Azita Shirkhanloo, App. V. Laurie Olsen & Edward Schau, Resp.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AZITA SHIRKHANLOO,
Appellant,
NO. 70336-6-1
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^.i 	to o
LAURIE OLSON GAINES and
EDWARD SCHAU,
Respondents.
DIVISION ONE
UNPUBLISHED OPINION
FILED: July 14, 2014
Leach, J. — Azita Shirkhanloo appeals the trial court's summary dismissal
of her claims against Laurie Gaines and Dr. Edward Schau based upon quasi-
judicial immunity. 	Her complaint alleged that in a dissolution proceeding, Gaines
performed 	a 	negligent 	parenting 	evaluation 	and 	Schau 	performed 	negligent
psychological testing of the divorcing parents. 	Because Gaines and Schau have
quasi-judicial immunity from Shirkhanloo's claims, we affirm.
FACTS
In 	2009, 	Timothy 	Smith 	sought 	a 	dissolution 	of 	his 	marriage 	to
Shirkhanloo.1 	Both Shirkhanloo and Smith sought custody of their son, N.S.S.
1 In re the Marriage of Smith. No.09-3-03369-6 (King County Super. Ct.,
Wash. May 7, 2009).
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On August 3, 2009, the trial court appointed Gaines as a parenting plan evaluator
to "investigate and report factual information to the Court concerning parenting
arrangements for the child" based upon the child's best interests. 	At Gaines's
request, Schau conducted psychological testing of both Shirkhanloo and Smith.
Schau reported to Gaines the results of this testing.
Gaines submitted an interim report to the court on November 30, 2009,
recommending 	further testing 	of Shirkhanloo. 	On 	April 23, 	2010, 	the court
ordered Schau to conduct additional psychological testing on Shirkhanloo. 	After
Schau 	completed 	this 	testing 	and 	reported 	the 	results 	to 	Gaines, 	Gaines
submitted a final parenting evaluation. 	In this September 9, 2010 report, she
recommended that the court award full custody of N.S.S. to Smith. 	She based
her 	recommendation 	on 	direct 	interviews 	with 	both 	parents, 	parent-child
observations, telephone interviews with third 	parties, 	consultations with other
parenting evaluators, cultural experts, court records, and court transcripts.
After a September 2010 mediation, Shirkhanloo and Smith signed a CR
2A agreement confirming the recommendations, including custody, in Gaines's
final parenting evaluation. 	A year later, Shirkhanloo moved to vacate the CR 2A
agreement. 	In September 2011, 	the 	court granted 	Shirkhanloo's 	motion to
vacate this agreement, 	returned custody to 	Shirkhanloo, 	and ordered a trial.
After trial, 	the court entered a 	permanent parenting plan placing 	N.S.S. with
Shirkhanloo.

NO. 70336-6-1/3
On 	May 	21, 	2012, 	Shirkhanloo 	sued 	Gaines, 	claiming 	that 	Gaines
"engaged in extreme, outrageous and reckless conduct and grossly misused her
authority, constituting the Torts of Outrage and Intentional Infliction of Emotional
Distress of the Plaintiff and the child [N.S.S.], and has seriously damaged the
child and the mother-child relationship . . . ." On July 23, 2012, Shirkhanloo filed
an amended complaint, adding Schau as a defendant.
On 	February 	1, 2013, 	Gaines 	moved for summary judgment. 	Schau
joined this motion and also filed a separate motion for summary judgment. 	On
April 15, 2013, the court granted summary judgment in favor of Gaines and
Schau, dismissing Shirkhanloo's claims with prejudice. 	On its order, the court
wrote, 	"Gaines 	conducted 	a 	parenting 	evaluation 	and 	Schau 	conducted
psychological testing, both pursuant to the court's order. 	Thus, both Gaines and
Schau 	enjoyed 	absolute 	quasi-judicial 	immunity 	for 	acts 	pursuant 	to 	that
appointment. 	Reddv v. Karr. 102 Wn. App. 742, 748, 9 P.3d 927 (2000)."
Shirkhanloo appeals.
STANDARD OF REVIEW
We review de 	novo a trial court's order granting summary judgment.2
Summary judgment is appropriate if, viewing the fact and reasonable inferences
in the light most favorable to the nonmoving party, no genuine issues of material
2 Janaszak v. State. 173 Wn. App. 703, 728, 297 P.3d 723 (2013) (citing
Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003)).

NO. 70336-6-1/4
fact exist and the movant is entitled to judgment as a matter of law.3 	A genuine
issue of material fact exists if reasonable minds could differ about the facts
controlling the outcome of the lawsuit.4
A defendant 	may 	move 	for 	summary judgment 	by 	demonstrating 	an
absence of evidence to support the plaintiff's case.5 	If the defendant makes this
showing, the burden shifts to the plaintiff to establish the existence of an element
essential to her case.6 	If the plaintiff fails to meet her burden as a matter of law,
summary judgment for the defendant is proper.7
ANALYSIS
Shirkhanloo claims,
The 	court 	ignored 	a 	series 	of 	cases 	that 	"c[ar]ved 	out"
exceptions to the general rule providing for absolute quasi-judicial
immunity for court appointed evaluation and investigation experts
and witnesses such as the defendants. 	The court as well ignored
extensive facts that could have and should have been allowed to be
presented and argued at a trial that showed that both defendants
had not carried out their court appointed duties, had strayed far
from their scope of appointed duties, had not followed professional
and 	ethical standards 	required 	of a 	[parenting evaluator] and 	a
licensed clinical psychologist, and had perpetrated a fraud on the
(trial court), and thus were not entitled to protection under Reddv v.
Karr 	(and 	other 	related 	cases) 	as 	to 	absolute 	quasi-judicial
immunity.
3 Janaszak, 173 Wn. App. at 728 (citing CR 56(c); Michak, 148 Wn.2d at
794-95).
4 Janaszak, 173 Wn. App. at 728 (citing Hulbert v. Port of Everett, 159 Wn.
App. 389, 398, 245 P.3d 779 (2011)).
5 Knight v. Dep't of Labor & Indus., _Wn. App._, 321 P.3d 1275, 1278
(2014) (quoting Sliaarv. Odell. 156 Wn. App. 720, 725, 233 P.3d 914 (2010)).
6 Knight. 321 P.3d at 1278 (quoting Sligar, 156 Wn. App. at 725).
7 Knight, 321 P.3dat1278.

NO. 70336-6-1/5
Immunity from suit provides "an 'entitlement not to stand trial or face the
other burdens of litigation.'"8 	The common law provides judges with absolute
immunity 	for 	acts 	performed 	within 	their 	judicial capacity.9 	"Quasi-judicial
immunity 'attaches to 	persons or entities who 	perform functions that are so
comparable to those performed by judges that it is felt they should share the
judge's 	absolute 	immunity while carrying 	out 	those 	functions.'"10 	Functions
integral 	to judicial 	proceedings 	include judging, 	advocating, 	fact-finding, 	and
testifying.11
RCW 26.12.050(1 )(b) authorizes a superior court to appoint investigators
and other personnel that the court finds necessary to carry on the family court's
work. 	The court's work includes making temporary and permanent 	decisions
about parenting plans and custody of children.12 	Court-appointed investigators
and evaluators provide the court with information 	as the court deems necessary
to 	resolve 	parenting 	controversies 	between 	divorcing 	parents.13 	The 	court
appoints these investigators and evaluators, who serve at the court's pleasure.14
8 Janaszak. 173 Wn. App. at 712 (internal quotation marks omitted)
(quoting Feis v. King County Sheriff's Dep't. 165 Wn. App. 525, 538, 267 P.3d
1022(2011)).
9 Janaszak. 173 Wn. App. at 729 (citing Lallas v. Skagit County. 167
Wn.2d 861, 864, 225 P.3d 910 (2009)).
10 Reddv v. Karr, 102 Wn. App. 742, 745, 9 P.3d 927 (2000).
, 102 Wn. App. at 748 (quoting Lutheran Day Care v. Snohomish County.
119 Wn.2d 91, 99, 829 P.2d 746 (1992)).
11 Gilliam v. Dep't of Soc. & Health Servs.. 89 Wn. App. 569, 583-84, 950
P.2d20(1998).
12 RCW 26.12.190(1).
13 RCW 26.12.190(2).
14 RCW 26.12.050(3).

NO. 70336-6-1/6
In Reddv v. Karr.15 a court commissioner appointed a King County Family
Services employee during a dissolution proceeding to investigate which of two
parents should receive custody of their child. 	The mother sued the investigator,
alleging that the investigator performed a negligent parenting evaluation.16 This
court affirmed the trial court's grant of summary judgment, concluding that the
investigator was entitled to quasi-judicial immunity because she acted as an "arm
of 	the 	court" 	in 	carrying 	out 	her 	court-ordered 	investigation.17 	This 	court
reasoned,
Courts 	have the grave obligation to 	serve the 	best interests of
minor children of divorcing parents with respect to where the child
shall primarily reside and other issues of great importance to the
child, its parents and society as a whole. 	Courts do not ordinarily
perform independent investigations; rather the adversary system of
justice ordinarily requires that parties to litigation investigate and
present evidence from which the court finds facts and applies legal
principles 	in 	order 	to 	resolve 	controversies. 	But 	the 	unique
obligation of courts to serve the best interests of minor children in
cases 	of 	divorce 	often 	requires 	independent 	investigations 	of
allegations 	between 	warring 	parents, 	professional 	evaluation 	of
parenting abilities, determination of the degree of bonding between
children and each parent—not to mention the wisdom of Solomon
when the most expedient solution might appear to be to "saw the
baby in half." Judges cannot personally perform these independent
investigations and evaluations, due not only to the volume of cases
but 	also to the impropriety of ex parte contact between judges,
parties 	and 	witnesses. 	Accordingly, 	a 	surrogate 	is 	necessary.
Family court investigators and evaluators performing court-ordered
services do so as surrogates for the court.'181
15 102 Wn. App. 742, 745, 9 P.3d 927 (2000).
16 Reddv. 102 Wn. App. at 747.
17 Reddv. 102 Wn. App. at 749.
18 Reddv. 102 Wn. App. at 749-50.
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NO. 70336-6-1/7
This court also noted that the investigator had no decision-making authority or
capacity to effect her recommendations; the court retained sole responsibility for
making parenting plan decisions.19
Here, 	as in Reddv, the court appointed Gaines and Schau to perform
independent investigations and evaluations for the court to use in finding facts
and 	adopting 	a 	parenting 	plan. 	The 	court, 	not 	Gaines 	and 	Schau, 	had
independent decision-making authority over the divorcing 	parents. 	As family
court investigators performing court-ordered evaluations to assist the court in
developing a parenting plan for N.S.S., Gaines and Schau acted as arms of the
court entitled to quasi-judicial immunity from civil liability for their acts taken to
complete their evaluations.
Shirkhanloo relies 	upon 	Buckley v. Fitzsimmons,20 Fletcher v. Kalina.21
and 	Yuille 	v. 	Department 	of 	Social 	and 	Health 	Services22 	to 	support 	her
argument. 	She alleges, "[T]he courts appear consistent in denying absolute
immunity 	when 	the 	actor engages 	in grossly 	inappropriate 	and/or 	unethical
behavior as is the case here with Ms. Gaines (and Dr. Schau)." We disagree.
In Buckley, the United States Supreme Court addressed the "functional
approach" to deciding if absolute or qualified immunity applies to challenged
conduct. 	The Court explained that this inquiry focuses on "'the nature of the
19 Reddv. 102 Wn. App. at 750.
20 509 U.S. 259, 113 S. Ct. 2606, 126 L. Ed. 2d 209 (1993).
21 93 F.3d 653 (9th Cir. 1996), affd, 522 U.S. 118, 118 S. Ct. 502, 139 L
Ed. 2d 471 (1997).
22 111 Wn. App. 527, 45 P.3d 1107 (2002).
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NO. 70336-6-1/8
function performed, not the identity of the actor who performed it.'"23 	The Court
stated,
There is a 	difference between the advocate's role 	in evaluating
evidence and interviewing witnesses as he prepares for trial, on the
one hand, and the detective's role in searching for the clues and
corroboration that might give him probable cause to recommend
that a suspect be arrested, on the other hand. 	When a prosecutor
performs 	the 	investigative 	functions 	normally 	performed 	by 	a
detective or police officer, 	it is "neither appropriate nor justifiable
that, for the same act, immunity should protect the one and not the
other."!24]
The Supreme Court concluded that a 	prosecutor functions as an investigator
rather than an advocate before the establishment of probable cause to arrest or
the 	initiation 	of judicial 	proceedings 	and, 	thus, 	is 	entitled 	only 	to 	qualified
immunity in that role.25
In Buckley, 	the 	Court applied 	qualified, 	not 	absolute 	immunity to 	the
prosecutor 	after 	he 	allegedly 	fabricated 	evidence 	and 	made 	inflammatory
remarks 	during a 	press 	conference announcing 	the 	plaintiffs arrest.26 	The
alleged fabrication of evidence occurred before the establishment of probable
cause 	to 	arrest.27 	The 	prosecutor's 	conduct 	at 	a 	press 	conference, 	while
occurring after the arrest, "d[id] not involve the initiation of a prosecution, the
presentation 	of 	the 	state's 	case 	in 	court, 	or 	actions 	preparatory 	for 	these
23 Buckley. 509 U.S. at 269 (quoting Forrester v. White. 484 U.S. 219,
229, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988)).
24 Buckley. 509 U.S. at 273 (quoting Hampton v. City of Chicago. 484 F.2d
602, 608 (7th Cir. 1973)).
25 Buckley. 509 U.S. at 274.
26 Buckley. 509 U.S. at 276-77.
27 Buckley. 509 U.S. at 275.
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NO. 70336-6-1/9
functions."28 	Because the statements to the media had no "functional tie to [the]
judicial process," qualified, not absolute, immunity was proper.29
In Fletcher, 	the 	United 	States 	Court of Appeals for 	the 	Ninth Circuit
applied 	only 	qualified 	immunity to 	a 	prosecutor 	who 	allegedly 	made 	false
statements in an affidavit supporting an application for an arrest warrant.30 	The
court reasoned that the prosecutor's actions in writing, signing, and filing the
declaration for an arrest warrant were "virtually identical" to a 	police officer's
actions in making false statements in an application for an arrest warrant, which
receive only qualified immunity.31
In 	Yuille. 	a 	physician 	concluded 	that 	a 	prospective 	adoptive 	mother
suffered 	from 	Munchausen 	syndrome 	by 	proxy 	and, 	thus, 	recommended
removing a 	child 	from 	its 	home.32 	After a 	proposed 	adoption 	failed, the
prospective adoptive mother and her spouse brought a negligence action against
the physician and the hospital. The court held that the physician and the hospital
were entitled to good faith immunity from suit afforded to health care providers
who report child abuse under RCW 26.44.060(1 )(a).33
These cases do 	not address the doctrine of quasi-judicial immunity at
issue here. 	Therefore, Shirkhanloo misplaces her reliance on these cases. 	And
28 Buckley. 509 U.S. at 278.
29 Buckley. 509 U.S. at 277.
30 Fletcher. 93 F.3d at 655.
31 Fletcher. 93 F.3d at 655-56.
32 Yuille. 111 Wn. App. at 529.
33 Yuille, 111 Wn. App. at 535.

NO. 70336-6-1/10
although Shirkhanloo claims that Gaines and Schau "lost qualified immunity," she
fails to establish that qualified immunity applies here.
Shirkhanloo also relies upon RCW 7.70.010, which addresses actions for
injuries resulting from health care. 	Washington courts define "health care" under
this statute as "'the process in which [a physician is] utilizing the skills which he
[or she] had 	been taught in examining, diagnosing, treating or caring for the
plaintiff as his [or her] patient.'"34 	Shirkhanloo fails to show that either Gaines or
Schau provided or that the court expected them to provide health care as part of
their court-assigned duties. 	Accordingly, this statute does not apply.
Because we afford quasi-judicial immunity to both Gaines and Schau, we
do 	not address Gaines's argument that she and 	Schau are also entitled to
immunity as expert witnesses.
CONCLUSION
Because Gaines and Schau acted as "arms of the court" when performing
their court-ordered functions, they are entitled to quasi-judicial immunity against
Shirkhanloo's claims. 	We affirm.
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WE CONCUR:
Wl >ll/T i
34 Wright v.Jeckle. 104 Wn. App. 478, 481, 16 P.3d 1268(2001)
(alterations in original) (internal quotation marks omitted) (quoting Branom v
State. 94 Wn. App. 964, 969-70, 974 P.2d 335 (1999)).
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