IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING. Plaintiffs, Defendants.

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1 Honorable Janet M. Helson IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 1 COURTNEY ALLEN and STEVEN ALLEN, a married couple, v. Plaintiffs, TODD ZONIS and the MARITAL COMMUNITY OF TODD ZONIS and JENNIFER ZONIS, Defendants. No KNT ORDER ON PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT This matter came on regularly for hearing upon the Plaintiffs ( the Allens ) Motion for Partial Summary Judgment. The Court has reviewed Allens motion, the accompanying Declarations of Mr. and Ms. Allen, the Defendants ( the Zonises ) Opposition to Motion for Summary Judgment and exhibits thereto 1, Declarations of Todd 1 The Allens assert that the Zonises exhibits other than C, K, L and R must be stricken because they were not authenticated. The Zonises, who are pro se, attached Exhibits A- EE supporting their opposition to their legal memorandum rather than to either of their declarations; although the legal memorandum ( opposition ) specifically referenced all exhibits, Mr. Zonis s declaration referenced only exhibits C, K, L and R. Because the contested exhibits would not impact the court s ruling, because decisions on the merits are favored, and because if the contested exhibits would impact the ruling the court would have granted the Zonises five days to submit an amended pleading addressing the authentication issue, the court declines to strike the other exhibits. PARTIAL SUMMARY JUDGMENT - 1 P HONE () -

2 1 and Jennifer Zonis in Support of Opposition to Plaintiffs Motion for Summary Judgment, the Plaintiffs reply, and the records and files in this case. On a motion for summary judgment, the court views the evidence in a light most favorable to the nonmoving party, in this case, the Zonises. Civil Rule ; Young v. Key Pharm., Inc., Wn.d, 0 P.d (). Based on the materials reviewed, the argument by counsel for the Allens and by the Zonises, the Court FINDS, CONCLUDES and ORDERS as follows: 1. The Allens are entitled to partial summary judgment dismissing the Zonises claims for impairment of prospective inheritance opportunities. Washington has not recognized the tort of interference with an inheritance or gift. Even if the tort were recognized in Washington, defendants/counter-claimants Zonis cannot show, and have submitted no evidence, that Steven Allen knew of Dr. Larry Zonis s will or planned gift to the Zonises, or that Mr. Allen intentionally acted to interfere with that expectancy, which is a required element of that tort. In addition, because Dr. Zonis is still living, may change his will back or make further changes to the will, and may or may not have remaining assets at the time of his death, any damages would be purely speculative.. Regarding Count 1, the Allens assert that they are entitled to summary judgment because the claim is based on a Washington criminal statute for which there is no private right of action, RCW..00. However, RCW..00 explicitly provides a private right of action for violations of RCW..00. While the pleading is inartful and does not specifically cite RCW..00, it provides the contours of the claim sufficiently to provide the Allens with notice of the Zonises claim. PARTIAL SUMMARY JUDGMENT - P HONE () -

3 1. The Allens additionally assert that Count 1 fails because Mr. Allen s review of s between Ms. Allen and Mr. Zonis does not violate either RCW..00 or the federal statute cited by the Zonises, U.S.C., because those statutes do not apply to stored s.. For an to be intercepted in violation of U.S.C., it must be acquired during transmission, not while it is in electronic storage. Konop v. Hawaiian Airlines, Inc., 0 F.d, & n. (th Cir.0). The Zonises have offered no evidence to support a finding that Mr. Allen intercepted the s during transmission. He simply accessed stored s. Thus, there is no evidence to support a violation of the federal act.. As to the Washington statute, the Washington Supreme Court held in State v. Townsend, P.d, 0, 1 Wash.d, (0) that, because a user of e- mail had to understand that computers are, among other things, a message recording device and that his messages would be recorded on the computer of the person to whom the message was sent, he is properly deemed to have consented to the recording of those messages. Thus, Mr. Allen s review of stored s would not violate RCW..00. More recently in State v. Roden, Wash.d (1), the Washington Supreme Court held that interception of texts (and presumably s) prior to receipt by the intended recipient may constitute a violation of RCW..00; again, however, the Zonises have produced no evidence that Mr. Allen ever intercepted messages prior to Ms. Allen receiving them. PARTIAL SUMMARY JUDGMENT - P HONE () -

4 1. The Zonises assert that Mr. Allen used a VAR (voice-activated recording device) to record conversations without the permission of Ms. Allen or the Zonises. While the record, taken in the light most favorable to the Zonises, reflects that Mr. Allen may have attempted to record conversations using a VAR, there is no evidence, disputed or otherwise, that Mr. Allen successfully used a VAR to record any conversation.. Accordingly, the Allens are entitled to summary judgment on Count 1 of the Zonises counterclaim.. In order to withstand a motion for summary judgment on Count of their counterclaim, for defamation, the Zonises must raise a genuine issue of material fact as to all four elements of a prima facie defamation claim by establishing: (1) Mr. Allen s statements were false, () the statements were unprivileged, () Mr. Allen was at fault, and () the statements proximately caused damages. 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. Life Designs Ranch, Inc. v. Sommer, P.d,, 1 Wn. App., 0 (), citing Alpine Indus. Computers, Inc. v. Cowles Publ'g Co., Wn. App. 1, (0). A defamation claim also requires evidence that the false statements were communicated ( published ) to a third party.. There are several different communications which the Zonises use as the basis for their defamation counterclaim: an sent by Steven Allen to Mr. Zonis s parents; postings made to a website called Marriage Builders; and, subsidiary to the Marriage Builders postings, links to uploads made using a program called Zerobin. PARTIAL SUMMARY JUDGMENT - P HONE () -

5 1. The sent by Mr. Allen to Mr. Zonis s parents stated that Mr. Zonis was engaged in an internet affair with Ms. Allen, described some of the communications and actions involved in the internet affair, asserted that Mr. Zonis had made a cast of his penis as a sex toy and sent it to Ms. Allen, and stated that Ms. Allen had told him (Mr. Allen) that the Zonises had an open relationship. The Zonises take issue with the use of the term affair because there was no actual physical contact involved, assert that the sex toy was not a cast of Mr. Zonis s penis, and assert that they are not swingers so that Mr. Allen s assertion regarding their having an open relationship is false. Because it is disputed whether the sex toy sent by Mr. Zonis to Ms. Allen was a cast of his own penis or an off-the-shelf item, the court assumes for purposes of this motion that it was an offthe-shelf item. However, because it is undisputed that the Zonises sent Ms. Allen a penisshaped sex toy, the has the gist of truth and is substantially true. See U.S. Mission Corp. v. Kiro TV, Inc., P.d, 10, Wash.App., 0 (); Sisley v. Seattle School Dist. No. 1, P.d,, 1 Wash.App., (). The Zonises claim that other aspects of the are false, including Mr. Allen s claim that Mr. Zonis engaged in an online affair with his wife and his claim that Ms. Allen had told him that the Zonises had an open relationship. Those arguments are unpersuasive. While the term internet affair or online affair may not be specifically defined in the law, its meaning is widely understood; Mr. Allen s representation of what occurred between his wife and Mr. Zonis as an internet or online affair is substantially true and/or is an expression of Mr. Allen s opinion about the nature of the relationship. There is no evidence Mr. Allen s statement regarding what his wife told him regarding the openness PARTIAL SUMMARY JUDGMENT - P HONE () -

6 1 of the Zonises relationship is false. Thus, the defamation claims fails because the Zonises have failed to meet their burden of production to show falsity.. As to the communication to Mr. Zonis s parents, even assuming that a portion of the were false, the Zonises cannot show damages necessary to support a defamation claim. The claimed damages are the loss of inheritance or anticipated gifts which, for reasons explained above, are not actionable and are speculative in nature.. As to the Marriage Builders posts, Mr. Allen asserts that the posts did not contain information that identified the Zonises. The Zonises assert in their declarations, and the court accepts for purposes of this motion, that for a period of time the Marriage Builders posts did contain information that identified at least Mr. Zonis by name and could be accessed using a Google search. It is also undisputed that the ZeroBin postings (some of which are reflected in Exhibit C), and which apparently were each accessible for hours, contained Mr. Zonis name and address. However, the defamation claims related to these postings fail for several reasons. As to the Marriage Builders and ZeroBin postings, the Zonises have not demonstrated the falsity of any of the postings; the majority of the postings constitute opinions, advice to Mr. Allen, or questions from Mr. Allen rather than factual assertions. For reasons explained above, the Zonises have not raised a genuine issue of material fact regarding the falsity of any statements regarding an online affair or internet affair and regarding the statement regarding their relationship.. In addition, the Zonises have not created a genuine issue of material fact supporting their claim of damages from the posts. They have not identified in either their declarations or any of their exhibits any individuals they know or knew who viewed the PARTIAL SUMMARY JUDGMENT - P HONE () -

7 1 Marriage Builders or Zerobin postings, nor have they identified any damages that resulted from such viewings. For the first time during oral argument Mr. Zonis asserted that friends had seen the postings because he had told friends about them and directed them to where to review them; however, that is not part of the record before the court. 1. Accordingly, the Allens are entitled to partial summary judgment, dismissing Count of Zonises counterclaim for defamation.. Count of the Zonises counterclaim, False Light Invasion of Privacy, fails because, as explained above in the discussion of Count, the Zonises cannot demonstrate the falsity of Mr. Allen s statements or that they presented Mr. Zonis in a false light.. Count of the counterclaim, Public Disclosure of Private Facts, does not require the disclosures to be false. In order to prevail on this claim, the Zonises must show that Mr. Allen publicized their private affairs, that the matter(s) publicized would be highly offensive to a reasonable person, and that the matters were not of legitimate concern to the public. The Allens assert that the communications are not highly offensive because Mr. Allen was entitled to disclose (and, presumably, publicize) the fact and details of his wife s online affair. Even if that were the case (which is debatable), the Zerobin materials contained information regarding the Zonises fertility issues, their relationship with one another, and their private communications with Ms. Allen, the revelation of which might be considered highly offensive. The Allens likewise assert that Count fails because public disclosure requires broader publicity. As to the to Mr. Zonis s parents, that publication is insufficient to sustain a public disclosure claim. However, there are genuine issues of material fact regarding the length and extent of the PARTIAL SUMMARY JUDGMENT - P HONE () -

8 1 Marriage Builders publications in which the Zonises were named, and the numbers of individuals to which those posts were publicized. Because there are genuine issues of material fact regarding the highly offensive nature of the disclosures and the extent of the publicity, the Allens motion for summary judgment as to Count fails.. Accordingly, summary judgment is granted on Counts 1,, and of Defendants counterclaims and Defendants claim for impairment of prospective inheritance opportunities and those counterclaims are DISMISSED.. Plaintiffs motion for summary judgment as to Count of Defendants counterclaims is DENIED. IT IS SO ORDERED. DATED this th day of March,. Signed electronically and e-filed The Honorable Janet M. Helson Superior Court Judge PARTIAL SUMMARY JUDGMENT - P HONE () -

9 King County Superior Court Judicial Electronic Signature Page Case Number: Case Title: Document Title: Signed by: Date: ---0 ALLEN ET ANO VS ZONIS ET ANO ORDER ON PLAINTIFFS' MOT FOR SJ Janet Helson // :00:00 AM Judge/Commissioner: Janet Helson This document is signed in accordance with the provisions in GR 0. Certificate Hash: EA0A1EDEEFDADD1BD00ED Certificate effective date: /1/ :1: AM Certificate expiry date: /1/ :1: AM Certificate Issued by: C=US, OU=KCDJA, O=KCDJA, CN="Janet Helson: OQHanxxGBZv/HV1GsA==" Page of