Hoechlin v. Urbiha, No. 31247-6-II (WA 4/26/2005)
| Decision Date | 26 April 2005 |
| Docket Number | No. 31247-6-II,31247-6-II |
| Court | Washington Supreme Court |
| Parties | BOBBI HOECHLIN and JOHN HOECHLIN, wife and husband, and the marital community composed thereof, Appellants and Cross-Respondents, v. KATHY URBIHA and JOHN DOE URBIHA, and the marital community composed thereof, Respondents and Cross-Appellants, MICHAEL SMITH and JANE DOE SMITH, husband and wife composing the marital community thereof; MICHAEL SMITH, in his official capacity as Pacific County Prosecutor; COUNTY OF PACIFIC, a municipal corporation; NANCY SHALLOW; STEPHEN HERRINGTON; THE ESTATE OF MAL SWANSON, and LUELLA SWANSON, husband and wife and the marital community thereof; MIKE ULLOCK and PAT ULLOCK and the marital community composed thereof; MARY ANN ARCHER, Defendants. |
Appeal from Superior Court of Grays Harbor County. Docket No: 01-2-01331-5. Judgment or order under review. Date filed: 11/24/2003. Judge signing: Hon. F Mark McCauley.
Counsel for Appellant(s), Anthony David Gipe, Thompson Gipe PC, 1900 W Nickerson St Ste 209, Seattle, WA 98119.
Counsel for Respondent/Cross-Appellant, Michael James Bond, Attorney at Law, 2200 6th Ave Ste 600, Seattle, WA 98121-1849.
Raymond Victor Bottomly, Gardner Bond Trabolsi St Louis & Clement, 2200 6th Ave Ste 600, Seattle, WA 98121.
Bobbi and John Hoechlin sued Kathleen Urbiha, a handwriting analyst, for malicious prosecution, abuse of process, defamation, outrage, and civil rights violations under 42 U.S.C. sec. 1983. The trial court ruled that witness immunity barred the Hoechlins' suit and granted Urbiha's motion for summary judgment. The trial court determined that Urbiha was entitled to absolute immunity as an expert witness in the State's forgery prosecution against the Hoechlins and granted Urbiha's motion for summary judgment. The Hoechlins appeal summary judgment, challenging Urbiha's qualifications as an expert and the trial court's finding that she was a witness in the Hoechlins' criminal case.
Urbiha cross-appeals, contending that the trial court erred by finding that Washington's anti-SLAPP1 statute, former RCW 4.24.510 (1999), did not apply to expert witnesses and by denying her request for attorney fees under that statute.
We affirm the trial court's determination that, as a witness in a criminal case, Urbiha is immune from suit. But we also hold that former RCW 4.24.510 applies to witnesses who act in good faith. Thus we remand for a trial to determine whether Urbiha was performing her duties in good faith and, as a result, is entitled to attorney fees in defending against the Hoechlins' suit.2
In April 1997, some residents of Surfside, a small unincorporated community near Ocean Park in Pacific County, began receiving unsolicited magazine subscriptions and mail-order products. The residents, including Mike and Pat Ullock, Mal and Luella Swanson, Nancy Shallow, Stephen Herrington, and Mary Ann Archer (collectively, the Neighbors) believed that the orders for these items had been forged. Suspecting that another Surfside resident, Elizabeth Fenner,3 forged the orders, they hired Urbiha, a handwriting analyst, to review the order cards they retrieved from the companies sending the unwanted items.4
Urbiha, a `QDE5 Diplomate' of the American Board of Forensic Examiners (ABFE), asked the Neighbors to provide her with handwriting samples from anyone who might be responsible for the forged documents. The Neighbors sent samples of the individual Neighbors' handwriting. They also sent Urbiha samples of Fenner's handwriting, as well as that of Bobbi Hoechlin, Fenner's friend.6 After reviewing the order cards and the handwriting samples, Urbiha opined that Fenner was the forger.
The Neighbors began receiving a new round of unsolicited mail in February 1998. One of the Neighbors, Mal Swanson, told Urbiha that the handwriting on the new order forms did not appear to match the earlier handwriting and asked Urbiha to conduct further investigation. On February 10, 1998, after reviewing the forms, Urbiha sent Mal Swanson a letter stating that, in her opinion, the new order forms had all been filled out by the same person and that there was `a distinct possibility that these documents . . . may have been filled out by Bobbi Hoechlin.'7 Clerk's Papers (CP) at 20.
Around May 1998, the Pacific County Prosecutor, Michael Smith, sent Urbiha's February 10, 1998 opinion letter and the supporting documents to the Washington State Patrol Crime Laboratory for review. On June 22, 1998, a forensic document examiner for the state, Rosemary Brehm, concluded that Bobbi Hoechlin CP at 184. Smith expressed his disappointment with the lab's findings in a July 16, 1998 letter to one of the neighbors, Mike Ullock. But he decided to pursue the investigation of Fenner and Bobbi Hoechlin.
In a September 18, 1998 letter to Mike Ullock, Urbiha reiterated her conclusion that Bobbi Hoechlin forged the order cards. Then, in a September 22, 1998 letter to Mike Ullock, Smith requested that Mike Ullock have Urbiha provide him with suspected forgeries that had not been reviewed by the State crime lab. In his letter, Smith discussed his strategy:
`{S}he {presumably, State document examiner Brehm} can't testify as to her opinion on samples she has not seen.' CP at 191. It seems that Mike Ullock passed on Smith's request to Urbiha, because in an October 15 letter to Smith, Urbiha stated that she was sending CP at 220.
On November 5, 1998, Smith charged Bobbi Hoechlin with 10 counts of forgery.8 By a letter dated April 30, 1999, Urbiha told the Hoechlins' attorney that she could not testify to Bobbi Hoechlin's guilt beyond a reasonable doubt.9 Bobbi Hoechlin filed a Knapstad10 motion to dismiss the charges. In May 1999, the Pacific County Superior Court granted the motion and dismissed the charges against Bobbi Hoechlin.
But Smith had also charged Fenner with forging the orders. And in July 1999, Urbiha testified for the State at Fenner's trial. Testifying for the defense, both Brehm and another handwriting expert, James Green, disputed Urbiha's findings and questioned her conclusions as to the authorship of the forgeries.
The defense experts also questioned Urbiha's qualifications as a handwriting expert.11 Urbiha testified that although she was an ABFE diplomate, under then-current guidelines she would not qualify to become an ABFE member because she had not undergone the requisite apprenticeship program. Green also testified that Urbiha would not meet American Society of Questioned Document Examiners guidelines.
Fenner was acquitted following a bench trial. In finding her not guilty, the trial court stated that Urbiha's conclusions were entitled to some weight, but it concluded that the defense experts were `more logical and made a little bit more sense to me.' CP at 132.
In November 2001, the Hoechlins sued Pacific County, Smith, the Neighbors, and Urbiha in the Grays Harbor County Superior Court. The Hoechlins asserted claims for malicious prosecution, abuse of process, defamation, outrage, and civil rights violations under 42 U.S.C. sec. 1983.12 In April 2002, the Hoechlins settled their lawsuit with the County and Smith. In July 2002, the remaining defendants moved for summary judgment. Following oral arguments, the court issued an oral ruling stating Urbiha is `an expert in this area, at least by training and experience and her work maybe she doesn't have all the qualifications that some of the other experts have, but that really goes more to weight.'13 CP at 326-27. The trial court then dismissed on summary judgment the claims against Urbiha based on expert witness immunity as set forth in Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 776 P.2d 666 (1989).14
The court also stated that Washington's anti-SLAPP statute, former RCW 4.24.510, probably did not apply to Urbiha's actions, but it requested additional briefing and did not make a final ruling.15
After reviewing supplemental briefing, the court entered a written order granting Urbiha's motion for summary judgment and denying her request for attorney fees under former RCW 4.24.510.16 Both parties appeal: the Hoechlins from the grant of summary judgment and Urbiha from the denial of attorney fees.
The Hoechlins first contend that summary judgment on the issue of Urbiha's immunity was inappropriate.
We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court. Int'l Bhd. of Elec. Workers, Local Union No. 46 v. TRIG Elec. Constr. Co., 142 Wn.2d 431, 434-35, 13 P.3d 622 (2000), cert. denied, 532 U.S. 1002 (2001). We consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
`A witness is absolutely privileged to publish defamatory17 matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.' Deatherage v. Examining Bd. of Psychology, 134 Wn.2d 131, 135, 948 P.2d 828 (1997) (quoting Restatement (Second) of Torts sec. 588 (1977)). Witness immunity promotes full and frank testimony, which, in turn, protects the integrity of the judicial process. Gustafson v. Mazer, 113 Wn. App....
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