* Samantha Gerlach, Et Al., Appellants V. Bainbridge Island School District, Et Al., Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
M.G., SAMANTHA GERLACH and
SUZANNE GERLACH,
Appellants,
v.
BAINBRIDGE ISLAND SCHOOL
DISTRICT #303, a
municipal corporation, WASHINGTON
STATE HOSA, a nonprofit corporation,
NASZYA BRADSHAW an individual,
ELEANOR WILSON an individual AND
DOES 1-100,
Respondents.
No. 86846-2-I
DIVISION ONE
OPINION PUBLISHED IN PART
COBURN , J. — Washington State’s Uniform Public Expression Protection Act
(UPEPA) is a type of law designed to combat the problem of strategic lawsuits against
public participation (anti-SLAPP law). Thurman v. Cowles Co., No. 102791-5, 2025 WL
338065 (Wash. Jan. 30, 2025), https://www.courts.wa.gov/opinions/pdf/1027915.pdf.
The law, ch. 4.105 RCW, is designed “to protect important public speech from frivolous
litigation by providing a procedural scheme that disposes of such cases early and swiftly
in the litigation life cycle.” Id. at 1. Plaintiffs appeal, among other orders, the trial court’s
granting of Eleanor Wilson’s and Naszya Bradshaw’s joint UPEPA motion and
dismissing all claims against them with prejudice.
Central in this case is what occurred in the Bainbridge Island community in the
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fall of 2020 and early 2021. As reported by the Bainbridge Island Review, in the fall of
2020, a rally was held to encourage girls to talk about sexual assault. Attendees were
invited to tell their stories and learn about “Let’s Talk,” a service through Bainbridge
Youth Services (BYS) which offers group, one-on-one and small group peer support. In
January 2021, several women posted allegations of sexual assault and harassment, on
social media, perpetrated by named male Bainbridge High School (BHS) students and
criticism of how BHS responded to such complaints. One of the named male students
was M.G.
In January 2023, M.G., his sibling Samantha Gerlach, and his mother Suzanne
Gerlach,1 sued the Bainbridge Island School District (BISD), Health Occupation
Students of America (HOSA)2, Wilson, Bradshaw, and Does #1-100. The plaintiffs are
represented by Marcus Gerlach.3 Wilson’s speech, that is the subject of this suit, is her
social media post “@ all the girls who are, or have been victims of [M.G.4] in any way”
and offering to take their “stories and compose a letter to the school with your
demands.” Plaintiffs never assert what it is that Bradshaw communicated other than a
colorful, defiant social media post in response to being confronted with a possible
defamation lawsuit.
In the plaintiffs’ first amended complaint,5 they allege defamation, conspiracy to
1 Despite identifying M.G. only by initials, plaintiffs disclose in their complaint and
declarations how they are related to one another.
2 HOSA is an afterschool club at Bainbridge High School. Plaintiffs identify HOSA as a
Washington State non-profit corporation.
3 Because of shared surnames, we refer to Samantha and Suzanne by their first name
for clarity and to Marcus Gerlach as Attorney Gerlach.
4 In the record, M.G.’s name is redacted, except for his initials. But it is undisputed that
the post used M.G.’s first and last name.
5 Hereinafter referred to as “complaint.”
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commit defamation, fraud, cyberstalking, violations of the Washington Law Against
Discrimination (WLAD), and loss of consortium. They separately also allege negligence
claims against BISD and HOSA.6 In addition to the granting of the UPEPA motion, the
plaintiffs appeal the trial court’s (1) granting of defendants’ motion to amend the case
caption to reflect M.G.’s full name; (2) declining to recuse itself; (3) award of CR 11
sanctions against Attorney Gerlach; (4) denial of the plaintiffs’ cross-motion for CR 11
sanctions; and (5) dismissal, under CR 12(b)(6), of all claims against HOSA.7
We affirm the dismissal of all claims against Wilson and Bradshaw, and the
award of CR 11 sanctions against Attorney Gerlach. Plaintiffs waived any argument that
the trial court should have recused itself for an alleged conflict of interest, but
nonetheless conclude that the plaintiffs fail to demonstrate that the trial court was
biased. However, because the trial court did not apply the correct legal analysis as
further discussed below, we reverse the trial court’s order amending the case caption
and remand for further proceedings.8 As to all remaining claims, plaintiffs either fail to
assign error or fail to sufficiently present argument and citations to the record to warrant
review.
6 The plaintiffs also initially alleged claims under federal law, but later amended the
complaint by withdrawing their federal claims.
7 BISD had joined HOSA’s second CR 12(b)(6) motion, requesting partial dismissal of
plaintiffs’ claims against BISD. The trial court granted BISD’s motion dismissing claims for
defamation, fraud, civil conspiracy, cyberstalking, and loss of consortium by Samantha. Plaintiffs
do not appeal this order. Thus, the only issue in this appeal that relates to BISD is the motion to
amend the case caption for which BISD joined.
8 Because we reverse the trial court’s order amending the case caption, this opinion
reflects the case caption as it existed prior to the court’s August 7, 2023 order. RAP 3.4.
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FACTS
M.G. attended BHS from 2018 to 2021. Samantha graduated from BHS in June
2019. Both participated in HOSA while at BHS. At BHS, M.G. received accommodations
under Section 504 of the Rehabilitation Act of 1973. Wilson and Bradshaw also
attended BHS and graduated in 2020. M.G. never had any interaction with either of
them during high school.
According to Wilson, while in high school, she had been a victim of sexual
harassment and the school handled it poorly. In 2017, she was one of many Bainbridge
Islanders who attended a Women’s March advocating for women to have the right to
speak freely about their experiences as victims of sexual harassment/assaults. She
recalled that “[a]t that time, I remember Bainbridge Island being a hotbed of attempted
youth social justice action.” While attending BHS, she recalled seeing on social media,
allegations of sexual assault and harassment perpetrated by male BHS students and
reading criticism of how the school handled such incidents. In January 2021, Wilson
noticed a “huge uptick” in social media posts from women who felt unheard by BHS and
posted the names of “perpetrators,” including, but not limited to M.G. Wilson recalled
seeing posts from eight different women, some of whom Wilson knew from when she
attended BHS. After seeing the posts, Wilson offered on social media to document the
stories of victims of sexual assault/harassment. Her post stated:
@ all the girls who are, or have been victims of M.G. in any way:
if you guys want, I will take your stories and compose a letter to the school
with your demands. I will be your Alexander Hamilton.
Anything y’all need. I don’t have much to offer except my writing skills, and
maybe a few connections. But I’m here for you and I want to help you. You
can message me on my insta, @blacksmithshenanigans.
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I’d want ALL of your input on what I write, so if y’all could all talk to each
other that’d be greatly appreciated.
No detail spared. No grievance unaired. If you want, I will write it for you. I
will represent you. I am not a lawyer, but I am a writer, and a survivor
myself. I am here for you.
BELIEVE WOMEN.
BELIEVE SURVIVORS.
M.G. and Samantha saw Wilson’s post. That same month, M.G. attended an in-person
meeting with BISD staff to discuss what he characterized as cyber-harassment/sexual
harassment against him. M.G. reports being told that BISD could not do anything to
prevent cyber-bullying that was outside of school.
M.G. and Samantha also saw postings from Bradshaw on her Instagram
account. They aver that the postings were viewable from 2021 through 2023 and
characterize the postings as “false, malicious and defamatory comments about [M.G.]
on the internet.” They never assert what the posts actually said.
Plaintiffs filed their initial complaint in January 2023. They claim Wilson, on or
about January 23, 2021, “made defamatory claims and offered to write contrived stories
about male Section 504 students and then make demands on the School.” As to
Bradshaw, the plaintiffs claimed she
posted false defamatory and malicious stories about M.G. which were
designed to impugn his name and reputation in the community.
[Bradshaw] acted with disregard for the truth, based in part upon the false
stories manufactured by [Wilson].
The complaint did not assert any specific factual allegations related to Bradshaw.
As to HOSA, plaintiffs claim various ways a HOSA advisor mishandled several
incidents: (1) failed to discipline a HOSA student who in March 2019 sent through a
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school’s internal email “remind” account that “underclassmen bullying underclassmen
will result in someone’s ass getting kicked by another underclassmen”; (2) only required
HOSA/School female students to write an apology letter to the advisor, and not to M.G.,
after admitting in October 2019 to creating a false social media post depicting M.G. as
calling another female student fat; (3) failed to collect evidence, conduct a formal
investigation or discipline female HOSA/School students when in December 2019, the
advisor saw false, malicious and defamatory statements created by Does #1 and #2.
We summarize the plaintiffs’ various claims in their complaint as follows.
A. Violation of WLAD
Under former RCW 49.60.215(14) (2020)9, the “School/HOSA/Does # 1-30” (1)
failed to protect a minor, male, Section 504 student; and (2) directly, or indirectly,
caused a person of a particular sex or class to be treated as “not welcome, accepted, or
desired.” The “School/HOSA/Defendants’ conduct was extreme and outrageous” and
that “the Defendants’ conduct intentionally or recklessly caused emotional distress to
M.G.”
D. Negligence
The school had a special relationship with a Section 504 student, M.G., and that
the School and HOSA had a duty to enforce their policies and procedures to protect a
male Section 504 student, that they breached that duty, and that the “Defendants’
negligence allowed the girls to circumvent [policies and procedures] … and prevented
M.G. from succeeding and obtaining an education under FAPE.”
9 Subsection “(14)” does not exist in former RCW 49.60.215. The statute was amended
on June 6, 2024, after plaintiffs filed their complaint. LAWS OF 2024, ch. 161, § 3. The new
statute also has no subsection “(14).”
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E. Defamation
The “Defendants” “falsely accused M.G. of rape.” They allege that the
“School/HOSA/[Wilson]/[Bradshaw]/Does #1-30” (1) made false statements about M.G.
which were unprivileged communications; (2) knew the statements were false or acted
with disregard for the truth; and (3) caused permanent physical, mental, emotional and
psychological harm to the plaintiffs.
F. Fraud
The “Defendants devised a scheme to defraud M.G. out of money paid to the
university, junior college and HOSA. The scheme was to manufacture false, defamatory
and malicious claims about M.G., calling M.G. ‘Fuck-Boy,’ ‘Slut-Boy,’ ‘Rapist,’ ‘Abuser’
with the purpose and intent of defrauding M.G. out of non-refundable monies paid to his
university.” Washington State University had offered admission to M.G. in December
2020, but later rescinded its offer.
G. Civil Conspiracy
“Defendants” conspired to engage in the schemes alleged, including
accomplishing “defamation per se,” and that they “knew that their predicate acts were in
furtherance of the scheme and part of a pattern targeting a student protected under
WLAD.”
H. Consortium (RCW 4.24.010) and Emotional Distress
As a direct and proximate cause of the “Defendants’ actions,” M.G. was
prevented from
1) Competing in round two HOSA 2021 testing; 2) Attending “Grad’s Night
Out”; 3) Participating in the School’s prom; 4) Attending the School’s 2021
graduation ceremony; 5) Personally receiving his scholarship at the
School’s award’s ceremony; 6) Attending church; 7) Depriving M.G. of
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attending his accepted university; 8) removal from M.G.’s senior yearbook.
M.G. was ostracized and harassed in the community because of the
School’s Google Drive, which contained false, defamatory and malicious
accusations of rape.
PROCEDURAL HISTORY
In response to plaintiffs’ complaint, Wilson and Bradshaw filed a joint motion for
expedited relief under UPEPA.10 RCW 4.105.020. Plaintiffs filed an opposition to the
motion and attached declarations from Attorney Gerlach and all the plaintiffs. Both
Attorney Gerlach, M.G. and Samantha stated that when Bradshaw was confronted
about possible lawsuits from “victims,” Bradshaw responded via social media with the
following post that M.G. and Samantha both personally saw:11
[f]irst of all: idgaf bout any threats of defamation suits. It’s not defamation if
you’ve committed these heinous actions on camera. Dumbass hoe.
Second: idgaf if the abuser is your homie, sister, brother, whateva. They’re
an abuser. They can learn or rot. I’m not ruining lives, they ruined their
own. Eat my black ass.
In the opposition motion, plaintiffs did not assert the application of any of the statutory
exceptions to UPEPA under RCW 4.105.010(3). See RCW 4.105.060(1)(b).
10 This occurred in the United States District Court for the Western District of Washington
where BISD had moved the case. A prior notice of intent to file the motion triggered a 14-day
window within which plaintiffs could either withdraw or amend their complaint. RCW
4.105.020(1). Plaintiffs chose to amend the original complaint by withdrawing any reference to
federal claims. After the amendment, the district court declined to exercise its supplemental
jurisdiction and remanded the matter back to State court, where Bradshaw and Wilson refiled
their UPEPA motion. Other than the removal of federal claims, there was no substantive change
to the Plaintiffs’ complaint.
11 It is unclear as to how Attorney Gerlach, M.G. and Samantha have personal
knowledge that Bradshaw was confronted about possible lawsuits and who did the confronting,
as plaintiffs did not include that information in the record. Despite the fact that Bradshaw’s post
did not include any names, M.G. stated he believed “Bradshaw targeted me-a white, male
Section 504 student because of Naszya Bradshaw’s alleged black privilege.”
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HOSA responded to the plaintiffs’ complaint by filing a second CR 12(b)(6)
motion to dismiss.12 Plaintiffs responded by filing an opposition to the motion. Attached
to the motion were multiple exhibits untethered to any declaration establishing personal
knowledge of the exhibits’ content.13
The court held a hearing on June 12 on all the motions, including plaintiffs’
motion for reconsideration, which was correctly treated as a motion to recuse. The court
denied the motion to recuse during the hearing and later issued a written order on June
23, 2023. The court requested all parties submit proposed orders related to the UPEPA
motion for the court’s consideration.
More than two weeks after oral argument, but before the court issued any rulings,
Wilson submitted a declaration. Wilson and Bradshaw filed a joint supplemental
memorandum with attached exhibits. Many of the exhibits were exhibits previously
submitted by the plaintiffs. Other exhibits included copies of local newspaper articles,
and what appears to be an undated social media post by the superintendent of BISD
that was untethered to any declaration.
Plaintiffs filed a June 26 motion to strike the supplemental pleadings as untimely.
It was in this motion to strike that plaintiffs first asserted the application of UPEPA
exceptions. Attorney Gerlach’s statements in this pleading and his subsequent errata
filing formed the basis of Wilson’s motion for CR 11 sanctions, which the court later
12 It appears HOSA identifies this as its “second” CR 12(b)(6) motion because it
previously filed this motion in federal court when the case was temporarily moved there. The
federal court did not rule on the motion before remanding the matter back to Kitsap County
Superior Court.
13 Attorney Gerlach, in the opposition pleading, describes one of the exhibits as the
notes of the investigator hired by BISD to conduct an investigation related to social media posts,
while also accusing the investigator of being biased. Attorney Gerlach did not attach the actual
final report of the investigator.
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granted and awarded attorney fees. The court also denied the plaintiffs’ cross-motion for
CR 11 sanctions.
The trial court denied plaintiffs’ motion to strike, granted the UPEPA motion and
awarded Bradshaw and Wilson attorney fees under RCW 4.105.090. The trial court also
granted HOSA’s second CR 12(b)(6) motion dismissing the claims for negligence,
defamation, civil conspiracy, and fraud. The court denied plaintiff’s motion for
reconsideration. The court later granted HOSA’s third CR 12(b)(6) motion to dismiss the
remaining claims against HOSA.14 Plaintiffs did not file an objection to the motion. Prior
to the court granting the UPEPA motion, Bradshaw and Wilson moved to amend the
case caption to identify M.G. by his full name and requested leave of the court to
identify M.G. by his full name. BISD and HOSA joined the motion. The court granted the
motion.
Plaintiffs appeal. More facts are discussed below where relevant.
DISCUSSION
Case Caption
In its initial complaint and throughout its pleadings, plaintiffs identify M.G. only by
initials. Bradshaw and Wilson first noted their objection only as a footnote in their joint
UPEPA motion. They wrote:
“M.G.” is not a minor, and there is no basis in the record for allowing
“M.G.” to proceed incognito. While counsel has respected the designation
in this pleading, the Court should sua sponte order amendment of the
Complaint to specifically identify “M.G.” just like any other adult seeking
relief in this public forum.
14 The remaining claims were cyberstalking, loss of consortium, and emotional distress.
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During the June 12, 2023 UPEPA motion hearing, Wilson’s counsel observed that it was
improper for the plaintiffs to initiate this case using M.G.’s initials, but said, “That’s a
side issue, we’ve raised that in a couple of our briefs.” The court responded that it had
seen that but was not going to address it, explaining that it should be brought as a
motion for the court to “address it, if necessary.”
Bradshaw and Wilson filed a joint motion on July 7, 2023, to amend the case
caption and for leave from the court to use M.G.’s full name. BISD and HOSA joined the
motion. The motion stated,
The Court first decides whether a proposed redaction implicates Article I,
Section 10; once that determination has been made, the trial court must
consider either a set of constitutional factors under Seattle Times Co. v.
Ishikawa, 97 Wn.2d 30, 640[ ]P.2d 716 (1982), or the factors under GR
15. State v. S.J.C., 183 Wn.2d 408, 412, 352 P.3d 749 (2015); John Doe
G v. Dep’t of Corr., 190 Wn.2d 185, 191, 410 P.3d 1156 (2018). This is
because the public has a right of access to court records, which includes
the full names of litigants.
The motion was made while the UPEPA motion was still pending, but the hearing was
not held until after the trial court granted the UPEPA motion and dismissed all claims
against Bradshaw and Wilson. Plaintiffs’ opposition motion focused on lack of notice.
At the hearing, counsel for Bradshaw and Wilson argued that in order for M.G. to
litigate in pseudonym or by initials, he needs to seek leave of court ahead of time and
show a compelling reason. BISD, which joined the motion but did not submit separate
briefing, argued that there needs to be a showing under Ishikawa “that there will be
serious and imminent threat to MG – to some interests of MG if his full name is used.
And that was not done here.” Attorney Gerlach argued as follows:
When the allegations are plainly false, the public, as a rule, has no
legitimate interest in finding out names of people who have been falsely
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accused, that’s the Bellevue John Does 1 through 11 v. Bellevue School
District case. [15]
….
There is no ambiguity there. In cases involving sexual harassment,
as the Court indicated, or sexual assault, and there was assault on this
case, as well as sexual harassment, the plaintiff can pursue the case
through the use of initials.
So the idea that somehow, because this started when he was a
minor and continued after he was no longer a minor, and somehow that
eliminates the initial causes of action and claims, is false.
So with respect to that, I think the Court was correct. The plaintiff
can pursue an action, they can use initials. Case law is clear on that.
There’s no procedural issue that’s mandating, unless the Court would
require it, we’d be happy to file a petition to proceed under initials.
The court recognized that M.G.’s privacy concerns are not without merit and
acknowledged that it took his privacy and safety concerns seriously, but in deciding
whether someone can proceed under their initials, the court must follow the procedures
and factors from Ishikawa.16 In doing so, the court determined that plaintiffs failed to
show a “serious and imminent threat to some other important interest” as he sought to
protect a right other than the right to a fair trial. The court ruled that the plaintiffs failed to
articulate a serious and imminent threat to an important interest if M.G. is forced to use
his full name in this action, and any interest here is outweighed by the public’s interest
in the open administration of justice. The court granted the motion and ordered that “the
15 Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 205, 189
P.3d 139 (2008) (determining that when allegations of misconduct are “unsubstantiated,”
disclosure of a teacher’s identity violates their right to privacy, and enjoining release under the
former public disclosure act).
16 Under Ishikawa,
(1) the proponent of closure must make a showing of compelling need, (2) any
person present when the motion is made must be given an opportunity to object,
(3) the means of curtailing open access must be the least restrictive means
available for protecting the threatened interests, (4) the court must weigh the
competing interests of the public and of the closure, and (5) the order must be no
broader in application or duration than necessary.
John Doe 1 v. Prosecuting Att’y, 192 Wn. App. 612, 617, 369 P.3d 166 (2016) (citing Ishikawa,
97 Wn.2d at 37-39, 640 P.2d 716 (1982)).
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case caption shall be amended to include “M.G.”s full name. All parties have leave to
refer to M.G. by his full name in all future pleadings.”
Plaintiffs challenge the court’s ruling. They argue that while article I, section 10 of
the Washington constitution requires that “[j]ustice in all cases shall be administered
openly,” “it is equally clear that the public’s right to access is not absolute and may be
limited to protect other interests.” In essence, plaintiffs argue that M.G. was falsely
accused of sexual assault and the public has no legitimate interest in finding out the
names of people who have been falsely accused. Defendants did not address this issue
in their response briefs.
We review a trial court’s decision to allow plaintiffs to proceed under pseudonyms
for an abuse of discretion. Doe AA v. King County, 15 Wn. App. 2d 710, 717, 476 P.3d
1055 (2020). “A trial court abuses its discretion if its decision is manifestly unreasonable
or based on untenable grounds or untenable reasons.” In re Marriage of Muhammad,
153 Wn.2d 795, 803, 108 P.3d 779 (2005) (quoting In re Marriage of Littlefield, 133
Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). A trial court’s discretionary decision is based
on untenable grounds or made for untenable reasons if it rests on facts unsupported in
the record or was reached by applying the wrong legal standard. T.S. v. Boy Scouts of
Am., 157 Wn.2d 416, 423-24, 138 P.3d 1053 (2006).
“In the complaint the title of the action shall include the names of all the
parties…” CR 10(a)(1).
Article 1, section 10 of the Washington State Constitution requires courts
conduct judicial proceedings openly and without delay. This means court
proceedings and court documents are presumptively open to the public,
and any exception is appropriate “only in the most unusual of
circumstances.” Although openness is presumed, it is not absolute. “The
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public’s right of access may be limited to protect other significant and
fundamental rights, such as a defendant’s right to a fair trial.”
Doe AA, 15 Wn. App. 2d at 718-19 (internal citations omitted).
“Whether an Ishikawa analysis is necessary depends on whether article I, section
10 applies.” S.J.C., 183 Wn.2d at 412. “Whether article I, section 10 applies depends on
application of the experience and logic test.” Id. A court must determine whether
experience and logic support a party’s desire to proceed in pseudonym. Doe G., 190
Wn.2d at 199. The experience prong examines “‘whether the place and process have
historically been open to the press and general public.’” Id. The logic prong examines
“‘whether public access plays a significant positive role in the functioning of the
particular process in question.’” Id.;17 see Bellevue John Does 1-11, 164 Wn.2d at 217
(holding that experience and logic show that allowing plaintiffs to proceed under
pseudonyms does not implicate article 1, section 10 where the public’s interest in the
plaintiffs’ names is minimal and use of those names would chill their ability to seek
relief).
17 The Washington Supreme Court recently stated that “We have held that names in
court pleadings are subject to article I, Section 10 and GR 15.” John Does v. Seattle Police
Dep’t et al, No. 102182-8 slip op. at 38 (Wash. February 13, 2025) (unpublished),
https://www.courts.wa.gov/opinions/pdf/1021828.opn.pdf. (citing Doe G., 190 Wn.2d at 201).
The court then went on to discuss the five-step framework in Ishikawa without any mention of
the experience and logic test. Does, slip op. at 38. However, the Supreme Court in Doe G.
followed its holding in S.J.C., 183 Wn.2d at 412, and first applied the experience and logic test
to determine if article I, Section 10 applied. Doe G., 190 Wn.2d at 199. In doing so, the court
concluded that “names of people convicted of criminal offenses, including sex offenders, have
historically been open to the public” and observed that “[u]nlike convicted sex offenders, parties
who have not been convicted of any crime may have a legitimate privacy interest because there
is no public record associating them with the subject of their litigation.” Id. at 200. Doe G.
involved whether special sex offender sentencing alternative evaluations are exempt from
disclosure under the Public Records Act, chapter 42.56 RCW, and whether pseudonymous
litigation was proper in the action. Id. at 189. Doe G. did not categorically hold that all names in
pleadings are necessarily subject to an Ishikawa analysis. The Supreme Court in John Does,
did not disavow or overrule S.J.C. or Doe G. We continue to follow and apply S.J.C. and Doe G.
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Courts must analyze a motion to redact or seal, using both GR 1518 and Ishikawa
factors. Doe AA, 15 Wn. App. 2d at 719 (citing Hundtofte v. Encarnacion, 181 Wn.2d 1,
7, 330 P.3d 168 (2014)). A trial court must justify redaction of names in pleadings under
GR 15. Doe G., 190 Wn.2d at 198. GR 15(c)(2) authorizes the redaction of names when
“justified by identified compelling privacy or safety concerns that outweigh the public
interest in access to the court record.”
In the instant case, counsel for Bradshaw and Wilson correctly indicated in their
motion that the court must first decide whether Article I, Section 10 applied, and even
cited S.J.C., 183 Wn.2d 408 and Doe G., 190 Wn.2d 185. Both cases explain that
“whether an Ishikawa analysis is necessary depends on whether article I, section 10
applies,” and “whether article I, section 10 applies depends on application of the
experience and logic test.” Doe G., 190 Wn.2d at 199 (quoting S.J.C., 183 Wn.2d at
412). However, none of the parties at oral argument mention the experience and logic
test. In fact, counsel for BISD simply argued that M.G. failed to meet the requirements
under Ishikawa. The trial court followed that argument.
While the trial court had reason to admonish plaintiffs for not first seeking to
proceed using only M.G.’s initials, the court, nonetheless, was faced with such a
request, albeit by way of a hearing brought by defendants. The court proceeded to
determine whether M.G. would be permitted to continue to proceed by initials. In doing
so, the court was required to apply the correct legal standard.19 We decline to engage in
18 GR 15 sets forth a uniform procedure for the destruction, sealing, and redaction of
court records. GR 15(a).
19 Following oral argument, Bradshaw filed a statement of “Supplemental Authorities”
that were previously available at the time Bradshaw filed her response brief. RAP 10.8 allows a
party to file a statement of additional authorities. “We view this rule as being intended to provide
parties an opportunity to cite authority decided after the completion of briefing. We do not view it
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our own experience and logic analysis, and instead reverse the trial court’s order and
remand for further proceedings.20
UPEPA Motion
Plaintiffs challenge the trial court’s decision to grant the UPEPA motion. They
contend the act is unconstitutional, and, in the alternative, that the trial court erred in
concluding the speech in question was one of public concern, and that UPEPA
exceptions did not apply. Finding no error, we affirm the trial court.
UPEPA, chapter 4.105 RCW, is designed to provide an expedited process for
dismissing lawsuits that target activities protected by the First Amendment, such as
freedom of speech, press, assembly, petition, and association on matters of public
concern. Thurman, slip op. at 1-2. RCW 4.105.903 provides: “This chapter applies to a
civil action filed or cause of action asserted in a civil action on or after July 25, 2021.”
The UPEPA allows a defendant to file a special motion for expedited relief within 60
days of being served with a pleading asserting a covered cause of action. Id. Relevant
to this case, chapter 4.105 RCW applies to any claim asserted “against a person based
on the person’s … [e]xercise of the right of freedom of speech or of the press, the right
to assemble or petition, or the right of association, guaranteed by the United States
Constitution or Washington state Constitution, on a matter of public concern.”
as being intended to permit parties to submit to the court cases that they failed to timely identify
when preparing their briefs.” O’Neil v. City of Shoreline, 183 Wn. App. 15, 23, 332 P.3d 1099
(2014). Moreover, Bradshaw also raises arguments she could have, but failed to raise in her
response brief. Thus, we grant plaintiffs’ motion to strike Bradshaw’s supplemental pleading.
20 Though all claims against Bradshaw, Wilson and HOSA have been dismissed, the
record before us does not establish that all claims against Does 1-100 and BISD have been
dismissed. We recognize that based on the trial court’s ruling, pleadings were filed that used
M.G.’s full name. Our holding addresses the issue before the trial court of whether M.G. may
proceed without using his full name. It does not address motions to redact or seal court records
under GR 15.
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RCW 4.105.010(2)(c). Certain exceptions to this rule are enumerated in RCW
4.105.010(3)(a).
Plaintiffs assert for the first time on appeal that RCW 4.105.010(3) is facially
unconstitutional and as applied because it violates the right to a jury trial, is too vague,
and violated plaintiffs’ right to due process.
Constitutional challenges are subject to de novo review. Portugal v. Franklin
County, 1 Wn.3d 629, 647, 530 P.3d 994 (2023) (“We presume statutes are
constitutional, and the party challenging constitutionality bears the burden of proving
otherwise.”). Additionally, an appellate court “may refuse to review any claim of error
which was not raised in the trial court.” RAP 2.5(a); State v. Strine, 176 Wn.2d 742, 749,
293 P.3d 1177 (2013). A party must raise an issue at trial in order to preserve the issue
for appeal, unless the party can show the presence of a “‘manifest error affecting a
constitutional right.’” RAP 2.5(a)(3); State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d
84 (2011).
Plaintiffs only mentioned the constitutionality of UPEPA below when they
opposed Bradshaw’s motion for attorney fees and costs under RCW 4.105. In that
motion, plaintiffs asserted that Wilson’s law firm made statements, in 2020, that
challenged UPEPA’s constitutionality regarding the application of attorney fees and
costs. That is plainly distinct from the claim they assert on appeal. In addition, they
make no attempt to establish that the alleged error was manifest or make any attempt to
satisfy RAP 2.5(a)(3). The plaintiffs have waived their constitutional claims.
They next argue that the trial court erroneously applied RCW 4.105.060. We
disagree.
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Our Court reviews issues of statutory interpretation de novo. Pub. Util. Dist. No. 2
of Pac. County v. Comcast of Wash. IV, Inc., 8 Wn. App. 2d 418, 449, 438 P.3d
1212 (2019). “In assessing whether the trial court erred by denying [a] UPEPA motion,
we engage in the three-step analysis dictated by RCW 4.105.060(1).” Jha v. Khan, 24
Wn. App. 2d 377, 388, 520 P.3d 470 (2022). First, it is the moving party’s burden to
establish that UPEPA applies to the cause of action. RCW 4.105.060(1)(a); Id. Second,
once the moving party has satisfied this requirement, the burden shifts to the
responding party to establish that a statutory exception applies under RCW
4.105.060(1)(b). Jha, 24 Wn. App. 2d at 387. And third, if the responding party fails to
demonstrate that an exception applies, the trial court must dismiss the action if either:
(i) The responding party fails to establish a prima facie case as to each
essential element of the cause of action; or
(ii) The moving party establishes that:
(A) The responding party failed to state a cause of action upon which relief
can be granted; or
(B) There is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law on the cause of action or part of
the cause of action.
RCW 4.105.060(1)(c). The court must dismiss the cause of action or part of the cause
of action if three conditions are met. Thurman v. Cowles Co., 29 Wn. App. 2d 230, 238,
541 P.3d 403 (2024), rev’d, on other grounds, 562 P.3d 777 (Wash. 2025).
In ruling on a motion under RCW 4.105.020, the court shall
consider the pleadings, the motion, any reply or response to the motion,
and any evidence that could be considered in ruling on a motion for
summary judgment under superior court civil rule 56.
RCW 4.105.050.
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A. UPEPA Application
Under the first step of the UPEPA analysis, Bradshaw and Wilson both maintain
that UPEPA applies because plaintiffs’ cause of action against them is based on the
exercise of their right of freedom of speech, and that their statements were a matter of
public concern. Plaintiffs argues otherwise.
UPEPA applies when a complaint is based on the individual’s “[e]xercise of the
right of freedom of speech or of the press, the right to assemble or petition, or the right
of association, guaranteed by the United States Constitution or Washington state
Constitution, on a matter of public concern.” RCW 4.105.010(2)(c). Whether speech is a
matter of public concern is a question of law, which courts must determine “‘by the
content, form, and context of a given statement, as revealed by the whole record.’”
Billings v. Town of Steilacoom, 2 Wn. App. 2d 1, 31, 408 P.3d 1123 (2017) (quoting
Connick v. Myers, 461 U.S. 138, 147-48, 148 n.7, 103 S. Ct. 1684, 75 L. Ed. 2d 708
(1983)). 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. Jha, 24 Wn.
App. 2d at 389.
We first analyze the “content, form, and context” of the target of the plaintiffs’
claims against Bradshaw and Wilson. It is undisputed that those claims attack
Bradshaw’s and Wilson’s speech, and that speech consisted of public social media
posts. Wilson’s speech targeted “all the girls who are, or have been victims of M.G. in
any way.” Wilson offered to compile their stories and compose a letter to the school
with their demands. Plaintiffs never disclosed what Bradshaw actually said in her posts
that they describe as “false defamatory and malicious stories” about M.G. Plaintiffs also
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challenge Bradshaw’s social media post after having been confronted about possible
defamation lawsuits. Her response was colorfully direct:
“[f]irst of all: idgaf bout any threats of defamation suits. It’s not defamation
if you’ve committed these heinous actions on camera. Dumbass hoe.
Second: idgaf if the abuser is your homie, sister, brother, whateva. They’re
an abuser. They can learn or rot. I’m not ruining lives, they ruined their
own. Eat my black ass.”
The “inappropriate or controversial character of a statement is irrelevant to the question
whether it deals with a matter of public concern.” Snyder v. Phelps, 562 U.S. 443, 453,
131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011) (quoting Rankin v. McPherson, 483 U.S. 378,
387, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987)).
Plaintiffs next argue that UPEPA does not apply because the speech at issue
was defamatory, false and not matter of public concern.
Plaintiffs rely on Jha, 24 Wn. App. 2d 377, and Spratt v. Toft, 180 Wn. App. 620,
632, 324 P.3d 707 (2014), to argue that UPEPA only applies to public figures or public
campaigns. Spratt involved statements made by a person who was in the middle of a
political campaign against a private citizen. 180 Wn. App. at 627. Jha involved
statements written by one political candidate about another in an article published
online. 24 Wn. App. 2d at 390. Though these cases involved political campaigns, their
holding did not mandate that speech does not equate to a public concern unless it was
political speech. Plaintiffs ignore the actual legal test in determining whether speech is a
matter of public concern. It is a question of law, which courts must determine “‘by the
content, form, and context of a given statement, as revealed by the whole record.’”
Billings, 2 Wn. App. 2d at 31 (quoting Connick, 461 U.S. at 147-48). Moreover, as this
court stated in Jha, speech relating to political, social, or other concern to the
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community involves matters of public concern. 24 Wn. App. 2d at 389. Under the
statute, our legislature requires us to broadly construe whether speech is a matter of
public concern. Id. at 390; RCW 4.105.901.
In the instant case, Bradshaw’s and Wilson’s speech was made in the context of
an on-going concern about sexual assault of young women on Bainbridge Island and
BHS’ response to reports of such assaults.
Bradshaw and Wilson submitted, as exhibits, local newspaper articles and other
publications that documented community effort between 2017 and 2023 to address the
issue of sexual assault. The Bainbridge Island Review reported many people heading
from the island to Seattle in 2017, to participate in a women’s march. In 2018, the local
paper ran an opinion column about the #MeToo movement. In fall 2020, the paper
reported on a rally to encourage girls to talk about sexual assault. Attendees were
invited to tell their stories and learn about “Let’s Talk,” a service through BYS which
offers one-on-one and small group peer support. BYS organized a march that began at
BHS “To End Sexual Assault and Rape Culture on Bainbridge Island” in 2021. Another
newspaper article, in January 2023, discussed how three agencies on the island,
including BHS, worked to give power back to victims of sexual assault. It was with this
backdrop that Bradshaw and Wilson exercised their First Amendment right to speak out.
Wilson offered to provide victims advocacy by bringing their experiences to the attention
of the Bainbridge Island School District. Bradshaw’s statement could be seen as a
public pronouncement that one need not be fearful to speak out if you speak the truth,
even when facing threats of litigation.
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Though plaintiffs argue that the speech that is the subject of their complaint is
“false,” false speech is protected speech as long as it is not incitement, obscenity,
defamation, speech integral to criminal conduct, fighting words, pornography, fraud or
true threats. United States v. Alvarez, 567 U.S. 709, 717, 132 S. Ct. 2537, 183 L. Ed. 2d
574 (2012). Plaintiffs argue that UPEPA does not apply because the speech at issue
was defamatory. “Under the UPEPA, provable defamation claims survive the expedited
dismissal process and are not dismissed unless and until a trier of fact finds that
defamation has not been proved. However, claims against protected expression are
covered by the UPEPA notwithstanding a plaintiff characterizing that expression as
defamation.” Thurman, 29 Wn. App. 2d at 241. Here, the plaintiffs simply do not present
a prima facie case of defamation towards M.G.
To establish a prima facie defamation claim, the claimant must show (1) that the
defendant’s statement was false, (2) that the statement was unprivileged, (3) that the
defendant was at fault, and (4) that the statement proximately caused damages. Caruso
v. Loc. Union No. 690, 107 Wn.2d 524, 529, 730 P.2d 1299 (1987). In a defamation
case, the plaintiff has the burden of establishing a prima facie case on all four elements
of defamation. LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027 (1989). “The prima
facie case must consist of specific, material facts, rather than conclusory statements,
that would allow a jury to find that each element of defamation exists.” Id.
Wilson’s solicitation of stories from “girls who are, or have been victims of M.G.”
is not an offer to write “contrived stories about male Section 504 students” as alleged by
plaintiffs. Samantha’s and M.G.’s assertion that Bradshaw posted “false, malicious and
defamatory” comments or allegations about M.G. are conclusory statements and do not
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assert specific, material facts. And Bradshaw’s social media post after being confronted
with a possible defamation lawsuit did not assert M.G., let alone any named individual,
had committed sexual assault. In short, plaintiffs fail to establish a statement made by
Bradshaw or Wilson that is provably false.
We agree with the trial court that Bradshaw and Wilson’s statements fall within
the definition of a “matter of public concern” and UPEPA applies.
B. Statutory Exceptions
Once the moving party has established that UPEPA applies, the burden shifts to
the responding party to establish that a statutory exception under RCW 4.105.010(3)
applies. RCW 4.105.060(1)(b); Jha, 24 Wn. App. 2d.at 388. RCW 4.105.010(3)(a)
provides 12 exceptions that fall outside the scope of the act.
Plaintiffs assert that three exceptions apply. (1) RCW 4.105.010(3)(a)(iv)21
(claims “against a person named in a civil suit brought by a victim of a crime against a
perpetrator.”); (2) RCW 4.105.010(3)(a)(viii) (claims “based on a common law fraud
claim.”); (3) RCW 4.105.010(3)(a)(x) (claims “brought under Title 49 RCW.”).
Under the second step of the UPEPA analysis, we review whether plaintiffs met
their burden to establish that a statutory exception applies.
Wilson contends that plaintiffs waived the ability to raise any exceptions under
the UPEPA statute because they did not raise exceptions in their filed opposition.
After Wilson and Bradshaw filed their joint UPEPA motion, plaintiffs responded
by filing an opposition to the motion, but did not assert in the pleading the application of
any exception under RCW 4.105.010(3). Later, after Wilson and Bradshaw filed a
21 Plaintiffs appear to inadvertently omit “(a)” in its citations to RCW 4.105.010(3)
exceptions.
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supplemental memorandum, plaintiffs filed a motion to strike the supplemental brief. In
that motion to strike, plaintiffs asserted the same three exceptions under RCW
4.105.010(3)(a) that they raise on appeal. The court, in its consideration of the UPEPA
motion, denied plaintiffs’ motion to strike and considered all of the submitted pleadings
by all parties. Though Attorney Gerlach did not expressly cite to RCW 4.105.010(3)
during oral argument at the June 12, 2023 hearing, he did argue, “We can’t dismiss
[WLAD], defamation, fraud or cyber acts in place because of the conspiracy by the
co[-]defendants.” Thus, plaintiffs did assert the application of exceptions below that was
considered by the trial court. We now turn to each of the asserted exceptions.
(i) RCW 4.105.010(3)(a)(iv)
The first exception is RCW 4.105.010(3)(a)(iv) that provides for a cause of action
“against a person named in a civil suit brought by a victim of a crime against a
perpetrator.” Plaintiffs assert that M.G. is a victim of cyber harassment22 by Bradshaw
and Wilson, and that plaintiffs brought a civil suit against them.
22 RCW 9A.90.120 defines cyber harassment:
(1) A person is guilty of cyber harassment if the person, with intent to harass or
intimidate any other person, and under circumstances not constituting telephone
harassment, makes an electronic communication to that person or a third party
and the communication:
(a)(i) Uses any lewd, lascivious, indecent, or obscene words, images, or
language, or suggests the commission of any lewd or lascivious act;
(ii) Is made anonymously or repeatedly;
(iii) Contains a threat to inflict bodily injury immediately or in the future on the
person threatened or to any other person; or
(iv) Contains a threat to damage, immediately or in the future, the property of the
person threatened or of any other person; and
(b) With respect to any offense committed under the circumstances identified in
(a)(iii) or (iv) of this subsection:
(i) Would cause a reasonable person, with knowledge of the sender’s history, to
suffer emotional distress or to fear for the safety of the person threatened; or
(ii) Reasonably caused the threatened person to suffer emotional distress or fear
for the threatened person’s safety.
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Plaintiffs fail to cite to any substantive evidence anywhere in the record to
support this claim that M.G. was the victim of cyber harassment specifically by
Bradshaw and Wilson. In the complaint, plaintiffs characterize the unnamed student
who uploaded the link to the dossier in the school’s Google Drive as a cyber-stalker.
(ii) RCW 4.105.010(3)(a)(viii)
The next exception, RCW 4.105.010(3)(a)(viii), provides for a cause of action
“based on a common law fraud claim.” Plaintiffs cite to their complaint, in which they
allege “Defendants devised a scheme to defraud M.G. out of money paid to the
university, junior college and HOSA.” The facts asserted under his claim for fraud
include that the uploaded dossier described M.G.’s attendance at community college,
that he attends BHS and goes to Olympic College for Running Start, and that he was in
a leadership position in HOSA the previous year.
Common law fraud consists of nine essential elements23 which must be proven
by clear, cogent and convincing evidence.
Plaintiffs cite to nothing in the record to support their claim of fraud or attempt to
address how they relied on any facts represented by Bradshaw or Wilson to their
detriment.
23 The nine essential elements are:
(1) A representation of an existing fact;
(2) Its materiality;
(3) Its falsity;
(4) The speaker’s knowledge of its falsity or ignorance of its truth;
(5) His intent that it should be acted on by the person to whom it is made;
(6) Ignorance of its falsity on the part of the person to whom it is made;
(7) The latter’s reliance on the truth of the representation;
(8) His right to rely upon it;
(9) His consequent damage.
Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915, 920, 425 P.2d 891 (1967).
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(iii) RCW 4.105.010(3)(a)(x)
The last exception asserted by plaintiffs is RCW 4.105.010(3)(x) that provides for
a cause of action “brought under Title 49 RCW.” Plaintiffs merely state that “M.G.
alleged violations under RCW 49.60 Washington’s Law Against Discrimination
(‘WLAD’)” and cite to their complaint. Plaintiffs simply list a cause of action in their first
amended complaint without citing to any asserted facts in the record to show how
Bradshaw or Wilson committed a WLAD violation. In fact, the claim of a WLAD violation
in the complaint lists BISD, HOSA and Does #1-30, not Bradshaw or Wilson.
In summation, plaintiffs fail to satisfy RAP 10.3(a)(6) (requiring an appellant’s
brief to provide “argument in support of the issues presented for review, together with
citations to legal authority and references to relevant parts of the record”); see also
Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 845, 347 P.3d 487 (2015). It
follows that plaintiffs have not met their burden to demonstrate that any exceptions
under RCW 4.105.010 apply to establish that their claims against Bradshaw and Wilson
fall outside the reaches of UPEPA.
B. Prima Facie Case
Under the third step of the UPEPA analysis, dismissal with prejudice of a cause
of action or part of a cause of action must occur if either:
(i) The responding party fails to establish a prima facie case as to each
essential element of the cause of action; or
(ii) The moving party establishes that:
(A) The responding party failed to state a cause of action upon which relief
can be granted; or
(B) There is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law on the cause of action or part of
the cause of action.
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RCW 4.105.060(1)(c). Plaintiffs make no attempt to substantively argue step three of
the UPEPA analysis. See RAP 10.3(a)(6) (requiring appellant’s brief to include
“argument in support of the issues presented for review”); see also Smith v. King, 106
Wn.2d 443, 451-52, 722 P.2d 796 (1986) (assignment of error is waived if unsupported
by argument or authority).
In conclusion, we hold that plaintiffs failed to establish that the trial court erred in
dismissing the claims against Bradshaw and Wilson under UPEPA.24 We affirm.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with the rules governing unpublish opinions. See RCW
2.06.040.
CR 12(b)(6)
Gerlach next challenges the trial court’s CR 12(b)(6) dismissal of all claims
against HOSA.25
We review a trial court’s ruling to dismiss a claim under CR 12(b)(6) de novo.
West v. Stahley, 155 Wn. App. 691, 696, 229 P.3d 943 (2010). Dismissal is warranted
only if the court concludes, beyond a reasonable doubt, the plaintiff cannot prove “any
set of facts which would justify recovery.” Tenore v. AT&T Wireless Servs., 136 Wn.2d
322, 329-30, 962 P.2d 104 (1998). The court presumes all facts alleged in the plaintiff's
24 We need not address plaintiffs’ challenge of the award of attorney fees under RCW
4.105.010(3) because their only challenge was based on their argument that the UPEPA motion
should not have been granted.
25 HOSA contends that plaintiffs introduced six new facts in their opening brief that are
not in the record. To the extent that these facts constitute new evidence that was not presented
to the trial court, we do not consider it. See Spokane Airports v. RMA, Inc., 149 Wn. App. 930,
936, 206 P.3d 364 (2009) (stating “[g]enerally, we will not accept additional evidence on appeal
…”).
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complaint are true and may consider hypothetical facts supporting the plaintiff's claims.
Id.
On appeal, plaintiffs argue that the trial court erred in dismissing its WLAD claim
against HOSA because it is subject to WLAD for discrimination, including intentional
sexual misconduct, physical abuse and assault. While this court presumes all facts
alleged in the plaintiffs’ complaint as true, they do not cite to any facts in their complaint
or present any meaningful argument. Instead, they simply say “[s]ufficient facts
established liability by HOSA’s sponsors, officers and members.” “We are not required
to search the record for applicable portions thereof in support of the plaintiffs’
arguments.” Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966). As to the other
causes of action dismissed against HOSA, plaintiffs summarily state that the trial court
dismissed them based on misreading the case law. Instead of citing to relevant parts of
the record, plaintiffs merely cite to their own pleadings below. “[I]t is improper to attempt
to ‘incorporate by reference’ into a party’s merits brief arguments made in other
pleadings. State v. I.N.A., 9 Wn. App. 2d 422, 426, 446 P.3d 175 (2019); See
Diversified Wood Recycling, Inc. v. Johnson, 161 Wn. App. 859, 890, 251 P.3d 293
(2011) (“We do not permit litigants to use incorporation by reference as a means to
argue on appeal or to escape the page limits for briefs set forth in RAP 10.4(b).”);
Kaplan v. Nw. Mut. Life Ins. Co., 115 Wn. App. 791, 800 n.5, 65 P.3d 16 (2003).
Plaintiffs do not present sufficient argument to warrant review as to the trial
court’s granting of HOSA’s second CR 12(b)(6) motion. See RAP 10.3(a)(6) (requiring
an appellant’s brief to provide “argument in support of the issues presented for review,
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together with citations to legal authority and references to relevant parts of the record”);
see also Jackson,186 Wn. App. at 845.
Because plaintiffs did not respond to HOSA’s third CR 12(b)(6) motion, plaintiffs
have waived any error as to the trial court’s granting of that motion. See RAP 2.5(a);
Ryder v. Port of Seattle, 50 Wn. App. 144, 150, 748 P.2d 243 (1987) (An issue, theory,
or argument not presented to the trial court will not be considered on appeal.).
Motion for Reconsideration
Plaintiffs filed a motion for reconsideration of the court’s July 19, 2023 orders
granting HOSA’s second CR 12(b)(6) motion and granting Bradshaw’s and Wilson’s
UPEPA motion. The court denied the motion for reconsideration.
We review the denial of a motion for reconsideration for an abuse of discretion.
McCoy v. Kent Nursery, Inc., 163 Wn. App. 744, 758, 260 P.3d 967 (2011). Generally, a
trial court abuses its discretion if its decision is “manifestly unreasonable or exercised
on untenable grounds or for untenable reasons.” Id. “Under CR 59(a)(4),
reconsideration is warranted if the moving party presents new and material evidence
that it could not have discovered and produced at trial.” Wagner Dev., Inc. v. Fid. &
Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977 P.2d 639 (1999).
Plaintiffs merely state that they provided “new facts and evidence to support the
request for reconsideration, including controlling case law.” This is not sufficient to
warrant review. RAP 10.3(a)(6) (requiring an appellant’s brief to provide “argument in
support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record”); see also Jackson, 186 Wn. App. at 845.
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CR 11
Plaintiffs next contend that the trial court improperly awarded CR 11 sanctions for
Wilson, while denying their request for cross-sanctions. We disagree.
In plaintiffs’ motion to strike Bradshaw and Wilson’s supplemental briefing,
Attorney Gerlach wrote that “Wilson wanted a rape culture on Bainbridge Island to
support her fantasies of sexual assault and ‘a hotbed of attempted youth social justice.’”
He also wrote:
The intent and purpose of the false, malicious and defamatory statements
was to coerce the boys into suicide, like a 2017 student. Wilson’s
supplemental brief referenced a 2017 rally. In 2017 a student committed
suicide in Wilson’s class. The police failed to fully investigate all
contributing factors to the death of a student, who would have graduated
with Wilson in 2020.
Wilson’s counsel notified Attorney Gerlach that he had violated CR 11 and demanded
the statements relating to wanting a rape culture and coercing boys into suicide be
removed. The notice informed Attorney Gerlach that if he did not file a corrected brief
with the statements removed, a motion for sanctions would follow. Attorney Gerlach re-
filed its June 26 motion labeling it an “ERRATA FILING” without any further explanation.
The statement relating to rape culture was changed to:
A student desired a rape culture on Bainbridge Island. This could
support fantasies of sexual assault and “a hotbed of attempted youth
social justice.”
The statements relating to coercing suicide remained the same. The “errata filing” did
not request removal of the original pleading, did not move to seal it, and did not identify
what had been changed from the original. The court granted Wilson’s CR 11 motion and
denied plaintiffs’ cross-motion for CR 11 sanctions. The court awarded Wilson $6,445 in
attorney fees.
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We review a trial court’s imposition of CR 11 sanctions for an abuse of discretion.
Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994). Under an abuse of discretion
standard, a trial court’s sanction decisions are reversed “only if the [trial court's]
decisions only are manifestly unreasonable or based on untenable grounds.” Stiles v.
Kearney, 168 Wn. App. 250, 263, 277 P.3d 9 (2012).
CR 11 requires every pleading to be signed by an attorney or party. That
signature “constitutes a certificate by the party or attorney that the party or attorney has
read the pleading, motion, or legal memorandum, and that to the best of the party’s or
attorney’s knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances: (1) it is well grounded in fact...” CR 11.
CR 11 deals with two types of filings: “baseless filings and filings made for
improper purposes.” Stiles, 168 Wn. App. at 261. To impose sanctions for a baseless
filing, the trial court must find not only that the claim was without factual or legal basis,
but also that the attorney who signed the filing did not conduct a reasonable inquiry into
the factual basis of the claim. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 217, 829
P.2d 1099 (1992). Additionally, “the trial court must make findings specifying the
actionable conduct.” Stiles, 168 Wn. App. at 262 (citations omitted).
A. CR 11 Sanctions Granted
In granting the CR 11 motion against Attorney Gerlach, the trial court issued
detailed written findings of fact and conclusions of law.
The court found that Attorney Gerlach failed to revise the statement about suicide
in his previous brief. His errata filing did not request the removal of the original pleading
or request that it be sealed. The court held that Attorney Gerlach did not provide any
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factual basis for the statements he made. Moreover, the trial court found that there was
no evidence to support an assertion that any student “desired” or “wanted” rape culture,
or that Wilson coerced any boys into suicide.
On appeal, Attorney Gerlach continues to maintain that his pleadings were
“factually accurate.” Regarding his assertion that Wilson “wanted a rape culture,”
Attorney Gerlach argues that “Wilson actually used the word, ‘want’ four times in her
targeted attack on M.G. and stated, ‘no detail spared’ and ‘no grievance unaired.’” He
cites to Wilson’s posting where she wrote:
If you guys want, I will take your stories and compose a letter to the school
with your demands. …I want to help you. …I’d want ALL of your input on
what I write … If you want, I will write it for you.
(Emphasis added.) He argues, without citing the record, that the “fraudulent ‘rape
culture’ allegedly occurred during COVID when school was remote and public events
shut down.” He argues, citing to his own pleadings, that “Defendants claimed a new
‘rape culture’ formed on Bainbridge Island” without any evidence of proof. He also
maintains that Samantha was correct when she stated, “I am not sure if Eleanor Wilson
had something to do with that girls’ suicide.” He further claims that “[i]f Plaintiffs had
been provided responses to discovery requests, Samantha could have stated with
evidence whether Eleanor Wilson had something to do with that girls’ suicide.” Lastly,
he cites to evidence, that was submitted with a later motion for reconsideration, to
support his errata filing that “a student desired a rape culture.” This evidence was in the
form of a 2021 tax return document for the non-profit Kitsap Support Advocacy and
Counseling (KSAC) organization, that indicated it had received contributions and grants
totaling $818,888. It also included an unsupported assertion that BISD student Z.P. was
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a board member of KSAC. Even if we were to consider the KSAC evidence, none of this
supports a reasonable factual basis for the assertions that “a student desired a rape
culture” or that the intent of the statements plaintiffs characterize as false, malicious and
defamatory was to coerce boys into suicide.
The record supports the trial court’s findings that the assertions made that were
subject to the CR 11 sanctions were done so without factual or legal basis, and that
Attorney Gerlach did not conduct a reasonable inquiry into the factual basis of the
claims. The trial court did not abuse its discretion in imposing CR 11 sanctions.26
B. CR 11 Sanction Denied
Plaintiffs appear to appeal the denial of their cross-motion for CR 11 sanctions.
After Wilson filed her motion for sanctions against Attorney Gerlach, plaintiffs filed a
cross-motion for sanctions for a variety of reasons. On appeal, plaintiffs simply state,
without any citation to the record, “[p]laintiffs filed a CR 11 cross-motion after
Defendants’ falsely accused Plaintiffs of being “white supremist.” Plaintiffs do not
sufficiently present argument or citations to the record to warrant review. RAP
10.3(a)(6). Plaintiffs also raise a new basis for CR 11 sanctions against Wilson’s
attorney that was not raised below. We decline to review a new argument on appeal
that was not presented below. RAP 2.5(a). This court generally declines to review any
claim of error not raised before the trial court. Plaintiffs do not argue that any exceptions
to this rule apply. See Mullor v. Renaissance Ridge Homeowners’ Ass’n, 22 Wn. App.
2d 905, 919, 516 P.3d 812 (2022).
26 We need not address whether the court erred in determining Attorney Gerlach’s
statements were made for an improper purpose.
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Recusal
Plaintiffs also assert that the trial court should have recused itself because about
10 years earlier, while the judge was in private practice, she represented the City of
Bainbridge Island in an acrimonious dispute with Suzanne and Attorney Gerlach, who,
as property owners, applied for a city permit. Plaintiffs argue that despite repeated
requests by Attorney Gerlach for the trial court to recuse itself, it refused.
“Under the appearance of fairness doctrine, a judicial proceeding is valid only if
a reasonably prudent, disinterested observer would conclude that the parties received a
fair, impartial and neutral hearing.” State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973
(2010). “Evidence of a judge's actual or potential bias must be shown before an
appearance of fairness claim will succeed.” State v. Chamberlin, 161 Wn.2d 30, 37, 162
P.3d 389 (2007). Under the Code of Judicial Conduct, designed to provide guidance for
judges, “‘[j]udges should disqualify themselves in a proceeding in which their impartiality
might reasonably be questioned.’” Gamble, 168 Wn.2d at 188 (alteration in original)
(quoting CJC Canon 3(D)(1)). Recusal is within the sound discretion of the trial court. In
re Parentage of J. H., 112 Wn. App. 486, 496, 49 P.3d 154 (2002). This court reviews
trial judges’ decisions whether to recuse themselves to determine if the decision was
manifestly unreasonable or based on untenable reasons or grounds. Kok v. Tacoma
Sch. Dist. No. 10, 179 Wn. App. 10, 23-24, 317 P.3d 481 (2013). A litigant who
proceeds to a trial or hearing before a judge despite knowing of a reason for potential
disqualification of the judge waives the objection and cannot challenge the court’s
qualifications on appeal. Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 939,
813 P.2d 125 (1991).
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Disqualification of a single judge without a showing of prejudice is a right granted
to parties by statute. Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283, 285, 803 P.2d
798 (1991); see RCW 4.12.050. After exercising the statutory right to peremptory
removal of one judge, a party may not disqualify a second judge for prejudice by simply
filing a second motion and affidavit under RCW 4.12.050. State v. Dominguez, 81 Wn.
App. 325, 328, 914 P.2d 141 (1996). A party claiming bias or prejudice must support the
claim; prejudice is not presumed as it is under statutory right to peremptory removal. Id.
at 328-39.
Even assuming that a sufficient basis may have existed to warrant recusal,
Attorney Gerlach waived such a challenge because he was aware of the basis of his
challenge before asking the court to grant his proposed order on a motion for evidence
on February 17, 2023.
The trial court, as presiding judge, heard the plaintiffs’ February 17 motion.
Attorney Gerlach requested the presiding judge to sign orders directing social media
companies to produce records. The court denied the request. Later in the hearing,
counsel for BISD asked if the court was considering whether to assign the case to a
particular judge. The court responded that it would be doing that later that day. It
observed and stated “I’m next up on the rotation, so I think I’m probably next up, so it
will probably be me.” At no time did Attorney Gerlach ask the trial court to recuse itself
or articulate a concern that the trial court could not be fair. The presiding judge later
signed an order assigning the case to herself. A week later, plaintiffs filed a motion for
reconsideration of the court’s February 17 order denying its request for motions for
evidence. The basis of the motion was that the judge, while in private practice, had
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previously represented the City of Bainbridge in the litigation involving a permit
application 10 years prior.
Despite the fact plaintiffs did not raise this concern or object to the court hearing
their motion for evidence on February 17, the court considered the motion to recuse.
The court explained that the case was preassigned in the ordinary course and that the
court was the next judge in the rotation. The judge explained that though she was
familiar with Attorney Gerlach’s name prior to the February 17 hearing, that was not
unusual in the small jurisdiction for an attorney’s name to sound familiar. The court
explained, “I have been on the bench for over 10 years, and prior to that, handled
hundreds of cases as a practicing attorney for more than 16 years. I have no memory of
any prior interactions with attorney Gerlach personally, and after reviewing his Motion,
have only a very vague memory of the case he cites.” The court further stated that
“[a]fter a thorough review of attorney Gerlach’s materials there is nothing about the prior
case that causes me to feel any personal bias toward attorney Gerlach or his family.”
The court denied the motion and issued its order on June 23, 2023. Plaintiffs do not
appeal that June 23 order.
At oral argument, Attorney Gerlach asserted that the reason plaintiffs did not
request the trial judge to recuse itself on February 17 was because they had already
exercised their statutory right to peremptory removal of a different judge. Wash. Court of
Appeals oral argument, M.G. v. Bainbridge Island Sch. Dist., No. 86846-2-I (Jan. 22,
2025), at 21 min., 30 sec. through 21 min., 41 sec., video recording by TVW,
Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-
appeals-2025011480/.
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However, if the party shows actual prejudice on the part of a judge, the court
must consider a motion for disqualification even if the statutory right has been
exhausted. State v. Detrick, 90 Wn. App. 939, 942-43, 954 P.2d 949 (1998). Here the
judge, who had been on the bench more than 10 years and had previously handled
hundreds of cases as a practicing attorney, said she had no memory of any prior
interactions with attorney Gerlach personally, and after reviewing his motion, only had a
very vague memory of the case he cited. This is similar to the situation in Gamble,
where our Supreme Court affirmed this court’s holding that the remoteness of the
representation of opposing party and the fact the judge did not recall it led to a
conclusion that the moving party had not established an appearance of unfairness. 168
Wn.2d at 189.
Plaintiffs nevertheless contend that the trial court displayed bias and prejudice
toward Attorney Gerlach throughout the entire proceeding. We disagree.
First, plaintiffs point to the fact that during the February 17 proceeding the trial
court judge assigned the case to herself. The judge explained that she was next in the
rotation and that is why she assigned the case to herself. That does not support a claim
of actual prejudice or bias.
Second, plaintiffs assert that the trial judge cut Attorney Gerlach off from making
an argument during the February 17 hearing. In arguing why the plaintiffs were seeking
the orders for evidence, Attorney Gerlach stated, “[v]ictims in other cases are taking
their own lives as a result of some of the school’s failures to protect - -” The court
interrupted and said,
I’m going to ask you just to kind of stick to the - - the issues here, please. I
- - I - - I’m not going to be making decisions in this based on, like, equity
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and policy. This is about kind of the rules and - - so I appreciate context in
terms of your case for understanding the intent of identifying particular
people and how that might be relevant, but in terms of talking about the
greater public good or ill from these things, I don’t think that’s really
important for today.
Trial judges have wide discretion to manage their courtrooms and conduct trials
fairly, expeditiously, and impartially. State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933
(1969). We, therefore, review a trial judge’s courtroom management decisions for abuse
of discretion. Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 69, 155 P.3d
978 (2007). Attorney Gerlach began making conclusory allegations supposedly related
to “other cases” and unrelated to the claims in their complaint. The court continued to
allow Attorney Gerlach to argue after directing him to stay on topic. The court did not
abuse its discretion in doing so and this does not demonstrate actual bias or prejudice.
Third, plaintiffs also argue that during the February 17 hearing, the trial judge
mocked Attorney Gerlach by saying, “Can I just ask you a question?” “As a – you are a
lawyer right?” Plaintiffs quote the court out of context. Attorney Gerlach was asking the
court to sign orders to assist plaintiffs in obtaining records from social media companies.
The court then asked
Can I just ask you a question? … You’re a licensed lawyer. So why do you
need the Court to issue a CR 45 subpoena? Because you have the legal
authority to do it yourself, and - - and so why does the Court need to - - to
assist you with that?
There is nothing unreasonable about this question. Given the fact Attorney Gerlach
shared the same surname with at least some of the plaintiffs, it was not unusual for the
judge to first confirm that Attorney Gerlach was an attorney before following up with
more questions asking why he needed the court order since he had the authority to sign
subpoenas as an attorney. The record does not support plaintiffs’ claim that the court
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was mocking Attorney Gerlach and it does not support a claim of actual bias or
prejudice.
Lastly, plaintiffs contend that the trial court’s UPEPA and CR 11 rulings are clear
evidence of bias. However, “[j]udicial rulings alone almost never constitute a valid
showing of bias.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004).
As discussed above, the trial courts UPEPA and CR 11 rulings were proper.
Plaintiffs have not met their burden to establish actual prejudice by the trial judge.
Attorney Fees on Appeal
Bradshaw, Wilson, and plaintiffs all request attorney fees on appeal under RAP
18.1. We award fees to Bradshaw and Wilson and deny plaintiffs’ request for fees.
RAP 18.1 authorizes an award of attorney fees if allowed by “applicable law.”
RAP 18.1(a) “A party is entitled to attorney fees on appeal if a contract, statute, or
recognized ground of equity permits recovery of attorney fees at trial and the party is the
substantially prevailing party.” Hwang v. McMahill, 103 Wn. App. 945, 954, 15 P.3d 172
(2000). If a trial court “awards attorney fees pursuant to a statute... attorney fees are
awardable on appeal as well.” SEIU Healthcare Nw. Training P’ship v. Evergreen
Freedom Found., 5 Wn. App. 2d 496, 515, 427 P.3d 688 (2018). Attorney fees on
appeal “are awardable in the court’s discretion,” and subject to the party’s compliance
with RAP 18.1. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 825, 828
P.2d 549 (1992).
RCW 4.105.090 provides that on a motion under RCW 4.105.020, the court shall
award court costs, reasonable attorneys’ fees, and reasonable litigation expenses
related to the motion: (1) To the moving party if the moving party prevails on the motion;
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or (2) To the responding party if the responding party prevails on the motion and the
court finds that the motion was not substantially justified or filed solely with intent to
delay the proceeding.
Bradshaw and Wilson prevail on their UPEPA motion and are entitled to an
award fee related to that motion under RCW 4.105.090(1) and RAP 18.1. We grant their
request for fees and deny plaintiffs’ request for fees.
RAP 18.9(a)
HOSA also requests an award of attorney fees and costs from defending this
appeal as sanctions for plaintiffs’ frivolous appeal under RAP 18.9.
HOSA cites to Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009), in
support of their argument, which provides that appropriate sanctions for a frivolous
appeal can include an award of attorney fees and costs to the opposing party.
RAP 18.9(a) authorizes the appellate court, on its own initiative or on motion of a
party, to order a party or counsel who files a frivolous appeal “to pay terms or
compensatory damages to any other party who has been harmed by the delay or the
failure to comply or to pay sanctions to the court.” RAP 18.9(a). “Appropriate sanctions
may include, as compensatory damages, an award of attorney fees and costs to the
opposing party.” Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849 (2008) (citing
Rhinehart v. Seattle Times, Inc., 59 Wn. App. 332, 342, 798 P.2d 1155 (1990)). “An
appeal is frivolous if, considering the entire record, the court is convinced that the
appeal presents no debatable issues upon which reasonable minds might differ and that
it is so devoid of merit that there is no possibility of reversal.” Lutz Tile, Inc. v. Krech,
136 Wn. App. 899, 906, 151 P.3d 219 (2007). Further, all doubts as to whether an
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appeal is frivolous are resolved in favor of the appellant. Id. The fact that we reverse
and remand as to the issue of the case caption shows that the appeal is not frivolous.
We decline to award attorney fees to HOSA.
CONCLUSION
We reverse the trial court’s order amending the case caption to use M.G.’s full
name because the court did not apply the correct legal standard, and remand for further
proceedings on that issue. We affirm the court’s dismissal of all claims against
Bradshaw and Wilson under UPEPA, as well as the CR 11 sanctions imposed against
Attorney Gerlach. We hold that plaintiffs waived their claim that the trial court improperly
refused to recuse itself because of an alleged conflict, and conclude that plaintiffs fail to
otherwise demonstrate that the court was biased against plaintiffs. They did not present
sufficient argument and citations to the record to warrant review as to their remaining
claims.
WE CONCUR:
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