Suzanne L. Weinstock, Appellant V. Alamo Rental (us), Inc., Et Al., Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SUZANNE L WEINSTOCK, an
individual,
Appellant,
v.
ALAMO RENTAL (US), INC., a
Delaware corporation; ALAMO
FINANCING LP., a Delaware limited
partnership; MARVIN L. BRYANT, an
individual; LARRY PETERSON, an
individual,
Respondents.
No. 67864-7-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 22, 2013 23-
Grosse, J. —Washington's anti-SLAPP (strategic lawsuits against putsfip
participation) statute, RCW 4.24.510, grants qualified immunity from civil liabi^
to a person who communicates a complaint or information to any branch of local
government. 	Here, the defendants' reporting an overdue rental car as stolen to
the appropriate police authority falls within the protected activity, shifting the
burden to the plaintiff to demonstrate a reasonable likelihood that she would
prevail in the litigation. 	This the plaintiff was unable to do. Accordingly, we affirm
the trial court's summary judgment dismissal and affirm its award of $10,000 in
mandatory statutory damages and attorney fees.
FACTS
On October 6, 2008, Suzanne Weinstock rented a Toyota Highlander from
Alamo Rental (US), Inc. at the SeaTac location. 	Weinstock rented the car for
one week ending October 13, 2008, 	but failed to return the 	vehicle. 	Alamo
attempted 	to 	contact Weinstock, 	but was 	unsuccessful. 	Marvin 	Bryant, an
C/5 0
5°
c/)rn:~
-.v>

No. 67864-7-1 / 2
employee at Alamo, tried to reach Weinstock at the telephone number provided.
Bryant was unable to leave a voicemail because the voicemail box required entry
of a pin number, 	which Weinstock had 	not provided to Alamo. 	Additionally,
repeated attempts to charge Weinstock's credit card were declined. 	Alamo sent
two 	demand 	letters 	by 	certified 	mail, 	both 	of 	which 	were 	returned 	as
"undeliverable." 	On November 24, 	2008, after receiving 	permission from his
supervisor, Bryant filed a Rental and Lease Declaration with the Port of Seattle
Police Department reporting Weinstock's failure to 	return the 	rental vehicle.
Bryant had no further involvement in the investigation by the Port of Seattle
police, other than responding to questions by the investigating officer.
Larry Peterson was at the Alamo desk when Weinstock first rented the
car. 	Peterson also spoke with Weinstock on November 14, 2008. 	During that
telephone conversation Peterson told Weinstock the car was long overdue, that
her credit card had been repeatedly declined, and that she needed to return the
vehicle immediately. 	When Peterson discovered that Weinstock was on the east
coast, he told her to return the vehicle to any Alamo location. 	Peterson finally
agreed to permit her to return the vehicle to SeaTac, but told her she needed to
do so no later than November 21, 2008. 	Peterson told her that failure to return
the vehicle by that date would result in the car being reported stolen. 	Peterson
had no further communication with either Weinstock or the police.
Weinstock asserts that she had an agreement with Peterson to pay the bill
with a check if she kept the car past the one week. 	Weinstock also contends that
she 	called 	Alamo 	on 	November 	20 	from 	South 	Dakota 	where 	she 	was

No. 67864-7-1 / 3
experiencing bad weather and was told by someone at Alamo to drive carefully
and take her time.
On November 25, 2008, Weinstock was stopped by the police in Skagit
County for failure to wear a seatbelt. 	Weinstock presented the rental agreement,
which indicated that the vehicle was to have been returned on October 13, 2008.
A vehicle check revealed the car had been reported stolen. 	Washington State
Patrol Trooper Brandon Lee arrested Weinstock. 	In a search incident to the
arrest, Trooper Lee discovered several bags containing items taken from various
hotel rooms.
On 	December 2, 2008, Weinstock was charged with 	possession of a
stolen motor vehicle pursuant to RCW 9A.56.068. 	The information was amended
to include a gross misdemeanor, third degree possession of stolen property,
apparently pertaining to the hotel property found by the trooper. 	Those criminal
charges were subsequently dropped.1
While the criminal charges were pending, Weinstock brought a civil action
against Alamo claiming defamation, outrage, invasion of privacy, and a violation
of the Consumer Protection Act, chapter 19.86 RCW. 	Subsequently, on the
defendants' 	motion, 	the 	trial court 	granted 	summary judgment dismissal 	of
Weinstock's claims because they all arose from Alamo's communication to the
Port of Seattle police. 	The court also awarded Alamo $10,000 in mandatory
statutory damages and attorney fees. 	Weinstock appeals.
1 Weinstock has moved this court to take judicial notice of the dismissal of the
criminal case, which occurred after the trial court issued its ruling. 	We decline to
do so as it has no relevance to the matter before us.

No. 67864-7-1/4
ANALYSIS
RCW 	4.24.510 	grants 	immunity from 	civil 	liability 	to 	a 	person 	who
communicates a complaint or information to any branch or agency of federal,
state, or local government.2 	Such immunity extends to "claims based upon the
communication to the agency or organization regarding any matter reasonably of
concern to that agency or organization." 	RCW 4.24.510. 	In enacting this statute,
our legislature recognized that "[i]information 	provided 	by citizens concerning
potential wrongdoing is vital to effective law enforcement" and that "the threat of
a civil action for damages can act as a deterrent to citizens who wish to report"
such information. 	RCW 4.24.500. 	"The legislature enacted RCW 4.24.510 to
encourage 	the 	reporting 	of 	potential 	wrongdoing 	to 	governmental 	entities."3
Former 	RCW 	4.24.510 	(1999) 	contained 	a 	requirement 	that 	the
communication be made in good faith. 	That language was eliminated in a 2002
amendment, and the sentence allowing statutory damages to be denied on a
finding of bad faith was added.4 	Nevertheless, Weinstock argues that the anti-
2 RCW 4.24.510 provides in pertinent part:
A person who 	communicates a 	complaint or information 	to any
branch or agency of federal, state, or local government, 	... is
immune from civil liability for claims based upon the communication
to the agency or organization regarding any matter reasonably of
concern to that agency or organization. A person prevailing upon
the 	defense 	provided 	for 	in this 	section 	is 	entitled 	to 	recover
expenses and reasonable attorneys' fees incurred in establishing
the defense and in addition shall receive statutory damages of ten
thousand dollars. Statutory damages may be denied if the court
finds that the complaint or information was communicated in bad
faith.
3 Gontmakher v. The City of Bellevue. 120 Wn. App. 365, 366, 85 P.3d 926
(2004).
4 Laws OF 2002, ch. 232, §2.

No. 67864-7-1 / 5
SLAPP statute still requires good faith 	because 	RCW 4.24.500 states, "The
purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make
good-faith reports to appropriate governmental bodies." 	This precise issue was
decided in Bailey v. State.5 There, the court determined that there is no good
faith requirement in RCW 4.24.510.6 	The Bailey court reasoned that the 2002
amendments brought "'Washington law ... in line with [United States Supreme
Court] decisions which recognize! ] that the United States Constitution protects
advocacy to government, regardless of motive, so long as it is designed to have
some effect on government decision 	making.'"7 	Further, 	it applied 	rules of
statutory construction that a later enactment prevails if it is more specific. 	RCW
4.24.510 is more specific than RCW 4.24.500. 	Moreover, 	as the Bailey court
stated, policy statements do not give rise to enforceable rights and duties.8
Weinstock argues that factual disputes remain. 	But it is undisputed that all
of Weinstock's claims against Alamo arise from Alamo's reporting the rental car
as stolen when Weinstock had failed to return it some 43 days after the one-
week rental period expired. 	Even if we assume all of Weinstock's assertions in
her declarations are true and admissible, her claims are still barred.
There is no dispute that Weinstock did not return the car by November 21,
2008, pursuant to her "special agreement" with the manager. 	The car had still
not been returned by November 24, 2008, when Alamo filed the report. 	There
5 147 Wn. App. 251,191 P.3d 1285 (2008).
6 Bailey. 147 Wn. App at 262.
7 Bailey, 147 Wn. App. at 262 (some alterations in original) (quoting Laws of
2002, ch. 232 § 1).
8 Bailev. 147 Wn. App. at 262-63.

No. 67864-7-1 / 6
was 	no business 	record 	reflecting 	a telephone call from 	Weinstock or that
someone from 	Alamo 	told 	Weinstock 	to 	take 	her time 	when 	she 	allegedly
reported bad driving conditions in South Dakota.9 	There is no evidence that the
later report by Alamo personnel to the police that the car had not been returned
was malicious. 	In Dang v. Ehredt,10 this court held that bank employees were
immune from liability for claims arising from their conduct in contacting police and
retaining the driver's license of a bank customer whom they suspected of fraud.
This immunity existed even though the bank customer was later cleared of any
wrongdoing. 	Here, the report on Weinstock's failure to return the rental car is
similarly a matter "reasonably of concern" to the police.
Weinstock argues that Bryant's communication to the police is not covered
by the anti-SLAPP statute because it communicated "a matter of purely private
concern, 	unrelated to any 	matter of political, 	social, 	or other concern to the
community." This argument was rejected in Bailey, where the court stated:
[T]he terms "to influence a government action or outcome" and the
terms "public interest or social significance" are not contained in
RCW 4.24.510. 	These terms are contained in the legislative notes
on the intent of the 2002 amendment. 	Laws of 2002, ch. 232, §
<\ [in
Under RCW 4.24.510, the only predicate to immunity is that the matter be of
reasonable concern to the agency. 	Accordingly, both Alamo and its employees
are immune from liability arising from the communications to the police.
9 Weinstock's 	affidavits are 	self-serving 	hearsay 	and 	conclusory 	in nature.
Warner v. Regent Assisted Living. 	132 Wn. App. 126, 	135-36, 130 P.3d 865
(2006) 	(a 	court 	cannot 	consider 	inadmissible 	evidence, 	when 	ruling 	on 	a
summary judgment motion.)
10 95 Wn. App. 670, 681-85, 977 P.2d 29 (1999).
11 Bailev. 147 Wn. App. at 263.

No. 67864-7-1 / 7
Weinstock next argues that the statute denies her constitutional right to
have access to the courts. 	When the constitutionality of a statute is challenged,
the 	statute is presumed to be constitutional 	and 	the 	burden 	is on the party
challenging 	the 	statute 	to 	prove 	its 	unconstitutionally 	beyond 	a 	reasonable
doubt.12
The 	2002 	amendments 	were 	made 	to 	reflect that the 	United 	States
Constitution protects advocacy to government, regardless of content or motive.13
Indeed, 	the 	United 	States 	Supreme 	Court 	has 	held 	that 	petitions 	to 	the
government 	are 	protected 	regardless 	of 	intent 	or 	purpose, 	so 	long 	as 	the
communications are intended to influence government decisions.14 	Weinstock
has not met her burden of proof.
Statutory Penalty of $10,000
A party that defeats a lawsuit pursuant to RCW 4.24.510 is entitled to
$10,000 	in statutory 	damages. 	However, 	the 	trial 	court 	may 	disallow 	the
damages if it finds that the party acted in bad faith.15 	The trial court's decision to
permit those damages is discretionary and will be reviewed for an abuse of
discretion. 	There was no evidence of bad faith upon the part of Alamo or its
employees. 	Alamo was properly awarded the $10,000.
12 Tunstallv.Bergeson. 141 Wn.2d 201, 220, 5 P.3d 691 (2000).
13 Laws of 2002, ch. 232, §2.
14 See, e^, City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 369,
111 S. Ct. 1344, 113 L Ed. 2d 382 (1991): Prof I Real Estate Investors. Inc. v.
Columbia Pictures Indus.. Inc.. 508 U.S. 49. 49-60. 113 S. Ct. 1920, 123 L.Ed.
2d 611 (1993).
15 RCW 4.24.510 provides that the person prevailing "shall receive statutory
damages of ten thousand dollars [unless]... the court finds that the complaint or
information was communicated in bad faith."

No. 67864-7-1 / 8
Attorney Fees
Weinstock 	argues 	that 	the 	attorney 	fees 	awarded 	were 	not 	properly
segregated and were not reasonable. 	Washington permits a party to recover
attorney fees 	under a 	statute, 	contract, 	or some well-recognized 	principle of
equity.16 	The appellate court reviews attorney fee awards made pursuant to a
statute for abuse of discretion.17 	Here, each of Weinstock's claims arose from
the initial action of Alamo's report to the police. 	As the prevailing party, Alamo is
entitled to attorney fees.
Weinstock argues that some of the charges in the billing statements are
seemingly not related to the RCW 4.24.510 defense. 	The amount of the attorney
fee award is discretionary and will be overturned only when the court's decision
is manifestly unreasonable or based on untenable grounds. 	Defense counsel
submitted detailed records for the time spent working on this matter. 	The court
specifically found that the hourly rates submitted for the various people involved
in the defense of this suit were "clearly below [the] market rate" and thus did not
merit further discussion. The court reduced Alamo's request for attorney fees
from $49,543.25 to $39,000.00 and the costs from $1,647.35 to $149.90 as those
reasonably associated with defending the suit. 	It is clear from these actions that
the court undertook a reasoned analysis in awarding the fees and costs involved
in the suit. 	The amount awarded was properly segregated from the total amount
16 Torgerson v. One Lincoln Tower. LLC. 166 Wn.2d 510, 525, 210 P.3d 318
(2009) (citing Quality Food Ctrs. v. Marv Jewell T. LLC. 134 Wn. App. 814, 817,
142 P.3d 206 (2006)).
17 Humphrey Indus.. Ltd. v. Clav Street Assocs.. LLC. 170 Wn.2d 495, 506, 242
P.3d 846 (2010).
8

No. 67864-7-1 / 9
of fees incurred. 	Further, the amount awarded was supported by detailed billing
statements and reviewed by the trial court. 	There is a sufficient record for this
court to support the findings and conclusions.
Because the statute authorizes attorney fees, and Alamo is the prevailing
party, Alamo is entitled to such fees on appeal.
Affirmed.
^_ 	J umA..—M-
WE CONCUR:
^ 	^^, 	C/, 	l&ik&e	mS^jA* (