BLACKLEDGE v. CITY OF TACOMA, 28777-3-II (Wash.App. 10-21-2003)

No. 28777-3-IIThe Court of Appeals of Washington, Division Two.
Filed: October 21, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 99-2-09757-8 Judgment or order under review Date filed: 04/08/2002

Counsel for Appellant(s), Charles D Williams, Attorney at Law, Bldg 10, 33515 10th Pl S, Federal Way, WA 98003.

Counsel for Respondent(s), Kari L Sand, Ofc Of The City Attorney, 747 Market St. Rm 1120, Tacoma, WA 98402-3766.

QUINN-BRINTNALL, A.C.J.

Phillip Blackledge sued the City of Tacoma and one of its police officers, Gurdial Garcha, for defamation. In a report dated August 19, 1996,[1] Garcha told the Department of Social and Health Services (DSHS) that on February 3, 1996, while investigating a report of domestic violence at the Blackledge home, he found numerous pornographic magazines strewn about the home where children entering the home may see them. DSHS terminated its respite care contract with Blackledge the following December. Finding a common-interest qualified privilege, the trial court granted Garcha and the City summary judgment and Blackledge appeals.

We hold that DSHS and law enforcement have a common interest and a qualified privilege to communicate information. But because there is a material issue of disputed fact as to whether Garcha abused this privilege, summary judgment was not appropriate and we reverse.

FACTS
Blackledge was a teacher of autistic children who had a contract with the DSHS Division of Developmental Disabilities (DDD) to provide respite care for autistic children.

On February 3, 1996, Tacoma police received a report of a possible domestic violence incident at Blackledge’s residence. Garcha was dispatched to conduct a welfare check.[2]

The facts of Garcha’s visit are disputed. Garcha stated that he arrived at Blackledge’s home and told Blackledge that a neighbor heard screaming from the house and was concerned for that unidentified individual. Garcha entered the house and found it to be `cluttered’ and `filthy.’ Clerk’s Papers (CP) at 52. Garcha stated that he discovered numerous hard-core pornographic magazines on Blackledge’s bed and on the floor of the bedroom and bathroom. Garcha also found several videotapes in the bedroom.[3]
Garcha did not find anyone in the house but he did see a developmentally disabled child in Blackledge’s car. The child was nonresponsive and Garcha was not able to communicate with him. Garcha thought the state of Blackledge’s home to be unusual, but because there was no evidence of criminal activity, he left the residence and did not write a report.

Blackledge’s version of the events of February 3 differs. Blackledge stated that he was caring for an autistic child and was checking his mail when the police arrived. The police told Blackledge that the neighbors called because they heard Blackledge’s wife screaming. Blackledge said that his wife was in Florida. Blackledge also told the officer that the screaming was from one of the children in his care and that such screams are not unusual in autistic children. According to Blackledge, the officer suggested that he tell the neighbors of his client’s screaming episodes, which Blackledge did later.

Blackledge said that the police searched his home without permission but denied that they had tried to talk with the child. Blackledge also disputed that Garcha could have seen pornographic materials in his home and stated that he only has National Geographic magazines.

A few weeks later DDD informed Blackledge that it was investigating him for an alleged domestic violence incident at his home. Blackledge was never informed of the investigation’s conclusions or findings. On August 8, 1996, Anita Delight,[4] a Developmental Disabilities and Field Services Administrator for Region 5 of the DDD, heard that police had investigated a domestic violence incident at the Blackledge residence and contacted Garcha. Delight told Garcha that they were investigating Blackledge but did not disclose the nature of the investigation. She asked Garcha to provide a written statement of his activities at the Blackledge residence on February 3, 1996.[5] Garcha complied with her request and on August 19, 1996, provided a report titled `Courtesy Info Report/Possible Child Abuse’ with Garcha’s account of the events, as outlined above. CP at 81.

Four months later, in December 1996, DSHS terminated Blackledge’s respite care contract. The contract was an at-will contract and DSHS did not provide a reason for the termination. In the spring of 1998, Blackledge sued DDD to enjoin the release of information to the Tacoma School District concerning the respite care contract. In February 1998, Delight emailed `ROLFELA’ (the acronym is not defined) and speculated that Blackledge was unaware of the `police report.’ In July 1999, Blackledge filed this defamation action against DSHS, Delight, the City, Garcha, and several others. The trial court found that the communication between Garcha and DSHS was privileged under the common interest qualified privilege and granted summary judgment to the City and Garcha in March 2001.[6] Blackledge appeals.

ANALYSIS
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437; Graff v. Allstate Ins. Co., 113 Wn. App. 799, 802, 54 P.3d 1266
(2002), review denied, 149 Wn.2d 1013 (2003). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1
(1986). After the moving party has met the initial burden by submitting adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party’s contentions and disclosing the existence of a material issue of fact. Graff, 113 Wn. App. 802. The trial court should grant a summary judgment motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.

Statute of Limitations

Although the trial court based the summary judgment on other grounds, Blackledge argues that the two-year statute of limitations does not bar his defamation claim. RCW 4.16.100.[7] On review of an order for summary judgment, we consider those issues and evidence brought to the attention of the trial court. RAP 9.12; Milligan v. Thompson, 110 Wn. App. 628, 633, 42 P.3d 418 (2002).[8] In its original answer and summary judgment motion, the City claimed that the statute of limitations barred the defamation claim. In its oral ruling, the trial court indicated that it was basing its grant of summary judgment on the common interest qualified privilege. But its summary judgment order stated that it considered the City’s original motion, which included the statute of limitations argument. Therefore, we address the statute of limitations claim.

A claim for defamation has a two-year limitations period. RCW 4.16.100(1); Milligan v. Thompson, 90 Wn. App. 586, 592, 953 P.2d 112
(1998). Garcha’s statement was made and communicated in August 1996, but the record, taken in a light most favorable to Blackledge, shows that Blackledge did not learn of the existence of the report until at least February 1998. Blackledge filed this action on July 26, 1999, less than two years later.

Under the discovery rule, an action accrues when the plaintiff discovers or reasonably should have discovered the facts that gave rise to the claim. Parkridge Assoc., Ltd. v. Ledcor Indus., Inc., 113 Wn. App. 592, 608, 54 P.3d 225 (2002). The discovery rule has been applied to cases involving professional malpractice, products liability, latent disease, and libel in the context of confidential business memoranda. Tyson v. Tyson, 107 Wn.2d 72, 82, 727 P.2d 226
(1986); Kittinger v. Boeing Co., 21 Wn. App. 484, 488, 585 P.2d 812
(1978). For purposes of this appeal, we assume that it applies to defamation actions, and we address whether there is a material question of fact as to whether the statute of limitations bars the claim. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 809, 818 P.2d 1362
(1991).

The City argued to the trial court that the statute of limitations bars Blackledge’s action but does not state when it believes the claim accrued. Blackledge claims it accrued when he discovered an email message from Delight in which she states that she `think[s] it possible that [Blackledge] . . . does not know about the police report.’ CP at 91. Blackledge’s complaint states that he found out from DDD that he was being investigated for the domestic violence incident ‘[w]ithin a matter of weeks’ of the actual incident: February 1996. CP at 3. Blackledge knew it was the Tacoma Police Department that had responded to the neighbor’s call and investigated on February 3, 1996. Moreover, with due diligence, although Blackledge might have discovered some facts essential to the DDD investigation at that time, he would not have been able to discover the report that is the gravaman of his legal claim because it did not exist at that time.

Therefore, the defamation claim did not accrue within a couple of weeks of February 3, 1996. Moreover, Garcha’s report was not written in response to his February investigation but was written several months later at the request of DSHS. DSHS terminated Blackledge’s respite care contract in December 1996, but it gave no reason and did not mention Garcha’s report. Blackledge did not have all the facts essential to his defamation claim until February 1998, and his claim was not time barred. See Douchette, 117 Wn.2d at 814.

Common Interest Qualified Privilege

We turn now to whether the City and Garcha were entitled to summary judgment on Blackledge’s defamation claim. To defeat a summary judgment motion in a defamation claim the plaintiff must demonstrate the existence of all four elements: `falsity, an unprivileged communication, fault, and damages.’ LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989). To avoid summary judgment, the plaintiff must raise a material issue of fact for each element. Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124
(1982). We review the facts in the light most favorable to the nonmoving party, Blackledge. LaMon, 112 Wn.2d at 197. The trial court purportedly granted summary judgment because Blackledge failed to establish the second element, that the communication between Garcha and DSHS was not privileged. The trial court ruled that Garcha and DSHS had a qualified privilege based on a common interest. In defamation cases, the standard of proof at trial also applies at summary judgment. Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 568, 27 P.3d 1208 (2001). Because the trial court based its decision on the second element, we therefore consider whether this was a privileged communication between Garcha and DDD based on the standard of proof at trial as outlined in Wood.

A privilege’s existence is a question of law. Wood, 107 Wn. App. at 568
(citing Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 742, 973 P.2d 1074 (1999)). Washington recognizes two types of privileges. The first is an absolute privilege, which absolves the defendant of liability for defamation but is generally limited to `cases in which the public service and administration of justice require complete immunity.’ Wood, 107 Wn. App. at 568 (quoting Bender v. City of Seattle, 99 Wn.2d 582, 600, 664 P.2d 492 (1983)). This privilege is not at issue here.

The second privilege is a qualified privilege. A qualified privilege based on a common interest arises if there is a common interest in the subject matter being communicated between the declarant and the recipient. Moe v. Wise, 97 Wn. App. 950, 957-58, 989 P.2d 1148
(1999), review denied, 140 Wn.2d 1025 (2000). The parties sharing the information need not be allied with each other, but they must share the common interest. Moe, 97 Wn. App. at 959. The privilege does not extend to the entire public. Owens v. Scott Publ’g Co., 46 Wn.2d 666, 674, 284 P.2d 296 (1955), cert. denied, 350 U.S. 968 (1956).

Garcha asserts that the common interest qualified privilege protects his communication with DSHS. Blackledge argues that Garcha’s interest in children is a societal interest and that applying the privilege in this situation improperly extends the privilege to the entire public.

But the common interest here is not the general societal interest to protect children. Rather, it is the interest of protecting children entrusted to a public agency or entity for their care. The City, Garcha, and Delight are public entities (or representatives of a public entity) who share the common interest of protecting the welfare of children entrusted to public care. Thus, we hold that the privilege properly applies. See also Moe, 97 Wn. App. at 962 (`Without this privilege, the potential of liability for defamation could interfere with the need for open and frank . . . communications.’). Although there may be individual differences between DSHS and Garcha’s interests, there is an overarching interest in ensuring that Blackledge, who brought children in his custody under a public respite care contract to his home, was not engaging in acts of domestic violence or child abuse. Accordingly, the communication between Garcha and DSHS was protected by the common interest privilege.

But a qualified privilege may be lost if the plaintiff demonstrates abuse of the privilege through clear and convincing evidence. Wood, 107 Wn. App. at 569 (citing Bender, 99 Wn.2d at 600-01). To demonstrate abuse, the plaintiff must show actual malice, which is that the speaker knew of the statement’s falsity or acted in reckless disregard for the falsity of the statement. Wood, 107 Wn. App. at 569-70 (citing Bender, 99 Wn.2d at 601-02). Proof of the statement’s falsity alone is not sufficient to overcome the privilege. Wood, 107 Wn. App. at 570. Thus, if Garcha gave information to DSHS that he knew to be false, the common interest privilege does not protect the communication.

Reviewing the evidence in the light most favorable to Blackledge (that he had only National Geographic magazines), a reasonable jury could find that Garcha abused the privilege by claiming to have seen numerous pornographic magazines strewn about if the only magazines present were National Geographic magazines. See Moe, 97 Wn. App. at 964 (finding the same standard of review for a directed verdict); see also Caulfield v. Kitsap County, 108 Wn. App. 242, 249, 29 P.3d 738 (2001) (no substantive difference in standard of review between summary judgment and directed verdict).[9] National Geographic magazines are easily identifiable and are not pornographic. See New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (court concerned that child pornography statute could reach National Geographic pictorials). To determine whether Garcha abused the privilege requires a determination as to whether Garcha saw National Geographic or pornographic magazines. This is a material issue of fact and requires a determination of who is telling the truth, Garcha or Blackledge. This credibility determination is a matter to be resolved by the trier of fact and precludes summary judgment.

Statutory Right to Nonconviction Data

The City asserts that DSHS was entitled to Garcha’s report under RCW 10.97, the Criminal Records Privacy Act. The merits of this claim rest on three issues. First, is DSHS a `juvenile justice agency?’ Second, if so, is DSHS entitled to nonconviction data? And third, is Garcha’s report `nonconviction data?’

‘[N]onconviction data may be disseminated by a criminal justice agency to another criminal justice agency for any purpose associated with the administration of criminal justice, or in connection with the employment of the subject of the record by a criminal justice or juvenile justice agency.’

RCW 10.97.050(3). RCW 13.50.010 defines `juvenile justice or care agency.’ `Juvenile justice or care agency’ means any of the following: Police, diversion units, court, prosecuting attorney, defense attorney, detention center, attorney general, the legislative children’s oversight committee, the office of family and children’s ombudsman, the department of social and health services and its contracting agencies, schools; persons or public or private agencies having children committed to their custody; and any placement oversight committee . . . RCW 13.50.010(1)(a) (emphasis added). Blackledge urges us to distinguish between `juvenile justice’ and `juvenile care’ agencies. But the statute does not make this distinction nor have previous cases separated the definitions. And we decline to do so here.

As a `juvenile justice agency,’ DSHS was entitled to request `nonconviction data’ held by police agencies. A juvenile justice agency may seek nonconviction data `in connection with the employment of the subject of the record by a criminal justice or juvenile justice agency.’ Br. of Respondent at 15 (citing RCW 10.97.050(3)) (emphasis omitted). Blackledge argues that he was not employed by DSHS because he was an independent contractor. But we do not read the phrase `in connection with the employment’ to refer to a hired person’s legal status. Rather the phrase refers to whether DSHS seeks to employ someone, in whatever capacity, to provide respite care to vulnerable autistic children for whom DSHS is responsible. Thus, the information was sought in connection with Blackledge’s contract for employment.

This leads to the third issue of whether Garcha’s report was `nonconviction data’ under RCW 10.97. Neither party briefed this issue or addressed it during oral argument.

`Nonconviction data’ is `all criminal history record information relating to an incident which has not led to a conviction or other disposition adverse to the subject, and for which proceedings are no longer actively pending.’ RCW 10.97.030(2) (emphasis added). `Criminal history record information’ is information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.

RCW 10.97.030(1). If Garcha had filed an incident report of his February 3 contact with Blackledge (and no prosecution followed) it would have been nonconviction data relating to a pre-charging investigation, and its dissemination would be governed by RCW 10.97. But Garcha provided DSHS with an oral and then written report of his observations and actions with Blackledge and only after Delight asked him to do so. Thus, the document was not a business record of a police investigation but was a voluntary witness statement given in a DSHS investigation and could have been written and submitted by anyone. The report was not intended to be presented to a prosecuting authority for review and the possible filing of charges, and thus does not clearly fall within the ambit of the Criminal Records Privacy Act. RCW 10.97.030(2); RCW 10.97.050(3). Because the viability of the qualified community of interest privilege requires the trier of fact to resolve the credibility issue between Garcha and Blackledge, summary judgment was not proper and we remand to the trial court for further proceedings.

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 pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG and SEINFELD, JJ., concur.