M.G. v. Bainbridge Island School Distr. #303, 2025 WL 892770 (Wash.App., March 24, 2025).

Opinion 2025 Washington Scope 2024WashingtonMGBainbridgeScope

AI Synopsis

♦ This Washington Court of Appeals case, M.G. v. Bainbridge Island School Distr. #303, involves a lawsuit brought by M.G., Samantha Gerlach, and Suzanne Gerlach against the Bainbridge Island School District, Washington State HOSA, Naszya Bradshaw, and Eleanor Wilson, stemming from social media posts and related events in 2020 and 2021 concerning allegations of sexual assault involving Bainbridge High School students, including M.G.. The court addresses the application of Washington's Uniform Public Expression Protection Act (UPEPA), an anti-SLAPP law, to the case. The trial court granted Eleanor Wilson's and Naszya Bradshaw's joint UPEPA motion, dismissing all claims against them. The Court of Appeals affirmed the dismissal of claims against Wilson and Bradshaw, finding that their social media posts addressed a matter of public concern (sexual assault allegations and the school's response) and that the plaintiffs failed to establish a prima facie case of defamation or demonstrate that any UPEPA exceptions applied. ♦

M.G. v. Bainbridge Island School Distr. #303, 2025 WL 892770 (Wash.App., March 24, 2025).

Court of Appeals of Washington, Division 1.

M.G., Samantha Gerlach and Suzanne Gerlach, Appellants,

BAINBRIDGE ISLAND SCHOOL DISTRICT #303, a municipal corporation, Washington State Hosa, a nonprofit corporation, Naszya Bradshaw an individual, Eleanor Wilson an individual and Does 1-100, Respondents.

No. 86846-2-I

Filed March 24, 2025

Appeal from Kitsap Superior Court, Docket No: 23-2-00048-1, Honorable Jennifer A. Forbes, Judge.

Attorneys and Law Firms

Marcus S Gerlach, Attorney at Law, 579 Stetson Pl Sw, Bainbridge Island, WA, 98110-2551, for Appellants.

Aaron Dean Bigby, Northcraft Bigby Daniels PC, Melissa Anne Daniels, Attorney at Law, 819 Virginia St., Ste. C2, Seattle, WA, 98101-4433, Joseph Robert Shaeffer, Julia Catarina Bladin, MacDonald Hoague & Bayless, 705 2nd Ave., Ste. 1500, Seattle, WA, 98104-1745, Mark F. O'Donnell, Amber Rae Hazelquist, Preg O'Donnell & Gillett, 401 Union St., Ste. 1900, Seattle, WA, 98101-9512, Jennifer Elizabeth Wellman, Beth Marie Andrus, Skellenger Bender, 520 Pike St., Ste. 1001, Seattle, WA, 98101-4092, for Respondents.

OPINION PUBLISHED IN PART

Coburn, A.C.J.

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¶1 Washington State's Uniform Public Expression Protection Act (UPEPA) is a type of law designed to combat the problem of strategic lawsuits against public participation (anti-SLAPP law). Thurman v. Cowles Co., ––– Wash.3d ––––, 562 P.3d 777 (2025), https://www.courts.wa.gov/opinions/pdf/1027915.pdf. The law, ch. 4.105 RCW, is designed "to protect important public speech from frivolous litigation by providing a procedural scheme that disposes of such cases early and swiftly in the litigation life cycle." Id. at ––––, 562 P.3d 778–779. Plaintiffs appeal, among other orders, the trial court's granting of Eleanor Wilson's and Naszya Bradshaw's joint UPEPA motion and dismissing all claims against them with prejudice.

¶2 Central in this case is what occurred in the Bainbridge Island community in the fall of 2020 and early 2021. As reported by the Bainbridge Island Review, in the fall of 2020, a rally was held to encourage girls to talk about sexual assault. Attendees were invited to tell their stories and learn about "Let's Talk," a service through Bainbridge Youth Services (BYS) which offers group, one-on-one and small group peer support. In January 2021, several women posted allegations of sexual assault and harassment, on social media, perpetrated by named male Bainbridge High School (BHS) students and criticism of how BHS responded to such complaints. One of the named male students was M.G.

¶3 In January 2023, M.G., his sibling Samantha Gerlach, and his mother Suzanne Gerlach,1 sued the Bainbridge Island School District (BISD), Health Occupation Students of America (HOSA)2, Wilson, Bradshaw, and Does #1-100. The plaintiffs are represented by Marcus Gerlach.3 Wilson's speech, that is the subject of this suit, is her social media post "@ all the girls who are, or have been victims of [M.G.4] in any way" and offering to take their "stories and compose a letter to the school with your demands." Plaintiffs never assert what it is that Bradshaw communicated other than a colorful, defiant social media post in response to being confronted with a possible defamation lawsuit.

fn1. Despite identifying M.G. only by initials, plaintiffs disclose in their complaint and declarations how they are related to one another.

fn2. HOSA is an afterschool club at Bainbridge High School. Plaintiffs identify HOSA as a Washington State non-profit corporation.

fn3. Because of shared surnames, we refer to Samantha and Suzanne by their first name for clarity and to Marcus Gerlach as Attorney Gerlach.

fn4. In the record, M.G.'s name is redacted, except for his initials. But it is undisputed that the post used M.G.'s first and last name.

¶4 In the plaintiffs' first amended complaint,5 they allege defamation, conspiracy to commit defamation, fraud, cyberstalking, violations of the Washington Law Against Discrimination (WLAD), and loss of consortium. They separately also allege negligence claims against BISD and HOSA.6 In addition to the granting of the UPEPA motion, the plaintiffs appeal the trial court's (1) granting of defendants' motion to amend the case caption to reflect M.G.'s full name; (2) declining to recuse itself; (3) award of CR 11 sanctions against Attorney Gerlach; (4) denial of the plaintiffs' cross-motion for CR 11 sanctions; and (5) dismissal, under CR 12(b)(6), of all claims against HOSA.7

fn5. Hereinafter referred to as "complaint."

fn6. The plaintiffs also initially alleged claims under federal law, but later amended the complaint by withdrawing their federal claims.

fn7. BISD had joined HOSA's second CR 12(b)(6) motion, requesting partial dismissal of plaintiffs' claims against BISD. The trial court granted BISD's motion dismissing claims for defamation, fraud, civil conspiracy, cyberstalking, and loss of consortium by Samantha. Plaintiffs do not appeal this order. Thus, the only issue in this appeal that relates to BISD is the motion to amend the case caption for which BISD joined.

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¶5 We affirm the dismissal of all claims against Wilson and Bradshaw, and the award of CR 11 sanctions against Attorney Gerlach. Plaintiffs waived any argument that the trial court should have recused itself for an alleged conflict of interest, but nonetheless conclude that the plaintiffs fail to demonstrate that the trial court was biased. However, because the trial court did not apply the correct legal analysis as further discussed below, we reverse the trial court's order amending the case caption and remand for further proceedings.8 As to all remaining claims, plaintiffs either fail to assign error or fail to sufficiently present argument and citations to the record to warrant review.

fn8. Because we reverse the trial court's order amending the case caption, this opinion reflects the case caption as it existed prior to the court's August 7, 2023 order. RAP 3.4.

FACTS

¶6 M.G. attended BHS from 2018 to 2021. Samantha graduated from BHS in June 2019. Both participated in HOSA while at BHS. At BHS, M.G. received accommodations under Section 504 of the Rehabilitation Act of 1973. Wilson and Bradshaw also attended BHS and graduated in 2020. M.G. never had any interaction with either of them during high school.

¶7 According to Wilson, while in high school, she had been a victim of sexual harassment and the school handled it poorly. In 2017, she was one of many Bainbridge Islanders who attended a Women's March advocating for women to have the right to speak freely about their experiences as victims of sexual harassment/assaults. She recalled that "[a]t that time, I remember Bainbridge Island being a hotbed of attempted youth social justice action." While attending BHS, she recalled seeing on social media, allegations of sexual assault and harassment perpetrated by male BHS students and reading criticism of how the school handled such incidents. In January 2021, Wilson noticed a "huge uptick" in social media posts from women who felt unheard by BHS and posted the names of "perpetrators," including, but not limited to M.G. Wilson recalled seeing posts from eight different women, some of whom Wilson knew from when she attended BHS. After seeing the posts, Wilson offered on social media to document the stories of victims of sexual assault/harassment. Her post stated:

@ all the girls who are, or have been victims of M.G. in any way:

if you guys want, I will take your stories and compose a letter to the school with your demands. I will be your Alexander Hamilton.

Anything y'all need. I don't have much to offer except my writing skills, and maybe a few connections. But I'm here for you and I want to help you. You can message me on my insta, @blacksmithshenanigans.

I'd want ALL of your input on what I write, so if y'all could all talk to each other that'd be greatly appreciated.

No detail spared. No grievance unaired. If you want, I will write it for you. I will represent you. I am not a lawyer, but I am a writer, and a survivor myself. I am here for you.

BELIEVE WOMEN.

BELIEVE SURVIVORS.

M.G. and Samantha saw Wilson's post. That same month, M.G. attended an in-person meeting with BISD staff to discuss what he characterized as cyber-harassment/sexual harassment against him. M.G. reports being told that BISD could not do anything to prevent cyber-bullying that was outside of school.

¶8 M.G. and Samantha also saw postings from Bradshaw on her Instagram account. They aver that the postings were viewable from 2021 through 2023 and characterize the postings as "false, malicious and defamatory comments about [M.G.] on the internet." They never assert what the posts actually said.

¶9 Plaintiffs filed their initial complaint in January 2023. They claim Wilson, on or about January 23, 2021, "made defamatory claims and offered to write contrived stories about male Section 504 students and then make demands on the School." As to Bradshaw, the plaintiffs claimed she

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posted false defamatory and malicious stories about M.G. which were designed to impugn his name and reputation in the community. [Bradshaw] acted with disregard for the truth, based in part upon the false stories manufactured by [Wilson].

The complaint did not assert any specific factual allegations related to Bradshaw.

¶10 As to HOSA, plaintiffs claim various ways a HOSA advisor mishandled several incidents: (1) failed to discipline a HOSA student who in March 2019 sent through a school's internal email "remind" account that "underclassmen bullying underclassmen will result in someone's ass getting kicked by another underclassmen"; (2) only required HOSA/School female students to write an apology letter to the advisor, and not to M.G., after admitting in October 2019 to creating a false social media post depicting M.G. as calling another female student fat; (3) failed to collect evidence, conduct a formal investigation or discipline female HOSA/School students when in December 2019, the advisor saw false, malicious and defamatory statements created by Does #1 and #2.

¶11 We summarize the plaintiffs' various claims in their complaint as follows.

A. Violation of WLAD

¶12 Under former RCW 49.60.215(14) (2020)9, the "School/HOSA/Does # 1-30" (1) failed to protect a minor, male, Section 504 student; and (2) directly, or indirectly, caused a person of a particular sex or class to be treated as "not welcome, accepted, or desired." The "School/HOSA/Defendants' conduct was extreme and outrageous" and that "the Defendants' conduct intentionally or recklessly caused emotional distress to M.G."

fn9. Subsection "(14)" does not exist in former RCW 49.60.215. The statute was amended on June 6, 2024, after plaintiffs filed their complaint. LAWS OF 2024, ch. 161, § 3. The new statute also has no subsection "(14)."

D. Negligence

¶13 The school had a special relationship with a Section 504 student, M.G., and that the School and HOSA had a duty to enforce their policies and procedures to protect a male Section 504 student, that they breached that duty, and that the "Defendants' negligence allowed the girls to circumvent [policies and procedures] ... and prevented M.G. from succeeding and obtaining an education under FAPE."

E. Defamation

¶14 The "Defendants" "falsely accused M.G. of rape." They allege that the "School/HOSA/[Wilson]/[Bradshaw]/Does #1-30" (1) made false statements about M.G. which were unprivileged communications; (2) knew the statements were false or acted with disregard for the truth; and (3) caused permanent physical, mental, emotional and psychological harm to the plaintiffs.

F. Fraud

¶15 The "Defendants devised a scheme to defraud M.G. out of money paid to the university, junior college and HOSA. The scheme was to manufacture false, defamatory and malicious claims about M.G., calling M.G. 'Fuck-Boy,' 'Slut-Boy,' 'Rapist,' 'Abuser' with the purpose and intent of defrauding M.G. out of non-refundable monies paid to his university." Washington State University had offered admission to M.G. in December 2020, but later rescinded its offer.

G. Civil Conspiracy

¶16 "Defendants" conspired to engage in the schemes alleged, including accomplishing "defamation per se," and that they "knew that their predicate acts were in furtherance of the scheme and part of a pattern targeting a student protected under WLAD."

H. Consortium (RCW 4.24.010) and Emotional Distress

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¶17 As a direct and proximate cause of the "Defendants' actions," M.G. was prevented from

1) Competing in round two HOSA 2021 testing; 2) Attending "Grad's Night Out"; 3) Participating in the School's prom; 4) Attending the School's 2021 graduation ceremony; 5) Personally receiving his scholarship at the School's award's ceremony; 6) Attending church; 7) Depriving M.G. of attending his accepted university; 8) removal from M.G.'s senior yearbook. M.G. was ostracized and harassed in the community because of the School's Google Drive, which contained false, defamatory and malicious accusations of rape.

PROCEDURAL HISTORY

¶18 In response to plaintiffs' complaint, Wilson and Bradshaw filed a joint motion for expedited relief under UPEPA.10 RCW 4.105.020. Plaintiffs filed an opposition to the motion and attached declarations from Attorney Gerlach and all the plaintiffs. Both Attorney Gerlach, M.G. and Samantha stated that when Bradshaw was confronted about possible lawsuits from "victims," Bradshaw responded via social media with the following post that M.G. and Samantha both personally saw:11

[f]irst of all: idgaf bout any threats of defamation suits. It's not defamation if you've committed these heinous actions on camera. Dumbass hoe.

Second: idgaf if the abuser is your homie, sister, brother, whateva. They're an abuser. They can learn or rot. I'm not ruining lives, they ruined their own. Eat my black ass.

In the opposition motion, plaintiffs did not assert the application of any of the statutory exceptions to UPEPA under RCW 4.105.010(3). See RCW 4.105.060(1)(b).

fn10. This occurred in the United States District Court for the Western District of Washington where BISD had moved the case. A prior notice of intent to file the motion triggered a 14-day window within which plaintiffs could either withdraw or amend their complaint. RCW 4.105.020(1). Plaintiffs chose to amend the original complaint by withdrawing any reference to federal claims. After the amendment, the district court declined to exercise its supplemental jurisdiction and remanded the matter back to State court, where Bradshaw and Wilson refiled their UPEPA motion. Other than the removal of federal claims, there was no substantive change to the Plaintiffs' complaint.

fn11. It is unclear as to how Attorney Gerlach, M.G. and Samantha have personal knowledge that Bradshaw was confronted about possible lawsuits and who did the confronting, as plaintiffs did not include that information in the record. Despite the fact that Bradshaw's post did not include any names, M.G. stated he believed "Bradshaw targeted me-a white, male Section 504 student because of Naszya Bradshaw's alleged black privilege."

¶19 HOSA responded to the plaintiffs' complaint by filing a second CR 12(b)(6) motion to dismiss.12 Plaintiffs responded by filing an opposition to the motion. Attached to the motion were multiple exhibits untethered to any declaration establishing personal knowledge of the exhibits' content.13

fn12. It appears HOSA identifies this as its "second" CR 12(b)(6) motion because it previously filed this motion in federal court when the case was temporarily moved there. The federal court did not rule on the motion before remanding the matter back to Kitsap County Superior Court.

fn13. Attorney Gerlach, in the opposition pleading, describes one of the exhibits as the notes of the investigator hired by BISD to conduct an investigation related to social media posts, while also accusing the investigator of being biased. Attorney Gerlach did not attach the actual final report of the investigator.

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¶20 The court held a hearing on June 12 on all the motions, including plaintiffs' motion for reconsideration, which was correctly treated as a motion to recuse. The court denied the motion to recuse during the hearing and later issued a written order on June 23, 2023. The court requested all parties submit proposed orders related to the UPEPA motion for the court's consideration.

¶21 More than two weeks after oral argument, but before the court issued any rulings, Wilson submitted a declaration. Wilson and Bradshaw filed a joint supplemental memorandum with attached exhibits. Many of the exhibits were exhibits previously submitted by the plaintiffs. Other exhibits included copies of local newspaper articles, and what appears to be an undated social media post by the superintendent of BISD that was untethered to any declaration.

¶22 Plaintiffs filed a June 26 motion to strike the supplemental pleadings as untimely. It was in this motion to strike that plaintiffs first asserted the application of UPEPA exceptions. Attorney Gerlach's statements in this pleading and his subsequent errata filing formed the basis of Wilson's motion for CR 11 sanctions, which the court later granted and awarded attorney fees. The court also denied the plaintiffs' cross-motion for CR 11 sanctions.

¶23 The trial court denied plaintiffs' motion to strike, granted the UPEPA motion and awarded Bradshaw and Wilson attorney fees under RCW 4.105.090. The trial court also granted HOSA's second CR 12(b)(6) motion dismissing the claims for negligence, defamation, civil conspiracy, and fraud. The court denied plaintiff's motion for reconsideration. The court later granted HOSA's third CR 12(b)(6) motion to dismiss the remaining claims against HOSA.14 Plaintiffs did not file an objection to the motion. Prior to the court granting the UPEPA motion, Bradshaw and Wilson moved to amend the case caption to identify M.G. by his full name and requested leave of the court to identify M.G. by his full name. BISD and HOSA joined the motion. The court granted the motion.

fn14. The remaining claims were cyberstalking, loss of consortium, and emotional distress.

¶24 Plaintiffs appeal. More facts are discussed below where relevant.

DISCUSSION

Case Caption

___ Omitted for brevity. ___

UPEPA Motion

¶36 Plaintiffs challenge the trial court's decision to grant the UPEPA motion. They contend the act is unconstitutional, and, in the alternative, that the trial court erred in concluding the speech in question was one of public concern, and that UPEPA exceptions did not apply. Finding no error, we affirm the trial court.

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¶37 UPEPA, chapter 4.105 RCW, is designed to provide an expedited process for dismissing lawsuits that target activities protected by the First Amendment, such as freedom of speech, press, assembly, petition, and association on matters of public concern. Thurman, at –––– – ––––, 562 P.3d at 781. RCW 4.105.903 provides: "This chapter applies to a civil action filed or cause of action asserted in a civil action on or after July 25, 2021." The UPEPA allows a defendant to file a special motion for expedited relief within 60 days of being served with a pleading asserting a covered cause of action. Id. Relevant to this case, chapter 4.105 RCW applies to any claim asserted "against a person based on the person's ... [e]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington state Constitution, on a matter of public concern." RCW 4.105.010(2)(c). Certain exceptions to this rule are enumerated in RCW 4.105.010(3)(a).

¶38 Plaintiffs assert for the first time on appeal that RCW 4.105.010(3) is facially unconstitutional and as applied because it violates the right to a jury trial, is too vague, and violated plaintiffs' right to due process.

¶39 Constitutional challenges are subject to de novo review. Portugal v. Franklin County, 1 Wash.3d 629, 647, 530 P.3d 994 (2023) ("We presume statutes are constitutional, and the party challenging constitutionality bears the burden of proving otherwise."). Additionally, an appellate court "may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a); State v. Strine, 176 Wash.2d 742, 749, 293 P.3d 1177 (2013). A party must raise an issue at trial in order to preserve the issue for appeal, unless the party can show the presence of a " 'manifest error affecting a constitutional right.' " RAP 2.5(a)(3); State v. Robinson, 171 Wash.2d 292, 304, 253 P.3d 84 (2011).

¶40 Plaintiffs only mentioned the constitutionality of UPEPA below when they opposed Bradshaw's motion for attorney fees and costs under RCW 4.105. In that motion, plaintiffs asserted that Wilson's law firm made statements, in 2020, that challenged UPEPA's constitutionality regarding the application of attorney fees and costs. That is plainly distinct from the claim they assert on appeal. In addition, they make no attempt to establish that the alleged error was manifest or make any attempt to satisfy RAP 2.5(a)(3). The plaintiffs have waived their constitutional claims.

¶41 They next argue that the trial court erroneously applied RCW 4.105.060. We disagree.

¶42 Our Court reviews issues of statutory interpretation de novo. Pub. Util. Dist. No. 2 of Pac. County v. Comcast of Wash. IV, Inc., 8 Wash. App. 2d 418, 449, 438 P.3d 1212 (2019). "In assessing whether the trial court erred by denying [a] UPEPA motion, we engage in the three-step analysis dictated by RCW 4.105.060(1)." Jha v. Khan, 24 Wash. App. 2d 377, 388, 520 P.3d 470 (2022). First, it is the moving party's burden to establish that UPEPA applies to the cause of action. RCW 4.105.060(1)(a); Id. Second, once the moving party has satisfied this requirement, the burden shifts to the responding party to establish that a statutory exception applies under RCW 4.105.060(1)(b). Jha, 24 Wash. App. 2d at 387, 520 P.3d 470. And third, if the responding party fails to demonstrate that an exception applies, the trial court must dismiss the action if either:

(i) The responding party fails to establish a prima facie case as to each essential element of the cause of action; or

(ii) The moving party establishes that:

(A) The responding party failed to state a cause of action upon which relief can be granted; or

(B) There is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.

RCW 4.105.060(1)(c). The court must dismiss the cause of action or part of the cause of action if three conditions are met. Thurman v. Cowles Co., 29 Wash. App. 2d 230, 238, 541 P.3d 403 (2024), rev'd, on other grounds, ––– Wash.3d ––––, 562 P.3d 777 (2025).

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In ruling on a motion under RCW 4.105.020, the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment under superior court civil rule 56.

RCW 4.105.050.

A. UPEPA Application

¶43 Under the first step of the UPEPA analysis, Bradshaw and Wilson both maintain that UPEPA applies because plaintiffs' cause of action against them is based on the exercise of their right of freedom of speech, and that their statements were a matter of public concern. Plaintiffs argues otherwise.

¶44 UPEPA applies when a complaint is based on the individual's "[e]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington state Constitution, on a matter of public concern." RCW 4.105.010(2)(c). Whether speech is a matter of public concern is a question of law, which courts must determine " 'by the content, form, and context of a given statement, as revealed by the whole record.' " Billings v. Town of Steilacoom, 2 Wash. App. 2d 1, 31, 408 P.3d 1123 (2017) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 148 n.7, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983)). Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community. Jha, 24 Wash. App. 2d at 389, 520 P.3d 470.

¶45 We first analyze the "content, form, and context" of the target of the plaintiffs' claims against Bradshaw and Wilson. It is undisputed that those claims attack Bradshaw's and Wilson's speech, and that speech consisted of public social media posts. Wilson's speech targeted "all the girls who are, or have been victims of M.G. in any way." Wilson offered to compile their stories and compose a letter to the school with their demands. Plaintiffs never disclosed what Bradshaw actually said in her posts that they describe as "false defamatory and malicious stories" about M.G. Plaintiffs also challenge Bradshaw's social media post after having been confronted about possible defamation lawsuits. Her response was colorfully direct:

"[f]irst of all: idgaf bout any threats of defamation suits. It's not defamation if you've committed these heinous actions on camera. Dumbass hoe.

Second: idgaf if the abuser is your homie, sister, brother, whateva. They're an abuser. They can learn or rot. I'm not ruining lives, they ruined their own. Eat my black ass."

The "inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern." Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011) (quoting Rankin v. McPherson, 483 U.S. 378, 387, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987)).

¶46 Plaintiffs next argue that UPEPA does not apply because the speech at issue was defamatory, false and not matter of public concern.

¶47 Plaintiffs rely on Jha, 24 Wash. App. 2d 377, 520 P.3d 470, and Spratt v. Toft, 180 Wash. App. 620, 632, 324 P.3d 707 (2014), to argue that UPEPA only applies to public figures or public campaigns. Spratt involved statements made by a person who was in the middle of a political campaign against a private citizen. 180 Wash. App. at 627, 324 P.3d 707. Jha involved statements written by one political candidate about another in an article published online. 24 Wash. App. 2d at 390, 520 P.3d 470. Though these cases involved political campaigns, their holding did not mandate that speech does not equate to a public concern unless it was political speech. Plaintiffs ignore the actual legal test in determining whether speech is a matter of public concern. It is a question of law, which courts must determine " 'by the content, form, and context of a given statement, as revealed by the whole record.' " Billings, 2 Wash. App. 2d at 31, 408 P.3d 1123 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. 1684). Moreover, as this court stated in Jha, speech relating to political, social, or other concern to the community involves matters of public concern. 24 Wash. App. 2d at 389, 520 P.3d 470. Under the statute, our legislature requires us to broadly construe whether speech is a matter of public concern. Id. at 390, 520 P.3d 470; RCW 4.105.901.

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¶48 In the instant case, Bradshaw's and Wilson's speech was made in the context of an on-going concern about sexual assault of young women on Bainbridge Island and BHS' response to reports of such assaults.

¶49 Bradshaw and Wilson submitted, as exhibits, local newspaper articles and other publications that documented community effort between 2017 and 2023 to address the issue of sexual assault. The Bainbridge Island Review reported many people heading from the island to Seattle in 2017, to participate in a women's march. In 2018, the local paper ran an opinion column about the #MeToo movement. In fall 2020, the paper reported on a rally to encourage girls to talk about sexual assault. Attendees were invited to tell their stories and learn about "Let's Talk," a service through BYS which offers one-on-one and small group peer support. BYS organized a march that began at BHS "To End Sexual Assault and Rape Culture on Bainbridge Island" in 2021. Another newspaper article, in January 2023, discussed how three agencies on the island, including BHS, worked to give power back to victims of sexual assault. It was with this backdrop that Bradshaw and Wilson exercised their First Amendment right to speak out. Wilson offered to provide victims advocacy by bringing their experiences to the attention of the Bainbridge Island School District. Bradshaw's statement could be seen as a public pronouncement that one need not be fearful to speak out if you speak the truth, even when facing threats of litigation.

¶50 Though plaintiffs argue that the speech that is the subject of their complaint is "false," false speech is protected speech as long as it is not incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, pornography, fraud or true threats. United States v. Alvarez, 567 U.S. 709, 717, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012). Plaintiffs argue that UPEPA does not apply because the speech at issue was defamatory. "Under the UPEPA, provable defamation claims survive the expedited dismissal process and are not dismissed unless and until a trier of fact finds that defamation has not been proved. However, claims against protected expression are covered by the UPEPA notwithstanding a plaintiff characterizing that expression as defamation." Thurman, 29 Wash. App. 2d at 241, 541 P.3d 403. Here, the plaintiffs simply do not present a prima facie case of defamation towards M.G.

¶51 To establish a prima facie defamation claim, the claimant must show (1) that the defendant's statement was false, (2) that the statement was unprivileged, (3) that the defendant was at fault, and (4) that the statement proximately caused damages. Caruso v. Loc. Union No. 690, 107 Wash.2d 524, 529, 730 P.2d 1299 (1987). In a defamation case, the plaintiff has the burden of establishing a prima facie case on all four elements of defamation. LaMon v. Butler, 112 Wash.2d 193, 197, 770 P.2d 1027 (1989). "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." Id.

¶52 Wilson's solicitation of stories from "girls who are, or have been victims of M.G." is not an offer to write "contrived stories about male Section 504 students" as alleged by plaintiffs. Samantha's and M.G.'s assertion that Bradshaw posted "false, malicious and defamatory" comments or allegations about M.G. are conclusory statements and do not assert specific, material facts. And Bradshaw's social media post after being confronted with a possible defamation lawsuit did not assert M.G., let alone any named individual, had committed sexual assault. In short, plaintiffs fail to establish a statement made by Bradshaw or Wilson that is provably false.

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¶53 We agree with the trial court that Bradshaw and Wilson's statements fall within the definition of a "matter of public concern" and UPEPA applies.

B. Statutory Exceptions

¶54 Once the moving party has established that UPEPA applies, the burden shifts to the responding party to establish that a statutory exception under RCW 4.105.010(3) applies. RCW 4.105.060(1)(b); Jha, 24 Wash. App. 2d at 388, 520 P.3d 470. RCW 4.105.010(3)(a) provides 12 exceptions that fall outside the scope of the act.

¶55 Plaintiffs assert that three exceptions apply. (1) RCW 4.105.010(3)(a)(iv)21 (claims "against a person named in a civil suit brought by a victim of a crime against a perpetrator."); (2) RCW 4.105.010(3)(a)(viii) (claims "based on a common law fraud claim."); (3) RCW 4.105.010(3)(a)(x) (claims "brought under Title 49 RCW.").

fn21. Plaintiffs appear to inadvertently omit "(a)" in its citations to RCW 4.105.010(3) exceptions. ----

¶56 Under the second step of the UPEPA analysis, we review whether plaintiffs met their burden to establish that a statutory exception applies.

¶57 Wilson contends that plaintiffs waived the ability to raise any exceptions under the UPEPA statute because they did not raise exceptions in their filed opposition.

¶58 After Wilson and Bradshaw filed their joint UPEPA motion, plaintiffs responded by filing an opposition to the motion, but did not assert in the pleading the application of any exception under RCW 4.105.010(3). Later, after Wilson and Bradshaw filed a supplemental memorandum, plaintiffs filed a motion to strike the supplemental brief. In that motion to strike, plaintiffs asserted the same three exceptions under RCW 4.105.010(3)(a) that they raise on appeal. The court, in its consideration of the UPEPA motion, denied plaintiffs' motion to strike and considered all of the submitted pleadings by all parties. Though Attorney Gerlach did not expressly cite to RCW 4.105.010(3) during oral argument at the June 12, 2023 hearing, he did argue, "We can't dismiss [WLAD], defamation, fraud or cyber acts in place because of the conspiracy by the co[-]defendants." Thus, plaintiffs did assert the application of exceptions below that was considered by the trial court. We now turn to each of the asserted exceptions.

(i) RCW 4.105.010(3)(a)(iv)

¶59 The first exception is RCW 4.105.010(3)(a)(iv) that provides for a cause of action "against a person named in a civil suit brought by a victim of a crime against a perpetrator." Plaintiffs assert that M.G. is a victim of cyber harassment22 by Bradshaw and Wilson, and that plaintiffs brought a civil suit against them.

fn22. RCW 9A.90.120 defines cyber harassment:

(1) A person is guilty of cyber harassment if the person, with intent to harass or intimidate any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to that person or a third party and the communication:

(a)

(i) Uses any lewd, lascivious, indecent, or obscene words, images, or language, or suggests the commission of any lewd or lascivious act;

(ii) Is made anonymously or repeatedly;

(iii) Contains a threat to inflict bodily injury immediately or in the future on the person threatened or to any other person; or

(iv) Contains a threat to damage, immediately or in the future, the property of the person threatened or of any other person; and

(b) With respect to any offense committed under the circumstances identified in (a)(iii) or (iv) of this subsection:

(i) Would cause a reasonable person, with knowledge of the sender's history, to suffer emotional distress or to fear for the safety of the person threatened; or

(ii) Reasonably caused the threatened person to suffer emotional distress or fear for the threatened person's safety.

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¶60 Plaintiffs fail to cite to any substantive evidence anywhere in the record to support this claim that M.G. was the victim of cyber harassment specifically by Bradshaw and Wilson. In the complaint, plaintiffs characterize the unnamed student who uploaded the link to the dossier in the school's Google Drive as a cyber-stalker.

(ii) RCW 4.105.010(3)(a)(viii)

¶61 The next exception, RCW 4.105.010(3)(a)(viii), provides for a cause of action "based on a common law fraud claim." Plaintiffs cite to their complaint, in which they allege "Defendants devised a scheme to defraud M.G. out of money paid to the university, junior college and HOSA." The facts asserted under his claim for fraud include that the uploaded dossier described M.G.'s attendance at community college, that he attends BHS and goes to Olympic College for Running Start, and that he was in a leadership position in HOSA the previous year.

¶62 Common law fraud consists of nine essential elements23 which must be proven by clear, cogent and convincing evidence.

fn23. The nine essential elements are:

(1) A representation of an existing fact;

(2) Its materiality;

(3) Its falsity;

(4) The speaker's knowledge of its falsity or ignorance of its truth;

(5) His intent that it should be acted on by the person to whom it is made;

(6) Ignorance of its falsity on the part of the person to whom it is made;

(7) The latter's reliance on the truth of the representation;

(8) His right to rely upon it;

(9) His consequent damage.

Sigman v. Stevens-Norton, Inc., 70 Wash.2d 915, 920, 425 P.2d 891 (1967).

¶63 Plaintiffs cite to nothing in the record to support their claim of fraud or attempt to address how they relied on any facts represented by Bradshaw or Wilson to their detriment.

(iii) RCW 4.105.010(3)(a)(x)

¶64 The last exception asserted by plaintiffs is RCW 4.105.010(3)(x) that provides for a cause of action "brought under Title 49 RCW." Plaintiffs merely state that "M.G. alleged violations under RCW 49.60 Washington's Law Against Discrimination ('WLAD')" and cite to their complaint. Plaintiffs simply list a cause of action in their first amended complaint without citing to any asserted facts in the record to show how Bradshaw or Wilson committed a WLAD violation. In fact, the claim of a WLAD violation in the complaint lists BISD, HOSA and Does #1-30, not Bradshaw or Wilson.

¶65 In summation, plaintiffs fail to satisfy RAP 10.3(a)(6) (requiring an appellant's brief to provide "argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record"); see also Jackson v. Quality Loan Serv. Corp., 186 Wash. App. 838, 845, 347 P.3d 487 (2015). It follows that plaintiffs have not met their burden to demonstrate that any exceptions under RCW 4.105.010 apply to establish that their claims against Bradshaw and Wilson fall outside the reaches of UPEPA.

B. Prima Facie Case

¶66 Under the third step of the UPEPA analysis, dismissal with prejudice of a cause of action or part of a cause of action must occur if either:

(i) The responding party fails to establish a prima facie case as to each essential element of the cause of action; or

(ii) The moving party establishes that:

(A) The responding party failed to state a cause of action upon which relief can be granted; or

(B) There is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.

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RCW 4.105.060(1)(c). Plaintiffs make no attempt to substantively argue step three of the UPEPA analysis. See RAP 10.3(a)(6) (requiring appellant's brief to include "argument in support of the issues presented for review"); see also Smith v. King, 106 Wash.2d 443, 451-52, 722 P.2d 796 (1986) (assignment of error is waived if unsupported by argument or authority).

¶67 In conclusion, we hold that plaintiffs failed to establish that the trial court erred in dismissing the claims against Bradshaw and Wilson under UPEPA.24 We affirm.

fn24. We need not address plaintiffs' challenge of the award of attorney fees under RCW 4.105.010(3) because their only challenge was based on their argument that the UPEPA motion should not have been granted.

¶68 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublish opinions. See RCW 2.06.040.

Unpublished Text Follows

___ Omitted for brevity ___

End of Unpublished Text

WE CONCUR:

Bowman, J.

Hazelrigg, J.

M.G. v. Bainbridge Island School Distr. #303, 2025 WL 892770 (Wash.App., March 24, 2025).

Related Article: None.

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