Kenneth Henrikson v. King County
Opinion
Filed Washington State Court of Appeals Division Two
July 21, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II KENNETH HENRIKSON, No. 60334-9-II
Respondent,
v. UNPUBLISHED OPINION
KING COUNTY, WASHINGTON; KING COUNTY DEPARTMENT OF PUBLIC DEFENSE, TDA DIVISION; BEN GOLDSMITH, MANAGING DIRECTOR; JACKLYN ZORICH, MANAGING DIRECTOR OF TDA; ANITA KHANDELWAL, DIRECTOR OF DPD,
Appellant.
CHE, J. — Kenneth Henrikson appeals following summary judgment dismissal of his
claims for wrongful termination in violation of public policy, invasion of privacy pursuant to
chapter 9.73 RCW, and negligence claims, denial of CR 60 motions, and an award to one
defendant for damages under the anti-SLAPP statute.1
Henrikson sued his former employer, King County (County), and three county employees
(collectively, defendants) with managerial responsibilities related to Henrikson’s former
employment. Henrikson’s former employment as a public defender was terminated after he
1 Washington Act Limiting Strategic Lawsuits Against Public Participation, RCW 4.24.510. No. 60334-9-II
refused management’s orders to stop working on a civil case Henrikson was not assigned to by the
County but believed would have an impact on a case he was assigned. Henrikson continued to
work on the civil case despite leadership’s directives because Henrikson believed he had an ethical
and legal duty to assist his client. When Henrikson was placed on paid administrative leave, one
of the individual defendants with managerial responsibilities over Henrikson monitored
Henrikson’s work e-mail, including e-mails allegedly containing private communications through
voicemails from the client to Henrikson.
The defendants successfully sought dismissal of all Henrikson’s claims, including a
defamation claim, a wrongful termination in violation of public policy claim, an invasion of
privacy claim, and a negligence claim. The defamation claim against one of the county employees
was dismissed following a motion to dismiss. All other claims were dismissed through summary
judgment proceedings. Henrikson moved for reconsideration or vacation of the summary
judgment orders under CR 60, but the trial court denied his motions. The trial court awarded the
employee defendant named in Henrikson’s defamation claim $10,000 in anti-SLAPP damages.
Henrikson argues that summary judgment was inappropriate for his wrongful termination
claim, his invasion of privacy claim, and his negligence claim. He also claims that the trial court
erred in denying his CR 60 motions and awarding the one defendant anti-SLAPP damages.
We hold that (1) Henrikson fails to establish a genuine issue of material fact necessary to
his wrongful termination claim and invasion of privacy claim, (2) Henrikson’s challenge to the
dismissal of his negligence claim fails because he raises a different negligence claim for the first
time on appeal, and (3) Henrikson fails to show that the trial court abused its discretion in denying
2 No. 60334-9-II
his CR 60 motions. We decline to consider Henrikson’s anti-SLAPP damages award arguments
raised for the first time on appeal.
Accordingly, we affirm.
FACTS
I. SUBSTANTIVE FACTS
Henrikson was a staff attorney in The Defender Association Division (TDAD), a division
of the County’s Department of Public Defense (DPD). DPD was comprised of four divisions of
public defenders, one being TDAD, and a central administrative entity, the Director’s Office (DO).
The four divisions operated as separate and independent law firms so that representation of clients
by one division would not cause conflicts in another.
An “Ethical Walls Policy” for DPD provided that the DO’s responsibilities included
advocating for funding and assigning caseloads to the divisions, but the DO could not have access
to confidential client information gained through representation nor interfere with ongoing
representation of any division’s client. Clerk’s Papers (CP) at 353. To ensure separation of the
divisions and separation of the DO from any division, the Ethical Walls Policy separated each
group’s resources, access and storage of databases and files, and supervision of personnel
procedures. The Ethical Walls Policy provided that each division was responsible for
“[p]rotect[ing] the confidentiality of all information gained in the course of client representation
consistent with [Rules of Professional Conduct (RPC)] 1.6 (Comment 2).”2 CP at 566. It also
stated that: “As concerns client representation assigned to that division, the managing attorney is
2 This comment sets out the “fundamental principle in the client-lawyer relationship . . . that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” RPC 1.6, cmt. 2.
3 No. 60334-9-II
solely responsible for providing guidance to staff and for determining litigation strategy.” CP at
566.
In 2017, Henrikson was assigned to TDAD’s Sexual Offender Commitment (SOC) unit.
Through a contract, Washington’s Office of Public Defense (OPD) assigned the unit to represent a
client (Client) in a civil commitment proceeding (sexually violent predator (SVP) proceeding).
Henrikson and his immediate supervisor were assigned to the Client’s SVP proceeding.
According to Henkrison, at issue in the SVP proceeding was whether there was dispositive
proof of a predicate offense3 because Client had made an Alford 4 plea to the prior offense as
opposed to a traditional plea. At some point, Jackie Zorich (then supervisor of the SOC unit)
became aware that, in addition to facing the SVP proceeding, the Client was being sued for a civil
battery claim by the victim of the potential predicate offense for the SVP proceeding (Civil Case)
and notified Henrikson about the Civil Case.
Henrikson believed that, depending on the outcome of the Civil Case, the Civil Case could
provide proof for or against there being a predicate offense in the SVP proceeding or assist in
arguing against other issues in the SVP proceeding. Henrikson also believed that discovery
available in the Civil Case but not available through the SVP proceeding could help obtain a
dismissal of both proceedings for the Client.
3 The central issue of the Client’s SVP proceeding was whether the State could prove beyond a reasonable doubt that the Client was a “sexually violent predator.” See RCW 71.09.060. To prove such, the State had to show that the Client was a “person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” RCW 71.09.020(19). 4 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
4 No. 60334-9-II
Henrikson began to assist the Client in the Civil Case, including advising the Client and
helping the Client, who was proceeding pro se, draft an answer to the complaint. According to
Free access — add to your briefcase to read the full text and ask questions with AI
Filed Washington State Court of Appeals Division Two
July 21, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II KENNETH HENRIKSON, No. 60334-9-II
Respondent,
v. UNPUBLISHED OPINION
KING COUNTY, WASHINGTON; KING COUNTY DEPARTMENT OF PUBLIC DEFENSE, TDA DIVISION; BEN GOLDSMITH, MANAGING DIRECTOR; JACKLYN ZORICH, MANAGING DIRECTOR OF TDA; ANITA KHANDELWAL, DIRECTOR OF DPD,
Appellant.
CHE, J. — Kenneth Henrikson appeals following summary judgment dismissal of his
claims for wrongful termination in violation of public policy, invasion of privacy pursuant to
chapter 9.73 RCW, and negligence claims, denial of CR 60 motions, and an award to one
defendant for damages under the anti-SLAPP statute.1
Henrikson sued his former employer, King County (County), and three county employees
(collectively, defendants) with managerial responsibilities related to Henrikson’s former
employment. Henrikson’s former employment as a public defender was terminated after he
1 Washington Act Limiting Strategic Lawsuits Against Public Participation, RCW 4.24.510. No. 60334-9-II
refused management’s orders to stop working on a civil case Henrikson was not assigned to by the
County but believed would have an impact on a case he was assigned. Henrikson continued to
work on the civil case despite leadership’s directives because Henrikson believed he had an ethical
and legal duty to assist his client. When Henrikson was placed on paid administrative leave, one
of the individual defendants with managerial responsibilities over Henrikson monitored
Henrikson’s work e-mail, including e-mails allegedly containing private communications through
voicemails from the client to Henrikson.
The defendants successfully sought dismissal of all Henrikson’s claims, including a
defamation claim, a wrongful termination in violation of public policy claim, an invasion of
privacy claim, and a negligence claim. The defamation claim against one of the county employees
was dismissed following a motion to dismiss. All other claims were dismissed through summary
judgment proceedings. Henrikson moved for reconsideration or vacation of the summary
judgment orders under CR 60, but the trial court denied his motions. The trial court awarded the
employee defendant named in Henrikson’s defamation claim $10,000 in anti-SLAPP damages.
Henrikson argues that summary judgment was inappropriate for his wrongful termination
claim, his invasion of privacy claim, and his negligence claim. He also claims that the trial court
erred in denying his CR 60 motions and awarding the one defendant anti-SLAPP damages.
We hold that (1) Henrikson fails to establish a genuine issue of material fact necessary to
his wrongful termination claim and invasion of privacy claim, (2) Henrikson’s challenge to the
dismissal of his negligence claim fails because he raises a different negligence claim for the first
time on appeal, and (3) Henrikson fails to show that the trial court abused its discretion in denying
2 No. 60334-9-II
his CR 60 motions. We decline to consider Henrikson’s anti-SLAPP damages award arguments
raised for the first time on appeal.
Accordingly, we affirm.
FACTS
I. SUBSTANTIVE FACTS
Henrikson was a staff attorney in The Defender Association Division (TDAD), a division
of the County’s Department of Public Defense (DPD). DPD was comprised of four divisions of
public defenders, one being TDAD, and a central administrative entity, the Director’s Office (DO).
The four divisions operated as separate and independent law firms so that representation of clients
by one division would not cause conflicts in another.
An “Ethical Walls Policy” for DPD provided that the DO’s responsibilities included
advocating for funding and assigning caseloads to the divisions, but the DO could not have access
to confidential client information gained through representation nor interfere with ongoing
representation of any division’s client. Clerk’s Papers (CP) at 353. To ensure separation of the
divisions and separation of the DO from any division, the Ethical Walls Policy separated each
group’s resources, access and storage of databases and files, and supervision of personnel
procedures. The Ethical Walls Policy provided that each division was responsible for
“[p]rotect[ing] the confidentiality of all information gained in the course of client representation
consistent with [Rules of Professional Conduct (RPC)] 1.6 (Comment 2).”2 CP at 566. It also
stated that: “As concerns client representation assigned to that division, the managing attorney is
2 This comment sets out the “fundamental principle in the client-lawyer relationship . . . that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” RPC 1.6, cmt. 2.
3 No. 60334-9-II
solely responsible for providing guidance to staff and for determining litigation strategy.” CP at
566.
In 2017, Henrikson was assigned to TDAD’s Sexual Offender Commitment (SOC) unit.
Through a contract, Washington’s Office of Public Defense (OPD) assigned the unit to represent a
client (Client) in a civil commitment proceeding (sexually violent predator (SVP) proceeding).
Henrikson and his immediate supervisor were assigned to the Client’s SVP proceeding.
According to Henkrison, at issue in the SVP proceeding was whether there was dispositive
proof of a predicate offense3 because Client had made an Alford 4 plea to the prior offense as
opposed to a traditional plea. At some point, Jackie Zorich (then supervisor of the SOC unit)
became aware that, in addition to facing the SVP proceeding, the Client was being sued for a civil
battery claim by the victim of the potential predicate offense for the SVP proceeding (Civil Case)
and notified Henrikson about the Civil Case.
Henrikson believed that, depending on the outcome of the Civil Case, the Civil Case could
provide proof for or against there being a predicate offense in the SVP proceeding or assist in
arguing against other issues in the SVP proceeding. Henrikson also believed that discovery
available in the Civil Case but not available through the SVP proceeding could help obtain a
dismissal of both proceedings for the Client.
3 The central issue of the Client’s SVP proceeding was whether the State could prove beyond a reasonable doubt that the Client was a “sexually violent predator.” See RCW 71.09.060. To prove such, the State had to show that the Client was a “person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” RCW 71.09.020(19). 4 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
4 No. 60334-9-II
Henrikson began to assist the Client in the Civil Case, including advising the Client and
helping the Client, who was proceeding pro se, draft an answer to the complaint. According to
Henrikson, he discussed the Civil Case with Zorich, Henrikson’s immediate supervisor, and Ben
Goldsmith—the then acting Managing Director of TDAD. Eventually, Goldsmith suggested that
Henrikson approach a “Collateral Consequences” attorney with TDAD5 to assist the Client with
the Civil Case.
The Collateral Consequences attorney entered a limited appearance on behalf of TDAD in
the Civil Case. The notice of limited appearance specifically stated that the attorney’s appearance
was limited to receiving discovery in the Civil Case. The Client remained pro se for all other
matters in the Civil Case.
In June 2018, the plaintiff in the Civil Case moved to dismiss the Client from the case.
According to Henrikson, he consulted with Zorich, the Collateral Consequences attorney, and
Henrikson’s immediate supervisor to decide how to proceed. Henrikson drafted an answer and a
counterclaim for defamation for the Client in the Civil Case, which were filed and sent to the Civil
Case plaintiff by TDAD paralegals.
The next day, the plaintiff’s attorney in the Civil Case reached out to Anita Khandelwal—
then Deputy Director of DPD—seeking clarification on TDAD’s scope of representation in the
Civil Case. Khandelwal reached out to Rick Lichtenstadter—then Managing Director of TDAD—
and the Collateral Consequences attorney asking to understand what was happening with the Civil
Case. Khandelwal responded to the plaintiff’s attorney and told them that DPD did not represent
5 Both parties dispute the scope of Collateral Consequences attorney’s work but agree that they are attorneys funded by the City of Seattle to assist TDAD clients with at least some civil cases.
5 No. 60334-9-II
the Client in the counterclaim, the Collateral Consequences attorney’s appearance in the case was
limited to receiving documents for service on the Client, and the Collateral Consequences attorney
had withdrawn from the case.
A day after Khandelwal’s response to the plaintiff’s attorney, TDAD filed an objection to
the Civil Case plaintiff’s motion to dismiss. The plaintiff’s attorney again reached out to
Khandelwal, Henrikson, and the Collateral Consequences attorney requesting clarification of
TDAD’s involvement in the Civil Case considering the recent filing. Henrikson admitted to ghost
writing some of the Client’s filings in the Civil Case and told the plaintiff’s attorney that he was
“the drafter for the client” but was working to find the Client “a more permanent attorney” and was
not formally representing the Client in the Civil Case. CP at 780.
Lichtenstadter e-mailed Henrikson stating: “Please do not do any more work on this case
except for finding an attorney to take it on or to at least accept production.” CP at 1479. When
Henrikson responded asking whether this applied to his work on the Client’s SVP proceeding,
Lichtenstadter clarified that the direction was limited only to the Civil Case.
Henrikson reached out to an attorney outside of TDAD and asked the attorney whether they
could take the Client’s Civil Case. In pitching the Client’s Civil Case to the attorney, Henrikson
told the attorney “I will keep his SVP case, b[u]t I need you to take a caretaker role on his civil
case. You would only need to maybe do a very limited notice of appearance to get civil
[discovery], and that can be temporary. I can do the work behind the scene, as I have been doing,
but TDA[D] management told me to stop helping him.” CP at 2028. The attorney filed a notice of
appearance in the Civil Case. For the next couple months, Henrikson worked with the attorney in
drafting filings for the Civil Case.
6 No. 60334-9-II
In spring 2019, it appears that Client’s attorney in the Civil Case was contemplating
withdrawing. Henrikson offered to “ghost write and assist [the attorney] as an unlimited
resource.” CP at 2041. Henrikson continued to draft materials for the Civil Case.
When the plaintiff’s attorney told the Client’s attorney in the Civil Case that they intended
to raise an anti-SLAPP defense to the Client’s defamation counterclaim and would seek attorney
fees and damages under the anti-SLAPP statute if the defense was successful, the Client’s attorney
notified Henrikson. Although the Client’s attorney told Henrikson they had advised the Client
about the potential defense, Henrikson consulted with the Client, at the Client’s request, and
advised the Client, among other things, that Henrikson was “not sure enough [the Client’s attorney
was] right to make an irrevocable decision.” CP at 2055. Henrikson told the Client he would “pay
all attorney fees of [the Client] and [their] opponents” and advised the Client that, if the attorney
withdrew, the attorney should seek a continuance or delay to find the Client another attorney. CP
at 2055.
Henrikson reached out to his immediate supervisor and other TDAD attorneys to research
the anti-SLAPP statute. CP at 981-82. Henrikson told them that the Client’s attorney in the Civil
Case was planning on withdrawing and that he was “scrambling to get a substitute attorney.” CP
at 981. Henrikson’s immediate supervisor told Henrikson and the other attorneys:
I thought it would be helpful to clarify our role re the civil case: - we don’t represent [the Client] in the civil case - we don’t file anything - we don’t sign anything - we don’t advise the client about the civil case, except to explain what may happen to [the SVP proceeding] as a result of certain decisions - we CAN consult with his civil attorney, just as we would with any other attorney who also represents our clients on collateral matters. This can include some research and giving our opinion to the civil attorney in areas where the interests overlap if not overly time consuming or outside our role.
7 No. 60334-9-II
[Client] has different interests and goals related to his civil case which may or may not conflict with his goals and interests in the SVP case, so we can work with his civil attorney and consult with his civil attorney, but cannot represent or advise him on his civil case.
CP at 978. Henrikson responded:
Unfortunately, there is more to this case than what citing management edicts which are great in a vacuum in defining role parameters. People need to think for themselves. There was additional thinking to do. I cannot express these things in the time allotted me, so I have to comply with the RPC’s. I can’t agree that life is that simple. Thought is required. There are nuances. Life is not one big checklist. Sorry. All I can do is what the RPC’s compel me to do not mindless boundary recitations with no thought having been put into them. The stage of this case and the needs are too complex for management to understand unless it’s explained to them. They won’t listen to me so I just do what I must, since they can’t take any kind of reality into account.
CP at 978.
Henrikson continued to assist the Client with the Civil Case. Henrikson attended a
deposition preparation session for the Client, met with other attorneys to find additional or
substitute counsel for the Client, personally retained attorneys to perform legal research and work
for the Client, and provided the Client’s Civil Case attorney with evidence to defend against a
motion for summary judgment on the Client’s defamation counterclaim. According to Henrikson,
his immediate supervisor attended at least the deposition preparation and a meeting to recruit
counsel.
According to Henrikson, he attempted to get the Client’s Civil Case attorney to disclose a
conflict of interest because Henrikson believed that the attorney had committed malpractice by
neglecting to conduct discovery or pursue the defamation counterclaim. The Civil Case attorney
moved to continue trial and moved to withdraw. Around the same time, the Civil Case plaintiff
moved for summary judgment on the Client’s defamation counterclaim.
8 No. 60334-9-II
In support of the Client’s motion to continue and the Client’s counsel’s motion to
withdraw, Henrikson drafted a declaration, which was subsequently filed in the Civil Case, to
bring to the court’s attention allegations that the Client’s attorney had violated the RPCs and
omitted facts relevant to the motion to continue. After the trial court in the Civil Case denied a
motion to continue from the Client, Henrikson worked on a response for the Client to the motion
for summary judgment. Henrikson told the Client’s Civil Case attorney that because of the
attorney’s “malpractice,” “it is my job to mitigate the damages to this client.” CP at 2067.
Henrikson said, “Because I am committing insubordination by helping out, I could be fired or
resign at any time, but hopefully I can get as much as I can done by [the motion’s hearing date].”
CP at 2067.
On June 7, the supervisor for the County’s unit prosecuting the Client’s SVP proceeding
e-mailed Zorich and Henrikson’s immediate supervisor and informed them that the unit planned to
file a motion to disqualify TDAD from representing the Client in the SVP proceeding due to
Henrikson’s involvement in the Civil Case, including his recent declaration. The trial court in the
Civil Case granted the plaintiff’s motion for summary judgment and dismissed the Client’s
defamation counterclaim pursuant to the anti-SLAPP statute.
On June 25, an attorney for the plaintiff in the Civil Case reached out to Khandelwal
expressing concerns about Henrikson’s continued involvement in the Civil Case and stated that his
next steps had “the potential of creating repercussions for TDA[D] and possibly DPD in both the
civil matter and the civil commitment proceeding.” CP at 2122. Zorich notified Henrikson that,
effective immediately, he was not to contact the Client. She told Henrikson that he was being
investigated for suspected insubordination “related to your failure to comply with DPD’s directive
9 No. 60334-9-II
to cease any involvement with the [Client’s Civil Case].” CP at 1569. Zorich directed Henrikson
to stop all work on any Client matter and stated that failing to comply with the directive would
result in further discipline, up to and including termination. According to Zorich, Henrikson
refused to comply and told her he intended to speak to the Client the next day.
Over the next few days, Henrikson continued to assist with the Civil Case, including
drafting motions for reconsideration.
On July 1, Zorich placed Henrikson on paid administrative leave. Zorich directed
Henrikson to comply with the following while on administrative leave:
2. You will not engage in any work related to [the Client]. This includes, but is not limited to, offering him legal advice or otherwise discussing any legal matters with him, whether by his initiation or otherwise. You will not have contact with any counsel representing him or consult any counsel regarding any pending or potential issues arising from [the Client’s] matters. 3. You will not have contact with any person regarding [the Client] without prior authorization. If [the Client] or any other individuals contact[s] you or attempt[s] to contact you regarding [the Client’s] matters, you will notify your supervisor within one business hour of becoming aware of such contact.
CP at 1572. Despite these directives, Henrikson continued to work on the Civil Case, including
filing a notice of appeal on behalf of the Client and visiting the Client. The Client was still
represented by counsel in the Civil Case at this time.
Zorich directed Goldsmith to investigate whether Henrikson had been insubordinate in his
involvement with the Civil Case. Goldsmith submitted written findings after investigating
Henrikson’s actions. He found “overwhelming evidence that [] Henrikson committed
insubordination by continuing to work on the [Civil Case] after TDAD leadership told him not to
do so, in both June 2018 and July 2019.” CP at 1484-85.
10 No. 60334-9-II
In December 2019, after a Loudermill 6 hearing, Henrikson’s employment was terminated
“based on [Henrikson’s] repeated insubordination and failure to follow directives in regards to [the
Civil Case], and related matters.” CP at 1575.
II. PROCEDURAL FACTS
Henrikson sued the County, Goldsmith, Zorich, and Khandelwal. He asserted claims of
wrongful discharge in violation of public policy, defamation, fraudulent and negligent
misrepresentation, tortious interference with contract, invasion of privacy under chapter 9.73
RCW, breach of contract, and negligence.
A. CR 12(b)(6) Dismissal of Defamation Claim Against Goldsmith and Others
The defendants moved to dismiss some of Henrikson’s claims, including a defamation
claim against Goldsmith. Goldsmith initially raised two arguments for why Henrikson’s
defamation claim should be dismissed. Goldsmith argued that Henrikson failed to state a
defamation claim against him because Henrikson made no allegations specific to Goldsmith in his
complaint. Second, Goldsmith argued that Henrikson failed to comply with statutory requirements
that a person asserting a defamation action first “‘timely and adequate[ly] request for correction or
clarification from the defendant.’” CP at 391 (quoting RCW 7.96.040).
In response, Henrikson argued that he had complied with the statutory requirements in
pursuing the defamation action. When Henrikson also clarified that his allegations were tied to
certain statements Goldsmith made while investigating Henrikson, in a reply brief Goldsmith
raised an additional argument that he was immune for any such statements under the anti-SLAPP
statute, RCW 4.24.510.
6 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
11 No. 60334-9-II
At a hearing on the motion, Goldsmith maintained his argument that he was immune from
Henrikson’s defamation claim under the anti-SLAPP statute. Unrelated to the defamation claim or
Goldsmith, defendants had argued in this same motion that Khandelwal had statutory immunity
from Henrikson’s claims as “an ‘appointed or elected official or member of the governing body of
a public agency’” who made discretionary decisions in her official capacity. CP at 396 (quoting
RCW 4.24.470).
The only argument Henrikson made in the hearing related to his defamation claim appears
to have been in response to the defendants’ argument of Khandelwal’s immunity:
THE COURT: So the defense argues they have immunity. Can you address that. [HENRIKSON]: Let me just—I think—that’s what I was referring to when I—the—you’re talking about the defamation claims, that the defamation immunity ties in? THE COURT: Yes. [HENRIKSON]: That applies to public figures, Your Honor. Those cases are about public figures. They’re not about a—an employee, a low-level employee of the agency like Mr. Henrikson who is not a public figure.
Rep. of Proc. (RP) (May 26, 2023) at 24.
The trial court dismissed Henrikson’s defamation claim against Goldsmith.7 In its oral
ruling, the court stated:
The defense argues that there is a—the complaint sets forth a defamation claim against all defendants but is devoid of allegations against Mr. Goldsmith individually. That the plaintiff has only—has failed to state a claim under Civil Rule 12(b)(6), but also failed to comply with RCW 7.96.040, which provides that a person may not maintain an action for defamation without first making a timely and adequate request for correction or clarification from a defendant.
7 The court also dismissed a wrongful termination claim against Zorich, Goldsmith, and Khandelwal, a tortious interference claim against all defendants, and a breach of contract claim against Zorich, Goldsmith, and Khandelwal.
12 No. 60334-9-II
The—on this issue, the plaintiff argues that Mr. Goldsmith made a finding that Plaintiff was insubordinate and recommended that Zorich terminate Plaintiff’s employment; that Mr. Goldsmith based his conclusion, in fact, in part on his finding that Plaintiff’ s assertion that his supervisors approved of and assisted with Plaintiff’s action was not credible. The defense also argues that in such situations public officials—public figures have immunity. So the Court is going to grant the defense motion to dismiss the claim against Mr. Goldsmith.
RP (May 26, 2023) at 33.
B. Summary Judgment Dismissal of Wrongful Termination Claim
In March 2024, the County moved to dismiss Henrikson’s wrongful termination claim.
The County argued that Henrikson failed to establish any clear public policy served by his conduct
and that undisputed evidence showed the County had legitimate, non-pretextual reasons for
terminating Henrikson’s employment. Henrikson argued that his claim was supported by multiple
public policies: the Sixth Amendment right to counsel, multiple RPCs, and constitutional and
statutory rights providing access to the courts.8 Henrikson argued that his assistance with the
Client’s Civil Case served these public policies because the Civil Case created a direct risk to the
SVP proceeding and management’s orders to stop assisting the Client violated some of these
public policies.
On April 12, the trial court held a hearing on the County’s motion. The trial court found
that there was no clear mandate of public policy served by Henrikson’s actions. The court stated:
In element one, I was looking at, is there a clear mandate of public policy that is served by Mr. Henrikson’s actions here. Long story short, I could not find one. Even if you assume that things like the Sixth Amendment right to counsel or a First Amendment right to counsel or any of the other enumerated quote, unquote, public
8 Henrikson also raised a public policy for reporting improper misappropriation of funds; however, Henrikson does not argue or raise this basis for his claim on appeal. Accordingly, we do not address it.
13 No. 60334-9-II
policies that were identified are a clear mandate, I cannot make a connection between what Mr. Henrikson did and those policies. And so just on that basis alone, I have to grant the motion and dismiss the wrongful termination claim.
RP (Apr. 12, 2024) at 29.
On April 24, Henrikson moved to continue the trial date for approximately six months and
to continue all dispositive motions until after a later discovery deadline. In his motion, Henrikson
noted “[a] massive amount of [produced] discovery,” outstanding depositions and discovery,
certain personal responsibilities for Henrikson, and Henrikson’s counsel having an upcoming
multi-week trial as reasons underling the request. CP at 1075. Henrikson stated that defendants
had already noted another summary judgment motion for Henrikson’s remaining claims which was
set to be heard in June. The trial court granted Henrikson’s motion to continue and set the
discovery deadline to November 25, the deadline to hear dispositive motions to December 20, and
trial to February 10, 2025.
C. Summary Judgment Dismissals of Defamation Claim Against the County, Zorich, and
Khandelwal and All Other Remaining Claims
On October 25, the defendants filed two motions for summary judgment on Henrikson’s
remaining claims.9 On November 4, Henrikson moved to continue the trial date for approximately
three more months. Among other reasons, Henrikson stated that, because of the defendants’
summary judgment motions, Henrikson’s deposition schedule had been accelerated and the
motions had disrupted Henrikson’s review of discovery.
9 The defendants noted two motions for summary judgment in August. Henrikson moved to strike notice of the motions, but the trial court denied Henrikson’s request.
14 No. 60334-9-II
Through their summary judgment motions, the defendants argued that Henrikson’s
defamation claims against the County, Zorich, and Khandelwal and Henrikson’s remaining claims
for negligence, negligent misrepresentation, fraudulent misrepresentation, and statutory invasion of
privacy should be dismissed.10
Relevant to this appeal, Henrikson had alleged in his negligence claim that the defendants
owed him a duty “to protect [Henrikson’s] independent and effective representation of King
County clients from political influence.” CP at 382. He also alleged that the County, as
Henrikson’s employer, owed him “a duty to provide a work environment that regulated obvious
self-dealing.” CP at 382. In moving for summary judgment, the defendants argued that none of
the duties Henrikson’s argued defendants had were cognizable under the law. In response,
Henrikson argued that the defendants, “as attorney employers, owed Henrikson, an attorney
employee, a duty to protect his independent and effective representation of King County clients
from political influence.” CP at 2390. He argued that such duty was recognized by logic,
common sense, justice, policy, and precedent.
For Henrikson’s statutory invasion of privacy claim, Henrikson alleged Zorich and the
County violated his rights under Washington’s privacy act because Zorich illegally “intercepted”
communications sent to Henrikson from his clients, including the Client, and a communication
sent to Henrikson by his doctor. CP at 378. Henrikson alleged that the violations caused him
“mental pain and suffering, and other injury.” CP at 379.
Zorich admitted that, when Henrikson was placed on administrative leave and the County
disabled Henrikson’s access to his work computer, she monitored Henrikson’s work e-mail
10 Henrikson had already voluntarily dismissed his breach of contract claim against the County.
15 No. 60334-9-II
“to avoid interruption in client communications.” CP at 2076. She also admitted that, during this
time, she noticed an audio file and transcription of a voicemail from Henrikson’s doctor come
through Henrikson’s e-mail. Zorich forwarded the voicemail to Henrikson.
A County policy in effect at this time provided:
Although [County employees] may be expected to maintain the privacy and confidentiality of information to which they have access, they are not guaranteed personal privacy for any activity in which they engage utilizing County computing resources. This includes legitimate county purposes, Minimal Personal Use, violations of acceptable use or any other use. This includes, but is not limited to, word processing documents, spreadsheets, databases, electronic and voice mail, and Internet access. [County employees] should be aware that all activity undertaken on any King County Information Assets, including legitimate county purposes, Minimal Personal Use, violations of acceptable use or any other purpose, is subject to monitoring, recording and intervention by Organization management for the purpose of System update, maintenance, security and compliance with countywide and Organization-specific policies and standards. Any use of King County Information Assets constitutes [County employees] consent to such monitoring, recording and intervention. [County employees] expecting privacy for their Minimal Personal Use should use a different means of communication.
CP at 2089. The policy provided that assets under the policy included “telephones, Mobile
Devices, . . . and electronic communication services for the performance and fulfillment of job
responsibilities” and that such assets were the “property of [the County] government.” CP at 2085,
2089. Additionally, an agreement between DPD and Henrikson’s union explicitly recognized that
“all staff members are bound by the attorney-client privilege and by . . . ethical obligations.” CP at
2509. The agreement also stated that the DPD and union created a “[v]ertical [r]epresentation”
structure where generally a particular attorney would work on a case throughout its duration, but
the case could be reassigned to another attorney for various reasons. CP at 2509.
16 No. 60334-9-II
Henrikson admitted he knew the County had a right to monitor his county activities,
including a right to monitor his calls.11 Nevertheless, Henrikson asserted in an e-mail to Zorich
“that is a completely separate issue from protecting the client’s expectation of privacy upon which
the entire reputation of DPD and the legal profession rest.” CP at 2145.
In a declaration, Henrikson stated that his mobile phone was set up to automatically
transcribe voicemails left on the phone from speech to text and then send the voicemail message to
Henrikson’s county e-mail. In another declaration, the Client stated that, while Henrikson was on
administrative leave, they called and left messages for Henrikson on Henrikson’s work phone.
Zorich discovered the Client’s calls and messages and warned the Client that Henrikson’s
employment would be terminated if they called him again.
Zorich and the County argued that Henrikson’s privacy claim failed as a matter of law
because Henrikson lacked standing to assert claims on behalf of his clients and because Henrikson
had no expectation of privacy for communications maintained on his County e-mail account.
Henrikson responded that he had standing because he suffered injuries recognized by the privacy
act. Henrikson also stated that the evidence supported both Henrikson and the Client having a
reasonable expectation that communications from the Client would not be monitored by third
parties without first obtaining the Client’s informed consent. Without the Client’s consent,
Henrikson argued that Zorich and the County breached Henrikson and the Client’s right to privacy.
On November 22, the trial court granted defendants’ motions for summary judgment and
dismissed with prejudice all claims. Regarding Henrikson’s defamation claim, the court found that
11 At the hearing on this summary judgment motion, Henrikson’s attorney conceded that Henrikson “did understand that the county had a right to monitor personal calls and things like that.” RP (Nov. 22, 2024) at 20.
17 No. 60334-9-II
his challenges to certain statements were either time barred, Henrikson failed to show any genuine
issue of material fact, or the statement was a privileged communication involving no undisclosed
facts. The court found that, as a matter of law, no duty supported Henrikson’s negligence and
negligent misrepresentation claims. For Henrikson’s fraudulent misrepresentation claim, the court
found that, even assuming that false statements were made, Henrikson failed to show that he relied
on any of the challenged statements and failed to show any clear, cogent, and convincing evidence
of a resulting injury. Concerning the invasion of privacy claim, the court found that the client
consented to the recording of their messages and Henrikson agreed that his accounts would be
monitored. Finally, the court noted that the public duty doctrine provided immunity to
Khandelwal for claims against her.
After granting the defendants’ motions for summary judgment and dismissing the claims,
the trial court denied Henrikson’s motion to continue, finding the issue now moot.
D. Motions for Reconsideration or Vacation of the Summary Judgment Orders
In December, Henrikson moved for reconsideration and vacation of all the summary
judgment orders. He argued that case scheduling and discovery issues—occurring after the trial
court granted Henrikson’s motion to continue on April 24, 2024—warranted reconsideration or
vacation of all the summary judgment orders. He argued that relief from the orders was justified
under CR 60(b).12 The court denied Henrikson’s motions, finding that Henrikson failed to meet
12 CR 60(b) provides that a court may relieve a party from an order for various reasons including for “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order[,] . . . [n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b), . . . misconduct of an adverse party[,] . . . [u]navoidable casualty or misfortune preventing the party from prosecuting or defending.” CR 60(b)(1), (3)-(4), (9).
18 No. 60334-9-II
his burden to show he was entitled to reconsideration or vacation of the order because his
arguments related to factual issues and the summary judgment decisions were “primarily” rulings
based in law. RP (Dec. 20, 2024) at 21.
E. Award of Statutory Damages
Goldsmith requested an award of $10,000 in statutory damages pursuant to RCW 4.24.510,
asserting that he had prevailed on Henrikson’s defamation claim by raising an anti-SLAPP
immunity defense. Henrikson opposed Goldsmith’s request, arguing that Goldsmith was not
entitled to an award of damages under the anti-SLAPP statute because Goldsmith wrote his
investigation report in bad faith. Henrikson also stated:
Defendants feigned confusion about the basis for Henrikson’s defamation claim, then asserted the anti-SLAPP defense in their reply brief, after Henrikson did not have a fair chance to respond. These and other issues will be addressed on appeal.
CP at 3702. The court granted Goldsmith’s request, awarded Goldsmith $10,000 in statutory
damages, and entered a final judgment ordering Henrikson to pay the award.
Henrikson appeals.
ANALYSIS
I. SUMMARY JUDGMENT
Henrikson claims that the trial court erred in granting summary judgment in the defendant’s
favor and dismissing three of his claims: Henrikson’s wrongful termination in violation of public
policy claim against the County, his invasion of privacy claim against Zorich and the County, and
his negligence claim against the County. We disagree.
Henrikson also argued for relief under CR 59, however, Henrikson makes no argument that he was entitled to relief from these orders under CR 59 in this appeal. Accordingly, we do not consider whether any relief should have been granted under that rule.
19 No. 60334-9-II
A. Summary Judgment Standard
We review grants of summary judgment de novo. Frausto v. Yakima HMA, LLC, 188
Wn.2d 227, 231, 393 P.3d 776 (2017).
Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fite v. Mudd, 19 Wn. App. 2d 917, 926,
498 P.3d 538 (2021); CR 56. We view the facts and draw reasonable inferences in the light most
favorable to the nonmoving party. Fite, 19 Wn. App. 2d at 926. A genuine issue of material fact
exists where reasonable minds could disagree on the facts controlling the outcome of the case.
Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 778, 425 P.3d 560 (2018).
In summary judgment proceedings, the moving party bears the initial burden of showing
that there is no genuine issue of material fact. Sartin v. Estate of McPike, 15 Wn. App. 2d 163,
172, 475 P.3d 522 (2020). The moving party can do so either “by setting out its own version of the
facts or by alleging that the nonmoving party failed to present sufficient evidence to support its
case.” Galassi v. Lowe’s Home Ctrs., LLC, 4 Wn.3d 425, 444, 565 P.3d 116 (2025) (quoting Pac.
Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 350, 144 P.3d 276 (2006)).
If the moving party satisfies its initial burden, the burden then shifts to the nonmoving
party to present specific facts demonstrating a genuine issue of material fact. Welch v. Brand
Insulations, Inc., 27 Wn. App. 2d 110, 115, 531 P.3d 265 (2023). If, at this point, the nonmoving
party “‘fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial,’ then the trial court
should grant the motion.” Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
20 No. 60334-9-II
In such a situation, summary judgment is appropriate because “there can be ‘no genuine issue as to
any material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 225 (quoting
Celotex, 477 U.S. at 322).
B. Wrongful Termination in Violation of Public Policy Claim
Henrikson argues that summary judgment for Henrikson’s wrongful termination claim was
improper because (1) Henrikson identified clear mandates of public policy that existed as a matter
of law, (2) there were genuine issue of material facts as to whether Henrikson acted in furtherance
of these clear mandates, and (3) the County did not have an overriding justification for terminating
Henrikson.13 We disagree.
13 Preliminarily, Henrikson argues that the County failed to meet its burden in summary judgment by not addressing all of Henrikson’s public policy bases for his claim. Specifically, Henrikson contends that the County failed to address Henrikson’s allegation that he acted in furtherance of a public policy on the right to counsel, a right to access to the courts, an obligation to share work product with other attorneys, an obligation to refuse illegal orders, and an obligation to not have political interference with client representation.
However, in its motion for summary judgment, the County noted that Henrikson “points to various alleged policies found in the United States and Washington Constitutions, including the rights to due process and assistance of counsel.” CP at 545-46 (emphasis added). The County went on to broadly argue that “none of these policies support Mr. Henrikson’s claim that he was obligated to provide [the client] with representation in the separate civil litigation. In fact, there is no legal authority to support Mr. Henrikson’s argument that representing [the client] was necessitated by a clear mandate of public policy.” CP at 546. While Henrikson disputed whether his actions in the civil defamation case amounted to “representation,” the County clearly argued that summary judgment should be granted because Henrikson could not establish any clear mandate of public policy to support his claim. See CP at 829 (Henrikson describing his conduct in the civil defamation case as “[a]ssisting with the [r]epresentation” of the client); see also Br. of Appellant at 45 (stating the County’s arguments were based on a false premise that Henrikson represented the client).
21 No. 60334-9-II
1. Legal Principles
Generally, under a common law principle known as the at will doctrine, “an employment
contract, indefinite as to duration, is terminable at will by either the employee or employer.”
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984). In 1984, joining a
growing majority of jurisdictions, our supreme court recognized the tort for wrongful termination
in violation of public policy as a narrow exception to the at will doctrine. Id. at 232.
Since then, Washington case law has adopted two frameworks for analyzing the tort: one
applicable when the allegations fit within four scenarios in which the tort usually arises and
another when the claim falls outside of those scenarios. Suarez v. State, 3 Wn.3d 404, 430, n.3,
552 P.3d 786 (2024). Here, the parties dispute which framework applies. Although both
frameworks overlap in parts of their analysis, we take a moment to set out each and determine the
applicable test provided the nature of Henrikson’s claim.
The first framework applies if the plaintiff’s claim “fits neatly within” one of four specific
scenarios: if an employee is fired (1) for refusing to commit an illegal act, (2) for performing a
public duty or obligation like jury duty, (3) for exercising a legal right or privilege like pursuing a
workers’ compensation claim, or (4) in retaliation for reporting employer misconduct. Id. at 430;
Martin v. Gonzaga Univ., 191 Wn.2d 712, 723, 425 P.3d 837 (2018). If the claim fits within one
or more of these scenarios, a burden-shifting test applies. See Suarez, 3 Wn.3d at 430.
The employee has the burden of establishing a prima facie case. Id. To do so, the
employee must demonstrate two things:
First, the “public policy” was manifested in the constitution, statute, regulatory provision, or court decision. . . . Second, the conduct associated with the public policy was a “significant factor” in the decision to terminate the worker.
22 No. 60334-9-II
Id. (quoting Martin, 191 Wn.2d at 723) (citations omitted). If the employee succeeds, the burden
shifts to the employer to prove that it terminated the employee for reasons other than those alleged
by the employee. Id.; see Martin, 191 Wn.2d at 725-26 (the employer must “‘articulate a
legitimate nonpretextual nonretaliatory reason for the discharge.’”) (quoting Wilmot v. Kaiser
Alum. & Chem. Corp., 118 Wn.2d 46, 70, 821 P.2d 18 (1991)).
If the plaintiff’s claim does not fit within one of the four scenarios mentioned above, courts
apply “a more refined analysis” guided by the “Perritt framework.” Rose v. Anderson Hay &
Grain Co., 184 Wn.2d 268, 277, 358 P.3d 1139 (2015); see also Karstetter v. King County Corr.
Guild, 193 Wn.2d 672 n.7, 444 P.3d 1185 (2019). The Perritt framework refers to a four-element
test proposed by Henry H. Perritt Jr., a notable scholar of labor and employment law. See Gardner
v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996) (citing Henry H. Perritt Jr.,
Workplace Torts: Rights and Liabilities § 3.7 (1991)).
Under this framework, the employee must prove (1) “the existence of a clear public policy”
(the clarity element) (2) “that discouraging the conduct in which [the employee] engaged would
jeopardize the public policy,” (the jeopardy element) and (3) “that the public-policy-linked conduct
caused the dismissal” (the causation element). Id. (alterations added, emphasis omitted). For the
last element (the absence of justification element), the court weighs any justification for the
dismissal against the public policy to determine whether the public policies outweigh the
employer’s concerns. Id. at 941, 948-49.
23 No. 60334-9-II
2. There Was No Genuine Issue of Material Fact That Henrikson’s Discharge
Contravened or Jeopardized Any of Henrikson’s Argued Public Policies
Here, Henrikson’s claims at issue on appeal do not neatly fit within any of the four specific
scenarios discussed in Suarez. Thus, we scrutinize Henrikson’s claim under the four-part Perritt
framework.
Under the Perritt framework, we “first ask[] if any public policy exists whatsoever, and
then ask[] whether, on the facts of each particular case, the employee’s discharge contravenes or
jeopardizes that public policy.” Gardner, 128 Wn.2d at 941-42.
Determining what qualifies as a clear mandate of public policy is a question of law subject
to de novo review. Roe v. TeleTech Customer Care Mgmt. LLC, 171 Wn.2d 736, 756, 257 P.3d
586 (2011). We look for a public policy that is “‘an authoritative public declaration of the nature
of the wrong.’” Id. at 757 (quoting Roberts v. Dudley, 140 Wn.2d 58, 63, 993 P.2d 901 (2000)). A
clear mandate of public policy must “be clear and truly public; it does not exist merely because the
plaintiff can point to legislation or judicial precedent that addresses the relevant issue.” Id. A
clear mandate of public policy may arise from “the letter or purpose of a constitutional, statutory,
or regulatory provision or scheme” or prior judicial decisions. Gardner, 128 Wn.2d at 936.
However, we may not “‘sua sponte manufacture public policy.’” Rickman v. Premera Blue Cross,
184 Wn.2d 300, 310, 358 P.3d 1153 (2015) (quoting Roberts, 140 Wn.2d at 65).
Our supreme court has cautioned that “‘courts should proceed cautiously if called upon to
declare public policy absent some prior legislative or judicial expression on the subject.’” Roe,
171 Wn.2d at 755 (quoting Thompson, 102 Wn.2d at 232). While Gardner “refined the tort’s
analytical framework somewhat [the supreme court] expressly refrained from substantively
24 No. 60334-9-II
changing the underlying tort requirements.” Rose, 184 Wn.2d at 277. “[T]he public policy at
issue [must] be judicially or legislatively recognized [because] the tort is a narrow exception to the
at-will doctrine and must be limited only to instances involving very clear violations of public
policy.” Id. at 276.
Below, the County argued that Henrikson failed to present sufficient evidence to support
his wrongful termination claim because he could not establish any clear public policy nor that the
County lacked a legitimate, non-pretextual reason for terminating Henrikson’s employment
through the undisputed evidence. Thus, they met their initial burden and the burden shifted to
Henrikson to present a genuine issue of material fact through at least “establish[ing] the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Young, 112 Wn.2d at 225; see Galassi, 4 Wn.3d at 444.
Henrikson identifies five public policies he argues the County jeopardized or contravened
by terminating his employment: (1) a right to counsel guaranteed under the Sixth Amendment;
(2) a public policy in ensuring independent and effective assistance of counsel, free from a conflict
of interest; (3) a right of access to the courts; (4) an attorney’s duty to disobey unethical, unlawful,
illegal, or other orders harmful to their clients; and (5) a public policy requiring counsel to obtain
their client’s informed consent before limiting their representation.
Assuming without deciding that these qualify as clear mandates of public policy for
purposes of the tort (clarity element), we consider whether Henrikson established a genuine
dispute of material fact regarding the tort’s jeopardy element.
The jeopardy element exists to “guarantee[] an employer’s personnel management
decisions will not be challenged unless a public policy is genuinely threatened.” Gardner, 128
25 No. 60334-9-II
Wn.2d at 941-42. Under this element, the public policies must be jeopardized by the employee’s
discharge. Gardner, 128 Wn.2d at 945. The employee must show that “they engaged in particular
conduct and the conduct directly relates to the public policy or was necessary for the effective
enforcement of the public policy.” Rose, 184 Wn.2d at 277 (alteration in original).
This burden is observably a high one. The employee must “‘argue that other means for
promoting the policy . . . are inadequate.’” Rose, 184 Wn.2d at 277-78 (quoting Gardner, 128
Wn.2d at 945). “In other words, the plaintiff must argue that the actions he or she took were the
only adequate means to promote the public policy.” Rose, 184 Wn.2d at 278 (emphasis added).
Moreover, the employee must show how the threat of dismissal will discourage others from
engaging in the desirable conduct called for by the public policy. See Gardner, 128 Wn.2d at 945.
At most, here Henrikson argues that a genuine issue of material fact existed because his
assistance of the Client in the civil case “furthered” the identified public policies, especially the
Client’s right to independent and effective counsel, right to work product and discovery, and right
to access the courts.14 Br. of Appellant 56. However, neither here nor below did Henrikson
explain how other means for promoting his identified public policies were inadequate considering
the circumstances. Significantly, the Client had an attorney representing them in the Civil Case
after Henrikson was first directed to cease working on the case. Additionally, Henrikson does not
14 To the extent that Henrikson argues that his employer violated a “First Amendment right to argue and disagree,” we decline to consider this argument because Henrikson fails to provide any authority supporting the existence of such a right and Henrikson only raises this argument in passing. Br, of Appellant at 60; see DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.”); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”).
26 No. 60334-9-II
argue that the threat of dismissal would discourage others from protecting a client’s right to
counsel, ensuring unconflicted independent and effective assistance of counsel, protecting a
client’s right of access to the courts, disobeying unethical, illegal, or harmful order and obtaining
their client’s informed consent before limiting their representation. Considering Henrikson’s
conduct, Henrikson fails to show that his termination “genuinely threatened” his identified public
policies.15 Gardner, 128 Wn.2d at 941-42, 946 (armored truck driver leaving their truck to save a
woman’s life was necessary because the driver was the women’s only source of help; no police or
other people were available).
Because Henrikson failed to establish a genuine issue of material fact as to the jeopardy
element or that the defendants were not entitled to judgment as a matter of law, we do not analyze
any of the other Perritt test elements as all are required to support Henrikson’s wrongful
termination claim. See Gardner, 128 Wn.2d at 943. Accordingly, summary judgment was
appropriate.
C. Invasion of Privacy Claim
Henrikson argues that summary judgment for his claim that Zorich and the County violated
RCW 9.73.030, Washington’s privacy act, was also improper. We disagree.
Washington’s privacy act, “one of the most restrictive electronic surveillance laws ever
promulgated,” “broadly protects individuals’ privacy rights.” State v. Roden, 179 Wn.2d 893, 898,
321 P.3d 1183 (2014) (citing to ch. 9.73 RCW). Under the act, it is illegal for “any individual,
15 Notably, RCW 71.09.045 limits the scope of an attorney under contract with OPD providing indigent defense representation of a client in SVP proceedings, including, “unless provided as part of investigation and preparation for any hearing or trial under [chapter 71.09 RCW], . . . other activities as may be excluded by policy or contract with the office of public defense.”
27 No. 60334-9-II
partnership, corporation, association, or the state of Washington, its agencies, and political
subdivisions to intercept, or record” private communications without the consent of all participants
in the communication or without a court order. RCW 9.73.030(1)(a), .040. The act provides
exceptions for emergencies, threats, and the investigation of specific crimes, but none of those
circumstances apply here. See State v. Bilgi, 19 Wn. App. 2d 845, 854, 496 P.3d 1230 (2021)
(citing RCW 9.73.030(2), .210, .230).
Any person claiming that a violation of the privacy act has injured their business, person, or
reputation may seek damages from the person who violated the act. RCW 9.73.060. Through the
legal action, a plaintiff may recover actual damages “including mental pain and suffering endured
by [them] on account of [the] violation,” liquidated damages, and reasonable attorney fees and
costs. RCW 9.73.060.
A violation of the privacy act occurs when there is “(1) a private communication
transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to
record and/or transmit (4) without the consent of all parties to the private communication.” Roden,
179 Wn.2d at 899. Henrikson does not argue that an unlawful recording occurred. Instead,
Henrikson argues that a violation occurred by Zorich unlawfully intercepting communications sent
to Henrikson from his clients, including the Client.
It is undisputed that, when Henrikson was placed on administrative leave and the County
disabled Henrikson’s access to his work computer, Zorich monitored Henrikson’s work e-mail.
Viewing the evidence in the light most favorable to Henrikson, during this time, the Client called
and left voicemails for Henrikson on Henrikson’s work phone. Zorich discovered the Client’s
calls and voicemails and warned the Client that Henrikson’s employment would be terminated if
28 No. 60334-9-II
they called Henrikson again. It appears that Zorich was able to access the Client’s call record and
voicemails through monitoring Henrikson’s e-mail as an audio file and transcription of voicemails
on Henrikson’s phone were being forwarded to his county e-mail.
Per county policy, any activity on certain County assets, including e-mails and voicemails,
was subject to monitoring, recording and intervention by County management. By using these
assets, County employees consented to the monitoring, recording, and intervention. Henrikson
admitted he knew the County had a right to monitor his county activities. Nevertheless, Henrikson
asserted to Zorich that the County’s right to monitor his activities was “a completely separate issue
from protecting the client’s expectation of privacy.” CP at 2145.
Henrikson argues that he and the Client had a reasonable expectation of privacy in the
Client’s calls and voicemails because of their attorney-client privilege and because the Client did
not consent to their communications being monitored by other TDAD attorneys. Henrikson claims
that, while the Client consented to the recording of their message by leaving a voicemail, the
Client did not consent to Zorich accessing the voicemails because there is no evidence that the
Client knew of the county policy. Zorich and the County argue that, because Henrikson consented
to the County’s monitoring of his e-mails and voicemail, no interception occurred. We agree with
Zorich and the County.
When a person communicates to another through an electronic device that records
messages, like leaving a voicemail, Washington courts deem them to have implicitly consented to
the recording of that communication. State v. Townsend, 147 Wn.2d 666, 675-76, 57 P.3d 255
(2002) (email); In re Marriage of Farr, 87 Wn. App. 177, 184, 940 P.2d 679 (1997) (voicemail).
Recently, our court considered whether part of that implied consent to the message’s recording
29 No. 60334-9-II
includes an understanding that the recorded communication could be shared with others and
concluded that it does. Bilgi, 19 Wn. App. 2d at 857-60.
In Bilgi, the appellant argued that law enforcement unlawfully intercepted text messages he
sent to a device he thought was communicating with a 13-year-old boy but was actually
communicating with a law enforcement officer. Id. at 848-49, 853. The law enforcement officer
used software on her computer to receive and respond to Bilgi’s text messages. Id. at 849-50. The
software stored their conversation under a shared account that other law enforcement officers had
access to and could read or participate in the conversation. Id. at 850-51. While the one law
enforcement officer was the only one who responded to Bilgi’s text messages using the software,
other law enforcement officers read Bilgi’s text messages through the software. Id.
In considering Bilgi’s argument that an unlawful “interception” under the privacy act of his
communications occurred, our court observed:
When the sender of a written electronic message impliedly consents to the message’s recording, they bear the risk that the intended recipient will share the message with others. In [State v.] Glant, we reasoned that when a person sends e-mail or text messages, “they do so with the understanding that the messages [will] be available to the receiving party for reading or printing.” 13 W[n]. App. 2d [356,] 365, 465 P.3d 382 [2020]. In our view, it is logical to assume they do so with the additional understanding that the messages will be available to the receiving party for forwarding or sharing electronically.
Id. at 857 (some alterations added).
The court concluded that the other law enforcement officers who viewed Bilgi’s text
messages did not unlawfully intercept the communications. Id. at 859-60. In reasoning that no
violation of the privacy act occurred, the court stated, “When an account is held by multiple
people, the account holders do not violate the privacy act by simultaneously receiving messages
sent to that account.” Id. at 859. The court reasoned that Bilgi’s intended recipient was the phone
30 No. 60334-9-II
number he sent the text messages to and the messages were received by that number. Id. The
other officers did not “covertly receive” the messages, manipulate the software or the one officer’s
computer, or otherwise “open” the messages before they were received by the phone number. Id.
Here, the Client’s intended recipient of their calls and voicemail was Henrikson’s work
phone number. Through a process that appears to have been set up before or as a result of
Henrikson’s leave, voicemails left on Henrikson’s work phone were set up to be forwarded to
Henrikson’s work e-mail address. Henrikson does not argue nor did he provide any facts below
indicating that the County did not own or did not have access to either Henrikson’s work phone or
his work e-mail address. Instead, Henrikson admitted that he knew the County had a right to
monitor his use of county property, including phone calls.
From these facts, the circumstances here appear similar to those in Bilgi where the Client’s
communications reached their intended recipient, either Henrikson’s work phone or work e-mail
address. Like the appellant in Bilgi, by the Client leaving a record of their communication through
a voicemail, the Client “bear[ed] the risk that the intended recipient [would] share the message
with others.” Id. at 857. For purposes of the privacy act, under these circumstances, it is irrelevant
whether the Client knew Henrikson had already agreed to share or would decide to share the
Client’s communications which they implicitly consented to being recorded, particularly where
others in the office were required to keep confidential information private. While Henrikson did
not directly share the Client’s message with Zorich, Henrikson knew both his work phone and
work e-mail address were subject to monitoring by management. Through utilizing these devices
to communicate with the Client, Henrikson consented to management’s ability to monitor any
recorded communications on those devices.
31 No. 60334-9-II
Under these circumstances, there was no genuine dispute of material fact that Zorich’s
access to the Client’s voicemails through monitoring Henrikson’s work e-mail constituted an
unlawful interception. Accordingly, summary judgment on this claim was appropriate.
D. Negligence Claim
Henrikson claims that the trial court erred in dismissing his negligence claim. However, in
arguing that an error occurred, Henrikson raises a new theory of liability that is distinct from what
he argued below.
Before the trial court, Henrikson alleged that the County breached two duties: a duty “to
protect [Henrikson’s] independent and effective representation of King County clients from
political influence” and another “to provide a work environment that regulated obvious self-
dealing.” CP at 382. Now, Henrikson abandons those previously asserted theories of liability and
raises a theory of negligent supervision. Because Henrikson raises this argument for the first time
on appeal, we decline to reach his argument. See RAP 2.5(a) (“The appellate court may refuse to
review any claim of error which was not raised in the trial court.”); Washburn v. Beatt Equip. Co.,
120 Wn.2d 246, 290, 850 P.2d 860 (1992) (“Arguments or theories not presented to the trial court
will generally not be considered on appeal.”).
II. MOTIONS TO RECONSIDER OR VACATE
Henrikson argues that the trial court erred in denying his CR 60 motions for
reconsideration or to vacate the trial court’s dismissal of his claims through the three summary
judgment proceedings. We disagree.
In December 2024, Henrikson moved for reconsideration or vacation under CR 60(b) of all
summary judgment orders because of case scheduling and discovery issues, including alleged
32 No. 60334-9-II
discovery violations, that occurred after April 24, 2024. The trial court found that Henrikson
failed to meet his burden of showing he was entitled to relief under CR 60 because Henrikson’s
arguments only related to factual issues and the summary judgment decisions were “primarily”
based in law. RP (Dec. 20, 2024) at 20-21.
Whether to grant or deny a motion to vacate a judgment under CR 60(b) is within the trial
court’s discretion. Shandola v. Henry, 198 Wn. App. 889, 896, 396 P.3d 395 (2017).
Accordingly, we review CR 60(b) orders for abuse of discretion. Id. at 896. An abuse of
discretion occurs if the trial court bases its decisions on untenable grounds or makes its decision
for untenable reasons. Id. at 896.
Henrikson fails to show that the trial court abused its discretion in denying the CR 60
motion. Henrikson’s only argument is that the reasoning of the trial court was error because the
summary judgment orders were actually rulings of fact instead of law. Here, not all of the
summary judgment orders appear to have been ruling of law; however, the trial court appears to
have recognized this by using the term “primarily” in its ruling. RP (Dec. 20, 2024) at 21.
Summary judgment dismissal of the majority of Henrikson’s defamation claims, his negligence
and negligent misrepresentation claim, his invasion of privacy claim, and all of his claims against
Khandelwal appear to have been resolved on issues of law. The remaining dismissed claims—
wrongful termination in violation of public policy, some defamation claims, and Henrikson’s
fraudulent misrepresentation claim—arguably centered around whether Henrikson established a
genuine issue of material fact.
However, even if the trial court erroneously considered these rulings to also be rulings of
law, it was reasonable for the trial court to nevertheless deny Henrikson’s motion for vacation or
33 No. 60334-9-II
reconsideration considering his arguments below. All of the case schedule and discovery issues
Henrikson relied on in his CR 60 motion occurred after the trial court’s summary judgment order
dismissing Henrikson’s wrongful termination claim. The trial court dismissed Henrikson’s
wrongful termination claim on April 12, 2024, and all the case schedule and discovery issues
Henrikson argued months later in the December motion hearing allegedly occurred after April 24,
2024. Henrikson did not show how any of these later-occurring issues related to his ability to
defend against the State’s motion for summary judgment several months earlier.
For Henrikson’s fraudulent misrepresentation and defamation claim, Henrikson provided
no explanation how inadequate time or newly discovered evidence would have impacted summary
judgment on those two claims. Considering these other grounds supporting denying Henrikson’s
motion, Henrikson’s fails to show that reversal of the trial court’s CR 60 orders is warranted. See
Ladenburg v. Campbell, 56 Wn. App. 701, 703, 784 P.2d 1306 (1990) (“This court can affirm on
any basis established by the pleadings and supported by the evidence, even if the trial court did not
consider it.”).
III. AWARD OF ANTI-SLAPP DAMAGES
Henrikson claims that the trial court erred by awarding Goldsmith anti-SLAPP damages
under RCW 4.24.510.
Under RCW 4.24.510, “[a] person who communicates a complaint or information to any
branch or agency of federal, state, or local government, . . . is immune from civil liability for
claims based upon the communication to the agency or organization regarding any matter
reasonably of concern to that agency or organization.” If “[a] person prevail[s] upon the defense
provided for in this section[, they] . . . shall receive statutory damages of ten thousand dollars.”
34 No. 60334-9-II
But “[s]tatutory damages may be denied if the court finds that the complaint or information was
communicated in bad faith.” RCW 4.24.510.
Henrikson argues that the trial court erred in awarding Goldsmith these statutory damages
because (1) Goldsmith did not raise an anti-SLAPP defense until his reply brief in the underlying
defamation claim dismissal, (2) the trial court did not dismiss the defamation claim on anti-SLAPP
grounds, and (3) Goldsmith was not entitled to anti-SLAPP protection for the communications at
issue in Henrikson’s defamation claim. However, all these arguments are raised for the first time
on appeal. When Goldsmith moved to dismiss Henrikson’s defamation claim, Henrikson argued
that he sufficiently pleaded the claim, that he complied with statutory requirements for requesting
retraction, and that Goldsmith did not qualify for immunity specific to public figures. And, when
Goodsmith later moved for an award of damages pursuant to RCW 4.24.510, Henrikson only
raised the statutory damages’ exception for communications made in bad faith. As the arguments
Henrikson makes here were not raised in the trial court, we decline to reach the issue under RAP
2.5(a).
CONCLUSION
We hold that (1) Henrikson fails to establish a genuine issue of material fact necessary to
his wrongful termination claim and invasion of privacy claim, (2) Henrikson’s challenge to the
dismissal of his negligence claim fails because he raises a different negligence claim for the first
time on appeal, and (3) Henrikson fails to show that the trial court abused its discretion in denying
his CR 60 motions. We decline to consider Henrikson’s anti-SLAPP damages award arguments
raised for the first time on appeal. Accordingly, we affirm.
35 No. 60334-9-II
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.
Che, J. We concur:
Maxa, J.
Veljacic, C.J.
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