Tony Varney, V. City Of Tacoma

Opinion

Filed

Washington State

Court of Appeals

Division Two

August 25, 2026

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

TONY VARNEY and GERALYN VARNEY, No. 61318-2-II and their marital community,

Respondents,

v.

CITY OF TACOMA, UNPUBLISHED OPINION Appellant.

Lee, J. — Tony and Geralyn Varney1 filed suit against the City of Tacoma (City) for abuse of process and outrage. The jury returned a verdict for the City, but the trial court vacated the jury’s verdict, granted a new trial, and ordered a default judgment on liability against the City as a sanction for the City’s discovery violations. The City argues that: (1) the trial court erred by refusing to address the City’s motion for a protective order and by denying reconsideration, (2) the trial court erred by granting the Varneys’ motion to vacate the jury’s verdict and by granting a new trial, and (3) the trial court abused its discretion by granting a default judgment as the sanction for the City’s discovery violations.

We hold that even if the trial court erred by refusing to hear the City’s motion for a protective order, any error was not prejudicial. We also hold that the trial court erred in granting the Varneys’ CR 59(a)(9) motion to vacate the jury’s verdict and for a new trial. Because we

1 For clarity, we will refer to Tony and Geralyn Varney collectively as “the Varneys” and individually by their first names. We intend no disrespect.

uphold the jury’s verdict finding no liability for the City, we reverse the trial court’s granting of default against the City as a sanction for the City’s discovery violations. Therefore, we reverse the trial court’s order vacating the jury’s verdict, ordering a new trial, and finding a default on the issue of liability against the City for its discovery violations. Accordingly, we remand this case to the trial court to determine appropriate monetary sanctions for the City’s discovery violations.

FACTS

A. BACKGROUND Tony was hired as a firefighter for the City of Tacoma in 1987. On July 21, 2009, Tony began to suffer a hypertensive emergency while he was working; he experienced a headache, and his lips grew numb. Within 24 hours of his shift, Tony suffered a stroke at home, and he subsequently retired from service.

Tony filed a workers’ compensation claim based on the hypertensive stroke. From 2009 to 2018, the Varneys and the City engaged in a series of protests, appeals, and litigation surrounding Tony’s workers’ compensation claim. Tony was ultimately placed on a medical pension in January 2018.

On January 2, 2019, the Varneys filed the instant suit against the City, alleging abuse of process, outrage/tortious conduct, due process violations, discrimination, and hostile workplace.

In 2021, the parties sought discretionary review before this court related to attorney-client privilege and work product privilege. On remand, the trial court issued an order amending the case schedule in February 2024. The order amending the case schedule provided the following deadlines in relevant part:

• Discovery Cutoff: June 17, 2024

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• Deadline for Hearing Dispositive Pretrial Motions: July 1, 2024 • Trial: July 29, 2024

B. THE VARNEYS’ REQUEST FOR CR 30(b)(6) DESIGNATIONS AND REQUESTS FOR ADMISSION 1. CR 30(b)(6) Designations and Objections On April 3, 2024, the Varneys requested that the City designate CR 30(b)(6) witnesses for a list of topics. The parties conferred pursuant to CR 26(i) on April 26 regarding the CR 30(b)(6) topics of inquiry and the City’s CR 30(b)(6) designations, and the City estimated that it would serve its designations and objections on May 1. The parties also scheduled a second CR 26(i) conference for May 3 to address any issues related to the City’s objections or inability to designate a CR 30(b)(6) witness for certain topics. On May 1, 2024, the City provided its CR 30(b)(6) witness designations and objections to the Varneys. The City also stated that it planned to call the Varneys’ counsel for a CR 26(i) conference on Friday, May 3, to discuss the City’s objections.

After the May 3 conference, the Varneys edited a number of topics, and the City updated its objections and designations. Subsequently, the City failed to designate a CR 30(b)(6) witness for numerous topics in the Varneys’ edited list of CR 30(b)(6) topics.

2. Requests for Admission The Varneys also served the City with 515 requests for admission on May 9. The City proposed that the parties hold a CR 26(i) conference related to the requests for admission on May 13, but because the Varneys were not available on that date, the parties scheduled a CR 26(i) conference related to the requests for admission on May 17.

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C. MOTION FOR PROTECTIVE ORDER On May 16, 2024, the City filed a motion for protective order to relieve it of its obligation to designate CR 30(b)(6) witnesses and to limit the scope of CR 30(b)(6) topics propounded by the Varneys on April 3. The City also sought a protective order to prevent the Varneys’ requests for admission in their entirety or to set a limit on their requests for admission.

In its motion, the City stated that the Varneys requested to depose the City’s CR 30(b)(6)

witnesses and sent a total of 211 topics and subtopics as areas of inquiry. The City included a certification pursuant to CR 26(i) that the parties conferred regarding the CR 30(b)(6) designations and list of topics on April 26 and May 3. The motion also explained that the parties had scheduled a CR 26(i) conference for May 17 related to the requests for admission. The parties conferred on May 17 regarding the requests for admission, and the City filed its CR 26(i) certification on May 20.

The Varneys responded to the City’s motion for a protective order by clarifying that the parties conferred regarding the CR 30(b)(6) issues on May 3, but the parties had not conferred with respect to the requests for admission at the time the City filed its motion for a protective order.

1. Trial Court Declines to Hear the Motion On June 7, the trial court heard the City’s motion for a protective order. In discussing the requests for admission, the trial court asked the City if it “concede[d] that there was no CR 26(i) prior to filing of the motion.” 1 Verbatim Rep. of Proc. (VRP) (June 7, 2024) at 13. Discussing the issue of requests for admission, the City conceded that there was no CR 26(i) conference held prior to the motion being filed, but the City argued that the motion informed the trial court that the CR 26(i) conference on the requests for admission had been scheduled. The City explained that it

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filed the motion for a protective order for the CR 30(b)(6) designations and topics and for the requests for admission at the same time for judicial economy.

Addressing the requirements of CR 26(i), the Varneys argued that the trial court did not have discretion to entertain a motion for a protective order if the parties had not conferred or if the motion did not include counsel’s certification that the CR 26(i) conference requirements were met. The Varneys contended that because the parties conferred after the City filed the motion, the moving party had less incentive to make concessions during the conference.

The City responded that it did not believe the trial court lacked discretion to hear its motion.

The City also offered to withdraw its motion and re-note it because the CR 26(i) had taken place by that point.

The trial court stated, “In Division II, I do not have jurisdiction to hear this motion. Based on this rule, I do not have jurisdiction and I have no discretion. This is not Division I.” 1 VRP (June 7, 2024) at 25. “I cannot hear the motion today. I cannot. There is case law on point from Division II.” 1 VRP (June 7, 2024) at 28. Although the trial court did not rule on the motion for a protective order, the trial court urged the parties to confer in good faith on both topics.

In response to the trial court, the City stated: “[O]ur way forward is then . . . just in case there isn’t a resolution, re-note both motions?” 1 VRP (June 7, 2024) at 30. The trial court informed the City that it could re-note the motion.

2. Motion for Reconsideration On June 11, 2024, instead of re-noting the motion as discussed at the hearing, the City filed a motion for reconsideration of the trial court’s conclusion that the City failed to meet the CR 26(i) certification requirements. During a hearing on July 19, the City argued that the trial court had the

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discretion to hear the motion for a protective order because the CR 26(i) certification was filed prior to the hearing on the motion.

In ruling on the City’s motion for a protective order, the trial court stated, “The case law is clear in Division [II], I do not have jurisdiction to entertain a motion regarding discovery issues if there is no certification indicating that a CR 26(i) conference has occurred.” 1 VRP (July 19, 2024) at 78. Accordingly, the trial court denied the City’s motion for reconsideration. D. DISCOVERY CONDUCTED – KNOWRASA PATRICK In addition to the parties’ disputes regarding the CR 30(b)(6) designations and topics, the Varneys challenged the City’s alleged lay witness, Knowrasa Patrick. The City explained that Patrick was “the Washington State Department of Labor & Industries ([DLI]) – Self-Insurance Program Manager and subject matter expert” who was expected to testify about the laws, rules, regulations, and processes related to the Industrial Insurance Act and DLI. Clerk’s Papers (CP) at 3187.

1. Patrick’s Declaration On May 31, the City filed Patrick’s declaration. Patrick’s signed declaration stated that the declaration was made based upon personal knowledge and that she had previously served as an industrial insurance appeals judge for the Board of Industrial Insurance Appeals (Board). Patrick’s declaration also discussed Tony’s claim file, Title 51 RCW (the Industrial Insurance Act), self- insured claims, and DLI’s relationship to the self-insured employer and the Board.

2. Motion to Strike Patrick’s Declaration In anticipation of a subsequent summary judgment hearing, the Varneys moved to strike Patrick’s declaration. The Varneys argued that Patrick’s deposition established that she lacked

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personal knowledge despite Patrick’s declaration asserting that she made statements based on personal knowledge. The Varneys also argued that Patrick’s declaration was hearsay and that Patrick provided statements relying on specialized knowledge despite the City’s assertions that Patrick was not an expert witness. The Varneys sought a default as a sanction for the City’s conduct.

The City argued that the trial court should deny the Varneys’ motion to strike Patrick’s declaration because Patrick was a hybrid witness—she was a records custodian who supervised her department, and she had expertise and knowledge regarding Board and DLI processes.

The trial court ruled that for the purposes of summary judgment, Patrick satisfied the requirements of a records custodian. The trial court stated that if Patrick provided any testimony beyond indicating that a document is in the claim file, Patrick would need to be disclosed as an expert and have her opinions disclosed. Accordingly, the Varneys again deposed Patrick on July 23, six calendar days prior to the start of trial, to determine Patrick’s expert opinions. E. MOTION FOR SUMMARY JUDGMENT Meanwhile, on May 31, 2024, while the issue of the City’s motion for a protective order relating to the CR 30(b)(6) designations and requests for admission was being litigated, the City filed a motion for summary judgment to dismiss the Varneys’ claims.

1. Motion to Enlarge Time Because the trial court’s February 2024 case scheduling order had set July 1 as the deadline for hearing dispositive motions, the City also filed a motion to enlarge time to hear its motion for summary judgment and requested that the motion be heard on July 19, 2024. In the City’s motion to enlarge time, the City acknowledged that the case schedule required all dispositive motions to

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be heard before July 1, but claimed the trial court was only available to hear the motion on June 28, and the City’s counsel was not available on June 28 due to a family vacation.

The City’s counsel had previously filed on February 8, 2024, a notice of unavailability, indicating that the City’s counsel would be unavailable from June 17 through June 28. On May 3, the City amended the notice of unavailability to span from June 14 through July 5.

The Varneys asserted that the City waited until May 24, the last possible week to file its motion for summary judgment, despite knowing that motions for summary judgment must be noted 28 days prior to a hearing and that counsel would not be available beginning on June 14. The Varneys contended that it was prejudicial for the City to wait until the last possible moment to bring its motion for summary judgment, especially when the City’s counsel knew they would not be available to timely argue the motion given counsel’s known vacation schedule.

The trial court granted the City’s motion to enlarge time.

2. Hearing on the Motion for Summary Judgment The trial court heard the City’s motion for summary judgment on July 24, five days before the first day of trial. The trial court granted partial summary judgment in favor of the City and dismissed the Varneys’ due process, discrimination, and hostile workplace claims. The Varneys’ abuse of process and outrage claims remained for trial. F. JULY 23 LATE PRODUCTION OF DOCUMENTS BY THE CITY On July 24, 2024, five calendar days before trial was set to begin, the City informed the trial court that it provided additional discovery to the Varneys on the morning of July 23, just prior to Angela Hardy’s second deposition as the City’s designated CR 30(b)(6) witness. The City claimed that the discovery included “less than 20 pages of [its] term quarterly reports by the third-

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party administrator when they briefed the employer.” 3 VRP (July 24, 2024) at 60. The City also stated that there was a second set of documents containing e-mails.

The Varneys clarified for the trial court that the deposition of the City’s speaking agent, Hardy, was scheduled for 9:30 a.m. the previous day, and the City produced roughly 950 pages of documents just before the deposition was set to begin.

The 951 pages of documents included quarterly claim status reports from the City’s third-

party administrator, e-mails, and other internal reports. The third-party administrator created these claim status reports in advance of quarterly meetings with Hardy and were provided to Hardy. One claim status report from October 11, 2014, provided that the City and its third-party administrator were “waiting for the results of the 9/24/14 [independent medical examination] report to assist with further determination of claim validity.” CP at 5214.

The trial court asked the City why it did not produce these documents prior to the discovery deadline rather than days before trial. The City explained that the Varneys did not begin their CR 30(b)(6) depositions until April, that there were over 20,000 pages of discovery, and that the City had no knowledge of the reports until the June 12, 2024, deposition of the third-party administrator’s speaking agent.

The Varneys asked the trial court to consider a default against the City because the Varneys “have been so prejudiced by gamesmanship, by not providing discovery, not preparing witnesses, presenting false declarations, saying someone’s not an expert, . . . wasting our time when we should be getting ready for trial.” 3 VRP (July 24, 2024) at 67 The trial court stated it would not grant a default, so the Varneys requested monetary sanctions of $350,000. The trial court reserved the

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issue for after trial but stated that it “believe[d] [the Varneys] [were] owed something in the form of a sanction.” 3 VRP (July 24, 2024) at 82.

Two days later, during a motions in limine hearing on the Friday before trial, the trial court reminded the parties that it had a box of roughly 950 pages of documents. The Varneys noted that about 300 pages of the documents were fully redacted.

Based on the City’s assertions of privilege and the Varneys’ interest in the redacted documents to support their claims, the trial court determined that it would review the documents in-camera on Monday, July 29, which was scheduled to be the first day of trial. Given the parties’ discussion about the documents with the trial court, the court focused its in-camera review on “quarterly Claim Status Reports prepared by the City of Tacoma through its third-party claims administrator . . . and e[-]mails between various individuals.” CP at 4522. By letter ruling on July 29, the trial court ruled that the quarterly claim status reports were discoverable because they documented the City’s conduct throughout Tony’s claim and were likely to lead to the discovery of relevant evidence. The trial court also determined that a majority of the 950 plus documents were fully disclosable or disclosable with redactions.

On the first day of trial, the Varneys represented to the trial court, “[O]nce again, Your Honor, we’re prepared for trial.” 5 VRP (July 30, 2024) at 284. The case proceeded to a jury trial on July 30, 2024.

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G. TRIAL 1. The Varneys’ Case The Varneys began presenting their case-in-chief on July 31.

a. Tony’s testimony

Tony was a firefighter for the City of Tacoma from 1987 until July 2009. On July 21, 2009, Tony experienced a hypertensive emergency, which led to a stroke. After the stroke, Tony filed a workers’ compensation claim to receive a disability pension.

Tony explained that for over 900 days, from April 2012 to November 2014, he did not receive any time loss or wage replacement from the City. The Varneys’ house went into foreclosure, and they lost their house in 2013. After the foreclosure, the Varneys moved several times before ultimately buying a new home. Tony began receiving workers’ compensation pension payments in 2018.

b. Britta Holm’s testimony Britta Holm testified as the speaking agent for the City’s third-party administrator, Eberle Vivian, Inc. Eberle Vivian acted on behalf of and with the authority of the City during Tony’s workers’ compensation claim.

On October 22, 2009, DLI issued a letter to the City regarding Tony’s claim. DLI directed the City to arrange for an independent medical examination of Tony with a cardiologist.

On February 3, 2010, DLI issued an order allowing Tony’s claim. The order stated that Tony was entitled to receive medical treatment and other benefits provided under the industrial insurance laws. Despite over 3 months having passed since DLI’s directive to the City, the City had not arranged any independent medical examination with a cardiologist for Tony.

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On February 10, 2010, the City wrote a letter to DLI protesting the order allowing Tony’s claim. In the letter, the City represented that it had followed DLI’s directions and requested that DLI rescind its February 3 order pending the results of an independent medical examination on March 1, which was scheduled with a neurologist and an internal medicine doctor, not a cardiologist as directed by DLI. The independent medical examination results were sent to the third-party administrator in a letter dated March 1, 2010. The results stated that “Mr. Varney’s current condition is due to the natural progression of his hypertension along with the stresses of life and employment.” Ex. 12, at 17 Holm created a claim file note on March 19, 2010, which included the same language from the independent medical examination.

On February 19, 2010, DLI placed the claim allowance order “on hold.” 6 VRP (July 31, 2024) at 536. By this point, the City had received a letter from one of Tony’s attending physicians, Dr. Terrill Utt. Dr. Utt determined that Tony’s blood pressure problems seemed reactive in nature and attributed the blood pressure problems to the stress of his work environment. Dr. Utt concluded that Tony’s stroke and residual disability were related to his work so he would be eligible for benefits.

On March 19, 2010, the City wrote another letter to DLI challenging Tony’s claim. At the time of this letter, the City knew that two doctors who had performed independent medical examinations found that the stress of Tony’s employment contributed to his condition.

On April 2, 2010, the City filed a notice of appeal challenging DLI’s February 3 order accepting Tony’s claim. The City’s position was that the heart was not part of Tony’s claim.

On April 29, 2010, DLI affirmed its allowance of Tony’s claim.

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On June 24, 2010, the City again challenged Tony’s claim, stating that the alleged injury involved Tony’s cerebral vascular system. The City’s position was that the alleged injury involved a stroke or a cerebral accident.

In July 2010, the City directed Tony to undergo an independent medical examination by a different internal medicine doctor, Dr. Gary Schuster. The City received Dr. Schuster’s independent medical examination report on August 4, 2010. Dr. Schuster determined that “[h]ad it not been for the work condition, it cannot be stated that [Tony] would have had the stroke he suffered.” 6 VRP (July 31, 2024) at 573.

On September 3, 2010, the City wrote another letter to DLI again requesting the denial of Tony’s claim.

On September 15, 2010, DLI again issued an order affirming Tony’s claim allowance.

On October 4, 2010, the City appealed DLI’s September 15 order. This appeal resulted in litigation and a jury trial in Pierce County Superior Court to determine whether Tony’s occupational disease claim should be allowed for a heart problem pursuant to the presumptive occupational disease statute.

The jury returned a verdict for Tony, and on May 23, 2014, superior court entered a judgment based on the jury’s verdict. The superior court remanded Tony’s claim to DLI, instructing DLI to issue an order that directed the City to allow Tony’s claim for a heart problem pursuant to the presumptive disease statute.

The City did not appeal the superior court’s judgment. On June 3, 2014, DLI issued an order pursuant to the superior court’s judgment stating that Tony’s claim was allowed for a heart problem pursuant to RCW 51.32.185.

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On August 15, 2014, the City sent a letter to DLI stating that the preponderance of medical opinion did not support that Tony was permanently and totally disabled as a result of a heart problem. The City informed DLI that it was proceeding to have Tony’s heart condition evaluated. The City sent Tony to another independent medical examination. On September 22, 2014, the City sent DLI another letter stating that pension was premature and that the claim was originally allowed for a stroke/brain condition rather than a heart problem.

On September 26, 2014, DLI responded to the City’s letters with an order stating that “‘[t]he hemorrhagic stroke resulting from the cardiovascular/heart condition is allowed.’” 7 VRP (Aug. 1, 2024) at 647.

On October 26, 2014, the City submitted a letter to DLI, requesting that DLI reconsider its September 26 order.

During Holm’s testimony, the trial court admitted the quarterly claim status report from October 2014, in which the City and the third-party administrator documented that Tony attended the independent medical examinations and that the City was waiting for the results of the report to assist with determining “claim validity.” 7 VRP (Aug. 1, 2024) at 655. Holm testified that the quarterly claim status reports were internal documents of which the City and its third-party administrator were aware and that the reports pertained to the City’s meeting with the third-party administrator about claims. The trial court also admitted a claim status report from January 2015, which discussed how Tony was not capable of working solely based on his current medical condition.

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On January 2, 2018, Holm e-mailed the City’s counsel, stating that she “‘confirmed with the excess carrier and the employer, and everyone is in agreement to stop the fight and close.’” 7 VRP (Aug. 1, 2024) at 668. Tony’s pension became effective in January 2018.

c. Angela Hardy’s testimony Hardy testified as the CR 30(b)(6) speaking agent for the City. Hardy explained that the City pays time loss pursuant to either DLI or Board orders, or the City makes a unilateral decision to pay time loss.

Regarding Tony’s claim, the City was concerned about whether Tony’s diagnosed condition was related to his work. Hardy also clarified that on March 12, 2012, the Board issued an order rejecting Tony’s claim. After the Board rejected Tony’s claim, the case went to a jury trial in March 2014. Tony received all the benefits to which he was entitled, including for the times during which there was an order disallowing his claim.

2. Trial Recess On Monday, August 5, which was the third day of trial, the City’s counsel, Deputy City Attorney Cox, fell in the courtroom and injured her ankle.

The next day, another Deputy City Attorney moved for a mistrial or a trial continuance of two or three weeks until Cox could return to work. The Varneys suggested that the parties delay the trial for two days and present the remainder of trial while seated.

The trial court determined that it would recess for the remainder of the week and resume trial on Monday, August 12. When trial resumed, the Varneys continued with their case-in-chief and presented testimony from Geralyn, two of the Varneys’ children, and David Snell, who was an expert on workers’ compensation claims.

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3. The City’s Case The City called Holm to testify. Holm explained that she was the primary person responsible for handling Tony’s claim. Holm explained the City’s reasons for protesting the claim: the claim was filed for a stroke, which is not an allowed condition; the physician’s initial report stated that the stroke was not work-related; the independent medical examinations did not link the stroke to a heart problem; and DLI and Board orders did not link the stroke to a heart condition until 2015.

4. Closing Arguments On the last day of trial, the trial court informed the parties of the schedule for the day, which allotted 45 minutes for each party’s closing arguments and 15 minutes for the Varneys’ rebuttal argument.

Prior to closing arguments, the trial court and the parties discussed jury instructions. While preparing jury instructions, the trial court stated that the parties “may be extremely limited in the time given for [their] closings because we’re already past some of our landmarks that we were supposed to meet.” 13 VRP (Aug. 15, 2024) at 1687.

After the parties stated their exceptions to the instructions, the trial court informed the parties that “arguments are going to be severely curtailed, . . . you may be looking at maybe 15 minutes and like a five to seven minute rebuttal possibly.” 13 VRP (Aug. 15, 2024) at 1689.

During closing argument, the Varneys contended that Tony gave everything to the City until he suffered a hypertensive emergency resulting in a stroke, and the City abused the process in an outrageous fashion to try to “kill the claim.” 13 VRP (Aug. 15, 2024) at 1691.

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The City argued that it managed the claim and litigated within the rules of the workers’

compensation process.

5. Verdict At the conclusion of trial, the jury found that the City had committed an act or acts in the use of the workers’ compensation process that was not proper in the regular prosecution of those proceedings, but the jury found that the City did not have an ulterior purpose. And the jury also found that the City’s conduct during the course of the workers’ compensation claims handling and litigation did not amount to outrage. H. CR 59 MOTION On September 5, 2024, the Varneys filed a motion to vacate the verdict and for a new trial under CR 59(a)(1), (3), (7), (8), and/or (9). The Varneys also moved for default on liability based on the City’s misconduct and for the new trial to address only damages.

The trial court addressed the Varneys’ motion in two parts. First, as to the CR 59(a) motion for a new trial, the trial court explained that the failure to complete discovery and dispositive motions by the court-ordered deadline required the Varneys to use trial preparation time to complete discovery and engage in motion practice. The trial court also stated that prejudice to the Varneys was compounded when the trial court was required to spend a trial day reviewing the City’s “newly disclosed 950 pages,” recess the trial after Cox fell, and limit the time for closing arguments. 16 VRP (Sept. 20, 2024) at 1773. Accordingly, the trial court granted the motion for a new trial and vacated the jury’s verdict for the City.

As to the Varneys’ request for sanctions, the trial court addressed the over 950 pages that the City disclosed just minutes before the deposition of the City’s CR 30(b)(6) witness and just

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days before trial, and the City’s failure to timely designate a CR 30(b)(6) witness for numerous subjects disputed between the parties. The trial court discussed the prejudice to the Varneys and available sanctions under CR 37. Ultimately, the trial court ordered a default against the City on all elements of the Varneys’ claims except for damages.

The trial court entered the following findings of fact and conclusions of law related to its order to vacate the verdict and for a new trial:

i. The first day of trial was scheduled to start on Monday, July 29, 2024. On Tuesday, July 23, 2024, the Defendants produced over 950 pages of discovery documents, many of which were entirely redacted or contained redactions. This occurred the very morning that the plaintiffs were scheduled to take the CR 30(b)(6)

deposition of Defendant City of Tacoma’s speaking agent, and the documents were produced less than two hours before the start of the deposition. This late production of documents, in violation of discovery rules, resulted [in] the loss of the first day of trial, because that day was instead used by the Court to perform an in-camera review of those late-produced documents. Not only were plaintiffs prejudiced by having to use trial-preparation time to review this untimely document production, but they were also prejudiced by losing the first day of trial.

ii The Plaintiffs were also prejudiced in their trial preparation by the Defendant’s [motion for summary judgment (MSJ)] occurring after the deadline for hearing MSJs and less than ten days before trial and by the deposition of Knowrasa Patrick on July 23, 2024 after the Defendant’s failure to timely disclose her expert opinions.

iii. Nearing the end of the day on the third day of trial testimony (Monday, August 5, 2024), when approaching for a sidebar to discuss potential juror questions for witness Plaintiff Tony Varney, defense counsel fell in the courtroom and sprained her ankle. This resulted in ending that day of trial and a complete stop of the trial until August 12, 2024.

iv. Trial resumed on Monday, August 12, 20[2]4, and witness testimony was completed on August 15, 2024. Testimony in plaintiffs’ case-in-chief that occurred prior to the mid-trial delay was material to the issue of liability, as it was testimony of (1) the speaking agent for the Defendant’s third-party administrator, (2) the speaking agent for the Defendant City of Tacoma, and (3) the Plaintiff Tony Varney. However, because Ms. Cox hurt her ankle on August 5, 2024 and the Court cancelled trial for the remainder of that week, the jury went six straight days without

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trial. The entire trial was estimated to be seven days. By the time that closing arguments occurred, the testimony in the plaintiffs’ case-in-chief that occurred before the six-day hiatus was ten days, fourteen days, and fifteen days old.

v. The only reason that the trial was still going on August 15 was because (a)

the first day of trial was cancelled, due to the City’s late disclosure of over 950 pages of documents, which resulted in the Court using the first day of trial to instead perform an in[-]camera review and issue a ruling about those documents; and (2)

the delay during plaintiffs’ case-in-chief after Ms. Cox’s courtroom[]fall. None of that was the plaintiffs’ fault, but all of it significantly prejudiced the plaintiffs[’]

right to a fair trial.

vi. The facts spanned over an eight-year period. There were several days of witness testimony, including roughly a day-and-a-half of testimony from an expert witness, David Snell. There were twenty-seven jury instructions. There were fifty exhibits. Material trial testimony from two speaking agents and the plaintiff was ten, fourteen and fifteen days old. However, because of the trial delays, which were no fault of the plaintiffs, the Plaintiffs were provided just sixteen minutes to present closing argument. That time-constraint prejudiced plaintiffs’ ability to address the jury on the evidence and law as set forth in the jury instructions.

vii. All of the above circumstances put together lead the court to conclude that substantial justice was not done and the plaintiffs did not have a fair trial.

CP at 6224-226.

The City appeals.

ANALYSIS

The City argues that the trial court erred by refusing to address the City’s motion for a protective order and by denying reconsideration. The City also argues that the trial court erred in granting the Varneys’ CR 59(a)(9) motion to vacate the jury’s verdict. And the City argues that the trial court abused its discretion in granting a default judgment. We address each argument in turn below.

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A. PROTECTIVE ORDER The City argues that the trial court erred by refusing to address the City’s motion for a protective order and by denying reconsideration. But even if the trial court erred, the City has not shown that any error was prejudicial.

A trial court’s authority to entertain a motion is a question of law that we review de novo.

Rudolph v. Empirical Rsch. Sys., Inc., 107 Wn. App. 861, 866, 28 P.3d 813 (2001). Under CR 26 (i), “[t]he court will not entertain any motion or objection . . . unless counsel have conferred with respect to the motion or objection. . . . Any motion seeking an order to compel discovery or obtain protection shall include counsel’s certification that the conference requirements of this rule have been met.” CR 26(i) is intended “to facilitate nonjudicial solutions to discovery problems by requiring the parties to conduct a conference before attempting to obtain a court order.” Clarke v. Off. of Att’y Gen., 133 Wn. App. 767, 779, 138 P.3d 144 (2006), review denied, 160 Wn.2d 1006 (2007).

In Rudolph, this court held that CR 26(i)’s language was mandatory and that “[i]f counsel for the parties have not conferred with respect to a CR 37(a) motion to compel discovery, or if such motion does not include counsel’s certification that the conference requirements were met, the trial court does not have discretion to entertain the motion.” 107 Wn. App. at 866-67. Accordingly, CR 26(i) “precludes the trial court from hearing such a motion if the conference requirements are not met.” Id. at 867.

Here, the trial court declined to address the City’s motion for a protective order because although the City certified that the parties conferred regarding the CR 30(b)(6) topics and designations, the City did not include a certification that the parties had conferred regarding the

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requests for admission at the time it filed its motion. Rather, the parties conferred about the requests for admissions after the City filed its motion, and the City filed a supplemental declaration certifying the CR 26(i) conference prior to the hearing on the motion. Accordingly, the trial court believed it did not have authority to hear the City’s motion without a certification that the parties conferred as to both issues prior to filing the motion.

Regardless of whether the trial court erred, we conclude that any error was not prejudicial.

Error without prejudice is not grounds for reversal. Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). An error is not prejudicial “‘unless it affects, or presumptively affects, the outcome of the trial.’” Saleemi v. Doctor’s Assocs., Inc., 176 Wn.2d 368, 380, 292 P.3d 108 (2013) (quoting Thomas, 99 Wn.2d at 104).

The City baldly claims that the trial court’s refusal to entertain its motion “caused manifest prejudice in both the new trial and sanction orders” because “[h]ad the court addressed the City’s motion, it must have found [the Varneys’] 50 pages of CR 30(b)(6) topics and 515 RFAs both unduly burdensome and disproportionate to the needs of this case” where the City previously produced over 19,000 pages of discovery. Br. of Appellant at 37-38 (boldface and emphasis omitted).

We are not persuaded based on the City’s conclusory statement. The City was not precluded from re-noting the motion; in fact, the City offered to re-note the motion during the hearing, and the trial court encouraged the City to do so. Instead of re-noting the motion, the City made the strategic decision to file a motion for reconsideration, which the trial court denied on June 11—before the discovery deadline on June 17.

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Further, the City does not identify, nor does the record show, how the City was prejudiced by the lack of a protective order—particularly where the City continued to object to the scope of the Varneys’ inquiries during depositions and claimed privilege to many areas of inquiry propounded by the Varneys;2 the City’s witnesses consistently stated that they did not know the answers to the Varneys’ inquiries;3 and during the July 9 deposition of Hardy, the City admitted that it did not designate a speaking agent for several topics in the Varneys’ CR 30(b)(6) witness request, despite the lack of any protective order.4 The City does nothing more than baldly claim that it was prejudiced because the trial court failed to rule on the protective order.

What the City glaringly fails to acknowledge is that because the City did not have a protective order, the City was still obligated to follow the discovery rules, but it failed to do so.

2 During Hardy’s deposition on July 9, 2024, the City objected on the basis of attorney-client privilege to several of the Varneys’ inquiries, including questions pertaining to discussions between the third-party administrator and the City at quarterly meetings, the type of information Hardy would relay between the third-party administrator and the City’s risk manager, and the reasons why the City continued to challenge Tony’s workers’ compensation claim after the jury verdict. 3 For example, during Hardy’s deposition as the City’s speaking agent, she stated that she did not know the answers to several questions, including whether the City was in possession of certain reports and how many quarterly meetings occurred with the third-party administrator in which they discussed Tony’s claim.

Also, during Patrick’s deposition on July 23, she asserted that she “ha[d]n’t formed any opinions in this case” and that she “d[id]n’t know what [she was] going to be testifying to.” CP at 4754. 4 The Varneys’ counsel addressed the City’s counsel during Hardy’s July 9 deposition: “So you haven’t designated a speaking agent of July 9th to speak to the City’s very answers to written discovery then; is that what you’re telling us?” CP at 4783. The City responded, “Correct. There’s a number of objections. And, subject to objections, no witness has been designated of which your office has been aware for probably, I think, two months.” CP at 4783.

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The City was not at liberty to unilaterally ignore the discovery rules. Therefore, even if the trial court erred, any error was not prejudicial nor the cause of any alleged prejudice. B. TRIAL COURT’S VACATION OF JURY’S VERDICT The City challenges the trial court’s findings of fact and conclusions of law related to the trial court’s CR 59(a)(9) order vacating the jury’s verdict and granting a new trial.5 The City argues that the trial court abused its discretion by granting a new trial based on findings that are not supported by substantial evidence. We agree.

1. Legal Principles “Washington courts have the inherent power to grant a new trial on the ground that substantial justice has not been done.” Henderson v. Thompson, 200 Wn.2d 417, 430, 518 P.3d 1011 (2022), cert. denied, 143 S. Ct. 2412 (2023). And, under CR 59, a trial court may grant a motion for a new trial when the rights of the moving party are materially affected because substantial justice has not been done. CR 59(a)(9); Ramey v Knorr, 130 Wn. App. 672, 686, 124 P.3d 314 (2005), review denied, 157 Wn.2d 1024 (2006). However, courts rarely grant a new trial

5 The City also contends that the trial court “improperly relied on CR 59(a)(9) because substantial evidence supports the jury’s correct verdict” and appears to assert that it was an abuse of discretion to grant a new trial where substantial evidence supported the jury’s verdict. Br. of Appellant at 39 (formatting omitted). The City argues at length that substantial evidence supports the jury’s verdict and provides legal authority to contend that “[i]f substantial evidence exists, a court abuses its discretion by granting a new trial.” Br. of Appellant at 41.

However, the City’s argument conflates CR 59(a)(9) (“[t]hat substantial justice has not been done”) with CR 59(a)(7) (“[t]hat there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law”). Because the trial court did not grant a new trial pursuant to CR 59(a)(7) and we reverse the trial court’s vacation of the jury verdict, we do not address the City’s argument that substantial evidence supported the jury’s verdict.

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under the CR 59(a)(9) catchall provision given the other broad grounds in CR 59. Millies v. LandAmerica Transnation, 185 Wn.2d 302, 319, 372 P.3d 111 (2016).

A trial court’s decision on a motion for a new trial is reviewed for abuse of discretion.

Henderson, 200 Wn.2d at 430. A trial court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010). “‘A discretionary decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.’” McCoy v. Kent Nursery, Inc., 163 Wn. App. 744, 758, 260 P.3d 967 (2011) (internal quotation marks omitted) (quoting State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008)), review denied, 173 Wn.2d 1029 (2012).

We review a trial court’s findings of fact for substantial evidence. Id. “‘Substantial evidence’ is the quantum of evidence sufficient to persuade a rational, fair-minded person the premise is true.” Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 712, 334 P.3d 116 (2014). We “‘will uphold challenged findings of fact and treat the findings as verities on appeal if the findings are supported by substantial evidence.’” In re Estate of Little, 9 Wn. App. 2d 262, 274-75, 444 P.3d 23 (quoting In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004)), review denied, 194 Wn.2d 1006 (2019). Unchallenged findings of fact are also considered verities on appeal. Alexandria Real Estate Equities Inc., Univ. of Wash., 28 Wn. App. 2d 944, 961, 539 P.3d 54 (2023), review denied, 2 Wn.3d 1031 (2024). A trial court that relies on unsupported facts or a clearly erroneous assessment of the evidence necessarily abuses its discretion. Clark v. Teng, 195 Wn. App. 482, 492, 380 P.3d 73 (2016), review denied, 187 Wn.2d 1016 (2017).

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We review both the trial court's application of facts to law and its legal conclusions de novo. Viking Bank, 183 Wn. App. at 712. “Where a conclusion of law is mislabeled as a finding of fact, we review it as a conclusion of law.” Casterline v. Roberts, 168 Wn. App. 376, 383, 284 P.3d 743 (2012).

2. Findings Related to Pre-Trial Issues a. Finding 4.i

The City challenges Finding 4.i, which states:

i. The first day of trial was scheduled to start on Monday, July 29, 2024. On Tuesday, July 23, 2024, the Defendants produced over 950 pages of discovery documents, many of which were entirely redacted or contained redactions. This occurred the very morning that the plaintiffs were scheduled to take the CR 30(b)(6)

deposition of Defendant City of Tacoma’s speaking agent, and the documents were produced less than two hours before the start of the deposition. This late production of documents, in violation of discovery rules, resulted [in] the loss of the first day of trial because that day was instead used by the Court to perform an in-camera review of those late-produced documents. Not only were plaintiffs prejudiced by having to use trial-preparation time to review this untimely document production, but they were also prejudiced by losing the first day of trial.

CP at 6224-225. Rather than arguing that this finding is unsupported by evidence in the record, the City concedes that the facts are accurate but challenges this finding based on omissions.

First, the City argues that the finding “omits the court’s prior rulings” involving specifics of whether certain documents were previously produced, properly redacted, wholly privileged, or discoverable. Br. of Appellant at 49. Second, the City argues that the finding omits that the trial court had refused to address the City’s motion for a protective order. Third, the City argues that the finding “omits the key fact that no evidence exists that [Deputy City Attorney] Cox had any actual knowledge of these documents until shortly before they were produced.” Br. of Appellant at 50-51 (emphasis omitted). However, the inquiry on appeal is whether the trial court’s findings

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are supported by substantial evidence, and the City fails to argue that Finding 4.i is not supported by substantial evidence in the record. Accordingly, the City’s challenge to the findings of fact related to the timing of the late production fails.

The City also argues that the trial court erred in finding the Varneys were prejudiced by having to review this late production. We agree. Although the Varneys were burdened by the City’s late production of documents, the Varneys never informed the trial court that they were not ready for trial. In fact, the Varneys expressly told the trial court that they were prepared for trial. And the Varneys utilized some of the late-disclosed documents during their case-in-chief, including quarterly claim status reports. Accordingly, the trial court’s finding that the Varneys were prejudiced in their trial preparation due to the late production is not supported by the record.

b. Finding 4.ii

The City also challenges Finding 4.ii, which states:

ii. The Plaintiffs were also prejudiced in their trial preparation by the Defendant’s MSJ occurring after the deadline for hearing MSJs and less than ten days before trial and by the deposition of Knowrasa Patrick on July 23, 2024 after the Defendant’s failure to timely disclose her expert opinions.

CP at 6225. The City argues that “the City properly filed its summary judgment motion on May 31, over a month before the dispositive motions cutoff (July 1).” Br. of Appellant at 51 (emphasis omitted). The City also challenges this finding because the trial court granted the City’s motion to enlarge time and because the Varneys suffered no prejudice related to Patrick.

The City is correct that it filed its summary judgment motion before the dispositive motions cutoff. But the City’s counsel, Cox, knew that she was unavailable for 22 calendar days after she filed the motion due to her vacation schedule, which interfered with her ability to argue the motion.

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Despite that knowledge, Cox chose to file the motion for summary judgment in the last possible week to meet the dispositive motions deadline. As a result, the trial court’s only available hearing date for the motion fell while Cox was unavailable. Thus, the hearing on the motion for summary judgment did not take place until July 24, 2024, five days before the start of trial.

However, the trial court’s finding that the Varneys were prejudiced by the late summary judgment motion and the second deposition of Patrick is not supported in the record. Although the Varneys were hampered due to the late setting of the motion for summary judgment, it was the trial court that allowed the late hearing on the motion for summary judgment. And although the Varneys explained that they spent trial preparation time defending against a summary judgment motion, the Varneys never informed the trial court that they were not ready for trial. Nor did the Varneys inform the trial court that they were not ready for trial because they had to depose Patrick a second time. Thus, the trial court’s finding that the Varneys were prejudiced in their trial preparation because the motion for summary judgment took place after the deadline for hearings on dispositive motions and due to the Patrick deposition is not supported by the record.

3. Findings Related to Trial Delays a. Finding 4.iv

The City challenges Finding 4.iv, which states:

iv. Trial resumed on Monday, August 12, 20[2]4, and witness testimony was completed on August 15, 2024. Testimony in plaintiffs’ case-in-chief that occurred prior to the mid-trial delay was material to the issue of liability, as it was testimony of (1) the speaking agent for the Defendant’s third-party administrator, (2) the speaking agent for the Defendant City of Tacoma, and (3) the Plaintiff Tony Varney. However, because Ms. Cox hurt her ankle on August 5, 2024 and the Court cancelled trial for the remainder of that week, the jury went six straight days without trial. The entire trial was estimated to be seven days. By the time that closing

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arguments occurred, the testimony in the plaintiffs’ case-in-chief that occurred before the six-day hiatus was ten days, fourteen days, and fifteen days old.

CP at 6225. The City challenges Finding 4.iv because three of the six days without trial included three days when trial would not have taken place—Friday, Saturday, and Sunday. The City also argues that the trial court “did not cancel trial for the remainder of that week” because no afternoon session was scheduled for Wednesday and the Varneys agreed to a two-day recess based on Cox’s injury. Br. of Appellant at 52 (emphasis omitted).

The City correctly notes that trial was not scheduled for Friday, Saturday, or Sunday. Cox tripped in the courtroom on Monday, August 5, and the trial court dismissed the jury. The next day, August 6, the trial court determined that it would recess for the rest of the week and continued the trial to the following Monday. Thus, trial resumed on Monday, August 12, six days later, of which three of those days were not scheduled to be trial days. A delay of three trial days is not uncommon. Regardless, the trial court’s recitations of trial days is supported by the record.

b. Finding 4.v

The City also challenges Finding 4.v:

v. The only reason that the trial was still going on August 15 was because (a)

the first day of trial was cancelled, due to the City’s late disclosure of over 950 pages of documents, which resulted in the Court using the first day of trial to instead perform an in[-]camera review and issue a ruling about those documents; and (2)

the delay during plaintiffs’ case-in-chief after Ms. Cox’s courtroom[]fall. None of that was the plaintiffs’ fault, but all of it significantly prejudiced the plaintiffs[’]

right to a fair trial.

CP at 6225.

The City challenges the finding that the Varneys were prejudiced in Finding 4.v because “finding prejudice from the time between the beginning of testimony and closings is manifestly

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unreasonable” and the “mere length of a trial cannot reasonably be deemed prejudicial.” Br. of Appellant at 52.

The trial court’s finding that the Varneys’ right to a fair trial was significantly prejudiced due to the one-day delay in beginning trial and the trial recess after Cox fell in the courtroom is not supported by the record. The trial court’s determination that these delays significantly prejudiced the Varneys’ right to a fair trial is untenable because these schedule adjustments only resulted in the loss of three trial days at most after Cox fell. Cox fell on Monday, August 5. On Tuesday, August 6, the trial court recessed trial for the remainder of the week. But trial was not scheduled to take place on Friday, so the only lost trial days were Tuesday, Wednesday, and Thursday. The loss of three trial days is not uncommon and would not prejudice, let alone significantly prejudice, the Varneys’ right to a fair trial. Finding 4.v is not supported by the record.

c. Finding 4.vi

The City challenges Finding 4.vi, which states:

vi. The facts spanned over an eight-year period. There were several days of witness testimony, including roughly a day-and-a-half of testimony from an expert witness, David Snell. There were twenty-seven jury instructions. There were fifty exhibits. Material trial testimony from two speaking agents and the plaintiff was ten, fourteen and fifteen days old. However, because of the trial delays, which were no fault of the plaintiffs, the Plaintiffs were provided just sixteen minutes to present closing argument. That time-constraint prejudiced plaintiffs’ ability to address the jury on the evidence and law as set forth in the jury instructions.

CP at 6226. The City contends that the facts in Finding 4.vi “cannot support vacating a jury verdict or granting a new trial.” Br. of Appellant at 53.

Although the trial court’s management of proceedings lies within its discretion, the record shows that the trial court arbitrarily imposed time constraints on closing arguments. Both parties

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faced the trial court’s arbitrary time constraints during closing arguments. Despite these time constraints, the record shows that the Varneys were still able to argue its case to the jury based on the evidence. The Varneys outlined to the jury several instances that they alleged demonstrated the City had committed abuse of process and outrage. The Varneys were also able to address the jury regarding the verdict form. Accordingly, the trial court’s finding that the time constraints on closing arguments, which the trial court imposed on the parties, prejudiced the Varneys’ ability to address the jury is not supported by the record.

4. Trial Court’s CR 59(a)(9) Conclusion in Finding 4.vii The City challenges Finding 4.vii, which states: “All of the above circumstances put together lead the court to conclude that substantial justice was not done and the plaintiffs did not have a fair trial.” CP at 6226.

Finding 4.vii provides the trial court’s legal conclusion based on its findings; thus, we review Finding 4.vii as a conclusion of law. Casterline, 168 Wn. App. at 383 (“Where a conclusion of law is mislabeled as a finding of fact, we review it as a conclusion of law.”).

The trial court’s conclusion that substantial justice was not done does not flow from its findings. Although the trial court found that the City late-produced over 950 pages of discovery,6 the Varneys informed the trial court that they were prepared for trial, and the Varneys were able to utilize the late-disclosed documents at trial. Moreover, as discussed above, the trial court’s finding that the Varneys were prejudiced in their trial preparations due to the timing of the hearing on the motion for summary judgment, which the trial court allowed, is not supported by the record.

6 Finding 4.i.

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Further, despite the Varneys having to depose Patrick again six days before trial, the Varneys maintained that they were prepared for trial. And although the trial court found that trial stopped on Monday, August 5 and resumed on Monday, August 12,7 the trial court’s finding that the Varneys were significantly prejudiced by a one-day delay in beginning trial and a three-day unplanned recess during trial is not supported by the record. Thus, the trial court’s conclusion that the Varneys were prejudiced is not supported by its findings.

Taken together, the trial court’s findings do not support the conclusion that substantial justice was not done and that the Varneys did not have a fair trial. Therefore, the trial court abused its discretion in granting a new trial. C. TRIAL COURT’S DEFAULT ORDER FOR CITY’S DISCOVERY VIOLATIONS The City also argues that the trial court abused its discretion in granting a default judgment as a sanction for its discovery violations and that the trial court’s findings related to default are not supported by substantial evidence.

Because we reverse the trial court’s order vacating the jury’s verdict finding no liability on the part of the City, we accordingly reverse the trial court’s order finding default against the City on the issue of liability as a sanction for the City’s discovery violations.8 Thus, we remand to the trial court to determine the appropriate monetary sanction for the City’s discovery violations.

7 Finding 4.iii.

8 We note that the trial court’s conclusion that default was the only effective remedy is not supported by the record. As an initial matter, as discussed above, the Varneys were not substantially prejudiced in their trial preparation; therefore, default was not an appropriate sanction. See Magana v. Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.3d 191 (2009). Further, the trial court contemplated sanctions on July 24, the day after the City’s late production of documents. However, the trial court stated that it would not grant a default. The trial court’s

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D. ATTORNEY FEES ON APPEAL Citing RAP 18.1(b), the Varneys request attorney fees on appeal.

Under RAP 18.1(a), this court may award attorney fees on appeal “[i]f applicable law grants to a party the right to recover reasonable attorney fees.” To comply with RAP 18.1, a party must devote a section of their brief to the request for attorney fees. RAP 18.1(b). Second, the party must argue and provide specific authority supporting the request for attorney fees. State v. Richardson, 177 Wn.2d 351, 366, 302 P.3d 156 (2013).

Although the Varneys devoted a sentence in their brief to the request for attorney fees, the Varneys did not provide argument explaining why they are entitled to attorney fees on appeal. Accordingly, we deny the request for attorney fees on appeal.

CONCLUSION

Even if the trial court erred by refusing to entertain the City’s motion for a protective order, any error was not prejudicial. The trial court erred in granting the Varneys’ CR 59(a)(9) motion vacate to the jury’s verdict and for a new trial. Because we uphold the jury’s verdict, which found no liability against the City, we reverse the trial court’s granting of default against the City as a sanction for the City’s discovery violations. Accordingly, we reverse the trial court’s order

findings provide no additional bases for sanctions of which the trial court was not aware on July 24 when it contemplated sanctions prior to trial. The trial court reserved ruling on the issue of sanctions until after trial, stating that it believed the Varneys were “owed something in the form of a sanction” and encouraged the Varneys to provide itemized billing statements to break down the actual cost of dealing with the late discovery when the Varneys should have been preparing for trial. 3 VRP (July 24, 2024) at 82. Nothing in the record shows a change in circumstances between July 24 when the trial court stated it would not grant a default and the time of the post-trial motion for default. Accordingly, the trial court’s determination that monetary sanctions would not have cured the prejudice to the Varneys is not supported by the record.

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granting the motion for a new trial and remand to the trial court to consider appropriate monetary sanctions for the City’s discovery violations.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Lee, J.

We concur:

Veljacic, C.J.

Cruser, J.