Lora Brawley, Appellant V. Leyla Rouhfar, Respondent
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LEYLA ROUHFAR and REZA,
FIROUZBAKHT, husband and wife, and )
the marital community thereof,
FILED: July 25, 2011
Lau, J. — After she was fired from her job as a nanny, Lora Brawley sued the
parents, alleging unpaid wages, breach of contract, and defamation claims. She
appeals the trial court’s summary judgment dismissal of her defamation claim premised
on absolute privilege under Washington’s anti-SLAPP1 statute (RCW 4.24.510) and the
qualified common interest privilege. Because the parents’ reports of alleged child
abuse to police and Child Protective Services (CPS) are absolutely privileged under
Strategic Lawsuit Against Public Participation.
RCW 4.24.510, the court properly dismissed this claim. But because material fact
issues remain on whether the parents abused the common interest privilege based on
statements to family members, healthcare providers, and school personnel, we reverse
the court’s grant of summary judgment on these claims. We affirm in part and reverse
in part. We also affirm the court’s fee award to Brawley and grant the parents’ fee
Viewing the facts and reasonable inferences most favorably to Brawley, the
record shows that in April 2008, Reza Firouzbakht and Leyla Rouhfar (the parents)
hired Lora Brawley as a temporary nanny for their son, AF, who was then two years
and six months old.2 The parents hired Brawley through a nanny placement agency
managed by Carrie Morris. In May, Brawley agreed to be AF’s permanent nanny. The
parties signed a contract that provided in part: “Either party upon 30 days written notice
may terminate this agreement and all obligations shall cease at the end of said 30-day
period. Parents may terminate Nanny at any time for just cause without notice.”
On August 4, when Brawley attempted to cash her paycheck, the “teller advised
that there were not enough funds available . . . .” Brawley asked and the parents
agreed to directly deposit the funds into her account. The next pay period, the bank
again refused to honor the parents’ check. When Brawley arrived at work, she told the
parents that she would no longer accept checks as payment. Afterwards, the parties’
AF was born on October 3, 2005.
relationship deteriorated. At an August 22 meeting, Rouhfar demanded that Brawley
apologize and Brawley refused.
On August 28, Brawley worked a full day. Towards the end of the day,
Firouzbakht terminated Brawley effective in one week. He explained to her that
Rouhfar’s mother would be available to care for AF. Brawley reminded Firouzbakht
that their contract required 30 days’ notice to terminate. When Brawley came to work
the next day, Rouhfar claimed Brawley was hostile towards her and AF. Rouhfar called
Firouzbakht and asked him to come home to relieve Brawley because she “was not
comfortable leaving [AF] in her care.” That was the last day that Brawley provided child
care for AF.
A few days later, on September 2, after Rouhfar told AF that Brawley would not
be returning, he allegedly said, “Nanny Lora hit me and pushed me on my tummy.”
Rouhfar called Firouzbakht’s voice mail and asked AF to repeat what he said. Brawley
disputes the voice mail transcript, maintaining that it says only “that [she] had pushed
him and held on, and pushed him in the tunnel.” Her declaration explained that this
statement must refer to pushing AF on a swing set and a slide with a tunnel. Neither
the tape nor the voice mail transcript appears in our record. That same day, Rouhfar
reported the allegations to police, who concluded the “case [did] not have enough
evidence to forward to Child Protective Services” and “no basis for further
investigations.” At police suggestion, Rouhfar took AF to his pediatrician and to a child
psychologist for evaluation. On September 4, Rouhfar reported the incident to CPS.
On September 5, Rouhfar contacted the director of AF’s preschool and “told her about
the alleged abuse and that Brawley was
not allowed to have any interaction with [AF] or pick him up from school.” Rouhfar also
discussed the alleged abuse with several family members who occasionally cared for
AF. Finally, on September 5, Rouhfar responded to an e-mailed reference check by
Brawley’s prospective employer by stating, “[N]ew information has been brought to our
attention by our son since her termination . . . I would strongly recommend we speak
before you offer her a position.”3
On October 8, 2008. Brawley sued the parents for damages, alleging unpaid
wages, breach of contract, and slander per se.4 She also sought to enjoin further
dissemination. Brawley’s slander claim did not specify to whom the parents made the
statements but sought damages for statements “published to others.” The parents
answered and counterclaimed, alleging assault, battery, and outrage based on
allegations that they witnessed Brawley physically and verbally abuse AF.5 They
pleaded affirmative defenses to the unpaid wage and slander per se claims but not the
RCW 4.24.510 immunity defense claim. The parents moved for partial summary
judgment, arguing that their statements to police and CPS were absolutely privileged
under Washington’s anti-SLAPP statute, RCW 4.24.510. They also argued qualified
common interest privilege for statements to family members, health care providers, and
school personnel. Brawley opposed the motion, arguing material questions of fact
Although Brawley includes this information in her factual recitation, she does
not assert an assignment of error relevant to it. And the trial court’s order does not
reference Rouhfar’s contact with the prospective employer.
We use the terms “slander” and “defamation” interchangeably.
The parents subsequently dismissed these counterclaims.
remained on the parents’ abuse of the privileges. She did not oppose the motion
based on the parents’ failure to plead RCW 4.24.510 as an affirmative defense.
During the summary judgment hearing, the trial court requested additional
briefing on the single issue of whether malice is a factual or legal question. Later, the
trial court granted partial summary judgment, ruling:
Plaintiff Brawley has failed to meet her burden of showing she can prove
the four prima facie elements of her defamation claim and that Defendants made
an unprivileged claim. Specifically, the court grants the motion on the basis that
the statements made to the police and Child Protective Services are privileged
and absolutely immune from liability under RCW 4.24.510. The statements
made to family members, health care providers, and school personnel are
privileged under a qualified common interest privilege. A qualified privilege may
be lost if it can be shown that the privilege was abused. It is Plaintiff’s burden to
demonstrate abuse of that privilege and a showing of actual malice will defeat a
conditional or qualified privilege which must be shown by clear and convincing
proof of knowledge or reckless disregard as to the falsity of the statement.
While the court agrees with Plaintiff that factual disputes regarding such should
be reserved for the jury, there is no evidence in the record that would allow the
court to conclude that there is a genuine issue of fact on this question. Plaintiff
has not provided the court with the necessary evidence to survive partial
summary judgment. In accordance with RCW 4.24.510 Defendants are entitled
to fees and statutory damages.
The parents moved for an award of attorney fees, costs, and statutory damages under
RCW 4.24.510.6 The trial court ordered a reduced fee award.
On February 4, 2010, Brawley accepted the parents’ CR 68 offer of judgment on
her wage and breach of contract claims to include a payment of costs and reasonable
attorney fees. Brawley then moved for an award of fees and costs, requesting $25,485
in fees and $1,306.68 in costs based on 107.25 hours. The parents objected on the
Brawley’s only assignment of error pertaining to the fees, costs, and statutory
damages award is premised on “[whether] the order granting summary judgment is
reversed on appeal.” Appellant’s Br. at 5.
basis that Brawley failed to provide adequate documentation for the hours worked and
because the fee request far exceeded the $2,000 wage claim recovery.
The court reduced the fee award to $5,000 based on 25 hours worked. The
court found that Brawley “should not be awarded fees for her defamation claim, her
breach of contract claim and time spent defending the Parent[s’] counterclaim” and that
there was no justification for the multiplier of 1.5 that Brawley sought. The court ruled:
3. Plaintiff Brawley has failed to support her claim of 107.25 hours
[because she] provide[ed] a total number of hours that she and others spent on
the case, but fail[ed] to give an explanation for how those hours were spent.
This is insufficient to support the number of hours claimed.
6. The amount at issue is a relevant consideration in determining the
reasonableness of the fee award. The wage dispute involved less than $2,000
in back-owed pay. In light of this, Brawley's claim for 107.25 hours for a total of
$25,500 in fees is unreasonable.
This appeal followed.
Brawley makes three principle arguments: (1) failure to plead RCW 4.24.510
constitutes waiver, (2) RCW 4.24.510 does not apply to her defamation claim, and
(3) abuse of the common interest privilege.
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 (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). We review the facts in the light most favorable to the nonmoving
party—Brawley. LaMon, 112 Wn.2d at
197. The trial court granted the parents’ partial summary judgment motion because
Brawley failed to establish the second element—the communications were not
privileged. The court ruled that the parents’ communications to police and CPS were
absolutely privileged under RCW 4.24.510 and the other communications were
qualifiedly privileged based on 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).
Brawley first argues that the parents waived their RCW 4.24.510 immunity
defense by failing to plead it as an affirmative defense in their answer under CR 8(c).
CR 8(c) requires parties to plead certain enumerated affirmative defenses “and any
other matter constituting an avoidance or affirmative defense” in the answer to a
pleading. Affirmative defenses that are not properly pleaded are generally deemed
waived. Rainier Nat'l Bank v. Lewis, 30 Wn. App. 419, 422, 635 P.2d 153 (1981).
Brawley’s waiver argument is based on a strict reading of CR 8(c). But our
Supreme Court explicitly endorsed a more flexible reading of the CR 8(c) requirement
in Mahoney v. Tingley, 85 Wn.2d 95, 529 P.2d 1068 (1975). There, the court explained
that because the underlying policy of CR 8(c) is to avoid surprise, “federal courts have
determined that the affirmative defense requirement is not absolute. Where a failure to
plead a defense affirmatively does not affect the substantial rights of the parties, the
noncompliance will be considered harmless.” Mahoney, 85 Wn.2d at 100 (citing
Tillman v. Nat'l City Bank, 118 F.2d 631, 635 (2nd Cir.1941)). Therefore, the court
reasoned, “objection to a failure to comply
with the rule is waived where there is written and oral argument to the court without
objection on the legal issues raised in connection with the defense.” Mahoney, 85
Wn.2d at 100.
In Bernsen v. Big Bend Electric Cooperative, Inc., 68 Wn. App. 427, 842 P.2d
1047 (1993), we affirmed the trial court's decision that the defense of failure to mitigate
had not been waived by the defendant even though it was not raised in the pleadings.
Bernsen, 68 Wn. App. at 434 (“[I]f the substantial rights of a party have not been
affected, noncompliance is considered harmless and the defense is not waived.”).
Likewise, in Hogan v. Sacred Heart Medical Center, 101 Wn. App. 43, 2 P.3d 968
(2000), we concluded that the defendant had not waived its ability to assert release as
an affirmative defense, despite failing to raise it in the pleadings. Hogan, 101 Wn. App.
at 54-55. Because the plaintiff demonstrated neither surprise nor prejudice from the
defendant's delay in asserting the defense, the court reasoned that “the failure to
affirmatively plead release did not affect substantial rights of [the plaintiff].” Hogan, 101
Wn. App. at 55.
Here, Brawley establishes neither surprise nor prejudice that affected any
substantial right. The parents’ motion for partial summary judgment argued that
“Defendants statements to police officers and Child Protective Services were privileged
under RCW 4.24.510.” (Capitalization omitted.) The record shows that Brawley’s brief
in response to summary judgment never argued waiver based on the parents’ CR 8(c)
pleading deficiency. Instead, she argued that RCW 4.24.510 did not apply because
the parents made the statements to authorities in bad faith. Over three weeks after the
summary judgment hearing, Brawley
argued waiver for the first time in a supplemental brief requested by the court on the
single issue of actual malice. We conclude Brawley’s waiver claim is untimely because
she raised it after the RCW 4.24.510 immunity issue was fully briefed and argued at the
summary judgment hearing without objection. Under Mahoney, Bernsen, and Hogan,
Brawley’s pleading deficiency claim fails.7
But Brawley asserts her supplemental brief argues waiver, therefore, it was
timely “called to the attention of the trial court.” CR 56(h). We disagree. Allowing
Brawley to raise a new issue in a supplemental brief deprives the parents of an
opportunity to respond and ignores the trial court’s directive to brief a single, narrow
question—actual malice. Nothing in CR 56(c), which governs summary judgment
proceedings, permits the nonmoving party (Brawley) to raise a new issue in a
supplemental brief that could have been raised earlier in her response materials.
Brawley waived her argument that RCW 4.24.510 is an affirmative defense that must
RCW 4.24.510 Immunity
Brawley next argues that her lawsuit is not a SLAPP. But the parties disagree
on whether Brawley raises this claim for the first time on appeal. Our review of the
record shows Brawley never raised this claim in her response brief or at oral argument
on summary judgment. Even assuming Brawley properly raised it below, the claim
fails. The anti-SLAPP statute, RCW 4.24.510, grants immunity to a person who
Given our disposition on Brawley’s waiver claim, we do not address the
parents’ contention that immunity under RCW 4.24.510 is not an affirmative defense.
“(1) ‘communicates a complaint or information to any branch or agency of federal, state,
or local government, or to any self-regulatory organization,’ and (2) the complaint is
based on any matter ‘reasonably of concern to that agency.’” Bailey v. State, 147 Wn.
App. 251, 261, 191 P.3d 1285 (2008) (quoting RCW 4.24.510). The statute provides:
A person who communicates a complaint or information to any branch or agency
of federal, state, or local government, or to any self-regulatory organization that
regulates persons involved in the securities or futures business and that has
been delegated authority by a federal, state, or local government agency and is
subject to oversight by the delegating agency, 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. A person
prevailing upon the defense provided for in this section is entitled to recover
expenses and reasonable attorneys' fees incurred in establishing the defense
and in addition shall receive statutory damages of ten thousand dollars.
Statutory damages may be denied if the court finds that the complaint or
information was communicated in bad faith.
RCW 4.24.510. The parents’ reports to local police and state CPA satisfy the plain
language of the statute because (1) they communicated a complaint to their local
police and state CPS and (2) a child abuse complaint is reasonably of concern to
those government agencies. Therefore, the parents’ reports fall within the scope of
RCW 4.24.510. “The purpose of the statute is to protect citizens who provide
information to government agencies by providing a defense for retaliatory lawsuits.”
Valdez-Zontek v. Eastmont Sch. Dist., 154 Wn. App. 147, 167, 225 P.3d 339 (2010).
Brawley next maintains that her lawsuit “is no SLAPP” and that RCW 4.24.510
does not apply as a matter of law because she did not know about the police and CPS
reports until after filing suit. Appellant’s Br. at 28. Therefore, no retaliatory motive
prompted her defamation claim against the parents.
The parents counter, “Whether Brawley knew about the statements to police or
CPS when she filed her lawsuit is irrelevant because Brawley clearly intended to hold[ ]
the Parents accountable for their statements to police and CPS in her slander claim,
contrary to RCW 4.24.510.” Resp’t’s Br. at 13. We agree that Brawley’s litigation
conduct below shows she intended to include police and CPA reports in her defamation
claim. For example, the parents moved for summary judgment premised in part on
RCW 4.24.510—“The Parents’ statements to the police and Child Protective Services
are absolutely immune from liability under RCW 4.24.510.” Rather than informing the
trial court that her defamation claim did not include any statements to government
agencies, the record shows Brawley repeatedly argued these statements were made in
And after the parents filed their summary judgment motion, Brawley did not seek
the court’s permission or the parents’ consent under CR 15(a) to amend her complaint
to make clear that her defamation allegations did not include reports to government
agencies.9 And as discussed above, Brawley’s RCW 4.24.510 waiver objection fails.
Brawley’s argument that RCW 4.24.510 immunity requires a showing of
Brawley’s broadly worded complaint alleged defamatory statements “were
published to others.” Neither the summary judgment record nor her appellant briefs
make clear that she never intended to hold the parents accountable for their reports to
police and CPS.
Under CR 15(a), pleadings may be amended only by leave of court or with the
written consent of the adverse party. Absent actual prejudice to the adverse party,
amendments should be freely granted. Olson v. Roberts & Schaeffer Co., 25 Wn. App.
225, 607 P.29 319 (1980).
retaliatory motivation by a defamation plaintiff is not supported by any controlling or
persuasive authority. RCW 4.24.510’s plain language contains no retaliation motive
requirement. We decline to read this requirement into the statute absent a clear
expression of legislative intent. Courts may not read into a statute matters that are not
in it. Progressive Animal Welfare Soc’y. v. Univ. of Wash., 114 Wn.2d 677, 688, 790
P.2d 604 (1990). We conclude the trial court properly dismissed Brawley’s defamation
claims premised on reports to police and CPS.10
Common Interest Privilege11
Brawley next argues that the trial court improperly dismissed her defamation
claims based on the statements to family members, health care providers, and school
personnel because material issues of fact remain on whether the common interest
We requested supplemental briefs on the relationship, if any, between RCW
4.24.510 and RCW 26.44.060. These briefs shed no new light on the central issues on
appeal. RCW 26.44.060 makes it a criminal misdemeanor for any person “intentionally
and in bad faith, knowingly makes a false report of alleged abuse or neglect.” And
although RCW 26.44.060 grants immunity to a “good faith” reporter, the legislature
amended RCW 4.24.510 in 2002 to eliminate a good faith requirement. This amended
legislation also provides: “A person prevailing upon the defense . . . is entitled to
recover expenses and reasonable attorneys’ fees . . . and shall receive statutory
damages of ten thousand dollars. Statutory damages may be denied if the court finds
that the complaint or information was communicated in bad faith.” (Emphasis added.)
We decline to address any alleged defamatory statements made to nanny
agency manager Carrie Morris and prospective employer Kathleen Proctor because the
parents’ partial summary judgment and the trial court’s order granting summary
judgment encompassed statements made only to the police, CPS, family members,
health care providers, and school personnel.
privilege was lost when the parents abused it. 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). 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).
While the qualified privilege generally protects a speaker from liability for
statements that might otherwise be considered defamatory, the privilege is lost if the
plaintiff can show by clear and convincing evidence that it was abused. Bender v. City
of Seattle, 99 Wn.2d 582, 600-01, 664 P.2d 492 (1983). A plaintiff can establish abuse
of the qualified privilege if the defendant
(1) knows the matter to be false or acts in reckless disregard as to its truth or
falsity, (2) does not act for the purpose of protecting the interest that is the
reason for the existence of the privilege, (3) knowingly publishes the matter to a
person to whom its publication is not otherwise privileged, (4) does not
reasonably believe the matter to be necessary to accomplish the purpose for
which the privilege is given, or (5) publishes unprivileged as well as privileged
Moe, 97 Wn. App. at 963 (citations omitted).
To demonstrate abuse, the plaintiff must show actual malice, which is a false
statement made with either actual knowledge of its falsity or reckless disregard for its
truth or falsity. Herron v. KING Broadcasting Co., 112 Wn.2d 762, 775, 776 P.2d 98
(1989). “Actual malice must be shown by clear and convincing proof of knowledge or
reckless disregard as to the falsity of a statement.” Momah v. Bharti, 144 Wn. App.
731, 742, 182 P.3d 455 (2008) see also
Herron, 112 Wn.2d at 768 (“The plaintiff responding to a motion for summary judgment
in a defamation case must show that the jury could decide in his favor while applying
the clear and convincing evidence standard.”); Richmond v. Thompson, 130 Wn.2d
368, 386, 922 P.2d 1343 (1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)) (“[W]e conclude that the determination
of whether a given factual dispute requires submission to a jury must be guided by the
substantive evidentiary standards that apply to that case.”); Mark v. Seattle Times, 96
Wn.2d 473, 487, 635 P.2d 1081 (1981) (holding that “a defamation plaintiff resisting a
defense motion for summary judgment must establish a prima facie case by evidence of
The actual malice standard is subjective and focuses on the declarant's belief in
or attitude toward the truth of the statement at issue. Story v. Shelter Bay Co., 52 Wn.
App. 334, 343, 760 P.2d 368 (1988). Proof of the statement's falsity alone is not
sufficient to overcome the privilege. Wood, 107 Wn. App. at 570. “‘“Reckless
disregard” means (1) a “high degree of awareness of . . . probable falsity” or (2) that the
defendant “in fact entertained serious doubts” as to the statement's truth.’” Story, 52
Wn. App. at 344 (quoting Herron v. King Broadcasting Co., 109 Wn.2d 514, 523, 746
P.2d 295 (1987)). “Failure to investigate is not sufficient to prove recklessness.”
Herron v. KING Broadcasting Co., 112 Wn. 2d 762, 777, 776 P.2d 98 (1989); see also
Moe, 97 Wn. App. at 965-66.
[While a] private figure defamation plaintiff need prove only the defendant's
negligence by a preponderance of the evidence to establish a prima facie case
of defamation . . . . once the defendant establishes a qualified privilege, to prove
the abuse of that privilege even a private figure plaintiff must satisfy the higher
clear and convincing standard otherwise applied only to public figure plaintiffs.
Moe, 97 Wn. App. at 963. “Whether an abuse has occurred is ordinarily a jury question
‘unless the facts are such that only one conclusion can reasonably be drawn.’” Alpine
Indus. Computers, Inc. v. Cowles Publ’g Co., 114 Wn. App. 371, 382, 57 P.3d 1178, 64
P.3d 49 (2002) (quoting Restatement (Second) of Torts § 619(2) cmt. b); see also Moe,
97 Wn. App. at 962.
Viewing all the evidence and reasonable inferences most favorably to Brawley,
reasonable minds could differ on the factual question of actual malice. The parents’
credibility is central.
[W]here material facts [as here] are particularly within the knowledge of
the moving party, courts have been reluctant to grant summary judgment. In
such cases, “it is advisable that the cause proceed to trial in order that the
opponent may be allowed to disprove such facts by cross-examination and by
the demeanor of the moving party while testifying.”
Riley v. Andrew, 107 Wn. App. 391, 395, 27 P.3d 618 (2001) (citation omitted) (internal
quotation marks omitted) (quoting Mich. Nat’l Bank v. Olson, 44 Wn. App. 898, 905,
723 P.2d 438 (1986). Our review of the record shows overwhelming evidence of the
parents’ animus towards Brawley. In Momah, 144 Wn. App. at 750-51, we explained
the relevance of motive evidence to establish “actual malice” in a defamation case.
Abuse of privilege requires clear and convincing evidence of actual malice.
Since Momah would then need to show Bharti’s malice in making the statements,
Brawley argues that the trial court improperly determined “Brawley was a
public figure because it required her to show actual malice to defeat the Rouhfars'
immunity defense.” Appellant’s Br. at 25. But the trial court granted summary
judgment on privilege grounds and, as noted here, even a private plaintiff must show
actual malice to establish abuse of the common interest privilege.
proof of a motive for making false statements would have a “tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
ER 401. As a result, the web site information may tend to show a motive for selfpromotion and may be relevant to malice. The trial court erred in excluding the
On August 16, 2008, after two of their checks were returned for insufficient
funds, Brawley told the parents that she would no longer accept checks from them.
Brawley repeated this demand on August 22 during a meeting with Rouhfar. According
to Brawley “Leyla became very agitated and angry, and reiterated that I knew that they
had the money and that it ‘wasn’t their fault.’ She demanded an apology.” Brawley
refused. On August 28, Firouzbakht informed Brawley he was terminating her effective
in one week. When she insisted on 30 days’ notice, Firouzbakht’s attitude, according
to Brawley, “changed . . . . [i]t was clear that he was very angry with me at the end of
And Carrie Morris, manager of the nanny agency that placed Brawley with the
parents, testified that the parents were “very upset and disappointed” with Brawley’s
tone over the bounced checks issue. She further described the relationship between
Brawley and the parents as “so much friction” and “definitely friction.”
The mother’s summary judgment declaration described that Brawley “exhibited
problematic behavior,” “hostile attitude,” and refused to “follow direct orders I gave
The father’s September 1, 2008 e-mail to Brawley, which he sent one day before
the child’s alleged abuse disclosure, further demonstrates this level of animus.
There is a more serious issue of which I need to make you aware. I
understand when you and Leyla spoke on September 22, 2008, Leyla
communicated our concerns regarding your recent emotional outburst directed
at me and Leyla. Regardless of the context, we find your outbursts to be
disrespectful and unprofessional. However, your latest outburst on Friday
morning of August 29th, 2008—which occurred in front of [AF] and was directed
at him—was completely unacceptable, abusive and grounds for immediate
dismissal for cause. Leyla was so distraught that she asked me to return home
to relieve you immediately.
A month later, the parents’ attorney wrote to Brawley:
Investigations by this office and by the Firouzbakht’s themselves indicate that
your client routinely and without thought or care battered and assaulted [AF].
You should also be aware that this office contacted both the Redmond
police department and the Prosecutors office to pursue this matter fully. We
expect that their office will move quickly and swiftly to criminally prosecute your
The parents’ attorney then filed a November 2008 answer and counterclaim,
alleging that the parents “witnessed the verbal and physical abuse of their child” by
Brawley.13 The record demonstrates that more than one year later in January 2010, the
parents’ attorney withdrew the portion of their counterclaim that they witnessed physical
abuse of their son. The parents’ withdrawal excused this allegation premised on
“incorrectly drafted” pleadings that “the parents failed to catch the error when they
reviewed and approved the counterclaims.” This revelation was made by a footnote in
the parents’ supplemental brief on actual malice, unsupported by the parents’
declaration and weeks after the summary judgment hearing. Although the parents
argue this evidence is irrelevant on the question of actual malice, we disagree. That
The parents’ former attorney drafted the letter, answer, and counterclaim.
the parents made unsubstantiated claims about witnessing Brawley’s alleged routine
physical assault on AF bears on the parents’ credibility, motive, and subjective state of
mind. An admission in a pleading is treated like any other admission and may be
introduced as evidence. 5B Karl B. Tegland, Washington Practice: Evidence
§ 801.53, at 426 (5th ed. 2007).
The record also indicates a material conflict between the parents’ description of
what AF told them and what he said in the recorded voice mail message. The parents
testified that AF revealed that “‘Nanny Lora hit me and pushed me on my tummy.’ I
called [the father’s] voice mail and asked [AF] to repeat what he told me.” According to
Brawley, who reviewed the voice mail message transcript, “that [AF] actually stated that
I had pushed him in the tunnel. This would have been an accurate reporting of a time
in the park when I pushed him on the swings, and pushed him down the slide, and
through a tunnel at the end of the slide.” Notably, the mother’s response declaration
does not challenge Brawley’s account of the voice mail message transcript. Neither the
taped voice mail message nor transcript is in our record.
The mother’s testimony on this issue states:
4. I have reviewed the tape identified as Exhibit A to the declaration of
Reza Firouzbakht and the transcript identified as Exhibit B and compared them
to the events on September 2, 2008.
5. The tape accurately portrays the phone call [AF] and I made to Mr.
Firouzbakht’s voice mail.
Finally, neither the police nor CPS investigated the parents’ allegation given
their bare assertions.
We conclude that when the facts and inferences here are viewed most favorably
to Brawley, reasonable minds could differ
on whether the parents abused and therefore lost any common interest privilege.14
Reasonableness of Attorney Fee Award
After the court dismissed the slander per se claim on summary judgment, the
parents made the following CR 68 offer of judgment related to unpaid wages, breach of
contract, and injunctive relief, which Brawley accepted.
The amount of $3,780.00 (based on Plaintiff’s claim that that [sic] the total
amount of wages owed is $1,890 and that she is entitled to statutory
enhancements under RCW 49.52.070),
12 percent interest from August 29, 2008 until February 3, 2010,
calculated to be $649.95,
costs of suit, and
a reasonable sum for attorney’s fees incurred in prosecuting Plaintiff’s
wage claim, pursuant to RCW 49.48.030 and 49.52.070, in an amount to be
determined by the Court.
Brawley then requested fees of $25,485 and costs of $1,306.68, based on 107 hours of
work performed by two attorneys, a paralegal, and an office manager. She also sought
a 1.5 multiplier based on the contingent fee agreement with her attorney.
Brawley also argues that “the trial court improperly determined the Rouhfars
were protected by the common interest privilege where they did not have an
organizational or business relationship with the recipients of their communications.”
Appellant’s Br. at 30. Relying on Moe, Brawley maintains that the privilege “generally
applies to organizations, partnerships and associations.” Appellant’s Br. at 30. But as
the parents correctly note, that case held only that the privilege was “available
generally for persons involved in the same organizations, partnerships, associations, or
enterprises.” Moe, 97 Wn. App. at 958. And subsequent case law has applied the
common interest privilege to the nonorganizational context. See, e.g., Hitter v.
Bellevue Sch. Dist. No. 405, 66 Wn. App. 391, 401, 832 P.2d 130 (1992) (common
interest protected communications between principal and parent); Kauzlarich v.
Yarbrough, 105 Wn. App. 632, 643, 20 P.3d 946 (2001) (recognizing privilege where
statements were made to protect the safety of a client, court personnel, and the public).
Brawley does not respond to this argument in her reply brief.
Brawley contends that “The trial court abused its discretion by limiting Brawley's
fee award on the basis that her request far exceeded the wages recovered.”
Appellant’s Br. at 34. The parents counter that the court was within its discretion
because “The amount at issue is a relevant consideration in determining the
reasonableness of the fee award” and because Brawley failed to “segregate time spent
on non-wage claims, . . . fail[ed] to justify a multiplier and . . . fail[ed] to provide an
adequate accounting.” Br. of Respondent at 26-28. The parties agree that because
Brawley prevailed on her wage dispute only, RCW 49.48.030 and 49.52.070 entitle her
to an award of reasonable fees.
Generally, the reasonableness of attorney fees is a factual question and the trial
court has broad discretion in fixing attorney fees. Schmidt v. Cornerstone Invs., Inc.,
115 Wn.2d 148, 169, 795 P.2d 1143 (1990). The trial court's attorney fee award will
not be overturned absent a manifest abuse of discretion. Mahler v. Szucs, 135 Wn.2d
398, 435, 957 P.2d 632 (1998). A trial court abuses its discretion if the decision is
manifestly unreasonable or based on untenable grounds. Mayer v. Sto Indus., Inc.,
156 Wn.2d 677, 684, 132 P.3d 115 (2006). Courts should be guided in calculating fee
awards by the lodestar method in determining an award of attorney fees and costs.
Mahler, 135 Wn.2d at 433. The lodestar fee is calculated by multiplying a reasonable
hourly rate by the number of hours reasonably expended and should exclude wasteful
or duplicative hours and any hours spent on unsuccessful claims or theories. Mahler,
135 Wn.2d at 434. The party requesting fees bears the burden of proving the
reasonableness of the fees. Mahler, 135 Wn.2d at 433-34.
The attorney seeking fees must
provide “reasonable documentation of work performed to calculate the number of hours
. . . .” Wash. State Physicians Ins. Exch. & Assn. v. Fisons Corp., 122 Wn.2d 299, 335,
858 P.2d 1054 (1993). The court in Mahler stated that in determining the lodestar
amount, the attorney requesting fees must provide “contemporaneous records
documenting the hours worked.” Mahler, 135 Wn.2d at 434. Documentation of hours
need not be exhaustive or in minute detail, “‘but must inform the court, in addition to the
number of hours worked, of the type of work performed, and the category of attorney
who performed the work (i.e., senior partner, associate, etc.).’” Mahler, 135 Wn.2d at
434 (quoting Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193
Relying on Mahler, Brawley argues that the trial court abused its discretion by
reducing the fee award based on the small amount of the wage recovery. In Mahler,
the court noted, “We will not overturn a large attorney fee award in civil litigation merely
because the amount at stake in the case is small.” Mahler, 135 Wn.2d at 433. But it
also reasoned “the amount of the recovery, while a relevant consideration in
determining the reasonableness of the fee award, is not a conclusive factor.” Mahler,
135 Wn.2d at 433. Consistent with Mahler, the trial court ruled, “The amount at issue is
a relevant consideration in determining the reasonableness of the fee award. The
wage dispute involved less than $2,000 in back owed pay. In light of this, Brawley's
claim for 107.25 hours for a total of $25,500 in fees is unreasonable.”
The record shows that the trial court properly considered the amount of the
recovery as a relevant, but not conclusive factor. Unchallenged finding of fact 3
provides, “Plaintiff Brawley has failed to
support her claim of 107.25 hours [because she] provide[ed] a total number of hours
that she and others spent on the case, but fail[ed] to give an explanation for how those
hours were spent. This is insufficient to support the number of hours claimed.”
Brawley’s fee request documented the total number of hours worked by each member
of her attorney’s office, without explaining how those hours were spent. And she
provided no documentation on “the type of work performed, and the category of
attorney who performed the work (i.e., senior partner, associate, etc.)”15 Mahler, 135
Wn.2d at 434 (quoting Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675
P.2d 193 (1983)).
Although this documentation need not be exhaustive or in minute detail, it must
inform the court’s discretionary award of fees. The record here shows no time records
or segregation of the time spent and costs expended on the wage claim from the
“If attorney fees are recoverable for only some of a party’s claims, the award
must properly reflect a segregation of the time spent on issues for which fees are
authorized from time spent on other issues.” This is true, even if the claims
overlap or are interrelated. An exception exists, however, if “no reasonable
segregation . . . can be made.” The burden of segregating, like the burden of
showing reasonableness over all, rests on the one claiming such fees.
Loeffelholz v. C.L.E.A.N., 119 Wn. App. 665, 690, 82 P.3d 1199 (2004) (footnotes
omitted) (internal quotation marks omitted) (quoting Mayer v. City of Seattle, 102 Wn.
App. 66, 79-80, 10 P.3d 408 (2000) and Travis v. Wash. Horse Breeders Ass’n, 111
Brawley’s request does differentiate between attorney and nonattorney hours
and shows time for two different attorneys at different hourly rates.
Wn.2d 396, 411, 759 P.2d 418 (1988)). We conclude the court’s reduced fee award to
Brawley was proper.
Attorney Fees on Appeal
Both parties request attorney fees on appeal. Brawley requests fees premised
on RCW 49.48.030 and 49.52.070. Those sections apply to wage claims. Because on
appeal Brawley prevailed on no wage claim, statutory fees are unwarranted.
Since the parents prevailed on their RCW 4.24.51016 defense, they are entitled
to fees related to this issue incurred on appeal. RAP 18.1.
Sealed Medical Records
Finally, the parents “request an order from this Court striking the improper
designation of the child’s medical records as part of the appeal record and sanctions
against Brawley for improperly designating these records.” Resp’t’s Br. at 2-3. The
trial court ordered these records sealed below. Because those records remain sealed
in the appellate court under GR 1.5, we deny the parents’ request to strike and for
Based on the reasons discussed above, we affirm the trial court’s summary
judgment dismissal of Brawley’s defamation allegations premised on statements to
police and CPS. As to the statements to family members, health care providers, and
school personnel, we reverse and remand for proceedings consistent with this opinion.
This section provides, “A person prevailing upon the defense provided for in
this section is entitled to recover expenses and reasonable attorneys' fees incurred in
establishing the defense . . . .”
And we affirm the trial court’s fee award to Brawley and grant the parents’ fee request
on appeal. RAP 18.1.