IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
DAN YOUNG, an individual, No. 84426-1-I Appellant,
v. ORDER GRANTING MOTION FOR RECONSIDERATION, TODD S. RAYAN and JANE DOE WITHDRAWING OPINION, RAYAN, husband and wife; SAMUEL AND SUBSTITUTING OPINION WILKENS and JANE DOE WILKENS, husband and wife; PENNY ROHR and JOHN DOE ROHR, wife and husband; and ALTHAUSER RAYAN ABBARNO, a Washington Limited Liability Partnership,
Respondents.
Respondents Todd Rayan, Samuel Wilkens, Penny Rohr, and the law firm
Althauser Rayan Abbarno, LLP, moved for reconsideration of the published
opinion filed on June 26, 2023. The court has determined that respondents’
motion for reconsideration should be granted, the opinion should be withdrawn,
and a substitute opinion be filed.
Now, therefore, it is hereby
ORDERED that the Respondents’ motion for reconsideration is granted;
and it is further
ORDERED that the published opinion filed on June 26, 2023, is
withdrawn; and it is further No. 84426-1-I/2
ORDERED that a substitute published opinion be filed. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAN YOUNG, an individual, No. 84426-1-I
Appellant, DIVISION ONE v.
TODD S. RAYAN and JANE DOE PUBLISHED OPINION RAYAN, husband and wife; SAMUEL WILKENS and JANE DOE WILKENS, husband and wife; PENNY ROHR and JOHN DOE ROHR, wife and husband; and ALTHAUSER RAYAN ABBARNO, a Washington Limited Liability Partnership,
SMITH, C.J. — The litigation privilege immunizes participants in legal
proceedings from civil liability based on statements they make during litigation.
Litigants often strongly and passionately express their position over the course of
a case. The privilege exists to encourage frank and open testimony and
argument despite this turbulent emotional atmosphere. It protects participants
from retaliatory, derivative lawsuits—regardless of the merit of those suits—
instead relying on checks by the trial court such as sanctions to address false
testimony. The privilege embodies a compromise. It acknowledges that litigants
may at times abuse its protection, while recognizing that our legal system
depends on reducing the threat that every statement or argument may lead to
further litigation. No. 84426-1-I/2
Dan Young, an attorney, sued Todd Rayan, Samuel Wilkens, Penny Rohr,
and the law firm that employs them based on statements they made during court
proceedings. Their statements accused Young of acquiring documents from
them through misrepresentation. Young insists that the statements were
perjured. He asks us to identify an exception to the litigation privilege for
statements made in an attempt to abuse and weaponize the legal process. We
decline to do so and affirm, concluding that the trial court properly dismissed
Young’s claims at summary judgment.
FACTS
In 2018, Elizabeth Bartlett, formerly Elizabeth Parman, sued her ex-
husband Shawn Parman and his mother Ruth Parman in Thurston County
Superior Court over the ownership of a property in Olympia, Washington. She
alleged that she had purchased the property in 1997 using a “gift of early
inheritance” from her parents and, through the application of much of her own
money, time, and effort, transformed it into both a home and a working horse
farm. In 2000, she transferred the property to Ruth1 and her husband Robert via
quitclaim deed, trusting that with their names on the title it would be easier to
take out a loan to build a house. The transfer, she claimed, was based on the
understanding that she and Shawn were entering into a partnership with Ruth
and Robert, a condition of which was that Ruth and Robert would convey half of
1 For the sake of clarity and consistency, we refer to Shawn Parman, Ruth
Parman, Robert Parman, and Elizabeth Bartlett (f/k/a Parman) by their first names.
2 No. 84426-1-I/3
the property to Shawn and the other half to Elizabeth on their deaths. According
to Elizabeth, Robert and Ruth included parallel provisions in their wills to effect
this testamentary transfer.
The inheritance did not come to pass. Robert died in 2005. In 2015,
Shawn and Elizabeth divorced. Concerned about her eventual ownership of the
property, Elizabeth sought and apparently received assurances from Ruth about
the contents of her will. But in 2017, allegedly at Shawn’s urging, Ruth altered
her will to exclude transfer of the property to Elizabeth.
Litigation ensued. Ruth’s estate, represented by Shawn, was substituted
for Ruth after her death in 2019. In 2020, Shawn petitioned for his father’s
intestate probate, claiming that Robert had not left a will. Initially filed in King
County and then challenged by Elizabeth, the probate matter was transferred to
Thurston County to be consolidated with Elizabeth’s first lawsuit. Elizabeth’s
challenge to the probate matter was dismissed as untimely.2
Litigation continued undeterred and with increasing intensity. Seeking to
introduce Robert’s will into the record to persuade the court to reconsider its
dismissal, Dan Young, Elizabeth’s attorney, phoned the offices of the law firm
Althauser Rayan Abbarno, which, along with several of its employees, is the
respondent in this case. Young had learned that an attorney, John Turner, had
2 That dismissal was recently affirmed on appeal.Bartlett v. Estate of Parman, No. 56536-6-II, slip op. at 1 (unpublished) (Wash. Ct. App. Nov. 15, 2022), https://www.courts.wa.gov/opinions/pdf/D2%2056536-6-II% 20Unpublished%20Opinion.pdf.
3 No. 84426-1-I/4
drafted Ruth and Robert’s wills, and that Turner’s papers had been held by
Althauser Rayan Abbarno since his retirement.
The details of Young’s contact with individuals at Althauser Rayan
Abbarno are disputed. Young admits that he mentioned he was an attorney but
denies ever saying that he represented Robert Parman’s estate. Young claims
that he spoke with Penny Rohr, the firm’s receptionist, who indicated that
attorney Samuel Wilkens had inherited Turner’s matters. He reports that Rohr
said Wilkens would return his call, that Wilkens did not, and that Young followed
up several weeks later. During that call, Rohr apparently spoke with Wilkens
while Young was on hold and, when she returned to the phone, indicated that
she would send him a copy of the will3 by e-mail, which she did.
Rohr describes matters similarly in most respects. She acknowledges
receiving a call from Young. She says that she inquired with Wilkens about
whether she should send Young a copy of the will, and that Wilkens approved.
But contrary to Young’s narrative, she asserts that Young “indicated” that he
represented Robert Parman’s estate and it was based on this understanding,
which she had shared with Wilkens, that Wilkens authorized the release of
Robert’s will.
Wilkens, on the other hand, reports that “[t]o the best of my recollection,”
he spoke directly with Young. He says that during that conversation, Young
3 What Young received is just that—a copy. The original will was not retained in Turner’s files, only an executed copy of it. When this opinion says “the will,” it is referring to this copy, not to the original document.
4 No. 84426-1-I/5
stated that he represented Robert Parman’s estate. On that basis, Wilkens
reports authorizing Rohr to send Young a copy of the will.
Regardless of precisely what words were exchanged, Young obtained the
will. He introduced it into the underlying litigation via a motion to reconsider the
dismissal of the probate matter and opposing a motion from Shawn for attorney
fees. Young also issued a subpoena directing Althauser Rayan Abbarno to turn
over the same materials he had just received. Shawn’s attorney, Mark Owen
Gabrielson, responded by issuing his own subpoena to Althauser Rayan
Abbarno, seeking Ruth and Robert’s estate planning records. Todd Rayan, the
firm’s managing partner, reached out to Gabrielson and, following a discussion,
directed Wilkens and Rohr to write down their recollections of the events leading
to Rohr sending Young the will. He then supplied their recollections to
Gabrielson as sworn declarations. And he objected to Young’s subpoena in a
letter because “[t]he prior disclosure and emailing of one document was based
on a misrepresentation to my staff . . . [which means that the will was] obtained
through fraudulent means.”4
Two motions, a police investigation, a bar grievance, and the initiation of
the present lawsuit followed. First, Gabrielson moved to strike the will from the
record in the underlying actions and seal it. Young then moved to compel
4 Though designated to be part of the record on appeal, the portions of the
Clerk’s Papers at which this letter should appear are either corrupted or missing. The letter is attached as an appendix to the Appellant’s Opening Brief, however. The parties agree that the appendix is an accurate copy of the letter and we may look to it for our review.
5 No. 84426-1-I/6
production of the will from Althauser Rayan Abbarno. Escalating the dispute
beyond the courtroom, Gabrielson called the Centralia Police Department about
Young, complaining about the manner in which he acquired the will. Detective
Timothy O’Dell investigated and referred the case to the Lewis County
Prosecuting Attorney’s Office, having concluded that probable cause existed to
arrest Young for criminal impersonation in the first degree. Young submitted a
bar grievance against Wilkens accusing him of perjuring himself in his
declaration. Finally, on January 18, 2022, Young filed the complaint in this
lawsuit in King County Superior Court.
Ten days later, the trial court heard the motions to strike, seal, and
compel. It struck and sealed the will in the probate proceeding. It sealed but did
not strike the will in Elizabeth’s first lawsuit, preserving for another day questions
about its admissibility. It denied Young’s motion to compel. Throughout its oral
ruling, the court expressed concern that RPC 1.6—which governs confidentiality
of client files but is not an evidentiary rule and does not create a privilege—was
implicated.
Meanwhile, the present lawsuit moved rapidly from its initiation to its
dismissal. Young sued Rohr, Wilkens, Rayan, and Althauser Rayan Abbarno,
bringing claims of defamation, false light, and civil conspiracy. The defendants
moved for summary judgment, arguing that Young’s claims were based on
statements made during the course of litigation, were protected by the litigation
6 No. 84426-1-I/7
privilege doctrine, and therefore could not stand. The trial court agreed and
dismissed the case in August 2022.
Young appeals.
ANALYSIS
This appeal asks whether three causes of action—defamation, false light,
and civil conspiracy—may be sustained when they are based on statements
made during court proceedings. Young contends that they can be. He attempts
to identify a number of exceptions to the application of litigation privilege, which
normally prohibits liability for statements made in court. As a general matter, he
professes that his claims may be sustained because the statements on which
they are based abused the court process itself to do further harm. But his
arguments are not grounded in Washington case law, which applies the litigation
privilege broadly. We affirm the trial court’s dismissal of his claims as a result.
Standard of Review
We review summary judgment de novo, considering the evidence and
reasonable inferences drawn from it in the light most favorable to the nonmoving
party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary
judgment is appropriate only when no genuine issue exists as to a material fact
and the moving party is entitled to judgment as a matter of law. Keck, 184 Wn.2d
at 370. “A material fact is one that affects the outcome of the litigation.” Owen v.
Burlington N. and Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220
(2005).
7 No. 84426-1-I/8
Litigation Privilege Generally
The “litigation privilege”5 is a judicially created privilege that protects
participants—including attorneys, parties, and witnesses—in a judicial
proceeding against civil liability for statements they make in the course of that
proceeding. See, e.g., Mason v. Mason, 19 Wn. App. 2d 803, 830-31, 497 P.3d
431 (2021) review denied, 199 Wn.2d 1005 (2022); Deatherage v. Examining Bd.
of Psychology, 134 Wn.2d 131, 135-36, 948 P.2d 828 (1997). As applied to
witnesses, the privilege is sometimes referred to as witness immunity, and under
it, “[a]s a general rule, witnesses in judicial proceedings are absolutely immune
from suit based on their testimony.” Bruce v. Byrne-Stevens & Assocs. Eng’rs,
Inc., 113 Wn.2d 123, 125, 776 P.2d 666 (1989).
Statements “are absolutely privileged if they are pertinent or material to
the redress or relief sought, whether or not the statements are legally sufficient to
obtain that relief.” McNeal v. Allen, 95 Wn.2d 265, 267, 621 P.2d 1285 (1980).
But statements having “ ‘no connection whatever’ ” with the litigation are not
privileged. Demopolis v. Peoples Nat. Bank of Wash., 59 Wn. App. 105, 110,
796 P.2d 426 (1990) (quoting RESTATEMENT (SECOND) OF TORTS, § 586,
comment c (AM. LAW INST. (1977))). Thus, not every passing statement made in
court avoids liability. But the determination of pertinency is not a high bar. As
5 Also historically referred to in Washington as “absolute privilege,”
Deatherage v. Examining Board of Psychology, 134 Wn.2d 131, 135, 948 P.2d 828 (1997), and in other jurisdictions variously as “judicial statements privilege,” Maggard v. Kinney, 576 S.W.3d 559, 567 (Ky. 2019), or “official proceedings privilege,” Klem v. Access Insurance Company, 17 Cal. App. 5th 595, 613, 225 Cal. Rptr. 3d 711 (2017).
8 No. 84426-1-I/9
the Restatement (Second) of Torts indicates, a statement “need not be strictly
relevant to any issue” so long as it bears “some reference to the subject matter of
the . . . litigation.” RESTATEMENT § 586, comment c.
Litigation privilege therefore prohibits liability stemming from statements
(1) made in the course of a judicial proceeding (2) that are pertinent to the
litigation. Pertinency is a question of law reviewed de novo. Demopolis, 59 Wn.
App. at 110.
The purpose of the litigation privilege doctrine is to encourage frank, open,
untimorous argument and testimony and to discourage retaliatory, derivative
lawsuits. As applied to attorneys, it furthers “ ‘a public policy of securing to
[counsel] as officers of the court the utmost freedom in their efforts to secure
justice for their clients.’ ” Mason, 19 Wn. App. 2d at 831 (quoting McNeal, 95
Wn.2d at 267). As applied to witness testimony, it preserves “the integrity of the
judicial process by encouraging full and frank testimony.” Bruce, 113 Wn.2d at
126. The rule addresses the concern that a witness may either be reluctant to
come forward to testify in the first place or shade their testimony “to magnify
uncertainties, and thus to deprive the finder of fact of candid, objective, and
undistorted evidence.” Briscoe v. LaHue, 460 U.S. 325, 333, 103 S. Ct. 1108, 75
L. Ed. 2d 96 (1983).
The potential harms of a broad application of litigation privilege—namely,
preventing redress for a harm that would otherwise sustain a civil suit—are
blunted by forms of accountability not available outside of judicial proceedings.
9 No. 84426-1-I/10
The rule assumes that false or harmful statements in a judicial proceeding may
be addressed through the use of tools such as sanctions, contempt, “[a] witness’
. . . oath, the hazard of cross-examination, and the threat of prosecution for
perjury.” Bruce, 113 Wn.2d at 126. Additionally, immunity does not typically
extend to professional disciplinary proceedings, which may occur based on
testimony or behavior during litigation and which are therefore an additional
avenue to confront harm caused by privileged statements. Wynn v. Earin, 163
Wn.2d 361, 378, 181 P.3d 806 (2008). In part because the privilege assumes
that improper conduct should not be entirely impossible to address, immunity is
not usually extended to settings where judicial authority lacks “the power to
discipline as well as strike from the record statements which exceed the bounds
of permissible conduct.” Twelker v. Shannon & Wilson, Inc., 88 Wn.2d 473, 476,
564 P.2d 1131 (1977).
Though it often arises in the context of defamation suits, the courts have
rejected the notion that litigation privilege applies only to that claim. Our
supreme court, in the context of witness immunity, has said that the chilling effect
of subsequent litigation “is the same regardless of the theory on which that
subsequent litigation is based.” Bruce, 113 Wn.2d at 131-32. More generally,
the supreme court has used broad language to describe the litigation privilege’s
scope, saying that it “applies to statements made in the course of judicial
proceedings and acts as a bar to any civil liability.” Deatherage, 134 Wn.2d
at 135 (emphasis added). Litigation privilege has been applied to bar liability
10 No. 84426-1-I/11
under a range of causes of action, including civil conspiracy. Jeckle v. Crotty,
120 Wn. App. 374, 386, 85 P.3d 931 (2004).
Mason’s Public Policy Exception
Litigation privilege therefore has the potential to bar any of the three
causes of action Young pleaded in this case: defamation, false light, and civil
conspiracy. Young, however, attempts to identify an exception to the litigation
privilege doctrine that that would preclude its application when it would not further
any compelling public policy. Division II of this court has recently taken this
approach in Mason, on which Young heavily relies. 19 Wn. App. 2d at 834. We
decline to follow Mason’s recognition of a public policy exception to the litigation
doctrine.
Mason concerned, among other issues, claims made against an attorney
based on his statements in an underlying lawsuit. 19 Wn. App. 2d at 830. It
reversed the trial court’s application of the litigation privilege to dismiss a claim of
abuse of process, a tort involving misuse of a judicial proceeding “to accomplish
an end for which the process was not designed.” Mason, 19 Wn. App. 2d at 834.
It likewise refused to apply the privilege to a related claim of intentional infliction
of emotional distress by way of abusive litigation tactics. 19 Wn. App. 2d at 843.
Mason reasoned as follows. To begin, it pointed to the nature of the
abuse of process tort, which “must be used ‘to accomplish some end which is
without the regular purview of the process.’ ” Mason, 19 Wn. App. 2d at 834-35.
It then identified what it characterized as a mismatch between the goals of the
11 No. 84426-1-I/12
judicial system, the intent of an abuse of process tortfeasor, and the litigation
privilege’s requirement that protected statements pertain to the legal proceeding.
It asserted that “[i]ntegral to an abuse of process claim [is that] the complained of
conduct, by its nature, must not be related to the legitimate purposes of a judicial
proceeding.” Mason, 19 Wn. App. 2d at 834. It concluded “[c]onsequently,
litigation privilege does not apply, and an attorney can be liable for abuse of
process where the attorney was alleged to have intentionally employed legal
process for an inappropriate and extrinsic end.” Mason, 19 Wn. App. 2d at 835.
A more recent Division II case has articulated Mason’s rule this way: “we apply
litigation privilege where the conduct bears some relation to a judicial proceeding
and where compelling public policy justifications support its application.” Scott v.
Am. Express Nat'l Bank, 22 Wn. App. 2d 258, 265-66, 514 P.3d 695 (2022).6
These cases appear to have added a third element to the litigation
privilege analysis. It is no longer enough, under Mason and Scott, to ask
whether a statement was (1) pertinent (2) to a judicial proceeding. We must now
also ask (3) whether immunity furthers public policy under the particular facts of
the case, in part by looking to an alleged tortfeasor’s intent.
6 Scott, which Young relies on in his briefing, declined to apply litigation
privilege to bar a consumer protection act claim against a law firm because immunity would “ ‘neither preserve[] ‘integrity of the judicial process,’ nor ‘further[] the administration of justice.’ ” 22 Wn. App. 2d at 270 (quoting Mason, 19 Wn. App. 2d at 838). In Scott, unlike in Mason, the court denied immunity because the firm was acting in its capacity as a collection agency when conducting the acts upon which its liability was allegedly based; the court did not consider the defendants’ intent. 22 Wn. App. 2d at 270.
12 No. 84426-1-I/13
We are unconvinced for several reasons. First, it does not follow that a
tortfeasor’s intent in making a statement informs whether that statement was
pertinent to the proceeding in which it was made. A statement made with malice
and intent to abuse the process and causing actual harm may be pertinent to a
proceeding, even if it would also normally give rise to civil liability.
Second, the litigation privilege’s broad purpose is to prevent even the
threat of litigation and so avoid potentially chilling testimony. A standard that
creates exceptions where intent to employ the litigation process for an
inappropriate end is simply “alleged” fatally undermines that purpose. Such
intent is easy to allege, allowing for artful pleading. It is also likely to actually
exist in most tort cases based on perjured testimony—the purpose of the judicial
system is never, after all, to educe false testimony, so any false statement
arguably pursues an inappropriate end under this analysis. Mason’s exception
consequently risks swallowing the broader rule. And, perhaps most troublingly,
the inherently case-by-case application of Mason’s standard, which looks to a
particular defendant’s actual intent, will most often force prolonged and
expensive discovery and litigation. This would hobble the litigation privilege’s
main goal: to deter even the initiation of lawsuits, and in so doing avoid chilling
the speech of those who might otherwise feel threatened by such litigation.7
7 The principle is well expressed by the Connecticut Supreme Court in
Rioux v. Barry: The purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is “that in certain situations the public interest in having people speak freely outweighs the risk that individuals will
13 No. 84426-1-I/14
Third, Mason does not root its analysis in relevant case law. For its
discussion of public policy it relies on language from Bender v. Seattle, 99 Wn.2d
582, 600, 664 P.2d 492 (1983), that “[g]enerally, some compelling public policy
justification must be demonstrated to justify the extraordinary breadth of an
absolute privilege.” Mason, 19 Wn. App. 2d at 843. It reads Bender as
supporting a search for a compelling public policy justification for applying
litigation privilege in each individual case, and finds no such justification where
statements abused the purposes of the court system. Mason, 19 Wn. App. 2d
at 843. Bender, however, discussed the difference between doctrines of
absolute and qualified (and discretionary) immunity in the abstract, not as applied
to any particular set of facts. 99 Wn.2d at 600. Its discussion focused on
whether to extend a privilege in certain procedural context, or to certain sorts of
actor. Bender, 99 Wn.2d at 600-01. Indeed, one of the examples Bender gives
of an absolute privilege, contrasted with the qualified privilege extending to
statements made by law enforcement officers that was in dispute, is the litigation
privilege. 99 Wn.2d at 600.8
occasionally abuse the privilege by making false and malicious statements.” “[T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint.” 283 Conn. 338, 343 927 A.2d 304 (2007) (alterations in original) (citations omitted) (quoting Chadha v. Hungerford Hosp., 272 Conn. 776, 786, 865 A.2d 1163 (2005); Craig v. Stafford Constr., Inc., 271 Conn. 78, 95, 856 A.2d 372 (2004)). 8 Mason also relied on Fite v. Lee, 11 Wn. App. 21, 521 P.2d 964 (1974),
to support the idea that an abuse of process claim may lie against an attorney unhindered by the litigation privilege. 19 Wn. App. 2d at 835-40. At no point,
14 No. 84426-1-I/15
Mason’s discussion of the extension of privilege appears to conflate
extension in the first instance to a type of proceeding or actor, a process
requiring recognition of a compelling public policy justification, and its application
in an individual case. But our supreme court has emphasized elsewhere that
while it is true that extending an absolute privilege in the first instance requires
“compelling public policy justifications,” the privilege has already been extended
to cover most, if not all, participants in court proceedings. Deatherage, 134
Wn.2d at 136 (discussing extension of privilege to expert witnesses in Bruce).
Fundamentally, the privilege already serves a compelling public policy in any
given case as it is currently constituted: it ensures that witnesses, parties, and
their counsel may speak freely and openly in court proceedings without fear of
ensuing litigation. Deatherage, 134 Wn.2d at 137.
We therefore decline to follow Mason and do not recognize a case-by-
case “public policy exception” to the litigation privilege doctrine that looks to a
defendant’s intent. We emphasize that the privilege, by design, applies where
bad behavior may be addressed through means not always available outside the
courtroom, such as sanctions, contempt, striking of testimony, cross-
examination, the threat of perjury, and professional discipline. And the effects of
improper statements on the progress of the lawsuit in which they are made may
however, does Fite discuss the litigation privilege or any other form of immunity. And where a legal theory is not discussed in a case’s opinion, that opinion does not control future cases where the theory is properly raised. Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 824, 881 P.2d 986 (1994).
15 No. 84426-1-I/16
be addressed through direct appeal if the trial court errs in its approach. Those
harmed by privileged statements are correspondingly not without recourse, even
if redress is imperfect. The litigation privilege accepts that imperfection in pursuit
of freer speech and conduct in judicial proceedings.
We now proceed to determine whether Young’s particular claims in this
case—defamation, false light, and civil conspiracy—are based in language
“pertinent” to a court proceeding and so are barred by the litigation privilege.
Young’s Defamation and False Light Claims
Application of the litigation privilege doctrine to the first two causes of
action—defamation and false light—is straightforward, and we conclude that the
trial court correctly dismissed them at summary judgment.
Analysis of litigation privilege in the context of defamation and false light is
made easy because both torts include an element requiring the plaintiff to ground
their claim in specific statements. A defamation claim has four essential
elements: (1) a false communication, (2) which was unprivileged, (3) and for
which the defendant is at fault, (4) caused the plaintiff damages. Mark v. Seattle
Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981). False light, meanwhile,
creates liability when the defendant (1) publicizes a matter (2) that places
another in a false light, (3) the false light would be highly offensive to a
reasonable person, and (4) the defendant knew of or recklessly disregarded the
falsity of the publication and the false light in which the plaintiff would be placed.
Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 470-71, 722 P.2d 1295
16 No. 84426-1-I/17
(1986). At their cores, both torts are concerned with the harm suffered by a
plaintiff because of a defendant’s statements.
Here, the defendants are immune from liability stemming from the
statements that support both Young’s claim of defamation and his claim of false
light. Young’s complaint makes the foundational nature of these statements
clear. His defamation claim is premised on three statements: (1) Rohr in her
declaration saying that Young had indicated to her that he represented the estate
of Robert Parman; (2) Wilkens in his declaration saying that he had spoken with
Young and Young had represented that he was the attorney for Parman’s estate;
and (3) Rayan incorporating Rohr and Wilkens’ statements in his objection to
Young’s subpoena. Young’s complaint does not explicitly state the publications
on which it alleges liability under a false light theory, but it reincorporates the
factual allegations made earlier in the complaint, which do not mention any other
publication. It therefore rests on the same statements.
We conclude that the defendants are immune to any claim for liability
based on these statements. We reach this conclusion regardless of the dispute
over precisely what was said during Young’s phone call to the law firm, because
exactly what was said that day is not material to whether litigation privilege
applies. The first two statements are sworn declarations providing testimony on
the penalty of perjury. The third, though it is not sworn, sits squarely within the
type of communication contemplated by the rules of civil procedure as part of a
court proceeding. See CR 45(c)(2)(B) (providing ability to object to subpoena,
17 No. 84426-1-I/18
triggering issuer’s ability to move the court to compel production). The
statements are all pertinent to the subject matter of the litigation, since they
concerned arguments about the admissibility of a copy of a will in actions about
the disposition of the decedent’s property. And any falsity in the statements was
subject to checks by the trial court, such as sanctions, or even by the
Washington State Bar Association through a disciplinary action.9 As statements
made in the course of court proceedings, pertinent to the subject matter of the
litigation, the defendants cannot be civilly liable for any harm the statements
caused.
Young disagrees, arguing about the statements’ pertinency. He asserts
that the dispute over whether he fraudulently obtained the will, and whether the
will should have been stricken from the record as a result, did not “address the
contents of the will nor the merits of the underlying litigation.” But this and other
similar arguments parse the matter too finely. As case law and other authority
have repeatedly held, litigation privilege cannot be applied only where statements
are truly relevant to the determination of an issue. See, e.g., RESTATEMENT
§ 586, comment c; McNeal, 95 Wn.2d at 267 (Statements “are absolutely
privileged if they are pertinent or material to the redress or relief sought, whether
9 Additionally, “[a] person is guilty of perjury in the first degree if in any
official proceeding he or she makes a materially false statement which he or she knows to be false under an oath required or authorized by law.” RCW 9A.72.020(1). Perjury charges are thus, theoretically, another potential check on false testimony. Practically, though, it would be highly unusual for criminal charges to be brought based on sworn statements made in a civil case with no major public import.
18 No. 84426-1-I/19
or not the statements are legally sufficient to obtain that relief.”). To apply the
privilege so narrowly could result in a chilling effect as attorneys and parties
become reluctant to make less than certain arguments, and witnesses become
uncomfortable giving testimony without understanding the use to which it will be
put. We are not swayed by Young’s argument.
Young’s Civil Conspiracy Claim
Application of the litigation privilege doctrine to civil conspiracy is slightly
more involved than its application to defamation and false light. This is because
the tort of civil conspiracy does not necessarily locate liability in defendants’
statements, as opposed to their actions. But we nonetheless conclude that
litigation privilege also bars consideration of this claim.
“[C]ivil conspiracy exists if two or more persons combine to accomplish an
unlawful purpose or combine to accomplish some purpose not in itself unlawful
by unlawful means.” Corbit v. J.I. Case Co., 70 Wn.2d 522, 528, 424 P.2d 290
(1967). “In order to establish a conspiracy the plaintiff must show that the
alleged coconspirators entered into an Agreement to accomplish the object of the
conspiracy.” Corbit, 70 Wn.2d at 528-29.
The plaintiff must demonstrate the existence of the conspiracy by clear,
cogent, and convincing evidence. Corbit, 70 Wn.2d at 529. As Young notes,
“ ‘[t]o establish liability for conspiracy, it is sufficient if the proof shows concert of
action or other facts and circumstances from which the natural inference arises
that the unlawful overt act was committed in furtherance of a common design,
19 No. 84426-1-I/20
intention, and purpose of the alleged conspirators.’ ” Lyle v. Haskins, 24 Wn.2d
883, 899, 168 P.2d 797 (1946) (quoting 11 AM. JUR. CONSPIRACY § 56 at 585
(1937)). But this is not to say that any circumstantial evidence suffices. “ ‘Mere
suspicion or commonality of interests is insufficient to prove a conspiracy.’ ”
Puget Sound Sec. Patrol, Inc. v. Bates, 197 Wn. App. 461, 470, 389 P.3d 709
(2017) (quoting All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d
367 (2000)). And if “ ‘the facts and circumstances relied upon to establish a
conspiracy are as consistent with a lawful or honest purpose as with an unlawful
undertaking, they are insufficient.’ ” Puget Sound Sec. Patrol, 197 Wn. App. at
470 (quoting All Star Gas, 100 Wn. App. at 740).
Young’s complaint describes the alleged conspiracy: Defendants Penny Rohr, Samuel Wilkens and Todd Rayan combined to accomplish an unlawful purpose, i.e., defame plaintiff and present him in a false light, or they combined to accomplish a lawful purpose by unlawful means, e.g., by attempting to avoid blame for their release of Robert Parman’s will to plaintiff. ... The conspirators entered into an agreement to accomplish the object of the conspiracy and knowingly made false allegations about plaintiff with the purpose of exonerating themselves in the eyes of their employer, the Firm.
Insofar as Young attempts to show a conspiracy of the sort that seeks to
accomplish an unlawful purpose, the only unlawful purposes he identifies are
defamation and false light. Since litigation privilege protects the defendants from
liability on those claims, they cannot serve as the basis for his civil conspiracy
claim.
20 No. 84426-1-I/21
But Young’s alternative framing of the conspiracy likewise depends on
“false allegations” made by Rohr, Wilkens, and Rayan. It does not appear that
he is referencing anything other than the statements protected by litigation
privilege.10 Because his civil conspiracy claim, like his other claims, inherently
relies on the falsity of privileged statements to demonstrate liability, we conclude
that the trial court correctly dismissed this claim as well.
Young asserts that there exists a “larger actionable conspiracy” exception
to litigation privilege that would allow this claim to move forward because the
litigation privilege does not protect conspiratorial use of perjury to accomplish
other ends. But the binding cases he cites do not support this proposition, and
we decline to hold that any such exception applies here.
For support in Washington caselaw, Young cites Dexter v. Spokane
County Health District, 76 Wn. App. 372, 884 P.2d 1353 (1994). That case uses
the phrase “ ‘larger[] actionable conspiracy’ ” only once, during its discussion of
10 Elsewhere, Young characterizes the conspiracy to involve more than
just collusion among the named defendants, but having the same object of creating false testimony: The greater conspiracy here was threefold: (1) Wilkens attempted to excuse his apparent violation of RPC 1.6 in releasing the will by blaming the release on Young; (2) the Althauser firm attempted to avoid liability for its apparent violation of RPC 1.6 and for not having procedures in place to prevent such a release by blaming Young; and (3) Gabrielson (on behalf of his ultimate client Shawn Parman) “ignored” the RPC 1.6 violation and gained an advantage over Young in the underlying litigation by putting Young in a false light, attacking him personally, undermining his credibility, driving a wedge between Young and his client, and perhaps hiding the will of Robert Parman which had unexpectedly come to the light of day.
21 No. 84426-1-I/22
whether Washington recognizes a civil cause of action for perjury. Dexter, 76
Wn. App. at 375 (quoting Anderton v. Herrington, 113 Idaho 73, 741 P.2d 360
(Ct. App.1987)). Surveying case law from other states, Dexter concluded that
most jurisdictions do not allow for a common law right of action arising out of
perjured testimony. 76 Wn. App. at 375. It noted, however, that some
jurisdictions create an exception to this general rule where perjury is “merely a
‘step in the accomplishment of some larger, actionable conspiracy.’ ” Dexter, 76
Wn. App. at 375 (quoting Anderton, 113 Idaho at 741.). But that exception did
not apply in Dexter, which went on to state: “Mr. Dexter is left with the general
rule that absent an authorizing statute, there is no civil claim for perjury.” 76 Wn.
App. at 375.
On its face, the exception Young seeks to identify in Dexter is not an
exception to the litigation privilege doctrine at all but instead an exception to the
general rule that no civil cause of action exists for perjury. And in fact, Dexter
declined to allow the plaintiff’s suit to proceed in part because “[a] cause of action
for perjury is inconsistent with the principle that a witness, lay or expert, party or
nonparty, is immune from tort damages arising out of his or her testimony.” 76
Wn. App. at 376.
Young does not point to any other Washington law that supports his claim,
instead relying on out-of-state or federal cases, primarily FMC Technologies, Inc.
v. Edwards, 464 F. Supp. 2d 1063, 1068 (W.D. Wash. 2006). The court there,
citing Dexter and a series of non-Washington cases, concluded that Washington
22 No. 84426-1-I/23
does recognize a “larger actionable conspiracy” exception to the litigation
privilege doctrine. Edwards, 464 F. Supp. 2d at 1068-72. The court reasoned
that broad statements about the protection afforded by litigation privilege were
drawn from cases decided before the privilege was extended beyond defamation
actions alone, in 1989’s Bruce decision. Edwards, 464 F. Supp. 2d at 1070. In
doing so, however, it ignored similarly broad language in later cases. See, e.g.,
Deatherage, 134 Wn.2d at 135 (saying in 1997 that the privilege “applies to
statements made in the course of judicial proceedings and acts as a bar to any
civil liability”). Edwards appears to have applied out-of-state law while presenting
it as Washington law. See 464 F. Supp. 2d at 1068-69 (citing cases from
Tennessee to explain the conspiracy exception).
Regardless of the merit of a “larger actionable conspiracy” exception, the
case law Young cites does not support the notion that existing Washington law
recognizes it.
We affirm.
WE CONCUR: