Motion to Strike Counterclaims Under Washington's Anti-SLAPP Statute

7/31/2019 Motion to Strike Counterclaims Under Washington's Anti-SLAPP Statute

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COUNTERCLAIM DEFENDANTSSPECIAL MOTION TO STRIKE - 1

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Civil Motions JudgeCivil Motions Calendar

Date: Friday, September 28, 2012Time: 9:30 a.m.

SUPERIOR COURT OF THE STATE OF WASHINGTON

SNOHOMISH COUNTY

MONICA EDWARDS, an individual,

Plaintiff,

vs.

ANDRU EDWARDS, an individual, andGEAR LIVE MEDIA, LLC, a Washingtonlimited liability company,

Defendants.

NO. 12-2-06073-6

CLERKS ACTION REQUIRED

COUNTERCLAIM DEFENDANT

MONICA EDWARDS SPECIAL

MOTION TO STRIKE PURSUANT TO

WASHINGTONS ANTI-SLAPP

STATUTE, RCW 4.24.525

GEAR LIVE MEDIA, LLC, Washington

limited liability company,

Counterclaim Plaintiff,

vs.

MONICA EDWARDS, an individual,

Counterclaim Defendant.


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I. INTRODUCTION

Gear Live Media, LLC (Gear Live) has asserted a tortious interference counterclaim

against Monica Edwards premised entirely on statements Ms. Edwards made in an effort to

obtain information from, and encourage participation by, a potential witness in dissolution

proceedings between Ms. Edwards and Andru Edwards, the sole owner of Gear Live. In

essence, Gear Live seeks to punish Ms. Edwards for trying to obtain information relevant to the

dissolution proceedingsinformation to which she is clearly entitled under the applicable rules.

Because Ms. Edwards statements were made in connection with an issue under consideration or

review by a judicial proceeding and intended to encourage the submission of information

relevant to an ongoing judicial proceeding, Gear Lives counterclaim falls under Washingtons

anti-SLAPP statute, RCW 4.24.525. Therefore, Gear Lives counterclaim may only move

forward if Gear Live can establish by clear and convincing evidence that it has a probability of

prevailing on its counterclaim. Gear Live cannot make that showing. Ms. Edwards respectfully

requests that the Court strike Gear Lives counterclaim and grant her the statutorily mandated

relief, which includes a statutory penalty and her reasonable attorneys fees incurred in bringing

this Motion.

II. FACTUAL BACKGROUND

A. The Edwards Marriage and Dissolution

Ms. Edwards and Andru Edwards were married from 2002 to 2011. (Declaration of

Monica Edwards submitted in support of the Motion (Edwards Decl.), 1.) From 2004 to

2011, Ms. Edwards and Andru Edwards were co-owners of Gear Live, which operates, among

other things, the Gear Live website (the Gear Live Site). (Edwards Decl., 1.) Ms. Edwards

and Andru Edwards separated in 2010, and in 2011 ultimately sought, and were granted, a

marital dissolution from this Court. (Edwards Decl., 2.) The parties entered into a property

settlement agreement (the Settlement Agreement) pursuant to which Andru Edwards was

granted sole ownership of Gear Live, but became obligated to make certain child support and


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maintenance payments to Ms. Edwards. (Edwards Decl., 2.)

B. Ongoing Proceedings Relating to Maintenance Payments and Ms. EdwardsEfforts to Obtain Information from Federated Media

Ms. Edwards and Andru Edwards engaged in contentious proceedings in family court

regarding the appropriate level of maintenance and support payments Andru Edwards would

have to pay to Ms. Edwards. (Edwards Decl., 3.) In or about September 2011, Andru Edwards

filed a request for modification seeking a reduction of his monthly maintenance payment

amount. Andru Edwards argued in his filing that a material reduction in Gear Lives advertising

revenue received from Federated Media Publishing (Federated Media), a company that

procured advertising for the Gear Live Site, warranted a reduction in his maintenance payments.

(Edwards Decl., 4.) Ms. Edwards contested Andru Edwards position, believing that Federated

Media had notified Gear Live that it was reducing its advertising payments to Gear Live priorto

execution of the Settlement Agreement. (Edwards Decl., 4.) Andru Edwards nevertheless took

the position in family court that he was entitled to a reduction in maintenance payments because

he was unaware of the possibility of decreased advertising revenue from Federated Media at the

time he executed the Settlement Agreement. (Edwards Decl., 4; 12; Ex. C, p. 6.)

Ms. Edwards decided to contact Federated Media to attempt to verify the propriety of the

statements Andru Edwards made in family court. (Edwards Decl., 6.) On September 6, 2011,

Ms. Edwards contacted Federated Media through a contact form available on Federated Medias

website, provided her email address, and explained that she wished to verify certain statements

made by Andru Edwards in connection with the maintenance proceedings. (Edwards Decl., 6.)

That same day, Jonas Halpren of Federated Media responded, provided his contact information,

and invited Ms. Edwards to contact him directly. (Edwards Decl., 6.)

Shortly thereafter, Andru Edwards became aware that Ms. Edwards had contacted

Federated Media. (Edwards Decl., 7.) Upon learning of this, Andru Edwards shut down Ms.

Edwards Gear Live email account. He then contacted Ms. Edwards, and voiced his objection to


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her contacting Federated Media. (Edwards Decl., 7.) Ms. Edwards alleges that, in addition to

depriving Ms. Edwards of access to her email account, Andru Edwards read and accessed her

private emails. (Edwards Decl., 7.) These allegations form the basis upon which Ms. Edwards

filed this lawsuit. (Edwards Decl., 7.) The allegations were also pertinent to the family law

proceeding, where Ms. Edwards contended that Andru Edwards should not be allowed to present

evidence that she could not rebut due to having been locked out of her email account by Andru

Edwards. (Edwards Decl., 7.)

On November 28, 2011, Ms. Edwards contacted Mr. Halpren directly, from an email

account other than the Gear Live account to which her access had been cut-off. (Edwards Decl.,

8.) Ms. Edwards made clear in the email to Mr. Halpren that she had no business motives for

contacting Federated Media, and that she was contacting it solely for the purpose of determining

the veracity of the statements Andru Edwards had made in family court. (Edwards Decl., 8.)

She further advised Mr. Halpren that Federated Media could execute a declaration that could

then be submitted for consideration in the family law proceeding. (Edwards Decl., 8.) She

also raised the possibility of subpoenaing this information from Federated Media if necessary.

(Edwards Decl., 8.) In any event, her motivation for contacting Federated Media was clear

she sought Federated Media to provide her with information and/or provide testimony that was

relevant to the ongoing family law matter involving Andru Edwards. (Edwards Decl., 8, 10.)

At no time during her communications with Federated Media did Ms. Edwards utilize any of

Gear Lives confidential information. (Edwards Decl., 9.)

It would have been contrary to Ms. Edwards interests for Federated Media to terminate

its agreement with Gear Live because the termination would result in a reduction in Andru

Edwards income, and thus a corresponding reduction in the amount of the maintenance

payments Ms. Edwards could expect to receive. (Edwards Decl., 11.) Ms. Edwards did not

take any actions intended to cause such a result. (Edwards Decl., 11.)

The termination letter provided to Gear Live by Federated Media supports the position


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that Federated Media terminated the relationship with Gear Live because of business terms, not

because of Ms. Edwards communications with Federated Media. (Edwards Decl., 12.)1 It

contains no mention whatsoever of Ms. Edwards. (Edwards Decl., 13.) Additionally, one of

Andru Edwards own declarations, filed in the family court proceeding, also shows that the

reason for the termination was related to the business terms of the relationship. (Edwards Decl.,

13; Ex. E, p. 2.)

III. ISSUES PRESENTED

1. Whether Washingtons anti-SLAPP statute applies to Gear Lives counterclaim.

2. Whether Gear Lives counterclaim must be dismissed due to Gear Lives inability to

showby clear and convincing evidence that it has a probability of prevailing on itscounterclaim.

IV. ARGUMENT & AUTHORITY

The current version of Washingtons anti-SLAPP statute, RCW 4.24.525, was passed in

2010, to curb lawsuits brought primarily to chill the valid exercise of the constitutional rights of

freedom of speech and petition, commonly referred to as Strategic Lawsuits Against Public

Participation or SLAPP lawsuits. See S.B. 6396, 61st Leg., 2010 Reg. Sess. (Wash. 2012).

While such lawsuits may ultimately be dismissed as groundless, the legislature enacted the

protections of the anti-SLAPP statute to prevent groundless claims from deterring the exercise of

SLAPP-defendants constitutional rights by requiring such defendants expend fees and resources

when claims against them are based on conduct implicating free speech rights. Id.

Washingtons anti-SLAPP statute allows a defendant in a SLAPP lawsuit to bring a motion to

strike at the outset of the lawsuit, and imposes a heightened burden of proof on the plaintiff

before the claim can proceed. RCW 4.24.525; see also Aronson v. Dog Eat Dog Films, Inc., 738

1The termination letter was filed under seal in the family court proceeding. Although it does not

appear that filing the termination letter under seal was appropriate, the document is nonethelessbeing withheld from the public version of this filing as well. A copy of the document is beingprovided to the Court for in camera review.


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F. Supp. 2d 1104, 1109 (W.D. Wash. 2010) (construing Washingtons anti-SLAPP statute and

dismissing claim under RCW 4.24.525).

The anti-SLAPP statute provides for a two-step process: [a] party bringing a special

motion to strike a claim under RCW 4.24.525(4)(a) has the initial burden of showing by a

preponderance of the evidence that the claim is based on an action involving public participation

and petition, as defined in RCW 4.24.525(2). If the moving party meets this burden, the burden

shifts to the responding party to establish by clear and convincing evidence a probability of

prevailing on the claim. Am. Traffic Solutions, Inc. v. City of Bellingham, 163 Wn. App. 427,

434 (2011); RCW 4.24.525(4)(b). As noted by one court, the Washington legislature has

directed that the anti-SLAPP statute be applied and construed liberally. Aaronson, 738 F.

Supp. 2d at 1111.

A. The Anti-SLAPP Statute Applies to Gear Lives Claim, Because it is Based on anAction Involving Public Participation and Petition

1. Ms. Edwards statements regarding Andru Edwards conduct in the family

court litigation fall under RCW 4.24.525(2)(b).

The anti-SLAPP statute broadly defines an action involving public participation and

petition to include any oral statement made, or written statement or other document submitted

in connection with an issue under consideration or review by a . . . judicial proceeding. RCW

4.24.525(2)(b). Gear Live alleges in its counterclaim that Ms. Edwards falsely suggested that

Mr. Edwards had made false statements about Federated Media in court documents. (First

Amended Answer, p. 7, ln. 23-25.) Thus, Andru Edwards own pleading indicates that Ms.

Edwards statements fall underRCW 4.24.525(2)(b). By definition, Ms. Edwards statements

were made in connection with a matter that was under consideration in a judicial proceeding (i.e.,

the family law proceeding). Consequently, Gear Lives counterclaim is based on statements

made by Ms. Edwards that fall within the purview of the anti-SLAPP statute.

Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564, 570 (Cal. Ct. App. 1999),


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interpreting Californias anti-SLAPP statute, is on point.2 In that case, plaintiffs sought to hold a

non-profit tenant counseling organization, Eden Council for Hope and Opportunity (ECHO),

liable under theories of defamation and intentional infliction of emotional distress . Plaintiffs

defamation claim was based on allegedly defamatory statements ECHO had made to a HUD

investigator and other persons while assisting a tenant to file a fair housing act claim. The

intentional infliction of emotional distress claim was based on information and counseling

ECHO had provided to several tenants of the plaintiff. The Court held that ECHOs statements

fell within the anti-SLAPP statute, stating:

Thus, plaintiffs causes of action against ECHO all arise from ECHOs

statements or writings made in connection with issues under considerationor review by official bodies or proceedingsspecifically, HUD or thecivil courts. Plaintiffs concede that petitioning activity involves lobbyingthe government, suing, [and] testifying. As pertinent here, [t]heconstitutional right to petition includes the basic act of filing litigationor otherwise seeking administrative action.

Briggs, 969 P.2d at 569. Just as ECHOs allegedly defamatory statements were found to fall

within the purview of Californias anti-SLAPP statute, Ms. Edwards statements made in

connection with the family court proceedings, which are alleged to constitute tortious

interference, fall within RCW 4.24.525(2)(b).

The Briggs Court also held that, even though the disputes between plaintiff and the

tenants ECHO had counseled were private in nature, ECHO could nonetheless invoke the

protections of the anti-SLAPP statute. Id. at 570-71. Briggs is also consistent with Washington

court decisions construing the term public concern broadly outside the anti-SLAPP context.

See, e.g., Alpine Indus. Computers, Inc. v. Cowles Pubg Co. , 114 Wash. App. 371, 393, 57 P.3d

1178, 1190 (2002) (holding that a private intellectual property dispute between a software

manufacturer and a retailer was a matter of public concern).

2Washington courts look to the decisions from California courts in interpreting Washingtons

anti-SLAPP statute. See, e.g., Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1110(W.D. Wash. 2010). Accordingly, the Court may look to Briggs to find that Ms. Edwardsconduct falls within the anti-SLAPP statute.


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Ms. Edwards statement regarding the propriety of access to her private email account by

Andru Edwards and Gear Live likewise falls under subsection (2)(b). In the family law matter,

Ms. Edwards contended that Andru Edwards should not be allowed to present evidence that she

could not rebut due to not having access to her email account. Whether the evidence presented

by Andru Edwards should be excluded because Andru Edwards deprived Ms. Edwards of access

to her email account was also an issue under consideration by the family law commissioner.

In addition to falling within subsection (2)(b), Ms. Edwards statements underlying Gear

Lives counterclaims falls within subsection (2)(c) of the anti-SLAPP statute.

2. Ms. Edwards efforts to elicit the testimony of Federated Media in connection with

the family law proceeding fall within RCW 4.24.525(2)(c).

Subsection (2)(c) of the anti-SLAPP statute defines an action involving public

participation and petition to include:

[a]ny oral statement made, or written statement . . . that is reasonablylikely to encourage or to enlist public participation in an effort to effectconsideration or review of an issue in a legislative, executive, or judicialproceeding or other governmental proceeding authorized by law.

RCW 4.24.525(2)(c). Gear Lives counterclaim does not provide the full context of Ms.

Edwards statements which underlie Gear Lives tortious interference claim. It is apparent from

a review of her emails to Federated Media that the emails were sent in an attempt to obtain

information regarding the timeframe in which Federated Media informed Andru Edwards that

the payments to Gear Live would decrease and other related information pertaining to a

reduction in payments to Gear Live. Specifically, Ms. Edwards emails were intended to elicit

testimony from Federated Media, whether informally, in the form of a declaration, or, ultimately,

via a subpoena. As such, her emails were reasonably likely to encourage . . . participation . . . to

effect consideration or review of an issue in a . . . judicial proceeding. While there are no

reported decisions from courts in Washington that interpret the scope of subsection (2)(c), Ms.

Edwards statements to Federated Media fall within the plain text of the statute itself, and an


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examination of the emails (which are attached to Ms. Edwards Declaration) bears this out.

Given the broad scope of the anti-SLAPP statute intended by the legislature, there should be no

dispute that her communications to Federated Media are protected under subsection (2)(c).

Decisions from other jurisdictions involving SLAPP lawsuits support this view.

In Wynne v. Creigle, 63 Mass. App. Ct. 246, 825 N.E.2d 559 (Mass. App. Ct. 2005), the

court was tasked with deciding whether allegedly defamatory statements made about plaintiff by

the surviving spouse of a former Greenfield, Massachusetts firefighter in newspaper articles fell

within the purview of Massachusetts anti-SLAPP statute.3

In finding that they did, the court

noted that the statements made by the defendant to the newspaper were essentially mirror

images of those she made during and in connection with the departmental investigation of the

plaintiff. The court further found that [t]aken in context, her mere repetition of those

statements to the media was also possessed of the characteristics of petitioning activity.

Wynne, 825 N.E.2d at 566. The facts are analogous to those in the instant case, where Ms.

Edwards statements to Federated Media were essentially the same as the claims she made in the

family court proceedings. Other courts have found similar activities to come within the purview

of their states respective anti-SLAPP statutes. See Plante v. Wylie, 443 Mass. 151, 159, 63

Mass. App. Ct. 151, 824 N.E.2d 461 (2005) (settlement offer by one party to other party was

statement in connection with the administrative proceedings and protected by anti-SLAPP

statute; statement was closely and rationally related to the proceedings and was in furtherance

of the objective served by governmental consideration of the issue under reviewnamely, the

3Massachusetts anti-SLAPP statute defines protected activities (which it deems petitioning

activities) extremely similarly to how Washingtons anti-SLAPP statute defines an actioninvolving public participation and petition. Such activities include, in pertinent part: anywritten or oral statement made in connection with an issue under consideration or review by alegislative, executive, or judicial body, or any other governmental proceeding; any statementreasonably likely to encourage consideration or review of an issue by a legislative, executive, orjudicial body or any other governmental proceeding; any statement reasonably likely to enlistpublic participation in an effort to effect such consideration; or any other statement falling withinconstitutional protection of the right to petition government. See G. L. c. 231, 59H, asamended by St. 1996, c. 450, 245.


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resolution of grievances);N. Am. Expositions Co. Ltd. Pship. v. Corcoran, 452 Mass. 852,

862, 898 N.E.2d 831, 841 (Mass. 2009) (petitioning includes all statements made to influence,

inform, or at the very least, reach governmental bodieseither directly or indirectly); Schelling

v. Lindell, 2008 ME 59, P12, 942 A.2d 1226, 1230 (Me. 2008) (construing meaning of

petitioning activity liberally to hold that it was broad enough to encompass a citizen's published

communications to newspapers aimed at influencing the outcome of a contractual dispute

between the City of South Portland and a contractor) (citing Maietta Constr., Inc. v.

Wainwright, 2004 ME 53, P7, 847 A.2d 1169, 1173 (Me. 2004)).

Ms. Edwards has met her burden of proving by a preponderance of the evidence that Gear

Lives counterclaim is based on an action involving public participation and petition, under

RCW 4.24.525(2)(b), (c), or both. Therefore, the burden shifts to Gear Live to demonstrate by

clear and convincing evidence that it is likely to prevail on its counterclaim. Gear Live cannot

meet its burden.

B. Gear Live Cannot Demonstrate by Clear and Convincing Evidence That itWill Prevail on the Merits of its Tortious Interference Claim

As to the merits of Gear Lives tortious interference claim, it fails for two reasons. Gear

Lives pleading accurately sets forth the elements of a tortious interference claim: (1) the

existence of a valid contractual relationship or business expectancy; (2) Ms. Edwards

knowledge of that relationship; (3) an intentional interference inducing or causing a breach or

termination of the relationship or expectancy; (4) that defendants interfered for an improper

purpose or used improper means; and (5) resultant damage. Leingang v. Pierce County Med.

Bureau, Inc., 131 Wn.2d 133, 157, 930 P.2d 288 (1997). For purposes of this motion, there is no

dispute about the first, second, and fifth elements. However, as to the third and fourth elements,

Gear Live cannot show by clear and convincing evidence that it will prevail on its claim. Ms.

Edwards did not improperly interfere with the relationship between Gear Live and Federated

Media, or do so for any improper purpose. Furthermore, even assuming she did, Ms. Edwards


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information. In any event, she only sought information that she would have been entitled to

under the discovery process. Gear Lives reliance on Ms. Edwards alleged misuse of Gear

Lives confidential information fails to satisfy the clear and convincing standard.

An improper purpose in the context of a tortious interference claim also requires proof of

bad faith. Moore v. Commercial Aircraft Interiors, LLC, 168 Wn. App. 502, 510 (2012) (To

survive the motion to dismiss, [plaintiff] had the burden to prove [defendant] acted in bad

faith.). Gear Live cannot possibly satisfy this standard for the simple reason that Ms. Edwards

did not intend to induce the termination of the Federated Media-Gear Live relationship, much

less to harm Gear Live. It would not be in her interests to do so, as any negative effect on Gear

Live would have a corresponding detrimental effect on the support payments that Andru

Edwards would be required to make to Ms. Edwards. Gear Live thus cannot show the requisite

bad faith necessary to support a tortious interference claim.

2. Even assuming Ms. Edwards interfered for an improper purpose, Gear Livecannot show that her interference caused termination of the contract in question.

Even assuming Gear Live could satisfy the improper purpose or means prong, a tortious

interference claim requires a showing that the improper purpose or means in fact cause[d] injury

to the persons contractual relationship. Leingang v. Pierce County Medical Bureau, 131

Wn.2d 133, 157 (1997) (citing Schmerer, 80 Wn. App. 499, 505 (1996)). Gear Lives claim fails

this prong as well.

The parties do not dispute that Federated Media had already sought to reduce payments it

would make to Gear Livei.e., prior to Ms. Edwards ever contacting Federated Media. Indeed,

this was the focus of a heated dispute in family court. Federated Medias termination of the Gear

Live relationship was most likely the result of a natural progression that had started with

Federated Medias reduction of payments to Gear Live. There is zero evidence to indicate that

Federated Media terminated the relationship because of any actions taken by Ms. Edwards.

Indeed, the termination letter sent by Federated Media does not provide a reason for the


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termination. Rather, the wording of the letter suggests that the reason for the termination was

related to business terms, and not any statements made by Ms. Edwards. Andru Edwards own

declaration filed in the family court proceeding confirms Federated Medias willingness to

continue to work with Gear Live under modified business terms. If the reason for termination

had been Ms. Edwards statements, it is hard to fathom that Federated Media would be interested

in working with Gear Live under new terms. Gear Live must come forward with some

admissible evidence other than its own speculation or hearsay that demonstrates causation. See

Davis v. Avvo, Inc., 2012 U.S. Dist. LEXIS 43743, 20-22 (W.D. Wash. Mar. 28, 2012). It

cannot satisfy its burden in this regard.

V. CONCLUSION

Gear Lives motion is an attempt to punish Ms. Edwards for exercising her legal right to

obtain information regarding a separate legal proceeding between the parties. Its claim is

nothing more than an effort to cause Ms. Edwards to expend additional resources and to chill her

exercise of her free speech rights. Regardless, in order to prevail, Ms. Edwards need not

demonstrate any animus on the part of Gear Live, or that Gear Lives actions were retaliatory,

she need only show that Gear Lives counterclaim is based on an action involving public

participation and petition, which the Anti-SLAPP statute defines broadly. Ms. Edwards has met

her burden to show that Gear Lives counterclaim falls within the purview ofWashingtons

broad anti-SLAPP statute. Gear Live, however, cannot meet its burden to prove by clear and

convincing evidence that it has a probability of prevailing on its counterclaim. Therefore, Gear

Lives counterclaim should be dismissed, and Ms. Edwards should be awarded the statutory

remedies under the anti-SLAPP statute.

DATED: September 21, 2012

//

//

//


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Respectfully Submitted,

FOCAL PLLC

s/ Sean M. McChesney

Venkat Balasubramani, WSBA #28269Sean M. McChesney, WSBA #36973

800 Fifth Avenue, Suite 4100

Seattle, WA 98104Tel: (206) 529-4827

Fax: (206) 260-3966

Email: [email protected]: [email protected]

Attorneys for Plaintiff and Counterclaim

Defendant, MONICA EDWARDS


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CERTIFICATE OF SERVICE

I hereby certify that on September 21, 2012, I caused the foregoing Counterclaim

Defendants Special Motion to Strike, along with the supporting Declaration of Monica Edwards

and a proposed order granting the Special Motion to Strike to be filed with the Clerk of the

Snohomish County Superior Court and caused copies to be hand delivered to counsel for Gear

Live and Andru Edwards at:

Zachary Tomlinson

Joe Wallin

Davis Wright Tremaine LLP1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

Fax: 206-757-7158

I declare under penalty of perjury under the laws of the State of Washington that the

foregoing is true and correct.

DATED this 21st day of September, 2012, at Seattle, Washington.

s/ Sean M. McChesney

Sean M. McChesney, WSBA #36973

Documents

Motion to Strike Counterclaims Under Washington's Anti-SLAPP Statute