DWYER, J.
¶ 1 Volcan Group, Inc., d/b/a NetLogix and Scott Akrie, chief operating officer of NetLogix, (collectively "Akrie") sued James Grant, Cassandra Kennan, Davis Wright Tremaine, LLP, Seattle Deposition Reporters, and T-Mobile (collectively "Grant") for violation of the privacy act.
¶ 2 Scott Akrie is the chief operating officer of NetLogix, a company located in San Diego, California. NetLogix contracted with T-Mobile to provide "engineering, technical and auditing services to upgrade T-Mobile facilities in connection with its new 3G network." In 2010, NetLogix sued T-Mobile in the United States District Court, Western District of Washington, claiming breach of contract. James Grant
¶ 3 On August 25, 2011, Dillon telephoned DWT offices to speak with James Grant and Kennan. James Grant told Dillon that his "assistant" Thad was present and would be taking notes during the call. In actuality, Thad Byrd was a certified court reporter employed by Seattle Deposition Reporters, and was transcribing the telephone call. During the call, Dillon revealed that NetLogix had destroyed evidence favorable to T-Mobile in the contract dispute. Dillon telephoned DWT offices again on September 16 to speak with James Grant and Kennan. As before, an employee of Seattle Deposition Reporters transcribed this telephone call.
¶ 4 Thereafter, in the federal action, T-Mobile filed a motion to dismiss for spoliation of evidence based on the statements provided by Dillon in the August 25 and September 16 telephone calls. In support of the motion, T-Mobile filed portions of the transcripts of Dillon's telephone calls.
¶ 5 Akrie then brought this action in King County Superior Court asserting that the recording and dissemination of Dillon's telephone conversations in federal court violated Washington's privacy act. Akrie asserted that the recording and dissemination of Dillon's telephone conversations caused injury to its "business, person and reputation" and sought damages for the alleged violations. Grant filed a motion to strike pursuant to Washington's anti-SLAPP statute and a motion to dismiss pursuant to CR 12(b)(6), alleging that Akrie lacked standing to bring the privacy act claim.
¶ 6 The trial court held that because Akrie's action involved the submission of evidence of alleged spoliation in a federal court action, Grant had established by a preponderance of the evidence that the claim was based on an action involving public participation and petition. The trial court further held that, for three reasons, Akrie failed to establish, by clear and convincing evidence, a probability of prevailing on the merits.
¶ 7 Akrie appealed the dismissal of its suit. Grant cross-appealed, asserting that each named defendant was entitled to an award of $10,000, for a total award of $50,000 in statutory damages. Akrie subsequently abandoned its appeal and this court redesignated Grant as Appellants.
¶ 8 Grant contends that the trial court erred by awarding only $10,000 in statutory damages.
¶ 9 We review issues of statutory interpretation de novo. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).
TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010).
¶ 10 In 2010, the legislature amended the anti-SLAPP statute by enacting RCW 4.24.525 to address "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Laws of 2010, ch. 118, § 1(a). The amended anti-SLAPP statute provides the following remedy:
¶ 11 We have never before interpreted RCW 4.24.525(6)(a). Nonetheless, the language of the statute is plain and unambiguous. "In the absence of a specific statutory definition, words in a statute are given their common law or ordinary meaning." State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997); accord Hunter v. Univ. of Wash., 101 Wn.App. 283, 290-91, 2 P.3d 1022 (2000). When the word "shall" appears in a statute, it is "presumptively imperative and operates to create a duty." Erection Co. v. Dep't of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993) (citing Crown Cascade, Inc. v. O'Neal, 100 Wn.2d 256, 261, 668 P.2d 585 (1983); State v. Q.D., 102 Wn.2d 19, 29, 685 P.2d 557 (1984)). "The word `shall' in a statute thus imposes a mandatory requirement unless a contrary legislative intent is apparent." Erection Co., 121 Wash.2d at 518, 852 P.2d 288 (citing State v. Bryan, 93 Wn.2d 177, 183, 606 P.2d 1228 (1980)).
¶ 12 No contrary legislative intent is apparent in the anti-SLAPP statute. In amending the anti-SLAPP statute, the legislature stated, "This act shall be applied and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts." Laws of 2010, ch. 118, § 3. Moreover, the legislature had previously adopted a similar view when it added a $10,000 statutory damage award to the original anti-SLAPP statute — testimony in support of that amendment advanced the view that "[t]he award of costs, reasonable attorneys' fees, and expenses can prevent voices from being silenced." S.B. REP. on H.B. 2699, 57th Leg., Reg. Sess. (Wash.2002). These statements support, rather than contradict, a reading of the statute which makes the statutory damage award mandatory. Therefore, the word "shall" in the remedy provision of the anti-SLAPP statute operates to create a duty upon the trial court to award $10,000 in statutory damages to "a person on whose behalf the motion ... is filed," who thereafter prevails on that motion. Thus, all persons who prevail on an anti-SLAPP motion filed on their behalf are entitled to the statutory damage award.
¶ 13 Here, the five defendants collectively filed an anti-SLAPP motion seeking dismissal
¶ 14 Akrie avers that the trial court did not err because the trial court granted the anti-SLAPP motion only as to T-Mobile's claim and dismissed the other defendants' claims under CR 12(b)(6). Akrie's contention is not supported by the record. In both its oral ruling and its written order, the trial court stated that the "defendants" established that Akrie's suit was based on their actions involving public participation and petition. The trial court's order states, "Defendants' motion is granted in its entirety." At no point did the trial court differentiate between the defendants. Thus, the trial court erred by not awarding $10,000 to each defendant. On remand, the trial court should enter judgment in favor of Grant in an amount that includes statutory damages of $50,000.
¶ 15 Reversed.
We concur: SPEARMAN, A.C.J., and LAU, J.
Generally, the first amendment right to petition and the first amendment right of free speech are subject to the same constitutional analysis. In re Marriage of Meredith, 148 Wn.App. 887, 896, 201 P.3d 1056 (2009); see also Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 789 (6th Cir.2007); Gunter v. Morrison, 497 F.3d 868, 872 (8th Cir.2007). Baseless or frivolous litigation is not protected by the First Amendment. Bill Johnson's Rests., Inc. v. Nat'l Labor Relations Bd., 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); Reid v. Dalton, 124 Wn.App. 113, 126, 100 P.3d 349 (2004). However, the anti-SLAPP statute does not sanction and frustrate only claims that are frivolous. Rather, the statute mandates dismissal of all claims based on protected activity where the plaintiff cannot prove by clear and convincing evidence a probability of prevailing on the merits. RCW 4.24.525(4)(b). "A frivolous action is one that cannot be supported by any rational argument on the law or facts." Rhinehart v. Seattle Times, 59 Wn.App. 332, 340, 798 P.2d 1155 (1990). "But the fact that the complaint ultimately does not prevail is not dispositive" of frivolity. Hous. Auth. of City of Everett v. Kirby, 154 Wn.App. 842, 859, 226 P.3d 222 (2010). rev'd on other grounds by Hous. Auth. of City of Seattle v. Bin, 163 Wn.App. 367, 260 P.3d 900 (2011). A claim may be dismissed on summary judgment without being frivolous. See e.g., Holland v. City of Tacoma, 90 Wn.App. 533, 546, 954 P.2d 290 (1998). As the second step of the anti-SLAPP analysis is akin to summary judgment, Gerbosi v. Gaims, Weil, West & Epstein, LLP, 193 Cal.App.4th 435, 444, 122 Cal.Rptr.3d 73 (Cal.App. 2 Dist.2001), a claim may thus also be dismissed on an anti-SLAPP motion without being frivolous. Indeed, analyzing whether the burden to prove the claim by "clear and convincing evidence" has been met is vastly different from an inquiry into frivolity. Accordingly, it is clear that the anti-SLAPP statute sweeps into its reach constitutionally protected first amendment activity.
The anti-SLAPP statute exacts a content-based restriction on the right to petition, as it imposes a $10,000 statutory damage award only on those suits that are "based on an action involving public participation and petition." RCW 4.24.525(4)(a). As the first amendment right to petition and the first amendment right of free speech are generally subject to the same constitutional analysis, the standards applicable to regulation of content-based speech are equally applicable to the right to petition. See Meredith, 148 Wash.App. at 896, 201 P.3d 1056; see also Campbell, 509 F.3d at 789; Gunter, 497 F.3d at 872. "[A]ny statute that purports to regulate such [protected first amendment activity] based on its content is subject to strict scrutiny." Rickert v. Pub. Disclosure Comm'n, 161 Wn.2d 843, 848, 168 P.3d 826 (2007). Under the strict scrutiny standard, a statute that burdens the right to petition is only valid if it "`is necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end.'" Rickert, 161 Wash.2d at 843, 168 P.3d 826 (internal quotation marks omitted) (quoting Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)); see also In re R.H., 170 Cal.App.4th 678, 702, 88 Cal.Rptr.3d 650 (Cal.App. 5 Dist., 2009) ("No doubt, any impairment of the right to petition must be narrowly drawn."). Whether and at what point a cumulative award of statutory damages that is vastly out of proportion to the relief sought in the underlying lawsuit ceases to be narrowly tailored to achieving the compelling state interests furthered by the anti-SLAPP statute is a question that we leave for another day.