Filed Washington State Court of Appeals Division Two
April 28, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JAMES D. AITKINS, No. 60541-4-II
Appellant,
v.
BEVERLY GRANT LAW FIRM, P.S., UNPUBLISHED OPINION BEVERLY G. GRANT, JEFFERY D. BRADLEY, and THOMAS R. MCCOSH,
Respondents.
GLASGOW, J.—James Aitkins was a member of an LLC that ran a restaurant. After being
fired as general manager of the restaurant, he sued the LLC, received a default judgment, and
seized the contents of the LLC’s bank account. As a result, the LLC could not pay rent, so its
landlord sued the LLC and Aitkins, who was a coguarantor on the lease. Represented by attorneys
at the Beverly Grant Law Firm, the LLC demanded arbitration with Aitkins per the LLC
membership agreement, claiming that he was still an LLC member and had breached his duties of
care and loyalty. The LLC requested, and the trial court granted, a stay of the enforcement of
Aitkins’ default judgment until resolution of the arbitration and the landlord’s case.
Aitkins then sued the law firm, arguing that its statements in the arbitration demand and
other court filings constituted defamation and represented Aitkins in a false light. Aitkins also
argued that demanding arbitration was an abuse of process meant to intimidate Aitkins into
forfeiting the remainder of his default judgment. The law firm moved for summary judgment, No. 60541-4-II
which the trial court granted, dismissing Aitkins’ claims. The trial court concluded that the law
firm’s challenged statements were protected by litigation privilege and that Aitkins had not
sufficiently demonstrated that the law firm’s actions constituted an abuse of process.
Aitkins appeals, arguing that the trial court misapplied the litigation privilege doctrine to
his abuse of process claim and improperly granted summary judgment before discovery was
complete.
We hold that the trial court correctly determined that, as a matter of law, Aitkins does not
show that the law firm abused the litigation process. Accordingly, the trial court did not err by
concluding that the law firm’s statements were privileged. We also conclude that the trial court
did not abuse its discretion when it did not allow time for further discovery before granting
summary judgment where Aitkins did not articulate what specific discovery he sought or how
additional discovery would raise a genuine dispute of material fact. We affirm.
FACTS
I. BACKGROUND
Kathy Dance, Michael Dance, and James Aitkins were members of Joeseppi’s Tacoma
LLC, which operated a restaurant. The Dances owned 90 percent of the LLC and Aitkins owned
10 percent. Aitkins worked as general manager of the restaurant. The LLC membership agreement
stated, “Any dispute arising out of or related to this Agreement that the Members are unable to
resolve by themselves shall be settled by arbitration.” Clerk’s Papers (CP) at 230. The LLC
agreement had no language indicating how members could be removed.
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On or around March 13, 2021, the Dances fired Aitkins as general manager of the
restaurant. Aitkins claims that, on that date, the Dances also voted to dissociate him as a member
of the LLC.
Later, the Dances produced a document purporting to be minutes from a meeting dated
March 11 between the Dances, Aitkins, and others related to the LLC. The minutes stated that the
meeting participants “[p]resented Jim Aitkins with options for future involvement, removal as
current [general manager] due to performance issues, lack of leadership and management
experience.” CP at 122. As a result, they “[d]etermined Jim will no longer be the general manager
and his active ownership, as per his request, will no longer remain. He will however maintain his
10% equity share.” Id. Aitkins challenges the validity of this document.
Also in March 2021, the Dances filed a document with the Washington State Liquor and
Cannabis Board listing themselves as 100 percent owners of the LLC.
In April 2021, Aitkins wrote a demand letter to the Dances claiming that they had illegally
terminated him in retaliation for speaking to Kathy about drinking alcohol at work. In this letter,
Aitkins also sought a buyout for his 10 percent membership in the LLC, distribution of 10 percent
of the LLC’s profits, retroactive compensation for his role as general manager, and out-of-pocket
expenses related to the restaurant. Aitkins stated that the Dances had breached the LLC agreement
by failing to seek arbitration to remove him as a member. However, Aitkins also stated that he
accepted the Dances’ vote to remove him from the LLC and voluntarily removed himself. In June
2021, Aitkins had an attorney write a demand letter to the Dances demanding payment for
retaliatory termination, unpaid wages and compensation, and reimbursement of business expenses
Aitkins had incurred. Aitkins offered to accept $75,000.
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II. PROCEDURAL HISTORY
A. Aitkins’ Suit Against the Dances
In August 2021, Aitkins sued the Dances and the LLC for unpaid wages, failure to provide
access to employee files, failure to reimburse business expenses, and unlawful retaliatory
termination in response to his complaints about Kathy Dance’s drinking at work and her
management of an employee’s sexual harassment claim. When the LLC did not take any action
regarding Aitkins’ suit, the trial court entered a default judgment for Aitkins in the amount of
$122,332.11. It is undisputed that Aitkins then secured a garnishment judgment against the LLC’s
bank, and all the money in the LLC’s operating account was seized. As a result, the Dances
defaulted on the restaurant’s rent.
B. The Landlord’s Suit and the Dances’ Arbitration Demand
In August 2022, the landlord brought a lawsuit against the LLC, the Dances, and Aitkins
for breach of the restaurant’s lease regarding failure to pay rent. Aitkins was a coguarantor on the
lease.
At some point, the Dances hired the Beverly Grant Law Firm, including attorneys Beverly
G. Grant, Jeffrey D. Bradley, and Thomas R. McCosh, to represent them and the LLC.
In December 2022, on behalf of the LLC, the law firm sent Aitkins a demand for
arbitration. The arbitration demand stated,
Jim A[i]tkins was given a 10% Interest in Joeseppi’s Tacoma, LLC. After becoming a member and part-owner of the company, Mr. A[i]tkins filed a frivolous, bad faith lawsuit against the business, absconded with business funds, and subjected the business to other losses and liabilities, [which] constitute breaches of his duties of care and loyalty.
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CP at 530. The attorneys said that the LLC was seeking monetary relief and dissolution of Aitkins’
ownership interest in the business and his formal dissociation as a member. Aitkins responded to
this demand for arbitration, stating that he was not a member of the LLC, so there was no dispute
among members requiring arbitration.
In January 2023, the law firm, on behalf of the LLC, moved to stay proceedings in the suit
with the landlord until after arbitration. The law firm cited former RCW 25.15.131(2) (2015), the
statute that was in force when Aitkins sent his demand letter, which stated that a member of an
LLC “may not withdraw from the [LLC] without the written consent of all other members.”
The law firm also stated,
When Mr. Aitkins departed the company, he took the only copies of several business documents, and wrongfully withdrew substantial sums of money from the operating account for [the LCC]. This caused hardship on the business which had a trickle-down effect, in turn causing [the LLC] to default on its lease obligations and causing other financial hardships on the business. Then, Mr. Aitkins filed a bad-faith lawsuit against [the LLC], fabricating allegations from whole cloth that he was owed “wages” . . . . Mr. Aitkins included several other causes of action and made inflammatory and defaming remarks about his fellow members, wrongly accusing them of alcoholism and misconduct. In a pernicious abuse of judicial process, Mr. Aitkins was granted a sizeable default judgment against the company. Paradoxically, Mr. Aitkins now holds this judgment notwithstanding that he was, is, and remains a part of the company and is obligated to share in the company’s liabilities. Mr. Aitkins then leveraged his default judgment to continue holding [the LLC] hostage, draining its operating accounts of funds and causing the business to default on its contractual obligations in a wanton and flagrant violation of Mr. Aitkins’ duties of care and loyalty to the company and to his fellow members.
CP at 203-04.
In February 2023, the LLC, through the law firm, moved to stay enforcement of Aitkins’
default judgment pending arbitration and resolution of the landlord’s case, and alternatively, to set
aside the default judgment. The motion stated, “To the extent that Mr. Aitkins has liability to the
business and his fellow members for breaches of a fiduciary duty, it would be fair and equitable to
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offset those claims against the judgment.” CP at 235. The motion further explained that permitting
Aitkins to continue collecting his default judgment may prevent the LLC from pursuing its claims
regarding Aitkins’ responsibilities to the LLC.
In March 2023, the LLC answered the landlord’s complaint and brought cross claims
against Aitkins. The LLC’s attorneys argued that Aitkins was still a member of the LLC and had
breached his duties of care and loyalty to the LLC. The LLC contended that Aitkins had acted with
gross negligence regarding these duties and was required to indemnify the LLC for any damages
or expenses incurred as a result of his actions. The LLC again demanded arbitration. It is
undisputed that the trial court granted the LLC’s motion to stay enforcement of Aitkins’ default
judgment pending the result of arbitration.
Later in March 2023, the law firm withdrew as counsel for the LLC. In its summary
judgment motion, the law firm stated that the LLC terminated the law firm after a preliminary
hearing with the arbitrator, but the record does not state the reason for this termination.
C. Aitkins’ Suit Against the Law Firm
In June 2024, Aitkins sued the law firm and its attorneys, arguing that statements made in
its demand for arbitration, motion to stay the landlord’s legal proceedings, answer and cross
claims, and motion to stay enforcement of the default judgment constituted defamation and
presented him in a false light.
Aitkins also claimed that the law firm’s arbitration demand, which he alleged contained a
series of false allegations against Aitkins, was intended to prevent Aitkins from continuing to
collect on his default judgment. Specifically, Aitkins stated that the law firm “improperly initiated
and used arbitration against [Aitkins] as a tool to accomplish objectives other than those described
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in their arbitration demand filing.” CP at 12. Accordingly, Aitkins brought an abuse of process
claim against the law firm.
Aitkins stated that as a result of the law firm’s filings, a judgment was entered against him
for more than $100,000, though that judgment is not on our record.
In October 2024, the law firm submitted a jury demand for this case. Also in October 2024,
the law firm and attorney McCosh moved for summary judgment to dismiss Aitkins’ claims,
arguing that statements made in the course of a judicial proceeding that were pertinent to the
litigation were not actionable under the litigation privilege. Additionally, even if the statements
were not privileged, Aitkins could not demonstrate that they were false and negligently published.
Finally, the law firm and McCosh argued that Aitkins lacked evidence to support his abuse of
process claim.
Aitkins responded to these motions, arguing that litigation privilege does not extend to
reckless or unsubstantiated false statements and is not available if there was an abuse of process.
Regarding his abuse of process claim, Aitkins said,
[T]he evidence shows that the [law firm] had no clear, cogent, good faith, or proper purpose – not under the facts nor the law – for initiating their arbitration claim against [Aitkins]. Yet, for three months, they pursued an ill-fated arbitration case and an equally ill-fated counterclaim in civil proceedings to make false and outlandish statements about [Aitkins] before abruptly announcing their withdrawal.
CP at 556. Aitkins contended that the arbitration demand was not submitted for a lawful purpose
because it misrepresented Aitkins’ actions, Aitkins was not a member of the LLC subject to
arbitration under the LLC agreement at the time, and the law firm had not demonstrated that the
demand was timely. Aitkins stated that the law firm’s actions “were designed to intimidate
[Aitkins] into forgoing his judgment against [the LLC].” CP at 566.
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Aitkins also stated that the law firm and McCosh had improperly moved for summary
judgment before discovery was complete and had not fully responded to his discovery requests.
Aitkins claimed that this discovery would reveal “the ownership status of [the LLC], as of the date
they filed their arbitration case, the untimeliness of their arbitration claim, and . . . prove there was
no factual basis for their defamatory statements.” CP at 547.
At the summary judgment hearing,1 the trial court asked Aitkins, “Do you concede that
every single statement that you’re relying on as part of your defamation/abuse of process lawsuit
appears in the prior cases in filings?” Verbatim Rep. of Proc. (VRP) at 4. Aitkins responded, “Yes.
There are some communications that perhaps were not included in those cases but may have been
in the exhibits in this case. I would have to do a review.” VRP at 5.
The law firm again argued litigation privilege regarding Aitkins’ defamation claims. The
law firm also stated, “As for the abuse of process claim, which does rely on the defamatory
statements, they also center on the initiation of arbitration, which was done for the intended
purpose of investigating how proper the judgment was in the underlying action.” Id.
In its oral ruling, the trial court stated,
In reviewing the statements in [Aitkins’] complaint, there was a demand for arbitration, a motion to stay enforcement, statements made in the motion to stay proceedings, statements made in the answer and cross-claim, and I couldn’t find a single statement that you were relying upon that was not part of a pleading or argument that was made relating substantively to that prior litigation.
While you are correct that the litigation privilege is not absolute in the context of the abuse of process, your reliance on Mason v. Mason2 is misplaced.
1 Aitkins brought a cross motion for summary judgment, which the trial court did not consider at this hearing because it was not timely. On appeal, Aitkins does not challenge the trial court’s decision not to hear his summary judgment motion. 2 19 Wn. App. 2d 803, 497 P.3d 431 (2021).
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For abuse of process, the statements cannot be related to the legitimate purpose of a judicial proceeding.
VRP at 12-13. The trial court went on to explain that the attorneys in this case did not intentionally
employ the legal process “for an inappropriate and extrinsic end.” VRP at 13. Instead, it appeared
Aitkins was “trying to relitigate the merits” of the prior lawsuits. Id.
Accordingly, the trial court granted the law firm’s and McCosh’s summary judgment
motions and dismissed Aitkins’ case against them. Aitkins then brought a motion to reconsider,
which the trial court denied.
ANALYSIS
I. STANDARD OF REVIEW
We review summary judgment motions de novo. M.E. v. City of Tacoma, 15 Wn. App. 2d
21, 31, 471 P.3d 950 (2020). “Summary judgment is appropriate if the pleadings, affidavits,
depositions, and admissions demonstrate the absence of any genuine issue of material fact and the
moving party is entitled to judgment as a matter of law” Id. (citing CR 56(c)). A material fact is a
fact that affects the outcome of the litigation. Id.
When a defendant moves for summary judgment showing the absence of evidence
supporting the plaintiff’s case, “the burden shifts to the plaintiff to set forth specific facts showing
a genuine issue of material fact exists for trial.” Id. “The nonmoving party cannot rely on
‘speculation, argumentative assertions that unresolved factual issues remain, or in having its
affidavits considered at face value.’” Id. at 31-32 (quoting Seven Gables Corp. v. MGM/UA Entm’t
Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). If the plaintiff fails to show sufficient evidence creating
a question of fact about an essential element on which they will have the burden of proof at trial,
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summary judgment is appropriate. Sartin v. Est. of McPike, 15 Wn. App. 2d 163, 172, 475 P.3d
522 (2020).
II. LITIGATION PRIVILEGE
A. Defamation
Aitkins argues that the law firm’s statements he challenges as defamation are not subject
to litigation privilege because they were not pertinent to the relevant litigation.
Statements made by attorneys in a lawsuit are immune from civil liability if the statements
bear some relation to a judicial proceeding. Mason, 19 Wn. App. 2d at 830. For defamation claims,
contested statements, “‘spoken or written by a party or counsel in the course of a judicial
proceeding, are absolutely privileged if they are pertinent or material to the redress or relief
sought.’” Id. at 831 (emphasis omitted) (quoting McNeal v. Allen, 95 Wn.2d 265, 267, 621 P.2d
1285 (1980)). As it relates to attorneys, litigation privilege is based on the public policy of ensuring
that attorneys have “‘the utmost freedom in their efforts to secure justice for their clients.’” Id.
(quoting McNeal, 95 Wn.2d at 267). Litigation privilege applies to arbitration proceedings. See
Valve Corp. v. Butcher L. PLLC, 34 Wn. App. 2d 727, 742-43, 571 P.3d 312, review denied, 5
Wn.3d 1022 (2025).
Washington courts have noted that litigation privilege applies only in situations where
authorities have the power to sanction or discipline attorneys for improper conduct and strike
impermissible statements from the record. Mason, 19 Wn. App. 2d at 832. This is because these
are other safeguards inherent in the judicial process that provide checks on attorneys’ conduct and
statements. Young v. Rayan, 27 Wn. App. 2d 500, 510, 533 P.3d 123 (2023). These safeguards
include CR 11 sanctions, contempt proceedings, witness oaths, cross-examination, and the threat
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of prosecution for perjury. Id. “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.” Id.3
Here, Aitkins does not contest that the law firm’s challenged statements were all made in
pleadings, filings, or documents related to a judicial proceeding. Aitkins argues that the law firm’s
statements regarding his actions related to the LLC—including, for example, that Aitkins took
money from the LLC and that he owed a duty of care and loyalty to the LLC as a member after
March 2021—“served no legitimate litigation function.” Opening Br. of Appellant at 33.
As the trial court emphasized, the challenged statements here were made in the LLC’s
arbitration demand, motion to stay enforcement of Aitkins’ default judgment, motion to stay
proceedings, and answer and cross claims related to the landlord’s suit. In these documents, the
attorneys for the LLC were attempting to establish Aitkins’ responsibility to the LLC and recover
damages that the LLC believed Aitkins owed the business. Accordingly, the attorneys’ statements
on behalf of the LLC were pertinent to the claims that the LLC was attempting to arbitrate and
litigate against Aitkins. As a result, these statements were protected by litigation privilege, and the
trial court did not err by dismissing Aitkins’ defamation claim on summary judgment.
B. Abuse of Process
Aitkins argues that the trial court erred by applying the litigation privilege to conduct by
the law firm that constituted an abuse of process. Aitkins contends that the law firm “initiated a
knowingly baseless arbitration proceeding not to resolve a legitimate dispute, but to obtain a stay
3 While Young and Mason may contain conflicting analysis about litigation privilege and abuse of process claims, we need not address that conflict here where we conclude that litigation privilege does apply to the law firm’s statements.
11 No. 60541-4-II
of enforcement of a lawful civil judgment and to malign [Aitkins] with knowingly false allegations
of larceny and misconduct.” Opening Br. of Appellant at 16.
“Abuse of process” is a tort that “involves the misuse of a judicial proceeding to accomplish
an end for which the process was not designed.” Mason, 19 Wn. App. 2d at 834. To succeed on an
abuse of process claim, a party must show both “‘(1) the existence of an ulterior purpose to
accomplish an object not within the proper scope of the process, and (2) an act in the use of legal
process not proper in the regular prosecution of the proceedings.’” Saldivar v. Momah, 145 Wn.
App. 365, 388, 186 P.3d 1117 (2008) (quoting Mark v. Williams, 45 Wn. App. 182, 191, 724 P.2d
428 (1986)).
The “‘mere institution of a legal proceeding even with a malicious motive does not
constitute an abuse of process.’” Id. (quoting Fite v. Lee, 11 Wn. App. 21, 27-28, 521 P.2d 964
(1974)). “There must be an act after filing suit using legal process empowered by that suit to
accomplish an end not within the purview of the suit.” Id. at 389. In Saldivar, the Saldivars, a
married couple, sued two doctors and the medical group they operated under, in part stating that
one of the doctors had sexually abused the wife. Id. at 374-76. At a deposition before trial, the
husband stated that the lawsuit was intended to make sure “‘these people don’t practice medicine
again.’” Id. at 377 (quoting the record). One of the doctors brought a counterclaim for abuse of
process against the Saldivars, which the trial court granted. Id. at 375, 384. This court reversed,
stating that making sure a doctor is not permitted to practice in the future is not an improper
purpose for instituting a lawsuit alleging sexual abuse by a medical professional. Id. at 388-89,
407. Additionally, because the doctor failed to demonstrate that the Saldivars took action after
filing the lawsuit to accomplish an unrelated and improper end, even if the Saldivars had fabricated
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their claims of sexual abuse by the doctor, this would not have constituted an abuse of process. Id.
at 389.
“Integral to an abuse of process claim, 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 835.
Accordingly, in Mason, this court held that “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.” Id.
In Mason, the appellant contended that her ex-husband and his attorney had intentionally
used family law proceedings to “further control and abuse her” and to threaten her immigration
status, purposes that were not related to the legitimate purpose of the family law proceedings. Id.
at 840. As a result, this court determined that the trial court erred by concluding that litigation
privilege barred consideration of this alleged abuse of process. Id.
Then, in Scott v. Am. Express Nat’l Bank, this court reiterated Mason’s holding that
“litigation privilege does not apply when the facts are such that application of the privilege would
defeat the public policy considerations justifying the privilege.” 22 Wn. App. 2d 258, 267-68, 514
P.3d 695 (2022). Scott further clarified that litigation privilege does not apply to the narrow set of
circumstances where an attorney “‘misappropriates a judicial proceeding to achieve an improper
and extrinsic end,’” such that immunity would not preserve the integrity of the judicial process nor
further the administration of justice. Id. at 268 (quoting Mason, 19 Wn. App. 2d at 837).
Here, in his response to the law firm’s summary judgment motion, Aitkins alleged that the
law firm abused the litigation process by using the arbitration demand to intimidate Aitkins into
not collecting the remainder of his default judgment against the LLC. He stated that the arbitration
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demand misrepresented Aitkins’ actions, incorrectly stated that Aitkins was a member of the LLC
subject to the arbitration clause in the LLC agreement, and was untimely.
However, Aitkins presented no evidence supporting his contention that the arbitration was
an intimidation tactic. The law firm did move to stay enforcement of the default judgment against
the LLC until after arbitration and conclusion of the landlord’s lawsuit. However, the law firm
explained, “To the extent that Mr. Aitkins has liability to the business and his fellow members for
breaches of a fiduciary duty, it would be fair and equitable to offset those claims against the
judgment.” CP at 235. And permitting Aitkins to continue collecting on his default judgment
would potentially prevent the Dances from recovering on their claims regarding Aitkins’
responsibilities to the LLC. Aitkins offered nothing to establish that these were not legitimate
considerations and within the legitimate purpose of the LLC’s litigation strategy, when considered
in its entire context.
Aitkins asserts that the fact the law firm abandoned the arbitration proceeding after not
producing evidence or prosecuting their claims supports this conclusion. However, only a couple
of months passed between when the law firm brough the arbitration demand on behalf of the LLC
and when it withdrew as counsel for the LLC. Given that we have nothing in the record indicating
the reason for the law firm’s withdrawal, this relatively short period of time does not sufficiently
indicate that the law firm was not intending to actually pursue arbitration on behalf of its client.
Additionally, the facts surrounding Aitkins’ actions regarding the LLC and Aitkins’
membership and responsibility to the LLC were exactly the issues that the arbitration sought to
resolve. The arbitration demand’s inclusion of assertions regarding these issues was not an abuse
of process. Aitkins failed to overcome this legitimate purpose for the arbitration. While the law
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firm submitted the arbitration demand almost two years after Aitkins’ departure, this timing is not
sufficient on its own to meet the standard for abuse of process.
Accordingly, as a matter of law, Aitkins failed to raise any nonspeculative evidence to
show that the law firm had abused the litigation or arbitration process by using it for an ulterior or
improper end. As a result, the law firm’s statements and actions he challenges are protected by
litigation privilege.
Aitkins further argues that “[a]sserting claims that are wholly unsupported by any evidence
demonstrating a legitimate basis for using law and legal or quasi-legal proceedings to compel
another party to defend themselves against fictitious claims is the very definition of a sham
proceeding.” Appellant’s Reply Br. at 25-26. However, the “‘mere institution of a legal proceeding
even with a malicious motive does not constitute an abuse of process.’” Saldivar, 145 Wn. App.
at 388 (quoting Fite, 11 Wn. App. at 27-28). More importantly, the law firm articulated legitimate
purposes behind its litigation strategy on behalf of the LLC. Thus, even if the claims against
Aitkins were incorrect or turned out not to have a sufficient factual basis, the law firm would not
be liable for abuse of process.4
4 Aitkins cites Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056 (9th Cir. 1998), and Kearney v. Foley & Lardner, LLP, 582 F.3d 896 (9th Cir. 2009), as support for his argument that the litigation privilege should not apply to the law firm’s statements. However, these Ninth Circuit cases analyze immunity from civil liability for parties petitioning the government. Kearney, 582 F.3d at 903; Kottle, 146 F.3d at 1059. Because this is not the theory of immunity that the law firm or trial court relied on here, any exceptions to this immunity are not applicable in this case.
15 No. 60541-4-II
III. SUMMARY JUDGMENT PROCEDURE
A. Burden of Proof
Aitkins argues that the trial court erred by granting the law firm’s summary judgment
motion when the law firm had not submitted evidence demonstrating that Aitkins was still a
member of the LLC and, therefore, the demand for arbitration was valid and not an abuse of
process. Aitkins argues that the law firm failed to meet its burden to demonstrate that there was no
genuine issue of material fact regarding this issue.
As described above, part of the purpose of the arbitration was to determine Aitkins’
relationship and responsibilities to the LLC. Accordingly, the law firm did not have to submit
evidence demonstrating that Aitkins was a member of the LLC to show that its arbitration demand
was not an abuse of process.
Additionally, in its challenged filings, the law firm cited former RCW 25.15.131(2), which
stated that a member of an LLC “‘may not withdraw from the [LLC] without the written consent
of all other members.’” CP at 203 (emphasis omitted) (quoting former RCW 25.15.131(2)). Aitkins
does not challenge the application of this statute, nor did he produce a document demonstrating
the written consent of all members regarding his removal. While he cites the document the Dances
submitted to the Washington State Liquor and Cannabis Board as evidence that he was not a
member of the LLC, this document only confirms that the issue of ownership could have benefited
from arbitration. Accordingly, Aitkins does not demonstrate that the law firm knew Aitkins was
not a member of the LLC such that arbitration was an abusive measure.
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B. Discovery
Aitkins argues that the trial court erred by granting the law firm’s summary judgment
motion before discovery was concluded. Aitkins contends that the law firm obstructed discovery
by delaying and providing incomplete responses.
A party may move for summary judgment before discovery is complete. Perez-Crisantos
v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 685, 389 P.3d 476 (2017). Under CR 56(f), a trial
court may continue a summary judgment hearing for parties to obtain additional affidavits, take
depositions, or conduct further discovery if it appears “from the affidavits of a party opposing the
motion that for reasons stated, the party cannot present by affidavit facts essential to justify the
party’s opposition.” “‘The trial court may deny a motion for a continuance when (1) the requesting
party does not have a good reason for the delay in obtaining the evidence, (2) the requesting party
does not indicate what evidence would be established by further discovery, or (3) the new evidence
would not raise a genuine issue of fact.’” Perez-Crisantos, 187 Wn.2d at 686 (quoting Butler v.
Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003)).
We review a trial court’s decision on a request to continue summary judgment under 56(f)
for an abuse of discretion. Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 743, 218
P.3d 196 (2009).
In his opposition to the law firm’s summary judgment motion, Aitkins stated that the law
firm was “withholding discovery materials” showing that the law firm knew Aitkins had repeatedly
told the law firm that the challenged statements were false. CP at 562. Aitkins also claimed that
discovery would have revealed “the ownership status of [the LLC], as of the date they filed their
17 No. 60541-4-II
arbitration case, the untimeliness of their arbitration claim, and . . . prove[d] there was no factual
basis for their defamatory statements.” CP at 547.
Otherwise, in this opposition to the law firm’s summary judgment motion, Aitkins did not
identify any discovery that the law firm had not provided that would create a genuine dispute of
material fact. Evidence demonstrating whether the law firm knew Aitkins had said the challenged
statements were false and whether the statements were supported by facts would not have impacted
the trial court’s summary judgment decision, which was based on litigation privilege. Additionally,
Aitkins did not meet his burden under CR 56(f) to identify what kinds of evidence revealing the
ownership status of the LLC would have been established by further discovery—which we note
was actually one of the issues that the arbitration was meant to resolve.
As a result, Aitkins did not meet the CR 56(f) standard for a continuance, so the trial court
did not abuse its discretion by hearing the law firm’s and McCosh’s summary judgment motions
at this stage in the proceedings.
C. Jury Demand
Aitkins contends that the fact that the law firm submitted a jury demand contradicted its
summary judgment motion by indicating that the law firm knew there were disputed material facts
requiring a fact finder. Aitkins argues that filing both a summary judgment motion and a jury
demand was “strategically abusive,” and unfairly forced Aitkins to “simultaneously prepare for
trial and respond to a dispositive motion.” Opening Br. of Appellant at 21, 22.
When there is not a genuine issue of material fact, summary judgment proceedings do not
violate a litigant’s constitutional right to a jury trial. LaMon v. Butler, 112 Wn.2d 193, 199 n.5,
770 P.2d 1027 (1989). Though the law firm demanded a jury should the case have proceeded to
18 No. 60541-4-II
trial for fact finding, this did not prevent it from engaging in the separate procedure of bringing a
summary judgment motion.
CONCLUSION
Because the trial court was correct to conclude that the litigation privilege barred Aitkins’
suit against the law firm as a matter of law, and the trial court did not err when it did not allow
Aitkins more time for discovery, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
GLASGOW, J. We concur:
MAXA, P.J.
CRUSER, J.