James And Ulrike Johnston, Appellants V. Hidden Cove Property Owners Assc Llc, Respondent Et Al

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMES JOHNSTON, M.D. and ULRIKE
JOHNSTON,
No. 47642-8-II
Appellants,
ORDER GRANTING APPELLANT’S
MOTION FOR RECONSIDERATION
v. AND
ORDER AMENDING OPINION
HIDDEN COVE PROPERTY OWNERS
ASSOCIATION LLC, a Washington limited
liability company; SUSAN and GARY
DE WITT, and their marital community;
KATHLEEN and CORBIN DERUBERTIS,
and their marital community; DONALD and
NANCY LORIMER, and their marital
community; KERRY and DAN SAMANIEGO,
and their marital community; COURTENAY
and PAM HEATER, and their marital
community,
Respondents.
The unpublished opinion in this case was filed on July 19, 2016. Upon the motion of
appellants for reconsideration, it is hereby
ORDERED that appellants’ motion for reconsideration is hereby granted, and the opinion
previously filed on July 19, 2016, is hereby amended as follows:
Page 5, the sentence starting at line 13 will be deleted and replaced with the following
sentence:
The letter referenced Dr. Johnston’s prior convictions and related newspaper
articles, and that he had taken actions to block trail usage that upset the neighbors.
Filed
Washington State
Court of Appeals
Division Two
September 7, 2016

No. 47642-8-II
2
IT IS SO ORDERED.
DATED this __7th_____ day of September, 2016.
SUTTON, J.
We concur:
JOHANSON, P.J.
MELNICK, J.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMES JOHNSTON, M.D. and ULRIKE
JOHNSTON,
No. 47642-8-II
Appellants,
v.
HIDDEN COVE PROPERTY OWNERS
ASSOCIATION LLC, a Washington limited
liability company; SUSAN and GARY
DE WITT, and their marital community;
KATHLEEN and CORBIN DERUBERTIS,
and their marital community; DONALD and
NANCY LORIMER, and their marital
community; KERRY and DAN
SAMANIEGO, and their marital community;
COURTENAY and PAM HEATER, and their
marital community,
UNPUBLISHED OPINION
Respondents.
SUTTON, J. — James and Ulrike Johnston appeal from the superior court’s summary
judgment order dismissing their claims against Hidden Cove Property Owner’s Association
(HCPOA). The Johnstons argue that summary judgment was improper because they presented
evidence creating genuine issues of material fact as to HCPOA’s liability for civil conspiracy and
vicarious liability for their claims of defamation, outrage, invasion of privacy and harassment.
We hold that (1) the Johnstons failed to raise any genuine issues of material fact that
HCPOA participated in a civil conspiracy against them and (2) HCPOA is not vicariously liable
Filed
Washington State
Court of Appeals
Division Two
July 19, 2016

No. 47642-8-II
2
for any actions taken against the Johnstons by members or officers of HCPOA who acted in their
individual capacities. Thus, we affirm..
FACTS
I. BACKGROUND FACTS
This dispute arose from neighbor’s use of a pedestrian and bike trail in the Hidden Cove
neighborhood. The trail is on the Johnstons’s property and connects Manual and Sivertson Roads;
neighborhood and island residents have regularly used the trail for access between the two roads
since 1995. The Johnstons and their two children moved to Bainbridge Island in 2008, and rented
the home in the Hidden Cove neighborhood at the end of Sivertson Road from the property owner,
William Gibson.
Hidden Cove’s neighborhood association, was incorporated in September 2009. Before its
incorporation, Hidden Cove residents met for a formal meeting on September 12, 2009, and again
on November 20, 2010. At the September 2009 meeting, the HCPOA members elected the
following officers: Courtenay Heater, President; Corbin DeRubertis, Vice President; Edy Nielson,
Secretary; and Susan de Witt, Treasurer.
A. TRAIL USE
Sometime between mid-2008 and September 12, 2009, the Johnstons’s objected to the
neighbor’s use of the trail on their property. The Johnstons discouraged use of the trail by putting
up “No Trespassing” signs, blocking the trail with natural barriers, and constructing a fence.

No. 47642-8-II
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In August, there was a confrontation between Dr. Johnston and Don Lorimer’s1 son and a
few of his friends about the trail use. Two days later, Lorimer emailed Courtenay Heater, HCPOA
president, to inform him of the confrontation and escalating situation with the Johnstons.
Lorimer also advised that another neighbor, Dan Samaniego, would try to resolve the
matter peacefully with the Johnstons and stated he did not expect Heater to take any action.
Lorimer decided that he and his family would stop using the trail. Heater hoped that the dispute
could be resolved, acknowledged that a “joint effort” was required, and stated that he would help
to restore “comity and tolerance.” Clerk’s Papers (CP) at 414. In his reply the next day, Lorimer
stated that the residents must respect the law and keep off the trail.
B. SEPTEMBER 12, 2009, HCPOA MEETING
Heater put the trail issue on the agenda for the September 2009 HCPOA meeting because
it had “become one of interest to the entire neighborhood.” CP at 453. The primary purpose of
the September 12 meeting was to address HCPOA’s incorporation status and to address a land-use
issue confronting the neighborhood. Seven property owners attended the 2 hour, 15 minute
meeting—Don Lorimer, Pamela Roth-Heater, Susan de Witt, Corbin DeRubertis, Dan and Kerry
Samaniego, and Jeffrey Sneller.
During the 10 to 15 minute conversation regarding the trail, some of the attending HCPOA
members asked Lorimer to discuss the August altercation between his son and Dr. Johnston but he
declined. Several other residents asked whether the public had any easement rights to use the trail.
Ryan Vancil, HCPOA’s attorney, generally addressed the easement issue, and Jeffrey Sneller, the
1 Lorimer is a Sivertson Road resident and HCPOA member.

No. 47642-8-II
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original developer of Gibson’s property, said he would look into the issue, although later Sneller
had no recall of the conversation.
Heater took handwritten notes at the meeting and typed them up. In his declaration, Heater
stated that there were no negative comments made about the Johnstons, no discussions about their
backgrounds, damaging their reputations, or writing a letter to Gibson not to rent or sell the
property to the Johnstons. Heater also declared that there was no effort to try and force the
Johnstons out of the neighborhood, and there was “no plot or scheme” discussed at that meeting.
CP at 454. The relevant minutes from the September 2009 meeting read:
ITEM III: Concerning Manual Road path use over residents’ yards.
VOTE: Shall counsel be engaged to examine History of path in order to
facilitate resolution of dispute?
Ayes: 0
Nays: 7 Vote not carried
Homeowner [Jeffrey] Sneller agreed to research trail easement status since he
developed home site upon which trail has existed.
Note: Counsel Fees would be earmarked from HCPOA general fund.
CP at 256. The minutes further stated that the “path use dispute” was “TABLED.” CP at 257.
Nothing else is mentioned in the September 2009 minutes regarding the Johnstons.
Vancil confirmed Heater’s declaration that the residents decided not to take any action
regarding the trail, and no one discussed trying to drive the Johnstons out or to damage the
Johnston’s reputations. The remaining property owners (except Sneller) who attended the meeting
all provided similar declarations about what took place at the meeting—the members discussed
the trail use issue for 10 to 15 minutes and decided that Sneller would look into whether a dedicated
easement existed. The members did not approve hiring an attorney to research an easement for

No. 47642-8-II
5
the trail, did not discuss the Johnstons, and did not discuss or develop any plan or scheme
pertaining to the trail or the Johnstons. Sneller did not recall any discussion about ousting or
disparaging the Johnstons.
C. EVENTS AFTER SEPTEMBER 2009
In late 2009, Susan de Witt and Kerry Samaniego, two of the Johnstons’s closest neighbors,
discovered that Dr. Johnston had been accused of and charged with improper conduct with several
of his patients in Texas in 1997.2 Due to the escalating nature of the Johnstons’s relationship with
their neighbors, de Witt and Kerry Samaniego decided to confront the Johnstons’s landlord,
William Gibson, with the information, hoping that he would not continue to lease or sell the
property to the Johnstons.
In early December, de Witt and Kathleen DeRubertis, another neighbor, approached
Gibson at an event held at his home and gave him a letter signed by de Witt, DeRubertis, and the
Samaniegos. The letter referenced Dr. Johnston’s prior conviction and related newspaper articles,
that he lost his medical license, and that he had taken actions to block trail usage that upset the
neighbors. The letter was drafted and delivered without the knowledge, consent, or participation
of HCPOA.3 In addition to delivering the packet to Gibson, an unknown person placed the out of
state newspaper clippings regarding Dr. Johnston’s charges and trial in the Johnstons’s mailbox,
which their eldest daughter discovered.
2 Before living in Washington, the Johnstons lived in Oregon and Texas. Until 1997, Dr. Johnston
owned a private medical practice in Nacogdoches, Texas.
3 Corbin DeRubertis and Courtenay Heater were made aware of the letter and its delivery to Gibson
after the encounter at Gibson’s home occurred.

No. 47642-8-II
6
D. KATHLEEN DERUBERTIS’S FEBRUARY 2010 ANTI-HARASSMENT ORDER
In February 2010, the Johnstons sought an anti-harassment order against Kathleen
DeRubertis and Susan de Witt. DeRubertis and de Witt hired Ryan Vancil to defend them at their
own expense. HCPOA was not a party to the anti-harassment proceedings nor did it provide
DeRubertis or de Witt with a defense or financial support in these proceedings.
At the anti-harassment hearing, DeRubertis testified that at “meetings” the homeowner’s
association had discussed taking information about the Johnstons to Gibson. CP at 1035-36.
DeRubertis stated,
[W]e are in a homeowners association. This had been discussion [sic] at meetings.
There had been discussions with neighbors.
. . . .
[T]his conversation, you know, was not just myself and Susan De Witt [sic]. It was
also in the homeowners association. It was—it is information that is circulating
throughout the neighborhood. . . . [I]t’s a neighborhood, and it is an association.
[T]he conversation about going to Gibson] had started in homeowners association
meetings and conversations with neighbors, you know, after one neighbor’s son
was pushed down and that sort of thing. So it wasn’t just a conversation that started
out of the blue.
In one of the homeowners association meetings, someone said. You know,
well, what should we do? And, you know, the proper course—the reasonable
course was, well, someone should talk to Will Gibson. And that had been kind of
like, someone should talk to Will Gibson and then no one pursued it.
CP at 1035-36. Later, in her declaration in support of summary judgment, DeRubertis admitted
that she had not attended the September 2009 HCPOA meeting and had no personal knowledge of
what anyone said or did at the meeting.
E. NOVEMBER 20, 2010, HCPOA MEETING
In late 2010, HCPOA received a letter from the Johnstons threatening litigation. Heater
called a special HCPOA meeting for November 20 to discuss with the members how to respond

No. 47642-8-II
7
to the Johnstons’s letter. This was the first HCPOA meeting after September 2009. At the
November meeting, minutes from the September 2009 HCPOA meeting were formally approved.
The rest of the meeting was dedicated to “general discussion” of the letter from the Johnstons’s
attorney, and the members present unanimously decided that HCPOA would not respond to the
letter, other than an acknowledgement that HCPOA had received the letter. CP at 923. There was
no other discussion regarding the Johnstons.
The November 2010 meeting minutes reflect the business carried out at the meeting
regarding the pending litigation initiated by the Johnstons:
Item 3.
A. Discussion of pending litigation. There was a general discussion about
[Johnstons’s] November 10, 2010 letter of notification of pending litigation against
HCPOA and some of its members. . . . There was a brief discussion about the
advisability of making a response to [the] letter and the members present were
unanimous in their opinion that no formal response should be made at this time. . .
HCPOA [will] not make any formal response.
CP at 923. The minutes from the November 2010 meeting also reflect discussion of HCPOA’s
legal representation in the pending litigation, and potential strategy for keeping litigation costs
down for HCPOA. The minutes reflect no additional conversation regarding the Johnstons.
The September 2009 and November 2010 meetings are the only HCPOA meetings that
occurred while the Johnstons lived on Sivertson Road. There was never any discussion at either
of the meetings regarding any efforts to try to force the Johnstons from their home or any other
course of conduct directed at the Johnstons.

No. 47642-8-II
8
II. THE JOHNSTONS’S COMPLAINT
The Johnstons filed their complaint on January 20, 2011. The complaint alleged nine
causes of action, including defamation, invasion of privacy, malicious interference with parent-
child relationship, outrage, and civil conspiracy against HCPOA and the seven Hidden Cove
residents.4
The only mention of HCPOA in the Johnstons’s complaint stated,
The defendants hatched their plan to get rid of the Johnstons during HCPOA
meetings conducted by the defendants. One such meeting took place on September
12, 2009 at the home of defendants Susan and Gary de Witt. Subsequently, the
defendants’ harassment of the Johnstons escalated.
CP at 17-18.
III. HCPOA’S SUMMARY JUDGMENT MOTION
HCPOA moved for summary judgment to dismiss all of the Johnstons’s claims, and argued
that there was no evidence that HCPOA conspired against the Johnstons or that HCPOA was
vicariously liable for any actions taken by individuals, members, or officers. To support their
claim that HCPOA participated in the civil conspiracy against them, the Johnstons cited the
minutes from the September 2009 and November 2010 HCPOA meetings, and DeRubertis’s
testimony at the February 2010 anti-harassment hearing that conversations regarding the Johnstons
occurred at the HCPOA meetings. The Johnstons also relied on email communications sent and
received by Susan de Witt and Courtenay Heater, and Susan de Witt’s conduct.
4 The Johnstons did not allege in their complaint that HCPOA was vicariously liable for the actions
of its members and officers. They raise this issue for the first time on appeal.

No. 47642-8-II
9
Susan de Witt stated that she acted on her own, without any authorization, ratification, or
agreement by HCPOA to participate in her conduct and actions toward the Johnstons, and that she
acted on her own behalf. The emails to and from Heater advised him of incidents with the
Johnstons over the trail, questions regarding the status of the trail, and consisted of
communications regarding HCPOA’s commitment to a resolution to the dispute, HCPOA regular
business, and emails with Susan de Witt regarding HCPOA’s finances. Heater had little interaction
with the Johnstons, and what interaction he did have was in his own individual capacity and not
on behalf of HCPOA.
The superior court found that there was “[no] nexus shown between the individuals’ actions
and the LLC as to the causes of action alleged” and “no disputed material issues of fact.” VRP
at 30-31. The superior court granted HCPOA’s summary judgment motion and entered an order
on October 5, 2012.
In April 2014, the Johnstons filed a motion for revision under CR 54(b) and sought review
in front of a new judge to vacate the superior court’s prior order dismissing their claims. The
Johnstons argued that (1) their motion was timely as an interlocutory motion under CR 54(b)
because there was not a final judgment against all of the defendants and (2) the superior court’s
summary judgment order dismissing their claims against HCPOA was “inconsistent and
irreconcilable” with its prior rulings in the case denying individual HCPOA members motions for
summary judgment. CP 1269-74. The superior court denied the Johnstons’s motion for revision.
After the superior court denied their motion for revision under CR 54(b), the Johnstons
filed a motion to reconsider the court’s denial of their motion for revision or to grant their motion

No. 47642-8-II
10
for CR 54(b) certification. The superior court denied the Johnstons’s motion for reconsideration
and struck the noted hearing on the CR 54(b) motion.
The Johnstons then filed a motion for CR 54(b) certification of the court’s summary
judgment order dismissing their claims against HCPOA to allow them to immediately appeal the
order and allow a stay on the rest of the case that was still pending against the Heaters. The
superior court denied the motion for certification. The Johnstons appeal the court’s summary
judgment order, the order denying their motion for revision, and the order denying their motion
for reconsideration.
ANALYSIS
I. SUMMARY JUDGMENT
The Johnstons argue that the superior court erred in granting summary judgment and
dismissing their claims against HCPOA because there are genuine issues of material fact as to
whether there was a civil conspiracy and whether HCPOA should be held liable for the “tortious
actions of its members and officers.” Br. of Appellant at 29. We disagree.
A. STANDARD OF REVIEW
We review the superior court’s summary judgment order de novo, and consider only the
evidence and issues brought to the attention of the court. Michael v. Mosquera-Lacy, 165 Wn.2d
595, 601, 200 P.3d 695 (2009); RAP 9.12. Summary judgment is proper when there is “no genuine
issue as to any material fact” and the moving party is entitled to judgment as a matter of law.
CR 56(c). We review the facts and reasonable inferences from those facts in the light most
favorable to the non-moving party. Jones v. Dep’t of Health, 170 Wn.2d 338, 352, 242 P.3d 825
(2010). “A genuine issue of material fact exists only where reasonable minds could reach different

No. 47642-8-II
11
conclusions.” Michael, 165 Wn.2d at 601. A material fact is a fact that the outcome of the
litigation depends on in whole or in part. Atherton Condo. Apartment-Owners Ass’n Bd. of
Directors v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).
Summary judgment is subject to a burden-shifting scheme, and after the moving party
submits adequate evidence, the non-moving party must set forth specific facts to sufficiently rebut
the moving party’s contentions and disclose the existence of a genuine issue as to a material fact.
Michael, 165 Wn.2d at 601. A plaintiff cannot rely on mere speculation and argumentative
assertions “that unresolved factual issues remain.” Michael, 165 Wn.2d at 602 (quoting Seven
Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)); Adams v. King Co.,
164 Wn.2d 640, 647, 192 P.3d 891 (2008).
B. CIVIL CONSPIRACY
The Johnstons argue that there is “indisputable evidence” that HCPOA participated in a
civil conspiracy to force the Johnstons out of their home. Br. of Appellant at 32-36. We disagree;
the evidence the Johnstons rely upon does not present any genuine issue of material fact
establishing that HCPOA, or any officer or agent on behalf of HCPOA, participated in a civil
conspiracy against the Johnstons.
A plaintiff in a civil conspiracy action has the burden of proving the case by clear, cogent,
and convincing evidence. Sterling Bus. Forms, Inc. v. Thorpe, 82 Wn. App 446, 450, 918 P.2d
531 (1996). An action for civil conspiracy requires proof of “an agreement by two or more persons
to accomplish some purpose, not in itself unlawful, by unlawful means.” Sterling, 82 Wn. App.
at 451.

No. 47642-8-II
12
A finding that a conspiracy exists may be based on circumstantial evidence, but
“‘circumstances must be inconsistent with a lawful or honest purpose and reasonably consistent
only with [the] existence of the conspiracy.’” Sterling, 82 Wn. App. at 451 (emphasis added,
alternation in original) (quoting Corbit v. J. I. Case Co, 70 Wash. 2d 522, 529, 424 P.2d 290
(1967)). Evidence is sufficient if it shows “concert of action” or other facts and circumstances that
create a “natural inference” that the unlawful acts were “‘committed in furtherance of a common
design, intention, and purpose of the alleged conspirators.’” Lyle v. Haskins, 24 Wn.2d 883, 899,
168 P.2d 797 (1946) (quoting 11 AM. JUR. Conspiracy § 56 at 585 (1937)).
To support their argument that members and officers conspired at HCPOA meetings, the
Johnstons rely heavily on Kathleen DeRubertis’s testimony from the February 2010 anti-
harassment hearing. In her testimony, DeRubertis stated that, during the September 12 HCPOA
meeting, members talked about the issues involving the Johnstons and about approaching Gibson
about not re-renting or selling to them. However, Kathleen DeRubertis later admitted that she did
not attend the September 2009 meeting5 when these alleged conversations took place. Therefore,
she has no personal knowledge of what members said or discussed at those meetings, and she
based her February 2010 testimony entirely on hearsay and speculation, which she admits.
Therefore, the Johnstons cannot rely on DeRubertis’s inadmissible hearsay and speculative
testimony to create a genuine issue of material fact. Michael, 165 Wn.2d at 602.
5 There were two HCPOA meetings held during the relevant period of this litigation. The first in
September 2009 and the second in November 2010. Kathleen DeRubertis was not present at either
meeting.

No. 47642-8-II
13
The September 2009 meeting attendees deny that any subject matter discussion regarding
the Johnstons occurred other than the trail use, a matter properly within the concern of the HCPOA.
And although the trail issue was discussed at the September 2009 meeting, HCPOA did not pursue
any action related to the trail or the Johnstons. The agenda prepared by Heater and the September
2009 annual meeting related to the neighborhood and addressed conflicts between HCPOA
members and the Johnstons over the trail, but these topics are not inconsistent with a lawful or
honest purpose. Further, there is no evidence produced by the Johnsons that the HCPOA
authorized, approved, or initiated any action against the Johnsons by unlawful means.
The Johnstons allege that numerous emails were sent and informal meetings occurred
between HCPOA members and Heater that show support, endorsement, and encouragement of the
unlawful agreement to force the Johnstons from their home.6 Susan de Witt’s emails show that
she had a personal incentive to see the Johnstons leave the neighborhood, and she admitted that all
of her actions and communications regarding the Johnstons, outside of attending the 2009 HCPOA
meeting, were in her own capacity, and not as an HCPOA member or its treasurer, and there is no
evidence to the contrary submitted by the Johnstons.
Further, Heater, personally or as president of the HCPOA, had no prior or
contemporaneous knowledge that de Witt and DeRubertis planned to and approached Gibson
about not re-renting or selling his property to the Johnstons. Heater became aware that the women
approached Gibson only about one month after it happened.
6 The evidence that the Johnstons cite to support their allegations are email exchanges to schedule
the formal annual meetings and the meeting minutes and agendas for the September 2009 and
November 2010 meetings. There is no evidence of any informal HCPOA meetings on the record.

No. 47642-8-II
14
Heater’s emails demonstrate that, as the HCPOA president, he became aware that there
was a conflict in the neighborhood and that he was trying to gather information to reach a
reasonable solution. The emails show that Heater and the HCPOA were aware of and involved in
the trail dispute issue for a lawful purpose. Thus, Heater’s conduct does not demonstrate an
agreement to accomplish some purpose not in itself unlawful, but by unlawful means, and the
Johnstons’s claim of civil conspiracy fails. Sterling, 82 Wn. App. at 451.
HCPOA presented evidence that the communications were conducted for a lawful purpose
and that de Witt’s actions were done in her individual capacity and were not on behalf of, nor
approved or authorized by, the HCPOA. Under the summary judgement burden-shifting scheme,
the Johnstons had to produce admissible evidence that there was a genuine issue of material fact
of a civil conspiracy by the HCPOA. However, the Johnstons merely alleged that emails between
individuals implicated the HCPOA in a civil conspiracy and failed to provide admissible, non-
speculative evidence to show that HCPOA was involved in a conspiracy to force them from their
home. Thus, we hold that summary judgment dismissal of the Johnstons’s civil conspiracy claims
was proper.
C. VICARIOUS LIABILITY
The Johnstons argue that HCPOA is vicariously liable “for the tortious actions of its
members and officers.” Br. of Appellant at 29. Without deciding whether the Johnstons raised
this issue below, we address the substantive claims of vicarious liability and hold that there is no
evidence that the HCPOA authorized any of the acts carried out by the individual residents; thus,
HCPOA is not vicariously liable for any of their unauthorized actions.

No. 47642-8-II
15
Express or implied agency relationship exists when one party acts under the direction and
control of another. Deep Water Brewing LLC v. Fairway Resources Ltd., 152 Wn. App. 229, 268,
215 P.3d 990 (2009). The burden of establishing the agency relationship rests with the party
asserting its existence. Deep Water, 152 Wn. App. at 268.
Generally, we consider a principal to have notice of facts known to its officer or agent,
based on the officer’s or agent’s underlying duty to communicate his knowledge to the corporation.
Hendricks v. Lake, 12 Wn. App. 15, 22, 528 P.2d 491 (1974). Therefore, a corporation can be
vicariously liable for the actions of its officers or agents acting on its behalf. Deep Water, 152
Wn. App at 268.
However, an exception to the rule exists when the officer or agent acquires notice or
knowledge outside the scope of his powers or duties, or when he is not acting for or on the
corporation’s behalf. Hendricks, 12 Wn. App. at 22. The exception also applies in instances when
the officer or agent deals with the corporation in his own interest that is adverse to the
corporation’s, or when the officer or agent “steps aside from the [corporation’s] purposes in order
to pursue a personal objective of the agent.” Deep Water, 152 Wn. App at 269.
Here, there is no evidence that any of the individual residents or officers were acting on
HCPOA’s behalf. The only HCPOA officer involved in any actions related to the Johnstons’s
claims was Susan de Witt, the HCPOA treasurer. Mrs. de Witt acted on her own, and the other
two officers named in the Johnstons’s complaint, Corbin DeRubertis and Courtenay Heater, were
not involved in providing the letter and materials to Gibson, and neither were aware that four
members, including de Witt, approached Gibson until after it occurred. Further, the nature of de
Witt’s actions pursuing her personal objectives stepped outside of her role as HCPOA treasurer

No. 47642-8-II
16
and the HCPOA’s purposes, and she acknowledges that she acted in her individual capacity. While
Heater was aware that there was an ongoing dispute over the trail, and increasing acrimony
between the Johnstons and other neighbors, there is no evidence that HCPOA authorized or
participated in de Witt’s actions toward the Johnstons during 2009 and 2010.
The Johnstons misconstrue the evidence that they allege shows that Heater and HCPOA
supported the efforts to remove the Johnstons from the neighborhood. The evidence the Johnstons
presented shows that (1) Heater knew about the trail dispute and brought it up for discussion in the
September 2009 meeting and sought a reasonable and amicable solution to the ongoing dispute,
(2) some members of the neighborhood sought HCPOA support in addressing the relationship
breakdowns with the Johnstons, and (3) Heater communicated with Susan de Witt regarding
HCPOA business matters. None of the emails show that Heater or HCPOA was involved in, or
authorized, any actions taken against the Johnstons.
Thus, because de Witt acted outside her capacity as treasurer, and because there is no
evidence that the HCPOA was either directly or indirectly involved in any actions taken against
the Johnstons, we hold that the HCPOA is not vicariously liable for any tortious acts committed
by any of the HCPOA members or officers.

No. 47642-8-II
17
CONCLUSION
We hold that (1) the Johnstons present no genuine issues of material fact establishing that
HCPOA participated in a civil conspiracy against them and (2) the HCPOA is not vicariously liable
for any actions taken by members or officers in their individual capacities against the Johnstons.
Thus, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
JOHANSON, P.J.
MELNICK, J.