IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JASON DILLON, an individual, Appellant,

v. DIVISION ONE No. 69300-0-1 (Linked with No. 68345-4-1) as* zsz o C/5CD

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—r—^*- SEATTLE DEPOSITION REPORTERS, LLC, a Washington company; DAVIS WRIGHT TREMAINE, LLP, a Washington company; JAMES GRANT and Jane Doe Grant, individually and the marital community composed thereof ifany, Defendants. PUBLISHED OPINION
—irTMi *r o —

FILED: January 21, 2014 

### Dwyer, J.—Washington's anti-SLAPP1 statute protects persons who engage in "action[s] involving public participation and petition" from having to 

### defend against aclaim based on those actions.2 The recording oftelephone conversations is not such an action. This is so even when such recording is 

### designed to gatherevidence for a lawsuit between private parties. The antiSLAPP statute does not operate totransform unprotected activity into protected 

### activity simply becauseit is undertaken during thecourse ofa lawsuit.

1Washington Act Limiting Strategic Lawsuits Against Public Participation. 2RCW4.24.525(2).No. 69300-0-1 (Linked with No. 68345-4-l)/2
In the matter before us, Jason Dillon filed suit against Seattle Deposition Reporters, LLC, Davis WrightTremaine, LLP, and James Grant (collectively 

### SDR), alleging certain violations oftheprivacy act3 for having recorded Dillon's telephone conversations with Grant and Cassandra Kennan without his knowledge. SDR moved for dismissal on summary judgment, asserting that the conversations were not private and that Dillon's claims were barred by collateral estoppel. SDR also moved to strike the claims pursuant to the anti-SLAPP statute. The trial court ruled that Dillon had no expectation of privacy in the 

### telephone conversations and granted the motion for summaryjudgment. The trial court further found that the anti-SLAPP statute applied, and awarded to SDR 

### statutory damages of$10,000 perdefendant plus attorney fees of$40,000. Judgment in the total amount of $70,000 was entered against Dillon. Dillon contends that the trial court erred by granting summaryjudgment, 

### asserting thatgenuine issues ofmaterial fact exist as towhetherthetelephone conversations he had with Grant and Kennan were private. Dillon also avers that 

### the anti-SLAPP statute does not apply to his claims. Because Dillon presented triable issues of fact, and collateral estoppel does not apply to preclude his 

### privacy actclaims, thetrial court erred by entering summaryjudgment in favor of SDR. Furthermore, the anti-SLAPP statute does not apply to Dillon's claims, as SDR's actions did not involve public participation or petition. Thus, we reverse 

### thejudgment and remand the causefor further proceedings consistentwith this opinion. 3 Ch. 9.73 RCW.No. 69300-0-1 (Linked with No. 68345-4-l)/3

I Dillon is the former vice-president of NetLogix, a company headed by Scott Akrie and based in San Diego, California. NetLogix contracted with TMobile to "perform services in connection withthe build out of [T-Mobile's] cellular phone network inCalifornia." In 2010, NetLogix sued T-Mobile in the United States District Court, Western District ofWashington, for breach of contract. Grant and Kennan represented T-Mobile in the federal court lawsuit. 

### OnAugust 24, 2011, Dillon e-mailed Grant and Kennan at theirlaw firm, Davis 

### Wright Tremaine (DWT), stating that he would like to "talk about the facts" in the pending federal courtaction. Kennan arrangedfor Dillon to call the next day. Dillon telephoned DWT offices as planned on August25, 2011. At the
start of the conversation, Grant told Dillon, 

### Iwanted to point out something before we get started because we 

### haveyou on the speaker phone because Cassi and Iare both here. And I've gotmy assistant Thad, who's writing stuffdown so that we don't have to worryabout taking notes while we're talking to you. 

### ThadByrd was not, in actuality, Grant's assistant. Rather, he was a 

### certified court reporter employed by Seattle Deposition Reporters. DWT had 

### previously made arrangements with Seattle Deposition Reporters tohave a court 

### reporter sit in on and transcribe the telephone conversation. Byrd setup his stenographic equipment in the room with Grant and Kennan and transcribed their conversation with Dillon. Neither Grant, Kennan, nor Byrd apprised Dillon of this
information. Before revealing any information, Dillon told Grant,

-3-No. 69300-0-1 (Linked with No. 68345-4-l)/4 You know, my only concern is Ijust need to make sure that I'm protected as well ifScott tries to come after me, or Idon't want you guys trying to come after me or T-Mobile. Iwant to make sure I'm protecting myself, but Idid want to speak with you guys. Grant responded, "Okay, understood. At this time, we just want to hear what you have to say." Dillon also stated, "Just so Iprotect myself, maybe it's better that I actually just get my own attorney, talk to them about kind ofwhat-you know, about the information and get some advice from them, and then call you guys back." Nonetheless, Dillon continued the conversation with Grant and Kennan. 

### Dillon proceeded to describe various instances of misconduct by both parties to the federal court action, including a kickbackscheme instituted byT-Mobile 

### employees, falsification ofrecords committed by NetLogix employees, andwillful destruction of unfavorable evidence committed by Akrie or at Akrie's direction. Dillon also stated that Akrie "offered me 10 percent of the profit of this lawsuit to 

### support him," and that he did not "have a problem writing a declaration for you guys." 

### Dillon telephoned DWT again on September 16, 2011. This telephone call 

### was also transcribed by an employee ofSeattle Deposition Reporters.4 Again, Dillon was notapprised ofthe presence ofthe courtreporter, or even ofanyone there to "take notes" during this call. During this call, Dillon confirmed, with one 

### small change, thewritten declaration Grant and Kennan had previously prepared

4Mark Hovila was the courtreporter forthe second telephone call. Neither Byrd nor Hovila is a party to this action.No. 69300-0-1 (Linked with No. 68345-4-l)/5
and sent to him. The following exchange occurred between Grant and Dillon during the call: Q. [Grant]. Ihad thought of actually putting something inthe declaration saying that that's your concern and that's why you approached us, that your concern is that you had been told, instructed to provide information that was inaccurate. Is that something that you'd be comfortable saying, or thatjust between us at this point? A. [Dillon]. Sure. Q. Okay. A. Well, actually Italked with a friend who's an attorney, and he 

### said just to protect myselffrom Scott is-Scott and Bill, Iguess, 

### mainly, is, you know, for you guys to take my deposition again and ask these questions, so I'm under oath and they can't come back 

### and say that, you know, that I'm trying to maliciously hurtScott. I'm not. Dillon also elaborated on information he had revealed during the first call, and informed Grant and Kennan that Akrie had coached NetLogixemployees on what 

### to sayin connection with thelawsuit. However, 10 days later, Dillon e-mailed Grant and Kennan stating that he was "unable to sign" the declaration they had 

### prepared.5 On October 6, 2011, T-Mobile filed a motion for dismissal in the federal 

### court action alleging spoliation ofevidence, basedlargely on statements uttered 

### by Dillon in thetelephone conversations. Given that Dillon refused tosign the proffered declaration, T-Mobile filed portions ofthetranscripts ofboth calls in 

### support ofthe motion. After Dillon learned ofthis, hesent ane-mail to Grant and Kennan expressing his "outrage" atthem for having "deceivingly record[ed]" the conversations. NetLogix and Dillon then requested copies ofthetranscripts in

5 Dillon also sent the e-mail to Akrie.
-5No. 69300-0-1 (Linked with No. 68345-4-l)/6
their entirety. DWT refused NetLogix's request, asserting that the transcripts 

### were protected by thework product privilege.6 On February 2 and February 16, 2012,7 thefederal court held an evidentiary hearing to determine whether NetLogix had willfully destroyed evidence and if dismissal was warranted as a result. The court called Dillon to testify as a witness at that hearing. Dillon disavowed a number ofstatements from both the August 25 and September 16 telephone calls, and repeatedly testified that he had made various previous statements "out of frustration." The court requested briefing from both parties prior to making a credibility determination as to Dillon's testimony. The federal court issued its ruling on March 14, 2012. The court found 

### that Dillon's statements in the telephone conversations were credible, and that 

### Dillon's testimony at the evidentiary hearing was "wholly incredible." The court further found that the transcripts presented "overwhelming evidence of 

### spoliation," and concluded thatdismissal ofthe case was "the only appropriate remedy" given the egregious misconduct committed by the plaintiffs. In its written opinion, the court stated, "[T]he Court does notbelieve thatDefendant's counselviolated Washington law by recording theirdiscussionswith Dillon." Volcan Grp.. Inc. v. T-Mobile USA. Inc.. 940 F.Supp.2d 1327, 1338 (W.D. Wash. 

### 2012). In a footnote to its opinion, the court stated:

6The federal court later determined that DWT had waived any privilege byfiling portions ofthetranscripts with thecourt, andordered thatDWT produce thetranscripts in full. 7The federal court truncated the hearing on February 2, continuing the matteruntil February 16toallow Dillon time toreview thetranscripts ofthetelephone calls.
-6-No. 69300-0-1 (Linked with No. 68345-4-l)/7 Although Dillonclearly did not consent to a transcription of his conversation with Defendant's counsel, that is not to say that he intended the call to be "private." On the contrary, Dillon clearly understood that Defendant's counsel intended to use the information he was providing in connection with these proceedings, and Dillon even offered to provide them with a sworn declaration regarding his statements. As such, those statements were not intended to be, and were not in fact, "private." Volcan Grp.. 940 F.Supp.2d at 1338 n.7. The court granted the motion to dismiss, but not before admonishing both parties and their counsel for their 

### unprofessional behavior.8 Dillon filed suit against SDR in King County Superior Court, alleging that the various defendants violated the privacy act by recording the telephone 

### conversations of August 25 and September 16. SDR moved for summary 

### judgment, asserting that theconversations were not private and thatcollateral estoppel barred Dillon's claims. SDR also moved to strike Dillon's claims 

### pursuanttoWashington's anti-SLAPP statute. In opposition toSDR's motions, Dillon submitted a declaration, wherein he asserted that he "specifically told 

### [Kennan] thatIdid notwant anything Itold them in thetelephone conversations

8As to T-Mobile's and DWT's behavior, the court stated: Neither Defendant nor its counsel should be proud of this result. While the Court does not believe that Defendant's counsel violated Washington law by recording their discussions with Dillon, it is clear that the representations they made to Dillon at the outset ofthose discussions led him to adopt the mistaken belief that his statements were not being transcribed. The Court believes that Defendant's counsel knew ofDillon's misunderstanding, but intentionally did nothing to correct it. TheCourt questionswhethersuch conduct can be squaredwith [the] demanding standards ofa lawyer's professional responsibilities under RPC 4.1(a). Volcan Grp., 940 F.Supp.2d at 1338 (footnote omitted). The courtfurther noted, "The Court has nodoubt thatDefendant initially redacted theTranscripts in ordertoconceal Dillon's statements regarding thekickback scheme." Volcan Grp.. 940F.Supp.2d at 1338 n.8. RPC 4.1 states, in relevant part, "In the course ofrepresenting a client a lawyer shall not knowingly: (a) make afalse statement ofmaterial fact orlaw to athird person."No. 69300-0-1 (Linked with No. 68345-4-l)/8 to be part ofthe public record" and that he agreed to speak with Grant and Kennan only after they assured himthat the conversations would be kept 

### private.9 Dillon moved to bifurcate the anti-SLAPP hearing in orderto address 

### thetwo steps ofthe statutory inquiry separately,10 and moved tocompel outstanding discovery. The trial court denied both ofDillon's motions. The trial court heard both of SDR's motions on June 15, 2012. The trial 

### court heard argument and issued its ruling on the summary judgment motion before itconsidered the anti-SLAPP motion. In ruling on the summaryjudgment 

### motion, the trial court declined to apply collateralestoppel to preclude Dillon's 

### claims. However, relying on State v. Townsend. 147Wn.2d 666, 57 P.3d255 

### (2002), Statev. Clark. 129 Wn.2d 211, 916 P.2d 384 (1996), and Statev. Mankin. 158Wn. App. 111,241 P.3d 421 (2010V review denied. 171 Wn.2d 

### 1003 (2011), thetrial court ruled thatDillon had no subjective expectation of privacy when hetelephoned Grant and Kennan. This was so, thetrial court explained, because: 

### Now, he may have had an . . . expectation ofprivacy thathis words would not be transcribed word byword, but he certainly knew that 

### he was talking to lawyers whowould be taking notes. There's no reason why he didn't think otherwise. And he also had reason to believe that the lawyers would be 

### talking to other people about whatthey had heard in the meeting, that they would be drafting a declaration. And
... so there was no 9Dillon originally submitted his declaration in thefederal court action. An exact copy thereof was submitted in this action as an attachment to the declaration of Dennis Moran. 10 "A moving party bringing a special motion tostrike a claim underthis subsection has the initial burden ofshowing by a preponderance oftheevidence that theclaim isbased 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 aprobability ofprevailing on the claim." RCW 4.24.525(4)(b).
-8-No. 69300-0-1 (Linked with No. 68345-4-l)/9 expectation of privacy with respect to what was said in that meeting. Mr. Dillon had indicated to others that he was going to have the meeting. He, in fact, told others after the meeting . . . what had occurred. The trial court then went on to consider the anti-SLAPP issue. The trial court began by saying, "It seems like the Court's already ruled on the second part 

### ofthat, because . . . atthis point, Mr. Moran[11] won't be able to show
... by clear and convincing evidence a likelihood ofprevailing on the merits . . . ." After 

### argument byboth parties, the trial court asked counselfor SDR whether"the fact that this Court has already made a ruling on the summary judgment motion 

### enter[s] into" the analysis of whetherSDR could show that its conductfell under the ambit of the anti-SLAPP statute. SDR's counsel replied, Yes, because I've shown you by a preponderance of the evidence 

### and, indeed, more than by. I've shown you as a matter oflaw in the 

### undisputed facts that the activity that gave rise to thisclaim is other lawful conduct infurtherance of this right to participate in governmental functions. 

### The trial court agreed, deciding the anti-SLAPP issue as follows: 

### [T]he issue before the Court is whether or notthe petitioner under the SLAPP statute has shown by a preponderance of the evidence that this action or this lawsuit is based on an action involving public participation. And
... it seems clear to the Court that the meeting that took 

### placein Mr. Grant's office was certainly in connection with ajudicial proceeding. And so . . . thatbrings us to the next question, which is[,] was this lawful conduct^?] And . . . that's where we get to I think the California case where we had a rogue investigator who 

### had been found to have engaged in criminal conduct in wiretapping

11 Counsel for Dillon.
-9No. 69300-0-1 (Linked with No. 68345-4-l)/10



### numerous telephones.1121 And the California Court said - first they pointed out - that these activities were found to be criminal extortion as a matter of 

### law, and then they go on to say when a defendant's assertedly 

### protectedactivity may or may not be criminal activity, the defendant 

### mayinvoke the anti-SLAPP statute unless the activity is criminal as a matter of law. Well, this Court has already found as a matter of law that the 

### activity was notcriminal, and therefore, the Courtfinds that the Gerbosi case is distinguishable. 

### And
... Ido agree with Mr. Cromwell1131 thatthe analysis is fairly straightforward here. TheCourt needs to only find that the 

### activity that isthe subject ofthe privacy actclaim was lawful activity in connection with ajudicial proceeding, and that was, Ithink, quite 

### clearly the case. And
.. . this only needs to be established by a 

### preponderance oftheevidence, and Ithink thatthepetitioners have satisfied that burden. And the burden, then, ofcourse shifts to the other side to 

### show by clear and convincing evidence that they're likely toprevail on the merits. And since I've already granted summaryjudgment 

### for the SLAPP petitioners on that issue, Ifind that that burden cannot be met. And therefore, Iconclude that the SLAPP petition should be granted. 

### Dillon filed a motion forreconsideration, which the trial court denied in all 

### substantive respects.14 Pursuantto theanti-SLAPP statute, thetrial court awarded toSDR the statutory damage amount of$30,000 ($10,000 for each defendant) and $40,000 in attorneyfees and costs. Dillon appeals.

12 Gerbosi v. Gaims. Weil. West &Epstein. LLP. 193 Cal.App.4th 435, 122 Cal.Rptr.3d 73 (Cal.App. 2011). 13 Counsel for SDR.
..... _, 

### 14The trial courtgranted the motion with respectto its failure to comply with the five day 

### notice requirementofCR 54(f)(2) before issuing its order. The courtreissued its order, without substantive amendment, on August 31, 2012.
-10-No. 69300-0-1 (Linked with No. 68345-4-1)711

Dillon first contends that the trial court erred by granting summary judgment in favor of SDR on his privacy act claims. This is so, he asserts, because triable issues of fact exist as to whether the telephone conversations between Dillon, Grant, and Kennan were private. We agree. In considering this contention, we employ a familiar standard ofreview. We engage in a de novo review of a ruling granting summary judgment. Anderson v. Weslo. Inc.. 79 Wn. App. 829, 833, 906 P.2d 336 (1995). Thus, we engage in the same inquiryas the trial court. Wilson Court Ltd. P'ship v. Tony Maroni's. Inc.. 134Wn.2d 692, 698, 952 P.2d 590 (1998). Summaryjudgment is properly 

### granted when the pleadings, affidavits, depositions, and admissions on filedemonstrate that there is no genuine issue of material fact and that the moving party is entitled to summaryjudgment as a matter of law. CR 56(c): Hutchins v. 1001 Fourth Ave. Assocs.. 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). All reasonable inferences from the evidence must be construed in favor of the 

### nonmoving party. Lamon v. McDonnell Douglas Corp.. 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). Green v. Normandy Park Riviera Section Cmtv. Club. 137 Wn. App. 665, 681, 151 P.3d 1038(2007). Washington's privacy act provides, in relevant part: 

### (1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any: 

### (a) Private communication transmitted by telephone, 

### telegraph, radio, or otherdevice betweentwo or moreindividuals between points within orwithout the state by any deviceelectronic or otherwise designed to record and/or transmit said 

### communication regardless how such device is powered or actuated, without first obtaining the consent ofall the participants in the communication;

11No. 69300-0-1 (Linked with No. 68345-4-l)/12 (b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation. RCW 9.73.030(1). Violation ofthe privacy act is a gross misdemeanor, and is also actionable in tort. RCW 9.73.060, .080. "We engage in a four-pronged analysis to determine whether an individual has violated the Act." State v. Roden. 169 Wn. App. 59, 64, 279 P.3d 461 (citing State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004)), review granted. 175 Wn.2d 1022, 291 P.3d 253 (2012). There must be proofof, "(1) a private communication 

### transmitted by a device, which was (2) intercepted by use of (3) a device 

### designed to record and/or transmit, (4) without the consent ofall parties to the privatecommunication." Christensen. 153 Wn.2d at 192. 

### Here, only the first element, whetherthe conversation was private, is at issue. "[T]he question ofwhethera particular communication is private is 

### generally a question offact, but one thatmay bedecided as a question oflaw if the facts are undisputed." Townsend. 147Wn.2d at 673 (citing Clark. 129Wn.2d 

### at 225). Although the privacy act does not define "private," ourSupreme Court has "adopted the Webster's Third New International Dictionary (1969) definition of'private' as '"belonging to one's self.
. . secret. . . intended only for the 

### persons involved (aconversation).
. . holding a confidential relationship to something
... a secret message: a private communication
. . . secretly: notopen 

### orin public. Lewis v. Dep't ofLicensing. 157 Wn.2d 446, 458, 139 P.3d 1078

12No. 69300-0-1 (Linked with No. 68345-4-l)/13 (2006) (alterations in original) (internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992)). A communication is private within the meaning of the privacy act only "'(1) when parties manifest a subjective intention that it be private and (2) where 

### that expectation [ofprivacy] is reasonable.'" State v. Modica. 164 Wn.2d 83, 88, 186 P.3d 1062 (2008) (quoting Christensen, 153 Wn.2d at 193). A courtwill 

### "generally presume thatconversations betweentwo parties" over the telephone "are intended to be private." Modica, 164 Wn.2d at 89. 

### Here, it is disputed whether Dillon manifested a subjective intention that 

### the conversations were private. Dillon stated repeatedlyduring the August 25 

### call, and again during the September 16call, that he was concerned about 

### protecting himselffrom Akrie. Dillon later submitted a declaration tothetrial court asserting that heintended for theconversations to beprivate, and would not have called Grant and Kennan had he thought otherwise. Given that Dillon 

### latertold Akrie about the conversations, it is possible that Dillon did not actually 

### intend for the conversations to be private.15 However, on summaryjudgment, the facts must be viewed in the light mostfavorable to Dillon, the nonmoving party. Mountain Park Homeowners Ass'n. Inc. v. Tvdings. 125 Wn.2d 337, 341, 883 

### P.2d 1383 (1994). Therefore, atriable question offact exists as to whether Dillon 

### subjectively intended the conversations to be private. The trial courterred by ruling as a matter oflaw that Dillon had no such intent. 15 Significantly, and militating in Dillon's favor, "[t]he relevanttime for assessing the 

### [plaintiffs] intentand reasonable expectations is atthe time ofthe conversation," not afterward. Clark. 129Wn.2dat228. -13-No. 69300-0-1 (Linked with No. 68345-4-l)/14 However, summaryjudgment would still have been appropriate if Dillon's subjective intent was not reasonable as a matter of law. See Modica. 164 Wn.2d at 88 (A'"communication is private where
. .. that expectation [of privacy] is reasonable.'" (quoting Christiansen. 153 Wn.2d at 193)). Factors bearing on the reasonableness of an expectation of privacy include "(1) duration and subject matter of the conversation, (2) location ofconversation and presence or potential 

### presence of a third party, and (3) role of the nonconsenting party and his or her 

### relationship to the consenting party." Lewis. 157Wn.2d at 458-59 (citing Clark, 129 Wn.2d at 225-27). Here, the second factor weighs in favor ofDillon. Dillon spoke with Grant 

### and Kennan over the telephone and had no way ofknowing ifthe conversation


### was being transcribed without being so told. Grant and Kennan werespeaking from DWT offices, a place where one would not expect third parties to be 

### present. Although Grant informed Dillon that"Thad" waspresent during thefirst call, Grant disingenuously introduced Byrd as ifhe were a DWT employee "taking notes," not a third party transcribing the conversation. Even worse, Grantand Kennan never told Dillon about the presence ofanother person during the
second call. The third factor, on the other hand, weighs in favor of SDR. Grant and 

### Kennan represented T-Mobile, the party adverse to Dillon's former employer in the federal court action. Dillon was aware ofthe ongoing litigation and Grant's 

### and Kennan's role in it, and purposely divulged information that he knew would
benefit T-Mobile.
-14-No. 69300-0-1 (Linked with No. 68345-4-l)/15 

### As to thefirst factor, the aspect ofthe subjectmatter isin dispute.16 Dillon urges this court to distinguish between the conversation itself and the content of the conversation when determining whether a conversation is "private" for purposes ofthe act. SDR, citing Modica. asserts that this distinction only matters when one party uses the other as a "private messenger." However, Modica says nothing about "private messengers." To the contrary, the Modica court specifically stated that "the mere fact that a portion of the conversation is intended to be passed on does not mean a call is not private." 164 Wn.2d at 89- 

### 90. Instead, privacy "must be determinedfrom the totality of the circumstances." Modica. 164 Wn.2d at 90. The Modica court held that although Modica and his 

### grandmother might have intended their conversation to be private, that intent was not reasonable. 164 Wn.2d at 88. This was so, the court held, because Modica


### was in jail at the time and both parties "knew they were being recorded and that
someone might listen to those recordings." Modica. 164Wn.2d at 88. The State in that case asserted that because Modica intended for his 

### grandmother to relay messages to hiswife, Modica's conversations with his 

### grandmother could not be private. Modica. 164 Wn.2d at 89. Thecourt explicitly rejected this argument. Modica. 164Wn.2d at 89. In doing so, the court contrasted Modica's conversation with the conversation in State v. Forrester. 21 

### Wn. App. 855, 587 P.2d 179(1978). Forrester called the police and confessed to a murder, then stated that unless he was given $10,000, he would kill again. 16 The duration of the callsweigh inDillon's favor. The first conversation lasted approximately 80minutes and thesecond lasted approximately 50minutes. Thesewere not merely briefexchanges on the street, as in Clark, 129Wn.2d at230-31.
-15-No. 69300-0-1 (Linked with No. 68345-4-l)/16
Modica. 164 Wn.2d at 89 (citing Forrester. 21 Wn. App. at 861-62). In Forrester, the court had found that the conversation was not private because "the caller was using the telephone to attempt the commission of a crime and to threaten the commission of other murders if his demands were not met." 21 Wn. App. at 862. Notably, the Forrester court had contrasted its case with State v. Wanrow. 88 Wn.2d 221, 559 P.2d 548 (1977), in which the court found that even where the 

### caller reported the commission ofacrime, the conversation was private.17 Forrester. 21 Wn. App. at 862. Dillon's situation is not comparable to that set forth in Forrester. Dillon did 

### not make any threats or demand money; rather, he described T-Mobile's and 

### NetLogix's attempts to do so. Nor isDillon's situation comparable to that of 

### Modica, who was aninmate atthe time ofhis conversation18 and knew that he
was being recorded. Modica, 164Wn.2d at 88. Simply because Dillon was 

### divulging information pertinentto a civil suitdoes not mean thatDillon's 

### expectation ofprivacy wasunreasonable as a matter oflaw. Unlike in criminal cases, the parties to a civil suitmay take the deposition ofanypotential witness.19 CR30(a). Additionally, attorneys may and, indeed, in this case did,

17 The legislature hassince amended the privacy acttoexempttelephone calls wherein someone reports a crime. RCW 9.73.030(2)(a). 18 Inmates automatically have a reduced expectation ofprivacy. Modica, 164 Wn.2d at 88. 19 Forthis reason, State v. Mankin, 158Wn. App. 111, 241 P.3d421 (2010), cited by SDR, isinapposite. In Mankin, thedefendant's attorney attempted tointerview three police officers involved in his client'scriminal case. 158Wn. App. at 115. When the officers refused to allow defense counsel to record them, defense counselterminated the interviews. Mankin, 158 Wn. App. at 115. Mankin moved to depose the officers, asserting that because the interviews were not private, the officers had no basis underthe privacy actfor their refusal. Mankin, 158 Wn. App. at 115. The trial court ruled thatthe conversations were not private and granted
-16-No. 69300-0-1 (Linked with No. 68345-4-l)/17
ask someone with personal knowledge of relevant facts to sign a written declaration attesting to those facts. GR 13(a). Given these alternate, legitimate
means ofobtaining relevant evidence, it is not, as a matter of law, unreasonable for a potential witness to expect that his initial conversation with a party's attorneys would be private. Thus, the first factor in its entirety also favors Dillon. With the balance ofthe three factors in Dillon's favor, triable questions of fact exist as to whether Dillon subjectively and reasonably believed that his conversations with Grant and Kennan were private. The trial court erred by holding, as a matter oflaw, that the conversations were not private.
Ill SDR contends that we should affirm the trial court's grant of summary 

### judgment on the basis ofcollateral estoppel. This is so, they assert, because the federal court in Volcan Grp. held that the conversations were not private and that


### no violation of the privacy act had occurred. 940 F.Supp.2d at 1338. We disagree. Collateral estoppel, otherwise known as issue preclusion, "'prevents 

### relitigation ofan issue afterthe party estopped has had a full andfair opportunity
Mankin's motion. Mankin, 158Wn. App. at 116. On appeal, Division Two of this court held that the officers had no reasonablesubjective expectation ofprivacy in their interviews. Mankin, 158 Wn. App. at 118. In so holding, the courtstated that "thecommunications involved defense investigation ofactions by public employees
. .. performing theirjobs, which investigation led to thepublic criminal prosecution ofMankin" and that defense counsel's"notes andinterview summaries could 'be subjecttodisclosure attrial ifcounsel or theinvestigator should becalled as a witness by the defensefor thepurpose ofimpeaching thetestimony given by a previously interviewed prosecution witness.'" Mankin, 158Wn. App. at 118(quoting Statev. Yates, 111 Wn.2d 793, 796, 765 P.2d291 (1988)). Unlike in civil matters, depositions are permitted in criminal matters only in one ofthree circumstances andonly upon order ofthecourt. CrR 4.6(a). Moreover, the Mankin courtexplained that "thepublic nature of the officers' role was an important factor" in its holding. 158Wn. App. at 120. Thisfactor is not present in this case.
-17-No. 69300-0-1 (Linked with No. 68345-4-l)/18

to present its case.'" Lemond v. Dep't of Licensing. 143 Wn. App. 797, 803-04, 180 P.3d 829 (2008) (internal quotation marks omitted) (quoting Barr v. Day. 124 Wn.2d 318, 324-25, 879 P.2d 912 (1994)). In order for collateral estoppel to apply, the following four elements must be present: "(1) identical issues; (2) a finaljudgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in 

### privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied." Reningerv. Dep't of Corrs., 134 Wn.2d 437, 449, 951 P.2d 782 (1998) (quoting Southcenter Joint Venture v. Nat'l Democratic Policy Comm., 113Wn.2d413, 

### 418, 780 P.2d 1282 (1989)). The party seeking the application ofcollateral 

### estoppel has theburden ofproofand "[f]ailure toestablish any oneelement is fatal to theproponent's claim." Lopez-Vasquez v. Dep't ofLabor &Indus.. 168 Wn. App. 341, 345, 276 P.3d 354 (2012). 

### The primary issuein thefederal court action was whether evidence had beendestroyed and, ifso, whether suchspoliation warranted dismissal of 

### NetLogix's contract claim. SeeVolcan Grp.. 940 F.Supp.2d at 1328. As such, the focus of the federal court's evidentiary hearing was on the substance of the 

### telephone conversations. In its opinion, thefederal court stated thatit "does not believe" that SDRviolated the privacy act. Volcan Grp., 940 F.Supp.2d at 1338. The court's beliefis not a final judgment on the merits. The issue in this case was notfully and fairly litigated in the federal court action. Nor is this a case in which the party against whom collateral estoppel is 

### asserted was in privity with a party to the prior adjudication. Dillon was nota
-18-No. 69300-0-1 (Linked with No. 68345-4-l)/19
party to the federal court action. Moreover, at the time of the conversations at issue, Dillon was no longer employed by NetLogix. Nevertheless, SDR asserts that Dillon was in privity with NetLogix because he was a participant in NetLogix's "fraud" and stood to benefit financially from an outcome favorable to NetLogix in the federal court lawsuit. SDR cites to Garcia v. Wilson. 63 Wn. App. 516, 820 P.2d 964 (1991), for the proposition that Dillon, despite his nonparty status, was "virtually represented" by NetLogix inthe federal court action. In Garcia, however, we listed a number offactors to consider when determining whether the doctrine of virtual representation applies: 

### (1) "whether the nonparty in some way participated in the former adjudication, for instance as a witness"; (2) "[t]he issue must have been fully and fairly litigated at 

### the formeradjudication"; (3) "the evidence and testimony will be identical to that 

### presented in the former adjudication"; and (4) "there must be some sense that the separation of the suits was the product of some manipulation or tactical maneuvering, such as when the nonpartyknowingly declined the opportunity to intervene but presents no valid reason for doing so." 63 Wn. App. at 521. The fourth factor is notably missing in this case. The separation ofDillon's 

### state courtprivacy act suit and the federal court suit was not the product of manipulation or tactical maneuvering. The federal court suit was a contract 

### dispute between two companies; Dillon lacked a basis to seek to intervene as a 

### party.20 Moreover, Dillon lacked standing to challenge thefederal court's
20 Additionally, the defendantsin thetwo cases are completely different, and the alleged privacy actviolation did notoccuruntil well afterthefederal court lawsuit wasfiled.
-19-No. 69300-0-1 (Linked with No. 68345-4-l)/20
determination that his conversations were not private. Cf. Olympic Tug &Barge. Inc. v. Dep't. of Revenue. 163 Wn. App. 298, 303, 259 P.3d 338 (2011) ("A party may not be denied the chance to litigate an issue ifitwas statutorily denied an 

### opportunity to appeal."), review denied. 173 Wn.2d 1021 (2012); State Farm Mut. Auto. Ins. Co. v. Avery. 114 Wn. App. 299, 309, 57 P.3d 300 (2002) (same). 

### Accordingly, SDRfailed to establish that Dillon was in privity with NetLogix, such that collateral estoppel would bar Dillon's privacy act claims. The trial court 

### properly declined to apply collateral estoppel so as to bar Dillon's claims.
IV Dillon next contends that the trial court erred, in two respects, in granting 

### SDR's motion to strike his privacy act claims pursuant to the anti-SLAPP statute. Dillon asserts, first, that the trial court erred when itconducted the SLAPP 

### hearing in an order reversed from therequirements oftheanti-SLAPP statute, and second, that thetrial court erredby holding thatSDR metits burden of 

### proving that its conductwas protected by the anti-SLAPP statute. We agree with
both assertions. 

### This appeal presents issues offirst impression regarding Washington's anti-SLAPP statute. In 2010, the legislature amended the anti-SLAPP statute by 

### adding RCW 4.24.525 to address "lawsuits brought primarily to chill the valid exercise ofthe constitutional rights offreedom of speech and petition for the 

### redress ofgrievances." Laws of2010, ch. 118, § 1 (1)(a). Because the "costs associated with defending such suits can deterindividuals and entities from fully 

### exercising their constitutional rights to petition the government and to speak out
-20-No. 69300-0-1 (Linked with No. 68345-4-l)/21 on public issues," the statute provides "an efficient, uniform, and comprehensive method for speedy adjudication" with the available award of "attorneys' fees, costs, and additional reliefwhere appropriate." Laws of 2010, ch. 118, § 1 (1)(c), (2)(b), (c). Under the anti-SLAPP statute, a party may bring a special motion to strike 

### "any claim that is based on an action involving public participation and petition." RCW 4.24.525(4)(a). In deciding an anti-SLAPP motion, a court must follow a 

### two step process. A partymoving to strike a claim has the initial burden of showing by a preponderance of the evidence that the claim targets activity 

### "involving public participation and petition," as defined in RCW 4.24.525(2). U.S. Mission Corp. v. KIRO TV. Inc.. 172 Wn. App 767, 782-783, 292 P.3d 137, 

### review denied. 177Wn.2d 1014(2013). 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." RCW 4.24.525(4)(b). Ifthe 

### responding party fails to meetits burden, thecourt must grantthe motion, dismiss the offending claim, andaward the moving party statutory damages of $10,000in addition to attorneyfees and costs. RCW 4.24.525(6)(a)(i),(ii).
A Dillon contends that the trial court erred when it shifted the burden of proof 

### to him to show a probability ofprevailing onhis claims before SDR had metits initial burden. We agree.

21No. 69300-0-1 (Linked with No. 68345-4-l)/22

The anti-SLAPP statute mandates that: All discovery and any pending hearings or motionsin the action shall be stayed upon the filing of a special motion to strike under subsection (4) of this section. The stay of discovery shall remain in effect until the entry ofthe order ruling on the motion. Notwithstanding the stay imposed by this subsection, the court, on motion and for good cause shown, may order that specified 

### discovery or other hearings or motions be conducted. 

### RCW 4.24.525(5)(c) (emphasis added). Here, the trial court heard argumentand ruled on the motion for summaryjudgment beforeit heard argument on the antiSLAPP motion. SDR never attempted to establish, nor did the trial courtfind, 

### good cause tolift thestay on all pending motions. Although theprocedure for deciding anti-SLAPP motions is similartothat used in deciding a motion for summaryjudgment, "'[a] motion tostrike under [the anti-SLAPP statute] is not a substitute for a motion for.
.. summaryjudgment.'" Tichinin v. Citv ofMorgan 

### Hill, 177 Cal.App.4th 1049, 1062, 99 Cal.Rptr.3d 661 (Cal.App. 2009) (alteration 

### in original) (quoting Wilbanks v. Wolk, 121 Cal.App.4th 883, 905, 17 Cal.Rptr.3d 497 (Cal.App. 2004)).21 The trial court erred by failing to stay the motion for summaryjudgment pending determination ofthemerits ofthe anti-SLAPP
motion.



### 21 Washington's anti-SLAPP statute mirrors California's anti-SLAPP statute. Therefore, in most circumstances, California cases may beconsidered as persuasive authority when 

### interpreting RCW4.24.525. Bftft City ofLonaview v. Wallin, 174Wn. App. 763, 776 n.11, 301 P3d 45, review denied, 178 Wn.2d 1020 (2013).; Aronson v. Doa Eat Dog Films, Inc., 738 

### F.Supp.2d 1104, 1110 (W.D.Wash. 2010); compare RCW4.24.525 with Cal. Civ. Proc. Code § 425.16. -22-No. 69300-0-1 (Linked with No. 68345-4-l)/23

B

The procedural error committed by the trial court does not warrant appellate relief ifthe error was harmless. In this case, the error would be harmless ifSDR proved by a preponderance of the evidence that Dillon's claims
were based on actions involving public participation and petition and ifDillon failed to show by clear and convincing evidence a probability of prevailing on his privacy act claim. See RCW 4.24.525(4)(b). The anti-SLAPP statute defines "an action involving public participation and petition" as follows: (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial 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) Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of 

### public concern, or in furtherance of the exercise of the constitutional right of petition.

23-No. 69300-0-1 (Linked with No. 68345-4-l)/24
RCW4.24.525(2). The trial court found that SDR proved by a preponderance of the evidence that its actions were "lawful activity in connection with a judicial 

### proceeding," and thus constituted actions "involving publicparticipation and 

### petition." See RCW4.24.525(2)(b), (e). On appeal, SDR also asserts that its actions of recording Dillon's telephone calls were "in ajudicial proceeding" and "in furtherance ofthe exercise of the constitutional right of petition." See RCW 4.24.525(2)(a), (e).
ii 

### We review the grant ordenial ofan anti-SLAPP motion de novo.22 City of Longview v. Wallin. 174 Wn. App. 763, 776, 301 P.3d 45, review denied, 178 

### Wn.2d 1020 (2013). This case alsoinvolves issues ofstatutory interpretation, which we review de novo. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).
iii The trial court ruled that SDR's actions were "action[s] involving public 

### participation and petition," because "the activity that is the subjectofthe privacy actclaim was lawful activity in connection with ajudicial proceeding." This was 22 Ourcolleagues in Division Two recently explained why the denovo standard ofreview is appropriate for decisions on anti-SLAPP motions: No Washington court hasexplicitly stated thestandard ofreview for the trial court's decision togrant ordeny a special motion tostrike under RCW4.24.525. Butbecause California has a similar statute, Californiacases are persuasive authorities for interpreting theWashington statute. See Aronson v. Doa EatDog Films. Inc.. 738 F.Supp.2d 1104, 1110 (W.D.Wash. 2010) (citing "California law as persuasive authority for interpreting" RCW 4.24.525). California courts review anorder granting ordenying a motion tostrike under California's statute denovo. Flatlev v. Mauro, 39 Cal.4th 299, 325, 139 P.3d 2, 46 Cal.Rptr.3d 606 (2006). Wallin 174Wn. App. at776 n. 11. Additionally, anti-SLAPP motions areprocedurally similarto 

### summaryjudgmentmotions, Gerbosi. 193 Cal.App.4th at444, which this court reviews de novo. Green. 137 Wn. App. at 681.
-24-No. 69300-0-1 (Linked with No. 68345-4-l)/25 so, the trial court ruled, because "the meeting that took place in Mr. Grant's office was certainly in connection with ajudicial proceeding" and SDR's activity was not criminal. "Lawful activity in connection with ajudicial proceeding" is notexplicitly 

### part of the definition of "an action involving public participation and petition," but rather combines language from two separate subsections of the definition. 

### RCW 4.24.525(2)(b), (e). However, the trial court's ruling is not supported by
either subsection. 

### With respect to subsection (2)(b), the trial court'sruling fails to accountfor the first clause of the subsection—"[a]ny oral statement made, or written statement or other document submitted." RCW 4.24.525(2)(b). "[A] defendant in


### an ordinary private dispute cannottake advantage ofthe anti-SLAPP statute 

### simply because the complaint contains some references to speech orpetitioning 

### activity by the defendant." Martinez v. Metabolite Intern.. Inc.. 113 Cal.App.4th 181, 188, 6 Cal.Rptr.3d 494 (Cal.App. 2003) (citing Paul v. Friedman, 95 Cal.App.4th 853, 866, 117 Cal.Rptr.2d 82 (Cal.App. 2002)). Rather, it istheprincipal thrustorgravamen ofthe plaintiff's cause ofaction that determines whether the anti-SLAPP statute applies and when 

### the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected 23 RCW 4.24.525(2)(b) reads, "As used in this section, an 'action involving public 

### participation and petition' includes:
. .. (b) Any oral statementmade, orwritten statementorother document submitted, in connection with anissue under consideration orreview by a legislative, 

### executive, orjudicial proceeding or other governmental proceeding authorized by law." RCW 4.24.525(2)(e) reads, "As used in this section, an 'action involving public 

### participation and petition' includes:... (e) Any otherlawful conductin furtherance ofthe exercise ofthe constitutional right offree speech in connection with anissue ofpublic concern, orin furtherance of the exercise of the constitutional right ofpetition." 

### In its ruling on Dillon's motion for reconsideration, the trial courtcited to RCW 4.24.525(2)(e), focusing solely on the phrase "[a]ny otherlawful conduct."

25No. 69300-0-1 (Linked with No. 68345-4-l)/26 activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute. Martinez. 113 Cal.App.4th at 188 (citation omitted). Here, the principal thrust of Dillon's claims is SDR's acts oftranscribing Dillon's telephone calls without his knowledge, not SDR's subsequent submission ofthe transcripts (or excerpts therefrom) to the federal court. SDR's acts of transcribing Dillon's telephone calls cannot reasonably be categorized as protected "statements." 

### "[F]reedom of speech" means more than simply the right to talk and to write. It is possible to find some kernel ofexpression in almost 

### every activity a person undertakes—for example, walking down the street or meeting one's friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. City of Dallas v. Stanglin. 490 U.S. 19, 25, 109 S. Ct. 1591, 104 L Ed. 2d 18 

### (1989). Accordingly, not all conduct can betreated as a "statement." DCR. Inc.
v. Pierce County. 92Wn. App. 660, 671, 964 P.2d 380 (1998). Although there
are numerous statements contained inthe transcripts ofthe calls, this does not 

## transform the act oftranscribing the conversation into astatementaswell.24 The act oftranscription does notexpress anything, nor is it intended to convey any 

### sort ofmessage. Simply put, SDR's actsoftranscription arenot statements. Cf, City ofSeattle v. McConahv. 86 Wn. App. 557, 567-69, 937 P.2d 1133 (1997) 

### ("sitting does not have inherent expressive value" and thus isnot conduct protected by the FirstAmendment). As SDR's acts are notstatements, 24 Moreover, themajority ofthestatements made during thecall were uttered by Dillon, 

### not by Grant, Kennan, or atranscriptionist. Dillon's utterances are not SDR's actions. They are Dillon's. -26-No. 69300-0-1 (Linked with No. 68345-4-l)/27
subsection (2)(b) of RCW 4.24.525, defining "an action involving public 

### participation and petition," is not applicable.25
iv Nevertheless, SDR contends that the gravamen of Dillon's claim was 

### actually SDR's act offiling the transcripts (or excerpts therefrom) in federal court. This is so, SDR contends, because Dillon requested "actual damages" in his 

### complaint and he could not have been damaged without the act offiling. Therefore, SDR asserts, notwithstanding the language ofDillon's complaint, he 

### musttruly be claiming that the act offiling thetranscripts constituted a violation of the privacy act. 

### SDR's assertion isfactually incorrect. Dillon quiteclearly allegedin his 

### complaint thattheviolations oftheprivacy actwere SDR's acts oftranscribing thetelephone calls without his knowledge. Dillon's complaint does noteven mention that thetranscripts werefiled in federal court. Dillon's prayerfor relief 

### requests "[d]amages subjectto the MAR $50,000 limits ofmandatory arbitration and pursuantto the schedule specified in RCW 9.73.060 including one hundred dollars aday for eachviolation against eachdefendant, reasonable attorney's fees and costs, actual damages and general damages." This language simply

25 SDRcontends that the trial court's ruling may, in the alternative, be affirmed on the 

### ground thattheiractions constituted "an action involving public participation and petition" as defined in subsection (2)(a) ofRCW 4.24.525. However, subsection (2)(a) also includes the 

### phrase "[a]ny oral statement made, orwritten statementorotherdocument submitted." RCW 4.24.525(2)(a). SDR's actions are notcovered by this subsection for the same reason thatthey are not covered by subsection (2)(b).
-27-No. 69300-0-1 (Linked with No. 68345-4-l)/28
reiterates the remedies provided by RCW 9.73.060 and does not alter the nature 

### ofDillon's complaint.26 The principal authority cited by SDR on this question, Kearney v. Kearney. 95 Wn. App. 405, 974 P.2d 872 (1999), does not dictate otherwise. The Kearney court did not address damages. Rather, Kearney addressed liability, holding that "RCW 9.73.050 does not create civil liability for filing information obtained in violation of the privacy act." 95 Wn. App. at 415. Furthermore, the defendants in that case disseminated private conversations that someone else recorded. Kearney, 95 Wn. App. at 411-12. Such is not the case herein. Kearney is inapposite and SDR's reliance upon it is unavailing.

v The trial court's ruling is also not supported by subsection (2)(e) defining 

### "an action involving publicparticipation and petition." RCW4.24.525(2)(e) 

### defines "an action involving public participation and petition" as "[a]ny other lawful conduct... infurtherance ofthe exercise ofthe constitutional right of petition." SDR contends that their actions involved the right of petition because the right of 

### petition includes the right to bring a lawsuit in court. For his part, Dillon asserts that SDR's actions do not fall under this definition because SDR's actions were 

### notlawful. Relying on Gerbosi v. Gaims. Weil. West &Epstein. LLP. 193 Cal.App.4th 435, 445, 122 Cal.Rptr.3d 73 (Cal.App. 2011), Dillon avers that 

### allegations ofcriminal activity barapplication ofthe anti-SLAPP statute. We

26 To the extent that SDR wished to strike the potential remedy of actual damages from the complaint, bringing an anti-SLAPP motion was not the propermethod ofdoing so. -28-No. 69300-0-1 (Linked with No. 68345-4-l)/29
decide this contention on another basis, holding that SDR's actions did not constitute "the exercise of the constitutional right of petition." Subsection (2)(e) of the anti-SLAPP statute refers to conduct "in furtherance of the exercise of the constitutional right of petition." RCW 4.24.525(2)(e) (emphasis added). The right of petition is referenced as a singular thing. "Use of a definite rather than indefinite article is a recognized indication of statutory meaning." Dep't of Ecology v. CityofSpokane Valley. 167 Wn. App. 952, 965, 275 P.3d 367, review denied. 175 Wn.2d 1015 (2012). "The rules ofgrammar. . . provide that the definite article, 'the', is used 'before nouns of which there is only one or which are considered as one."" Dep't of Ecology. 

### 167 Wn. App. at 965 (alteration in original) (internal quotation marks omitted) 

### (quoting State v. Neher. 52Wn. App. 298, 300, 759 P.2d 475 (1988), affd, 112 Wn.2d 347, 771 P.2d 330 (1989)). Thus, when RCW 4.24.525(2)(e) refers to 

### "theconstitutional right to petition," it is referencing a particular and singularright. The question for us, then, is where this singular right is found. The first amendment to the United States Constitution contains a 

### guarantee of a right to petition the government. U.S. Const, amend. I 

### ("Congress shall make no law
. . . abridging the freedom
... to petition the government for a redress of grievances."). Similarly, the Washington 

### Constitution provides, in article I, section 4 that, "The right ofpetition
. .. for the
common good shall never be abridged." Wash. Const, art. I, § 4. Given that we have determined that RCW4.24.525(2)(e), by its express language, applies only

29No. 69300-0-1 (Linked with No. 68345-4-l)/30

to "the right to petition," the question is: does this statute reference the federal constitution or does it reference the state constitution? We have only two choices. On the one hand, we may conclude that our 

### state legislature sought to legislate with reference to the federal constitution—to the exclusion of the state constitution. On the other hand, we may conclude that 

### the state legislature sought to legislatewith reference to the state constitution—to
the exclusion of the federal constitution. 

### In reaching our decision, we must consider the context of the legislation. The anti-SLAPP statute is a state statute, not a federal statute. The anti-SLAPP statute limits access to state courts, not federal courts. The Washington 

### legislature is a creature ofthe state constitution, not thefederal constitution. Wash. Const, art. II, § 1. TheWashington legislature's power to legislate is derived from the state constitution, not the federal constitution. Wash. Const.
art. II, §1. 

### On balance, it isillogical to assume that, in passing RCW 4.24.525(2)(e), 

### theWashington legislature soughttolegislate by reference to thefederal constitution, to the exclusion ofthe state constitution. On the contrary, it is 

### logical toassume thattheWashington legislature chose tolegislate with reference to the state constitution, to the exclusion of the federal constitution. 

### Indeed, it is more logical that theWashington legislature sought tovindicate a 

### state constitutional right in limiting access toWashington's courts than it isto conclude thatit sought tovindicate a federal right—to the exclusion ofthe state 

### constitutional right—in limiting accessto Washington's courts. Congress, of
-30-No. 69300-0-1 (Linked with No. 68345-4-l)/31

course, can pass laws designed to vindicate federal constitutional rights. The Washington legislature would be well aware of this. But only the Washington legislature can pass such laws designed to vindicate Washington state constitutional rights. The Washington legislature is presumably also well aware of this.Thus, it is the state constitutional right to petition, as set forth in article I, section 4, that is referenced in RCW 4.24.525(2)(e). Further support for our conclusion that "the right ofpetition" referenced in the statute refers to the state constitutional right is found inthe legislative history 

### of the act. As previously noted, Washington's anti-SLAPP statute was modeled after that of California. California's statute, however, provides that itapplies to 

### actions "arising from any act ofthat person in furtherance of the person's right of 

### petition orfree speech under the United States orCalifornia Constitution." Cal. Civ. Proc. Code § 425.16(b)(1). The California statute, thus, refers to both the federal and state rights to petition. In passing Washington'sversion of the act, 

### however, ourlegislature referred only to "the constitutional right ofpetition." RCW 4.24.525(2)(e). We presume this difference to be intentional: "when the model act in an area of law contains a certain provision, but the legislature fails to 

### adopt such a provision, ourcourts conclude that the legislature intended toreject the provision." Lundberg ex rel. Orient Found, v. Coleman, 115Wn. App. 172, 177-78, 60 P.3d 595 (2002). Thus, wefind further supportfor ourconclusion that 

### the legislature did not intend for the statutory phrase "the constitutional right to petition" to refer to both the state and federal constitutions.
-31

-No. 69300-0-1 (Linked with No. 68345-4-l)/32

vi This conclusion is significant to our decision today. The federal right of petition includes a right to access the courts. Borough ofDurvea. Pa. v. Guarnieri, __U.S._, 131 S. Ct. 2488, 2494, 180 L. Ed. 2d 408 (2011); jnre Primus. 436 U.S. 412, 426, 98 S. Ct. 1893, 56 L. Ed. 2d 417 (1978); in_re Addleman, 139 Wn.2d 751, 753-54, 991 P.2d 1123 (2000). To the contrary, the article I, section 4 right of petition includes no such right. 

### This question has been extensively litigated before our Supreme Court. 

### When first presentedwith the question, the SupremeCourt suggested thatarticle I, section 4 protects access to the courts. Carterv. Univ. ofWash.. 85Wn.2d 391, 398-99, 536 P.2d 618 (1975) (plurality opinion). One year later, however,
our Supreme Court explicitly held to the contrary. Carter v. University ofWashington, supra, should also be overruled 

### insofar as it suggested thatarticle 1, section 4, protects a right of access to the courts. This section reads: "The right of petition and 

### ofthe people peaceably to assemblefor the common good shall never be abridged." This provision obviously has reference to the exercise ofpolitical rights. The language ofthe constitution, like that of statutes, is to be given itscommon and ordinary meaning. It 

### requires an awkward and unnatural construction ofthislanguage to makeit applicable to thejudicial process. Access to the courts is amply and expressly protected by otherprovisions. Hous. Auth. ofKing County v. Saviors. 87 Wn.2d 732, 741-42, 557 P.2d 321 (1976).

### Thus, our Supreme Court explicitly held thattheright addressed in article 

### I, section 4 is a political rightthat does not encompass within its purview the right

to access courts.

32No. 69300-0-1 (Linked with No. 68345-4-l)/33 Where, then, is the right to access courts guaranteed in the Washington Constitution? Our Supreme Court provided the answer in John Doe v. Puget Sound Blood Center. 117 Wn.2d 772, 819 P.2d 370 (1991). In the John Doe case, the court noted that, "Plaintiffhas a right of access to the courts" and attributed the existence ofthat right to article I, section 10 ofthe state 

### constitution.27 117Wn.2d at 780. In reaching its decision, the courtexplained: In Carter v. UW, 85 Wn.2d 391, 399, 536 P.2d 618(1975), the plurality opinion held that the right ofaccess to the courts was a 

### fundamental right. The plurality opinion relied on Const, art. 1, § 4, the right ofpetition, and Const, art. 1, § 12, privileges and immunities. However, the court soon considered the question 

### again in Housing Auth. v. Saviors. 87 Wn.2d 732, 557 P.2d 321 (1976). The Saviors court held that reliance upon the cited 

### constitutional provisions was in error. However, the important point in Saviors is the statement that "[a]ccess to the courts is amply and 

### expresslyprotected by otherprovisions." Saviors, at 742. Unfortunately, the courtdid not explore the rationale for its conclusion. John Doe, 117 Wn.2d at 781-82. 

### Thus, the Supreme Court acknowledged that the right ofpetition, setforth in article I, section 4, does notencompass a right ofaccess to the courts. 

### Instead, itfound that such a right isgrounded in article I, section 10. John Doe.
111 Wn.2d at 780. 

### To summarize, in 1976, our Supreme Court determined that the right to 

### petition did not include a right ofaccess to thecourts. Fifteen years later, in 1991, theexistence ofthe right ofaccess to thecourts was attributed toarticle I,
section 10. 27 "Justice in all cases shall be administeredopenly, and without unnecessary delay. Wash. Const, art. I, §10. -33-No. 69300-0-1 (Linked with No. 68345-4-l)/34 Eighteen years later, this position was reaffirmed. In Putman v. Wenatchee Valley Medical Center. 166 Wn.2d 974, 216 P.3d 374 (2009), the court struck down RCW 7.70.150's requirement that a certificate of merit be filed in medical malpractice cases. In reaching its decision, the court noted: The people have a right ofaccess to courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations." John Doe v. Puget Sound Blood Ctr.. 117Wn.2d772, 780, 819 P.2d 370 (1991). Putman, 166 Wn.2d at 979. In Putman's discussion ofthe right of access to the courts, the Supreme 

### Court's opinion cited Marburvv. Madison. 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 

### 60 (1803), once,while citing John Doe five times. No otherauthority was cited. Clearly, this reaffirms that ourSupreme Court considers John Doe to still be "good law." 

### Thus, the right ofaccess to the courts isfound in article I, section 10, not in article 1, section 4. Accordingly, the right to petition, mentioned in RCW 

### 4.24.525(2)(e), does not encompass aright ofaccess to the courts.28 Therefore,

28 We are aware that in two cases our Supreme Court has used very broad language to opine thatthe righttopetition setforth in article I, section 4 should beinterpreted consistently with thefederal first amendment right topetition. See Grant County Fire Prot. Dist. No. 5v. City of Moses Lake. 150Wn.2d791, 815, 83 P.3d419 (2004); Richmond v. Thompson, 130Wn.2d 368, 383, 922 P.2d 1343 (1996). We do notconsider the broad statements in those cases as controlling this case for the following reasons: 1. Neither Grant County nor Richmond dealt with the question of the origin of the right of access to the courts. Grant County dealt with a dispute over an annexation petition and Richmond was a defamation case. Thus, the issue in this case was not present in either case. 2. Both GrantCounty (2004) and Richmond (1996) weredecided afterboth John Doe (1991) andSaviors (1976). In neither Grant County nor Richmond did theSupreme Court even mention Saviors or John Doe. In neither Grant County nor Richmond does the Supreme Court purportto overrule Saviors orJohn Doe. We adhere to the principle thatthe Supreme Court does not overrule its own decisions on clear rules of law sub silentio. Lunsford v. Saberhagen Holdings. Inc.. 166 Wn.2d 264, 280, 208 P.3d 1092 (2009).
-34-No. 69300-0-1 (Linked with No. 68345-4-l)/35
the trial court erred by ruling that SDR's actions in filing the transcripts and excerpts therefrom with the federal court was protected activity encompassed within RCW 4.24.525(2)(e). In addition, the language of the statute's subsections supports our conclusion. The legislature did not use the phrase "judicial proceeding" in subsection (2)(e) defining "action involving public participation and petition" as it did in subsections (2)(a) and (b). We presume that this omission was intentional. See Denslev v. Dep't of Retire. Svs.. 162 Wn.2d 210, 219, 173 P.3d 885 (2007) ("When the legislature uses two different terms in the same statute, courts presume the legislature intends the terms to have different meanings."). Furthermore, "'[statutes must be interpreted and construed so that all the 

### language used is given effect, with no portion rendered meaningless or 

### superfluous.'" G-P Gypsum Corp. v. Dep't of Revenue. 169Wn.2d 304, 309, 237 P.3d 256 (2010) (internal quotation marks omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). If "[a]ny other lawful conduct... in furtherance ofthe exercise ofthe constitutional right of petition" encompassed all actions that occurred in or in connection with a judicial proceeding, then portions 

### of RCW4.24.525(2)(a) and (b) would be rendered superfluous. We should not read a statute in such a manner. Accordingly, we do not read RCW 

### 4.24.525(2)(e) to encompass SDR's actions of recordingtelephone conversations, even though the transcripts (or portions thereof) ofthose

3. In the most recent case ofall, Putman (2009), the Supreme Court reaffirmed the validity of its decision in John Doe.
-35-No. 69300-0-1 (Linked with No. 68345-4-l)/36
conversations were later filed in court in connection with a judicial proceeding. The trial court erred by ruling to the contrary. vii But what ifwe are wrong, and our legislature didintend for the phrase "the 

### constitutional right ofpetition" to refer to both the state and federal constitutional rights to petition? Inthat event, our decision would be the same. The United States Constitution protects an individual's right "to petition the 

### government for a redress of grievances." U.S. Const, amend. I. As previously mentioned, the FirstAmendment right to petition includes the right to access the 

### court system. Guarnieri, 131 S. Ct. at 2494; Primus. 436 U.S. at 426; Addleman.
139 Wn.2d at 753-54. Under California law, whichexplicitly includes the federal constitutional 

### right to petition within its ambit, "[t]he anti-SLAPP protection for petitioning activities applies notonly to the filing oflawsuits, but extends to conductthat 

### relates to such litigation," including the gathering ofevidence. Kolarv. Donahue. Mcintosh &Hammerton, 145 Cal.App.4th 1532, 1537, 52 Cal.Rptr.3d 712 

### (Cal.App. 2006) (citing Kashian v. Harriman, 98 Cal.App.4th 892, 908, 120 Cal.Rptr.2d 576 (Cal.App. 2002)). California courts haveheld thatactions undertaken by attorneys when representing a client are in furtherance ofthe attorney's right ofpetition, as well as that ofthe client. See e.g.. Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1418-20, 103 Cal.Rptr.2d 174 (Cal.App. 2001V cf. Briggs v. Eden Council for Hope &Opportunity, 19 Cal.4th 1106, 1116, 

### 969 P.2d 564, 81 Cal.Rptr.2d 471 (1999) ("[T]he [anti-SLAPP] statute does not
-36-No. 69300-0-1 (Linked with No. 68345-4-l)/37 require that a defendant moving to strike . . . demonstrate that its protected statements or writings were made on its ownbehalf."). Furthermore, California courts hold that "public" does not modify "rightto petition" as used in the antiSLAPP statute, and therefore a lawsuit need not be on a public issue in order to 

### triggerthe statute. Navellier v. Sletten,29 Cal.4th 82, 91-92, 52 P.3d 703, 124 Cal.Rptr.2d 530 (2002); Briggs. 19 Cal.4th at 1114. 

### Although gathering evidencemay be an action "in furtherance ofthe right to petition" underCalifornia law, California courts nevertheless do notallow attorneys to gather evidence by any method they see fit. "Not all attorney conductin connection with litigation, orin the course ofrepresenting clients, is 

### protected by" theanti-SLAPP statute. Cal. Back Specialists Med. Grp. v. Rand, 160 Cal.App.4th 1032, 1037, 73 Cal.Rptr.3d 268 (Cal.App. 2008). "[A] lawyer 

### may [not] employ theanti-SLAPP statute tostrike [a] causeofaction merely because he or she is a lawyer." Gerbosi, 193 Cal.App.4th at 445. Here, SDR cannot meet its burden of proving that its actions were 

### protected by the anti-SLAPP statute merely by showing that Dillon's complaint
was filed afterfirst amendment petitioning activity occurred or that his claims somehow relate to first amendment petitioning activity. Instead, the petitioning 

### activity must actually give rise toand be thebasis for the assertedliability. Eauilon Enters, v. Consumer Cause. Inc.. 29 Cal.4th 53, 66, 52 P.3d 685, 124 

### Cal.Rptr.2d 507 (2002) ("'[T]he actunderlying theplaintiff's cause orthe act which forms the basis for the plaintiff's cause ofaction mustitselfhave been an act in furtherance of the right ofpetition or free speech.'" (quoting
-37-No. 69300-0-1 (Linked with No. 68345-4-l)/38 ComputerXpress. Inc. v. Jackson. 93 Cal.App.4th 993, 1003,113 Cal.Rptr.2d 625 (Cal.App. 2001))). Dillon did not sue SDR because they gathered evidence. Rather, Dillon's claims are based on SDR's method of gathering evidence: 

### transcribing telephone conversations that Dillon avers were private.29 The act of recording is not itself protected speech or petitioning activity. As such, Dillon's claims do not fall within the ambit ofthe anti-SLAPP statute, even ifwe were to
assume that itencompasses first amendment petitioning activity. Two Californiacases support our holding. In Gerbosi, an attorney, Gaims, 

### hired a private investigator, Pellicano, to investigate the ex-girlfriend, Finn, ofhis client, Pfeifer. 193 Cal.App.4th at 440. Pellicano installed a wiretap on Finn's 

### telephone, and was eventually indicted on conspiracy and wiretapping charges 

### for doing so. Gerbosi, 193 Cal.App.4th at441. Finn and her neighbor, Gerbosi,30 filed suit against Gaims, Pellicano, Pfeifer, and the telephone 

### company for multiple statutory violations andtorts arising from the wiretapping. Gerbosi. 193 Cal.App.4th at 441. Gaims filed anti-SLAPP motions to strike both Finn's and Gerbosi's complaints. Gerbosi. 193 Cal.App.4th at 442. Thetrial court denied both motions. Gerbosi. 193 Cal.App.4th at 442. 

### With respect to Gerbosi's claims, the California Court ofAppeals held that the claims did not arise from any protected activity on the part of Gaims. 29 Contrary tothetrial court's analysis, thesummaryjudgment ruling should not have had any bearing on the first stepofthe anti-SLAPP inquiry. SDR's claim that the conversations were not private, despite Dillon's assertions to the contrary, is"'more suited to the second step ofan anti-SLAPP motion. Ashowing thata defendant did not do an alleged activity isnot a showing thatthe alleged activity is a protected activity.'" Malin v. Singer, 217 Cal.App.4th 1283, 1304, 159 Cal.Rptr.3d 292(Cal.App. 2013) (quoting Gerbosi. 193Cal.App.4th at446). 30 Some ofthe telephonecallsthatPellicano intercepted wereprivate conversations between Finn and Gerbosi. Gerbosi, 193 Cal.App.4th at 441.
-38-No. 69300-0-1 (Linked with No. 68345-4-l)/39
Gerbosi. 193 Cal.App.4th at 444. In so holding, the court stated, "Gaims's status
as a lawyer,,unrelated to any representation ofany client in relationship to Gerbosi does not bring Gaims under the protective umbrella for acts in furtherance ofprotected 'petitioning' activity." Gerbosi. 193 Cal.App.4th at 444. With respect to Finn's claims, the court held that those claims which alleged criminal conduct were not subject to the anti-SLAPP statute, because 

### wiretapping is not "'protected by constitutional guarantees of free speech and 

### petition.'" Gerbosi, 193 Cal.App.4th at 445-46 (quoting Flatlev v. Mauro, 39 Cal.4th 299, 317, 46 Cal.Rptr.3d 606, 139 P.3d 2 (2006)). The court compared the case to Flatlev, which held that California's anti-SLAPP statute '"cannot be 

### invoked by a defendant whose assertedlyprotected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free 

### speechand petition.'" Gerbosi. 193 Cal.App.4th at445-46 (quoting Flatlev, 39 Cal.4th at 317). TheGerbosi court held that"wiretapping in the course of 

### representing a client," unlike writing a letter ormaking telephone calls on behalf of a client, could not be considered to be protected underany scenario. 193Cal. 

### App. 4th at446. Thus, the court did not need to hold thatGaims's and Pellicano's actions were"illegal as a matter oflaw" in orderto hold that the antiSLAPP statute did not apply. Gerbosi, 193 Cal.App.4th at 446-47. 

### The California Court of Appeals reaffirmed Gerbosi in 2013. See Malin v. 

### Singer, 217 Cal.App.4th 1283, 1302, 159Cal.Rptr.3d 292 (Cal.App. 2013). In Malin, Malin filed suit againstArazm and Singer, Arazm's attorney, alleging a 

### violation ofcivil rights and intentional and negligent infliction ofemotional
-39-No. 69300-0-1 (Linked with No. 68345-4-l)/40
distress. 217 Cal.App.4th at 1289. Malin alleged in his complaint that Arazm and Singer had instructed unknown third parties to retrieve his private communications and e-mail messages through the use of wiretapping and 

### computer hacking. Malin. 217 Cal.App.4th at 1290. Arazm and Singerfiled an anti-SLAPP motion against Malin for bringing claims purportedly based on 

### Arazm'sconstitutional right to petition. Malin. 217 Cal.App.4th at 1290. As SDR does here, Arazm and Singer argued that "'the plaintiffhas the burden to 

### establish that the conduct was illegal as a matter oflaw.'" Malin, 217 Cal.App.4th at 1302. The California Court of Appeals held that this was notthe plaintiff's burden. Malin, 217 Cal.App.4th at 1302. Rather, the court held, 

### Arazm and Singerfail to meet theirthreshold burden of 

### showing thatMalin's civil rights claim is based on an act that 

### constitutes protected activity within the meaning ofthe statute. In 

### an attemptto do so, they urge thegravamen ofMalin's cause of action arises from acts infurtherance oftheir right to conduct 

### prelitigation investigation. They areincorrect. The acts underlying Malin's civil rights and related emotional distress causes ofaction 

### arecomputer hacking and wiretapping. Those acts donotfit oneof thecategories ofprotected conduct defined by the Legislature in [the anti-SLAPP statute], and Arazm and Singer do not contend otherwise. As a result, they are notentitled to reliefunder the antiSLAPP statute. Malin, 217 Cal.App.4th at 1303. 

### Similarly, Dillon's claims arebased on the actsofrecording telephone conversations, not onSDR's use ofthetranscripts thereafter. Asin Gerbosi and Malin, it is oflittle moment that the purpose of SDR's actions was to gather

40No. 69300-0-1 (Linked with No. 68345-4-l)/41 

### evidence.31 The recording oftelephoneconversations is not an action protected under the First Amendment and, accordingly, is not an "action involving public participation and petition." RCW4.24.525(4)(a). Therefore, Dillon's claims are not "based on an action involving public participation and petition." See RCW 4.24.525(4)(a). 

### Policy considerations support our holding. In enacting the anti-SLAPP statute, the legislature found that "[i]t is in the public interest for citizens to 

### participate in matters ofpublic concern and provide information to public entities and other citizens on publicissues that affect them without fear of reprisal 

### through abuse ofthejudicial process." Laws of2010, ch. 118, § 1 (1)(d). The 

### legislature also soughtto "[s]trike a balance between therights ofpersons tofile lawsuits and totrial byjury and the rights ofpersons toparticipate in matters of public concern." Laws of2010, ch. 118, § 1 (2)(a). If "[a]ny otherlawful conduct

... infurtherance of the exercise of the constitutional right of petition" covered 

### all means ofgathering evidence, the anti-SLAPP statute would notstrike any sort of balance; rather, it would elevate an attorney's ability to gather evidence above 

### theright ofpersons to file lawsuits. Interpreting thestatute in this mannerwould not only run contrary to the legislature's intent, butwould alsolikely raise issues

31 See also Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 168, 691 N.E.2d 935 (1998) (In anaction for breach ofa nondisclosure agreement and breach offiduciary duty, Massachusetts' anti-SLAPP statute did notapply to statements made during a deposition, when the plaintiffalleged thatthose statements were subjectto a nondisclosure agreement and attorney-client privilege.).
-41

-No. 69300-0-1 (Linked with No. 68345-4-l)/42 

### about the statute's constitutionality.32 Just as SDR has a first amendment right to petition for redress ofgrievances, so too does Dillon. The anti-SLAPP statute does not operate to negate the privacy act, or any other statutory protection, merely because the disputed conduct occurred during a separate lawsuit. SDR has not met its burden under the anti-SLAPP statute because it has not shown that its actions involved public participation and petition. The trial court erred by ruling otherwise.
C As SDR has not met its burden to show that Dillon's claims were based on 

### actionsinvolving public participation and petition, it is notstrictly necessary for us to consider whether Dillon has met his burden to show, by clear and convincing 

### evidence, a probability ofprevailing on his claims. However, we take this 

### opportunity toclarify the scopeand manner ofanalysis to beutilized by trial courts in ruling on the inquiry presented in the second step ofthe anti-SLAPP motion procedure. 

### The anti-SLAPP motion procedure statute dictates that after the moving 

### party has shown thatthe claims atissue arebased on anaction involving public participation and petition, "the burden shifts to theresponding party toestablish 

### by clear and convincing evidence a probability ofprevailing on theclaim." RCW 4.24.525(4)(b). "Clear, cogent andconvincing evidence isevidence which is 

### weightier and more convincing than a preponderance ofthe evidence, butwhich
32 See Opinion of the Justices (SLAPP Suit Procedure). 138 N.H. 445, 451, 641 A.2d 1012 (1994) ("A solution [to SLAPP suits] cannot strengthen the constitutional rights ofone group ofcitizens byinfringing upon the rights of another group.").
-42-No. 69300-0-1 (Linked with No. 68345-4-l)/43
need not reach the level of 'beyond a reasonable doubt.'" In re the Disciplinary Proceeding Against of Deming. 108 Wn.2d 82, 109, 736 P.2d 639, 744 P.2d 340 (1987) (quoting Davis v. Dep't of Labor &Indus.. 94 Wn.2d 119, 126, 615 P.2d 1279 (1980); Bland v. Mentor. 63 Wn.2d 150, 154, 385 P.2d 727 (1963)). "It is the quantum ofevidence sufficient to convince the fact finder that the fact in 

### issue is 'highly probable.'" TigerOil Corp. v. Yakima County, 158 Wn. App. 553, 562, 242 P.3d 936 (2010) (quoting In re Welfare ofSego. 82 Wn.2d 736, 739, 

### 513 P.2d 831 (1973)). This standard places a "higher procedural burden on the 

### plaintiffthan is required to survive a motion for summaryjudgment." Intercon Solutions. Inc. v. Basel Action Network. No. 12 C 6814, 2013 WL 4552782 at *15 

### (N.D.III., Aug. 28, 2013) (analyzing whether RCW 4.24.525 conflicts with Fed. R. Civ. P. 12 and 56). California's anti-SLAPP statute does not utilize a clear and convincing evidence standard. Therefore, we do not find California law to be persuasive on this issue. See Lundberg. 115 Wn. App. at 177-78. Instead, we find Minnesota 

### law to be persuasive. Minnesota's anti-SLAPP statuteincorporates a clearand convincing evidence standard. Minn. Stat. § 554.02(3) ("[T]he court shall grant the motion and dismiss thejudicial claim unless the court finds that the 

### responding party hasproduced clear and convincing evidence that the acts ofthe moving party are not immunized from liability."). Minnesota also interprets the clearand convincing evidence standard in a manner similartoWashington. See Nexus v. Swift. 785 N.W.2d 771, 781 (Minn.App. 2010) ("Clear and convincing 

### evidence 'requires more than a preponderance ofthe evidence but less than
-43-No. 69300-0-1 (Linked with No. 68345-4-l)/44 proof beyond a reasonable doubt.' This standard is met when the matter sought 

### to be proved is 'highly probable.'" (quoting Weber v. Anderson. 269 N.W.2d 892, 895 (Minn. 1978); State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998))). In Nexus, the Minnesota Court ofAppeals interpreted the clear and 

### convincing evidence standard in Minnesota's anti-SLAPP statute. 785 N.W.2d at 

### 780-82. The court recognized that the statute does not require that the plaintiff prove his or her claim inresponse to an anti-SLAPP motion, as such a 

### requirement would violate the state "constitutional right to have the jury determine all triable issues of material fact." Nexus, 785 N.W.2d at 781. The 

### court, therefore, held that the clear and convincing evidence standard must be 

### viewed "in light ofthe Rule 12standard forgrantingjudgment onthe pleadings"


### or"in light ofthe Rule 56standard forgranting summaryjudgment," depending on the stage in the litigation during which the motion is made. Nexus, 785 N.W.2d at 781-82. The court explained how this operates: 

### Regardless ofwhether a motion to dismiss asserting 

### immunity under[the anti-SLAPP statute] is made at the stage of litigation whenjudgment on the pleadings may be appropriate or when summaryjudgment may be appropriate, ultimate determinations of fact are not required by the clear-and-convincing standard
.... These standards require that reasonable inferences be drawn in favor of the nonmoving party, which is unchanged by the anti-SLAPP statute. The test is merely whether, in light ofthose inferences and the view ofevidence mandated by the standard for 

### grantingjudgment on the pleadings orsummaryjudgment, the plaintiffhas shown that the defendant's speech or conductwas tortious or otherwise unlawful. 

### Nexus, 785 N.W.2d at 782. Additionally, the court held that "[t]he clear-and

### convincing standard mandated by theanti-SLAPP statute" looks not only to

-44No. 69300-0-1 (Linked with No. 68345-4-l)/45
whether the plaintiffhas demonstrated a prima facie claim, but "also requires consideration ofthe defenses raised by" the moving party. Nexus. 785 N.W.2d at 783: see also Phoenix Trading. Inc. v. Loops LLC. 732 F.3d 936, 942 n.6 (9th Cir. 2013). Courts inWashington should utilize a similar approach when 

### assessing whether the plaintiffhas met his or her burden under the second step of the anti-SLAPP motion to dismiss inquiry. The role of the trial court in determining whether the plaintiff has met his or her burden under the second step of the anti-SLAPP motion to dismiss analysis is akin to the trial court's role in deciding a motion for summaryjudgment. The 

### trial court may notfind facts ormake determinations ofcredibility. Gerbosi, 193 Cal.App.4th at444; Ampex Corp. v. Cargle. 128Cal.App.4th 1569, 1576, 27 

### Cal.Rptr.3d 863 (2005). Instead, "the court shall consider pleadings and 

### supporting and opposing affidavits stating the facts" and may permit additional discovery upon a motion for good cause. RCW 4.24.525(4)(c), (5)(c). CR 56(e) similarly allows parties to submit affidavits in connection with motions for summaryjudgment, and the court may permit parties to submit "depositions, answers to interrogatories, orfurther affidavits" in support ofthe motion or 

### response tothemotion. Thus, when considering a motion tostrike underthe anti-SLAPP statute, the courtshould apply a summaryjudgment-like analysis to determine whether the plaintiffhas shown, by clear and convincing evidence, a probability of prevailing on the merits.

45No. 69300-0-1 (Linked with No. 68345-4-l)/46
Such an approach is necessary in order to preserve the plaintiff's right to a 

### trial byjury.33 Indeed, one purpose ofthe anti-SLAPP statute is to "[sjtrike a balance between the rights ofpersons to file lawsuits and to trial by jury and the 

### rights of persons to participate in matters ofpublic concern." Laws of2010, ch. 118, § 1 (2)(a). The right to trial by jury is inviolate under the state constitution. Wash. Const, art. I, § 21. "The right to have factual questions decided by the 

### jury iscrucial to the right totrial byjury." State v. Montgomery. 163Wn.2d 577, 590, 183 P.3d 267 (2008) (citing Sofiev. Fibreboard Corp.. 112Wn.2d 636, 656, 771 P.2d 711, 780 P.2d 260 (1989)). The summary judgment standard does not 

### offend the constitutional right totrial byjury because "it was not the purpose of 

### [article I, section 21] torendertheintervention ofajury mandatory
. . . where no issue of fact was left for submission to, or determination by, the jury." In re Brandon v. Webb, 23 Wn.2d 155, 159, 160 P.2d 529 (1945); seealso Nayev, City of Seattle, 68 Wn.2d 721, 725, 415 P.2d 93 (1966). 

### Accordingly, the anti-SLAPP statute does not violate the right totrial by 

### jury where the court utilizes a summaryjudgment-like standard in deciding the motion to strike. See Nexus. 785 N.W.2d at 782 (use of a summaryjudgment 

### like standard for deciding anti-SLAPP motions does not violate righttojurytrial underMinnesota constitution because "[t]he constitutional right to ajury trial does 

### not prevent all pretrial determinations by ajudge; it provides parties with the right 33 "'Whereverpossible, it is the duty ofthis courtto construe a statute soasto uphold its 

### constitutionality.'" In re Pers. Restraint ofMatteson. 142Wn.2d 298, 307, 12 P.3d 585 (2000) 

### (internal quotation marks omitted) (quoting Addleman v. Bd. ofPrison Terms & Paroles, 107 Wn.2d503, 510, 730 P.2d 1377 (1Q8R^; ar.r.ord Lummi Indian Nation v. State, 170Wn.2d247, 

### 264,241 P^3d 1220(2010).
-46-No. 69300-0-1 (Linked with No. 68345-4-l)/47

to have triable issues of material fact decided by the jury"). Thus, in analyzing whether the plaintiffhas shown, by clear and convincing evidence, a probability of prevailing on the merits, the trial court may not find facts, but rather must view the facts and all reasonable inferences therefrom in the light most favorable to the plaintiff. Mountain Park. 125 Wn.2d at 341: Gerbosi. 193 Cal.App.4th at 444. As RCW4.24.525(4)(b) does not evince the intent to apply two different procedures in deciding motions to strike, this same summaryjudgment-like 

### standard also applies to the trial court's analysis under the first step of the antiSLAPP motion to dismiss procedure. Thus, when deciding whether the moving 

### party has shown, by a preponderance ofthe evidence, that the claim was based on an action involving public participation and petition, the court also mustview the facts and all reasonable inferences therefrom inthe light most favorable to 

### the nonmoving party. Mountain Park. 125 Wn.2d at 341: Gerbosi. 193 Cal.App.4th at 444.
V 

### We reverse the judgment of the trial court, vacate the award of statutory 

### damages and attorney fees and costs, and remand for further proceedings. SDR's requestfor an award ofattorney fees and costs in connection with this appeal is denied.

47No. 69300-0-1 (Linked with No. 68345-4-l)/48

Reversed and remanded. 

# ID •^f '^A. We concur: 

# £ tentnc>~,fr-Cy

48-