her way to church. Renton Police Officer Mark Coleman took up the complaints.

Coleman noted in a report that after two and a half years and reviewing all of the

materials provided by Thomas, he could not establish probable cause for any

crime. Coleman had considered a video Thomas recorded of herself filming cars

in a parking lot, one of which she indicated was Fouroohi’s but was actually

registered out of Oregon to an unrelated party. Thomas submitted the video to

police because she believed it demonstrated that Fouroohi was stalking her.

Coleman also reviewed Fouroohi’s credit card statements obtained by Thomas




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which she alleged showed he had been at locations near her for the purpose of

stalking. Coleman found Thomas’ claims were not credible and believed Thomas

suffered from paranoia.

       Thomas filed suit against Fouroohi on July 18, 2017, alleging that he had

engaged in a years-long campaign of harassment and intimidation, encompassing

sexually suggestive advances and threats of physical harm. Fouroohi answered

on February 19, 2018. During discovery, Fouroohi learned that Thomas had dated

a man of Middle Eastern descent during college and that she eventually sought

and obtained a temporary restraining order against him based on allegations of

stalking. Fouroohi also learned that Thomas sustained a head injury in July 2014

and had numerous appointments with a neurologist as a result. He obtained a

copy of a psychiatric evaluation of Thomas in which the doctor diagnosed her with

a delusional disorder “characterized by difficulty in determining what is real.”

       Fouroohi moved for leave to amend his answer on June 19, 2018 to include

counterclaims to conform to the newly discovered evidence. The counterclaims

were malicious harassment and intentional infliction of emotional distress. Thomas

answered raising the defense of immunity pursuant to RCW 4.24.510, commonly

referred to as the “anti-SLAPP” statute.

       In December 2018, Thomas filed a motion for partial summary judgment.

She sought dismissal of Fouroohi’s counterclaims, alleging statutory immunity

under RCW 4.24.510 from any legal claims based on her reporting to police. After

oral argument, the trial court dismissed the counterclaims based on anti-SLAPP

immunity. Additionally, the court found that Thomas was statutorily entitled to




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attorney fees and costs for responding to the counterclaims.          Fouroohi now

appeals.


                                     ANALYSIS

I.     Right to a Jury Trial

       For the first time on appeal, Fouroohi avers that his right to a jury trial was

violated by the court’s dismissal on summary judgment. Article I, Section 21 of the

state constitution provides “[t]he right to have factual questions decided by the

jury.” Dillon v. Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 89, 316 P.3d

1119 (2014) (quoting State v. Montgomery, 163 Wn.2d 577, 590, 183 P.3d 267

(2008)). Fouroohi argues that his right to have a jury determine the facts regarding

his counterclaims was violated by their dismissal on summary judgment.

       Fouroohi attempts to support this proposition by arguing that Davis v. Cox,

struck down RCW 4.24.510. 183 Wn.2d 269, 351 P.3d 862 (2015) (abrogated on

other grounds by Maytown Sand and Gravel, LLC v. Thurston County, 191 Wn.2d

392, 423 P.3d 223 (2018)). In Davis, the Supreme Court struck down a portion of

the anti-SLAPP law which provided for a special motion to strike procedure where

a party has claimed immunity. Id. The court found the special motion to strike

functioned beyond just screening out frivolous lawsuits. Id. at 295-96. The crux

of the analysis focused on that, “RCW 4.24.525(4)(b) requires the trial judge to

make a factual determination of whether the plaintiff has established by clear and

convincing evidence a probability of prevailing on the claim.” Id. at 293.

       As a preliminary matter, Fouroohi’s argument on this issue is improperly

raised for first time on appeal as it was not presented in the trial court. See RAP



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2.5(a). Further, he fails to provide authority or otherwise engage in any substantive

argument as to why an exception to this rule might allow us to reach the matter.

Even if we took up this alleged error, Davis does not support Fouroohi’s position.

In that case, the Supreme Court took up review of the special motion to strike

procedure in RCW 4.24.525(4)(b), but ultimately invalidated RCW 4.24.525 in its

entirety, holding that the special motion to strike provision invaded the jury’s

essential role to determine factual disputes. Id. at 294-96. Contrary to Fouroohi’s

claim that the holding in Davis encompasses RCW 4.24.510, the case did not

reach, much less strike down, other provisions in that section of the chapter

regarding substantive immunity as a whole, nor did it reject summary judgment as

the proper mechanism for assessing claims of immunity. Here, we find no error in

the trial court’s use of summary judgment procedure in its review, and eventual

dismissal, of Fouroohi’s counterclaims based on Thomas’ assertion of anti-SLAPP

immunity.


II.    Counterclaims Predicated on Reporting to Law Enforcement

       Fouroohi’s second argument is that the trial court improperly dismissed his

counterclaims at summary judgment by finding that the anti-SLAPP statute

provided Thomas immunity as to her reports to police. Fouroohi argues that RCW

4.24.510 does not apply and asserts that is because his counterclaims were not

predicated on Thomas’ reporting.

       We review a ruling on summary judgment de novo. Lowe v. Rowe, 173 Wn.

App. 253, 258, 294 P.3d 6 (2012). RCW 4.24.510 provides immunity from civil

liability for a complaint or information provided to government, stating:



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

      “The legislature enacted RCW 4.24.510 to encourage the reporting of

potential wrongdoing to governmental entities.”      Gontmakher v. The City of

Bellevue, 120 Wn. App. 365, 366, 85 P.3d 926 (2004). “[I]mmunity applies under

RCW 4.24.510 when (1) a person ‘communicates a complaint or information to any

branch or agency of federal, state, or local government, or to any self-regulatory

organization’ and (2) the complaint is based on any matter ‘reasonably of concern

to that agency.’” Bailey v. State, 147 Wn. App. 251, 261,191 P.3d 1285 (2008).

There is no good faith requirement under RCW 4.24.510. Id. at 262-63.

      Review of Fouroohi’s amended answer reinforces Thomas’ argument that

the counterclaims were predicated on the reporting to police, which triggered her

immunity under RCW 4.24.510. One of the most illuminating excerpts states,

      [Thomas] knew that [Fouroohi] was an airline pilot. [Thomas] knew
      that if [Fouroohi] was arrested or if a permanent restraining order was
      put in place against him he would likely lose his job. [Fouroohi] was
      in fear of his person and property due to the actions of [Thomas].
      [Fouroohi] suffered severe emotional distress as a result.

The only language within the complaint that could possibly suggest an alternate

basis are assertions that in January 2017, Thomas “stood menacingly outside



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[Fouroohi’s] house” and a reference to Thomas’ first set of interrogatories which

acknowledge that she sought a temporary restraining order against a prior

boyfriend who was of Middle Eastern descent.          The latter point relates to

Fouroohi’s argument that, as an Iranian American Muslim, he was targeted by

Thomas based on his ethnicity and religion which goes to the core of his malicious

harassment counterclaim.      These two outlier assertions are insufficient to

overcome the clear conclusion that the amended answer and counterclaims

primarily focused on Thomas’ reporting.

      At oral argument, both on summary judgment and before this court,

Fouroohi struggled to articulate any basis for the counterclaims apart from

Thomas’ reporting. Most telling is that Fouroohi relied on and submitted the police

reports as evidence of Thomas’ behavior which he believed gave rise to his

counterclaims. The trial court acknowledged that the evidence Fouroohi focused

on was likely helpful for defending against Thomas’ suit, but not something that

could give rise to the counterclaims in light of immunity under RCW 4.24.510.

      Most analogous to the present case is Lowe v. Rowe, which involved a

defamation claim dismissed as improperly predicated upon service of a trespass

notice. 173 Wn. App. at 255. In Lowe, Division Three upheld the trial court’s

dismissal on summary judgment based on anti-SLAPP immunity because the

defamation claim was based entirely on the trespass notice. Id. On review, the

court engaged in statutory interpretation and reinforced that the statute did not

require a good faith component to the reporting in order to provide immunity where

such reports were the basis of the claim. Id. at 261-62.




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       As the trial court here determined, Thomas’ reporting or her actions which

were in furtherance of that reporting, are the crux of Fouroohi’s claims. The court

does not consider whether Thomas’ reports against Fouroohi were made in good

faith. As in Lowe, immunity under RCW 4.24.510 attaches and the dismissal on

summary judgment was proper.

       Fouroohi now also argues that the counterclaims are predicated on

Thomas’ lawsuit itself and not simply her reporting, which he claims renders RCW

4.24.510 inapplicable. It is noteworthy, however, that Fouroohi did not plead abuse

of process as a counterclaim, only malicious harassment and intentional infliction

of emotional distress. Fouroohi’s briefing to this court relies on Saldivar v. Momah,

145 Wn. App. 365, 186 P.3d 1117 (2008) for the proposition that RCW 4.24.510

does not immunize a party within a private lawsuit for private relief.       At oral

argument, Fouroohi acknowledged that this specific case was never cited to the

trial court, but claimed that the theory that the counterclaims were based on the

lawsuit was presented. Our review of the record does not support that assertion.

“[I]t is the rare exception when an appellate court will entertain a new legal theory

that the opposing party and the trial court did not have an opportunity to fully

explore.” UNIFUND, CCR, LLC v. Elyse, 195 Wn. App. 110, 382 P.3d 1090 (2016).

As this argument was not raised in the trial court, we decline to reach the issue

under RAP 2.5(a).


III.   Attorney Fees

       Fouroohi also challenges the trial court’s award of attorney fees to Thomas

based on the recovery provisions in the anti-SLAPP statute. RCW 4.24.510 says



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“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.” Because we affirm the dismissal of Fouroohi’s counterclaims based on

statutory immunity, the statute supports the trial court’s award of attorney fees to

Thomas.

       Thomas requests attorney fees on appeal. As the prevailing party, she is

entitled to attorney fees under RCW 4.24.510 to recover the expense of having to

further defend her claim of immunity on appeal. See Lowe, 175 Wn. App. at 264.

The amount shall be determined by a Commissioner of this court upon receipt of

supporting documentation from Thomas pursuant to RAP 18.1.

       Fouroohi’s counterclaims were predicated on Thomas’ reporting to law

enforcement, as such Thomas was immune from suit under RCW 4.24.510 and

the trial court’s dismissal of the counterclaims was proper. Accordingly, Thomas

is entitled to attorney fees both at the trial court and as the prevailing party on

appeal.

       Affirmed.




WE CONCUR:




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