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E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON November 07 2012 10:25 AM

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RESPONSE TO MOTION TO STRIKE Page - 1

The Honorable Judge Johnson

KEVIN STOCK COUNTY CLERK

NO: 12-2-12552-5

IN THE SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY CITY OF PACIFIC, Petitioner, vs. HERBERT Cy SUN, Respondent. CY SUNS RESPONSE TO PETITIONERS MOTION TO STRIKE EXHIBITS IN RESPONSE TO MOTION FOR RECONSIDERATION OF DISQUALIFICATION AND MOTION TO APPOINT STAND-BY COUNSEL NO. 12-2-12552-5

I. RESPONSE TO PETITIONERS REQUESTED RELIEF Cy Sun, by and through his attorneys, Van Siclen, Stocks and Firkins, and responds to the Citys motion to strike exhibits from Mayor Suns motion for reconsideration and motion for the appointment of stand-by counsel. Exhibits B and C to the Declaration of Tyler Firkins in Support of the Motion to Reconsider and Motion to Appoint Stand-by Counsel are not offered for the truth of the matter asserted and therefore not inadmissible hearsay. The Declaration of Professor Strait does not constitute new evidence that was available at the time of the underlying motion. This response is based on the cited authorities, as well as the records and files herein and attached.

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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II. RESPONSE STATEMENT OF ISSUES 1. Whether the Court should strike Exhibit B to the Declaration of Tyler Firkins regarding media articles where these articles are not offered for the truth of the matter asserted and the statements constitute statements of a party opponent? No. 2. Whether the Court should strike Exhibit C to the Declaration of Tyler Firkins regarding the transcript of the City Council meeting where it is not offered for the truth of the matter asserted and can readily be authenticated? No. 3. Whether the Court should strike the Declaration of Professor John Strait where it does not constitute new evidence that could have been produced at the time of the underlying motion? No. III. ADDITIONAL EVIDENCE RELIED UPON Declaration of Tyler K. Firkins in Support of Response to Petitioners Motion to Strike Exhibits dated November 6, 2012. Declaration of Robert Rakos dated November 7, 2012. IV. AUTHORITY AND ARGUMENT Petitioner has moved to strike exhibits and the Declaration of Professor John Strait that were attached to Cy Suns Motion for Reconsideration of Disqualification and Motion to Appoint Stand-by Counsel. To be clear, Mayor Sun has not sought an evidentiary hearing on these issues. Rather, Mayor Sun has previously moved this Court for an order disqualifying Luce Kenney and Associates (now on reconsideration) and an order directing the City to appoint stand-by counsel. To the extent the Court may be concerned about the reliability, admissibility, or timeliness of these exhibits and the declaration, these issues are resolved below.

RESPONSE TO MOTION TO STRIKE Page - 2

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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A. Exhibits B and C to the Declaration of Tyler Firkins in Support of the Motion to Reconsider and Motion to Appoint Stand-by Counsel are Not Offered for the Truth of the Matter Asserted. An out-of-court statement is not hearsay unless it is offered to prove the truth of the matter asserted. A statement offered for some other purpose is not hearsay. ER 801(c); Tegland, Karl Courtroom Handbook on Washington Evidence, 2012 2013 ed. At 396. If the statement is relevant simply because it was made, and without regard to whether the statement is true or false, the statement is not hearsay. See State v. Stubsjoen, 48 Wn. App. 139, 738 P.2d 306 (1987). The media articles are not offered for the veracity of the quotes contained therein, but rather to illustrate that from the subjective perspective of Mayor Sun there is a conflict between him and the City Attorney. This is particularly acute where statements attributed to the City Attorney in these articles are defamatory in character with regard to the Mayor. Additionally, pursuant to ER 801(d)(2), a statement is not hearsay if it is offered against a party and is the partys statement , in either an individual or representative capacity, or a statement that the party has adopted , or a statement by an agent offered against his principal. See ER 801(d)(2); Tegland, Karl Courtroom Handbook on Washington Evidence, 2012 2013 ed. At 406. Mr. Luce through his representative capacity is indisputably a party to this litigation. Mr. Luces statements to the media constitute admissions by a party opponent, and are not inadmissible hearsay. Similarly, the transcript of the City Council meeting is not offered for the truth of the matter asserted (that there is a conflict of interest), but rather that others within the Council are at least beginning to recognize the need for independent counsel to be appointed. At any
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VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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rate, the October 22, 2012, City of Pacific City Council meeting recording (the basis of the transcript) can be authenticated by the attached Declaration of Robert Rakos. Decl. Robert Rakos dated November 7, 2012. B. The Declaration of Professor Strait in Support of the Motion to Reconsider and Motion to Appoint Stand-by Counsel Does Not Constitute New Evidence. The Declaration of Professor Strait is based on the record and arguments the Court already has before it. It does not constitute new evidence in the sense of including much (if any) new evidence. Rather, it is an analysis of the issues previously put before this Court with regard to the conflict of interest here at issue. It was provided for the benefit of the Court and the opposing party in evaluating this issue. It is arguably more nuanced than Counsels prior argument in briefing, but remains closely related to the issues the Court has before it. It does not advance a new theory. There is no discernible prejudice to opposing counsel in providing this analysis at this time where they have a full and fair opportunity to respond. In general, an issue may be raised in a motion for reconsideration when the issue is closely related to an issue previously raised and no new evidence is required. August v. U.S. Bancorp, 146 Wn. App. 328, 347, 190 P.3d 86 (2008). Nonetheless, in a motion for

reconsideration, a plaintiff cannot propose new case theories that could have been raised before entry of an adverse decision. Wilcox v. Lexington Eye Inst., 130 Wn. App. 234, 241, 122 P.3d 729 (2005). Mayor Sun is not proposing any new case theories. There is a conflict pursuant to the RPCs, specifically 1.7, 1.13 and 1.16, involving the City Attorney of the City

RESPONSE TO MOTION TO STRIKE Page - 4

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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of Pacific. That was the subject of the prior briefing and argument. That remains the substance of the Motion to Reconsider. In Wilcox, the plaintiff sued the defendants for injuries resulting from LASIK eye surgery. 130 Wn. App. 234, 237. The defendants moved for summary judgment, arguing that Washington was an improper venue, based on a forum selection clause in the eye surgery consent form. Id. at 238. In her response, the plaintiff relied exclusively on the doctrine of mutual mistake to argue that the forum selection clause was unenforceable. Id. at 240. The trial court granted the motion and the plaintiff moved for reconsideration arguing that the clause was also unenforceable due to fraud, undue influence, overweening bargaining power, and lack of consideration. Id. at 240-41. This court held that the plaintiff could not raise these new theories of law for the first time in a motion for reconsideration because they were based on new legal theories with new and different citations to the record. Id. at 241. The case at bar is more analogous to August, 146 Wn. App. 328, where no prejudice was by the Court hearing a motion to reconsider on a new theory based on closely related issues and where no new evidence was required. There, the trial court had dismissed on summary judgment August's lawsuit against U.S. Bancorp for its alleged mismanagement of several family trusts and estates. Id. at 33637, 339, 190 P.3d 86. The trial court also denied August's motion for reconsideration, which was based on a new theory of liability. Id. at 339, 346, 190 P.3d 86. On appeal, the bank argued that August could not introduce the new theory in a motion for reconsideration. Id. at 346, 190 P.3d 86. The court of appeals held otherwise for two reasons. Id. at 34647, 190 P.3d 86. First, [i]n the context of summary judgment, unlike in a trial, there is no prejudice if the court considers additional facts on
RESPONSE TO MOTION TO STRIKE Page - 5

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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reconsideration. Id. at 347, 190 P.3d 86 (citing Chen v. State, 86 Wn.App. 183, 192, 937 P.2d 612 (1997)). Second, generally even after a trial an issue may be raised in a motion for reconsideration when it is closely related to an issue previously raised and no new evidence is required. Id. (citing Anderson v. Farmers Ins. Co., 83 Wn.App. 725, 734, 923 P.2d 713 (1996)). Here, the Declaration of Professor Strait is closely related to the issues previously raised. It is an analysis reliant upon the existing factual record before the Court. Additionally, and as will be discussed more fully below, it was unavailable to provide to the Court at the time of the prior briefing. Furthermore, the declaration was offered to the Court not only on the Motion to Reconsider, but also to support the newly-raised Motion for Appointment of Stand-by Counsel that was contained in the prior filing. The Court had previously ruled that Mayor Sun was entitled to representation on this matter only (the writ of mandamus proceeding). That is an independent basis for the Court to consider the declaration.

Therefore the declaration is properly before the Court, even if only for purposes of the secondary motion. C. Even if the Declaration of Professor Strait does Constitute New Evidence, it was not Previously Available with Reasonable Diligence at the Time of the Underlying Motion Counsel did not begin its representation of Mayor Sun with the understanding that the individual acting as City Attorney and his firm had an unwaivable conflict of interest requiring their withdrawal or disqualification. That understanding evolved as the facts were learned. When that issue became clear, Counsel reasonably and timely sought an expert
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VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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opinion. Professor John Strait is a unique resource with regard to interpretation of the RPCs in this state. Counsel is unaware of another individual possessing the same authority upon this topic. Professor Straits curriculum vitae and CLEs he has given (previously provided) demonstrate the unique nature of the expert opinion he can provide to this Court on this topic. Concomitant to his authority in this area, Professor Strait is very busy with teaching, lecturing, and providing expert opinions to others. Counsel exercised entirely reasonable diligence in efforts to contact Professor Strait for expert assistance in this matter once the issue of Mr. Luce and his firms conflict of interest reared its head and was fully apparent. Quite simply, Professor Strait could not analyze the issues and provide a declaration any earlier than he has done. CR 59 provides grounds for reconsideration. CR59(a)(4) provides: On the motion of the party aggrieved, a verdict may be vacated and a new trial granted to all or any of the parties, and on all issues, or on some of the issues when such issues are clearly and fairly separable and distinct, or any other decision or order may be vacated and reconsideration granted. Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties: (4) Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have been discovered and produced at the trial. (emphasis added). If the Court is inclined to view the Declaration of Professor Strait as newly discovered evidence, it was not of the kind which could have been produced earlier with the underlying briefing. Counsel exercised reasonable diligence in securing this declaration as soon as possible.

RESPONSE TO MOTION TO STRIKE Page - 7

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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The factual record demonstrates the Declaration of Professor Strait was not something that was earlier available to Counsel with reasonable diligence. Previously, Counsel was under a deadline to note on the Motion for Disqualification for the same date as argument on the Writ of Mandamus before Judge Culpepper. Counsel initially contacted Professor John Strait of Seattle University School of Law in regard to this matter on 10/5/12. Decl. of Tyler Firkins in Support of Reply to Petitioners Motion to Strike Exhibits dated November 6, 2012, at 2. Professor Strait opined that Kenyon Luce and Luce Kenney & Associates had a conflict of interest involving their representation of the City of Pacific. Counsel asked him at that time to provide a declaration. Id. at 3. Professor Strait indicated he was unable to draft a declaration for our motion by the dates our written materials needed to be provided to the Court and Counsel. 5 It was only as of October 16, 2012 that Professor Strait agreed to provide our office with a declaration of his opinion on this matter. Professor Strait told Counsel he could provide that declaration no sooner than the following Tuesday (10/23/12). Id. at 6. To be heard on the next scheduled court date of October 19, 2012, the Motion for Disqualification was due on October 11. Id. at 4. It was subsequently noted and filed on that date. Id. Our office received responsive briefing from Mr. Luces office and filed a reply on October 18, 2012. The motion underlying this motion to reconsider was argued on October 19. Id. at 7. Professor Straits declaration was not completed by him until October 25. Id. at 8. Our Motion to Reconsider and Motion to Appoint Stand-by Counsel was filed on October 29, 2012. Id. at 8.

RESPONSE TO MOTION TO STRIKE Page - 8

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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Furthermore, the Declaration was offered to the Court not only on the Motion to Reconsider, but also to support the newly-raised Motion for Appointment of Stand-by Counsel contained in the underlying brief. The Court had previously ruled that Mayor Sun was entitled to representation on this matter only (the writ of mandamus proceeding). Therefore the declaration is properly before the Court, even if only for purposes of the secondary motion. V. CONCLUSION Based on the aforementioned, the Court should not strike the previously provided exhibits and declaration. Both the Motion to Reconsider Disqualification and the Motion to should be decided fully and fairly on the merits. DATED this 7th day of November, 2012. VAN SICLEN, STOCKS & FIRKINS /s/ Tyler K. Firkins By:_________________________________ Tyler K. Firkins, WSBA 20964 Attorney for Mayor Herbert Cy Sun

RESPONSE TO MOTION TO STRIKE Page - 9

VAN SICLEN, STOCKS & FIRKINS


A Professional Service Corporation

721 45th Street N.E. Auburn, WA 98002-1381 (253) 859-8899

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