2010 02 14 Beck Motion to Strike Declaration of Cushman
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 GRANT BECK’S
MOTION TO STRIKE
DECLARATION OF BEN
CUSHMAN IN OPPOSITION TO BECK’S MOTION FOR PROTECTIVE
ORDER
I. Request for Relief.
Defendant Grant Beck moves this Court to strike the Declaration of Ben Cushman in Opposition to Beck’s Motion for Protective Order as hearsay.
II. Facts Pertinent to Motion.
The plaintiffs filed a lawsuit against Grant Beck personally, before they had any facts to support such lawsuit. All of the claims in their complaint describe the alleged actions of
Mr. Beck that were taken in his capacity as the Community Development Director or employee of some fictional city. In addition to the lack of justification for the lawsuit, plaintiffs
also violated RCW 4.96.020(4) by filing it against Mr. Beck without waiting 60 days after they filed a tort claim with the City.
In their response to Mr. Beck’s motion for a protective order, plaintiffs admit that they had no justification to file the lawsuit against Mr. Beck personally. They assert that a background
check is required to substantiate their claims.
The Declaration of Ben Cushman in Opposition to Motion for Protective Order is referenced by the plaintiffs in their response to Mr. Beck’s motion. However, this Declaration provides
no factual support to plaintiffs’ response, and is merely Mr. Cushman’s ramblings and musings on his client’s case. The majority of the Declaration is opinion and the few facts to which
Mr. Cushman can attest from his first hand knowledge are not important to this case. For example, Mr. Cushman can testify that he sent a letter to the Council, that he appeared at a
Council meeting, and that he wrote Exhibit B to his Declaration. The other exhibit to the Declaration is a newspaper article, which again, is not based on first hand knowledge.
III. Issue presented.
Must this Court strike the Declaration of Ben Cushman in Opposition to Motion for Protective Order and its Exhibits under ER 603 (lack of personal knowledge of witness) and ER 801 (hearsay)?
YES.
IV. Argument.
A. The Declaration of Ben Cushman and Exhibits are hearsay.
In order to be admissible, a declaration must be based on first-hand knowledge. Under ER 602, “A witness may not testify to a matter unless evidence is introduced sufficient to support
a finding that the witness has personal knowledge of the matter.” In his Declaration, Mr. Cushman does not assert that he has any personal knowledge of most of the allegations in the
Declaration, and this is confirmed by the lack of any supporting factual documentation, This Declaration includes his personal opinions and characterizations of Mr. Beck’s behavior,
which Mr. Cushman admits are unsupported by any facts.
For example, Mr. Cushman claims that Mr. Beck’s “accumulation of city offices and authority” was the cause of his client’s alleged damages. He characterizes Mr. Beck as a “renegade
city planner.” He asserts that Mr. Beck is “prejudiced against military families and does not want to see any more of them in the City.” He contends that Mr. Beck “has some personal
animosity toward the builder or the developer.” He states his belief that Mr. Beck “from ambition, has accumulated to himself substantial power and authority within the city.”
Finally, Mr. Cushman’s “testimony” includes unnecessary and worthless description of his experience with land use permitting in other cases, which are totally irrelevant to this case.
(According to Mr. Cushman, “this situation looks more like a palace coup than a vanilla permitting SNAFU.”) Not surprisingly, the Declaration and Complaint drafted by Mr.
Cushman includes no facts which demonstrate that any of these allegations are anything other than the hobgoblins of a suspicious mind. Or, they could be boilerplate from Mr. Cushman’s
declarations from other land use lawsuits against cities.
Because Mr. Cushman has no facts to support his claim, he has submitted a newspaper article, which is also not based on personal information. His other exhibit is a letter he wrote
to the City Council with his personal opinions and argument. Thus, all of the Cushman Declaration and its exhibits are hearsay and must be stricken.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay
is not admissible, except as provided in ER 802 or by statute. None of the exceptions to hearsay evidence apply in this situation.
With regard to publications, such as the exhibits, one court explained the rule:
The purpose of the hearsay rule is, basically, to exclude untrustworthy evidence which may prejudice a litigant’s cause or defense. It is the inability to cross- examine the author
of a publication, when its contents are offered as proof of a fact in issue, which renders the publication objectionable.
Nordstrom v. White Metal Rolling and Stamping Corp., 75 Wn.2d 629, 632, 453 P.2d 619 (1969).
Here, all of the allegations and exhibits in the Cushman Declaration are untrustworthy hearsay evidence. Mr. Beck will have no opportunity to cross-examine Mr. Cushman as to his suspicions,
nor will the newspaper reporter be testifying in this case. The only information in the Cushman Declaration that isn’t hearsay is still inadmissible as Mr. Cushman’s fabricated motives
for defendant Beck’s alleged actions in a fictional city created by Mr. Cushman.
CONCLUSION.
The Court should strike the Declaration of Ben Cushman and all exhibits as inadmissible hearsay. The Court should award Mr. Beck his attorneys’ fees for having to file this Motion
to Strike.
DATED this 14th day of January, 2010.
MORRIS & TARADAY, P.C.
By _____________________________________
Carol A. Morris, WSBA #19241
Attorney for the defendant Grant Beck