* Kelly A. Spratt, Resp. vs. Bradley & Jill Toft, Apps.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KELLY A. SPRATT, a married woman,
Respondent,
v.
BRADLEY TOFT, and his wife, JILL
TOFT, and the marital community
composed thereof,
Appellant.
Grosse, 	J.P.T.1 	— To 	succeed on a 	special 	motion 	to strike 	under
Washington's anti-SLAPP statute,2 the moving party must make an initial prima
facie showing that the claimant's suit arises from an act in furtherance of the right
of 	petition or 	free 	speech 	in connection 	with 	a 	matter 	of 	public concern.
Campaigning 	and 	speech 	connected 	to 	a 	political 	campaign 	and 	candidate
clearly 	involve 	free 	speech 	and 	clearly 	are 	matters 	of 	public 	concern.
Accordingly, we vacate the trial court's denial of Bradley Toft's motion to dismiss,
and we 	remand for consideration of whether Spratt establishes by clear and
convincing evidence, a probability of prevailing on her defamation claim.
FACTS
From 2001 	until December 2005, Kelly Spratt worked at Quadrant Home
Loans, a joint venture between Wells Fargo Bank and Quadrant Homes. 	Toft, as
King County sales manager, was Spratt's immediate supervisor. 	Toft reported to
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1 Judge C. Kenneth Grosse was a member of the Court of Appeals at the time
oral argument was heard on this matter. 	He 	is now serving as a judge pro
tempore of the court pursuant to RCW 2.06.150.
2 Washington Act Limiting Strategic Lawsuits Against Public Participation.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 2
Randy Smith. 	When Smith was promoted to vice president and regional sales
manager for 	Wells 	Fargo 	Home 	Mortgages, 	Toft 	reported 	to 	Rich 	Osburn,
Smith's 	replacement. 	Spratt 	was 	repeatedly 	promoted 	during 	her time 	at
Quadrant and was never the subject of a performance improvement plan. 	In
2005, she was promoted to sales manager for the south region of King County,
overseeing branch offices.
Smith 	and 	Spratt 	both 	assert 	that 	Toft 	had 	a 	reputation 	for 	being
untrustworthy and manipulative and that the company had an 	issue with his
management style. 	Smith's declaration establishes that Toft's management style
was the subject of numerous intra-company meetings. 	Spratt observed Toft's
abusive behavior in which he made employees cry and, in one instance, swung a
baseball bat at Spratt's head.
Without justification, in December 2005, Toft accused Spratt of unethical
behavior. 	There was no threat of termination or request that she resign. 	The
following day, Spratt reported to Osburn and 	Smith that she could no longer
tolerate Toft's abusive behavior and she was going to resign. 	Smith's declaration
supported Spratt's version of the events and Smith apologized to Spratt for Toft's
behavior. 	Smith told Spratt that he appreciated hearing her reason for resigning.
The next day, Spratt tendered her resignation to Toft who circulated an e-mail to
employees at Quadrant acknowledging that Spratt had resigned.
A few weeks after her resignation, Osburn (Toft's supervisor) called Spratt
and offered her employment at Washington Square, another Wells Fargo joint
venture. 	Spratt accepted the position under the condition that she would not
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 3
have to interact with Toft. 	Smith's declaration confirms that such an offer would
not have been made if Spratt had been under a cloud at Quadrant when she left:
The fact that Ms. Spratt was re-hired for the Washington Square
project is thus unassailable proof that she was neither terminated
for cause at Quadrant Home Loans, nor allowed to quit in place of
being terminated.
Smith's 	declaration 	further 	notes 	that 	Toft's 	mischaracterization 	of Spratt's
resignation is not surprising:
Based upon my experience with Mr. Toft, I am not surprised he is
making allegations about Ms. Spratt's employment record that are
unsubstantiated by the facts.
Smith stated that he was aware of Toft's problems with several subordinates,
which resulted in an unusually high turn-over rate for the employees who worked
directly with him:
As a result of that, and other issues regarding his performance, I
and 	our 	Quadrant 	partner 	made 	the 	decision 	to 	involuntarily
terminate 	Mr. Toft's 	employment 	at 	Quadrant 	Home 	Loans 	in
December 2006. 	Unfortunately in many respects he was my worst
hire in 16 years of employment at Wells Fargo Bank.
Evidence was presented that Toft was involuntarily terminated because he failed
to perform job duties.
Spratt had no contact with Toft from 	December 2005 until December
2011, when she read that Toft was running in the Republican primary for the
Washington State Senate in District 5. 	Spratt sent Toft a 	private e-mail via
Facebook questioning his qualifications for office.
Spratt, 	who 	considers 	herself 	a 	Republican, 	decided 	to 	contact 	the
Republican Party to let them know of her concerns. 	She sent a letter to Bob
Brunjes, the 5th District Chair of the Republican Party. 	As a result of that letter,
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 4
Jolie Imperatori, an 	active member 	in the 5th District, contacted Spratt and
suggested that Spratt give Toft an opportunity to respond to her accusations by
attending a public meeting. 	In March 2012, Spratt went to a "meet-and-greet" the
candidate meeting. 	Spratt went to the meeting to ask Toft questions regarding
his termination of employment at Quadrant. 	Imperatori accompanied Spratt to
the meeting.
Before the start of the campaign event, Toft had a private meeting with
Ramzy Boutros, the co-vice chair of the 5th District Republican Party, Jill Toft,
and Ferrin Lauve, another official with the party. 	Boutros attended the meeting
as a private citizen to determine whether he would support Toft's candidacy.
After the meeting and before the event was scheduled to start, Toft asked to
speak privately with Boutros. 	Toft told Boutros that someone he had fired years
before 	had 	come 	to 	the 	meeting 	and 	he 	wanted 	to 	exclude 	her. 	This
conversation occurred outside the meeting.
Declarations supplied by Spratt, Imperatori, and Boutros set out the details
of what occurred at the meeting. 	When Spratt was finally called on by Toft, she
related the incident where he 	swung a 	baseball bat at her head and asked
whether he would admit that he had been fired from Quadrant. 	At that time
Spratt was unaware that Toft had wanted to exclude her from the meeting and
had told Boutros that he had fired her.
In May 2012, Spratt attended a Republican Precinct Committee Officers
(PCO) 	meeting 	at 	the 	Issaquah 	police 	station 	for 	the 	express 	purpose 	of
confronting Toft regarding 	his lies concerning her employment history. 	She
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 5
brought her phone with the e-mail that he had sent in 2005 to other Quadrant
employees 	informing 	them 	that 	Spratt 	had 	resigned. 	Before the 	meeting,
Imperatori overheard Toft telling several PCOs that he had fired Spratt and that
she was trying to 	get even with him by spreading false 	rumors 	about him.
Pushed by Boutros, Toft stated that Spratt had been forced to resign.
Spratt was called on at the meeting and Toft refused to confirm one way
or another that he had fired Spratt. 	Spratt had no direct contact with either Toft
or his wife after the May 2012 PCO meeting. 	She did, however, post on her own
Facebook and Twitter accounts her ongoing opposition to Toft's campaign. 	In
June 2012, Toft's counsel sent Spratt a letter accusing her of harassing Toft.
Spratt blocked her Twitter and Facebook accounts preventing the Tofts from
seeing her postings.
In August 2012, the Tofts filed an anti-harassment petition against Spratt
in district 	court alleging 	recent contact. 	Counsel for Spratt appeared. 	The
petition was not granted; no anti-harassment order was issued. 	In October 2012,
an 	"anonymous" 	letter 	surfaced 	concerning 	Spratt. 	It attached 	copies 	of
materials filed in the anti-harassment action and specifically referenced what a
good candidate Toft made for the Senate. 	Spratt was in the process of proving
that the letter was, in fact, written by Toft and produced evidence of a declaration
from a Web expert who stated that the materials attached in the letter were not in
fact from the anti-harassment action, but in fact were taken from Toft's computer
at a later time and could only have been done with a password by the user, Toft.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 6
Spratt sued to recover damages for these defamatory statements that
were made about her by Toft. 	Spratt based her cause of action on Toft's oral
statements to others that he had fired Toft and on various defamatory allegations
that were contained in the anonymous letter. 	Toft moved to strike Spratt's claims
under RCW 4.24.525(4)(b) on the grounds that it was a strategic lawsuit against
public participation. 	The trial court denied Toft's motion by order and, finding
Toft's motion to strike frivolous, awarded Spratt $23,109.85 in fees and costs and
$10,000 in sanctions under RCW 4.24.525(6)(b). 	The trial court also denied
Toft's motion for reconsideration. Toft appeals.
ANALYSIS
A party may bring a special motion to strike "any claim that is based on an
action 	involving 	public 	participation 	and 	petition." 	RCW 	4.24.525(4)(a). 	In
deciding an anti-SLAPP motion, a court must follow a two-step process.3 	A
court's interpretation and application of the anti-SLAPP statute is reviewed de
novo.4 	A party moving 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 targets
protected activity, 	i.e., 	activity "involving 	public 	participation 	and 	petition" 	as
defined in RCW 4.24.525(2).5 	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." RCW 4.24.525(4)(b). 	If the responding
3 Dillon v. Seattle Deposition Reporters. LLC. 	Wn. App. 	, 316 P.3d 1119,
1132(2014).
4 City of Seattle v. Eqan, _ 	Wn. App _, 317 P.3d 568, 569 (2014); Dillon. 316
P.3dat1133.
5 United States Mission Corp. v. Kiro TV. Inc.. 172 Wn. App. 767, 783-84, 292
P.3d 137, rev, denied. 177 Wn.2d 1014, 302 P.3d 181 (2013).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 7
party fails to meet its burden, the court must grant the motion and award the
moving 	party 	$10,000 	in 	addition 	to 	attorney 	fees 	and 	costs. 	RCW
4.24.525(6)(a)(i), (ii).
Under 	RCW 	4.24.525(2), 	actions 	involving 	"public 	participation 	and
petition" include:
(a) Any oral statement made, or written statement or other
document 	submitted, 	in 	a 	legislative, 	executive, 	or 	judicial
proceeding or other governmental proceeding authorized by law;
(b) Any oral statement made, or written statement or other
document 	submitted, 	in 	connection 	with 	an 	issue 	under
consideration 	or 	review 	by 	a 	legislative, 	executive, 	or 	judicial
proceeding or other governmental proceeding authorized by law;
(c) Any oral statement made, or written statement or other
document submitted, that is reasonably likely to encourage or to
enlist 	public 	participation 	in an 	effort to 	effect 	consideration 	or
review of an issue in a legislative, executive, or judicial proceeding
or other governmental proceeding authorized by law;
(d) Any oral statement made, or written statement or other
document submitted, in a place open to the public or a public forum
in connection with an issue of public concern; or
(e) Any other lawful conduct in furtherance of the exercise of
the constitutional right of free speech in connection with an issue of
public concern, or in furtherance of the exercise of the constitutional
right of petition.
Washington's anti-SLAPP statute, 	like others around the country, 	was
enacted to prevent the chilling of a citizen's legitimate right to free speech. 	To
this purpose, the Washington legislature found that "[i]t is in the public interest for
citizens to participate in matters of public concern and provide information" on
public issues that affect them "without fear of reprisal through abuse of the
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 8
judicial process."6 	The legislature provided that the act "shall be applied and
construed liberally to effectuate its general purpose of protecting participants in
public controversies from an abusive use of the courts."7 	It explained that the
new law was enacted to protect statements on matters of public concern, which
is the "sine qua non of democracy."8 	Equally, at the heart of our democracy is
the 	election of candidates to office. 	Toft has a 	protected 	right to speak in
furtherance of his candidacy.9 	Toft's action to combat accusations against him
while he was campaigning for office clearly falls within those protected rights. At
this juncture, we do not address the merits of Spratt's complaint, only whether it
falls within the realm of protected activity.
Here, 	Spratt came to two of Toft's 	campaign events with the specific
purpose 	of challenging 	whether 	he 	was 	fit 	for 	office 	because 	of 	his 	past
employment record. 	In addition, Spratt sent information to the Republican Party
that Toft was discharged from 	his job. 	Toft contends that the statements he
made 	about 	Spratt were 	in response 	to 	Spratt's challenges and 	thus 	were
protected activity undertaken in the heat of a campaign.10
6 Laws of 2010, ch. 118, §1.
7 Laws of 2010, ch. 118, § 3; Henne v. City of Yakima. 177 Wn. App. 583, 594,
313P.3d 1188(2013).
8 Bruce E.H. Johnson & Sarah K. 	Duran, A View From the First Amendment
Trenches: 	Washington 	State's 	New 	Protections 	For 	Public 	Discourse 	and
Democracy. 87 Wash. Law. Rev. 495, 499, 509 (2012) (quoting Robert C. Post,
Democracy, 	Expertise, 	and 	Academic 	Freedom: 	A 	First 	Amendment
Jurisprudence For The Modern State 15 (2012)).
9 Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network. Inc.,
742 F.3d 414, 434 (9th Cir. 2014).
10 See Rosenaur v. Scherer. 88 Cal. App. 4th 260, 105 Cal. Rptr. 2d 674 (2001).
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No. 70505-9-1 / 9
Washington's 2010 anti-SLAPP statute was patterned after California's
anti-SLAPP statute.11 	Thus, we can look to California cases for aid in interpreting
the 	act.12 	Toft 	cites 	Cabrera 	v. 	Alam.13 	to 	support 	his 	argument 	that 	his
statements were public activity. 	In Cabrera, the court held that a homeowners'
association meeting was a public forum. 	Cabrera involved two people who were
both campaigning for election to the homeowners' association board. 	Cabrera, a
past president, was standing in for one of the candidates competing for election
to the board. 	Cabrera accused Alam, the challenging candidate for director, of
mismanaging the association's financings. 	In response, Alam accused Cabrera
of defrauding the association and stealing money from it.14 	Cabrera sued Alam
for defamation based on the statements made at the annual meeting, precisely
what Spratt is doing here.
The second case Toft relies on is Rosenaurv. Scherer.15 There, the court
found that the "use of the words 'thief and 	'liar' in the course of a 	chance
confrontation with a 	political foe 	at a shopping center was the type of loose,
figurative, 	or hyperbolic 	language that is constitutionally 	protected."16 	The
Rosenaur court 	determined 	that 	the 	defendant 	was 	criticizing 	the 	plaintiff's
11 Compare RCW 4.24.525 with Cal. Civ. Proc. Code § 425.16; Phoenix Trading.
Inc. v. Loops LLC. 732 F.3d 936, 941 	(9th Cir. 2013); Aronson v. Dog Eat Dog
Films, Inc., 738 F. Supp. 2d 1104 (W.D. Wash. 2010).
12 Phoenix Trading. 732 F.3d at 941; City of Longview v. Wallin. 174 Wn. App.
763, 776 n.11, 301 P.3d 45, rev, denied. 178 Wn.2d 1020, 312 P.3d 650 (2013).
13 197 Cal. App. 4th 1077, 129 Cal. Rptr. 3d 74 (2011).
14 Cabrera. 197 Cal. App. 4th at 1081.
15 88 Cal. App. 4th 260, 105 Cal.Rptr.2d 674 (2001).
16 Rosenaur, 88 Cal. App. 4th at 278-80.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1/10
political position, 	rather than accusing the plaintiff of the crime of theft. 	The
Rosenaur court stated:
It is well settled that section 425.16 applies to actions arising from
statements 	made 	in political campaigns 	by politicians and their
supporters, 	including 	statements 	made 	in 	campaign 	literature.
(Conroy 	v. 	Spitzer 	(1999) 	70 	Cal.App.4th 	1446, 	1451 	[83
Cal.Rptr.2d 	443]; 	Beilenson 	v. 	Superior 	Court 	(1996) 	44
Cal.App.4th 	944, 	950 	[52 	Cal.Rptr.2d 	357]; 	Matson 	v. Dvorak,
supra, 40 Cal.App.4th at p. 548; Robertson v. Rodriguez (1995) 36
Cal.App.4th 347, 352, 357-358 [42 Cal.Rptr.2d 464].) "The right to
speak 	on 	political 	matters 	is 	the 	quintessential 	subject 	of 	our
constitutional protections of the right of free speech." (Matson v.
Dvorak, supra, 40 Cal.App.4th at p. 548.)[17]
Toft argues that his statements fall within the scope of the act because
they were made by a political candidate on the campaign trail to party officials,
party members, and the voting public about a candidate's employment history in
response to allegations by a person who attended political events and challenged
that candidate's qualifications. 	Speech involves "matters of public concern when
it can 'be fairly considered as relating to any matter of political, social, or other
concern to the community."18 	Toft's actions clearly fall within protected activity
and thus fall within the ambit of the statute. 	Toft has satisfied the first prong of
the anti-SLAPP statute.
Ironically, had Toft sued Spratt, Spratt would arguably have had a cause
of action under that same statute for Toft's claims. 	We are not unmindful of the
absurdity 	of 	such 	a 	circumstance 	and 	recognize, 	but 	do 	not 	decide, 	the
17 88 Cal. App. 4th at 273-74.
18 Snyder v. Phelps. 	U.S. 	131 S. Ct. 1207, 1216, 179 L Ed. 2d 172 (2011)
(quoting Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708
(1983)).
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1 / 11
conundrum 	presented 	by 	the statute 	in 	this 	situation.19 	However, 	Spratt
interjected herself into the public process of a candidate running for office by
attacking his credentials to hold office, a matter of public concern. 	Under the
facts before us, Toft has met the minimal standard needed to prove his case falls
within the ambit of the statute.
Having determined that Toft has met the threshold burden of the anti-
SLAPP statute, the 	burden shifts to Spratt to show, 	by clear and convincing
evidence, a probability of prevailing on her defamation claim.20 	If Spratt meets
this 	burden, 	then Toft's 	motion 	to 	strike 	her claim 	must 	be 	denied. 	RCW
4.24.525(4)(b). 	Because the trial court did not address this secondary question,
we 	remand 	for 	consideration 	of whether Spratt establishes 	a 	probability of
prevailing 	by clear and convincing evidence. 	Indeed the court's oral 	ruling
specifically states that it did not decide the merits of the case, but only whether
the defamation lawsuit should be stricken. 	The trial court's ruling shows that it
never examined the statements and declarations to determine whether triable
issues of material fact existed under any standard.
However, 	the 	trial 	court 	did 	rule 	that 	the 	anti-SLAPP 	statute 	was
constitutional in response to Spratt's contention that the act was unconstitutional
because the provision providing for a mandatory stay on discovery prevented her
19 The trial court appeared to recognize the dilemma that Toft's efforts to combat
Spratt's challenges may have violated Spratt's right to petition by awarding fees
and penalties in dismissing the suit at the outset.
20 American Traffic Solutions. Inc. v. City of Bellingham, 163 Wn. App. 427, 260
P.3d 245 (2011) (quoting RCW 4.24.525(4)(b)).
11
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70505-9-1/12
from proving her defamation claim, denying her access to the courts. 	Because
this issue will most certainly come up on remand, we address it here.
Washington courts have held that discovery is a necessary element in
preserving access to the court, citing article I, section 10 of the Washington
Constitution. 	In John Doe v. Puget Sound Blood Center.21 the court held that a
litigant's constitutional right of access to the courts carries considerable weight
when 	balancing the 	public and 	private 	interests 	against the 	necessity of a
protective order under CR 26(c). 	Plaintiffs have a right of access to the courts. In
a civil case that right includes the right of discovery authorized by the civil rules,
subject to the limitations contained in those rules.
In Putman v. Wenatchee Valley Medical Center, 	P.S..22 the court held
unconstitutional RCW 7.70.150's requirement that a plaintiff file a certificate of
merit 	before 	proceeding to 	court. 	Putman 	held that the 	certificate of merit
requirement unduly impaired the right of access to the courts because it required
parties 	to 	present 	evidence 	that 	might 	be 	impossible 	to 	develop 	without
discovery.23 	The court held that the requirement to file a certificate of merit
violated the separation of powers doctrine because it conflicted with CR 8 and 11
regarding 	pleading 	requirements 	and 	thereby 	encroached 	on 	the 	judiciary's
power to establish court rules.24 The court stated:
21 117 Wn.2d 772, 819 P.2d 370 (1991).
22 166 Wn.2d 974, 216 P.3d 374 (2009).
23 Putman, 166 Wn.2d at 977-78; see ajso Waples v. Yi, 169 Wn.2d 152, 234
P.3d 	187 	(2010) 	(holding 	90-day 	notice 	requirement 	in 	the 	same 	statute
unconstitutional because it conflicts with the commencement requirement of CR
3(a) thereby conflicting with the judiciary's power to set court procedures.)
24 Putman, 166 Wn.2d at 979-80.
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No. 70505-9-1/13
"The very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws, whenever he
receives an injury. 	One of the first duties of government is to afford
that protection." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2
L. 	Ed. 60 	(1803). The people have a 	right of access to courts;
indeed, 	it is 	"the 	bedrock foundation 	upon 	which 	rest 	all the
people's 	rights 	and 	obligations." 	[Puget Sound Blood 	Ctr., 	117
Wn.2d at 780.] 	This right of access to courts "includes the right of
discovery authorized by the civil rules." [Puget Sound Blood Ctr.,
117 Wn.2d at 780]. 	As we have said before, "[i]t is common legal
knowledge 	that 	extensive 	discovery 	is 	necessary 	to 	effectively
pursue either a plaintiff's claim or a defendant's defense." [Puget
Sound Blood Ctr., 117 Wn.2d] at 782].[25]
Washington courts derive their judicial power from article IV of the state
constitution and from the legislature under RCW 2.04.190.26 That inherent power
includes the power to govern court procedures.27 	Where a statute and a court
rule conflict, the court will attempt to harmonize them, giving effect to both.28
Where, 	however, 	the two 	cannot 	be 	harmonized, 	the 	court 	rule 	prevails 	in
procedural matters and the statute in substantive matters.29 	Here, 	however,
there is no real conflict.
RCW 4.24.525(5)(c) provides:
All discovery and any pending hearings or motions in the action
shall be stayed upon the filing of a special motion to strike under
subsection (4) of this section. The stay of discovery shall remain in
effect 	until 	the 	entry 	of 	the 	order 	ruling 	on 	the 	motion.
Notwithstanding the stay imposed by this subsection, the court, on
motion 	and 	for 	good 	cause 	shown, 	may 	order 	that 	specified
discovery or other hearings or motions be conducted.30
25 Putman, 166 Wn.2d at 979.
26 City of Fircrest v. Jensen, 158 Wn.2d 384, 394, 143 P.3d 776 (2006).
27 Fircrest. 158 Wn.2d at 394.
28 Fircrest. 158 Wn.2d at 394.
29 Putnam. 166 Wn.2d at 980.
30 (Emphasis added.)
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No. 70505-9-1/14
Thus, although discovery is stayed initially as part of the motion and until a ruling,
the trial court is permitted to allow discovery or hold hearings if good cause is
shown. 	The mere fact that discovery is limited does not in and of itself render a
statute unconstitutional. 	For example, in In re Estate of Fitzgerald, this court held
that in the context of a Trust and Estate Dispute Resolution Act31 proceeding, the
trial court 	retains authority to permit discovery before determining whether a
creditor's claim is time-barred.32 	Thus, Spratt is not precluded from obtaining
discovery before the trial court rules on the motion, provided she can show good
cause for such discovery.33 	In Dillon, this court held that the requirement of a
showing of good cause to conduct discovery is similar to CR 56(e) which permits
a 	party to obtain discovery when 	it is essential to justify his opposition to a
summary judgment motion.34
The issue of whether the statute's heightened burden of proof (clear and
convincing evidence) in order to survive the anti-SLAPP motions violates the
separation of powers doctrine was also not addressed below. 	While we need not
decide that issue, we believe the burden of proof to be a substantive aspect of a
claim and, as such, the statute would prevail.35 	Heightened burdens have been
31 Chapter 11.96A RCW.
32 172 Wn. App. 437, 449 n.8, 294 P.3d 720 (2012), rev, denied, 177 Wn.2d
1014, 302 P.3d 181 (2013).
33 RCW 4.24.525(5)(c).
34 316 P.3d at 1142; cl Metabolite Int'l. Inc. v. Wornick. 264 F.3d 832 (9th Cir.
2001) 	(holding 	subsections 	425.16(f) 	and 	(g) 	automatic 	discovery 	stay
mechanism would not apply in federal court because it conflicts with Federal
Rule of Civil Procedure 56).
35 State v. Gresham, 173 Wn.2d 405, 428-29, 269 P.3d 207 (2012) (quoting
Putnam. 166 Wn.2d at 980); Raleigh v. Illinois Dep't of Revenue. 530 U.S. 15,
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No. 70505-9-1/15
upheld 	in 	other instances, 	including 	actions for defamation.36 	This analysis
subsumes the 	question 	of whether the 	requirement for clear and convincing
evidence of a claim also violates access to the 	courts because it requires a
heightened burden of proof.
The legislature has the right to define the parameters of a claim and to set
forth the factors that must be considered before liability can be established.37
The fact that a statute increases the standard of proof needed for a common law
claim does not compromise the right of access to courts.38 	It is within the realm
of the legislature's authority to impose a heightened burden of proof. 	Finally, we
note that as recently stated in Dillon, the clear and convincing evidence of a
probability of prevailing on a claim is applied in a manner similar to the summary
judgment standard.39
Because the trial court dismissed the anti-SLAPP action on the first prong,
we 	remand 	for 	its 	consideration 	of 	whether Spratt 	has 	submitted 	sufficient
evidence for a claim. We reverse the trial court's award of attorney fees, but note
that the mere fact that Toft survived the first prong of the anti-SLAPP statute
does not relieve him of the possibility of this being a frivolous action, should the
trial court find Spratt's claims have clear and convincing merit.
120 S. Ct. 1951, 147 L. Ed. 2d 13 (2000) (burden of proof is a substantive aspect
of a claim).
36 Mark v. Seattle Times, 96 Wn.2d 476, 486-87, 635 P.2d 1081 (1981) (In order
to 	combat a 	defense 	motion 	for summary judgment dismissal, 	plaintiff in a
defamation suit 	must present a 	prima facie 	case by evidence of "convincing
clarity.").
37 Sofie v. Fibreboard Corp., 112 Wn.2d 636, 666, 771 P.2d 711 (1989).
38 Garcia v. Wveth-Averst Labs.. 385 F.3d 961, 968 (6th Cir. 2004).
39 Dillon, 316 P.3d at 1142.
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No. 70505-9-I / 16

Reversed and remanded.

WE CONCUR:

N..

UJ 'd

16