Suzanne Gerlach, Appellant V. Bainbridge Island School District #303, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
SUZANNE GERLACH,
Appellant,
v.
BAINBRIDGE ISLAND SCHOOL
DISTRICT #303, a municipal
corporation,
Respondent.
No. 87344-0-I
UNPUBLISHED OPINION
BOWMAN, A.C.J. — Suzanne Gerlach sued Bainbridge Island School
District No. 303 (BISD), alleging violations of the Public Records Act (PRA),
chapter 42.56 RCW. Gerlach argues that the trial court erred in granting BISD’s
motion to dismiss her complaint under CR 12(b)(6) and denying her motion for an
order to show cause. Gerlach also challenges the trial court’s rulings on
discovery matters, raises claims of judicial bias, and seeks an award of attorney
fees, costs, penalties, and sanctions. Because we conclude that the court should
not have dismissed Gerlach’s complaint under CR 12(b)(6), we reverse the order
of dismissal and remand for further proceedings consistent with this opinion.

No. 87344-0-I/2
2
FACTS
From March 2021 through January 2023, Gerlach, via her attorney Marcus
Gerlach,1 filed a series of public records requests to BISD, seeking records
relating to the alleged harassment and defamation of Gerlach’s son by several
students when he was a student at Bainbridge High School from 2017 to 2021.2
On August 10, 2023, Gerlach filed a complaint in Kitsap County Superior
Court, alleging that BISD violated the PRA by failing to provide records “in a
timely manner.” BISD twice moved for a more definite statement. In support of
its motion, BISD attached the October 6, 2023 declaration of BISD’s public
records officer Angela Sawyer. Sawyer stated that since March 2021, Attorney
Gerlach had filed 15 records requests with 137 subparts. Of those 15 records
requests, BISD fulfilled and closed 11, providing around 48,228 pages of records
to date. Sawyer acknowledged that of the 4 requests that remained open, there
were 21 subparts “that have not yet begun to be fulfilled.”
Sawyer stated that Gerlach’s complaint “is written in a way that I cannot
determine whether [she] has included all the records for which there is concern
or if the vaguely described records are just a sampling of the records [she] is
taking issue with.” Sawyer said that “more information is needed” so that BISD
can “identify records referenced in the Complaint with certainty.” Gerlach
1 Because of shared surnames, we refer to Suzanne Gerlach as “Gerlach” and to
Marcus Gerlach as “Attorney Gerlach.”
2 The events that gave rise to the public records requests at issue in this case are
known to the parties and will be mentioned here only when necessary to explain our
analysis. See M.G. v. Bainbridge Island Sch. Dist., No. 58383-6-II, slip op. at 1-3 (Wash.
Ct. App. July 16, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%
2058383-6-II%20Unpublished%20Opinion.pdf.

No. 87344-0-I/3
3
opposed the motion and Attorney Gerlach filed a declaration in support of the
opposition. The trial court deferred ruling pending receipt of the four outstanding
records requests.3
Meanwhile, Gerlach commenced discovery. Attorney Gerlach deposed
BISD employee Sara Berger in August 2023 and BISD Superintendent Peter
Bang-Knudsen in June 2024 but was unsatisfied with their responses. He noted
the deposition of BISD teacher Charisa Moore in July 2024 but scheduling
difficulties ensued and he decided to cancel it.
On July 26, 2024, Gerlach noted a CR 30(b)(6) deposition of BISD’s
“person(s) most knowledgeable” for August 16, 2024. The notice directed BISD
to produce “one or more agents, officers or other persons” to answer 13
questions related to the alleged harassment and bullying of Gerlach’s son. That
same day, BISD moved to quash the notice of deposition and for a protective
order. Gerlach opposed the motion and sought sanctions against BISD. Gerlach
also revised and renoted her notice of deposition.
The hearing on the motion to quash and the deposition were both
scheduled to take place at 9:00 a.m. on August 23, 2024. So, Gerlach moved to
compel BISD to attend the CR 30(b)(6) deposition and sought sanctions. On
August 19, 2024, the court denied Gerlach’s motion to compel and struck the
August 23, 2024 deposition pending the outcome of BISD’s motion to quash.
The court later denied Gerlach’s motion for reconsideration.
3 As far as we can discern from the record before us, the court never ruled on the
motion.

No. 87344-0-I/4
4
Following a hearing on August 23, 2024, the trial court orally granted
BISD’s motion to quash Gerlach’s CR 30(b)(6) notice of deposition, ruling that it
was “unreasonable, cumulative, and seemingly burdensome and not in good
faith” because it did not identify a PRA violation. As for BISD’s motion for a
protective order, the court expressly declined to bar future depositions but ruled
that any future deposition notice must establish that the questions are “related to
[Gerlach’s] PRA violation claim.”
BISD then moved to dismiss Gerlach’s complaint under CR 12(b)(6) and
supported its motion with a second declaration from BISD public records officer
Sawyer. Sawyer discussed factors impacting BISD’s response times and stated
that BISD had been regularly providing records installments to Gerlach every 30
to 45 days. BISD also sought an award of sanctions against Gerlach under CR
11. Gerlach opposed the motion to dismiss, sought sanctions against BISD, and
moved for an order to show cause, seeking to compel production within 5 days of
all records requested in 2021. On October 7, 2024, the trial court granted BISD’s
CR 12(b)(6) motion to dismiss, denied the petition to show cause, and denied
both parties’ requests for sanctions. The trial court denied Gerlach’s motion for
reconsideration.
On October 18, 2024—almost two months after the court orally ruled on
BISD’s motion to quash and for a protective order—the trial court entered a
written order granting the motion to quash, specifying that Gerlach “may notice
further depositions, including under CR 30(b)(6); provided, however, that any

No. 87344-0-I/5
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further depositions noticed by plaintiff shall be limited to the subject of violations
of the [PRA] as alleged in this matter.”
Gerlach appeals.4
ANALYSIS
Gerlach asserts 18 assignments of error, which we have grouped into
these categories: (1) the trial court’s order dismissing Gerlach’s complaint and
denying her motion to show cause, (2) rulings affecting discovery, (3) issues
regarding judicial bias and qualifications, and (4) Gerlach’s request for an award
of fees and sanctions on appeal. We address each category in turn.5
1. Dismissal under CR 12(b)(6)
Gerlach argues that the superior court erred in granting BISD’s CR
12(b)(6) motion to dismiss her complaint, denying her motion for an order to
show cause, and denying her request for sanctions.6 She contends that the
4 Gerlach filed several motions in this court, seeking to transfer this case to
Division Three based on allegations of malice, bias, prejudice, and partiality in this
division’s management of her appeal. On September 24, 2025, a commissioner of this
court referred Gerlach’s motions to the panel assigned to decide the merits of this
appeal. We deny the motions to transfer.
5 We note that Gerlach chose not to provide this court with substantial portions of
the trial court record; most notably, BISD’s motions. “The appellant bears the burden of
perfecting the record on appeal so as to ensure that the reviewing court is apprised of all
necessary evidence to decide the issues presented.” Tacoma S. Hosp., LLC v. Nat’l
Gen. Ins. Co., 19 Wn. App. 2d 210, 220, 494 P.3d 450 (2021); see RAP 9.6. Although
these omissions hampered our review, we have determined that the record before us is
sufficient to reach the merits of the issues raised on appeal except when noted
throughout the opinion.
6 Gerlach also asserts that the trial court erred by considering BISD’s
unconfirmed motion to dismiss before Gerlach’s confirmed motion to show cause. But
the court explained its reasoning on the record, and Attorney Gerlach agreed to
“proceed.”

No. 87344-0-I/6
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complaint adequately stated a claim for violating the PRA under Washington’s
generous notice pleading standards. We agree the court erred by dismissing
Gerlach’s complaint under CR 12(b)(6).7
Under CR 12(b)(6), a defendant may move to dismiss a complaint for the
plaintiff’s “failure to state a claim upon which relief can be granted.” Courts
should dismiss a complaint under CR 12(b)(6) “sparingly, with care, and only in
the unusual case in which the plaintiff’s allegations show on the face of the
complaint an insuperable bar to relief.” Feyen v. Spokane Teachers Credit
Union, 23 Wn. App. 2d 264, 274, 515 P.3d 996 (2022) (citing Tenore v. AT & T
Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998)).
“Dismissal is proper if, accepting all factual allegations as true, ‘it appears
beyond doubt that the plaintiff can prove no set of facts, consistent with the
complaint, which would entitle the plaintiff to relief.’ ” Becker v. Cmty. Health
Sys., Inc., 182 Wn. App. 935, 941, 332 P.3d 1085 (2014) (quoting Corrigal v. Ball
7 Below, both Gerlach and BISD attached documents not included in the original
complaint for the trial court to consider in ruling on BISD’s CR 12(b)(6) motion to
dismiss, including content not specifically alleged in the pleadings. Such submissions
generally convert a CR 12(b)(6) motion into a summary judgment motion under CR
56(c). McAfee v. Select Portfolio Servicing, Inc., 193 Wn. App. 220, 226, 370 P.3d 25
(2016); Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085
(1976); CR 12(c). Here, the order of dismissal indicates that the trial court considered
these submissions before dismissing the complaint under CR 12(b)(6). But CR 12(b)
expressly conditions the conversion of a CR 12(b)(6) motion on the requirement that all
parties “be given reasonable opportunity to present all material” pertinent to a motion for
summary judgment. See Boudreaux v. Weyerhaeuser Co., 10 Wn. App. 2d 289, 315
n.16, 448 P.3d 121 (2019) (declining to consider evidence beyond the pleadings where
defendant successfully moved to stay discovery). Here, the written order granting
BISD’s motion to quash and for a protective order—which the court entered more than a
week after the order of dismissal—expressly states that Gerlach “may notice further
depositions.” On this record, we cannot conclusively determine whether Gerlach had an
adequate opportunity to conduct discovery, so we decline to apply the summary
judgment standard here.

No. 87344-0-I/7
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& Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978)), aff’d, 184
Wn.2d 252, 359 P.3d 746 (2015). But “if the complaint conceivably alleges some
hypothetical situation, including facts argued for the first time on appeal, that if
proved would be legally sufficient to justify relief for the plaintiff,” dismissal under
CR 12(b)(6) is not appropriate. Mellon v. Reg’l Tr. Servs. Corp., 182 Wn. App.
476, 487, 334 P.3d 1120 (2014) (citing Halvorson v. Dahl, 89 Wn.2d 673, 674-75,
574 P.2d 1190 (1978)). We review orders on CR 12(b)(6) motions de novo.
Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830, 355 P.3d 1100 (2015).
BISD argues that Gerlach failed to state a claim on which the court could
grant relief because her complaint failed to expressly identify the requested
records at issue. Accordingly, the propriety of the trial court’s order of dismissal
“must be tested” in light of CR 8(a), which requires that a complaint contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief” and “a demand for judgment for the relief to which the pleader deems the
pleader is entitled.” Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793
(1984); Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744
P.2d 1032 (1987) (reading CR 12(b)(6) together with CR 8(a)(1)).
We construe a complaint liberally so as to do substantial justice. CR 8(f);
State v. LG Elecs., Inc., 186 Wn.2d 169, 183, 375 P.3d 1035 (2016) (“Our liberal
notice pleading rules are intended ‘to facilitate the full airing of claims having a
legal basis.’ ”) (quoting Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187
(1977)). A complaint “should adequately alert the defendant of the claim’s
general nature” and “is insufficient if it does not give the defendant ‘fair notice of

No. 87344-0-I/8
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what the claim is and the ground upon which it rests.’ ” Est. of Dormaier v.
Columbia Basin Anesthesia, P.L.L.C., 177 Wn. App. 828, 853-54, 313 P.3d 431
(2013) (quoting Williams v. S. Sur. Co., 6 Wn. App. 300, 304-05, 492 P.2d 596
(1972)). A court may dismiss a complaint that does not comply with CR 8(a) for
failure to state a claim under CR 12(b)(6). Becker, 182 Wn. App. at 941.
The PRA “is a strongly-worded mandate for broad disclosure of public
records.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The
act “shall be liberally construed and its exemptions narrowly construed” to
promote this purpose of public disclosure. RCW 42.56.030.
The PRA provides a cause of action for two types of
violations: (1) when an agency wrongfully denies an opportunity to
inspect or copy a public record, or (2) when an agency has not
made a reasonable estimate of the time required to respond to the
request.
Andrews v. Wash. State Patrol, 183 Wn. App. 644, 651, 334 P.3d 94 (2014)
(citing RCW 42.56.550(1), (2)).
On a request for “identifiable” public records, an agency must make the
records “promptly available.” RCW 42.56.080(2). Agencies must provide “the
fullest assistance to inquirers and the most timely possible action on requests for
information.” RCW 42.56.100. “Failure to diligently respond to a request is
unreasonable and amounts to a PRA violation.” C.S.A. v. Bellevue Sch. Dist., 32
Wn. App. 2d 544, 558, 557 P.3d 268 (2024) (citing Cantu v. Yakima Sch. Dist.
No. 7, 23 Wn. App. 2d 57, 88, 94, 514 P.3d 661 (2022)), review denied, 4 Wn.3d
1019, 566 P.3d 92 (2025), cert. denied, ___ U.S. ___, 2025 WL 2824109.

No. 87344-0-I/9
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A public records requester may seek judicial review by moving for an
order requiring the agency to “show cause why it has refused to allow inspection
or copying” of records or to “show that the estimate it provided is reasonable.”
RCW 42.56.550(1), (2). “[S]how cause hearings are the usual method of
resolving litigation” under the PRA. Wood v. Thurston County, 117 Wn. App. 22,
27, 68 P.3d 1084 (2003). The agency bears the burden to prove that it complied
with the PRA. Cantu, 23 Wn. App. 2d at 79.
Here, Gerlach’s August 2023 complaint alleged that BISD violated the
PRA by “fail[ing] to provide necessary and essential documents in a timely
manner.” The complaint alleged that Attorney Gerlach sought records “[f]rom
March 2021 through the present,” that the requested records “should have been
provided more than a year ago,” and that BISD’s failure to do so “is effectively a
final agency denial under RCW 42.56.520.”
The complaint further alleged three specific instances of violations:
In one instance, Gerlach's attorney requested BISD’s investigative
notes on September 17, 2019. On December 21, 2023, BISD
finally provided the notes. BISD procrastinated more than 450 days
to provide BISD’s (25 page) investigative notes.
. . . In another instance, [BISD Principal Kristen] Haizlip sent
an e-mail to [BISD’s Title IX8 coordinator Erin] Murphy with the
subject line: Fwd: Conversation. BISD redacted the entire e-mail
because the conversation was later sent to BISD’s attorney. BISD
improperly claimed the “Conversation” between two BISD
employees was “attorney-client privilege.”
. . . Finally, in another situation BISD’s superintendent had a
conversation with a school board member and later forwarded the
message to the school board’s attorney. BISD claimed the
message between the superintendent and school board member
was “attorney[-]client privilege.”
8 Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688.

No. 87344-0-I/10
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The complaint also sought an order for BISD to “show cause why the records
were not provided in a timely manner,” an order for BISD “to produce the
unredacted requested records without further delay,” and for penalties and costs
“applicable to BISD’s failure to disclose the records in a timely manner.”
Viewing the adequacy of the complaint in light of Washington’s generous
notice pleading standards and our obligation to consider whether “any set of facts
could exist that would justify recovery,” we are compelled to conclude that the
complaint sufficiently alleges a claim for “having been denied an opportunity to
[timely] inspect or copy a public record by an agency.” Hoffer v. State, 110
Wn.2d 415, 421, 755 P.2d 781 (1988); RCW 42.56.550(1). So, Gerlach’s
complaint survives dismissal under CR 12(b)(6). At minimum, the complaint was
sufficient to alert BISD that Gerlach’s as-yet unfulfilled records requests, which
had been open for more than a year, were at issue in the lawsuit.
Still, BISD argues that the complaint’s failure to identify the records or
class of records at issue with specificity rendered BISD unable to respond to the
allegations in the complaint and prevented the establishment of a duty. BISD
also points out that it gave Gerlach extensive time to identify the records at issue
and she failed to do so. But BISD tacitly acknowledges in its response brief that
it provided the requested investigative notes in a production of records to
Gerlach, so it appears that BISD was able to identify the record at issue in that
incident.9 Further, a show cause proceeding “operates like a motion for summary
judgment on the claimant’s PRA claims.” West v. Gregoire, 184 Wn. App. 164,
9 The parties dispute whether BISD timely provided those records.

No. 87344-0-I/11
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172, 336 P.3d 110 (2014). And “ ‘initial pleadings which may be unclear may be
clarified during the course of summary judgment proceedings.’ ” Evergreen
Moneysource Mortg. Co. v. Shannon, 167 Wn. App. 242, 257, 274 P.3d 375
(2012) (quoting State v. Adams, 107 Wn.2d 611, 620, 732 P.2d 149 (1987)). So,
it is at least possible that Gerlach’s claim might survive dismissal under the
standards applicable to a show cause proceeding.
We reverse the trial court’s order dismissing Gerlach’s complaint under
CR 12(b)(6) and denying her request for an order to show cause and remand for
proceedings consistent with this opinion.
Further, our decision is limited to our determination that the complaint
survives a motion to dismiss under CR 12(b)(6) given Washington’s generous
notice pleading standard. Because we do not reach the merits of Gerlach’s PRA
claims, her request for an award of attorney fees, costs, and penalties on that
basis is premature.10
Gerlach also argues that the trial court erred in denying her request for
sanctions against BISD under CR 11 and CR 26 based on allegedly false,
frivolous, and misleading motions and declarations filed by BISD. We review
sanction decisions for an abuse of discretion. Wash. State Physicians Ins. Exch.
10 Gerlach asserts that BISD admitted violating the PRA by failing to fulfill all of
her records requests at the time the court dismissed her complaint. But BISD denies
that it violated the PRA, and no court has yet made this determination. An agency may
produce records in installments if it does so “with reasonable diligence.” C.S.A., 32 Wn.
App. 2d at 558. Whether an agency was reasonably diligent in responding to a records
request is a question of fact. Cantu, 23 Wn. App. 2d at 93. And although Gerlach insists
that she is entitled to receive unredacted records, “an agency may withhold all or part of
a record if it falls within an exemption under the PRA ‘or other statute which exempts or
prohibits disclosure of specific information or records.’ ” Gronquist v. Wash. State Dep’t
of Licensing, 175 Wn. App. 729, 743, 309 P.3d 538 (2013) (quoting RCW 42.56.070(1)).

No. 87344-0-I/12
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& Ass’n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993). A trial
court abuses its discretion when its order is manifestly unreasonable or based on
untenable grounds. Id. at 339.
Gerlach fails to show that the trial court abused its discretion. The
purpose of CR 11 is to encourage careful prefiling investigation of facts and the
law and to deter frivolous filings. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210,
219, 829 P.2d 1099 (1992). And CR 26(g) authorizes sanctions for discovery
abuse. Fisons, 122 Wn.2d at 342-43. But Gerlach chose not to designate many
of BISD’s filings in the appellate record, so it is largely impossible to evaluate
these claims. As much as the record permits our review, BISD’s filings were
entirely proper in the context of the litigation.
2. Discovery Orders
Gerlach challenges several of the trial court’s discovery rulings. First, she
argues that the trial court erred in granting BISD’s motion to quash and for a
protective order. We disagree.
We review a trial court’s discovery order for abuse of discretion. T.S. v.
Boy Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006). “A trial court
has broad discretion under CR 26 to manage the discovery process and, if
necessary, to limit the scope of discovery.” Nakata v. Blue Bird, Inc., 146 Wn.
App. 267, 277, 191 P.3d 900 (2008). “Parties may obtain discovery regarding
any matter, not privileged, which is relevant to the subject matter involved in the
pending action.” CR 26(b)(1). This rule “is designed to permit a broad scope of

No. 87344-0-I/13
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discovery.” Ollie v. Highland Sch. Dist. No. 203, 50 Wn. App. 639, 642, 749 P.2d
757 (1988) (citing Barfield v. Seattle, 100 Wn.2d 878, 883, 676 P.2d 438 (1984)).
Under CR 26(b)(1), the court evaluates whether the discovery is “relevant
to the subject matter involved in the pending action.” The rule permits the court
to limit discovery from an opposing party if the discovery sought is “unreasonably
cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive.” CR 26(b)(1)(A). The trial
court may not restrict discovery “in a way that prevents discovery of information
relevant to the issues that may arise in a PRA lawsuit.” Neigh. All. of Spokane
County v. Spokane County, 172 Wn.2d 702, 717, 261 P.3d 119 (2011). “[T]he
decision not to disclose records and the reasons behind that decision ‘are
precisely the subject matter of a suit brought under the [PRA].’ ” Id. at 716-17
(quoting Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243,
270 n.17, 884 P.2d 592 (1994)). “Relevancy in a PRA action, then, includes why
documents were withheld, destroyed, or even lost.” Id. at 718.
Here, the trial court granted BISD’s motion to quash Gerlach’s pending CR
30(b)(6) notice of deposition because the notice “does not identify Public
Records violations” and “would be unreasonable, cumulative, . . . overly
burdensome, and . . . not brought in good faith.” BISD asserts that Gerlach was
using the depositions in this case to seek information on her family’s separate
tort claim against BISD without necessitating the participation of the attorneys for
the other defendants named on that claim. Gerlach contends that the discovery
sought was relevant to BISD’s bad faith motivation for wrongfully withholding

No. 87344-0-I/14
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records. It is true that “the agency’s motivation for failing to disclose or for
withholding documents is relevant in a PRA action.” Neigh. All., 172 Wn.2d at
717. But the notice of deposition here does not identify any PRA violation or
seek information about BISD’s PRA response. So, its connection to the matters
alleged in the complaint is tenuous at best. The trial court did not abuse its
discretion in granting the motion to quash.
Gerlach also asserts that the trial court’s ruling on the protective order
improperly limited the scope of discovery. She cites King v. Pratt & Whitney, 161
F.R.D. 475, 31 Fed. R. Serv. 3d 1338 (S.D. Fla. 1995),11 and Detoy v. City and
County of San Francisco, 196 F.R.D. 362, 48 Fed. R. Serv. 3d 101 (N.D. Cal.
2000), for the proposition that CR 30(b)(6) cannot be used to limit what can be
asked at a deposition. She further contends that the trial court’s failure to
consider the federal cases cited at the motion hearing resulted in a ruling that
“violated federal law.” But the cases she relies on do not contravene the
principle that deposition questions must be relevant to the claim. King, 161
F.R.D. at 476 (“This Court sees no harm in allowing all relevant questions to be
asked at a Rule 30(b)(6) deposition)12; Detoy, 196 F.R.D. at 366-67 (defendants
were obligated to produce witnesses to testify to relevant matters).
Here, the trial court’s protective order specified that “Plaintiff may notice
further depositions, including under CR 30(b)(6); provided, however, that any
further depositions noticed by plaintiff shall be limited to the subject of violations
11 Aff’d, 213 F.3d 647 (11th Circ. 2000).
12 Emphasis added.

No. 87344-0-I/15
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of the [PRA] as alleged in this matter.” This language broadly permits Gerlach to
seek discovery on any evidence relevant to her PRA claim, and the court did not
abuse its discretion in doing so.
Gerlach also challenges the trial court’s order denying her motion to
compel and striking the August 23, 2024 deposition pending the outcome of
BISD’s motion to quash. Gerlach asserts that the court lacked authority to strike
the deposition sua sponte in favor of allowing BISD to file a frivolous motion to
quash. But the notice of deposition and the motion to quash were scheduled for
the same date and time, so the issue before the court was “what’s going to
happen Friday morning at nine.” After confirming that no date was set for trial
and that no discovery cutoff was in place, the court ruled that Gerlach would not
be prejudiced by delaying the deposition to a later date, pending consideration of
the motion to quash. Given that the outcome of the motion to quash would
determine the scope of any future discovery, this ruling was appropriate.
3. Judicial Bias and Qualifications
Gerlach asserts that Kitsap County Superior Court Presiding Judge
Jennifer Forbes should have recused herself to avoid perceived, apparent, or
alleged manifest bias. Gerlach’s claim is based on Judge Forbes’ involvement in
prior lawsuits involving Gerlach and other members of her family.
Under the appearance of fairness doctrine, judges should disqualify
themselves “in a proceeding in which their impartiality might reasonably be
questioned.” Sherman v. State, 128 Wn.2d 164, 188, 905 P.2d 355 (1995); CJC
2.11(A)(1) (a judge “shall self-disqualify in any proceeding in which the judge’s

No. 87344-0-I/16
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impartiality . . . might reasonably be questioned,” including where the judge has
“a personal bias or prejudice concerning a party”).
Based on the record before us, it appears that Gerlach expressed concern
that the superior court was biased against her but never sought Judge Forbes’
recusal. And an appearance of fairness claim is not constitutionally based and
cannot be raised for the first time on appeal. In re Guardianship of Cobb, 172
Wn. App. 393, 404, 292 P.3d 772 (2012) (citing RAP 2.5(a)(3)). But even if
Gerlach had timely asserted this claim, recusal would not have been warranted
because Judge Forbes did not actually enter any substantive rulings in this case.
Still, Gerlach points out that Judge Forbes assigned BISD’s motion to
dismiss to Judge William Houser. But “[e]vidence 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). The mere fact that
Presiding Judge Forbes assigned the case to Judge Houser does not impugn the
fairness of these proceedings. Gerlach also claims that the court acted with bias
by ruling against her. But we presume judges perform their functions without
bias or prejudice. Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945
(1993). This claim lacks merit.
Gerlach also asserts that Judge Cadine Ferguson-Brown, who ruled on
BISD’s motion to quash and for a protective order, was not qualified to serve as a
Kitsap County Superior Court judge. This is so, she contends, because “RCW
2.60.050 mandates judges be a resident of the county [they serve] for not less
than one year at the time of appointment,” and Judge Ferguson-Brown is a

No. 87344-0-I/17
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resident of Mason County.
RCW 2.60.050 does not exist. We presume Gerlach is relying on RCW
2.06.050(2), which provides that “[a] judge of the court shall be . . . [a] resident
for not less than one year at the time of appointment or initial election in the
district for which his or her position was created.” But chapter 2.06 RCW applies
to the Court of Appeals, not the superior courts. This claim also fails.
4. Sanctions and Attorney Fees
Gerlach requests attorney fees and costs on appeal under RAP 18.1(a)
and RCW 42.56.550(4).13 RAP 18.1(a) authorizes a party to request attorney
fees on appeal if “applicable law grants to a party the right to recover reasonable
attorney fees or expenses on review.” RCW 42.56.550(4) provides for an award
of “all costs, including reasonable attorney fees, incurred in connection with such
legal action” to any person who “prevails against an agency in any action in the
courts seeking the right to inspect or copy any public record.” This includes
attorney fees incurred on appeal. Sargent v. Seattle Police Dep’t, 179 Wn.2d
376, 402, 314 P.3d 1093 (2013).
As discussed above, no determination has been made as to whether or
not BISD violated the PRA. “A petitioner prevails in a PRA action when the court
determines that the agency wrongfully failed to disclose the requested records or
otherwise violated the PRA.” White v. Clark County, 188 Wn. App. 622, 640, 354
P.3d 38 (2015) (citing Spokane Rsch. & Def. Fund v. City of Spokane, 155
13 Gerlach also cites former RCW 42.17.340(4) (2005) as a basis for an award of
fees. But the legislature recodified that statute as RCW 42.56.550 effective July 1, 2006.
LAWS OF 2005, ch. 274, § 103.

No. 87344-0-I/18
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Wn.2d 89, 103, 117 P.3d 1117 (2005)). Gerlach has not prevailed on appeal, so
we deny her request.
Gerlach also seeks an award of sanctions under CR 11 and RCW
4.84.185 based on BISD’s allegedly frivolous pleadings and misleading
declarations. But “RCW 4.84.185 does not apply to a request for attorney fees
on appeal.” Wash. Election Integrity Coal. United v. Schumacher, 28 Wn. App.
2d 176, 205-06, 537 P.3d 1058 (2023) (citing Hanna v. Margitan, 193 Wn. App.
596, 614-15, 373 P.3d 300 (2016)), review denied, 2 Wn.3d 1025, 544 P.3d 28
(2024). And “[a]lthough CR 11 sanctions were formerly available on appeal, they
have not been since amendment of the rules in 1994 removed RAP 18.7’s
reference to CR 11.” Id. at 206 (citing Bldg. Indus. Ass’n of Wash. v. McCarthy,
152 Wn. App. 720, 750, 218 P.3d 196 (2009)). In any event, as discussed
above, Gerlach has not shown that BISD’s filings were frivolous.
We reverse the trial court’s order of dismissal under CR 12(b)(6) and
remand for further proceedings consistent with this opinion.
WE CONCUR: