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2010 02 14 Beck Reply to Motion for Protective Order IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON THURSTON COUNTY ANDREW J. SMITH and CYNTHIA M. SMITH, husband and wife, Plaintiffs, vs. THE CITY OF DOE, a municipal corporation; GRANT BECK; STEVE CHAMBERLAIN; FH1 LLC, a Washington corporation; DAN LEE, TRIANCE GROUP, INC, d/b/a TRIANCE HOMES, a Washington corporation and a licensed Washington construction contractor; STATE FARM FIRE & CASUALTY CO., Bond No. 98GD85307; MAUREEN NIELAND; VANDORM REALTY; a Washington corporation. Defendants.  No. 09-2-02879-3 DEFENDANT BECK’S REPLY TO PLAINTIFFS’ RESPONSE TO BECK’S MOTION FOR PROTECTIVE ORDER   I. Request for Relief. Motion for Protective Order. Defendant Beck has moved this Court for a protective order so that he is not required to answer certain highly personal interrogatories posed by the plaintiffs that will not lead to admissible, relevant information. Mr. Beck also asks that his answers to the remaining interrogatories and requests for production be due on March 3, 2010, which is the date that his responses to discovery would have been due if plaintiffs had observed RCW 4.96.020(4) in the filing of this lawsuit. Plaintiffs have agreed to this extension of time, and now assert that the portion of Mr. Beck’s motion relating to these remaining interrogatories was unnecessary. Motion to Strike Interrogatories. In the alternative, because this lawsuit was improperly filed under RCW 4.96.020(4), Mr. Beck asks that the Court strike all of the interrogatories. Plaintiffs have attempted to circumvent the statute by creating the fictional city of Doe as a defendant, and by alleging that Mr. Beck works for this fictional city. Irrationally, they ask Mr. Beck to answer interrogatories relating to his nonexistent employment with the city of Doe. Furthermore, this lawsuit was improperly filed against Mr. Beck in his individual capacity, because the allegations in the Complaint relate to Mr. Beck’s alleged activities within the scope of his employment. As a result, he should not be required to provide information that will allow the plaintiffs to conduct a fishing expedition to substantiate the improperly filed lawsuit. New Motion to Strike. In a separate motion, Mr. Beck has moved this Court to strike the Declaration of Ben Cushman as hearsay. The Declaration is not based on personal knowledge, and instead is Mr. Cushman’s musings and “story” about this case. No exhibits are attached to the Declaration to support the allegations in the Declaration, other than a newspaper article and a letter written by Mr. Cushman. Because this Declaration includes no facts, only biased reporting, hearsay and the plaintiffs’ attorneys’ imaginings and suspicions as to an alleged motive for Mr. Beck’s actions, it should be disregarded and stricken. II. Reply to Plaintiffs’ Response. A. The Court should grant Mr. Beck’s proposed protective order so that he is not required to answer interrogatories Nos. 1 through 9 because this information will not provide any relevant information on the claim of “breach of duty.” Plaintiffs’ interrogatories asking for Mr. Beck’s social security number, birthdate, marital history, arrest record, list of roommates and the manner in which his marriages “terminated” are not relevant to this action. According to plaintiffs’ attorney, the answers to these interrogatories will be used to obtain a “background check” on Mr. Beck. These interrogatories have been posed for the purpose of harassment only and violate Mr. Beck’s right to privacy. The plaintiffs have not shown that the answers to these interrogatories will assist them in the establishment of their only cause of action against Mr. Beck, which is an alleged “breach of duty.” Apparently, the plaintiffs’ cause of action against Mr. Beck is negligence. In order to prove negligence, plaintiffs must show that the defendant “(1) had a duty to the plaintiff; (2) breached that duty, and (3) proximately caused the planitiff’s injuries by the breach.” Smith v. Kelso, 112 Wn. App. 277, 281, 48 P.3d 372 (2002). Under CR 26(b), parties may obtain discovery regarding any matter, not privileged, which is relvant to the subject matter involved in the pending case. None of the answers to interrogatories Nos. 1 through 9 will provide any admissible or relevant information relating to the elements of the tort of negligence. Whether Mr. Beck had a duty to the plaintiffs is a legal issue, and will not be answered in discovery. The question whether Mr. Beck breached any duty is a factual issue, and doesn’t require proof of motive. Relevancy is defined as: “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401. “Evidence that is not relevant is not admissible.” ER 402. “Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith, except” in certain limited situations not present here. ER 404. Interrogatories Nos. 1 through 9 were not drafted to elicit any relevant, admissible evidence on any of the elements of the plaintiffs’ claim, and Mr. Beck should not be required to answer them. B. Interrogatories Nos. 10 through 29 and the requests for production relate to the City, and have been improperly propounded on Mr. Beck because the plaintiffs are barred from suing the City until at least February 7, 2010. The Court should either strike these interrogatories or recognize that plaintiffs have agreed upon an extension until March 7, 2010. The plaintiffs have agreed to an extension of time for Mr. Beck to answer the interrogatories Nos. 10 through 20 until March 7, 2010. Therefore, the Court should include plaintiffs’ agreement on this extension in the protective order. In the alternative, the Court should strike the interrogatories because they require Mr. Beck to play along with the fiction created by plaintiffs that he worked for the nonexistent city of Doe. There is no authority that would allow this litigation strategy, as the prohibition on filing a lawsuit less than 60 days after filing the tort claim is absolute. According to the plaintiffs, adding the fictitious city of Doe to this lawsuit, and then requiring Mr. Beck to answer interrogatories relating to his alleged employment with the city of Doe -- before the plaintiffs could legally file a lawsuit against Yelm -- “is needed so as to comply with the requirements of RCW 4.96.020(4).” In other words, this pretence is “needed” so that the plaintiffs can circumvent the requirements of state law. There are no cases in which any Washington court has sanctioned this approach, given the purposes behind the adoption of RCW 4.96.020(4), which is to allow the municipality 60 days before a lawsuit is filed as an opportunity to investigate the claim and consider settlement. Absurdly, the plaintiffs next assert that Grant Beck was named individually in this lawsuit because he was a “necessary party.” However, there are no facts in the Complaint to support the plaintiffs’ decision to sue Mr. Beck individually. It also contradicts the language of the Complaint: “Even though Grant Beck may have acted outside the scope of his authority . . .the City of Doe is liable for Grant Beck’s individual torts as they arose from the negligent training, empowerment and supervision of Beck.” If the plaintiffs believe that the City of Doe is liable for Mr. Beck’s actions, then it is easy to see that he was name individually in this lawsuits for the purpose of harassment. The other purpose was to obtain early discovery from Mr. Beck on their claims against the City. In plaintiffs’ response, they now assert that this motion for a protective order was unnecessary, because plaintiffs would have granted an extension of time to answer the interrogatories. This agreement for an extension should be added to the protective order. C. Plaintiffs’ attorneys’ unsupported imaginings and suspicions do not demonstrate that Mr. Beck acted outside the scope of his employment. The plaintiffs admit that they have no facts to support a claim that Mr. Beck acted outside the scope of his employment. Instead, they ask the Court to accept the plaintiffs’ attorney’ characterizations of Mr. Beck’s motives and actions. None of the plaintiffs’ examples of Mr. Beck’s alleged actions rise to the level of an employee acting outside of the scope of his employment. While the motion brought by Mr. Beck is a motion for a protective order, not a motion to dismiss, he asks this Court to take the plaintiffs’ improper filing of this lawsuit against Mr. Beck into consideration when fashioning the order. The test to determine whether the employee was acting within the scope of his or her employment is: Whether the employee was, at the time, engaged in the performance of the duties required by him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interest. Bratton v. Calkins, 73 Wn. App. 492, 498, 870 P.2d 981 (1994) (emphasis in original). Even if we examine each of the allegations described in the plaintiffs’ Response Brief, none satisfy this test. First, plaintiffs allege that Mr. Beck made some “illegal plat amendment” by authorizing issuance of a building permit. Mr. Beck’s employment duties involve the issuance or authorization of the issuance of building permits, and this allegation therefore relates to his actions taken within the scope of his employment. Second, plaintiffs allege that Mr. Beck “repeatedly delayed the Council hearing on the [plat amendment].” Again, this allegation relates to his employment duties as Community Development Director, such as the scheduling of a plat amendment for hearing. He may schedule hearings before the Council, or he may take specific direction of the Council on the scheduling of hearings. In so doing, he acts in furtherance of the City Council’s interest. Third, plaintiffs allege that Mr. Beck “disregarded the City Council’s instructions.” According to the plaintiffs, the Council told Mr. Beck to “facilitate the Smith’s plat amendment so they could move into their home and . . . to consult with the Smiths and their engineer to facilitate City Attorney contact with the Smith’s attorney.” They claim that Mr. Beck “disregarded” these instructions. Leaving aside the fact that the plaintiffs’ allegation of a “breach of duty” in these actions is subject to substantial interpretation, Mr. Beck’s response to the instructions of the City Council is still within the scope of his employment duties. As to the allegation that his actions were contrary to the Council’s instructions, no finding has been made on this point – it is the plaintiffs’ subjective belief that such “disregard” took place, or that such “disregard” involved the City Attorney. Any claim that these actions “furthered [Mr. Beck’s] own wishes” is fabricated and not supported by any evidence. Finally, as a catch-all, the plaintiffs assert that “an employee acting in utter violation of known regulatory requirements and complete disregard to directives from his superiors is acting outside the scope of his employment.” No authority is cited for this statement, and plaintiffs do not claim that Mr. Beck was such an employee. In fact, the cases they cite don’t support it – in Kuehn v. White, 24 Wn. App. 274, 600 P.2d 679 (1979), the issue was whether an employer was liable for an intentional assault committed by an employee driving the employer’s truck. The Kuehn court held: “An employee who willfully and for his own purposes violates the property rights of another . . . is not acting in the furtherance of his employer’s business.” Id., 24 Wn. App at 277. Here, there are no facts to prove that Mr. Beck even took the actions alleged by the plaintiffs, let alone that he took such actions intentionally or harbored the motives attributed to him. CONCLUSION Plaintiffs have agreed to an extension of time for Mr. Beck to answer the interrogatories Nos. 10 through 29 and all requests for production until March 7, 2010. Therefore, the Court should enter an order memorializing this agreement, and also add language relieving Mr. Beck from answering Interrogatories Nos. 1 through 9 as not relevant to the claims in the Complaint. DATED this 14th day of January, 2010. MORRIS & TARADAY, P.C. By: _________________________________ Carol A. Morris, WSBA #19241 Attorney for the defendant Grant Beck