                                                                                                  FILED
                                                                                           COURT OF APPEALS
                                                                                                DIVISION kI

                                                                                          2015 FEB I O   MI 8: 56




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

HAFID TAHRAOUI, an individual,                                            No. 44829 -7 -II


                                     Appellant,


        v.



FRANKLIN BROWN, RUSTIN WILDER,                                       UNPUBLISHED OPINION
ERIN ORBITS, JOHN and JANE DOES 1 - 4
individually, and in his or her official Capacity,
PIERCE COUNTY, a municipal corporation,
PIERCE COUNTY SHERIFF, a county
 agency; and PIERCE COUNTY
 PROSECUTOR, a county agency,

                                     Respondents.


       JOHANSON, C.J. —          Hafid Tahraoui appeals from a superior court' s order dismissing his

claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress

or " outrage"   under   CR 12( c).    We hold that the superior court erred by dismissing Tahraoui' s

malicious prosecution claim because he alleged sufficient facts to preclude CR 12( c) dismissal.


But we hold that the superior court did not err by dismissing Tahraoui' s abuse of process claim

because the alleged abuse was merely the institution of the process itself, nor did the court err by

dismissing   Tahraoui'   s   intentional infliction   of emotional   distress   claim   because the   alleged
No. 44829 -7 -II


offensive        conduct was      not extreme       and     outrageous.       We hold further that the Pierce County

Sheriff' s Department is not a proper party to this action and, therefore, must be dismissed.

Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with

this opinion.


                                                               FACTS


            In   May      2008,   Tahraoui bought a generator that Eric Pate advertised for sale on


 Craigslist. "1 After that purchase, Tahraoui bought several additional tools and also asked if Pate' s

forklift    was   for   sale.   When Tahraoui      returned    the   next   day, a man named " Shelly "2 was conducting

a garage sale at the residence, and he told Tahraoui that Pate would be available shortly. Clerk' s

Papers ( CP) at 56. But before Tahraoui could speak to Pate, he saw Pate, visibly upset, leave the

home. Tahraoui bought several items from the garage sale, including a trailer hitch for $70.

            The next day, Pate telephoned Tahraoui, told him that the hitch was not for sale, and asked

for its immediate           return.   Tahraoui      refused     because      Shelly   sold   it to him.   Pate contacted the


sheriff' s department to report that Tahraoui stole the hitch. Deputy Sheriff Franklin Brown called

Tahraoui, and according to Tahraoui, left the following voicemail:

                         Hafid, this is Deputy Brown with the Pierce County Sheriff' s Department.
            You took the trailer hitch from [ Pate] from his house. I' ll bet that you will return
            the hitch before I get my hand on you and put you in the Pierce County Jail. If you
            want to contact me call 911 and ask for Deputy Brown."



1 Because this case involves a CR 12( c) dismissal on the pleadings, the facts are drawn and
summarized from Tahraoui' s complaint and we must assume the truth of those facts pursuant to
the court rule.


2 Tahraoui asserts that Shelly is Pate' s stepfather. Deputy Brown does not dispute this contention
directly, but      refers   to   Shelly   only   as " a   third party."     Neither party provides a surname, so Shelly
is   used   throughout.
No. 44829 -7 -II


CP    at   31.    Tahraoui returned Deputy Brown' s call, told Brown that he had purchased the hitch,

and    implored       Deputy       Brown to hear his          version of    the    events.    Notwithstanding Tahraoui' s

explanation,         Deputy       Brown allegedly threatened to           arrest    Tahraoui.     Tahraoui denied Deputy

Brown' s request for his' home address.


            After speaking with Deputy Brown, Tahraoui spoke with Lieutenant Rustin Wilder of the

sheriff' s department who promised to investigate Tahraoui' s complaint relating to Brown' s " bias"

and "      mishandling"       of   the theft   claim.   According to Tahraoui, Lieutenant Wilder attempted to

deceive Tahraoui by suggesting that Tahraoui come to the South Hill Precinct to make a statement

about his complaints. Tahraoui believed that Lieutenant Wilder' s request was a ruse designed to

facilitate Tahraoui'          s   arrest.    Tahraoui claimed that he relayed these suspicions to Lieutenant


Wilder, who momentarily tried to hide his intentions, but ultimately admitted that Tahraoui was

facing      arrest   for " multiple    crimes     including   theft   and extortion."    CP at 32 -33.


            Tahraoui maintained that Lieutenant Wilder accused him of lying and that Lieutenant

Wilder attempted to coerce prosecutors to elevate the severity of Tahraoui' s charges in retaliation

for Tahraoui'        s complaints.          Tahraoui also asserted that Deputy Brown deliberately forwarded a

false report to the prosecuting attorney by refusing to disclose his knowledge that Tahraoui paid

for the hitch.


             Over the following weeks, according to Tahraoui, other deputies from the sheriff' s

department called him, again threatening arrest, and on one occasion, deputies visited his work

place.      Tahraoui        claimed   that   he   avoided arrest   by " ke[ eping]    him    self [ sic] out of reach."   CP at


33. Tahraoui maintained that he lived in fear of imminent arrest over the course of the next several

months,          limiting   his   movement and       avoiding Pierce      County.     Tahraoui stated that he hoped that



                                                                   3
No. 44829 -7 -II



his   problem with    the   sheriff would " go   away   over   time." CP at 33. But in March of 2009, Tahraoui



received a criminal complaint charging him with theft, a charge which prosecutors apparently

refused   to   drop   despite Tahraoui'     s    request.    Tahraoui was arraigned, but the charges were


subsequently dismissed with prejudice.

          Tahraoui brought suit against Deputy Brown, Lieutenant Wilder, Erin Orbits, John and

Jane Does 1 - 4, Pierce County, Pierce County Sheriff' s Department, and the Pierce County

Prosecuting Attorney' s        Office ( collectively " the     County ") alleging a number of federal3 and state

law causes of action, including those discussed below.4 Before the superior court, the County

moved for dismissal on the pleadings under CR 12( c). 5 The superior court considered the County' s

motion for judgment on the pleadings, Tahraoui' s response in opposition to that motion, and the


County' s   reply.    Finding that Tahraoui failed to allege facts capable of sustaining his claims, the

superior court entered an order dismissing Tahraoui' s case with prejudice. Tahraoui appeals.




3 The case was removed to the United States District Court for the Western District of Washington.
The district court dismissed each of Tahraoui' s federal claims and remanded to the superior court
for consideration of his remaining state law claims.

4 The record is not clear as to what role Orbits occupied nor does it contain any reference to John
and Jane Does 1 - 4.


5 CR 12( c) provides,
          Motion for Judgment on the Pleadings. After the pleadings are closed but within
          such time as not to delay the trial, any party may move for judgment on the
          pleadings.        If, on a motion for judgment on the pleadings, matters outside the
          pleadings are presented to and not excluded by the court, the motion shall be treated
          as one for summary judgment and disposed of as provided in rule 56, and all parties
          shall be given reasonable opportunity to present all material made pertinent to such
          a motion by rule 56.


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No. 44829 -7 -II


                                                             ANALYSIS


                                                   I. STANDARD OF REVIEW


           We review a dismissal under CR 12( c) de novo, examining the pleadings to determine

whether the claimant can prove any set of facts, consistent with the complaint that would entitle

the   claimant   to   relief.   Parrilla   v.   King County,    138 Wn.   App. 427,      431, 157 P. 3d 879 ( 2007). And


we treat a CR 12( c) motion for judgment on the pleadings identically to a CR 12( b)( 6) motion to

dismiss for failure to          state a claim.       Suleiman v. Lasher, 48 Wn. App. 373, 376, 739 P. 2d 712

 citing Jack H. Friedenthal,           Mary Kay Kane &          Arthur R. Miller, Civil Procedure 294 -95 ( 1985)),


review     denied, 109 Wn.2d 1005 ( 1987). Like a CR 12( b)( 6) motion, the purpose is to determine


if a plaintiff can prove any set of facts that would justify relief. Suleiman, 48 Wn. App. at 376

 citing Halvorson        v.   Dahl, 89 Wn.2d 673, 574 P. 2d 1190 ( 1978)). "`             In making this determination,

a trial court must presume that the plaintiff s allegations are true and may consider hypothetical

facts that   are not    included in the         record. "'   P.E. Sys., LLC   v.   CPI   Corp.,   176 Wn.2d 198, 210 -11,


289 P. 3d 638 ( 2012) ( quoting          Parmelee v. O' Neel, 145 Wn. App. 223, 232, 186 P. 3d 1094 ( 2008),

rev 'd in part, 168 Wn.2d 515, 229 P. 3d 723 ( 2010)).


                                                 II. MALICIOUS PROSECUTION


           Tahraoui contends that the trial court erred in dismissing his claim for malicious

prosecution because he alleged sufficient facts to demonstrate that Deputy Brown did not act in

good faith, lacked probable cause, and failed to conduct a meaningful investigation.6 The County


6 Tahraoui also argues that the superior court should have stricken " or at least disregarded" portions
of Deputy Brown' s CR 12( c) motion statement of facts because it contained misleading statements.
Br.   of   Appellant    at    11.   Because our review is de novo, and we are required to consider the facts
and the evidence in a light most favorable to the nonmoving party, the facts relied on here are from
Tahraoui' s complaint.

                                                                  5
No. 44829 -7 -II



responds that Tahraoui' s malicious prosecution claim fails because the existence of probable

cause, which was present in this case, is a complete defense to an alleged claim for malicious

prosecution.   We hold that the trial court erred by dismissing Tahraoui' s claim for malicious

prosecution because he alleged sufficient facts that, if proven, could potentially establish the

elements of malicious prosecution.



                                               A. RULES of LAW


        To maintain an action for malicious prosecution, a plaintiff must allege and prove that ( 1)

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

for the institution   or continuation of the   proceeding, ( 3)    the proceeding was instituted or continued

through   malice, (   4) the proceeding was terminated on the merits in favor of the plaintiff or was

abandoned, and ( 5) plaintiff suffered injury as a result of the prosecution. Bender v. City ofSeattle,

99 Wn.2d 582, 593, 664 P. 2d 492 ( 1983). Although the malicious prosecution plaintiff must prove


all required elements, malice and want of probable cause constitute the gist of a malicious


prosecution action; as     such, proof of probable cause          is   an absolute   defense.   Hanson v. City of

Snohomish, 121 Wn.2d 552, 558, 852 P. 2d 295 ( 1993);                  Brin v. Stutzman, 89 Wn. App. 809, 819,

951 P. 2d 291, review denied, 136 Wn.2d 1004 ( 1998).


                                                 B. ANALYSIS


        Tahraoui argues that he alleged sufficient facts that demonstrate that probable cause was


absent because Deputy Brown was careless in conducting his investigation and because he did not

provide the prosecuting attorney with a full and fair disclosure, in good faith, of all material facts

known to him.         The County contends that probable cause existed to believe that Tahraoui




                                                        6
No. 44829 -7 -II



committed the crime of theft based on statements submitted by Pate and corroborating evidence

from the phone call with Tahraoui himself notwithstanding an allegedly insufficient investigation

and the existence of an affirmative defense.


        The County correctly asserts that the existence of an affirmative defense does not vitiate

probable cause. McBride v. Walla Walla County, 95 Wn. App. 33, 40, 975 P. 2d 1029, 990 P.2d

967 ( 1999).    It is equally correct that Washington does not recognize a claim for negligent

investigation   by   members of    law     enforcement.      Fondren v. Klickitat County, 79 Wn. App. 850,

862, 905 P. 2d 928 ( 1995). And in the context of a malicious prosecution claim, Washington courts


have long held that probable cause, which is a complete defense to a claim for malicious

prosecution, is deemed established as a matter of law,


                 i] f it clearly appears that the defendant, before instituting criminal
        proceedings against the plaintiff, made to the prosecuting attorney a full and fair
        disclosure, in good faith, of all the material facts known to him, and that the
        prosecutor thereupon preferred a criminal charge and caused the arrest of the
        accused."




Bender, 99 Wn.2d      at   593 ( quoting   Peasley    v.   Puget Sound   Tug &   Barge Co., 13 Wn.2d 485, 499-


50, 125 P. 2d 681 ( 1942)).       But the corollary to this rule is that if any issue of fact exists as to

whether or not the prosecuting witness did fully and truthfully communicate to the prosecuting

attorney all of the facts and circumstances within his knowledge, then the issue is submitted to a

jury. Bender, 99 Wn.2d at 594 ( quoting Peasley, 13 Wn.2d at 499 -500).




7 A person commits the crime of theft when he or she wrongfully obtains or exerts unauthorized
control over   property     of another with     the   intent to deprive that     person of   the property.   RCW
9A.56. 020( 1)( a).



                                                             7
No. 44829 -7 -II



         Here, Tahraoui asserts that the charges filed against him were predicated on disclosures


that   were not     full   and   fair.    Specifically, Tahraoui contends that Deputy Brown did not disclose

the fact that Tahraoui had purchased the hitch. Assuming the truth of the alleged facts as we must

under   CR 12( c), Tahraoui              can   conceivably     establish want of probable cause.     Because Tahraoui


alleges that Deputy Brown did not make a full and fair disclosure of all the facts known to him,

Tahraoui could potentially prove a set of facts that would justify relief. Suleiman, 48 Wn. App. at

376.


         Tahraoui also alleges facts that appear to support the necessary malice element. Tahraoui

asserts that Wilder vindictively pursued charges against him in retaliation for Tahraoui' s

disparaging remarks about Wilder' s subordinates. Again presuming the truth of those allegations,

a combination of Tahraoui' s claims combined with hypothetical facts that we are entitled to


consider pursuant to CR 12( c) also render Tahraoui' s establishment of that element conceivably

possible.    CPI      Corp., 176 Wn.2d at 210 -11 ( we presume the truth of the allegations and may

consider hypothetical facts not in the record).


          Malice may be inferred from lack of probable cause and from proof that the investigation

or prosecution was undertaken with improper motives or reckless disregard for the plaintiff' s


rights. Youker v. Douglas County, 162 Wn. App. 448, 464, 258 P. 3d 60, review denied, 173 Wn.2d

1002 ( 2011).        But malice may not be inferred from the lack of probable cause alone; for the

inference of malice to be justified, the plaintiff must also demonstrate some affirmative acts


disclosing     at    least   some         feeling     of "'   bitterness, animosity or vindictiveness towards the


appellant. '      Youker, 162 Wn.              App.   at   464 ( internal   quotation marks omitted) (   quoting Moore v.

Smith, 89 Wn.2d 932, 943, 578 P. 2d 26 ( 1978)).                        The " reckless disregard" that can support an




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No. 44829 -7 -II



inference     of malice requires           proof of   bad faith,    a   higher   standard   than   negligence.   State v.


Chenoweth, 160 Wn.2d 454, 468, 158 P. 3d 595 ( 2007).                            And impropriety of motive may be

established in cases of this sort by proof that the defendant instituted the criminal proceedings

against the plaintiff (1) without believing him to be guilty, or (2) primarily because of hostility or

ill will toward him, or (3) for the purpose of obtaining a private advantage as against him. Bender,

99 Wn.2d at 594.


        Tahraoui      asserts   that "      Wilder was mad at the Plaintiff because he complained about


Brown' s     actions."   CP     at   38.    If, as Tahraoui claims, Lieutenant Wilder vindictively pursued

charges against Tahraoui in retaliation for Tahraoui' s aspersions regarding Deputy Brown,

Tahraoui would demonstrate affirmative acts disclosing bitterness or animosity. Youker, 162 Wn.

App.   at   464. And if Lieutenant Wilder instituted criminal proceedings against Tahraoui without


believing him to be guilty, Tahraoui could establish the kind of improper motive that supports an

inference of malice. Bender, 99 Wn.2d at 594 ( quoting Peasley, 13 Wn.2d at 502).

            Accordingly, Tahraoui alleged sufficient facts to preclude CR 12( c) dismissal when viewed

in a light most favorable to Tahraoui as the nonmoving party. The trial court erred by dismissing

his malicious prosecution claim on the pleadings.


                                                 II. ABUSE OF PROCESS


            Tahraoui argues that he submitted sufficient facts to support his abuse of process claim


because Lieutenant Wilder and Deputy Brown instituted criminal proceedings in furtherance of an

ulterior motive,     namely, their desire to          coerce   Tahraoui into returning the trailer hitch. We hold


that an abuse of process claim does not withstand scrutiny if the alleged abuse was simply the

institution of the process itself.



                                                                9
No. 44829 -7 -II


                                                    A. RULES OF LAW


          To   prove   the tort   of abuse of process,    the party   must show   both "`( 1) the existence of an


ulterior purpose to accomplish an object not within the proper scope of the process, and ( 2) an act

in the   use of   legal   process not proper   in the   regular prosecution of   the   proceedings. '   Saldivar v.


Momah, 145 Wn.            App.   365, 388, 186 P. 3d 1117 ( 2008) (    quoting Mark v. Williams, 45 Wn. App.

182, 191, 724 P. 2d 428,         review   denied, 107 Wn.2d 1015 ( 1986)), review denied, 165 Wn.2d 1049


 2009). Abuse of process is the misuse or misapplication of the process after the initiation of the


legal proceeding for an end other than that which the process was designed to accomplish.

Loeffelholz    v.   Citizens for Leaders     with   Ethics &   Accountability Now ( C.L.E.A. N.), 119 Wn. App.

665, 699 -700, 82 P. 3d 1199,         review   denied, 152      Wn. 2d 1023 ( 2004). But the "' mere institution

of a legal proceeding even with a malicious motive does not constitute an abuse of process.'

Momah, 145 Wn. App. at 388 ( quoting Fite v. Lee, 11 Wn. App. 21, 27 -28, 521 P.2d 964, review

denied, 84 Wn.2d 1005 ( 1974)).


                                                      B. ANALYSIS


          Tahraoui argues that he alleged sufficient facts to show that the County misused the legal

process to accomplish an ulterior purposethe return of the trailer hitch to Pate. We disagree.


          Importantly, Tahraoui does not complain of any abuse of the process occurring after the

institution    of   the proceeding. "` [      T] he gist of [ an abuse of process] action is the misuse or


misapplication of the process, after it has once been issued, for an end other than that which it was

designed to       accomplish. '      Loeffelholz, 119 Wn. App. at 699 ( quoting Batten v. Abrams, 28 Wn.

App.     737, 745, 626 P. 2d 984,         review   denied, 95 Wn.2d 1033 ( 1981)).       That is to say, the action

requires "'    a form of extortion, and it is what is done in the course of negotiation, rather than the



                                                               10
No. 44829 -7 -I1


issuance    or   any formal   use of the process       itself, which   constitutes   the tort. "' Loeffelholz, 119 Wn.



App. at 699 -700 ( quoting Batten, 28 Wn. App. at 746).

         Here, Tahraoui alleged only that the institution of the criminal proceeding against him

constituted an abuse of process because it was done with an ulterior purpose to accomplish an

object not within      the   proper scope of     the   process.      The facts show nothing about process having

been   abused " after   it ha[ d]   once   been issued."    Loeffelholz, 119 Wn. App. at 699. Tahraoui argues

that Loeffelholz and Momah are distinguishable because the abuse of process actions involved in

those cases were counterclaims raised by defendants rather than claims raised by the plaintiff.

Tahraoui offers no explanation and no citation to authority to support the proposition that a cause

of action in the form of a counterclaim should be treated differently than an identical action brought

by   a plaintiff when    the   essential elements remain            the same.   We hold that Tahraoui' s claim fails


because he alleges only malicious institution of a legal proceeding, which, alone, does not establish

an abuse of process claim. Therefore, the trial court did not err in dismissing Tahraoui' s abuse of

process claim.



                             III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


           Tahroui argues that the trial court erred in dismissing his intentional infliction of emotion

distress   or " outrage"     claim   because he   was "    deprived    of   his freedom    of movement,"   unable to go

to work,     fearful   of    his imminent      arrest,   and   because he       suffered   emotional   distress.   Br. of


Appellant at 23. We hold that Tahraoui' s claim fails because he failed to allege facts that establish

extreme and outrageous conduct beyond mere indignities or threats.




                                                               11
No. 44829 -7 -II


                                                 A. RULES OF LAW


          To prevail on a claim of intentional infliction of emotion distress, a plaintiff must show ( 1)

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


 3) the plaintiff actually suffers severe emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 195,

66 P. 3d 630 (2003). In order for       conduct   to   constitute   the tort   of outrage,   it 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. '       Wolf v. Scott Wetzel

Servs., Inc., 113 Wn.2d 665, 677, 782 P. 2d 203 ( 1989) ( internal                quotation marks omitted) ( quoting




Guffey     v.   State, 103 Wn.2d 144, 146, 690 P. 2d 1163 ( 1984),                  overruled on other grounds by

Babcock     v.   State, 116 Wn.2d 596, 809 P. 2d 143 ( 1991)).           The conduct must be more than insults,


indignities, threats, annoyances, petty oppressions, or other trivialities. Kirby v. City of Tacoma,

124 Wn.         App.   454, 474, 98 P. 3d 827 ( 2004), review denied, 154 Wn.2d 1007 ( 2005).


                                                    B. ANALYSIS


           Tahraoui claims that the conduct to which he was subject rose to a level above a mere threat


of arrest "[     b] ecause those threat [ sic] were eminent [ sic] and caused the plaintiff to go in hiding."

CP   at   43. We disagree.


           An examination of cases where our courts have upheld a claim for intentional infliction of

emotional distress reveals that the acts about which Tahraoui complains do not constitute extreme

and outrageous conduct. For example, in Kloepfel, Kloepfel' s former boyfriend threatened to kill

her, threatened to kill the man she was dating if she continued seeing him, called her home 640

times, called her work 100 times, called the homes of men she knew numerous times, and


repeatedly drove past her house         at   all hours. 149 Wn.2d at 194 -95. The evidence showed that this


                                                            12
No. 44829 -7 -II



conduct severely disrupted Kloepfel' s life and made it impossible for her to carry on a normal

dating    relationship.      Kloepfel, 149 Wn.2d         at    194.    And there was affirmative evidence that this


conduct caused         Kloepfel to       suffer    symptoms       of     emotional      distress,         including nervousness,

sleeplessness, hypervigilance, and stomach upset. 8 Kloepfel, 149 Wn.2d at 195.

          There, the court concluded that no rational person could endure this constant harassment


without     suffering      severe emotional       distress.    Kloepfel, 149 Wn.2d at 202; see also Grimsby v.

Samson, 85 Wn.2d 52, 60, 530 P. 2d 291 ( 1975) (                 finding outrage where, as a result of the defendant

doctor'   s actions,   the   plaintiff was required     to    helplessly   witness "`      the terrifying agony and explicit

pain and s uffe r i n g of    his   w i fe while she proceeded        to die   right   in fr o n t   of   his   eyes ...   because of


his inability to secure any medical care or treatment for his wife ").

          Here, there were a total of three arguably harassing, threatening, or otherwise annoying

phone calls, one of which            Tahraoui himself initiated. On one occasion, deputies sought to speak


to Tahraoui at his place of employment. Although he alleges that his emotional distress resulted

from constant fear of an arrest he considered imminent, Tahraoui was never actually contacted by

law   enforcement       in   person nor was    he   arrested.     The conduct about which Tahraoui complains is


not 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.'"    Wolf,

113 Wn.2d at 677 ( quoting Guffey, 103 Wn.2d at 146).




8 Unlike a claim for negligent infliction of emotional distress, the Kloepfel court held that a claim
of    intentional       infliction     of   emotional         distress    does       not    require        proof      of "   objective


symptomatology"            or medical    diagnosis.     149 Wn.2d        at   194.   Accordingly, the fact that Tahraoui
alleges only mental and emotional distress, does not, by itself, bar recovery.

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No. 44829 -7 -II



        Accordingly, we hold that Tahraoui failed to allege sufficient facts to sustain his claim for

intentional infliction     of emotional         distress.    Therefore, the trial court did not err in dismissing

Tahraoui' s intentional infliction of emotional distress claim.

                    IV. PIERCE COUNTY SHERIFF' S DEPARTMENT NOT PROPER PARTY


        Finally, we address the County' s position that the Pierce County Sheriff' s Department must

be dismissed from the lawsuit because, unlike Pierce County itself, the sheriff s department is not

an entity capable of being sued.

        The legislature has expressly stated that counties may be sued, RCW 36. 01. 010, but our

courts have determined that county departments cannot be sued unless the laws creating those

departments allow them to be sued directly. Roth v. Drainage Improvement Dist. No. 5, of Clark

County,   64 Wn.2d 586, 588, 392 P. 2d 1012 ( 1964).                 Thus, to determine whether an entity has the

capacity to sue or be sued, we examine the legislative enactments providing for its establishment.

Roth, 64 Wn.2d at 588.


        Chapter 36.28 RCW establishes the county sheriff. The chapter outlines the duties, powers,

functions,   and    limitations   of   the   office.    See RCW 36. 28. 010, . 020, . 110, .   150. But nothing in the

statute demonstrates that the legislature intended to create the Pierce County Sheriff' s Department

as a legal entity, separate and distinct from the county itself, with the capacity to sue and be sued.9




9 That is not to say that a sheriff or other member of a sheriff's department cannot be individually
liable for   acts   done in his   or   her   official   capacity. See RCW 4. 16. 080( 5), . 110.



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No. 44829 -7 -II



When asked to resolve similar questions, other courts in this state have concluded that the county

with which these departments are associated is the proper party for purposes of legal action.10

           In holding that a county council is not a separate legal entity capable of being sued,

Division One of this court determined that it was the intent of the legislature that in any legal action

involving a county, the county itself would be the party to sue or be sued. Nolan v. Snohomish

County,     59 Wn.      App.     876, 883, 802 P. 2d 792 ( 1990), review denied, 116 Wn.2d 1020 ( 1991).


Similarly,    in Broyles       v.   Thurston   County,   147 Wn.     App.   409, 427 -28, 195 P. 3d 985 ( 2008),   we




held that Thurston County, rather than the Thurston County Prosecuting Attorney' s Office, was

the proper party in an employment discrimination lawsuit."

           Furthermore, Tahraoui cites no authority and advances no argument to dispute the

contention        that the   sheriff' s   department   should   be dismissed.    Tahraoui merely responds that he

 has already served the Pierce County Sheriff [Paul] Pastor with [ a] summons and complaint and

would substitute the Defendant Pierce [ C] ounty [ S] heriff' s [ D] epartment for defendant Pierce

 C] ounty [ S] heriff."       Br. of Appellant at 24. Because we are presented with no legal authority that




10 See also Worthington v. Westnet, No. 90037 -0, 2015 WL 276401, at * 7 ( Wash. Jan. 22, 2015)
 Yu, J., dissenting) ( discussing several cases where counties were proper defendants when
enabling statutes of various parties did not create separate legal entities).
11
     See   also          City of Seattle, 557 F. Supp. 2d 1189, 1207 ( W. D. Wash. 2008) ( citing
                  Bradford     v.

Nolan in support of the conclusion that a plaintiff must name a county or city if it seeks to challenge
the actions of a local governmental unit such as a city police department).


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No. 44829 -7 -II



the Pierce County Sheriff' s Department may be sued directly, it must be dismissed as a named

party to the current action.12
                                          CONCLUSION


        We reverse the dismissal of Tahraoui' s malicious prosecution claim, but affirm the trial

court' s dismissal of his abuse of process and intentional infliction of emotional distress claims. In


addition, we remand for dismissal of the Pierce County Sheriff's Department and further'

proceedings consistent with this opinion.



        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.




 We concur:




12 Although it does not dispute that it has capacity to be sued, Pierce County nevertheless contends
that it should also be dismissed from the suit because Tahraoui has failed to establish liability on
the part of any agent or employee of Pierce County and, therefore, Pierce County is not vicariously
liable. But as we have explained, Tahraoui has alleged sufficient facts to preclude dismissal of his
malicious prosecution claim pursuant    to CR   12( c). Accordingly, whether Pierce County is liable
has not been determined and, therefore, Pierce County remains a proper party to this action.
                                                  16
