Everett v. Perez, CS-99-0258JLQ.

• Decision Date: 28 December 1999
• Docket Number: No. CS-99-0258JLQ.,CS-99-0258JLQ.
• Citation: 78 F.Supp.2d 1134
• Court: U.S. District Court — District of Washington
• Parties: Harold and Idella EVERETT, a married couple; and Richard Everett, Plaintiffs, v. Robert Picardo PEREZ and Lucy Perez, individually and in their marital community; Kenneth C. Badgley and Earl F. Tilly, individually and in their official capacities; and City of Wenatchee, a municipality, Defendants.

78 F.Supp.2d 1134

Harold and Idella EVERETT, a married couple; and Richard Everett, Plaintiffs, v. Robert Picardo PEREZ and Lucy Perez, individually and in their marital community; Kenneth C. Badgley and Earl F. Tilly, individually and in their official capacities; and City of Wenatchee, a municipality, Defendants.

No. CS-99-0258JLQ.

United States District Court, E.D. Washington.

December 28, 1999.

Tyler K. Firkins, Robert C. Van Siclen, Van Siclen & Stocks, Auburn, WA, for Plaintiffs.

Lee V. Corkrum, Ogden Murphy Wallace, Seattle, WA, Patrick G. McMahon, Carlson Drewelow McMahon & Kottkamp, Wenatchee, WA, for Defendants.

MEMORANDUM ORDER AND OPINION DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTIONS TO STRIKE

QUACKENBUSH, Senior District Judge.

Before the court are Plaintiffs' motion for partial summary judgment (Ct.Rec.12) and motion to strike (Ct.Rec.33), as well as Defendant City of Wenatchee's motion to strike (Ct.Rec.50) and associated motions regarding the briefing schedule (Ct. Recs.38, 47). The court held a hearing on these motions on December 21, 1999. Plaintiffs were represented by Tyler K. Firkins. Defendants City of Wenatchee, Kenneth Badgley, and Earl F. Tilley were represented by Patrick McMahon. Defendants Robert and Lucy Perez were represented by Lee Corkrum. At the hearing, the court announced its ruling. This memorandum order and opinion supplements the court's comments and documents the procedural matters discussed at the hearing.

I. Relevant Facts

In order to consider the merits of Plaintiffs' motion for partial summary judgment, it is not necessary for this court to delve into the full background of this case. However, a brief description of the procedural history — which is undisputed — is necessary.

Plaintiffs are Harold and Idella Everett (hereinafter, "the Everetts") and their son, Richard Everett. In 1994, two of the Everetts' other children, Donna and Melinda, accused their parents of sexual abuse. These accusations were made during interrogations by Defendant Robert Perez, a police officer then employed by Defendant City of Wenatchee who was also the foster parent of both Donna and Melinda.

Donna and Melinda's allegations led to the incarceration of the Everetts and the placement of Richard with a Minnesota couple that has since adopted him. Idella, who has a limited mental capacity, entered an Alford guilty plea to the charges of sexual abuse in November 1994. Harold entered an Alford plea to similar charges in December 1994.

The Everetts appealed their convictions, alleging that they were innocent and that the case against them had been tainted by Defendant Perez's improper investigative techniques. According to the Everetts, new evidence had emerged which dictated the need to allow the Everetts to revoke their pleas and and to grant both of them a new trial. Most importantly, the Everetts produced an audio tape and a videotape in which Melinda recanted her allegations of sexual abuse and claimed that she had made the allegations in response to Perez's coercive interview techniques.

This evidence was raised in front of the Court of Appeals of the State of Washington via the Everetts' personal restraint petitions. On December 18, 1997, the Court of Appeals determined that it could not decide the merits of those petitions based on the record before it and ordered that the Superior Court for Chelan County conduct a reference hearing and make factual findings. According to the Superior Court, the Court of Appeals ordered it to answer the following questions:

1. Are the recantations of prior sworn statements by Melinda Everett, occurring on June 1 and June 2, 1996, reliable and believable, meaning that the original statements were perjured?

2. Were these recantations material; that is, will they probably change the outcome? This means that if the Defendants are allowed to withdraw their pleas of guilty, the probable result of a trial will be either a not guilty verdict or the lack of conviction.

3. Was there state misconduct in handling the case in the way of:

a. Coercive and otherwise improper interview techniques used in the interrogation of witnesses; and

b. Physically assaultive behavior in the role of foster parent by Detective Robert Perez. (Court's Memorandum Decision on Reference Hearing, Ct. Rec. 22, Ex. 6 at 3)

The reference hearing, which began on March 11, 1998, was held in front of Judge Wallis Friel and spanned the course of seven days. Twenty-four witnesses testified as to the facts of the criminal case. Judge Friel's resulting Memorandum Decision, issued March 31, 1998, was sixty-four pages long. Excerpts from the Memorandum Decision are provided below to the extent necessary to analyze Plaintiffs' current motion.

After reviewing Judge Friel's opinion, the Washington State Court of Appeals granted each of the Everetts' petitions and remanded the cases to the Superior Court for withdrawal of the Everetts' guilty pleas. The State did not petition the Supreme Court of Washington to review this decision. The Everetts were released from jail. The prosecution did not pursue a new trial of the criminal charges.

On September 2, 1999, Plaintiffs filed this civil suit in the Superior Court of Chelan County alleging that Defendants, among other things, violated Plaintiffs' civil rights. Defendants removed the action to this court on September 20, 1999.

Plaintiffs have moved for partial summary judgment against Defendants Perez and City of Wenatchee on the basis of collateral estoppel. Plaintiffs request that this court adopt "the findings as fully set forth in both the trial court's memorandum decision and the Court of Appeal's Unpublished Opinion." (Ct. Rec. 16 at 4.)

Plaintiffs have also filed a motion to strike portions of affidavits filed by Defendants in response to the motion for partial summary judgment. Defendant City of Wenatchee has also filed a motion to strike certain documents which Plaintiffs submitted in support of the motion for partial summary judgment.

II. Summary Judgment Standard

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the material facts before the court. See Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party is entitled to summary judgment when, viewing the evidence and the inferences arising therefrom in favor of the nonmoving party, there are no genuine issues of material fact in dispute, and it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). However, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141 (9th Cir.1983).

III. Application of Collateral Estoppel Doctrine

In determining whether collateral estoppel applies, this court looks to Washington state law on the matter. In Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 72 L.E.2d 262 (1982), the Court made it clear that the Full Faith and Credit Act, 28 U.S.C. § 1738, "does not allow federal courts to apply their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken."

Washington law provides that collateral estoppel applies only when the party seeking estoppel can show that 1) the issues between the first action and the second are identical, 2) the parties to be estopped in the second action were parties in the first suit, or are in privity with parties in the first suit, 3) the first suit resulted in a final judgment on the merits, and 4) there would be no injustice if the parties were estopped from relitigating the issues. See Nielson v. Spanaway General Medical Clinic, Inc., 135 Wash.2d 255, 262-63, 956 P.2d 312 (1998). All of these elements must exist before collateral estoppel may be entered. Defendants claim that none of them exist here.

The court notes, as a preliminary matter, that Plaintiffs seek the "offensive" application of collateral estoppel against defendants, i.e., an application of estoppel that would bar a party from defending itself. While the Supreme Court has given courts broad discretion to apply offensive estoppel, it recognized, in Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 330, 99 S.Ct. 645, 58 L.E.2d 552 (1979), that collateral estoppel is more likely to be unfair when the estopped party is a defendant. In particular, "it might be unfair to apply offensive estoppel ... where the second action affords the defendant procedural opportunities unavailable in the first action ...." Id. at 330-331, 99 S.Ct. 645.

Plaintiffs have not cited, and this court has not found, any Washington law using or authorizing offensive collateral estoppel, much less a case in which a criminal defendant was permitted to use the doctrine offensively in a civil matter. Although Hanson v. City of Snohomish, 121 Wash.2d 552, 561-64, 852 P.2d 295 (1993), recognized that criminal actions may give rise to collateral estoppel in civil proceedings, in that case the civil defendants (a city and its police officers) were allowed to defensively estop the civil plaintiff, who challenged police identification procedures even though a court had already found those procedures to be valid in the criminal action in which the civil plaintiff had been convicted. The procedural stance in this case is different; the former criminal defendant is seeking offensive estoppel against the civil defendants.

Plaintiffs claim that the Washington Supreme Court applied offensive estoppel in Thompson v. State Dep't of...