Response

1 HONORABLE JULIE SPECTOR
Department 3
2 Hearing Date: June 26, 2018
Oral Argument Requested
3
6 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON

IN AND FOR KING COUNTY
7
8 Commissioner Eric Watness, as Personal

Representative of the Estate of Charleena
9 Lyles; Karen Clark, as Guardian Ad Litem on
behalf of the four minor children of decedent, NO. 17-2-23731-1 SEA
10
Plaintiff, DEFENDANTS’ JOINT OPPOSITION TO
11 PLAINTIFFS’ IMPROPER MOTION
v. REGARDING UNSUPPORTED
12 ALLEGATIONS OF PERJURY AND
The City of Seattle, a Municipality; Jason M. JOINT MOTIONS FOR CIVIL RULE 11
13 Anderson and Steven A. McNew, individually, SANCTIONS AND TO STRIKE
INADMISSIBLE MATERIALS
14 Defendants.
ORAL ARGUMENT REQUESTED
15 UNDER KCLR 7(b)(4)(C)
16
17
I. INTRODUCTION AND RELIEF REQUESTED
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On the one-year anniversary of Charleena Lyles’ death, the attorneys for the Estate filed a
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baseless motion attacking the character and credibility of a party at the cost of his right to a fair trial
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and asking this Court to both invade the province of the jury and exceed the bounds of its jurisdiction.
21 CHRISTIE LAW GROUP, PLLC
2100 WESTLAKE AVENUE N., SUITE 206
DEFENDANTS’ JOINT OPPOSITION TO SEATTLE, WA 98109
PLAINTIFFS’ IMPROPER MOTION REGARDING 206-957-9669
UNSUPPORTED ALLEGATIONS OF PERJURY AND
JOINT MOTIONS FOR CIVIL RULE 11 SANCTIONS Peter S. Holmes
AND TO STRIKE INADMISSIBLE MATERIALS - 1 Seattle City Attorney
(KCSC 17-2-23731-1 SEA) 701 5th Avenue, Suite 2050
Seattle, WA 98104-7097
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1 This Response is not about the Plaintiffs or Ms. Lyles. This Response addresses the conduct of the
2 attorneys involved. Ms. Koehler and Mr. Moore’s motion lacks decorum and flouts the bounds of our
3 Civil Rules and Rules of Professional Conduct.1 Though filed before this Court, counsel’s motion
4 seeks adjudication in the Court of public opinion. For the sake of grandstanding, counsel violates CR
5 11 by filing a motion that is not well grounded in fact or existing law and lacks good faith arguments.
6 Aside from its true purpose of garnering media attention for Ms. Koehler and Mr. Moore, this motion
7 is intended to harass Defendants, needlessly increase defense costs in the subject litigation, and
8 materially prejudice this proceeding by publicly attacking the character and credibility of a party,
9 Seattle Police Officer Jason Anderson. See CR 11. This frivolous motion should be denied, and
10 counsel should be monetarily sanctioned and directed to comply with the Civil Rules and Rules of
11 Professional Conduct going forward.
12 It is no surprise, in a case where Ms. Koehler and Mr. Moore, have posited baseless,
13 unsupported legal theories (dressing a federal civil rights claim under 42 U.S.C. § 1983 in the veil of
14 a common law negligence claim), that they filed a civil motion seeking criminal relief to which they
15 are not entitled and at the expense of Officer Jason Anderson’s right to a fair trial. Ms. Koehler
16 attempts to un-ring the bell of her ineffective cross-examination of Officer Anderson at deposition by
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1
18 This Response focuses on the actions of these lawyers by name rather than on the Plaintiffs,
something stylistically different from prior briefing that consistently refers only to “Plaintiffs.”
19 The reason is obvious—the named lawyers crafted this groundless media-seeking motion that has
no foundation in law or fact. It is another stunt in their consistent practice of bringing attention to
20 themselves as part of a marketing strategy, an unbecoming and unprofessional practice. Ms.
Nguyen is excluded from the Defendants’ request for sanctions and admonition as she is not a
21 signatory to plaintiff counsel’s brief.
CHRISTIE LAW GROUP, PLLC
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1 ambushing Defendants with a previously undisclosed expert report that addresses a fact to which
2 Officer Anderson has consistently testified. In fact, the motion concedes that Officer Anderson has
3 testified consistently. (Plaintiffs’ Motion, Dkt 144, ¶¶ 3.9, 3.11, & 3.14.)
4 Indeed, it is not happenstance that counsel fails to request oral argument on a motion wholly
5 unsupported by any legal authority, yet widely disseminated to the media. Nor is it coincidence that
6 communications appear to show that counsel provided this motion to the media in advance of filing
7 it with this Court, in blatant disregard of the RPCs. (Coluccio Decl., Exs. A & Ex. B). The relief these
8 attorneys seek is a procedurally and legally unrecognized finding that Officer Anderson “probably
9 committed perjury;” they seek unbridled personal media attention. In their rush to grab a byline, Ms.
10 Koehler and Mr. Moore managed to violate the Court’s Protective Order, submit a declaration of an
11 undisclosed expert, reveal their failure to produce discovery materials, and violate both the Civil
12 Rules, RPCs, and the fundamental principles of professional conduct. Under KCLR 7(b)(4)(C),
13 Defendants request oral argument for the attorneys filing their unsupported motion can stand before
14 the Court and explain their actions.
15 These attorneys elected to hastily file the subject lawsuit and must now comply with the Civil
16 Rules. Ms. Koehler and Mr. Moore’s comes at the significant cost of both the Defendants’ and the
17 Court’s time and resources. (Plaintiffs’ Motion 10:6). The Court should deny Plaintiffs’ motion and
18 strike the inadmissible materials filed with it. Further, monetary sanctions and other remedies are
19 warranted against Ms. Koehler and Mr. Moore.
20

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1 II. STATEMENT OF FACTS
2 A. The Subject Incident and Subsequent Seattle Police Department Investigation.
3 As this Court is aware, the facts of this case have been widely disseminated in the media. In
4 summary, as asserted in the fourth iteration of the Complaint (Dkt. 124), Charleena Lyles reported a
5 burglary on the morning of June 18, 2017 to 911. (Third Amended Complaint, ¶ 4.32.) Ms. Lyles
6 reported the incident at 8:55 a.m., indicating that the incident had occurred about three hours earlier.
7 Id. When asked, Ms. Lyles requested that the Seattle Police Department (SPD) come to her home to
8 investigate. (Coluccio Decl., Ex. C.).
9 Officers Jason Anderson and Steven McNew were dispatched in response to the residential
10 burglary call made by Ms. Lyles. Officers Anderson and McNew acted consistently with SPD Policy
11 in using the in-car video (ICV) systems on the date of the incident in question. These two ICV systems
12 operated independently of each other and created two separate audio files. SPD’s Body Worn Video
13 (BWV) policy was reviewed and approved by Judge James Robart on May 3, 2017 in conjunction
14 with the Consent Decree with the Department of Justice. (Coluccio Decl., Ex. D). The BWV program
15 did not begin precinct by precinct deployment until September 30, 2017, several months after the
16 subject incident. (Id., ¶7).
17 There is no dispute that the situation went from a peaceful effort on the part of Officers
18 Anderson and McNew to gather information from Ms. Lyles, to a rapid escalation resulting in the use
19 of lethal force once she pulled out the knife or knives she had concealed in her coat pocket and began
20 to attack the Officers. Consistent with Seattle Police Department Policy, Officers Anderson and

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1 McNew immediately called for backup and medics. (Coluccio Decl., Ex. E).
2 The Force Investigation Team (FIT) is dispatched to investigate any time a Seattle Police
3 Officer uses force. (Id., Ex. F). FIT was dispatched to the scene. Once the backup officers arrived and
4 began rendering aid, Officers Anderson and McNew went downstairs to meet their Sergeant, Trent
5 Schroeder. Crime Scene Investigation (CSI) was also dispatched to secure and document the scene.2
6 (See CITYLYLES000580, Coluccio Decl., Ex. R). Ms. Lyles’ injuries were fatal.
7 On June 19, 2017, FIT publicly released an embedded video from Officer Anderson’s ICV
8 and the surveillance footage obtained from Solid Ground, which maintained and controlled the video
9 system, outside Ms. Lyles’ apartment. (Koehler Decl., Dkt. 145, Ex. 11). Fong Decl.; Smith Decl.
10 Using best practices, SPD Video Specialists redacted and recoded the video and audio for public
11 release. Fong Decl.; Smith Decl. The original videos were processed for redaction and conformed
12 to fit one video format, which included changes in frame size, frame rate, and file formats, converting
13 or processing, and then redacting, transcoding, and exporting for public release. Smith Decl. The
14 SPD media relations unit then loaded the video to Youtube, which includes another proprietary
15 transcoding process. Id. Each of these steps is a figurative “photocopy” of the original video file.
16 Smith Decl. As a result of this process, the redacted video that was released is significantly shorter
17
18 2
Plaintiffs’ counsel’s Motion notes, “The CSI scene diagram does not place Officer Anderson
19 inside the apartment at the time of shooting, a fact mysteriously not discussed by FIT or the “Force
Review Board (FRB).” (Motion at ¶3.16). There is no great “mystery.” If counsel would only look
20 at the CSI report produced in discovery, counsel would see how CSI created the diagram and
discusses why the diagram only identifies Officer McNew. (See CITYLYLES00590, Coluccio
21 Decl., Ex. R).
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1 than the original files. Fong Decl.; Smith Decl. The redacted video’s intended purpose was to help
2 shed light and provide transparency to the public, not for forensic analysis. Smith Decl. To date, no
3 synchronized video has been created or released by SPD. Fong Decl.; Smith Decl.
4 On June 20 and June 22, 2017, Officer Anderson sat for an interview and a follow up with
5 FIT. In his FIT interviews, Officer Anderson consistently stated that the door to Ms. Lyles’ unit was
6 closed at the time she attacked the officers and at the time he responded by firing his weapon.
7 (Coluccio Decl., Ex. H). In his FIT sketch, Officer Anderson recalled being positioned inside the
8 apartment at the time lethal force was used. (Coluccio Decl., Ex. G). Officer Anderson made
9 consistent statements to FIT with respect to the confined space, short distance, and lack of shielding
10 at the time Ms. Lyles began to attack the officers. (Id., Ex. H). Consistent with Officer Anderson’s
11 statements and sketch, CSI independently documented the location of the shell casings from Officer
12 Anderson’s weapon, on the interior of the doorway of Ms. Lyles’ unit. (Id., Ex. I). Officer McNew
13 could not recall seeing the door at the time Ms. Lyles attacked. (Id., Ex. J, 164:3-13). Neither Officer
14 Anderson nor McNew reviewed the surveillance footage obtained from Solid Ground prior to the FIT
15 interviews. (Coluccio Decl., Exs. H & K).
16 B. The Subject Lawsuit.
17 Plaintiffs filed this lawsuit on September 8, 2017 against Officers Anderson and McNew. The
18 City was added as a Defendant on October 12, 2017. On December 8, 2017, the SPD Force Review
19 Board Report was released, finding that Officers Anderson and McNew acted consistently with SPD
20 Policy. (Coluccio Decl., ¶16). Solid Ground was added as a Defendant on December 27, 2017.

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1 (Second Amended Complaint, Dkt. 29).
2 On February 2, 2018, the Court entered the parties’ stipulated Protective Order due to the
3 sensitive nature of these proceedings, which provides that certain information be designated
4 confidential and delineates the process for designating portions of depositions as confidential.
5 (Stipulated Protective Order, Dkt. 46). By agreement of the parties, a party has 30 days from receipt
6 of a deposition video to designate portions confidential before the video can be disseminated publicly.
7 (Coluccio Decl., Ex. L).
8 Officer Anderson was deposed by Ms. Koehler for nearly seven hours on February 13, 2018.
9 Ms. Koehler did not ask Officer Anderson about the subject incident during that deposition, deciding
10 to continue the deposition to a later date. In accordance with the Protective Order, counsel for Officer
11 Anderson designated confidential portions of the written deposition transcript and the video within
12 30 days of receipt. (Id., Ex. M).
13 On April 26, 2018, Officer Anderson’s deposition was concluded. Throughout the course of
14 the day, Officer Anderson was asked repeatedly about the position of the door at the time Ms. Lyles
15 brandished a knife or knives and attacked the officers. (Id., Ex. N, 175:4-6; 179:12-19; 200: 8-22). At
16 no point has Officer Anderson’s recollection with respect to the incident changed. Despite the fact
17 that it was repeatedly asked and answered, Officer Anderson consistently testified at deposition that
18 the door was closed at the time force was used. (Id.).
19 During his two-day deposition, Ms. Koehler never showed or asked Officer Anderson about
20 the synchronized video and audio authored by proffered expert Wilson C. Hayes in support of

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1 plaintiffs’ counsels’ motion. (Coluccio Decl., Ex. N, 197:8-198:9). Instead, Ms. Koehler repeatedly
2 asked Officer Anderson what the silent surveillance footage depicted, repeatedly suggesting that he
3 fired his weapon from the hallway. (Koehler Decl., Dkt. 145, Ex. 12). Officer Anderson consistently
4 stated that he stepped out into the hallway after he completed firing his weapon, creating distance
5 between himself and Ms. Lyles. (Coluccio Decl., Ex. N, 179:12-19; 200:8-22; 201:4-9).
6 Counsel for Officer Anderson received the written transcript of his April 26, 2018 deposition
7 on May 9, 2018 (Coluccio Decl., Ex. T), and received the video on May 29, 2018 (Id., Ex. U). Counsel
8 for Officer Anderson elected not to designate portions of the written transcript confidential but has
9 until June 28, 2018 to designate portions of the video deposition as confidential under the Protective
10 Order before it may be publicly disseminated.
11 On May 11, 2018, the City propounded its First Set of Requests for Production on Plaintiffs.
12 (Coluccio Decl., O). This included requests for production of all materials received by third parties.
13 (Id., Ex. P). Plaintiffs responded to the City’s discovery on June 12, 2018. No documents were
14 produced with respect to proffered expert Wilson Hayes, who signed an unsubstantiated declaration
15 submitted in support of this motion on June 14, 2018. (Koehler Decl., Dkt. 145, Ex. 9).
16 C. Ms. Koehler and Mr. Moore’s Frivolous Criminal Accusation Against Officer
Anderson.
17
On Monday, June 18, 2018, the one-year anniversary of the subject incident, either Ms.
18
Koehler, Mr. Moore, or someone on their behalf apparently sent the subject motion to the media or
19
notified the media that a motion had been filed. The docket shows that plaintiffs’ counsel filed their
20
motion at 1:26 pm, and by 1:55 p.m., a reporter for King 5 News tweeted screen captures of the subject
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1 motion as #BREAKING at 1:55 p.m. (Coluccio Decl., Ex. A).
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The timing here suggests the motion was distributed to the media before it was even filed with
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the Court.3 Moreover, despite having the option of e-serving Defendants at the time of filing,
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plaintiffs’ counsel waited until 2:06 p.m. to serve Defendants – allowing the media the opportunity to
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publish a story before Defendants even knew a motion would be pending. (Coluccio Decl., Ex. B).
17
Even more outrageous, plaintiffs’ counsel filed with the Court and furnished various media outlets
18
with copies of Officer Anderson’s deposition video in violation of the Protective Order, despite the
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20 3
Notably, Ms. Koehler believes the motion was filed sometime Monday morning, which also
21 explains the timing of its dissemination to the media. (Coluccio Decl., Ex. W).
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1 30-day period for confidential designations has not passed.4 (Koehler Decl., Dkt. 145, Ex. 12,
2 Stipulated Protective Order, Dkt. 46). This is not insignificant. Because of plaintiffs’ counsel’s
3 persistent and inappropriate use of certain documents displayed on the deposition video, it may very
4 well be appropriate for portions of the deposition video to remain confidential, even if those portions
5 of the written deposition transcript are not so designated. (See 46).
6 In addition to making false suggestions with respect to SPD’s use of BWVs, counsel also asks
7 this court to make a judicial finding of perjury based on a declaration of an individual named Wilson
8 Hayes and a previously undisclosed “synchronized” video. (Koehler Decl., Dkt. 145, Exs. 9 and 10).
9 In addition, the attorneys falsely reference a synchronized video produced by the City, knowing that
10 the credibility of video produced by the City purportedly revealing evidence adverse to the City and
11 Officer Anderson will be more widely accepted by the media and public as accurate. (Id., Ex. 11).
12 Defendants have not compiled a synchronized video combining the ICV audio and surveillance
13 footage. See Fong Decl.; Smith Decl. The files Mr. Hayes relied upon are altered files created by
14 SPD for public release and not intended for forensic analysis, due to changes in the frame rates, frame
15 size, and the loss or addition of video information created in the transcoding and encoding process.
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17 4
Despite Ms. Koehler’s anticipated contention that Officer Anderson’s deposition is “completely
18 not confidential per PO,” the language of the Protective Order controls, and Officer Anderson
never waived its protections. (Coluccio Decl., Ex. Q). (Notably, this email was prepared and sent
19 by Ms. Koehler in anticipation of this motion and Defendants’ response). Defendants are not
obligated to confirm with Ms. Koehler that they are indeed availing themselves of the provisions
20 provided explicitly under the Order, to do so would defeat its purpose. Ms. Koehler was required
to meet and confer with counsel before releasing this video as the time for confidential designations
21 has yet to pass.
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1 Fong Decl.; Smith Decl.
2 This motion shocks the conscience and serves no legitimate purpose. This motion prejudices
3 a party in this litigation, solicits the media, contaminates the jury pool, and attacks a party’s character
4 and credibility. Biggs v. Vail, 124 Wn.2d 193, 197 (1994). Plaintiffs’ request that this Court make a
5 finding that Officer Anderson, as a party defendant and witness, perjured himself in advance of trial
6 sends a message to the media and public that Officer Anderson’s testimony at trial should not be
7 trusted. This message deprives Officer Anderson of his day in court. And the damage went
8 uncontained as the motion was carried by all major networks and print publications including the
9 Seattle Times and Associated Press. Counsel’s accusations are disingenuous, lacking any basis in fact
10 or law, and lack any semblance of good faith. This Court should take seriously counsel’s conduct,
11 exploitation of media coverage, and defamatory accusation. The Court should deny Plaintiffs’
12 improper motion and issue appropriate sanctions.
13 III. STATEMENT OF ISSUES
14 1) Whether the Court should deny Plaintiffs’ frivolous motion where there is legal,
15 factual, or jurisdictional basis for the relief sought, absolutely no evidence of a false statement by
16 Officer Anderson, and where Officer Anderson has testified consistently as to his recollection.
17 2) Whether the Court should issue monetary sanctions and other relief directed at Ms.
18 Koehler and Mr. Moore for the costs and fees incurred by Defendants in having to respond to this
19 baseless motion, for counsels’ willful disregard of the parties’ Protective Order, for Plaintiffs’ failure
20 to produce responsive discovery documents, for counsels’ willful disregard of Civil Rule 11, and to

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1 deter future baseless motions filed on Plaintiffs’ behalf.
2 3) Whether the Court should strike/exclude from consideration the declaration of Wilson
3 Hayes and the video referenced therein and any reference to SPDs Body Worn Video policy under
4 ER 407.
5 IV. EVIDENCE RELIED UPON
6 This opposition is based upon the pleadings and documents on file herein, and the Declaration
7 of Megan M. Coluccio, with attached exhibits, and the Declarations of Jonathan Fong and Travis
8 Smith.
9 V. AUTHORITY AND ARGUMENT
10 A. Plaintiffs’ Request for Relief Has No Basis in Law or Fact.
11 Lacking any legal or factual support, Ms. Koehler and Mr. Moore have filed a motion in a
12 civil case, asking this Court to exceed the bounds of its jurisdiction and make a criminal perjury
13 determination against Defendant Officer Anderson.5 The motion fails on its face. These attorneys are
14 unable to point to any inconsistencies in Officer Anderson’s recollection of whether the door to Ms.
15 Lyles’s apartment was open at the time she attacked the officers with a deadly weapon, because no
16 inconsistencies exist. Counsels’ displeasure with Officer Anderson’s testimony and FIT interviews
17 does not support a criminal determination that he “probably” committed perjury, nor is there a basis
18 for such a finding in either the facts of this case or the law. Indeed, no civil claim for perjury even
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20 5
The decision to determine and file appropriate charges is vested in the prosecuting attorney as a
21 member of the executive branch. State v. Rice, 155 Wn. App. 545, 560, 246 P.3d 234 (2011).
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1 exists. Dexter v. Spokane County Health Dist., 76 Wn. App. 372, 884 P.2d 1353 (1994).
2 These attorneys have not and cannot establish that Officer Anderson made a statement under
3 oath that he knew to be materially false as required under the statute. RCW 9.72.090. Using a
4 “because my previously undisclosed expert says so” argument does not meet the burden under our
5 Civil Rules. Indeed, by in filing this baseless motion, these attorneys have simply engaged in a
6 premature battle of the experts and chose to do so through the media. Determinations of fact fall
7 within the province of the jury – the very jury pool that Plaintiffs’ counsel is potentially poisoning in
8 filing and widely disseminating this motion through the media.
9 Ms. Koehler had the opportunity to thoroughly cross examine Officer Anderson over the
10 course of fourteen hours. Despite repeatedly asking him about his location at the time he fired his
11 weapon, Ms. Koehler received the same response: Officer Anderson was located inside Ms. Lyles’
12 apartment with the door closed behind him, a confined space with no shielding and little distance
13 between him and Ms. Lyles at the time she suddenly attacked him with a knife, then turning her attack
14 on fellow Officer McNew. (Coluccio Decl., Ex. N, 179:12-19; 200:8-22; 201:4-9). Once Ms. Lyles
15 was down, Officer Anderson opened the door to create more space between them. (Id., 179:12-19).
16 When Ms. Koehler showed Officer Anderson the hallway surveillance footage, she was met with the
17 same, consistent response. (Id., 197:8-198:9).
18 Thus, Ms. Koehler and Mr. Moore now present this motion with an amalgam of complaints
19 -- criticizing the lack of photography or evidence marking – at a time when officers were trying to
20 secure a scene and render aid to Ms. Lyles. (See Plaintiffs’ Motion, Dkt. 144, ¶3.3); criticizing SPD’s

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1 commitment to transparency by its release of information to the public at various stages of its internal
2 investigations. (Id., ¶5.1); criticizing the diagraming by CSI and the evaluation by FIT. These
3 extraneous, outrageous, and unfounded accusations are blatant red herrings, targeted at generating
4 additional media attention, trying the case in the media, and injecting public discord into this case. It
5 is undisputed that, at no point during the deposition, did Ms. Koehler show Officer Anderson what is
6 proffered in this motion as a perfectly synchronized version of the surveillance footage with the ICV
7 audio.6 On its face, Plaintiffs’ reliance on previously undisclosed expert materials, which provide
8 scant information regarding qualifications, foundation, or methodology, is simply an inappropriate
9 attempt at a second bite at the apple of cross-examination through motions practice and to place the
10 Court in the province of the finder of fact. Washington is not a trial by ambush jurisdiction with
11 respect to experts, and it is well-established that a judge cannot invade the province of the jury by
12 making witness credibility determinations.
13 There is no case in Washington that supports the requested relief of a criminal determination
14 made by a civil court, and much less on a “probability” basis. Indeed, the only case cited by Plaintiffs’
15 counsel is wholly distinguishable, addressing the recall of an elected public official with respect to
16 false statements made about her education. In re Recall of Pearasall-Stipek, 141 Wn.2d 756, 10 P.3d
17 1034 (2000). Notably, in that case, the Court did not find evidence of perjury. Id. Further, in that
18 case, there were multiple statements by the public official with respect to her education, which she
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20 6
The substance of the synchronized video proffered by Plaintiffs is addressed in Defendants’
21 Motion to Strike supra.
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1 personally knew to be false, facts which could be independently verified through various means. In
2 that case, the public official’s perception of a situation was not in question as it is here, where the
3 issue is the recollection of a Seattle Police Officer’s reaction to a rapidly evolving, dynamic situation
4 in which he and his partner were faced with an imminent threat of a deadly weapon. Both Officers
5 Anderson and McNew have been repeatedly and independently questioned about the details of an
6 event that transpired in mere seconds, and it is undisputed that their answers have been consistent
7 from the internal investigation through their depositions in this case. Counsels’ unfounded motion
8 should be denied.
9 B. Defendants are Entitled to Sanctions Under CR 11.
10 Civil Rule 11 prohibits the submission or advocacy a claim which is baseless or for an
11 improper purpose such as harassment. Wixom v. Wixom, 190 Wn. App. 719, 360 P.3d 960 (2015),
12 rev. den., 185 Wn.2d 1028, 377 P.3d 717 (2016); In re Recall of Piper, 184 Wn.2d 780, 364 P.3d
13 113 (2015). A baseless claim is one without merit, i.e., (a) not well grounded in fact; or (b) not
14 warranted by existing law; or (c) not warranted by a good faith argument for the alteration of existing
15 law or the establishment of new law. Hicks v. Edwards, 75 Wn. App. 156, 876 P.2d 953 (1994). An
16 attorney’s signature constitutes a certification to the Court that a claim is meritorious to the attorney’s
17 best knowledge, information, or belief, based on an actual inquiry that was reasonable under the
18 circumstances of the particular case. Bryant v. Joseph Tree, Inc., 57 Wn. App. 107, 791 P.2d 537
19 (1990), aff'd, 119 Wn.2d 210, 829 P.2d 1099 (1992). It is not enough that an attorney believes a
20 claim is meritorious. The reasonableness of the attorney’s inquiry is evaluated on an objective

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1 standard. Harrington v. Pailthorp, 67 Wn. App. 901, 841 P.2d 1258 (1992); Rhinehart v. Seattle
2 Times, 59 Wn. App. 332, 798 P.2d 1155 (1990).
3 A trial court has broad discretion to issue monetary sanctions for the reasonable expenses
4 incurred because of a CR 11 violation, including a reasonable attorney fee. See, e.g., King County
5 Water Dist. No. 90 v. City of Renton, 88 Wn. App. 214, 944 P.2d 1067 (1997) (if a party “acts
6 within its rights” in responding to a sanctionable filing, expenses incurred in preparing response
7 are properly awardable as sanctions). The Rule does not preclude the court from imposing some
8 other type of remedy or a combination of remedies. See Miller v. Badgley, 51 Wn. App. 285, 753
9 P.2d 530, (1988) (in some instances, a reprimand from the court will be sufficient). Sanctions may
10 be imposed upon a party or an attorney, or both. Blair v. GIM Corp., Inc., 88 Wn. App. 475, 945
11 P.2d 1149 (1997); Layne v. Hyde, 54 Wn. App. 125, 773 P.2d 83 (1989). Where the party is solely
12 responsible for the frivolous filing, the sanctions should be imposed directly on the party. In re
13 Cooke, 93 Wn. App. 526, 969 P.2d 127 (1999) (party signed and filed baseless statement of issues
14 using his attorney's pleading paper). In fashioning an appropriate sanction, the trial judge may also
15 consider the punitive, compensatory, and educational impact of a sanction in light of the
16 circumstances of the particular case. See Miller v. Badgley, 51 Wn. App. 285, 753 P.2d 530, (1988)
17 In light of the motion pending before the Court and counsels’ conduct, Defendants request
18 a combination of remedies under CR 11, imposed directly on Ms. Koehler and Mr. Moore.
19 Defendants have complied with CR 11 and provided Plaintiffs’ counsel with notice of this motion
20 via written letter. (Coluccio Decl., Ex. S). Ms. Koehler responded to this notice by casting

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1 dispersions on Defense counsel, alleging “insufficient (tactically postponed) notice.” (Id., Ex. V).
2 Defendants provided Ms. Koehler with more than enough time to withdraw her motion, give notice
3 of an intent to withdraw, or even request to meet and confer. Ms. Koehler did none of the above.
4 Regardless, even if Ms. Koehler offered to withdraw her motion, the damage has been done, and
5 does not expunge her and Mr. Moore’s violation of CR 11. See 15 Wash. Prac., Civil Procedure
6 §51:11 (2d ed.).
7 Here, Ms. Koehler and Mr. Moore filed a motion with no basis in fact or law and seek relief
8 outside the jurisdiction of this Court, publicly accusing a Seattle Police Officer, a party to this
9 lawsuit, of a criminal act without any evidentiary support. This unfounded motion serves no
10 purpose but to harass Defendants. Ms. Koehler and Mr. Moore calculated filing this baseless
11 motion on the anniversary of the subject incident, and directly solicited unnecessary media
12 attention by providing the motion or notice thereof to the media before serving defendants. Ms.
13 Koehler and Mr. Moore rely on discoverable materials of an undisclosed expert that were
14 responsive to but not produced in response to the City’s discovery requests. (Koehler Decl., Dkt.
15 145, Exs. 9 & 10). Ms. Koehler and Mr. Moore denied Defendants any meaningful opportunity to
16 address the deficiencies and discovery violations of Plaintiffs by filing this motion to put Officer
17 Anderson to trial by ambush in the court of public opinion. Ms. Koehler and Mr. Moore also
18 violated the parties’ Protective Order by filing and disseminating to the media portions of Officer
19 Anderson’s video deposition before the 30-day period for confidential designations closed on June
20 28, 2018. (Id., Ex. 12). Ms. Koehler and Mr. Moore made substantive misrepresentations to the

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1 Court with respect to a “synchronized” video it claims was produced by the Seattle Police
2 Department - but the City has made no such representation of a perfectly “synchronized” video.
3 (Id., Ex. 11; Fong Decl.; Smith Decl.).
4 Finally, Ms. Koehler and Mr. Moore’s conduct falls in direct conflict with the RPCs,
5 including RPC 3.6 which governs Trial Publicity. RPC 3.6(a) provides:
6 (a) A lawyer who is participating or has participated in the

investigation or litigation of a matter shall not make an extrajudicial
7 statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a
8 substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
9
(emphasis added). Comment 5 clarifies:
10
There are, on the other hand, certain subjects that are more likely
11 than not to have a material prejudicial effect on a proceeding,
particularly when they refer to a civil matter triable to a jury, a
12 criminal matter, or any other proceeding that could result in
incarceration. These subjects relate to:
13
(1) the character, credibility, reputation or criminal record of a
14 party, suspect in a criminal investigation or witness, or the identity
of a witness, or the expected testimony of a party or witness;
15
(emphasis added). In addition, under RPCs 3.4 and 3.5, counsel owes a duty of fairness and
16
decorum to Defendants and the Court.
17
It is undisputed that the subject motion was served on Defendants at 2:06 p.m. on June 18,
18
2018. (Coluccio Decl., Ex. B). It is no coincidence that a reporter from King 5 News broke the
19
news of this motion, with specific screenshots to its text, at 1:55 p.m. (Id., Ex. A). Ms. Koehler’s
20
subsequent retweeting of multiple news articles demonstrates extrajudicial statements with respect
(206) 684-8200
1 to the character, credibility, and reputation of a party to this lawsuit. Ms. Koehler and Mr. Moore’s
2 actions and their intentions in providing materials to or alerting the media before serving
3 Defendants, and potentially before filing with the Court, should not be ignored, particularly given
4 the severity of the allegations set forth in this motion which directly attacks the character and
5 credibility of a party.
6 Ms. Koehler and Mr. Moore’s litigation decisions are their own. No one forced them to
7 prematurely file this lawsuit, less than three months after the subject incident before they
8 thoroughly investigated it. With a trial date set in 2019, no one forced them to take the deposition
9 of Officer Anderson in February and April – as written discovery continued and before counsel
10 had an opportunity to meaningfully prepare for it. Ms. Koehler and Mr. Moore could have retained
11 an expert such as Mr. Hayes to prepare a synchronized video as offered to the Court in advance of
12 cross-examining Officer Anderson at deposition. Ms. Koehler and Mr. Moore could have
13 produced Mr. Hayes’ “expert opinions” before taking Officer Anderson’s deposition or even
14 before filing this motion. This suggests that the purpose of the video was never to uncover the truth
15 or test the officers’ memories, but instead to bolster a perjury conspiracy for the media to
16 sensationalize. These exigencies all exist under the false pretenses and constructs created by Ms.
17 Koehler and Mr. Moore. Plaintiffs’ motion serves no other purpose than to materially prejudice
18 these proceedings against and harass Defendants.
19 The severity of Ms. Koehler and Mr. Moore’s violations of CR 11 and the RPCs warrants
20 a monetary sanction. Defendants request their reasonable fees in responding to this frivolous,

(206) 684-8200
1 baseless motion and for Plaintiffs’ discovery violations with respect to their proffered expert. The
2 Court should further reprimand Ms. Koehler and Mr. Moore for violating the Court’s Protective
3 Order, failing to produce discoverable materials in anticipation of such an explosive motion, and
4 having for their litigation of the case via the media. The Court should direct these officers of the
5 court to comply with the Civil Rules, RPCS, and decorum of this venue.
6 C. The Court Should Not Consider Inadmissible Materials.
7 An expert’s opinion is inadmissible if it amounts to no more than conjecture or speculation,
8 or it not sufficiently tied to the facts of the case. See, e.g., Torno v. Hayek, 133 Wn. App. 244, 135
9 P.3d 536 (2006); Riccobono v. Pierce County, 92 Wn. App. 254, 966 P.2d 327 (1998). Expert
10 testimony is helpful if it concerns matters beyond the average layperson's common knowledge and
11 is not misleading. State v. Groth, 163 Wn. App. 548, 564 (2011). Further, under Frye, a proffered
12 expert must be able to demonstrate that they applied a generally accepted theory. Lake Chelan
13 Shores Homeowners Ass’n v. St. Paul fire & Marine Ins. Co., 167 Wn. App. 28, 272 P.3d 249
14 (2011), rev. granted, remanded, 174 Wn.2d 1017, 282 P.3d 1069 (2012), opinion withdrawn and
15 superseded, 176 Wn. App. 168, 313 P.3d 408 (2013).
16 Ms. Koehler and Mr. Moore now proffer previously undisclosed expert Mr. Hayes, who
17 specializes in injury biomechanics and accident reconstruction, as a video analysis expert. By no
18 means is Mr. Hayes a video analysis expert. Indeed, his own website fails to identify video
19 analysis or synchronization as an area of expertise. (See https://www.hayesassoc.com/). The
20

(206) 684-8200
1 undersigned counsel could not identify a single case where Mr. Hayes has been proffered as a
2 video analyst expert.
3 Here, Mr. Hayes created a “synchronized” video relying upon a single unenhanced ICV
4 audio file with several muted or static spots and a silent surveillance video maintained by a third
5 party independent of SPD. Based on analysis of Mr. Hayes’ produced product (Exhibit 10), Ms.
6 Hayes likely did not use original footage – but conducted his analysis via the redacted and publicly
7 released video created by SPD. (Fong Dec. at ¶¶ 4; Smith Dec. at ¶ 4, 6). It is unclear what Mr.
8 Hayes is referencing when identifying a “synchronized” video created by SPD. (Hayes Dec., ¶ 9).
9 However, it should be noted that the video unit that created the publicly released and redacted
10 video (Pl.’s Exhibit 11), did not synchronized the footage and audio. (Fong Dec., ¶ 3; Smith Dec.
11 ¶ 4). Notably, the publicly released video (shown by Plaintiffs’ counsel repeatedly at Officer
12 Anderson’s deposition and referenced in their Motion) was “created for public release immediately
13 following the events of June 18th, 2017 from source material obtained and was not meant for
14 forensic analysis.” (Fong Dec. at ¶ 4).
15 In simple terms, using the redacted video file for a forensic comparison
is similar to comparing a photocopy of a photocopy to the original
16 image. The original videos were processed for redaction and conformed
to fit one video format, which included changes in frame size, frame
17 rate, and file formats, converting or processing, and then redacting,
transcoding, and exporting for public release at the request of our media
18 relations unit, who in turn uploaded it to youtube which includes another
proprietary transcoding process. Each of these steps is a figurative
19 “photocopy” of the original video file. The redacted file’s intended
purpose was to help shed light on a tragic incident and provide
20 transparency to the family of Ms. Lyles and our community, not for
forensic analysis.
(206) 684-8200
1 (Smith Dec., ¶ 6). This is important because “the change in the fundamental traits of the original
2 video through the process of re-encoding multiple times (photocopies of photocopies) alters the
3 integrity of the video in terms of forensic analysis, because of changes in frame rates, frame size,
4 and the loss or addition of video information created in the transcoding process and encoding
5 settings in general.” (Id. at ¶ 7).
6 The methodology implemented by Mr. Hayes fails to meet the Frye standard and does not
7 satisfy the reliability requirements of ER 702. Opinions of an expert that are only conclusions or
8 that are based on assumption do not satisfy the standards for admissibility. Lilly v. Lynch, 88 Wn.
9 App. 306, 945 P.2d 727 (1997). The Court should strike the declaration, attached as Exhibit 9 to
10 Ms. Koehler’s declaration, and all attachments thereto as it fails to meet the standards for
11 admissibility. For that reason, the Court should strike Exhibit 10 from the record.
12 Finally, the Court should disregard all references to body cams. As the Court is aware, SPD’s
13 BWV policy did not go into effect until several months after the subject incident. Counsel’s
14 insinuations with respect to body cams and negligence are improper under ER 407 and should not be
15 considered by the Court.
16 VI. CONCLUSION
17 Ms. Koehler and Mr. Moore have filed a baseless motion as a means of harassing Defendants.
18 Such conduct is precluded under our Civil Rules. The Court should deny Plaintiffs’ counsels’ motion
19 and strike the inadmissible materials filed with it. Further, the Court should issue an order granting
20 monetary sanctions and other remedies against Ms. Koehler and Mr. Moore to discourage such

(206) 684-8200
1 conduct in the future and to preserve the decorum of this Court.
2 DATED this 22nd day of June, 2018.
4
By /s/ Megan M. Coluccio
5 ROBERT L. CHRISTIE, WSBA #10895
MEGAN M. COLUCCIO, WSBA #44178
6 2100 Westlake Avenue N., Suite 206
Seattle, WA 98109
7 T: 206-957-9669
bob@christielawgroup.com
8 megan@christielawgroup.com
Attorneys for Defendants Jason M. Anderson and
9 Steven A. McNew
10
SEATTLE CITY ATTORNEY’S OFFICE
11
12 By /s/ Ghazal Sharifi

Ghazal Sharifi, WSBA #47750
13 Jeff Wolf, WSBA #20107
701 5th Avenue, Suite 2050
14 Seattle, WA 98104
Ghazal.Sharifi@seattle.gov
15 Jeff.Wolf@seattle.gov
Attorneys for Defendant City of Seattle
16
I certify that this memorandum contains 6,062
17 words, in compliance with the Local Civil
Rules.
18
19
20

(206) 684-8200
1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 22nd day of June, 2018, I caused a true and correct copy of the
foregoing document to be served upon the following in the manner indicated below:
3
4 Karen K. Koehler, WSBA #15325

R. Travis Jameson, WSBA #45715
5 STRITMATTER KESSLER WHELAN
KOEHLER MOORE
6 3600 15th Avenue W., #300
Seattle, WA 98119
7 Email: Karenk@stritmatter.com, travis@stritmatter.com
Attorneys for Plaintiff
8 Via King County E-Service and Email
9 Edward H. Moore, WSBA #41584

LAW OFFICES OF EDWARD H. MOORE, PC
10 3600 15th Avenue West, Suite 300
Seattle, WA 98119
11 Email: emoore@ehmpc.com
Attorney for Plaintiff
12 Via King County E-Service and Email
13 Ghazal Sharifi, WSBA #47750

Jeff Wolf, WSBA #20107
14 SEATTLE CITY ATTORNEY’S OFFICE
701 5th Avenue, Suite 2050
15 Seattle, WA 98104
Email: Ghazal.Sharifi@seattle.gov; Jeff.Wolf@seattle.gov
16 Attorneys for Defendant City of Seattle
Via King County E-Service and Email
17
18
__________________________________________
19 STEFANIE PALMER
20

DEFENDANTS’ JOINT OPPOSITION TO
SEATTLE, WA 98109
(206) 684-8200

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1 HONORABLE JULIE SPECTOR

6 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON

8 Commissioner Eric Watness, as Personal

11 Professional Conduct going forward.

14 the Court and explain their actions.

19 warranted against Ms. Koehler and Mr. Moore.

21 CHRISTIE LAW GROUP, PLLC

2 A. The Subject Incident and Subsequent Seattle Police Department Investigation.

8 investigate. (Coluccio Decl., Ex. C.).

16 subject incident. (Id., ¶7).

21 CHRISTIE LAW GROUP, PLLC

15 interviews. (Coluccio Decl., Exs. H & K).

16 B. The Subject Lawsuit.

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7 (Coluccio Decl., Ex. L).

12 30 days of receipt. (Id., Ex. M).

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10 Order before it may be publicly disseminated.

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5 of the written deposition transcript are not so designated. (See 46).

12 improper motion and issue appropriate sanctions.

13 III. STATEMENT OF ISSUES

21 CHRISTIE LAW GROUP, PLLC

5 IV. EVIDENCE RELIED UPON

9 V. AUTHORITY AND ARGUMENT

10 A. Plaintiffs’ Request for Relief Has No Basis in Law or Fact.

8 filing and widely disseminating this motion through the media.

17 same, consistent response. (Id., 197:8-198:9).

21 CHRISTIE LAW GROUP, PLLC

8 scant information regarding qualifications, foundation, or methodology, is simply an inappropriate

12 making witness credibility determinations.

9 B. Defendants are Entitled to Sanctions Under CR 11.

20 claim is meritorious. The reasonableness of the attorney’s inquiry is evaluated on an objective

21 CHRISTIE LAW GROUP, PLLC

2 Times, 59 Wn. App. 332, 798 P.2d 1155 (1990).

21 CHRISTIE LAW GROUP, PLLC

6 §51:11 (2d ed.).

21 CHRISTIE LAW GROUP, PLLC

3 (Id., Ex. 11; Fong Decl.; Smith Decl.).

6 (a) A lawyer who is participating or has participated in the

18 these proceedings against and harass Defendants.

21 CHRISTIE LAW GROUP, PLLC

6 C. The Court Should Not Consider Inadmissible Materials.

7 An expert’s opinion is inadmissible if it amounts to no more than conjecture or speculation,

15 superseded, 176 Wn. App. 168, 313 P.3d 408 (2013).

17 specializes in injury biomechanics and accident reconstruction, as a video analysis expert. By no

19 analysis or synchronization as an area of expertise. (See https://www.hayesassoc.com/). The

21 CHRISTIE LAW GROUP, PLLC

2 video analyst expert.

14 forensic analysis.” (Fong Dec. at ¶ 4).

5 settings in general.” (Id. at ¶ 7).

15 considered by the Court.

21 CHRISTIE LAW GROUP, PLLC

2 DATED this 22nd day of June, 2018.

3 CHRISTIE LAW GROUP, PLLC

12 By /s/ Ghazal Sharifi

21 CHRISTIE LAW GROUP, PLLC

4 Karen K. Koehler, WSBA #15325

9 Edward H. Moore, WSBA #41584

13 Ghazal Sharifi, WSBA #47750

21 CHRISTIE LAW GROUP, PLLC

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