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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KENT L. and LINDA DAVIS,
JEFFREY and SUSAN TRININ, and                          DIVISION ONE
SUSAN MAYER, derivatively on behalf
of OLYMPIA FOOD COOPERATIVE                            No. 71360-4-1


                        Appellants,                    PUBLISHED OPINION

                   v.



GRACE COX, ROCHELLE GAUSE,
ERIN GENIA, T.J. JOHNSON, JAYNE
KASZYNSKI, JACKIE KRZYZEK,
JESSICA LAING, RON LAVIGNE,
HARRY LEVINE, ERIC MAPES,
JOHN NASON, JOHN REGAN, ROB
RICHARDS, SUZANNE SHAFER,
JULIA SOKOLOFF, and JOELLEN
REINECKWILHELM,

                        Respondents.                   FILED: April 7, 2014


       Dwyer, J. — To determine whether a pleaded cause of action falls within

the ambit of Washington's anti-SLAPP1 statutes, the trial court must decide

whether the claim targets activity involving public participation and petition. To

properly do so, the trial court must focus on the principal thrust or gravamen of

the claim. A consideration of the relief sought by the party asserting the cause of

action can be a determinative factor when resolving this question. Here, the


        Washington Act Limiting Strategic Lawsuits Against Public Participation.
No. 71360-4-1/2


plaintiffs' prayer for relief included a request that the court order the defendants

to cease activity protected by the First Amendment. Accordingly, the trial court

correctly ruled that the complaint was subject to an anti-SLAPP motion to strike.2

Because the plaintiffs did not demonstrate a sufficient likelihood of success on

the merits of their claim, as required by the relevant statute, the trial court also

properly granted the defendants' motion to dismiss. Given that these two rulings

were properly made, and because we find no error in the other rulings of the trial

court, we affirm.

                                                I


       The Olympia Food Co-op (Co-op) is a nonprofit corporation with over

22,000 members. The Co-op was formed pursuant to the Washington Nonprofit

Corporation Act3 with the express purpose of "contributing] to the health and

well-being of people by providing wholesome foods and other goods and

services, accessible to all, through a locally-oriented, collectively managed, not-

for-profit cooperative organization that relies on consensus decision making."

The Co-op has a long and active history of engagement in social, human rights,

ecology, community welfare, and peace and justice issues. In 1993, the Co-op's

board of directors "adopted" a Boycott Policy that prescribed a procedure by

which the Co-op would recognize product boycotts. The Policy provides, in

pertinent part, as follows:




        2 RCW 4.24.525 provides that a party may successfully bring a motion to strikeany claim
so long as the moving party shows by a preponderance ofthe evidence that the claim is based on
an action involving public participation and petition, and so long as the responding party fails to
establish by clear and convincing evidence a probability of prevailing on the claim.
        3 Ch. 24.03 RCW.
No. 71360-4-1/3


      BOYCOTT POLICY
      Whenever possible, the Olympia Food Co-op will honor nationally
      recognized boycotts which are called for reasons that are
      compatible with our goals and mission statement.

      A request to honor a boycott. . . will be referred ... to determine
      which products and departments are affected. . .. The [affected]
      department manager will make a written recommendation to the
      staff who will decide by consensus whether or not to honor a
      boycott.

      The department manager will post a sign informing customers of
      the staff's decision . . . regarding the boycott. Ifthe staff decides to
      honor a boycott, the [Merchandising Coordinator] will notify the
      boycotted company or body of our decision... .

      In March 2009, a cashier proposed to the staff work group a boycott of

Israeli goods and financial investments. The staff members comprising the

Merchandising Coordination Action team (MCAT) considered the request and

attempted to reach an internal consensus for more than a year. After failing to

reach a consensus, the MCAT reported its failure to the board. In May 2010, the

board instructed the staff to again attempt to achieve full staff consensus. After

this renewed effort failed, the board—at its next meeting in July 2010—by

consensus agreed to support the boycott and adopted a resolution approving a

boycott of Israeli-made products and divestment from Israeli companies. At the

same time, the board invited any dissenting members to put the board's decision

to a vote as provided for by the Co-op's bylaws. The board also posted a

reminder on the Co-op's website informing members that they could compel a

member vote by gathering the requisite number of signatures. No member

pursued this option.

       On September 2, 2011, Kent Davis, Linda Davis, Jeffrey Trinin, Susan
No. 71360-4-1/4


Trinin, and Susan Mayer (collectively Members) filed a derivative suit on behalf of

the Co-op against 16 current and former board members (collectively Directors)

in Thurston County Superior Court. Their complaint was filed in the wake of a

failed attempt by 3 Members to be elected to the board, and following a demand

letter sent from the Members to the Directors, wherein the Members stated that if

the boycott was not rescinded, "we will bring legal action against you, and this

process will become considerably more complicated, burdensome, and

expensive than it has been already." In their complaint, the Members alleged

that the Directors acted ultra vires and breached their fiduciary duties. The

Members sought a declaratory judgment that the boycott was void, permanent

injunctive relief preventing its enforcement, and monetary damages from all 16

defendants. The Members also served each defendant with a 13-page discovery

demand and, several weeks later, noticed videotaped depositions of each

defendant.

       On November 1, the Directors filed a special motion to strike the

Members' complaint pursuant to RCW 4.24.525—Washington's anti-SLAPP

statute. The anti-SLAPP statute contains a two step process that a trial court

must utilize in ruling on such a motion.

       A moving party bringing a special motion to strike a claim under this
       subsection has the initial burden of showing by a preponderance of
       the evidence that the claim is based on an action involving public
       participation and petition. If the moving party meets this burden,
       the burden shifts to the responding party to establish by clear and
       convincing evidence a probability of prevailing on the claim. If the
       responding party meets this burden, the court shall deny the
       motion.

RCW 4.24.525(4)(b). The statute defines an "action involving public participation
No. 71360-4-1/5



and petition," in pertinent part, as "[a]ny other lawful conduct in furtherance of the

exercise of the constitutional right of free speech in connection with an issue of

public concern, or in furtherance of the exercise of the constitutional right of

petition." RCW 4.24.525(2)(e).

       The Members opposed the motion and, in response, brought a motion for

discovery, arguing that they were entitled to discovery pursuant to the "good

cause" exception to the automatic discovery stay provision of RCW

4.24.525(5)(c). The Directors opposed the Members' discovery motion. The trial

court heard argument on February 23, 2012 and denied the Members' motion.

The court's basis for denying the request for discovery was twofold: (1) the

request was belated, and (2) it was "broad-ranging" and "not focused."

       Subsequently, on February 27, the court granted the Directors' motion to

strike the Members' claims. The court ruled that the Directors had shown by a

preponderance of the evidence that their conduct fit within the statutory category

of "any other lawful conduct in . . . furtherance of the exercise of a constitutional

right of free speech in connection with an issue of public concern or in

furtherance of the exercise of the constitutional right of petition," and that the

Members had failed to establish by clear and convincing evidence a probability of

prevailing on their claims.

       In dismissing the Members' claims, the court rejected their argument that

the board lacked authority to resolve the boycott issue, instead concluding that

the board's authorization in the bylaws to "resolve organizational conflicts after all

other avenues of resolution have been exhausted" gave the board authority to
No. 71360-4-1/6


adopt the boycott. In considering this issue, the court excluded as hearsay the

declarations of two former board members, Tibor Bruer and Susan Trinin, who

asserted that the board, by adopting the Boycott Policy, did not intend to retain

the authority to enact a boycott if the staff failed to reach a consensus. However,

the court did not exclude as hearsay the declaration of Harry Levine, another

former board member, who stated that the board, by adopting the Boycott Policy,

did not intend to relinquish its authority to resolve organizational conflict with

respect to boycotts.

       After rejecting the Members' various constitutional challenges to the anti-

SLAPP statute, the trial court ordered the Members to pay a total of $221,846.75

to the various defendants, which included attorney fees and $10,000 in statutory

damages payable to each named defendant, as mandated by the anti-SLAPP

statute. RCW4.24.525(6)(a)(ii).

       The Members subsequently sought direct review in the Supreme Court.

The Supreme Court denied direct review and transferred the case to Division

Two, which then transferred the case to us.

                                           II


       The Members assign error to the trial court's grant of the Directors' anti-

SLAPP motion. Specifically, the Members argue that the Directors failed to

establish by a preponderance of the evidence that the lawsuit targeted activity

involving public participation and petition and that, even if the Directors did meet

their burden, the Members established by clear and convincing evidence a
No. 71360-4-1/7


probability of prevailing on their claims. We are not persuaded by these

arguments.

       "We review the grant or denial of an anti-SLAPP motion de novo." Dillon

v. Seattle Deposition Reporters. LLC.      Wn. App.     , 316 P.3d 1119, 1133

(2014). "Under the anti-SLAPP statute, a party may bring a special motion to

strike 'any claim that is based on an action involving public participation and

petition.'" Dillon. 316 P.3d at 1132 (quoting RCW4.24.525(4)(a)). The two step

process by which we decide an anti-SLAPP motion is as follows:

       In deciding an anti-SLAPP motion, a court must follow a two step
       process. A party moving to strike a claim has the initial burden of
       showing by a preponderance of the evidence that the claim targets
       activity "involving public participation and petition," as defined in
       RCW 4.24.525(2). U.S. Mission Corp. v. KIRO TV. Inc.. 172 Wn.
       App. 767, 782-83, 292 P.3d 137, review denied. 177 Wn.2d 1014,
       302 P.3d 181 (2013). Ifthe moving party meets this burden, the
       burden shifts to the responding party "to establish by clear and
       convincing evidence a probability of prevailing on the claim." RCW
       4.24.525(4)(b). If the responding party fails to meet its burden, the
       court must grant the motion, dismiss the offending claim, and award
       the moving party statutory damages of $10,000 in addition to
       attorney fees and costs. RCW 4.24.525(6)(a)(i), (ii).

Dillon. 316 P.3d at 1132. "[T]he procedure for deciding anti-SLAPP motions is

similar to that used in deciding a motion for summary judgment." Dillon. 316

P.3d at 1132. Thus, a court ruling on an anti-SLAPP motion "shall consider

pleadings and supporting and opposing affidavits stating the facts upon which the

liability or defense is based." RCW 4.24.525(4)(c). However, "the trial court may

not find facts, but rather must view the facts and all reasonable inferences

therefrom in the light most favorable to the plaintiff." Dillon. 316 P.3d at 1143.




                                         -7
No. 71360-4-1/8




       We first inquire whether the trial court erred by concluding that the

Directors did, in fact, establish by a preponderance of the evidence that the

Members' claims targeted activity "involving public participation and petition."

The Members contend that the Directors failed to meet their burden. This is so,

they assert, because their lawsuit was meant to correct corporate malfeasance,

not to target constitutionally protected speech. We disagree.

       The anti-SLAPP statute defines "an action involving public participation

and petition" as follows:

             (a) Any oral statement made, or written statement or other
       document submitted, in a legislative, executive, or judicial
       proceeding or other governmental proceeding authorized by law;
             (b) Any oral statement made, or written statement or other
       document submitted, in connection with an issue under
       consideration or review by a legislative, executive, or judicial
       proceeding or other governmental proceeding authorized by law;
               (c) Any oral statement made, or written statement or other
       document submitted, that is reasonably likely to encourage or to
       enlist public participation in an effort to effect consideration or
       review of an issue in a legislative, executive, or judicial proceeding
       or other governmental proceeding authorized by law;
               (d) Any oral statements made, or written statement or other
       document submitted, in a place open to the public or a public forum
       in connection with an issue of public concern; or
              (e) Any other lawful conduct in furtherance of the exercise of
       the constitutional right of free speech in connection with an issue of
       public concern, or in furtherance of the exercise of the constitutional
       right of petition.

RCW 4.24.525(2). Recently, we adopted a guiding principle for determining

whether a lawsuit targets constitutionally protected speech.

       "[I]t is the principal thrust or gravamen of the plaintiff's cause of
       action that determines whether the anti-SLAPP statute applies and
       when the allegations referring to arguably protected activity are only
       incidental to a cause of action based essentially on nonprotected
No. 71360-4-1/9


       activity, collateral allusions to protected activity should not subject
       the cause of action to the anti-SLAPP statute."

Dillon. 316 P.3d at 1134 (quoting Martinez v. Metabolite Int'l. Inc.. 113 Cal. App.

4th 181, 188, 6 Cal. Rptr. 3d 494 (Cal. App. 2003)). Moreover, if the plaintiffs'

cause of action "targets conduct that advances and assists" the defendants'

exercise of a protected right, then the cause of action targets the exercise of that

protected right. Greater L.A. Agency on Deafness. Inc. v. Cable News Network,

742 F.3d 414, 423 (9th Cir. 2014) (applying California law).4 Additionally,

"[b]ecause the legislature's intent in adopting RCW 4.24.525 was to address

'lawsuits brought primarily to chill the valid exercise of the constitutional rights of

freedom of speech and petition for the redress of grievances,' this court looks to

First Amendment cases to aid in its interpretation." City of Seattle v. Egan.

Wn. App. _, 317 P.3d 568, 570 (2014) (quoting Laws OF 2010, ch. 118, §1(a)).

       In seeking to identify the principal thrust or gravamen of the Members'

claim, it is instructive to look to the remedy sought. One remedy the Members

sought was permanent injunctive relief. In essence, the Members sought to have

the court permanently enjoin the Directors from continuing the boycott. Because

the nonviolent elements of boycotts are protected by the First Amendment,

NAACP v. Claiborne Hardware Co.. 458 U.S. 886, 915, 102 S. Ct. 3409, 73 L.

Ed. 2d 1215 (1982), the Members' desired remedy reveals that the principal

thrust of their suit is to make the Directors cease engaging in activity protected by




       4"Washington's anti-SLAPP statute mirrors California's anti-SLAPP statute. Therefore, in
most circumstances, California cases may be considered as persuasive authority when
interpreting RCW 4.24.525." Dillon. 316 P.3d at 1132 n.21.
No. 71360-4-1/10


the First Amendment. This is of great significance in resolving the question

presented.

       The Directors assert that the boycott is "an action involving public

participation" because it is "lawful conduct in furtherance of the exercise of the

constitutional right of free speech in connection with an issue of public concern."

RCW 4.24.525(2)(e) (emphasis added). Therefore, we must next determine

whether the boycott is in connection with an issue of public concern. "Speech

deals with matters of public concern when it can 'be fairly considered as relating

to any matter of political, social, or other concern to the community.'" Snyder v.

Phelps. 131 S. Ct. 1207, 1216, 179 L. Ed. 2d 172 (2011) (quoting Connick v.

Myers. 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983)). The trial

court, as part of its ruling that the boycott was in connection with an issue of

public concern, observed the following:

       Four decades of conflict in the Middle East have accompanied the
       issues that surround the purposes behind this proposed Boycott
       and Divestment Resolution.. . . And for four decades, the matter
       has been a matter of public concern in America and debate about
       America's role in resolving that conflict. I don't believe there can be
       any dispute about that issue being a matter of public concern.

The trial court correctly ruled that the boycott decision was in connection with an

issue of public concern.

       Rather than challenge this aspect of the ruling, the Members assert that

the trial court erred because the Directors' conduct was not "lawful," as required

by RCW 4.24.525(2)(e). In essence, the Members argue that adopting the

boycott was not "lawful" because the board violated the Boycott Policy in doing

so.




                                          10-
No. 71360-4-1/11


       Although we consider whether the Directors' activity was "lawful" under the

first step of the anti-SLAPP motion analysis, our review is limited to determining

whether the activity was illegal as a matter of law. If, as part of our review under

the first step, we accepted the Members' invitation to consider whether the

Directors improperly adopted the boycott, the second step would be rendered

superfluous and the burden of proof would be improperly shifted. Chavez v.

Mendoza. 94 Cal. App. 4th 1083, 1089, 114 Cal. Rptr. 2d 825 (Cal. Dist. Ct. App.

2001) ("[U]nder the statutory scheme, a court must generally presume the validity

of the claimed constitutional right in the first step of the anti-SLAPP analysis, and

then permit the parties to address the issue in the second step of the analysis, if

necessary. Otherwise, the second step would become superfluous in almost

every case, resulting in an improper shifting of the burdens." (citation omitted));

see also Gerbosi v. Gaims. Weil. West & Epstein. LLP. 193 Cal. App. 4th 435,

446, 122 Cal. Rptr. 3d 73 (Cal. Dist. Ct. App. 2011) ("[W]hen a defendant's

assertedly protected activity may or may not be criminal activity, the defendant

may invoke the anti-SLAPP statute unless the activity is criminal as a matter of

law." (second emphasis added)). The Members do not assert that the decision

to boycott Israeli goods was an activity that was illegal as a matter of law.

Rather, they contend that it was a decision made in contravention of the

governing rules of the Co-op. Thus, we conclude that the Directors' adoption of
the boycott was "lawful" under the first step ofthe anti-SLAPP statute.5
        The Directors demonstrated that the boycott was constitutionally

        5The Directors also assert that the boycott is protected as an act of petition. However,
because the boycott constitutes protected speech activity, we need notaddress whether it is also
protected as an act of petitioning.


                                              -11 -
No. 71360-4-1/12


protected, lawful, and in connection with an issue of public concern. The

Members sought a court order requiring the protected activity to stop.

Accordingly, the trial court did not err by concluding that the Directors established

that the Members' claims targeted activity involving public participation and

petition.

                                           B


       We next inquire whether the trial court erred by concluding that the

Members failed to establish by clear and convincing evidence a probability of

prevailing on their claims. The Members contend that the trial court erred by

improperly weighing the evidence and by ruling as a matter of law that they did

not meet their burden. Although the trial court did err by improperly weighing the

evidence, its error was harmless. Accordingly, the trial court did not err by ruling

as a matter of law that the Members failed to meet their burden.

        The Members assert that the trial court improperly weighed evidence.

This is so, they aver, because the trial court—presented with competing theories

as to whether a nationally recognized boycott existed and as to whether an

organizational conflict existed—improperly weighed the evidence and accepted

the Directors' theories. We agree.

        "The role of the trial court in determining whether the plaintiff has met his

or her burden under the second step of the anti-SLAPP motion to dismiss

analysis is akin to the trial court's role in deciding a motion for summary

judgment." Dillon. 316 P.3d at 1142. Thus, "[t]he trial court may not find facts or

make determinations of credibility." Dillon. 316 P.3d at 1142. "Instead, 'the court



                                          12
No. 71360-4-1/13


shall consider pleadings and supporting and opposing affidavits stating the

facts.'" Dillon. 316 P.3d at 1142 (quoting RCW4.24.525(4)(c)). "[I]n analyzing

whether the plaintiff has shown, by clear and convincing evidence, a probability

of prevailing on the merits" the trial court "must view the facts and all reasonable

inferences therefrom in the light most favorable to the plaintiff." Dillon. 316 P.3d

at 1143.


       The Boycott Policy states that "[wjhenever possible, the Olympia Food Co

op will honor nationally recognized boycotts." The Members argued that

"nationally recognized" is synonymous with "nationally accepted," and offered

evidence indicating that the movement to boycott Israeli products had failed to

gain traction on a national scale. Nevertheless, the trial court accepted the

Directors' theory and ruled that a nationally recognized boycott existed because

"[t]he question of its national scope is not determined by the degree of

acceptance."

       Here, the meaning of the Boycott Policy depends on a choice among

reasonable inferences. It is not clear from the Policy whether "nationally

recognized" means that boycotts have been enacted across the nation as the

Members contend, or whether it means that people and organizations are trying

to enact boycotts across the nation, as the Directors contend. Both parties

presented evidence in favor of their interpretations—the Members, evidence that

Israeli boycotts had failed on a national level; the Directors, evidence that

hundreds of member organizations of the U.S. Campaign to end the Israeli

Occupation existed across the country—which required the trial court to choose



                                        -13
No. 71360-4-1/14


between reasonable inferences. When the trial court drew an inference in favor

of the Directors, it erred.

       The parties also offered different theories as to whether a lack of

consensus among the staff created an organizational conflict that the board could

resolve or whether it simply meant that consensus had not been achieved—

constituting a decision in and of itself, given the requirement to reach a

consensus for a decision to be made. Again, in ruling against the Members, the

trial court weighed the evidence, selectively excluded declarations submitted by

the Members (while relying on a declaration submitted by the Directors), and

failed to credit reasonable inferences from the Members' evidence. This was

also error. However, because the Boycott Policy does not bind the board, the

trial court's errors were harmless.

       Both parties agree that the board "adopted" the Boycott Policy in 1993, but

neither party explained what effect adopting the Policy had on the board's

authority to manage the corporation. Generally, "[t]he charter of a corporation

and its by-laws are the fundamental documents governing the conduct of

corporate affairs." Liese v. Jupiter Corp.. 241 A.2d 492, 497 (Del. Ch. 1968).

The Co-op's bylaws require the board to "adopt major policy changes," but do not

further mandate that the board comply with adopted policy changes. Moreover,

the Policy does not contain any language that obligates the board to adhere to it

once adopted. Presumably, if the board failed to comply with an adopted policy,

and a sufficient number of members were troubled by that fact, they could




                                         14
No. 71360-4-1/15


exercise their right to vote the board members off of the board.6 However,

neither an applicable statute, the articles of incorporation, nor the bylaws compel

the board to comply with adopted policies. Thus, although adopting the Policy

presented an opportunity for staff involvement, the board did not relinquish its

ultimate authority to adopt boycotts pursuant to its general authority to manage

the Co-op.

        Indeed, notwithstanding the Co-op's emphasis on consensus decision

making, the bylaws task the board with managing the Co-op.7 By virtue of being

tasked with managing the corporation, the board may avail itself of the business

judgment rule. The business judgment rule cautions against courts substituting

their judgment for that of the board of directors, absent evidence of fraud,

dishonesty, or incompetence. In re Spokane Concrete Prods., Inc.. 126Wn.2d

269, 279, 892 P.2d 98 (1995). The Members did not present any evidence of

fraud, dishonesty, or incompetence by the board. Instead, they argued that the

board lacked the authority to adopt the boycott. However, because we conclude

that the board did have the authority to adopt the boycott, and since no evidence

of fraud, dishonesty, or incompetence was presented, there is no basis for us to

question the board's decision to adopt the boycott.

        Nonetheless, the Members point to the board's subsequent efforts to

amend the Boycott Policy as evidence that the board could not simply disregard



       6 In fact, several of the appellants ran against several respondent board members in a
subsequent election. However, they were unsuccessful in attempting to oust the respondent
board members.
        7Additionally, the Washington Nonprofit Corporation Act makes clear that "[t]he affairs of
a corporation shall be managed by a board of directors." RCW 24.03.095.



                                                15
No. 71360-4-1/16


an adopted policy. However, the board's attempt to amend the Policy is open to

any number of explanations, including a desire to avoid the perception that it was

usurping the Co-op's goal of consensus decision-making. Although the Co-op as

an organization—including, in all likelihood, the board members in this lawsuit—

may aspire to consensus decision-making, this aspiration does not imbue the

Boycott Policy with authority equivalent or superior to that of the applicable

statutes, articles of incorporation, or the bylaws.

        Ultimately, the Members failed to meet their burden. Although the trial

court based its decision on the board's authority to resolve organizational conflict,

we affirm, instead, on the basis that the Co-op's governing documents provided

the board with the authority to adopt the boycott.8

                                                  Ill


        In addition to their contention that the trial court committed reversible error

by granting the Directors' anti-SLAPP motion, the Members assert that the trial


        8 The Members also assert that the trial court erred by requiring them to meet the "clear
and convincing evidence" standard, rather than the statutorily prescribed "clearand convincing
evidence [of] a probability of prevailing on the claim" standard. The transcript from the February
27, 2012 hearing rebuts this assertion.

        Therefore, the analysis shifts to the second prong of the statute, where plaintiffs
        must prove by clear and convincing evidence a probability of prevailing on the
        claim.
                This is a new law, and it is also a new or unique evidence standard.
        Clear and convincing evidence of a fact is something that the courts are very
        used to dealing with. Clear and convincing evidence of a probability is certainly
        more unique than clear and convincing evidence of a fact. Probability, I am
        satisfied, relying upon the authorities provided me by the plaintiff, means less
        than the preponderance standard. Butthe evidence, to meet that threshold
        standard, must be clear and convincing under the law.
              Some writers have suggested that the proof standard here is akin to the
        summaryjudgment standard under Civil Rule 56. My application of the evidence
        burden here is not dissimilar to that.

The trial court clearly applied the correct standard.



                                                  16
No. 71360-4-1/17


court erred in its evidentiary rulings. Specifically, they argue that the trial court

erred by refusing to consider declarations offered by the Members, in which two

former board members—Trinin and Bruer—opined as to what the board intended

when it adopted the Boycott Policy. We disagree.

       "Ordinarily, evidentiary rulings are reviewed for abuse of discretion.

However, '[t]he de novo standard of review is used by an appellate court when

reviewing all trial court rulings made in conjunction with a summary judgment

motion.'" Momah v. Bharti. 144 Wn. App. 731, 749, 182 P.3d 455 (2008)

(alteration in original) (quoting Folsom v. Burger King. 135 Wn.2d 658, 663, 958

P.2d 301 (1998)). Because "the procedure for deciding anti-SLAPP motions is

similar to that used in deciding a motion for summary judgment," Dillon. 316 P.3d

at 1132, we review de novo the trial court's evidentiary ruling made here in

conjunction with the anti-SLAPP motion.

       The Members first assert that because both declarants were members of

the board when it adopted the Boycott Policy, their statements constitute an

admission by the board. An admission by a party opponent does not constitute

hearsay. ER 801(d)(2). However, the Members overlook the requirement that

board members must have speaking authority for ER 801(d)(2) to apply.

       When applying ER 801(d)(2), Washington follows the Restatement
       (Second) of Agency, § 286 (1958), which requires that an agent
       have speaking authority. Codd v. Stevens Pass. Inc.. 45 Wn. App.
       393, 404, 725 P.2d 1008 (1986), review denied. 107 Wn.2d 1020
       (1987); Donald B. Murphv Contractors. Inc. v. State. 40 Wn. App.
       98, 108-10, 696 P.2d 1270, review denied. 103 Wn.2d 1039 (1985).
       In order to fall under the rule, the declarant must be authorized to
       make the particular statement at issue, or statements concerning
       the subject matter, on behalf of the party. Lockwood v. A C &S.
        Inc.. 109 Wn.2d 235, 262, 744 P.2d 605 (1987); Barrie v. Hosts of


                                           17
No. 71360-4-1/18


      Am.. Inc.. 94 Wn.2d 640, 644, 618 P.2d 96 (1980). When a person
      does not have specific express authority to make statements on
       behalf of a party, the overall nature of his authority to act for the
       party may determine if he is a speaking agent. Lockwood, [109
      Wn.2d] at 262.

Passovovv. Nordstrom. Inc.. 52 Wn. App. 166, 169-70, 758 P.2d 524 (1988).

The Members provide no evidence that either declarant was authorized to speak

on behalf of the board. Accordingly, ER 801(d)(2) does not exempt their

testimony from application of the hearsay rules.

       The Members next assert that the declarants' testimony does not

constitute hearsay because it was based on personal knowledge. In support of

this assertion, the Members rely on Snohomish County Fire District No. 1 v.

Snohomish County Disability Board, 128 Wn. App. 418, 115P.3d 1057(2005).

There, we affirmed a trial court's decision to admit a board member's affidavit

where the board member testified from personal knowledge. Snohomish County

Fire Dist.. 128 Wn. App. at 422-23 n.1. However, we based our decision on the

fact that the board member's statements "were offered to show the research and

procedure that the Board used in adopting the Rules, not to prove the truth ofthe
substance of the statements." Snohomish County Fire Dist.. 128 Wn. App. at

423 n.1. To the contrary, here, both declarants' testimony was offered to prove

the truth of the matter asserted: namely, that the board intended to relinquish to

the staff its authority to adopt a boycott. Accordingly, the trial court did not err in

excluding the declaration testimony as hearsay.

                                           IV


       The Members next contend that the trial court erred by denying their




                                           18
No. 71360-4-1/19



discovery motion. As the Members failed to show "good cause" for discovery,

their contention is unavailing.

          The automatic discovery stay provision in the anti-SLAPP statute reads

thusly:

          All discovery and any pending hearings or motions in the action
          shall be stayed upon the filing of a special motion to strike under
          subsection (4) of this section. The stay of discovery shall remain in
          effect until the entry of the order ruling on the motion.
          Notwithstanding the stay imposed by this subsection, the court, on
          motion and for good cause shown, may order that specified
          discovery or other hearings or motions be conducted.

RCW4.24.525(5)(c).

          "Appellate courts ordinarily review discovery rulings for abuse of

discretion." Fellows v. Movnihan. 175 Wn.2d 641, 649, 285 P.3d 864 (2012).

California courts have applied this familiar standard when reviewing decisions

made pursuant to its anti-SLAPP statute's "good cause" exception to the

automatic discovery stay provision. 1-800 Contacts. Inc. v. Steinberg. 107 Cal.

App. 4th 568, 593, 132 Cal. Rptr. 2d 789 (Cal. Dist. Ct. App. 2003); Sipple v.

Foun. for Nat'l Progress. 71 Cal. App. 4th 226, 247, 83 Cal. Rptr. 2d 677 (Cal.

Dist. Ct. App. 1999). Given this persuasive authority, we review the trial court's

denial of the Members' discovery motion for abuse of discretion.

          "A trial court abuses its discretion only when its decision is manifestly

unreasonable or based on untenable grounds." In re Marriage of Fiorito, 112

Wn. App. 657, 663-64, 50 P.3d 298 (2002). "[I]t is based on untenable reasons if
it is based on an incorrect standard or the facts do not meet the requirements of

the correct standard." Fiorito. 112 Wn. App. at 664.




                                            19
No. 71360-4-1/20


       California courts have provided guidance in interpreting the meaning of

"good cause" for discovery in the context of their state's anti-SLAPP statute.9

      Decisions that have considered what constitutes such a showing of
      good cause have described it as a showing "that a defendant or
      witness possesses evidence needed by plaintiff to establish a prima
      facie case." (Lafayette Morehouser. Inc. v. Chronicle Publ'q Co.],
       37 Cal. App. 4th [855,] 868[, 44 Cal. Rptr. 2d 46 (Cal. Dist. Ct. App.
       1995)].) The showing should include some explanation of "what
       additional facts [plaintiff] expects to uncover.. . ." (Sipple [v.
       Found, for Nat'l Progress!. 71 Cal. App. 4th [226,] 247[, 83 Cal.
       Rptr. 2d 677 (Cal. Dist. Ct. App. 1999)]; see ajso Nicosia v. De
       Rooy. 72 F. Supp. 2d 1093, 1111 [N.D. Cal. 1999].) Only in these
       circumstances is the discretion under section 425.16, subdivision
       (g) to be "liberally exercise[d]." (Lafayette Morehouse, supra. 37
       Cal. App. 4th at p. 868.) Discovery may not be obtained merely to
       "test" the opponent's declarations. (Sipple. supra. 71 Cal. App. 4th
       at p. 247.)

1-800 Contacts. 107 Cal. App. 4th at 593. Moreover, the "good cause" standard

is similar to Civil Rule (CR) 56(f), which allows a party faced with a summary

judgment motion to seek a continuance to engage in discovery "essential to

justify his opposition." Pursuant to CR 56(f), the nonmoving party must show

"how additional discovery would preclude summary judgment and why a party

cannot immediately provide 'specific facts' demonstrating a genuine issue of

material fact." Hewitt v. Hewitt. 78 Wn. App. 447, 455, 896 P.2d 1312 (1995).

       The Members sought to depose two individuals who had submitted

declarations in support of the Directors' special motion to strike and a defendant

who they claimed "has abundant evidence regarding the Board's process,

thinking, purposes, and understandings regarding the Boycott Policy and the

Israel Boycott and Divestment Policies at the time those policies were adopted."


       9 Cal. Civ. Proc. Code § 425.16(g).



                                             -20
No. 71360-4-1/21


The Members also sought access to "all documents in possession of each of the

Defendants and the Co-op relating in any way to the Co-op's Boycott Policy and

actions taken related thereto." In explaining why it was necessary to depose

witnesses, the Members stated that it was to "test the veracity of Defendants'

voluminous factual allegations."

       Explaining the standard that it was applying, the trial court stated, "I

conclude that in the good-cause exception of the anti-SLAPP statute, the test is

at least as stringent and as narrow as the Civil Rule 56 test." The trial court

explained that the CR 56 test "requires an explanation of what the moving party,

the party seeking additional discovery or time to prepare declarations, expects to

discover and why it's important to the motion." In light of the fact that "the

procedure for deciding anti-SLAPP motions is similar to that used in deciding a

motion for summary judgment," Dillon. 316 P.3d at 1132, we conclude that the

trial court applied the correct legal standard.

       The Members did not satisfy this standard. The trial court, in declining to

find "good cause," explained that it was denying the motion for discovery for two

reasons: "First, it comes at the end of the process. . . . Second, the discovery is

not focused." As the trial court correctly concluded, the discovery request was an

expansive request with the stated goal of "test[ing] the veracity of Defendants'

voluminous factual allegations." However, 1-800 Contacts and Sipple preclude

this motivation as a basis for granting relief from the stay. 107 Cal. App. 4th at

593; 71 Cal. App. 4th at 247. Additionally, the Members failed to identify with any

specificity what portion of their request for alldocuments in possession of the



                                          21
No. 71360-4-1/22


directors in connection with the Boycott Policy was needed to establish a prima

facie case. Therefore, the trial court did not err in denying the motion.

                                          V


       The Members next challenge the constitutionality of the anti-SLAPP

statute, both on its face and as applied to them. They identify two offending

provisions: (1) the automatic discovery stay, and (2) the requirement that they

establish by clear and convincing evidence a probability of prevailing on their

claims. None of their arguments persuade us that either provision is

unconstitutional.

       We review the constitutionality of a statute de novo. Putman v.

Wenatchee Valley Med. Ctr.. 166 Wn.2d 974, 978, 216 P.3d 374 (2009).

"Statutes are presumed to be constitutional, and '[t]he challenger bears the

burden of showing the statute is unconstitutional beyond a reasonable doubt.'"

Ringhofer v. Ridge. 172 Wn. App. 318, 327, 290 P.3d 163 (2012) (alteration in

original) (quoting City of Bothell v. Barnhart. 172 Wn.2d 223, 229, 257 P.3d 648

(2011)), review denied. 177 Wn.2d 1009 (2013). Indeed, we will strike down a

statute only ifwe are "'fully convinced, after a searching legal analysis, that the

statute violates the constitution.'" Sch. Dists.' Alliance for Adeguate Funding of

Special Educ. v. State, 170 Wn.2d 599, 606, 244 P.3d 1 (2010) (quoting Island

County v. State. 135Wn.2d 141, 147, 955 P.2d 377 (1998)).

                                          A


       The Members argue that the mandatory discovery stay is unconstitutional.

They first contend that the mandatory discovery stay violates our separation of



                                         22
No. 71360-4-1/23


powers doctrine. This is so, they assert, because the discovery stay conflicts

with CR 26(c) and, since the anti-SLAPP statute is procedural in nature, the court

rule must prevail. Their contention is unavailing.

      Washington's constitution "does not contain a formal separation of powers

clause, but 'the very division of our government into different branches has been

presumed throughout our state's history to give rise to a vital separation of

powers doctrine.'" Putman. 166 Wn.2d at 980 (internal quotation marks omitted)

(quoting Brown v. Owen. 165 Wn.2d 706, 718, 206 P.3d 310 (2009)).

Washington courts are "vested with judicial power from article IV of our state

constitution and from the legislature under RCW 2.04.190. The inherent power

of article IV includes the power to govern court procedures." Citv of Fircrest v.

Jensen. 158 Wn.2d 384, 394, 143 P.3d 776 (2006) (footnote omitted). "When a

court rule and a statute conflict, the court will attempt to harmonize them, giving

effect to both." Jensen. 158 Wn.2d at 394. However, if a statute and a court rule

"cannot be harmonized, the court rule will prevail in procedural matters and the

statute will prevail in substantive matters." Putman. 166 Wn.2d at 980.

       The Members assert that this automatic discovery stay conflicts with CR

26(c). Specifically, they argue that while CR 26(c) allows a party to seek relief

from the court if requested discovery is onerous or burdensome, RCW

4.24.525(5)(c) takes the opposite approach by staying all discovery unless good

cause is shown. However, the anti-SLAPP statutory requirement that good

cause be shown imposes no greater burden than does CR 56(f), which allows a

party faced with a summary judgment motion to obtain discovery that is



                                         23
No. 71360-4-1/24


"essential to justify his opposition." See Dillon. 316 P.3d at 1142; see also Britts

v. Superior Court. 145 Cal. App. 4th 1112, 1129, 52 Cal. Rptr. 3d 185 (Cal. Dist.

Ct. App. 2006) (holding that California's automatic discovery stay does not violate

separation of powers principles). Given that the automatic discovery stay is no

more burdensome than CR 56(f), a rule applied without constitutional controversy

for many years, the Members have not established that it is unconstitutional.

         The Members next argue that the automatic discovery stay violates their

right of access to the courts. However, our recent decision in In re Estate of

Fitzgerald. 172 Wn. App. 437, 294 P.3d 720 (2012), review denied. 177 Wn.2d

1014 (2013), militates against striking down the automatic discovery stay on this

basis.

         "The people have a right of access to courts; indeed, it is 'the bedrock

foundation upon which rest all the people's rights and obligations.'" Putman. 166

Wn.2d at 979 (quoting John Doe v. Puoet Sound Blood Ctr., 117 Wn.2d 772,

780, 819 P.2d 370 (1991)). "This right of access to courts 'includes the right of

discovery authorized by the civil rules'" and "'[i]t is common legal knowledge that

extensive discovery is necessary to effectively pursue either a plaintiff's claim or

a defendant's defense.'" Putman. 166 Wn.2d at 979 (alteration in original)

(quoting John Doe. 117 Wn.2d at 782). Recently, we explained our Supreme

Court's holding in Putman with regard to access to courts.

         In Putman. our Supreme Court considered the constitutionality of a
         law requiring a plaintiff in a medical malpractice suit to submit a
         "certificate of merit" with the pleadings. 166 Wn.2d at 982-83. The
         court explained that "[t]he certificate of merit requirement
         essentially requires plaintiffs to submit evidence supporting their
         claims before they even have an opportunity to conduct discovery


                                           24
No. 71360-4-1/25


      and obtain such evidence." Putman. 166 Wn.2d at 983. Noting
      that the "right of access to courts 'includes the right of discovery
      authorized by the civil rules,'" Putman. 166 Wn.2d at 979 (quoting
      John Doe v. Puget Sound Blood Ctr.. 117 Wn.2d 772, 780, 819
       P.2d 370 (1991)), the court held that the certificate of merit
       requirement unconstitutionally limited a litigant's access to the
       courts. Putman. 166 Wn.2d at 985.

Fitzgerald. 172 Wn. App. at 449 n.8. However, we declined to interpret Putman

so broadly as to render unconstitutional any statute that limits discovery.

       Unlike the situation in Putman, however, in the context of a
       TEDRA[1°] proceeding, no decision disposing of the creditor's claim
       is mandated before any discovery can be had. The trial court
       retains the discretion to permit discovery—in appropriate
       circumstances—before determining whether the creditor's claims
       are time-barred. Accordingly, unlike the certificate of merit
       requirement in a medical malpractice suit, the TEDRA discovery
       rules do not unconstitutionally limit a creditor's access to the courts.

Fitzgerald. 172 Wn. App. at 449-50 n.8.

       As in the context of a TEDRA proceeding, trial courts retain the discretion

to permit discovery before ruling on an anti-SLAPP motion. Thus, the non-

movant in an anti-SLAPP motion will not categorically be precluded from

obtaining discovery before the trial court rules on the motion. So long as the

non-movant can show good cause to obtain discovery, the trial court should allow

such discovery. RCW4.24.525(5)(c). Therefore, the discovery stay does not

violate the Members' right of access to the courts.

       The Members finally aver that the discovery stay is unconstitutional as

applied here. This is so, they assert, because "[t]he trial court effectively read the

good cause requirement out of the statute by finding the anti-SLAPP Act's

'governing principle . . . [is] to avoid the time and expense of litigation, including

       10 Trust and Estate Dispute Resolution Act, ch. 11.96A RCW.



                                           -25
No. 71360-4-1/26


discovery,' and that, as a result, Appellants had to acquire all necessary

information before filing suit." Appellant's Br. at 38. However, as explained

above, the trial court applied the correct legal standard in ruling on the Members'

discovery motion. Their assertion to the contrary, supported by selectively culling

language from the trial court's examination of legislative intent, does not warrant

a grant of appellate relief.

                                         B


       The Members also argue that the requirement that they establish by clear

and convincing evidence a probability of prevailing on their claim is

unconstitutional. They first contend that this heightened burden violates

separation of powers principles. This is so, they assert, because the heightened

burden of proof conflicts with CRs 8, 11, 12, 15, and 56. However, because

burdens of proof are substantive, not procedural, the Members are incorrect.

       "When a court rule and a statute conflict, the court will attempt to

harmonize them, giving effect to both." Jensen. 158 Wn.2d at 394. However, if a

statute and a court rule "cannot be harmonized, the court rule will prevail in

procedural matters and the statute will prevail in substantive matters." Putman.

166Wn.2dat980.

       "Given its importance to the outcome of cases, we have long held the

burden of proof to be a 'substantive' aspect of a claim." Raleigh v. III. Dep't of

Revenue. 530 U.S. 15, 20-21, 120 S. Ct. 1951, 147 L Ed. 2d 13 (2000).

       Even were we to decide that a conflict between the statute and the cited

court rules actually exists, a decision we need not make, the Members would not



                                         26
No. 71360-4-1/27


prevail on their claim that the statute violates the separation of powers. If such

conflicts do exist, the statute must prevail, as burdens of proof are substantive

aspects of a claim. Thus, the heightened burden of proof does not violate

separation of powers principles.

        The Members next contend that the heightened burden of proof violates

the right of access to the courts. This is so, they assert, because "it permits

claims to be dismissed with prejudice based on a burden of proof greater than

that the claimant would face at trial, and without the claimant having acquired the

discovery needed to establish its case." Appellant's Br. at 41. This contention is

unavailing.

        "It is entirely within the Legislature's power to define parameters of a

cause of action and prescribe factors to take into consideration in determining

liability." Sofie v. Fibreboard Corp.. 112 Wn.2d 636, 666, 771 P.2d 711, 780 P.2d

260 (1989). "The argument that a state statute stiffens the standard of proof of a

common law claim does not implicate" the right of access to courts. Garcia v.

Wveth-Averst Labs.. 385 F.3d 961, 968 (6th Cir. 2004). The legislature has the

prerogative to impose a heightened burden of proof.11 Its choice to do so here

does not violate the Members' right of access to the courts.




        11 Indeed, our legislature has utilized a straightforward "clear and convincing evidence"
burden of proofin other contexts. See RCW 4.24.730(3) (presumption of good faith for
employer's disclosure of employee information rebuttable only on showing of "clearand
convincing evidence"); RCW 5.68.010(2) (journalist work-product may be compelled only if"the
party seeking such news or information" shows its relevance and unavailable alternatives "by
clear and convincing evidence"); RCW 13.34.190(1)(a)(i) ("[T]he court may enter an order
terminating all parental rights to a child only if the court finds ... [t]he allegations contained in the
petition ... are established by clear, cogent, and convincing evidence."). Our courts have also
approved ofthis heightened burden of proof in the defamation context. See Mark v. Seattle
Times, 96 Wn.2d 473, 487, 635 P.2d 1081 (1981) (requiring "that a defamation plaintiff resisting a


                                                 -27-
No. 71360-4-1/28


        The Members next contend that the requirement that they establish by

clear and convincing evidence a probability of prevailing on their claims violates

their right to a jury trial. We disagree.

        Our recent decision in Dillon explained that the standard of clear and

convincing evidence of a probability of prevailing on the claim is applied by

viewing the evidence in a manner similar to how it is viewed in deciding a

summary judgment motion. Dillon, 316 P.3d at 1142. We concluded that the

summary judgment standard does not offend the constitutional right to a trial by

jury and, therefore, the anti-SLAPP statute also does not offend this right.

        The summary judgment standard does not offend the constitutional
        right to trial by jury because "it was not the purpose of [article I,
        section 21] to render the intervention of a jury mandatory . . . where
        no issue of fact was left for submission to, or determination by, the
        jury.". . .
                Accordingly, the anti-SLAPP statute does not violate the
        right to trial by jury where the court utilizes a summary judgment
        like standard in deciding the motion to strike.

Dillon. 316 P.3d at 1142 (guoting In re Brandon v. Webb. 23 Wn.2d 155, 159,

160 P.2d 529 (1945); citing Nexus v. Swift. 785 N.W.2d 771, 782 (Minn. App.

2010)).

        The Members next argue that the requirement that they establish by clear

and convincing evidence a probability of prevailing on their claims is

unconstitutionally vague. This is so, they assert, because the standard mixes

two standards of proof, such that there is a significant likelihood that the more

rigorous standard—clear and convincing evidence—will be applied without



defense motion for summary judgment must establish a prima facie case by evidence of
convincing clarity").


                                             28
No. 71360-4-1/29


reference to the more relaxed standard of probability of prevailing on the claim.

We disagree.

       "The party challenging a statute's constitutionality on vagueness grounds

has the burden of proving its vagueness beyond a reasonable doubt." Haley v.

Med. Disciplinary Bd.. 117 Wn.2d 720, 739, 818 P.2d 1062 (1991). "A statute is

void for vagueness if it is framed in terms so vague that persons 'of common

intelligence must necessarily guess at its meaning and differ as to its

application.'" Haley. 117 Wn.2d at 739 (quoting Connallv v. Gen. Constr. Co..

269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). Yet, "[condemned to

the use of words, we can never expect mathematical certainty." Gravned v. City

of Rockford. 408 U.S. 104, 110, 92 S. Ct. 2294, 33 L Ed. 2d 222 (1972).

       The Members admit that both the "clear and convincing" standard12 and

the "probability" standard are common standards, but then conclude that the two

together will confound persons of common understanding. This is a non

sequitur. Since both standards are well known, there seems to be little risk that,

when considered together, confusion will abound. The Members have failed to

demonstrate beyond a reasonable doubt that this statutory standard is

unconstitutionally vague.

       The last of the Members' constitutional challenges is that the clear and

convincing evidence of a probability of prevailing on the claim standard is

unconstitutional as applied to them. This is so, they assert, because this

        12 The United States Supreme Court has provided guidance in applying the convincing
clarity standard: "in ruling on a motion for summary judgment, the judge mustview the evidence
presented through the prism ofthe substantive evidentiary burden." Anderson v. Liberty Lobby,
Inc.. 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).



                                               29
No. 71360-4-1/30


statutory standard exceeds the burden of proof that they would face at trial or any

other dispositive motion. However, because—at the motion stage—the trial court

must credit the evidence presented by the plaintiffs, it is not true that the same

quantum of evidence that would prevail at trial might not prevail in opposing the

motion, as feared by the Members. The heightened burden, therefore, was not

unconstitutional as applied to them.

                                          VI


       The Members next contend that the trial court erred by awarding $10,000

in statutory damages to each defendant. This is so, they assert, because the suit

was a derivative suit brought against the board, not 16 individuals. We disagree.

       RCW 4.24.525(6)(a)(ii) mandates that a moving party who prevails on an

anti-SLAPP motion be awarded ten thousand dollars.

               (6)(a) The court shall award to a moving party who prevails,
       in part or in whole, on a special motion to strike made under
       subsection (4) of this section, without regard to any limits under
       state law:

              (ii) An amount often thousand dollars, not including the
       costs of litigation and attorney fees.

RCW4.24.525(6)(a)(ii).

       Recently, we interpreted RCW 4.24.525(6)(a)(ii) and stated, in no

uncertain terms, "all persons who prevail on an anti-SLAPP motion filed on their

behalf are entitled to the statutory damage award." Akrie v. Grant.         Wn. App.

    , 315 P.3d 567, 571 (2013). In reaching this conclusion, we relied on the
legislature's statement that "'[t]his act shall be applied and construed liberally to
effectuate its general purpose of protecting participants in public controversies



                                          30
No. 71360-4-1/31


from an abusive use of the courts.'" Akrie. 315 P.3d at 571 (quoting Laws of

2010, ch. 118, §3).

       In view of our pronouncement in Akrie. we must determine whether all 16

board members prevailed or whether it was only the board of directors as a

single unit that prevailed. Put differently, did the Members sue each director

individually or the board as a single entity? Without citation to authority, the

Members aver that they named the individual members as defendants only

because "court rules and statutes required them to do so." Appellant's Br. at 48.

Additionally, the Members assert, they "made no allegations against any

particular defendant; their complaint focused entirely on the actions of the

Board." Appellant's Br. at 48. Their requested relief once again belies their

position on appeal. Tellingly, the Members' complaint sought monetary damages

from all 16 board members. This fact demonstrates that the Members sued the

16 board members individually, seeking monetary recompense from each. Thus,

when the board members prevailed on the anti-SLAPP motion, they were each

entitled to receive the statutorily-mandated $10,000 award.

       The Members, nevertheless, argue that the Directors should not each

receive the statutory damage award, reasoning that—even in the event that the

Members had prevailed in the trial court—the Directors would have been

indemnified by the Co-op as provided for by the bylaws, meaning that they never

faced a serious threat of being held financially responsible. Although the

Members are correct that the bylaws authorize indemnification for directors, they

overlook the requirement that directors must act in good faith and in the interests



                                          31
No. 71360-4-1/32


of the Co-op in order for indemnification to be available. Because the Members

argue at length that the Directors failed, in fact, to act in good faith and in the

interests of the Co-op, their indemnification argument is, at best, disingenuous.

Akrie establishes that each defendant was entitled to the statutory damage

award. There was no error.

                                                VII


       The Members next contend that the Co-op, as the real party in interest,

should pay the attorney fees awarded to the Directors by the trial court. In

support of this assertion, they cite to the statutes governing derivative actions for

for-profit and for non-profit entities, RCW 23B.07.40013 and RCW 24.03.040,14

and argue that because neither statute authorizes fees against them as

representative plaintiffs, they conflict with the anti-SLAPP statute.

        "We review the legal basis for an award of attorney fees de novo and the

reasonableness of the amount of an award for abuse of discretion." Hulbert v.

Port of Everett. 159 Wn. App. 389, 407, 245 P.3d 779 (2011).

        Without deciding whether the anti-SLAPP statute does, in fact, conflict

with these derivative action statutes, we conclude that the legislature's intent in

mandating an award of litigation costs and attorney fees to the prevailing party

was clearly expressed by the plain language of the statute: "The court shall

award to a moving party who prevails . . . without regard to any limits understate

law. . . [c]osts of litigation and any reasonable attorneys' fees incurred in


        13 Under the for-profit statute, a court may award fees against an unsuccessful
representative plaintiff only if the court finds that there was no "reasonable cause" forthe
proceeding. RCW 23B.07.400(4).
        14 The non-profit statute does not expressly authorize an award of fees. RCW 24.03.040.


                                               -32-
No. 71360-4-1/33


connection with each motion on which the moving party prevailed." RCW

4.24.525(6)(a)(i) (emphasis added). Accordingly, even if a conflict existed, the

anti-SLAPP statute would control. Therefore, the trial court did not err by

assigning the liability for financial recompense to the Members.15

                                               VIII


       The Directors request their attorney fees on appeal. "The court shall

award to a moving party who prevails, in part or in whole . . . [c]osts of litigation

and any reasonable attorneys' fees incurred in connection with each motion on

which the moving party prevailed." RCW4.24.525(6)(a)(i). Additionally, "where

a prevailing party is entitled to attorney fees below, they are entitled to attorney

fees if they prevail on appeal." Sharbono v. Universal Underwriters Ins. Co.. 139

Wn. App. 383, 423, 161 P.3d 406 (2007). Thus, the Directors' request is well

taken. Upon compliance with RAP 18.1, a commissioner of this court will enter

an appropriate order.

       Affirmed.




We concur:




          15 The Members, in passing, also assert that the representative nature of their presence
in this lawsuit requires the Co-op, and not them, to be held liable for the statutory damages
award. However, because the Members fail to supportthis assertion with citation to legal
authority, we do not consider it. See Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801,
809, 828 P.2d 549 (1992).



                                                33
