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Issaquah Law Group - Personal Injury Litigation Attorneys

TRUST: Personal injuries are personal. Which is why the attorneys at ILG treat every client and every case differently. Because they are different, and extremely personal. ILG was founded on the principle that strong client relationships are the key to successful legal representation and strong relationships are built on trust. Trust that you will be heard. Trust that you will be protected. Trust that every effort will be made to see justice done in your case. The singular goal of every ILG attorney is to earn and preserve that trust.

EXPERIENCE: ILG attorneys have a broad base of litigation experience to draw on in all Federal and State courts from on-the-ground investigations to Supreme Court appeals and we bring this experience to bear on behalf of our clients in personal injury and wrongful death claims arising out of motor vehicle accidents, bus versus pedestrian accidents, defective and dangerous products, medical malpractice, slip/trip and fall accidents, and catastrophic losses due to fire.

LOCATION: We are located on the Eastside in Issaquah, convenient to Bellevue, Redmond, Kirkland, Renton, Sammamish and North Bend. However, we provide legal services in King County, Pierce County, Snohomish County and throughout the entire state of Washington.

In addition, through The Amateur Law Professor Blog and LinkedIn postings, we share pertinent opinions and decisions of the Washington State Supreme Court, as well as the pertinent opinions and decisions of the Washington State Courts of Appeal so that our clients can be as update to date on cutting legal issues as we are.

Filtering by Category: Division II

Court of Appeals: Div. II – Defendant Did Have a Clue As To His Guilty Plea, Despite Claim of Incompetency

State v. DeClue

Thomas DeClue pled guilty to second degree manslaughter and first degree unlawful possession of a firearm. DeClue later moved to withdraw his guilty plea because he claimed he was on medication and thus was unable to knowingly, voluntarily, and intelligently waive his constitutional rights. I guess you could say he didn’t have DeClue as to what he was doing! Sorry, I couldn’t resist.

Get a clue

The trial court held an evidentiary hearing and several people testified as to DeClue’s competency at the time he plead guilty. A nurse from the jail testified that DeClue had taken several medications at different times including Vicodin, BuSpar, Skelaxin, and Seroquel. I guess incarceration wasn’t too painful.

DeClue testified that the medications made him feel like a zombie and he wasn’t able to process information. Others, including inmates at the jail, also testified that DeClue was drowsy and couldn’t concentrate. However, DeClue’s attorney when he entered the plea testified that DeClue was sharp, astute, paid attention, and had no problems communicating. The judge also reviewed a videotape of the plea. The judge held that entry of the plea did not violate DeClue’s constitutional rights. DeClue appealed.

DeClue contended that since he claimed he was not competent to enter the plea, the statute required that a competency hearing was required not an evidentiary hearing. “If a defendant supports his motion to withdraw a guilty plea with substantial evidence of incompetency, the trial court must either grant the motion or hold a formal competency hearing under RCW 10.77. 060.” The important part of this rule is that the claim must be supported by “substantial evidence of incompetency.” If substantial evidence is lacking, then the motion is denied and no competency hearing is required.

DeClue’s claim that the judge made an error by having an evidentiary hearing rather than a competency hearing failed. The evidentiary hearing was held for the purpose of exploring DeClue’s claim that he was not competent. That exploration ended in a finding that there was no substantial evidence of incompetency and thus no competency hearing was necessary.

DeClue also challenged the trial court’s finding that he was competent. However, given the nurse’s testimony that DeClue didn’t appear intoxicated, DeClue’s attorney’s testimony, and the judge’s own recollection (with assistance from video) of the plea, the Court of Appeals could not find that the judge abused her discretion. Affirmed! Get a clue.

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Opinion letters to Agencies are not challengeable "final agency actions" under the WAPA

Teamsters Local Union No. 117 v. State Human Rights Commission The Department of Corrections (DOC) solicited an opinion from the Human Rights Commission (HRC) on whether gender-based hiring criteria could be used for personnel at a specific correctional facility.  In other words, the DOC wanted to know whether it would be cool with everyone if it didn't hire men to do the pat-downs and shower checks at the women's prisons.

This opinion says more about the underlying facts of a current controversy than it does about the law.  The holding and analysis are straightforward.  Under the Washington Administrative Procedure Act, a justiciable controversy does not arise before "final agency action."  Prior cases had established that interpretive letters like the one here, do not constitute final agency action.  Open and shut, as one might say.

Nonetheless, the opinion letter opens up interesting future questions.  The HRC opined that gender may be a bona fide occupational qualification, under certain circumstances, like preventing prison guards from getting free looks at lady parts, and not subject to the Washington Law Against Discrimination.  When the DOC finally gets around to issuing its policies and guidelines, then the Teamsters can sue again.

Jimmy Hoffa is rolling over under the end zone at Giants Stadium.

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WA Court of Appeals at Div. II: Bailbondsperson testimony exclusion improper under ER 615

State v. Skuza

Note: This opinion is not the standard Google Scholar link, but to Washington Courts. As such, it will expire after ninety days.

In presenting a defense to bail jumping, Skuza was allowed to have a bailbondsman testify. He had a conversation with the bailbondsperson, where she related what her testimony would be to Skuza. The transcript on this portion is worth the read. However, the conversation didn't on its face violate ER 615 and the exclusion is reversible error to that count only:

Here, however, the trial court erred because there was no evidence that Spencer violated ER 615. The trial judge stated that he had seen Skuza and Spencer together in a smoking area near the court and heard a portion of a conversation between them.  But the trial court failed to conduct a hearing regarding the circumstances of the interaction.  Spencer, Skuza, and the trial judge were not questioned about the interaction or their observations of it.  The trial judge made a statement, which was not subject to cross-examination, about what he had witnessed and the results of legal research the trial court extern had conducted.  Counsel discussed the effect of the trial judge's observation on whether Spencer could be called as a defense witness in the proceeding but did not discuss the fact that the trial judge had inadvertently become a witness in the proceeding.  Skuza had no opportunity to question the trial judge about his observations, call Spencer to testify about the specifics of their contact, or research the law to provide a defense or authority against the sanction of excluding Spencer's testimony.

Moreover, the trial judge's description of the conversation did not identify specific exchanges that took place between Spencer and Skuza sufficient to warrant a finding that an ER 615 violation occurred.  The trial judge only described statements that Spencer made to Skuza about her testimony and made no reference to specific statements that Skuza made to Spencer about her intended testimony or his prior testimony.  It is possible that the conversation did not violate ER 615's intent, which is  "to discourage or expose inconsistencies, fabrication, or collusion."  Tegland, § 615.2, at 623.  Skuza had already completed his testimony in the case by the time of the alleged violation, so Spencer telling Skuza about her intended testimony did not give Skuza an opportunity to alter his testimony to match hers.

Without a thorough factual development of the circumstances of the conversation, the record is insufficient to establish that an ER 615 violation occurred.  On this record, the trial court erred when it applied the harshest possible sanction of excluding evidence central to the defendant's bail jumping defense.



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WA Court of Appeals at Div. II: Have to be under house arrest to get credit for it

State v. Dockens


(One Dokken is never enough...or maybe it is)

There's just something really satisfying about homophones. But enough about metal. Dockens contended that it was a violation of the equal protection clause to not give him credit for house arrest on his sentence. Seeing as he was never under house arrest, but on bail with a curfew, he doesn't get credit for house arrest. Second, he is not a member of a protected class.

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WA Court of Appeals at Div. II:

Yeakey v. Hearst Communications, Inc.


The 2006 Crane Accident in Bellevue, where a man was killed in his apartment, spawned a slew of news stories regarding crane safety. One of the stories involved the operator of the crane, Warren Taylor Yeakey, and alleged he had a history of drug abuse. He sued Hearst (operators of the Seattle Post-Intelligencer, a former print newspaper now exclusively online) for defamation when his drug test came back negative. Does he contend the PI spead anything untruthful (a requirement for defamation)? Not quite:

He argued that the juxtaposition of the article's statements with a photograph of the damage, a photograph of the deceased, and a graphic with bullet points contending "GAPS IN SAFETY CONTROLS" falsely implied that Yeakey's drug use, operator error, or failure to sufficiently perform safety inspections were factors in the collapse. CP at 11. He concedes that all the statements in the articles are true and that his claims are not based on a contention that facts were omitted from the articles.

Unfortunately, Washington only recognizes standard defamation, which means the statements have to be false:

But we have held that a plaintiff may not base a defamation claim on the negative implication of true statements. Lee v. Columbian, Inc., 64 Wn. App. 534, 538, 826 P.2d 217 (1991). Defamatory meaning may not be imputed to true statements. Lee, 64 Wn. App. at 538.

As a side note: I have, through looking for pictures examining truth, learned of Tarski's undefinability theorum. You should give it a read. Philosophy major's already know of Russell's utter destruction of Frege.

You may be wondering why I didn't include links to Tarski or Russell. Simply, a computer glitch that won't let me.'s_undefinability_theorem's_paradox

Happy philosophizing!

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WA Court of Appeals at Div. II: Scribbled Crappy CR 2(a) Dissolution Agreement Enforced Because Both Parties Want It to Be

Grimsley-Lavergne v. Lavergne

This is the first time I've heard of a record referred to as "abysmal". But there's no other way to describe this. It's essentially a dissolution CR2(a) stipulation written on a bar room napkin:

On September 21, 2004, Mark, Teresa, and their attorneys attended a mediation with former King County Superior Court Commissioner Harry Slusher. The 11-hour mediation resulted in a partially typed but mostly scribbled document identified as a "CR 2A stipulation and agreement" signed by each party, the attorneys, and Slusher. The CR 2A agreement addressed many marriage dissolution issues including: (1) a parenting plan; (2) child support; (3) spousal maintenance; (4) extensive agreements on the distribution of personal property, real property, business property, and personal and business liabilities; and (5) ownership and management of the septic and plumbing business.

The CR 2A agreement is confusing; portions are interlineated, sections are crossed out, and some crossed-out sections have adjacent notes stating, "Back in." Clerk's Papers (CP) at 489-90, 493. The CR 2A agreement does clearly state, however, that "W will prepare final paperwork, incl. [the property settlement agreement]. W will do final presentation."

Anyhow, they end up having sex that night and staying together three years. Then she wants to enforce the agreement and he doesn't. Then he does. The court, understandably, is ticked that they didn't follow form in a dissolution:

Moreover, the record reflects that, although they did so at different times, Mark and Teresa each asked the trial court to enforce the CR 2A agreement. Accordingly, neither party has standing to argue that he or she is aggrieved by the trial court's enforcement of the CR 2A agreement and the entry of the final dissolution decree.

As we noted earlier, the trial court should have required the parties to comply with former RCW 26.09.070. The legislature expressly designed this statute to address the enforceability of parties' predissolution agreements. See generally former RCW 26.09.070. Moreover, former RCW 26.09.070 mandates that a predissolution separation contract be in writing and any terms of a parties' predissolution separation contract (except for parenting plans and child support) be incorporated into a decree of dissolution unless (1) the parties mutually intended to revoke the agreement or (2) the trial court finds the agreement was "unfair at the time of its execution." Former RCW 26.09.070(1), (4), (5), (8). Neither the trial court nor the parties addressed the statute.


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WA Court of Appeals at Div. II: Need to do a Motion to Suppress to Preserve Vehicle Search Issue

State v. Cross

As you recall, earlier we had a vehicle search issue come up. Here, there was no motion to suppress the gun. I'm still unclear on the timing here, but it sounds like this is the opposite of the previous, in that the area searched was exactly within the control. Center console which the driver dove for and a glove box in the control of the passenger that was heard shutting while the officer had the driver out of the car. So regardless of the fact that they didn't preserve the issue, it likely would have been the same result. We, of course, have virtually the same dissent as the last on the issue of waiver.

Conviction stands as do the enhancements (firearm of course).

For those of you wondering...I'm not going for the low-hanging fruit. That's why there's no David Cross picture up there. No, we here at The Amateur Law Professor keep things classy. That's why I now give you The Cross Gun!


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WA Court of Appeals at Div. II: Keep Things Separate and Distinct in Jury Instructions to Keep Convictions of More Than One Count.

State v. Carter

Carer is a pederass who raped his own daughter between the ages of 6 and 7 given my counts. Lovely guy, non? Unfortunately, the jury instructions didn't spell out which acts they were finding and subjected Carter to the possibility that the counts were based on the same opposed to several separate and distinct acts, which are required to avoid double jeopardy issues. As such, only one of the counts can survive.

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WA Court of Appeals at Div. II: Argument that Rick Astley is Not a White Guy Fails

State v. McGrew III

You may remember a way back there was a hullaballoo about an offender getting mad at getting a firearm enhancement when the jury found a deadly weapon. The court reversed because a deadly weapon could be something other than a firearm. Well here is the opposite problem. Well, not really a problem. A firearm is always a deadly weapon.

Let's see if we can break this down. I am white. Rick Astley is white. Consider a firearms enhancement like Rick Astley. Say a trial court said...hey, you're Justin, and therefore a white guy, and we will give you a white guy enhancement:

Photo on 2010-07-15 at 09.21.jpg

(IS a white guy)

But say it was even worse than being a white guy to be Rick Astley. And the court found that I was Rick Astley because it already found I was a white guy.



(NOT Justin)

However, you can say that if you find that a person is Rick Astley to begin with, that he is in fact a white guy. That's not only science, but it is me Rick-rollin' you!!!!

So needless to say, the fact that a firearms enhancement was found does in fact mean Rick Astley is a white guy (or that there was a deadly weapon involved). So needless to say, arguing a firearm is not necessarily a deadly weapon fails.

He also claimed that the firearm enhancement punished the same criminal conduct as the firearm charged. Unfortunately, this has come up before. A sentencing enhancement isn't a sentence, and thus falls outside double jeopardy.




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WA Court of Appeals at Div: II: Would the Real Party In Interest Please Stand Up?

Kim v. Moffett

Kim and his sons sought help of an Olympia architect to facilitate some California deals. Kim transferred the land to his sons. Kim then entered into the contract with Moffett for the services. He was the only contracting party, saying that it was between Kim and Moffett only. The sons weren't involved. Moffett moved to California, and wanted out of the agreement. Kim transferred the land to the partnership, sued, and then added the partnership as a Plaintiff. Kim didn't appeal dismissal of his and JME's claims, but his sons did. Held, the sons are not real parties in interest and can't enforce his personal services contract for an undisclosed principal:

As a contracting party, Kim could bring a claim alleging breach of his contract with Moffett for architectural services. While it remains to be seen whether Kim can prove a breach, the trial court erred in denying Kim that opportunity.

. . .

The nonassignability of personal services contracts as noted in the above cases is significant because such designation corresponds to the limits placed on the above stated general rule. This is so because the nature of the performance that a contract requires determines whether an undisclosed principal is entitled to receive that performance. See Restatement (Third) of Agency § 6.03 cmt. d (2006). Accordingly, Dana and Columbia state the applicable rule regarding "simple contracts," such as cash for goods. But because the present case involves a personal services contract, we hold that the trial court correctly ruled that an undisclosed principal may not enforce performance. See Restatement (Third) of Agency § 6.03 cmt. d (2006).

Seriously, how am I supposed to make this funny (aside from my brilliant, and not at all sophomoric, reference to Eminem)?

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WA Court of Appeals at Div. II: Notify All Interested Tribes Under ICWA

In re Welfare of L.N.B.-L., A.D.B.-L.

Ready for your daily bar prep? Under the Indian Child Welfare Act, when initiating termination proceedings, you must give notice to the tribes if they wish to intervene. This means all the tribes which have an interest. Here, the state failed to notify three interested tribes. The termination, as terminations do, will likely stand. The court, to fix the procedural error, took a rare step in affirming with a remand. The remand is to give proper notice to the three tribes not notified. If any wish to intervene, then there will be a do-over.

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WA Court of Appeals at Div. II: Notify All Interested Tribes Under ICWA

In re Welfare of L.N.B.-L., A.D.B.-L.

Ready for your daily bar prep? Under the Indian Child Welfare Act, when initiating termination proceedings, you must give notice to the tribes if they wish to intervene. This means all the tribes which have an interest. Here, the state failed to notify three interested tribes. The termination, as terminations do, will likely stand. The court, to fix the procedural error, took a rare step in affirming with a remand. The remand is to give proper notice to the three tribes not notified. If any wish to intervene, then there will be a do-over.

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WA Court of Appeals at Div. II: NIED Claim Survives Ecclesiastical Abstention

Erdman v. Chapel Hill Presbyterian Church

Under the ecclesiastical abstention doctrine, you usually let church employment matters be handled by the church. Anything less usually gets you into first amendment no-no zones. Same with this, a church employee who continually questioned her church's guided religious tours as not being in comport with the church's status as a non-profit.

Needless to say, her employment went south. Most of her claims fell under the abstention, with only her negligent supervision and retention claims surviving:

Analyzing this case under Bollard, we first note that the church has not offered a religious justification for Toone's alleged tortious acts. Instead, it has denied that any misconduct occurred and argues that both the ministerial exception and ecclesiastical abstention bar consideration of Erdman's claims. Second, in its employee handbook, the Church specifically recognizes its prohibition against sexual harassment. Third, the Church's Book of Order states that the Session possesses responsibility "to provide for the administration of the program of the church, including. . . fair employment practices." CP at 831. Thus, the Church's employment policies and church doctrine prohibit sexual harassment. Fourth, Erdman's negligent supervision and retention claims and the Church's potential defenses involve a limited, secular inquiry similar to the plaintiff's claims and potential defenses under Bollard.

The First Amendment does not bar Erdman's negligent supervision and retention claims against the Church. Thus, we remand for further proceedings.


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WA Court of Appeals at Div. II: If limited to not fair and impartial, holdout juror can be removed if she asks

State v. Hopkins

Hopkins was down at a Marina with a girl. An officer found his truck, knew it was a high-burglary area, and then found the two strolling. During questioning, she gave her ID, he didn't give his, then relented and went back to the truck to grab it. He was being a bit aggressive (stomping, shouting), while the girl just seemed embarrassed. While the cop was focusing on Hopkins, the girl pulled a knife and snuck behind the officer. Luckily for him, quick reflexes kept him safe, and he got both in custody without losing his life.

The issue came in deliberation. A juror (the one deadlocked juror of course, or this wouldn't be interesting) told the presiding that while she initially though she could be impartial, she was sure now that she couldn't. She asked to be removed. The judge was careful about not intruding on the deliberations, asking her typical for cause removal questions. She was excused and a verdict was returned.

Not improper.

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WA Court of Appeals at Div. II: Free Crimes Factor May Be Considered By Trial Court Rather Than Jury

State v. McNeal

McNeal was resentenced under Blakely. On resentencing, the trial court impanelled a jury to hear evidence on free crimes. Under Free Crimes, a sentence may be placed outside the standard sentencing range if failing to do so would result in the offender essentially getting a free pass on one or more of his crimes. That's the best I can do with it, I'm a Plaintiff attorney. The only math I know is 1/3. (Well, that's not true, I actually do still know how to do a derivative in calculus. That's right, where f(x)=x^3, then d(x)=3x^2. I think that's the case. Its what some guy who looked like Gandalf told me online. Seriously, my calculus professor taught me online and looked like Gandalf. I trust a hippy wizard with my math over a scientist any day.). Because he's no longer teaching at Bellevue College, I instead give you an artist's rendering of what he may look like now.


Anyhow, the court of appeals concluded that the trial court, on remand, could consider free crimes without impanelling a jury, seeing as no facts need to be found. Its just math.

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WA Court of Appeals at Div. II: You must challenge a search to win on appeal

State v. Pearsall

Pearsall was pulled over for driving with a suspended license. She gave the ID of another, lied about her identity (of one who she bore no physical resemblance towards), and fessed up, ending up in cuffs. The cop then searched her vehicle incident to arrest and found some vicodin. Well, under recent WA law, you can only search within the physical proximity of the Defendant. This would have been a great issue to bring up, only it came down between trial and the appeal. The argument was not preserved.

Here's my argument to the supremes, assuming such a petition was made: I am not fully aware of the timing. I am issuing that as a caveat in case I am entirely wrong. I do only skim these after all. But, wouldn't it have been a CR 11 sanction for Pearsnall to attempt to argue at the time that the search of the vehicle incident to arrest violated her rights. I mean, it was a shocker when the opinion came out that such searches were improper. To ding her because she didn't  raise those arguments below is a bit of a problem in my book. It will be interesting to see if a challenge on this gets up.

Nevermind. The dissent argues just that.

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WA Court of Appeals at Div II: "Good Cause" = "Good Reason" and neither was present here.

Puget Sound Medical Supply v. DSHS

Puget sound medical supply was dinged for medicaid overpayments. They were ordered to pay it back. They wanted to appeal it, but were a day late. If they could show their failure was with good reason, they get back into it. Good reason doesn't appear much, but the court of appeals ruled that it was essentially good cause. PSM blamed the failure on the short time (but that's in the rules, so that's not good cause), office staff being out for the holidays, lead counsel leaving the firm, etc. etc. The problem is, courts have held that breakdown in office procedure doesn't count as good cause, and that is all that happened here. No dice PSM.


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WA Court of Appeals at Div. II: Breach of Warranty to Defend starts clocking when the cause of action arises

Erickson v. Chase

As does tend to happen, people had land, but the borders were iffy. Some people took some trees that may or may not have belonged to them. The question is, "When does your cause of action for a duty to defend on a warranty deed arise." Here, the people with the duty say its from when you buy the land, and you have six years from that point. The court of appeals held differently. The clock runs out six years from when you learn of the breach of warranty such that the duty to defend would be triggered. That is all.

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Court of Appeals, Div. II: The Dead Hand picks the wrong plaintiff

Lakewood Racquet Club Inc., v. Jensen In Lakewood Racquet Club Inc., the court of appeals denies standing to sue for heirs of a long deceased landowner.  This patriarch, a Mr. Orr, entered into real estate agreements with the Racquet Club back in the 60s, selling them part of his land while obtaining a restrictive covenant preventing the Club from building any residential units on the property.

When the Club decided to build condos and townhomes on its property, the diasporated children of the Patriarch sued to enforce the covenants.  Each was removed from the land in some way.  One child lived in Nevada, another in Pierce County, and one with no identifiable location in the record.

Interestingly, this case presented a question of first impression in Washington.  To wit, whether covenantees later removed from the land maintained their right to enforce the covenant.  From that question, the ultimate question of the case can be answered: whether the covenantees suffered and "injury in fact" by the breach of the covenant.  The first question turns on whether the benefit is appurtenant or in gross.  The court held that the benefit was specific to the neighboring parcels to the Club; it is appurtenant to those parcels.  As such, only those with an ownership interest in those parcels would have a justiciable claim to enforce the covenant.  Those without will lack standing to sue for a declaratory judgment.

The court was careful to state that its holding did not foreclose all divested covenantees' enforcement actions, but the implication is that in most cases they will lack standing.

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Court of Appeals - Div. II: GAL Petitioners not on the hook for costs and attorney fees GAL-initiated action

Matthews v. Sherwood Assisted Living, Inc. Ah, human greed and cruelty, why are you so prevalent?  Matthews arose out of the actions of two relatives of an incapacitated elder living in an assisted living facility.  After a State Ombudsman's investigation and report revealed (the court uses the kinder word "suggested") that the relatives were siphoning money off of grampa, an employee of the facility petitioned the court to appoint a guardian ad-litem (GAL).

Now, I don't really want to speculate beyond the facts presented in the opinion, but the situation had reached that point, it must have been quite bad.  Nonetheless, the relatives doubled-down on the greed by trying to move Mr. Matthews to California, out of his erstwhile home of six years, and the GAL petitioned for a temporary restraining order. (TRO)  Because a TRO petition is to be accompanied by a bond, the trial court ordered the facility to one up in the amount of $10,000.  When the facility refused, the court denied the TRO (allowing the relatives to move grampa to California), dismissed the GAL petition, and awarded attorney fees to the relatives.  Ouch.

Thankfully, Division II don't play that, and reversed the trial court:

We hold that a GAL appointed under RCW 11.96A.160 or former RCW 11.88.010 has an agency relationship with the court much like a permanent guardian or limited guardian appointed under the Trust and Estate Dispute Resolution Act (TEDRA) (ch. 11.96A RCW) has with the court. . . . A GAL is not an agent of a guardianship petitioner.  A GAL makes recommendations and takes actions free of a petitioning parties' vested interests.  See former RCW 11.88.090(3)(a).  Thus, the petitioner for a guardianship cannot be held liable for the GAL's actions taken during the guardianship petitioning process and vice versa.

This decision makes sense on a number of levels, but the main point is that unless an interested third party is petitioning for a GAL unreasonably or in bad faith, isn't this exactly the outcome we as a society want to see?  I would think so, and I'm glad the court read the statutes that way.

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