Long v. Flores

COLLEEN LONG, an individual, and EVERGREEN ATHLETICS, LLC,a Washington limited liability company, Appellants, v. SANDRA FLORES, an individual, JAMES EVANS, an individual,and EMERALD CITY GYMNASTICS ACADEMY, INC.,a Washington corporation, Respondents.

No. 81256-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 19, 2021

UNPUBLISHED OPINION

VERELLEN, J. — Colleen Long and Evergreen Athletics, LLC challenge the trial court's grant of summary judgment in favor of Sandra Flores, James Evans, and Emerald City Gymnastics Academy, Inc. Long argues that she established a prima facie case sufficient to proceed to trial on her claims for tortious interference, defamation, conspiracy, Consumer Protection Act violations, and abuse of process. But because the evidence presented on summary judgment fails to establish genuine issues of material fact as to any of her claims, summary judgment was proper.

Therefore, we affirm.

FACTS

In 2009, Colleen Long began coaching at Eastside Gymnastics Academy. The business was owned by one person, and gymnastics coach James Evans owned the brand name. A few years later, Long purchased the business.

In 2015, Long shifted the focus of the gym from recreation to developing highly skilled athletes who could compete in the Junior Olympics. On June 1, 2016, Evans posted a statement on the gym's website explaining the change. The tension between recreational and competitive philosophies ultimately led to several coaches leaving the gym, including Evans, Kassidee Ellis, and Elliot Heil. Evans told Long that she could no longer use the Eastside Gymnastics brand name. Long rebranded Eastside Gymnastics to Tech Gymnastics.

Months later, Sandra Flores, the owner of Emerald City Gymnastics Academy, heard that Long had told her staff she had proof that Flores had harmed children. Flores sued Long for defamation. In response to a subpoena, Evans provided information. The court granted Flores's motion to compel, which required Long to turn over her electronic devices. Flores dismissed the lawsuit.

In September 2016, Long hired Leonard Lewis, Jr. to coach cheer at Tech Gymnastics. Lewis did not reveal that he was a registered sex offender and had been convicted of two counts of attempted second degree possession of depictions of a minor engaged in sexually explicit conduct. Lewis used his father's Social Security number to pass the U.S. All Star Federation (USASF) background check required by Tech Gymnastics.¹

A year later, a Mercer Island police officer informed Long that Lewis was on probation and asked whether Lewis had told her about his convictions. Long responded that Lewis had not told her. Lewis resigned in February of 2018.

On March 6, 2018, Lewis was charged with second degree possession of depictions of a minor engaged in sexually explicit conduct. About a week later, a Department of Homeland Security agent contacted Long while investigating federal charges against Lewis. Long filed a sexual misconduct report on Lewis with United States of America Gymnastics (USAG).

Around the same time, a rumor spread that someone wrote a letter to the Special Olympics Committee in an attempt to prompt the committee to revoke Flores's appointment as chairperson. In response, Flores's counsel sent the Special Olympics Committee an e-mail inquiring why Flores had been removed from the committee. The e-mail accused Long of being the known "ringleader" in a conspiracy against Flores.²

Later that month, a parent accused Flores of bullying. Flores sent an e-mail to USAG's counsel, Mark Busby, denying the allegations. The e-mail also referenced her prior suit against Long, stating that "In 2017, a judge ordered the computers and phones of Colleen Long and Tech gymnastics to be confiscated."³ The parent withdrew his complaint.

On June 13, 2018, Flores saw a report on KIRO 7 about Lewis's arrest, and she e-mailed Busby stating she was concerned Long knew about Lewis'sconvictions before she hired him. The next day, the Department of Homeland Security issued a public request for assistance in identifying Lewis's victims. USAG suspended Long's membership for two weeks.⁴ After her suspension, Long met with parents to discuss her suspension and the allegations against Lewis.

That August, KIRO 7 reported that two of Lewis's victims came forward, and one victim accused Lewis of molesting him at a Redmond gym several years earlier.⁵ Flores e-mailed Busby and other USAG employees, stating, "It is now confirmed [Lewis] raped a boy here locally last year. So upset, not because it's Colleen, but because it's a sport I love that looks stupid and incompetent."⁶ Flores also e-mailed Busby expressing her dissatisfaction with the short duration of Long's suspension. Long's suspension was not extended. Long rebranded Tech Gymnastics to Evergreen Athletics LLC.

On September 26, 2018, Long and Evergreen Athletics sued Flores, Evans, and Emerald City Gymnastics Academy alleging claims of tortious interference, defamation, conspiracy, Consumer Protection Act violations, and abuse of process. The court granted Flores, Evans, and Emerald City Gymnastics summary judgment.

Long and Evergreen Athletics appeal.

ANALYSIS

I. Tortious Interference

Long argues that she established a prima facie case that Flores and Evans tortuously interfered with Evergreen Athletics.

We review an order granting summary judgment de novo.⁷ Summary judgment is appropriate "'only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'"⁸ We view the evidence in the "light most favorable to the nonmoving party."⁹ We will affirm summary judgment "only if, from all the evidence, reasonable persons could reach but one conclusion."¹⁰ "In opposing summary judgment, a party may not rely merely upon allegations or self-serving statements but must set forth specific facts showing that genuine issues of material fact exist."¹¹

To establish a prima facie claim of tortious interference with a business expectancy, the plaintiff must show: "'(1) the existence of [a valid] business expectancy; (2) that [the defendant] had knowledge of the [expectancy]; (3) an intentional interference inducing or causing [the termination of the] expectancy; (4) that [the defendant] interfered for an improper purpose or used impropermeans; and (5) resultant damages.'"¹² "[I]nterference with a business expectancy is intentional 'if the actor desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action.'"¹³

It is undisputed that Long had a valid business expectancy in the success of Evergreen Athletics and that Flores and Evans were aware of that expectancy. But Long fails to establish a genuine issue of fact whether Flores and Evans intentionally interfered with Evergreen Athletics.

Long contends that Flores intentionally interfered with her gym by recruiting her students and employees. But Long admitted that she could not identify a single gymnast that left Evergreen Athletics because of Flores. Most of the coaches who left Evergreen Athletics did so for reasons unrelated to Flores. And Long admitted that two coaches allegedly recruited by Flores, Kassidee Ellis and Elliot Heil, were not of "significant importance" to her gym.¹⁴ Long fails to demonstrate Flores improperly interfered with or damaged her gym.

Long also argues that Flores intentionally interfered with her USAG membership by reporting Lewis to USAG. In March 2018, Long filed a sexual misconduct incident report against Lewis with USAG. Months later, Flores e-mailed Busby stating that she was concerned that Long knew about Lewis's prior convictions before she hired him. On June 15, 2018, after DHS issued itsnews release seeking help in identifying Lewis's victims, USAG suspended Long. Long does not establish that Flores intentionally interfered with her gym when Long self-reported her hiring of Lewis months before Flores e-mailed Busby.¹⁵

Long argues that Evans intentionally interfered with her gym by posting a statement on the gym's website encouraging coaches and athletes to leave Long's gym. But the post stated: "We respect and support the best decision each of you can make for your own family and athletic future. We refuse to put kids and families in the middle of this situation, and so, have never asked anyone to take a side or leave the gym."¹⁶ And Evans had an interest in the gym's reputation and management because, at the time, he owned the brand name for Long's gym. Because Evans's post did not encourage "anyone to take a side or leave the gym,"¹⁷ Long fails to establish a viable intentional interference claim against Evans.¹⁸

II. Defamation

Long argues that she established a prima facie case of defamation per se sufficient to proceed to trial.

"To establish a prima facie defamation claim, the plaintiff must show (1) that the defendant's statement was false, (2) that the statement was unprivileged, (3) that the defendant was at fault, and (4) that the statement proximately caused damages."¹⁹ "To defeat a defense summary judgment motion in a defamation action, the plaintiff must raise a genuine issue of material fact as to all four elements of the claim."²⁰ "'The prima facie case must consist of specific, material facts, rather than conclusory statements, that would allow a jury to find that each element of defamation exists.'"²¹ And the defamatory statement must be a statement of fact, not of opinion.²²

First, Long argues that Flores's counsel's statements to the Special Olympics Committee were defamatory. Long must establish a genuine issue of fact whether Flores's statements were "provably false." A statement is provably false if the statement is substantially false or if the "gist" of the story is false.²³

Here, Flores's counsel wrote an e-mail to the Special Olympics Committee inquiring why Flores had been removed from the committee. In the e-mail,Flores's counsel blamed Long for...