Scott Akrie, an Individual & Volcan Grp., Inc. v. Grant

• Decision Date: 23 December 2013
• Docket Number: Nos. 68345–4–I, 69300–0–I.,s. 68345–4–I, 69300–0–I.
• Citation: 315 P.3d 567,178 Wash.App. 506
• Court: Washington Court of Appeals
• Parties: Scott AKRIE, an individual and Volcan Group, Inc., d/b/a NetLogix, a California corporation, Respondents, v. James GRANT and Jane Doe Grant, individually and the marital community composed thereof if any; Kassandra Kennan and John Doe Kennan, individually and the marital community composed thereof if any; Davis Wright Tremaine, LLP, a Washington company; Seattle Deposition Reporters, LLC, a Washington company; T–Mobile USA, Inc., a Delaware corporation, Appellants.

178 Wash.App. 506

315 P.3d 567

Scott AKRIE, an individual and Volcan Group, Inc., d/b/a NetLogix, a California corporation, Respondents,

v.James GRANT and Jane Doe Grant, individually and the marital community composed thereof if any; Kassandra Kennan and John Doe Kennan, individually and the marital community composed thereof if any; Davis Wright Tremaine, LLP, a Washington company; Seattle Deposition Reporters, LLC, a Washington company; T–Mobile USA, Inc., a Delaware corporation, Appellants.

Nos. 68345–4–I, 69300–0–I.

Court of Appeals of Washington, Division 1.

Dec. 23, 2013.

Michael Edward Kipling, Marjorie Alison Walter, Timothy Michael Moran, Kipling Law Group PLLC, Seattle, WA, for Appellants.

Dennis Michael Moran, William Arthur Keller, Moran & Keller, PLLC, Bellevue, WA, for Respondents.

DWYER, J.

¶ 1 Volcan Group, Inc., d/b/a NetLogix and Scott Akrie, chief operating officer of NetLogix, (collectively “Akrie”) sued James Grant, Cassandra Kennan, Davis Wright Tremaine, LLP, Seattle Deposition Reporters, and T–Mobile (collectively “Grant”) for violation of the privacy act.¹ Grant moved to strike the claims under the anti-SLAPP ² statute ³ AND moved to dismiss the suit. the trial court held That the anti-SLAPP statute applied to Akrie's claim, granted the motion to dismiss, and awarded statutory damages of $10,000 plus attorney fees to Grant. Grant appeals, asserting that the trial court erred by awarding only $10,000 in damages and insisting that the anti-SLAPP statute mandates a $10,000 award to each defendant. Grant is correct that the anti-SLAPP statute mandates a $10,000 award to each moving party who prevails on a motion to dismiss. Accordingly, we reverse the judgment of the superior court and remand the cause to that court with instructions to enter judgment for Grant in an amount that includes statutory damages of $50,000.

I

¶ 2 Scott Akrie is the chief operating officer of NetLogix, a company located in San Diego, California. NetLogix contracted with T–Mobile to provide “engineering, technical and auditing services to upgrade T–Mobile facilities in connection with its new 3G network.” In 2010, NetLogix sued T–Mobile in the United States District Court, Western District of Washington, claiming breach of contract. James Grant ⁴ and Kennan, attorneys at Davis Wright Tremaine, LLP (DWT), represented T–Mobile in the federal action. While that action was pending, Jason Dillon, a former vice president of NetLogix, e-mailed James Grant and Kennan, offering to divulge to them information regarding the pending lawsuit.

¶ 3 On August 25, 2011, Dillon telephoned DWT offices to speak with James Grant and Kennan. James Grant told Dillon that his “assistant” Thad was present and would be taking notes during the call. In actuality, Thad Byrd was a certified court reporter employed by Seattle Deposition Reporters, and was transcribing the telephone call. During the call, Dillon revealed that NetLogix had destroyed evidence favorable to T–Mobile in the contract dispute. Dillon telephoned DWT offices again on September 16 to speak with James Grant and Kennan. As before, an employee of Seattle Deposition Reporters transcribed this telephone call.

¶ 4 Thereafter, in the federal action, T–Mobile filed a motion to dismiss for spoliation of evidence based on the statements provided by Dillon in the August 25 and September 16 telephone calls. In support of the motion, T–Mobile filed portions of the transcripts of Dillon's telephone calls.⁵

¶ 5 Akrie then brought this action in King County Superior Court asserting that the recording and dissemination of Dillon's telephone conversations in federal court violated Washington's privacy act. Akrie asserted that the recording and dissemination of Dillon's telephone conversations caused injury to its “business, person and reputation” and sought damages for the alleged violations. Grant filed a motion to strike pursuant to Washington's anti-SLAPP statute and a motion to dismiss pursuant to CR 12(b)(6), alleging that Akrie lacked standing to bring the privacy act claim.

¶ 6 The trial court held that because Akrie's action involved the submission of evidence of alleged spoliation in a federal court action, Grant had established by a preponderance of the evidence that the claim was based on an action involving public participation and petition. The trial court further held that, for three reasons, Akrie failed to establish, by clear and convincing evidence, a probability of prevailing on the merits.⁶First, the trial court held that “the filings in Federal Court are immune. You cannot sue based on filing the transcripts with the Federal Court.” Second, the trial court held that Akrie lacked standing to assert that the recording of the telephone calls constituted a violation of the privacy act, as it was not a participant in either telephone conversation. Third, the trial court held that the privacy act does not protect against dissemination of recordings. Ultimately, the trial court held that the anti-SLAPP statute applied to Akrie's claims and granted all five defendants' joint motion to dismiss. The trial court awarded the defendants $10,000 in total statutory damages and $20,137.45 in attorney fees and costs.

¶ 7 Akrie appealed the dismissal of its suit. Grant cross-appealed, asserting that each named defendant was entitled to an award of $10,000, for a total award of $50,000 in statutory damages. Akrie subsequently abandoned its appeal and this court redesignated Grant as Appellants.

II

¶ 8 Grant contends that the trial court erred by awarding only $10,000 in statutory damages.⁷ This is so, Grant asserts, because the anti-SLAPP statute mandates a $10,000 award to each prevailing party on a motion to dismiss. We agree.

¶ 9 We review issues of statutory interpretation de novo. Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010).

A court's goal in construing a statute is to determine and give effect to the legislature's intent. Lake, 169 Wash.2d at 526 ;Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002). If the statute's meaning is plain on its face, we give effect to that plain meaning as the expression of what was intended. Campbell & Gwinn, 146 Wash.2d at 9–10, 43 P.3d 4. “The plain meaning of a statute may be discerned ‘from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.’ ” State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (quoting Campbell & Gwinn, 146 Wash.2d at 11, 43 P.3d 4). We look to “ ‘the ordinary meaning of the language at issue, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole.’ ” Lake, 169 Wash.2d at 526 (quoting State v. Engel, 166 Wash.2d 572, 578, 210 P.3d 1007(2009)).

TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wash.2d 273, 281, 242 P.3d 810 (2010).

¶ 10 In 2010, the legislature amended the anti-SLAPP statute by enacting RCW 4.24.525 to address “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Laws of 2010, ch. 118, § 1(a). The amended anti-SLAPP statute provides the following remedy:

(6)(a) The court shall award to a moving party who prevails, in part or in whole, on a special motion to strike made under subsection (4) of this section, without regard to any limits under state law:

(i) Costs of litigation and any reasonable attorneys' fees incurred in connection with each motion on which the moving party prevailed;

(ii) An amount of ten thousand dollars, not including the costs of litigation and attorney fees; and

(iii) Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated.RCW 4.24.525(6)(a). “Moving party” is defined as “a person on whose behalf the motion described in subsection (4) of this section is filed seeking dismissal of a claim.” RCW 4.24.525(1)(c).

¶ 11 We have never before interpreted RCW 4.24.525(6)(a). Nonetheless, the language of the statute is plain and unambiguous. “In the absence of a specific statutory definition, words in a statute are given their common law or ordinary meaning.” State v. Chester, 133 Wash.2d 15, 22, 940 P.2d 1374 (1997); accord Hunter v. Univ. of Wash., 101 Wash.App. 283, 290–91, 2 P.3d 1022 (2000). When the word “shall” appears in a statute, it is “presumptively imperative and operates to create a duty.” Erection Co. v. Dep't of Labor & Indus., 121 Wash.2d 513, 518, 852 P.2d 288 (1993) (citing Crown Cascade, Inc. v. O'Neal, 100 Wash.2d 256, 261, 668 P.2d 585 (1983); State v. Q.D., 102 Wash.2d 19, 29, 685 P.2d 557 (1984)). “The word ‘shall’ in a statute thus imposes a mandatory requirement unless a contrary legislative intent is apparent.” Erection Co., 121 Wash.2d at 518, 852 P.2d 288 (citing State v. Bryan, 93 Wash.2d 177, 183, 606 P.2d 1228 (1980)).

¶ 12 No contrary legislative intent is apparent in the anti-SLAPP statute. In amending the anti-SLAPP statute, the legislature stated, “This act shall be applied and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts.” Laws of 2010, ch. 118, § 3. Moreover, the legislature had previously adopted a similar view when it added a $10,000 statutory damage award to the original anti-SLAPP statute—testimony in support of that amendment advanced the view that “[t]he award of costs, reasonable attorneys' fees, and expenses can prevent voices from being silenced.” S.B. Rep. on H.B. 2699, 57th Leg., Reg. Sess. (Wash.2002). These statements support, rather than contradict, a reading of the statute which makes the statutory damage award mandatory. Therefore, the word “shall” in the remedy...