1" fL.ED

COURT OF A " rE,' LS

DIVISIO 7

JAN 4 AN -: 26

5 E O lil - TO ?i

BY

O T

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

GREGORY R. HART, 

Respondent /Cross - Appellant, 

CITY OF LAKEWOOD, a municipal

corporation, 

Appellant /Cross - Respondent, 

CITY OF LAKEWOOD POLICE

DEPARTMENT, a municipal corporation; and

CITY OF LAKEWOOD PARKS

DEPARTMENT, a municipal corporation, 

Defendants. 

No. 43304-4- 11

UNPUBLISHED OPINION

JOHANSON, A.C. J. — The city of Lakewood ( City) appeals from the trial court' s order

denying summary judgment on Gregory R. Hart' s defamation claim against the City. Hart cross

appeals, claiming that the trial court erred in granting summary judgment to the City on Hart' s

malicious prosecution and intentional infliction of emotional distress claims against the City. 

We reverse the trial court' s denial of summary judgment on the defamation claim because Hart

failed to establish a prima facie defamation case against the City. We affirm the trial court' s

dismissal of Hart' s malicious prosecution and intentional infliction of emotional distress claims

because Hart also failed to establish prima facie cases on those claims. 
No. 43304 -4 -II

FACTS

In May 2007, Hart removed and took possession of a City -owned gate from an area near

a Lakewood park. After a City employee reported that Hart was damaging and dismantling the

gate, Lakewood police officers responded and arrested Hart for malicious mischief and theft. 

The City charged Hart with one count of third degree malicious mischief and one count

of third degree theft. Lakewood Municipal Court determined that the City produced sufficient

evidence of probable cause to support the charges. A jury found Hart not guilty of third degree

malicious mischief and guilty of third degree theft. Hart appealed his conviction to the superior

court, which found that the municipal trial court had erred in not offering a " claim of title" jury

instruction relating to the gate' s ownership. Clerk' s Papers ( CP) at 69. Accordingly, the

superior court remanded the matter to the municipal court for retrial, which resulted in a jury

acquitting Hart of the third degree theft. 

Following his acquittal, Hart sued the City in superior court, claiming ( 1) malicious

prosecution, ( 2) defamation, and ( 3) intentional and negligent infliction of emotional distress. 

Hart asserted that as a result of his prosecution related to the gate incident, he suffered harm to

his professional reputation and his relationship with his domestic partner, Dianna Kilponen. 

Hart based his defamation claim on an undated " Officer Safety Info" memorandum about

Hart that Lakewood Police Sergeant John Unfred circulated to the Fife Police Department' s

Investigations Division sometime after Hart' s gate incident. CP at 78. Kilponen worked for the

Fife Police Department and read the memo. It detailed Hart' s substantial criminal history and his

interactions with law enforcement personnel. The one -page memo concluded, 

The bottom line is that Mr. Hart has a strong dislike of law enforcement, is

very aggressive and irrational, and is known to carry weapons. He also enjoys

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No. 43304 -4 -II

documenting scenes with cameras. I don' t know if he' s trying to bait [ o] fficers

into something or just paranoid, but please use caution when contacting. 

CP at 78. While Hart did not dispute the criminal history that Sergeant Unfred chronicled in the

memo, he claimed the phrase " very aggressive and irrational" was defamatory. 

The City moved to dismiss Hart' s claims on summary judgment. Hart conceded that he

had no claim for negligent infliction of emotional distress, but he opposed the City' s motion

relating to the remaining claims. The trial court granted the City' s motion in part, dismissing

Hart' s malicious prosecution, and intentional and negligent infliction of emotional distress

claims as a matter of law, but it denied the City' s motion to dismiss the defamation claim.. 

The City then asked the trial court to reconsider its order regarding Hart' s defamation

claim. The trial court denied the reconsideration motion, declining to rule as a matter of law

whether Sergeant Unfred' s characterization of Hart as " very aggressive and irrational" was a

factual statement or opinion. 

Following these proceedings at the trial court, the parties stipulated to stay their litigation

pending outcome of their appeals. The City appeals the trial court' s denial of its summary

judgment and reconsideration motions that would have dismissed Hart' s defamation claim. Hart

cross appeals, claiming that the trial court erred in granting summary judgment to the City on his

malicious prosecution and intentional infliction of emotional distress claims. - We granted

discretionary review. 

ANALYSIS

We review summary judgment orders de novo, viewing the facts in the light most

favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d

16, 26, 109 P. 3d 805 ( 2005). Trial courts properly grant summary judgment where the pleadings

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No. 43304 -4 -II

and affidavits show no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. CR 56( c). When reviewing an order on summary judgment, we

consider solely the issues and evidence the parties called to the trial court' s attention on the

summary judgment motion. RAP 9. 12. 

DEFAMATION

The City claims that the trial court erred when it did not grant summary judgment to

dismiss Hart' s defamation claim. Even assuming, without deciding, that Sergeant Unfred' s

words constituted an actionable factual statement and not an opinion, Hart failed to establish that

the City knew the alleged defamatory statement was false; and the common interest qualified

privilege applies to bar Hart' s defamation claim.' 

A defamation plaintiff must establish four essential elements to recover for a defamation

claim: ( 1) falsity, (2) an unprivileged communication to a third party, ( 3) fault, and ( 4) damages. 

Bender v. City ofSeattle, 99 Wn.2d 582, 599, 664 P.2d 492 ( 1983). 

A. FAULT

The City asserts that the trial court should have dismissed Hart' s defamation claim on

summary judgment because he failed to establish the City' s fault by presenting evidence that

Sergeant Unfred knew or should have known the alleged defamatory statement was false. The

City is correct. The degree of fault required by private figures alleging defamation is negligence. 

Mark v. Seattle Times, 96 Wn.2d 473, 483, 635 P. 2d 1081 ( 1981), cent. denied, 457 U.S. 1124

1982). Thus, a plaintiff must show that the person making a defamatory statement knew, or in

1 Because we conclude that Hart fails to establish fault or that the common interest qualified

privilege does not apply, we decline to address whether Sergeant Unfred' s communication was a

statement of fact or opinion, or whether the communication was false. 
No. 43 3 04 -4 -II

the exercise of reasonable care, should have known that the statement was false or would have

created a false impression in some material respect. Mark, 96 Wn.2d at 483 ( quoting Taskett v. 

KING Broadcasting Corp., 86 Wn.2d 439, 445, 546 P.2d 81 ( 1976)). 

Here, the City claims that " the record is devoid of any evidence" to show that Sergeant

Unfred knew or should have known that his characterization of Hart as " very aggressive and

irrational" was false or created a false impression. Br. of Appellant at 15. To rebut this

argument, Hart states that he " has cited numerous facts and statements within the record showing

that there is simply no evidence that he is dangerous or a threat to law enforcement. "2 Br. of

Resp' t /Cross - Appellant at 20. But in his brief, Hart does not cite any facts or statements to

support his argument or demonstrate that he was not " very aggressive and irrational." 

The record is devoid of any evidence that would have advised Sergeant Unfred or anyone

else that characterizing Hart as " very aggressive and irrational" was false. To the contrary, the

uncontested facts that Sergeant Unfred cites in his memo prior to characterizing Hart as " very

aggressive and irrational" appear consistent with his characterization. For example, Sergeant

Unfred describes Hart' s prior arrest for pointing a handgun at a motorist. during a road rage

incident, as well as an arrest for shooting motorbike riders with steel ball bearings from a sling

shot. The memo also recounts Hart' s arrest relating to prostitution; at the time of arrest, he was

carrying a firearm and knife, and within an hour of his arrest, he bailed out and returned in his

van, driving back and forth in the area where police were continuing to conduct a prostitution

sting operation. Six months after his prostitution - related arrest, Hart sent police a video of him

confronting a prostitute and client, and the video showed Hart complaining about law

2 Hart does not claim that the City defamed him by saying he is dangerous or a threat to law

enforcement. 

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No. 43304 -4 -II

enforcement' s lack of focus on prostitution. Finally, Sergeant Unfred' s memo detailed that

during a more recent arrest, Hart took pictures of officers as they contacted him and that on the

afternoon that Sergeant Unfred wrote the memo, officers observed Hart flipping them off and

photographing them as they patrolled. 

Based on this evidence of Hart' s road rage aggression and his confrontational attitude, 

coupled with his criticism of police for not targeting prostitution just months after he was

arrested in a prostitution - related matter, one may reasonably conclude that Hart is " very

aggressive and irrational." Because Hart cites to no evidence in the record that rebuts this

characterization, he does not show that Sergeant Unfred knew, or in the exercise of reasonable

care, should have known that his statement was false or would have created a false impression in

some material respect. Thus, Hart failed to establish a prima facie defamation case, and the trial

court erred in not dismissing this claim on summary judgment. See Mark, 96 Wn.2d at 483. 

B. QUALIFIED PRIVILEGE

The City also asserts that the common interest qualified privilege bars Hart' s defamation

claim. Again, the City is correct. 

The common interest qualified privilege applies when the declarant and recipient have a

common interest in the communication' s subject matter. Moe v. Wise, 97 Wn. App. 950, 957 -58, 

989 P. 2d 1148 ( 1999), review denied, 140 Wn.2d 1025 ( 2000). The qualified privilege is

available for persons involved in the same organizations, partnerships, associations or enterprises

who are communicating on matters of common interest. Moe, 97 Wn. App. at 958. And when a

qualified privilege applies, a plaintiff cannot establish a prima facie defamation case unless the

plaintiff clearly and convincingly shows that the declarant knew of the statement' s falsity and

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No. 43304 -4 -II

recklessly disregarded the knowledge. Woody v. Stapp, 146 Wn. App. 16, 21, 189 P. 3d 807

2008). 

Here, Lakewood Police Sergeant Unfred sent a safety memo to the Fife Police

Department to advise it of safety concerns relating to Hart. Because this document was sent

between nearby police departments on a matter of common interest, officer safety relating to a

local citizen, Sergeant Unfred' s memo falls within the scope of the common interest qualified

privilege. See Moe, 97 Wn. App. at 957 -58. And as analyzed in the preceding section, Hart does

not demonstrate that Sergeant Unfred made a false statement. Accordingly, Hart does not

establish a prima facie defamation case. See Woody, 146 Wn. App. at 21. 

Hart contends that Sergeant Unfred' s statement characterizing Hart as " very aggressive

and irrational" went " beyond the scope of what constitutes reasonable police conduct" because it

drew unsupported factual conclusions about Hart and suggested personal animus toward Hart for

exercising his Second Amendment rights to carry firearms and First Amendment rights to

document scenes with cameras. Br. of Resp' t /Cross - Appellant at 21. But as outlined above, 

Hart does not-show that the record does not support Sergeant Unfred' s characterization of Hart. 

And advising fellow police officers of Hart' s propensity to carry and brandish firearms and use

video cameras does not demonstrate a personal animus against Hart, but rather provides officers

with information to help them better prepare themselves to safely perform their duties. 

Hart next contends that the qualified privilege does not apply because the memo was

improperly disseminated such that nonpolice entities, including Kilponen and Hart' s business

associate, Bill Gates, Sr., became aware of the allegations and consequently discontinued their

relationships with Hart. Here, the record demonstrates that Kilponen learned of the memo in her

capacity as a Fife Police Department employee. Because Kilponen learned of the memo as a

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No. 43304 -4 -II

member of a police organization and not as a member of the public, the qualified privilege still

applies. See Moe, 97 Wn. App. at 957 -58. And the record does not demonstrate that Gates

received a copy of the memo and, consequently, discontinued his relationship with Hart. 

According to Hart' s own declaration, Gates no longer assisted him with business ventures

because ' of the City of Lakewood' s conduct of prosecuting [ Hart] for unfounded criminal

misconduct." CP at 134. Thus, Hart admits that Sergeant Unfred' s memo had nothing to do

with Gates severing his business relationship with Hart. 

Finally, Hart cites Kilponen' s declaration in which she stated that Sergeant Unfred' s

memo " was not sent in the usual format for officer notes and information, of which [ she was /is] 

familiar." CP at 148. Thus, Hart asserts that we must infer that the memo was not sent in the

regular course of business but as part of a personal attack on Hart. Hart, however, does not

establish how Sergeant Unfred submitted this safety memo to the Fife Police Department such

that the common interest qualified privilege would not apply. And he offers no evidence to

demonstrate that Sergeant Unfred held a personal animus against Hart. Again, Hart does not

demonstrate that the common interest qualified privilege does not apply. 

We hold that there are no questions of fact regarding Sergeant Unfred' s absence of fault

and the application of the qualified privilege. Accordingly, we hold that the trial court erred in

failing to grant the City' s summary judgment motion on Hart' s defamation claim. 

CROSS APPEAL

MALICIOUS PROSECUTION

Hart claims that the trial court erred in dismissing his malicious prosecution claim

because the City had no evidence to support its malicious mischief charge against Hart and

because a material issue of fact existed regarding the City -owned gate that the City accused Hart
No. 43304-4- 11

of damaging and stealing. But the City is entitled to immunity in initiating prosecutions, and it

had probable cause to prosecute Hart, thus barring Hart' s malicious prosecution claim. 

To maintain a malicious prosecution claim, a plaintiff must plead and establish that ( 1) 

the defendant instituted or continued the prosecution, ( 2) there was want of probable cause for

the institution or continuation of the prosecution; ( 3) the defendant instituted or continued the

prosecution through malice, (4) the proceedings terminated on the merits in favor of the plaintiff

or were abandoned, and ( 5) the plaintiff suffered injury or damage as a result of the prosecution. 

Hanson v. City ofSnohomish, 121 Wn.2d 552, 558, 852 P. 2d 295 ( 1993). 

A prosecuting attorney, acting in a quasi-judicial capacity, is, as a matter of public policy, 

immune from liability for acts done in her or his official capacity. Creelman v. Svenning, 67

Wn.2d 882, 884, 410 P. 2d 606 ( 1966). " The public policy which requires immunity for the

prosecuting attorney, also requires immunity for both the state and the county for acts ofjudicial

and quasi-judicial officers in the performance of the duties which rest upon them." Creelman, 67

Wn.2d at 885. Here, because the City prosecutor charged Hart with malicious mischief within its

official capacity in its performance of its duties, the City enjoys immunity from Hart' s malicious

prosecution claim. See Creelman, 67 Wn.2d at 884. 

Moreover, before trial, the municipal trial court found probable cause to allow the case to

be tried. Evidence supports this finding. Specifically, Lakewood police received a 911 call

reporting " vandalism in progress" that involved " damaging" and " dismantling" a gate leading

onto City property. CP at 174. A witness told police that Hart had bragged to neighbors about

breaking the gate and taking part of it, and Hart told another witness that he had pulled down the

gate. Officers then found and recovered the gate from Hart' s property after he admitted taking it. 

Finally, evidence shows that the City maintained the gate at that location. Given this evidence, 

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No. 43304 -4 -II

the trial court reasonably found that the City established probable cause that Hart committed

third degree malicious mischief. 

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Finally, Hart asserts that the trial court erred when it dismissed his intentional infliction

of emotional distress claim. But the trial court properly denied this claim because Hart failed to

establish a prima facie case. 

To recover for intentional infliction of emotional distress, a plaintiff must prove ( 1) 

extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and

3) actual severe emotional distress on the plaintiff' s part. Snyder v. Med. Serv. Corp. of E. 

Wash., 145 Wn.2d 233, 242, 35 P. 3d 1158 ( 200 1) ( quoting Birklid v. The Boeing Co., 127 Wn.2d

853, 867, 904 P. 2d 278 ( 1995)). Liability for intentional infliction of emotional distress exists

when conduct is so outrageous in character and so extreme in degree; as to go beyond all

possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community. Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P. 2d 291 ( 1975). Whether the conduct

complained of -is sufficiently extreme to result in liability is a preliminary question for the trial

court before a claim may go to the jury. Pettis v. State, 98 Wn. App. 553, 563, 990 P.2d 453

1999). 

To determine whether conduct is sufficiently extreme, courts consider the following: ( a) 

the position occupied by the defendant; ( b) whether the plaintiff was peculiarly susceptible to

emotional distress, and if the defendant knew this fact; ( c) whether the defendant' s conduct may

have been privileged under the circumstances; ( d) the degree of emotional distress caused by a

party must be severe as opposed to a mere annoyance, inconvenience, or embarrassment which

normally occurs in a confrontation of the parties; and ( e) the actor must be aware that there is a

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high probability that his conduct will cause severe emotional distress and he must proceed in a

conscious disregard of it. Birklid, 127 Wn.2d at 867 ( quoting Phillips v. Hardwick, 29 Wn. App. 

382, 388, 628 P. 2d 506 ( 1981)). 

Here, Hart asserts that the City' s outrageous conduct consisted of charging and trying

Hart on misdemeanor theft and malicious mischief counts when it lacked any evidence to sustain

the charges. This logic fails to consider that, as analyzed above, the City' s evidence sufficiently

established probable cause that Hart committed these crimes. Therefore, because the City had

probable cause to pursue these criminal charges, it was not conducting itself extremely or

outrageously. Absent a showing of extreme or outrageous conduct, Hart' s intentional infliction

of emotional distress claim fails. Accordingly, we affirm the trial court' s dismissal of this claim. 

We reverse the trial court' s denial of summary judgment on Hart' s defamation claim

because Hart failed to establish a prima facie defamation case. We affirm the trial court' s

dismissal of Hart' s malicious prosecution and intentional infliction of emotional distress claims

because Hart failed to establish prima facie cases on those claims. 

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. 

We concur: 

Bn R' N, E

T • -i 

11

HANSON, A.C. J.