### 1" fL.ED 

## COURT OFA "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UNPUBLISHED OPINION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 summaryjudgmenton Gregory R.Hart's defamation claim againstthe City. Hart cross appeals, claiming that the trial court erred in granting summaryjudgment 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 ofsummaryjudgment 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 tookpossession ofa 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 mischiefand theft. 

### The City charged Hart with one count ofthird degree malicious mischiefand one count
of third degree theft. Lakewood Municipal Court determined that the City produced sufficient
evidence of probable cause to support the charges. 

### Ajury found Hart not guilty ofthird 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 oftitle" 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 ajury 

### acquitting Hart ofthe 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. Hartbased 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 isthat Mr.Harthas astrong dislike oflawenforcement, is very aggressive and irrational, and is known to carry weapons. He also enjoys
2No. 43304 - 4 -II documenting scenes with cameras. 

### I don't know if he's trying to bait [o]fficers into something orjustparanoid, butplease use caution when contacting. CP at 78. 

### While Hart did not dispute the criminal historythat Sergeant Unfred chronicled inthe 

### memo,he claimedthe phrase "very aggressive and irrational" was defamatory.

The 

### City moved to dismiss Hart' s claims on summaryjudgment. 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 matteroflaw,but it denied the City's motionto dismissthe 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 atthetrial court,the parties stipulated to staytheir 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, claimingthatthetrial court erred in granting summaryjudgmentto 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 summaryjudgmentwhere the pleadings 3No. 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 summaryjudgment, we consider solely the issues and evidence the parties called to the trial court's attention on the 

### summaryjudgment motion. RAP 9.12. DEFAMATION 

### The City claims that the trial court erred when it did not grant summaryjudgment 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 Cityasserts thatthe trial court should have dismissed Hart's defamation claim on 

### summaryjudgment 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 

### Cityis correct. The degree offault required byprivate 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 plaintiffmust showthatthe 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 offact or opinion, or whether the communication was false.No. 43304 - 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 Taskettv. 

### KING Broadcasting Corp., 86 Wn.2d 439,445, 546 P.2d 81 ( 1976)). Here, the City claims that "the record is devoid ofany 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 "veryaggressive and irrational." 

### The record is devoid ofany evidence thatwould 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; atthe time ofarrest, he was 

### carrying a firearm and knife, and within an hour ofhis 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 thatthe City defamed him by saying he is dangerous or athreat to law enforcement. 5No. 43304 - 4 -II

enforcement' s lack of focus on prostitution. 

### Finally, Sergeant Unfred's memo detailed that 

### during a more recent arrest, Harttook pictures ofofficers as they contacted him andthat 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 summaryjudgment. See Mark,96 Wn.2d at 483. B. QUALIFIED PRIVILEGE 

### The City also asserts thatthe 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 ofthe statement's falsity and
2No. 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 inthe preceding section, Hartdoes
not demonstrate that Sergeant Unfred made a false statement. 

### Accordingly, Hart does not establish aprimafacie defamation case. See Woody, 146 Wn.App. at21.

Hart contends that Sergeant Unfred' s statement characterizing Hart as " very aggressive and irrational" went "beyond the scope ofwhat 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 thatthe record does not support Sergeant Unfred's characterization of Hart. 

### And advising fellow police officers ofHart's propensity to carry and brandish firearms and use video cameras does not demonstrate a personal animus against Hart, but rather provides officers 

### with informationto help them betterpreparethemselvesto safelyperformtheirduties. 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 ofthe allegations and consequently discontinued their relationships with Hart. Here, the record demonstrates that Kilponen learned ofthe memo in her capacity as a Fife Police Department employee. Because Kilponen learned of the memo as a 7No. 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 relationshipwith 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, ofwhich [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 

### demonstratethat thecommon interest qualified privilege does notapply. 

### We hold thatthere are no questions offact regarding Sergeant Unfred's absence offault
and the application of the qualified privilege. 

### Accordingly, we hold that the trial court erred in failingto grantthe City's summaryjudgment motion on Hart'sdefamation 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 offact existed regarding the City - owned gate that the City accused HartNo. 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 ofthe plaintiff 

### orwere abandoned, and (5) the plaintiffsuffered injury or damage as a result ofthe prosecution. Hanson v. City ofSnohomish, 121 Wn.2d 552, 558, 852 P.2d 295 ( 1993). Aprosecuting attorney, acting in aquasi-judicial capacity, is, as a matterofpublic 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 immunityforboth the state andthe countyforacts ofjudicial
and quasi-judicial officers in the performance ofthe duties which rest upon them." Creelman, 67 

### Wn.2dat 885. Here,becausethe Cityprosecutor charged Hartwith malicious mischiefwithin its official capacity in its performance ofitsduties, the City enjoys immunityfrom Hart's malicious prosecution claim. See Creelman, 67 Wn.2d at 884. Moreover, before trial,the municipal trial court found probable cause to allowthe 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 ofit,and Harttold anotherwitnessthat he had pulled downthe gate. Officersthenfound and recovered the gate from Hart's property afterhe admittedtaking it. Finally, evidence shows that the City maintained the gate at that location. Given this evidence, 0No. 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. ofE. Wash., 145 Wn.2d 233, 242, 35 P.3d 1158 (2001) ( quoting Birklid v. The 

### Boeing Co., 127 Wn.2d 853, 867, 904 P.2d 278 ( 1995)). 

### Liability for intentional infliction ofemotional distress exists when conduct is so outrageous in character and so extreme in degree; as to go beyond all 

### possible bounds ofdecency, andto be regarded as atrocious and utterly intolerable in acivilized 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 forthe 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 ofthe parties; and (e) the actor must be aware thatthere is a 10No. 43304 - 4 -II 

### high probability that his conduct will cause severe emotional distress and he must proceed in a conscious disregard ofit. 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 misdemeanortheft and malicious mischiefcounts when it lacked any evidence to sustain the charges. This logic fails to considerthat, 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 

### ofemotional distress claim fails. Accordingly,we affirm thetrial court's dismissal ofthis 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 ofthe 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.