Jha v. Khan

• Decision Date: 14 November 2022
• Docket Number: 83768-1-I
• Parties: SIDDHARTH JHA, Respondent, v. VARISHA MAHMOOD KHAN and YASSIR ANWAR JAMAL, wife and husband, Appellants.
• Court: Washington Court of Appeals

SIDDHARTH JHA, Respondent, v. VARISHA MAHMOOD KHAN and YASSIR ANWAR JAMAL, wife and husband, Appellants.

No. 83768-1-I

Court of Appeals of Washington, Division 1

November 14, 2022

DWYER J.

Today we are charged with resolving the first appellate dispute arising from invocation of the Uniform Public Expression Protection Act, chapter 4.105 RCW (UPEPA). In 2021, our legislature became the first in the country to enact this uniform act. This legislative action followed on the heels of the perceived failure of Washington's prior anti-SLAPP^[1] statute, former RCW 4.24.525 (2010), to achieve the societal goals sought by the legislature.

Herein a private citizen and property developer, Siddharth Jha brought a common law tort action against a political candidate, Varisha Khan, based on unflattering statements regarding Jha made by Khan during the course of her campaign. After giving Jha proper notice of her intent to do so, Khan moved to dismiss Jha's complaint as allowed by the uniform act. The trial court denied the motion. As also allowed by the uniform act, Khan took an immediate appeal. Because the trial court erred by denying the motion to dismiss, we reverse.

I

Siddharth Jha filed an invasion of privacy by false light claim against Varisha Khan and her spouse Yassir Jamal, based on statements Khan made about him in an article she wrote for her campaign for the Redmond City Council. Khan moved to dismiss Jha's complaint under UPEPA. The trial court denied the motion finding that Jha presented issues of material fact. Because the motion should have been granted, we reverse and remand with instructions to enter judgment in Khan's favor.

In 2019, Varisha Khan ran for election to a position on the Redmond City Council against incumbent Hank Myers. As part of her campaign, Khan wrote an article directed to the voters of Redmond and published it on medium.com. Khan's article, entitled "Vote for ethical, bold leadership in Redmond, WA," focused on her opponent and her view that Myers put the interests of developers ahead of the interests of Redmond residents. The article reads, in relevant part:

It's reasonable to expect ethical, principled leadership from our elected officials, including at the local level. It's what we deserve. Unfortunately, my opponent in this race, Hank Myers, has a history of taking money from developers and putting their interests above the public interest.

During this election year, Myers voted in support of developer proposals whom he took money from: Fred Proctor, who gave Myers $400 and Sidd Jha, who gave the $1,000 maximum donation and was recently involved in a legal case of revenge porn and abuse of his ex-girlfriend.

Jha's proposal failed two years ago and once again does not meet the majority of planning requirements, but Myers voted yes anyway. The proposal passed, thus threatening to create a dangerous precedent where developers can disregard public transparency.^[2]

Sidd Jha, aka Siddharth Jha, is the respondent herein. In June 2019, Jha's ex-girlfriend (hereinafter A.S.) filed a lawsuit against him in New York state court. In her complaint, A.S. made numerous allegations detailing Jha's abuse, including, but not limited to, physical violence, persuading her to retract statements made to the police, controlling her finances, and tracking her movements via cell phone. A.S. further alleged that Jha had sent to her family members and employer multiple nude and/or sexual images of her. For his part, Jha contends that the New York lawsuit was a "sham" brought by A.S. to cover up her own misdeeds.

On November 1, 2021, Jha filed a lawsuit against Khan, asserting claims of defamation, invasion of privacy by false light, invasion of privacy by publicity given to private facts, and intentional infliction of emotional distress. On November 4, 2021, Khan sent Jha a written notice of Khan's intent to file a motion to dismiss under UPEPA. This triggered a 14-day window within which Jha could either withdraw or amend his complaint. RCW 4.105.020(1). Jha took no action until over a month later.

As promised, Khan filed her UPEPA motion to dismiss on December 17, 2021.

This filing triggered an automatic stay of the proceedings. RCW 4.105.030.

Jha filed his first amended complaint on January 12, 2022. This complaint removed all claims except invasion of privacy by false light while containing the same factual allegations as contained in the original complaint. Khan interposed no objection to the amendments. Also on January 12, 2022, Jha filed a "Motion for Leave to File Motion for Leave to File Second Amended Complaint." In this motion, Jha indicated that he sought to file a second amended complaint in order to add unspecified federal causes of action. Khan opposed the motion. On February 8, 2022, the trial court granted Jha's motion, permitting him to move to amend his complaint.

The hearing on Khan's UPEPA motion to dismiss took place on February 14, 2022. After entertaining argument from both parties, the trial court stated that it would take the matter under advisement and review relevant authorities before issuing an order.

On February 18, 2022, before the trial court had issued its ruling on the UPEPA motion, Jha moved to file his second amended complaint. Jha's proposed second amended complaint added two claims under 42 U.S.C. § 1983, alleging violations of the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution.^[3]

The trial court issued its order on Khan's UPEPA motion on March 1, 2022.

Therein, the trial court determined that

(a) plaintiff has established a prima facie case as to each essential element of the cause of action of invasion of privacy by false light, and (b) genuine issues of material fact exist regarding, without limitation, the existence and scope of the alleged falsity and Khan's knowledge or reckless disregard of the alleged falsity.

The trial court also indicated that it believed there were unresolved material issues of fact concerning whether Khan's speech was protected by the First Amendment. On March 3, 2022, the trial court granted Jha's motion to file his second amended complaint. Jha filed his second amended complaint on March 11, 2022, eight days after Khan filed a notice of appeal.^[4]

II

In 2020, the Uniform Law Commission drafted UPEPA as a means to combat "an abusive type of litigation called a 'SLAPP' or 'strategic lawsuit against public participation.'" UNIF. L. COMM'N, THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT (2020): A SUMMARY 1 (undated) https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx? DocumentFileKey=dcbe7300-b708-66eb-843a-8a66ddf3ad7b&forceDialog=1. The Washington legislature enacted UPEPA in 2021. LAWS OF 2021, ch. 259. In doing so, Washington became the first state to adopt this uniform act.^[5]

Similar to its predecessor statute, the Washington Act Limiting Strategic Lawsuits Against Public Participation, former RCW 4.24.525, UPEPA provides for early adjudication of baseless claims aimed at preventing an individual from exercising the constitutional right of free speech. Unlike its predecessor, however, UPEPA incorporates standards for adjudication that mirror those utilized in Civil Rules 12 and 56.

Pursuant to RCW 4.105.020(2), a party to a lawsuit may file a special motion for expedited relief to dismiss any cause of action "to which this chapter applies" within 60 days of service of the complaint. Before the party may do so, it must first provide notice of its intent to seek dismissal at least 14 days before filing the UPEPA dismissal motion in the trial court. RCW 4.105.020(1). During this 14-day period, the responding party may withdraw or amend its pleading "in accordance with applicable court rules." RCW 4.105.020(1).

Chapter 4.105 RCW applies to any claim asserted "against a person based on the person's:"

(a) Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

(b) Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding;

(c) Exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington state Constitution, on a matter of public concern.

RCW 4.105.010(2). There are certain exceptions to this rule, which are enumerated in RCW 4.105.010(3)(a).

It is the moving party's burden to establish that UPEPA applies to the cause of action. RCW 4.105.060(1)(a). Once the moving party has satisfied this requirement, the burden shifts to the responding party to establish that a statutory exception applies. RCW 4.105.060(1)(b). If the responding party does not demonstrate that an exception applies, the trial court must dismiss the action if either:

(i) The responding party fails to establish a prima facie case as to each essential element of the cause of action; or

(ii) The moving party establishes that:

(A) The responding party failed to state a cause of action upon which relief can be granted; or

(B) There is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.

RCW 4.105.060(1). If the moving party prevails on the UPEPA motion, the trial court must award the party its costs, reasonable attorney fees, and reasonable litigation expenses. RCW 4.105.090(1).

UPEPA dictates that all provisions of the act "must be broadly construed and applied to protect the exercise of the right of freedom of speech and of the press, the right to assemble and petition, and the right of association, guaranteed...