Scott v. Am. Express Nat'l Bank

• Decision Date: 26 April 2022
• Docket Number: 55343-1-II
• Parties: Floyd SCOTT, Appellant, v. AMERICAN EXPRESS NATIONAL BANK ; and Suttell & Hammer P.S. ; Malisa L. Gurule; Nicholas R. Filer; Galen L. Ryan; John P. Reid; Samantha J. Brown; Karen L Hammer; Isaac L. Hammer; Erin E. Patterson; Robert C. Jindra; and Nicholas K. Wasson; and Raquel Hernandez, Respondents.
• Court: Washington Court of Appeals

22 Wash.App.2d 258

514 P.3d 695

Floyd SCOTT, Appellant,

v.AMERICAN EXPRESS NATIONAL BANK ; and Suttell & Hammer P.S. ; Malisa L. Gurule; Nicholas R. Filer; Galen L. Ryan; John P. Reid; Samantha J. Brown; Karen L Hammer; Isaac L. Hammer; Erin E. Patterson; Robert C. Jindra; and Nicholas K. Wasson; and Raquel Hernandez, Respondents.

No. 55343-1-II

Court of Appeals of Washington, Division 2.

Filed April 26, 2022

Ordered Published Date August 2, 2022

Floyd Scott (Appearing Pro Se), 33403 Pekin Ferry Dr., Ridgefield, WA, 98642, for Appellant.

Kevin H. Kono, Attorney at Law, 1300 Sw 5th Ave., Ste. 2400, Portland, OR, 97201-5610, Frederick Alan Haist, Davis Wright Tremaine LLP, 920 5th Ave., Ste. 3300, Seattle, WA, 98104-1610, for Respondent.

Igor Lukashin (Appearing Pro Se), 1405 Ne Mcwilliams Rd. Ste. 103, P.O. Box 373, Bremerton, WA, 98311, Samuel Robert Leonard, Leonard Law, 6040 California Ave., Sw Ste. C, Seattle, WA, 98136-1684, Scott Kinkley, Northwest Justice Project, 1702 W Broadway Ave., Spokane, WA, 99201-1818, for Other Parties.

Worswick, J. ¶ 1 American Express National Bank (Amex), filed a lawsuit against Floyd Scott for failing to repay credit card debt owed (Amex Action). After the Amex Action was dismissed for failure to prosecute, Scott sued Amex, an Amex employee, Raquel Hernandez, Suttell & Hammer law firm, and 10 individual attorneys of record employed by Suttell & Hammer for actions taken during the Amex Action. Scott alleged, among other things, that Suttell & Hammer intentionally inflicted emotional distress (IIED) and violated the Consumer Protection Act (CPA). The trial court dismissed Scott's lawsuit under CR 12(b)(6), ruling his claims were barred by the immunity doctrine.

¶ 2 Scott appeals the order of dismissal, arguing that (1) the immunity doctrine does not apply, and (2) he pled sufficient facts to show he is entitled to relief under the CPA.

¶ 3 We affirm the trial court's dismissal of all Scott's claims against Hernandez and Amex, and we affirm the trial court's dismissal of the IIED claim against Suttell & Hammer law firm and attorneys. But, we reverse the dismissal of the CPA claim against Suttell & Hammer law firm and attorneys and remand for further proceedings consistent with this opinion.

FACTS

¶ 4 In 2016, Amex, through its attorneys at Suttell & Hammer, filed a lawsuit against Scott in an attempt to collect a debt.¹ The case was dismissed in May 2017 for failure to prosecute. Scott alleged that the trial court notified Suttell & Hammer of the dismissal but failed to notify him.

¶ 5 After the case was dismissed, Suttell & Hammer erroneously filed a motion for summary judgment, seeking repayment of the alleged debt owed to Amex. It was on the scheduled hearing day that Scott learned the case had been dismissed over two years previously.

¶ 6 Scott then filed this action against Amex, Raquel Hernandez, Suttell & Hammer, and 10 Suttell & Hammer attorneys. He alleged that the defendants committed "blatant and numerous legal abuses" in relation to "a debt collection lawsuit." Suppl. Clerk's Papers (CP) at 165. Specifically, Scott alleged that (1) defendants violated the CPA by (a) failing to allege or prove that they were duly licensed and bonded under RCW 19.16.260, (b) failing to contact Scott prior to serving the summons and complaint, (c) failing to incorporate the RCW 19.16.250(8)(c) requirements in the complaint, (d) failing to itemize the amount owing to include interest, costs, fees, and other charges, (e) threatening to take action against Scott, including threatening to obtain summary judgment in a dismissed action, and (f) filing Hernandez's affidavit containing inaccurate representations. Scott further alleged that (2) the defendants intentionally inflicted emotional distress on him by filing the Amex Action. All of the facts recited to support the claims in Scott's complaint were performed in the Amex Action.

¶ 7 Scott voluntarily dismissed his claims against most of the individual attorneys, reserving his claims against Amex, Hernandez, Suttell & Hammer, and attorneys Nicholas Filer and Robert Jindra (collectively, Defendants). Scott's first amended complaint pleaded the following allegations and facts in support of his remaining claims:

3.2 On information and belief, the principal purpose of Defendants’ respective businesses is the collection of debts.

....

4.5 Further, the [prior] Complaint states that Defendants Suttell, Gurule, Filer, Ryan, Reid, and Brown are debt collectors, and that the action was initiated by Defendants to collect a debt. ...

4.6 Therefore, in [Amex Action], each of said Defendants was acting as a "collection agency" and was subject to all the requirements of the Collection Agency Act ("RCW Chapter 19.16" or "CAA"). RCW 19.16.100(4) and (12).

....

4.38 The Complaint, which Suttell, Gurule, Filer, Ryan, Reid, and Brown filed on or about February 16, 2016, was these Defendants’ first written communication with Scott.

....

5.19 Because Defendants attempt to collect debts allegedly owed by untold numbers of Washington citizens each year, and engage in the same nefarious practices described throughout this Complaint in many of those cases, the public interest is negatively impacted by the pattern of conduct engaged in by Defendants.

....

5.21 Plaintiff has been injured in his property. Over the nearly four year period from the date Defendants filed this action ... Plaintiff expended 10's of thousands of dollars.

Suppl. CP 165-170, 177.

¶ 8 The Defendants filed a motion to dismiss under CR 12(b)(6), alleging that (1) all the Defendants were immune from liability because they acted within a judicial proceeding, (2) Scott's CPA claims fail because the Defendants’ actions do not impact the public and they did not cause Scott injury, and (3) Scott's IIED claim fails because the filing of the motion for summary judgment was not outrageous conduct. The trial court granted the motion to dismiss with prejudice. Scott appeals the trial court's order of dismissal.

ANALYSIS

I. STANDARD OF REVIEW

¶ 9 Dismissal under CR 12(b)(6) is appropriate in cases where the plaintiff, beyond a reasonable doubt, "cannot prove any set of facts consistent with the complaint that would entitle the plaintiff to relief." Jackson v. Quality Loan Serv. Corp ., 186 Wash. App. 838, 843, 347 P.3d 487 (2015). We assume all facts alleged in the complaint to be true and may consider hypothetical facts not included in the record. Kinney v. Cook , 159 Wash.2d 837, 842, 154 P.3d 206 (2007). We review a motion to dismiss under CR 12(b)(6) de novo. Kinney , 159 Wash.2d at 842, 154 P.3d 206.

II. LITIGATION PRIVILEGE ²

¶ 10 Scott argues that the trial court erred in dismissing his claims because the Defendants are not immune from civil liability under the litigation privilege doctrine. We hold that litigation privilege completely shields all Defendants, except Suttell & Hammer, from liability.

¶ 11 "Where an individual is entitled to the shield of ‘absolute privilege’ or ‘immunity,’ the individual is absolved of all liability."

Mason v. Mason , 19 Wash. App. 2d 803, 830, 497 P.3d 431 (2021) (published in part) (quoting Bender v. City of Seattle , 99 Wash.2d 582, 600, 664 P.2d 492 (1983) ). Witnesses in judicial proceedings are absolutely immune from tort liability for claims based on their testimony. Wynn v. Earin , 163 Wash.2d 361, 370, 181 P.3d 806 (2008). The purpose of this rule " ‘is to preserve the integrity of the judicial process by encouraging full and frank testimony.’ " Wynn , 163 Wash.2d at 370, 181 P.3d 806 (quoting Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc. , 113 Wash.2d 123, 126, 776 P.2d 666 (1989) ). Absent this immunity, witnesses might "self-censor" for fear of being sued. Wynn , 163 Wash.2d at 370, 181 P.3d 806. Therefore, absolute immunity granted to witnesses based on their testimony is a safeguard to ensure truthful and accurate testimony. Wynn , 163 Wash.2d at 370, 181 P.3d 806.

¶ 12 However, litigation privilege is not extended in every circumstance where conduct bears some relation to a judicial proceeding. For instance, parties and attorneys can be liable for tortious use of the legal process so long as a plaintiff can prove the elements of malicious prosecution or malicious use of the legal system. See, e.g. , Mason , 19 Wash. App. 2d at 836-37, 497 P.3d 431. Therefore, we apply litigation privilege where the conduct bears some relation to a judicial proceeding and where compelling public policy justifications support its application. Mason , 19 Wash. App. 2d at 837, 497 P.3d 431. Where litigation privilege applies, attorneys, witnesses, and parties are immune from liability. Mason , 19 Wash. App. 2d at 831, 497 P.3d 431. We review the application of immunity de novo. See Wynn , 163 Wash.2d at 369, 181 P.3d 806 (reviewing witness immunity issue de novo).

A. Hernandez Witness Immunity

¶ 13 Scott's claims against Hernandez are based solely on her affidavit testimony submitted as a witness in support of the motion for summary judgment. Hernandez is absolutely immune from tort liability based on her testimony. Wynn , 163 Wash.2d at 370, 181 P.3d 806. Therefore, the trial court did not err in dismissing Scott's claims against Hernandez.

B. Amex Litigation Privilege

¶ 14 Litigation privilege also applies to parties for statements "pertinent or material to the redress or relief sought." McNeal v. Allen , 95 Wash.2d 265, 267, 621 P.2d 1285 (1980). "A statement is pertinent if it has some relation to the judicial proceedings in which it was used, and has any bearing upon the subject matter of the litigation." Demopolis v. Peoples Nat'l Bank of Wash. , 59 Wash. App. 105, 109, 796 P.2d 426 (1990). Aside from tortious use of the legal system, applying litigation privilege to parties for their actions in connection to a judicial proceeding clearly preserves and enhances the judicial process. This encourages parties to pursue their rights through the judicial system without fear of incurring...