IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON TANYA L. BEVAN, ] CZZ :3~

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## CLINTandANGELAMEYERS, j en C" •~" -'- husband and wife, ; Appellants. ] FILED: Auqust 25. 2014 Spearman, C.J.

— This case arises from a dispute between neighbors

over a shared property boundary. The respondent, Tanya Bevan, sued Clint and Angela Meyers seeking, among otherthings, to quiettitle inthe disputed property. The Meyers counterclaimed for damages, to quiettitle, and for 

### trespass. Bevan brought a special motion to strike the Meyers' counterclaim for damages underWashington's Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, RCW 4.24.525. Bevan alleged that the counterclaim violated the anti-SLAPP statute because itwas based on an allegation that she had reported information to the Department ofPublic Health-Seattle & King 

### County (KCHD). The Meyers opposed the motion and attempted a second amendment to their counterclaim, this time omitting any explicit reference to 

### Bevan's report. The trial court granted Bevan's motion and struck the counterclaim for damages. The trial court also awarded Bevan attorney fees and 

### costs of nearly $19,000 and imposed a statutory penalty of$10,000. We affirm.No. 69505-3-1 / 2
FACTS 

### The Meyers and Bevan own adjacent parcels in rural King County, near 

### Duvall, Washington. The Meyers contend that the shared boundary between the properties was commonly understood to be marked by the end of the tree growth on the western edge of the Meyers' property, where Bevan had clear-cut her parcel, leaving a line ofstumps on the eastern edge of her property. Bevan 

### disputes this contention, arguing that the boundary is actuallyas determined by a survey commissioned by her during the summer and fall of2011. 

### The Meyers planned tobuild a new home on their parcel. In anticipation of the new residence, the Meyers installed a well and septic system which were 

### pending approval byKCHD. TheMeyers never obtained a survey todetermine whethertheir home, well, and septic system were properly located on their 

### property. In October2009, the Meyers obtained a building permitfrom King County and began construction. 

### During the 2011 survey of Bevan'sproperties, the surveyordetermined 

### that the Meyers' well was located approximately 18feet on Bevan's side ofthe property line. Additionally, the location ofthewell failed to accountforthe 

### required 100-footwellhead radius from adjoining property lines. As a result ofthe survey, Bevan alsobelieved that theMeyers haddestroyed trees, stockpiled building materials, and removed survey stakes on her side ofthe property line without her permission. 

### On September 1,2011, Bevan'ssurveyore-mailed Ken Elliott, registered sanitarian at KCHD, and notified him that, based on the survey, the Meyers'wellNo. 69505-3-1 / 3 had been installed on Bevan's property. On November4, 2011, shortly after 

### receiving a copy ofthe recorded survey, KCHD notified the Meyers that it would not grantfinal approval for their well. The notice explained that the disapproval

was because, according to Bevan's survey, the location ofthe "off-site well has 

### not been authorized by either Public Health, or the neighbor [Bevan]." Clerk's Papers (CP) at 106. KCHD also denied the permit for the Meyers' septic system 

### because the inputwas not from an approved water source. Although advised of their right to appeal the permit denials, the Meyers did not do so. On March 27, 2012, Bevan filed this lawsuit againstthe Meyers, alleging 

### that they had felledtrees, dug a well, and otherwise trespassed upon land that 

### she owned. Bevan soughtto quiet title in the disputed property and an award of 

### damages. The Meyers answered on July 6, 2012, denying Bevan's claims and asserting various defenses. They also asserted three counterclaims: for 

### damages arising from Bevan's interferencewith their use and enjoyment of their property; to quiettitle in the disputedproperty; and fortrespass and associated damages. Later that same day, the Meyersfiled theirfirst amended answer and
counterclaim. 

### Bevan filed a special motion to strike the Meyers' counterclaim for 

### damages underRCW4.24.525, the anti-SLAPP statute.1 In hermotion, Bevan asserted that the report to KCHD was an action involving public participation and

1Bevan's motion to strike focused on the Meyers' claim fordamages resulting from Bevan's allegedinterference with their use andenjoymentof theirproperty. The damages the Meyers alleged to haveresulted from theclaim oftrespass were notin dispute as itrelates to the motion to strike.No. 69505-3-1/4 petition and, because the Meyers' counterclaim was based on this protected act, it violated the anti-SLAPP statute.2 In response, the Meyers asserted that the anti-SLAPP statute does not 

### apply to this private land dispute. They also argued that Bevan failed to establish that the Meyers' counterclaim was based on an action involving public participation and petition because the gravamen oftheir counterclaim for 

### damages was based on Bevan's interference withthe quiet use and enjoyment of their property, not the report to KCHD. Consistentwith this argument, the Meyers filed a second amended answer and counterclaim that removed any reference to 

### the report to KCHD. Bevan moved to strike the pleading because the Meyers 

### filed it without obtaining the permission of the trial court as required by CR 15(a). The trial court reserved ruling on the motion to strike, but modified its order 

### striking the counterclaim in the event the pleading was later accepted. Instead of striking specificparagraphs from the first amended counterclaim, the court struck the counterclaim fordamages "insofaras they [sic] pertain to communications 

### with [KCHD]."3 Verbatim Report of Proceedings at 31-32; CP at 144. Lastly, the

2In her declaration in support of the motion to strike, Bevan denied that she made the report to KCHD or directed anyone else to do so. 3 In a Statement ofAdditional Authority, the MeyersciteHennev. City ofYakima, 177 Wn. App. 583, 313P.3d 1188(2013V review granted. 179Wn.2d 1022(2014),in supportoftheir argumentthat thetrial courterredin granting Bevan'smotion because theirsecond amended counterclaim fordamages removed any express reference to Bevan's report to the KCHD. The case is inapposite because, in Henne, the amended complaintwas properly before thecourt. Here, the Meyers' second amended counterclaim had not been accepted bythe court and thus was notproperly beforeit. In addition, in Henne, the amended complainteliminated the protected activity as a basis fortheclaims. Here the Meyers' second amendedcounterclaim re characterizes their claim but does not alterthe basis for it—namely, Bevan's report to KCHD.No. 69505-3-1 / 5 Meyers argued they were entitled to a continuance in order to conduct discovery

on the issue of property ownership. On September 28, 2012, the trial court granted Bevan's motion and struck the Meyers' counterclaim for damages. Italso ordered the Meyers to pay Bevan's 

### attorney fees and costs in bringing the motion, and imposed a $10,000 statutory penalty. Almost two months later, Bevan filed a "Motion for Establishment of Costs and Attorney's Fees on Plaintiff's Special Motion to Strike," seeking $18,967.50 infees and $109.69 in costs. CP at 155-62. The Meyers objected 

### thatthis requestfor attorney fees and costs was untimely under CR 54(d)(2). The trial court disagreed and granted Bevan fees and costs as requested. The Meyers appeal. DISCUSSION The anti-SLAPP statute 

### The Washington anti-SLAPP statute is meantto deter meritless suits filed 

### primarily to chill a defendant's exercise of FirstAmendment rights, including the right to petition the governmentfor the redress ofgrievances. RCW4.24.525 (Laws of2010, ch. 118, § 1). The statute authorizes expeditedjudicial review in these cases via special motions to strike. RCW4.24.525(4), (5). We review the 

### grant or denial of an anti-SLAPP special motion de novo. Dillon v. Seattle Deposition Reporters. LLC, 179 Wn. App. 41, 70 n.22, 316 P.3d 1119(2014) 

### (citing Green v. Normandy Park, 137Wn. App. 665, 681, 151 P.3d 1038 (2007)). Special motions to strike underthe anti-SLAPP statute are subjectto a 

### burden-shifting scheme. Toprevail on her special motion, Bevan was required, at
5No. 69505-3-1 / 6 the outset, to show by a preponderance ofthe evidence that the Meyers' 

### counterclaim was based on activity involving public participation and petition.4 RCW4.24.525(2) defines public participation and petition as (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, orjudicial proceeding or other governmental proceeding authorized by law; 

### (b) Any oral statement made, or written statement or other document submitted, in connection with an issue under 

### consideration or review by a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law; 

### (c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or 

### review of an issue in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law; 

### (d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or 

### (e) Anyother lawful conduct infurtherance of the exercise of the constitutional right of free speech in connection with an issue of 

### public concern, orin furtherance of the exercise of the constitutional right ofpetition. 

### Bevan argues that the Meyers' counterclaim fordamages falls within this definition because it is based on the allegation that Bevan reported the Meyers to 

### KCHD. Br. ofResp't at 28. The Meyers contend the anti-SLAPP statute is 

### inapplicable because theircounterclaimfordamages is not based on Bevan's

4 RCW 4.24.525(4)(b) provides: Amoving partybringing a special motion to strike a claim under this subsection has the initialburden of showing by a preponderance of the evidence thatthe claim is based on an action involving public participation and petition. Ifthe moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability ofprevailing on the claim. Ifthe responding party meets this burden, the court shall deny the motion.No. 69505-3-1 / 7 report. They claim the alleged damages were the result of Bevan's interference withtheir property rights when she asserted ownership ofthe disputed property. 

### Indetermining whether a claim or counterclaim5 arises from public participation and petition, we look to the gravamen ofthe claim. City of Seattle v. Egan. 179 Wn. App. 333, 338, 317 P.3d 568 (2014). Forthe anti-SLAPP statute to apply the claim must be '"based on' speech or conduct 'in furtherance ofthe exercise ofthe constitutional right of [petition or] free speech in connection with

an issue ofpublic concern.'" Aronson v. Dog Eat Dog Films. Inc.. 738 F. Supp. 2d 1104, 1110 (W.D. Wash. 2010) (quoting RCW 4.24.525(2)(e)). "Inotherwords, 

### the act underlying the plaintiffs cause, or the act which forms the basis forthe plaintiffs cause ofaction, must itselfhave been an act infurtherance ofthe right offree speech [or petition]." ]d. at 1110-11 (citing Eguilon Enters, v. Consumer Cause. Inc., 29 Cal. 4th 53, 66, 52 P.3d 685 (2002)). A trial court's decision on 

### this showing must be based on the "pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." RCW 4.24.525(4)(c). In Egan. we looked to the source ofthe rights asserted in orderto 

### determine the gravamen of the claim subjectto a special motion to strike. Inthat case, Egan requested records from the city ofSeattle (City) underthe Public

5The Meyers mistakenly rely on Saldivar v. Momah, 145 Wn. App. 365, 387, 186 P.3d 1117 (2008), to argue that counterclaims are notsubjectto the anti-SLAPP statute. The Meyers correctlystate ourholding in Saldivar, butfail to note that the anti-SLAPPstatute has since been amended in 2010. Unlike the version ofthe statute at issue in Saldivar, the current version expressly includes counterclaims inthe class of claims subject to regulation. See RCW 4.24.525(1)(a) (defining "claim" to include a "counterclaim."). Because the 2010 amendment controls this case, we reject the Meyers' argument on this issue.No. 69505-3-1 / 8 

### Records Act (PRA), chapter42.56 RCW. The Cityreleased some ofthe requested records but refused to release others, claiming they were exempt under the statute. Egan disagreed and threatened to sue. The City filed a 

### declaratoryjudgment action against Egan and a motion for a preliminary injunction pursuantto RCW 42.56.540, which authorizes a courtto enjoin production of a public record falling under an exemption. Egan sought dismissal ofthe City's actions under the anti-SLAPP statute, arguing thatthey were based

on a protected activity—namely, his threat to file suit to establish his rights under the PRA. The trial court refused to dismiss the City's motion and Egan appealed. We affirmed the trial court, holding that "although the 'threat' of a suit may 

### have pushed the City to act itwas not the 'gravamen' ofthe underlying action," which was based, instead, on the City's own rights underthe PRA, which authorized it to seek declaratory and injunctive relief under the circumstances. 

### Egan, 179 Wn. App. at 341-42. Thus, in Egan, because the City soughtto vindicate rights wholly separate from Egan's right to seek redress inresponse to


### an alleged PRA violation, the anti-SLAPP statute was inapplicable. Bycontrast, in this case, the Meyers' counterclaim fordamages is directly based on an action infurtherance ofthe right to petition—the reportto KCHD. 

### Although the Meyers assert that their damages arise generally from Bevan's false claim ofownership, it is clearfrom the pleadings thatthese alleged 

### damages flow from the actions ofKCHD. The Meyers' claimed damages include the "loss of use oftheir well, home and property; increased living costs arising out oftheir need to live elsewhere; diminution in the value oftheir property; costs

8No. 69505-3-1 / 9 and expenses relating to the installation ofthe well and related facilities; costs required to be incurred inthe investigation and response to plaintiff's claims; 

### [and] fees and costs relating to [c]ounty permits and approvals." CP at 17. The Meyers do not explain, nor can we discern, how these damages could have been 

### caused solely by Bevan's claims ofownership. Rather, the claimed damages occurred because of actions taken by KCHD, which were in direct response to 

### Bevan's complaint. Thus, a protected action forms the gravamen of the Meyers'
claim. We conclude that Bevan carried her burden to establish that the Meyers' 

### suitarises from protected activity under the anti-SLAPP statute. Once she made this showing, the burden shifted to the Meyers to establish by clear and 

### convincing evidence a probability ofprevailing on theircounterclaim for 

### damages. See RCW4.24.525(4)(b). RCW4.24.525(4)(c) provides that atrial court's decision on this showing must be based on the "pleadings and supporting 

### and opposing affidavits stating the facts upon which the liability or defense is based." Butthe subsection grants trial courts discretion to order specified 

### discovery or other hearings ormotions to serve thisinquiry, notwithstanding the automatic stay imposed by the statute. 

### In this case, the Meyers requested limited discovery on the issue of 

### property ownership in response toBevan's special motion. Thetrial courtdenied thisrequest. It reasonedthat, evenwith discovery, the Meyers could notpossibly show a probability ofprevailing ontheirdamages counterclaim because underNo. 69505-3-1/10 the anti-SLAPP statute, Bevan was absolutely immune for the act of reporting to KCHD. The Meyers assign errorto this ruling. We review the trial court's discovery rulings for abuse of discretion. Doe v. Puget Sound Blood Ctr.. 117 Wn.2d 772, 777, 819 P.2d 370 (1991). A court abuses its discretion if its decision is manifestly unreasonable or based on 

### untenable grounds or reasons. Mayer v. STO Indus.. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). Ifa ruling is based on an erroneous view ofthe law, it is 

### necessarily an abuse ofdiscretion. Inre Marriage of Herridge. 169 Wn. App. 290, 296-97, 279 P.3d 956 (2012). 

### The Meyers do not dispute the trialcourt's conclusion that the act of 

### reporting to a government agency on matters ofconcern to the agency is an exercise of the right to petition for which a party is absolutely immunefrom liability. See Marriage of Meredith, 148 Wn. App. 887, 899-902, 201 P.3d 1056 

### (2009). Instead, they argue that depositions of Bevan and other witnesses were 

### necessary in order to substantiate their theories ofownership, which were based

on claims that Bevan had affirmed the parties' common boundary in 

### communications withthe Meyers and their predecessor in interest. But, as 

### previously discussed, the Meyers' asserted damages flow only from KCHD's response to the complaint it received, notfrom Bevan's assertions of ownership. Because there is no plausible link between Bevan's assertion of 

### ownership over the disputed property and the Meyers' claimeddamages, the trial court had no reason to allow discovery on the issue of ownership. Refusal to 

### allow discovery on this issue was not an abuse ofdiscretion. Moreover, because

10No. 69505-3-1 /11 

### the Meyers failed to establish byclear and convincing evidence a probability of prevailing on their counterclaim for damages, they failed to meet their burden to 

### defeat Bevan's special motion to strike. The trial court did not err in granting the special motion. Attorney Fees and Costs After granting Bevan's special motion, the trial court granted her attorney fees and costs, and imposed a statutory penalty against the Meyers of $10,000. The Meyers claim that this award was error because they were the properly prevailing party under the anti-SLAPP statute. They also claim that the award of
fees and costs should be reversed because Bevan's motion for fees was untimely under CR 54(d)(2). They are incorrect. We review a trial court's award of attorney fees and costs for abuse of discretion. In re Recall of Pearsall-Stipek. 136 Wn.2d 255, 265, 961 P.2d 343 

### (1998). This issue also involves interpretation of CR 54 and the anti-SLAPP statute, which we consider de novo. Dillon, 179 Wn. App. at 70; Wiley v. Rehak. 143 Wn.2d 339, 343, 20 P.3d 404 (2001). 

### RCW 4.24.525(6) requires a trial courtto award attorney fees and costs, along with a $10,000 sanction, to a moving party who prevails on a special motion under the anti-SLAPP statute. Itprovides: (a) The court shall award to a moving party who prevails, in part or 

### in whole, on a special motion to strike made under subsection (4) of this section, without regard to any limits under state law: 

### (i) Costs of litigationand any reasonable attorneys' fees incurred in connection with each motion on which the moving party prevailed;

11No. 69505-3-1/12 (ii) An amount often thousand dollars, not including the costs of litigation and attorney fees; and (iii) Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines to be necessary to deter repetition ofthe conduct and comparable conduct by others similarly situated. RCW 4.24.525(6) (emphasis added). 

### Claims for attorney fees, otherthan costs and disbursements, must be made by a motion filed within 10 days ofthe entry of ajudgment unless the substantive law inthe cause ofaction included a damages element proved at trial. CR 54(d)(2). 

### In this case, Bevan expressly moved the court forcosts, attorney fees, 

### and statutory penalties when she filed her special motion to strike on August 30, 2012. This claim was entered during the pretrialphases of the case, well before 

### entry ofjudgmentin the matter. Thus, whenBevan prevailed on her special motion to strike, she was entitled to reasonable attorney fees, costs, and a 

### $10,000 sanction under RCW 4.24.525(6). Bevan's subsequent "Motion for Establishment ofCosts and Attorney's Fees on Plaintiffs Special Motion to 

### Strike, RCW4.24.525(4)" was not, as the Meyers nowassert, a distinct "claim" 

### for attorneyfees. CP at 155-62. Rather, itwas merely a request that thetrial court calculatethe amount offees already authorized pursuantto its September 

### 28, 2012 order. Thus, the trial court's order awarding Bevan attorney fees, costs, and a $10,000 statutory penalty was not error. 

### Citing RAP 18.1 and Landberg v. Carlson, 108Wn. App. 749, 758, 33 

### P.3d 406(2001), Bevan requests anaward ofattorneyfees and costs onappeal.

12No. 69505-3-1/13 In Landberg, we held when attorney "fees are allowable attrial, the prevailing party may recover fees on appeal as well." 108 Wn. App. at 758. Because she

was the prevailing party below and on appeal, we grant Bevan's request, subject to compliance with RAP 18.1.
Affirmed.



### £C (/y> o^-, (, \\ WE CONCUR:

13