Dan Young, V. Todd S. Rayan

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

DAN YOUNG, an individual,

No. 84426-1-I

Appellant,

v. ORDER GRANTING MOTION

FOR RECONSIDERATION,

TODD S. RAYAN and JANE DOE WITHDRAWING OPINION,

RAYAN, husband and wife; SAMUEL AND SUBSTITUTING OPINION

WILKENS and JANE DOE WILKENS,

husband and wife; PENNY ROHR and

JOHN DOE ROHR, wife and husband;

and ALTHAUSER RAYAN ABBARNO,

a Washington Limited Liability

Partnership,

Respondents.

Respondents Todd Rayan, Samuel Wilkens, Penny Rohr, and the law firm

Althauser Rayan Abbarno, LLP, moved for reconsideration of the published

opinion filed on June 26, 2023. The court has determined that respondents’

motion for reconsideration should be granted, the opinion should be withdrawn,

and a substitute opinion be filed.

Now, therefore, it is hereby

ORDERED that the Respondents’ motion for reconsideration is granted;

and it is further

ORDERED that the published opinion filed on June 26, 2023, is

withdrawn; and it is further

No. 84426-1-I/2

ORDERED that a substitute published opinion be filed.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAN YOUNG, an individual, No. 84426-1-I

Appellant, DIVISION ONE

v.

TODD S. RAYAN and JANE DOE PUBLISHED OPINION

RAYAN, husband and wife; SAMUEL

WILKENS and JANE DOE WILKENS,

husband and wife; PENNY ROHR and

JOHN DOE ROHR, wife and husband;

and ALTHAUSER RAYAN

ABBARNO, a Washington Limited

Liability Partnership,

Respondents.

SMITH, C.J. — The litigation privilege immunizes participants in legal

proceedings from civil liability based on statements they make during litigation.

Litigants often strongly and passionately express their position over the course of

a case. The privilege exists to encourage frank and open testimony and

argument despite this turbulent emotional atmosphere. It protects participants

from retaliatory, derivative lawsuits—regardless of the merit of those suits—

instead relying on checks by the trial court such as sanctions to address false

testimony. The privilege embodies a compromise. It acknowledges that litigants

may at times abuse its protection, while recognizing that our legal system

depends on reducing the threat that every statement or argument may lead to

further litigation.

No. 84426-1-I/2

Dan Young, an attorney, sued Todd Rayan, Samuel Wilkens, Penny Rohr,

and the law firm that employs them based on statements they made during court

proceedings. Their statements accused Young of acquiring documents from

them through misrepresentation. Young insists that the statements were

perjured. He asks us to identify an exception to the litigation privilege for

statements made in an attempt to abuse and weaponize the legal process. We

decline to do so and affirm, concluding that the trial court properly dismissed

Young’s claims at summary judgment.

FACTS

In 2018, Elizabeth Bartlett, formerly Elizabeth Parman, sued her ex-

husband Shawn Parman and his mother Ruth Parman in Thurston County

Superior Court over the ownership of a property in Olympia, Washington. She

alleged that she had purchased the property in 1997 using a “gift of early

inheritance” from her parents and, through the application of much of her own

money, time, and effort, transformed it into both a home and a working horse

farm. In 2000, she transferred the property to Ruth1 and her husband Robert via

quitclaim deed, trusting that with their names on the title it would be easier to

take out a loan to build a house. The transfer, she claimed, was based on the

understanding that she and Shawn were entering into a partnership with Ruth

and Robert, a condition of which was that Ruth and Robert would convey half of

1 For the sake of clarity and consistency, we refer to Shawn Parman, Ruth

Parman, Robert Parman, and Elizabeth Bartlett (f/k/a Parman) by their first

names.

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No. 84426-1-I/3

the property to Shawn and the other half to Elizabeth on their deaths. According

to Elizabeth, Robert and Ruth included parallel provisions in their wills to effect

this testamentary transfer.

The inheritance did not come to pass. Robert died in 2005. In 2015,

Shawn and Elizabeth divorced. Concerned about her eventual ownership of the

property, Elizabeth sought and apparently received assurances from Ruth about

the contents of her will. But in 2017, allegedly at Shawn’s urging, Ruth altered

her will to exclude transfer of the property to Elizabeth.

Litigation ensued. Ruth’s estate, represented by Shawn, was substituted

for Ruth after her death in 2019. In 2020, Shawn petitioned for his father’s

intestate probate, claiming that Robert had not left a will. Initially filed in King

County and then challenged by Elizabeth, the probate matter was transferred to

Thurston County to be consolidated with Elizabeth’s first lawsuit. Elizabeth’s

challenge to the probate matter was dismissed as untimely.2

Litigation continued undeterred and with increasing intensity. Seeking to

introduce Robert’s will into the record to persuade the court to reconsider its

dismissal, Dan Young, Elizabeth’s attorney, phoned the offices of the law firm

Althauser Rayan Abbarno, which, along with several of its employees, is the

respondent in this case. Young had learned that an attorney, John Turner, had

2 That dismissal was recently affirmed on appeal.Bartlett v. Estate of

Parman, No. 56536-6-II, slip op. at 1 (unpublished) (Wash. Ct. App. Nov. 15,

2022), https://www.courts.wa.gov/opinions/pdf/D2%2056536-6-II%

20Unpublished%20Opinion.pdf.

3

No. 84426-1-I/4

drafted Ruth and Robert’s wills, and that Turner’s papers had been held by

Althauser Rayan Abbarno since his retirement.

The details of Young’s contact with individuals at Althauser Rayan

Abbarno are disputed. Young admits that he mentioned he was an attorney but

denies ever saying that he represented Robert Parman’s estate. Young claims

that he spoke with Penny Rohr, the firm’s receptionist, who indicated that

attorney Samuel Wilkens had inherited Turner’s matters. He reports that Rohr

said Wilkens would return his call, that Wilkens did not, and that Young followed

up several weeks later. During that call, Rohr apparently spoke with Wilkens

while Young was on hold and, when she returned to the phone, indicated that

she would send him a copy of the will3 by e-mail, which she did.

Rohr describes matters similarly in most respects. She acknowledges

receiving a call from Young. She says that she inquired with Wilkens about

whether she should send Young a copy of the will, and that Wilkens approved.

But contrary to Young’s narrative, she asserts that Young “indicated” that he

represented Robert Parman’s estate and it was based on this understanding,

which she had shared with Wilkens, that Wilkens authorized the release of

Robert’s will.

Wilkens, on the other hand, reports that “[t]o the best of my recollection,”

he spoke directly with Young. He says that during that conversation, Young

3 What Young received is just that—a copy. The original will was not

retained in Turner’s files, only an executed copy of it. When this opinion says

“the will,” it is referring to this copy, not to the original document.

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No. 84426-1-I/5

stated that he represented Robert Parman’s estate. On that basis, Wilkens

reports authorizing Rohr to send Young a copy of the will.

Regardless of precisely what words were exchanged, Young obtained the

will. He introduced it into the underlying litigation via a motion to reconsider the

dismissal of the probate matter and opposing a motion from Shawn for attorney

fees. Young also issued a subpoena directing Althauser Rayan Abbarno to turn

over the same materials he had just received. Shawn’s attorney, Mark Owen

Gabrielson, responded by issuing his own subpoena to Althauser Rayan

Abbarno, seeking Ruth and Robert’s estate planning records. Todd Rayan, the

firm’s managing partner, reached out to Gabrielson and, following a discussion,

directed Wilkens and Rohr to write down their recollections of the events leading

to Rohr sending Young the will. He then supplied their recollections to

Gabrielson as sworn declarations. And he objected to Young’s subpoena in a

letter because “[t]he prior disclosure and emailing of one document was based

on a misrepresentation to my staff . . . [which means that the will was] obtained

through fraudulent means.”4

Two motions, a police investigation, a bar grievance, and the initiation of

the present lawsuit followed. First, Gabrielson moved to strike the will from the

record in the underlying actions and seal it. Young then moved to compel

4 Though designated to be part of the record on appeal, the portions of the

Clerk’s Papers at which this letter should appear are either corrupted or missing.

The letter is attached as an appendix to the Appellant’s Opening Brief, however.

The parties agree that the appendix is an accurate copy of the letter and we may

look to it for our review.

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No. 84426-1-I/6

production of the will from Althauser Rayan Abbarno. Escalating the dispute

beyond the courtroom, Gabrielson called the Centralia Police Department about

Young, complaining about the manner in which he acquired the will. Detective

Timothy O’Dell investigated and referred the case to the Lewis County

Prosecuting Attorney’s Office, having concluded that probable cause existed to

arrest Young for criminal impersonation in the first degree. Young submitted a

bar grievance against Wilkens accusing him of perjuring himself in his

declaration. Finally, on January 18, 2022, Young filed the complaint in this

lawsuit in King County Superior Court.

Ten days later, the trial court heard the motions to strike, seal, and

compel. It struck and sealed the will in the probate proceeding. It sealed but did

not strike the will in Elizabeth’s first lawsuit, preserving for another day questions

about its admissibility. It denied Young’s motion to compel. Throughout its oral

ruling, the court expressed concern that RPC 1.6—which governs confidentiality

of client files but is not an evidentiary rule and does not create a privilege—was

implicated.

Meanwhile, the present lawsuit moved rapidly from its initiation to its

dismissal. Young sued Rohr, Wilkens, Rayan, and Althauser Rayan Abbarno,

bringing claims of defamation, false light, and civil conspiracy. The defendants

moved for summary judgment, arguing that Young’s claims were based on

statements made during the course of litigation, were protected by the litigation

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No. 84426-1-I/7

privilege doctrine, and therefore could not stand. The trial court agreed and

dismissed the case in August 2022.

Young appeals.

ANALYSIS

This appeal asks whether three causes of action—defamation, false light,

and civil conspiracy—may be sustained when they are based on statements

made during court proceedings. Young contends that they can be. He attempts

to identify a number of exceptions to the application of litigation privilege, which

normally prohibits liability for statements made in court. As a general matter, he

professes that his claims may be sustained because the statements on which

they are based abused the court process itself to do further harm. But his

arguments are not grounded in Washington case law, which applies the litigation

privilege broadly. We affirm the trial court’s dismissal of his claims as a result.

Standard of Review

We review summary judgment de novo, considering the evidence and

reasonable inferences drawn from it in the light most favorable to the nonmoving

party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary

judgment is appropriate only when no genuine issue exists as to a material fact

and the moving party is entitled to judgment as a matter of law. Keck, 184 Wn.2d

at 370. “A material fact is one that affects the outcome of the litigation.” Owen v.

Burlington N. and Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220

(2005).

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No. 84426-1-I/8

Litigation Privilege Generally

The “litigation privilege”5 is a judicially created privilege that protects

participants—including attorneys, parties, and witnesses—in a judicial

proceeding against civil liability for statements they make in the course of that

proceeding. See, e.g., Mason v. Mason, 19 Wn. App. 2d 803, 830-31, 497 P.3d

431 (2021) review denied, 199 Wn.2d 1005 (2022); Deatherage v. Examining Bd.

of Psychology, 134 Wn.2d 131, 135-36, 948 P.2d 828 (1997). As applied to

witnesses, the privilege is sometimes referred to as witness immunity, and under

it, “[a]s a general rule, witnesses in judicial proceedings are absolutely immune

from suit based on their testimony.” Bruce v. Byrne-Stevens & Assocs. Eng’rs,

Inc., 113 Wn.2d 123, 125, 776 P.2d 666 (1989).

Statements “are absolutely privileged if they are pertinent or material to

the redress or relief sought, whether or not the statements are legally sufficient to

obtain that relief.” McNeal v. Allen, 95 Wn.2d 265, 267, 621 P.2d 1285 (1980).

But statements having “ ‘no connection whatever’ ” with the litigation are not

privileged. Demopolis v. Peoples Nat. Bank of Wash., 59 Wn. App. 105, 110,

796 P.2d 426 (1990) (quoting RESTATEMENT (SECOND) OF TORTS, § 586,

comment c (AM. LAW INST. (1977))). Thus, not every passing statement made in

court avoids liability. But the determination of pertinency is not a high bar. As

5 Also historically referred to in Washington as “absolute privilege,”

Deatherage v. Examining Board of Psychology, 134 Wn.2d 131, 135, 948 P.2d

828 (1997), and in other jurisdictions variously as “judicial statements privilege,”

Maggard v. Kinney, 576 S.W.3d 559, 567 (Ky. 2019), or “official proceedings

privilege,” Klem v. Access Insurance Company, 17 Cal. App. 5th 595, 613, 225

Cal. Rptr. 3d 711 (2017).

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No. 84426-1-I/9

the Restatement (Second) of Torts indicates, a statement “need not be strictly

relevant to any issue” so long as it bears “some reference to the subject matter of

the . . . litigation.” RESTATEMENT § 586, comment c.

Litigation privilege therefore prohibits liability stemming from statements

(1) made in the course of a judicial proceeding (2) that are pertinent to the

litigation. Pertinency is a question of law reviewed de novo. Demopolis, 59 Wn.

App. at 110.

The purpose of the litigation privilege doctrine is to encourage frank, open,

untimorous argument and testimony and to discourage retaliatory, derivative

lawsuits. As applied to attorneys, it furthers “ ‘a public policy of securing to

[counsel] as officers of the court the utmost freedom in their efforts to secure

justice for their clients.’ ” Mason, 19 Wn. App. 2d at 831 (quoting McNeal, 95

Wn.2d at 267). As applied to witness testimony, it preserves “the integrity of the

judicial process by encouraging full and frank testimony.” Bruce, 113 Wn.2d at

126. The rule addresses the concern that a witness may either be reluctant to

come forward to testify in the first place or shade their testimony “to magnify

uncertainties, and thus to deprive the finder of fact of candid, objective, and

undistorted evidence.” Briscoe v. LaHue, 460 U.S. 325, 333, 103 S. Ct. 1108, 75

L. Ed. 2d 96 (1983).

The potential harms of a broad application of litigation privilege—namely,

preventing redress for a harm that would otherwise sustain a civil suit—are

blunted by forms of accountability not available outside of judicial proceedings.

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No. 84426-1-I/10

The rule assumes that false or harmful statements in a judicial proceeding may

be addressed through the use of tools such as sanctions, contempt, “[a] witness’

. . . oath, the hazard of cross-examination, and the threat of prosecution for

perjury.” Bruce, 113 Wn.2d at 126. Additionally, immunity does not typically

extend to professional disciplinary proceedings, which may occur based on

testimony or behavior during litigation and which are therefore an additional

avenue to confront harm caused by privileged statements. Wynn v. Earin, 163

Wn.2d 361, 378, 181 P.3d 806 (2008). In part because the privilege assumes

that improper conduct should not be entirely impossible to address, immunity is

not usually extended to settings where judicial authority lacks “the power to

discipline as well as strike from the record statements which exceed the bounds

of permissible conduct.” Twelker v. Shannon & Wilson, Inc., 88 Wn.2d 473, 476,

564 P.2d 1131 (1977).

Though it often arises in the context of defamation suits, the courts have

rejected the notion that litigation privilege applies only to that claim. Our

supreme court, in the context of witness immunity, has said that the chilling effect

of subsequent litigation “is the same regardless of the theory on which that

subsequent litigation is based.” Bruce, 113 Wn.2d at 131-32. More generally,

the supreme court has used broad language to describe the litigation privilege’s

scope, saying that it “applies to statements made in the course of judicial

proceedings and acts as a bar to any civil liability.” Deatherage, 134 Wn.2d

at 135 (emphasis added). Litigation privilege has been applied to bar liability

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No. 84426-1-I/11

under a range of causes of action, including civil conspiracy. Jeckle v. Crotty,

120 Wn. App. 374, 386, 85 P.3d 931 (2004).

Mason’s Public Policy Exception

Litigation privilege therefore has the potential to bar any of the three

causes of action Young pleaded in this case: defamation, false light, and civil

conspiracy. Young, however, attempts to identify an exception to the litigation

privilege doctrine that that would preclude its application when it would not further

any compelling public policy. Division II of this court has recently taken this

approach in Mason, on which Young heavily relies. 19 Wn. App. 2d at 834. We

decline to follow Mason’s recognition of a public policy exception to the litigation

doctrine.

Mason concerned, among other issues, claims made against an attorney

based on his statements in an underlying lawsuit. 19 Wn. App. 2d at 830. It

reversed the trial court’s application of the litigation privilege to dismiss a claim of

abuse of process, a tort involving misuse of a judicial proceeding “to accomplish

an end for which the process was not designed.” Mason, 19 Wn. App. 2d at 834.

It likewise refused to apply the privilege to a related claim of intentional infliction

of emotional distress by way of abusive litigation tactics. 19 Wn. App. 2d at 843.

Mason reasoned as follows. To begin, it pointed to the nature of the

abuse of process tort, which “must be used ‘to accomplish some end which is

without the regular purview of the process.’ ” Mason, 19 Wn. App. 2d at 834-35.

It then identified what it characterized as a mismatch between the goals of the

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No. 84426-1-I/12

judicial system, the intent of an abuse of process tortfeasor, and the litigation

privilege’s requirement that protected statements pertain to the legal proceeding.

It asserted that “[i]ntegral to an abuse of process claim [is that] the complained of

conduct, by its nature, must not be related to the legitimate purposes of a judicial

proceeding.” Mason, 19 Wn. App. 2d at 834. It concluded “[c]onsequently,

litigation privilege does not apply, and an attorney can be liable for abuse of

process where the attorney was alleged to have intentionally employed legal

process for an inappropriate and extrinsic end.” Mason, 19 Wn. App. 2d at 835.

A more recent Division II case has articulated Mason’s rule this way: “we apply

litigation privilege where the conduct bears some relation to a judicial proceeding

and where compelling public policy justifications support its application.” Scott v.

Am. Express Nat'l Bank, 22 Wn. App. 2d 258, 265-66, 514 P.3d 695 (2022).6

These cases appear to have added a third element to the litigation

privilege analysis. It is no longer enough, under Mason and Scott, to ask

whether a statement was (1) pertinent (2) to a judicial proceeding. We must now

also ask (3) whether immunity furthers public policy under the particular facts of

the case, in part by looking to an alleged tortfeasor’s intent.

6 Scott, which Young relies on in his briefing, declined to apply litigation

privilege to bar a consumer protection act claim against a law firm because

immunity would “ ‘neither preserve[] ‘integrity of the judicial process,’ nor ‘further[]

the administration of justice.’ ” 22 Wn. App. 2d at 270 (quoting Mason, 19 Wn.

App. 2d at 838). In Scott, unlike in Mason, the court denied immunity because

the firm was acting in its capacity as a collection agency when conducting the

acts upon which its liability was allegedly based; the court did not consider the

defendants’ intent. 22 Wn. App. 2d at 270.

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No. 84426-1-I/13

We are unconvinced for several reasons. First, it does not follow that a

tortfeasor’s intent in making a statement informs whether that statement was

pertinent to the proceeding in which it was made. A statement made with malice

and intent to abuse the process and causing actual harm may be pertinent to a

proceeding, even if it would also normally give rise to civil liability.

Second, the litigation privilege’s broad purpose is to prevent even the

threat of litigation and so avoid potentially chilling testimony. A standard that

creates exceptions where intent to employ the litigation process for an

inappropriate end is simply “alleged” fatally undermines that purpose. Such

intent is easy to allege, allowing for artful pleading. It is also likely to actually

exist in most tort cases based on perjured testimony—the purpose of the judicial

system is never, after all, to educe false testimony, so any false statement

arguably pursues an inappropriate end under this analysis. Mason’s exception

consequently risks swallowing the broader rule. And, perhaps most troublingly,

the inherently case-by-case application of Mason’s standard, which looks to a

particular defendant’s actual intent, will most often force prolonged and

expensive discovery and litigation. This would hobble the litigation privilege’s

main goal: to deter even the initiation of lawsuits, and in so doing avoid chilling

the speech of those who might otherwise feel threatened by such litigation.7

7 The principle is well expressed by the Connecticut Supreme Court in

Rioux v. Barry:

The purpose of affording absolute immunity to those who provide

information in connection with judicial and quasi-judicial

proceedings is “that in certain situations the public interest in having

people speak freely outweighs the risk that individuals will

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No. 84426-1-I/14

Third, Mason does not root its analysis in relevant case law. For its

discussion of public policy it relies on language from Bender v. Seattle, 99 Wn.2d

582, 600, 664 P.2d 492 (1983), that “[g]enerally, some compelling public policy

justification must be demonstrated to justify the extraordinary breadth of an

absolute privilege.” Mason, 19 Wn. App. 2d at 843. It reads Bender as

supporting a search for a compelling public policy justification for applying

litigation privilege in each individual case, and finds no such justification where

statements abused the purposes of the court system. Mason, 19 Wn. App. 2d

at 843. Bender, however, discussed the difference between doctrines of

absolute and qualified (and discretionary) immunity in the abstract, not as applied

to any particular set of facts. 99 Wn.2d at 600. Its discussion focused on

whether to extend a privilege in certain procedural context, or to certain sorts of

actor. Bender, 99 Wn.2d at 600-01. Indeed, one of the examples Bender gives

of an absolute privilege, contrasted with the qualified privilege extending to

statements made by law enforcement officers that was in dispute, is the litigation

privilege. 99 Wn.2d at 600.8

occasionally abuse the privilege by making false and malicious

statements.” “[T]he possibility of incurring the costs and

inconvenience associated with defending a [retaliatory] suit might

well deter a citizen with a legitimate grievance from filing a

complaint.”

283 Conn. 338, 343 927 A.2d 304 (2007) (alterations in original) (citations

omitted) (quoting Chadha v. Hungerford Hosp., 272 Conn. 776, 786, 865 A.2d

1163 (2005); Craig v. Stafford Constr., Inc., 271 Conn. 78, 95, 856 A.2d 372

(2004)).

8 Mason also relied on Fite v. Lee, 11 Wn. App. 21, 521 P.2d 964 (1974),

to support the idea that an abuse of process claim may lie against an attorney

unhindered by the litigation privilege. 19 Wn. App. 2d at 835-40. At no point,

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No. 84426-1-I/15

Mason’s discussion of the extension of privilege appears to conflate

extension in the first instance to a type of proceeding or actor, a process

requiring recognition of a compelling public policy justification, and its application

in an individual case. But our supreme court has emphasized elsewhere that

while it is true that extending an absolute privilege in the first instance requires

“compelling public policy justifications,” the privilege has already been extended

to cover most, if not all, participants in court proceedings. Deatherage, 134

Wn.2d at 136 (discussing extension of privilege to expert witnesses in Bruce).

Fundamentally, the privilege already serves a compelling public policy in any

given case as it is currently constituted: it ensures that witnesses, parties, and

their counsel may speak freely and openly in court proceedings without fear of

ensuing litigation. Deatherage, 134 Wn.2d at 137.

We therefore decline to follow Mason and do not recognize a case-by-

case “public policy exception” to the litigation privilege doctrine that looks to a

defendant’s intent. We emphasize that the privilege, by design, applies where

bad behavior may be addressed through means not always available outside the

courtroom, such as sanctions, contempt, striking of testimony, cross-

examination, the threat of perjury, and professional discipline. And the effects of

improper statements on the progress of the lawsuit in which they are made may

however, does Fite discuss the litigation privilege or any other form of immunity.

And where a legal theory is not discussed in a case’s opinion, that opinion does

not control future cases where the theory is properly raised. Berschauer/Phillips

Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 824, 881 P.2d 986

(1994).

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No. 84426-1-I/16

be addressed through direct appeal if the trial court errs in its approach. Those

harmed by privileged statements are correspondingly not without recourse, even

if redress is imperfect. The litigation privilege accepts that imperfection in pursuit

of freer speech and conduct in judicial proceedings.

We now proceed to determine whether Young’s particular claims in this

case—defamation, false light, and civil conspiracy—are based in language

“pertinent” to a court proceeding and so are barred by the litigation privilege.

Young’s Defamation and False Light Claims

Application of the litigation privilege doctrine to the first two causes of

action—defamation and false light—is straightforward, and we conclude that the

trial court correctly dismissed them at summary judgment.

Analysis of litigation privilege in the context of defamation and false light is

made easy because both torts include an element requiring the plaintiff to ground

their claim in specific statements. A defamation claim has four essential

elements: (1) a false communication, (2) which was unprivileged, (3) and for

which the defendant is at fault, (4) caused the plaintiff damages. Mark v. Seattle

Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981). False light, meanwhile,

creates liability when the defendant (1) publicizes a matter (2) that places

another in a false light, (3) the false light would be highly offensive to a

reasonable person, and (4) the defendant knew of or recklessly disregarded the

falsity of the publication and the false light in which the plaintiff would be placed.

Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 470-71, 722 P.2d 1295

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No. 84426-1-I/17

(1986). At their cores, both torts are concerned with the harm suffered by a

plaintiff because of a defendant’s statements.

Here, the defendants are immune from liability stemming from the

statements that support both Young’s claim of defamation and his claim of false

light. Young’s complaint makes the foundational nature of these statements

clear. His defamation claim is premised on three statements: (1) Rohr in her

declaration saying that Young had indicated to her that he represented the estate

of Robert Parman; (2) Wilkens in his declaration saying that he had spoken with

Young and Young had represented that he was the attorney for Parman’s estate;

and (3) Rayan incorporating Rohr and Wilkens’ statements in his objection to

Young’s subpoena. Young’s complaint does not explicitly state the publications

on which it alleges liability under a false light theory, but it reincorporates the

factual allegations made earlier in the complaint, which do not mention any other

publication. It therefore rests on the same statements.

We conclude that the defendants are immune to any claim for liability

based on these statements. We reach this conclusion regardless of the dispute

over precisely what was said during Young’s phone call to the law firm, because

exactly what was said that day is not material to whether litigation privilege

applies. The first two statements are sworn declarations providing testimony on

the penalty of perjury. The third, though it is not sworn, sits squarely within the

type of communication contemplated by the rules of civil procedure as part of a

court proceeding. See CR 45(c)(2)(B) (providing ability to object to subpoena,

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No. 84426-1-I/18

triggering issuer’s ability to move the court to compel production). The

statements are all pertinent to the subject matter of the litigation, since they

concerned arguments about the admissibility of a copy of a will in actions about

the disposition of the decedent’s property. And any falsity in the statements was

subject to checks by the trial court, such as sanctions, or even by the

Washington State Bar Association through a disciplinary action.9 As statements

made in the course of court proceedings, pertinent to the subject matter of the

litigation, the defendants cannot be civilly liable for any harm the statements

caused.

Young disagrees, arguing about the statements’ pertinency. He asserts

that the dispute over whether he fraudulently obtained the will, and whether the

will should have been stricken from the record as a result, did not “address the

contents of the will nor the merits of the underlying litigation.” But this and other

similar arguments parse the matter too finely. As case law and other authority

have repeatedly held, litigation privilege cannot be applied only where statements

are truly relevant to the determination of an issue. See, e.g., RESTATEMENT

§ 586, comment c; McNeal, 95 Wn.2d at 267 (Statements “are absolutely

privileged if they are pertinent or material to the redress or relief sought, whether

9 Additionally, “[a] person is guilty of perjury in the first degree if in any

official proceeding he or she makes a materially false statement which he or she

knows to be false under an oath required or authorized by law.” RCW

9A.72.020(1). Perjury charges are thus, theoretically, another potential check on

false testimony. Practically, though, it would be highly unusual for criminal

charges to be brought based on sworn statements made in a civil case with no

major public import.

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No. 84426-1-I/19

or not the statements are legally sufficient to obtain that relief.”). To apply the

privilege so narrowly could result in a chilling effect as attorneys and parties

become reluctant to make less than certain arguments, and witnesses become

uncomfortable giving testimony without understanding the use to which it will be

put. We are not swayed by Young’s argument.

Young’s Civil Conspiracy Claim

Application of the litigation privilege doctrine to civil conspiracy is slightly

more involved than its application to defamation and false light. This is because

the tort of civil conspiracy does not necessarily locate liability in defendants’

statements, as opposed to their actions. But we nonetheless conclude that

litigation privilege also bars consideration of this claim.

“[C]ivil conspiracy exists if two or more persons combine to accomplish an

unlawful purpose or combine to accomplish some purpose not in itself unlawful

by unlawful means.” Corbit v. J.I. Case Co., 70 Wn.2d 522, 528, 424 P.2d 290

(1967). “In order to establish a conspiracy the plaintiff must show that the

alleged coconspirators entered into an Agreement to accomplish the object of the

conspiracy.” Corbit, 70 Wn.2d at 528-29.

The plaintiff must demonstrate the existence of the conspiracy by clear,

cogent, and convincing evidence. Corbit, 70 Wn.2d at 529. As Young notes,

“ ‘[t]o establish liability for conspiracy, it is sufficient if the proof shows concert of

action or other facts and circumstances from which the natural inference arises

that the unlawful overt act was committed in furtherance of a common design,

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intention, and purpose of the alleged conspirators.’ ” Lyle v. Haskins, 24 Wn.2d

883, 899, 168 P.2d 797 (1946) (quoting 11 AM. JUR. CONSPIRACY § 56 at 585

(1937)). But this is not to say that any circumstantial evidence suffices. “ ‘Mere

suspicion or commonality of interests is insufficient to prove a conspiracy.’ ”

Puget Sound Sec. Patrol, Inc. v. Bates, 197 Wn. App. 461, 470, 389 P.3d 709

(2017) (quoting All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d

367 (2000)). And if “ ‘the facts and circumstances relied upon to establish a

conspiracy are as consistent with a lawful or honest purpose as with an unlawful

undertaking, they are insufficient.’ ” Puget Sound Sec. Patrol, 197 Wn. App. at

470 (quoting All Star Gas, 100 Wn. App. at 740).

Young’s complaint describes the alleged conspiracy:

Defendants Penny Rohr, Samuel Wilkens and Todd Rayan

combined to accomplish an unlawful purpose, i.e., defame plaintiff

and present him in a false light, or they combined to accomplish a

lawful purpose by unlawful means, e.g., by attempting to avoid

blame for their release of Robert Parman’s will to plaintiff.

...

The conspirators entered into an agreement to accomplish the

object of the conspiracy and knowingly made false allegations

about plaintiff with the purpose of exonerating themselves in the

eyes of their employer, the Firm.

Insofar as Young attempts to show a conspiracy of the sort that seeks to

accomplish an unlawful purpose, the only unlawful purposes he identifies are

defamation and false light. Since litigation privilege protects the defendants from

liability on those claims, they cannot serve as the basis for his civil conspiracy

claim.

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No. 84426-1-I/21

But Young’s alternative framing of the conspiracy likewise depends on

“false allegations” made by Rohr, Wilkens, and Rayan. It does not appear that

he is referencing anything other than the statements protected by litigation

privilege.10 Because his civil conspiracy claim, like his other claims, inherently

relies on the falsity of privileged statements to demonstrate liability, we conclude

that the trial court correctly dismissed this claim as well.

Young asserts that there exists a “larger actionable conspiracy” exception

to litigation privilege that would allow this claim to move forward because the

litigation privilege does not protect conspiratorial use of perjury to accomplish

other ends. But the binding cases he cites do not support this proposition, and

we decline to hold that any such exception applies here.

For support in Washington caselaw, Young cites Dexter v. Spokane

County Health District, 76 Wn. App. 372, 884 P.2d 1353 (1994). That case uses

the phrase “ ‘larger[] actionable conspiracy’ ” only once, during its discussion of

10 Elsewhere, Young characterizes the conspiracy to involve more than

just collusion among the named defendants, but having the same object of

creating false testimony:

The greater conspiracy here was threefold: (1) Wilkens

attempted to excuse his apparent violation of RPC 1.6 in releasing

the will by blaming the release on Young; (2) the Althauser firm

attempted to avoid liability for its apparent violation of RPC 1.6 and

for not having procedures in place to prevent such a release by

blaming Young; and (3) Gabrielson (on behalf of his ultimate client

Shawn Parman) “ignored” the RPC 1.6 violation and gained an

advantage over Young in the underlying litigation by putting Young

in a false light, attacking him personally, undermining his credibility,

driving a wedge between Young and his client, and perhaps hiding

the will of Robert Parman which had unexpectedly come to the light

of day.

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No. 84426-1-I/22

whether Washington recognizes a civil cause of action for perjury. Dexter, 76

Wn. App. at 375 (quoting Anderton v. Herrington, 113 Idaho 73, 741 P.2d 360

(Ct. App.1987)). Surveying case law from other states, Dexter concluded that

most jurisdictions do not allow for a common law right of action arising out of

perjured testimony. 76 Wn. App. at 375. It noted, however, that some

jurisdictions create an exception to this general rule where perjury is “merely a

‘step in the accomplishment of some larger, actionable conspiracy.’ ” Dexter, 76

Wn. App. at 375 (quoting Anderton, 113 Idaho at 741.). But that exception did

not apply in Dexter, which went on to state: “Mr. Dexter is left with the general

rule that absent an authorizing statute, there is no civil claim for perjury.” 76 Wn.

App. at 375.

On its face, the exception Young seeks to identify in Dexter is not an

exception to the litigation privilege doctrine at all but instead an exception to the

general rule that no civil cause of action exists for perjury. And in fact, Dexter

declined to allow the plaintiff’s suit to proceed in part because “[a] cause of action

for perjury is inconsistent with the principle that a witness, lay or expert, party or

nonparty, is immune from tort damages arising out of his or her testimony.” 76

Wn. App. at 376.

Young does not point to any other Washington law that supports his claim,

instead relying on out-of-state or federal cases, primarily FMC Technologies, Inc.

v. Edwards, 464 F. Supp. 2d 1063, 1068 (W.D. Wash. 2006). The court there,

citing Dexter and a series of non-Washington cases, concluded that Washington

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does recognize a “larger actionable conspiracy” exception to the litigation

privilege doctrine. Edwards, 464 F. Supp. 2d at 1068-72. The court reasoned

that broad statements about the protection afforded by litigation privilege were

drawn from cases decided before the privilege was extended beyond defamation

actions alone, in 1989’s Bruce decision. Edwards, 464 F. Supp. 2d at 1070. In

doing so, however, it ignored similarly broad language in later cases. See, e.g.,

Deatherage, 134 Wn.2d at 135 (saying in 1997 that the privilege “applies to

statements made in the course of judicial proceedings and acts as a bar to any

civil liability”). Edwards appears to have applied out-of-state law while presenting

it as Washington law. See 464 F. Supp. 2d at 1068-69 (citing cases from

Tennessee to explain the conspiracy exception).

Regardless of the merit of a “larger actionable conspiracy” exception, the

case law Young cites does not support the notion that existing Washington law

recognizes it.

We affirm.

WE CONCUR:

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