FILED 17 APR 25 PM 12:20 Hon. Veronica Alicea-Galvan Defendant?s Motion 1 Noted for Consideration: Wedne?ii?i?5lq? Without Oral FE went CASE NUMBER: 7-2-09152 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY D.H., No. Plaintiff, MOTION FOR v. SANCTIONS MAYOR EDWARD MURRAY, Defendant. I. INTRODUCTION AND RELIEF REQUESTED Defendant, Mayor Edward Murray (?Defendant?), respectfully moves the Court for entry of an order of sanctions against Plaintiff (Delvonn Heckard) attorney Lincoln C. Beauregard (?Mn Beauregard?), under CR 11 and the Court?s inherent authority for wrongly ?ling documents for an improper purpose. Since the initiation of this lawsuit, Mr. Beauregard has repeatedly wrongly ?led correspondence with counsel and discovery papers with the Court in violation of the Civil Rules for an improper purpose. Defendant?s counsel has tried to avoid this motion by asking Mr. Beauregard to stop, and warning him that counsel would be forced to take appropriate action if he did not. Mr. Beauregard responded by ?ling another letter with the Court addressed to defense counsel containing personal attacks on counsel. This behavior should not be tolerated. To be clear?if consistent with the Rules of Professional Conduct?Mr. Beauregard wishes to communicate directly with the press, that is his right. What he cannot do is use the Court?s ?ling system as his mouthpiece. Unfortunately, it seems the LAW OFFICES or 33 -9 SEA MOTION FOR SANCTIONS Page 1 MCNAUL EBEL NAWROT HELGREN 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-18I6 I generate publicity surrounding the allegations. Dkt. 14 at 2. only way to stop Mr. Beauregard?s conduct is to ask the Court to stop it?or, to the extent the Court believes it is appropriate?to engage in the same conduct in response. 11. FACTS Mr. Beauregard and his co-counsel, Lawand Anderson,1 on behalf of their client, D.H., ?led suit against Mayor Murray on April 6, 2017. Dkt. 1. They ?led an Amended Complaint on April 19, 2017 (Dkt. 13) and a Corrected Amended Complaint on the same day (Dkt. 14). As admitted in their own complaint, part of Plaintiff? purpose is to Since initiating this lawsuit, Mr. Beauregard has ?led letters addressed (but sometimes not even sent) to opposing counsel and other documents not properly ?led with the Court for the sole reason of hoping that the press would discover them. in other words, he has used the Court in order to generate publicity surrounding this case. These violations began when Mr. Beauregard improperly ?led Notices of Deposition and Subpoenas for Mayor Murray and Jeff Reading with this Court and included correspondence addressed to defense counsel as an attachment to the ?led discovery. Dkts. 5?7. Even the ?lings themselves often contained statements clearly directed to the press. E. g, Dkt. 6 at 2:1. It continued when, on April 19, 2017, Mr. Beauregard ?led a letter addressed to defense counsel as an attachment to the Amended Complaint. Dkt. 13. The improper ?lings continued. On April 20, 2017, Mr. Beauregard ?led a letter addressed to defense counsel with the Court without even bothering to send it to defense counsel. Dkt. 15. Mr. Beauregard?s April 20 letter struck the same inappropriate tone as his previous letter. See id. I To the extent Mr. Beauregard?s co-counsel has approved or consented to Mr. Beauregard?s conduct addressed in this motion, then co-counsel should likewise be sanctioned or admonished. LAW OFFICES OF MOTION FOR SANCTIONS Page 2 MCNAUL NAWROT PLLC 600 _Unlver51ty Street, Sutte 2700 Seattle, Washington 98101-3143 (206) 467-1816 The next day, counsel for Mayor Murray conveyed their concerns regarding Mr. Beauregard?s improper ?lings and improper motives for those ?lings. Dkt. l7.2 Counsel requested that Mr. Beauregard cease ?ling correspondence with the Court given that doing so is inconsistent with Rule 7 and the Rules of Professional Conduct. Id. Defense counsel also advised Mr. Beauregard that if he continued with this conduct, appropriate steps would be taken to address the issue. Continuing his antics, in response and in disregard of the request, Mr. Beauregard ?led yet another letter addressed to defense counsel with the Court, in which he accuses defense counsel of, among other things, ?spitting vitriol.? Dkt. 17. This sort of conduct hardly paints the legal system in a good light. Interestingly, Mr. Beauregard has failed to attach the medical evidence that debunks Plaintiff? 5 claims or agree to an independent medical exam relating to these same issues. Just yesterday, and in further disregard of the judicial rules, Mr. Beauregard ?led another subpoena and notice of deposition with the Court that contains allegations designed to be picked up by the press. Dkt. 18. Indeed, as the attached article shows, that is exactly what happened. Ex. A3 (newspaper article stating ?Lawyers representing Delvonn Heckard publicized a subpoena ?led and describing the ?anonymous allegation[s]? Mr. Beauregard and Ms. Lawand included in the subpoena). As the article also describes, the anonymous allegations are false according to statements of numerous eyewitnesses, yet because Plaintiff counsel improperly ?led the subpoena, the Court record now contains only these false allegations. Id. Two things are clear: First, Mr. Beauregard is not ?ling these letters for the purpose of actually communicating with Defendant?s counsel. Indeed, at least one of 2 Along with his response to our April 21, 2017 correspondence, Mr. Beauregard aiso attached and ?led our April 21, 2017 correspondence. 3 Exhibits referenced herein are attached to the accompanying Declaration of Malaika M. Eaton. LAW OFFICES OF 600 University Street, Suite 2700 MOTION FOR SANCTIONS Page 3 MCNAUL EBEL NAWROT HELGREN PM Seattle, Washington 98101-3143 (206) 467-1816 them was never actually sent to counsel at all (despite what they state on the address caption). Dkt. 15. Others were only provided to defense counsel after (at times signi?cantly after) their ?ling. Dkt. 17. Second, Mr. Beauregard is not ?ling these letters or discovery documents for the purpose of asking the Court to take some action consistent with Civil Rule 7. Indeed, given that there is no pending request to the Court, it may be that the Court is not even aware Of these ?lings. It is doubtful that this Court would tolerate such conduct?cg, accusing opposing counsel of ?spitting vitriol??either in open Court or in any properly ?led motion. Yet by filing these materials, the Court is unaware of the uses to which its docket is being put and Defendant has no way to respond to correct the docket. ISSUE PRESENTED Whether the Court should enter an order awarding sanctions against Lincoln C. Beauregard for engaging in conduct in violation of CR 11 or pursuant to the Court?s inherent authority. IV. EVIDENCE RELIED UPON Defendant relies upon the Declaration of Malaika M. Eaton with attached Exhibits as well as the records on ?le herein. V. ARGUMENT A. Beauregard Violated CR 11 CR 11 provides: Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name signature of a party or of an attorney constitutes a certi?cate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum, and that to the best of the party's or attorney?s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances. . . (1) it is well grounded in fact [and] (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation CR 11 (emphasis added). LAW OFFICES OF MOTION FOR SANCTIONS Page 4 MCNAUL EBELNAWROT HELGREN PM 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467?1816 ?The purpose behind CR 11 is to deter baseless ?lings and to curb abuses of the judicial system.? Bryant v. Joseph Tree, Inc, 119 Wn.2d 210, 219, 829 P.2d 1099 (1992). 1 requires attorneys to ?stop, think and investigate more carefully before serving and ?ling papers.? Id. (quoting Fed. R. Civ. P. 11, advisory cmt. note). CR 11 prohibits the submission of a document for an improper purpose such as harassment. In re Recall of Piper, 184 Wn.2d 780, 785?87, 364 P.3d 113 (2015) (bad faith motive for ?ling existed where Petitioner ?led document ?for purposes of political harassment? and to force a board member to retire as opposed to ?ling for a sincere belief). violation of CR 11 ?is complete upon the ?ling of the offending paper; hence an amendment or Withdrawal of the paper does not expunge the violation.? Id. at 788 (quoting Biggs v. Vail, I24 Wn.2d 193, 199-200 (1994)). Mr. Beauregard has violated CR 11 by ?ling numerous documents in bad faith and for an improper purpose?for the sole purpose of using the Court as his mouthpiece to the press, allowing him to make (often baseless) statements without any proper opportunity to Defendant to respond and debunk these statements. To be clearmif consistent with the Rules of Professional Conduct?Mr. Beauregard wishes to communicate directly with the press, that is his right. What he cannot do is use the Court?s ?ling system for this purpose: this is inconsistent with his role as an of?cer of the Court and an ?abuse of the judicial system.? Indeed, if he made the statements in his letters in a motion on which the Court had to rule accusing opposing counsel of ?spitting vitriol?), the Court could take appropriate action to curb such conduct. The fact Mr. Beauregard is using the Court?s ?ling system when the Court is not being asked to rule and is likely unaware of these ?lings is no better. Defendant?s counsel asked Mr. Beauregard to cease this conduct, but that request was met with further incidents of the same misconduct. There is no conceivable legitimate reason for these ?lings other than bad faith. LAW OFFICES OF MOTION FOR Page 5 MCNAUL EBEL NAWROT HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 981016143 (206) 467-1816 Mr. Beauregard surely knows from his years of practice that it is improper to ?le discovery and correspondence with the court. Indeed, doing so is inconsistent with CR 7 and the Rules of Professional Conduct, including his status as an of?cer of this Court. Dkts. 5?7, 10, 15, 17?18. Again, his ?lings serve no legitimate purpose in this litigationmtheir only purpose is to use the Court to make statements to the press that he apparently feels uncomfortable making directly. These bad faith ?lings violate CR 11 and impugn the dignity of the Court. B. Beauregard Should Be Sanctioned 11 permits a trial court to impose sanctions against a litigant for ?ling claims not well grounded in fact or law or for ?lings made for an improper purpose.? Eller v. East Sprague Motors R. Inc, 159 Wn. App. 180, 191, 224 P.3d 447 (2010) (emphasis added). ?The decision to impose sanctions under CR 11 is vested within the sound discretion of the trial court.? Id at 189 (citing Tiger Oil Corp. v. Dep ?t of Licensing, 88 Wn. App. 925, 946 P.2d 1235 (1997)). The court may impose ?an appropriate sanction, which may include reasonable attorney fees and expenses.? Id. at 190. The court may sanction the party, the attorney, or both. See In re MacGibbon, 139 Wn. App. 496, 509, 161 P.3d 441 (2007) (trial court assessed $5,000 in sanctions directly against the attorney who had advanced frivolous legal arguments). in addition to its power under CR 11, trial court [also] has the inherent authority to assess sanctions against attorneys for abusive litigation conduct if it ?nds bad faith? regardless of a CR 11 violation. State v. SH, 102 Wn. App. 468, 470, 473, 8 P.3d 1058 (2000); In re Recall of Piper, 184 Wn. 2d at 787 (court has ?inherent equitable power? to award fees as sanctions). Under this inherent power, trial courts may assess litigation expenses, including attorney fees, against attorneys engaging in bad faith litigation conduct. Id. at 474 (quoting Wilson v. Henkle, 45 Wn. App. 162, 174, 724 P.2d 1069 (1986)). LAW OFFICES OF MOTION FOR SANCTIONS - Page 6 MCNAUL EBEL NAWROT 8? HELGREN PM 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 Mr. Beauregard should be sanctioned because, as established above, since the initiation of this lawsuit only a few weeks ago, he has already ?led at least seven documents that should never have been ?led, for the improper purpose of making statements to the press that he apparently believes he could not make directly, and perhaps even to distract from the lack of merit of his lawsuit.4 This ongoing conduct does not meet professional standards and is not consistent with Mr. Beauregard?s role as an of?cer of the court. Consequently, Mr. Beauregard should be personally sanctioned for his improper behavior in an amount suf?cient to deter future similar actions. This litigation is still in its infancy?unless stopped, Mr. Beauregard will continue to subvert the litigation process by disregarding the civil and local rules and Rules of Professional Conduct by continuing to misuse and abuse the Court system for his own improper purposes. If Mr. Beauregard wants to keep the press apprised of the case developments, that is his prerogative within the bounds of the Rules of Professional Conduct. But disparaging Defendant and his counsel in improper and bad faith ?lings and improperly ?ling discovery and correspondence to use the Court system as his mouthpiece to the press should not be condoned. Indeed, the Court?s docket should not be a dumping ground for all communications between counsel in this litigation. Again, unfortunately, it seems the only way to stop Mr. Beauregard?s conduct is to ask the Court to stop it?or, to the extent the Court believes it is appropriate?to engage in the same conduct in response. This conduct is far more abusive than conduct other cases such as In re MacGz'bbon where sanctions in the amount of $5,000 were awarded against the attorney personally. Mr. Beauregard should be sanctioned in an amount suf?cient to deter future inappropriate conduct?or at the very least admonished?so the case can move forward on its merits. 4 For instance, Mayor Murray has already established that the one medically veri?able fact in the complaint is false by submitting to a medical exam. Ex. B. LAW OFFICES OF MOTION FOR SANCTIONS Page 7 MCNAUL EBEL NAWROT HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 VI. CONCLUSION Based on the foregoing reasons, Defendant respectfully requests that the Court grant his motion for sanctions against Mr. Beauregard personally, A proposed form of order is lodged herewith. I certify that this memorandum contains 2,233 words in compliance with the Local Civil Rules. DATED this 25th day of April, 2017. MCNAUL EBEL NAWROT HELGREN PLLC By: Maia/3a, Robert M. Sulkin, WSBA No. 15425 Malaika M. Eaton, WSBA No. 32837 600 University Street, Suite 2700 Seattle, Washington 98101 Telephone (206) 467-1816 rsulkin@mcnaul.com meaton@mcnaul.com Attorneys for Defendant LAW OFFICES OF MOTION FOR SANCTIONS Page 8 MCNAUL BEEF MC 600 Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 gd24dp03t2.002 2017-04-25 Proposed Order Hon. Veronica Alicea-Galvan SUPERIOR COURT OF WASHINGTON FOR KING COUNTY D.H., No. Plaintiff, ORDER ON v. MOTION FOR SANCTIONS MAYOR EDWARD MURRAY, PROPOSED Defendant. ACTION REQUIRED Pending before the Court is Defendant?s Motion for Sanctions. In connection with Defendant?s Motion, the Court has reviewed the following: (1) Defendant?s Motion for Sanctions; (2) Declaration of Malaika M. Eaton in Support of Defendant?s Motion for Sanctions and Exhibits attached thereto; (3) Plaintiff response and supporting material, if any; and (4) Defendant?s reply. The Court has also reviewed the records on file herein. And being otherwise fully advised, now, therefore, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant?s Motion for Sanctions is GRANTED. The Court assesses sanctions against attorney Lincoln Beauregard in the amount of to be paid to the Clerk of the Court immediately but in no event later than 10 days from the date of entry of this Order. LAW OFFICES OF ORDER ON DEFEND MOTION FOR EBEL NAWROT HELGREN PLLC 600 University Street, Suite 2700 SANCTIONS Page 1 - Seattie, Washington 98101-3143 (206) 467?1816 IT IS SO ORDERED. DATED this day of May, 2017. Honorable Veronica Alicea?Galvan King County Superior Court Judge Presented by: EBEL NAWROT HELGREN PLLC By: Md?vg? Robert M. Sulkin, 15425 Malaika M. Eaton, WSBA No. 32837 Attorneys for Defendants With copies to: Lincoln Beauregard Julie Kays Lawand Anderson lawandfallalawlegal LAW OFFICES OF ORDER ON MOTION FOR MCNAUL EBEL HELGREN PLLC 600 University Street, Suite 2700 SANCTIONS Page 2 Seattle, Washington 98101-3143 (206) 467~1816