No I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE. COURTNEY ALLEN and STEVEN ALLEN, a married couple,

Transcription

1 No I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE COURTNEY ALLEN and STEVEN ALLEN, a married couple, Plaintiffs-Respondents, v. TODD ZONIS and the MARITAL COMMUNITY OF TODD and JENNIFER ZONIS, Defendants-Appellants. Appeal from the Superior Court of Washington for King County KNT Honorable Janet Helson APPELLANTS OPENING BRIEF Corey Evan Parker WSBA No th Ave NW, Suite 1B Issaquah, WA Ph: Fax: corey@coreyevanparkerlaw.com Attorney for Appellants

2 TABLE OF CONTENTS I. ASSIGNMENTS OF ERROR...1 II. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR 2 III. STATEMENT OF THE CASE...3 A. Claims and Counterclaims...3 B. Motion for Summary Judgment...4 C. Motions in Limine...5 D. Motion to Compel...8 E. Trial...8 IV. ARGUMENT...11 A. The Trial Court Erred When It Dismissed Three of the Zonis Claims on Summary Judgment...11 B. Plaintiffs Intentionally Inflamed, Prejudiced, and Misled the Jury, Improperly Seeking Punitive Damages Because Mr. Zonis Would Never Stop...28 C. The trial court erred when it allowed the Plaintiffs to mention insurance in front of the jury and an instruction did not cure the prejudice D. The Trial Court Abused Its Discretion by Admitting Over 450 s When the Sender Could Not Be Verified For Each Because It Was More Prejudicial Than Probative...32 E. The Trial Court Abused Its Discretion When It Excluded Almost All s Prior To November 22, 2014 Between Ms. Allen And Mr. Zonis F. The Trial Court Abused Its Discretion By Admitting Police Reports for Incidents That Were Not Tied to the Defendants G. The Trial Court Abused Its Discretion When It Excluded Any Reference to Defendants Loss of Inheritance...39 H. The Trial Court Abused Its Discretion When It Allowed the Plaintiffs to Cross-Examine Ms. Zonis with Exhibit 597 When It Was Not Properly Admitted Or Authenticated and Then i

3 Allowed the Plaintiffs To Retroactively Authenticate It Post- Trial...42 I. The Trial Court Abused Its Discretion When It Gave the Jury Misleading Instructions...43 J. The trial court erred when it did not order the Allens to produce the phone records until 3 weeks before trial...45 K. The Uneven Time Allotment At Trial Violated the Defendants Right To Due Process L. The Cumulative Errors Denied the Zonis a Fair Trial...47 M. The trial court erred in naming Jennifer Zonis as a party on the final judgment V. CONCLUSION...51 ii

4 TABLE OF AUTHORITIES Cases Adams v. State, 71 Wn.2d 414, 432, 429 P.2d 109 (1967) Alpine Indus. Computers, Inc. v. Cowles Publ'g Co., 114 Wn.App. 371, 379, 57 P.3d 1178, 64 P.3d 49 (2002) Amunrud v. Board of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571, (2006) Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977) Berger v. Sonneland, 144 Wn.2d 91, 113, 26 P.3d 257 (2001) Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996) Caruso v. Local Union No. 690 of Int'l Bhd. Of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 100 Wn.2d 343, 354, 670 P.2d 240, 246 (1983) Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986) Champagne v. Thurston County, 163 Wn.2d 69, 86-87, 178 P.3d 936, (2008)... 26, 27 Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 79, 272 P.3d 827 (2012) Clayton v. Wilson, 168 Wn.2d 57, 63, 227 P.3d 278, (2010). 49, 50 Dailey v. North Coast Life Insurance Co., 129 Wn2d 572, 575, 919 P.2d 589 (1996) deelche, 95 Wn.2d at Gammon v. Clark Equip. Co., 104 Wn.2d 613, , 707 P.2d 685 (1985) Garaux v. Pulley, 739 F2d 437, 439 (9 th Cir. 1984) iii

5 TABLE OF AUTHORITIES Cases (Cont'd) H.B.H. v. State, 197 Wn. App. 77, 387 P.3d 1093, (Div ) 47 Hawkins v. Diel, 166 Wn.App. 1, 9, 269 P.3d 1049, (Div )... 30, 32 Herron v. KING Broad. Co., 112 Wn.2d 762, , 776 P.2d 98 (1989)... 12, 13 In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) Johnson v. Spider Staging Corp., 87 Wn.2d 577, , 555 P.2d 997 (1976) Kave v. McIntosh Ridge Primary Rd. Ass'n, 198 Wn. App. 812, 394 P.3d 446, (Div ) Kloepfel v. Bokor, 149 Wn.2d 192, 66 P.3d 630, (2003) LaFramboise v. Schmidt, 42 Wash.2d 198, 200, 254 P.2d 485 (1953) LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975) Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 348, 364 P.3d 129, (Div ) Mark v. Seattle Times, 96 Wn.2d 473, 485, 486, 635 P.2d 1081 (1981) Miller v. Argus Pub'g Co., 79 Wn.2d 816, 820 n. 3, 821 n. 4, 490 P.2d 101 (1971) Mohr v. Grant, 153 Wn.2d 812, 108 P.3d 768 (2005) Mulcahy v. Farmers Ins. Co. of Wash., 152 Wn.2d 92, 95 P.3d Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d 605 (1960) iv

6 TABLE OF AUTHORITIES Cases (Cont'd) Rekhter v. Dep't of Social & Health Services, 180 Wn.2d 102, 120, 323 P.3d 1036, (2014)... 43, 45 Schmalenberg v. Tacoma News, Inc., 87 Wn.App. at 590 (1997) 13 Sisley v. Seattle Public Schools, 180 Wn. App. 83, 88, 321 P.3d 276, (Div ) State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004)... 23, 24 State v. Faford, 128 Wn.2d 476, , 910 P.2d 447 (1996) State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000) State v. LG Electronics, Inc., 186 Wn.2d 169, 183, 375 P.3d 1035, (2016) State v. Reed, 102 Wn.2d 140, 684 P.2d 699 ( State v. Roden, 179 Wn.2d 893, , 321 P.3d 1183, (2014) 23, 24, 25 Steve Jackson Games v. the Secret Service, 36 F.3d Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996) Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, , 324 P.3d 763, (Div ) Taskett v. KING Broad. Co., 86 Wn.2d 439, 447, 546 P.2d 81 (1976) Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940) Williams v. Leone & Keeble, Inc., 170 Wn. App. 696, 704, 285 P.3d 906, (3 2012)... 20, 21 Wood v. Battle Ground School Dist., 107 Wn. App. 550, 573, 27 P.3d 1208, (Div ) v

7 TABLE OF AUTHORITIES Cases (Cont'd) Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128 Wn.App. 256, 260, 115 P.3d 1017 (2005) Constitutional Provisions U.S. CONST. amends. V, XIV, Rules ER , 38 ER ER 901 (a) ER 901 (b)(10) vi

8 I. ASSIGNMENTS OF ERROR 1. The trial court erred when it dismissed three of the Zonis claims on summary judgment. 2. Plaintiff intentionally inflamed, prejudiced, and misled the jury, improperly seeking punitive damages because Mr. Zonis would never stop. 3. The trial court abused its discretion by admitting over 450 s when the sender could not be verified for each because it was more prejudicial than probative. 4. The trial court abused its discretion when it excluded almost all s prior to November 22, 2014 between Ms. Allen and Mr. Zonis. 5. The trial court abused its discretion by admitting police reports for incidents that were not tied to the defendants. 6. The trial court abused its discretion when it excluded any reference to Defendants loss of inheritance 7. The uneven time allotment at trial violated the defendants right to due process. 8. The trial court abused its discretion when it allowed the Plaintiffs to cross-examine Ms. Zonis with exhibit 597 when it was not properly admitted or authenticated and then allowed the Plaintiffs to retroactively authenticate it post-trial. 9. The trial court abused its discretion when it gave the jury misleading instructions 10. The cumulative errors denied the Zonis a fair trial. 1

9 II. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR 1. The trial court erred when it dismissed three of the Zonis claims on summary judgment. 2. Did the Plaintiff intentionally inflame, prejudice, and mislead the jury, improperly seeking punitive damages when Plaintiff s counsel said Mr. Zonis would never stop and asked the jury to stop him? 3. The trial court abused its discretion by admitted over 450 s. Only a small fraction of those could be verified. Was the probative value of these s substantially outweighed by its probative value? 4. Did the trial court abuse its discretion when it excluded almost all s prior to November 22, 2014 between Ms. Allen and Mr. Zonis? 5. Did the trial court abuse its discretion by admitting police reports that contained incidents that were not tied to the defendants? 6. Did the trial court abuse its discretion when it excluded any reference to Defendants loss of inheritance? 7. Did the uneven time allotment at trial violate the defendants right to due process? 8. Did the trial court abuse its discretion when it allowed the Plaintiffs to cross-examine Ms. Zonis with exhibit 597 when it was not properly admitted or authenticated and then allowed the Plaintiffs to retroactively authenticate it post-trial? 9. Did the trial court abuse its discretion when it gave the jury misleading instructions? 2

10 10. The cumulative errors denied the Zonis a fair trial III. STATEMENT OF THE CASE After a jury trial, the jury returned a verdict against Todd and Jennifer Zonis and awarded compensatory damages in the amount of $8,900,000 and injunctive relief. CP A. Claims and Counterclaims Courtney and Steven Allen sued Todd and Jennifer Zonis for electronic impersonation, invasion of privacy, intentional infliction of emotional distress, negligence, and defamation on June 25, CP 1. Defendants answered the complaint on September 25, 2015 (CP 110) and filed a complaint against Steven Allen in the United States District Court for the District of Arizona on August 28, CP 170. They brought the following claims: 1) violating ARS ; 2) defamation; 3) false light invasion of privacy; 4) public disclosure of private facts; 5) intrusion upon seclusion; and 6) intentional infliction of emotional distress. CP 170. The federal court granted Plaintiffs motion to dismiss the Zonis claims in the Federal District Court in Arizona on July 18, 2016 because it was persuaded that the claims were compulsory counterclaims in the Washington lawsuit. CP The trial 3

11 court allowed the Defendants to file an amended Answer with counterclaims on August 12, CP 535, 432. The defendants brought the following claims: 1) violation of harassment/sending threatening messages; 2) defamation; 3) false light invasion of privacy; 4) public disclosure of private facts; 5) intrusion upon seclusion; and 6) intentional infliction of emotional distress. CP B. Motion for Summary Judgment The court granted Plaintiffs motion for partial summary judgment and dismissed Defendants claims for violation of harassment/sending threatening messages, defamation, and false light invasion of privacy. CP The court dismissed the Zonis claim for false light invasion of privacy because it found the Zonis could not demonstrate the falsity of Mr. Allen s statements. CP The Zonis defamation claim was based on the following communications by Mr. Allen: 1. An sent to Mr. Zonis parents 2. Postings made to a website called Marriage Builders 3. Links to uploads made using a program called Zerobin CP In these communications, Mr. Allen asserted that Mr. Zonis had made a cast of his penis as a sex toy and sent it to Ms. Allen 4

12 and the Zonis had an open relationship. CP However, the court found the communication to the Mr. Zonis parents was substantially true. CP The court also found the Zonis could not prove the falsity of the Marriage Builder posts because they were opinions, advice, or questions. CP C. Motions in Limine Prior to trial, the defendants moved in limine to exclude several categories of evidence. They moved to exclude s the plaintiff received on the ground the sender could not be authenticated. They also moved to exclude subpoena results and social media profiles that show no link or correlation to the defendant and any messages. 1. s Defendants moved in limine to exclude over 450 s on the ground the sender could not be verified. RP Defendants argued the s could not be authenticated and they do not trace back to any of the defendants accounts or identify the defendants anywhere in the s. RP 414. Defendants further argued that this volume of s were overly prejudicial without some kind of verification that each came from the defendants. RP 415. Mr. Zonis even suggested a less prejudicial 5

13 approach where the plaintiff could pick out a few and specifically identify them as coming from him. RP 417. The court found that whether Mr. Zonis authored the s in question was an issue of fact for the jury and admitted a 54-page list of s. RP Police Reports Defendants moved in limine to exclude exhibits 7, 8, 9, and 10, which were various police reports. RP 429. Plaintiffs argued they were not hearsay because they were not being admitted for the truth of the matter asserted, but to show subsequent action that the police responded to the crime stoppers report. RP 431. The court indicated it would admit the police reports if they were severely redacted and were only used to confirm the police acted on the crime stopper tip that Mr. Allen had committed a crime. RP At trial, the Plaintiff submitted a redacted version of the reports even though Detective Galetti testified she and other officers responded to the crime stopper tips on more than one occasion. RP s Prior to November 22, 2014 Between Ms. Allen and Mr. Zonis. Prior to trial, the plaintiffs moved in limine to exclude communications between Todd Zonis and Courtney Allen 6

14 prior to November 22, The plaintiffs argued the s were incomplete under Rule 106 because they gave the impression the relationship between Ms. Allen and Mr. Zonis was one-sided and they are more prejudicial than probative. RP 342, 344. Defendants argued that the s were necessary as background information to impeach Mr. Allen s statement that he did not know Ms. Allen and Mr. Zonis were friends until he discovered the affair in November RP 345. The defendants further argued the s were necessary to show the relationship between Ms. Allen and Mr. Zonis was consensual. RP Reference to Loss of Inheritance Plaintiffs moved to exclude references to being disinherited. RP 403. Defendants argued the loss of potential inheritance or gifts directly contradicted the Plaintiffs theory that Mr. Zonis actions were motivated by his obsession with Ms. Allen. RP 404. But, evidence of losing his inheritance showed his state of mind and a different motive for the communication, which was to request help from Ms. Allen to undo the damage done by her husband. RP

15 D. Motion to Compel Prior to trial, the defendants were prejudiced when the court did not produce plaintiffs phone records from the in-camera review until after the discovery cutoff date. In October 2016, the defendants brought a motion to compel production of phone records they requested through discovery. CP On February 17, 2017, the court issued an order following in camera review and ordered a redacted version of the phone records be provided no later than February 22, CP 2140, This was merely three weeks before trial. The court allowed an in-camera review, but did not produce the relevant portions to the defendants until February The discovery cutoff was January 30, E. Trial At trial, the court struck any references to being disinherited or losing any possible gifts from the defendants designations of Dr. Zonis deposition. The plaintiff used more than the allotted time for its portion of the case, thereby prohibiting Mr. Zonis from testifying. Both parties agreed that a five-day trial was sufficient and that each side needed two and one-half days to present its case. 8

16 However, trial started on March 23, 2017 and Plaintiffs did not rest until March 30, RP 783. The defendants were adamant that they could not personally appear for a third week of trial. RP Despite that warning, Plaintiffs used more than their allotted share which ultimately caused the Zonis to cut their testimony short. Ms. Zonis could not miss any more work. RP 190. Ms. Zonis used all her vacation time for the entire year to be present for the previous two weeks. RP 190. As of the afternoon of Tuesday, March 28, 2017, the Plaintiffs used 332 minutes and the defendants used 208 minutes. RP 558. Without Ms. Zonis to ask him questions, Mr. Zonis could not testify. His entire testimony would be narrative. Throughout cross-examination of Ms. Zonis, plaintiffs counsel asked several questions designed to illicit the fact that the Zonis had insurance. RP ( Q. And at that time you had legal counsel, right, provided by A. I don t know. an insurance company? A. Yes, an insurance company. ). In addition, the following exchange took place: Q. Each of those law firms were working for you for free because they were provided by the insurance company, right? A. No Q. Or at least three of them were, right? 9

17 A. They were not working for free. They were being paid by the insurance company who decided how much work they were going to do based on what the insurance company wanted to pay them. Q. And they had forensic experts working for them at the time, right? A. They said they were going to retain them. We don t know that they were ever sent anything. Q. And when the insurance companies were working handling your case, they were paying all the costs, right? A. Yes, but they don t want to. Q. And you knew at that time let me back up. You knew that the Facebook postings were traces back to your house when you had counsel?... Q. In any event, you didn t chase down these the data from the Facebook webpages, did you? A. Actually, we just learned how to look up header information yesterday from our expert... RP The court submitted instruction number 21 to the jury which provided the following: Whether or not a party has insurance, or any other source of recovery available, has no bearing on any issue that you must decide. You must not speculate about whether a party has insurance or other coverage or sources of available funds. You are not to make or decline to make any award, because you believe that a party may have medical insurance, liability insurance, worker compensation, or some other form of compensation available. Even if there is insurance or other funding available to a party, the question of who pays or who reimburses whom would be decided in a different proceeding. Therefore, in your deliberations, do not discuss any matters such as insurance coverage or other possible sources of funding for any party. You are to consider only those questions that are given to you to decide in this case. CP

18 During closing argument, Plaintiffs counsel stated: He s never, ever, ever going to stop. And someone needs to tell him to stop. Vol. 1 Supp. RP 5. You are their last hope. Vol. 1 Supp. RP 30. There is one verdict that will tell him to stop. Vol. 1 Supp. RP 30. Finally, Plaintiffs; counsel repeatedly referenced the fact that Mr. Zonis did not testify. He could have gotten under oath, he could have told his side of the story, he talked how this was platonic, under oath. He didn t do that. Vol. 1 Supp. RP 14. He s willing to fake all this evidence. But he s not willing to get up on the stand and tell the truth about it. He s not willing to come under oath and answer your questions. He didn t want to do that. He had his chance Vol. 1 Supp. RP Earlier in the trial there were several discussions about how the Zonis could not take any further time off work and could not go into a third week of trial, so they had to finish on Friday, March 31, IV. ARGUMENT A. The Trial Court Erred When It Dismissed Three of the Zonis Claims on Summary Judgment This court reviews an order of summary judgment de novo and performs the same inquiry as the trial court. Mulcahy v. Farmers Ins. Co. of Wash., 152 Wn.2d 92, 95 P.3d 313,

19 (2004). Summary judgment is proper if the evidence viewed in a light most favorable to the nonmoving party shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). "[C]onstruing the evidence in the light most favorable to the nonmoving party, the court asks whether a reasonable jury could find in favor of that party." Herron v. KING Broad. Co., 112 Wn.2d 762, , 776 P.2d 98 (1989). On a motion for summary judgment, the defendants, as the moving parties, bear the initial burden of showing the absence of an issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) citing LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). The moving party may meet the initial burden by pointing out to the court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986). Any evidence the opposing party offers, and all reasonable inferences therefrom, are considered in the light most favorable to the non-moving party. Young, 112 Wn.2d at The purpose of summary judgment is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial 12

20 by inquiring and determining whether such evidence exists."' Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d 605 (1960) (quoting Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940)). 1. Defamation To survive a motion for summary judgment, a defamation plaintiff must allege facts that would raise a genuine issue of fact for the jury as to each element. Mohr v. Grant, 153 Wn.2d 812, 108 P.3d 768 (2005) citing Mark v. Seattle Times, 96 Wn.2d 473, 485, 486, 635 P.2d 1081 (1981). The elements a plaintiff must establish in a defamation case are falsity, an unprivileged communication, fault, and damages. Herron v. KING Broad. Co., 112 Wn.2d 762, 768, 776 P.2d 98 (1989). At the outset, the defamation plaintiff must prove the offensive statement is "provably false." Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 348, 364 P.3d 129, (Div ) quoting Alpine Indus. Computers, Inc. v. Cowles Publ'g Co., 114 Wn.App. 371, 379, 57 P.3d 1178, 64 P.3d 49 (2002); Schmalenberg v. Tacoma News, Inc., 87 Wn.App. at 590 (1997). A statement can be provably false if it falsely describes the act, condition, or event that comprises its subject matter. Schmalenberg, 87 Wn.App. at 590. Washington courts favor 13

21 defamation going to a jury [i]n all but extreme cases. Caruso v. Local Union No. 690 of Int'l Bhd. Of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 100 Wn.2d 343, 354, 670 P.2d 240, 246 (1983) (citing Miller v. Argus Pub'g Co., 79 Wn.2d 816, 820 n. 3, 821 n. 4, 490 P.2d 101 (1971)). The defamation defendant does not have to prove the statement is literally true, but that the statement is substantially true' or 'the gist of the story, the portion that carries the "sting," is true.' Sisley v. Seattle Public Schools, 180 Wn. App. 83, 88, 321 P.3d 276, (Div ). In Sisley, the plaintiff could not prove defamation because the defendant only stated the plaintiff was accused of racist renting policies, not that the Sisley brothers were racist landlords or that they enacted formal rental policies that discriminated on the basis of race. Sisley, 180 Wn. App at 89. A defamation plaintiff may recover for actual damages. Wood v. Battle Ground School Dist., 107 Wn. App. 550, 573, 27 P.3d 1208, (Div ) citing Taskett v. KING Broad. Co., 86 Wn.2d 439, 447, 546 P.2d 81 (1976). Here, unlike in Sisley, Mr. Allen s to Mr. Zonis parents did not say that Mr. Zonis was accused of having an open relationship and having an internet affair. CP Instead, this 14

22 was stated as a fact. It was disputed whether the sex toy was an off the shelf item or a custom-made toy. CP The difference, changes the dynamic of the case. The Zonis theory of the case was that Ms. Allen propositioned herself, but the Zonis declined to enter into any kind of affair. CP They bought her the sex toy as a gift, at her request, because she felt she was repressed, but was too embarrassed to buy one herself. CP If the item was custom made it would support the plaintiff s theory that there was a sexual relationship between Ms. Allen and Mr. Zonis. This was clearly the gist of the story to paint Mr. Zonis as a predator who lured his wife into having an affair and was even able to convince Ms. Allen to masturbate with a cast of his own penis. CP When the facts are viewed in the light most favorable to the Zonis, the court was correct in assuming the sex toy was an off the shelf item. See RP However, the court erred in finding the had the gist of truth and is substantially true. CP 2549; Sisley, 180 Wn. App at 89. Notably, Mr. Zonis father, Dr. Zonis, testified that he chose not to give the Zonis their house as a direct result of the Mr. Allen sent. CP 2340, 2344, Instead of gifting the house to the Zonis, Dr. Zonis sold it. CP These 15

23 damages are not speculative. They are easily calculable because the house was sold for $637,000. CP 2327, These damages were unrelated to any claim for loss of inheritance or interference with an inheritance. It simply showed the economic loss that directly resulted from Mr. Allen s . This is a technical distinction for which the Zonis should not have been punished with a dismissal. See Garaux v. Pulley, 739 F2d 437, 439 (9 th Cir. 1984) ( The rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits. ) Finally, the Zonis presented evidence on summary judgment that Mr. Allen claimed Mr. Zonis had a long criminal record. CP One of Mr. Allen s posts on marriage builders stated, I don t doubt he might try something physical given his police record which my grandma said was quite long (the police ran his name and number as part of their investigation and passed on this information to her). I know he s been arrested for numerous bar fights among other things. CP Mr. Allen also stated, because of his background and it not being a first time offense, 16

24 would definitely not be in the minimum sentence area and would be looking at multiple years of prison. CP No evidence was presented that Mr. Zonis has ever committed a crime. In fact, Mr. Zonis provided evidence to the contrary. This untrue statement alone supported a claim of defamation per se. Davis v. Fred's Appliance, Inc., 171 Wn. App. 348, 287 P.3d 51, (Div ) (defamation per se generally requires imputation of a crime or communicable disease.). And the Zonis were entitled to recover general damages for mental distress, anguish, humiliation, and loss of enjoyment of life. See Haueter v. Cowles Publ'g Co., 61 Wn. App. 572, 578, 811 P.2d 231 (1991). Therefore, the trial court erred in dismissing the defendants defamation claim on summary judgment. The defendants asserted ample evidence to support their position and it was an abuse of discretion to summarily dismiss the defamation claim and not allow it to proceed to the jury. 2. False Light A false light claim arises when someone publicizes a matter that places another in a false light if (a) the false light would be highly offensive to a reasonable person and (b) the actor knew of 17

25 or recklessly disregarded the falsity of the publication and the false light in which the other would be placed. Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 339, 364 P.3d 129, (Div ). False light differs from defamation in that it focuses on compensation for mental suffering, rather than reputation. Corey v. Pierce County, 154 Wn. App. 752, 762, 225 P.3d 367, (Div ). As argued above, Mr. Allen s painted Mr. Zonis as a predator who preyed on his wife. CP The court found that some of Mr. Allen s Zerobin postings contained Mr. Zonis name and address, but found their claim failed because Mr. Zonis could not prove the falsity of the posts or any damages because supposedly none of their friends had seen them. CP The court applied an incorrect legal standard. The Zonis did not have to prove the falsity of each statement. They only had to prove it placed them in a false light. Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 339, 364 P.3d 129, (Div ). Again, the Zonis theory of the case was that Ms. Allen imagined this affair with Mr. Zonis and that the Zonis both tried to help her escape her abusive husband. CP 2316, 2333, They presented evidence in the form of s to support their theory. CP 2413, 18

26 2423, When the evidence is viewed in the light most favorable to the Zonis, it supported their theory that Ms. Allen imagined the affair and that they tried to help her deal with a failing marriage. Therefore, the posts made by Mr. Allen placed the Zonis in a false light by stating that Mr. Zonis was the one who pursued this affair and was attempting to control her every move. CP The trial also erred in how it calculated damages. The Zonis did not need to prove their friends saw those posts. They only had to prove mental suffering. Corey v. Pierce County, 154 Wn. App. 752, 762, 225 P.3d 367, (Div ). The deposition of Dr. Zonis shows the mental anguish of the deterioration of the Zonis relationship with him. Ms. Zonis testified in her declaration about the physical symptoms she suffered as a result of those posts and how the loss of her relationship with her in-laws affected her. CP Painting Mr. Zonis as a predator and Ms. Zonis as a whore would be highly offensive to a reasonable person to say the least. 3. Wiretapping Under Arizona Law Arizona Revised Statutes provides: A. Except as provided in title 13, chapter 30, any person whose wire, oral or electronic communication is intentionally intercepted, 19

27 disclosed or used in violation of title 13, chapter 30 may bring a civil action to recover from the person or entity that engaged in the violation the following: 1. Such preliminary and other equitable or declaratory relief as may be appropriate. 2. Damages in an amount that is the greater of either: (a) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation. (b) Statutory damages of one hundred dollars a day for each day of the violation. (c) Statutory damages of ten thousand dollars. 3. Punitive damages in appropriate cases. 4. Reasonable Attorney Fees and Other Reasonable Costs of Litigation The Zonis pled a violation of the above Arizona statute in their complaint, which allows civil damages for interception or disclosure of an electronic communication. CP 449. The court erred by not performing a choice of law analysis. In choice-of-law questions, Washington has rejected the law of the place of injury, lex loci delicti, in favor of the most significant relationship rule for tort and contract choice-of-law problems. Williams v. Leone & Keeble, Inc., 170 Wn. App. 696, 704, 285 P.3d 906, (3 2012). "Under this approach, the rights and liabilities of the parties are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties." Williams v. Leone & Keeble, Inc., 170 Wn.App. 696, 705, 285 P.3d 906, (3 2012) 20

28 citing Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128 Wn.App. 256, 260, 115 P.3d 1017 (2005). To determine which state has the most significant relationship, this court applies a two-part test: 1). a court must evaluate the contacts with each potentially interested state including the place where the injury occurred, the place where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation and place of business of the parties, and the place where the relationship, if any, between the parties is centered. Williams v. Leone & Keeble, Inc., 170 Wn.App 170 Wn. App. at citing Johnson v. Spider Staging Corp., 87 Wn.2d 577, , 555 P.2d 997 (1976) and 2). When the contacts are evenly balanced, the court evaluates the interests and public policies of the involved states to determine which state has the greater interest in the determination of the particular issue. Williams v. Leone & Keeble, Inc., 170 Wn.App. 696, 285 P.3d 906, (3 2012) citing Johnson v. Spider Staging Corp., 87 Wn.2d at 582. Here, the trial court erred in not conducting this test at all and summarily dismissing the related claim. 21

29 Mr. Zonis resides in Arizona and he had no relationship with Mr. Allen. Mr. Zonis was the target and the injury occurred in Arizona. Therefore, the first part of the test suggests Arizona law should apply, so there is no need to proceed. But, even if the contacts are evenly balanced, the second prong also suggests Arizona law should apply. Arizona law should apply because it makes a wider range of behavior unlawful. Under Arizona law, it is not only unlawful to intercept electronic communications, but is also unlawful to disclose them. ARS (A). This shows the Arizona legislature has specifically carved out a civil cause of action for disclosure rather than limiting the unlawful conduct to interception and thus has a greater interest in the determination of this issue. 5. Wiretapping Under RCW Even if Washington law applies here, the trial court still erred in dismissing the Zonis wiretapping claim. Washington s Privacy Act is codified at RCW To show a violation of the privacy act there must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication. State v. 22

30 Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004) (citing RCW ). Anyone injured by a violation of this statute may bring a private cause of action against the violator for actual damages including mental pain and suffering endured by him or her on account of violation. RCW Here, the only disputed element on summary judgment was whether Mr. Allen intercepted the private communications between Mr. Zonis and Ms. Allen. RP And in fact, the plaintiffs conceded that in the light most favorable to the defendants, the evidence supports a finding that Mr. Allen accessed stored communications. RP 252 ( they, at best, show access of unauthorized or stored communications. ). Id. The dispute was whether accessing stored communications comes within the meaning of intercepted under RCW In State v. Roden, 179 Wn.2d 893, , 321 P.3d 1183, (2014), the Washington Supreme Court found that text messages accessed on the intended recipient s phone before his cognitive receipt came within the meaning of intercepted. Roden, 179 Wn.2d at 904, 906. The court left open the question of whether it is also a violation of the act to access text messages that have already been received by the intended recipient and remain in storage. Roden, 23

31 179 Wn.2d at 906. However, Roden is illustrative because it shows the court s consistent liberal interpretation of the Act. Justice Wiggins dissent explains the two competing reasonable interpretations of intercepted: a strict construction that focuses on whether the communication was acquired during transmission, and a liberal construction that focuses on whether the communication was acquired prior to the intended recipient's cognitive receipt of the communication. Roden, 179 Wn.2d at 907. The majority applied the liberal construction and found Roden s text message was intercepted because it required some manipulation as opposed to just seeing a message flash across the screen and the officer responded to a previous text from Roden. Roden, 179 Wn.2d at 906. Roden is consistent with both State v. Christensen, 153 Wn.2d 186, 197, 102 P.3d 789 (2004) and State v. Faford, 128 Wn.2d 476, , 910 P.2d 447 (1996), in which the supreme court also interpreted the terms in the Act broadly. Id. at 906. In Christensen, 153 Wn.2d at 197, the Supreme Court declined to find that interception can occur only with a device separate from the one used to communicate. And in Faford, 128 Wn.2d at , the Supreme Court rejected the trial court's narrow definition of 24

32 "transmit" and expressly chose an alternative and broad definition "[i]n light of the breadth of the act's purpose," 128 Wn.2d at Just like Detective Sawyer in the above mentioned case, Mr. Allen had to perform some manipulation to access the s and videos because they were password protected. CP 464. The s did not just appear and flash across the screen. Under a broad interpretation of the term intercepted, Mr. Allen s manipulation of Ms. Allen s tablet and the s stored therein, falls within the meaning of the statute. It does not matter whether Mr. Allen read the s before or after Ms. Allen read them because when the statute is interpreted broadly, it may include any communication intentionally accessed by someone other than the intended recipient. At the summary judgment hearing, Plaintiff argued there was a legal difference between wiretapping and accessing stored communications, citing to Steve Jackson Games v. the Secret Service, 36 F.3d 457. Reliance on Steve Jackson is clearly erroneous given our supreme court s analysis above. State v. Roden, 179 Wn.2d 893, , 321 P.3d 1183, (2014) ( The Washington statute does not include technical definitions or 25

33 independent provisions for stored communications, and we have consistently interpreted its terms broadly. ) The plaintiffs next argued that the Zonis wiretapping claim failed because they did not plead the right statute or put their supporting facts in the correct section. RP ( They haven t plead the correct cause of action under the under the private claim...because they haven t cited the statute... ); (they reference the statute but they don t talk about in the Complaint how that statute relates to the facts alleged... It s page 12 and 13. ). Id. However, Washington s liberal notice pleading rules are intended "to facilitate the full airing of claims having a legal basis." State v. LG Electronics, Inc., 186 Wn.2d 169, 183, 375 P.3d 1035, (2016) citing Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977). The court may even look to the totality of the complaint. Champagne v. Thurston County, 163 Wn.2d 69, 86-87, 178 P.3d 936, (2008). In Champagne, the Plaintiff brought claims under the WRA, MWA and WPA, but in his prayer for relief he only sought damages under the WRA. The Defendant argued that excluded the MWA and the WPA from the scope of the court of appeal s review. Champagne, 163 Wn.2d at 85. The court rejected this argument because the Plaintiffs referenced relief elsewhere in the 26

34 complaint, which was enough to put the defendant on notice. Champagne, 163 Wn.2d at Similar to Champagne, the Zonis explicitly alleged both the wiretapping and illegal access of stored communications in their complaint. CP This put the plaintiffs on notice they intended to bring a cause of action under the Privacy Act, RCW Even if the trial court agreed the Zonis complaint still fell short, CR 15 (a) required that it freely give them leave to amend it. Subsection (b) of CR 15 even allows issues not raised by the pleadings, but tried by the parties, to be treated in all respects as if they had been raised in the pleadings. CR 15 (b). Here, the identity of the actual claim was undisputed and the plaintiffs did not argue they did not know what they were being accused of they simply argued the claim should be dismissed because the Zonis did not cite to the right statute in the right section. This is exactly the argument rejected in Champagne, 163 Wn.2d at Despite whether stored communications come within the meaning of the statute, it is undisputed that using a voice activated recorder ( VAR ) comes within the meaning of the statute. RCW The only dispute was whether Mr. Allen actually 27

35 recorded any conversations. The Zonis provided posts from the Marriage Builder s website in which Mr. Allen conceded that he used a VAR to record conversations between Mr. Zonis and Mrs. Allen. RP ; CP 2400, In the light most favorable to the Zonis, the evidence shows that Mr. Allen discussed the legal ramifications of VARs and was concerned about the actions he took. CP Even if there was a dispute about whether he actually recorded any communications that created a disputed issue of material fact that should have gone to the jury. Based on Mr. Allen s clear admission that he used a VAR to record conversations, the dismissal of this claim on summary judgment was clear reversible error. B. Plaintiffs Intentionally Inflamed, Prejudiced, and Misled the Jury, Improperly Seeking Punitive Damages Because Mr. Zonis Would Never Stop Emotional appeals to the jury s prejudice are misconduct and grounds for a new trial. State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984). Washington law prohibits punitive damages. Dailey v. North Coast Life Insurance Co., 129 Wn2d 572, 575, 919 P.2d 589 (1996). This jury, however, was improperly encouraged to award damages to punish the defendants, rather than compensate the plaintiffs. Jury verdicts in tort cases must be compensatory of 28

36 a pecuniary loss. Adams v. State, 71 Wn.2d 414, 432, 429 P.2d 109 (1967). The purpose of punitive damages, on the other hand, is to punish the defendant and deter similar conduct. Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 79, 272 P.3d 827 (2012). Here, plaintiffs counsel improperly asked the jury to deter Mr. Zonis by stating: He s never, ever, ever going to stop. And someone needs to tell him to stop. Vol. 1 Supp. RP 5. You are their last hope. Vol. 1 Supp. RP 30. There is one verdict that will tell him to stop. Vol. 1 Supp. RP 30. This improper request went beyond asking the jury to compensate the plaintiffs. It was a clear request for punishment and for a monetary deterrent, in violation of Washington law. This was also an attempt to inflame the jury and pray on its passion. Finally, plaintiff s counsel attempted to inflame the jury by repeatedly referencing the fact that Mr. Zonis did not testify. He could have gotten under oath, he could have told his side of the story, he talked how this was platonic, under oath. He didn t do that. Vol. 1 Supp. RP 14. He s willing to fake all this evidence. But he s not willing to get up on the stand and tell the truth about it. He s not willing to come under oath and answer your questions. He didn t want to do that. He had his chance Vol. 1 Supp. RP 29-29

37 30. The plaintiffs knew that Mr. Zonis did not testify because the trial went longer than expected and he was unable to take any more time off work. RP 190. There was a clear discussion on the record about Mr. Zonis not being able to testify if the trial exceeded the amount of days agreed upon and the plaintiff was well aware of that discussion. RP 190. As such, it was misconduct to refer to Mr. Zonis decision not to testify when the plaintiffs not only knew why he could not testify, but also created the situation, at least in part, by using more than its allotted days of testimony. C. The trial court erred when it allowed the Plaintiffs to mention insurance in front of the jury and an instruction did not cure the prejudice. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. ER 411. Evidence of insurance may be offered for another purpose, however, such as proof of agency, ownership, or control, or bias or prejudice of a witness. ER 411; Terrell v. Hamilton, 190 Wn. App. 489, 500, 358 P.3d 453, (Div ). Hawkins v. Diel, 166 Wn.App. 1, 9, 269 P.3d 1049, (Div ) is instructive. Don and Geri Hawkins were tenants in an apartment that was damaged when Ms. Diel drove her car through 30

38 a wall. The apartment's management, Dobler Management Company, Inc. (DMC), delayed in making the necessary repairs. Hawkins, 166 Wn. App. at 4-5. DMC attempted to point to the Diels' insurance carrier's delay to avoid its own contractual responsibility. But, the court found that evidence was not relevant to the duty DMC owed to the Hawkins. Id. Evidence of the Diels' liability insurance had no relevance to any issue in dispute between the Hawkins and DMC. Id. at 9. Here, during Ms. Zonis testimony, the Plaintiffs counsel raised the issue of insurance for the purpose of arguing to the jury that the Zonis had at least three free attorneys through their insurance company who also paid the costs associated with the litigation. The point was to show the Zonis could have conducted and paid for their own subpoenas to Facebook or their own forensic investigation. RP The implication was that if there was forensic information to support their claims their attorneys would have found it. This purpose does not fall under any of the admissible purposes to introduce evidence of insurance. It only served to prejudice the jury by implying the Zonis attorneys either found no forensic evidence to support their claims or their attorneys found evidence to support the Allen s claims. 31

39 Just like in Hawkins, evidence of the Zonis liability insurance had no relevance to any issue in dispute between them and the Allen s. Instruction number 21 did not cure the prejudice to the Zonis because the Plaintiffs counsel did not imply the Zonis had insurance or other coverage or sources of available funds to pay a larger verdict. Instead, Plaintiffs counsel implied the Zonis had sources of available funds to conduct a forensic investigation and, therefore, they were either lying about their ability to collect evidence or lying about the evidence that was collected. An instruction telling the jury not to consider the amount of funds available to pay a verdict cannot cure the damage done to the Zonis. D. The Trial Court Abused Its Discretion by Admitting Over 450 s When the Sender Could Not Be Verified For Each Because It Was More Prejudicial Than Probative The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation. " State v. McDaniel, 155 Wn. App. 829, 878 n. 18, 230 P.3d 245, (Div ) quoting State v. Kelly, 102 Wash.2d 188, 193, 685 P.2d 564 (1984) (quoting State v. Evans, 96 Wn.2d 119, , 634 P.2d 32

40 845 (1981)). Therefore, "[u]nless the trial court indicates further objections are required when making its ruling, its decision is final, and the party losing the motion in limine has a standing objection." Kelly, 102 Wn.2d at 193, 685 P.2d 564. A trial court's evidentiary rulings on relevance is reviewed for abuse of discretion. State v. Horton, 195 Wn. App. 202, 380 P.3d 608, (Div ) citing State v. Hall, 112 Wn. App. 164, 169, 48 P.3d 350 (2002). Abuse of discretion is defined as discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 (1971). A court s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. Littlefield, 133 Wn.2d at 47. Defendants moved in limine to exclude over 450 s, for which the sender could not be verified. CP Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, 33

41 confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ER 403. admitted: ER 901 provides guidance on when s should be (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (10) Electronic Mail ( ). Testimony by a person with knowledge that (i) the purports to be authored or created by the particular sender or the sender's agent; (ii) the purports to be sent from an address associated with the particular sender or the sender's agent; and (iii) the appearance, contents, substance, internal patterns, or other distinctive characteristics of the , taken in conjunction with the circumstances, are sufficient to support a finding that the e- mail in question is what the proponent claims. ER 901 (b) (10). The main dispute at trial was the identity of the sender. Both parties alleged the other spoofed the s. RP 130, 133, 449, The Plaintiffs relied heavily on the third subsection of ER 901 (b) (10) and argued that the sender was apparent from the content. However, this ignores the fact that some of these s purported to be from someone other than Mr. Zonis. Electronic impersonation is a relatively new law. The circumstances in this case are analogous to admitting gang 34

42 evidence in a criminal case. Washington courts consider gang evidence prejudicial due to its general "inflammatory nature." State v. DeLeon, 185 Wn. App. 171, 189, 341 P.3d 315, (Div ). Accordingly, to admit gang affiliation evidence there must be a nexus between the crime and gang membership. State v. DeLeon, 185 Wn. App. 171, 189, 341 P.3d 315, (Div ) citing State v. Scott, 151 Wn.App. 520, 526, 213 P.3d 71 (2009). Here, the s the plaintiffs sought to admit were inflammatory because of the explicit content. These s were introduced through Ms. Allen who testified she received them. But, receiving them does not prove who sent them. In addition, Ms. Allen testified that she could identify Mr. Zonis as the author of several s because they had words in all caps, bur Ms. Allen also wrote s in that manner. RP ; Compare CP 2354 to In an electronic impersonation case, it is logical that there should be a nexus between the content and the actual sender. Here, Ms. Allen opined that Mr. Zonis sent them, but she could not prove it and neither could the plaintiff s computer expert, Andreas Kaltsounis. The probative value of these s was substantially outweighed by the risk of unfair prejudice when the sender could 35