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                                                                                                              IQT OF APPEALS
                                                                                                                FJf 1S! M,1 iI

                                                                                                          2014 FEB 20    AM 9: 23
                                                                                                          S             SHNGT


                                                                                                                         Y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                          DIVISION II


JOYCE KELLEY, individually,                                                                 No. 43983 -2 -II
                                                                                 consolidated with No. 43986 -7 -II)
                                             Respondent,


           V.




PIERCE COUNTY, a county corporation and                                              PART PUBLISHED OPINION
MARK SKAGREN and " JANE DOE"
SKAGREN, and the marital community
composed thereof,




           JOHANSON, A. C. J. —                 On discretionary review, we are asked whether quasi-judicial

immunity         should       apply to Mark Skagren, I         a guardian ad litem ( GAL) appointed in a parental

termination action who is alleged to have " used his authority, tasks, tools and premises of his job

and assignment           to   stalk,   prey,   assault,   batter   and   sexually harass" Joyce       Kelley.. Clerk' s Papers

    CP) at 2. Pierce County ( County) and Skagren argue that the superior court should have applied
quasi-judicial         immunity        and     dismissed    Kelley' s     claims      because ( 1)   Washington courts have


applied quasi-judicial immunity to GALs in the past and ( 2) the face of Kelley' s complaint

establishes that quasi-judicial immunity applies here. In the published portion of our opinion, we


I                                                                                                               Skagren" is the
     The   clerk' s     papers. contain        both " Skagren"       and "     Shagren"     as   spellings. "


spelling        used   in the   superior court caption       below       and   the   court caption on appeal.
Consol. Nos. 43983 -2 -II / 43986 -7 -II



hold that Skagren is not entitled to quasi-judicial immunity when acting outside of his statutory

GAL functions and under the facts alleged in Kelley' s complaint and contained in her

declaration; accordingly, the superior court was correct in not dismissing her claims. We affirm.

          In the unpublished portion of our opinion, we reject Kelley' s argument that we should

                                           brief because it does                          assign   error.   However, we
strike   the   County' s    appellate                               not   adequately


order $   500 in sanctions against the County for including extensive argument in its opening brief

on collateral estoppel even though we specifically denied discretionary review of that issue and

without even acknowledging our denial of discretionary review.

                                                            FACTS


            In June 2011, the superior court assigned Skagren as GAL to perform duties under RCW

13. 34. 100 in the        context of a parental      termination action.         In December, Kelley petitioned the

district court for a protection order to protect herself and her son from Skagren, claiming that he

had unlawfully harassed her.                She alleged that Skagren preyed on her as a vulnerable woman,

continuously called and texted her, including when he was under the influence of alcohol;

stopped by her job even when she was not there; stopped by her home one night near midnight;
and was not       performing his GAL duties.           She feared that Skagren would retaliate against her and

her son in her termination case.


            After                   the district            denied her   request   and   dismissed her       petition.   The
                    a   hearing,                   court




 district   court noted      that "[   t]he work of Mr. Skagren at the time as a [ GAL] permits, in fact,

 requires a guardian to make certain observations and investigations, and it appears that' s what

 was             on.    So this   matter   is dismissed."    CP at 150.
         going


            About six months later, Kelley filed a complaint for damages against the County,

 Skagren,      and "    Jane Doe" Skagren, alleging that Skagren,           as   her   court- appointed     GAL, " used his


                                                                2
Consol. Nos. 43983 -2 -II / 43986 -7 -II



authority, tasks, tools and premises of his job and assignment to stalk, prey, assault, batter and

sexually harass" her.       CP    at   2.    Kelley alleged causes of action ( 1) under the Washington Law

Against     Discrimination ( WLAD),                  chapter    49. 60     RCW,     for     sexual    discrimination      and /or


harassment, gender discrimination, hostile environment, disparate treatment, assault and battery,

and unlawful retaliation; (       2) for          negligent   hiring, training,     supervision,      and retention; (     3)   for


intentional    infliction    of    emotional          distress /outrage;      and (   4)     for   families    with      children


discrimination.


        In lieu   of an     answer,         the   County      moved      to dismiss   under      CR 12( b)( 6),   alleging that


Kelley' s complaint failed to state a claim under the WLAD and that it was barred in its entirety

by immunity      and collateral estoppel.             As part of the motion, the County also submitted Kelley' s

petition for an order of protection from the district court and the district court' s order denying her

a protection order.       The   County        argued    that ( 1)   Skagren was acting within his GAL duties and

was   entitled   to the   protection         of quasi-judicial          immunity,   and (   2)   collateral   estoppel    applied




because the district court denied Kelley' s protection order petition after finding that she had

failed to show " actionable activity" because Skagren " was working as a GAL at times of these

events."    CP at 21.


           Kelley moved for a continuance under CR 56( f) in order to conduct discovery and

 appropriately respond to the County' s motion, arguing that the County had essentially moved for
 summary judgment when it submitted materials outside the .pleadings in support of its motion.

 Kelley argued that quasi-judicial immunity did not apply to sexual harassment claims, that
 Skagren was not engaged in a judicial function when he sexually harassed her, and that collateral

 estoppel did not apply because the protection order proceeding involved an entirely different
 issue and was not a final judgment on the merits.

                                                                    3
Consol. Nos. 43983 -2 -II / 43986 -7 -II



         In her responsive declaration, Kelley made allegations similar to those that she had in the

protection order matter.           Kelley again explained that Skagren had continuously called and texted

her, often after midnight, including when he was under the influence of alcohol; sent picture

messages of himself holding alcoholic beverages and asking if he could buy her a drink; and

stopped by her home and job even when she was not there and, when she was there, he never

asked about her son. Moreover, in addition to the allegations Kelley made at the protection order

hearing, Kelley also alleged that Skagren talked to her and touched her shoulders, legs, knees,

and hair in an inappropriate and sexual manner, constantly pressured her to go on dates with him,

offered her money and to help her get her driver' s license reinstated, and said that she could

 find some way to pay [ him] back" in a sexual manner. CP at 50.

         The superior court denied the County' s motion to dismiss and certified that the case

involved controlling questions of law as to which there is substantial ground for a difference of

opinion and that immediate appellate review may materially advance the ultimate termination of

the litigation.       The order noted that the superior court had " reviewed the records and files in this

case."     CP   at   108.   Our court commissioner granted discretionary review as to the issue of quasi -

judicial                          denied   discretionary                  the   collateral estoppel   issue.    Regarding
           immunity         and                              review on




collateral estoppel, our commissioner explained, "                   Unlike the immunity issue, collateral estoppel

would confer                a   defense   against   the   claim of   damages,   not   immunity   from   suit.   And given
                     only


the lack of authority to the contrary, the County and Skagren fail to show that the trial court

committed obvious or probable error, so discretionary review under RAP 2. 3( b)( 1) or ( 2) is not

appropriate."        CP at 168 -69.




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Consol. Nos. 43983 -2 -II / 43986 -7 -II


                                                           ANALYSIS


                                              DENIAL OF MOTION TO DIsmiss


          The County argues that the superior court erred by denying its motion to dismiss and
                                                                                                                                 2
rejecting its     argument     that   quasi- judicial      immunity    created     an   absolute     bar to    liability here.

Specifically, the County argues that ( 1) Washington courts have applied quasi-judicial immunity
to   GALs in the       past,   even      when     acting   outside   of    the   courtroom; (   2)   the face of Kelley' s

complaint establishes that quasi-judicial immunity applies; and ( 3) Kelley' s previous protection

order   litigation    establishes     that    quasi-judicial   immunity      applies.   3 We hold that Skagren is not

entitled to quasi-judicial immunity as a matter of law because if the facts alleged in Kelley' s

complaint and in her declaration are true, Skagren was not acting in a judicial or quasijudicial

function       when   he   engaged       in the    complained -of      actions.      Accordingly, the superior court

properly denied the County' s motion to dismiss.
                                                 A. STANDARD OF REVIEW


          We apply the de novo standard of review to a superior court' s decisions under CR
              4
12( b)( 6) .      Burton v. Lehman, 153 Wn.2d 416, 422, 103 P3d 1230 ( 2005).                                 Under 12( b)( 6),


dismissal is      appropriate    only if "` appears beyond doubt that the plaintiff cannot prove any set
                                          it


of    facts   which would      justify   recovery. "'      Burton, 153 Wn.2d at 422 ( quoting Tenore v. AT &T

 Wireless Servs., 136 Wn.2d 322, 330, 962 P. 2d 104 ( 1998)). When a superior court considers




 2 Skagren and " Jane Doe" Skagren join in the County' s appellate opening and reply briefs.
 3
     This third    argument cites      to    collateral estoppel     law   and principles.      Under the ruling granting
 review, collateral estoppel issues are not properly before this court and we consider it no further.
 4
     CR 12( b)    provides,    in   part, "   that the following defenses may at the option of the pleader be
 made    by    motion: ... (   6) failure to state a claim upon which relief can be granted."

                                                                5
Consol. Nos. 43983 -2 -II / 43986 -7 -II



matters outside the pleadings, a CR 12( b)( 6) motion converts to a motion for summary judgment

under                      Pac Co., Inc.
         CR 56. CR 12; Sea -                             v.   United Food & Commercial Workers Local Union 44,


103 Wn.2d 800, 802, 699 P. 2d 217 ( 1985).                         In this case, the County submitted additional

materials to the superior court in its motion to dismiss and the court considered the whole record,


including Kelley' s additional responsive materials; therefore, we will treat the motion as one for

summary judgment.

          When reviewing an order for summary judgment, we engage in the same inquiry as the

trial   court.   Macias       v.   Saberhagen Holdings, Inc., 175 Wn.2d 402, 407, 282 P. 3d 1069 ( 2012).


Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions

on file demonstrate the absence of any genuine issue of material fact, and the moving party is

entitled      to judgment as        a matter of   law. CR 56( c).        A material fact is one on which the outcome


of   the litigation     depends in      whole or    in   part.   Anderson v. Dussault, 177 Wn. App. 79, 88, 310

P. 3d 854 ( 2013).           We construe all facts and reasonable inferences in the light most favorable to

the nonmoving party,               and we review all questions of          law de   novo.   Berrocal v. Fernandez, 155


Wn.2d 585, 590, 121 P. 3d 82 ( 2005).


                                              B. QUASI -JUDICIAL IMMUNITY


           Judicial immunity does not exist for the benefit of an individual judge but to protect

justice.      Lallas    v.   Skagit   County,     167 Wn. 2d 861, 864, 225 P. 3d 910 ( 2009); Taggart v. State,


 118 Wn.2d 195, 203, 822 P. 2d 243 ( 1992).                    Therefore, judicial immunity ensures that judges can

administer       justice     without   fear   of personal consequences.            Lallas, 167 Wn.2d at 864; Taggart,


 118 Wn.2d         at   203.       Quasi-judicial    immunity "         attaches to persons or entities who perform


 functions that are so comparable to those performed by judges that it is felt they should share the

judge'    s    absolute      immunity     while     carrying      out    those   functions."   Lutheran Day Care v.

                                                                   0
Consol. Nos. 43983 -2 -II / 43986 -7 -II


Snohomish      County,          119 Wn.2d 91, 99, 829 P. 2d 746 ( 1992), cert.' denied, 506 U. S. 1079 ( 1993);


Savage   v.   State, 127 Wn.2d 434, 441, 899 P. 2d 1270 ( 1995).                 Therefore, quasi-judicial immunity

protects those who perform judicial -
                                    like functions to ensure they can also do so without fear of

personal consequences. See Lutheran Day Care, 119 Wn.2d at 99; Taggart, 118 Wn.2d at 203.

            When [     quasi-judicial      immunity] applies, it is an absolute bar to civil liability and

necessarily leaves        wronged claimants without a          remedy."      West v. Osborne, 108 Wn. App. 764,

773, 34 P. 3d 816 ( citing Lutheran Day Care, 119 Wn.2d at 99; Babcock v. State, 116 Wn.2d

596, 606 -08, 809 P. 2d 143 ( 1991)),            review   denied, 145 Wn.2d 1012 ( 2001).            As   a result, " caution




should   accompany any             application of absolute    immunity." Lallas, 167 Wn.2d at 864.

         To determine if immunity applies, Washington courts will look to the function the person

is performing,     rather         than to the   person who    is performing it. Regan v. McLachlan, 163 Wn.


       171,    179, 257 P. 3d 1122 ( 2011) ( citing Lallas, 167 Wn.2d                   at   865).     This analysis may
App.

require a court    to     examine      the functions of the   official as set    forth in   statute.   See West, 108 Wn.


App.   at   772 -73.      Under juvenile dependency and termination statutes, a GAL' s function is to

represent the child' s best interest by investigating the child' s situation and reporting to the court.

Former RCW 13. 34. 030( 10) ( 2011);                 RCW      13. 34. 105( 1).     Specifically, RCW 13. 34. 105( 1)

provides that the GAL shall


                       a) ...     investigate, collect relevant information about the child' s situation,
            and report to the court factual information regarding the best interests of the child;
                       b) ...      meet with, interview, or observe the child....


                       f) ... represent and be an advocate for the best interests of the child.


And    under   RCW 13. 34. 105( 2),         a GAL " shall be deemed an officer of the court for the purpose of


immunity from civil liability."



                                                               7
Consol. Nos. 43983 -2 -II / 43986 -7 -II



           Our Supreme Court has applied quasi-judicial immunity to a GAL when the GAL was

           as an arm of      the   court."     Barr       v.   Day,   124 Wn.2d 318, 332, 879 P. 2d 912 ( 1994).                        We
acting "


have also applied quasi- judicial immunity to a GAL who was acting within the scope of his

statutory duties.     West, 108 Wn. App. at 773 -74.

           In Barr, Lewis Barr         was     severely injured in               an on- the-job accident.            124 Wn.2d at 321.


He and his wife, Ella Barr, brought a tort action against his employer and, with his GAL' s

recommendation,        the    parties   settled      the       suit prior      to trial.    Barr, 124 Wn.2d          at   321.   Ella Barr


later   sued   the GAL, arguing that he negligently                           approved     the settlement.        Barr, 124 Wn.2d at


321. The Supreme Court reversed this court, holding that the GAL was protected from liability

as   a matter    of   law   by     quasi-judicial         immunity.            Barr, 124 Wn.2d          at    321.        Citing a GAL' s

statutory duties, the Supreme Court explained that it was proper to view GALs solely as

surrogates of the court in the approval of settlements when they are acting on behalf of

incompetents in       civil   claims     because          such     duties      represent " an       arm of    the    court."     Barr, 124


Wn.2d at 332.


           In West, Sharon Carter and William West both sought custody of their son in their

dissolution proceeding.            108 Wn. App. at 766. The court- appointed GAL interviewed witnesses,

consulted      therapists,       reviewed       records,          supervised         visitation,     testified,      and filed reports,


ultimately recommending that the                     child      be   placed       with     West.     West, 108 Wn. App. at 767.

During      the investigation, the GAL'               s    relationship          with      Carter   was "    strained"      and the court



eventually allowed the GAL to withdraw and restrained Carter and the GAL from contacting
each other.      West, 108 Wn.          App.    at   767.        Carter then sued the GAL, alleging that the GAL had

negligently      recommended            that    the       child      be       placed     with   West;       committed        perjury,   was




                                                                          8
Consol. Nos. 43983 -2 -II / 43986 -7 -II


incompetent,     and   failed to   perform          her duties;     and   had   alienated   her   son   from her.      West, 108


Wn. App. at 767.

            The GAL moved for summary judgment, arguing that she was immune under quasi-

judicial    immunity.    West, 108 Wn.          App.    at   767 -68.     On    appeal, we agreed.          West, 108 Wn. App.
                                                                                                  5         Reddy6]"

at   766.    We determined that the           case was "     the same as [ Barr, Adkins,              and              in that the


GAL was acting as an arm of the court at all times; therefore, she was entitled to quasi-judicial

immunity. West, 108 Wn. App. at 774.

            Under RCW      13. 34. 105( 2),          Barr,    and    West,      a GAL is protected by quasi-judicial

                                  the                        performing his statutory duties.               Barr, 124 Wn.2d at
immunity       as " an arm of            court" when



332;    West, 108 Wn.      App.         at   774.    Because immunity exists to protect the functions one is

performing, rather than the person who is performing them, when a GAL is not acting within his

statutory duties, he is not acting as " an arm of the court" and cannot be entitled to quasi-judicial

immunity. Regan, 163 Wn. App. at 179.

            In order for quasi-judicial immunity to apply to Skagren, he must have been performing

the GAL' s function to investigate facts and to report facts during the conduct in question. Here,

we must construe all facts and reasonable inferences in Kelley' s favor as the nonmoving party.

Berrocal, 155 Wn.2d          at    590.       Kelley alleged in her complaint and declaration that Skagren
 stalked, preyed, assaulted,        and      sexually harassed her.             Kelley further alleged in her declaration

that Skagren repeatedly came to her home and her place of employment and asked her to go on

 dates with him without asking about her son; that he offered to give her money and to help her



 5 Adkins v. Clark County, 105 Wn.2d 675, 717 P. 2d 275 ( 1986).
 6
     Reddy v. Karr, 102 Wn. App. 742, 9 P. 3d 927 ( 2000).

                                                                    6
Consol. Nos. 43983 -2 -II / 43986 -7 -II



get her driver' s license reinstated, saying in a sexual manner that she could " find some way to

pay [ him] back ";        that he would often send her text messages after midnight, including picture

messages of himself holding alcoholic beverages and asking if he could buy her a drink; and that

he   was     very " touchy       feely"       with    her     and    touched her      shoulders,    legs, knees, and hair in


inappropriate      ways.      CP   at   50 -51.      If these allegations are true, Skagren was not acting within a

GAL' s function when he engaged in this conduct and, therefore, would not be entitled to

immunity.

           The County argues that we must apply quasi-judicial immunity under the facts of this

case   for   two   reasons.     First, the County claims that quasi-judicial immunity is not limited to in-

court activities and the West court determined that a GAL is acting as an arm of the court " at all

times."      Br.   of   Appellant      at   11.   Although the County is correct that in West we determined that

the GAL was acting as an arm of the court at all times, we were referring to all times that were

relevant     in that    case.    108 Wn.          App.   at   774.    The     phrase " at all   times"   cannot be taken out of


context. We did not hold in West that a GAL is always protected or is never acting outside of his

GAL duties. Such a result would be absurd.


           In West, the mother' s allegations against the GAL were that the GAL negligently placed

the child with his father, that she had committed perjury, that she was incompetent to perform

her GAL duties,           and   that    she   had    alienated       her   son.   108 Wn.   App.    at   767.   These allegations


were aimed at what the GAL did while performing her GAL functions and were not like Kelley' s

 allegations here that Skagren engaged in inappropriate stalking, preying, assault, and sexual

 misconduct against         her    outside of        his GAL duties.           The County also cites to Reddy v. Karr, but

 again, that case was also a lawsuit against a GAL for how the GAL performed her GAL function.

         App. 742, 744, 9 P. 3d 927 ( 2000).
 102 Wn. -                                                                 There was no question that the GAL there was

                                                                       10
Consol. Nos. 43983 -2 -II / 43986 -7 -II



conducting her investigation and evaluation during the times that the mother relied on in her
complaint.   Reddy,      102 Wn.    App.    at   745 -46.        Therefore, her case was properly dismissed at

summary judgment.          Reddy,   102 Wn.       App.      at   753.    But these two cases are simply unlike

Kelley' s case because Kelley alleges that Skagren committed acts outside of his GAL function.

         Second, the County argues that the face of Kelley' s complaint admits that quasi-judicial

immunity must apply because Kelley alleges that Skagren used his court -ordered function to
commit   the torts   alleged.   Although Kelley' s complaint alleges that Skagren " used his authority,

tasks, tools and premises of his job and assignment to stalk, prey, assault; batter and sexually

harass Ms. Kelley,"        Kelley did not allege that Skagren was performing his court- ordered

function   when   he   committed    the    alleged   torts.        CP   at   2.   Therefore, Kelley' s allegation that

Skagren used his GAL position as his opportunity to commit the alleged torts against Kelley

does not mean that he was acting within his statutory GAL functions when he stalked, preyed,

assaulted, and    sexually harassed    Kelley. Skagren is not entitled to be treated as an " arm of the

court" automatically or as a matter of law, even though he may have used his position as a GAL
to commit the alleged torts.


         Accepting Kelley' s allegations as true, we cannot say as a matter of law that Skagren was

investigating facts or reporting facts to the court while assaulting and making sexual advances

toward   Kelley   as   described in her    complaint and          declaration. As a result, questions of fact exist


 as to whether Skagren was acting within his statutory or court- appointed functions when

 committing the alleged torts, and, therefore, is entitled to quasi-judicial immunity. Accordingly,

 we affirm the superior court' s decision denying the County' s motion to dismiss Kelley' s case.




                                                              11
Consol. Nos. 43983 -2 -II / 43986 -7 -II



        A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.

                                    KELLEY' S OBJECTIONS TO COUNTY' S BRIEF


                               A. KELLEY' S MOTION TO STRIKE COUNTY' S BRIEF


         In her response, Kelley argues that the County' s appellate brief fails to comply with RAP

10. 3( a)( 4) because its assignment of error is insufficient. We disagree with Kelley.

         Under RAP 10. 3(        a)(   4), an appellant' s brief must contain a " separate concise statement of


each error a party contends was made by the trial court, together with the issues pertaining to the
assignments      of error."       The        County'   s   assignment         of error         states, "   The trial court erred by

          Pierce                                to dismiss              for   reconsideration."            Br.   of   Appellant   at   1.   It
denying              County' s    motions                         and




then explained that the superior court erred in failing to dismiss on the grounds of quasi-judicial

immunity.       These        statements       comply       with    RAP        10. 3(   a)(   4).   It is clear that the County' s

assignment of error challenges the superior court' s order denying the County' s motion to dismiss

because the     court rejected         its   quasi-judicial       immunity        argument.          The County' s assignment of

error   does   not   leave   room      for   confusion.     We deny Kelley' s motion to strike the County' s brief

 and for sanctions on this basis.

                                         B. KELLEY' S MOTION FOR SANCTIONS


         Next, Kelley argues in her response that we should sanction the County for its failure to

 comply with the ruling granting discretionary review that limited our review to only the

 immunity issue and denied review on the collateral estoppel issue. Additionally, Kelley asks that

 we award her attorney fees as sanctions for the time it took to unnecessarily respond to the

 County' s collateral estoppel argument.

                                                                    12
Consol. Nos. 43983 -2 -II / 43986 -7 -II



          We agree with Kelley that the ruling is clear that it denied appellate review on the

collateral estoppel       issue.   The ruling   states, "[    T] here does not appear to be ` substantial ground


for a difference of opinion' or that ` immediate review of the order may materially advance the

ultimate    termination of the      litigation. "' CP    at   168 ( quoting RAP 2. 3( b)( 4)).     The ruling clearly

denied    discretionary      review of   the issue.    Additionally    the ruling   states, "   Unlike the immunity

issue,   collateral estoppel would confer only a defense against the claim of damages, not

immunity from suit. And given the lack of authority to the contrary, the County and Skagren fail

to   show   that the trial    court committed obvious or probable error."            CP   at    168 -69.   Review was


denied under both RAP 2. 3( b)( 1) and ( 2).


          In its opening brief, the County provided extensive argument regarding collateral

estoppel.      Further, it failed to acknowledge that our commissioner had denied discretionary

review of     the   collateral estoppel   issue.   Only in its reply brief does the County assert that it did

not violate the commissioner' s ruling because its appellant brief does not actually argue

collateral    estoppel.      The County claims that it is proper for it to argue that the district court' s

factual findings below support its argument that immunity applies to Skagren. It concedes that it

would not be proper to argue that a district court' s legal ruling precludes her claim as a matter of

law under collateral estoppel, but contends that it is appropriate to argue that the district court' s

factual               is properly                in   determining              immunity    applies    to Skagren. We
            finding                 considered                       whether




disagree.


            Our commissioner explained that we were not accepting review of collateral estoppel


because Kelley' s allegations against Skagren in her superior court complaint included more

allegations than the ones that she made against him in the district court protective order hearing.

 Specifically, Kelley did not allege to the district court that Skagren engaged in sexual

                                                               13
Consol. Nos. 43983 -2 -II / 43986 -7 -II



misconduct against her, but she did include allegations of sexual comments and assault for

sexual purposes as part of         her   complaint against   Skagren   at   the   superior court   level.   In this way,

Kelley presented different factual issues to the superior court that the district court did not
consider.    Therefore, the district court' s finding that Skagren was engaged in his GAL duties

during the events complained of did not take into account any sexual misconduct allegations and

the County is not allowed to rely on the district court' s finding to, support its argument that

immunity     applies     here.   Additionally, our commissioner ruled that collateral estoppel, even if

proved, would only apply as a defense and not as immunity to suit.

         Also, the County argues that it did not argue collateral estoppel in its opening brief, but

the second section of its opening brief clearly cites to and relies on collateral estoppel law. This

argument was improper under our commissioner' s ruling that collateral estoppel is not before us

for review. Further, even if the County believed that the commissioner' s ruling did not preclude

its argument, it should have acknowledged in its opening brief that review had been denied on

the   collateral estoppel    issue.      We agree with Kelley that it was a waste of time for her to have to

respond to the collateral estoppel arguments as well as for us to have to read and consider the

portions of the parties' briefs that improperly addressed collateral estoppel.

         Under RAP 10. 7, we ordinarily impose sanctions on a party or counsel who files a brief

that fails to comply        with   the RAP     rules.   And RAP 18. 9( a) provides that we can order a party


who fails to comply with the RAP rules to pay " terms or compensatory damages to any other

party    who     has been harmed"           by the failure to comply or to pay sanctions to the court.

 Compensatory damages can include an award of attorney fees and costs to the opposing party.

Holiday     v.   City   of Moses Lake, 157 Wn.      App.   347, 356, 236 P. 3d 981 ( 2010), review denied, 170




                                                             14
Consol. Nos. 43983 -2 -II / 43986 -7 -II



Wn.2d 1023 ( 2011).            Because the County failed to comply with RAP 2. 3( e) and made improper
                                                                                                                           7
arguments     in its opening brief, we     order $ 500 sanctions against        the   County, payable      to    Kelley.


                                                                  1,                          V ,,         k



                                                                       HANSON, A.C. J.
We concur:



         Y




                           F




BJtZGEI?, J.




      V4,j, )
MAXA, J.
                                J



7
    Kelley acknowledged that she could have filed a separate motion to strike the County' s
improper argument but chose not to do so because she did not want to further engender delay in
this case which had already been subject to delay and disruption by this interlocutory appeal. In

Pugel v. Monheimer, cited by Kelley, Division One of this court awarded an appellant attorney
fees under RAP 18. 9 after the respondent had attempted to challenge part of the trial court' s
 findings    of   fact but failed to file his   cross appeal on   time. 83 Wn. App. 688, 693, 922 P. 2d 1377

    1996),   review   denied, 131 Wn. 2d 1024 ( 1997).         Instead, he improperly included in his response
 brief assignments       of error and claims     for   affirmative relief.    Pugel, 83 Wn.    App.   at       693.   Because

 the appellant had to respond to those arguments, Division One awarded attorney fees, noting that
     w]hile it might have been more efficient for [ appellant] to move to strike the respondent' s
 brief, unquestionably [ respondent' s] violation of the rules caused more work for [ appellant].
 Accordingly,       an award of     attorney fees is    appropriate under     RAP 18. 9."    Pugel, 83 Wn. App. at
 693.    Although we do not award attorney fees, Kelley was harmed by having to respond to
 improper arguments and we order the County to pay sanctions to Kelley.
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