Black Diamond Response To Preliminary Injunction

1 Honorable Janet Helson
8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING
9
10 CCD BLACK DIAMOND PARTNERS

LLC, a Delaware Limited Liability No. 16-2-29091-4 KNT
11 Company,,
12 Plaintiff, DEFENDANT CITY OF BLACK
DIAMONDS RESPONSE TO
13 v. DEFENDANTS ERIKA MORGAN, PAT
PEPPER AND BRIAN WEBERS
14 CITY OF BLACK DIAMOND and MOTION FOR A PRELIMINARY
BLACK DIAMOND CITY COUNCIL, a INJUNCTION
15 Public Agency, and ERIKA MORGAN,
PAT PEPPER AND BRIAN WEBER,
16 Black Diamond City Council Members, , Noted for: February 10, 2017
With Oral Argument
17 Defendants.
18
19 I. INTRODUCTION AND RELIEF REQUESTED

20 In their Motion for Preliminary Injunction, defendants Morgan, Weber, and Pepper
21 (Individual Defendants) fail to mention or analyze several key factors. (1) The City
22 municipal code provides specific exceptions to the general right that councilmembers have
23 for City-funded legal representation in lawsuits brought against them. (2) On December 15,
24 2016, the City Council considered and voted down three separate motions to provide them a
25 City-funded defense of the OPMA lawsuit, based on those exceptions thereby rendering
26
DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
27 RESPONSE TO DEFENDANTS ERIKA 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
MORGAN, PAT PEPPER AND BRIAN WEBERS PHONE: (206) 623-8861
FAX: (206) 223-9423
MOTION FOR A PRELIMINARY INJUNCTION -
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invalid the subsequent Resolution 16-1139 they adopted on December 22nd and upon which
2
their Motion relies so heavily. (3) Their declarations in which they claim financial hardship
3
do not disclose their income or other assets they could use to pay for their defense. In short,
4
the Individual Defendants cannot meet the stringent requirements for a preliminary injunction
5
because they cannot demonstrate a clear right to a City-funded defense, have not provided
6
evidence of actual and substantial harm if the injunction were denied, and do not have the
7
balance of equities in their favor. Therefore, Defendant City respectfully requests the Court
8
to deny their motion.
9
In the alternative, if the Court does grant the Individual Defendants request, the Court
10
should require some form of security in the event the Individual Defendants do not prevail on
11
their cross-claim. The Individual Defendants have submitted sworn affidavits stating they
12
will not be able to pay the cost of a defense. As such, it is unlikely they will be willing or able
13
to reimburse the City in the event of a judgment in favor of the Plaintiff and in favor of the
14
Citys cross-motion for reimbursement. Therefore, the Court should require each Individual
15
Defendant to post adequate security to ensure the City is repaid in the event they are found
16
liable to Plaintiff and do not prevail on their cross-claim against the City.
17
II. STATEMENT OF FACTS
18
A. Background.
19
Plaintiff alleges the City of Black Diamond and individual City Council members
20
Erika Morgan, Brian Weber, and Pat Pepper engaged in multiple violations of the Open Public
21
Meetings Act, Chapter 42.30 RCW. Exh. A to the Declaration of Shannon Ragonesi, at p. 1-
22
4. Many of Plaintiffs claims stem from allegedly illegal meetings by the Individual
23
Defendants prior to passing Resolution 16-1069 in January 2016, and the subsequent creation
24
of and meetings held by the quorum standing committees that resulted from this resolution.
25
Id. at pp. 5-19, 26-29. Resolution 16-1069 was passed by a 3-2 vote, with the Individual
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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Defendants supplying the only for votes. Declaration of Carol Benson, at 3.
2
Attorneys representing the City repeatedly warned the Individual Defendants about
3
the potential legal problems associated with Resolution 16-1069 both before and after it was
4
passed. No less than four different attorneys, as well as the Citys risk pool, Association of
5
Washington Cities Risk Management Services Agency (AWC-RMSA), wrote legal
6
memoranda discussing the problems and potential OPMA liabilities associated with
7
Resolution 16-1069 and the actions contemplated by the Individual Defendants thereunder.
8
See Exh. B to Ragonesi Decl. The Individual Defendants nevertheless proceeded to pass the
9
resolution and took further actions based on it.
10
B. Black Diamond Municipal Code (BDMC) 2.66.
11
Chapter 2.66 of the BDMC (see Attachment A to the Motion for Preliminary
12
Injunction) governs whether a City official or employee is entitled to a city-funded defense.
13
BDMC 2.66.020(A) states:
14
As a condition of service or employment, the city shall provide to an official
15 or employee, subject to the conditions and requirements of this chapter,
such legal representations as may be reasonably necessary to defend a claim or
16
lawsuit filed against such official or employee resulting from any conduct, act
17 or omission of such official or employee performed or omitted on behalf of the
city in their capacity as a city official or employee, which act or omission is
18 within the scope of their service or employment with the city.
19 (Emphasis added.)
20 BDMC 2.66.030(A) expressly conditions the Citys obligation to provide a defense by
21 excluding certain types of councilmember misconduct:
22 2.66.030 Exclusions: In no event shall protection be offered under this

chapter by the city to:
23
24 1. Any dishonest, fraudulent, criminal, willful, intentional or

malicious act or course of conduct of any official or employee;
25
26
ATTORNEYS AT LAW
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(Emphasis added.)
2
Additionally, BDMC 2.66.040 clarifies who gets to make the decision whether an
3
exclusion applies to prohibit a City-funded legal defense:
4
The determination of whether an official or employee shall be afforded a defense
5 for the city under the terms of this chapter shall be finally determined by the city
council on recommendation of the mayor. The decision by the city council shall
6 be final as a legislative determination of the council. Nothing in this chapter shall
preclude the city from undertaking an officer or employees defense under a
7 reservation of rights.
8 (Emphasis added.)
C. Failed Motions For the City To Provide Defense to Pepper, Morgan, & Weber.
9
On December 15, 2016, the City Council considered and rejected three separate
10
motions to provide a city-funded defense for Councilmembers Morgan, Pepper, and Weber.
11
Carol Benson Declaration, at 4. During the regularly scheduled Council business meeting,
12
Councilmember Janie Edelman introduced a motion to provide a City-funded legal defense to
13
Councilmember Pat Pepper. Id. Councilmember Edelman later brought identical motions to
14
provide a City-funded legal defense to Councilmembers Brian Weber and Erika Morgan. Id.
15
While each of those three separate motions was pending, Councilmember Tamie
16
Deady moved to amend the motions to disqualify the Councilmember named in each motion
17
from voting on whether to provide himself/herself a City-funded legal defense, due to the self-
18
interest involved in voting for their own defense. Benson Decl., 4. 1 Each of Councilmember
19
Deadys three disqualification amendments tied on a 2-2 vote (as each individual
20
councilmember was also disqualified from voting on the motion pertaining to disqualifying
21
himself/herself). Id. Accordingly, Mayor Benson voted to break those ties in favor of
22
disqualification. Id.
23
Once the disqualification motions had passed, Councilmember Edelmans three
24
25 1
The City Councils Rules of Procedure specifically provide for the disqualification of individual
councilmembers from voting on matters in which they have a personal conflict or self-interest. See Council Rule
26 8.5.2 and 8.5.3 (attached as Exhibit B to Martinez Decl.).
ATTORNEYS AT LAW
FAX: (206) 223-9423
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motions to provide a city-funded defense to Pepper, Weber, and Morgan were called for vote,
2
and they each failed by a vote of 2-2. Id. Mayor Benson could not vote to break the tie on
3
those motions because, by state law, mayors are not permitted to break a tie on a vote
4
authorizing the expenditure of City funds. Id. See also RCW 35A.12.100. However, a motion
5
fails when the vote is a tie, so the motions to provide a defense to Morgan, Weber, and Pepper
6
failed. Benson Decl., 4. This series of Council votes, including the motions to provide a
7
legal defense to Morgan, Weber, and Pepper, and the disqualification motions, are referenced
8
in the draft Council Meeting Minutes from December 15, 2016 (attached as Exhibit A to
9
Martinez Decl.) The text of these motions is further provided in Exhibits A and B to the Benson
10
Decl.
11
Remarkably, the Individual Defendants Motion for Preliminary Injunction makes no
12
mention of any of these Council actions and votes, despite their direct relevance to the issues
13
presented in the instant Motion.
14
D. The Individual Defendants Hire Lighthouse Law Group.
15
On December 22, 2016, the Individual Defendants attempted to pass a resolution
16
(Resolution 16-1139, attached as Exh. A to Taraday Decl.) that would provide them a City-
17
funded defense. The Mayor denied this resolution on the grounds that the City Council had
18
already engaged in a vote on motions for legal defense on December 15th as described in
19
Section C above, and the motions did not pass.2
20
After motions to provide them a City-funded defense failed, the Individual Defendants
21
then retained Lighthouse Law Group and Mr. Taraday on their own to defend them jointly in
22
this lawsuit. Taraday Decl., at 2. Therefore, Lighthouse Law Group accepted this case with
23
the firm understanding that the City had not agreed to provide a defense for the individual
24
defendants.
25
2
The Mayors action of denying this Resolution 16-1139 reflected her view that it was a legally void action,
26 of no lawful force and effect, and created no valid claim against City funds that she was obligated to pay.
ATTORNEYS AT LAW
FAX: (206) 223-9423
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III. EVIDENCE RELIED UPON
2
Declaration of Shannon M. Ragonesi and attached exhibits.
3
Declaration of Carol Benson, and attached exhibits.
4
Declaration of Brenda Martinez, and attached exhibits.
5
IV. ARGUMENT AND ANALYSIS
6
Preliminary injunctions are a remedy which should not be lightly indulged in, but
7
should be used sparingly and only in a clear and plain case. Kucera v. State, Dept of Transp.,
8
140 Wash.2d 200, 209, 995 P.2d 63 (2000) (citing 42 Am.Jur.2d Injunctions 2, at 728
9
(1969)). An injunction will not be issued in a doubtful case. Rabon v. City of Seattle, 135
10
Wash. 2d 278, 285, 957 P.2d 621, 623 (1998) (citing Washington Fed'n of State Employees,
11
Council 28 v. State, 99 Wash.2d 878, 888, 665 P.2d 1337 (1983); Tyler Pipe Indus., Inc. v.
12
Department of Revenue, 96 Wash.2d 785, 793, 638 P.2d 1213 (1982)). The Individual
13
Defendants cannot clear this high bar, and therefore their request should be denied.
14
A. The Individual Defendants Cannot Meet the Required Elements for a Preliminary
15 Injunction.
16 In order to receive a preliminary injunction, the Individual Defendants have the burden
17 of proving (1) they have a clear legal or equitable right, (2) there is a well-grounded fear of
18 immediate invasion of that right, and (3) the acts complained of have or will result in actual
19 and substantial injury. Rabon, 135 Wash. 2d at 284. The Individual Defendants cannot show
20 they have a clear legal or equitable right to a City-funded defense or that the acts will result
21 in actual and substantial injury, and therefore their request should be denied.
22
1. The Individual Defendants Cannot Show They Are Likely to Prevail on
23 Their Cross-claim at Trial.
24 To establish a clear legal or equitable right, the Individual Defendants must show that
25 they are likely to succeed on the merits of their cross-claim against the City for payment of
26 their costs of defending the OPMA lawsuit. See Kucera, 140 Wash.2d at 216 (under the first
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FAX: (206) 223-9423
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prong, courts examine the likelihood that the moving party will prevail on the merits). Here,
2
the likelihood that Individual Defendants will succeed on the merits is minimal because their
3
right to a City-funded defense has already been considered and rejected by the legal body that
4
has authority to decide whether to provide such a defense namely, the Black Diamond City
5
Council. As noted above, a vote of the non-conflicted councilmembers failed 2-2 for each of
6
the three Individual Defendants. Benson Decl. 4; December 15th Council Meeting Minutes
7
(draft) at Exh. A to Martinez Decl.
8
These votes were taken pursuant to explicit legal authority contained in the BDMC,
9
which clearly makes the decision whether to provide a legal defense to a councilmember a
10
matter of legislative action by the Council, based on the recommendation of the Mayor.
11
BDMC 2.66.040. And while BDMC 2.66.020 states that a councilmember shall be provided
12
a defense for claims involving actions taken in his or her capacity as a City official, that
13
obligation is explicitly made subject to the conditions and requirements of this chapter. The
14
conditions and requirements of Chapter 2.66 include the Exclusions listed in BDMC
15
2.66.030, which expressly prohibit provision of a City-funded defense for willful,
16
intentional acts or courses of conduct. And furthermore, when the Council votes on whether
17
one of these exclusions applies, that vote is final. BDMC 2.66.040.
18
In this case, there were three separate motions to provide a defense to the
19
councilmembers in this suit (one for each Individual Defendant.) Exh. A to Benson Decl.
20
These votes are final pursuant to BDMC 2.66.40, and therefore any legislative attempts to
21
redo the votes are void. Resolution 16-1139 that the Individual Defendants purported to adopt
22
at the December 22nd Council Meeting to authorize the City to pay for their representation by
23
Lighthouse Law Group and on which their Motion for Preliminary Injunction heavily relies
24
was a legal nullity. Therefore, the Individual Defendants do not have a legal right to a City-
25
funded defense, and their request for preliminary injunction fails at the first prong.
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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The Councils decisions to deny a City-funded defense to the Individual Defendants
2
is easy to understand. After all, Plaintiff here is alleging the Individual Defendants acted in
3
violation of four separate legal opinions advising the City Council that meetings held in
4
private by the Individual Defendants without proper public notice, and collective decisions
5
made outside of properly noticed open public meetings, may violate state and local law and
6
give rise to liability under the OPMA. Plaintiff alleges the Individual Defendants pursued a
7
willful and intentional act or course of conduct that resulted in violations of state law and
8
furthered individual goals rather than City interests. If such allegations are proven in this case,
9
then clearly no defense would be warranted under BDMC 2.66. And indeed, the Citys risk
10
pool, AWC-RMSA declined to provide a defense to the City or the Individual Defendants on
11
this very basis, thus further supporting the soundness of the Councils December 15th votes.
12
Exh. C to Ragonesi Decl.
13
It is very telling that the Individual Defendants omit all reference to the Exclusions
14
provided in BDMC 2.66.030 and its limitations on the Councilmembers right to a legal
15
defense provided by the City. And it is remarkable that their 11-page Motion never once
16
mentions that the Council voted on whether to provide them a defense and that those motions
17
failed. But under these facts and allegations, Individual Defendants cannot demonstrate a
18
likelihood of succeeding on the merits of their claims for a City-funded defense. No such
19
clear legal or equitable right has been shown; indeed, quite the opposite.
20
Ultimately, the determination of whether the Individual Defendants were acting in an
21
intentional or willful way as described under BDMC 2.66.030(A) is a factual question. For
22
the Court to alter the prior determination by the City Council, it would have to make a factual
23
finding on the ultimate issue in this case: to wit, whether the Individual Defendants violated
24
the OPMA. But in determining whether the moving party is likely to prevail on the merits,
25
the Court may not adjudicate the ultimate merits of the case; it can only examine the purely
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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legal issues for the purposes of deciding whether to grant or deny the preliminary injunction.
2
Travis v. Tacoma Pub. Sch. Dist., 120 Wash. App. 542, 553, 85 P.3d 959, 965 (2004). Here,
3
there is no purely legal basis for a Court to decide they are likely to succeed. A doubtful
4
case will not warrant an injunction. Huff v. Wyman, 184 Wash. 2d 643, 652, 361 P.3d 727,
5
732 (2015).
6
2. The Individual Defendants Cannot Establish Actual and Substantial
7 Injury.
8 Even if the Court finds that the Individual Defendants have met the first prong, they
9 still have not established that they will suffer actual and substantial injury. An injunction is
10 an extraordinary equitable remedy designed to prevent serious harm. Its purpose is not to
11 protect a plaintiff from mere inconveniences or speculative and insubstantial injury. Kucera,
12 140 Wash. at 221. (citing Tyler Pipe Indus., 96 Wash.2d at 796.)
13 Individual Defendants only evidence of actual injury or harm are their own limited
14 and conclusory declarations. And even these declarations do not establish actual harm; rather,
15 they state, I would not likely be able to meaningfully provide for a defense against Plaintiffs
16 allegations[.] (Emphasis added.) See Declarations of Pat Pepper, Brian Weber, and Erica
17 Morgan. The Individual Defendants actual ability to pay is left to the Courts imagination.
18 In fact, the Individual Defendants have omitted any discussion or documentation of their
19 financial assets or income from their regular jobs. Upon information and belief, Brian Weber
20 is currently employed at Boeing full-time, Pat Pepper is a retired school teacher from the
21 Tahoma School District and likely collecting a pension, and Erika Morgan is the Vice
22 President on the board of her familys business. Benson Decl., at 5.
23 Simply put, the Individual Defendants have not met their burden of showing they will
24 suffer actual injuries. At most, they have shown that they are unwilling to fund their defense
25 from their own pockets, not that they are truly unable. See Motion at 7:21-22.
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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Further, the Motion assumes without evidence that there are only two options facing
2
the Court: either the City pays for Lighthouse Law Group to defend Individual Defendants, or
3
they will have to find pro bono counsel. But they are not indigent, and there is no evidence
4
that the Individual Defendants have attempted to secure other counsel who would take on the
5
case for a smaller fee than their current lawyers will charge. Simply put, a preliminary
6
injunction is an extraordinary form of relief; it demands clear proof of actual harm, and
7
Individual Defendants have not provided the Court with adequate evidence.
8
The cases cited by the Individual Defendants are not controlling here, and all have to
9
do with the relationship between insurers and insureds. (See In re WorldCom, Inc. Sec. Litig.,
10
354 F. Supp. 2d 455, 469 (S.D.N.Y. 2005) (The failure to receive defense costs when they
11
are incurred constitutes an immediate and direct injury. To hold otherwise, would not provide
12
insureds with protection from financial harm that insurance policies are presumed to give.
13
(internal quotations and citation omitted); Wedtech Corp. v. Fed. Ins. Co., 740 F. Supp. 214,
14
221 (S.D.N.Y. 1990) (Where an insurance policy obligates the insurer to defend the insured,
15
the insurer must defend the insured in every suit in which the complaint permits proof of facts
16
establishing coverage until the insurer is able to exclude the possibility of any recovery for
17
which it provided insurance.) The Courts have found that there is a special relationship
18
created when one pays for the exact coverage they are potentially being denied. See Truck
19
Ins. Exch. of Farmers Ins. Grp. v. Century Indem. Co., 76 Wash. App. 527, 532, 887 P.2d
20
455, 459 (1995) ([T]he insurer has contractually assumed the role of the champion of the
21
insured's rights. The duty thus undertaken is in the nature of a fiduciary relationship [where]
22
the rights of the insured are deemed paramount. Having undertaken, for a price, to defend the
23
insured, the insurer must provide a meaningful defense). The City is not the Individual
24
Defendants insurer, and they cite no case law regarding a similar relationship between a city
25
councilmember and a city. Rather, the municipal code sets the standard when defense is to be
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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provided to a councilmember in Black Diamond.
2
B. Equitable Considerations Weigh Against Requiring the City to Provide a Defense
3 to the Individual Councilmembers.
4 It is axiomatic that those who seek equity must do equity. The Individual Defendants
5 have failed to do equity in multiple ways.
6 First, equitable considerations would not be served by requiring the City to use public
7 money to fund the defense of City officials who are alleged to have repeatedly, willfully, or
8 intentionally ignored legal advice from multiple lawyers regarding OPMA liability risks
9 associated with their course of action. Individual Defendants have asserted a cross-claim
10 against the City that may eventually be adjudicated in their favor meaning that if the
11 Individual Defendants ultimately prevail against plaintiffs OPMA claims, their right to
12 recover their defense costs from the City will be preserved regardless of the outcome of the
13 instant Motion. In the meantime, City taxpayers should not have to foot their legal bills and
14 risk the likelihood it may not be reimbursed if the Individual Defendants are held liable. In
15 other words, any harm in the form of out-of-pocket legal fees is not irreparable and could
16 easily be reversed by future Court action upon a factual finding that they did not willfully or
17 intentionally violate any laws.
18 Second, a key equitable factor here is the protection of the public funds from self-
19 interested officials using their positions to minimize the financial consequences of alleged
20 misconduct. BDMC 2.66.030 places councilmembers on notice of the risk they take that they
21 will not be provided a legal defense if they engage in a knowing or willful act or course of
22 conduct such as ignoring legal advice and the Individual Defendants acted in this case
23 despite knowing that risk.
24 Third, the Individual Defendants argue, without any support, that requiring them to
25 pay for their own defense will have a chilling effect on candidate filings for councilmember
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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positions. But there is no reason to believe this unique case will discourage future
2
councilmembers from serving. Qualified applicants will understand the Citys municipal code
3
will protect them from lawsuits so long as they do not act willfully or intentionally against
4
legal advice. Councilmembers will remain free, as they are now, to vote in favor of providing
5
a legal defense for officials who act in good faith.
6
Fourth, the Individual Defendants argue that the City has more money, and therefore
7
should bear the burden of these costs. While the City may have more resources, this argument
8
is not persuasive. Such a finding could actually encourage future councilmembers or
9
employees to act in a cavalier manner despite legal requirements and advice. This case is a
10
prime example. If Plaintiff prevails on its OPMA claims, it would mean the City was required
11
to pay for the defense of individuals who willfully and knowingly broke the law against advice
12
of the Citys counsel. Equitable considerations do not favor the movants.
13
C. If the Court Grants the Preliminary Injunction, It Should Require Adequate
14 Security to Ensure the Individual Defendants Can Repay the City.
15 Under CR 65(c),
16
Except as otherwise provided by statute, no restraining order or preliminary
17 injunction shall issue except upon the giving of security by the applicant, in
such sum as the court deems proper, for the payment of such costs and damages
18 as may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained.
19
20 The purpose of CR 65(c) is to provide indemnification for parties who are wrongfully
21 restrained or enjoined. Cedar-Al Prod., Inc. v. Chamberlain, 49 Wash. App. 763, 765, 748
22 P.2d 235, 236 (1987). There is no statute that excludes the Individual Defendants from putting
23 forth security as required under CR 65(c).
24 Moreover, Individual Defendants suggestion of defending them under a reservation

25 of rights would be no security at all, if their declarations are to be taken at face value. The
26
ATTORNEYS AT LAW
FAX: (206) 223-9423
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Individual Defendants have already stated they likely would not be able to pay for their own
2
defense. See Declarations of Pat Pepper, Brian Weber and Erica Morgan. If true, there is
3
no reason to believe they would be able to repay the City for the cost of their defense if they
4
were to lose on their cross-claim. Compelling the City to defend Individual Defendants
5
without adequate security in this case would essentially be rendering the Citys own cross-
6
claim moot, as there would likely be no recovery even if it prevails. If Plaintiff prevails, the
7
result would be that taxpayer money is used to defend public officials who intentionally acted
8
against the Citys interests. CR 65(c) is designed to prevent such an unpalatable result.
9
The Individual Defendants argue that a reservation of rights is not warranted. The
10
City agrees. BDMC 2.66.040 specifically allows the City to provide a defense under a
11
reservation of rights. But the Council has not voted to defend under a reservation of rights
12
(see Benson Decl. 4), and Individual Defendants have pointed to no authority supporting
13
that as an alternative to the security requirement of CR 65(c). Accordingly, if the Court finds
14
that a preliminary injunction should be entered requiring the City to pay Mr. Taraday to defend
15
Individual Defendants, then they should be required to post a bond of at least $150,000 (as a
16
reasonably approximation of the likely costs of defense) or provide other adequate security.
17
18 V. CONCLUSION
19 The City respectfully requests the Court deny the Individual Defendants request for a
20 preliminary injunction. In the alternative, the City requests the Court require posting of
21 adequate security in the event the Court finds that the Individual Defendants do not fall into
22 the category of individuals entitled to a defense under BDMC 2.66.020.
23
24
25
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ATTORNEYS AT LAW
FAX: (206) 223-9423
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1 DATED: February 8, 2017
KEATING, BUCKLIN & McCORMACK, INC., P.S.
2
3
By: /s/ Shannon M. Ragonesi
4 Shannon M. Ragonesi, WSBA #31951
5 Attorney for Defendants City of Black Diamond and
Black Diamond City Council
6
800 Fifth Avenue, Suite 4141
7 Seattle, WA 98104-3175
Telephone: (206) 623-8861
8 Fax: (206) 223-9423
9 Email: sragonesi@kbmlawyers.com
I certify that this memorandum contains 4032 words, in compliance with the Local Civil
10 Rules.
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ATTORNEYS AT LAW
FAX: (206) 223-9423
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1 DECLARATION OF SERVICE
2 I declare under penalty of perjury under the laws of the State of Washington that on
3 February 8, 2017, a true and correct copy of the foregoing document was served upon the
4 parties listed below via the method indicated:
5 Attorneys for Plaintiff
6 Michele Earl-Hubbard
Allied Law Group, LLC
7 P.O. Box 33744
Seattle, WA 98133
8 Email: michele@alliedlawgroup.com
info@alliedlawgroup.com
9
Attorneys for Black Diamond City Council Members Erika Morgan, Pat
10 Pepper and Brian Weber
11 Jeff Taraday
Lighthouse Law Group PLLC
12 1100 Dexter Ave., #100
Seattle, WA 98109
13 Email: jeff@lighthouselawgroup.com
14
15 DATED this 8th day of February, 2017, at Seattle, Washington.
16
17 /s/ Elena Ortiz

Elena Ortiz, Legal Assistant to Ms. Ragonesi
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ATTORNEYS AT LAW
FAX: (206) 223-9423
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Black Diamond Response To Preliminary Injunction

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Black Diamond Response To Preliminary Injunction

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1 Honorable Janet Helson

8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

10 CCD BLACK DIAMOND PARTNERS

19 I. INTRODUCTION AND RELIEF REQUESTED

20 BDMC 2.66.030(A) expressly conditions the Citys obligation to provide a defense by

21 excluding certain types of councilmember misconduct:

22 2.66.030 Exclusions: In no event shall protection be offered under this

24 1. Any dishonest, fraudulent, criminal, willful, intentional or

12 140 Wash. at 221. (citing Tyler Pipe Indus., 96 Wash.2d at 796.)

22 President on the board of her familys business. Benson Decl., at 5.

17 intentionally violate any laws.

23 despite knowing that risk.

23 forth security as required under CR 65(c).

24 Moreover, Individual Defendants suggestion of defending them under a reservation

22 the category of individuals entitled to a defense under BDMC 2.66.020.

4 parties listed below via the method indicated:

5 Attorneys for Plaintiff

15 DATED this 8th day of February, 2017, at Seattle, Washington.

17 /s/ Elena Ortiz

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