K.M.P. v. Big Brother Big Sisters of Puget Sound

• Decision Date: 22 February 2021
• Docket Number: No. 80293-3-I,80293-3-I
• Citation: 483 P.3d 119,16 Wash. App. 2d 475
• Court: Washington Court of Appeals
• Parties: K.M.P., a minor child, BY AND THROUGH her natural mother and custodial parent, Sarah Hall PINHO, an individual, Respondents, v. BIG BROTHER BIG SISTERS OF PUGET SOUND and Michael Wayne Sanchez, Appellant.

16 Wash.App.2d 475

483 P.3d 119

K.M.P., a minor child, BY AND THROUGH her natural mother and custodial parent, Sarah Hall PINHO, an individual, Respondents,

v.BIG BROTHER BIG SISTERS OF PUGET SOUND and Michael Wayne Sanchez, Appellant.

No. 80293-3-I

Court of Appeals of Washington, Division 1.

FILED February 22, 2021

Ordered Published Date March 16, 2021

Peter Thomas Connick, Attorney At Law, 12351 Lake City Way NeSte. 203, Seattle, WA, 98125-5437, for Appellant.

Richard L. Anderson, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, for Respondent.

PUBLISHED OPINION

Verellen, J. ¶1 When a minor child tells their caregiver that they have been abused and the caregiver relays that information to police, both the child and the caregiver are "persons" communicating information to police entitled to immunity under the anti-SLAPP statute, RCW 4.24.510.¹

¶2 The alleged abuser's argument that the child's statement to her caregiver is not covered by the anti-SLAPP statute fails.To require a minor child to call 911 herself to acquire immunity would be an absurd result.The child is entitled to immunity against the abuser's defamation claim based upon her comments to her caregiver.

¶3The trial court did not abuse its discretion in issuing CR 11 sanctions against the defendant's attorney or denying the attorney's motion to withdraw.

¶4 As the prevailing party on appeal, the child is entitled to attorney fees under RCW 4.24.510.

¶5 Therefore, we affirm.

FACTS

¶6 On April 29, 2016, nine-year-old KMP joined her "big sister" from Big Brothers Big Sisters of Puget Sound (BBBS) for a trip to a local lake.²KMP and her "big sister" walked to the dock where people were fishing.Michael Sanchez, one of the fisherman, caught a fish and asked KMP if she wanted to reel it in.KMP agreed, and Sanchez "positioned [her] right in front" of him "so he was right behind her" holding on to the pole.Soon after, KMP knelt down beside the lake to rinse her hands, and Sanchez "held on to her jacket."³Later, Sanchez approached KMP again so he could tie a longer string to her fish.

¶7 About 15 minutes later, KMP told her "big sister" that Sanchez had "inappropriately touched" her on her "privates."⁴Moments later, her "big sister" received a phone call from Sarah Pinho, KMP's mother.Her "big sister" told Pinho what happened and then called the police after Pinho urged her to.Within minutes, the police arrived and KMP told them Sanchez touched her inappropriately.

¶8 On July 25, 2017, KMP sued her "big sister" and BBBS for negligence and sued Sanchez for sexual battery.The trial court dismissed her "big sister," and BBBS settled with KMP.Sanchez entered an Alford⁵ plea to the charge of attempted second degree child molestation.As a result of Sanchez's guilty plea, KMP moved to dismiss her sexual battery claim against Sanchez.Sanchez objected and filed various counterclaims against KMP.⁶

¶9 When Sanchez filed his counterclaims, he was also a respondent in a sexually violent predator (SVP) civil commitment proceeding.One of Sanchez's attorney's in the SVP case, Kenneth Henrikson, assisted Sanchez in drafting and filing pleadings in his civil action against KMP, until his superiors insisted that he terminate the representation.Henrikson asked his former colleague, Kenneth Chang, to represent Sanchez.

¶10 In March 2019, KMP's counsel met with Chang and provided him with deposition transcripts from KMP's sexual battery case and a copy of RCW 4.24.510, the anti-SLAPP statute.KMP's counsel told Chang that if Sanchez did not agree to terminate the litigation, KMP would seek both the statutory remedies provided by RCW 4.24.510 and CR 11 sanctions against Chang.

¶11 Soon after, KMP filed a motion for summary judgment, arguing that Sanchez had insufficient evidence to establish a prima facie case of his defamation counterclaim and that, under RCW 4.24.510, she was immune from all counterclaims arising from her report of sexual abuse.

¶12The trial court granted KMP's motion for summary judgment.The trial court concluded that KMP was immune from civil liability under RCW 4.24.510 because "without evidence of any malice or of any ill-content" there was no evidence "that a child could be liable for reporting abuse to her caregivers."⁷As a result, the trial court ordered Sanchez to pay $10,000 in statutory damages under RCW 4.24.510 and Chang to pay $4,000 in CR 11 sanctions.

¶13 Sanchez appeals.

ANALYSIS

I.Immunity from civil liability under RCW 4.24.510

¶14 Sanchez contends that KMP is not entitled to immunity or statutory damages under RCW 4.24.510 because the statute does not apply to conversations between private persons.Specifically, Sanchez argues that KMP's communication of sexual abuse to her "big sister" was not protected speech under section .510 because the statute can only immunize KMP's direct statements to police.

¶15"We review an order granting summary judgment de novo."⁸Summary judgment is appropriate " ‘only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ "⁹We view the evidence in the "light most favorable to the non-moving party."¹⁰"The party opposing a motion for summary judgment may not rely on speculation [or] on argumentative assertions that unresolved factual issues remain."¹¹"Ultimate facts or conclusions of fact are insufficient; conclusory statements of fact will not suffice."¹²

¶16We interpret a statute based on the statute's plain meaning and the legislature's intent.¹³

¶17 The anti-SLAPP statute, RCW 4.24.510, provides:

A person who communicates a complaint or information to any branch or agency of federal, state, or local government ... is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization.A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys’ fees incurred in establishing the defense and in addition shall receive statutory damages of ten thousand dollars.Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith.^[14]

The purpose of RCW 4.24.510 is to protect citizens who come forward with information that will help make law enforcement and government more efficient and more effective.¹⁵

¶18 Because KMP did not initially communicate the sexual abuse to the police, Sanchez relies upon the phrase "person who communicates ... information to ... government" to argue KMP is ineligible for statutory immunity or a $10,000 damage award.But adopting Sanchez's interpretation of section .510 would undermine the legislature's intent.

¶19 Specifically, the use of the singular "person" can also be read as "people" or "persons."¹⁶Thus, the legislature intended to shield multiple "persons" who may be making a single report or communication.¹⁷Here, KMP's report of sexual abuse to her "big sister" and her "big sister" 's report to the police on behalf of KMP constituted a single communication.By interpreting "person" in the plural to encompass both the caregiver or parent and the minor child relying on the caregiver or parent to make a report, the statute's terms better effectuate the legislature's intent.

¶20 Further, we do not derive the legislature's intent from the statute's words alone because we also consider "the context of the entire act as well as any ‘related statutes which disclose legislative intent about the provision in question.’ "¹⁸A closely related statute, the child abuse reporting statute, provides immunity to:

any person participating in good faith in the making of a report ... in connection with a report, investigation, or legal intervention pursuant to a good faith report of child abuse or neglect shall in so doing be immune from any civil or criminal liability arising out of such reporting.^[19]

This statute plainly shields KMP from liability because her "big sister" 's report to the police occurred only because KMP told her about Sanchez's abuse.Interpreting RCW 4.24.510 to extend immunity to a minor child who reports sexual abuse to a caregiver or a parent, who in turn relays that report to police, aligns with the legislature's intent to provide immunity to "any person [or persons] participating" in reporting child abuse to police.

¶21 And to conclude otherwise would produce an absurd result.We decline to read the plain language of the statute to generate an absurd result, " ‘even if [we] must disregard unambiguous statutory language to do so.’ "²⁰Requiring a minor child who is a victim of sexual abuse to directly call 911 to receive the immunity protection of section .510 would be an absurd result.KMP is both immune from civil liability and entitled to $10,000 in statutory damages under section .510.²¹

¶22 Sanchez argues that KMP loses the immunity protection and the resulting statutory damages under section .510 because her allegation of sexual abuse was made in bad faith.

¶23 Bad faith is defined as acting with "dishonesty of belief, purpose, or motive."²²And bad faith can be established through a showing of actual malice.²³But "[i]ndividual factors that evidence actual malice are not generally sufficient to establish actual malice.For example, hostility alone will not constitute actual malice."²⁴

¶24 Specifically, Sanchez contends that his perception of KMP's actions at the time of the incident establish that KMP's allegation of sexual abuse was made in bad faith.Sanchez recalled that KMP was "frightened or upset" when he told her that she could not hold his fishing pole by herself, and that she acted "disgust[ed]" when he told her she could eat the fish.²⁵But because Sanchez presented mere subjective evidence of individual factors of alleged actual malice, his evidence of bad faith was insufficient.

II.CR 11 sanctions and motion for continuance and ...