[WSBARP] Commissioner turns a Show Cause hearing into a "trial" - anyone have experience with this?
Kaitlyn Jackson
kaitlyn at dimensionlaw.com
Mon Jul 13 13:26:02 PDT 2020
Thank you, Catherine! That will be helpful in the motion for a revision.
Kaitlyn
On Mon, Jul 13, 2020 at 12:12 PM Catherine Clark <Cat at loccc.com> wrote:
> Here is some research from a brief I recently filed addressing police
> reports as hearsay. I hope it is helpful.
>
>
>
> Moreover, the statements in the police report include the present sense
> impressions of the investigating officer and thus are excepted from the
> rule against hearsay. As a general rule, police reports are excluded as
> hearsay unless an exception to the rule against hearsay applies. *E.g.
> In re Det. of Hammond, *2019 Wash. App. LEXIS 724 (Docket #77287-2-I,
> March 25, 2019). One exception to the rule against hearsay is a present
> sense impression under ER 803(a)(1) which states:
>
> (a) Specific Exceptions. The following are not excluded by the
> hearsay rule, even though the declarant is available as a witness:
>
> (1) *Present Sense Impression*. A statement describing or
> explaining an event or condition made while the declarant was perceiving
> the event or condition, or immediately thereafter.
>
> *Jonas v. Isuzu Motors Ltd, *210 F. Supp. 2d 1373, 1378 n. 6 (N.D. Ga.
> 2002) (admitting a police report where officer relied not only on
> statements of others but own observations of evidence at the accident
> scene).
>
>
>
>
>
> Catherine “Cat” Clark
>
> Law Office of Catherine C. Clark PLLC
>
> 2200 Sixth Avenue, Suite 1250
>
> Seattle, WA 98121
>
> Phone: (206) 838-2528
>
> Cell: (206) 409-8938
>
> Fax: (206) 374-3003
>
> Email: cat at loccc.com
>
>
>
> NOTICE: The information contained in this electronic information
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> communication in error, please immediately notify the sender by telephone
> at (206) 838-2528. Thank you.
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Andrew Hay
> *Sent:* Saturday, July 11, 2020 3:18 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?
>
>
>
> HI Kaitlyn - Not much to lose with revision.
>
>
>
> Jus some quick brainstorming here.
>
>
>
> I might poke through the transcript for admissible evidence supporting
> your case and point that out in the motion. But with a 1.2 hour hearing
> that might be too time-consuming. Presumably this dismissal means you have
> to restart with new 3-day and new occurrences of nuisance. That may be the
> path of least resistance.
>
>
>
> This probably restates the obvious, but if the police report is sworn is
> it admissible testimony, except when it has what police officer says people
> tell him/her.
>
> Generally a statement of the defendant is admissible as a statement of a
> party opponent. So if the police report has the defendant’s statements it
> should be admissible.
>
> If your declarations contain what other people are telling them, that
> could be hearsay (again unless it is a statement of a party opponent)
>
> Plus you are allowed to cross examine the defendant on matters addressed
> in the report without admitting it.
>
> But if your declarations contain adequate description of the nuisance from
> personal knowledge, then you have a evidence to support your case. A
> revision judge reviews the pleadings de novo and may rule outright in your
> favor.
>
> Or maybe the judge will send it back to your commissioner to give him/her
> a second chance to get it right.
>
> Either that or wait for a new sequence of nuisance and do it again.
>
> Client’s choice really
>
> *Andrew Hay*
>
> Hay & Swann PLLC
>
> 201 S. 34th St.
>
> Tacoma, WA 98418
>
> *www.washingtonlaw.net* <http://www.washingtonlaw.net/>
>
> *andrewhay at washingtonlaw.net* <andrewhay at washingtonlaw.net>
>
> 253.272.2400 (w)
>
> 253.377.3085 (c)
>
> THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED
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>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Kaitlyn Jackson
> *Sent:* Saturday, July 11, 2020 1:18 AM
> *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?
>
>
>
> I would like to add that the hearing was 1.2 HOURS. I’ve been told and
> I’ve done many, many UDs, that show cause hearings are 15 MINUTES or less.
>
>
>
> Kaitlyn
>
> Sent from my iPhone
>
>
>
> On Jul 11, 2020, at 1:05 AM, Kaitlyn Jackson <kaitlyn at dimensionlaw.com>
> wrote:
>
> Nicholas -
>
>
>
> My office followed all the rules for service for the notice under 59.12
> and the relevant proclamations. At no point was my client cross examined
> for credibility or were any of the documents themselves examined for
> credibility or improper service. As a matter of fact, the tenant was
> caught lying on the record when I cross examined her on multiple occasions.
> The court called her “not credible.” My client’s position remained solid
> except that the exhibits were not considered before the court because the
> police reports and declarations were “hearsay” and “not admissible.”
>
>
>
> My client was justified. He was believable. He was honest. He was correct.
> But that’s not the issue here. The issue here is whether a show cause
> hearing requires the plaintiff to bring police officers and other tenants
> to testify to the reports and declarations or - if a trial should have been
> set and/or if a motion for revision is appropriate under these facts.
>
>
>
> I checked my email to this group. Why do you mention commissioner Hillman?
> I checked my initial email and I don’t mention him.
>
>
>
> Kaitlyn
>
>
>
>
>
> Sent from my iPhone
>
>
>
> On Jul 10, 2020, at 11:06 PM, Nicholas Pleasants <nick at pleasantslaw.com>
> wrote:
>
>
>
> 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 à Tenant cannot be evicted for
> nonpayment of rent because Landlord failed to provide habitable residence
> à 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
>
> The information contained in this e-mail message may be privileged and is
> confidential information intended only for the use of the recipient, or any
> employee or agent responsible to deliver it to the intended recipient. Any
> unauthorized use, distribution or copying of this information is strictly
> prohibited and may be unlawful.
>
> If you have received this communication in error, please notify the sender
> immediately and destroy the original message and all attachments from your
> electronic files.
>
>
>
> *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.
>
> Sent from my Verizon, Samsung Galaxy smartphone
>
> Get Outlook for Android <https://aka.ms/ghei36>
>
>
> ------------------------------
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> on behalf of Kaitlyn Jackson <
> kaitlyn at dimensionlaw.com>
> *Sent:* Friday, July 10, 2020 5:48:10 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?
>
>
>
> 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> 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
>
> Web site: www.hawkeslawfirm
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> 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>
> *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>
> 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|
> 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|
> 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
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> will continue to advise and support our clients throughout this health
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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*|
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;
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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
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