[WSBARP] Commissioner turns a Show Cause hearing into a "trial" - anyone have experience with this?

Fri Jul 10 23:04:06 PDT 2020

Well, I’ll give my 2 cents. I’ve warmed up to Commissioner Hillman since he switched to Ex Parte department in 2018, and I think he does his best to do what is appropriate given the situation. I volunteered for HJP for several years, I have represented dozens of tenants as well as several Landlords, and have a pretty good feel for how unlawful detainer proceedings are conducted in King County. Here is my take:
First issue – hearing was initially continued so tenant could obtain counsel. Normally (pre-COVID), at 9am when the parties check in, the Commissioner would have sent the tenant down the hall to HJP to check in and be paired with a volunteer attorney. Due to COVID, this didn’t appear possible on that morning, so the hearing was continued. In the interest of fairness to a tenant that probably has no clue how the legal system works, the Commissioner decided to give him or her a chance to obtain counsel. Perfectly reasonable.
Second issue – presenting credible evidence. The factual allegation is that the tenant is causing a nuisance. The Show Cause Hearing is an evidentiary hearing where the Commissioner is being asked to weigh evidence. The Commissioner expects the Landlord or Property Manager to participate. They are typically sworn in and provide testimony. The tenant is then given an opportunity to cross-examine the Landlord. As tenant’s counsel, I cross-examined many Landlords. If the Landlord was not believable, the case might be dismissed. (E.g. Tenant proves Landlord did not timely repair critical defect --> Tenant cannot be evicted for nonpayment of rent because Landlord failed to provide habitable residence --> case immediately dismissed)
Third Issue – case was dismissed rather than set for trial. The Commissioner has the authority to dismiss an unlawful detainer action any time a procedural step is not followed. Unlawful detainers have an expedited caseflow, and for that reason, the Commissioner has much more discretion to manage the case. I don’t know enough of the facts in your case, but it is not unusual for unlawful detainers to be dismissed at the Show Cause Hearing. If there is no proof the 3-day notice was properly served, Case Dismissed. The validity of the Landlord’s underlying 3-day Notice is a threshold matter before it can be certified for trial. You only get a trial if there is a set of facts upon which a Trial Judge could order an eviction. If your 3-day notice was invalid on its face, for whatever reason, then the case is dismissed.
I know it feels like you got hometowned or mistreated, but remember, the Commissioner handles thousands of evictions and by this point Commissioner Hillman certainly knows Ch 59.18 RCW much better than you or I. I’ll add that Unlawful Detainer matters are a technical minefield, and for that reason, even though I have participated in dozens of proceedings on both sides, I just refer them out to the firms that do this routinely.

Nicholas Pleasants
Pleasants Law Firm, P.S.
2300 130th Ave NE, Suite A-101
Bellevue, WA 98005-1755
(425) 615-7070 tel.
(425) 497-0799 fax
nick at pleasantslaw.com<mailto:nick at pleasantslaw.com>
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Craig Gourley
Sent: Friday, July 10, 2020 6:55 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Commissioner turns a Show Cause hearing into a "trial" - anyone have experience with this?

Hmmm. Thought perhaps a newly minted attorney from the class of 2020.
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>>
Sent: Friday, July 10, 2020 5:48:10 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Commissioner turns a Show Cause hearing into a "trial" - anyone have experience with this?

Not a pro tem. Long standing commissioner in King-KNT.

On Fri, Jul 10, 2020 at 5:44 PM Roger Hawkes <Roger at law-hawks.com<mailto:Roger at law-hawks.com>> wrote:

Was the Commish a pro tem?

Roger Hawkes, WSBA # 5173

Shoreline Office: 19944 Ballinger Way NE

                                Shoreline, WA 98155

Sultan Office:        423 Main

                                 Sultan, WA 98294

Phone: 206 367 5000; fax: 206 367 4005

Email: roger at law-hawks.com<mailto:roger at law-hawks.com>

Web site: www.hawkeslawfirm<http://www.hawkeslawfirm>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Eric Lanza
Sent: Friday, July 10, 2020 5:15 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Commissioner turns a Show Cause hearing into a "trial" - anyone have experience with this?

Wow! I’ve never seen that before...

The show cause is supposed to be treated like a Landlord’s summary judgment hearing. If there is no genuine issue of material fact, plaintiff gets the writ. If there is a genuine issue of fact, the writ doesn’t issue and the matter proceeds to trial. Dismissal at show cause? Yikes...

 I read the last paragraph of 59.18.380...

“If [at the show cause hearing] it appears to the court that the plaintiff should not be restored to possession of the property, the court shall deny plaintiff's motion for a writ of restitution and enter an order directing the parties to proceed to trial within thirty days on the complaint and answer.”

Eric J Lanza

Buzzard O’Rourke P.S.

Sent from my iPhone

On Jul 10, 2020, at 4:54 PM, Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>> wrote:

Brain trust -

I just had a bizarre experience in front of a King County Commissioner for what was supposed to be a show cause hearing for an unlawful detainer based on a 3 day notice to quit for waste and nuisance and in compliance with Proc. 20-19.2 arguing that the defendant's conduct put the immediate health and safety of other tenants at risk. The hearing was initially set for Wednesday. At the phone conference, the Commissioner asked the Defendant if she's spoken to HJP. Defendant had not, so the Commissioner ordered a continuance until today (without even asking me or my client if we would be available today - but I digress). Of course, HJP did not represent this defendant. So, at the hearing this morning, the Commissioner said that the police reports and declarations I attached to the Complaint were "hearsay" unless the police and the witnesses were present to testify. Frankly, I told the court I was surprised by the process as presenting witnesses in that manner (other than the Plaintiff) was usually only required or trial and not for a simple show cause hearing (especially for having police testify). I asked the Commissioner if he was setting the case for trial and he said "this is trial." Well, ultimately without being able to present my evidence, the Commissioner dismissed the case based on lack of evidence.

Yes I completely disagree with the court's conclusion. Frankly, it begs the question, "how many drug needles left around the common areas are needed in order to conclude that the health and safety of others is at risk?"

But the real issue I'm having here is the fact that I don't know how to prepare for a show cause hearing that can be sua sponte declared a trial without notice or an opportunity to prepare evidence. This is especially true since the court can continue the scheduled hearings without asking about availability if I'm expected to bring witnesses to testify.

I know I can do a motion for revision or a motion for reconsideration. I think a reconsideration is a waste of time and resources. I may have more luck with a revision but it seems like we are living in West World right now so it feels like "anything goes" especially if your opponent is pro se.

Has anyone else had a situation like this arise? Is anyone willing to lend some tips for managing the next steps?

I really appreciate any tips, stories, or ideas.

--

Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188

t: 206.973.3500 | f: 206.577.5090| e: kaitlyn at dimensionlaw.com|<mailto:kaitlyn at dimensionlaw.com%7C> www.dimensionlaw.com<http://www.dimensionlaw.com/>

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--
Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: 206.973.3500 | f: 206.577.5090| e: kaitlyn at dimensionlaw.com|<mailto:kaitlyn at dimensionlaw.com|> www.dimensionlaw.com<http://www.dimensionlaw.com/>

Covid-19 Update - Dimension Law Group remains available to serve our clients and the public during this time, subject to the orders and recommendations of government authority.

All attorneys and staff are working remotely regular business hours and are available via email and by phone. Videoconferencing also is available. We will continue to advise and support our clients throughout this health emergency.

PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is intended only for the use of the individual or entity named above and may contain privileged or confidential information. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are notified that any review, dissemination, distribution or copying of this e-mail is prohibited. Attempts to intercept this message are in violation of 18 USC 2511(1) of the Electronic Communications Privacy Act, which subjects the interceptor to fines, imprisonment and/or civil damages. If you have received this e-mail in error, please immediately notify us by e-mail, facsimile, or telephone; return the e-mail to us at the e-mail address below; and destroy all paper and electronic copies. Any settlement offer contained herein is made pursuant to Washington ER 408, and without admitting fault or liability on the part of this firm’s client(s) or its agents.  IRS CIRCULAR 230 DISCLAIMER:  To ensure compliance with requirements imposed by the IRS, I inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code; or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein.

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