Hafid Tahroui, V Franklin Brown, Etals ( 2015 )

FILED
COURT OF APPEALS
DIVISION kI
2015 FEB I O MI 8: 56
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
HAFID TAHRAOUI, an individual, No. 44829 -7 -II
Appellant,
v.
FRANKLIN BROWN, RUSTIN WILDER, UNPUBLISHED OPINION
ERIN ORBITS, JOHN and JANE DOES 1 - 4
individually, and in his or her official Capacity,
PIERCE COUNTY, a municipal corporation,
PIERCE COUNTY SHERIFF, a county
agency; and PIERCE COUNTY
PROSECUTOR, a county agency,
Respondents.
JOHANSON, C.J. — Hafid Tahraoui appeals from a superior court' s order dismissing his
claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress
or " outrage" under CR 12( c). We hold that the superior court erred by dismissing Tahraoui' s
malicious prosecution claim because he alleged sufficient facts to preclude CR 12( c) dismissal.
But we hold that the superior court did not err by dismissing Tahraoui' s abuse of process claim
because the alleged abuse was merely the institution of the process itself, nor did the court err by
dismissing Tahraoui' s intentional infliction of emotional distress claim because the alleged
No. 44829 -7 -II
offensive conduct was not extreme and outrageous. We hold further that the Pierce County
Sheriff' s Department is not a proper party to this action and, therefore, must be dismissed.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with
this opinion.
FACTS
In May 2008, Tahraoui bought a generator that Eric Pate advertised for sale on
Craigslist. "1 After that purchase, Tahraoui bought several additional tools and also asked if Pate' s
forklift was for sale. When Tahraoui returned the next day, a man named " Shelly "2 was conducting
a garage sale at the residence, and he told Tahraoui that Pate would be available shortly. Clerk' s
Papers ( CP) at 56. But before Tahraoui could speak to Pate, he saw Pate, visibly upset, leave the
home. Tahraoui bought several items from the garage sale, including a trailer hitch for $70.
The next day, Pate telephoned Tahraoui, told him that the hitch was not for sale, and asked
for its immediate return. Tahraoui refused because Shelly sold it to him. Pate contacted the
sheriff' s department to report that Tahraoui stole the hitch. Deputy Sheriff Franklin Brown called
Tahraoui, and according to Tahraoui, left the following voicemail:
Hafid, this is Deputy Brown with the Pierce County Sheriff' s Department.
You took the trailer hitch from [ Pate] from his house. I' ll bet that you will return
the hitch before I get my hand on you and put you in the Pierce County Jail. If you
want to contact me call 911 and ask for Deputy Brown."
1 Because this case involves a CR 12( c) dismissal on the pleadings, the facts are drawn and
summarized from Tahraoui' s complaint and we must assume the truth of those facts pursuant to
the court rule.
2 Tahraoui asserts that Shelly is Pate' s stepfather. Deputy Brown does not dispute this contention
directly, but refers to Shelly only as " a third party." Neither party provides a surname, so Shelly
is used throughout.
No. 44829 -7 -II
CP at 31. Tahraoui returned Deputy Brown' s call, told Brown that he had purchased the hitch,
and implored Deputy Brown to hear his version of the events. Notwithstanding Tahraoui' s
explanation, Deputy Brown allegedly threatened to arrest Tahraoui. Tahraoui denied Deputy
Brown' s request for his' home address.
After speaking with Deputy Brown, Tahraoui spoke with Lieutenant Rustin Wilder of the
sheriff' s department who promised to investigate Tahraoui' s complaint relating to Brown' s " bias"
and " mishandling" of the theft claim. According to Tahraoui, Lieutenant Wilder attempted to
deceive Tahraoui by suggesting that Tahraoui come to the South Hill Precinct to make a statement
about his complaints. Tahraoui believed that Lieutenant Wilder' s request was a ruse designed to
facilitate Tahraoui' s arrest. Tahraoui claimed that he relayed these suspicions to Lieutenant
Wilder, who momentarily tried to hide his intentions, but ultimately admitted that Tahraoui was
facing arrest for " multiple crimes including theft and extortion." CP at 32 -33.
Tahraoui maintained that Lieutenant Wilder accused him of lying and that Lieutenant
Wilder attempted to coerce prosecutors to elevate the severity of Tahraoui' s charges in retaliation
for Tahraoui' s complaints. Tahraoui also asserted that Deputy Brown deliberately forwarded a
false report to the prosecuting attorney by refusing to disclose his knowledge that Tahraoui paid
for the hitch.
Over the following weeks, according to Tahraoui, other deputies from the sheriff' s
department called him, again threatening arrest, and on one occasion, deputies visited his work
place. Tahraoui claimed that he avoided arrest by " ke[ eping] him self [ sic] out of reach." CP at
33. Tahraoui maintained that he lived in fear of imminent arrest over the course of the next several
months, limiting his movement and avoiding Pierce County. Tahraoui stated that he hoped that
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No. 44829 -7 -II
his problem with the sheriff would " go away over time." CP at 33. But in March of 2009, Tahraoui
received a criminal complaint charging him with theft, a charge which prosecutors apparently
refused to drop despite Tahraoui' s request. Tahraoui was arraigned, but the charges were
subsequently dismissed with prejudice.
Tahraoui brought suit against Deputy Brown, Lieutenant Wilder, Erin Orbits, John and
Jane Does 1 - 4, Pierce County, Pierce County Sheriff' s Department, and the Pierce County
Prosecuting Attorney' s Office ( collectively " the County ") alleging a number of federal3 and state
law causes of action, including those discussed below.4 Before the superior court, the County
moved for dismissal on the pleadings under CR 12( c). 5 The superior court considered the County' s
motion for judgment on the pleadings, Tahraoui' s response in opposition to that motion, and the
County' s reply. Finding that Tahraoui failed to allege facts capable of sustaining his claims, the
superior court entered an order dismissing Tahraoui' s case with prejudice. Tahraoui appeals.
3 The case was removed to the United States District Court for the Western District of Washington.
The district court dismissed each of Tahraoui' s federal claims and remanded to the superior court
for consideration of his remaining state law claims.
4 The record is not clear as to what role Orbits occupied nor does it contain any reference to John
and Jane Does 1 - 4.
5 CR 12( c) provides,
Motion for Judgment on the Pleadings. After the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the
pleadings. If, on a motion for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent to such
a motion by rule 56.
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No. 44829 -7 -II
ANALYSIS
I. STANDARD OF REVIEW
We review a dismissal under CR 12( c) de novo, examining the pleadings to determine
whether the claimant can prove any set of facts, consistent with the complaint that would entitle
the claimant to relief. Parrilla v. King County, 138 Wn. App. 427, 431, 157 P.3d 879 ( 2007). And
we treat a CR 12( c) motion for judgment on the pleadings identically to a CR 12( b)( 6) motion to
dismiss for failure to state a claim. Suleiman v. Lasher, 48 Wash. App. 373, 376, 739 P.2d 712
citing Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure 294 -95 ( 1985)),
review denied, 109 Wash. 2d 1005 ( 1987). Like a CR 12( b)( 6) motion, the purpose is to determine
if a plaintiff can prove any set of facts that would justify relief. Suleiman, 48 Wash. App. at 376
citing Halvorson v. Dahl, 89 Wash. 2d 673, 574 P.2d 1190 ( 1978)). "` In making this determination,
a trial court must presume that the plaintiff s allegations are true and may consider hypothetical
facts that are not included in the record. "' P.E. Sys., LLC v. CPI Corp., 176 Wash. 2d 198, 210 -11,
289 P.3d 638 ( 2012) ( quoting Parmelee v. O' Neel, 145 Wash. App. 223, 232, 186 P.3d 1094 ( 2008),
rev 'd in part, 168 Wash. 2d 515, 229 P.3d 723 ( 2010)).
II. MALICIOUS PROSECUTION
Tahraoui contends that the trial court erred in dismissing his claim for malicious
prosecution because he alleged sufficient facts to demonstrate that Deputy Brown did not act in
good faith, lacked probable cause, and failed to conduct a meaningful investigation.6 The County
6 Tahraoui also argues that the superior court should have stricken " or at least disregarded" portions
of Deputy Brown' s CR 12( c) motion statement of facts because it contained misleading statements.
Br. of Appellant at 11. Because our review is de novo, and we are required to consider the facts
and the evidence in a light most favorable to the nonmoving party, the facts relied on here are from
Tahraoui' s complaint.
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No. 44829 -7 -II
responds that Tahraoui' s malicious prosecution claim fails because the existence of probable
cause, which was present in this case, is a complete defense to an alleged claim for malicious
prosecution. We hold that the trial court erred by dismissing Tahraoui' s claim for malicious
prosecution because he alleged sufficient facts that, if proven, could potentially establish the
elements of malicious prosecution.
A. RULES of LAW
To maintain an action for malicious prosecution, a plaintiff must allege and prove that ( 1)
the prosecution was instituted or continued by the defendant, (2) there was want of probable cause
for the institution or continuation of the proceeding, ( 3) the proceeding was instituted or continued
through malice, ( 4) the proceeding was terminated on the merits in favor of the plaintiff or was
abandoned, and ( 5) plaintiff suffered injury as a result of the prosecution. Bender v. City ofSeattle,
99 Wash. 2d 582, 593, 664 P.2d 492 ( 1983). Although the malicious prosecution plaintiff must prove
all required elements, malice and want of probable cause constitute the gist of a malicious
prosecution action; as such, proof of probable cause is an absolute defense. Hanson v. City of
Snohomish, 121 Wash. 2d 552, 558, 852 P.2d 295 ( 1993); Brin v. Stutzman, 89 Wash. App. 809, 819,
951 P.2d 291, review denied, 136 Wash. 2d 1004 ( 1998).
B. ANALYSIS
Tahraoui argues that he alleged sufficient facts that demonstrate that probable cause was
absent because Deputy Brown was careless in conducting his investigation and because he did not
provide the prosecuting attorney with a full and fair disclosure, in good faith, of all material facts
known to him. The County contends that probable cause existed to believe that Tahraoui
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No. 44829 -7 -II
committed the crime of theft based on statements submitted by Pate and corroborating evidence
from the phone call with Tahraoui himself notwithstanding an allegedly insufficient investigation
and the existence of an affirmative defense.
The County correctly asserts that the existence of an affirmative defense does not vitiate
probable cause. McBride v. Walla Walla County, 95 Wash. App. 33, 40, 975 P.2d 1029, 990 P.2d
967 ( 1999). It is equally correct that Washington does not recognize a claim for negligent
investigation by members of law enforcement. Fondren v. Klickitat County, 79 Wash. App. 850,
862, 905 P.2d 928 ( 1995). And in the context of a malicious prosecution claim, Washington courts
have long held that probable cause, which is a complete defense to a claim for malicious
prosecution, is deemed established as a matter of law,
i] f it clearly appears that the defendant, before instituting criminal
proceedings against the plaintiff, made to the prosecuting attorney a full and fair
disclosure, in good faith, of all the material facts known to him, and that the
prosecutor thereupon preferred a criminal charge and caused the arrest of the
accused."
Bender, 99 Wash. 2d at 593 ( quoting Peasley v. Puget Sound Tug & Barge Co., 13 Wash. 2d 485, 499-
50, 125 P.2d 681 ( 1942)). But the corollary to this rule is that if any issue of fact exists as to
whether or not the prosecuting witness did fully and truthfully communicate to the prosecuting
attorney all of the facts and circumstances within his knowledge, then the issue is submitted to a
jury. Bender, 99 Wash. 2d at 594 ( quoting Peasley, 13 Wash. 2d at 499 -500).
7 A person commits the crime of theft when he or she wrongfully obtains or exerts unauthorized
control over property of another with the intent to deprive that person of the property. RCW
9A.56. 020( 1)( a).
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No. 44829 -7 -II
Here, Tahraoui asserts that the charges filed against him were predicated on disclosures
that were not full and fair. Specifically, Tahraoui contends that Deputy Brown did not disclose
the fact that Tahraoui had purchased the hitch. Assuming the truth of the alleged facts as we must
under CR 12( c), Tahraoui can conceivably establish want of probable cause. Because Tahraoui
alleges that Deputy Brown did not make a full and fair disclosure of all the facts known to him,
Tahraoui could potentially prove a set of facts that would justify relief. Suleiman, 48 Wash. App. at
376.
Tahraoui also alleges facts that appear to support the necessary malice element. Tahraoui
asserts that Wilder vindictively pursued charges against him in retaliation for Tahraoui' s
disparaging remarks about Wilder' s subordinates. Again presuming the truth of those allegations,
a combination of Tahraoui' s claims combined with hypothetical facts that we are entitled to
consider pursuant to CR 12( c) also render Tahraoui' s establishment of that element conceivably
possible. CPI Corp., 176 Wash. 2d at 210 -11 ( we presume the truth of the allegations and may
consider hypothetical facts not in the record).
Malice may be inferred from lack of probable cause and from proof that the investigation
or prosecution was undertaken with improper motives or reckless disregard for the plaintiff' s
rights. Youker v. Douglas County, 162 Wash. App. 448, 464, 258 P.3d 60, review denied, 173 Wash. 2d
1002 ( 2011). But malice may not be inferred from the lack of probable cause alone; for the
inference of malice to be justified, the plaintiff must also demonstrate some affirmative acts
disclosing at least some feeling of "' bitterness, animosity or vindictiveness towards the
appellant. ' Youker, 162 Wn. App. at 464 ( internal quotation marks omitted) ( quoting Moore v.
Smith, 89 Wash. 2d 932, 943, 578 P.2d 26 ( 1978)). The " reckless disregard" that can support an
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No. 44829 -7 -II
inference of malice requires proof of bad faith, a higher standard than negligence. State v.
Chenoweth, 160 Wash. 2d 454, 468, 158 P.3d 595 ( 2007). And impropriety of motive may be
established in cases of this sort by proof that the defendant instituted the criminal proceedings
against the plaintiff (1) without believing him to be guilty, or (2) primarily because of hostility or
ill will toward him, or (3) for the purpose of obtaining a private advantage as against him. Bender,
99 Wash. 2d at 594.
Tahraoui asserts that " Wilder was mad at the Plaintiff because he complained about
Brown' s actions." CP at 38. If, as Tahraoui claims, Lieutenant Wilder vindictively pursued
charges against Tahraoui in retaliation for Tahraoui' s aspersions regarding Deputy Brown,
Tahraoui would demonstrate affirmative acts disclosing bitterness or animosity. Youker, 162 Wn.
App. at 464. And if Lieutenant Wilder instituted criminal proceedings against Tahraoui without
believing him to be guilty, Tahraoui could establish the kind of improper motive that supports an
inference of malice. Bender, 99 Wash. 2d at 594 ( quoting Peasley, 13 Wash. 2d at 502).
Accordingly, Tahraoui alleged sufficient facts to preclude CR 12( c) dismissal when viewed
in a light most favorable to Tahraoui as the nonmoving party. The trial court erred by dismissing
his malicious prosecution claim on the pleadings.
II. ABUSE OF PROCESS
Tahraoui argues that he submitted sufficient facts to support his abuse of process claim
because Lieutenant Wilder and Deputy Brown instituted criminal proceedings in furtherance of an
ulterior motive, namely, their desire to coerce Tahraoui into returning the trailer hitch. We hold
that an abuse of process claim does not withstand scrutiny if the alleged abuse was simply the
institution of the process itself.
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No. 44829 -7 -II
A. RULES OF LAW
To prove the tort of abuse of process, the party must show both "`( 1) the existence of an
ulterior purpose to accomplish an object not within the proper scope of the process, and ( 2) an act
in the use of legal process not proper in the regular prosecution of the proceedings. ' Saldivar v.
Momah, 145 Wn. App. 365, 388, 186 P.3d 1117 ( 2008) ( quoting Mark v. Williams, 45 Wash. App.
182, 191, 724 P.2d 428, review denied, 107 Wash. 2d 1015 ( 1986)), review denied, 165 Wash. 2d 1049
2009). Abuse of process is the misuse or misapplication of the process after the initiation of the
legal proceeding for an end other than that which the process was designed to accomplish.
Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now ( C.L.E.A. N.), 119 Wash. App.
665, 699 -700, 82 P.3d 1199, review denied, 152 Wash. 2d 1023 ( 2004). But the "' mere institution
of a legal proceeding even with a malicious motive does not constitute an abuse of process.'
Momah, 145 Wash. App. at 388 ( quoting Fite v. Lee, 11 Wash. App. 21, 27 -28, 521 P.2d 964, review
denied, 84 Wash. 2d 1005 ( 1974)).
B. ANALYSIS
Tahraoui argues that he alleged sufficient facts to show that the County misused the legal
process to accomplish an ulterior purposethe return of the trailer hitch to Pate. We disagree.
Importantly, Tahraoui does not complain of any abuse of the process occurring after the
institution of the proceeding. "` [ T] he gist of [ an abuse of process] action is the misuse or
misapplication of the process, after it has once been issued, for an end other than that which it was
designed to accomplish. ' Loeffelholz, 119 Wash. App. at 699 ( quoting Batten v. Abrams, 28 Wn.
App. 737, 745, 626 P.2d 984, review denied, 95 Wash. 2d 1033 ( 1981)). That is to say, the action
requires "' a form of extortion, and it is what is done in the course of negotiation, rather than the
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No. 44829 -7 -I1
issuance or any formal use of the process itself, which constitutes the tort. "' Loeffelholz, 119 Wn.
App. at 699 -700 ( quoting Batten, 28 Wash. App. at 746).
Here, Tahraoui alleged only that the institution of the criminal proceeding against him
constituted an abuse of process because it was done with an ulterior purpose to accomplish an
object not within the proper scope of the process. The facts show nothing about process having
been abused " after it ha[ d] once been issued." Loeffelholz, 119 Wash. App. at 699. Tahraoui argues
that Loeffelholz and Momah are distinguishable because the abuse of process actions involved in
those cases were counterclaims raised by defendants rather than claims raised by the plaintiff.
Tahraoui offers no explanation and no citation to authority to support the proposition that a cause
of action in the form of a counterclaim should be treated differently than an identical action brought
by a plaintiff when the essential elements remain the same. We hold that Tahraoui' s claim fails
because he alleges only malicious institution of a legal proceeding, which, alone, does not establish
an abuse of process claim. Therefore, the trial court did not err in dismissing Tahraoui' s abuse of
process claim.
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Tahroui argues that the trial court erred in dismissing his intentional infliction of emotion
distress or " outrage" claim because he was " deprived of his freedom of movement," unable to go
to work, fearful of his imminent arrest, and because he suffered emotional distress. Br. of
Appellant at 23. We hold that Tahraoui' s claim fails because he failed to allege facts that establish
extreme and outrageous conduct beyond mere indignities or threats.
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No. 44829 -7 -II
A. RULES OF LAW
To prevail on a claim of intentional infliction of emotion distress, a plaintiff must show ( 1)
extreme and outrageous conduct, ( 2) intentional or reckless infliction of emotional distress, and
3) the plaintiff actually suffers severe emotional distress. Kloepfel v. Bokor, 149 Wash. 2d 192, 195,
66 P.3d 630 (2003). In order for conduct to constitute the tort of outrage, it must be "` so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community. ' Wolf v. Scott Wetzel
Servs., Inc., 113 Wash. 2d 665, 677, 782 P.2d 203 ( 1989) ( internal quotation marks omitted) ( quoting
Guffey v. State, 103 Wash. 2d 144, 146, 690 P.2d 1163 ( 1984), overruled on other grounds by
Babcock v. State, 116 Wash. 2d 596, 809 P.2d 143 ( 1991)). The conduct must be more than insults,
indignities, threats, annoyances, petty oppressions, or other trivialities. Kirby v. City of Tacoma,
124 Wn. App. 454, 474, 98 P.3d 827 ( 2004), review denied, 154 Wash. 2d 1007 ( 2005).
B. ANALYSIS
Tahraoui claims that the conduct to which he was subject rose to a level above a mere threat
of arrest "[ b] ecause those threat [ sic] were eminent [ sic] and caused the plaintiff to go in hiding."
CP at 43. We disagree.
An examination of cases where our courts have upheld a claim for intentional infliction of
emotional distress reveals that the acts about which Tahraoui complains do not constitute extreme
and outrageous conduct. For example, in Kloepfel, Kloepfel' s former boyfriend threatened to kill
her, threatened to kill the man she was dating if she continued seeing him, called her home 640
times, called her work 100 times, called the homes of men she knew numerous times, and
repeatedly drove past her house at all hours. 149 Wash. 2d at 194 -95. The evidence showed that this
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No. 44829 -7 -II
conduct severely disrupted Kloepfel' s life and made it impossible for her to carry on a normal
dating relationship. Kloepfel, 149 Wash. 2d at 194. And there was affirmative evidence that this
conduct caused Kloepfel to suffer symptoms of emotional distress, including nervousness,
sleeplessness, hypervigilance, and stomach upset. 8 Kloepfel, 149 Wash. 2d at 195.
There, the court concluded that no rational person could endure this constant harassment
without suffering severe emotional distress. Kloepfel, 149 Wash. 2d at 202; see also Grimsby v.
Samson, 85 Wash. 2d 52, 60, 530 P.2d 291 ( 1975) ( finding outrage where, as a result of the defendant
doctor' s actions, the plaintiff was required to helplessly witness "` the terrifying agony and explicit
pain and s uffe r i n g of his w i fe while she proceeded to die right in fr o n t of his eyes ... because of
his inability to secure any medical care or treatment for his wife ").
Here, there were a total of three arguably harassing, threatening, or otherwise annoying
phone calls, one of which Tahraoui himself initiated. On one occasion, deputies sought to speak
to Tahraoui at his place of employment. Although he alleges that his emotional distress resulted
from constant fear of an arrest he considered imminent, Tahraoui was never actually contacted by
law enforcement in person nor was he arrested. The conduct about which Tahraoui complains is
not so "' outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Wolf,
113 Wash. 2d at 677 ( quoting Guffey, 103 Wash. 2d at 146).
8 Unlike a claim for negligent infliction of emotional distress, the Kloepfel court held that a claim
of intentional infliction of emotional distress does not require proof of " objective
symptomatology" or medical diagnosis. 149 Wash. 2d at 194. Accordingly, the fact that Tahraoui
alleges only mental and emotional distress, does not, by itself, bar recovery.
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Accordingly, we hold that Tahraoui failed to allege sufficient facts to sustain his claim for
intentional infliction of emotional distress. Therefore, the trial court did not err in dismissing
Tahraoui' s intentional infliction of emotional distress claim.
IV. PIERCE COUNTY SHERIFF' S DEPARTMENT NOT PROPER PARTY
Finally, we address the County' s position that the Pierce County Sheriff' s Department must
be dismissed from the lawsuit because, unlike Pierce County itself, the sheriff s department is not
an entity capable of being sued.
The legislature has expressly stated that counties may be sued, RCW 36. 01. 010, but our
courts have determined that county departments cannot be sued unless the laws creating those
departments allow them to be sued directly. Roth v. Drainage Improvement Dist. No. 5, of Clark
County, 64 Wash. 2d 586, 588, 392 P.2d 1012 ( 1964). Thus, to determine whether an entity has the
capacity to sue or be sued, we examine the legislative enactments providing for its establishment.
Roth, 64 Wash. 2d at 588.
Chapter 36.28 RCW establishes the county sheriff. The chapter outlines the duties, powers,
functions, and limitations of the office. See RCW 36. 28. 010, . 020, . 110, . 150. But nothing in the
statute demonstrates that the legislature intended to create the Pierce County Sheriff' s Department
as a legal entity, separate and distinct from the county itself, with the capacity to sue and be sued.9
9 That is not to say that a sheriff or other member of a sheriff's department cannot be individually
liable for acts done in his or her official capacity. See RCW 4. 16. 080( 5), . 110.
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When asked to resolve similar questions, other courts in this state have concluded that the county
with which these departments are associated is the proper party for purposes of legal action.10
In holding that a county council is not a separate legal entity capable of being sued,
Division One of this court determined that it was the intent of the legislature that in any legal action
involving a county, the county itself would be the party to sue or be sued. Nolan v. Snohomish
County, 59 Wn. App. 876, 883, 802 P.2d 792 ( 1990), review denied, 116 Wash. 2d 1020 ( 1991).
Similarly, in Broyles v. Thurston County, 147 Wn. App. 409, 427 -28, 195 P.3d 985 ( 2008), we
held that Thurston County, rather than the Thurston County Prosecuting Attorney' s Office, was
the proper party in an employment discrimination lawsuit."
Furthermore, Tahraoui cites no authority and advances no argument to dispute the
contention that the sheriff' s department should be dismissed. Tahraoui merely responds that he
has already served the Pierce County Sheriff [Paul] Pastor with [ a] summons and complaint and
would substitute the Defendant Pierce [ C] ounty [ S] heriff' s [ D] epartment for defendant Pierce
C] ounty [ S] heriff." Br. of Appellant at 24. Because we are presented with no legal authority that
10 See also Worthington v. Westnet, No. 90037 -0, 2015 WL 276401, at * 7 ( Wash. Jan. 22, 2015)
Yu, J., dissenting) ( discussing several cases where counties were proper defendants when
enabling statutes of various parties did not create separate legal entities).
11
See also City of Seattle, 557 F. Supp. 2d 1189, 1207 ( W. D. Wash. 2008) ( citing
Bradford v.
Nolan in support of the conclusion that a plaintiff must name a county or city if it seeks to challenge
the actions of a local governmental unit such as a city police department).
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the Pierce County Sheriff' s Department may be sued directly, it must be dismissed as a named
party to the current action.12
CONCLUSION
We reverse the dismissal of Tahraoui' s malicious prosecution claim, but affirm the trial
court' s dismissal of his abuse of process and intentional infliction of emotional distress claims. In
addition, we remand for dismissal of the Pierce County Sheriff's Department and further'
proceedings consistent with this opinion.
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.
We concur:
12 Although it does not dispute that it has capacity to be sued, Pierce County nevertheless contends
that it should also be dismissed from the suit because Tahraoui has failed to establish liability on
the part of any agent or employee of Pierce County and, therefore, Pierce County is not vicariously
liable. But as we have explained, Tahraoui has alleged sufficient facts to preclude dismissal of his
malicious prosecution claim pursuant to CR 12( c). Accordingly, whether Pierce County is liable
has not been determined and, therefore, Pierce County remains a proper party to this action.
16