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WA Supreme Court: Failure to Explain Exemption Under PRA is Aggravating Factor

September 16, 2010

 

Sanders v. State

Justice Sanders, who obviously didn’t participate in this (especially after the Yousoufian debacle), brought a PRA request. In their response, they listed exemptions, but failed to provide an explanation of how the exemption applied under the Public Records Act. A twist to this involves Sanders’ counsel, who accepted a pile the AGs office compiled for a wider PRA request. The court identified a few issues. Luckily, the issues breakdown included where the law was going as well. Because its such a monster, I will provide only the brief issue statement and brief conclusion. If you want to know more, you should contact PRA super-guru David Norman, who probably already has this opinion memorized (side note…no way in hell am I taking the time to format this cut and paste job…I do have cases to work on, you know!):

1. Is there a genuine issue of material fact precluding summary judgment as to
 



whether Justice Sanders's attorney agreed to accept the production given to



BIAW as full satisfaction of his PRA request?



Conclusion:  Yes.  The trial court is affirmed on different grounds.  See infra



at pp. 12-14.



2. Did AGO's response violate the PRA if it did not contain a brief explanation



of how its claimed exemptions applied to the records withheld, and if so,



what is the remedy for such a violation?



Conclusion:  Yes.  The remedy is consideration when awarding costs and fees



or when imposing penalties for failure to produce nonexempt records.  The



trial court is affirmed. See infra at pp. 14-18.



3. Did AGO's subsequent production of the SPDs waive objection to or admit



7 The legal issues in this case are numerous, as a consequence of which the
opinion is lengthy.  For ease of reading, we indicate our disposition on each issue and
cross-reference our analysis of it.



-9-



Sanders (Richard B.) v. State, 82849-1



the proposition that the SPDs were nonexempt?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 18-20.



4. For each document withheld, was the failure to produce that document a PRA



violation, i.e., was each document exempt from production?



a. Did the trial judge abuse its discretion  by              considering the State's



Appendix A?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 20-22.



b. Does the attorney-client privilege protect every confidential



communication between lawyers and clients,  once the attorney-client



relationship exists?



Conclusion:  We assume, without deciding, that the privilege protects only



legal advice, and that the trial court interpreted the privilege too broadly.



See infra at pp. 22-23.



c. Did the trial court err in relying on the  "common interest" doctrine,



allowing AGO to claim exemptions for documents it had shared with other



agencies?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 24-25.



d. Did the trial court misinterpret the law when applying the work product



privilege?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 25-29.



e. Did the court err in determining that some documents were exempt?



Conclusion:     Yes, four documents were nonexempt.  The trial court is



-10-



Sanders (Richard B.) v. State, 82849-1



reversed as to these four documents and affirmed as to all others.  See



infra at pp. 29-31.



5. Did the trial court abuse its discretion in setting AGO's penalty?



a. Did the trial court abuse its discretion in assessing the "brief explanation"



penalty as a $3       per  day aggravator to the penalty for wrongfully



withholding documents?



Conclusion:  No.  The trial court is affirmed.  See infra at pp.32-34.



b. Did the trial court abuse its discretion in setting the penalty for failure to



produce nonexempt documents at the bottom of the statutory range?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 34-35.



c. Did the trial court err when, for the purposes of calculating the penalty, it



included the number of days the court took to adjudicate the case?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 35-37.



d. Did the court err in treating the 6-9 wrongfully withheld documents as two



"records" for the purposes of penalties?



Conclusion: No.  The trial court is affirmed.  See infra at p. 37.



e. What penalty applies to the documents deemed nonexempt on appeal?



Conclusion:  The trial court's penalty is appropriate.  See infra at p. 38.



6. Did the trial court abuse its discretion in awarding Justice Sanders 37.5



percent of his fees and costs and in refusing to multiply his fees by 1.5?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 38-44.



7. Is Justice Sanders entitled to fees and costs on appeal?



-11-



Sanders (Richard B.) v. State, 82849-1



Conclusion:  Yes, to some extent.  See infra at pp. 44-46.

 

 

 

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Posted in Justice Debra Stephens - Draft Majority, Justice Jim Johnson - Did Not Participate, Justice Richard Sanders - Did Not Participate, Justice Tom Chambers - Did Not Participate, Open Government, Pro-Tem Justice - Concur in Majority, Public Disclosure Act, Public Records Act, WA Supreme Court | Leave a Comment »

WA Supreme Court: Yousoufian Round 2 – $45 Per Day Penalty Appropriate for Public Records Violation (Guest Blogger: David Norman)

April 27, 2010

Yousoufian v. Sims

As an added feature to the Amateur Law Professor, we have decided to take the guest-blogger route. Yes, its true. We here at The Amateur Law Professor don’t ACTUALLY know everything. We just try our best. When it comes to the Public Records Act, yours truly, while well versed in the act and having written extensively on it, knows someone who is even more familiar. David M. Norman is an associate at Allied Law Group, and has authored several supreme court, Court of Appeals, and trial briefs on the subject. David and Allied represented numerous newspapers, broadcasters, related trade associations, and non-partisan open government organizations as Amici in Yousoufian v. Office of Ron Sims. Allied Law Group is also active in Lawyers for Government Accountability, a round table of pro-open government attorneys (of which I am also a member).

The latest Yousoufian opinion establishes the standard by which a trial court determines penalties under the Public Records Act, ch. 42.56 RCW. The case began in 1997, when Armen Yousoufian made a PRA request to King County for public records related to a then-upcoming referendum that would ask voters whether the public should finance the construction of what is now Qwest Field. The unchallenged findings of fact established that, in handling Mr. Yousoufian’s request, King County had failed to meet its obligations under the PRA in almost every conceivable way. For example,

“[T]he county told Yousoufian that it had produced all the requested documents, when in fact it had not. The county also told Yousoufian that archives were being searched and records compiled, when that was not correct… [T]he county told Yousoufian that information was located elsewhere, when in fact that was not the case.”

2010 WL 1225083 *4. Despite the trial court finding that King County was “negligent” in responding to Mr. Yousoufian’s request “at every step of the way”, it awarded the minimum amount of $5 per day within the PRA’s $5 to $100 per day mandatory penalty entitled to a prevailing requestor. Id.

Eventually, after remand was ordered by the supreme court in 2004, the trial court increased the penalty amount to $15 per day, which totaled $123,780. Mr. Yousoufian again appealed the amount, and the supreme court again agreed, and remanded back to the trial court to recalculate the penalty amount in 2007. King County moved for discretionary review after the 2007 decision, and its motion was granted in 2008. In 2009, the supreme court issued an opinion in January that was later recalled. Oral argument was held yet again after the recall, and the Court issued likely its final opinion in the case in March of 2010.

The court’s opinion focuses on the second aspect of the two-part procedure for determining the appropriate penalty against an agency in a PRA case. Step one is to determine the number of days the requestor was denied access to their requested records. The number of denial days is largely a factual determination that is rarely ever at issue, and at this point was not at issue in Yousoufian. Step two is to determine the appropriate amount of penalty to be awarded to a prevailing requestor on the PRA’s mandatory $5 to $100 per day continuum.

In making its determination, the supreme court first recognized that a trial court must consider the entirety of the PRA’s penalty range, but at the same time concluded that it would be inappropriate for it mandate that a trial court start in the middle of the range—thus rejecting arguments raised by amici that a trial court should begin its penalty amount determination at $52.50 and then adjust upwards or downwards according to the unique facts of a given case. Id. at *10.
Ultimately, the court adopted, as it had before, a multi-factor, highly-discretionary approach, comprised of a series of mitigating and aggravating non-exclusive factors that a trial court may consider in determining a penalty award. The court was particularly careful in emphasizing a trial court’s discretion on the issue, and pointed out that the following list of factors “are offered only as guidance” and also that “no one factor should control.” Id. at *11.

The mitigating factors—i.e., those that would tend to lower the penalty amount—are:

• A lack of clarify in the PRA request;
• The agency’s prompt response or legitimate follow-up inquiry for clarification;
• The agency’s good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions;
• Proper training and supervision of the agency’s personnel;
• The reasonableness of any explanation for noncompliance by the agency;
• The helpfulness of the agency to the requestor; and
• The existence of agency systems to track and retrieve public records.

Id. at *10.

The aggravating factors—i.e., those would tend to increase the penalty amount—are:

• A delayed response by the agency, especially in circumstances making time of the essence;
• Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions;
• Lack of proper training and supervision of the agency’s personnel;
• Unreasonableness of any explanation for noncompliance by the agency;
• Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency;
• Agency dishonesty;
• The public importance of the Issue to which the request is related, where the importance was foreseeable to the agency;
• Any actual personal economic loss to the requestor resulting from the agency’s misconduct, where the loss was foreseeable to the agency;
• A penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.

Id. at *11.

Instead of risking yet another trip through the trial court and the court of appeals, the supreme court applied the above factors to conclude that a $45 per day penalty against King County was appropriate in Yousoufian. However, in doing so, the Court emphasized that an appellate court determining the penalty should definitely be the exception to the rule, and that if not for the lengthy and tortured procedural history of the case, it would have normally remanded back to the trial court. Id.

From the perspective of a requestor under the PRA, the latest Yousoufian opinion is helpful but still problematic for several reasons. The opinion is helpful in that it distills several of the factors used by prior courts in determining an appropriate penalty amount, and now gives express approval by the state’s highest court to certain factors that a trial court may consider. There is some ambiguity in the court’s adoption of a “factor” test. However, aspects of the opinion suggest that some factors are in reality closer to elements. This appears to be particularly true as to the court’s discussion of the “deterrence” factor, where the court seems to say that a trial court must consider how the penalty it sets will deter future violations of the PRA – at least in cases with factors similar to Yousoufian.

The main problem with the opinion is that the court’s conclusion that $45 a day is an appropriate penalty for the actions of King County, which fell just short of willful and malicious non-compliance with the records request, is troubling. Arguably, the opinion precludes a requestor from receiving a penalty more than $45 in all but the most egregious – if not unprecedented — scenarios of agency intransigence [ed. - Dave's vocabulary is off the charts. Intransigence simply means failing to back off of an extreme position.]

Moreover, the penalty amount set by the court in Yousoufian seems to be at odds with the court’s own instruction to trial courts that they must consider the entire penalty range. Despite it’s own precedent, the court did not address the vast majority of the factors it delineated and did not illustrate or apply mitigating factors that could justify a penalty falling closer to the minimum than the maximum amount against the most populous county in the state. In this regard, the court’s conclusion as to the appropriate amount seems to contravene the explicit purpose and policy of the PRA to liberally construe all provisions in favor of disclosure, compensate members of the public who are compelled to hire counsel to access non-exempt public records, and to punish agencies that violate the PRA.

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Posted in Guest Blogger, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Draft Majority, Justice Richard Sanders - Did Not Participate, Justice Sue Owens - Draft Dissent, Open Government, Pro Tem Justice - Concur in Dissent, Pro-Tem Justice - Concur in Majority, Public Disclosure Act, Public Records Act, WA Supreme Court, Washington Legal News | Leave a Comment »

WA Supreme Court: RVs in Mobile Home Parks Outside Ambit of MHLTA, Local Ordinances May Apply

April 21, 2010

Lawson v. City of Pasco

Pasco banned RVs from Mobile Home Parks. Lawson, of course, owned an RV, or else he wouldn’t be here. He argued it was protected by the Mobile Home Landlord Tenant Act. Unfortunately, the MHLTA actually contemplates local regulation, thus the field is not preempted. There is no conflict, because the MHLTA deals with mobile homes, manufactured homes, and park models (“a recreational vehicle intended for permanent or semi permanent installation and . . . used as a primary residence.” Since the statute doesn’t address the allowance or disallowance of straight RVs, there is no conflict preemption.

The local ordinance stands.

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Posted in Chief Justice Barbara Madsen - Draft Concurrence, Justice Charles Johnson - Draft Majority, Justice Debra Stephens - Did Not Participate, Justice Mary Fairhurst - Draft Dissent, Justice Richard Sanders - Draft Dissent, Land Use, Landlort Tenant, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »

WA Supreme Court: Negligence After Assault not Subject to Assault Exclusion in Duty to Defend

April 21, 2010

Am. Best Food, Inc. v. Alea London, Ltd.

If you allege in your complaint that post-assault negligence exacerbated earlier injuries from an assault, this does not trigger an assault-related exclusion in your policy.

In this case, an assault happened at the club (think 50-cent…this guy was shot nine times). The club then dumped him on the street (later negligence):

Alea’s interpretation of Washington law fails to persuade us that its interpretation of the contract is correct. We find persuasive precedent from other states that have found claims that the insured acted negligently after an excluded event are covered. Further, a balanced analysis of the case law should have revealed at least a legal ambiguity as to the application of an “assault and battery” clause with regard to postassault negligence at the time Café Arizona sought the protection of its insurer, and ambiguities in insurance policies are resolved in favor of the insured. Mut. of Enumclaw Ins. Co. v. Jerome, 122 Wn.2d 157, 161, 856 P.2d 1095 (1993) (citing Rones v. Safeco Ins. Co. of Am., 119 Wn.2d 650, 835 P.2d 1036 (1992)). Because such ambiguity is to be resolved in favor of the insured, we hold that Alea’s policy afforded coverage for postassault negligence to the extent it caused or enhanced Dorsey’s injuries.

As to whether this amounted to breach as a matter of law:

In order to put the incentives in the right place and because it is often impossible for an insured to prove damages for wrongful refusal to defend, we have established a remedy that does not require it. See, e.g., Truck Ins. Exch., 147 Wn.2d at 765; Kirk, 134 Wn.2d at 560; Butler, 118 Wn.2d at 393-94. It cannot be said that the insurer did not put its own interest ahead of its insured when it denied a defense based on an arguable legal interpretation of its own policy. Alea failed to follow well established Washington State law giving the insured the benefit of any doubt as to the duty to defend and failed to avail itself of legal options such as proceeding under a reservation of rights or seeking declaratory relief. Alea’s failure to defend based upon a questionable interpretation of law was unreasonable and Alea acted in bad faith as a matter of law.

Oops, guess you should have defended!

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Posted in Duty to Defend, Insurance, Insurance Policy Interpretation, Justice Debra Stephens - Did Not Participate, Justice Sue Owens - Draft Dissent in Part, Justice Tom Chambers - Draft Majority, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »

WA Supreme Court: Minor Plea can be Withdrawn

January 28, 2010

State v. A.N.J.

ANJ (12 years old) pleaded guilty to child molestation. Almost immediately, and after learning the consequences of a guilty plea in this situation, he tried to withdraw his plea. This case, essentially, involves an admonishment of the Public Defender system.

ANJ was accused of molesting a 5-year-old. The trial court appointed a public defender. Under the contract, the defender was paid a flat rate of $162, but expert fees had to be paid for by the defender. I don’t know how often you hire experts, but it is not uncommon for the retainer to be $4,000. Given the number of cases a public defender can handle, you can see the issue here. In fact, “Under recent revisions of the rules governing attorneys’ professional conduct, it is now unethical for an attorney to sign a public defender contract to deliver public defense if the contract requires the attorney to pay for conflict counsel, expert witness, or investigative costs out of a lump fee.  RPC 1.8(m).”

In a case of such import, the overloaded PD didn’t do an investigation, met with the client only briefly, and never contacted the witnesses (only trying once). There were no requests for discovery and no motions filed.

When the state offered a reduced charge under SSODA, the PD only briefly explained the implications of the plea, saying he would have to register and couldn’t own a firearm. He told the family that the charge could be removed at 18 or 21 (sex offenses don’t roll like that, they stick):

[The Public Defender] also initially submitted a declaration in support of A.N.J.’s motion. He acknowledged he had done no investigation, that he had not read the plea agreement to A.N.J. or had him do so, and that he had told A.N.J.’s parents that he “believed” the convictions could be removed from A.N.J.’s record when he turned 18 or 21.

The court reversed on the misinformation to the client, which is ineffective assistance, as well as the failure to inform ANJ of the elements (specifically, sexual gratification, which, given the age of all involved, could very well be missing).

Finally, of particular note on the ineffective assistance:

However, we hold that if a public defender contract requires the defender to pay investigative, expert, and conflict counsel fees out of the defender’s fee, the contract may be considered as evidence of ineffective assistance of counsel. We further hold that depending on the nature of the charge and the issues presented, effective assistance of counsel may require the assistance of expert witnesses to test and evaluate the evidence against a defendant.

Posted in Chief Justice Barbara Madsen - Concur in Majority, Criminal Law, Ineffective Assistance of Counsel, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Draft Concurrence, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Concurrence, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Majority, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »

Washington Supreme Court: State has to offer services before terminating

January 22, 2010

Dependency of C.S.

C.S.’s mother had drug problems. She fixed them. The state still terminated the parental relationship on the basis that, while she had recovered, she was unable to care for his ADHD needs. Unfortunately, the state did not offer services to help her with that, a pre-termination requirement under RCW 13.34.190.

Posted in Chief Justice Barbara Madsen - Concur in Majority, Dependancy Gaurdianship Proceedings, Family Law, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »

WA Supreme Court says Stepparents Can’t Sue for Negligent DSHS Investigation

December 18, 2009

Ducote v. Dep’t of Soc. & Health Servs.

Ducote’s step-daughter alleged he peeked at her through the window, made her sit in his lap, touched her buttocks, walked in on her in the bathroom, and hit her little brother. She was placed in emergency care. During the 6-month investigation, the step-daughter was out of the house, and Ducote was booted from the house and barred from seeing any of his stepchildren. The allegations were returned as unfounded.

Ducote sued for Negligent Investigation. However, it is not an action that existed at common law. The statute itself doesn’t define who can sue, but case law under the Bennet test has decided the duty is owed to parents, custodians, guardians, and children. Though Zellmer did apply the same protections of parental immunity for step parents, the Court distinguished based on the fact that Zellmer involved a cause of action at common law, and this case did not.

Seems to me to be a distinction without a difference. The dissent things so as well.

Posted in Chief Justice Barbara Madsen - Concur in Majority, Dependancy Gaurdianship Proceedings, Family Law, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Dissent, Justice Gerry Alexander - Did Not Participate, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Draft Majority, Justice Richard Sanders - Concur in Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Dissent, Pro-Tem Justice - Concur in Majority, Tort, WA Supreme Court | Leave a Comment »

WA Legal Roundup – Magaña v. Hyundai Edition

November 25, 2009

Over ten years ago, a small outfit by the name of Stritmatter Kessler Whelan Coluccio took on the case of Jesse Magaña, who was thrown out the rear of his Hyundai when the seat back failed, rendering the seat belt useless. The case went to trial, where Hyundai fought discovery tooth and nail. Even though Magaña had asked for information regarding other similar incidents, none were turned over. Magaña obtained a verdict against Hyundai, which Hyundai appealed based on failure to instruct as to testimony of an expert which was stricken. The case went back down for a new trial, and Magaña renewed his discovery requests, and had to file a motion to compel. On the eve of trial, Hyundai produced what it should have years ago. By that time, after investigation, it was learned that much of the evidence related to those OSIs were stale, lost, forgotten, or destroyed. The trial court held a hearing on the evidentiary issues and, after the hearing, entered default against Hyundai for $8 Million (the verdict in the original trial).

Hyundai appealed, and the Court of Appeals reversed. The COA held that time to investigate would have been enough.

The supreme court, in a manner not seen since Fisons, strongly admonished the conduct of Hyundai, lambasted the court of appeals on its substitution of judgment, and affirmed the trial court. The entire majority is worth the read, but here are the highlights:

     Trial courts need not tolerate deliberate and willful discovery abuse. Given the unique facts and circumstances of this case, we hold that the trial court appropriately diagnosed Hyundai’s willful efforts to frustrate and undermine truthful pretrial discovery efforts by striking its pleadings and rendering an $8,000,000 default judgment plus reasonable attorney fees. This result appropriately compensates the other party, punishes Hyundai, and hopefully educates and deters others so inclined. We determine the trial court acted well within its discretion and reverse the Court of Appeals, which improvidently reversed the trial court.

. . .

     “There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976). However since the trial court is in the best position to decide an issue, deference should normally be given to the trial court’s decision. Fisons, 122 Wn.2d at 339. A trial court’s reasons for imposing discovery sanctions should “be clearly stated on the record so that meaningful review can be had on appeal.” Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). If a trial court’s findings of fact are clearly unsupported by the record, then an appellate court will find that the trial court abused its discretion. Mayer, 156 Wn.2d at 684. An appellate court can disturb a trial court’s sanction only if it is clearly unsupported by the record. See Ermine v. City of Spokane, 143 Wn.2d 636, 650, 23 P.3d 492 (2001) (noting that a reasonable difference of opinion does not amount to abuse of discretion).

. . .

     A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai’s counsel told the trial court that in response to request for production 20, Hyundai’s search “was limited to the records of the Hyundai legal department” and that “no effort was made to search beyond the legal department, as this would have taken an extensive computer search.” CP at 5319. As the trial court correctly found, “[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. This would be the equivalent of limiting the responses in Smith[, 133 Wn. App. 306,] to a search for chemical tests which were on record in the corporate legal office, without disclosing that the search was so limited.” CP at 5319-20. The trial court went on to say, “the legal department at Hyundai worked closely with the Consumer Affairs Department with respect to customer complaints and claims, including product liability claims. The vehicle owners’ manual directed customers to call the Consumer Affairs number.” CP at 5320. Hyundai had the obligation to diligently respond to Magaña’s discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found “Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff’s requests. Hyundai is a sophisticated multinational corporation, experienced in litigation.” Id. Hyundai willfully and deliberately failed to comply with Magaña’s discovery requests since Magaña’s initial requests in 2000 and continued to do so.

. . .

     The Court of Appeals concluded, “[i]f [Magaña] tries to find experts and they are unable to analyze the evidence and would have been able to analyze it if it had been provided earlier, then and only then could irrevocable prejudice be shown that may warrant the trial court’s usurping of the right to trial and directing a verdict in Magaña’s favor.” Id. at 520. But the problem is Magaña is unable to find the evidence because others who had accidents involving Hyundai vehicles are no longer living, have disappeared, or have discarded their evidence. The evidence that could be analyzed by experts has been lost because of the time that has elapsed between when Hyundai should have disclosed the information and the time it was compelled to do so — more than five years late.

     Magaña’s ability to prepare for trial was substantially prejudiced because of Hyundai’s egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court’s, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.

. . .

     In addressing whether a monetary fine would suffice, the trial court found it would be difficult to know what amount would be suitable since “Hyundai is a multi-billion dollar corporation.” CP at 5332-33. It also found a monetary sanction would not address the prejudice to Magaña or to the judicial system. Since there were no counterclaims in this case, the trial court could not strike those as a remedy. The trial court also denied a continuance, which Hyundai proposed. The trial court held that sanctions for discovery violations should not reward the party who has committed the violations and that granting a continuance would only exacerbate the situation. The Court of Appeals disagreed claiming, “[a]llowing Magaña to investigate the incidents of seat failure will shed light on whether Hyundai manufactured and sold a defective product.” Magaña II, 141 Wn. App. at 519. But as aforementioned, time will not allow Magaña to investigate other incidents because much of that evidence is lost or stale.

. . .

     Appellate courts may not substitute their discretion for that vested in the trial court, absent abuse. Where there is no abuse of trial court discretion, we may not reverse simply because there are other possible ways the trial court could have possibly exercised it. The trial court properly imposed a default judgment against Hyundai for its willful and deliberate failure to comply with discovery. Accordingly we reverse the Court of Appeals and award Magaña reasonable attorney fees and expenses for responding to this appeal.

Posted in Attorney's Fees and Costs, Chief Justice Barbara Madsen - Concur in Majority, Discovery, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Dissent, Justice Jim Johnson - Draft Dissent, Justice Mary Fairhurst - Did Not Participate, Justice Richard Sanders - Draft Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Pro-Tem Justice - Concur in Majority, Stritmatter Kessler Whelan Coluccio, Tort, WA Supreme Court, Washington Legal News | 2 Comments »

WA Legal Roundup – Washington State Supreme Court

October 29, 2009

PRP of Duncan

So Duncan likes to diddle kids and on top of that has fantasies of eating them. He was 16 when confined, and the state filed an SVP petition. For whatever reason, it took nine years to get to trial (many many many waivers). The psych evaluation was a little outdated, but Duncan refused to submit to another one. The court allowed it in, and made various other evidentiary rulings. You know how evidentiary rulings go, and here is no different. Not the best basis of a PRP.

Abuse of discretion is hard to get past.

Posted in Chief Justice Barbara Madsen - Concur in Majority, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Draft Dissent, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Majority, Pro-Tem Justice - Concur in Majority, Sexually Violent Predator Law, WA Supreme Court | Leave a Comment »

WA Legal Roundup – Washington State Supreme Court

October 15, 2009

City of Federal Way v. Koenig

This is a fairly simple case. Courts are not agencies under the PRA. Thus, a public records request for court documents may be denied, as court records do not fall within the ambit of the PRA. This is keeping in line with the previous decided Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

I feel bad that this was so short. To make up for it, I’ll give you some non-sequitur humor: A bear eating a dolphin.

Painting-dolphin vs bear

(Art by Jeremy Scheuch)

Posted in Chief Justice Barbara Madsen - Did Not Participate, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Draft Dissent, Justice Gerry Alexander - Concur in Dissent, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Did Not Participate, Justice Sue Owens - Draft Majority, Justice Tom Chambers - Concur in Majority, Open Government, Pro Tem Justice - Draft Concurrence, Pro-Tem Justice - Concur in Majority, Public Disclosure Act, WA Supreme Court | Leave a Comment »

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