Life Designs Ranch, Inc. v. Sommer

• Citation: 191 Wash.App. 320,364 P.3d 129
• Decision Date: 12 November 2015
• Docket Number: No. 32922–4–III.,32922–4–III.
• Parties: LIFE DESIGNS RANCH, INC., a Washington Corporation, Vincent Barranco, an individual, and Bobbie Barranco, an individual, Appellants, v. Michael SOMMER, Respondent.
• Court: Court of Appeals of Washington

191 Wash.App. 320

364 P.3d 129

LIFE DESIGNS RANCH, INC., a Washington Corporation, Vincent Barranco, an individual, and Bobbie Barranco, an individual, Appellants,

v.Michael SOMMER, Respondent.

No. 32922–4–III.

Court of Appeals of Washington, Division 3.

Nov. 12, 2015.

Jason Thomas Piskel, Nicholas D. Kovarik, Piskel Yahne Kovarik PLLC, Spokane, WA, for Appellants.

Scott Christopher Cifrese, Paine Hamblen LLP, William Christopher Schroeder, Attorney at Law, Spokane, WA, for Respondent.

BROWN, A.C.J.

¶ 1 Life Designs Ranch (Life Designs) appeals the summary judgment dismissal of its defamation, tortious interference with a business expectancy, and invasion of privacy (false light) claims against Michael Sommer. Life Designs contends the trial court erred when it concluded Life Designs had failed to establish its legal claims as a matter of law. We disagree with Life Designs and affirm.

FACTS

¶ 2 Life Designs, owned by Vince and Bonnie Barranco, is a substance abuse aftercare program for young adults operating from Cusick, Washington with following optional transition housing in Spokane. Clients attend Narcotics Anonymous/Alcoholics Anonymous meetings at off-site locations three times a week as part of the program. The six-month Cusick program costs clients $52,200 plus a $1,200 initial interview fee. The Spokane transitional program costs an additional $12,000.

¶ 3 Clay Garrett, formerly Life Designs' admissions director, developed relationships with educational consultants hired by the families of prospective clients to guide them in program selection. The educational consultants typically narrow the prospective client's focus to three recommended programs. Mr. Garrett updated Life Designs' website to attract more clients. He often gave educational consultants and prospective clients Life Designs' website information so they could learn more about the program.

¶ 4 In 2012, Mr. Sommer contracted to send his son to Life Designs. Mr. Sommer later disputed Life Designs' billings. Mr. Sommer e-mailed Mr. Barranco:

Please review your contract again. It specifically states that any partial months are billed at full and the last month is not refundable. I think you are in a highly indefensible position. The 26K was put into brackets to show that was the amount we were at THE MOST liable for, not the least. I am willing to get legal with this. Are you? I would hope that the most important thing to you is your reputation. We all know how easily reputations can be destroyed, without the legal system even getting involved. But I would go both routes if I have to. You are wrong on all fronts. Please reconsider before we find it necessary to proceed.

Clerk's Papers (CP) at 257.

¶ 5 Mr. Sommer contacted one of Life Designs' referral sources, Chad Balagna, who worked at a preliminary treatment program. According to Mr. Sommer, he told Mr. Balagna he should "reconsider if he was going to recommend people there so his own reputation would be protected." CP at 243. It is unclear if Mr. Balagna is considered an educational consultant. Additionally, Mr. Sommer unsuccessfully complained to the Better Business Bureau. He registered www. lifedesignsranchinc.com, a domain name similar to Life Designs' actual domain name, www.lifedesignsinc.com, Mr. Sommer uploaded and published allegedly defamatory content onto his website, partly including:

• The problems with this organization are numerous. Life Designs Ranch claims to help you pursue your life's passions. That is only true if your life passion fits into what the other 11 prisoners and their wardens consider their life passion.

• Therapeutic environment? ? ? Only for the staff and the owner, Vince Barranco, who finds that charging 12 young adults $8000 to $9000 a months for food and housing permits him to pursue his life passions since he really doesn't have to work and has free labor to increase the value of his property.

• What you get ... A visual experience of pine trees, dead pine trees, falling down pine trees, disintegrated pine trees, and more pine trees. River, can't be seen. Mountains, can't be seen. Civilization, can't be seen. But there are pine trees!!!!!

• What you get ... 2 or 3 twelve step meetings a week in a very small western Washington community where the only young adults in attendance are those from Life Designs ranch.

• You should go to Life Designs if: ... You believe that it takes no education or experience with substance abuse, or compassion for the young adult who is recovering from a substance addiction to help them become the person they want to be.

CP at 248–51. The "About Us" section on Mr, Sommer's website partly specified: "We are here to try to protect people from the financial and emotional distress that comes with attending Life Designs Ranch." CP at 251. It concluded: "Healing is not done and seems to be very limited in it's [sic] attempt. Keep your money, go somewhere else...." Id. (emphasis added). The website also included a link to Human Earth Animal Liberation's (HEAL) preexisting website alleging Life Designs is run like a cult, illegally exploits student labor, and employs a staff member who worked at another camp when a young boy died.

¶ 6 Life Designs sued Mr. Sommer for defamation, intrusion, false light, and interference with business expectancy based on later business losses. After the trial court dismissed its claims at summary judgment, Life Designs appealed.

STANDARD OF REVIEW

¶ 7 We review summary judgment orders de novo, engaging in the same inquiry as the trial court. Mohr v. Grant, 153 Wash.2d 812, 821, 108 P.3d 768 (2005). Summary judgment is appropriate if the evidence, when viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c).

"[C]onstruing the evidence in the light most favorable to the nonmoving party, the court asks whether a reasonable jury could find in favor of that party." Herron v. KING Broad. Co., 112 Wash.2d 762, 767–68, 776 P.2d 98 (1989). In defamation cases, summary judgment plays an important role: "Serious problems regarding the exercise of free speech and free press guaranteed by the First Amendment are raised if unwarranted lawsuits are allowed to proceed to trial. The chilling effect of the pendency of such litigation can itself be sufficient to curtail the exercise of these freedoms." Mark v. Seattle Times, 96 Wash.2d 473, 485, 635 P.2d 1081 (1981) (internal quotation marks omitted).

ANALYSIS

A. Defamation Per Se

¶ 8 The issue is whether the trial court erred in failing to find, as a matter of law, Mr. Sommer's website was defamatory per se. Life Designs contends reasonable minds could solely conclude the false content on Mr. Sommer's website exposed it to hatred, contempt, ridicule, and obloquy, deprived it of public confidence, and injured its business.

¶ 9 "Whether a given communication constitutes defamation per se may be either a question of law or a question of fact." Maison de France, Ltd. v. Mais Oui!, Inc., 126 Wash.App. 34, 43, 108 P.3d 787 (2005). A publication is defamatory per se (actionable without proof of special damages) if it "(1) exposes a living person to hatred, contempt, ridicule or obloquy, or to deprive him of the benefit of public confidence or social intercourse, or (2) injures him in his business, trade, profession or office." Caruso v. Local Union No. 690, 100 Wash.2d 343, 353, 670 P.2d 240 (1983). A jury normally decides what is defamatory per se:

Where the definition of what is libelous per se goes far beyond the specifics of a charge of crime, or of unchastity in a woman, into the more nebulous area of what exposes a person to hatred, contempt, ridicule or obloquy, or deprives him of public confidence or social intercourse, the matter of what constitutes libel per se becomes, in many instances, a question of fact for the jury.

Id. at 354, 670 P.2d 240 (quotation marks omitted).

¶ 10 Life Designs argues Mr. Sommer's website directly attacks its recovery program business by denigrating its therapeutic environment and the staff's education, experience, and compassion. But the website statements do not rise to the level of "extreme" need to constitute defamation per se as a matter of law. The criticized statements are similar to those seen in Caruso, dealing with "the rather vague areas of public confidence, injury to business, etc." Id. at 353, 670 P.2d 240.

¶ 11 In Caruso, an article was printed in a weekly paper mailed to union members. Id. at 346, 670 P.2d 240. The article urged readers to avoid patronizing a carpet business because the business harassed laborers who, due to construction, parked at the business to make deliveries nearby. Id. The article further explained despite the laborers' willingness to move the equipment, the business still impounded the equipment. Id.

This article was printed four times. Id. at 346–47, 670 P.2d 240. After its publication, people called the business, telling the owner they would not shop there. Id. at 347, 670 P.2d 240. Other callers used various derogatory and profane terms to refer to the owner. Id. Sales dropped sharply. Id. The court held the trial court improperly instructed the jury when it told the jury if the jury found the article was false and defamatory it was libelous per se. Id. at 353–54, 670 P.2d 240. Whether the article was defamatory per se was for the jury to decide. Id.

¶ 12 Similarly, Mr. Sommer's website warned potential clients away from Life Designs. Life Designs' business declined shortly after publication. But unlike in Caruso, there were no threatening phone calls nor were there calls where people said they would not send their family member/client to Life Designs. Given Caruso, we conclude the less severe publication here cannot be defamation per se as a matter of law.

B. Defamation

¶ 13 The issue is whether the trial court erred in dismissing Life Designs' defamation claim. Life Designs contends: (1) the contents...