IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                                           )
 DEBRA KOSHELNIK and GLEN TURNER )                                                                No. 75032-1 -I
 individually and the marital community                                                     )
 consisting thereof: and The Estate of                                                      )     DIVISION ONE
  EVELYN KOSHELNIK, through DEBRA                                                           )
  KOSHELNIK as personal representative                                                      )     UNPUBLISHED OPINION
 thereof,                                                                                   )
                                                                                            )
                                           Appellants,                                      )
                                                                                            )
                             v.                                                              )
                                                                                             )
  STATE OF WASHINGTON,                                                                       )                           ~   Cs~
  DEPARTMENT OF SOCIALAND                                                                    )
  HEALTHSERVICES(DSHS),SUSANN.                                                               )
  DREYFUS, Secretary of DSHS, LINDA                                                          )                           ~
  ROLFE, Director, Division of                                                               )
  Developmental Disabilities of DSHS,                                                        )
  CONNIE WASMUNDT, EVELYN                                                                    )                           ~
  CANTRELL, LOREN JUHNKE, and                                                                )
  BARBARA UEHARA, employees of DSHS )
  and unknown supervisors and managers                                                        )
  of said employees to be named,                                                              )
                                                                                              )
                                            Respondents.                                      )   FILED: June 20, 2016
___________________________________________________________________________________________ )

              APPELwicK, J.                 —      Debra and her husband provided care to three children

with Down Syndrome and Debra’s elderly mother, Evelyn, and her brother. The

Department investigated Debra after first receiving a report that Debra hit one of
No. 75032-1 -1/2



the children.      As a result of this investigation, the Department entered a

substantiated finding of abuse against Debra. The Department then later received

a report that Debra was not properly caring for Evelyn, a vulnerable adult. A

Department investigator interviewed Evelyn. Evelyn had a stroke that same day

and subsequently died. Appellants filed a complaint against the Department and

its employees, alleging, among other causes of action, negligent investigation,

defamation, outrage, conspiracy, and violations of civil rights.    The trial court

granted the Department summary judgment as to all claims. Appellants either fail

to state a claim upon which relief can be granted or fail to provide sufficient

evidence to show that there are genuine issues of material fact as to those claims.

We affirm.
                                      FACTS

       Debra Koshelnik and Glen Turner are married. In 2007, they lived with their

two adopted children (Virginia, Morgan), their child through the legal guardianship

process (Parker), Debra’s1 parents (Edward Koshelnik and Evelyn Koshelnik), and

Debra’s brother (Daniel Koshelnik). Daniel, Virginia, Morgan, and Parker all have

 Down Syndrome. Debra has been Daniel’s caregiver for many years. Debra

chose to adopt the children specifically because she has a calling to provide care

to individuals with Down Syndrome. Both Daniel and Parker are clients of the

 Department of Social and Health Services (Department) Division of Developmental


        IWe refer to the Koshelniks by their first names for the sake of clarity. No
 disrespect is intended.



                                             2
No. 75032-1 -1/3



Disabilities (DDD). They receive personal care services from DDD. Their personal

care provider was Debra. Debra entered into a client service contract2 with the

Department in May 2005.

       Both of Debra’s parents are deaf. Consequently, she grew up in a deaf

household and uses American Sign Language (ASL).            Debra is not deaf, is

articulate in the English language, and has served as an interpreter between her

deaf relatives and other hearing persons.

   I. The First Incident

       On February 8, 2007 as Virginia was preparing to go to school, there was

an altercation between Virginia and Debra. Virginia, who was “mouthing off” and

being sassy, stuck her tongue out at Debra.       Debra approached Virginia and

cautioned her to stop. When Virginia continued, Debra yelled at her never to do

that, poked Virginia’s chest with a finger and attempted to “pop” Virginia’s tongue

with her hand in a “stop” motion. Atthattime, Virginia turned her head and Debra’s

hand hit Virginia’s cheek.

       Turner was waiting at the car and did not see the altercation. When Virginia

came to the car, she was crying, rubbing her cheek, and said, “Mom hit me.”

Virginia then went to school and told an educational assistant that her mom had

 hit her. Virginia told other people at school about the altercation with Debra. The

        2 The client service contract, in general, relates to payment by the
 Department for authorized services rendered to the Department’s clients. The
 contract includes detailed requirements regarding responsibilities of the provider
 both with respect to provision of care to clients and with respect to meeting the
 Department’s procedural, training, and other requirements.



                                             3
No. 75032-1 -114



assistant principal contacted Adult Protective Services (APS)3 on February 9,

2007. APS is also a division of the Department. See RCW 74.34.067(8).

       APS conducted an investigation. APS representative Corinne Wasmundt

went to Virginia’s school to interview her on February 14, 2007. Evelyn Cantrell,

Department Attorney and Legal Benefits Advisor, was also present during the

meeting with Virginia. On February 27, 2007, Wasmundt went with Olympia Police

Officer, Ed Dawson, to the Koshelnik home. Cantrell was also present as an

observer. Wasmundt and Dawson interviewed Debra. According to Wasmundt,

during the interview, Debra admitted to slapping Virginia and poking her in the

chest. According to Officer Dawson, Debra gave Virginia a gentle pop in the mouth

and a gentle poke to the chest. He did not feel that Virginia was ever in danger,

but because the facts of the case met the elements for domestic violence, he was

required to report the incident to the prosecutor’s office. The prosecutor did not

press charges.

       Debra informed DDD case workers Kris Jorgensen-Dobson and Barbara

Uehara that she was being investigated by APS.           On February 28, 2007,

Jorgensen-Dobson received a phone call from Wasmundt at APS. Wasmundt told

Jorgensen-Dobson that she would be substantiating the allegation of domestic




       ~ The school contacted APS, because Virginia was 18 years old and is
therefore not considered a child. See RCW 26.44.020(2) (under the child abuse
statute a child is any person under the age of 18). A “vulnerable adult” includes a
person who has a developmental disability—like Virginia. RCW 74.34.020(21).



                                            4
No. 75032-1-115



violence. Uehara also made a note in the file indicating that she understood that

Debra had admitted to striking a client4 on the face.

       On March 14, 2007, Uehara issued a notice to Parker stating that effective

March 15, 2007, DDD was terminating payments to his care provider—Debra. The

notice stated that DDD was taking that action, because of a reported allegation of

abuse or neglect to a vulnerable adult that is under investigation with APS. The

notice stated that Parker remained eligible for personal care services, but that he

had to choose another qualified provider. The Department sent a similar notice to

Daniel.

          On April 2, 2007, Daniel and Parker requested a hearing and agreed to

consolidate their hearings. Debra continued providing personal care services to

Daniel and Parker even though she was not being paid. An administrative hearing

was held on May 21, 2007.

          After conducting the hearing, the Administrative Law Judge (AU) issued a

decision on June 1, 2007. AU Rebekah Ross concluded that the light smack

Debra gave to Virginia did not constitute abuse under the relevant statute and

regulations.     Consequently, the AU    concluded that the Department erred in

denying Daniel and Parker their choice of care provider and it reversed the

Department’s decision to deny Debra as their care provider.




        ~ Virginia is also a DDD client and is thus eligible for DDD services, but was
 not receiving services during the time periods at issue.



                                              5
No. 75032-1-1/6



      Then, on June 4, 2007, APS notified Debra that it had made a substantiated

finding that she had physically abused a vulnerable adult. The notice stated that

APS specifically determined that Debra willfully physically abused a vulnerable

adult when she punched and slapped Virginia. Debra timely appealed, asserting

that AU     Ross already reversed the Department’s denial of payment for care

services and found that the incident did not fall within the definition of abuse.

          On June 6, 2007—five days after AU Ross’s final order was issued in

Parker’s and Daniel’s appeal, reversing the Department’s decision to deny their

choice of provider—the Department again notified Parker that it was terminating

Debra’s client service contract. On June 24, 2007, Parker again appealed the

denial.

          While Parker’s second appeal was pending, AU          Jamie Moore held a

hearing on Debra’s appeal in January 2008, considering whether APS’s

substantiated finding of abuse should be reversed. On March 19, 2008, the AU

issued an order, concluding that the preponderance of the evidence in the hearing

record did not establish that Debra’s action, when she attempted to pop Virginia

on the tongue and then poke Virginia in the chest, constituted abuse under the

 relevant statute. Consequently, the AU reversed the Department’s substantiated

finding of abuse.

          The Department filed a petition for review of this order on May 14, 2008.

 While that appeal was pending, Parker’s appeal challenging the Department’s

 decision to terminate Debra’s client service contract continued. On June 20, 2008,



                                               6
No. 75032-1-1/7



Parker filed a motion for summary judgment, contending that the Department’s

decision to deny his choice of Debra as his care provider was barred by res

judicata. A hearing was held on this matter on July 17, 2008 before AU Ross.

      On August 18, 2008, AU       Ross granted Parker’s motion for summary

judgment. AU Ross noted that although the evidence about the February 8, 2007

incident would be the same type of evidence presented in this action, a new

significant item of evidence could exist—an APS substantiated finding of abuse

against Debra. But, in determining whether the APS substantiated finding of abuse

was sufficient new evidence to defeat res judicata, AU Ross considered the fact

that the APS finding had been reversed after a full administrative hearing. She

concluded that the issue of whether Debra abused Virginia had been resolved in

Debra’s favor in Parker’s appeal and collateral estoppel would bar the Department

from injecting that issue into the proceedings unless and until AU Moore’s order

was reversed on appeal.

       Shortly thereafter, on August 27, 2008, the Department’s Board of Appeals

affirmed AU Moore’s initial order reversing the APS’s substantiated finding of

physical abuse against Debra. APS did not seek further review of this decision.

    II. The Second Incident

       On January 4, 2010, roughly a year and a half later, APS received a report

that Debra was mentally abusing Evelyn. At the time, Evelyn was 85 years old

 and her husband had recently passed away.         The reporter stated that the




                                            7
No. 75032-1-1/8



conditions in the Koshelnik home were filthy, that Evelyn is confined to her room

until Debra lets her out, and that Debra yells at Evelyn through sign language.

       Consequently, the Department assigned Loren Juhnke to investigate.

Juhnke went to the Koshelnik household unannounced with a female interpreter

and told Debra that he needed to speak with Evelyn concerning the report of

abuse. Debra told Juhnke that Evelyn was in an emotionally and physically fragile

state and that any high stress contact would be frightening and dangerous to her.

Juhnke informed Debra that he was going to interview Evelyn anyway. And, he

did not allow Debra to remain in the room during the interview.             Juhnke

documented the visit with Evelyn and concluded that the report of possible

mistreatment was unsubstantiated.       He noted that Evelyn stated she had a

wonderful family and that her room was clean and free of clutter.

       Debra went to check on Evelyn within minutes after Juhnke left. Evelyn told

Debra that she loved her and repeated, “I’m staying” and “this is my home” several

times. Debra tried to calm Evelyn down, but it did not work. Evelyn then had a

stroke. By the time they got to the emergency room, Evelyn was unconscious.

Evelyn did not regain consciousness and died the next day.

    Ill. The Lawsuit

       On June 7, 2011, Debra—individually and as personal representative of

Evelyn’s estate (the Estate)—and Turner (collectively “appellants”) filed a

complaint against the Department, the Secretary of the Department (Susan

 Dreyfus), the Director of DDD (Linda Rolfe), Wasmundt, Cantrell, Juhnke, and



                                             8
No. 75032-1 -119



Uehara. The appellants alleged 12 causes of action. Specifically, they brought

claims for the wrongful death of Evelyn, conspiracy, defamation, outrage, and

violation of federal civil rights. On July 14, 2011, the Department responded,5

denying all allegations against it.

       Nearly two years later, on June 7,2013, the Department filed a CR 12(b)(6)

motion to dismiss and an alternative motion for summary judgment as to the

wrongful death and other claims raised on behalf of only the Estate. In response,

appellants filed exhibits including declarations, the administrative rulings, and

other supporting evidence.        On July 12, 2013 the trial court granted the

Department’s motion and dismissed all of the appellants’ claims related to the

Estate. The trial court then denied appellants’ motion for reconsideration.

       In the meantime, on August 22, 2013, the Department moved for summary

judgment as to all of appellants’ remaining claims. The trial court granted the

Department’s motion for summary judgment as to appellants’ remaining claims on

March 27, 2015. The appellants appeal.

                                      DISCUSSION

       Appellants argue that the trial court erred when it granted both of the

Department’s motions. The Department’s first motion was a CR 12(b)(6) motion

to dismiss and an alternative motion for summary judgment. The Department’s

second motion was a motion for summary judgment. Because the appellants


      ~ We refer to the Department defendants collectively as “the Department”
except where appellants’ claims are against specific individual defendants.



                                             9
No. 75032-1-1/10



submitted evidence outside the pleadings in response to the Department’s first

motion, and because the trial court did not exclude it, we treat both of the trial

court’s orders as dismissals on summary judgment.            ~ Granville Condo.

Homeowners Ass’n v. Kuehner, 177 Wn. App. 543, 550-51, 312 P.3d 702 (2013)

(stating that a motion to dismiss for failure to state a claim is treated as a motion

for summary judgment when matters outside the pleadings are presented to and

not excluded by the court).

       This court reviews summary judgment orders de novo. Hadley v. Maxwell,

144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate

only where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn.

App. 306, 310, 44 P.3d 894 (2002). An appellate court may affirm a trial court’s

disposition of a summary judgment motion on any basis supported by the record.

Davies v. Holy Family Hosp., 144 Wn. App. 483, 491, 183 P.3d 283 (2008).

       When considering the evidence, the court draws reasonable inferences in

the light most favorable to the nonmoving party. Schaaf v. Hiqhfield, 127 Wn.2d

17, 21, 896 P.2d 665 (1995).       However, a nonmoving party may not rely on

speculation or on argumentative assertions that unresolved factual issues remain.

White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). In a summary judgment

motion, the moving party bears the initial burden of showing the absence of an

issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225,

770 P.2d 182 (1989). If the moving party is a defendant and meets the initial



                                              10
No. 75032-1-I/li



showing, then the inquiry shifts to the party with the burden of proof at trial—the

plaintiff. ki. The defendant may meet this initial burden by pointing out that there

is an absence of evidence to support the nonmoving party’s case. j~ at 225 n.1.

If, at this point, the plaintiff fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial, then the trial court should grant the motion. Id. at

225. In making this responsive showing, the nonmoving party cannot rely on the

allegations made in its pleadings. Id. The response by affidavits or as otherwise

provided in CR 56(e) must set forth specific facts showing that there is a genuine

issue for trial.   ]4~ at 225-26. Because the defendants met their initial burden by
pointing out that there was an absence of evidence to support the appellants’ case,

to defeat summary judgment and to prevail in this case, the appellants had the

burden of establishing through admissible evidence that there was a material issue

of fact as to every element of their claims.

        The appellants also argue that the trial court erred when it denied its motion

for reconsideration as to the claims relating to Evelyn’s death.           Motions for

reconsideration are addressed to the sound discretion of the trial court, and a

 reviewing court will not reverse a trial court’s ruling absent a showing of manifest

abuse of that discretion. Wagner Dev., Inc. v. Fid. & Deposit Co. of Md., 95 Wn.

App. 896, 906, 977 P.2d 639 (1999).




                                               11
No. 75032-1 -1/12



   I.   Claims Related to Evelyn’s Death

        We begin by addressing appellants’ claims that were dismissed through the

trial court’s first order granting summary judgment—all of the claims against the

Department that related to Evelyn’s death.

        The appellants’ complaint alleged several facts about APS investigator

Juhnke’s interview with Evelyn. The complaint noted that rather than investigating

the source of the allegations against Debra’s care of Evelyn, the Department sent

an APS agent to interrogate Evelyn—implying that this was premature. And, the

complaint stated that, “To this 85-year-old frail deaf woman they sent a poorly

trained but imposing six foot tall man, Loren Juhnke, whose presence and the

nature of his questioning literally terrified [Evelyn] to death.” The complaint alleged

that supervisors or APS agents with basic knowledge or adequate training would

have known that their tactics, including using an ASL interpreter unknown to

Evelyn, would cause life threatening anxiety to a person in Evelyn’s condition. The

complaint noted that the Department’s ASL interpreter—the interpreter who was

present during Evelyn’s interview—confirmed that, in her opinion, questioning an

elderly deaf woman with a strange interpreter would in fact likely cause her great

anxiety. And, it stated that Evelyn’s hemorrhagic stroke—and death the next day—

was caused by the “terror generated by the interview.”

    A. Negligent Investigation   —   The Department and Juhnke

        On appeal, the appellants cite to Debra’s declaration and contend that

Juhnke’s “questioning did, in fact cause [Evelyn’s] death by a massive stroke which



                                              12
No. 75032-1-1/13



occurred within minutes of his ending an ill-conceived interview, the dangers of

which he was clearly warned.”         The appellants claim that Juhnke’s gross

negligence during the investigation caused Evelyn’s death.

      In general, Washington common law does not recognize a claim for

negligent investigation because of the potential chilling effect such claims would

have on investigations. Janaszak v. State, 173 Wn. App. 703, 725, 297 P.3d 723

(2013).      We have refused to recognize a cognizable claim for negligent

investigation against law enforcement officials and other investigators.         j.çj~.

Washington courts have only recognized a negligent investigation claim against

the Department’s caseworkers investigating child abuse pursuant to their specific

statutory duty to investigate. j~

          The cases that have recognized such a claim involve allegations that the

Department failed to adequately investigate a child’s living situation before making

a decision to remove a child from a home or place a child in a home. M.W. v. Dep’t

of Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). But in M.W.,

the court rejected the plaintiff’s attempt to broaden the duty to investigate after

parents sued, claiming that Department investigators inappropriately touched their

daughter’s genitals during the course of a child sexual abuse investigation. j~ at

592, 595-96, 598, 601.       Specifically, the M.W. court considered whether the

statutory purpose of the child abuse statute supports a broader duty to protect

children from harm that is the result of direct negligence by Department




                                             13
No. 75032-1-1/14



investigators during the course of an investigation, such as dropping a child or

negligently inflicting emotional harm. Id. at 598.

       The M.W. court engaged in this inquiry, because of the test outlined in

Bennett v. Hardy, 113 Wn.2d 912, 919, 784 P.2d 1258 (1990), to determine

whether we may infer a cause of action from a statutory duty. M.W., 149 W.2d

596. The Bennett court recognized that when the legislature creates a duty, we

may provide a remedy for its breach if the remedy is appropriate to further the

purposes of the statute and is needed to assure its effectiveness. j~ To determine

whether an implied cause of action was warranted, the Bennett court adopted the

approach used by federal courts, which requires us to determine, among other

factors, whether the underlying purpose of the legislation is consistent with

inferring a remedy. Id. The M.W. court ultimately held that a cause of action from

a statutory duty is limited by the harm the statute is meant to address. ~ at 602.

It declined to expand the cause of action because the child abuse statute from

which the tort of negligent investigation was implied does not contemplate the type

of harm that could result directly from investigators. ~

       Here, the Department had a statutory duty to investigate.        ~ RCW

74.34.063(1) (stating that the Department shall initiate a response to a report of

abuse of a vulnerable adult no later than 24 hours after knowledge of the report).

No Washington case has decided that a negligent investigation claim exists

relative to this statute. We need not do so here.




                                              14
No. 75032-1-1/15



      Even if we were to assume that a claim for negligent investigation extends

to APS investigations, and even if Juhnke’s simple presence or behavior somehow

constituted an improper investigation, M.W. requires us to consider the harm the

vulnerable adult statute is meant to address. The purpose of chapter 74.34 RCW

is to provide the Department and law enforcement agencies with the authority to

investigate complaints of abuse or neglect of vulnerable adults by family members,

caregivers, and others with whom they have a relationship, and to provide

protective services to protect these vulnerable adults.     ~ RCW 74.34.005

(stating the legislature’s findings); SUBSTITUTE H.B. 1620, at 1, 56th Leg., Reg.

Sess. (Wash. 1999). Nothing in the act hints at a purpose of protecting vulnerable

adults from the Department or creating a cause of action in tort against the

Department for the manner in which its personnel carry out the statutory mandate.

       Even if we were to recognize that appellants could bring a claim for

negligent investigation against Juhnke in this context, causation is a required

element of a negligent investigation claim. ~ Tyner v. Dep’t of Soc.& Health

Servs., 141 Wn.2d 68, 82-83, 1 P.3d 1148 (2000). The trial court found that

appellants did not present a prima facie case of causation between Juhnke’s acts

and Evelyn’s death. We agree.

       To survive summary judgment, the plaintiff’s showing of causation must be

based on more than mere conjecture or speculation. Miller v. Likins, 109 Wn. App.

140, 145, 34 P.3d 835 (2001).         Therefore, to survive summary judgment,

appellants would have to demonstrate that there is an issue of material fact as to



                                            15
No. 75032-1-1/16



whether Juhnke’s investigation caused Evelyn’s stroke and eventual death. It is

not disputed that Evelyn was agitated after the interview.        But, there was no

evidence that her stroke and subsequent death were caused by the agitation from

the interview—it is mere speculation.

      Appellants’ complaint stated in a conclusory fashion that the interview

caused Evelyn’s blood pressure to spike, leading to a stroke within minutes of the

interview. It also asserted that the Department’s interpreter later confirmed6 that,

in her opinion, questioning an elderly deaf woman with a strange interpreter would

likely cause her great anxiety.         In its memorandum in opposition to the

Department’s motion for summary judgment, appellants cited to the declaration of

Allie Joiner, an advocate for deaf persons. Joiner asserted that an interview like

the one at issue here would likely cause a deaf interviewee anxiety. She concluded

that conducting the interview and the manner in which it was conducted was

grossly negligent.    Significantly, Joiner’s declaration did not assert that the

interview—or the anxiety stemming from the interview—caused Evelyn’s death.

Nor was any medical testimony supporting such causation offered.

       On appeal, appellants cite to Debra’s declaration, which outlines the

timeline of events between when Juhnke left and when Evelyn had a stroke. It

also cites to literary references to support its assertion that it provided enough facts

to survive summary judgment on the basis of causation. This argument asks to


       6  There is no declaration from the interpreter in the record to support this
 assertion.



                                              16
No. 75032-1 -1117



allow a jury to speculate that due to the temporal proximity of the events that there

was cause and effect. It is insufficient to establish causation. Appellants did not

meet their burden to provide evidence to support every element of this claim.

Young, 112 Wn.2d at 225.        We hold that the trial court properly dismissed

appellants’ negligent investigation claim on summary judgment.

       Appellants also claim that the trial court erred when it denied its motion for

reconsideration on the order granting the Department summary judgment as to

these claims. Appellants assert only that denial of their motion was improper

because their expert, Joiner, had stated that the Department’s practice of sending

an APS agent who was not himself ASL fluent would be distressing to an

interviewee. The trial court was already duty bound to accept the allegation that

the interview caused anxiety as true for purposes of summary judgment. See

Schaaf 127 Wn.2d at 21 (stating that when considering the evidence, the court

draws reasonable inferences in the light most favorable to the nonmoving party).

The declaration adds nothing to prove the distress caused the death. We see no

basis on which to conclude that denial of reconsideration was an abuse of

discretion.

        B.     Negligent Training   —   Susan Drevfus

       Appellants also assert a cause of action for negligent training against Susan

 Dreyfus—the Secretary of the Department. Appellants assert that no one in the

 chain of command seemed to know that it is always dangerous practice to send

 an official investigator without ASL skills to interview an elderly deaf woman. And,



                                               17
No. 75032-1 -1/18



that this ignorance led to Evelyn’s death. Appellants assert “[t]his is an equal

protection claim and a denial of life without due process.” Appellants ostensibly

raise this as a 42 U.S.C.   § 1983~ (~ 1983) cause of action. Appellants also assert
that “it is a discrimination claim under [chapter] 49.60 [RCW].”

       The basis of the appellants’ negligent training argument on appeal is

confusing. In the event that appellants intended their negligent training argument

to be a state law claim—as it alleged below—we will address that here.                In

Washington, a cause of action for negligent training requires a plaintiff to show that

a subordinate employee acted outside the scope of his or her employment. ~

LaPlant v. Snohomish County, 162 Wn. App. 476, 479-80, 271 P.3d 254 (2011).

When an employee commits negligence within the scope of employment, a

different theory of liability—vicarious liability—applies.       ]~ Therefore, under
Washington law, a claim for negligent training is generally improper when the

employer concedes the employee’s actions occurred within the course and scope

of employment. Id. at 480. Here, the Department has conceded that the individual


       ~ The statute states in pertinent part:

                       Every person who, under color of any statute,
               ordinance, regulation, custom, or usage, or any State or
               Territory or the District of Columbia, subjects, or causes to be
               subjected, any citizen of the United States or other person
               within the jurisdiction thereof to the deprivation of any rights,
               privileges, or immunities secured by the Constitution and
               laws, shall be liable to the party injured in an action at law, suit
               in equity, or other proper proceeding for redress.

42 U.S.C.   § 1983.


                                                 18
No. 75032-1-1/19



defendants, including Junkhe, were acting within the scope of their employment at

the time of the events in question. To the extent the claims under §1983 and

chapter 49.60 RCW are based on negligent training, they fail.

       Moreover, there is no indication in the record that the appellants raised

§ 1983 claims and claims under chapter 49.60 RCW below against Dreyfus based
on a theory of negligent training. Therefore, these specific claims are being raised

for the first time on appeal.

       The general rule is that appellate courts will not consider issues raised for

the first time on appeal. Eyman v. McGehee, 173 Wn. App. 684, 698, 294 P.3d

847 (2013). RAP 2.5(a)(3) provides an exception to the general rule that parties

cannot raise new arguments on appeal. State v. WWJ Corp., 138 Wn.2d 595, 602,

980 P.2d 1257 (1999).           We construe the exception narrowly by requiring an

appellant seeking review to identify (1) a constitutional error and (2) how the

alleged error actually affected appellants’ rights at trial. j~; Eyman, 173 Wn. App.

at 698-99. RAP 2.5(a)(3) was not designed to allow parties a means for obtaining

new trials whenever they can identify a constitutional issue not litigated below.

Eyman, 173 Wn. App. at 699. If the record from the trial court is insufficient to

determine the merits of the constitutional claim, then the claimed error is not

manifest and review is not warranted. Id. Because appellants fail to show why

these claims are manifest constitutional errors warranting review under RAP

2.5(a)(3), we decline to consider them for the first time on appeal.




                                               19
No. 75032-1-1/20



   II. Remaining Claims

      Appellants’ remaining claims involve the Department’s investigation into

Debra’s alleged abuse against Virginia and the related termination of personal care

payments.    Appellants claim that individual employees within the Department

defamed the Koshelnik family, engaged in outrageous behavior, conspired against

the Koshelnik family, and violated their federal due process rights. The trial court

dismissed all of these claims on summary judgment.

       As to the federal claims, the trial court stated that it struggled to connect the

appellants’ specific allegations with evidence to each of the named defendants. It

noted that with regard to the state law claims, appellants did not provide sufficient

evidence to defeat summary judgment, and it found that there were no genuine

issues of material fact that precluded summary judgment dismissal. Appellants

assert that the trial court erred when it granted the Department’s motion for

summary judgment as to these claims.

       A. Defamation     —   Department Employees

       In their complaint, appellants alleged that Department employees spread

defamatory information about their case within the Department including the

falsehood that Virginia showed up to school with visible injuries. In its motion for

summary judgment, the Department asserted, among other things, the

dissemination of the information within the Department was subject to a privilege

that shielded it from liability.




                                               20
No. 75032-1-1/21



       On appeal, appellants argue that, “[p]lacing in the public record an

interagency communication as ‘substantiated’ a finding that Debra had abused her

vulnerable adult daughter after 1) a[] finding by an administrative tribunal that she

had not, and 2) with no new evidence, with the malicious intent to damage her

ability to ever be employed for compensation at her calling such that the agency

could continue to receive her services for free, defeats any possible qualified

privilege or immunity and establishes all of the elements [of defamation].”

       In order to make out a prima facie case of defamation, a plaintiff must prove

falsity, an unprivileged communication, fault, and damages. Robel v. Roundup

Corp., 148 Wn.2d 35, 55, 59 P.3d 611(2002). Washington recognizes a qualified

privilege for the protection of common interests. Moe v. Wise, 97 Wn. App. 950,

957-58, 989 P.2d 1148 (1999). The common interest privilege applies when the

declarant and the recipient have a common interest in the subject matter of the

communication. Id. This privilege generally applies to organizations, partnerships,

and associations and arises when parties need to speak freely and openly about

subjects of common organizational or pecuniary interest. j4~ at 958-59. The

publications generally must be made to a specific group sharing a common

interest, rather than the general public. See Momah v. Bharti, 144 Wn. App. 731,

747-48, 182 P.3d 455 (2008). At the hearing on the Department’s second motion

for summary judgment, appellants conceded that the publication of the alleged

defamatory statements were made only internally within the Department. The

alleged defamatory statements were made by employees of the Department to



                                              21
No. 75032-1 -1/22



employees of the Department. We conclude that even if appellants made out a

prima facie case of defamation, the common interest privilege applies here.

      The appellants appear to concede that the common interest privilege

applies, arguing instead that the qualified privilege can be defeated. A qualified

privilege may be lost if it can be shown that the privilege has been abused. fyjp~,

97 Wn. App. at 963. The defendant abuses the qualified privilege if he or she

knows the matter to be false or acts in reckless disregard as to the truth or falsity

of the statement. Id. at 963. The appellants argue that placing in the Department’s

records, with malicious intent, a substantiated finding that Debra had abused her

vulnerable adult daughter, after an administrative tribunal decided that she had

not, defeats any possible qualified privilege.

         The appellants characterize APS’s substantiated finding of abuse as the

“false” statement. Ultimately, the appellants are asserting that the finding was

false, because the DDD decision had already been challenged and the AU

rejected the conclusion that the contact between Debra and Virginia constituted

abuse.     But, in February 2007, months before AU        Ross determined that the

physical contact was not abuse, Wasmundt, from APS, informed DDD case

workers that she would be substantiating the allegation of domestic violence. It is

clear that APS was performing its own, independent investigation at that time.

Appellants do not assert that APS did not have a duty to perform its own

 investigation or that DDD’s inquiry into Debra’s client services contract

 necessitated that APS shrink from that duty and not make its own finding.



                                                 22
No. 75032-1-1/23



      No evidence in the record establishes which of the individual Department

(APS) employees actually made the substantiated finding and internally published

it. Appellants assert it was Wasmundt because she was the lead investigator on

the case. But, there is no evidence in the record corroborating this fact. Nor is

there evidence that the APS employee who ultimately internally published the

substantiated the finding of abuse knew of AU Ross’s decision or acted in reckless

disregard of it. Therefore, determining whether the individual who actually made

and published the finding knew it to be false or entered the substantiated finding

with reckless disregard of that fact cannot be ascertained based on this record

without speculation.

       Appellants have not met their burden to demonstrate that the qualified

privilege was lost. The trial court properly granted the Department’s motion for

summary judgment as to appellants’ defamation claim.

       B. Outrac~e

       Below, appellants asserted that outrage had been inflicted on both Evelyn

and Debra. On appeal, appellants appear to have abandoned the outrage claim

as to Evelyn and focus on the outrage claim as to Debra.

       The elements of outrage are generally factual questions for the jury. Sutton

v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 869, 324 P.3d 763 (2014).

 However, a trial court faced with a summary judgment motion must make an initial

determination as to whether the conduct may reasonably be regarded as so

 extreme and outrageous as to warrant a factual determination by the jury. jç[. To



                                            23
No. 75032-1-1/24



establish a claim for the tort of outrage, appellants must demonstrate that (1) Debra

suffered severe emotional distress; (2) the emotional distress was inflicted

intentionally or recklessly, and not negligently; (3) the conduct complained of was

outrageous and extreme; and (4) Debra was the object of the outrageous conduct.

See Lewis v. Bell, 45 Wn. App. 192, 194-95, 724 P.2d 425 (1986). The defendant’s

conduct must be 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. Reid v. Pierce County, 136 Wn.2d 195,

202, 961 P.2d 333 (1998).

       Appellants assert that “there was a concerted effort to deprive Debra [ofj

the resources with which to care for her disabled children by wrongfully branding

her an abuser solely to save the State money.” They argue that a reasonable

person could find such behavior extreme and outrageous. When Parker and

Daniel were notified that DDD was terminating payments to Debra, they were

informed that they remained eligible for personal care services, but that they had

to choose another qualified provider. The evidence does not support an inference

that a change of service provider would necessarily save the state money. Any

savings would flow from not choosing a different provider.

       Appellants also cite to Debra’s declaration and note that a finding of

substantiated abuse would prevent Debra from ever being employed in caring for

persons with disabilities. Debra acknowledged that the Department told her she

did not have to disclose on job applications that there was a substantiated finding



                                              24
No. 75032-1 -1/25



of abuse against her because it has been overturned. But, Debra stated that this

makes her uncomfortable, and that consequently, she has not applied for any

volunteer or paid positions where she would come in contact with adults or children

with special needs. Debra’s declaration states that this has caused her great

distress.

       But, to prevail on an outrage claim, a plaintiff is required to come forward

with evidence that he or she actually suffered severe emotional distress as a result

of the defendant’s conduct. Sutton, 180 Wn. App. at 871. Emotional distress

includes all highly unpleasant mental reactions such as fright, horror, grief, shame,

humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.

ki. But, liability arises only when the emotional distress is extreme. ]~. at 871-72.

Here, appellants have provided no evidence that Debra experienced severe

emotional distress.   Therefore, the trial court did not err when it granted the

Department’s motion for summary judgment on the claim of outrage.

        C. Due Process   —   Individual Defendants

        Appellants argue that the individual defendants—Uehara, Rolfe, and

Wasmundt—violated their substantive due process rights. Appellants ostensibly

bring this claim as a deprivation of constitutional rights under § 1983.8 And,

        8Appellants’ reliance on § 1983 is apparent, because appellants cite to
Sintra Inc. v. City of Seattle, 119 Wn.2d 1, 23, 829 P.2d 765 (1992), and Lutheran
Day Care v. Snohomish County, 119 Wn.2d 91, 829 P.2d 746 (1992), to support
their assertions. Both of these cases involved lawsuits for a deprivation of
substantive due process rights under § 1983. Sintra, 119 Wn.2d at 6; Lutheran,
119 Wn.2d at 124-25. Appellants argue that it is clear that “when the state and
those that act in its name abuse the established process and procedures to deny



                                              25
No. 75032-1-1/26



appellants bring these claims against the individual defendants, apparently

recognizing that the Department cannot be held liable for violations of § 1983. ~

Janaszak, 173 Wn. App. at 720 (recognizing that neither a state nor its officials

acting in their official capacities are considered persons that may be liable to the

injured party under   § 1983). However, named individuals—sued in their individual
capacities—may be held liable.9 Smith v. State, 135 Wn. App. 259, 270, 144 P.3d

331 (2006).

       The appellants address each individually-named Department defendant

one by one. But, rather than asserting alleged due process violations attributable

to each defendant, the appellants list only facts about each individual defendant’s

involvement with the Koshelnik family and make bald assertions about their

culpability. Then, in their due process argument section, appellants refer to actions

categorically taken by “the Department.” As stated above, the Department cannot

be held liable for violations of § 1983. See Janaszak, 173 Wn. App. at 720.

              Ultimately, all of appellants’ claims relate to the fact that the

Department required them to defend the same conduct—the claim of abuse by

Debra in hitting Virginia—in two separate administrative contexts. The appellants


public goods and relationships to which the Plaintiff is lawfully entitled      .   it
                                                                                    .   .


violates” fundamental due process principles.
       ~      note that appellants’ complaint did not specify whether they were suing
the individual Department defendants in their individual or official capacities.
However, by virtue of the fact that the Department asserted the defense of qualified
immunity in its motion for summary judgment, we accept that appellants have sued
the defendants in their individual capacity. Indeed, on appeal, the Department
appears to concede this point by arguing that the individual defendants are entitled
to qualified immunity.



                                             26
No. 75032-1 -1/27



concede that Virginia’s allegations of abuse against Debra needed to be

investigated. And, they conceded that the initial proceeding brought by DDD

during the pendency of the APS abuse investigation was also proper.            But,

appellants stated that when the Department “went after them again” via the

renewed DDD payment proceeding is when the substantive due process violation

occurred. The appellants asserted that the sole purpose behind the administrative

proceedings was to terminate Debra’s payments and save the Department money.

The appellants assert that Uehara agreed to improperly use her powers as a DDD

case worker to deliberately withhold money from the appellants in order to save

the Department money. Uehara issued a notice to Parker stating that DDD was

terminating payments to Debra prior to APS’s substantiated finding of abuse.

Appellants do not assert that this was improper. Rather, appellants cite to an e

mail from a Department supervisor, Dee Nelson, in which Nelson asked

Department employees whether there was a way to disallow the Koshelnik family

from receiving additional money, because it was already receiving a lot of money

from the Department.1° This e-mail was eventually forwarded to Uehara and she

agreed to respond to Nelson’s inquiry. However, Uehara responded only that she

would respond. There is no additional response from Uehara in the record. In

fact, the e-mail in question from Nelson, on which appellants heavily rely, is dated

August 10, 2007—about two months after APS made the substantiated finding of


       10  Nelson is not a named party to appellants’ lawsuit nor do appellants
 assert that she is a part of the alleged conspiracy.



                                            27
No. 75032-1-1/28



abuse and about five months after DDD began withholding payments from Debra.

Therefore, appellants’ attempts to suggest that Uehara’s actions were a result of

Nelson’s instruction is not well founded.

       The appellants also argue that Uehara’s efforts to withhold payments from

them and skew the assessment process to save the Department money was clear,

because, among other things, Uehara testified at a hearing that there were too

many people in the Koshelnik household needing assistance.           But, as stated

above, simply disqualifying Debra from receiving additional care provider

payments would not necessarily save the State money. The Department did not

to refuse to provide necessary services. It required a change of provider.

       Taken in a light most favorable to Debra, this evidence fails to show a

deliberate attempt by Uehara to subject Debra to multiple administrative

proceedings and withhold payments to save the Department money.              Such a

conclusion would be purely speculative.       A nonmoving party on a summary

judgment motion may not rely on speculation. White, 131 Wn.2d at 9, 17.

       As to Rolfe, appellants argue that because she was charged with overall

management of Uehara, she was clearly on notice that the Department was

repeatedly and unsuccessfully targeting the Koshelniks. But, this claim fails for the

same reason the claim against Uehara fails. There only speculative evidence that

Uehara was targeting the Koshelniks. Moreover, even if Rolfe could be held liable

for Uehara’s actions, appellants have provided only speculative evidence that

 Rolfe was on notice that the Koshelniks were being targeted.



                                             28
No. 75032-1-1/29



      As to Cantrell, the appellants assert that she is culpable for re-prosecuting

the substantiated abuse claim without any new evidence when AU Ross had

found no abuse after a full evidentiary hearing.    But, the appellants make no

showing that APS lacked the authority or was not duty bound to proceed, even

after the initial DDD proceeding, to make its own determination that abuse had

occurred. They submit no authority to support the proposition that the two separate

Department divisions—APS and DDD—could not lawfully proceed in this manner.

In fact, RCW 74.34.068(1) specifically authorizes the Department to make a

determination regarding whether the incident of abuse occurred.

       Finally, as to Wasmundt, appellants claim in a conclusory fashion that

because she was the lead Department investigator, it was her decision to reclassify

the incident between Debra and Virginia from suspected abuse to substantiated

abuse. On February 28, 2007, a caseworker from DDD received a phone call from

Wasmundt. Wasmundt told the caseworker that she would be substantiating the

allegation of domestic violence. Appellants do not allege that this initial contact

was improper. The record indicates that “APS” notified Debra on June 4, 2007

that it made a substantiated finding of abuse. Even assuming Wasmundt was the

APS employee who decided to make the finding, appellants make no showing that

it was not Wasmundt’s job to do so. Nor do they make a showing that Wasmundt

knew or should have known about the finding of abuse made in the other

proceeding.




                                            29
No. 75032-1 -1/30



      The appellants failed to provide evidence connecting each individual

defendant to the repetitive efforts to terminate rights that are alleged to be a

constitutional deprivation. We hold the trial court did not err when it granted the

Department’s motion for summary judgment on appellants’     § 1983 substantive due
process claims.

       D. Conspiracy   —   Individual Defendants

       Finally, appellants argue that individual defendants engaged in a conspiracy

to deny Debra the right to contract with the Department to provide paid services to

her family. They argue that the evidence is clear to support a claim of conspiracy.

They cite to only Nelson’s e-mail and the fact that the Department “[r]epeated legal

processes.”

       To establish a claim for civil conspiracy, a plaintiff must prove by clear,

cogent, and convincing evidence that (1) two or more people combined to

accomplish an unlawful purpose, or combined to accomplish a lawful purpose by

unlawful means; and (2) that the conspirators entered into an agreement to

accomplish the conspiracy. Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807

(2008).

       Appellants define the unlawful purpose was denying Debra the right to

contract with the Department to provide paid services to her family by wrongfully

branding her an abuser and secondarily depriving her family members the right to

 have paid services provided by their chosen qualified provider as required by




                                              30
No. 75032-1-1/31



federal Medicaid law. The appellants note that conspiracies are generally shown

by circumstantial evidence—not direct evidence.

      Appellants cite to two factors to support their claim: (1) the e-mail exchange

mentioned above between Department employees and (2) the fact that the

Department brought repeated legal processes. While the e-mail shows that the

Department was concerned with how much it was paying the Koshelnik family,

Nelson’s e-mail on which appellants predominantly rely to support its conspiracy

claim, could not have been a precipitator for the investigations or proceedings.

This is because it was sent after both APS and DDD already initiated investigations

and proceedings against the Koshelnik family. It is undisputed that Debra struck

Virginia. It is undisputed that APS had a duty to investigate the allegation of abuse.

It is undisputed that if abuse occurred a service provider would lose eligibility to

contract.   DDD proceeded to review Debra’s service contracts on the initial,

unsubstantiated allegations.     APS went forward with its separate process of

investigating the abuse of Virginia. When it substantiated the abuse, DDD again

proceeded to stop services. As noted above, the record does not demonstrate

that APS knew the AU had determined the incident with Virginia did not rise to the

level of abuse, and that it acted with malice or recklessly disregarded that fact

when it issued a finding of substantiated abuse. The fact that the AU concluded

that Debra’s actions did not rise to the level of abuse does not support an inference

that the Department wrongfully branded Debra as an abuser to deprive her family

 of her paid services. The appellants do not demonstrate that the later concern



                                              31
No. 75032-1 -1/32



expressed in Nelson’s e-mail about the amount of money paid to Debra’s

household was an improper concern. The record in a light most favorable to the

appellants does not support that Department employees engaged in unlawful

activities or purposes, or engaged in lawful purposes by unlawful means.

       We hold that the trial court did not err when it granted the Department

summary judgment on these claims.

       We affirm.




WE CONCUR:



                /                               ~




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