### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE LORI SHAVLIK and ARTHURWEST, 

### ) No. 79656-9-I

Appellants, 

### ) v. 

### ) PUBLISHED OPINION DAWSON PLACE, 

### ) FILED: November25, 2019

Respondent. 

### )

VERELLEN, J.

— The Public RecordsAct, chapter42.56 RCW (PRA), extends both to government agencies and private entities that are the functional equivalent ofa government agency. Lori Shavlik and ArthurWest (collectively West) requested documents from the private nonprofit organization Child Advocacy Centerof Snohomish County at Dawson Place, butWestdoes not establish it is the functional equivalent ofa governmentagency. The trial court correctly concluded Dawson Place is not subjectto the PRA. West also fails to demonstrate the trial court abused its discretion by denying his CR 56(f) motion to continue or by striking both a deposition transcript thatfailed to complywith local rules and evidence he failed to authenticate. We deny Dawson Place’s motion for RAP 18.9 sanctions. We affirm the summaryjudgment in favor of Dawson Place.No. 79656-9-1/2

FACTS In early2017, Shavlik and West submitted separate PRA requests to Dawson Place. Located in Everett, Dawson Place is a landlord to private and public entities thatworkwith victims ofchild abuse, provides forensic interviewers to interview child abuse victims, and coordinates information-sharing meetings among entities that assist child abuse victims. Dawson Place responded itwas not subjectto the PRA. Shavlik and West each filed lawsuits, contending Dawson Place violated the PRA. The court consolidated the actions. Dawson Place filed a motion forsummaryjudgment and to strike some of West’s previouslyfiled evidentiary submissions. Less than two weeks later, West filed a motion forsummaryjudgment. Westfiled a CR 56(f) motion to continue to transcribe a deposition and to conduct additional discovery based on the deposition. With the parties’ agreement, the courttookthe matter under advisementto allowtime to transcribe the deposition. After reviewing the deposition transcript, the court denied the motion to continue. The court granted the motion to strike and granted summaryjudgmentfor Dawson Place, concluding itwas not subjectto the PRA. West appeals. ANALYSIS I. Whether Dawson Place is Subiectto the PRA West argues the court erred by concluding Dawson Place is notthe functional equivalent ofa public agency underthe PRA. We review questions of

2No. 79656-9-1/3

statutory interpretation and summaryjudgment rulings de novo, considering the evidence and any reasonable inferences in a light mostfavorable to the nonmoving party.1 The PRA “‘is a strongly-worded mandate foropen government” and “‘must be liberally construed” to protectthe public’s interest in broad disclosure.2 The PRA states, “Each agency.

. . shall make available for public inspection and copying all public records” subjectto certain exceptions.3 An “agency” includes all “local agencies,” which are defined broadly as “every county, city, town, municipal corporation, quasi-municipal corporation, orspecial purpose district, orany office, department, division, bureau, board, commission, oragencythereof, or other local public agency.”4 A private organization becomes subject to the PRA if it acts as the “functional equivalent” ofa statutory “public agency.”5 We determine whetheran organization is the functional equivalent ofa public agency underthe PRA byweighing the Telford v. Thurston County Board of

1 Fortc~anq v. Woodland ParkZoo, 187 Wn.2d 509, 518, 387 P.3d 690 (2017).2 kI. at 512 (internal quotation marks omitted) (quoting Rental Hous. Ass’n of Puqet Sound v. City of Des Moines, 165 Wn.2d 525, 527, 199 P.3d 393 (2009); Yakima Countyv. Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768 (2011) (quoting RCW42.45.030)).

~ RCW42.56.070(1).

~ RCW42.56.010(1).

~ Fortqanci, 187 Wn.2d at 512.

3No. 79656-9-1/4

Commissioners 6factors.7 West argues, though, Dawson Place is the equivalent ofa public agency “regardless ofthe Telford factors.”8 In the recent case Fortganq
v. Woodland ParkZoo, our Supreme Court held “[t]he Telford test is the proper analytical frameworkfor evaluating a private orquasi-public entity’s disclosure requirements underthe PRA.”9 Because Fortqanci controls ouranalysis and West relies on cases predating Fortciang, his argument is unpersuasive. The purpose ofthe Telford test is to “identify private entities that have effectively assumed the role ofgovernment.”10 Underthe Telford test, the factors relevantto deciding when a private entity is treated as the functional equivalent ofan agency are (1) whetherthe entity performs a governmentfunction, (2) the extent to which the governmentfundsthe entity’s activities, (3) the extent of government involvement in the entity’s activities, and (4) whetherthe entitywas created bythe government.~11] The factors do not need to be satisfied equallyforan organization to be subjectto the PRA.12 PRA cases are highlyfact-specific,13 and past applications ofthe

6 95 Wn. App. 149, 974 P.2d 886 (1999).

~ Fortqanq, 187 Wn.2d at 513. 8Appellant’s Br. at 17.

~ Fortç~anq, 187 Wn.2d at 534. ‘°kLat526. Id. at 517-18. 12 Clarke v. Tn-Cities Animal Care & Control Shelter, 144Wn. App. at 185, 192, 181 P.3d 881 (2008) (citing Telford, 95 Wn. App. at 162).

13 See Andrews v. Wash. State Patrol, 183 Wn. App. 644, 653, 334 P.3d 94 (2014) (‘whether an agency complies with the PRA is a fact specific inquiry”).

4No. 79656-9-1/5

Telford test provide important guidance.14 A survey ofselected cases applying the Telford factors is instructive. In Fortgang v. Woodland ParkZoo, the plaintiffsought records from the nonprofit contracted with the City of Seattle to run the Woodland ParkZoo.15 The court applied the Telford factors and concluded the zoo was not subjectto the PRAwhere three ofthe fourfactors weighed againstfunctional equivalency.16 First, thejob of ‘zoo management”was not “an inherently governmental function” because itwas not a task “that could not be delegated to the private sector.”17 Second, although 30 percent ofthe zoo’s budgetwas from public sources, that money came from fixed annual allocations ratherthan reimbursable fees-for-service.18 Because fixed annual allocations supported a conclusion of functional equivalency but “no Washington case concludesthat an entity’s funding supports PRA coverage in absence of majority publicfunding,” this factorwas inconclusive.19 Third, the government did not exert day-to-day control overzoo operations, despite the presence ofthree government representatives on the 38-

14 See, e.g., Fortgang, 187 Wn.2d at 525 n.7, 526 n.8, 528 n.h (relying on foreign applications ofthe Telford factors); cl~ Neighborhood All. of Srokane Countyv. Sjokane County, 172 Wn.2d 702, 719-21, 261 P.3d 119 (2011) (approving reliance on federal open recordsjurisprudence to interpret and apply the PRA).

15 187 Wn.2d 509, 387 P.3d 690 (2017). Id. at 533. 17 kI. at 524-26. 18 kI. at 516, 527. 19ki.at529.

5No. 79656-9-1/6

memberzoo board and various transparency and record-keeping requirements in the contractwith Seattle.2° The absence ofgovernmental control over day-to-day
zoo operations weighed againstfunctional equivalency.21 Fourth, the nonprofit contracted to run the zoo ‘was incorporated solely by private individuals, so [the court] could not attribute its ‘origin’ to special legislation or governmental action.”22 Because three factors weighed againstfunctional equivalence and the otherwas inconclusive, the nonprofitwas not subjectto the PRA.23 In Clarke v. Tn-Cities Animal Care & Control Shelter, Division III ofthis court concluded an animal shelterwas thefunctional equivalent ofa public agency.24 First, and most significantly, the animal shelter performed a nondelegable governmental function because its contractwith local government let it exercise “police powers pursuantto state statute.”25 Second, “nearly all” ofthe shelter’s operating budget came from public money, the government paid its rent, and its contractwith the government prohibited itfrom doing any business other than animal control services.26 Third, although the shelterwas “in control of its day-to-day operations,” the court concluded this factorsupported functional

20k1.at515, 530-31. 21 ki.at 531. 22ki.at532. Id. at 533. 24 144 Wn. App. 185, 181 P.3d 881 (2008). 25k1.at 193. 26 kI. at 194-95.

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equivalence because of“a notable degree ofgovernmental control.”27 Clarke predates Fortç~anq, and it is clear Fortganq’s requirement ofgovernmental control
overday-to-day operations constrains Clarke’s reasoning on this factor. Fourth, because the animal shelterwas a private corporation not created bythe government, this factorweighed againstfunctional equivalence.28 Because, on balance, the factors favored functional equivalence, the animal shelterwas subject to the PRA.29 Washington courts have also long relied on foreign case law as persuasive authorityto analyze the PRA.3° Forexample, the Telford court directly adopted its functional equivalencytestfrom a Connecticut Supreme Court case.31 Another Connecticut case, which our Supreme Court cited in Fortcjan.q, DomesticViolence Services of Greater New Haven, Inc. v. Freedom of Information Commission,32 provides guidance here. An individual requested corporate documents, such as bylaws and budgets, from a domestic violence nonprofit organization pursuantto Connecticut’s public

27k1.at 195. 28 Id. 29 Id. 30

~ Fortqanq, 187Wn.2d at 525-26, 528, 530, 532 (citing foreign cases).31 Telford, 95 Wn. App. at 162-63 (citing Board ofTrustees ofWoodstock Academyv. Freedom of Info. Comm’n, 181 Conn. 544, 436 A.2d 266 (1980)).

3247 Conn. App. 466, 704 A.2d 827 (1998).

7No. 79656-9-118

records act.33 The organization helped victims ofdomestic violence with shelter, counseling, and advocacy services.34 Connecticut law required thatthejudiciary maintain familyviolence response and intervention units to address domestic violence cases and provide advocacy services. Thejudiciary contracted with a statewide nonprofitto provide services, and that nonprofit subcontracted with the domesticviolence organization for local services.35 Courts referred domestic violence victims to the organization foradvocacy services.36 The organization received 66 percent of its funding from federal, state, and local government.37 Applying factors identical to the Telford factors, the court concluded the organization was not a publicagency.38 First, the organization was not performing
a nondelegable governmental function. Although preventing domesticviolence and treating its victims was a governmental function, the organization had no powerto make decisions affecting government programs that benefitted domestic violence victims. And the organization provided those services pursuant onlyto a private contract ratherthan being compelled to do so by statute.39 Second, the funding factorwas not met because the “substantial funds from government” came

33~Lat467. 34kLat471. 35kLat472. 36 Id. ki. at 471. 38 kI. at 473, 478. 39k1.at475.

8No. 79656-9-1/9

from service contracts and government grants.4° Third, the government control factor did not supportfunctional equivalency. The regulatory and audit requirements imposed on the organization bythe governmentdid not make itthe functional equivalent ofan agency “[b]ecause governmentdoes not have day-to-day involvement in the [organization’s] ongoing activities.”41 Fourth, the organization was not created by government.42 Because none ofthe factors were met, the domesticviolence organization was not subjectto Connecticut’s public records act.43 Here, West contends all fourTelford factors show Dawson Place is the functional equivalentofa public agency. A. Inherently Governmental Function The firstfactorconsiders whetherthe organization performs inherently governmental functions or “functions that could not be delegated to the private sector.”44 An organization does not perform a governmentfunction merely because it contractswith the government pursuantto enabling legislation.45 West argues Dawson Place performs a nondelegable law enforcement function because of its contractual duties with Snohomish County, particularlythe

Id. at 476. 41 kI. at 478.
42 kI. at 478.

~ Id.

~ Fortcjanq, 187 Wn.2d at 524 (citing Telford, 95 Wn. App. at 165), 525. 45kI.at525.

9No. 79656-9-1/10

role its child interviewspecialists play in criminal investigations. This argument overstates Dawson Place’s role in the criminaljustice process and misstates the organization’s mission. Before the creation of Dawson Place, a child victim of physical orsexual abuse in Snohomish County “would have to go all overthe countyto find [treatment and law enforcement] services” which was “unduly burdensome on people and families thatwere alreadygoing through whatwas likelythe most difficulttime oftheir life.”46 Putting law enforcement, medical, and social services in a single location helps avoid revictimizing children by making them recounttheir abuse in multiple interviews with multiple people.47 Accordingly, Dawson Place’s bylaws state its mission is to “promote[] a coordinated multidisciplinary response to child physical and sexual assault in a safe, agency-neutral child-focused setting.”48 Dawson Place advances its mission through three distinct, but related, activities. First, it is the landlord to five entities that lease abouttwo-thirds of Dawson Place’s building and workwith victims ofchild abuse.49 Dawson Place

46 Clerk’s Papers (CP) at 2276.

~ k1. at 2276-77; see k1. at 3877 (“By providing a single location and accredited interviewing services, [Dawson Place] reduce[s] the additional trauma that comes with seeking help afterthe initial trauma ofthe abuse.”); RCW26.44.175(1) (“The legislature finds thatthe purpose of multidisciplinary child protection teams

. . . is to

. . . coordinatethe prompt investigation of.

. . child abuse

. . . to reduce the trauma ofany child victim.”). 48 CP at4074.

~ The entities, two private and three public, are Providence Intervention CenterforAssault &Abuse, which conducts forensic examinations for physical

10No. 79656-9-Ill I

pays propertytaxes on its building, pays the mortgage on its building, and manages the issues of being a landlord. Second, Dawson Place coordinates information sharing on child abuse victims through multidisciplinaryteam meetings. Although RCW 26.44.180 mandates the use of multidisciplinaryteam meetings to investigate and address child sexual abuse, a child advocacy center is not necessaryto complywith the law.5° Dawson Place’s executive director chairs all multidisciplinaryteam meetings. The executive director and heroffice staffschedule the meetings and invite attendees. Meeting attendees vary depending on the cases being discussed. Attendees could include lawenforcement ifthe victim’s case is being criminally investigated, it could include only medical providers, or it could be a mix.
and sexual abuse as well as providing victim advocacyservices; Compass Health’s Child Advocacy Program, which provides mental health counseling; the Snohomish County Sheriff’s Office Special Investigations Unit, which investigates allegations ofchild abuse and neglect; the Snohomish County Prosecuting Attorney’s Office’s Sexual Assault Unit; and the Department ofSocial and Health Services Division ofChildren and Family Services. 50 RCW26.44.180(2) requires that every county develop protocols for handling investigations ofcriminal child abuse. Those protocols must “address the coordination of.

. . the prosecutor’s office, law enforcement, children’s protective services, children’s advocacy centers, where available, local advocacy groups, community sexual assault programs,” and others. Former RCW26.44.180(2) (2010) (emphasis added). Amendments made in 2019 to RCW26.44.180(2) do not affect our analysis, butwe note the legislature eliminated the comma between “centers” and “where.” LAWS OF 2019, ch. 82, 

### § 2. Similarly, RCW26.44.185(1) requires that county protocols address coordination ofchild fatality, physical abuse, and neglect investigations between “prosecutor’s offices, law enforcement, children’s protective services, children’s advocacy centers, where available, local advocacy groups, emergency medical services” and others. RCW 26.44.185(1) (emphasis added). Because child advocacy centers must be considered for investigation protocols only “where available,” neitherstatute compels the creation ofchild advocacy centers orthe use ofchild interviewspecialists atthose centers.

11No. 79656-9-U12

Most significantly, the team meets onlyto discuss victims and does not make decisions about, forexample, howto treatvictims’ medical needs, whether criminal charges are warranted, or howto handle a possible criminal case.51 Third, Dawson Place has two child interviewspecialists on staffwho conductforensic interviews with child victims. Dawson Place provides these services pursuantto a contractwith Snohomish County. An interview can be requested by a child’s private or public school teacher, medical providers, law enforcementofficers, social workers, orothers. Interviews are typically conducted at Dawson Place, which provides a child-friendly interviewsetting and makes emotional support dogs available to children being interviewed. The interviews are all recorded and may be used for a criminal investigation or prosecution. Interview specialists must, when requested, provide interviewtranscripts, workwith prosecuting attorneys, and testify in court. Although one ofthe interview specialists’ professional responsibilities is working “closelywith deputy prosecuting attorneys and detectives to develop cases involving child victims orothervictims with special needs,”52 no evidence shows interview specialists do more than interview child victims and, when requested, perform related duties. These three functions are not inherently governmental. At its core, Dawson Place advances the therapeutic process forchild victims of physical and sexual abuse by coordinating communication among different entities thatworkwith

51 We note thatWest agreed during oral argumentthatthe county prosecutor, not Dawson Place, decides whetherto bring criminal charges.

52 CP at 3424.

12No. 79656-9-1/13

victims and by providing a single location forentities working to assist child victims. Abuse victims benefitfrom this work, as do law enforcement, social service agencies, and health care organizations. Being a landlord, arranging meetings, exchanging information on victims ofabuse, and providing a meeting space are functions that can be performed by a public or private organization. And, forthe reasons thatfollow, Dawson Place’s interview specialists do not perform a nondelegable governmental function. Washington has made child abuse prevention and child safety a “paramount” concern.53 Dawson Place’s work protects public health and safety by helping victimized children. But, like the organization in DomesticViolence Services ofGreater New Haven, Dawson Place does not perform a nondelegable governmental function.54 Critically, Dawson Place has no control over investigatory and charging decisions because they are made exclusively by law enforcementorthe prosecuting attorney. Although “child interview specialists are an integral part of

~ ROW26.44.010 (‘When the child’s physical or mental health is jeopardized, orthe safety ofthe child conflicts with the legal rights ofa parent, custodian, or guardian, the health and safety interests ofthe child should prevail. When determining whether a child and a parent, custodian, or guardian should be separated during or immediatelyfollowing an investigation ofalleged child abuse or neglect, the safety ofthe child shall be the department’s paramount concern.”); see also ROW 26.44.175(1) (“The legislature finds thatthe purpose of multidisciplinary child protection teams

. . . is to ensure the protection and well being ofthe child and to advance and coordinate the prompt investigation of suspected cases ofchild abuse or neglectto reduce the trauma ofany child victim.”). See 47 Oonn. App. at474-75.

13No. 79656-9-1114

the investigative process” uncontested evidence shows police officers can conduct investigationswithout Dawson Place.55 Without any involvementfrom Dawson Place, a police officer can investigate a crime against a child and the prosecuting attorney can bring charges based on the investigation. When there
are no criminal allegations, Dawson Place often conducts forensic interviews to supporttherapeutic services. Just as law enforcement benefits from a hospital administering rape kits to sexual assault victims, law enforcement benefitsfrom Dawson Place’s mission and activities. But neither Dawson Place nor a hospital’s emergency department necessarily performs a nondelegable governmental function because oftheirwork. In Clarke, the animal shelter performed a nondelegable governmental function because ittook oversome ofthe municipality’s law enforcementfunctions foranimal regulation, including the authorityto unilaterally issue citations and seize private property.56 Here, as in DomesticViolence Services ofGreater New Haven, because the government retained the sole authorityto perform its nondelegable law enforcement and prosecutorial functions and Dawson Place’s

~ According to former Snohomish County Prosecuting Attorney Mark Roe, his office ‘can’t dictate to anybody in law enforcementwhatthey must and must notdo. Some kids are interviewed by an interviewspecialist, and some are not.” CP at 2251. Dawson Place Executive Director Lori Vanderburg also explained, “There are otherjurisdictions that have child interviewspecialists that [Snohomish County law enforcement officers] sometimes use. Sometimes detectives do their own interviews.

. . . So given different circumstances and different agencies, they have different people thatdo interviews. Some ofthem, detectives, do theirown, {e]specially forteens.” CP at 2566-67. 56 144 Wn. App. at 189-90.

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services benefit abuse victims regardless ofgovernment involvement, the first Telford factor is not met. B. Government Funding The second Telford factorweighs the extentto which governmentfunds the organization.57 An organization is less likelythe functional equivalent ofan agency where it receives less than 50 percent of its funds from government.58 More significant is whethergovernment provides afixed funding allocation or uses “an ordinaryfee-for-services model” to providefunding.59 The formerfavors functional equivalency and the latterdoes not.6° State, federal, and local government provided an average of60 percent of all monies Dawson Place received from fiscal year2010 through January 31, 201 7~61 Much ofthat government moneywas from 2010 and 2011 when Dawson

~ Fortgang, 187 Wn.2d at 518. 58 See

~. at 529 (“[Nb Washington case concludes that an entity’s funding supports PRA coverage in the absence of majority publicfunding.”).

~ See at 528 (“To the extent courts look beyond percentage and considerthe nature ofa publicfunding scheme, they hold

. . . that a fee-forservices model weighs againstfunctional equivalency even where an entity receives all or most of its funding from public sources.”) (citing DomesticViolence Servs., 47 Conn. App. at475-76; Envirotest Sys. Corp. v. Freedom of Info. Comm’n, 59 Conn. App. 753, 758-59, 704 A.2d 827 (2000)). 60 kI. at 528-29. 61 Dawson Place’s total operating revenue overthose years was $7,823,285, and, viewed in a light mostfavorable to nonmoving partyWest, $3,813,679 ofthatwas from governmentgrants. The “Organizational Funding Report” created by Dawson Place states that in 2010 it had over $1 .7 million in “operating revenue” and only $93,945 in government grants. CP at 3883. But otherdocuments, including a declaration and supporting documents from a Dawson Place board member, showthat it received over$1 million in government funds thatyear. CP at 3858, 3860-61. It appears Dawson Place may have

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Place received over$1.6 million from different government grants to buy and update its building. Since 2013, however, less than 50 percent of Dawson Place’s
revenue has come from government.62 No Washington case requires thatwe view an organization’s funding history only as a mathematical average, and the parties agree no authority requires that
we look atthe entirety ofan organization’s historywhen analyzing the government funding factor. Fortqanq’s emphasis on the form ofannual funding allocations— “i.e., designated levyfunds, instead offees forservice”—reveals that ourfocus should be on routine funding, not one-time allocations.63 Accordingly, we focus
our analysis on the amounts and methods of Dawson Place’s governmentfunding in recentyears.

mislabeled those large government grants in its funding report in the “operating revenue” category ratherthan the “government grants” category. Regardless, these differences are ultimately immaterial to our analysis.

62 Total revenue was 32 percent offunding in fiscal year2014, 24 percent in FY 2015, 35 percent in FY 2016, and 43 percentforthe period between July 2016 and January 31, 2017. See CP at 3883, 4313.

63 See Fortcianq, 187Wn.2d at 528-29. Ofcourse, ourfocus on routine funding underthese facts does not prevent courts from weighing one-time allocationswhere circumstances differ.

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Excluding fee-for-services rental income,64 less than 50 percent of Dawson Place’sfunding comes from government in a typical year.65 The largest share routinely comesfrom Snohomish County. Since late 2013 orearly 2014, Dawson Place’s child interviewspecialists have been funded largely by Snohomish County pursuantto a services contract. Dawson Place pays fortwo child interview specialists, and the county reimburses itfortheirservices. If Dawson Place fails to submit reimbursement claims within 90 days of providing services, then Snohomish County is not required to pay. Because less than 50 percent of Dawson Place’s routine funds come from government and, more significantly, thosefunds are all part ofafee-for-services exchange, this factorweighs against a finding offunctional equivalency. C. Extent ofGovernment Control We evaluate the extent ofgovernment control fora functional equivalency analysis by considering the degree ofgovernment control on “day-to-day operations.”66 The presence and extent ofgovernment regulation does not

64As the landlord to three government entities, Dawson Place receives moneyfrom government as rental income. The record does not separate the rental payments from governmenttenants and private tenants. Regardless, these payments are clearly a fee-for-services exchange. 65 Thirty-two percent of Dawson Place’s revenues came from government in fiscal year2014, 24 percent in FY2015, 35 percent in FY 2016, and 43 percent through January of FY2017. See CP at4314.

66 Fortqanci, 187 Wn.2d at 530 n.14, 531 (citing inter alia, Domestic Violence Servs., 47 Conn. App. at477).

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determinewhether government exerts control over daily operations.67 Butthe presence ofgovernment officials in positions ofauthority overthe organization can show government control.68 West contends Dawson Place is subjectto government control because “it operates pursuantto the express terms of State Lawand County protocols adopted as required by State Law.”69 Specifically, West argues RCW26.44.020, .180, and .185, interlocal agreements, and afederal memorandum of understanding (MOU) “explicitly control the function and operation ofthe center.”7° He is incorrect. To the extent chapter26.44 RCWaffects daily operations at Dawson Place, these are regulatory impacts and not actual control. Also, these statutes require action by Snohomish County alone,71 regardless ofwhether a statutory “child

67 ~ j~ at 530-531 (“There is no good reason to value government transparency more in a heavily regulated areathan in a less regulated area. Nor is there any good reason foran entityto be subjectto PRAtransparency requirements because other laws (or contracts) already mandate a certain amount oftransparency.”). 68 See Telford, 95 Wn. App. at 165 (concluding an organization was subject to government control where an association was “completely controlled by elected and appointment county officials,” despite lacking any “outside government control.”). 69Appellant’s Br. at28. 70 Id. at 35. 71 RCW26.44.180(2)(a) (“Each countyshall develop a written protocol.”); RCW 26.44.185(1) (same).

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advocacy center” exists.72 And where, as here, a child advocacy center is available in the county, the statutes do not regulate the advocacy center’s conduct. These laws do not show day-to-day governmental control. West contends that a “pervasive scheme of interlocal agreements” control Dawson Place’s daily operations,73 but Dawson Place is not partyto any interlocal agreements.74 Nor could it be because private nonprofit corporations, like Dawson Place, cannot enter into interlocal agreements underthe Interlocal Cooperation Act.75 West also distorts the record when he contends a “state-federal MOU[] control[sJ the function and operation of” Dawson Place.76 He relies on an MOU between the Federal Bureau of Investigation and the National Children’s Alliance,

72S~ RCW26.44.185(1) (counties must create child sexual abuse investigation protocols and must considerthe role ofa child advocacy centeronly “where available”).

~ Appellant’s Br. at 35.

~ West asserts “Dawson Place is a partyto Interlocal ‘Agency’ Cooperation Agreements with” Snohomish County and 11 municipalities, Appellant’s Br. at 28 n.15, butthe only “interlocal agreement” in the record is between Snohomish County and the City ofStanwood, not Dawson Place. CP at 3401. West’s briefing cites to clerk’s papers 3143 to 3278 as supportfor his interlocal agreement assertion, butthe only evidence about interlocal agreements in that section ofthe record also refers to the interlocal agreement between Stanwood and Snohomish County.

~ RCW 39.34.030(1) (authorizing interlocal agreements by any “public agency”); RCW 39.34.020(1) (defining “public agency” in relevant part as “any agency, political subdivision, or unit of local government ofthis state including, but not limited to, municipal corporations, quasi municipal corporations, special purpose districts, and local service districts”).

76Appellant’s Br. at 35.

19No. 79656-9-1120

which provides accreditation to child advocacy centers. Dawson Place is not a partyto the MOU. And even ifthe MOU applied to Dawson Place through the National Children’sAlliance, the memorandum does not give the FBI any operational control. Rather, it allows the FBI access to child advocacy center facilities so the FBI’s own child interviewspecialists can interview abuse victims. Dawson Place’s board is also not a source ofgovernment control. Dawson Place’s board and its executive director have control overdaily operations. Dawson Place’s bylaws are structured to ensure private individuals always comprise a majority ofthe board. Both atthe time of its creation and recently, the majority of Dawson Place’s board members are private individuals not employed by any government. In 2017, forexample, Dawson Place had 17 board members, and seven were employed bya governmententity. Onlythree ofthose seven represented government entities on the board. BecauseWestfails to show day-to-day government control over Dawson Place, this factor does notfavorfunctional equivalency. D. Government Origin West argues we should conclude Dawson Place was created bythe government because government employees were involved in its creation. Fortgang does notsupportthis approach.77 Fortgang does approve consideration ofwhether government action created the organization.78 This puts two concepts

~ Fortgang, 187 Wn.2d at 531 (rejecting an argument “that courts should

. . . askwhetherthe governmentwas involved in the entity’s creation”). 78 kI. at 531-32.

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in play. First, we considerwhetherthe organization was created by special legislation.79 As discussed, chapter26.44 RCW neither creates nor mandates the creation ofany child advocacy center. And Dawson Place was alreadyformed when the legislature amended RCW26.44.020, .180, and .185 to accountforchild advocacy centers. Second, we considerwho actually incorporated the organization.8° Dawson Place was incorporated by a private individual acting in his capacity as chiefexecutive for private organization Compass Health. Because government action did not create Dawson Place, the fourth Telford factordoes not supportfunctional equivalency. F. The Telford Factors Do Not Support Functional Equivalency Dawson Place supports a core governmental interest—protecting children from the harms of physical and sexual abuse—but does not do so by performing a nondelegable governmental function. Dawson Place is not primarilyfunded by government, is not controlled by government, and was not created by government. Dawson Place is not a “public agency” as defined in RCW42.56.010(1). II. West’s Motion to Continue West also appeals denial of his CR 56(f) motion to continue. Dawson Place argues the invited errordoctrine estops Westfrom assigning errorto denial of his motion. Underthe invited errordoctrine, “a party may not set up an error attrial

~ Id.
80 See k~. at 532 (“ButWPZS was incorporated solely by private individuals, so we cannot attribute its ‘origin’ to special legislation orothergovernment action.”); Clarke, 144 Wn. App. at 195 (“TCAC was formed as a private corporation, by private citizens, and is not an entity created bythe government.”).

21No. 79656-9-1/22

and then complain of it on appeal.”81 The doctrine applies when a partytakes “affirmative and voluntary action” that induces the trial courtto take an action later challenged on appeal.82 During the hearing on the motion to continue, West asked the trial courtto deny his continuance and proposed an alternative course ofaction. [W]hat I would like—what I’ve asked the courtto do is rule against the [CR] 56(f) motion, allow me to take a technical exception to that, and allowthe parties to file additional evidence as the court sees fit, including the deposition ofAdam Cornell, to the extentthatwe may need it.

But I would like to proceed forward today, if it all possible.

.

I believe these issues can all be addressed bythe court’s issuing a memorandum opinion and considering the deposition of Adam Cornell and whatfurtherfinancial information is necessary within a week oftoday’s hearing. That’s what I would askthe court [to] orderj83] The court did precisely as West suggested. It denied the continuance “exceptthatthe court agreed to take the matter underadvisement so thatthe recent deposition of Mr. Adam Cornell might be transcribed and submitted in such parts as any partywished, provided the excerpts complied with local rules.”84

81 Grange Ins. Ass’n v. Roberts, 179 Wn. App. 739, 774, 320 P.3d 77 (2013).82 Id. 83 RP (Oct. 31, 2017) at 19-20. 84 CP at 999.

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West now assigns errorto the ruling, butthe invited errordoctrine precludes him from doing so. Thus, we decline to considerthis issue. Ill. Dawson Place’s Motions to Strike West assigns errorto the court’s exclusion ofevidence on summary judgment. West submitted several sets ofdocuments labeled “Tables of Evidence.”85 He also submitted the entire transcriptfrom Cornell’s deposition and
a “Declaration re Deposition Excerpts” afterthe court denied the motion to continue. Dawson Place made two motions, each on different grounds, to strike the submissions. We review a grant ofa motion to strike evidence forabuse of discretion.86 The court excluded the “Tables of Evidence” because they “were not accompanied and authenticated by a declaration.”87 Evidence submitted on summaryjudgment must be admissible.88 A party offering a document in evidence must authenticate it.89 On summaryjudgment, CR 56(e) requires that evidence submitted be “[s]worn or certified” and eitherattached to orserved with an affidavit. Alternatively, GR 13(a) allows submission ofan unsworn statement in

85 CP at 3705 (first “table”), 3665 (second “table”), 3647 (third “table”). 86 Burmeisterv. State Farm Ins. Co., 92 Wn. App. 359, 365, 966 P.2d 921 (1998).87 CP at 1000. 88 SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40(2014). 89 Burmeister, 92 Wn. App. at 365 (citing ER 901).

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lieu ofan affidavit if it contains the proper recitation that itwas made under penalty of perjury. West’s ‘Tables of Evidence” did not complywith CR 56(e) or CR 13(a). He provided dozens ofdocuments in three submissions, each with a signed cover sheetthat merely listed the attached documents and made no recitation of accuracy orauthenticity. Because Westfailed to authenticate the documents he submitted, the court did not abuse its discretion by excluding them.9° The court also excluded the Cornell deposition transcript and related submissions provided in support ofWest’s summaryjudgment motion because theyviolated Snohomish County Superior Court Local Rule 7(b)(2)(d)(4). LCR 7(b)(2)(d)(4) requires that deposition testimony submitted in support ofa motion be “quoted verbatim” orthat “relevant pages thereof.

. . be attached to the motion.” The court’s oral ruling taking the CR 56(f) motion underadvisementto reviewthe transcript reflected this rule. The courttold the parties, “Ifthere’s something [significant] in this deposition transcript

. . . identifythatfor me so I can quickly and easilyfind it.”91 ButWest provided paraphrased selections from the deposition instead ofverbatim quotations and attached the entire 125-page deposition transcript instead ofthe “relevant pages thereof.” “Local rules forthe conduct of

~ West also contends ER 201 mandated the court’s acceptance ofcertain legislative and judicial documents. But ER 201(d) requiresjudicial notice only “if requested,” and he never made a request. 91 RP (Oct. 31, 2017) at26.

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trial courts are desirable and necessary; such rules should not be ignored.”92 Because West clearly did not complywith the local rule, the court did not abuse its discretion by excluding this evidence.93 

### IV. Dawson Place’s Motion For Sanctions Under RAP 18.9 Dawson Place urges us to sanction Westfor making arguments in his appellate briefs without citations to the record orto legal authority. West’s briefs contain numerous errors and omissions but are not so inadequate to warrant sanctions. Therefore, we affirm the trial court’s determination that Dawson Place is not subjectto the PRA and deny Dawson Place’s motion forsanctions on appeal.



### I,

V WE CONCUR:

92 Lemon v. Lemon, 59 Wn. App. 568, 574, 799 P.2d 748 (1990). See Allied Fin. Servs., Inc. v. Mangum, 72 Wn. App. 164, 169, 864 P.2d 1 (1993) (affirming exclusion ofwitnesses forviolation ofdiscovery order enforcing a local court rule); see also Carlson v. Lake Chelan Cmty. Hosp., 116 Wn. App. 718, 737-41, 75 P.3d 533 (2003) (affirming exclusion oftestimony under CR 26(g) for violations ofdiscovery rules).

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