FILED
SEPTEMBER 10, 2026
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
REBECCA MANINA and JANE DOE ) No. 40558-3-III MANINA, )
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Appellants/Cross Respondents, )
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v. )
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SCOTT MANINA )
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Respondent/Cross Appellant, ) UNPUBLISHED OPINION )
NINA ROECKS, P.C., )
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Respondent, )
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CORNERSTONE PSYCHOLOGISTS, P.S. )
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Defendant. )
MURPHY, J. — Rebecca Manina (Rebecca) and Scott Manina (Scott) 1 were parties to a dissolution proceeding while their three children, including Jane Doe, 2 were minors. Shortly after the proceedings commenced, Nina Roecks (Roecks) was appointed as guardian ad litem (GAL) for the children.
1 Because these parties share a common last name, for ease of reference we hereafter refer to them by their first names. No disrespect is intended.
2 The daughter has been referred to throughout this litigation as “Jane Doe.”
We do the same to continue to protect her privacy. See Gen. Order 2012-1 of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_ orddisp&ordnumber=2012_001&div=III.
Manina v. Manina While the dissolution proceedings were pending, Jane Doe disclosed abuse by Scott. He was subsequently charged with one count of first degree rape of a child, two counts of first degree child molestation, and one count of second degree child molestation, each with a domestic violence aggravator. On July 21, 2021, a jury found Scott guilty as charged, and by special verdict found that he had used his position of trust to facilitate commission of the crimes. 3 This appeal and cross appeal arises out of a civil cause of action filed by Rebecca and Jane Doe in Spokane County Superior Court against Scott Manina, Nina Roecks, P.C., and Cornerstone Psychologists, P.S. (Cornerstone), alleging negligence by each of the defendants, as well as an additional claim against Scott for civil assault and battery. Rebecca and Jane Doe appeal from (1) the trial court’s grant of summary judgment to Roecks based on quasi-judicial immunity, and (2) the court’s denial of a motion for reconsideration of that summary judgment decision. Scott cross appeals from a $4.5 million judgment entered in favor of Jane Doe after a jury verdict on damages.
3 This court affirmed Scott’s convictions for one count of first degree rape of a child and two counts of first degree child molestation, and reversed the conviction for one count of second degree child molestation. State v. Manina, No. 38468-3-III (Wash. Ct. App. Apr. 4, 2023) (unpublished), https://www.courts.wa.gov/opinions/ pdf/384683_unp.pdf. On September 8, 2023, the case was mandated back to the trial court for further proceedings after the Supreme Court denied Scott’s petition for review of this court’s decision.
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Manina v. Manina Cornerstone is not a party on appeal.
We affirm the ruling that Roecks, in her role as GAL, was acting as an arm of the court in the dissolution proceedings and is shielded by quasi-judicial immunity.
We affirm the trial court’s grant of partial summary on Scott’s liability for civil battery, as his criminal convictions decided the factual and legal issues such that collateral estoppel precludes relitigation of those issues. We reverse the grant of partial summary judgment as to Scott’s liability for civil assault. Because the jury in the trial on damages returned a single, undifferentiated $4.5 million verdict without separating or apportioning damages between civil battery and civil assault, the judgment on the verdict for damages is reversed. We remand for further proceedings consistent with this opinion.
FACTUAL BACKGROUND
In February 2018, Rebecca petitioned for dissolution of her marriage to Scott.
The couple had three children, including Jane Doe, who was 10 years old when the petition was filed. Throughout the proceedings, Scott and Rebecca shared physical custody of their children.
On March 22, 2018, the trial court appointed Roecks as GAL for the children, directing Roecks “to investigate and file a report only on . . . issues related to the making a parenting plan . . . unless the court approves investigation into other issues.” Clerk’s Papers (CP) at 47. Roecks’s court-appointed duties included (1) “[g]oing to all court
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Manina v. Manina hearings and pretrial conferences . . . related to the children, unless the court says otherwise, and” (2) “[h]elping the parties agree on a parenting plan or other issues . . . related to the children. CP at 47. It was mandated that the GAL’s report, in addition to any recommendations, include: (1) facts about the issues the GAL was appointed to investigate, (2) a determination of the children’s preferences, if any, for the parenting plan, (3) facts related to the voluntariness of any preferences stated by the children, and (4) facts related to the children’s level of understanding. CP at 47-48. GAL investigation in dissolution proceedings On April 18, 2018, Roecks met with Rebecca and the children. Roecks noted that the children told her “[Jane Doe] is sleeping with dad.” CP at 811. Over the next few weeks, Roecks discussed the family’s “sleeping arrangements” with Scott. CP at 814. Scott e-mailed Roecks’s assistant on May 2, 2018, stating that Roecks “asked me [about] sleeping arrangements in the motor home. Just wanted to make it clear. I am in the back by myself and the three kids all have their own beds up in the front.” CP at 419.
On May 24, 2018, Rebecca e-mailed Roecks that Scott “‘took [Jane Doe] by the wrist and pulled [her] to the ground. . . . [She] walked off but he grabbed [her] by the wrist again and pulled [her] down.’” CP at 420. Roecks met with the children on June 5 and asked them about discipline in their homes. One of the other children told Roecks about the incident in question that Rebecca had e-mailed about. Roecks questioned
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Manina v. Manina Jane Doe about “safety in the home” and “what happened in dad’s home and mom’s home if she got in trouble,” but Jane Doe “did not state that dad pulled her” to the ground. CP at 817. Roecks did not directly ask Jane Doe about the specifics of the incident as reported by Rebecca as she was “taught [in GAL training] to ask open-ended questions” to avoid “lead[ing]” or “implant[ing] memories in children.” CP at 819-20.
On May 29, 2018, Rebecca e-mailed Roecks again stating Scott “‘had gotten physical with [Jane Doe] more than once,’” with Rebecca inquiring how to get a restraining order. CP at 827. Roecks called the parties’ attorneys in response to Rebecca’s e-mail to request their clients be told that Roecks cannot give them legal advice. She did not recall communicating that directly with Rebecca.
Also in late May 2018, Rebecca told Roecks that “Scott had bathed [Jane Doe]—
I believe it was washing her hair . . . when [Jane Doe], Scott, and [Jane Doe’s brothers] were residing in the motor home in March to May of 2018.” CP at 859. Roecks contacted the parties’ attorneys to discuss that Jane Doe “was old enough to wash her own hair. . . . And to [Roecks’s] knowledge, it didn’t occur after that.” CP at 859. Roecks noted that prior to the divorce, when everyone lived in the same home, Scott was the parent responsible to wash Jane Doe’s hair, but documented that the attorneys agreed Scott should no longer be doing this. Roecks did not recall if she directly asked Jane Doe at their meeting on June 5, 2018, about Scott bathing her.
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Manina v. Manina At some point prior to June 2018, Roecks performed respective home visits with both Rebecca and Scott. She also attended a family law court hearing with the parties in June 2018.
On October 23, 2018, Rebecca informed Roecks by e-mail that Jane Doe was diagnosed with bacterial vaginosis. Rebecca said she was told by a doctor that bacterial vaginosis is not a sexually transmitted disease but is “associated with sexual activity.” CP at 837. The following day, Roecks e-mailed Rebecca stating, “‘I will look into this situation right away.’” CP at 839. Rebecca provided Roecks with a release to obtain Jane Doe’s medical records. Roecks reviewed the medical records and spoke to Jane Doe and the other children. She asked the children, including Jane Doe, whether they felt safe with each parent and if they liked spending time with each parent. 4 Prior to a hearing before a trial court commissioner in October 2018, Roecks spoke to the parties’ attorneys about “boundary issues” between Scott and Jane Doe. CP at 842. She noted that the children disclosed to her that Scott and Jane Doe “would cuddle on the couch.” CP at 843.
4 The children’s responses to these questions are not included in the record on review.
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Manina v. Manina In either October 2018 or early 2019, Roecks prepared a list of concerns about the family’s situation. 5 A concern Roecks documented was “sleeping with dad should not be occurring at [age] 11.” CP at 807. Roecks also noted a concern after speaking to one of the brothers that Jane Doe “would go into the bathroom when dad was showering to get something and that dad would go into the bathroom when [Jane Doe] was showering.” CP at 795. Roecks indicated she discussed these concerns with counsel for the parties and Dr. Michelle Estelle at Cornerstone Psychologists.
On June 13, 2019, Rebecca shared during a meeting with Roecks, “‘I don’t like his behavior with [Jane Doe]. He is always touching her, spooning on the couch, rubs her hair, touches her arms. He did that when we were married. It is worse now.’” CP at 862.
Also in June 2019, Roecks spoke with Jane Doe’s cousin about Scott’s behavior.
The cousin had reported Jane Doe saying she “wished her dad would get a girlfriend.” CP at 824.
Roecks did not report this information to Child Protective Services (CPS) because she did not yet have a reasonable belief that child abuse or neglect was taking place. Roecks investigated the allegations that Scott was sleeping with Jane Doe in the trailer,
5 Roecks could not remember if she wrote these notes while preparing for a hearing on October 25, 2018, on a temporary parenting plan, or while preparing for a parenting conference in early 2019.
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Manina v. Manina washing Jane Doe’s hair, cuddling with her, and being affectionate with her. Roecks took notes during her investigation that were kept in her files on this case. Roecks interviewed Jane Doe at least three times, and at no time did Jane Doe disclose abuse to her. In communicating with a therapist who had been working with Jane Doe for about a year, it was related to Roecks that Jane Doe was “doing well . . . with her dad and wanted more time” with him. CP at 863. Roecks was also aware that Jane Doe had been seen by two or three different medical providers about the bacterial vaginosis diagnosis and none of those providers had made a CPS referral.
On July 2, 2019, one of Jane Doe’s medical providers did make a report to CPS, noting Jane Doe denied sexual abuse but reported inappropriate touching by her father. CPS investigated but “screened out” the referral. CP at 9. On July 9, the cousin Roecks had spoken with earlier made a report with CPS. CPS “screened in” this referral and initiated a full investigation. CP at 15. CPS investigated the allegations of abuse but did not share or disclose any information from this investigation with Roecks or the family law court.
Roecks did not reach the point of filing a formal report of her findings in the dissolution proceedings. According to Roecks, the “entire situation changed” in July 2019 when a criminal investigation was initiated on the abuse allegations made by Jane Doe against Scott. CP at 915. Because any parenting plan was now dependent
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Manina v. Manina “upon what would happen within the criminal matter . . . it wasn’t ever contemplated . . . that I would file a written report.” CP at 915. Criminal proceedings On September 20, 2019, Scott was charged with one count of first degree rape of a child, two counts of first degree child molestation, and one count of second degree child molestation, each with a domestic violence aggravator.
Relevant on appeal, Jane Doe testified in the criminal proceedings that Scott would wash her with a washcloth while she was in the shower. He would grab at her private parts while doing this. When asked if she felt like she could refuse him, Jane Doe stated, “No. . . . [because] it’s either his way or the highway, and I was still scared. I’m scared of him.” CP at 1115. She testified it made her “[r]eally uncomfortable” for him to do this. CP at 1116.
Jane Doe also testified that while she had bacterial vaginitis, Scott applied balm to her vagina on multiple occasions. This was something she was taught to do herself, but while with Scott, he insisted on applying the balm. Jane Doe would lay on her back and Scott would stand in front of her and direct her to lift up and spread her legs. She said it was “really weird” to be in this position in front of her father. CP at 1124. Using his finger, Scott would put the balm inside Jane Doe’s vagina. She never asked him to apply the balm, and this was not something she wanted him to do. She never told Scott she did
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Manina v. Manina not want him to apply the balm because she “was scared.” CP at 1127. When later prescribed medication for her vaginal area, Jane Doe testified that Scott did not apply the medication, but insisted upon watching while it was done by Jane Doe.
Jane Doe additionally testified that when she took a shower, Scott would wait until she undressed, then come turn on the water and give her a hug before leaving the bathroom. When hugging her, Scott’s arms would be around her back and then go down to her bottom. She did not want him in the bathroom when her clothes were off. Scott would not allow her to cover herself with a towel.
On July 21, 2021, a jury found Scott guilty as charged, and by special verdict found that he had used his position of trust to facilitate commission of the crimes. Scott appealed from his judgment and sentence to this court. In an opinion issued on April 4, 2023, we affirmed the convictions for one count of first degree rape of a child and two counts of first degree child molestation, and reversed the conviction for one count of second degree child molestation. On September 8, 2023, the case was mandated back to the trial court for further proceedings after the Supreme Court denied Scott’s petition for review. The trial court resentenced Scott on the convictions for one count of first degree rape of a child and two counts of first degree child molestation, and dismissed the conviction for one count of second degree child molestation. An amended judgment and sentence was issued on December 18, 2023.
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Manina v. Manina One of Scott’s claims on direct appeal was for ineffective assistance of counsel, which was rejected. Scott filed a personal restraint petition on September 5, 2024, requesting that his convictions be reversed or that we remand for a new trial based on (1) a purported recantation by Jane Doe of her trial testimony and (2) ineffective assistance of counsel throughout the entire proceedings. On December 29, 2025, this court dismissed all the claims in Scott’s petition as frivolous except for the ineffective assistance claims related to the State’s plea offer and Scott’s decision on whether to testify at trial. We remanded for a reference hearing and a determination on the merits of these two claims, and ordered that any review of the trial court’s decision on those two issues would be through a direct appeal. A certificate of finality was issued by this court on May 1, 2026, returning the case to the trial court for further proceedings.
On remand, the State and Scott negotiated a resolution that obviated the need for a reference hearing. On July 7, 2026, the trial court held a hearing for the parties to present their agreed settlement and a joint sentencing recommendation. Scott was resentenced and an amended judgment and sentence was issued that same day. Following the recommendation of the parties, the trial court (1) dismissed without prejudice the conviction for one count of first degree rape of a child, and (2) sentenced Scott for two counts of second degree child molestation as a lesser included offense to the first degree child molestation convictions.
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Manina v. Manina PROCEDURAL BACKGROUND
On December 9, 2021, Rebecca and Jane Doe initiated a civil cause of action against Scott for negligence, battery and assault. The action included claims against Roecks and Cornerstone for negligence in failing to report child abuse to the Department of Children, Youth, and Families or law enforcement.
On January 20, 2023, Roecks moved for summary judgment, arguing she was immune from liability as a court-appointed GAL and, alternatively, the elements of a negligence claim could not be established. After hearing argument of counsel on the motion, the trial court found quasi-judicial immunity applied to Roecks while acting within the scope of her GAL responsibilities as set by the court, and there was “no genuine issue that [Roecks] was acting in the context of [her court-appointed] duties.” Rep. of Proc. (RP) (Feb. 17, 2023) at 30. The court went on to state in its oral ruling that “while the parties may disagree as to what [] Roecks should have done while she was conducting those duties, the [c]ourt finds that she was acting within her scope as a GAL when she was listening to the information she received from the parties and deciding whether or not that was something she should or should not report. Those decisions were made in the context of her duties that the court ordered her to engage in.” RP (Feb. 17, 2023) at 30.
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Manina v. Manina On October 2, 2023, Rebecca and Jane Doe moved for partial summary judgment as to Scott’s liability to Jane Doe for civil battery and assault based on collateral estoppel and the prior criminal convictions. On February 2, 2024, after hearing argument of counsel, the trial court granted the motion. Scott unsuccessfully sought discretionary review of that interlocutory decision with this court.
A trial was held in July 2024 solely on the issue of proximate causation and damages relative to the civil battery and assault claims against Scott. A six-person jury returned a special verdict finding that Scott’s conduct proximately caused $4.5 million in damages to Jane Doe. 6 The trial court thereafter entered a judgment on the verdict.
Rebecca and Jane Doe appeal from the grant of summary judgment to Roecks.
Scott cross-appeals from the grant of partial summary judgment as to his liability for battery and assault, and the final judgment entered after the jury verdict on proximate causation and damages.
ANALYSIS
We review a trial court’s grant of summary judgment de novo. Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 781, 357 P.3d 1040 (2015). Summary judgment is appropriate if the pleadings, discovery materials, and any affidavits show that there is
6 The jury awarded $2 million in past noneconomic damages and $2.5 million in future noneconomic damages.
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Manina v. Manina no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 197-98, 943 P.2d 286 (1997) (quoting CR 56(c)). A court considers the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. at 198. “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” CR 56(c). An appellate court can sustain the trial court’s ruling on any theory established by the pleadings and supported by the proof, regardless of whether the trial court considered it. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). 1. Quasi-judicial immunity Rebecca and Jane Doe contend Roecks is not entitled to quasi-judicial immunity because the mandatory reporting duty of suspected abuse or neglect of a child imposed by RCW 26.44.030(1)(e) on a GAL or court-appointed special advocate is a statutory obligation separate from Roecks’s role performing her duties as GAL. They argue the plain language of the mandatory reporting statute does not grant quasi-judicial immunity to GALs, and applying it in this instance would render the statute meaningless. In the alternative, they argue that the statutory duty to report suspected abuse or neglect is separate from a GAL’s court-appointed duties. They further contend that even if quasi-
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Manina v. Manina judicial immunity applies in principle, genuine issues of material fact exist as to whether Roecks was performing court-appointed duties during the relevant time period.
Quasi-judicial immunity extends to individuals or entities whose functions are so similar to those of a judge that they are granted the same immunity when performing those duties. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 99, 829 P.2d 746 (1992). Quasi-judicial immunity “protects those who perform judicial-like functions to ensure they can also do so without fear of personal consequences.” Kelley v. Pierce County, 179 Wn. App. 566, 574, 319 P.3d 74 (2014). When quasi-judicial immunity applies, “it is an absolute bar to civil liability and necessarily leaves wronged claimants without a remedy.” West v. Osborne, 108 Wn. App. 764, 773, 34 P.3d 816 (2001).
It is undisputed that GALs benefit from quasi-judicial immunity when acting as an arm of the court or within the scope of their statutory duties. Kelley, 179 Wn. App. at 575. Although our courts have addressed applicability of quasi-judicial immunity to GALs when thy function as an extension of the court, they have not yet addressed whether such immunity attaches when a GAL allegedly fails to comply with the statutory duty to report suspected child abuse or neglect.
1.1 Plain language Rebecca first argues that the plain language of the mandatory reporter statute, RCW 26.44.030, does not grant quasi-judicial immunity to GALs who fail to report
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Manina v. Manina suspected child abuse. She contends that if the legislature intended to grant such immunity, it would have expressly done so. Roecks responds that, because quasi-judicial immunity is a common law doctrine, it is presumed to continue unless and until it is expressly abrogated by the legislature.
This court reviews questions of statutory interpretation de novo. Burns v. City of Seattle, 161 Wn.2d 129, 140, 164 P.3d 475 (2007). Our primary goal is to determine and effectuate the legislature’s intent and purpose. In re Parentage of J.M.K., 155 Wn.2d 374, 387, 119 P.3d 840 (2005). When a statute’s meaning is plain, we give effect to that plain meaning as an expression of legislative intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). “‘Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.’” Davis v. Dep’t of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999) (quoting Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996)).
Generally, “our state is governed by the common law to the extent the common law is not inconsistent with constitutional, federal, or state law.” Potter v. Wash. State Patrol, 165 Wn.2d 67, 76, 196 P.3d 691 (2008) (citing RCW 4.04.010). “The legislature has the power to supersede, abrogate, or modify the common law.” Id. (citing State v. Estill, 50 Wn.2d 331, 334-35, 311 P.2d 667 (1957), amended on reh’g, 55 Wn.2d 576,
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Manina v. Manina 349 P.2d 210 (1960)); State v. Mays, 57 Wash. 540, 542, 107 P. 363 (1910)). “A statute will not be read ‘[t]o abrogate the common law’ without ‘clear evidence of the legislature's intent.’” Erickson v. Pharmacia LLC, 5 Wn.3d 585, 615, 578 P.3d 306 (2025) (alteration in original) (quoting Dearinger v. Eli Lilly & Co., 199 Wn.2d 569, 575, 510 P.3d 326 (2022)). “[A] statute abrogates the common law only when ‘the provisions of a . . . statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force.’” State v. Farnworth, 192 Wn.2d 468, 474, 430 P.3d 1127 (2018) (second alteration in original) (quoting State ex rel. Madden v. Pub. Util. Dist. No. 1, 83 Wn.2d 219, 222, 517 P.2d 585 (1973)).
Quasi-judicial immunity is a common law doctrine. See, e.g., Lutheran Day Care, 119 Wn.2d at 99-100; Reddy v. Karr, 102 Wn. App. 742, 748-49, 9 P.3d 927 (2000). Therefore, to abrogate quasi-judicial immunity, the legislature must clearly express its intent to do so.
RCW 26.44.030 requires people in specified positions to report suspected child abuse or neglect to law enforcement or the Department of Children, Youth, and Families (DCYF). “The reporting requirement also applies to guardians ad litem, including court- appointed special advocates, appointed under Titles 11 and 13 RCW and this title, who in the course of their representation of children in these actions have reasonable cause to believe a child has been abused or neglected.” RCW 26.44.030(1)(e).
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Manina v. Manina “Every person who is required to make, or to cause to be made, a report pursuant to RCW 26.44.030 and [RCW] 26.44.040, [7] and who knowingly fails to make, or fails to cause to be made, such report, shall be guilty of a gross misdemeanor.” RCW 26.44.080. While the statute does not explicitly provide for any civil remedy, “RCW 26.44.030 implies a cause of action against a mandatory reporter who fails to report suspected abuse.” Beggs v. Dep’t of Soc. & Health Servs., 171 Wn.2d 69, 77, 247 P.3d 421 (2011).
The plain language of RCW 26.44.030(1)(e) does not, however, express an intent by our legislature to abrogate common law quasi-judicial immunity. There is no reference to immunities or defenses of any kind in the statute. The statute merely includes GALs as a category of professionals who must report to law enforcement or DCYF when they have reasonable cause to suspect child abuse or neglect.
Rebecca and Jane Doe correctly cite to Beggs for the proposition that RCW 26.44.030 implies a cause of action against a mandatory reporter who fails to report suspected abuse. However, while the Beggs court did recognize an inference in the statute to a civil cause of action against a mandatory reporter, the issue of quasi- judicial immunity was never addressed because the defendants sued in Beggs under the
7 RCW 26.44.040 details information that, if known, any mandatory reporter must include in a report of abuse or neglect to law enforcement or DCYF.
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Manina v. Manina mandatory reporting statute were all health care providers who undisputedly did not act as an arm of the court.
Rebecca and Jane Doe also contend that if quasi-judicial immunity were to shield a GAL from liability for failing to fulfill the mandatory reporting duties imposed by RCW 26.44.030, the statute would be rendered meaningless. We disagree. The application of quasi-judicial immunity does not render RCW 26.44.030 meaningless. The statute’s primary purpose is to protect children by mandating reports of suspected abuse or neglect to facilitate investigation and intervention.
[W]here a child is deprived of [their] right to conditions of minimal nurture, health, and safety, the [S]tate is justified in emergency intervention based upon verified information; and therefore the Washington [S]tate [L]egislature hereby provides for the reporting of such cases to the appropriate public authorities. It is the intent of the legislature that, as a result of such reports, protective services shall be made available in an effort to prevent further abuses, and to safeguard the general welfare of such children.
RCW 26.44.010.
GALs remain subject to criminal penalties for willful nonreporting, which preserves accountability without exposing GALs to civil suits that could deter thorough investigations. See RCW 26.44.080. GALs must be afforded the ability to render discretionary judgment calls regarding reporting. Exposing GALS to civil liability when making such decisions may result in a chilling effect of the very independence the quasi-
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Manina v. Manina judicial immunity doctrine seeks to preserve. Moreover, there are other mechanisms to address a GAL’s conduct if perceived to be an issue, such as court oversight, removal from appointment, or professional discipline. See RCW 26.12.175(5).
In the fact scenario presented in this case, the duty to report suspected child abuse falls within GAL Roecks’s court-ordered functions to investigate and make recommendations to the court on issues related to establishing a parenting plan in the dissolution proceeding. See RCW 26.44.030(1)(e); West, 108 Wn. App. at 773-74.
1.2 Mandatory reporting duties are not separate and distinct from a GAL’s court-appointed duties
Rebecca and Jane Doe also contend that Roecks cannot benefit from quasi-judicial immunity because a GAL’s mandatory reporter duties exist outside of a GAL’s court- appointed duties. Specifically, Rebecca and Jane Doe argue the mandatory reporting requirement does not involve the court in any capacity because reports of suspected child abuse are made to law enforcement or DCYF.
The statute requires GALs to report when “in the course of their representation of children in these actions [they] have reasonable cause to believe a child has been abused or neglected.” RCW 26.44.030(1)(e). Rebecca and Jane Doe assert that the duty of a GAL under the mandatory reporting statute is distinct from a GAL’s court-appointed
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Manina v. Manina investigatory duties, thus falling outside the scope of quasi-judicial immunity. This purported distinction is unpersuasive.
Once appointed by the court to investigate and make recommendations on parenting arrangements for a child, the GAL’s role inherently involves assessing potential abuse or neglect. See RCW 26.09.220. Gathering information about suspected abuse— and deciding whether, when, or how to report it—is integral to this function. See Barr v. Day, 124 Wn.2d 318, 33-32, 879 P.2d 912 (1994) (A GAL appointed to investigate and make recommendations on a proposed tort settlement within a guardianship proceeding was entitled to quasi-judicial immunity as they were “operating as an arm of the court, whatever the ambiguities of [their] appointment.”). Separating the mandatory reporting duty from a court-appointed duty would undermine the rationale for quasi-judicial immunity, as GALs might hesitate in sensitive investigations fearing civil liability for perceived nonreporting.
This court’s decision in Reddy provides guidance. A trial court commissioner in a dissolution action ordered family court services (FCS) to investigate and make an evaluation as to who should be the primary residential parent. Reddy, 102 Wn. App. at 745. The FCS social worker assigned to the case recommended the father, but a later court-appointed GAL recommended the mother. Id. at 746-47. The mother sued the social worker for negligently conducting the investigation and FCS for negligent
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Manina v. Manina supervision of its social worker. Id. at 747. On appeal, this court held the social worker was immune from suit:
[T]he unique obligation of courts to serve the best interests of minor children in cases of divorce often requires independent investigations of allegations between warring parents, professional evaluation of parenting abilities, determination of the degree of bonding between children and each parent—not to mention the wisdom of Solomon when the most expedient solution might appear to be to “saw the baby in half.” Judges cannot personally perform these independent investigations and evaluations, due not only to the volume of cases but also to the impropriety of ex parte contact between judges, parties and witnesses. Accordingly, a surrogate is necessary. Family court investigators and evaluators performing court-
ordered services do so as surrogates for the court.
Id. at 749-50. We also found that the negligent supervision claim was properly dismissed because the social worker’s quasi-judicial immunity extended to FCS.
GALs likewise act as “surrogates” for the court by providing information and recommendations. Here, the court’s order appointing Roecks as GAL directed that she “investigate and file a report only on the issues checked below, unless the court approves investigation into other issues.” CP at 47. The court checked the box for: “All issues related to making a parenting plan for these children” and left the boxes for all other issues unchecked. CP at 47. The same policy reasons for immunity given in Reddy apply in this case.
Rebecca and Jane Doe argue Reddy protected only the FCS social worker because they directly assisted the court with its decision-making process. Because Roecks never
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Manina v. Manina provided the court with a written report on her investigation and recommendations, Rebecca and Jane Doe argue that Reddy should not apply. Rebecca and Jane Doe’s argument, however, does not consider that all of Roecks’s investigative activities were encompassed by the court’s order.
As stated above, the trial court ordered Roecks to “investigate and file a report”
on “[a]ll issues related to making a parenting plan for these children.” CP at 47. Her court-appointed duties included “going to all court hearings and pretrial conferences for this case that are related to the children” and “helping the parties agree on a parenting plan or other issues in this case related to the children.” CP at 47. In performing her duties, Roecks on numerous occasions met with each parent, met with all three children, contacted the parties’ attorneys, and gathered additional information from various sources. Roecks attended court hearings and performed home visits. The information Roecks obtained from all sources, including Rebecca and Scott, the children, the children’s cousin, Jane Doe’s health care providers, etc. were all encompassed within Roecks’s court-directed duties to facilitate a parenting plan. Roecks admittedly did not directly question Jane Doe about the specifics of alleged behavior by Scott toward Jane Doe that had been reported to Roecks, but there were rational bases to be more circumspect in the framing of questions to Jane Doe to avoid coaching, traumatizing, or impairing a child’s future credibility.
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Manina v. Manina Rebecca and Jane Doe correctly note that Roecks never filed a report of her findings with the court. But Roecks did not file a report because the criminal investigation into the allegations against Scott and subsequent proceedings preempted the mandate of the dissolution court for Roecks to assist it in developing a parenting plan.
1.3 Summary judgment Rebecca and Jane Doe’s arguments do not raise a genuine issue of material fact that anatomize any failure to comply with the mandatory reporting statute from Roecks’s performance of her court-ordered GAL duties. The record shows Roecks acted within her role as GAL at all relevant times of the dissolution proceedings. Even interpreting the facts in the record in the light most favorable to Rebecca and Jane Doe, there are no questions of material fact as to whether Roecks was performing her court-appointed duties. Given that the legislature did not abrogate quasi-judicial immunity for GALs in RCW 26.44.030, and because Roecks received all information while performing her court-appointed duties as GAL, Roecks is entitled quasi-judicial immunity. 2. Partial summary judgment as to liability of Scott Manina On cross appeal, Scott contends collateral estoppel was misapplied to summarily find him liable for civil battery and assault based on his criminal convictions. He argues the issues are not identical and applying collateral estoppel would be unjust.
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Manina v. Manina Collateral estoppel precludes relitigation of an issue when: (1) the issue decided in the prior adjudication is identical to the issue presented in the current proceeding, (2) the prior proceeding ended in a final judgment on the merits, (3) the party against whom preclusion is asserted was a party (or in privity) to the earlier proceeding, and (4) application of the doctrine on the asserted party will not work an injustice. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 307, 96 P.3d 957 (2004); Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983)).
“‘[C]ollateral estoppel extends only to “ultimate facts,” i.e., those facts directly at issue in the first controversy upon which the claim rests, and not to “evidentiary facts” which are merely collateral to the original claim.’” Barr, 124 Wn.2d at 325 (alteration in original) (quoting McDaniels v. Carlson, 108 Wn.2d 299, 305, 738 P.2d 254 (1987)). The issues must have been actually adjudicated in the prior action and must have formed an “essential part of the claim at issue in that action.” Seattle-First Nat’l Bank v. Kawachi, 91 Wn.2d 223, 228, 588 P.2d 725 (1978).
Scott challenges the first (identical issues) and fourth (injustice) elements of collateral estoppel and concedes the second and third elements.
2.1. Battery A jury found Scott guilty of first degree rape of a child, which is committed when a person has sexual intercourse with someone who is under 12 years of age and
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Manina v. Manina the perpetrator is at least 24 months older than the victim. RCW 9A.44.073(1). The rape conviction was based on Scott’s penetration of Jane Doe’s vagina with his finger. As mentioned previously, on remand the trial court recently dismissed the first degree rape conviction without prejudice pursuant to a joint recommendation of the State and Scott.
The jury also convicted Scott of two counts of first degree child molestation, which is committed when a person has, or knowingly causes another person under 18 years of age to have, sexual contact with someone who under 12 years of age and the perpetrator is at least 36 months older than the victim. RCW 9A.44.083(1). “‘Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(13). Scott’s molestation convictions were based on (1) hugging Jane Doe while she was unclothed before she took a shower, and (2) bathing Jane Doe with a washcloth. The trial court in the aforementioned remand followed the recommendation of the State and Scott, and resentenced Scott to two counts of the lesser-included offense of second degree child molestation, which is committed when a person has, or knowingly causes another person under 18 years of age to have, sexual contact with someone who is at least 12 years old but less than 14 years old and the perpetrator is at least 36 months older than the victim. RCW 9A.44.086(1).
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Manina v. Manina The molestation convictions necessarily decided the elements of civil battery.
Battery “is an intentional and unpermitted contact with the plaintiff’s person.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 504, 325 P.3d 193 (2014). It is a harmful or offensive contact resulting from an act intended to cause such contact or the apprehension of imminent contact. McKinney v. City of Tukwila, 103 Wn. App. 391, 408, 13 P.3d 361 (2000) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 9, at 39 (5th ed. 1984)). “‘A bodily contact is offensive if it offends a reasonable sense of personal dignity.’” Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 865, 324 P.3d 763 (2014) (quoting RESTATEMENT (SECOND) OF TORTS § 19 (A.L.I. 1965)). Critically, “the requisite intent for battery is the intent to cause the contact, not the intent to cause injury.” Id. at 866.
Scott argues collateral estoppel was improperly applied because the jury in the criminal proceedings was not asked to find whether he intentionally caused harmful or offensive contact. He claims he lacked the requisite intent because he was performing parenting functions: applying balm to treat a medical issue, hugging Jane Doe for emotional comfort, and bathing her to ensure cleanliness.
Scott misapprehends the intent requirement for battery. The tort of battery focuses solely on whether the defendant intended the contact itself—not the motive behind the contact or whether the contact was intended to be harmful or offensive. Id. Scott does not
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Manina v. Manina dispute that he intentionally touched Jane Doe in each instance. Instead, he argues that his motive for touching her was to perform parenting functions. In so arguing, Scott implies that he did not intend harmful or offensive contact. However, the required intent for battery does not look at the nature of the contact; it looks only at whether the contact itself was intentional and separately asks if the contact was objectively harmful or offensive. The same intentional contact that formed the basis for Scott’s criminal convictions—applying balm to Jane Doe’s vagina with penetration, hugging her while unclothed, and bathing her—satisfy the intent element for battery.
These contacts were objectively harmful or offensive. Jane Doe was clear during her testimony in Scott’s criminal trial that his actions made her uncomfortable and she did not want him to touch her. Sexual contact between an adult and a child “offends a reasonable sense of personal dignity” and is “unwarranted” by modern “social usages.” See RESTATEMENT (SECOND) OF TORTS § 19. Moreover, the child molestation convictions necessarily required the jury find Scott engaged in touching Jane Doe with an intent of sexual gratification. See RCW 9A.44.010(13), .083(1), .086(1).
Because the essential facts underlying Scott’s criminal convictions for child molestation establish both intentional contact and a harmful or offensive nature, the issues are identical to those required for civil battery.
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Manina v. Manina The fourth prong, whether application of the collateral estoppel would work an injustice, is also met. When determining whether the application of collateral estoppel will work an injustice on the party against whom the doctrine is being asserted, the primary question is whether the parties to the earlier proceeding had “a full and fair opportunity to develop and litigate the issues in the criminal case.” Clark v. Baines, 150 Wn.2d 905, 914, 84 P.3d 245 (2004). “The injustice component [of collateral estoppel] is generally concerned with procedural, not substantive irregularity.” Christensen, 152 Wn.2d at 309.
In this case, Scott has had a full and fair opportunity to litigate the issues. He was found guilty of the criminal charges after a jury trial, which necessarily carried a higher burden of proof than in a civil proceeding. He appealed his convictions raising challenges to the sufficiency of the evidence, prosecutorial misconduct, and ineffective assistance of counsel. Scott then collaterally attacked the amended judgment and sentence issued by the trial court on remand at the conclusion of his direct appeal. On further remand from this court, the State and Scott negotiated a settlement where Scott was sentenced on two counts of second degree child molestation.
Scott maintains that he was motivated in the criminal proceedings to vigorously fight the charges. He contends, however, that his attorney was not similarly motivated and provided ineffective assistance of counsel throughout the July 2021 trial. Scott raises
30
Manina v. Manina numerous arguments in support of his claim that his counsel was ineffective. We reject Scott’s attempt to relitigate his criminal convictions here. Scott availed himself of all opportunities to challenge and then appeal his convictions and to seek collateral relief. Furthermore, Scott cites no case law to support his assertion that ineffective assistance of counsel in a criminal trial, that has been rigorously litigated and appealed, can form the basis to find injustice in the context of collateral estoppel.
Scott received a full and fair opportunity to litigate the issues related to battery in the prior criminal proceeding. The trial court properly granted partial summary judgment on the civil battery claim based on collateral estoppel.
2.2. Assault
The analysis differs for civil assault. A civil assault occurs when an act (1) is performed with the intent to cause a harmful or offensive contact or cause the victim or a third party imminent apprehension of harmful or offensive contact, and (2) the victim is thereby put in such apprehension. Brower v. Ackerley, 88 Wn. App. 87, 92-93, 943 P.2d 1141 (1997) (quoting RESTATEMENT (SECOND) OF TORTS § 21). In the context of collateral estoppel, the critical question is whether the criminal convictions for rape and child molestation necessarily decided the apprehension element required for civil assault.
The child molestation convictions establish unlawful sexual contact but do not necessarily prove Jane Doe experienced imminent apprehension of harmful contact
31
Manina v. Manina before the assault occurred. The criminal statutes for child molestation focus on the sexual nature of the conduct and lack of consent, not on whether the victim anticipated the contact. The distinct mental state of Jane Doe was not fully litigated or necessarily resolved by a fact finder in Scott’s criminal proceedings. Because the issues are not identical, the first prong of collateral estoppel fails.
We arrive at this decision even though at the criminal trial, Jane Doe testified that she was uncomfortable and scared. When the prosecutor asked Jane Doe whether she told Scott she did not want him to apply the vaginal balm, Jane responded, “No. . . . Because I was scared.” CP at 1127. Regarding the bathing incidents, Jane Doe said about Scott, “Well, it’s either his way or the highway, and I was still scared. I’m scared of him.” CP at 1115. However, despite this testimony, the jury was not asked to make a final determination on whether Jane Doe experienced fear or apprehension.
Moreover, even if the issues were identical, the injustice prong would still weigh against issue preclusion on the claim of civil assault. Because Jane Doe’s subjective fear or apprehension was not a required element for proof of the criminal charges, Scott was not similarly motivated to contest her testimony on that issue. His defense counsel may have strategically chosen to not challenge or dispute Jane Doe’s testimony as to her fear. Therefore, Scott did not have a full and fair opportunity to develop and litigate the issue in the criminal trial.
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Manina v. Manina Accordingly, we reverse the grant of partial summary judgment as to liability for civil assault.
2.3 Judgment Because the jury here returned a single, undifferentiated $4.5 million verdict on proximate causation and damages without separation or apportionment between the battery and assault claims, the damages award cannot stand as to battery alone. The judgment on damages is reversed.
CONCLUSIONS
We affirm the trial court’s grant of summary judgment to Roecks, who was acting as an arm of the court in the dissolution proceedings in her role as GAL and is, therefore, shielded by quasi-judicial immunity.
We affirm the trial court’s grant of partial summary as to Scott’s liability for battery. We reverse (1) the grant of partial summary judgment as to Scott’s liability for assault, and (2) the judgment entered based on the $4.5 million jury verdict as the jury did not separate or apportion damages between the battery and assault claims.
We remand for further proceedings. A new trial, limited to liability on the assault claim and the amount of any damages proximately caused by Scott for battery, assault, or both (should the jury find liability on assault), may proceed. During those proceedings, the parties may present evidence and argument on the specific intent and imminent
33
Manina v. Manina apprehension elements of assault, and any relevant parenting function or other defense. The jury must be instructed to return separate findings for battery and assault as to liability, proximate causation, and damages, so that any further appellate review can distinguish the damages attributable to each tort.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Murphy, J.
WE CONCUR:
Staab, C.J. Lawrence-Berrey, J.