Summary
In Nguyen v. County of Clark, 732 F. Supp. 2d 1190 (W.D. Wash. 2010), the court held that the now defunct RCW 54.24.525 was remedial because it "does not dismiss [the defendants’] counterclaim for malicious prosecution, but simply changes the procedures that they must adhere to in proving their claims."
Summary of this case from Ten Bridges, LLC v. Midas Mulligan, LLCOpinion
Case No. C10-5267BHS.
August 12, 2010.
David Paul Meyer, Portland, OR, for Plaintiffs.
E. Bronson Potter, Vancouver, WA, Michael Alexander Patterson, Patterson, Buchanan, Fobes, Leitch Kalzer, PS, Daniel Francis Mullin, Mullin Law Group PLLC, Jennifer D. Loynd, Mullin Law Group PLLC, Seattle, WA, Jennifer Lloyd, Irell Manella, Los Angeles, CA, for Defendants.
ORDER RENOTING PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' COUNTERCLAIM FOR MALICIOUS PROSECUTION
This matter comes before the Court on the Plaintiffs' Special Motion to Strike the Clark County Defendants' Counterclaim for Malicious Prosecution (Dkt. 48). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the record, and hereby renotes the motion pending limited discovery on the counterclaim for malicious prosecution for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 19, 2010, Plaintiffs filed a complaint against Defendants alleging civil rights violations under 42 U.S.C. § 1983 related to the death of Plaintiff Vuong Guang Tran ("Mr. Tran"). Dkt. 1. On June 7, 2010, Defendants Clark County, Garry E. Lucas, Joseph K. Dunegan, Jackie Batties, Bill Barron, Jack G. Huff, Michael J. Nagy and Robert Karcher (collectively "Clark County Defendants") filed their answer to Plaintiffs' complaint, which included a counterclaim against Plaintiffs for malicious prosecution. Dkt. 34 at 14. On July 2, 2010, Plaintiffs filed the instant motion to strike Clark County Defendants' counterclaim for malicious prosecution. Dkt. 48. On July 26, 2010, Clark County Defendants responded to the motion (Dkt. 49) and on July 30, 2010, Plaintiffs replied (Dkt. 52).
II. DISCUSSION
On June 10, 2010, a statute was enacted by the Legislature of the State of Washington governing "Strategic Lawsuits Against Public Participation," known as "SLAPPs" which are "lawsuits aimed at chilling the valid exercise of the constitutional rights of speech and petition." Dkt. 48 at 17. The Washington statute governing these suits is known as an Anti-SLAPP law and the new version of the statute protects a broader range of conduct including "[a]ny oral statement made, or written statement or other document submitted, in a . . . judicial proceeding." RCW § 4.24.0001 Sec. 2(2)(a). Washington's former Anti-SLAPP law, enacted in 1989 and amended in 2002, only protected claims arising out of communications made to the government, or organizations delegated with governmental authority, that involved matters reasonably of concern to that agency or organization. See RCW § 4.24.510. Here, Plaintiffs allege that, under Washington's new Anti-SLAPP law, Clark County Defendants' motion for malicious prosecution should be stricken as Clark County Defendants cannot show, by clear and convincing evidence, a probability of prevailing on the merits of their counterclaim. Dkt. 48. Clark County Defendants maintain that the new Anti-SLAPP law is inapplicable to their counterclaim for malicious prosecution because the claim was filed three days before the statute's effective date. Dkt. 49 at 4-7; see Dkt. 34 at 14, RCW § 4.24.0001. In the alternative, Clark County Defendants request that the Court stay Plaintiffs' motion to strike and allow limited discovery on their counterclaim for malicious prosecution. Dkt. 49 at 7-13.
All statutes are presumed to run prospectively. 1000 Virginia Ltd. Partnership v. Vertecs Corp., 158 Wn.2d 566, 584 (2006). "However, a statute or an amendment to a statute may be retroactively applied if the legislature so intended, if it is clearly curative, or if it is remedial, provided that retroactive application does not run afoul of any constitutional prohibition." Id. (internal quotation marks omitted). "We look to both the statute's purpose and the language in analyzing the issue of retroactivity." McGee Guest Home, Inc. v. Dept. of Soc. and Health Servs., 142 Wn.2d 316, 325 (2000). Enactment of a statute or an amendment "is curative only if it clarifies or technically corrects an ambiguous statute." 1000 Virginia, 158 Wn.2d at 584 (quoting McGee, 142 Wn.2d at 325). "A statute is remedial when it relates to practice, procedure, or remedies and does not affect a substantive or vested right." Miebach v. Colasurdo, 102 Wn.2d 170, 181 (1984). "However, a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws." Id. (internal quotation marks omitted).
Here, Plaintiffs do not argue that the Washington legislature explicitly intended the Anti-SLAPP statute to apply retroactively. However, Plaintiffs do assert that the Anti-SLAPP statute can be applied retroactively as the law "arguably is curative, and most certainly is remedial." Dkt. 52 at 5. Clark County Defendants maintain that the Anti-SLAPP law does not apply to their malicious prosecution claim because the statute is not curative, as the existing Anti-SLAPP statute was not ambiguous. Dkt. 49 at 5-7. They also argue that the statute is not remedial, as such application would divest them of a vested right. Id.
A. Curative
In 1000 Virginia, the Washington Supreme Court stated that a statute could be applied retroactively if it was "clearly curative." 158 Wn.2d at 584. Plaintiffs assert that the legislature, in enacting the 2002 amendment to the statute, intended but failed to create a procedure for speedy adjudication of SLAPPs. Dkt. 52 at 5-6. According to Plaintiffs, the new Anti-SLAPP law is curative because it creates such a procedure. Id. Although the legislature, in enacting the new version of the Anti-SLAPP law, certainly added provisions to the previous amendment, the Court finds that the 2002 amendment did not contain ambiguities that had to be "cured" by the new version of the law. See §§ 4.24.510 and 424.0001. Rather, the Legislature added provisions to the existing statute. See id. The Court operates under the presumption that statutes are to apply prospectively only and concludes that this presumption has not been rebutted, as the new Anti-SLAPP statute is not clearly curative. See 1000 Virginia, 158 Wn.2d at 584.
B. Remedial
C. Discovery
Miebach, 102 Wn.2d at 181 O'Donoghue v. State,66 Wn.2d 787790Id., see Donoghue, 66 Wn.2d at 790Chelentis v. Luckenbach S. S. Co., 247 U.S. 372 284 See id. See See Metabolife Int'l, Inc. v. Wornick,264 F.3d 832845-46See
III. ORDER
Therefore, it is hereby ORDERED that Clark County Defendants file, on or before September 7, 2010, a second response to Plaintiffs' motion to strike counterclaim for malicious prosecution (Dkt. 48). Plaintiffs may file, on or before September 10, 2010, a reply to Clark County Defendants' second response to the motion to strike, and the motion is hereby RENOTED to September 10, 2010.