Roberson v. Perez, 21777-9-III.

Citation123 Wash. App. 320,123 Wn. App. 320,96 P.3d 420
Decision Date03 August 2004
Docket NumberNo. 21777-9-III.,21777-9-III.
CourtCourt of Appeals of Washington
PartiesRobert ROBERSON and Connie Roberson, husband and wife, Robert Roberson as Guardian ad Litem for his minor child, Rebekah Roberson, Donna Rodriguez, a single person, Donna Rodriguez as Guardian ad Litem for her minor child, Kimberly Allbee, Jonathan Sims and Honnah Sims, husband and wife, and Jonathan Sims as Guardian ad Litem for his minor child, Daniel Sims, Respondents, v. Robert PEREZ, Kenneth Badgley, City of Wenatchee, a municipality in the State of Washington, Appellants, Timothy Abbey, Laurie Alexander, Connie Saracino, Dean Reiman, Kate Carrow, State of Washington by and through its political subdivision Department of Social and Health Services, Cindy Andrews, Robin Wagg, Dave Helvey and Dan Laroche, Douglas County, a corporate body within the State of Washington, Defendants.

Robert L. Christie, Johnson, Christie, Andrews & Skinner PS, Seattle, WA, Patrick G. McMahon, Attorney at Law, Wenatchee, WA, for Appellant.

Robert Craig Van Siclen, Tyler K. Firkins, Van Siclen, Stocks & Firkins, Auburn, WA, James Morton Beecher, Attorney at Law, Seattle, WA, for Respondent.

KURTZ, J.

The plaintiffs here are individuals who were accused of child sexual abuse in Chelan County. After dismissal of the criminal charges against them, they instituted this civil action for damages against the City of Wenatchee and additional defendants. Among other things, they claimed that the City had negligently investigated the allegations of sexual abuse. In two separate trials, juries returned verdicts in favor of the defendants as to all but Honnah and Jonathan Sims.1 Following the second trial, the plaintiffs successfully moved the superior court to vacate the verdicts and award sanctions for alleged discovery violations by the City. The court also vacated orders dismissing Detective Robert Perez and Wenatchee Police Chief Kenneth Badgley, on the ground substantial justice required it.

In this appeal, the City contends that the superior court's orders vacating the defense verdicts and ordering a new trial constituted an abuse of discretion; i.e., the City's position is that the discovery violations were not intentional and, in any event, did not prejudice the plaintiffs' case. Because the record amply supports the superior court's assessment of the violations and their impact, we affirm its orders.

Detective Perez and Chief Badgley appeal the superior court's order vacating their dismissals. They argue, among other things, that they are not responsible for the City's discovery violations. We also affirm this order.

The plaintiffs' lawsuit grew out of the conduct of Detective Perez of the Wenatchee Police Department in his investigations of several individuals, including Donna Rodriguez and Robert and Connie Roberson. Detective Perez sought and obtained arrest warrants from Chelan County charging them, and others, with multiple counts of child sexual abuse. Many of the individuals were tried and convicted of the charged offenses before it came to light that Detective Perez had used interview techniques that undermined the reliability of the responses of the children who were the alleged victims of the abuse. The Court of Appeals overturned several convictions and remanded the cases for new trials. Ultimately, all charges and convictions involving those persons accused in what became known as the "Wenatchee sex ring" were resolved in a manner favorable to the charged individuals.

In 1996, the Robersons, Ms. Rodriguez, and their minor children filed this lawsuit against the City of Wenatchee, Robert Perez, Wenatchee Police Chief Kenneth Badgley, and others. Their complaint alleged numerous causes of action, including actions under 42 U.S.C. § 1983 for violation of their civil rights, and negligent supervision and negligent investigation.

On October 17, 1997, the superior court, on the plaintiffs' motion to compel discovery, ordered that the City "shall deliver to this court ... all internal affairs records and identifying information specified in [certain] discovery requests [and][a]ll ... personnel records and files pertaining to defendant Perez." Clerk's Papers (CP) at 1443-44. The discovery requests referenced in the court's order are Interrogatory No. 3 and Request for Production No. 3, in which the plaintiffs asked for internal investigation information and records pertaining to police activities that resulted in arrests for child abuse and separation of children from their parents, and Request for Production No. 1, in which the plaintiffs asked for Detective Perez's complete personnel records. Following entry of the order, the City produced some of the documents.

Two jury trials followed, both resulting in defense verdicts. The first, in 1998, involved the plaintiffs' 42 U.S.C. § 1983 claim against the City and the other defendants. The second trial in 2001 involved the plaintiffs' negligent investigation claim against the defendants. It occurred after the first trial, following the Court of Appeals reversal of the superior court's dismissal of that claim. See Rodriguez v. Perez, 99 Wash.App. 439, 994 P.2d 874,

review denied, 141 Wash.2d 1020, 10 P.3d 1073 (2000).

In the second trial, the jury found that the City of Wenatchee was negligent, but that its negligence was not the proximate cause of the damage to the plaintiffs. The court had instructed the jury that the prosecutor's decision to criminally charge the plaintiffs was a superseding intervening cause cutting off liability by the defendants for negligent investigation only if the defendants had gathered and presented to the prosecutor all material information, and reasonable minds could not disagree as to that fact.

On October 14, 2002, the plaintiffs moved to vacate the 2001 defense verdict. Counsel for plaintiffs alleged that he had learned that the City had not fully complied with plaintiffs' discovery request for Detective Perez's complete personnel file and any documents pertaining to an internal affairs investigation of police activities relating to the Wenatchee sex ring. Counsel stated he became aware of the additional documents only after the City, as the defendant in another civil action pending in federal court that involved the sexual abuse investigation, turned over the complete personnel file and the investigatory file to the plaintiffs in that suit. Those files contained many documents the City had not provided the plaintiffs during discovery in their action against the City. The plaintiffs alleged that "[n]early all of the withheld documents contained explosive evidence material to the plaintiffs' claims in this Court." CP at 1410.

In support of this motion to vacate, plaintiffs' attorney Robert Van Siclen filed a declaration in which he stated that "[i]n conversations I personally had with Mr. McMahon [the City's attorney], it was very clear that he understood that we were requesting specifically all information pertaining to a disability claim that we understood by the end of 1997 that Detective Perez was pursuing through the Wenatchee Police Department. We also very clearly requested any internal documents relevant to an investigation of [Detective] Perez." CP at 1451 (emphasis added). Mr. Van Siclen then described examples of documents that the City had not disclosed, many of which related to Detective Perez's Labor and Industries claim.2 Mr. Van Siclen concluded, as follows: "The [undisclosed] evidence would have been critical to the plaintiffs' case, and would have demonstrated the nexus between the defendants' actions and the incarceration of the plaintiffs. Also, I would not have agreed to enter an order dismissing Perez if this information was available, and further would have called Perez as a witness in our case that was tried in 2001." CP at 1454.

Patrick McMahon, counsel for the City, filed a declaration on November 4, 2002, opposing the plaintiffs' motion to vacate. He stated he did not know that the City had files different than the file it provided in response to the plaintiffs' discovery request. Sandra Smeller, the City's Director of Human Resources, also filed a declaration in which she stated the City maintains three separate files for each employee: A personnel file that contains information such as performance evaluations and benefits; a medical file that contains doctor notes, work-related injuries, and leave requests; and a Department of Labor and Industries file that contains records of on-the-job injuries. The personnel file was the only file produced in response to their discovery request. Ms. Smeller indicated that she did not inform the City's attorney, Mr. McMahon, that there was a medical file and a Department of Labor and Industries file in addition to the personnel file.

Mr. McMahon argued that in the federal trial, the plaintiffs requested Detective Perez's medical records. He characterized this request as "more specific than the request in [this case] for simply the personnel file of Mr. Perez." CP at 1575. Mr. McMahon also identified other pertinent information provided to the plaintiffs and he argued that this information substituted for the information that was not included in the City's responses to the plaintiffs' discovery requests. Finally, Mr. McMahon denied Mr. Van Siclen's assertion that he understood that the scope of the plaintiffs' request included documents relating to Detective Perez's disability claim and documents relating to any internal department investigation of Detective Perez. Only after the plaintiffs made specific requests— following their review of the material discovered in the federal case—did Mr. McMahon learn that the City had three separate files on Detective Perez.

On November 14, 2002, Tyler Firkins, another of the plaintiffs' attorneys, filed a declaration responding to Mr. McMahon's declaration. In their brief on appeal, the...

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