HomeMy WebLinkAbout2023-09-15 CoR Response to Motion in Limine
Response to Motion in Limine
(DEF 230001823 & DEF 230001824)
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Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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BEFORE THE CITY OF RENTON HEARING EXAMINER
IN THE CITY OF RENTON, COUNTY OF KING, STATE OF WASHINGTON
RE: The Home Depot, Appellant
Deferral of Street Improvements:
Outlot 1
(S. Grady Way & Talbot Rd. S.)
AND
Outlot 2
(Talbot Rd. S.)
(LUA21-000542; C22003168)
NO. DEF 23001823 (Outlot 1)
And
NO. DEF 23001824 (Outlot 2)
CITY OF RENTON RESPONSE TO
MOTION IN LIMINE
City of Renton hereby responds to the Home Depot Motion in Limine (hereafter “the
Motion”) filed on September 8, 2023.
A. Settlement Discussions and Compromise Discussions. The City concurs, with notice of
specific statement already in the record to also be excluded.
B. Grady Way Street Frontage Improvements: The City concurs that the only
improvements under appeal are the undergrounding requirements, and that the Home
Depot is currently seeking a modification related to that requirement.
C. Limit Evidence Related to Findings of Fact and Conclusions of Law from Hearing
Examiner Decision: In response to the Home Depot’s motion to limit evidence relating
Response to Motion in Limine
(DEF 230001823 & DEF 230001824)
Page 2
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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to the Findings of Fact and Conclusions of Law in the September 5, 2023 Hearing
Examiner Decision, the City concurs that the only improvements under appeal are for
street trees and streetlights.
D. Public Records Responses: The City objects to the Home Depot’s treatment of their
public records request pursuant to RCW 42.56 as pre-trial discovery.
E. 24 Hour Notice of Witnesses to be Called: Finally, with respect to the request that 24-
hour notice of witnesses to be called at trial, the City will agree to make every
reasonable attempt to do so.
I. EVIDENCE RELIED UPON
This motion relies on the entire record to date in this matter, the Declaration of Mary
Patrice Kent filed as Exhibit A to this Response.
II. AUTHORITY AND ARGUMENT
The City concurs with the Home Deport authorities cited with respect to the Hearing
Examiner’s authority to rule on evidence and impose reasonable limits on the nature and length
of testimony and argument.
A. Settlement Discussions
With respect to excluding evidence of settlement discussions and compromise
discussions, the City concurs that references to settlement discussions should be excluded
consistent with ER 408. This includes reference in Declaration of Maren Calvert in support of
the Home Depot Response to City’s Motion to Dismiss and Supplemental Motion to Dismiss
Response to Motion in Limine
(DEF 230001823 & DEF 230001824)
Page 3
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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(“Calvert Declaration”) at Statement 18 related to attorney conversations “on or about July 11
and 12, 2023” which occurred during settlement and/or compromise discussions.
B. Grady Way Street Frontage Improvements.
With respect to excluding evidence and arguments related to Grady Way Frontage
Improvements, the City agrees to the extent that the only improvements under appeal are the
undergrounding requirements for which the Appellant is seeking modification, and that should
a decision be issued from which the Home Depot appeals then the undergrounding
requirement may be included in argument. In such a case, the City would stipulate to a
reasonable extension of the briefing schedule to ensure both parties may prepare their
arguments.
C. Findings of Fact and Conclusions of Law related to Talbot Rd. Street Frontage
Improvements from Hearing Examiner Decision
With respect to excluding evidence and argument contesting findings of fact and
conclusions of law in the dismissal order, the City objects to the Home Depot motion. The
Home Depot cites to Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 935 P.2d 555 (1997) and
Lutheran Day Care v. Snohomish Cnty., 119 Wn.2d 91, 829 P.2d 746 (1992) that the conclusions
of law/findings of fact in the Hearing Examiners decision on the Motion to Dismiss cannot be re-
adjudicated absent a showing of error or substantial prejudice, regardless of the decision under
consideration. However, the separate appellate decisions at question in both cases were with
respect to the substance of the case and not on procedural matters. There does not appear to
be any caselaw on point for the opinion that findings of fact and/or conclusions of law issued on
Response to Motion in Limine
(DEF 230001823 & DEF 230001824)
Page 4
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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a CR 56 summary proceeding becoming the law of the case, and the City urges the Hearing
Examiner not so find here.
In his order dated September 5, 2023, the Hearing Examiner expressly treated the
motion as if it was a summary judgment motion under CR 56 (HEX Decision on Motion to
Dismiss, 6:13-16). Findings of fact and conclusions of law in summary judgment proceedings
are superfluous and should be ignored in subsequent proceedings.
This dispute . . . was resolved summarily on a motion, declarations, and
affidavits. . . . [T]he trial court was not privileged to weigh the evidence in ruling
on this summary proceeding. Indeed, the court's “findings” in a summary
proceeding like this are superfluous and are to be ignored
Neuson v. Macy's Dep't Stores Inc., 160 Wn. App. 786, 792, 249 P.3d 1054 (2011) (internal
citations omitted); see also Nelson v. Dep't of Labor & Indus., 198 Wn. App. 101, 109, 392 P.3d
1138, 1142 (2017). While findings can help explain the reasoning for a trial court’s order,
“[f]indings and conclusions are inappropriate on summary judgment.” Oltman v. Holland Am.
Line USA, Inc., 163 Wn.2d 236, 249, 178 P.3d 981 (2008), citing Hemenway v. Miller, 116
Wash.2d 725, 731, 807 P.2d 863 (1991) (“findings of fact on summary judgment are not proper,
are superfluous, and are not considered by the appellate court.”) In fact, an appellant’s failure
to assign error to a trial court’s “finding” from a summary proceeding is of no consequence
since the findings “are superfluous and will not be considered” by the appellate court.
Concerned Coupeville Citizens v. Town of Coupeville, 62 Wn. App. 408, 413, 814 P.2d 243,
(1991).
Response to Motion in Limine
(DEF 230001823 & DEF 230001824)
Page 5
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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Here, the motion before the hearing examiner was a motion on a procedural claim, and
therefore the Findings of Fact and Conclusions of Law from the September 5, 2023 Hearing
Examiner’s Decision should not be considered law of the case.
D. Public Records
The Home Depot conflates their public records request under RCW 42.56 (the “Public
Records Act”) with pre-trial discovery. “[T]he public records act was not intended to be used as
a tool for pretrial discovery.” Limstrom v. Ladenburg, 136 Wn.2d 595, 614, 963 P.2d 869 (1998),
citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).
A purpose of the Public Records Act is to maintain transparency of governmental process (see
e.g., RCW 42.56.030). This differs significantly from the purpose of CR 26 (see e.g., 26.j.1
“’discovery materials’ means … data produced and physically exchanged in response to
requests for production, and admissions pursuant to rules 26-37.”) A Burnet analysis is not
appropriate here and discovery sanctions are not available for a public records act dispute.
The Home Depot could have sought discovery. Instead, the Home Depot sought public
records under an entirely different construct, which has different expectations, scope, and
timelines to which the City must adhere. As the Home Depot correctly noted, the City was
required to (and did) provide an initial response within five business days of receiving the
request, has provided responsive records, and continues to supplement the response in
accordance with requirements of the Public Records Act (Kent Declaration, Exhibit 1). Now the
Home Depot makes thinly veiled threats of sanctions if the City’s public records responses do
not align with the deadlines in the Hearing Examiner’s scheduling order.
Response to Motion in Limine
(DEF 230001823 & DEF 230001824)
Page 6
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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E. 24 Hour Notice
Finally, with respect to the request that 24-hour notice of witnesses to be called at trial,
the City will agree to make every reasonable attempt to do so. The City reserves the right, and
anticipates that the Home Depot will also, to substitute witnesses in emergency situations and
with as much advance notice as possible. The City reserves this right in consideration of the
regional uptick in COVID-19 cases and in acknowledgement that emergencies do happen.
RESPECTFULLY SUBMITTED, this 15th day of September, 2023.
CITY OF RENTON:
By:____/s/ M. Patrice Kent__________
M. Patrice Kent, WSBA #42460
Sr. Assistant City Attorney
City Attorney