lN THE COURT OF APPEALS OF THE STAT'E OF WASH|NGTG_§

__.l
JP
REBECCA A. RUF|N, an individual, ) ` §§
) No. 76091-2-| ‘_\’__
Appellant, )
) DlvisloN oNE §
v- ) 29
) UNPUBL|SHED OP|N|OQ
C|TY OF SEATTLE, a municipality, and )
JORGE CARRASCO, an individual, )
) F|LED: August 21, 2017
Respondents. )

 

APPELW|CK, J. _ Rufin appeals the denial of her CR 60(b)(4) motion to
vacate judgment in favor of the City of Seattle in her employment retaliation
lawsuit The motion was based on an e-mail produced in a later lawsuit under the
Public Records Act.1 Rufin claims the e-mail contradicts witness testimony at the
retaliation trial and, though responsive to her discovery requests, it was not
produced in that lawsuit. She argues that the court misapplied the law and made
findings not supported by the evidence. We affirm.
/FACTS
Rebecca Rufin worked for Seatt|e City Light from 1990 through 2006. Mn
v. City of Seattle, No. 72012-1-|, slip op. at 2 (Wash Ct. App. Aug. 17, 2015)
(unpublished), http://www.courts.wa.gov/opinions/pdf/720121.pdf (B_gtjn_ l). While
there and shortly after/leaving, she was involved as a potential witness in an
investigation and lawsuit related to gender discrimination allegations by City Light

employees against Jorge Carrasco. ld_. at 2, 8-9. Carrasco is City Light’s general

manager and chief executive officer. q_ld_. at 2.

 

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No. 76091-2-|/2

ln 2011 and 2012, Rufin applied for an open position as a civil and
mechanical engineer manager (CME) at City Light. l_d_. at 2-3. She first applied in
August 2011. lg_. at 3. She was interviewed three times for the position. l_d_.
' Ultimatelyl City Light terminated the hiring process without filling the position. l_d_.

ln April 2012, City Light relisted the CME position. _lg; Rufin saw the
opening.' Ll_. On April 10l 2012, she e-mailed Mike Haynes, who was the hiring
managerfor the CME position. She asked, “So Mike, is there any point in applying
for this? l still don’t understand how l failed to measure up with the last lengthy
process.” On April 19l Haynes responded, informing Rufin, “As you know, this is
an active process and l need to divert you to HR for questions. Susan McClure is
running this process.” Rufin reapplied for the Cl\/lE position. m l, slip op. at 3.

Then, on June 11, 2012, Rufin e-mai|ed Carrasco about her applications for
the CME position. She informed him that she applied for the position in August
2011 and was turned down`after three interviews. She noted that City Light had
begun a new selection process for the position. Rufin said, “l cannot help but
wonder why l was turned down for the position with the prior hiring process.”
Carrasco replied, copying the human resources officer DaVonna Johnson.
Carrasco told Rufin that he was not involved with the selection process, but that
Johnson would look into the situation.

‘lVleanwhile, Haynes spoke with Heather Hartley, who was a personnel
specialist in City Light’s Ta|entAcquisition Unit. Hartley determined that under City

Light policy, a candidate who has previously been considered for a position will not

No. 76091-2-|/3

be considered again.2 yOn June 12, 2012, Hartley sent Rufin a letter to inform her
that they would not be considering Rufin’s application. Hartley’s supervisor, Gary
l\/laehara, approved the letter before she sent it.

After receiving this rejection letter, Rufin contacted Johnson to set up a
meeting. _ They met on June 20, 2012. Rufin sought to understand why she was
turned down for the CME position. Johnson communicated to Rufin that when she
left City Light in 2006, she conveyed her dissatisfaction in a divisive manner. And,
Johnson noted that Rufin’s interest in rejoining City Light seemed focused on her
own personal gainl rather than how she could benefit the utility.

_Rufin filed a complaint against City Light and its director, Carrasco, under
chapter 49.60 RCW. m |, slip op. at 3. She claimed gender discrimination and
retaliation for taking part in a protected activity. l_cL Rufin alleged that her
participation in the earlier investigations was a substantial factor in City Light’s
decision not to hire her for the CME position. ln connection with the retaliation
lawsuit, Rufin made numerous Public Records Act (PRA) requests. Rufin v. City
of Seattle, 199 Wn. App. 348, 352-53, ___ P.2d _ (2017) (B_LM ll).

Rufin served interrogatories and requests for production on the City of
Seattle (City). She requested all e-mails or communications to or from City Light

' employees Haynes, Johnson, or Darnell Cola3 that referred to Rufin. The City

 

2 The record does not contain an ordinance or formal policy statement as to
this practice.

3 Cola was a member of the hiring team who interviewed Rufin for the CME
position.

NO. 76091-2-|/4

objected to these requests as overly broad and not reasonably calculated to lead
to the discovery of admissible evidence.

Rufin moved to compel the City to respond to her first set of interrogatories
and requests for production. On July 3, 2013, the trial court granted Rufin’s motion
to compel. lt ordered the City to search for e-mails relating to Rufin “in places they
are most logically likely to reside and places easily accessible and searchable,
including personnel files, any paper files, [and] any electronic files” maintained by
Carrasco, Johnsonl Haynes, and Cola.

Rufin’s retaliation claim was tried before a jury in April 2014. Her theory at
trial was that Carrasco had intervened in the hiring process to make sure Haynes
did not hire Rufin, due to her allegations of gender discrimination by Carrasco in
2006. Thejury found in favor of City Light. _R_u@ l, slip op. at 3. This court affirmed
the verdict in an unpublished opinion. l_d_. at 1.

|n November 2014, Rufin filed a claim alleging PRA violations. Ru_fin ll, 199
Wn. App. at 353. ln discovery, she requested e-mails mentioning her name that
may exist among public disclosure officers. l_d_. ln response to this requestl the
City produced the e-mail that Rufin now refers to as a “smoking;gun.” ig This e-
mail related to Rufin’s April 10, 2012, e-mail to Haynes about the relisting of the
CME position. On April 18, 2012, Haynes forwarded Rufin’s e-mail to l\/laehara,
Johnson, and Steve Kern, Haynes’s supervisor, with the message, “l am just
getting caught up after being out for a week. l have not replied.”

On January 8, 2016, Rufin filed a CR 60(b)(4) motion to vacate the judgment

in the retaliation case. She asserted that the City withheld Haynes’s April 18, 2012

No. 76091-2-|/5

e-mail, which could have changed the outcome of the case. Rufin argued that the
e-mail directly contradicted the version of events that defense witnesses gave in
declarations, depositions, and at trial. Specifically, she contended that the e-mail
showed that Johnson and l\/laehara were notified of Rufin’s complaint about her
nonselection during the 2011 hiring process, whereas the witnesses claimed that
Johnson had no information about Rufin’s application for the job.

The trial court denied Rufin’s CR 60(B)(4) motion to vacate the judgment.
The court found that Rufin did not prove by clear, `cogent, and convincing evidence
that the City committed fraud, misrepresentationl or misconduct in the retaliation
lawsuit. And, the trial court denied Rufin’s CR 37 motion for a defaultjudgment or
a new trial. lt found that the City did not willfully or deliberately violate the discovery v
rules or the court’s discovery order.

Rufin appeals.

DlSCUSS|ON

Rufin argues that the trial court erred in denying her CR 60(b)(4) motion.
She contends that the City committed misconduct by failing to produce the April
18, 2012 e-mail in the retaliation lawsuit and by instituting an automatic deletion
policy that resulted in other copies of the e-mail being destroyed. She argues that
7 the content of the e-mail revealed the City’s misrepresentations at trial. And, she
contends that under CR 37, harsh sanctions are warranted for the City’s discovery
violations.

CR 60(b)(4) provides that the court may relieve a party from a final judgment

for “[f]raud (whether heretofore denominated intrinsic or extrinsic),

NO. 76091-2-|/6

misrepresentation, or other misconduct of an adverse party.” The party asserting
that a'judgment has been obtained through fraud, misrepresentation, or other
misconduct has the burden of proving the assertion by clear and convincing
eviden`ce. Peoples State Bank v. Hickev, 55 Wn. App. 367, 372l 777 P.2d 1056
(1989). lt is immaterial whether the misrepresentation was willful or innocentl since
the effect is the same. g at 371. The party requesting relief must show that the
misconduct prevented a full and fair presentation of its case. Dalton v. State, 130
Wn. App. 653, 665, 124 P.3d 305 (2005).

We review a trial court’s decision on a motion to vacate under CR 60(b) for
an abuse of discretion. l\/litchell v. Wash. State lnst. of Pub. Policv, 153 Wn. App.
803, 821, 225 P.3d 280 (2009). The trial court abuses its discretion only when
there is a clear showing that the trial court’s decision was manifestly unreasonable
or based on untenable grounds or untenable reasons. g

Where the trial court’s findings of fact are challenged, we review whether
substantial evidence supports the findings. ln re l\/larriaqe of Schweitzer, 132
Wn.2d 318, 329, 937 P.2d 1062 (1997). Where the standard of proof in the trial
court is clear, cogent, and convincing evidence, substantial evidence must*be
“highly probable.” l_d;

l. Misconduct

Rufin argues that the City committed misconduct by failing to produce the

April 18; 2012 e-mail. Rufin alleges that the City had an aermative duty to search f

l\/Iaehara’s e-mail account for responsive records, yet failed to do so. And, she

NO. 76091-2-|/7

contends that the City destroyed evidence of the April 18, 2012 e-mail through its
automatic deletion policy,

The trial court found that while the City admitted it did not produce the April
18, 2012 e-mail and that e-mail was responsive to Rufin’s discovery requests, this
` failure to produce did not constitute misconduct. lt found that the City conducted
a reasonable search for all responsive e-mails. lt found that the paralegal who
conducted the search had no reason to look in N|aehara’s account. And, the court
found that although Maehara “could have and, perhaps should have, realized he
had received e[-]mail correspondence relating to Rufin in April 2012, when he
received copies of the discovery motion, his failure to remember does not prove
fraud or intentional withholding of evidence by the City.” The court also found that
the City’s retention policy did not constitute misconduct.

CR 26(g) pertains to responses to discovery requests. Llnder this rule, an
attorney signing a response to a discovery request must certify that he or she has

read the response and, after a reasonable inquiry, believes it is:

(1) consistent with the discovery rules and is warranted by existing
law or a good faith argument for the extension, modification or
reversal of existing law; (2) not interposed for any improper purpose
such as to harass or cause unnecessary delay or needless increase
in the cost of litigation; and (3) not unreasonable or unduly
burdensome or expensive, given the needs of the case, the
discovery already had, the amount in controversy, and the
importance of the issues at stake in the litigation.

Wash. State thsicians lns. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 343,
858 P.2d 1054 (1993); see also CR 26(g). Whether the attorney performed a

reasonable inquiry is determined by an objective standard Fisons Corp., 122

NO. 76091-2-|/8

Wn.2d at 343, An attorney’s subjective belief or good faith alone is not enough to
shield the attorney from sanctions.4 l_d_. 4

Here, it is undisputed that the City failed to produce the April 18, 2012 e-
mail, even though it was responsive both to Rufin’s discovery requests and the trial
court’s discovery order. The e’-mail was sent by Haynes to Johnson, Maehara,
and Kern, lt concerned Rufin’s application for the CME position. Rufin’s requests
for production asked for every e-mail to or from Johnson, Haynes, and Cola
regarding Rufin, The City objected to these requests as overly broad. Rufin moved
to compel the City to responds The trial court’s discovery order narrowed these
requests. lt required the City to look for e-mails “in places they are most logically
likely to reside.” lt specifically required the City to search the e-mail accounts and
archives of Carrasco, Johnson, Haynes, and Cola. That search was executed.
Yet, the City did not produce the April 18, 2012 e-mail. t

Rufin asserts that the City should have known to search l\/laehara's e-mail
account. She points to the fact that Maehara reviewed the letter that Hartley sent
to Rufin to inform her that City Light would not be considering her second
`application. She also points to the fact that Maehara received copies of the
documents in the retaliation |itigation, and should have known that he possessed

e-mails regarding Rufin.

 

4 Rufin contends that the trial court failed to analyze whether the City’s
attorneys performed a “reasonable inquiry” in responding to Rufin’s discovery
requests. She contends that instead, the trial court required Rufin to show that the
City had committed fraud or intentionally withheld evidence. But, the trial court’s
order does not support Rufin’s contentions. The court specifically found that the
City had performed a “reasonable search.” We can discern no meaningful
distinction between a “reasonable inquiry” and a “reasonable search.”

No. 76091-2-|/9 `

l _Whether the City conducted a reasonable search for records was a factual
question best resolved by the trial court. Several witnesses submitted sworn
declarations about their responses to the trial court’s order to compel. Assistant
City Attorney Carolyn Boies Nitta stated in a declaration, “l did not direct that any
document responsive to this Court's order be withheld from production; l am not
aware of any such direction from anyone else; and l am aware of no withholding
of any such document.” She confirmed that she had no reason to believe that
Maehara would have any responsive documents, Assistant City Attorney Erin
Overbey stated in a declaration that she had no reason to believe that responsive
documents would be contained in Maehara’s e-mail account or archive. She
further stated that Maehara’s e-mai| account would have been searched if she had
reason to believe it contained responsive documents, And, she confirmed that she
did not direct that any responsive document be withheld, and was not aware of any
document that was withhe|d.

Paralegal DC Bryan, who searched for responsive documents, also
submitted a declarationl He stated that he searched for documents “in the places
that such documents most logically would be kept." He searched Johnson’s,
Haynes’s, Carrasco's, and Cola’s e-mail accounts and archives. Bryan did not
search Maehara’s e-mai| accounts or archives, because he had no reason to
believe responsive documents would be found there. Bryan further confirmed that
he “conducted the above searches in good faith, and all responsive documents

returned from those searches were produced to Plaintiff." No one instructed him

No. 76091-2-|/10

to withhold records, and he did not know of any records that were withheld from
Rufin. 4 l

Hartley did not testify that Maehara had any involvement in Rufin’s hiring
process other than approving the June 12, 2012 letter, No one did. And, Rufin
presented no evidence that l\/laehara saw the April 18, 2012 e-mail. She did not
show that he remembered receiving this e-mail. Haynes stated in a deposition that
he did not believe that he spoke directly to Maehara about Rufin’s concerns. And,
multiple City employees testified that they had no reason to look for responsive
d documents in Maehara’s accounts§ On this evidence the trial court could find that
the City conducted a reasonable search for responsive e-mails and that it would
have produced the e-mail in response to Rufin’s discovery requests, if it had found
it. These facts are do not provide clear and convincing evidence of misconduct

Rufin»also asserts that the City committed misconduct by destroying the
copies of the April 18, 2012 e-mail that resided in Haynes’s and Johnson's e-mail
accounts. She contends that the destruction of this evidence constituted .
misconduct And, she argues that the trial court incorrectly applied the law of
spo|iation.

Spo|iation is “ ‘[t]he intentional destruction of evidence.’ ” Henderson v.
`_l'yBl_l, 80 Wn. App. 592, 605, 910 P.2d 522 (1996) (alteration in original) (quoting
BLAcK’s LAw DrcTroNARY 1401 (8th ed. 1990). To determine when spo|iation
requires a sanction, the trial court weighs “(1) the potential importance or relevance

of the missing evidence; and (2) the culpability or fault of the adverse party.”

10

No. 76091-2-|/11

Homeworks Constr.1 lnc. v. Wellsl 133 Wn. App. 892, 899, 138 P.3d 654 (2006).
The court then uses its discretion to decide upon an appropriate sanction. g

For a party to be culpable, “the party must do more than disregard the
importance of the evidence; the party must also have a duty to preserve the
evidence." lg_. at 900. Whether a duty to preserve evidence exists is a question of
law reviewed de novo. Cook v. Tarbet Loqqinq, lnc., 190 Wn. App. 448, 461, 360
P.3d 855 (2015). No general duty to preserve evidence exists in Washington. §§
id_. at 470. But, other sources may create a duty to preserve evidence.
Homeworks, 133 Wn. App. at 901; Henderson, 80 Wn. App. at 610. Consequently,
a party’s negligent failure to preserve evidence relevant to foreseeable litigation is
not sanctionable spo|iation. _Q£o_k, 190 Wn. App. at 464. instead, in assessing
fault courts examine whether the party acted in bad faith or conscious disregard
for the importance of the evidence. ld_.

Rufin alleges that under RCW 40.14.070(2)(a), the City had a statutory duty
to preserve the April 18, 2012 e-mail. RCW 40.14.070(2)(a) states, “Except as
otherwise provided by law, no public records shall be destroyed until approved for
destruction by the local records committee.”7 The Local Government Common
Records Retention Schedule applies to public records of local government
agencies lt sets out retention schedules for different categories of records.

Rufin contends that the April 18, 2012 e-mail fits under two categories: non-
executive communications or recruitment files. The first categoryl non-executive
communications, applies to “internal and external communications to or from

employees (includes contractors and volunteers) that are made or received in

11

Nd. 76091-2-1/12

connection with the transaction of public business." These records must be
retained for two years. The second category, recruitment files, applies to
documents from the “recruitment and selection process for each advertised
position, including newspaper announcement job description, working
papers/notes, applicant list, interview questions and notes, selection documents,
and employee applications.” These records must be retained for three years.

The April 18, 2012 e-mail does not appear to meet either definition. A non-
executive communication must be “made or received in connection with the
transaction of public business." But, the April 18, 2012 e-mail did not purport to
transact business with the public. lt was a fonNarded e-mail from Haynes to
Johnson, Maehara, and 'Kern. lt did not provide or solicit advice regarding Rufin’s
concerns. Nor does the e¢mail qualify as a recruitment file. The message informed
other personnel of a former candidate for employment’s question about a job
posting. lt contained no information about Rufin’s recruitment applicationor hiring
process. And, it did not reveal any information about the decision not to hire Rufin.

Rufin cites no case law interpreting RCW 40.14.070(2)(a) or these retention
schedules in the context of a spoliation claim. We cannot conclude that the trial
court abused its discretion in concluding no sanctionable spo|iation occurred here.
The City’s failure to retain copies of the e-mails under its retention policy does not
provide clear and convincing evidence of misconduct

Thereforel the City did not commit misconduct for purposes of CR 60(b)(4)

by failing to produce the April 18, 2012 e-mail.

12

No'. 76091-2-1/13

ll. Misrepresentation

Rufin alleges that the content of the withheld e-mail demonstrates that the
City misrepresented facts in the retaliation lawsuit She claims that the April 18,
2012 e-mail directly contradicts Johnson’s testimony. Specifically, Rufin points to
Johnson’s testimony that she was not involved in or aware of Rufin’s CME
application.

t Rufin’s misrepresentation argument relates to her communications with City
Light employees in 2012 about the ClVlE position. After learning that the CME
position had been reposted in April 2012, Rufin reached out to multiple individuals
at City Light for more information about the previous hiring process. She e-mailed
Haynes on April 10, 2012 to ask whether she should reapply for the position.
Haynes responded on April19, 2012. He told Rufin that he could not discuss the
active hiring process, and referred her to lVlcClure.

1 On June 11, 2012, Rufin e-mailed Carrasco directly. She asked why she
was turned down for the position in August 2011, given the fact that City Light did
not fill the position, Carrasco responded that day, and copied Johnson. He
directed Johnson to look into Rufin’s situation.

l\/leanwhile, Haynes spoke to Hartley, On June 12, 2012, one day after
Rufin’s correspondence with Carrasco, Hartley sent Rufin a letter, The letter
informed Rufin that City Light would not be considering her application for the CME
position. Hartley believed that the letter was consistent with City Light’s policy that

a candidate who has previously been considered for a position will not be

13

No. 76091-2-|/14

considered again forthe same position, On June 20, 2012, Rufin met with Johnson
to discuss Rufin’s concerns with the previous hiring process,

Rufin asserts that the April 18, 2012 e-mail contradicts several facts elicited
at the discrimination:trial. First, Johnson testified that she did not speak to Haynes
about Rufin or her candidacy for the CME position, Second, Johnson stated that
she had no information about the hiring process for this position until she received
the June 11, 2012 e-mail from Carrasco. Third, Johnson stated that before June
11, 2012, she did not know that Rufin was being considered in another hiring
process. Fourth, in a declaration in response to Rufin’s motion to compel
discovery, Johnson stated that all of her responsive e-mails had already been
provided to Rufin, 7

The substance of the April 18, 2012 e-mail does not contradict these
statements First, the e-mai| establishes that Haynes forwarded Rufin’s question
about the 2012 opening and concerns about “the last lengthy process” to Johnson,
as well as Maehara and Kern. Assuming that the April 18, 2012 e-mai| was
received by Johnson, without more, it does not show that Johnson read the e-mail.
Johnson testified in a later deposition that she did not remember receiving the e-
mail or discussing it with Haynes. Nor does the fact of the e-mai| establish that
Johnson ever spoke with Haynes about Rufin in the 2011 process. “

Second, the e-mail does not show that Johnson knew about Rufin’s 2011
candidacy for the Cl\/lE position while it was ongoing. Rufin referred only to “the
last lengthy process” in her original e-mai| to Haynes. She did not specify what

that lengthy process entailed.

714

No. 76091-2-|/15

Third, the e-mai| does not establish that Johnson knew that Rufin had
applied in 2012 for the CME position. Rufin’s question in the e-mail was, “[l]s there
any point in applying for this?” ln fact Rufin had not yet applied for the position.
To the extent Rufin means Johnson knew of her interest in applying, the e-mail
does not contradict Johnson’s trial testimony. Rufin had evidence at trial that she
met with Johnson after her e-mail to Carrasco.

Fourth, the e-mail was a responsive document that the City did not produce.
But, Johnson spoke about the April 18, 2012 e-mail in her deposition on October
21, 2015. She testified that she did not remember receiving the April 18 e-mail.
She stated that she did not remember having any conversation with Haynes about
the e-mail. No e-mail responding to Haynes’s forwarded e-mail was ever identified
Therefore, while Johnson’s statement that she had already provided all responsive
e-mai|s was factually untrue, she believed it to be true.

The April 18, 2012 e-mail does not provide clear and convincing evidence
of misrepresentation by the City. We hold that the trial court did not err in finding
that the City did not commit misconduct or misrepresentation as is necessary to
vacate a judgment under CR 60(b)(4). Therefore, we conclude that the trial court
did not abuse its discretion in denying Rufin’s CR 60(b)(4) motion.

lll. CR 37 Sanctions

Rufin contends that CR 37 provided a basis for the trial court to vacate the
judgment and enter a default judgment in her favor, or alternatively order a new
trial. She asserts that under_CR 37, the trial court should have determined whether

the City had a reasonable excuse for its failure to comply with the court’s order to

15

NO. l76091-2-|/16

produce documents She also argues that the trial court erred in discussing Rufin’s
opportunities to investigate the issue before trial. .

Under CR 37(b), the trial court has discretion to impose sanctions for a
violation of the discovery rules. The discovery rules are intended to make trial a
fair contest, with the issues and facts disclosed to the extent possible. Tay|or v.
Cessna Aircraft Co., |nc., 39 Wn. App. 828, 835, 696 P.2d 28 (1985). The trial
court’s discretion to impose sanctions for discovery violations must be exercised
in such a way as to discourage litigants from employing tactics of evasion and
delay. l_d_. at 836. We review discovery sanctions imposed under CR 37 for an
abuse of discretion. Roberson v. Perez, 123 Wn. App. 320, 332-33, 96 P.3d 420
(2004). The trial court has wide latitude in fashioning an appropriate sanction for
discovery violations. g at 333.

The trial court is authorized to impose harsh sanctions, such as a default
judgmentl for the failure to comply with a discovery order. CR 37(b)(2)(C). For the
trial court to impose such a harsh sanction, the record must clearly show: “(1) one
party willfully or deliberately violated the discovery rules and orders, (2) the
opposing party was substantially prejudiced in its ability to prepare for trial, and (3)
the trial court explicitly considered whether a lesser sanction would have sufficed."
l\/laqar"\a v. Hvundai Motor Am., 167 Wn.2d 570, 584, 220 P.3d 191 (2009). A
violation is willful if done without a reasonable excuse. M, 39 Wn. App. at 836.

Here, the trial court denied Rufin’s CR 37 motion fora defaultjudgment or
a new trial. lt found that the City did not willfully or deliberately violate the discovery

rules or the court’s discovery order. This was so, for two reasons. First, the court’s

16

No. 76091-2-|/17

order compelling discovery did not require the City to search Maehara’s archived
e-mails, because l\/laehara had not been identified as someone who might have
responsive documents, Second, Rufin knew of |Vlaehara’s involvement in the
human resources department before trial, and she had ample opportunity to
investigate this issue before trial.

Rufin argues that the trial court relied on an incorrect legal standard in its
first reason. She contends that the trial court should have examined whether the
City disregarded the court order without reasonable excuse or justification. She
cites to Mga_na and M to support her argument

|n M_a_gB, a passenger in a 1996 Hyundai Accent was severely injured in
a car accident 167 Wn.2d at 576-77. He sued Hyundai, arguing his injuries were
caused by a design defect in the car. g at 577. During discovery, Magana
requested Hyundai to produce any documents related to similar complaints or
lawsuits, and to identify all Hyundai models with the same or similar design. g at
577-78. Magana prevailed at trial, but due to an evidentiary error, the Court of
Appeals remanded for a new trial. l_rL at 578. l\/lagar"'ra asked Hyundai to update
its responses to his discovery requests. l_d_. at 579. Ultimately, the trial court
ordered Hyundai to produce all complaints involving a similar design. g at 580.
After that, Hyundai produced numerous documents relating to such complaints,
which it had not previously provided. l_d_. Magar"ta moved for a default judgment
due to Hyundai’s discovery violations. g The trial court imposed a default
judgment against l-lyundai due to the serious discovery violations Hyundai had

committed l_d_. at 581-82.

17

No. 76091-2-|/18

The Washington Supreme.;~Court held that the trial court did not abuse its
discretion in imposing such a severe sanction. l_d_. at 594. lt noted that reasonable
grounds and evidence in the record supported the trial court’s finding that Hyundai
willfully violated the discovery rules. l_d_. at 587. This was so, because Hyundai
had failed to inform l\/lagana that there were multiple claims of similar failures, it
falsely represented to l\/lagana that there were no claims involving this design, and
it failed to supplement its incorrect responses l_d_. at 585. And, Hyundai failed to
search outside its legal department in responding to l\/lagar”ia’s requests. lg_;

Simi|arly,`in T_ayL)_[, the Court of Appeals reversed the trial court’s denial of
a motion for a new trial. 39 Wn. App. at 829. ln that case, a plane crash killed all
aboard, and the decedents’ estates sued the fuel selector valve manufacturer. id
at 829-30. At trial, the estates’ theory was that the accident was caused by a faulty
fuel selector valve. l_d_. at 830. The jury found in favor of the manufacturer. l_d_. at
830-31. The trial court denied the estates’ motions for a new trial or relief from
judgment l_d_.at831.

The Court of Appeals held that the trial court erred in not granting a new
trial under CR 60(b)(4). l_d_. at 833. This was so, because the manufacturer failed
to disclose tests that demonstrated a potential fuel vapor problem. ld_. at 833-34.
The manufacturer did not produce this information, because it interpreted the
estates’ discovery requests to be limited to documents about the specific valve or
model at issue. ld_. at 834-35. But, the Court of Appeals determined that

information about the tests fell within the scope of the estates’ discovery requests.

18

NO. 76091-2-|/19

l_rL at 836. Therefore, the manufacturers withholding of this information was not
reasonable. l_d4

The trial court did not misapply walla and T_ayL)_r. lt found that the City
did not willfully or deliberately violate the discovery rules or the court’s order. This
is unlike M_aga"n_a and _T_ayM, where the defendants knew of the responsive
documents and withheld them without a reasonable excuse. The City looked in
the places where responsive documents were most likely to be found, including
the e-mail accounts and archives of Carrasco, Haynes, Johnson, and Co|a. lt did
not search Maehara’s e-mail account or archive, but nothing in the record suggests
that the City was aware of the e-mail and withheld it from Rufin. The trial,court
was satisfied that the City followed its order. Therefore, the trial court did not
misapply the law.

Rufin also argues that the trial court erred in examining whether Rufin acted
diligent|y. She points to Roberson to supportthis argument |n Roberson, several
individuals who were accused of child sexual abuse sued the City of Wenatchee.
123 Wn. App. at 325. They claimed that the City negligently investigated the
allegations of sexual abuse. l_c_l; Juries returned verdicts in favor of the City. § at
327. Afterwardl the plaintiffs moved to vacate the verdicts, arguing that the City
had failed to produce documents in discovery which contained material evidence.
g at 327-285 The trial court granted the motion, finding`that the City had
intentionally failed to produce material records that the plaintiffs had legitimately
requested ld_. at 330. The court ordered a new trial as a remedy for violation of

the discovery order. ch at 332.

19

NO. 76091-2-|/20

On appeal, the Court of Appeals rejected the City’s argument that the
plaintiffs did not exercise due diligence. g at 334. The Court of Appeals noted
that “[d]iligence is not a consideration in determining whether a new trial is an
appropriate remedy for a discovery violation.” _lg; at 334. 1

Roberson supports Rufin’s contention that the trial court should not have
considered her opportunities to investigate Maehara’s involvement in deciding her
CR 37 motion, But, we may affirm on any basis supported by the record. W_e_§t_y._
Dep’t of Licensing, 182 Wn. App. 500, 517, 331 P.3d 72 (2014). The trial court’s
other basis for the denial of the CR 37 motion is supported by the record.

The trial court properly applied the law in determining that the harsh
sanctions of a default judgment or a new trial were not warranted. Therefore, we
conclude that the trial court did not abuse its discretion in denying Rufin’s CR 37
motion,

lV. Appellate Attorney Fees

Rufin requests attorney fees and costs on appeal. We deny Rufin’s request,

because she is not the prevailing party on appeal.

We affirm.

WE CONCURZ

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