IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ^ <«©

CHANCE GOODMAN, Appellant,

v. WAYNE OLSEN, Respondent. NO. 68711-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: September 23, 2013 TO to

Lau, J. —The State filed a criminalcharge against Chance Goodman stemming 

### from Wayne Olsen's report that Goodman assaulted him when Olsen attempted to serve Goodmanwith legal documents. Goodman then sued Olsenfor defamation. The trial court determined that Olsen was immune from liability and granted summary 

### judgment in favor ofOlsen. Theonly alleged defamatory statements attributed toOlsen occurred during the course of judicial proceedings or were reports to law enforcement entitled to statutory protection under Washington'santi-SLAPP (strategic lawsuits 

### against public participation) statute, RCW4.24.510. Weaffirm the summaryjudgment dismissal ofGoodman's lawsuit and award ofstatutory damages and attorney fees. FACTS 

### Goodman representshimselfon appeal as he did below. Although he provides 

### an incomplete record onappeal, we are able toderive thefollowing facts: Goodman68711-5-1/2

was involved in litigationagainst other members of his family regarding a property 

### dispute. In the course of that litigation, Wayne Olsen attempted to serve Goodman with legal papers. Olsen alleged thatduring this interaction, Goodman pulled a baseball cap and a handful of hair from his head and then shoved him against the side of his truck. Olsen said that Goodman yelled obscenities at him and, as he tried to leave, stood inside the truck door and would not let him close it. Olsen alleged that Goodman threw 

### the legaldocuments in his truckwindow as he eventually drove away. 

### The State charged Goodman with assault based onthese allegations. After the 

### trial againstGoodman resulted in a hungjury, the State dismissed the charge. In the property dispute litigation, Goodmanfiled a third party complaint against Olsen seeking damages for defamation. Goodmanidentified as defamatory 

### thefollowing statements: (1) Olsen's statements toSkagitCounty law enforcement 

### describing theassault, (2) Olsen'stestimony during Goodman's criminal trial, 

### (3) Olsen's statements in adeclaration ofservice describing the attempted service of legal documents, and (4) statements describing the assault in several news articles. Olsen filed a motion for summaryjudgment. He argued that his statements 

### made in the context ofjudicial proceedings were privileged, see Twelkerv. Shannon & Wilson. Inc., 88 Wn.2d 473, 475, 564 P.2d 1131 (1977), and that he was entitled to 

### statutory immunity based on his reports to law enforcement underthe anti-SLAPP statute, RCW 4.24.501. Olsen also pointed outthatno statements in any news articles
were attributed to him, and he denied talking to any reporters. Goodman's substantive 

### response toOlsen's motion, in its entirety, stated, "Third Party DefendantWayne Olsen'smotion for Summary Judgment underCR56fails to meetits burden."
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The trial court granted summaryjudgment dismissing the third party complaint against Olsen. Because Olsen prevailed in his defense under RCW 4.24.510, the court ruled that he was also entitled to recover statutory damages of$10,000 under the statute and reasonable attorney fees in an amount to be determined at a subsequent hearing. Olsen filed a motion in support of his request for attorney fees of$5,500. Goodman filed a response to entry ofjudgment. Goodman argued that statutory damages and attorney fees were unwarranted under RCW4.24.510 because Olsen's "hairinjury was a fake" and, therefore, Olsen communicated with lawenforcement in bad faith. He submitted letters from three medical professionals who examined 

### photographs taken after the incident of a clump of hair and Olsen's head. They all reached the conclusion that the photographs do not conclusively establish that the hair 

### depicted came from Olsen's head or that Olsen sustained an injury to his head. Goodman also submitted the declaration of his brother who claimed to be an 

### eyewitness to the incident and expressed hisopinion that the "injury reported byWayne Olsen was a fake." 

### The courtenteredjudgment in favor of Olsen for$15,500. Goodman appeals.
ANALYSIS 

### When reviewing an order for summary judgment, we engage in the same inquiry
as the trial court. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 

### P.3d 1283 (2010). Summaryjudgment is appropriate only ifthe pleadings, affidavits, 

### depositions, and admissions on file demonstrate the absence ofany genuine issues of68711-5-1/4
material fact and the moving party is entitled tojudgment as a matter of law. CR 56(c). However, the appellate court will consider only evidence and issues called to the attention ofthe trial court. RAP 9.12. Thus, "[a]n argument neither pleaded nor argued to the trial court cannot be raised for the first time on appeal." Silverhawk. LLC v. KevBank Nat'l Ass'n, 165 Wn. App. 258, 265, 268 P.3d 958 (2011). To allow otherwise "would be to undermine the rule that an appellate court is to engage in the same inquiry


### as the trial court in reviewing an order of summary judgment." Wash. Fed'n ofState Emps.. Council 28, 121 Wn.2d 152, 163, 849 P.2d 1201 (1993). 

### Goodman argues that the evidence he submitted shows that Olsen reported a false injury. Therefore, he claims that genuine issues of fact preclude summary 

### judgment as towhether Olsen was immune from liability for defamation. He also argues that Olsen was not entitled to statutory damages because he communicated with law enforcement in bad faith when he reported the false injury. But as a factual matter, the evidence produced by Goodman in no way 

### establishes that the assault Olsen reported did not occur or that Olsen reported the incident in bad faith. Goodman also provides no legal authority supporting his position 

### that theevidence pertaining to the underlying factual allegations has anyeffect on Olsen's claim ofprivilege. There is no requirement that a reportorcommunication to a 

### government agency must be in good faith forthe person who makes the reportto be immune from civil liability underRCW 4.24.510; a finding of badfaith affects only the 

### availability of statutory damages. Bailev v. State, 147 Wn. App. 251, 262, 191 P.3d 1285 (2008); RCW 4.24.510.68711-5-1/5 

### The morefundamental problem is that Goodmandid not raise this "fake injury" argument, or any other argument, until after the court entered the order of summary judgment. He raised the issue below in his response to entry of judgment when the onlyissue before the court was the determination of the amount of attorney fees reasonably expended. Because these arguments and the evidence supporting the arguments were never "called to the attention of the trial court" when it ruled on summaryjudgment that Olsen's defense of immunity prevailed, Goodman's claims are waived on appeal. RAP 9.12. Olsen requests attorney fees on appeal. He is entitled to reasonable attorney fees incurred on appeal under the anti-SLAPP statute forsuccessfully defending his immunity on the defamation charge. See RAP 18.1; RCW 4.24.510; Lowe v. Rowe. 173 Wn. App. 253, 264, 294 P.3d 6 (2012).
We affirm.

WE CONCUR: 

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