MOTIONOFDEFENDANTKSHAMASAWANTREDISMISSORMOREDEFINI

FILED
17 SEP 29 PM 1:05
1 THE HONORABLE RICHARD MCDERMOTT

KING COUNTY
Noted for consideration without oral argument
SUPERIOR COURT CLERK
2 October 27, 2017
E-FILED
CASE NUMBER: 17-2-21842-1 KNT
3
6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR KING COUNTY
7
8 SCOTT MILLER, an individual, MICHAEL No. 17-2-21842-1 KNT

SPAULDING, an individual,
9
Plaintiffs, DEFENDANTS MOTION TO
10 DISMISS OR FOR A MORE
v. DEFINITE STATEMENT
11
12 KSHAMA SAWANT, an individual,
13 Defendant.
14
15 I. RELIEF REQUESTED
16 For the reasons that follow, Seattle City Councilmember Kshama Sawant (hereafter, CM
17
Sawant) submits this Motion To Dismiss Or For A More Definite Statement pursuant to Civil
18
Rules (CR) 12(b)(6) and 12(e).
19
II. STATEMENT OF FACTS
20
21 CM Sawant is an elected member of the Seattle City Council. Plaintiffs, two employees
22 of the Seattle Police Department (SPD), bring suit alleging that CM Sawant defamed them by
23 speaking publicly about a controversial civilian killing for which they were responsible and
24
vowing to Seattle residents that she would seek accountability for this and a long-standing,
25
widely-perceived pattern of racially-disparate use of force incidents by SPD officers. See
26
generally, Complaint, Docket (Dkt.) 1.
LAW OFFICES OF
MOTION TO DISMISS OR FOR A MORE DEFINITE SCHWERIN CAMPBELL
STATEMENT - 1 BARNARD IGLITZIN & LAVITT, LLP
Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

SEATTLE, WASHINGTON 98119-3971
(206) 285-2828
1 It is undisputed that on February 21, 2016, Plaintiffs took the life of Seattle resident Che
2 Taylor. Id. at 19-20. Plaintiffs admit that they did not employ de-escalation techniques
3
before shooting Taylor multiple times and killing him when they encountered him on a
4
Wedgewood street, while Plaintiffs were allegedly in the neighborhood to serve a warrant on
5
another Seattle resident. Id. at 14, 18-19.
6
Less than five days later, on February 25, 2016, the family of Che Taylor, Seattle
7
8 community members outraged by the killing, and advocates for racially-just policing held a
9 march which culminated in a public demonstration in the street on Fifth Avenue between City
10 Hall and the SPD headquarters. Id. at 21. As alleged in Plaintiffs Complaint, CM Sawant
11
stopped by the ongoing demonstration and made brief remarks to the assembled crowd, including
12
the following statements:
13
First of all, we have to work on the specific demands to bring justice to Che
14 Taylor, and if the [police] Chief and other leaders in the Police Department are
15 incapable or unwilling to facilitate that process and show genuine leadership at
this moment, where we know there's systematic racial injustice and profiling by
16 the police, then yes, we will need to hold allnot just the Police Department, but
we need to hold elected officials accountable. Ultimately, the buck stops at City
17 Hall.
18 The Police Department reports to the Mayors office and the City Council. We
19 need to make sure that we hold the political leadership accountable. One of the
things we need to move towards and use this energy to build towards real
20 community accountability [is] community oversight. That's been a demand of the
Black Lives Matter movement all along. We need to hold all these people
21 accountable and then it's their choice, whether they want to stand on the right side
of history or the wrong side of history
22
23 This is dramatic racial injustice, in this city and everywhere in this nation. The
brutal murder of Che Taylor, just a blatant murder at the hands of the police, show
24 how urgently we need to keep building our movement for basic human rights for
Black people and brown people. I want to let you know that I stand here both as
25 an elected official, as a brown person, as an immigrant woman of color, and as
someone who has been in solidarity with the Black Lives Matter movement, and
26
our movement for racial, economic and social justice. We need to keep building
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1 our movement; you can see what we are up against. We are up against an
establishment, a political establishment, in City Hall that is aiding and abetting
2 this behavior by the Police Department. And I am here as an elected official
because I am completely committed, unambiguously committed, to holding the
3
Seattle Police Department accountable for their reprehensible actions, individual
4 actions. We need justice on the individual actions and we need to turn the tide on
the systematic police brutality and racial profiling.
5
I am in solidarity with all demands that were read. Lets get fighting, lets hold
6 Seattle police accountable, win justice for Che Taylor and other and our other
slain sisters and brothers. Solidarity.
7
Declaration of Jennifer Woodward (Woodward Dec.) at 3, 5; see also, Complaint, at 21.
8
9 CM Sawants speech became publicized by community members and journalists in attendance at
10 the rally. Id.

11 Thereafter, CM Sawant has continued to speak out on various occasions to keep public
12
pressure on City actors to properly investigate and seek justice for Che Taylors death. While
13
Plaintiffs generally allege harm resulting from CM Sawants continued advocacy, Plaintiffs fail
14
to cite any further particular statements made by CM Sawant underlying their claims or the
15
16 circumstances surrounding such statements. Id. at 26, 28.
17 III. EVIDENCE RELIED UPON
18 This motion relies upon the allegations in Plaintiffs Complaint and the February 2016
19 statement of CM Sawant referenced and thus incorporated into Plaintiffs Complaint.1
20
21
22
23
1
As the contents of the statement were alleged in the Complaint, the Court may consider the statement without
24 converting the instant motion into a motion for summary judgment. See, e.g., Trujillo v. Nw. Tr. Servs., Inc., 183
Wn.2d 820, 828 n. 2, 355 P.3d 1100 (2015). This is especially salient in defamation cases, where statements alleged
25 defamatory should be considered in whole and not in part or parts detached from the main body of speech. Camer
v. Seattle Post-Intelligencer, 45 Wn. App. 29, 723 P.2d 1195 (1986), rev. denied, 107 Wn.2d 1020 (1987), cert.
26 denied, 482 U.S. 916 (1987).
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1 IV. AUTHORITY
2 A. GENERAL STANDARD OF REVIEW FOR CR 12(B)(6) MOTIONS

3
Dismissal for failure to state a claim under CR 12(b)(6) is appropriate if it is beyond
4
doubt that a party can prove no set of facts which would entitle it to relief. Bravo v. Dolsen
5
Companies, 125 Wn.2d 745, 750, 888 P.2d 147 (1995); Orwick v. City of Seattle, 103 Wn.2d
6
249, 254, 692 P.2d 793 (1984). When considering a motion to dismiss, the Court must accept
7
8 the plaintiffs factual allegations as true. Tenore v. AT&T Wireless Svcs., 136 Wn.2d 322, 330,
9 962 P.2d 104 (1998). However, the Court need not accept a plaintiffs asserted legal
10 conclusions. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032
11
(1987).
12
In determining whether or not a complaint fails to state a claim, it is important to note
13
that [a]lthough inexpert pleading is permitted, insufficient pleading is not. Lewis v. Bell, 45
14
15 Wn. App. 192, 197, 724 P.2d 425 (1986). A complaint may be found to be insufficiently
16 pleaded, warranting dismissal, if it fails to notify the defendant of either the general legal
17 theories against him or fails to plead the elements of such theories or facts in support of such
18 elements. See e.g., Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 24-25, 974 P.2d 847
19
(1999) (claim dismissed where plaintiff failed to allege all elements necessary to establish prima
20
facie case); Havsy v. Flynn, 88 Wn. App. 514, 518, 945 P.2d 221 (1997), as amended on
21
reconsideration (Oct. 17, 1997) (plaintiff failed to state claim where he failed to allege facts to
22
23 satisfy elements of legal theory).
24 B. STANDARD APPLIED IN DEFAMATION CASES
25 To prove defamation, a plaintiff must show that a defendant: (1) made a false and
26
defamatory statement of fact about plaintiff to a third party; (2) that the publication of such
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1 statement was unprivileged; (3) that the defendant was at fault; and (4) that harm came to the
2 plaintiff by result. Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 471, 722 P.2d 1295
3
(1986); Caruso v. Local Union No. 690 of Intl Bhd. Of Teamsters, 100 Wn.2d 343, 352, 670
4
P.2d 240 (1983). To satisfy the first element, plaintiffs must show that the allegedly-defamatory
5
statement was one of fact, not opinion. Robel v. Roundup Corp., 148 Wn.2d 35, 56, 59 P.3d 611
6
(2002).
7
8 Additionally, courts routinely require that plaintiffs assert specific facts regarding the
9 statements alleged to be false and defamatory. See, e.g., Marks v. City of Seattle, 2003 WL
10 23024522, *3 (W.D. Wash. 2003) (Defamation claims, in particular, must be advanced with
11
sufficient specificity.); Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir. 2002); Wiggins v.
12
Philip Morris, Inc., 853 F.Supp. 458, 466 (D.D.C. 1994) (subjecting defamation claim to a
13
heightened pleading standard); Black v. National Football League Players Assn, 87 F.Supp.2d
14
15 1, 6 (D.D.C. 2000). Given this heightened pleadings standard, conclusory statements averring
16 defamation are insufficient to state a claim. Hoffman v. Hill and Knowlton, Inc., 777 F.Supp.
17 1003, 1005 (D.D.C.1991); Black, 87 F.Supp.2d at 6. Instead, defamation plaintiffs must plead
18 the time, place, content, speaker and listener of the alleged defamatory matter. Wiggins v.
19
Equifax, 848 F.Supp. 213, 223 (D.D.C. 1993); Black, 87 F.Supp.2d at 6. Absent identification of
20
the precise statements alleged to be false and defamatory (see Flowers, 310 F.3d at 1131), a
21
plaintiffs claims must fail.2
22
23
24 2
On these grounds, the Honorable Marsha Pechman, W.D. Wash., at least twice dismissed defamation claims on the
pleadings where the complaint failed to identify the allegedly defamatory statements with specificity, even before
25 federal courts abrogated their notice pleading standard. See Marks, supra, at *3 (dismissing complaint for failure
[to] identify with specificity any statements in the broadcasts that were defamatory); Harris v. City of
26 Seattle, 2003 WL 1045718, *4 (W.D.Wash. 2003) (dismissing complaint for failure to state with specificity the
alleged defamatory statements).
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1 There is good purpose for such a requirement: because a defamation suit stands to chill
2 First Amendment speech simply through its pendency, courts should swiftly adjudicate whether
3
the allegations made could support a defamation claim, if proven. See, e.g., Id. at 1130
4
([W]here a plaintiff seeks damages for conduct which is prima facie protected by the First
5
Amendment, the danger that the mere pendency of the action will chill the exercise of First
6
Amendment rights requires more specific allegations than are otherwise required.); Kottle v.
7
8 Northwest Kidney Centers, 146 F.3d 1056, 1063 (9th Cir. 1998) (claims implicating First
9 Amendment speech do not receive the benefit of the doubt); Marks, 2003 WL 23024522 at *3
10 ([C]ourts should consider First Amendment concerns even at the pleading stage.).
11
C. STANDARD FOR CR 12(E) MOTION FOR MORE DEFINITE STATEMENT
12
A court may grant CR 12(e) motion for a more definite statement if it finds that a
13
complaint is either so vague and ambiguous that [the defendant] cannot reasonably be required
14
to frame a responsive pleading, or if more particularity in that pleading [would] further the
15
16 efficient and economical disposition of the action. Wash. R. Civ. P. 12(e). Motions for a more
17 definite statement are addressed to the discretion of a trial court; the courts ruling will not be
18 disturbed absent abuse of discretion. Hough v. Stockbridge, 152 Wn. App. 328, 336-37, 216
19 P.3d 1077 (2009), rev. denied, 168 Wn.2d 1043 (2010).
20
D. THREE INDEPENDENT BASES SUPPORT THE IMMEDIATE DISMISSAL OF
21 PLAINTIFFS CLAIMS.
22 1. Plaintiffs Suit Should Be Dismissed For Plaintiffs Failure To Exhaust The

Statutorily-Required Pre-Litigation Process For Presenting Tort Claims
23 Against A City Official.
24 RCW 4.96.020 imposes mandatory pre-litigation procedural requirements on plaintiffs
25
seeking damages from local governmental entities and their officers, employees, or volunteers.
26
Before commencing suit, plaintiffs must present their claims to the municipalitys designated
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1 agent along with a tort claim presentment form containing certain statutorily-prescribed
2 information. RCW 4.96.020(2)-(3). Thereafter, plaintiffs must wait sixty days before
3
commencing litigation. RCW 4.96.020(4). Plaintiffs who fail to comply with these
4
requirements are barred from bringing suit. Id. Here, as Plaintiffs have failed to comply and
5
plead compliance with the RCW 4.96.020 requirements, their claims should be dismissed.
6
The RCW 4.96.020 procedural requirements apply only when officials are sued for acting
7
8 in their official capacity. RCW 4.96.020(1); Wright v. Terrell, 162 Wn.2d 192, 195-96, 170 P.3d
9 570 (2007). Thus, Plaintiffs seek to skirt the requirements by claiming that they name CM
10 Sawant strictly in her personal capacity. See, e.g., Complaint, 1 (This is a Complaint seeking
11
damages against one individual who, acting in her own capacity and only on her own behalf,
12
defamed two good men.). However, the Court is not required to and should not accept this legal
13
conclusion asserted by Plaintiffs, especially as it is plainly contradicted by the remaining facts
14
15 Plaintiffs allege.
16 Few legal guidelines define the official role of a Seattle City Councilmember, and none
17 distinguish it from what Plaintiffs would artificially silo as a Councilmembers personal

18 political acts on a matter of public concern during her term of elected office. The City Council is
19
generally vested with the legislative powers of the City (see, Seattle City Charter, Art. IV,
20
Section I.A.; Art. IV, Section I.C) and, as a body, is beholden to the processes and limitations
21
outlined in the City Charter for exercising such power. See generally, Seattle City Charter, Art.
22
23 IV, Section IV. However, no authority constrains the official role of a City Councilmember to
24 just those actions taken within City Council chambers during official Council meetings; to the
25 contrary, it is axiomatic that Councilmembers, like all other legislators, are expected to interact
26
regularly with Seattle residents, to be responsive to Seattle residents concerns, and to take
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1 positions on issues of public concern. See, e.g., General Rules and Procedures of the City
2 Council, as adopted by Seattle Resolution No. 31639 (2016) (obligating Councilmembers to

3
[b]e responsive to citizens and [u]phold the public trust); Seattle City Charter, Art. IV, Sec.
4
2 (describing purpose of number and composition of Councilmembers as, ensur[ing] members
5
of the city council are closer to the people they represent [and] enable[ing] voters to better
6
know their Councilmembers); cf. Bond v. Floyd, 385 U.S. 116, 135-137, 87 S. Ct. 339, 17 L.
7
8 Ed. 2d 235 (1966) (The manifest function of the First Amendment in a representative
9 government requires that legislators be given the widest latitude to express their views on issues
10 of policy Legislators have an obligation to take positions on controversial political questions
11
so that their constituents can be fully informed by them, and be better able to assess their
12
qualifications for office.).
13
In addition, the face of Plaintiffs Complaint and, by incorporation, the statements of CM
14
15 Sawant that it alleges as the basis of Plaintiffs claims, plainly demonstrate that Plaintiffs claims
16 are predicated upon CM Sawants role and acts as an elected public advocate. The following
17 allegations by Plaintiffs point to this conclusion:

18
Complaint, 7, acknowledges that CM Sawant is a public figure;
19
Complaint, 10, alleges that CM Sawant has us[ed] City of Seattle resources to play
20 to her [political base] and inject herself into national politics, resources to which she
would have access only by virtue of her elected position;
21
Complaint, 11, alleges that the public assumes when CM Sawant states positions in
22 public it is based upon facts made available to her by virtue of her leadership
position [and] role in Seattle;
23
Complaint, 12, criticizes CM Sawant for allegedly den[ying] being part of the
24 system (implicitly, while serving as an elected City Councilmember);
25
While Complaint, 21, denies that CM Sawant was engaging in official city council
26 business, when making a public statement on February 25, 2016, it alleges that CM
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1 Sawants statements implied awareness of inside factual information (again by
virtue of her role in City government);
2
Complaint, 36, claims that CM Sawants statements have been far-reaching,
3 extending throughout King County and well-beyond, implicitly because of CM
Sawants public platform.
4
Further, CM Sawant was clear in her speech to the family of Che Taylor and other Seattle
5
6 residents on February 25, 2016, that she was addressing them as a City Councilmember, and in
7 that capacity, would fight for public accountability for Che Taylors death:
8 I stand here both as an elected official, as a Brown person, as an immigrant woman of
color, and as someone who has been in solidarity with the Black Lives Matter movement,
9
and our movement for racial, economic, and social justice And I am here as an
10 elected official because I am completely committed, unambiguously committed, to
holding the Seattle Police Department accountable.
11
Woodward Dec. at 3 (emphasis added).
12
Plaintiffs cannot plausibly have it both ways; they cannot rely upon CM Sawants alleged
13
14 us[e] [of] City resources and her leadership position [and] role in Seattle to claim that she
15 had an elevated platform for her speech, causing Plaintiffs alleged far-reaching [damage],
16 extending throughout King County and well-beyond, while simultaneously denying that their
17
claims stem from CM Sawants role as an elected City official.3 Complaint, at 7, 10, 12, 36.
18
Because Plaintiffs bring claims against CM Sawant for actions actually taken within her scope
19
and course of employment as a Seattle City Councilmember and have failed to satisfy a statutory
20
prerequisite for filing their claims, Plaintiffs Complaint should be dismissed.
21
22 3
Noticeably, Plaintiffs have not named as co-defendants any of the other community leaders who do not hold
elected office but likewise made outspoken, media-published remarks at the same February 2016 event attended by
23
CM Sawant, calling the killing of Che Taylor murder. See, Alex Garland, Almost 100 Protesters Gathered Outside
SPD Headquarters Today Demanding Answers About the Death of Che Taylor, The Stranger, Feb. 25, 2016,
24 http://www.thestranger.com/slog/2016/02/25/23623738/several-dozen-protesters-gathered-outside-spd-
headquarters-today-demanding-answers-about-the-death-of-che-taylor/ (Seattle King County NAACP President
25 Gerald Hankerson likewise calling the death of Che Taylor murder and a kill[ing of] our brother in cold blood,
and decrying SPD officers like Plaintiffs as people carrying guns that feel like they can shoot us down like savage
26 animals in the street).
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1 2. Even Accepting Plaintiffs Allegations As True, They Fail To Establish A
Cause Of Action For Defamation Which Does Not Apply To Statements
2 Asserting Opinion Like Those Made By CM Sawant.
3 Defamation is a cause of action limited to seeking redress for actual or implied statements
4
of fact. Before the truth or falsity of an allegedly defamatory statement can be assessed, a
5
plaintiff must prove that the words constituted a statement of fact, not opinion. Because
6
expressions of opinion are protected under the First Amendment, they are not actionable.
7
8 Robel, 148 Wn.2d at 56 (quoting Camer v. Seattle Post-Intelligencer, 45 Wn. App. at 39). The
9 determination of whether a communication effects a statement of fact is a question of law for the
10 court unless the statement could only be characterized as either fact or opinion. Davis v.
11
Freds Appliance, Inc., 171 Wn. App. 348, 365, 287 P.3d 51 (2012) (internal citation omitted).
12
Courts consider three factors to determine whether statements are actionable as defamation or
13
constitute non-actionable opinion speech:
14
(1) the medium and context in which the statement was published;
15
(2) the audience to whom it was published; and,
16 (3) whether the statement implies undisclosed facts.
17 Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986).
18 Regarding the first factor, Washington courts assess the forum for the speech, and
19 whether it is one in which statements of opinion are expected to be found such as editorial
20
pages or political debates. Id. A public demonstration is the quintessential setting in which a
21
public official may be expected to express a statement of opinion on an issue of public concern
22
such as racially-disparate policing patterns and one believed instance of the pattern.
23
24 The second factor, similarly, calls upon the Court to consider the audience for the speech,
25 as courts acknowledge that there are certain audiences in which fiery rhetoric may be expected,
26 and chief among them are audiences to public discourse. See, e.g., Info. Control Corp. v.
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1 Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980) ([E]ven apparent statements of
2 fact may assume the character of opinion when made in public debate, heated labor dispute, or
3
other circumstances in which an audience may anticipate efforts by the parties to persuade others
4
to their positions by use of epithets, fiery rhetoric, or hyperbole), cited with approval in,
5
Dunlap, 105 Wn.2d at 539. In this instance, a crowd publicly calling attention to Che Taylors
6
untimely killing and expressing outrage and despair at the continuation of widely-perceived
7
8 racially-disparate uses of force by SPD would be well disposed to understand that CM Sawant
9 was expressing her opinion regarding the unjustified nature of the killing and using the strongest
10 possible rhetoric to do so. Compare with, Robel v. Roundup Corp., 148 Wn.2d at 57 (retail
11
employees calling coworker a snitch, squealer, and liar, found to be making expressions
12
of personal opinion because coworkers and managers would be aware of history of animosity in
13
workplace and customers hearing the comments would perceive the speakers viewpoint as
14
15 antagonistic). Likewise, members of the public reading a media republication of CM Sawants
16 statements could easily note CM Sawants long history of City Council advocacy for SPD
17 reforms designed to curb its federally-alleged patterns of excessive use of force and
18 discriminatory policing. See, e.g., Kshama Iyengar Swawant, District 3, Central Seattle,
19
http://www.sawant.seattle.gov (last visited Sept. 29, 2017) (CM Sawants official
20
Councilmember homepage, with tabs entitled #BlackLivesMatter, Anti-Racism, and
21
Police, containing written text and video of her Council speeches and correspondence on
22
23 police accountability issues); see also, United States v. City of Seattle, Cause No. 12-cv-01282-
24 JLR, Dkt. 1 (W.D. Wash. 2012) (U.S. Department of Justice filing suit against City of Seattle for
25 SPD pattern of unconstitutional policing practices).

26
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1 The third and perhaps most crucial factor used to determine whether a statement
2 professes non-actionable opinion is whether the statement implies the allegation of undisclosed
3
facts. Dunlap, 105 Wn.2d at 540; Duc Tan v. Le, 177 Wn.2d 649, 662-666, 300 P.3d 356 (2013).
4
The rationale for this factor is that [w]hen the audience knows the facts underlying an opinion
5
and can judge the truthfulness of the allegedly defamatory statement themselves, the basis for
6
liability for the opinion is undercut. Duc Tan, 177 Wn.2d at 664. Here, the Court should
7
8 conclude from the timing, particular words, and tone of CM Sawants public statement that CM
9 Sawant did not imply any publicly-undisclosed facts known to her at that time.
10 As Plaintiffs admit, CM Sawants statements came just days after Che Taylors death,
11
before SPD or any other City entity had time to complete any investigation of which Sawant may
12
gain knowledge through her position on the City Council. Complaint at 23. CM Sawants
13
speech clearly speaks to a desire to prospectively push for answers and justice in conjunction
14
15 with the community. Woodward Dec. at 5 (We have to work on the specific demands to bring
16 justice to Che Taylor We need justice on the individual actions). Finally, CM Sawants
17 use of the term blatant (commonly defined as completely obvious) implies that any member
18 of the public paying attention to the issue could determine for them self, based on the
19
information then released by SPD including the dash cam video referenced in Plaintiffs 24,
20
whether or not they agreed with CM Sawants professed opinion that the killing of Che Taylor
21
was unjust. In addition, though Plaintiffs contend that CM Sawant called them racist
22
23 murderers, which Plaintiffs could perhaps use to argue implied insider knowledge by CM
24 Sawant about Plaintiffs state of mind or beliefs, her statements plainly show that her remarks
25 referred to systematic police brutality and racial profiling, rather than any individual conduct
26
by Plaintiffs, whom she did not directly name in her speech at all. Woodward Dec. at 5.
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1 Thus, while Plaintiffs Complaint baldly parrots the legal conclusion that CM Sawants
2 statement implied awareness of inside factual information but fails to plead any fact to
3
supports such conclusion, the Court should conclude that the public would draw no such
4
implication from the speech. Because, overall, Plaintiffs Complaint does not show that CM
5
Sawant made defamatory statements of actual or implied fact against Plaintiffs, the Complaint
6
should be dismissed. Robel, 148 Wn.2d at 56.
7
8 3. Because Plaintiffs Are Public Figures For The Purposes Of The Instant Suit
And Because CM Sawant Enjoys Qualified Immunity For Her Statements,
9 Plaintiffs Complaint Is Deficient For Failing To Allege Actual Malice.
10 Both plaintiffs who are public figures and plaintiffs suing defendants whose statements
11
enjoy qualified immunity must allege actual malice to prevail on a defamation claim. Parry v.
12
George H. Brown & Assoc., Inc., 46 Wn. App. 193, 197, 730 P.2d 95 (1986) (calling the actual
13
malice standard for claims by public figures and claims seeking to overcome a qualified
14
immunity identical). Actual malice requires a showing that the defendant had knowledge of
15
16 the falsity of his statements or showed reckless disregard for the falsity. See, e.g., Moe v. Wise,
17 97 Wn. App. 950, 957, 989 P.2d 1148 (1999) (citing cases), rev. denied, 140 Wn.2d 1025 (2000).
18 Plaintiffs are undoubtedly public figures for the purposes of the instant suit, given that the
19
statements alleged defamatory regard their conduct as public employees. See, e.g., Himango v.
20
Prime Time Broadcasting, Inc., 37 Wn. App. 259, 262-263, 680 P.2d 432 (1984) (police officers
21
deemed public figures when statements relate to their official duties, performance thereof, or
22
23 fitness for public employment), rev. denied, 102 Wn.2d 1004 (1984). Moreover, CM Sawant is
24 due a qualified privilege by virtue of her position as a public official of a subdivision of the State
25 which, at the least, permitted her to speak out on concerning SPD conduct. See, Wood v. Battle
26 Ground Sch. Dist., 107 Wn. App. 550, 569, 27 P.3d 1208 (2001) (citing Restatement (Second) of
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1 Torts 598A (1977)). Thus, while Plaintiffs allege that CM Sawant was uninformed when
2 making the alleged statements, this is not sufficient to establish that she acted with the requisite
3
malice to deprive her of her privilege and to satisfy the general pleading standard their claims
4
require, and Plaintiffs Complaint should be dismissed. Compare, Complaint, at 23-24; with
5
Parry, 46 Wn. App. at 197 (stating that malice is not shown by a mere failure to reasonably
6
investigate).
7
8 E. REGARDING THE ADDITIONAL INSTANCES OF DEFAMATION ALLEGED,

THE COURT SHOULD EITHER ORDER DISMISSAL OR A CR 12(E) MORE
9 DEFINITE STATEMENT OF PLAINTIFFS ALLEGATIONS.
10 To the extent that Plaintiffs Complaint may be read to claim additional harm resulting
11
from other statements made by CM Sawant subsequent to February 25, 2016, such claims are
12
insufficiently pleaded and should either be dismissed by the Court or ordered to be pleaded
13
through a more definite statement. Defamation requires specific pleading of the statements made
14
against an individual, at the least, and is often held to require pleading of the time, place,
15
16 speaker, and listener of the statements alleged defamatory. Flowers, 310 F.3d at 1131; Wiggins
17 v. Equifax, 848 F.Supp. at 223. The Court should be especially attuned to these requirements
18 here, as the speech of a public official elected by Seattle residents to advocate for them on
19
matters of urgent public concern like racially-just policing stands to be chilled.
20
Plaintiffs allege generally that after February 2016, CM Sawant reiterated [her]
21
statements publicly throughout the year and, with particular emphasis, immediately before the
22
23 officers inquest and that CM Sawant continues to refer to the shooting as a murder and
24 publicly asserts that [Plaintiffs] avoided accountability. Complaint at 26, 28. However,
25 Plaintiffs Complaint fails to describe any instances in which CM Sawant has publicly made such
26 a statement, the phrasing of the statement, context, or audience even generally in such a
LAW OFFICES OF

(206) 285-2828
1 manner that would allow the Court to determine whether Plaintiffs claim should be dismissed on
2 those grounds asserted above or as may be otherwise applicable. Importantly, the context of any
3
other alleged statements by CM Sawant on the subject of Che Taylors death, which conceivably
4
include City Council chambers, may aid the Court in determining whether Plaintiffs have
5
brought suit against CM Sawant based upon statements made in the scope and course of her role
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as a public official such that RCW 4.96.020 prerequisites apply and CM Sawant may have
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8 absolute immunity. See, e.g., Herron v. Tribune Pub. Co., 108 Wn.2d 162, 177, 736 P.2d 249
9 (1987) (Members of legislative bodies are clothed with absolute immunity for any
10 defamatory statements made in the course of official proceedings, provided the statements
11
pertain to the subject matter of the proceedings).
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Thus, the Court should either dismiss any additional instances of defamation alleged by
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Plaintiffs or should order that Plaintiffs file a more definite statement of such claims so that it
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15 may properly and fully consider the issues above.
16 V. CONCLUSION
17 For the foregoing reasons, CM Sawant respectfully requests that the Court grant the
18 instant motion and order Plaintiffs claims dismissed. In the alternative, CM Sawant requests
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that the Court order Plaintiffs to plead a more definite statement of their claims to further the
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Courts efficient and economical consideration of the grounds for dismissal articulated above.
21
//
22
23 //
24 //
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LAW OFFICES OF

(206) 285-2828
1 DATED this 29th day of September, 2017.
3
s/Dmitri Iglitzin
4 Dmitri Iglitzin, WSBA No. 17673
Katelyn M. Sypher, WSBA No. 49759
5 Carson Phillips-Spotts, WSNA No. 51207
Schwerin Campbell Barnard Iglitzin & Lavitt LLP
6 18 W Mercer St, Suite 400
Seattle, WA 98119
7
(206) 257-6003
8 Iglitzin@workerlaw.com
Sypher@workerlaw.com
9 Phillips@workerlaw.com
10 Attorneys for Kshama Sawant
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I certify that this memorandum contains 4,697 words in
12 compliance with the Local Civil Rules.
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LAW OFFICES OF

(206) 285-2828
1 DECLARATION OF SERVICE
2 I, Jennifer Woodward, declare under penalty of perjury under the laws of the state of
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Washington that on September 29, 2017, I electronically filed the foregoing Defendants Motion
4
To Dismiss Or For A More Definite Statement with the court using the E-filing system, and
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delivered a true and correct copy of the same via e-service to:
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Daniel A. Brown
7
Adam L. Rosenberg
8 Williams Kastner & Gibbs, PLLC
601 Union Street, Suite 4100
9 Seattle, WA 98101-2380
dbrown@williamskastner.com
10 arosenberg@williamskastner.com
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Executed in Seattle, Washington, this 29th day of September, 2017.
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14 Jennifer Woodward, Paralegal

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LAW OFFICES OF
DECLARATION OF SERVICE - 17 SCHWERIN CAMPBELL
Case No. 17-2-21842-1 KNT BARNARD IGLITZIN & LAVITT, LLP
18 WEST MERCER STREET SUITE 400
(206) 285-2828

MOTIONOFDEFENDANTKSHAMASAWANTREDISMISSORMOREDEFINI

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FILED

1 THE HONORABLE RICHARD MCDERMOTT

6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

8 SCOTT MILLER, an individual, MICHAEL No. 17-2-21842-1 KNT

12 KSHAMA SAWANT, an individual,

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

9 CM Sawants speech became publicized by community members and journalists in attendance at

10 the rally. Id.

16 circumstances surrounding such statements. Id. at 26, 28.

17 III. EVIDENCE RELIED UPON

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2 A. GENERAL STANDARD OF REVIEW FOR CR 12(B)(6) MOTIONS

23 satisfy elements of legal theory).

24 B. STANDARD APPLIED IN DEFAMATION CASES

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

22 1. Plaintiffs Suit Should Be Dismissed For Plaintiffs Failure To Exhaust The

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

17 distinguish it from what Plaintiffs would artificially silo as a Councilmembers personal

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

2 Council, as adopted by Seattle Resolution No. 31639 (2016) (obligating Councilmembers to

17 allegations by Plaintiffs point to this conclusion:

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Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

15 antagonistic). Likewise, members of the public reading a media republication of CM Sawants

25 SPD pattern of unconstitutional policing practices).

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

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8 E. REGARDING THE ADDITIONAL INSTANCES OF DEFAMATION ALLEGED,

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15 may properly and fully consider the issues above.

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

Case No. 17-2-21842-1 KNT 18 WEST MERCER STREET SUITE 400

14 Jennifer Woodward, Paralegal

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