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Reply Re Reconsideration

Reply Re Reconsideration

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Published by recallcy

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Published by: recallcy on Nov 17, 2012
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12/04/2012

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REPLY RE: MOTION FOR RECONSIDERATIONPage - 1
V
AN
S
ICLEN
,
 
S
TOCKS
&
 
F
IRKINS
 
A Professional Service Corporation
721 45th Street N.E.Auburn, WA 98002-1381(253) 859-8899
 The Honorable Judge JohnsonHearing Date: November 9, 2012Hearing Time: 9:00AMIN THE SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTYCITY OF PACIFIC,Petitioner,vs.HERBERT “Cy” SUN,Respondent.NO. 12-2-12552-5RESPONDENT’S REPLY TOPETITIONER’S MEMORANDUM INOPPOSITION TO MOTION FORRECONSIDERATION OF ORDERDENYING MOTION TODISQUALIFY AND MOTION TOAPPOINT INDEPENDENTSTANDYBY COUNSEL
I.
 
REPLY TO PETITIONER’S REQUESTED RELIEF
Cy Sun by and through his attorneys, Van Siclen, Stocks and Firkins, and replies toPetitioner’s memorandum in opposition to Mayor Sun’s motion for reconsideration andmotion for the appointment of stand-by counsel. This reply is based on the cited authorities, aswell as the records and files herein.
II.
 
REPLY STATEMENT OF ISSUES
1.
 
Where the Declaration of Professor Strait could not have been produced earlier withreasonable diligence should this Court now consider it in granting Respondent’sMotion to Reconsider Disqualification and Motion to Appoint Independent Stand-byCounsel? Yes.
E-FILEDIN COUNTY CLERK'S OFFICEPIERCE COUNTY, WASHINGTONNovember 08 2012 10:20 AMKEVIN STOCKCOUNTY CLERK
NO: 12-2-12552-5
 
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REPLY RE: MOTION FOR RECONSIDERATIONPage - 2
V
AN
S
ICLEN
,
 
S
TOCKS
&
 
F
IRKINS
 
A Professional Service Corporation
721 45th Street N.E.Auburn, WA 98002-1381(253) 859-8899
 2.
 
Where Luce, Kenney and Associates were previously discharged by an authorizedconstituent of the entity, can they resume representation and claim RPC 1.13 as ashield for their actions outside of the entity? No.3.
 
Where the expert opinion of an authoritative source is proffered, should the Courtdisregard it merely because Petitioner deems it erroneous? No.
III.
 
REPLY STATEMENT OF FACTS
The facts related to this matter are contained in Respondent’s prior filings and areincorporated by reference here.
IV.
 
REPLY AUTHORITY AND ARGUMENT
As opposing counsel states, Respondent cited to CR 59(a)(1), (7) and (9) in support of his Motion to Reconsider. To be clear, it is the position of Respondent the Court erred indenying the underlying Motion to disqualify Luce Kenney and Associates. Pursuant toCR59(a)(1) Respondent asserts the Courts application of the RPCs in denying the Motion toDisqualify was irregular. Pursuant to CR59(a)(7) Respondent asserts the Courts prior rulingwas not supported by the evidence or reasonable inferences therefrom to justify the decision,and that it was contrary to law. Finally, pursuant to CR59(a)(9) Respondent assertssubstantial justice was not done by the Court’s prior ruling. Put succinctly, the circumstanceof Luce Kenney and Associates representing the City in suing the Mayor, while at the sametime having a continuing obligation as City Attorney to advise the Mayor and the Mayor’soffice, has not been remedied. The actions of the firm acting as City Attorney prevent theMayor from effectively having a City Attorney. Counsel additionally addresses CR59(a)(4)and its application to the declaration recently provided to the Court below.
 
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REPLY RE: MOTION FOR RECONSIDERATIONPage - 3
V
AN
S
ICLEN
,
 
S
TOCKS
&
 
F
IRKINS
 
A Professional Service Corporation
721 45th Street N.E.Auburn, WA 98002-1381(253) 859-8899
 A.
 
The Declaration of Professor Strait in support of the Motion to Reconsider andMotion to Appoint Stand-by Counsel does not constitute new evidence of the kindthat with reasonable diligence could have been produced previously.CR 59 provides grounds for reconsideration. CR59(a)(4) provides:On the motion of the party aggrieved, a verdict may be vacated and a new trialgranted to all or any of the parties, and on all issues, or on some of the issues whensuch issues are clearly and fairly separable and distinct, or any other decision or ordermay be vacated and reconsideration granted. Such motion may be granted for any oneof the following causes materially affecting the substantial rights of such parties:
(4)
 
Newly discovered evidence, material for the party making the application, whichhe could not with reasonable diligence have been discovered and produced at thetrial
.(emphasis added).It is the Respondent’s position the Declaration of Professor Strait does not constitute‘new evidence’ previously available through reasonable diligence. In general, an issue maybe raised in a motion for reconsideration when the issue is closely related to an issuepreviously raised and no new evidence is required.
 August v. U.S. Bancorp,
146 Wn. App.328, 347, 190 P.3d 86 (2008). Nonetheless, in a motion for reconsideration, a plaintiff cannot propose new case theories that could have been raised before entry of an adversedecision.
Wilcox v. Lexington Eye Inst.,
130 Wn. App. 234, 241, 122 P.3d 729 (2005).Mayor Sun is not proposing any new case theories. There is a conflict pursuant to the RPCs,specifically 1.7, 1.13 and 1.16, involving the City Attorney of the City of Pacific. That wasthe subject of the prior briefing and argument. That remains the substance of the Motion toReconsider. That is the subject of the Declaration of Professor Strait.In
 August,
146 Wn. App. 328, no prejudice was found by the Court hearing a motionto reconsider on a new theory based on closely related issues and where no new evidence was

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