Opinion
No. 56790-0-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-08124-6, John P. Erlick, J., entered July 26, 2005.
Counsel for Appellant(s), Sonja Anderson (Appearing Pro Se), 26719 Ritter Lane Ne #9-i, Kingston, WA, 98346.
Counsel for Respondent(s), Holly Michelle Hearn, Attorney at Law, 1501 4th Ave Ste 2600, Seattle, WA, 98101-1664.
Stuart Russell Dunwoody, Attorney at Law, 1501 4th Ave Ste 2600, Seattle, WA, 98101-1664.
Affirmed in part and remanded by unpublished per curiam opinion.
Sonja Anderson appeals the trial court's dismissal of her suit against her former employers at the Hanford nuclear facility, other Hanford contractors, and their employees. The trial court did not abuse its discretion in scheduling motions, disallowing Anderson to file an amended complaint, refusing to reconsider those decisions or restricting discovery. The trial court correctly dismissed Anderson's substantive claims because she failed to raise necessary material issues of fact. And Anderson has not shown that the trial judge was biased against her. However, because the court erred in entering an order establishing prerequisites to Anderson filing additional lawsuits against the same defendants, we remand only for that provision to be stricken from the judgment. We otherwise affirm the trial court in all respects.
FACTS
Anderson worked for different contractors at the Department of Energy's Hanford Nuclear Site beginning in 1977. From 1987 to 1990, she worked for Westinghouse, auditing and evaluating systems discharging waste into the environment. In 1990, she took a job with Kaiser, in which she was responsible for characterizing waste tanks and ensuring that company operations complied with environmental regulations. While working at both Westinghouse and Kaiser, Anderson provided information to congress, the national media, and the Department of Energy regarding safety and environmental issues at Hanford caused by her employers and others. She also spoke at academic institutions and received awards from citizen groups.
In 1996, Anderson was laid off at Kaiser as part of a reduction in force. Anderson disputed the reasons Kaiser gave for including her in the reduction. Fluor Daniel took over management of the Hanford facility later in 1996. Unlike other former Kaiser employees, Anderson was not offered a job with Fluor. In 1998, Anderson was again employed at Hanford, this time on an on-call part time basis by PAI Corporation to provide services to Fluor subcontractor Lockheed Martin Hanford Company. Anderson was supervised by Cynthia Caldwell, a Lockheed employee who had previously worked for Westinghouse. Anderson was discharged in less than a month after Caldwell asked PAI to assign someone else to the Lockheed work because she believed Anderson unqualified. Anderson disputed Caldwell's reason for replacing her as pretextual.
In 1999, Anderson sued Kaiser, Westinghouse and Fluor in state court, alleging that the defendants had conspired together and wrongfully terminated her employment with Westinghouse in 1996 and PAI in 1998. Anderson identified causes of action involving discrimination and retaliation, wrongful discharge and blacklisting. She alleged a broad pattern of harassment, intimidation and retaliation by Hanford employees and contractors, on and off the site. Anderson eventually obtained counsel, who filed an amended complaint that added a federal cause of action. The suit was later removed to federal court.
The federal court stayed the action as to Kaiser when Kaiser filed for Chapter 11 bankruptcy in 2000. In 2001, the court granted in part and denied in part Anderson's motion to file a second amended complaint. As to Kaiser, the court denied the request to add new claims for relief because of the bankruptcy stay. As to Fluor, the court denied the request to add new claims of wrongful discharge in 1996 and breach of contract, but allowed addition of other claims. The resulting second amended complaint included conspiracy in violation of 42 U.S.C. sec. 1985(2), state law causes of action of wrongful discharge in violation of public policy in 1996 and 1998, breach of contract, intentional interference with prospective economic advantage, and the tort of outrage.
Defendants other than Kaiser brought a motion to dismiss Anderson's claims on summary judgment. In November 2001, the federal judge presiding over Anderson's case dismissed those claims. The judge commented that Anderson had described a scenario raising serious concerns about how Hanford contractors handled environmental and public safety issues and treated whistleblowers voicing these concerns. But he nonetheless concluded Anderson had failed to produce evidence raising the necessary issues of material fact. In November 2002, the same judge dismissed the claims against Kaiser, concluding Anderson's claims were barred by Kaiser's bankruptcy.
In April 2004, Anderson filed the suit in superior court that is the subject of this appeal. In June 2004, the defendants other than the Lockheed companies moved for dismissal pursuant to CR 12(b)(6). The trial court converted the motions to motions for summary judgment pursuant to CR 56.
In July 2004, the trial court granted summary judgment in favor of the defendants on Anderson's claims for "Breach of Contract, Unlawful Discharge in Violation of Public Policy, Violation of Policies and Procedures, Whistleblower Retaliation, Hostile Work Environment, and Loss of Wages, Loss of Property." The court dismissed Anderson's claim for fraud without prejudice, concluding her pleading did not sufficiently address the nine required elements of fraud. The court also denied, without prejudice, the defendants' motion for summary judgment on Anderson's claims of intentional infliction of emotional distress, outrage, and "blacklisting," which the court construed as a claim for tortious interference with prospective economic advantage. The court scheduled rehearing of the latter motions for November 2004 and allowed Anderson to engage in discovery regarding those claims.
Clerk's Papers at 161.
The Lockheed defendants filed similar motions to dismiss. In September 2004, the court entered an order essentially providing the same rulings as those for the other defendants. The remaining Lockheed motions were also set to the same November date as the other defendants' motions. In October, Anderson moved for leave to file an amended complaint as to her fraud allegation.
Before the November hearing, the defendants submitted declarations by current and former employees. The declarations stated Anderson had not applied for employment with any of the defendants, that the defendants' employees had no contact with Anderson during the three years before Anderson filed suit, and that the defendants had responded only to one request for employment information about Anderson during that period, which response was limited to confirming the dates of Anderson's employment. At the November hearing, the court allowed Anderson additional time, until January 2005, to present responsive factual material. The court denied Anderson leave to file a proposed amended complaint as to her fraud allegation.
Before the January hearing, Anderson presented a list of jobs for which she had applied and not been hired, averring that unnamed Hanford employees had followed her in 1998 while she applied for work and that some of the employers had mysteriously lost her applications, arguing this proved the defendants had interfered with her employment. In reply, the defendants provided additional declarations stating that they had not been aware of or interfered with any applications. The trial court found no material issue of fact and accordingly dismissed the remainder of Anderson's claims. The court also denied Anderson's motions for reconsideration. Anderson appeals.
DECISION
Anderson first raises several claims of procedural error by the trial court relating to scheduling, discovery and Anderson's motions to amend her complaint and for reconsideration. We review these claims for abuse of discretion. Pub. Util. Dist. No. 1 v. Int'l Ins. Co., 124 Wn.2d 789, 813, 881 P.2d 1020 (1994) (continuance); Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 777-78, 819 P.2d 370 (1991) (discovery); Trohimovich v. Dep't of Labor Indus., 73 Wn. App. 314, 319-20, 869 P.2d 95 (1994) (amendment of pleadings); Perry v. Hamilton, 51 Wn. App. 936, 938, 756 P.2d 150 (1988) (reconsideration). A court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). On the record before us, we find no abuse of discretion by the trial court.
Anderson contends the trial court denied her a sufficient opportunity to complete discovery regarding her claims for breach of contract and infliction of emotional distress. As for the contract claim, however, Anderson never showed how additional discovery would enable her to produce an employment contract defense witnesses testified never existed because Anderson was hired by PAI in 1998 only for a terminable at will position. And the court twice granted Anderson time to engage in additional discovery relating to her other claims.
Anderson complains the court erred by denying her October 2004 motion to amend her complaint to add specific allegations of fraud. But the only acts the amended complaint alleged within the limitations period consisted of supposed lying by Hanford contractor employees during sworn deposition testimony. Those acts did not support Anderson's allegation because they were privileged. Bender v. Seattle, 99 Wn.2d 582, 599, 664 P.2d 492 (1983). Accordingly, the amendment to
See Clerk's Papers at 170-189.
Anderson incorrectly cites Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983), contending the case stands for the proposition that witness immunity is not absolute if testimony is deliberately false, malicious and harmful. Smith v. Wade is inapposite, however, because it does not deal with witness immunity, but the standard for determining when punitive damages are appropriate in a suit for damages under 42 U.S.C.S. §§ 1983.
Anderson's complaint would have been futile and court therefore did not abuse its discretion in denying her motion. MacLean v. First Northwest Industries, Inc., 96 Wn.2d 338, 345, 635 P.2d 683 (1981); Doyle v. Planned Parenthood of Seattle-King County, Inc., 31 Wn. App. 126, 131, 639 P.2d 240 (1982). Anderson further claims the court erred by ordering her not to file a motion for reconsideration. Because Anderson has not provided transcripts of the relevant hearings, her claim is unsupported in the record and fails to establish an abuse of discretion. See City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004). Anderson also contends the court's rulings regarding discovery were improper. But the court did no more than reasonably limit discovery to viable claims within the scope of the applicable statute of limitations. Finally, Anderson contends the court failed to rule on her motion to enlarge time to file a motion to reconsider after the court's final order. But Anderson's motion to enlarge time was mooted by her filing of the motion to reconsider before the court entered final judgment and the court's express denial of her motion to reconsider.
Anderson also challenges the trial court's orders granting summary judgment. We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322, 327 (2002). Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c).
Anderson contends dismissal of her breach of contract claim as time-barred was in error because she provided sufficient evidence that PAI hired her pursuant to a written contract in 1998. But Anderson produced no written contract, and the declarations on which Anderson relies were filed only after the contract claim was dismissed. Moreover, those materials, even if considered, merely use the term "contract" in conclusory fashion. They do not provide even inferential proof that the document in question contained all essential elements of a contract, which is necessary to apply the six-year statute of limitations. See DePhillips v. Zolt Constr. Co., 136 Wn.2d 26, 31, 959 P.2d 1104 (1998). Absent such evidence, Anderson's claim regarding her termination in 1998 was time-barred by the applicable three-year statute. RCW 4.16.080(3).
Anderson contends the court erred in dismissing her claim for fraud. The court's initial ruling, however, correctly applied the settled law requiring pleading allegations of fraud with particularity as to the nine requisite elements. CR 9(b); Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996). And, as discussed above, Anderson's attempt to amend her pleading did not avail her because she alleged only acts by the defendants that were either privileged or time-barred.
Anderson also contends she raised material issues of fact regarding her related claims for tortious interference with prospective economic advantage and the tort of outrage. To establish a claim of tortious interference with prospective economic advantage, a plaintiff must prove: the existence of a valid contractual relationship or expectancy; that defendants knew of that relationship; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; that the interference was for an improper purpose or used improper means; and resulting damages. Sintra, Inc. v. Seattle, 119 Wn.2d 1, 28, 829 P.2d 765 (1992). And to prove the tort of outrage, a plaintiff must show extreme and outrageous conduct, intentional or reckless infliction of emotional distress, and the actual result of severe emotional distress. Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998).
As with Anderson's other claims, many of the facts she alleged occurred more than three years before she filed suit. She nonetheless contends that, by alleging the same bad animus motivated the defendants' acts occurring after 2001 as their earlier acts, she was entitled to the benefit of the so-called "continuing violation" doctrine. See Milligan v. Thompson, 90 Wn. App. 586, 595, 953 P.2d 112 (1998); but see Antonius v. King County, 153 Wn.2d 256, 103 P.3d 729 (2004) (questioning rationale of Milligan). But Anderson has not shown this doctrine applies outside of the employment and discrimination setting. And even if she did, it would not apply to her because it does not allow a plaintiff to "reach back and recover" for permanent decisions that should have alerted the plaintiff to assert her rights. Milligan, 90 Wn. App. at 595. Anderson obviously knew of the jobs for which she sought and did not receive employment.
Absent facts dating from before the applicable three-year limitations period, Anderson's remaining evidence is essentially limited to circumstances surrounding jobs she applied for and did not receive since 2001. And Anderson failed to raise material issues of fact that she was not offered those jobs because of the defendants' activities, which is necessary for her to establish her tortious interference claim. Similarly, without evidence establishing the defendants engaged in any intentional acts affecting her attempts to gain employment, Anderson's claim for the tort of outrage likewise fails. See Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986) (non-moving party cannot rely on speculation to defeat summary judgment.)
Anderson also generally alleges the trial judge was biased and prejudiced against her. A judge is presumed to perform his or her functions regularly and properly, without bias or prejudice. Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993). A party alleging judicial bias must support the claim with evidence. State v. Dominguez, 81 Wn. App. 325, 328 — 29, 914 P.2d 141 (1996). Anderson relies only on the trial court's proper rulings and supposed oral comments that do not appear in the record. She has not met her burden.
Finally, Anderson challenges the trial court's order that she pay statutory costs in the amount of $1,490.70 before filing any new claims against the defendants in any Washington court. She contends the order infringes on her right of access to the courts.
We affirm the award of costs because Anderson has neither provided the necessary record nor made any supported argument challenging the basis for the award. We cannot, however, sustain the order requiring Anderson to pay those costs before filing any further claims against the defendants. A court may, in its discretion, place reasonable restrictions on any litigant who abuses the judicial process. In re Marriage of Giordano, 57 Wn. App. 74, 78, 787 P.2d 51 (1990). But the trial court entered no findings that Anderson had abused the judicial process or that her suit was frivolous. While the court properly determined Anderson's suit was without merit, the record does not reflect the egregious abuse of the right of access to the courts that supports such an order.
Anderson asserts that the defendants had agreed earlier not to seek costs. But this claim, like many of Anderson's factual assertions, has no support in the record.
The court's only finding in support of the order was that Anderson had a "history of litigating unfounded claims against these defendants." Clerk's Papers at 592. Because only one of the defendants was a party to both suits, this appears a strained characterization. We also note the court actually denied the Lockheed defendants' request for attorney fees, which appears inconsistent with a determination that Anderson's conduct was abusive. Nor did the federal judge dismissing Anderson's earlier suit find that suit frivolous or award fees against Anderson. And while the defendants also cite Anderson's behavior during this proceeding and other actions she has supposedly taken since filing this appeal, those facts were not before the trial court and cannot support the order.
In contrast, in Giordano, the petitioner filed so many motions in her dissolution modification proceeding that the trial court described her as "threaten[ing] to preempt the family law motions calendar and to involve all 39 superior court judges." Giordano, 57 Wn. App. at 75. In response, the court barred all motions until trial, during which all issues would be addressed and resolved. On appeal, the court upheld the moratorium on the motions because it did not amount to a total denial of access, but rather "delayed hearing for an efficient resolution of issues, and provided a safety valve for emergencies." Id. at 78.
We accordingly remand for the sole purpose of striking from the judgment the prohibition on future claims. In all other respects, we affirm.
BECKER and COX, JJ., concur.