Spratt v. Toft

• Decision Date: 21 April 2014
• Docket Number: No. 70505–9–I.,70505–9–I.
• Citation: 180 Wash.App. 620,324 P.3d 707
• Parties: Kelly A. SPRATT, a married woman, Respondent, v. Bradley TOFT, and his wife, Jill Toft, and the marital community composed thereof, Appellant.
• Court: Washington Court of Appeals

180 Wash.App. 620

324 P.3d 707

Kelly A. SPRATT, a married woman, Respondent,

v.Bradley TOFT, and his wife, Jill Toft, and the marital community composed thereof, Appellant.

No. 70505–9–I.

Court of Appeals of Washington, Division 1.

April 21, 2014.

Andrew James Kinstler, David Gross, Helsell Fetterman LLP, Seattle, WA, for Appellant.

Janet A. Irons, Attorney at Law, Bellevue, WA, for Respondent.

GROSSE, J.P.T.¹

¶ 1 To succeed on a special motion to strike under Washington's anti-SLAPP statute,² the moving party must make an initial prima facie showing that the claimant's suit arises from an act in furtherance of the right of petition or free speech in connection with a matter of public concern. Campaigning and speech connected to a political campaign and candidate clearly involve free speech and clearly are matters of public concern. Accordingly, we vacate the trial court's denial of Bradley Toft's motion to dismiss, and we remand for consideration of whether Spratt establishes by clear and convincing evidence, a probability of prevailing on her defamation claim.

FACTS

¶ 2 From 2001 until December 2005, Kelly Spratt worked at Quadrant Home Loans, a joint venture between Wells Fargo Bank and Quadrant Homes. Toft, as King County sales manager, was Spratt's immediate supervisor. Toft reported to Randy Smith. When Smith was promoted to vice president and regional sales manager for Wells Fargo Home Mortgages, Toft reported to Rich Osburn, Smith's replacement. Spratt was repeatedly promoted during her time at Quadrant and was never the subject of a performance improvement plan. In 2005, she was promoted to sales manager for the south region of King County, overseeing branch offices.

¶ 3 Smith and Spratt both assert that Toft had a reputation for being untrustworthy and manipulative and that the company had an issue with his management style. Smith's declaration establishes that Toft's management style was the subject of numerous intra-company meetings. Spratt observed Toft's abusive behavior in which he made employees cry and, in one instance, swung a baseball bat at Spratt's head.

¶ 4 Without justification, in December 2005, Toft accused Spratt of unethical behavior. There was no threat of termination or request that she resign. The following day, Spratt reported to Osburn and Smith that she could no longer tolerate Toft's abusive behavior and she was going to resign. Smith's declaration supported Spratt's version of the events and Smith apologized to Spratt for Toft's behavior. Smith told Spratt that he appreciated hearing her reason for resigning. The next day, Spratt tendered her resignation to Toft who circulated an e-mail to employees at Quadrant acknowledging that Spratt had resigned.

¶ 5 A few weeks after her resignation, Osburn (Toft's supervisor) called Spratt and offered her employment at Washington Square, another Wells Fargo joint venture. Spratt accepted the position under the condition that she would not have to interact with Toft. Smith's declaration confirms that such an offer would not have been made if Spratt had been under a cloud at Quadrant when she left:

The fact that Ms. Spratt was re-hired for the Washington Square project is thus unassailable proof that she was neither terminated for cause at Quadrant Home Loans, nor allowed to quit in place of being terminated.

Smith's declaration further notes that Toft's mischaracterization of Spratt's resignation is not surprising:

Based upon my experience with Mr. Toft, I am not surprised he is making allegations about Ms. Spratt's employment record that are unsubstantiated by the facts.

Smith stated that he was aware of Toft's problems with several subordinates, which resulted in an unusually high turn-over rate for the employees who worked directly with him:

As a result of that, and other issues regarding his performance, I and our Quadrant partner made the decision to involuntarily terminate Mr. Toft's employment at Quadrant Home Loans in December 2006. Unfortunately in many respects he was my worst hire in 16 years of employment at Wells Fargo Bank.

Evidence was presented that Toft was involuntarily terminated because he failed to perform job duties.

¶ 6 Spratt had no contact with Toft from December 2005 until December 2011, when she read that Toft was running in the Republican primary for the Washington State Senate in District 5. Spratt sent Toft a private e-mail via Facebook questioning his qualifications for office.

¶ 7 Spratt, who considers herself a Republican, decided to contact the Republican Party to let them know of her concerns. She sent a letter to Bob Brunjes, the 5th District Chair of the Republican Party. As a result of that letter, Jolie Imperatori, an active member in the 5th District, contacted Spratt and suggested that Spratt give Toft an opportunity to respond to her accusations by attending a public meeting. In March 2012, Spratt went to a “meet-and-greet” the candidate meeting. Spratt went to the meeting to ask Toft questions regarding his termination of employment at Quadrant. Imperatori accompanied Spratt to the meeting.

¶ 8 Before the start of the campaign event, Toft had a private meeting with Ramzy Boutros, the co-vice chair of the 5th District Republican Party, Jill Toft, and Ferrin Lauve, another official with the party. Boutros attended the meeting as a private citizen to determine whether he would support Toft's candidacy. After the meeting and before the event was scheduled to start, Toft asked to speak privately with Boutros. Toft told Boutros that someone he had fired years before had come to the meeting and he wanted to exclude her. This conversation occurred outside the meeting.

¶ 9 Declarations supplied by Spratt, Imperatori, and Boutros set out the details of what occurred at the meeting. When Spratt was finally called on by Toft, she related the incident where he swung a baseball bat at her head and asked whether he would admit that he had been fired from Quadrant. At that time Spratt was unaware that Toft had wanted to exclude her from the meeting and had told Boutros that he had fired her.

¶ 10 In May 2012, Spratt attended a Republican Precinct Committee Officers (PCO) meeting at the Issaquah police station for the express purpose of confronting Toft regarding his lies concerning her employment history. She brought her phone with the e-mail that he had sent in 2005 to other Quadrant employees informing them that Spratt had resigned. Before the meeting, Imperatori overheard Toft telling several PCOs that he had fired Spratt and that she was trying to get even with him by spreading false rumors about him. Pushed by Boutros, Toft stated that Spratt had been forced to resign.

¶ 11 Spratt was called on at the meeting and Toft refused to confirm one way or another that he had fired Spratt. Spratt had no direct contact with either Toft or his wife after the May 2012 PCO meeting. She did, however, post on her own Facebook and Twitter accounts her ongoing opposition to Toft's campaign. In June 2012, Toft's counsel sent Spratt a letter accusing her of harassing Toft. Spratt blocked her Twitter and Facebook accounts preventing the Tofts from seeing her postings.

¶ 12 In August 2012, the Tofts filed an anti-harassment petition against Spratt in district court alleging recent contact. Counsel for Spratt appeared. The petition was not granted; no anti-harassment order was issued. In October 2012, an “anonymous” letter surfaced concerning Spratt. It attached copies of materials filed in the anti-harassment action and specifically referenced what a good candidate Toft made for the Senate. Spratt was in the process of proving that the letter was, in fact, written by Toft and produced evidence of a declaration from a Web expert who stated that the materials attached in the letter were not in fact from the anti-harassment action, but in fact were taken from Toft's computer at a later time and could only have been done with a password by the user, Toft.

¶ 13 Spratt sued to recover damages for these defamatory statements that were made about her by Toft. Spratt based her cause of action on Toft's oral statements to others that he had fired Toft and on various defamatory allegations that were contained in the anonymous letter. Toft moved to strike Spratt's claims under RCW 4.24.525(4)(b) on the grounds that it was a strategic lawsuit against public participation. The trial court denied Toft's motion by order and, finding Toft's motion to strike frivolous, awarded Spratt $23,109.85 in fees and costs and $10,000 in sanctions under RCW 4.24.525(6)(b). The trial court also denied Toft's motion for reconsideration. Toft appeals.

ANALYSIS

¶ 14 A party may bring a special motion to strike “any claim that is based on an action involving public participation and petition.” RCW 4.24.525(4)(a). In deciding an anti-SLAPP motion, a court must follow a two-step process.³ A court's interpretation and application of the anti-SLAPP statute is reviewed de novo.⁴ A party moving to strike a claim under RCW 4.24.525(4)(a) has the initial burden of showing by a preponderance of the evidence that the claim targets protected activity, i.e., activity “involving public participation and petition” as defined in RCW 4.24.525(2).⁵ If the moving party meets this burden, the burden shifts to the responding party “to establish by clear and convincing evidence a probability of prevailing on the claim.” RCW 4.24.525(4)(b). If the responding party fails to meet its burden, the court must grant the motion and award the moving party $10,000 in addition to attorney fees and costs. RCW 4.24.525(6)(a)(i), (ii).

¶ 15 Under RCW 4.24.525(2), actions involving “public participation and petition” include:

(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

(b) Any oral statement made, or written statement or other document...