IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

WILLIAM G. PARDEE and SHANNON D. 

PARDEE, husband and wife,

No. 53126-7-II

Appellants,

v.

EVERGREEN SHORES BEACH CLUB, a 

Washington nonprofit corporation; 

NICHOLAS PALMER and JANE DOE 

PALMER, husband and wife; JOHNNY 

KRAWCHOOK and JANE DOE 

KRAWCHOOK, husband and wife; KRIS 

KINNEAR and JOHN DOE KINNEAR, 

husband and wife; JON KNUTSON and JANE 

DOE KNUTSON, husband and wife; BRUCE 

BAMFORD and JANE DOE BAMFORD, 

husband and wife; SYLVIA DAVENPORT and 

JOHN DOE DAVENPORT, husband and wife; 

PAT ANDERSON and JANE DOE 

ANDERSON, husband and wife,

UNPUBLISHED OPINION

Respondents.

 and

VANTAGE COMMUNITY 

MANAGEMENT, INC., a Washington profit 

corporation,

 Defendant below.

Filed

Washington State

Court of Appeals

Division Two

June 23, 2020
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MELNICK,J. — William and Shannon Pardee,1homeowners and members of the Evergreen 

Shores Beach Club homeowners association (ESBC), brought action against the ESBC, individual 

ESBC board members, and other residents of the neighborhood for (1) discrimination under the 

Washington State Law Against Discrimination (WLAD), (2) defamation, defamation per se, and 

false light, (3) various violations of the ESBC’s governing documents, and (4) civil conspiracy. 

The Superior Court granted the ESBC’s motion for summary judgment and the Pardees appealed. 

We affirm. 

FACTS

The Pardees own property in the Evergreen Shores subdivision in Thurston County. At 

some point prior to the instant lawsuit, Shannon became an ESBC board member. Evergreen 

Shores residents are subject to a declaration of covenants, conditions, and restrictions (CCRs) that 

are enforced by the ESBC. 

The ESBC is a nonprofit organization organized under the Washington Nonprofit

Corporation Act, chapter 24.03 RCW, and is governed by a board of directors which is subject to 

the articles of incorporation and the bylaws. A board member can be removed by a two-thirds 

vote of the ESBC membership. 

Evergreen Shores has four divisions, each of which have separate, but nearly identical 

CCRs. Division three includes a park that fronts Black Lake and contains a “clubhouse” and a 

“cookshed.” Evergreen Shores lot owners each own a 1/482 interest in the park via quitclaim deed. 

Each lot gets one vote. 

 

1 Since the Pardees have the same last name, we occasionally use their first names to avoid 

confusion. We intend no disrespect. 
53126-7-II

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The CCRs state in relevant part:

3. Temporary Structures: No structures of a temporary character, including 

but not limited to trailers, basement houses, tents, garages, barns or other 

outbuildings shall be used on any lot at any time as a residence either temporarily 

or permanently. 

. . . .

8. Nuisances: No noxious or offensive activity shall be carried on upon any 

lot, nor shall anything be done thereon which may be or become an annoyance or 

nuisance to the neighborhood. 

. . . .

16. Enforcement: Enforcement shall be by proceedings at law or in equity 

against any person or persons violating or attempting to violate any covenants either 

to restrain violation or to recover damages.

. . . .

18. Waiver or Change of Covenants: The restrictive covenants contained 

herein may be waived or changed by the majority of the then owners when land 

contours or other circumstances would cause an undue hardship. A majority of the 

then owners shall be the sole judge of the necessity for waiving or changing the 

restrictive covenants in cases of undue hardship.

19. Architectural Control: No building or structure shall be placed, erected, 

or altered on any lot until the construction plans and specifications and a plan 

showing the location of the structure have been submitted and approved in writing 

by the Architectural Planning Committee which shall be composed of three (3) 

members who will be the elected officers of the EVERGREEN SHORES BEACH 

CLUB, INC. . . .

20. Evergreen Shores Beach Club, Inc.: The developer, SUNDOWN, INC., 

has formed a separate non-profit corporation and has built and is paying for the 

clubhouse, swimming pool, and designated parking areas, and in addition will, in 

the future, include a grant to said non-profit corporation approximately seven 

hundred (700) front feet of Black Lake on an area that is within EVERGREEN 

SHORES, DIVISION THREE, but will be accessible to [all divisions], and will be 

jointly used by the owners of lots in all divisions of EVERGREEN SHORES. . . . 

The vote regarding operation of said beach club shall be on the basis of one (1) vote 

per lot ownership. 

Clerk’s Papers (CP) at 282-85. 

The articles of incorporation state that one of the purposes of the ESBC is: 

2. To enforce the conditions, restrictions, charges and restrictive covenants 

at any time created for the benefit of said property . . . and to pay the expenses 

incident to the enforcement of the same and the collection of said charges, and the 

enforcement of al1 the restrictive covenants applicable to the plat of EVERGREEN 

SHORES (all Divisions) of which the park and recreation area shall be an integral 

part.
53126-7-II

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CP at 254.

In February 2017, the ESBC Board approved an enforcement policy that included a fine 

and fee schedule. It allowed the Board to fine residents for violations of the governing documents, 

including the CCRs. The Board determined that “[c]orrecting compliance issues at the lowest 

possible level is in the best interests of the [ESBC] because it reduces the amount of administrative 

time necessary to deal with infractions, lessens the duration of infractions, and may save in legal 

expense. It also promotes a harmonious living environment. To this end, a fine schedule for 

violations of the Governing Documents helps the [ESBC] ensure residents’ compliance with the 

Governing Documents.” CP at 288. 

At various times throughout 2017-18, the ESBC Board engaged with residents of 

Evergreen Shores at the board meetings and through the ESBC newsletter to gather information to 

revise the CCRs. 

I. EVENTS PRIOR TO LAWSUIT

A. The Commonly Owned Park

The ESBC allows members to rent out the clubhouse and cookshed. The ESBC has an 

unwritten policy of not allowing private parties to rent the entire park for events “because it 

provides [no] benefit to the neighborhood as a whole,” and because those events exclude members 

from the park. CP at 393. 

The exception to this policy involves the Black Lake Regatta. The ESBC rents the park to 

a third party that hosts a regatta for three days during the summer. The ESBC has rented the park 

out for the regatta since at least 2015. The regatta participants and guests park mobile homes and 

set up tents in the park to stay overnight. Food vendors and bleachers are set up. One set of 
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bleachers is reserved exclusively for Evergreen Shores members, who get free admission to the 

event. 

In March 2017, Shannon e-mailed the ESBC rental coordinator requesting to rent the 

clubhouse one day a week. The coordinator explained that they would need to know specific dates 

because each rental would require a new rental agreement, and that “the rentals are a manual 

process between several people and reserved dates don’t always get reflected on the calendar.” CP 

at 403. Shannon eventually rented the clubhouse every week for a number of months. 

B. Removal from Facebook Page

In October 2016, Shannon posted to the ESBC Facebook page about Washington statutes 

and case law regarding dangerous dogs. The post began, “RCW 16.08.020 gives citizens the right 

to kill dogs under certain circumstances, and places upon owners of such dogs who are notified of 

their propensities duties to do certain things.” CP at 358. The post also included a summary of a 

decision where the court found that a landowner was justified for shooting dogs on his property. 

Sometime in late 2016, after the above-referenced post, Shannon was removed from the 

ESBC Facebook page and she could no longer post on or access the page. Minutes from a January 

2017 board meeting reported that Shannon was removed in part for inappropriate posting about 

hazardous dogs. 

C. Records Request

In late 2017, the Pardees e-mailed Vantage, the ESBC’s community management 

company, to request access to all documentation of the ESBC. The Vantage representative 

explained that Vantage did not have access to the records kept in the ESBC clubhouse, and a record 

storage company had the other records. The costs of viewing the records, which included staff 

time, copies at a per-page cost, and delivery from the storage facility, would be assessed to the 
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ESBC because Shannon was a board member at the time. Shannon made an appointment to inspect 

the records but the day prior to the scheduled appointment, Vantage contacted Shannon and 

informed her that due to short staffing, it would be unable to keep the appointment. Vantage also 

informed Shannon that the ESBC Board had advised Vantage that her request was not a Board 

project, and therefore she would need to pay the cost of pulling the files.2

The Pardees contended that the ESBC Board never responded to their request to look at 

records. However, in a deposition, William acknowledged that a long e-mail string existed on this 

issue. The e-mails were between the ESBC Board and his wife. 

II. THE LAWSUIT

The Pardees initially filed a complaint against Vantage, the ESBC, past and present 

members of the ESBC Board, and other Evergreen Shores residents. The Pardees alleged that the 

ESBC discriminated against Shannon because of her creed, sex, and disability in violation of 

Washington’s Laws Against Discrimination (WLAD), RCW 49.60.030(l)(b), by “making the 

Clubhouse . . . available for rental only with considerable arbitrary scrutiny, not allowing 

[Shannon] or other members to rent the Park in its entirety, . . . and in removing her from the ESBC 

Facebook account.” CP at 36. The Pardees also allege that ESBC violated RCW 64.38.045 and 

breached the duty of care by denying them access to the ESBC records. 

The Pardees also requested injunctive and declaratory relief regarding the ESBC’s power 

to engage in various actions. First, the Pardees claimed that the ESBC did not have the power to 

adopt or use the enforcement policy adopted in February 2017. Second, the Pardees asserted that 

the ESBC Board illegally attempted to amend the CCRs by gathering information and preparing 

to amend the CCRs without first making a finding that amendments were necessary because of

 

2 The record on appeal does not contain copies of any of the e-mails regarding the records request. 
53126-7-II

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undue hardship. Third, the Pardees claimed that the CCRs prohibited the ESBC from renting the 

park to a third party for the Black Lake Regatta. Alternatively, they claimed that the rental violated 

their right to use and possess the whole of the park as tenants in common. Fourth, the Pardees 

claimed that the ESBC Board failed to appoint or convene an architectural planning committee as 

required by the CCRs. The Pardees also claimed that the actions that were contrary to the CCRs 

constituted negligent acts and a breach of the Board’s duty of care. 

III. EVENTS FOLLOWING FILING OF LAWSUIT

After the Pardees filed their lawsuit, Ashley Lieb, Zene Snider, Aaron MacLean, and Dan 

Solie3 made various comments about Shannon on the ESBC Facebook page. Ashley Lieb 

encouraged neighbors to attend the next board meeting to vote Shannon off the board. 

The post stated that Shannon was a bully; she filed the instant lawsuit because she was 

voted out as ESBC Board Vice President; she was blocked from the ESBC Facebook site “due to 

harassment and [making] threats to shoot at people and their dogs if they come near her property”; 

“she has made false claims towards her neighbors”; she verbally, face-to-face, “attacked” Ashley 

Lieb’s boyfriend; “she screamed at the bus driver for being three minutes late[]”; she was 

“unstable”; she was voted on to the ESBC Board because of the other members’ fear of retaliation 

if they did not vote for her; “because of her, [the ESBC] will not be able to have anything else fun”

at the clubhouse; the ESBC pool may not open because no one wants to deal with her; she is crazy; 

she is “insane”; the ESBC Board has not been able to complete anything since she became a 

member due to her always disagreeing with anything good for the community. CP at 456, 458. 

 

3 Ashley Lieb resided in Evergreen Shores but was not an ESBC member. Zene Snider and Aaron 

MacLean were ESBC members and they became ESBC board members after the comments at 

issue were made. Dan Solie was a former ESBC board member and former ESBC member. 
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Defendant Zene Snider commented on the page several times, stating that “[Shannon] 

wants to ban the Regatta because she was denied her requested use [of the ESBC clubhouse] free 

of charge, for monthly homeschool meetings,” CP at 459; the instant lawsuit she and her husband 

filed was frivolous; that she is suing all but two board members; and “if one family with dilutions 

[sic] is throwing their weight around, scares away anyone that would volunteer, it will be a sad 

day,” CP at 465; and she was “a problem board member.” CP at 466.

On another neighborhood social media website, defendant Dan Solie posted “[Shannon] 

was a plague to the [Board] when I served, it looks like she’s still a plague now.” CP at 475. 

On May 15, a resident of Evergreen Shores called the police to report an incident involving 

Shannon. The complaining party told the officer that her teenage son and his friend walked by the 

Pardees’ residence and heard Shannon yell “‘Keep looking! Come down here so I can shoot you!’ 

or something similar.” CP at 355. The complaining party requested that she remain anonymous 

but did tell the officer that she “was an HOA board member that is being sued by the other involved 

party, who is also an HOA board member.” CP at 355. The police report names Doug Hagen as 

the caller. 

On May 2, Shannon received notice that the ESBC Board planned to call a vote in 19 days 

to remove her from the Board because of, “general lack of candor, difficulty working with others, 

unprofessional communications, and interference with Board and [ESBC] projects and [ESBC] 

contractors.” CP at 443. At the meeting, the ESBC members voted to remove Shannon from the 

Board. 

The Pardees filed a second amended complaint, alleging that the ESBC Board’s removal 

of Shannon was in retaliation for filing the instant suit, in violation of chapter 49.60 RCW’s anti-
53126-7-II

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retaliation clause. The Pardees also added claims for defamation, defamation per se, and false 

light, based on the social media posts and the police report. 

All defendants moved for summary judgment and the court granted the motion. The 

Pardees appeal as to all defendants, except Vantage. 

ANALYSIS

The Pardees argue that the court erred in granting summary judgment to the ESBC because 

they presented sufficient evidence to prove that the ESBC discriminated against Shannon in its 

rental process, by removing her from the Facebook site and by removing her from the ESBC Board 

of Directors in retaliation for filing the lawsuit. We disagree. 

I. DISCRIMINATION UNDER WLAD

WLAD recognizes the right to be free from discrimination because of race, creed, color, 

national origin, sex, or the presence of any sensory, mental, or physical disability. RCW 

49.60.030. The right to be free from discrimination includes the right to “the full enjoyment of 

any of the accommodations, advantages, facilities, or privileges of any place of public resort, 

accommodation, assemblage, or amusement.” RCW 49.60.030(1)(b). 

To make out a prima facie case under the WLAD for discrimination in the public 

accommodations context, the plaintiff must establish four elements, that the (1) plaintiff is a 

member of a protected class, RCW 49.60.030(1); (2) defendant is or owns a place of public 

accommodation, RCW 49.60.215; (3) defendant discriminated against the plaintiff, whether 

directly or indirectly; and (4) discrimination occurred “because of” the plaintiff’s status or, in other 

words, that the protected status was a substantial factor causing the discrimination. RCW 

49.60.030; State v. Arlene’s Flowers, Inc., 187 Wn.2d 804, 821-22, 389 P.3d 543 (2017), judgment 
53126-7-II

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vacated and remanded, 138 S. Ct. 2671 (2018), aff’d on remand, 193 Wn.2d 469, 441 P.3d 1203 

(2019). 

Washington courts have long equated the term “creed” in the WLAD with the term 

“religion.” Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014); see also Riste 

v. E. Wash. Bible Camp, Inc., 25 Wn. App. 299, 302, 605 P.2d 1294 (1980) (“Creed, as used in 

[WLAD] and in its common dictionary meaning, refers to a system of religious beliefs.”). 

A. ESBC Rental Process and Facebook Page

The Pardees argue that “creed” under the WLAD can be interpreted as any “set of 

principles and opinions . . . expressed and adhered to,” and that the ESBC discriminated against 

Shannon because of those principles and opinions. Appellant’s Br. at 14.

The Pardees’ claim fails because they have not proven or even alleged that Shannon is a 

member of a protected class. Existing case law supports the conclusion that the definition of 

“creed” extends only to religion and religious beliefs. The Pardees do not cite to legal authority 

to support the claim that that creed extends to any beliefs on any subject. The Pardees also fail to 

present any evidence or argue the existence of any specific principles or opinions Shannon holds 

that caused the ESBC to discriminate against her. The Pardees argument on this issue fails.

B. Removal from the Board 

The Pardees claim that Shannon’s removal from the Board was due, at least in part, in 

retaliation for filing the instant lawsuit in violation of RCW 49.60.210(1). 

“It is an unfair practice for any employer, employment agency, labor union, or other person 

to discharge, expel, or otherwise discriminate against any person because he or she has opposed 

any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted 

in any proceeding under this chapter.” RCW 49.60.210(1).
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To maintain a retaliation claim under the WLAD, a plaintiff must establish that “(1) she 

participated in a statutorily protected activity; (2) an adverse employment action was taken against 

her; and (3) her activity and the employer’s adverse action were causally connected. Hollenback 

v. Shriners Hosps. For Children, 149 Wn. App. 810, 821, 206 P.3d 337 (2009). 

The Pardees cannot satisfy the elements of a retaliation claim. The relationship between 

Shannon and the ESBC is neither an employee-employer relationship nor its functional 

equivalent.4 The court did not err in dismissing this claim.

II. DEFAMATION

The Pardees argue that the court erred in granting summary judgment to ESBC as to the 

claims for defamation, defamation per se, and false light. We disagree. 

A. Defamation and Defamation Per Se

“When a defendant in a defamation action moves for summary judgment, the plaintiff has 

the burden of establishing a prima facie case on all four elements of defamation: falsity, an 

unprivileged communication, fault, and damages.” LaMon v. Butler, 112 Wn.2d 193, 197, 770 

P.2d 1027 (1989). “The prima facie case must consist of specific, material facts, rather than 

conclusory statements, that would allow a jury to find that each element of defamation exists.” 

LaMon, 112 Wn.2d at 197. “A mere conclusory statement not supported by facts admissible in 

evidence cannot be considered on a motion for summary judgment.” Mark v. Seattle Times, 96 

Wn.2d 473, 490, 635 P.2d 1081 (1981); CR 56(e). 

“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, 112 Wn.2d at 

 

4 This claim is not supported by Galbraith v. TAPCO Credit Union, 88 Wn. App. 939, 946 P.2d 

1242 (1997). See Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App. 927, 965 P.2d 1124 (1998).
53126-7-II

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197. “The negligence standard is that the defendant knew or, in the exercise of reasonable care, 

should have known that the statement was false or would create a false impression in some material 

respect.” Vern Sims Ford, Inc. v. Hagel, 42 Wn. App. 675, 680, 713 P.2d 736 (1986).

“A publication is defamatory per se (actionable without proof of special damages) if it ‘(1) 

exposes a living person to hatred, contempt, ridicule or obloquy, to deprive him of the benefit of 

public confidence or social intercourse, or (2) injures him in his business, trade, profession or 

office.’” Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 328, 364 P.3d 129 (2015) 

(quoting Caruso v. Local Union No. 690 of Int'l Bhd. of Teamsters, 100 Wn.2d 343, 353, 670 P.2d 

240 (1983)).

To establish the falsity element of defamation, the plaintiff must show the offensive 

statement was “provably false.” Schmalenberg v. Tacoma News, Inc., 87 Wn. App. 579, 590, 943 

P.2d 350 (1997). Washington does not require a defamation defendant to “prove the literal truth 

of every claimed defamatory statement.” Mark, 96 Wn.2d at 494. “A defendant need only show 

that the statement is substantially true or that the gist of the story, the portion that carries the ‘sting’, 

is true.” Mark, 96 Wn.2d at 494. 

“To determine whether a statement is nonactionable [opinion], a court should consider at 

least (1) the medium and context in which the statement was published, (2) the audience to whom 

it was published, and (3) whether the statement implies undisclosed facts.” Dunlap v. Wayne, 105 

Wn.2d 529, 539, 716 P.2d 842 (1986). 

“[T]he nature of the medium can affect whether a statement is received as ‘fact’ or 

‘opinion’: statements of opinion are expected to be found more often in certain contexts, such as 

editorial pages or political debates.” Wayne, 105 Wn.2d at 539. In regard to the nature of the 

audience, the court “should thus consider whether the audience expected the speaker to use 
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exaggeration, rhetoric, or hyperbole.” Wayne, 105 Wn.2d at 539. “‘In the context of ongoing 

public debates, the audience is prepared for mischaracterizations and exaggerations, and is likely 

to view such representations with an awareness of the subjective biases of the speaker.’” Wayne, 

105 Wn.2d at 539 (quoting Note, Fact and Opinion After Gertz v. Robert Welch, Inc.: The 

Evolution of a Privilege, 34 RUTGERS L. REV. 81 (1981)).

We have reviewed the statements the Pardees allege form the bases of their defamation and 

defamation per se claims. They can be categorized as opinions, substantially true, or not shown to 

be provably false. In addition, we are cognizant that the statements were posted on a social media 

page where the audience expects the speaker to use exaggeration, rhetoric, or hyperbole. Wayne, 

105 Wn.2d at 539. The Pardees have submitted no evidence of either the falsehood of these 

statements or that the speakers were negligent in making them, they have not met the burden of 

establishing a prima facie case of defamation or defamation per se. 

As to the Pardees’ allegation that the police report is false and forms the basis for a claim, 

they have failed to show it was negligently made. In addition, as to who made the statement in the 

police report, they have not supported their assertion with any admissible evidence. 

The Pardees have failed to make a prima facie case for defamation or defamation per se. 

The court did not err in dismissing these claims. 

B. False Light

“‘A false light claim arises when someone publicizes a matter that places another in a false 

light if (a) the false light would be highly offensive to a reasonable person and (b) the actor knew 

of or recklessly disregarded the falsity of the publication and the false light in which the other 

would be placed.’” Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 339, 364 P.3d 129 

(2015) (quoting Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 470-71, 722 P.2d 1295 (1986)). 
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A plaintiff does not need to be defamed in order to bring a false light claim. Eastwood, 

106 Wn.2d at 471. However, the plaintiff must allege falsity. Emeson v. Dep’t of Corr., 194 Wn.

App. 617, 640, 376 P.3d 430 (2016). 

Here, for the same reasons the Pardees did not show falsity for their defamation claims, 

they also fail to show falsity for a false light claim. Additionally, the Pardees did not present any 

evidence to show that defendants made the statements knowing or recklessly disregarding the 

falsity. They are unable to establish a prima facie case of false light. 

The trial court did not err by granting summary judgement on the false light claim. 

III. ACCESS TO THE ESBC RECORDS

The Pardees argue that the court erred in granting summary judgment to ESBC from being 

denied access to the ESBC records. They argue that they are still entitled to damages caused by 

the past bad behavior, even if they are no longer seeking access to the records. 

The ESBC argues that the claim is moot because the Pardees are no longer seeking access 

to the records, and even if the claim is not moot, Vantage did not deny the Pardees access to the 

records because Vantage is permitted to charge a reasonable fee, and the ESBC Board never denied 

a request. We agree with the ESBC. 

RCW 64.38.045(2) states:

All records of the association, including the names and addresses of owners 

and other occupants of the lots, shall be available for examination by all owners, 

holders of mortgages on the lots, and their respective authorized agents on 

reasonable advance notice during normal working hours at the offices of the 

association or its managing agent. The association may impose and collect a 

reasonable charge for copies and any reasonable costs incurred by the association 

in providing access to records.

“‘A case is moot if a court can no longer provide effective relief’ and the issues it presents 

are ‘purely academic.’” Kuehn v. Renton Sch. Dist. No. 403, 103 Wn.2d 594, 597, 694 P.2d 1078 
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(1985) (quoting In re Det. of Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983); State v. Turner, 

98 Wn.2d 731, 733, 658 P.2d 658 (1983)).

An appellant has the burden of producing a record from which a court can decide the issues 

on appeal. Brothers v. Pub. Sch. Emps. of Wash., 88 Wn. App. 398, 409, 945 P.2d 208 (1997). 

When the appellant fails to provide an adequate record for review, we must affirm the trial court’s 

ruling. Story v. Shelter Bay Co., 52 Wn. App. 334, 346, 760 P.2d 368 (1988).

Although the Pardees are no longer seeking declaratory or injunctive relief, the complaint 

also requested damages to be proven at trial due to defendants’ failure to allow access to the ESBC 

documents. The claim therefore is not moot. Nevertheless, the court did not err in granting 

summary judgment. 

The Pardees have requested two sets of records. The first are controlled by Vantage, the 

community management company. The second are controlled by the ESBC Board and they are 

stored at the ESBC clubhouse. 

The Pardees claim that the fee to inspect the records housed with Vantage was 

unreasonable. However, the fee is not imposed by the ESBC. This set of records is stored with a 

third-party company that charges Vantage a per-box fee to deliver. The Pardees did not appeal the 

claims against Vantage after the court granted summary judgment. Therefore, we do not address 

whether the fee was reasonable.

Additionally, the ESBC did not deny the Pardees access to the files housed with Vantage. 

Vantage canceled the meeting and the Pardees chose not to reschedule. Vantage is no longer a 

party in this case; therefore, we do not address the claims as to the records kept off-site by Vantage. 

In regard to the records stored at the ESBC clubhouse, the Pardees claim that ESBC did 

not respond to Shannon’s request to access these records, and the ESBC does not contradict this 
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assertion. However, in a deposition, William stated that a long e-mail string between Shannon and 

the Board existed regarding the records request. Because neither the original e-mail to the ESBC 

nor the e-mail string between Shannon and other board members is included in the record, we 

cannot determine what, if any, response the Pardees received from the ESBC Board to review the 

records contained in the clubhouse. It therefore cannot determine whether the Board 

constructively denied the Pardees’ request. Because the Pardees fail to provide an adequate record 

for review, ESBC prevails on this issue. Story, 52 Wn. App. at 346.

IV. VIOLATIONS OF GOVERNING DOCUMENTS

A. Legal Principles

The interpretation of a restrictive covenant is a question of law that we review de novo. 

Wimberly v. Caravello, 136 Wn. App. 327, 336, 149 P.3d 402 (2006).

The primary task in “interpreting a restrictive covenant is to determine the covenant 

drafter’s intent by examining the clear and unambiguous language of the covenant.” Saunders v. 

Meyers, 175 Wn. App. 427, 438-39, 306 P.3d 978 (2013). “The court’s goal is to ascertain and 

give effect to those purposes intended by the covenants.” Riss v. Angel, 131 Wn.2d 612, 621, 934 

P.2d 669 (1997). The court must place “special emphasis on arriving at an interpretation that 

protects the homeowners’ collective interests.” The Lakes at Mercer Island Homeowners Ass’n v. 

Witrak, 61 Wn. App. 177, 181, 810 P.2d 27 (1991).

“[I]f more than one reasonable interpretation of the covenants is possible regarding an 

issue, we must favor that interpretation which avoids frustrating the reasonable expectations of 

those affected by the covenants’ provisions.” Green v. Normandy Park, 137 Wn. App. 665, 683,

151 P.3d 1038 (2007).
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B. Amending the CCRs

The Pardees argue that the ESBC Board violated the CCRs by considering amendments 

without first making a determination that “land contours or other circumstances” leading to undue 

hardship warranted amending the CCRs. Appellant’s Br. at 37. 

The CCRs state “the restrictive covenants contained herein may be waived or changed by 

the majority of the then owners when land contours or other circumstances would cause an undue 

hardship. A majority of the then owners shall be the sole judge of the necessity for waiving or 

changing the restrictive covenants in cases of undue hardship.” CP 267, 275, 279-280, 285.

The clear and unambiguous language of the provision does not indicate that the board must 

take any specific action prior to presenting proposed amendments to the membership. Should any 

owners determine that it is not necessary to make amendments, they may vote against the 

amendments as provided by the CCRs. We conclude that the court properly granted summary

judgment on this claim.

C. The Black Lake Regatta

The Pardees’ first argue that their interest in the park creates a tenancy in common, and the 

rental of the park for the regatta violates their right as tenants in common to use, possess, and enjoy 

the park. The Pardees also argue that the ESBC violates the CCRs by contracting with a third 

party to rent the park for the Black Lake Regatta. They contend that the ESBC board members 

have acted negligently by ignoring the governing documents that prohibit the regatta. 

“Every interest created in favor of two or more persons in their own right is an interest in 

common, . . . unless declared in its creation to be a joint tenancy, as provided in RCW 64.28.010.” 

RCW 64.28.020(1). Each cotenant is entitled to the use, possession, and benefit of the whole of 

the property. Thus, one tenant in common may lawfully lease, sell, or otherwise dispose of its 
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interest in the common property, without the consent of the other cotenants. De La Pole v. Lindley, 

131 Wash. 354, 358, 230 P. 144 (1924). The only limitation is that a cotenant may not interfere 

with the coequal rights of the other cotenants. De La Pole, 131 Wash. at 358. 

The deed for a 1/482 interest in the park issued to each homeowner of Evergreen Shores 

created a tenancy in common. Therefore, each deed holder is entitled to the use, possession, and 

benefit of the whole property. However, the Pardees’ right as a cotenant to the use, possess, or 

benefit from the property does not preclude any other cotenant from leasing their interest in the 

property. De La Pole, 131 Wash. at 358. The Pardees argue that the regatta excluded them from 

the park. This allegation is untrue. ESBC members are granted free access to the park during the 

event and the Pardees have presented no evidence that they have otherwise been excluded. The 

Pardees’ right as cotenants in common have not been interfered with.

There is nothing in the CCRs that explicitly prohibits the rental of the park to a third party 

for an event. The CCRs only require that the operation of the community area will be on the basis 

of one vote per lot ownership. Nevertheless, the Pardees argue that the park is subject to the same 

covenants as the individual lots. We agree to the extent that the park is subject to the covenants, 

but the Pardees have not presented a genuine issue of material fact as to whether the regatta violates 

the CCRs. Therefore, we conclude that the court did not err in granting summary judgment on this 

claim. 

D. Architectural Committee

The Pardees argue that the CCRs require the ESBC Board to convene an architectural 

control committee to evaluate requested changes by owners. We dismiss this claim because it is 

non-justiciable. 
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For declaratory judgment purposes, a justiciable controversy is:

“(1) . . . an actual, present and existing dispute, or the mature seeds of one, 

as distinguished from a possible, dormant, hypothetical, speculative, or moot 

disagreement, (2) between parties having genuine and opposing interests, (3) which 

involves interests that must be direct and substantial, rather than potential, 

theoretical, abstract or academic, and (4) a judicial determination of which will be 

final and conclusive.”

Nollette v. Christianson, 115 Wn.2d 594, 599, 800 P.2d 359 (1990) (quoting Diversified Indus.

Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)). Absent these elements, the court 

“steps into the prohibited area of advisory opinions.” Diversified Indus. Dev. Corp., 82 Wn.2d at 

815.

The Pardees have neither argued nor presented evidence of any alterations made to lots 

either by them or other ESBC members that violate the covenants because of the lack of approval 

from an architectural control committee. They have failed to present an actual dispute that would 

render a decision by this court anything but an advisory opinion. Therefore, we conclude that the 

court did not err by granting summary judgment to ESBC on this claim.

E. Enforcement 

The Pardees argue that the ESBC is prohibited from adopting or using the enforcement 

policy because the CCRs require enforcement through judicial proceeding only. They contend 

that the language used indicates that the developer of the ESBC neighborhood wanted to prevent 

ESBC Board actions against homeowners for alleged violations of the CCRs, without the due 

process protection of the courts. We disagree. The record does not show of any instance where 

the Board has used the enforcement policy, so we only address the Board’s authority to adopt the 

policy. 
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The CCRs provide that “[e]nforcement shall be by proceedings at law or in equity against 

any person or persons violating or attempting to violate any covenants either to restrain violation 

or to recover damages.” CP at 267, 275, 279, 284. 

The articles of incorporation state that one of the purposes of forming the ESBC is “[t]o 

enforce the conditions, restrictions, charges and restrictive covenants at any time created for the 

benefit of said property and all other property in the plat of EVERGREEN SHORES and for the 

owners thereof.” CP at 254. 

Unless otherwise provided by governing documents, an association may “[a]dopt and 

amend bylaws, rules, and regulations” and “[i]mpose and collect charges for late payments of 

assessments and . . . levy reasonable fines in accordance with a previously established schedule 

adopted by the board of directors and furnished to the owners for violation of the bylaws, rules, 

and regulations of the association.” RCW 64.38.020(1), (11). “Assessment” means all sums 

chargeable to an owner by an association in accordance with RCW 64.38.020. RCW 64.38.010(1).

“Shall” is interpreted as directory, rather than mandatory, when a literal reading would 

frustrate the legislative intent. State ex rel. Royal v. Bd. of Yakima County Comm'rs, 123 Wn.2d 

451, 458, 869 P.2d 56 (1994).

The bylaws do not explicitly grant the Board with the power to adopt a fine and fee 

schedule, nor do they prohibit it. Applicable state law allows for the adoption of fee schedule. 

RCW 64.38.020. Most importantly, one of the primary purposes of establishing the ESBC is to 

enforce the CCRs. 

An interpretation of “shall” as mandatory or, in this case, the exclusive method of 

enforcement would frustrate the intent of the covenants. Bd. of Yakima County Comm'rs, 123 
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Wn.2d at 458.5 In creating the policy, the Board determined that “[c]orrecting compliance issues 

at the lowest possible level is in the best interests of the [ESBC] because it reduces the amount of 

administrative time necessary to deal with infractions, lessens the duration of infractions, and may 

save in legal expense. It also promotes a harmonious living environment.” CP at 288. Interpreting 

‘shall’ in a way that does not frustrate purpose of the covenants “protects the homeowners’ 

collective interests” in having covenants enforced. Witrak, 61 Wn. App. at 181. Therefore, the 

court did not err in granting summary judgment to ESBC on this claim. 

V. CIVIL CONSPIRACY

The Pardees argue that the court erred in dismissing their claim for civil conspiracy because 

they have “shown evidence . . . of a conspiracy.” Appellant’s Br. at 50. We disagree. 

To establish a claim for civil conspiracy, the plaintiff “must prove by clear, cogent, and 

convincing evidence that (1) two or more people combined to accomplish an unlawful purpose, or 

combined to accomplish a lawful purpose by unlawful means; and (2) the conspirators entered into 

an agreement to accomplish the conspiracy.” All Star Gas, Inc. of Wash. v. Bechard, 100 Wn. 

App. 732, 740, 998 P.2d 367 (2000). But, “‘[m]ere suspicion or commonality of interests is 

insufficient to prove a conspiracy.’” Bechard, 100 Wn. App. at 740 (quoting Wilson v. State, 84 

Wn. App. 332, 350-51, 929 P.2d 448 (1996)). A plaintiff attempting to establish conspiracy must 

show that the factual circumstances are “inconsistent with a lawful or honest purpose and 

reasonably consistent only with the existence of the conspiracy.” John Davis & Co. v. Cedar Glen 

No. Four, Inc., 75 Wn.2d 214, 224, 450 P.2d 166 (1969).

 

5 While principles of statutory construction are not usually used to interpret restrictive covenants, 

the principle is applicable here because the court’s goal is to ascertain and give effect to those 

purposes intended by covenants. Riss 131 Wn.2d at 621.
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The Pardees assert that they “have shown evidence above of a conspiracy amongst the 

Defendants,” but do not indicate which evidence supports either element of conspiracy. 

Appellant’s Br. at 50. The only evidence in the record relevant to establishing that defendants had 

entered into an agreement is a declaration by a former board member stating that he was aware of 

at least two occasions where the board members met outside of a formal board meeting, and had 

seen cars belonging to some defendants parked at another defendant’s residence. This evidence 

alone does not show circumstances inconsistent with a lawful or honest purpose and reasonably 

consistent only with the existence of the conspiracy. We conclude that the court did not err in 

granting summary judgment to the ESBC on this claim. 

Concluding that the trial court did not err, we affirm.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

Melnick, J.

We concur:

Sutton, A.C.J.

Cruser, J.