BASSANI v. GRANT CTY., 21110-0-III (Wash.App. 2-11-2003)

No. 21110-0-III.The Court of Appeals of Washington, Division Three. Panel Four.
Filed: February 11, 2003. UNPUBLISHED OPINION

Appeal from Superior Court of Kittitas County Docket No: 00-2-00276-1 Judgment or order under review Date filed: 05/02/2002.

Counsel for Appellant(s), Robert Morrill Boggs, Attorney at Law, P.O. Box 1689, Yakima, WA 98907-1689.

William Dalson Pickett, Attorney at Law, Pmb 286, 4001 Summitview Ave # 5, Yakima, WA 98908.

Jeanie R. Tolcacher, Attorney at Law, P.O. Box 1689, Yakima, WA 98907-1689.

Counsel for Respondent(s), Stanley Allen Bastian, Jeffers Danielson Sonn Aylward PS, 2600 Chester Kimm Rd, Wenatchee, WA 98801-8116.

Stephanie a Thies, Jeffers Danielson Sonn Aylward PS, 2600 Chester Kimm Rd, Wenatchee, WA 98801-8116.

KATO, A.C.J.

Alan Bassani brought suit against Grant County for malicious prosecution. The court dismissed the action on summary judgment. We affirm. Alan Bassani was a farmer in Grant County. One day, he noticed a large pile of empty beer bottles on the county right-of-way next to one of his fields. He picked up the bottles and took them to the Mattawa refuse site. He told the attendant that he had picked up the bottles from a county right-of-way. The attendant asked him to pay the $4.25 dumping fee. He refused. He left the site, but told the attendant where he could be contacted.

The attendant reported the incident to the Grant County Solid Waste Department. Grant County Deputy Sheriff Collin Hyer was dispatched to investigate. Mr. Bassani told Deputy Hyer he was concerned about the bottles getting picked up by harvesters and ending up in his crops. He also said he refused to pay the dumping fee because the bottles were on the county right-of-way. Deputy Hyer told Mr. Bassani he could be cited for third degree theft.

Deputy Hyer contacted the Director of Solid Waste, who wanted Mr. Bassani prosecuted. The deputy cited Mr. Bassani with third degree theft.

Mr. Bassani unsuccessfully tried to have the case dismissed. On the first day of trial, however, the State did dismiss the charge.

Mr. Bassani then filed this complaint for malicious prosecution. Claiming it had probable cause to prosecute Mr. Bassani, the County moved for summary judgment. The court granted the motion. This appeal follows.

We review orders of summary judgment by engaging in the same inquiry as the trial court, considering all evidence in the light most favorable to the nonmoving party. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). To maintain an action for malicious prosecution, a plaintiff must show: (1) the prosecution was instituted or continued by the defendants; (2) without probable cause; (3) with malice; (4) the proceedings were terminated in favor of the plaintiff; and (5) the plaintiff suffered injury as a result. Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993). `Although all elements must be proved, malice and want of probable cause constitute the gist of a malicious prosecution action. If probable cause is established, the action fails, for probable cause is a complete defense to an action for malicious prosecution.’ Id.

Probable cause exists when an officer has reasonable grounds to believe a suspect has committed or is committing a crime due to the surrounding circumstances. It is a reasonableness test, considering the time, place, and circumstances, and the officer’s special expertise in identifying criminal behavior. While probable cause is not a technical inquiry, there must be more than a bare suspicion of criminal activity. Probability, not a prima facie showing of criminal activity, is the standard for probable cause. McBride v. Walla Walla County, 95 Wn. App. 33, 38, 975 P.2d 1029
(citations omitted), review denied, 138 Wn.2d 1015 (1999).

Mr. Bassani was cited for third degree theft. RCW 9A.56.050 states in part that `[a] person is guilty of theft in the third degree if he or she commits theft of property or services which (a) does not exceed two hundred and fifty dollars in value.’ Theft is defined in RCW 9A.56.020(a):

To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services.

Mr. Bassani argues there was no probable cause to charge him with third degree theft because he lacked intent. But a person acts with intent when he acts with the objective or purpose to accomplish a result that constitutes a crime. RCW 9A.08.010(1)(a). Mr. Bassani took the bottles to the Mattawa refuse site where he intended to dispose of them. He did not intend to pay the $4.25 fee. This establishes the requisite intent. Probable cause therefore existed.

Mr. Bassani contends his actions did not constitute theft because he was disposing of garbage from a county right-of-way. RCW 47.40.090
requires the County to remove bottles along public rights-of-way. He thus claims he could not deprive the County of a service it was obligated to provide. But these factors merely establish a possible defense. See McBride, 95 Wn. App. at 40 (a defense is something that is asserted to make an otherwise unlawful act lawful). Whether a valid defense exists is a question of fact and does not vitiate probable cause. Id.

Mr. Bassani further claims that because the case against him was dismissed, the County lacked probable cause. Dismissing an action, however, is only a prima facie showing of the lack of probable cause. Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 498, 125 P.2d 681
(1942). If the defendant can present sufficient evidence that the arresting officer had probable cause, the plaintiff in a malicious prosecution action must affirmatively establish want of probable cause. Id. at 499. Although the charge against Mr. Bassani was dismissed, the uncontroverted evidence sufficiently established probable cause. The court properly dismissed the claim.

Affirmed.

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.

SWEENEY, J. and SCHULTHEIS, J., concur.