IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON SUZANNE L WEINSTOCK, an individual, Appellant,

v. ALAMO RENTAL (US), INC., a Delaware corporation; ALAMO FINANCING LP., a Delaware limited partnership; MARVIN L. BRYANT,an individual; LARRY PETERSON, an individual, Respondents. No. 67864-7-1 DIVISION ONE UNPUBLISHED OPINION

FILED: April 22, 2013 23- 

### Grosse, J. —Washington's anti-SLAPP (strategic lawsuits against putsfip 

### participation) statute, RCW 4.24.510, grants qualified immunity from civil liabi^ to a person who communicates a complaintorinformation to any branch oflocal government. Here, the defendants' reporting an overdue rental car as stolen to the appropriate police authority falls within the protected activity, shifting the burden to the plaintiff to demonstrate a reasonable likelihood that she would 

### prevail in the litigation. This the plaintiffwas unable to do. Accordingly, weaffirm the trial court's summary judgment dismissal and affirm its award of $10,000 in mandatory statutorydamages and attorneyfees. FACTS On October6, 2008, Suzanne Weinstock rented a Toyota Highlanderfrom 

### Alamo Rental (US), Inc. at the SeaTac location. Weinstock rented the car for
one week ending October 13, 2008, but failed to return the vehicle. Alamo attempted to contact Weinstock, but was unsuccessful. Marvin Bryant, an C/5 0 

### 5°

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-.v>No. 67864-7-1 / 2 

### employee atAlamo, tried to reach Weinstock at the telephone number provided. Bryant was unable to leave a voicemailbecausethe voicemailbox required entry of a pin number, which Weinstock had not provided to Alamo. Additionally, 

### repeated attempts to charge Weinstock's credit card were declined. Alamosent two demand letters by certified mail, both of which were returned as "undeliverable." On November 24, 2008, after receiving permission from his 

### supervisor, Bryantfiled a Rental and Lease Declaration with the Port ofSeattle Police Department reporting Weinstock's failure to return the rental vehicle. 

### Bryant had no further involvement in the investigation by the Port of Seattle police, other than responding toquestions by the investigatingofficer. 

### Larry Peterson was at the Alamo desk when Weinstockfirst rented the
car. Peterson also spoke with Weinstock on November 14, 2008. During that 

### telephone conversation Peterson told Weinstock the car was long overdue, that her credit card had been repeatedly declined, and that she needed to return the 

### vehicleimmediately. When Peterson discovered that Weinstock was on the east coast, he told her to return the vehicle to any Alamo location. Peterson finally 

### agreed to permit her to return the vehicle to SeaTac, but told her she needed to do so no later than November 21, 2008. Peterson told her that failure to return 

### the vehicle by that date would resultin the car being reported stolen. Peterson had no further communication with eitherWeinstock orthe police. 

### Weinstockasserts that she had an agreementwithPeterson to pay the bill with a checkifshe keptthe carpastthe oneweek. Weinstockalso contends that she called Alamo on November 20 from South Dakota where she wasNo. 67864-7-1 / 3 experiencing bad weather and was told by someone at Alamo to drive carefully and take her time. On November 25, 2008, Weinstock was stopped by the police in Skagit Countyfor failure to wear a seatbelt. Weinstock presented the rental agreement, which indicated that the vehicle was to have been returned on October 13, 2008. A vehicle check revealed the car had been reported stolen. Washington State Patrol Trooper Brandon Lee arrested Weinstock. In a search incident to the arrest, Trooper Lee discovered several bags containing items taken from various
hotel rooms. On December 2, 2008, Weinstock was charged with possession of a stolen motorvehicle pursuantto RCW 9A.56.068. The information was amended to include a gross misdemeanor, third degree possession of stolen property, 

### apparently pertaining to the hotel property found by the trooper. Those criminal 

### charges weresubsequentlydropped.1 While the criminal charges were pending, Weinstock brought a civil action against Alamo claiming defamation, outrage, invasion of privacy, and a violation of the Consumer Protection Act, chapter 19.86 RCW. Subsequently, on the defendants' motion, the trial court granted summary judgment dismissal of Weinstock's claims because they all arose from Alamo's communication to the Port of Seattle police. The court also awarded Alamo $10,000 in mandatory statutorydamages and attorneyfees. Weinstock appeals.


### 1Weinstock has moved this court to takejudicial notice of the dismissal of the criminal case, which occurred afterthe trial court issued its ruling. We decline to do so as it has no relevance to the matter before us.No. 67864-7-1/4
ANALYSIS 

### RCW 4.24.510 grants immunity from civil liability to a person who communicates a complaint or information to any branch or agency of federal, 

### state, orlocal government.2 Such immunity extends to "claims based upon the communication to the agency or organization regarding any matter reasonably of
concern to that agency or organization." RCW4.24.510. Inenacting this statute,


### our legislature recognized that "[i]information provided by citizens concerning 

### potential wrongdoing is vital to effective law enforcement" and that "the threat of
a civil action fordamages can act as a deterrent to citizens who wish to report" such information. RCW 4.24.500. "The legislature enacted RCW 4.24.510 to 

## encourage the reporting of potential wrongdoing to governmental entities."3 Former RCW 4.24.510 (1999) contained a requirement that the 

### communication be made in good faith. That language was eliminated in a 2002 amendment, and the sentence allowing statutory damages to be denied on a 

### finding of badfaith was added.4 Nevertheless, Weinstock argues that theanti2RCW4.24.510provides in pertinentpart: A person who communicates a complaint or information to any 

### branch or agency of federal, state, or local government,
... is immune from civil liabilityfor claims based upon the communication 

### to the agency or organization regarding any matter reasonably of concern to that agency or organization. A person prevailing upon the defense provided for in this section is entitled to recover 

### expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall receive statutory damages often thousand dollars. Statutory damages may be denied ifthe court 

### finds that the complaint or information was communicated in bad faith. 

### 3 Gontmakher v. The City of Bellevue. 120 Wn. App. 365, 366, 85 P.3d 926 

### (2004). 4LawsOF 2002, ch. 232, §2.No. 67864-7-1 / 5 SLAPP statute still requires good faith because RCW 4.24.500 states, "The purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies." This precise issue was 

### decided in Bailey v. State.5 There, the courtdetermined that there is no good 

### faith requirement in RCW 4.24.510.6 The Bailey court reasoned that the 2002 amendments brought "'Washington law
... in line with [United States Supreme Court] decisions which recognize! ] that the United States Constitution protects advocacy to government, regardless of motive, so long as it is designed to have 

### some effect on government decision making.'"7 Further, it applied rules of statutory construction that a later enactment prevails if it is more specific. RCW 4.24.510 is more specific than RCW 4.24.500. Moreover, as the Bailey court 

### stated, policystatementsdonotgiverisetoenforceablerightsandduties.8 Weinstockargues that factual disputes remain. But it is undisputedthat all ofWeinstock's claims against Alamo arise from Alamo's reporting the rental car
as stolen when Weinstock had failed to return it some 43 days after the one

### week rental period expired. Even if we assume all ofWeinstock's assertions in her declarations are true and admissible, herclaims are still barred. There is no dispute thatWeinstockdid not return the carby November21, 

### 2008, pursuant to her "special agreement" with the manager. The car had still not been returned by November 24, 2008, when Alamo filed the report. There


### 5147Wn. App. 251,191 P.3d 1285(2008). 6Bailey. 147Wn. App at 262. 7Bailey, 147 Wn. App. at 262 (some alterations in original) (quoting Laws of 2002, ch. 232 § 1). 

### 8Bailev. 147Wn. App. at262-63.No. 67864-7-1 / 6


### was no business record reflecting a telephone call from Weinstock or that
someone from Alamo told Weinstock to take her time when she allegedly 

### reported bad driving conditions in South Dakota.9 There is no evidencethat the later report by Alamo personnel to the police that the car had not been returned


### was malicious. In Dang v. Ehredt,10 this court held that bank employees were immunefrom liabilityfor claims arisingfrom theirconductin contacting police and retaining the driver's license of a bank customer whom they suspected of fraud. This immunity existed even though the bank customer was later cleared of any wrongdoing. Here, the report on Weinstock's failure to return the rental car is similarly a matter "reasonably ofconcern" to the police. 

### Weinstock arguesthat Bryant's communication to the police is not covered by the anti-SLAPP statute because itcommunicated "a matter of purely private concern, unrelated to any matter of political, social, or other concern to the 

### community." Thisargumentwas rejected inBailey, where the courtstated: [T]heterms "to influence a government action or outcome" and the terms "public interest or social significance" are not contained in RCW 4.24.510. These terms are contained in the legislative notes on the intent of the 2002 amendment. Laws of 2002, ch. 232, § <\ [in 

### Under RCW 4.24.510, the only predicate to immunity is that the matter be of reasonable concern to the agency. Accordingly, both Alamo and its employees
are immune from liability arising from the communicationstothe police. 

### 9 Weinstock's affidavits are self-serving hearsay and conclusory in nature. Warner v. Regent Assisted Living. 132 Wn. App. 126, 135-36, 130 P.3d 865 

### (2006) (a court cannot consider inadmissible evidence, when ruling on a summaryjudgmentmotion.) 

### 1095Wn. App. 670,681-85, 977 P.2d 29(1999). 11 Bailev. 147Wn. App. at 263.No. 67864-7-1 / 7 

### Weinstock next argues that the statute denies her constitutional right to have access to the courts. When the constitutionality of a statute is challenged, the statute is presumed to be constitutional and the burden is on the party challenging the statute to prove its unconstitutionally beyond a reasonable doubt.12 The 2002 amendments were made to reflect that the United States 

### Constitution protects advocacytogovernment, regardless ofcontentormotive.13 Indeed, the United States Supreme Court has held that petitions to the government are protected regardless of intent or purpose, so long as the 

### communications are intended to influence government decisions.14 Weinstock has not met herburden of proof. Statutory Penalty of$10,000 A party that defeats a lawsuit pursuant to RCW 4.24.510 is entitled to $10,000 in statutory damages. However, the trial court may disallow the 

### damages ifitfinds that theparty actedin badfaith.15 Thetrial court'sdecisionto permit those damages is discretionary and will be reviewed for an abuse of discretion. There was no evidence of bad faith upon the part of Alamo or its employees. Alamo was properly awarded the $10,000.


### 12Tunstallv.Bergeson. 141 Wn.2d 201, 220, 5P.3d 691 (2000). 13 Lawsof2002, ch. 232, §2. 14See, e^, CityofColumbiav. Omni OutdoorAdver., Inc., 499U.S. 365, 369, 111 S. Ct. 1344, 113 L Ed. 2d 382 (1991): ProfIReal Estate Investors. Inc. v. Columbia Pictures Indus.. Inc.. 508 U.S. 49. 49-60. 113 S. Ct. 1920, 123 L.Ed. 2d 611 (1993). 

### 15 RCW 4.24.510 provides that the person prevailing "shall receive statutory damages often thousand dollars [unless]... the courtfinds thatthe complaint or information was communicated in bad faith."No. 67864-7-1 / 8 Attorney Fees Weinstock argues that the attorney fees awarded were not properly segregated and were not reasonable. Washington permits a party to recover 

### attorney fees under a statute, contract, or some well-recognized principle of 

### equity.16 The appellate court reviews attorney fee awards made pursuantto a statute forabuse ofdiscretion.17 Here, each of Weinstock's claims arose from the initial action ofAlamo's reportto the police. As the prevailing party, Alamo is entitled to attorneyfees. Weinstock argues that some ofthe charges in the billing statements are seemingly not related to the RCW4.24.510 defense. The amount ofthe attorney 

### fee award is discretionary and will be overturned only when the court's decision is manifestly unreasonable or based on untenable grounds. Defense counsel submitted detailed records for the time spent working on this matter. The court 

### specifically found that the hourly rates submitted for the various people involved in the defense of this suit were "clearly below [the] market rate" and thus did not merit further discussion. The court reduced Alamo's request for attorney fees from $49,543.25 to $39,000.00 and the costs from $1,647.35 to $149.90 as those 

### reasonably associated withdefending the suit. It is clearfromthese actions that the court undertook a reasoned analysis in awarding the fees and costs involved inthe suit. The amount awarded was properly segregated from the total amount

16 Torgerson v. One Lincoln Tower. LLC. 166 Wn.2d 510, 525, 210 P.3d 318 

### (2009) (citing Quality Food Ctrs. v. MarvJewell T. LLC. 134 Wn. App. 814, 817, 142 P.3d 206 (2006)). 17 Humphrey Indus.. Ltd. v. Clav Street Assocs.. LLC. 170 Wn.2d 495, 506, 242 P.3d 846 (2010).
8No. 67864-7-1 / 9 offees incurred. Further, the amount awarded was supported by detailed billing statements and reviewed by the trial court. There is a sufficient record for this courtto supportthe findings and conclusions. Because the statute authorizes attorney fees, and Alamo is the prevailing party, Alamo is entitled to such fees on appeal. Affirmed. 

## ^_ J umA..—MWE CONCUR:


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