Oreskovich v. Eymann, No. 56334-3-I (WA 9/19/2005)

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Unpublished Opinion

NANCY MALEE ORESKOVICH, Appellant, v. RICHARD EYMANN; ROBERT WELDEN, Washington State Bar Association official/employee, Respondent.

No. 56334-3-I

Court of Appeals of Washington, Division One.

Filed: September 19, 2005

Appeal from Superior Court of King County. Docket No. 04-2-31014-8. Judgment or order under review. Date filed: 08/12/2004. Judge signing: Hon. Julie a Spector.

Counsel for Appellant(s), Nancy Malee Oreskovich, Attorney at Law, 269 S Beverly Dr, Beverly Hills, CA 90212-3851.

Counsel for Respondent(s), Carolyn Cairns, Stokes Lawrence, P.S., 800 5th Ave Ste 4000, Seattle, WA 98104-3180.

PER CURIAM.

A court may dismiss a complaint under CR 12(b)(6) if, taking the plaintiff's allegations as true, the complaint fails to state a claim upon which relief can be granted. Because Nancy Oreskovich's complaint against the Washington State Bar Association, Richard Eymann and Robert Welden fails to state a valid claim for relief, we conclude that the superior court did not err in dismissing it.

FACTS

Oreskovich began practicing law in 1989. In 1990, operating as a solo practitioner out of her home, Oreskovich began representing plaintiffs in federal litigation stemming from radioactive discharges on the Hanford Nuclear Reservation. By 1995, she represented more than 1,500 people in the litigation and associated with attorney William Vines. After several months, Vines moved to withdraw from the case, citing irreconcilable differences with Oreskovich. The federal court allowed Vines to withdraw.

Oreskovich then associated with attorney Richard Eymann. He also moved to withdraw due to irreconcilable differences. Concerned that two attorneys had sought to withdraw after associating with Oreskovich, the federal court required Eymann to detail the specific grounds for the motion. Based on Eymann's report, the judge appointed a special magistrate to investigate Oreskovich.

The magistrate found that Oreskovich had violated ethics rules and had not provided competent representation. The magistrate recommended that Oreskovich be disqualified and removed from the suit, and that the matter be referred to the Bar Association for possible disciplinary action. Following a hearing, the federal court issued a lengthy order detailing Oreskovich's ethical violations and incompetency. The court disqualified Oreskovich, concluding that it could no longer `subject her client's cause to the jeopardy of her continued representation.' Clerk's Papers at 138.

Eymann became a member of the Bar's Board of Governors in 1997. He served as the Board's president-elect from 1998 to 1999, and its president from 1999 to 2000. The Bar filed a formal complaint against Oreskovich in 1999 and held a hearing in July 2000. Eymann was called as a witness at that hearing. The hearing examiner found that Oreskovich had violated ethics rules during the Hanford litigation. The Disciplinary Review Board reversed the findings, however, concluding that no violations occurred.

Nine months later, Oreskovich moved to be reinstated as counsel in the Hanford litigation. The federal district court denied her motion and the Ninth Circuit affirmed. The Ninth Circuit acknowledged that the examiner's findings had been overturned, but noted that the Bar said Oreskovich exhibited a sloppy approach to discovery and billed personal and other client costs to the Hanford account at Eymann's firm. The court said, `This hardly constitutes a ringing endorsement of her conduct.' Phillips v. Hanford Litig., 87 Fed. Appx. 672, 673 (9th Cir. 2004).

On April 4, 2004, Oreskovich filed suit in superior court alleging that Eymann and Bar counsel Robert Weldon conspired against her, acted in bad faith, abused the disciplinary process, and violated her rights under the state constitution. Respondents moved to dismiss the complaint. The superior court granted the motion.

DECISION

The sole issue on appeal is whether the superior court erred in dismissing Oreskovich's complaint. A complaint will be dismissed if it fails to state a claim upon which relief can be granted. CR 12(b)(6). A court should dismiss a complaint on this basis `only if it appears beyond a reasonable doubt that no facts exist that would justify recovery.' Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). We review the dismissal of a complaint de novo. Id.

The thrust of Oreskovich's complaint is that Eymann and Welden are civilly liable for tortious conduct committed in their capacities as officers or agents of the Bar Association. The Rules for Enforcement of Lawyer Conduct provide that a respondent lawyer in disciplinary proceedings has no cause of action against the Association or its officers or agents `provided . . . that the Association or individual acted in good faith.' ELC 2.12(a) (emphasis added). Oreskovich alleges that Eymann and Welden acted in bad faith and contends the superior court erred in dismissing her causes of action against them. We disagree.

The complaint alleges bad faith by Eymann in his capacity as a member of the Board of Governors, and by Welden in his capacity as Bar counsel. It alleges Eymann `conspired and encouraged Welden to present obviously false, contradictory evidence' and to `violate his duties to investigate fairly and completely.' Clerk's Papers at 50. It further alleges that Eymann appointed special counsel and a hearing officer for the Bar investigation and disciplinary proceedings knowing that his testimony in the federal proceedings was false. But even assuming these allegations establish bad faith, Oreskovich still must state a viable theory of liability. She has not done so.

First, any cause of action against Eymann in his capacity as a witness in the disciplinary proceedings is barred by ELC 2.12(b), which provides that communications to the Association, its Board of Governors, or its staff are privileged `and no lawsuit predicated {on such communications} may be instituted against any grievant, witness, or other person providing information.'

Second, each of Oreskovich's theories of liability is fatally flawed. The complaint asserts a cause of action for civil conspiracy, alleging that Eymann and Welden conspired to disenfranchise her from the Hanford litigation by instituting disciplinary proceedings based on false testimony. That claim sounds in tort and is subject to a three-year statute of limitations. RCW 4.16.080(2). Respondents argued below that the acts forming the basis of the conspiracy claim occurred more than three years prior to the filing of this action. So far as the record before us reveals, Oreskovich did not dispute that argument or invoke any exception to the normal rule of limitations for torts.¹ Instead, she argued that disciplinary proceedings `always toll the statutes of limitation until concluded.' Clerk's Papers at 74. But she provided no authority, nor are we aware of any, supporting that proposition. For the first time on appeal, she argues that even if the limitation period ran before she filed her action, the doctrine of equitable tolling should be applied `given the 5 years she was subjected to {wrongful disciplinary proceedings}.' App. Br. at 14. She offers no reasoned basis for applying that doctrine here. In the absence of such analysis, we decline to consider this argument for the first time on appeal. RAP 2.5 (a).

The complaint also alleges violations of the Rules for Lawyer Discipline. That cause of action fails because those rules provide only a public, disciplinary remedy, not a private remedy. See Hizey v. Carpenter, 119 Wn.2d 251, 258, 830 P.2d 646 (1992) (Code of Professional Responsibility and Rules of Professional Conduct do not set forth a standard for civil liability; they provide only a public, disciplinary remedy, not a private remedy); see also Woodhouse v. Re/Max Northwest Realtors, 75 Wn. App. 312, 316 878 P.2d 464 (1994). Similarly, Oreskovich's due process, equal protection, and other claims under the Washington State Constitution fail because,...