Confrontation Clause: New test for expert witnesses in WA

                State v. Lui, No. 84045-8 (Jan. 2, 2014) The Washington Supreme Court declared a new test today regarding the confrontation clause.  Confrontation clause analysis has been fragmented for many years and even the United States Supreme Court was divided on how to articulate the rule.  Well, here it is: If the declarant makes a factual statement to the tribunal, then he or she is a witness. If the witness's ... [Continue Reading]

Pay Attention to Administrative Appeal Deadlines

When practicing administrative law you must pay close attention to deadlines.  Sometime the attorney is not at fault because they did not get the case until it is too late.  McLain v. Kent School District is a perfect example.  No. 68373-0-I (Dec. 16, 2013). A school district has the right to not renew the contract for a certified teacher if there is probable cause.  RCW 28A.405.210.  When a teacher receives a notice of nonrenewal, they  may file a notice of appeal.  If they file the ... [Continue Reading]

Division III Breaks the Tie – Attorney Fees for LUPA Actions

      Attorney Fees for LUPA Actions In Gresh v. Okanogan County, No. 31394-8-III, the appellant brought an untimely LUPA claim and the court dismissed the petition.  RCW 4.84.370(1) awards fees to the "prevailing" or "substantially prevailing" party in land use litigation.  Respondent sought attorney fees because the court dismissed the petition.  Division I and II disagreed on whether “prevail” means on the ... [Continue Reading]

ER 404(b) Does Not Violate Accused’s Constitutional Right to Present a Defense

State v. Donald, No. 68429-9-I (Dec. 9, 2013) Defendant Harold Donald was charged with first degree assault and attempted robbery.  Donald’s defense at trial was that the other defendant, Lorenzo Leon, committed the crime alone.  To support this defense, Donald sought to introduce evidence of Leon’s criminal and mental health history.  The court excluded Leon’s criminal history, but allowed a limited amount of his mental health history.  The trial court admitted evidence showing ... [Continue Reading]

Trial Court May Award Separate Property in Dissolution Even if Community Property Amply Provides

    In re Marriage of Larson v. Calhoun, No. 69833-8-1 (Nov. 25, 2013) Before Larson and Calhoun were married, Larson acquired an equity interest in Microsoft and held it principally as his separate property.  The marital community exercised some Microsoft stock options during the marriage, which Larson treated as a community asset. After a trial, the court awarded Calhoun community assets worth approximately $139 million and more than $40 million of Larson’s separate ... [Continue Reading]

Tacking Trademark Rights on Appeal, Question of Law or Fact?

        Hana Financial Inc. v. Hana Bank, No. 11-56678 (9th Cir. Nov. 22, 2013) For the purposes of this blog, the facts are largely irrelevant, but to read the extended analysis of this case you can contact me by clicking the "contact" link at the top of the page and submit a request.  Here, I will only discuss the appellate implications. A party claiming trademark ownership must establish that it has priority, meaning it was the first to use the mark in ... [Continue Reading]

Under WEAJA, No Judicial Review, No Attorneys’ Fees

  More on Attorneys' Fees   In re Dependency of A.P., No. 30925-8-III (Nov. 14, 2013) DSHS filed a petition and alleged A.P. was a dependent of the State, but B.P. successfully opposed it in superior court and retained custody of her daughter. She sought an award of reasonable attorney fees and costs under Washington's equal access to justice act (WEAJA) in RCW 4.84.350.  WEAJA awards attorneys’ fees to qualified parties who prevail in a judicial review of an agency ... [Continue Reading]

State Does Not Get Attorneys’ Fees for PRP Challenging DOC’s Administrative Disciplinary Action

      When prisoner Derek Gronquist was sanctioned loss of early release credits for allegedly assaulting a correctional officer, he filed a personal restraint petition in the Washington Supreme Court to challenge it.  Personal Restraint of Gronquist, No. 87666-5 (Nov. 14, 2013).  The court’s commissioner dismissed the petition, but awarded the State attorneys’ fees of $200 under RCW 10.73.160(2).  The court found that a challenge to the department’s ... [Continue Reading]

90 Day Presuit Notice Requirements Do Not Violate Equal Protection

McDevitt v. Harborview Medical Center, No. 85367-3 (Nov. 14, 2013)   Glen McDevitt had a paragliding accident that required surgery at Harborview Medical Center, a King County public hospital.  He alleges he was taken off anticoagulant medication after surgery and sued for damages.  Harborview moved for summary judgment based on the undisputed fact that McDevitt failed to comply with the 90 day presuit notice requirement of former RCW 7.70.100(1) for all medical malpractice suits.  ... [Continue Reading]

The Battle of the Presumptions: No Majority Rule In WA On Conflicting Presumptions

The Court of Appeals recently declined to make a bright line rule about conflicting presumptions in Drown v. Boone, NO. 67255-0-1, (Ct. App. Oct. 28, 2013). Randall Langeland and Sharon Drown were in a committed intimate relationship from 1983 until 2009 when Langeland died.  His personal representative inventoried proceeds from a software company Langeland founded in 1994, a house that he purchased with Drown in 1999, and a 36-foot sailboat purchased in 1998 as Langeland’s ... [Continue Reading]