Tahraoui v. Brown

HAFID TAHRAOUI, an individual, Appellant, v. FRANKLIN BROWN, RUSTIN WILDER,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.

No. 44829-7-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

February 10, 2015

UNPUBLISHED OPINION

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 allegedoffensive 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."

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 thathis 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.

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 Wn. 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 Wn.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 Wn. App. at 376 (citing Halvorson v. Dahl, 89 Wn.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 Wn.2d 198, 210-11, 289 P.3d 638 (2012) (quoting Parmelee v. O'Neel, 145 Wn. App. 223, 232, 186 P.3d 1094 (2008), rev'd in part, 168 Wn.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 Countyresponds 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 of Seattle, 99 Wn.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 Wn.2d 552, 558, 852 P.2d 295 (1993); Brin v. Stutzman, 89 Wn. App. 809, 819, 951 P.2d 291, review denied, 136 Wn.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 Tahraouicommitted the crime of theft⁷ 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 Wn. 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 Wn. 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...