### FILED SEPTEMBER 1, 2015 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE CLUB LEVEL, INC. and RYAN FILA, ) a single man, ) ) Appellant, ) ) 

### v. ) ) CITY OF WENATCHEE, a municipal ) corporation, WENATCHEEPOLICE ) DEPARTMENT, an agency ofthe City of ) Wenatchee, CHIEF TOMROBBINS in ) his individual capacity as Chiefofthe . ) WenatcheePolice Department, CAPTAIN ) KEVIN DRESKERin his individual ) capacity as a Captain ofthe Wenatchee ) PoliceDepartment, SERGEANT CHERI ) SMITH inherindividual capacity as a ) Sergeant ofthe WenatcheePolice ) Department, and SERGEANTMARK ) HUSON in his individual capacity as a ) Sergeant ofthe Wenatchee Police ) Department, ) ) Respondent. ) No. 32830-9-III

UNPUBLISHED OPINION

KORSMO,

### J. Club Level and its owner, RyanFila, brought this action in the Chelan County SuperiorCourt against the City ofWenatchee and four ofits police officers concerningpolice investigations and treatment ofthe club. As othercourts haveNo. 32830-9-II1 Club Level, Inc. et. al., 

### v. City ofWenatchee, etal.

done in related filings by the plaintiffs against other defendants, the trial court granted summaryjudgmentto these defendants. We affirm. FACTS The complaint, filed August 30, 2013, alleged seven causes ofaction: negligent supervision, defamation, false light, conspiracy, negligent infliction ofemotional distress, outrage, and tortious interference with a business relationship. Most ofthe claims were based on actions ofthepolice department in aggressively enforcing various laws, particularly those involving violations ofstate alcohol laws, against the club, its employees, and its patrons. The defendants also were accused ofconspiring with Washington State Liquor Control Board (WSCLB) employees to drive the club out of business. The defamation and false light claims had a different basis. Mr. Fila was friends with a Wenatchee Police Department (WPD) officer, Sergeant Stephyne Silvestre. WPD conducted a disciplinary investigationI ofSylvestre concerning an allegation that she had shared with Mr. Fila confidential information about a complaintto the police department against him. The woman who initiated the complaint described Mr. Fila in an interview

as manipulative, having a temper, and accused him ofattempting to scam her friend. A copy ofthis interview was included in Silvestre's disciplinary file and was among the

I As a result ofthe investigation, Silvestre was demoted. 2No. 32830-9-III Club Level, Inc. et. al., v. City ofWenatchee, etal.

materials obtained by the Wenatchee World newspaper pursuant to a public records request for the disciplinary file. The Chelan County action was the third suit filed by the plaintiffs relating to these matters. In 2012, Club Level and Mr. Fila filed a complaint in the federal court for Eastern Washington against all ofthe same defendants who were named in the Chelan County action. The federal complaint was based on the same factual allegations as those at issue here. Itincluded four constitutional claims brought under the authority of42 U.S.C. § 1983 and several state law tort claims. The federal court in 2013 granted summaryjudgment on the federal law claims and then dismissed without prejudicethe accompanying state law claims. The plaintiffs refiled the state claims shortly thereafter

as the basis for the Chelan County suit. Also in 2012, the plaintiffs sued the WSLCB, its directors, and several employees in the Thurston County Superior Court. Once again, the essence ofmany ofthe causes of action was aggressive enforcement ofthe liquor control laws by the WSLCB officers. Included among the allegations was a contention that the WSLCB employees engaged in

a civil conspiracy with the WPD to drive the club out ofbusiness. Theplaintiffs eventually withdrew many ofthe claims and the trial court ultimately resolved the final four allegations overthe course oftwo summaryjudgmentproceedings. With respect to the civil conspiracy allegation, the Thurston County Superior Court concluded thatthe



### 3No. 32830-9-III Club Level, Inc. et. al., v. City a/Wenatchee, etal. plaintiffs had produced no evidence to establish that the purpose ofthe alleged conspiracy was to harm theplaintiffs' business. All ofthe counts were dismissed. Theplaintiffs appealed to Division Two ofthis court. By way ofunpublished opinion, that court affirmed the summaryjudgmentdismissal ofthe Thurston County action. See Club Level, Inc. v. Wash. State Liquor ControlBd., etal., noted at 185 Wn. App. 1016 (2014), review denied, 183 Wn.2d 1003 (2015). With respect to the conspiracy allegation, Division Two agreed with the trial courtthatthe plaintiffs failed to produce any evidence establishing that the purpose ofthe civil conspiracy was to putthe plaintiffs out ofbusiness. See Club Level, slip op. at 

## *12. The Washington Supreme Court subsequently denied the plaintiffs' petition for review. While the Thurston County ruling was on appeal, the Chelan County defendants sought summaryjudgment in this case. Thetrial court granted the motion and the plaintiffs timely appealed to this court. This court heard oral argument whilethe petition for review ofthe Division Two case was still pending. Afterthatpetition was denied, both counsel in this action promptly notified this court ofthat action. 2 ANALYSIS ClubLevel and Mr. Fila challengethe dismissal ofall butthe outrage claim. We address first the conspiracy allegation, before next addressing the negligent infliction of

2 We commend both attorneys for their professionalism in providing theprompt notification. 4No. 32830-9-III Club Level, Inc. et. al., v. City ofWenatchee, etal.

emotional distress, tortious interference, and negligent supervision claims. Finally, we treat the defamation and false light claims together. Before addressing the individual claims, it is appropriate to address the well settled standards that govern review ofa summaryjudgment. This courtreviews a summaryjudgmentde novo, performingthe same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29,34,1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the nonmovingparty. Id. Ifthere is no genuine issue ofmaterial fact, summaryjudgment will be granted ifthe movingparty is entitled tojudgment as a matter oflaw. Id. The movingparty bears the initial burden ofestablishingthat it is entitled to judgmentbecause there are no disputed issues ofmaterial fact. Young v. KeyPharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Ifa defendant makes that initial showing, then the burden shifts to the plaintiffto establish there is a genuine issue for the trier-of-fact. Id at 225-226. The plaintiffmay notrely on speculation orhaving its own affidavits accepted at face value. Seven Gables Corp. v. MGMlUA Entm 't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Instead, it mustput forth evidence showing the existence ofa triable issue. Id



### 5No. 32830-9-111 Club Level, Inc. et. al.} v. City ofWenatchee, etal.

Civil Conspiracy The trial court dismissed this claim on the basis ofcollateral estoppel, reasoning that the same conspiracy claim had failed in Thurston County on the same evidence. CP at 1064. We agree. The complaint alleged that WPD entered into a civil conspiracy with the WSLCB for the purpose offorcing the closure ofplaintiffsbusinesses. CP at 24. A civil conspiracy requires proofthat (1) two or more people entered into an agreement to accomplish an unlawful purpose oruse unlawful means to accomplish a properpurpose and (2) they had an agreementto accomplish the object ofthe conspiracy. Corbit v. Jl. Case Co., 70 Wn.2d 522,528-529,424 P.2d 290 (1967). Citing this authority, the Thurston County'court determined that the plaintiffs had failed to establish any proofof the second element. CP at 625-626. In general, collateral estoppelprecludes relitigation ofthe same issue in a subsequent action involving the parties. 3 Christensen v. Grant CountyHosp. Dist. No.1, 152 Wn.2d 299,306,96 P.3d 957 (2004). In order to prevail on a claim ofcollateral estoppel, the party seeking application ofthe doctrine bears the burden ofshowingthat

3 This is distinguished from the doctrine ofresjudicata, also known as claim preclusion, which applies to related lawsuits between parties. In general, resjudicata prevents the litigation ofclaims which were or should have been brought in aprevious final litigation between the sameparties. Hadley v. Cowan, 60 Wn. App. 433, 440-441, 804 P.2d 1271 (1991). See generally, Philip A. Trautman, Claim andIssue Preclusion in CivilLitigation in Washington, 60 WASH. L. REv. 805 (1985). 6No. 32830-9-III Club Level, Inc. et. al., 

### v. City o/Wenatchee, etal. (1) the identical issue was decided, (2) there was a finaljudgment on the merits, (3) the party against whom the doctrine is asserted must have been a party(or in privity with a party) to the earlierproceeding, and (4) application ofcollateral estoppel will not work an injustice againstthe estoppedparty. Id. at 307. The estoppedparty must have had a "full and fair opportunity to litigate the issue in the earlierproceeding." 

### Id. Club Level initially argued that collateral estoppel could not be applied since the defendants in this action were not parties to the Thurston County action. It now concedes that Washington no longer requires mutuality ofparties. Rather, the party againstwhom collateral estoppel is asserted is the only party who needed to be involved in theprior litigation. State v. Mullin-Coston, 152 Wn.2d 107, 113-114,95 P.3d 321 (2004); Christensen, 152 Wn.2d at 307. Club Level instead argues that the evidence is different and that it would work an injustice to apply collateral estoppel against it. The club has not identified what evidence is different in this proceeding. Its pleadings in the Chelan and Thurston matters are largely identical. Indeed, many ofthe Chelan County documents include text that appears to have been lifted from those filed in Thurston County. While the club understandably focuses on the behavior ofthe WPD actors instead ofthe WSLCB employees at issue in Thurston County, the fact remains that it has failed to identify any evidence that is different in this proceedingthan what

was before the Thurston County court. Most critically, it has not identified any evidence,

new or old, concerning an improperpurpose ofthe purported conspiracy. Law 7No. 32830-9-111 Club Level, Inc. et. al., v. City ofWenatchee, etal.

enforcement officers agreeing to aggressively focus on law violators is neither unusual

nor lmproper. The club's argument does not preclude application ofcollateral estoppel here. Similarly, there is nothing unjust about applying collateral estoppel in this instance. The plaintiffs contend that the federal district court, Thurston County Superior Court, and Division Two ofthe Court ofAppeals all erred in dismissing or affirming the dismissal ofthe other actions. Absent demonstration ofactual error in dismissing this

cause ofaction, there can be nothing unjust about applying the earlier decisions. This argument, too, fails. Thetrial court correctly determined that the same issue-the existence ofa conspiracy to put the plaintiffs out ofbusiness-waspresent in both state court proceedings. Itdid not err in giving preclusive effectto the Thurston County ruling. Collateral estoppel was properly applied to this claim. Negligent Infliction of EmotionalDistress The trial court dismissed this cause ofaction because there was no evidence that Mr. Filahad experienced any emotional distress. CP at 1064. We again agree withthe trialjudge's assessment ofthe record. Typically, a claim ofnegligent infliction ofemotional distress involves a family member who views a "physically injured loved one shortly after a traumatic accident." Colbert v. Moomba Sports, Inc., 163 Wn.2d 43, 49, 176 P.3d 497 (2008). Division Two 

### 8No. 32830-9-III Club Level, Inc. et. al., 

### v. City ofWenatchee, etal.

ofthis court has expressly stated that "officers owe no duty touse reasonable care to avoid inadvertent infliction ofemotional distress onthe subjects ofcriminal investigations." Keates v. Vancouver, 73 Wn. App. 257,269, 869 P.2d 88 (1994). Compensation for emotional distress damages must come from some othertort theory. Id. The City relied primarily on Keates in its motion for summaryjudgment. Thetrial court, however, focused on the fact that there was no objective evidence ofemotional distress. CP at 1064. This has long been a requirement for recovery under this tort. Hunsley v. Giard, 87 Wn.2d 424,435,553 P.2d 1096 (1976). In his motion for reconsideration, Mr. Fila argued that the city had deposed his therapist and knew the objective evidence supporting his claimthathe would present at trial. CP at 1078. However, Mr. Fila never presented any ofthat evidence to the trial court. In light ofthe trialjudge'sresolution ofthe issue at summaryjudgmentand the fact that the city did not concedethe point in its answer to the reconsideration request, Mr. Filaneeded to presenthis objective evidence ofemotional distress. There beingnone in the record, the trial court did not err. This claim was properly dismissed in accordance withHunsley. Tortious Interference The trial court dismissed this claim on the basis that the record lacked any evidence that the defendants knew about the contractual relationship between the

9No. 32830-9-111 Club Level, Inc. et. al., v. City ofWenatchee, etal. plaintiffs and their landlord. Again, the record does not support each element ofthe claim and the trial court properly dismissed this cause ofaction. This tort requires proofofan intent to interfere with a private business relationship, not merely a showing that interference would be a foreseeable consequence ofthe defendants' actions. Burke & Thomas, Inc. v. Masters, 92 Wn.2d 762, 768-769, 600 P.2d 1282 (1979) (declining to apply this tortto a public union that had gone on strike since the purpose ofthe strike was to obtain negotiation concessions ratherthan injure private businesses). The elements ofa claim oftortious interference with a business relationship that aparty must establish are (1) the existence ofa valid contractual relationship orbusiness expectancy, (2) defendants had knowledge ofthat relationship or expectancy, (3) an intentional interference causing or inducingbreach or termination ofthe relationship or expectancy, (4) defendants interfered for an improper purpose orused improper means, and (5) resultant damages. SintraJ Inc. v. Seattle, 119 Wn.2d 1,27-28, 829 P.2d 765 (1992). The City contended in its motion that none of these elements were established, but the trial court focused solely on the second element in its ruling. CP at 1064. We, therefore, will do the same. As applied to the facts ofthis case, the essence ofthis claim is a contention that, consistent with the conspiracy allegation, the officers interfered with the relationship between plaintiffs and their landlord for the improperpurpose offorcing the plaintiffs out ofbusiness. Club Level contends that the police had knowledge ofthe landlord-tenant 10No. 32830-9-III Club Level, Inc. et. al., 

### v. City ofWenatchee, etal. relationship, but points to no evidence in the record supporting that view. Since the

essence ofthis tort is intentional interference with a specific business relationship, knowledge ofthat relationship is understandably a critical element. Club Level did not present any proofon thatpoint. The trial court correctly dismissed this cause ofaction. Negligent Supervision Club Level next contends thatthe city committed a tort by negligently supervising the four namedpolice officer defendants in its employ. The trial court dismissed this count on the basis ofcollateral estoppel, citingto the ruling ofJudge Shea in the Eastern District Court proceeding. Division Two's opinion also addressed this same tort, although in the context ofthe WSLCB employees, and rejected it on the basis of vicarious liability. We affirm the trial court on both ofthose rationales. The essence ofthe tort ofnegligent supervision is the failure to prevent an employee, acting outside ofthe scope ofemployment, from using equipment or instrumentalities ofemployment to harm others. Niece v. Elmview Grp. Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). The "outside the scope ofemployment" factor distinguishes this tort from other actions in which the employer is vicariously liable for the torts ofan employee actingwithin the scope ofemployment. 

### ld. Thus, when an employer concedes that the employee's actions are within the scope ofemployment, this tort does not apply because vicarious liability will apply. LaPlant v. Snohomish County,

11No. 32830-9-II1 Club Level, Inc. et. al., v. City ofWenatchee, etat.

162 Wn. App. 476, 479-480, 271 P.3d 254 (2011); Gilliam v. D.S.HS., 89 Wn. App. 569, 584-585,950 P.2d 20 (1998). The first problem in addressing this issue is that the appellants have not briefed or argued the trial court's application ofcollateral estoppel to this claim. On this basis alone, we could refuse to consider the challenge. E.g., Hawkins v. Casey, 38 Wash. 625, 626,80 P. 792 (1905); Donner v. Blue, 187 Wn. App. 51,65,347 P.3d 881 (2015). But

even ifwe review the claim, it appears that the trial court correctly applied collateral estoppel here. The federal court expressly found that each ofthe three constitutional claims put before it (due process, first amendment, and fourth amendment violation claims) failed for insufficient evidence.4 CP at 609,612,614-615. The district court judgethen also determined that qualified immunity applied to each ofthe constitutional claims. He summed up the evidence thusly: Atbest, Plaintiffs have demonstrated that officers issued lawful citations and acted within the statutory power given to them, which is a significant factor in showing that a reasonable officer would considerthe action constitutional. CP at 616. Stated another way, this is a finding that the officers were acting within the scope oftheir employment. The evidence presented in federal court did not show that the officers acted outside the scope oftheir employment and Club Level has notpresented

4 The fourth contention, an alleged equal protection violation, was withdrawn by the plaintiffs. 12No. 32830-9-III Club Level, Inc. et. al., v. City ofWenatchee, etal.

any new evidence in this proceeding. Thus, the trial court correctly applied collateral estoppel to this claim. Instead ofaddressing the trial court's rationale, the appellants have simply attempted to argue thatthis cause ofaction does apply to the facts ofthis case. They made the same argument in their appeal from the Thurston County ruling. There, Division Two concluded thatthis claimwas notestablished with respect to the WSLCB. Club Level, slip op. at

## *11. Although that analysis dealt with different actors and cannot be the basis for applying collateral estoppel in this case, we do agree with that reading of the evidence. As with the actions ofthe WSLCB employees, the claims made againstthe WPD defendants all related to actions taken by them in the scope oftheir employment. WPD would have been vicariously liable for those actions, ifproven. It therefore cannot be separately liable for a failure to supervise tortious behavior outside the scope of employment. LaPlant, 162 Wn. App. at 480; Gilliam, 89 Wn. App. at 584-585. No such behavior was established by the evidence. The trial court correctly determined that the federal court had found the actions within the scope ofemployment and thus properly applied collateral estoppel to this claim. As with the related claim made in the Thurston County appeal, the evidence never established any tortious behavior outside the scope ofemployment thatcould possibly have made the employer liable for failure to supervise. Forboth reasons, this claimwas correctly dismissed. 13No. 32830-9-111 Club Level, Inc. et. ai., v. City ofWenatchee, etal. Defamation andFalse Light Claims The remaining claims ofdefamation and false light were resolved together by the trial court on the basis that there was no evidencethat defendants made any false statements and no evidence that Mr. Fila stated under oath that the statements in the policereport were false. CP at 1064. We likewise treat these two claims as one and again agree with the trial court. "When a defendant in a defamation action moves for summaryjudgment, the plaintiffhas the burden ofestablishing a prima facie case on all four elements of defamation: falsity, an unprivileged communication, fault, and damages." LaMon v. Butler, 112 Wn.2d 193, 197,770P.2d 1027 (1989). This must consist ofspecific, material facts, rather than mere conclusory statements. Id. (citingHerron 

### v. Tribune Publ'g Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987)). Here, the trial court dismissed the defamation claim because Mr. Fila failed to present any evidence offalsity. Our search ofthe record reveals no such evidence, nor does Mr. Fila on appeal pointto any such evidence in the record. Because he has not established a prima facie case ofdefamation, the trial courtproperly dismissed his claim

on summaryjudgment. The false light claim suffers from a similar infirmity. A false light claim arises when a personpublishes statements that place another in a false light if(1) the false light would be highly offensive and (2) the publisherknew oforrecklessly disregarded the 14No. 32830-9-II1 

### Club Level, Inc. et. al., v. 

### City ofWenatchee, etal. falsity ofthe publication and the subsequent false light it wouldplace the other in. 

### Eastwoodv. Cascade Broad. Co., 106 Wn.2d 466,470-471,722 P.2d 1295 (1986). "So, like defamation, false light claims require a showing offalsity and knowledge of, or reckless disregard for, that falsity." 

### Corey v. 

### Pierce County, 154 Wn. App. 752, 762,225 P.3d 367 (2010). As with the defamation claim, thetrial courtproperly dismissed Mr. Fila's false light claim because he has providedno evidence offalsity. Furthermore, he has not provided any evidence that the police knew or even suspected that any ofthe statements

were false orportrayed him in a false light. Forbothreasons this claim failed. The trial judge correctly dismissed the contention. The trial courtproperly granted summaryjudgmentto the defendants. That order is affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW2.06.040.

WE CONCUR:

Fearm J. Siddoway, C.J. 15