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1

 “In dismissing for failure to state a claim, ‘a district court should grant leave to amend even if

no request to amend the pleading was made, unless it determines that the pleading could not possibly be

cured by the allegation of other facts.’” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (quoting

Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990)). 

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

ALFRED NEWBERRY, )

) No. C06-742RSL

Plaintiff, ) 

v. )

) ORDER GRANTING DEFENDANTS’

FIBERGLASS STRUCTURAL ) MOTION TO DISMISS

ENGINEERING, INC., and RANDY )

RAPOZA, )

)

Defendants. )

_______________________________________)

I. INTRODUCTION

This matter comes before the Court on “Defendants’ Motion to Dismiss” (Dkt. #10). 

Defendants assert that they are immune from plaintiff’s defamation and respondeat superior

claims because the statement contained in defendant Randy Rapoza’s July 1, 2003 e-mail, upon

which plaintiff bases his claims, is covered by both Washington’s and California’s litigation

privilege. For the reasons discussed below, the Court grants defendants’ motion and dismisses

plaintiff’s claims without prejudice with leave to amend.1

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ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS -2-

II. DISCUSSION

A. Background

On May 26, 2006, plaintiff filed a complaint pro se for defamation and respondeat

superior against defendants Fiberglass Structural Engineering, Inc. and Randy Rapoza. See Dkt.

#1 (Complaint). On August 14, 2006, before any responsive pleading had been filed, plaintiff

retained counsel to represent him in this case. See Dkt. #2 (Notice of Appearance). Plaintiff

bases his case on a July 1, 2003 e-mail sent from defendant Rapoza to Jeh Moody, the president

of Fibertech Engineering. See Dkt. #1 at ¶8. Plaintiff alleges that Fibertech Engineering filed a

lawsuit against his company, FEMech, in the Superior Court of California, San Diego County,

North County Division, styled: Fiber-Tech Engineering, Inc. v. FEMech (Case No. GIN031249

(2003)). Id. at ¶7. Plaintiff alleges that after the lawsuit in San Diego was filed by Fibertech

Engineering, its president, Jeh Moody consulted with defendant Rapoza to analyze a report

made by another engineer, Martin Hollman. Id. at ¶8. Plaintiff further alleges that defendant

Rapoza responded to Jeh Moody with the following e-mail on July 1, 2003:

Jeh, We have briefly reviewed the materials you provided regarding the FRP

Demister and Venturi Scrubber. If there were no additional calculations provided

by Femech Engineering then we can generally concur with Martin Hollman’s

conclusions. Experienced FRP designers are well aware that shear transfer

through the core material is a significant issue. It is FSE’s standard practice to

calculate shear stresses in the core material and to provide an adequate margin of

safety. We see no evidence in the reports presented by Femech that core shear

stresses were checked or considered. In our opinion this is a serious omission and

may well have led to the problems you have experienced. We would expect to

review additional materials and to perform and independent analysis in support of

this opinion at some point in the future. Regards, Fiberglass Structural

Engineering[;] Randal J. Rapoza P.E.[;] Principal Engineer[.]

Id. at ¶8; Ex. 1; Dkt. #11, Ex. A. 

Plaintiff alleges that this e-mail by defendant Rapoza, “made the California [Fiber-Tech

Engineering, Inc. v. FEMech] lawsuit possible, because under California law, no lawsuit

alleging negligence against a licensed engineer may proceed without the expert opinion of an

independent engineer stating that the work was negligent.” Dkt. #1 at ¶13. As a result, plaintiff

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 The Court notes at the outset that the format of plaintiff’s response fails to comply with Local

Civil Rule 10(e). Plaintiff’s counsel is strongly urged to comply with the required pleading format in any

future filings with the Court. See Appendix A to the Local Civil Rules.

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS -3-

claims that he “suffered enormous harm both in terms of money spent defending himself in the

lawsuit with Fiber-Tech and damage to his professional reputation, all as a direct and proximate

result of the opinion expressed by Defendant Rapoza.” Id. at ¶37. Defendants move for

dismissal without prejudice under Fed R. Civ. P. 12(b)(6) because they claim defendant

Rapoza’s e-mail is covered by both California and Washington absolute immunity law. See Dkt.

#10-2 (Proposed Order). 

B. Analysis

1. Motion to Dismiss Standard

Defendants filed their motion to dismiss under Fed. R. Civ. P. 12(b)(6). In opposition,

plaintiff argues that the motion should be considered a Rule 12(c) motion for judgment on the

pleadings because defendants answered the complaint before filing the motion. See Response at

1.2

 The Court agrees, but in this case whether the motion is considered under Rule 12(b)(6) or

12(c) is a distinction without difference because the standard remains the same: the Court’s

review is limited to material contained or attached to the complaint, and this material must be

construed in the light most favorable to plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51

F.3d 1480, 1484 (9th Cir. 1995). The Court also construes the complaint liberally because it

was drafted when plaintiff was proceeding pro se. Wolfe v. Strankman, 392 F.3d 358, 362 (9th

Cir. 2004) (“We construe the complaint liberally because it was drafted by a pro se plaintiff.”)

(citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). However, the Court notes that

plaintiff retained counsel shortly after the complaint was filed, and that an amended complaint

could have been filed as a matter of course under Fed. R. Civ. P. 15(a) before defendants filed

their motion to dismiss had plaintiff’s counsel thought it prudent to do so.

In order to dismiss an action based on an affirmative defense, the complaint must contain

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 See Dkt. #8 at 4 (“By way of further answer and affirmative defense defendants allege as

follows: . . . 4. That plaintiff’s claims are barred, under both Washington and California law, Cal. Civ.

Code § 47(b), because expert testimony and communication related to judicial proceedings is absolutely

privileged and defendants are therefore immune from all causes of action stemming from such action[.]”).

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS -4-

allegations on its face showing that the affirmative defense applies. See McCalden v. California

Library Ass’n, 919 F.2d 538, 543 (9th Cir. 1990) (“For a complaint to be dismissed because the

allegations give rise to an affirmative defense ‘the defense clearly must appear on the face of the

pleading.’”) (citing C. Wright & A. Miller, 5A Federal Practice and Procedure, § 1357, at 348-

49 (2d ed. 1990)). Uncertain what law the Court would apply to the facts of this case, in their

answer and motion, defendants asserted both California’s and Washington’s absolute litigation

privilege as an affirmative defense to plaintiff’s claims.3

 While the parties contest whether

California or Washington law applies, the Court does not reach the choice-of-law issue because,

as discussed below, allegations giving rise to the absolute litigation privilege under both

California and Washington law appear on the face of plaintiff’s complaint. For clarity, however,

the Court applies California’s and Washington’s applicable privilege law separately. 

2. California law

Under California Civil Code § 47(b), communications made in or related to judicial

proceedings are immune from tort liability. The privilege “afford[s] litigants and witnesses the

utmost freedom of access to the courts without fear of being harassed subsequently by derivative

tort actions” and “applies to any communication (1) made in judicial or quasi-judicial

proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of

the litigation; and (4) that have some connection or logical relation to the action.” Silberg v.

Anderson, 786 P.2d 365, 369 (Cal. 1990) (internal citation omitted). If these requirements are

satisfied, § 47(b)’s privilege is absolute. Id. at 371. A defamation suit may be dismissed under

Cal. Civ. Code § 47 on a Fed. R. Civ. P. 12(b) motion to dismiss. See, e.g., Hagendorf v.

Brown, 699 F.2d 478, 481 (9th Cir. 1983) (affirming Rule 12(b)(6) dismissal of a defamation

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4

 Although not referenced in plaintiff’s complaint, this requirement is contained in California

Code of Civil Procedure § 411.35. As defendants note in footnote 1 of their reply, dismissal of this case

based on privilege accords with § 411.35, because this section itself contains privilege protection for the

engineer consulted. Id. at § 411.35(e) (stating “an attorney who submits a certificate as required by

paragraph (1) or (2) of subdivision (b) has a privilege to refuse to disclose the identity of the . . .

professional engineer . . . consulted and the contents of the consultation. The privilege shall also be held

by the . . . professional engineer . . . so consulted.” In this case, defendant Rapoza’s identity and the

contents of the June 1, 2003 e-mail were allegedly disclosed because plaintiff was able to match

statements made in a May 27, 2005 motion in the California action with an earlier e-mail identified as

being authored by defendant Rapoza. See Dkt. #1 at ¶11. 

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS -5-

action under absolute immunity pursuant to Cal. Civ. Code § 47). In this case, based on the

allegations in the complaint alone, defendants have met their burden of establishing the

preliminary facts justifying application of the affirmative defense of the litigation privilege and

dismissal under Fed R. Civ. P.12(c). 

First, based on the allegations in the complaint, defendant Rapoza’s statement was made

in the context of a judicial proceeding. This first part of the Silberg-test is broad, covering “any

publication required or permitted by law in the course of a judicial proceeding to achieve the

objects of the litigation, even though the publication is made outside the courtroom and no

function of the court or its officers is involved.” Silberg, 786 P.2d at 369. In this case, the

allegations in paragraph 13 of the complaint satisfy this requirement: “Defendant Rapoza’s

statements made the California lawsuit possible, because under California law, no lawsuit

alleging negligence against a licensed engineer may proceed without the expert opinion of an

independent engineer stating that the work was negligent”4

 showing that defendant Rapoza’s

statement was “required . . . by law in the course of a judicial proceeding to achieve the objects

of the litigation.” Id., Dkt. #1, ¶13.

Despite this allegation, plaintiff argues that the litigation privilege does not apply because

defendant Rapoza’s e-mail was not “made preliminary to a proposed judicial or quasi-judicial

proceeding.” See Response at 11 (emphasis in original) (citing Edwards v. Centex Real Estate

Corp., 61 Cal. Rptr. 2d 518, 530 (Cal. Ct. App. 1997). However, this argument is directly

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ORDER GRANTING DEFENDANTS’

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contradicted by paragraph 8 of the complaint, which alleges that litigation had commenced

before defendant Rapoza wrote the June 1, 2003 e-mail. See Dkt. #1, ¶8 (“After the abovedescribed lawsuit was filed . . . Rapoza, made the statements contained in the email which is

attached hereto as Exhibit 1[.]”) (emphasis added). Although plaintiff claims in a footnote to his

response that the California lawsuit was in fact filed after Rapoza’s e-mail was written, in ruling

on a motion to dismiss a court “cannot consider material outside of the complaint (e.g., those

facts presented in briefs, affidavits, or discovery materials).” See Yoonessi v. Albany Medical

Ctr., 352 F. Supp. 2d 1096, 1098 (C.D. Cal. 2005) (citing Branch v. Tunnell, 14 F.3d 449, 453

(9th Cir. 1994); Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 (9th Cir. 1998) (“In

determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the

complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s

motion to dismiss.”) (emphasis in original); Response at 2, n.1. Furthermore, Edwards does not

apply to the facts of this case because here there was an actual prior judicial proceeding and

plaintiff alleges that the prior lawsuit was not possible but-for defendant Rapoza’s e-mail. See

Dkt. #1, ¶13 (“Defendant Rapoza’s statements made the California lawsuit possible”). 

Therefore, the Edwards decision is distinguishable because it involved an attempt to protect

allegedly fraudulent statements made more than five years before any prior litigation. Edwards,

61 Cal. Rptr. 2d at 522-24.

Second, under the Silberg-test, defendants are covered by the litigation privilege as “other

participants authorized by law.” As plaintiff’s complaint alleges, “[d]efendant Rapoza’s

statements made the California lawsuit possible” because they were an “expert opinion of an

independent engineer stating that the work was negligent.” See Dkt. #1 at ¶13. California

courts have extended the privilege to potential expert witnesses. See ITT Telecom Prods. Corp.

v. Dooley, 262 Cal. Rptr. 773, 778 (Cal. Ct. App. 1989) (“[T]he privilege has been extended to

statements made by potential expert witnesses”). Therefore, defendants are the type of judicialproceeding participants covered by the litigation privilege. 

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ORDER GRANTING DEFENDANTS’

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Third and finally, the California Supreme Court has characterized the “objects of the

litigation” element of the Silberg-test as “simply part of the [fourth] requirement that the

communication be connected with, or have some logical relation to, the action, i.e., that it not be

extraneous to the action.” Silberg, 786 P.2d at 374. Here, defendant Rapoza’s e-mail is

connected with the California action and helped “to achieve the object of the litigation” because

plaintiff’s complaint plainly states that defendant Rapoza’s e-mail “made the California lawsuit

possible.” Dkt. #1 at ¶13. For this reason, plaintiff’s citation to Daniel v. Nguyen, 81 Cal. Rptr.

2d 392 (Cal. Ct. App. 1999), is not applicable because not only did the Daniel case involve a

pre-civil litigation demand letter, which is not at issue here, but the court determined that there

was not an adequate “connection” between the pre-litigation statement and the subsequent

litigation. Id. at 398-99. Here, as plaintiff alleged, not only was defendant Rapoza’s statement

connected to the California litigation, it allowed the case to proceed.

In his response, plaintiff repeatedly asserts that defendant Rapoza’s e-mail is not covered

by the privilege because the defendants did not know the e-mail formed the basis of the

California litigation. See, e.g., Response at 14 (“There has simply been no allegation made in

this case by either party that Rapoza or FSE themselves actually contemplated prospective

litigation or understood that the person Rapoza gave his opinion to actually contemplated

prospective litigation.”). Under California law, however, defendant Rapoza’s knowledge is not

germane for purposes of applying the privilege to his June 1, 2003 e-mail. See Financial Corp.

of Amer. v. Wilburn, 234 Cal. Rptr. 653, 659-60 (Cal. Ct. App. 1987) (“Plaintiffs’ premise is

that the subjective intent, purpose, or knowledge of a writer can destroy the privileged status of

otherwise privileged statements. The law is otherwise. . . . Courts respect the absolute aspect of

the privilege by considering a statement’s apparent or ostensible connection to the underlying

action, without exploring the writer’s actual, subjective intent or purpose.”); Silberg, 786 P.2d at

374 (“The ‘furtherance’ requirement was never intended as a test of the participant’s motives,

morals, ethics or intent.”); Rothman v. Jackson, 57 Cal. Rptr. 2d 284, 288 (Cal. Ct. App. 1996)

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ORDER GRANTING DEFENDANTS’

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(“The high court has specifically disapproved any interpretation of the ‘furtherance’ requirement

as a test of the motives, morals, ethics or intent of the person claiming the privilege.”). 

For these reasons, based on the facts as alleged in the complaint, defendant Rapoza’s email is privileged under California Civil Code §47(b) and Silberg. Rather than determine a factspecific choice-of-law issue at this stage of the proceedings, as discussed below, the Court

concludes that based on the allegations in the complaint, plaintiff’s claims should be dismissed

because defendants are also immune under Washington’s common-law witness immunity

doctrine.

3. Washington law

In Washington, “absolute immunity extends to acts or statements of experts which arise

in the course of or preliminary to judicial proceedings.” Bruce v. Byrne-Stevens & Assocs.

Eng’rs, Inc., 113 Wn.2d 123, 137 (1989). Where the absolute immunity doctrine applies, it

justifies dismissal of an action. Id. at 125 (affirming the trial court’s dismissal).

In this case, Washington’s absolute immunity doctrine extends to defendant Rapoza’s email because as alleged in the complaint, the e-mail was the statement of an expert arising in the

course of a judicial proceeding. Plaintiff’s complaint characterizes the e-mail as a statement of

an expert, alleging that: “In the expert opinion which forms the basis of Count 1 [Defamation]

of this Complaint, Defendant Rapoza falsely accuses Plaintiff of negligence in the design of the

FRP Demister and Venturi Scrubber” and “Defendant Rapoza’s statements made the California

lawsuit possible, because under California law, no lawsuit alleging negligence against a licensed

engineer may proceed without the expert opinion of an independent engineer[.]” See Dkt. #1 at

¶¶ 19, 13 (emphasis added). This last statement is a definitive allegation by plaintiff that the

defendant Rapoza’s e-mail arose the context of a judicial proceeding. 

Under Cal. Code Civ. P. § 411.35, as part of a negligence action against a professional

engineer, the plaintiff’s attorney must file a certificate of merit stating that “there is a reasonable

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ORDER GRANTING DEFENDANTS’

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and meritorious cause” for filing the action. This certificate must contain a declaration that the

attorney consulted with a professional engineer, and the “person consulted shall render his

opinion that the named defendant or cross-defendant was negligent or was not negligent in the

performance of the applicable professional services.” Id. at § 411.35(b)(1). Plaintiff’s

complaint alleges that defendant Rapoza’s statement satisfied this requirement by making “the

California lawsuit possible.” Dkt. #1 at ¶13. Based on this allegation, plaintiff cannot

reasonably assert in his response to the motion to dismiss that the June 1, 2003 e-mail was not

part of “the course of or preliminary to a judicial proceeding.” 

Plaintiff attempts to avoid the holding from Bruce cited above by quoting other language

from the opinion. Plaintiff argues that “any doubt that Bruce does not protect Rapoza or FSE in

this case is removed by the Bruce Court itself:

Respondents and amicus argue that Byrne-Stevens should not be shielded from

liability merely because its calculations were later used in court. If the issue is

stated that way, we agree; but that is not the issue before us. We do not hold that

any professional negligence is immunized whenever an expert later relies on it in

court. In accord with existing law, we hold only that absolute immunity extends to

acts and statements of experts which arise in the course of or preliminary to

judicial proceedings.

Response at 7 (emphasis by plaintiff) (citing Bruce, 113 Wn.2d at 136-37). The quote from

Bruce emphasized by plaintiff, however, is not at issue here based on the allegations in the

complaint because the inclusion of the June 1, 2003 e-mail in the California action was not an

attempt by defendant Rapoza to immunize some prior act of professional negligence. See Reply

at 11 (“Defendants do not argue that Mr. Rapoza’s opinion is protected or that Defendants are

immune from suit because the opinion was later used in court. Rather Defendants argue that the

opinion is protected and Defendants are immune because California required the opinion in

order for the plaintiff to pursue litigation, making it a statement made preliminary to a judicial

proceeding.”). Therefore, contrary to plaintiff’s assertion, his emphasized portion of the Bruce

opinion does not remove defendant Rapoza’s e-mail from the scope of Washington’s absolute

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ORDER GRANTING DEFENDANTS’

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immunity doctrine. 

Plaintiff also attempts to distinguish defendants’ citation to Middlesex Concrete Prods. &

Excavating Corp. v. Carteret Indus. Ass’n, 68 N.J. Super. 85, 172 A.2d 22 (1961), by stating that

in this case “the lawsuit had not been filed” prior to defendant Rapoza’s e-mail. As discussed

above, however, the complaint expressly states the California lawsuit was filed prior to

defendant Rapoza’s e-mail and on a motion to dismiss the Court’s review is limited to the

allegations contained on the face of the complaint. See Dkt. #1 at ¶8. And, even if the e-mail at

issue was authored before the complaint was filed, it is intimately connected with the Fiber-Tech

Engineering, Inc. v. FEMech proceeding as part of Cal. Code. Civ. P. § 411.35’s certificate of

merit requirement.

Finally, plaintiff cites part of a sentence from Deatherage v. Examining Bd. of

Psychology, 134 Wn.2d 131 (1997), for the proposition that a witness must be “testifying”

before the privilege applies. See Response at 6 (“Deatherage makes clear that the privilege is

only applicable to ‘communications preliminary to a proposed judicial proceeding or as part of a

judicial proceeding in which he is testifying” (emphasis by plaintiff) (quoting Deatherage, 134

Wn.2d at 135). First, the cited quotation from Deatherage was not authored by the Washington

Supreme Court itself, but rather it is from the Court’s quotation of the Restatement (Second) of

Torts § 588. Second, in discussing § 588, the Deatherage court explained that while “[t]his

court’s early application of the privilege was consistent with the Restatement,” “[i]n 1989, the

privilege was extended, and we held an expert witness cannot be found civilly liable for any

action done as part of a judicial function.” Id. at 135-36 (citing its 1989 Bruce decision). 

Accordingly, the Washington Supreme Court has not held that the privilege applies only to

testifying experts. Rather, as they reiterated in Deatherage, the privilege applies to “any action

done as part of a judicial function.” Id. at 136. Here, the privilege applies because as plaintiff

alleged, defendant Rapoza’s e-mail served a judicial function since it formed the basis for the

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Cal. Code. Civ. P. § 411.35 certificate in the Fiber-Tech Engineering, Inc. v. FEMech case.

Washington’s “[w]itness immunity is premised on the chilling effect of the threat of

subsequent litigation” and “[u]nless the whole, integral enterprise falls within the scope of

immunity, the chilling effect of threatened litigation will result in . . . adverse effects . . .

regardless of the immunity shielding the courtroom testimony.” Bruce, 113 Wn.2d at 132, 135. 

Based on the allegations in the complaint, dismissal of plaintiff’s claims adheres to this policy

supporting Washington’s immunity doctrine. 

III. CONCLUSION

For all of the foregoing reasons, “Defendants’ Motion to Dismiss” (Dkt. #10) is

GRANTED and plaintiff’s claims are DISMISSED WITHOUT PREJUDICE with leave to

amend.

DATED this 5th day of February, 2007.

A

Robert S. Lasnik

United States District Judge 

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