### 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### ) UNPUBLISHED OPINION DEPARTMENT OF PUBLIC DEFENSE 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 COUNTYASSOCIATED 

### ) FILED: October 14, 2019 COUNSEL FOR THE ACCUSED, 

### )

Respondent. 

### )

__________________________________________________________________________________) VERELLEN, J.

— After nonprofit lawfirm Associated Counsel fortheAccused (ACA) fired Elvira Davison forviolating policies regarding clientfunds, Davison sued King County, the King County Department of Public Defense (DPD), and the King CountyAssociated Counsel fortheAccused (KCACA) for employment discrimination and related torts. Although ACA is a separate entitydistinctfrom King County, DPD, or KCACA, Davison sued undera theory ofsuccessor liability as a matterof law based on Dolan v. King County.1 Because the narrowfacts in Dolan do not support successor liability as a matterof lawforemployment

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

discrimination or othertorts, and the record does not support any othertheory of successor liability, the trial court properly granted summaryjudgment on all claims. Therefore, we affirm. FACTS ACAwas a private, nonprofit lawfirm founded in 1973. Under a contract with King County, ACA provided indigent criminal defense and dependency servicesforthe county. ACA employed Davison as a forensic social worker until she was fired on May 30, 2013. That July, the countyterminated its contracts with ACA and all other private lawfirms providing similarservices. In November, King Countyvoters passed a county charteramendment 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 of2016. Her original complaint named King County, the King County Sheriff’s Office, DPD, and KCACA as defendants.2 It did not nameACA or ICPLG as defendants. Davison laterfiled 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 ofthe King County Sheriff’s Office as a defendant during the pendency ofthis appeal.

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CountyAssociated Counsel forthe 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 thatACA and King Countywere the same organization as a matterof law. The court later granted summaryjudgment and dismissed all of Davison’s claims. Davison appealed. King County7 cross appealed the court’s conclusion that it is a successorto ACA. ANALYSIS We review an order granting summaryjudgment 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 ajudgment as a matterof law.”9 We viewthe evidence in a light mostfavorable to the nonmoving party.1° Because Davison’s

4CPat493. 5CPat494. 6 172 Wn.2d 299, 258 P.3d 20 (2011).

~We referto King Countyto include agencies DPD and KCACA except where otherwise noted. 8Loeffelholzv. Univ. ofWash., 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 ofSeattle, 162 Wn.2d 474,483, 172 P.3d 705 (2007)).

10 Loeffelholz, 175 Wn.2d at 271.

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claims depend upon herarguments that King County is a successor in interestto ACA as a matterof 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 eithervicariously oras a successor.12 Dolan held “that [King County] has exerted such a right ofcontrol over [ACA and other] defender organizations as to make them agencies ofthe 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 interestto ACA. But Dolan is limited to the narrow legal issue it decided. In Dolan, the court considered whether private lawfirms contracted to provide indigent defense, such asACA, were an “arm and agency” of King County solelyto determine whethertheir employees were “public employees” underthe Public Employee Retirement System (PERS) statute, RCW41.40.010(12).14 The court applied the “right ofcontrol” test, which is typically used to determine whetheran employment relationship between two parties is that ofemployer 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 ofthe county, and they are a separate nonprofit, private entity.

. . then the argumentthatthey could be brought in orshould be brought in as a separate party should stand.”). Notably, atthe conclusion ofthat hearing, the court ruled, “As a matterof law.

. . ICPLG is not a separately named defendant in this lawsuit.” ki. at 164.12 Resp’t’s Br. at43.

13 Dolan, 172 Wn.2d at 320. 14 Id. at 315.

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employee or employer and independent contractor.15 The court considered the county’s degree ofcontrol overthe lawfirms’ budgeting and operational decisions. On this analysis, the court concluded “the county has exerted such a right of control overthe defender organizations as to make them agencies ofthe county.Recently in LaRose v. King County,17 Division Two ofthis court considered whether Dolan required holding King Countyvicariously liable for conduct ofthe Public DefenderAssociation (PDA), an equivalent entityto ACA. The plaintiff, a former PDA employee, argued King Countywas vicariously liable under Dolan for PDA’s alleged violations ofthe Washington LawAgainst 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 ofthe right of control test meant Dolan’s holding could not be mechanistically applied to a question ofvicarious liability.21 Because the legal issues and facts differed in LaRose from Dolan, the court declined to conclude King Countywas vicariously

15

### J.~ at 314 (citing Hollingberyv. 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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liable as a matterof law.22 Underthe circumstances in LaRose, the right ofcontrol test showed King Countywas notvicariously liable for PDA’s conduct.23 We agree with the LaRose courtthat Dolan is a narrowdecision confined onlyto issues of PERS eligibility. It does not compel the conclusion that King County is vicariously liable forACA’s conduct. Notably, underthe right ofcontrol 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 reliefthrough the Equal Opportunity Employment Commission and National Labor Relations Board. Because King County had no control over Davison’s termination, it is notvicariously liable forthe termination itselfor any harm resulting from it. Nor is King CountyACA’s successor under Dolan. Despite Dolan’s broadly written holding, nothing in the decision’s reasoning suggests the Supreme Court intended to make King CountyACA’s successor as a matterof law. Questions of successor liability are distinctfrom questions ofvicarious liability. Aside from Dolan, Davison offers no Washington authorityto showthat a governmentagency can be the successorto a private corporation. Further, Davison offers no authority establishing that such a successorwould be liable forthe predecessor’s discriminatory ortortious conduct. Consistentwith LaRose, Dolan is limited to its

22 Id. at 130. 23 Id.

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narrowfacts and, thus, is legally distinguishable. It does not stand forthe proposition that King County is subjectto successor liability as a matterof law. Davison raises othertheories ofsuccessor liability in her response to King County’s cross appeal. But as hertrial attorney admitted, “I don’t have the documentation,” to prove successor liability.24 Consistentwith this admission, the appellate record does not support a finding ofsuccessor liability. Dolan is narrowly limited to eligibilityfor retirement benefits. Davison fails to show King County is ACA’s successor. The trial court did not err by dismissing all claims againstthe only named defendants, King County, KCACA, and DPD. Because all of Davison’s theories of liability depend upon successor liability, we need not considerthe issues raised by her appeal. We affirm.

WE CONCUR: 

# ~Q~eQ9€~

24 RP (June 30, 2017) at 56.

7