IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
A.K., No. 86100-0-I
Respondent / Cross-Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES; MONROE SCHOOL DISTRICT; and JANE and JOHN DOES 1- 100,
Appellants / Cross-Respondents.
FELDMAN, J. — The Department of Children, Youth, and Families (DCYF)
appeals from a judgment on a jury verdict awarding A.K. damages totaling
$3 million on her claim that DCYF’s employee and Child Protective Services (CPS)
social worker Jocelyn Wicks failed to report that former Monroe Police Department
Sergeant Carlos Martinez sexually abused A.K. when she was 13-14 years old.
After the close of evidence, DCYF filed a motion under CR 50 for judgment as a
matter of law arguing A.K. had failed to prove causation. The trial court denied the
motion, and DCYF argues on appeal the court erred in so ruling. We disagree, as
A.K. presented in her case in chief substantial evidence establishing causation.
The trial court, therefore, did not err in denying DCYF’s motion and allowing the
jury to decide this issue. No. 86100-0-I
DCYF also appeals, and A.K. cross-appeals, the trial court’s posttrial ruling
awarding monetary sanctions against DCYF and the Attorney General’s Office
(AGO) totaling $65,762 based on their failure to timely disclose and produce a
recorded statement in which Wicks stated she “was a hundred percent sure that
. . . something . . . had gone on physically between them [(referring to Carlos 1 and
A.K.)].” A.K. argues the sanctions award should be vacated and the issue
remanded for further consideration because the trial court applied the incorrect
legal standard in assessing sanctions. DCYF, in contrast, argues the trial court
erred in concluding it violated the applicable discovery rule. We agree with A.K.
and disagree with DCYF. But while we agree the trial court applied the wrong legal
standard in assessing sanctions, we nevertheless affirm the trial court’s award
because the error was harmless.
I
A. The underlying sexual abuse and alleged failure to report
A.K. first met former Monroe Police Department Sergeant Carlos Martinez
when he was a Drug Abuse Resistance Education (DARE) instructor at her
elementary school. Later, in 2003, when A.K. was around 13 or 14 years old, she
began babysitting Carlos’s children. Carlos began taking pictures and recording
videos of A.K. in the bathroom of his house without her knowledge. A.K. grew
attached to Carlos, who then began to rape A.K. Carlos recorded thousands of
videos depicting the violent sexual abuse A.K. suffered for nearly a decade.
1 Because we refer herein to both Carlos Martinez and Julie Martinez, we refer to them by their first
names for clarity.
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During the early stages of the abuse in 2003 and 2004, when A.K. was 13
or 14 years old, she also babysat the child of CPS social worker Jocelyn Wicks.
Wicks hired A.K. on the recommendation of Carlos and his wife, Julie. Wicks, who
was likely involved in an extramarital affair with Carlos during this time, described
Carlos as aggressive and manipulative. Wicks began to realize Carlos was having
an inappropriate relationship with A.K. when she noticed A.K. was “very focused”
on him, “hung on his every word,” and was “googly-eyed” toward him.
Wicks’s suspicions that Carlos was raping A.K. were confirmed one evening
when she was driving A.K. home after A.K. babysat for her. As Wicks drove past
the Martinez residence, A.K. became “visibly tearful.” When Wicks asked A.K.,
“[w]hat’s going on,” A.K. told Wicks about a romantic letter A.K. had written to
Carlos that Julie had found and was upset about. Wicks responded, “Did Carlos
do that to you? I knew it. I knew it.” A.K. did not answer and remained “very
tearful.” That night, Wicks gave A.K. her CPS business card “if she wanted to talk.”
Wicks subsequently confronted Carlos about his relationship with A.K. because
she “wanted him to think he couldn’t just fool everybody” and told him “[p]rotection
is what I do for a living.” Wicks asked Carlos questions about his relationship with
A.K., which Carlos refused to answer.
Wicks also discussed Carlos with A.K.’s school counselor, Lena Berg. A.K.
had met with Berg after Julie Martinez called A.K. to confront her about the letter
A.K. sent to Carlos. Julie had forbidden A.K. from babysitting her kids and told her
to “[s]tay away from my husband.” A.K. met with Berg because she did not feel
comfortable telling her parents about the sexual abuse she was experiencing. As
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soon as A.K. was in Berg’s office, “she burst into tears and told [Berg] that the wife
of the man for whose children she’s been babysitting for a long time had called her
and accused her of having an affair with her husband.” A.K. testified that Berg
said, “[i]f you cry wolf so many times, no one will hear you.”
When A.K. left Berg’s office, she passed Wicks in the hall, and Wicks
greeted her before entering Berg’s office to discuss an unrelated CPS matter.
Having just seen A.K., Berg and Wicks began discussing her relationship with
Carlos. Berg expressed her distrust of Carlos, stating that she “didn’t think he was
on the up and up.” Berg also said that “[Carlos] shouldn’t be teaching DARE
students,” and “I don’t think he’s doing what he should be doing.” The next day,
Wicks called Berg and disclosed that she had a personal relationship with Carlos.
Wicks also said she wanted to talk with A.K. and expressed concern about “what
[Carlos] might do as a police officer in the community.” Despite feeling bad for
A.K., giving A.K. her CPS business card, and expressing concern about A.K.’s
relationship with Carlos, Wicks did not report that Carlos was sexually abusing A.K.
because she “didn’t want to get involved” or “muddy any waters.”
Following these events, A.K. and her family moved from Monroe to Eastern
Washington in the summer of 2004 and Wicks never saw A.K. again. But the
abuse continued. During this time, Carlos traveled to Eastern Washington and
brought A.K. to Monroe so he could rape her. After she graduated high school,
A.K. moved back to Western Washington and then to Texas where she lived with
Carlos. In Texas, Carlos became more abusive and began threatening A.K. that
he would tell her family what a “bad person” she was and she would be living on
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the streets. He also threatened to post sexually explicit pictures of A.K. on the
internet. He showed A.K. the secret videotapes he had recorded of her as a child,
which terrified her. After that, A.K. reported this information to police in Texas, who
then referred the matter to the Washington State Patrol (WSP) in 2012.
WSP Lieutenant William Steen was the lead investigator assigned to the
case. WSP discovered that Carlos had taken around 650,000 images and
approximately 2,500 videos of A.K. capturing the years-long sexual abuse she
suffered. The investigators spoke with A.K. several times. Steen also interviewed
Berg and retrieved her handwritten notes about A.K. and Carlos. Investigators
interviewed Julie, who gave them the letter A.K. wrote to Carlos in 2004.
Additionally, as part of its investigation, WSP recorded a statement by Wicks in
which she admitted she “was a hundred percent sure that, you know, something
. . . had gone on physically between them.” Carlos was eventually charged with
rape of a child and convicted.
B. A.K.’s negligence claims and the parties’ discovery dispute
In 2019, A.K. sued DCYF alleging it had, and breached, “an ongoing duty
to report, monitor and investigate the relationship between A.K. and Carlos
Martinez.” 2 At trial, A.K. presented the evidence detailed above along with
testimony from Jane Ramon, who described the standard of care for CPS workers,
and testimony from Steen about WSP’s investigative procedures. After the close
of evidence, DCYF filed a CR 50 motion based on “Plaintiff’s failure to produce any
2 A.K. also asserted a negligence claim against the Monroe School District alleging it had, and
breached, “a heightened duty to protect and care for A.K. after being informed of abuse and/or the potential for abuse by Carlos Martinez.” The jury resolved this claim in the District’s favor, and that finding is not at issue in this appeal.
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admissible evidence of proximate cause.” The trial court denied the motion, stating
“the jury can infer and make its decision based on the testimony of Ramon, the
testimony of the State’s witness and her responses to what happened, and Ramon
and Detective Steen’s testimony.” The case was then submitted to the jury, which
returned a special verdict finding that DCYF was negligent and its negligence was
a proximate cause of A.K.’s injury. The jury awarded A.K. $3 million in damages.
DCYF appealed the judgment, and A.K. cross-appealed.
Shortly after the parties appealed and cross-appealed the judgment, A.K.
filed in the trial court a motion to vacate the judgment and for sanctions against
DCYF and the AGO for discovery violations and for “fraud on the court.” A.K.
claimed DCYF had failed to turn over Wicks’s recorded statement made to WSP
investigators in 2013. This issue first arose much earlier in the case, and the trial
court had held a hearing on this issue on October 20, 2023, shortly after the start
of trial. During the hearing, A.K.’s counsel argued DCYF had failed to disclose
Wicks’s recorded statement in response to A.K.’s 2019 discovery requests,
including her specific request for any recorded statements made by any witnesses
or parties.
A.K.’s counsel had learned of Wicks’s recorded statement on October 14,
2023, after preparing Steen for his trial testimony. In response to a subpoena and
public records request from A.K.’s counsel, Steen provided a flash drive containing
Wicks’s statement and other materials discovered in the WSP investigation. Upon
opening the materials provided, A.K.’s counsel discovered the recorded statement,
in which Wicks stated:
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And I finally confronted him and told him, you know, I had very strong feelings what was going on with [A.K.] was absolutely inappropriate. And, you know, I said, I do not ever want to have contact with him again unless Julie was present. And he never denied anything, but he didn’t say anything either. He didn’t admit anything.
....
Julie at that point, however, knew that there was something going on between the two of them. And - - but her approach was to attack [A.K.], not Carlos.
So I think that that gave me the - - just confirmed what I thought was going on, and it was after that time that Carlos pulled me over that I just, you know, ripped him - - ripped him up and down and said, you know, this is kind of - - protection is what I do for a living. I know that something’s going on. And I was upset with Julie for going after [A.K.].
[W]e did have a conversation and I was protective of her, of course, because I thought she was really being a victim here. And I flat out said to her: [A.K.], I know that something is going on with Carlos, and you know, it is not okay. And, you know, I am - - you know, I’m here if you need something or want to talk more about it. And she - - and again, she didn’t deny anything. She didn’t - - she didn’t expand or anything. She was really upset.
And she wouldn’t expand much on it, but she wouldn’t deny anything either . . . She was - - you know, she was being set up in a situation that was way too much for her to handle.
And I just - - the way we communicated back and forth, I was a hundred percent sure that, you know, something was - - had gone on physically between them, but I was - - I didn’t know if she was, you know, being coerced by him to not say anything or if she was just completely in love with him or you know . . . the power.
I said, I’m - - I know that there’s something that has gone on or that is going on inappropriately between you and Carlos. And she was
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crying, and she just kind of put her head down and she didn’t - - you know, didn’t - - didn’t say, no. . . .
And just her demeanor, the fact that she was so upset and that the tears were flowing, she didn’t deny the letter that Julie had written regarding the whole situation. It - - you know, she was basically confirming in her non-verbal actions that something had been - - had gone on.
I felt that she was scared. I felt that she was very confused. I think she was enamored with him. I think it was probably her first sexual partner. And not even a partner because it wouldn’t have been willing. I mean, it was willing, but you know, of course, all the dynamics . . . raping somebody. I think she was scared. . . .
While A.K. had a written summary of this interview, she never had the recorded
statement until just before trial.
In her discovery motion, A.K. argued DCYF should have produced the
recorded statement because the “State/DCYF, though the Washington State
Patrol, had actual possession of those statements.” A.K. requested various
remedies including monetary sanctions. DCYF opposed the motion, arguing it
never had possession, custody, or control of Wicks’s recorded statement because
a document in the possession of WSP is not automatically in the possession of
DCYF, a different state agency.
During the October hearing, DCYF’s counsel argued:
It’s a nice story at the beginning, all of the introductory comments. What you didn’t hear is a scintilla of evidence that suggested that DCYF or, for that matter, the Attorney General’s Office had copies of the recorded interviews that were made by the Washington State Patrol that were in their possession, their custody, their control. . .
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DCYF has no right to obtain Washington State Patrol records on demand. . . We would need to do the same things that Plaintiff’s counsel would have to do. We would have to make a public records request and go through that process. . .
(Emphasis added.) The trial court asked DCYF’s counsel, “how far does [AGO’s]
duty to search for these records go?” After a colloquy on this issue, the court
asked, “what is your obligation when you’re doing your trial prep . . . assume you’re
on the same investigative trail as the plaintiff is.” DCYF’s counsel responded,
Do we have an obligation? Certainly I would agree, Your Honor, had we done it, had we gone to get the Washington State Patrol records, had we made our own records request, had we gotten these records, our client, DCYF now, through their agent, through their attorney has records, and we would be obligated to not only identify them, but if we had a records request for production, produce them. And that’s consistent with some of the cases that have also been cited. . .
But the attorneys [in the other cases] already had them. The defendants’ attorneys already had them. And once the attorneys have them, we have to turn them over. That wasn’t this case. We didn’t have these records.
(Emphasis added.) The court concluded that the discovery of the evidence by
A.K.’s counsel was fortuitous and did not sanction DCYF or the AGO.
After the October 2023 hearing, A.K.’s counsel investigated the claims
DCYF’s counsel made at the hearing. This investigation revealed that a former
investigator at the AGO, Laura Malane, had, in fact, made a public records request
directed to WSP on March 14, 2023, seeking all records related to the Martinez
criminal investigation. On April 13, 2023, WSP had messaged Malane that
responsive documents were “available for her to access, review, and download.”
This initial response did not include Wicks’s recorded statement. On April 24,
2023, Malane logged into WSP’s Public Portal and viewed one of the .zip folders
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to which she had been granted access, which contained a picture of a campsite.
E-mails between Malane and the trial team during this time show they accessed
the campsite picture but did not believe it was related to the case and concluded
that WSP made an error in responding to their public records request. However,
the WSP message directed to Malane advised that another installment of
responsive records would be provided to the AGO on or before May 19, 2023.
Between April 25 and May 15, 2023, WSP employees uploaded several
other individual files onto the portal, including the audio file that contained Wicks’s
recorded statement to WSP investigators in 2013. On May 15, 2023, WSP
employees sent Malane an e-mail advising her “there was a final installment of
responsive documents available for her to access, review, and download.” This e-
mail “included a link that would allow her access to the files that had been uploaded
and to which she had been given access.” A WSP Public Records Officer’s review
of the audit history revealed that “no one outside the Patrol ever accessed, opened,
or viewed any of the files to which the Patrol gave Ms. Malane access on May 15,
2023.” Notably, DCYF had twice supplemented its initial discovery responses on
June 30 and July 13, 2023, but had never identified or produced Wicks’s 2013
recorded statement made to WSP investigators.
Upon discovering this information after the October 2023 hearing and the
jury’s verdict, A.K. filed a motion on February 22, 2024, to vacate the judgment
and for sanctions against DCYF and the AGO. The court held a hearing on the
motion on February 29, 2024. During the hearing, A.K. argued DCYF had control
over the recorded statement even though AGO employees never clicked on the
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link provided by WSP because “[t]he idea that by not clicking on it, that’s okay. It
boggles the mind to think if that were in fact true.” DCYF’s attorney responded,
“[w]e couldn’t have produced it in discovery, because we didn’t have it. We didn’t
have any special right to go get it. Maybe we could have accessed it if we had
known in May of 2023 from WSP, but we can’t connect those dots and neither can
the plaintiff.”
Ultimately, the trial court denied A.K.’s motion to vacate the judgment
because it believed it could not decide the motion under RAP 7.2 while the case
was on appeal. 3 The court reserved decision on the motion, and the appeal
proceeded. Because the trial court’s order reserving decision on the motion for
discovery sanctions contravened RAP 7.2, this court entered an order vacating
that ruling, remanded the matter for the trial court to fully address the merits of
A.K.’s motion, and retained jurisdiction to decide the issues on appeal following
disposition of the unresolved issues on remand.
On remand, A.K. no longer sought to vacate the jury’s verdict or to obtain a
new trial. Instead, A.K. sought only “monetary sanctions under Civil Rule 26(g).”
On February 28, 2025, at a motion hearing, the court granted A.K.’s motion for
sanctions and directed both parties to “provide information to the court . . . for
which the court can base a monetary sanction on.” In the parties’ responsive
briefing, both parties agreed A.K. was seeking only monetary sanctions under
26(g) and not a more severe sanction under CR 37(b). Thus, DCYF conceded the
3 RAP 7.2(e) states in relevant part that if a trial court’s decision regarding a postjudgment motion
“will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision.”
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trial court did not need to analyze the three Burnet factors that would be relevant
had A.K. continued to request a severe discovery sanction such as default under
CR 37(b). Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036
(1997). Nevertheless, DCYF argued the court should consider the Burnet factors
in its order because “the Burnet factors provide guidance, particularly where, as
here, two of the factors—willfulness and prejudice—are lacking.”
The trial court granted A.K.’s motion and awarded A.K. attorney fees totaling
$65,762. In its order granting A.K.’s motion for sanctions, the trial court found that
“DCYF failed to comply with the discovery rules with respect to the Wicks interview
tape.” It stated that “a party must make a ‘reasonable inquiry’ to acquire the
materials sought from a discovery request” and that “DCYF, through the AGO, had
received Ms. Wicks’s recorded statements, along with other statements on May
15, 2023, and for no apparent reason, declined to turn it over to Plaintiff.” After
analyzing CR 34 and related caselaw, the court found it “clear” that “DCYF has
‘control’ over the recording of Jocelyn Wicks’ interview, despite never opening,
accessing, or viewing it from the online portal.” The court found that having been
granted access to the recording, “DCYF has the duty, in making a ‘reasonable
inquiry’ to acquire the materials sought from discovery, to seek and produce the
recording.”
However, after making these findings, the court stated, “[b]ecause A.K. has
withdrawn her request to vacate the order, the most severe discovery sanctions
are inappropriate. Under CR 37(b), the Court must consider lesser sanctions, and
in doing so, must base those sanctions on the record considering” the three Burnet
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factors. After concluding DCYF’s actions were merely negligent, and not willful or
deliberate, the trial court determined that “[l]esser sanctions apply here.” It
awarded attorney fees relating solely to motions surrounding the Wicks statement
totaling $65,762. DCYF now appeals the trial court’s sanctions order, in addition
to its appeal of the judgment, and A.K. cross-appeals only the sanctions order.
II
A. DCYF’s CR 50 motion regarding proof of causation
DCYF argues the trial court erred in denying its CR 50 motion because A.K
“did not present substantial evidence to support proximate cause.” We disagree.
Judgment as a matter of law under CR 50 is appropriate only when,
construing all facts and reasonable inferences in favor of the nonmoving party, the
court concludes “as a matter of law, that there is no substantial evidence or
reasonable inferences to sustain a verdict for the nonmoving party.” Paetsch v.
Spokane Dermatology Clinic, P.S., 182 Wn.2d 842, 848, 348 P.3d 389 (2015)
(quoting Indus. Indem. Co. of Nw. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d
520 (1990)). Substantial evidence is evidence sufficient to persuade a fair-minded,
rational person that the declared premise is true. Mancini v. City of Tacoma, 196
Wn.2d 864, 877, 479 P.3d 656 (2021). We review rulings on CR 50 motions for
judgment as a matter of law de novo. Paetsch, 182 Wn.2d at 848.
Our courts have held that to establish negligence, a plaintiff must show duty,
breach, cause in fact, legal causation, and resulting harm. Lowman v. Wilbur, 178
Wn.2d 165, 169, 309 P.3d 387 (2013). Washington courts have also held that both
cause in fact and legal causation are encompassed within the element of
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proximate cause. See, e.g., id.; Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d
77 (1985). But while our Supreme Court has recited this formulation of proximate
cause, it has acknowledged the formulation is “imprecise” and “[s]ome confusion
probably has been generated by the imprecise use of the term ‘proximate cause’
to encompass cause in fact and legal causation alone or in combination.” Hartley,
103 Wn.2d at 778. 4
This case illustrates the imprecision that our Supreme Court acknowledged
in Hartley. While DCYF argues that A.K. failed to present sufficient evidence of
proximate cause, the only element at issue on appeal is cause in fact, or factual
causation. As explained by Washington courts, legal causation is “grounded in
policy determinations as to how far the consequences of a defendant’s acts should
extend” and requires courts to weigh “mixed considerations of logic, common
sense, justice, policy, and precedent.” M.N. v. MultiCare Health Sys., Inc., 2 Wn.3d
655, 664, 541 P.3d 346 (2024) (quoting Schooley v. Pinch’s Deli Mkt., Inc., 134
Wn.2d 468, 478-79, 951 P.2d 749 (1998)). In contrast, factual causation focuses
on the “but for” consequences of the defendant’s act or omission. Galassi v. Lowe’s
Home Ctrs., LLC, 4 Wn.3d 425, 440, 565 P.3d 116 (2025). DCYF purports to
discuss proximate cause but does not make any argument regarding legal
causation. Rather, DCYF argues that A.K. did not present evidence about “what
would have happened had Wicks made a report of suspected abuse in 2004” or
4 Division Two of this court has quoted this portion of Harley, adding, “We agree.” Channel v. Mills, 77 Wn. App. 268, 273 n.9, 890 P.2d 535 (1995). A member of this panel has recognized this point as well, and has opined that cause in fact and legal causation are separate and distinct elements of a negligence claim rather than elements of proximate cause. Zorchenko v. City of Federal Way, 31 Wn. App. 2d 390, 401-04, 549 P.3d 743 (2024) (Feldman, J. concurring).
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“the likely outcome of an investigation.” Based on these arguments, A.K. claims
DCYF disputes only cause in fact. In its reply brief, DCYF does not dispute this
claim. At oral argument, DCYF’s counsel similarly confirmed that the issue before
us is limited to the element of cause in fact. 5
“Cause in fact refers to the ‘“but for” consequences of an act—the physical
connection between an act and an injury.’” Galassi, 4 Wn.3d at 440 (quoting
Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281, 289, 481 P.3d 1084 (2021)).
Though the plaintiff “cannot rest a claim for liability on a speculative theory,” cause
in fact is satisfied if the plaintiff presents circumstantial evidence that “‘allow[s] a
reasonable person to conclude that the harm more probably than not happened in
such a way that the moving party should be held liable.’” Martini v. Post, 178 Wn.
App. 153, 165, 313 P.3d 473 (2013) (quoting Little v. Countrywood Homes, Inc.,
132 Wn. App. 777, 781, 133 P.3d 944 (2006)). Thus, cause in fact presents a
question generally left to the jury’s determination and “may be determined as a
matter of law only when reasonable minds can not differ.” Joyce v. Dep’t. of Corr.,
155 Wn.2d 306, 322, 119 P.3d 825 (2005); Galassi, 4 Wn.3d at 440.
Applying these legal principles here, the trial court did not err in denying
DCYF’s CR 50 motion for judgment as a matter of law because A.K. presented
substantial evidence to support a jury’s finding of causation. In her case in chief,
A.K. presented testimony from Jane Ramon, an expert in the standard of care for
CPS workers. Ramon testified, based on DSHS policies and procedures, that CPS
workers are required to report suspected abuse so that the report can be
5 Wash. Ct. of Appeals oral argument, A.K. v. Department of Social and Health Services, No.
86100-0-I (January 8, 2026), at 4 min., 20 sec. through 4 min., 41 sec. (on file with court).
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investigated by DCYF or law enforcement. Ramon further testified that it was
Wicks’s obligation as a mandatory reporter to report what she knew to CPS, which
would have then referred the case, which here was a “third-party case,” to law
enforcement for an investigation. While such a report may have gone to a few
different law enforcement agencies, Ramon testified it likely would have gone to
either WSP or the Sherriff’s Office because the abuser in this case was a Monroe
Police Department sergeant.
Critical here, Ramon testified that had a report of child abuse been made,
law enforcement would have been required to investigate it. Ramon offered the
following opinion on a more probable than not basis:
Ms. Wicks knew [A.K.]; [A.K.] knew Ms. Wicks, and [A.K.] was in the midst of a very, very difficult situation, one that she could not handle at her age. And she, in my opinion, attempted to let Ms. Wicks know about that. A number of things came to light to Ms. Wicks about what [A.K.] was going through; a matter that, in my opinion, should have been reported to the Department of Social and Health Services and was not.
And then that left that situation to go on and on and on for a very long period of time in a very harmful way. In my opinion, had it been dealt with in a way that it was very clearly understood had to be dealt with, in my opinion, the situation would have ceased and [A.K.] would not have gone through what she went through for a very, very long period of time.
Although the court did not allow Ramon to testify the sexual abuse would have
stopped if investigated by law enforcement and sustained a speculation objection
after such a question by A.K.’s counsel, the court stated it would allow A.K. to
question Steen as to what procedures law enforcement would have followed in this
case had it been investigated in 2004.
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Consistent with the trial court's evidentiary ruling, A.K. presented testimony
of Steen regarding law enforcement’s investigative process. Steen testified he had
been involved in hundreds of criminal police investigations and that the basic
investigative process had not changed from 2003 and 2004 to 2012. Specifically,
Steen testified that if a case like this had come up in 2004,
We consider this a live-victim case, and when we get a call or information on a live victim, we drop everything we’re doing within the task force and we move heaven and earth to make sure that that child is no longer being abused. We do everything we can to do that, which would include taking custody of the child, putting them in the case of a close family member or safe location, or CPS placement, and then we continue on with investigation at that point in time. We do nothing else with that case. They become the absolute priority.
Steen testified that, once a report is made, the investigation would begin “[t]he
second we hang up the phone call.” He further testified that if the suspect involved
is a police officer, the investigation is sped up because of law enforcement’s
concern “to make sure they’re not out there doing that kind of stuff or hurting the
public as a whole.” Steen concluded that had “a case like this come[] into [his]
office in 2004,” law enforcement would have followed the same various steps of
the investigation as they did during the 2012 investigation, regardless of whether
the victim is cooperative with law enforcement, including interviewing witnesses,
obtaining search warrants, and collecting evidence, to “turn heaven and earth over
to find out what happened.”
Viewed in the light most favorable to A.K., this evidence was sufficient to
persuade a fair-minded, rational juror that Wicks’s failure to report A.K.’s sexual
abuse was a cause in fact or “but for” cause of A.K.’s injury. As the trial court
correctly noted in its discussion with counsel, “whatever inference the jury wants
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to take from [the testimony] the jury can take from [the testimony].” In Conrad v.
Alderwood Manor, the court held that a “plaintiff need not establish causation by
direct and positive evidence. She need only show by ‘a chain of circumstances
from which the ultimate fact required is reasonably and naturally inferable.’” 119
Wn. App. 275, 281, 78 P.3d 177 (2003) (quoting Attwood v. Albertson’s Food Ctrs.,
Inc., 92 Wn. App. 326, 331, 966 P.2d 351 (1998)). A.K. presented such a “chain
of circumstances” here, starting with Wicks’s breach of her duty to report and
ending with law enforcement’s required investigation and investigative procedures,
from which the jury could reasonably find the element of factual causation satisfied.
That was sufficient to survive DCYF’s CR 50 motion.
Despite this, DCYF argues the jury was left to speculate about causation
because Ramon offered “very little reliable evidence,” Ramon’s opinions were
conclusory and unsupported by facts, and Steen’s testimony was “generalized.”
For example, DCYF claims Ramon’s opinions cannot support the jury’s finding of
causation because the trial court did not allow Ramon to testify whether “if this was
reported to law enforcement and investigated . . . the sexual abuse would have
stopped.” But DCYF’s arguments ignore the testimony discussed above from
which the jury could reasonably infer causation. As our Supreme Court has noted,
“crediting reasonable inferences is the stuff of juries, which is why courts generally
leave questions of breach and causation for juries to decide.” H.B.H. v. State, 192
Wn.2d 154, 182, 429 P.3d 484 (2018). Additionally, DCYF’s argument that A.K.’s
evidence was not “reliable” ignores the applicable legal standards. By filing a CR
50 motion for judgment as a matter of law, DCYF “admits the truth of [A.K.]’s
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evidence and all inferences which can reasonably be drawn [from it].” Faust v.
Albertson, 167 Wn.2d 531, 537, 222 P.3d 1208 (2009) (citing Davis v. Early Constr.
Co., 63 Wn.2d 252, 254, 386 P.2d 958 (1963)). Thus, the trial court did not err in
denying DCYF’s CR 50 motion for judgment as a matter of law and leaving the
question of causation for the jury’s determination.
B. CR 26(g) discovery sanctions
Turning to the trial court’s post-trial ruling awarding monetary sanctions
against DCYF and the AGO based on their failure to timely disclose and produce
Wicks’s recorded statement to WSP, A.K. argues the award should be vacated
and the issue should be remanded because the trial court applied the incorrect
legal standard in assessing sanctions. DCYF, in contrast, argues the trial court
erred in concluding it violated the applicable discovery rules. We agree with A.K.
and disagree with DCYF. But despite the trial court’s application of an erroneous
legal standard, we affirm the trial court’s award because the error was harmless.
CR 26 governs the discovery sanctions at issue here. Under CR 26(g),
attorneys responding to discovery requests must certify they have read the
response and after a “reasonable inquiry” believe it is consistent with the discovery
rules. “Whether an attorney has made a reasonable inquiry is to be judged by an
objective standard.” Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp.,
122 Wn.2d 299, 343, 858 P.2d 1054 (1993). “Subjective belief or good faith alone
no longer shields an attorney from sanctions under the rules.” Id. Additionally, CR
26(g) states:
If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who
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made the certification, the party on whose behalf the request . . . is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney fee.
(Emphasis added). Thus, if “a violation is found . . . sanctions are mandated.”
Fisons, 122 Wn.2d at 346. “[I]ntent need not be shown before sanctions are
mandated.” Id. at 345. In determining what sanctions are appropriate under CR
26(g) to fulfill their purpose “to deter, to punish, to compensate and to educate,”
the trial court considers the least severe sanction that will “insure that the
wrongdoer does not profit from the wrong” and “will be adequate to serve the
purpose of the particular sanction.” Id. at 355-56. “The sanction must not be so
minimal, however, that it undermines the purpose of discovery.” Id. at 356.
In contrast, CR 37(b)(2), a related but distinct court rule regarding discovery,
authorizes a trial court to impose sanctions for discovery violations “as are just.”
CR 37(b)(2) provides a nonexhaustive list of remedies including severe sanctions
such as dismissal, default, and exclusion of testimony. Additionally, CR 37(b)(2)
also mandates the imposition of monetary sanctions for violations of this discovery
rule. When a trial court imposes one of the harsher remedies under CR
37(b)(2)(A)-(E), the record must demonstrate the trial court explicitly considered
the so-called Burnet factors: (1) whether a lesser sanction would probably have
sufficed, (2) whether it found the discovery violation willful or deliberate, and
(3) whether the discovery violation substantially prejudiced the opponent’s ability
to prepare for trial. Burnet, 131 Wn.2d at 494 (citing Snedigar v. Hodderson, 53
Wn. App. 476, 487, 768 P.2d 1 (1989)).
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Where a trial court awards monetary sanctions under CR 26(g), as the trial
court did below, the Burnet factors are inapposite. Mayer v. Sto Indus., Inc., 156
Wn.2d 677, 132 P.3d 115 (2006), is controlling on this point. There, the trial court
imposed monetary sanctions against Sto Industries to compensate the Mayers for
Sto Industries’ discovery violations. Id. at 682-83. The court of appeals reversed,
holding the trial court erred by not considering the three Burnet factors because
the “‘Burnet rationale applies equally and is required under either [CR 26(g) or CR
37(b)(2)].’” Id. at 688-89 (quoting Mayer v. Sto Indus., Inc.,123 Wn. App. 443, 455,
98 P.3d 116 (2004)). Our Supreme Court reversed the court of appeals and
reinstated the trial court’s sanction award, holding that consideration of the Burnet
factors applies only to awards of severe sanctions under CR 37(b)(2). Id. at 690,
695. It explained the “three-part test” under Burnet is only triggered by a request
for one of the harsher remedies allowable under CR 37(b)(2), such as the
exclusion of testimony, dismissal, and default, that affect a party’s ability to present
its case. Id. at 689-90. Thus, the Burnet factors “have no applicability” in a trial
court’s determination of sanctions under either CR 26(g) or less severe remedies,
such as monetary sanctions, under CR 37(b)(2). Id. at 689. 6
While this court reviews a trial court’s decision regarding discovery
sanctions for abuse of discretion, Blair, 171 Wn.2d at 348, a trial court abuses its
discretion where, as here, it applies an incorrect legal standard, State v. Rafay,
167 Wn.2d 644, 655, 222 P.3d 86 (2009). The trial court correctly began its
6 Accord Blair v. Ta-Seattle E. No. 176, 171 Wn.2d 342, 349, 254 P.3d 797 (2011) (“Mayer clearly
held that trial courts do not have to utilize Burnet when imposing lesser sanctions, such as monetary sanctions, but must consider its factors before imposing a harsh sanction such as witness exclusion”).
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analysis of CR 26(g) by finding that DCYF failed to make a reasonable inquiry that
its discovery responses were consistent with the discovery rules. But it then
analyzed the Burnet factors, finding DCYF’s actions were neither willful nor
deliberate and concluding that “[l]esser sanctions apply here.” Mayer clearly
dictates the trial court’s analysis of the Burnet factors was in error. See 156 Wn.2d
at 689 (“the Burnet test . . . should have no applicability” to a “sanctions motion . . .
brought under CR 26(g)”). Like the court of appeals’ incorrect analysis in Mayer
that considered “the Burnet rationale” in the context of monetary sanctions, the trial
court here engaged in an incorrect legal analysis in determining monetary
sanctions under A.K.’s CR 26(g) motion. Thus, the trial court abused its discretion.
DCYF’s corresponding arguments are unpersuasive. First, DCYF argues
the trial court’s order was predicated on the updated version of CR 26(e) that was
not in effect in May of 2023 which led the trial court to erroneously conclude DCYF
engaged in a discovery violation. This argument lacks merit. After this court
ordered the trial court to fully address A.K.’s motion to vacate, A.K. clearly
amended her request on remand and sought “only . . . monetary sanctions under
Civil Rule 26(g).” Both parties agreed below that “Plaintiff is only seeking monetary
sanctions under Civil Rule 26(g).” Additionally, the trial court’s order granting
A.K.’s motion for sanctions under CR 26(g) reflects its finding that DCYF violated
CR 26(g): “DCYF has the duty, in making a ‘reasonable inquiry’ to acquire the
materials sought from discovery, to seek and produce the recording” and “DCYF
failed to comply with the discovery rules with respect to the Wicks interview tape.”
This finding is amply supported by the record. After DCYF obtained control of
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Wicks’s recorded statement in May 2023, DCYF’s counsel twice certified discovery
responses which improperly disregarded the Wicks statement without conducting
a “reasonable inquiry” to ensure they had provided all responsive documents to
A.K. DCYF’s novel argument on appeal that the trial court’s singular mention of
CR 26(e) demonstrates its order was not based on a violation of CR 26(g) is thus
unpersuasive.
Second, DCYF argues it did not violate CR 26(g) because it supplemented
its responses only to A.K.’s interrogatory no. 1 and request for production no. 1,
thus certifying only those responses. DCYF’s argument is unpersuasive. In 2019,
A.K. served her first discovery requests which included interrogatory no. 14
requesting “any written and/or recorded statements made by any witnesses.”
DCYF responded, “[t]here are no presently-known written or recorded statements
in the possession of DCYF, made by any person known to have been a witness to
any of the events allegedly relating to this case.” Then, DCYF supplemented its
original responses to A.K.’s discovery request after it was granted access to
Wicks’s recorded statement through the patrol’s public portal on May 15, 2023.
While the additional information DCYF disclosed in June and July of 2023 related
to expert testimony directly in response to interrogatory no. 1 and request for
production no. 1, DCYF included its original responses to interrogatory no. 14 in
both supplemental responses and, critical here, certified that “[t]he undersigned
attorney has read the foregoing answers and responses to these discovery
requests, and they comply with CR 26(g).” The unambiguous meaning of
“foregoing answers” includes DCYF’s response to interrogatory no. 14. Yet
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despite that discovery request, neither supplemental discovery response disclosed
Wicks’s recorded statement. On this record, the trial court did not abuse its
discretion in concluding DCYF and the AGO violated CR 26(g)’s requirement that
counsel conduct a “reasonable inquiry” to ensure their responses are consistent
with the applicable discovery rules.
Lastly, DCYF argues the trial court applied the incorrect standard for
determining “control” for discovery purposes because it focused on DCYF’s
“access” to Wicks’s recorded statement and not on whether DCYF had the legal
right to obtain the statement. DCYF incorrectly interprets Washington precedent
defining “control.” Under CR 34(a), a party must produce documents that are in
their “possession, custody, or control,” and Washington courts have defined
“control” under CR 34(a) as either “the legal right to obtain the documents
requested upon demand” or as “access to and the ability to obtain the documents.”
Diaz v. Wash. State Migrant Council, 165 Wn. App. 59, 78, 265 P.3d 956 (2011).
Here, the trial court found that “DCYF has the legal right to the recording in the
online portal, having filed a public records request and being granted access to it.”
Under Diaz, the record clearly supports the trial court’s determination because
DCYF “ha[d] access to the online portal” and “the ready ability to obtain the
recording” “simply by downloading it.” Indeed, in briefing to the trial court on this
issue, DCYF conceded its attorneys were “technically granted ‘access’” to the
recorded statement, though they never downloaded it from the online portal. Thus,
DCYF’s argument that the trial court applied the incorrect standard for determining
“control” under CR 34(a) fails.
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DCYF relies on Searock v. Stripling, 736 F.2d 650 (1984), in arguing it never
had control over Wicks’s statement because it had no legal right to obtain the
statement. This reliance is misplaced. In Searock, Stripling had told opposing
counsel that he could obtain certain vessel repair records from the repair shops
that possessed them but when he requested the records the repair shops did not
provide all of the requested documents. Id. at 651-52. The trial court awarded
opposing counsel an extreme sanction, dismissing Stripling’s counterclaim,
because he had failed to produce all the repair documents. Id. at 652-53. The
Eleventh Circuit reversed, noting that even though Stripling had requested the
documents and expected to receive them, he did not have the legal right to obtain
them on demand. Id. at 654. Thus, the court concluded the record did not
demonstrate that “Stripling asserted ‘control’ over the documents in the sense
required for production under Rule 34.” Id. Here, in contrast, when DCYF
requested all records related to the Martinez criminal investigation, WSP did
provide DCYF with Wicks’s recorded statement. Once DCYF was given access to
the statement through the online portal, it had the right and the ability to obtain it
and thus had control over it. As such, Searock is inapposite here.
Having concluded that the trial court applied an incorrect legal standard but
did not otherwise abuse its discretion in awarding sanctions under CR 26(g), we
turn to the amount of sanctions awarded, which A.K. argues would have been
greater absent the court’s erroneous application of the Burnet factors. Under the
Burnet framework, trial courts are to consider, among other relevant
circumstances, “whether a lesser sanction would probably have sufficed.” 131
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Wn.2d at 494. Similarly, under CR 26(g), trial courts are to impose a sanction that
is “severe enough to deter.” Fisons, 122 Wn.2d at 356. In both circumstances,
sanctions must be sufficient but not excessive. Here, while the trial court applied
the wrong test, it nonetheless determined an appropriate sanction—sufficient but
not excessive—by expressly limiting its analysis to the “material from the Wicks
interview tape and the subsequent motions surrounding the Wicks materials.”
Accordingly, while the court abused its discretion in applying Burnet, the error was
harmless.
Affirmed.
WE CONCUR:
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