Drake H. Sisley And Antoinette L. Sisley, Apps. v. Seattle Public Schools, Res. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DRAKE H. SISLEY and ANTOINETTE
L. SISLEY, husband and wife, No. 69316-6-1
t—3 J1C>-
C=5 —~l C~
Appellants, DIVISION ONE xr -"i"5^
~T\ m „_
*—>
G2 o-.
UNPUBLISHED OPINION
ro
JT -5-
SEATTLE PUBLIC SCHOOLS, a local •&*

»*
en
Respondent. FILED: February 24, 2014 IV'
Grosse, J. — To overcome a defendant's motion for summary judgment
dismissal in an action for defamation, a plaintiff must establish falsity,
unprivileged communication, fault, and damages. Here, the plaintiff failed to do
so and thus the summary judgment dismissal of the defamation claim was
appropriate. We affirm the trial court's order.
FACTS
In March 2009, The Roosevelt News, Roosevelt High School's student
newspaper, published an article entitled, "Sisley Slums Cause Controversy:
Developers and neighborhood clash over land use." The article, written by Emily
Shugerman, a student at Roosevelt High School, discussed the controversy
regarding development plans on properties surrounding the high school—
properties owned by brothers Drake and Hugh Sisley (the Sisley brothers).
Shugerman's article stated:
A fixtureon the landscape of Roosevelt, the "Sisley Slums" are the
run-downi houses located on the block west of 15th and 65th. Also
endearingly referred to as the "crack shacks" or ghetto houses",
these buildings are rental houses owned by the infamous landlords
No. 69316-6-1/2
Drake and Hugh Sisley. The Sisleys own more than forty pieces of
property in Northeast Seattle, and have a bad reputation amongst
both locals and city officials. In fifteen years these brothers have
acquired 48 housing and building maintenance code violations, and
have also been accused of racist renting policies. In his defense,
Drake Sisley says that bad renters are to blame for the
accumulating violations. No matter what the reason, the houses
have become a well-known eye sore - but the neighborhood may
not have to deal with them for much longer.'11
Following the publication of the article, Drake and Antoinette Sisley
(collectively Sisley) filed an action against the Seattle Public Schools (district) for
defamation and libel. The district moved for summary judgment pursuant to CR
56. The district asserted that Sisley's vicarious liability theory failed as a matter
of law because a public school student is not an agent or employee of the school
district for whom the district may be vicariously liable for the intentional tort of
defamation. The district additionally contended that dismissal of Sisley's claim
was appropriate because he was unable to prove the elements of defamation.2
In support of its motion for summary judgment, the district cited several
articles printed in various Seattle newspapers. Each of the articles concerned
the deplorable conditions of the Sisley brothers' rental properties, referring to the
brothers as among Seattle's worst "slumlords" and reporting on the numerous
housing code violations on their properties. Many of the articles also describe
1Underlined portions of the article are the specific statements Sisley asserts are
defamatory.
2 This is one of several grounds on which the trial court granted the district's
motion for summary judgment dismissal of the Sisley claim. We need not
address the other reasons given for dismissal in order to resolve this case and,
therefore, do not do so.
No. 69316-6-1/3
the Sisley brothers' relationship with Keith Gilbert, the founder of a white
supremacist organization, who had been convicted of multiple racist hate crimes.
The trial court granted summary judgment dismissal. Sisley appeals.
ANALYSIS
Sisley contends that the article in the newspaper was false, defamatory,
slanderous, and maliciously published. Sisley denies owning, managing, or
having anything to do with the properties described in the article.
In its review of a summary judgment order, this court engages in the same
inquiry as the trial court.3 "When a defendant in a defamation action moves for
summary judgment, the plaintiff has the burden of establishing a prima facie case
on all four elements of defamation: falsity, an unprivileged communication, fault,
and damages."4 Not "every misstatement of fact, however insignificant, is
actionable as defamation."5 Rather, "state law requires not only that there be
fault on the part of the defamation defendant, but that the substance of the
statement makes substantial danger to reputation apparent."6 "The defamatory
character of the language must be apparent from the words themselves."7
Where language is ambiguous, "resolution in favor of a 'disparaging connotation'
is not justified."8 A defamation claim may not be based on the negative
3 Camer v. Seattle Post-Intelligencer, 45 Wn. App. 29, 35, 723 P.2d 1195 (1986).
4 LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027 (1989).
5 Mark v. Seattle Times. 96 Wn.2d 473, 493, 635 P.2d 1081(1981).
6 Mark, 96 Wn.2d at 493 (emphasis, internal quotation marks, and citations
omitted).
7 Lee v. Columbian, Inc., 64 Wn. App. 534, 538, 826 P.2d 217 (1991).
8 Lee, 64 Wn. App. at 538 (quoting Exner v. American Med. Ass'n, 12 Wn. App.
215, 219, 529 P.2d 863 (1974)).
No. 69316-6-1/4
implication of true statements.9 This is because "[djefamatory meaning may not
be imputed to true statements."10
The element primarily at issue in this case is falsity. "Falsity in a classic
defamation case is a false statement."11 In a defamation by implication case, the
plaintiff must show that the statement at issue is provably false, either because it
is a false statement or because it leaves a false impression.12
With respect to falsity, Washington does not require a
defamation defendant to prove the literal truth of every claimed
defamatory statement. ... A defendant need only show that the
statement is substantially true or that the gist of the story, the
portion that carries the "sting," is true The "sting" of a report is
defined as the gist or substance of a report when considered as a
whole. ... In applying this test, [the court] require[s] plaintiffs to
show that the false statements caused harm distinct from the harm
caused by the true portions of a communication!.][13]
"Where a report contains a mixture of true and false statements, a false
statement (or statements) affects the 'sting' of a report only when 'significantly
greater opprobrium' results from the report containing the falsehood than would
result from the report without the falsehood."14 The mere omission of facts
favorable to the plaintiff or facts the plaintiff thinks should have been included in a
publication does not make that publication false.15 As recently noted by this court
in Sislev v. Seattle School District No. 1. "the question is not whether the
9 Yeakev v. Hearst Commc'ns, Inc., 156 Wn. App. 787, 792, 234 P.3d 332(2010).
*° Yeakev, 156 Wn. App. at 792.
11 Mohr v. Grant. 153 Wn.2d 812, 823, 108 P.3d 768 (2005).
12 Mohr, 153Wn.2dat825.
13 Mohr, 153 Wn.2d at 825 (internal quotation marks and citations omitted).
14 Herron v. KING Broad. Co.. 112 Wn.2d 762, 769, 776 P.2d 98 (1989) (quoting
Mark, 96 Wn.2d at 496).
15 Mohr, 153Wn.2dat827.
No. 69316-6-1/5
statement is literally true but, rather, whether 'the statement is substantially true'
or 'the gist of the story, the portion that carries the "sting," is true.'"16 Here, as
there, the evidence presented to the trial court demonstrated that Drake Sisley
had knowingly allowed Gilbert, who had been criminally convicted of racist hate
crimes, to manage at least one of the properties in the Roosevelt neighborhood.
Drake attempts to deny that Gilbert managed his properties stating that Gilbert
was only a tenant and that the property was in the University District, not the
Roosevelt District. But the gist of the article was about the Roosevelt
neighborhood and Northeast Seattle. The article did not limit itself to just the
Roosevelt District. Drake was also aware that Gilbert had been reported to have
mistreated tenants in the rental properties. He testified that he was aware of the
newspaper articles and that Gilbert was a white supremacist racist who used
strong-arm tactics with tenants. Numerous Seattle newspaper reports describing
Gilbert as a "racist" or "bigot" linked Gilbert to the Sisley brothers, commenting
on, for example, the "strong-arm tactics" used by Gilbert against tenants of the
rental properties owned by the Sisleys. Moreover, in addition to reading such
newspaper articles, Shugerman attended a neighborhood association meeting
where she discussed the rental properties and their development with community
members.17 Given this information, the Sisleys cannot demonstrate the falsity of
16 171 Wn. App. 227, 234, 286 P.3d 974 (2012); rev, den., 176 Wn.2d 1015, 297
P.3d 706 (2013) (quoting Mark, 96 Wn.2d at 494).
17 Although Shugerman does not now recall where she learned that the Sisley
brothers had been "accused of racist renting policies," it is the Sisleys' burden to
show that the statement is false, not Shugerman's burden to demonstrate its
truth. Schmalenbero v. Tacoma News, Inc., 87 Wn. App. 579, 591, 943 P.2d 350(1997)).
No. 69316-6-1/6
the statement that Hugh and Drake Sisley had been "accused of racist renting
policies."
In Sisley. this court focused on the same student article and found that as
to Hugh Sisley, the statement that the brothers had been "accused of racist
renting policies" was not defamatory.18 The court noted that the "'sting' of the
allegedly defamatory statement is that the Sisley brothers had been accused of
being racist landlords—not that they are racist landlords or that they had enacted
formal rental policies that discriminated on the basis of race."19 Likewise, the
"sting" of the statement here is that Drake Sisley had also been accused of being
a racist landlord. Other than a bare allegation of falsity, Sisley, like his brother
Hugh, failed to establish a genuine issue of material fact. In sum, the evidence
here demonstrated that Sisley had knowingly allowed Gilbert, who had been
criminally convicted of racist hate crimes, to manage his property in Northeast
Seattle. Sisley was aware that Gilbert had been reported to have mistreated
tenants in the rental properties and numerous Seattle newspaper reports
described Gilbert's association with the Aryan Nations. Given this information,
Sisley cannot demonstrate the falsity of the statement. Under Schmalenberg, it
is Sisley's burden to show the reports are false.20
Sisley argues that the property he owns is in the University or Lake City
Districts not the Roosevelt District, even though at least four of his rental
properties are within approximately one mile of the high school. As noted
18171 Wn. App. at 233.
19 Sisley. 171 Wn. App. at 235 (emphasis omitted) (citing Herron. 112 Wn.2d at
769).
2087Wn. App. at 591.
No. 69316-6-1/7
previously, this argument fails because the article is not limited to just the
Roosevelt District. Sisley also argues that his properties are not run down. He
admits that he has received over 40 notices of violations, but asserts that he
corrected those violations promptly. However, one of those properties involved a
lawsuit with two tenants who successfully sued him over the rat infestation in
their rental property.21
Sisley's primary complaint regards the article's reference to the properties
as "crack shacks." Sisley argues that it is libelous per se because it accuses him
of criminal behavior thus holding him up to ridicule. A publication is libelous per
se if it "tends to expose a living person to hatred, contempt, ridicule or obloquy,
or to deprive him of the benefit of public confidence or social intercourse, or to
injure him in his business or occupation."22 A defamatory statement is libelous
per se if it imputes that the plaintiff's conduct is criminal and involves moral
turpitude.23 But the article does not say that Sisley runs crack shacks. Rather, it
states that the houses are "endearingly referred to" as "crack shacks" or "ghetto
houses." Anyone reading that article would interpret the quoted appellations as
nothing more than a term that some people use to refer to the condition of those
houses and not that the owners deal cocaine from the houses. The statement
itself does not impute criminal activity to Sisley. There is nothing in the record to
suggest that the author made up these comments or misreported what the
21 At the deposition, Sisley noted that it was he who sued the tenants. After he
received the tenants' demands, Sisley went in and obtained a restraining order
against the tenants, which was issued ex parte and later quashed.
22 Purvis v. Bremer's. Inc.. 54 Wn.2d 743, 751, 344 P.2d 705 (1959).
23 Maison de France v. Mais Qui!. Inc.. 126 Wn. App. 34, 45, 108 P.3d 787(2005) (citing Ward v. Painters' Local 300. 41 Wn.2d 859, 252 P.2d 253 (1953)).
No. 69316-6-1/8
speakers said or that the speakers were lying. The statements cannot be the
basis of a defamation claim because there is no evidence that they are false.
Additionally, it is not defamatory because it is an opinion or not a false statement.
The appellation can be taken as either an opinion or a generalization of the type
of housing. The use of the term "endearingly referred to" as a preface to the
appellation "crack shacks" makes the gist of the story about the condition of the
houses, not that criminal activity is taking place.
Affirmed.
\
WE CONCUR:
Jq#*J\\ "^ I! <
8