IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

ELVIRA DAVISON, ) No. 77652-5-I

Appellant,

)

v. )

KING COUNTY, KING COUNTY )

SHERIFF’S OFFICE, KING COUNTY ) UNPUBLISHED OPINION

DEPARTMENT OF PUBLIC DEFENSE )

And KING COUNTY ASSOCIATED ) FILED: October 14, 2019

COUNSEL FOR THE ACCUSED, )

Respondent. )

__________________________________________________________________________________)

VERELLEN, J. — After nonprofit law firm Associated Counsel for the Accused

(ACA) fired Elvira Davison for violating policies regarding client funds, Davison

sued King County, the King County Department of Public Defense (DPD), and the

King County Associated Counsel for the Accused (KCACA) for employment

discrimination and related torts. Although ACA is a separate entity distinct from

King County, DPD, or KCACA, Davison sued under a theory of successor liability

as a matter of law based on Dolan v. King County.1 Because the narrow facts in

Dolan do not support successor liability as a matter of law for employment

1172 Wn.2d 299, 258 P.3d 20(2011).
No. 77652-5-1/2

discrimination or other torts, and the record does not support any other theory of

successor liability, the trial court properly granted summary judgment on all claims.

Therefore, we affirm.

FACTS

ACA was a private, nonprofit law firm founded in 1973. Under a contract

with King County, ACA provided indigent criminal defense and dependency

services for the county. ACA employed Davison as a forensic social worker until

she was fired on May 30, 2013. That July, the county terminated its contracts with

ACA and all other private law firms providing similar services. In November, King

County voters passed a county charter amendment authorizing the creation of

DPD and its subdivisions. The county began providing all indigent defense

services through newly created DPD and its subdivisions, including KCACA. ACA

rebranded itself Irving C. Paul Law Group (ICPLG), stopped providing indigent

legal services, and began distributing its remaining funds with the intent of

dissolving itself.

Davison first filed suit in July of 2016. Her original complaint named King

County, the King County Sheriff’s Office, DPD, and KCACA as defendants.2 It did

not name ACA or ICPLG as defendants. Davison later filed an amended

complaint naming King County, the King County Sheriff’s Office,3 DPD, and “King

2 Clerk’s Papers (CP) at 2.

~ Davison stipulated to dismissal of the King County Sheriff’s Office as a

defendant during the pendency of this appeal.

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No. 77652-5-1/3

County Associated Counsel for the Accused aka Irving C. Paul Law Group’ as

defendants.4 Davison asserted that she “worked for [KCACA}, originally known as

Irving C. Paul Law Group.”5

The court initially relied on Dolan v. King County6 to conclude that ACA and

King County were the same organization as a matter of law. The court later

granted summary judgment and dismissed all of Davison’s claims.

Davison appealed. King County7 cross appealed the court’s conclusion that

it is a successor to ACA.

ANALYSIS

We review an order granting summary judgment de novo.8 Summary

judgment is appropriate when “there is no genuine issue as to any material fact”

and “the moving party is entitled to a judgment as a matter of law.”9 We view the

evidence in a light most favorable to the nonmoving party.1° Because Davison’s

4CPat493.

5CPat494.

6 172 Wn.2d 299, 258 P.3d 20 (2011).

~ We refer to King County to include agencies DPD and KCACA except

where otherwise noted.

8Loeffelholzv. Univ. of Wash., 175 Wn.2d 264, 271, 285 P.3d 854 (2012).

~ CR 56(c); Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192

P.3d 886 (2008) (quoting Locke v. City of Seattle, 162 Wn.2d 474,483, 172 P.3d

705 (2007)).

10 Loeffelholz, 175 Wn.2d at 271.

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No. 77652-5-1/4

claims depend upon her arguments that King County is a successor in interest to

ACA as a matter of law,11 we begin by considering King County’s cross appeal.

King County contends Dolan is “not comparable” to the case here and does

not establish its liability either vicariously or as a successor.12 Dolan held “that

[King County] has exerted such a right of control over [ACA and other] defender

organizations as to make them agencies of the county.”13 Davison relies on this

holding to argue ACA has been an agency of King County since Dolan was

decided in 2011 and thus is a successor in interest to ACA. But Dolan is limited to

the narrow legal issue it decided.

In Dolan, the court considered whether private law firms contracted to

provide indigent defense, such as ACA, were an “arm and agency” of King County

solely to determine whether their employees were “public employees” under the

Public Employee Retirement System (PERS) statute, RCW41.40.010(12).14 The

court applied the “right of control” test, which is typically used to determine

whether an employment relationship between two parties is that of employer and

~1 See Report of Proceedings (RP) (Aug. 25, 2017) at 150-51 (Davison

stating that ICPLG does not need to be served as an individual party “because we

already have King County” and acknowledging “If [ICPLG] is not considered a part

of the county, and they are a separate nonprofit, private entity. . . then the

argument that they could be brought in or should be brought in as a separate party

should stand.”). Notably, at the conclusion of that hearing, the court ruled, “As a

matter of law. . . ICPLG is not a separately named defendant in this lawsuit.” ki.

at 164.

12 Resp’t’s Br. at 43.

13 Dolan, 172 Wn.2d at 320.

14 Id. at 315.

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No. 77652-5-1/5

employee or employer and independent contractor.15 The court considered the

county’s degree of control over the law firms’ budgeting and operational decisions.

On this analysis, the court concluded “the county has exerted such a right of

control over the defender organizations as to make them agencies of the

county.

Recently in LaRose v. King County,17 Division Two of this court considered

whether Dolan required holding King County vicariously liable for conduct of the

Public Defender Association (PDA), an equivalent entity to ACA. The plaintiff, a

former PDA employee, argued King County was vicariously liable under Dolan for

PDA’s alleged violations of the Washington Law Against Discrimination,18 including

hostile work environment, negligence, and discrimination.19 But “Dolan [was] not

directly applicable” because “[t]he court’s holding in Dolan was limited to the

context of retirement benefits eligibility.”20 The fact-specific nature of the right of

control test meant Dolan’s holding could not be mechanistically applied to a

question of vicarious liability.21 Because the legal issues and facts differed in

LaRose from Dolan, the court declined to conclude King County was vicariously

15 J.~ at 314 (citing Hollingbery v. Dunn, 68 Wn.2d 75, 80-81, 411 P.2d 431

(1966)).

~Id. at 320.

178 Wn. App. 2d 90, 437 P.3d 701 (2019).

18 Ch. 49.60 RCW.

19 LaRose, 8 Wn. App. 2d at 129.

20 Id.

21 ki. at 129-30.

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No. 77652-5-1/6

liable as a matter of law.22 Under the circumstances in LaRose, the right of control

test showed King County was not vicariously liable for PDA’s conduct.23

We agree with the LaRose court that Dolan is a narrow decision confined

only to issues of PERS eligibility. It does not compel the conclusion that King

County is vicariously liable for ACA’s conduct. Notably, under the right of control

test relied upon in Dolan, King County had no control over and no involvement in

ACA’s personnel decisions regarding Davison, including her claims for

unemployment benefits and for relief through the Equal Opportunity Employment

Commission and National Labor Relations Board. Because King County had no

control over Davison’s termination, it is not vicariously liable for the termination

itself or any harm resulting from it.

Nor is King County ACA’s successor under Dolan. Despite Dolan’s broadly

written holding, nothing in the decision’s reasoning suggests the Supreme Court

intended to make King County ACA’s successor as a matter of law. Questions of

successor liability are distinct from questions of vicarious liability. Aside from

Dolan, Davison offers no Washington authority to show that a government agency

can be the successor to a private corporation. Further, Davison offers no authority

establishing that such a successor would be liable for the predecessor’s

discriminatory or tortious conduct. Consistent with LaRose, Dolan is limited to its

22 Id. at 130.

23 Id.

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No. 77652-5~II7

narrow facts and, thus, is legally distinguishable. It does not stand for the

proposition that King County is subject to successor liability as a matter of law.

Davison raises other theories of successor liability in her response to King

County’s cross appeal. But as her trial attorney admitted, “I don’t have the

documentation,” to prove successor liability.24 Consistent with this admission, the

appellate record does not support a finding of successor liability.

Dolan is narrowly limited to eligibility for retirement benefits. Davison fails

to show King County is ACA’s successor. The trial court did not err by dismissing

all claims against the only named defendants, King County, KCACA, and DPD.

Because all of Davison’s theories of liability depend upon successor liability, we

need not consider the issues raised by her appeal.

We affirm.

WE CONCUR:

~Q~eQ9€~

24 RP (June 30, 2017) at 56.

7