Smith v. Gen Con LLC

• Decision Date: 11 July 2022
• Docket Number: 82672-7
• Parties: ZAK SMITH, Appellant, v. GEN CON LLC, a Washington State Limited Liability Company; PETER ADKISON, an individual; and PETER ADKISON AND JANE DOE ADKISON and the marital community composed thereof, Respondents.
• Court: Washington Court of Appeals

ZAK SMITH, Appellant,
v.
GEN CON LLC, a Washington State Limited Liability Company; PETER ADKISON, an individual; and PETER ADKISON AND JANE DOE ADKISON and the marital community composed thereof, Respondents.

No. 82672-7

Court of Appeals of Washington, Division 1

July 11, 2022

UNPUBLISHED OPINION

Smith, A.C.J.

Gen Con LLC, a prominent gaming convention, and Peter Adkison, its co-owner, issued statements about their decision to ban Zak Smith from the convention after Smith was accused of sexual assault by his ex-wife. Smith sued Gen Con and Adkison for defamation, false light, outrage, intentional interference with a business expectation, and violations of the Washington Consumer Protection Act (CPA), ch. 19.86 RCW. The court dismissed his complaint in its entirety, with prejudice, for failure to state a claim under CR 12(b)(6), and denied Smith's motion for reconsideration. Because Smith's complaint contained sufficient allegations to put Gen Con and Adkison on notice with respect to his defamation, false light, and intentional interference claims, we reverse the dismissal of these causes of actions. But because Smith's complaint does not provide a basis to recover for outrage or for a CPA violation, we affirm

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the dismissal of those claims.

FACTS

Zak Smith is an artist who began developing tabletop role-playing games ("RPGs") in 2010.^[1] Smith was successful in the RPG world, winning prestigious awards, successfully developing and selling his own games, and consulting on prominent RPGs such as Dungeons & Dragons. Smith generated a substantial portion of his income from RPG development and consulting.

Gen Con is "the largest and longest-running tabletop gaming convention in North America," annually hosting about "70,000 RPG developers, producers, manufacturers, consultants, and fans [who] unveil their new releases, gain recognition and publicity in the RPG industry, and engage in activities to promote themselves, their games, and their businesses." "For consultants, developers, and producers of [RPGs] to succeed in that industry, they must attend Gen Con." Peter Adkison is the co-owner and board chairman of Gen Con. Smith attended Gen Con for many years and "generated a significant amount of his professional and business relations, consulting jobs, sales, and other business interest in the RPG industry from the event."

In February 2019, Smith's estranged wife published a Facebook post accusing Smith of sexual assault during their marriage. Smith alleges, and we must assume for purposes of this appeal, that these accusations are false.

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Shortly after Smith's wife made the Facebook post, Adkison published a statement on Gen Con's website:

At Gen Con we have a policy of not disclosing the names of individuals who have been sanctioned or banned from our events. However, our statements regarding a recent ban have caused confusion and more importantly, made people feel that Gen Con doesn't care about attendee safety. To clarify, I want to state that Zak S has been banned from Gen Con and that we flat-out don't tolerate harassers or abusers in our community or at our convention

Adkison published a post linking to the statement on his personal Facebook page, saying, "In response to the recent outcry against Zak Smith, I've posted an open letter on the Gen Con website uninviting him to Gen Con." In response to a comment on that post characterizing Gen Con's statement as lacking due process, Adkison stated: "There was due process, that's why it took us so long to come around. There were many people abused by Zak, the evidence was overwhelming. I don't need a court process to uninvite [an] abuser to my party." Gen Con also linked to the statement on its Twitter account in a tweet saying, "Last week, we made a statement regarding our stance on abuse & harassment in gaming.^[2] Many of you told us it wasn't clear enough & we need to take a firmer stand. We heard you & want to be clear: Zak S is banned from attending."

In the wake of these statements, the news that Smith was banned was reported in a major gaming news outlet, Smith lost his main game publisher, a game he was working on was suspended, vendors and most relevant game

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forums banned Smith, and Smith's Wikipedia page was edited to reflect the news. Smith lost substantial income, suffered damage to his reputation, and suffered emotional distress.

PROCEDURAL BACKGROUND

On February 8, 2021, Smith sued Gen Con and Adkison for defamation, defamation per se, false light, outrage, interference with a business expectancy, and violation of the CPA.

On March 17, Gen Con and Adkison moved to dismiss Smith's complaint for failure to state a claim under CR 12(b)(6). The court granted the motion and dismissed Smith's complaint with prejudice.

Smith moved for reconsideration, asking for leave to file an amended complaint. He attached a proposed amended complaint containing additional facts and exhibits and only requesting relief for defamation, defamation per se, and false light. The court denied the motion.

Smith appeals.

ANALYSIS

Smith contends that the trial court erred by dismissing his complaint with prejudice. He also requests costs on appeal. Gen Con and Adkison dispute these claims and request that we affirm the court's dismissal of Adkison's wife as a party.

CR 12(b)(6) Dismissal

"Washington is a notice pleading state and merely requires a simple, concise statement of the claim and the relief sought." Pac. Nw. Shooting Park Ass'n v. Citv of Sequim,

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158 Wn.2d 342, 352, 144 P.3d 276 (2006). We review orders on CR 12(b)(6) motions de novo. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830, 355 P.3d 1100 (2015). "All facts alleged in the complaint are taken as true, and we may consider hypothetical facts supporting the plaintiff's claim." Future Select Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014). "Dismissal based on failure to state a claim is appropriate only if we conclude, beyond a reasonable doubt, that the plaintiff cannot prove any set of facts consistent with the complaint which would justify recovery." Byrd v. Pierce County, 5 Wn.App. 2d 249, 256-57, 425 P.3d 948 (2018). Accordingly, a CR 12(b)(6) motion should be granted" 'sparingly and with care' and, as a practical matter, 'only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)).

Generally, on a CR 12(b)(6) motion, if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." CR 12(b)(7). Nonetheless," '[d]ocuments whose contents are alleged in a complaint but which are not physically attached to the pleading may ... be considered in ruling on a CR 12(b)(6) motion to dismiss.'" Trujillo, 183 Wn.2d at 827 n.2 (quoting Rodriguez v. Loudeye Corp., 144 Wn.App. 709, 726, 189 P.3d 168 (2008)). Here, the only outside materials that were considered were alleged in the complaint, so this appeal is appropriately treated as a CR 12(b)(6) dismissal.

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1. Defamation

In a defamation case, a plaintiff must establish that the defendant made false statements, that the statements were unprivileged, that the defendant was at fault, and that the statements proximately caused damages. Mohr v. Grant, 153Wn.2d812, 822, 108 P.3d 768 (2005); Life Designs Ranch, Inc. v. Sommer, 191 Wn.App. 320, 330, 364 P.3d 129 (2015). The level of fault that must be proved in defamation cases depends on the plaintiffs status as a public or private individual. "If the plaintiff is a public figure or public official, he must show actual malice. If, on the other hand, the plaintiff is a private figure, he need show only negligence." LaMon v. Butler, 112Wn.2d 193, 197, 770 P.2d 1027 (1989). "A defendant acts with malice when he knows the statement is false or recklessly disregards its probable falsity." Tan v. Le, 177 Wn.2d 649, 669, 300 P.3d 356 (2013).

Here, Gen Con and Adkison claimed, and the court determined, that Smith failed to adequately plead fault and causation. But Smith's complaint alleged that Gen Con and Adkison "knew that [the web post, tweet, and Facebook reply were] false, reasonably should have known they were false, and acted maliciously and . . . with the intent, or with despicable conduct, to harm" Smith. This sufficiently alleged that Gen Con and Adkison were at fault, even if Smith is considered a public figure. "Malice, intent, knowledge, and other condition of mind of a person may be averred generally." CR 9(b). While Smith may not have alleged specific facts proving that Gen Con and Adkison knew or should have known that the statements were false, that is not the issue at the

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CR 12(b)(6) stage.

Furthermore, Smith adequately alleged causation. Smith alleged that Gen Con is an important and influential part of the RPG community: that it is" 'the largest and longest-running tabletop gaming convention in North America,'" that an average of 70,000 people attend, and that "[f]or consultants, developers, and producers of [RPGs] to succeed in that industry, they must attend Gen Con." Smith alleged that after Gen Con and Adkison made their statements, their statements were reported in at least one news outlet, publishers and vendors stopped working with Smith, Smith was banned from most relevant game forums, and Smith suffered substantial damage to his reputation and loss of income. It also alleged that these outcomes were direct and proximate results of the defendants' statements. This was sufficient to allege causation. To survive a CR 12(b)(6) motion, Smith was not required to provide evidence showing how the statements caused the specific damages. His complaint only had...