Karen Koehler And Edward Moore, Apps. v. The City Of Seattle, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

COMMISSIONER ERIC WATNESS, as
personal representative of the estate of No. 78819-1-I
Charleena Lyles; KAREN CLARK, as
guardian ad item on behalf of the four DIVISION ONE
minor children of decedent,
UNPUBLISHED OPINION
Plaintiffs,

V.

THE CITY OF SEATTLE, a
municipality; JASON M. ANDERSON
and STEVEN A. MCNEW, individually

Respondents,

SOLID GROUND, a Washington
nonprofit corporation,

Defendant,

KAREN KOEHLER and EDWARD
MOORE, plaintiffs’ attorneys,

Appellants. FILED: December 30, 2019

APPELWICK, C.J. — This appeal arises from a negligence suit filed on behalf

of Lyles’s estate. On June 18, 2018, Lyles was shot by two SPD officers and died

as a result of her injuries. Koehler and Moore, counsel for Lyles’s estate, filed a

motion under RCW 9.72.090, alleging that one of the officers had committed

perjury during a deposition. The motion requested that the trial court refer the

matter to the appropriate prosecuting attorney’s office. In response, the
No. 78819-1-1/2

respondents moved for CR 11 sanctions against Koehler and Moore, alleging that

the motion was not well grounded in fact or existing law, and lacked good faith

arguments. The trial court granted the respondents’ motion and imposed CR 11

sanctions. Koehler and Moore raise several issues on appeal, arguing in part that

the trial court deprived them of due process, erred in excluding its expert witness,

abused its discretion in imposing sanctions, and violated their First Amendment

rights. We affirm the imposition of sanctions, but reverse as to the trial court’s

evidentiary ruling excluding the expert.

FACTS

On June 18, 2017, Charleena Lyles called 911 to report a burglary. In

response, Seattle Police Department (SPD) officers Jason Anderson and Steven

McNew were dispatched to her home. After Anderson and McNew arrived, the

situation quickly escalated, and they shot Lyles seven times. SPD’s Force

Investigation Team (FIT) was then dispatched to the scene. Lyles died as a result

of her injuries.

During the incident, Anderson and McNew used in-car video (ICV) systems

that made an audio recording of their actions. Later that day, SPD obtained

surveillance video of the shooting from the Solid Ground Housing complex, which

maintained and controlled the video system outside Lyles’s apartment. SPD video

specialists then redacted and recoded the audio and video for public release.

FIT publicly released the video on June 19, 2017. The SPD media relations

unit uploaded the video to YouTube,1 which involved another proprietary

1 “YouTube” is a social media platform for viewing and sharing videos.

2
No. 78819-1-1/3

transcoding process. King 5 News later synchronized the audio and video,

matching the sound of gunshots to a visual of Anderson in the hall outside Lyles’s

apartment.

FIT interviewed Anderson on June 20 and 22, 2017. During the interview,

Anderson described firing his weapon toward Lyles from standing in the doorway

of her apartment. Before doing so, he stated that Lyles had tried to stab him,

stepped back into her living room, and “proceeded to come around

the . . . peninsula of the kitchen towards Officer McNew, who did not have an

escape route.” He also stated that the door to her apartment was closed.

On September 8, 2017, Commissioner Eric Watness, as personal

representative of Lyles’s estate, and Karen Clark, as guardian ad litem of her four

minor children, sued Anderson and McNew for negligence and wrongful death.2

They later added the City of Seattle and Solid Ground as defendants.

On February 2, 2018, the trial court entered a stipulated protective order

regarding discovery materials. With regard to deposition testimony, paragraph

5.2(b) of the order stated,

[T]he parties must identify on the record, during the deposition, all
protected testimony, without prejudice to their right to so designate
other testimony after reviewing the transcript. Any party or non-party
may, within thirty (30) days after receiving a deposition transcript,
designate portions of the transcript, or exhibits thereto, as
confidential.

The parties do not provide a citation to the original or amended complaints,
2
and we were not able to locate them in the record.

3
No. 78819-1 -114

It also provided that ‘disclosure or discovery material that qualifies for protection

under this agreement must be clearly so designated before or when the material

is disclosed or produced.”

Karen Koehler, counsel for the plaintiffs, deposed Anderson on February 13

and April 26, 2018. During the April 26 deposition, Koehler focused her questions

on whether Anderson was inside Lyles’s apartment at the time of the shooting.

She repeatedly asked him about his position relative to the door to Lyles’s

apartment and the hallway outside her apartment when the shots were fired:

Q Well, looking at the transcript, did you step out of the door
before or after the shots were fired?
A After-

Q (By Ms. Koehler) So if we go to after the shots were fired, did
you step out of the door before Officer McNew said, Suspect
is down, we need officers on-scene.
A I’m sorry. I don’t I don’t know exactly at what point I stepped
--

outside of the door other than it was after the shots were fired.
I don’t know if it’s my memory is not clear of exactly what
--

point.
Q How do you know that you stepped out of the door after the
shots were fired?
A I remember opening the door, opening the door with the
thought of how do we get the children out of the apartment,
trying to assess how we’re going to do that safely.
In describing the moments before the shooting, Anderson also stated, “I

sidestepped to my left slightly to be in front of the closed door of the apartment,

trying to create more distance and gain some more time to assess what was going

on.” Koehler stated in a declaration that, during the deposition she told Anderson

4
No. 78819-1 -1/5

that it “looked like he was shooting in the hail,” based on the surveillance video.3

Anderson did not change his testimony based on her observation.

After Anderson’s deposition, Koehier asked her co-counsel, Edward Moore,

to have the redacted ICV audio recording and hallway surveillance video
synchronized by an expert. Dr. Wilson “Toby” Hayes, a biomechanical engineer,

completed this synchronization on May 8, 2018. He concluded,

7. It is my opinion, on a more probable than not basis, that
the synchronized video is an accurate depiction of what occurred
between Charleena Lyles and Officers McNew and Anderson.
8. The synchronized video and audio accurately depict
Officer Anderson’s actions at the time the gunshots are heard. The
synchronized video and audio accurately depict Officer Anderson in
the open doorway and the hallway at the only time that gunshots can
be heard.
Koehler received the synchronized videos on May 16, and asked her associate to

locate the unredacted videos on May 17.

Based on the synchronized videos, Koehler grew concerned that Anderson

had committed perjury during his deposition when he stated that he had his back

to a closed door inside Lyles’s apartment at the time of the shooting. She

considered writing a letter to the prosecuting attorney regarding this concern:

I wrote the letter on May 17, 2018. It was directed to the applicable
public officials and requested not only that the matter be forwarded
to the prosecutor, but that the FIT, [Force Review Board (F RB)], [and
Crime Scene Investigation Unit (CSI)] investigations all be reopened.
I then sat on the letter on advice of Mr. Moore as we were not sure if
it was the correct approach to take. Most importantly, 30 days had
not run regarding confidentiality of the deposition of Officer Anderson
and the letter did not refer to the deposition as a result. We also
wanted to make sure that all of the video issues were resolved. I
communicated also on May 17, that I needed to be exactly 100%

~ The referenced portion of the Anderson deposition is not in the record.

5
No. 78819-1-1/6

sure what was synchronized and that the letter would not be sent
until I was 1 00% positive the officer was shooting in the hall. I had
watched that video 20 times and it looked beyond doubt but I wanted
to be sure. I asked Ms. Nguyen to continue to follow-up regarding
the unredacted videos so those could also be synchronized.
(Footnote omitted.) She did not have the unredacted videos synchronized.

A few weeks later, Koehler decided that the best course of action would be

to file a motion under RCW 9.72.090:

I re-read all of the perjury statutes. This is when I zeroed in on the
language of RCW 9.72.090. I read it over and over. This statute
provided a mechanism for referring the charge of perjury to the
prosecutor. The difference was that it empowered the judge to do
so. This made enormous sense to me. Instead of writing a letter
and asking the prosecutor to find perjury, I could apply directly to the
court. This felt like a better and more reasonable course of action to
take.
On June 18, 2018, the one year anniversary of Lyles’s death, the appellants filed

a motion for a finding that Anderson committed perjury, and for transmittal to the

prosecuting attorney pursuant to RCW 9.72.090. They did not request that the

motion be heard with oral argument. Both Koehler and Moore signed the motion.

The plaintiffs filed the motion at 1:26 p.m. Koehler provided a copy of the

motion to the media after filing. By 1:55 p.m., Alex Rozier of King 5 News tweeted

a screen capture of the motion with the hashtag, “#BREAKING.” The motion had

not yet been served. At approximately 2:03 p.m., a paralegal at Koehier and

Moore’s law firm began the steps to electronically serve the motion on the

defendants. That day, Koehler retweeted Rozier’s post with the hashtags

“#sàyhername” and “#CharleenaLyles.” She also retweeted several news articles

regarding the case. And, she tweeted, “One year ago Charleena Lyles was shot

6
No. 78819-1-1/7

to death in her own home by the police. Today we honor her memory and children

by relentlessly fighting to uncover the truth of what happened.”

On June 22, 2018, in response to the plaintiffs’ motion, the defendants filed

a motion for CR 11 sanctions, and a motion to strike inadmissible materials. They

provided notice of the motion to Koehler and Moore the day before. In the motion,

they alleged that Koehler and Moore

[vjiolate[d] CR 11 by filing a motion that is not well grounded in fact
or existing law and lacks good faith arguments. Aside from its true
purpose of garnering media attention for Ms. Koehier and Mr. Moore,
this motion is intended to harass Defendants, needlessly increase
defense costs in the subject litigation, and materially prejudice this
proceeding by publicly attacking the character and credibility of a
party.
They requested oral argument, but did not note the motion.

On June 25, the plaintiffs filed a reply, arguing in part that the defendants’

motion violated King County Local Rule (KCLR) 7(b)(4)(A) and (5)(A), would

prejudice them and their counsel, and was not noted. The plaintiffs did not request

oral argument in their reply.

On June 26, 2018, the trial court denied the plaintiffs’ motion and granted

the defendants’ motions without oral argument. The plaintiffs then filed a motion

for reconsideration. Again, they did not request oral argument. They attached

several declarations to their motion, including declarations from attorneys James

Lobsenz and Peter Jarvis. Lobsenz and Jarvis argued in part that the defendants’

assertion that the plaintiffs’ motion lacked legal support was erroneous.

On July 26, 2018, the trial court entered another order granting the

defendants’ motions. It found that “Ms. Koehler and Mr. Moore’s motion has no

7
No. 78819-1-1/8

basis in existing law or the facts of this case.” And, it found that “[t]he motion lacks

good faith arguments and serves no purpose other than to harass Defendants,

generate media attention, inflame the public, and materially prejudice these

proceedings and defendant’s right to a fair trial.” It stated that it had considered

the declarations the plaintiffs attached to their motion for reconsideration. It also

ordered Koehler and Moore to pay the defendants “reasonable fees and expenses

in the amount of $24,469.68.”

Koehler and Moore appeal.

DISCUSSION

The appellants4 make four main arguments. First, they argue that the trial

court deprived them of due process by ruling on the motion for sanctions without

affording them a reasonable opportunity to respond. Second, they argue that the

trial court abused its discretion in granting the motion for CR 11 sanctions. In doing

so, they contend that (1) certain factual findings were not supported by substantial

evidence, and (2) Koehler’s interactions with the media did not violate RPC 3.6.

Third, they argue that Hayes’s declaration satisfied ER 702 and Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923). Fourth, they argue that the trial court’s orders

violated their First Amendment rights and prejudiced their client’s right of

representation.5

~ We refer to Koehier and Moore collectively as “the appellants.”
~ The appellants also argue that they complied with the discovery rules with
regard to disclosing Hayes as an expert. It is unclear if their argument is meant to
refer to a conclusion drawn by the trial court, because they provide no citation to
the record. In fact, their entire argument includes no citations to the record or legal
authority, contrary to RAP 10.3(a)(6). As a result, we do not consider this
argument.

8
No. 78819-1-1/9

I. Due Process

The appellants argue first that the trial court deprived them of due process

by ruling on the motion for sanctions without affording them a reasonable

opportunity to respond.

CR 11 procedures must comport with due process requirements. Bryant v.

Joseph Tree, Inc., 119 Wn.2d 210, 224, 829 P.2d 1099 (1992). “Due process

requires notice and an opportunity to be heard before a governmental deprivation

of a property interest.” k~. As a result, a party seeking CR 11 sanctions should

“give notice to the court and the offending party promptly upon discovering a basis

for doing so.” ki. We review questions of law, including constitutional due process

guaranties, de novo. State v. Derenoff, 182 Wn. App. 458, 465, 332 P.3d 1001

(2014).

The appellants argue that “the trial judge failed to notify Plaintiff’s counsel

that she was considering sanctions against them.” On June 21, 2018, counsel for

the respondents6 e-mailed the appellants a copy of their sanctions motion. Koehler

responded to the e-mail that same day. The respondents filed the motion for

sanctions on June 22, and the appellants filed a reply on June 25. The trial court

granted the motion on June 26. Accordingly, the appellants were on notice that

the trial court would be considering sanctions. Although the respondents also

requested oral argument, the trial court did not order oral argument before

imposing sanctions. Notably, the appellants never requested oral argument.

We refer collectively to the City of Seattle, Anderson, and McNew as “the
6
respondents.”

9
No. 78819-1-1/10

The respondents compare this case to Bryant. There, the State Supreme

Court held that Balm’s due process rights were not violated when Rosenberg and

Koch requested CR 11 sanctions in their appellants’ reply brief, and cited Bolin’s

motion to disqualify as a basis for sanctions. Bryant, 119 Wn.2d at 224. The court

noted that Rosenberg and Koch “provided Bolin with notice prior to oral argument

that they were seeking CR 11 sanctions.” Id. And, at oral argument, “Bolin had

the opportunity to be heard on the issue.” j.çj~

The respondents here requested CR 11 sanctions in response to the

appellants’ perjury motion. The basis for the respondents’ sanctions request was

clear. The respondents argued that the appellants’ perjury motion was “not well

grounded in fact or existing law and lack[ed] good faith arguments.” Thus, similar

to Bryant, they made their request in a responsive brief. The appellants received

a copy of the motion for sanctions a day before it was filed. They responded to the

motion for sanctions four days later in their reply brief. They objected to the motion

on procedural grounds.

The appellants had another opportunity to be heard on the issue in their

motion for reconsideration. They attached several declarations in support of the

motion. The trial court considered the declarations before, again, imposing CR 11

sanctions.

The appellants contend that the respondents violated CR 7 and KCLR 7.

Specifically, they argue that because the respondents did not serve the motion for

sanctions at least six days before it was considered, did not note the motion, and

did not file a notice to shorten time, they violated KCLR 7(b)(4)(A), 7(b)(5)(A), and

10
No. 78819-1-I/il

7(b)(10). Assuming without deciding that these rules apply on these facts, the

appellants have not demonstrated that they were prejudiced in their ability to

defend against the motion.

The trial court did not deprive the appellants of due process.7

II. CR11 Sanctions

The appellants argue second that the trial court abused its discretion in

granting the respondents’ request for CR 11 sanctions. They also challenge

several of the trial court’s findings of fact, and its conclusion that Koehler violated

RPC 3.6.

We review a trial court’s decision to impose or deny CR ii sanctions for an

abuse of discretion. Bldg. lndus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720,

745, 218 P.3d 196 (2009). The trial court abuses its discretion where its conclusion

was the result of an exercise of discretion that was manifestly unreasonable or

based on untenable grounds or reasons. Skimming v. Boxer, 119 Wn. App. 748,

754, 82 P.3d 707 (2004).

A. Substantial Evidence

The appellants argue that three of the trial court’s factual findings are not

supported by substantial evidence.

~ The appellants note that it is “unclear whether the judge ever considered
(or ruled upon) [the motion for reconsideration].” Although the second order
imposing sanctions states that the trial court considered the declarations attached
to the appellants’ motion for reconsideration, it does not explicitly deny that motion.
Still, because the court considered those declarations, we construe the order as
denying the motion.

ii
No. 78819-1-1112

This court reviews the trial court’s findings of fact for substantial evidence.

Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010). Substantial

evidence is that which would persuade a fair-minded, rational person of the

declared premise. ~ A reviewing court will not disturb findings of fact that are

supported by substantial evidence, even if there is conflicting evidence. j~

Unchallenged findings are verities on appeal. j~ This court may affirm on any

basis supported by the evidence. Ladenburq v. Campbell, 56 Wn. App. 701, 703,

784 P.2d 1306 (1990).

First, the appellants state that “[respondents’] counsel accused Mr. Moore

of an intent to interact with the press,” yet “there is no evidence to support this

contention.” They assert that “Mr. Moore had no interaction whatsoever with the

press regarding the underlying motion.”

The trial court found that “Ms. Koehier and Mr. Moore, or someone acting

on their behalf, intentionally provided or alerted the media to the subject motion

before serving Defendants.” The plaintiffs filed the motion on June 18 at 1:26 p.m.

By 1:55 p.m., before the respondents had been served, Rozier of King 5 News

tweeted a screen capture of the motion. There is no evidence to suggest that

someone outside of Koehler and Moore’s firm had possession of the motion before

it was provided to the media.8 And, it is undisputed that the media had possession

of it before it was served on the respondents. Koehler admits that she provided a

copy of the motion to the media after filing. She does not specify when she did.

8 There is no suggestion or evidence that employees at the King County
Superior Court Clerk’s Office provided copies of the motion to the media.

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No. 78819-1-1/13

Moore states that he had “no role whatsoever in the press interaction regarding

the perjury motion.” Even if Moore himself did not provide a copy of the motion to

the media, Koehler and Moore are the two attorneys of record on the motion.

Substantial evidence supports the trial court’s finding.

Second, the appellants contend that it was error for the trial court to

conclude that “[appellants’] counsel had violated its protective order regarding the

dissemination to the media.”

The trial court found that “Ms. Koehier and Mr. Moore filed and disseminated

to the public portions of Officer Anderson’s video deposition before the time period

for confidential designations had passed under this Court’s Agreed Protective

Order.” The appellants attached portions of the transcript from Anderson’s April

26, 2018 deposition to their perjury motion, along with corresponding video. Under

the stipulated protective order, each party had 30 days from the date of receiving

the transcript to designate portions of the transcript or exhibits thereto as

confidential.

The trial court found that Anderson’s counsel received the deposition video

on May 29, 2018, and, as a result, had until June 28 to make confidential

designations to the video. The appellants do not assign error to this finding of fact.

Unchallenged findings of fact are verities on appeal. In re Estate of Jones, 152

Wn.2d 1, 8, 93 P.3d 147 (2004). The appellants filed the motion with portions of

the transcript and video on June 18, 10 days before the June 28 deadline. Thus,

Anderson had 10 more days to designate portions of the transcript or exhibits

thereto as confidential. Deposition transcripts were treated as confidential until the

13
No. 78819-1-1114

end of the 30 day period for making designations. As a result, substantial evidence

supports the finding that the appellants violated the stipulated protective order by

attaching portions of the deposition transcript and video to their motion.

Third, the appellants object to the trial court’s finding that they filed the

motion to garner media attention. The trial court found that the appellants “filed a

baseless motion, lacking any support from the factual record or existing law. . . as

a means of garnering media attention.”

The appellants filed the perjury motion on June 18, 2018, the one year

anniversary of Lyles’s death. The media had a copy of the motion before it was

served on the respondents. Koehier admits that she provided a copy to the media.

After Rozier of King 5 News tweeted a screen capture of the motion, Koehler

retweeted his post with the hashtags “#sayhername” and “#CharleenaLyles.” She

also retweeted several news articles regarding the case. And, she tweeted, “One

year ago Charleena Lyles was shot to death in her own home by the police. Today

we honor her memory and children by relentlessly fighting to uncover the truth of

what happened.” Based on these facts, substantial evidence supports the finding

that the appellants filed the motion to garner media attention.

B. RPC 3.6

The appellants contend that Koehler did not violate RPC 3.6, and the trial

court erred in finding that she did. They assert that her interactions fell within the

provisions of RPC 3.6(b).

The trial court found that “Koehler’s subsequent tweets/retweets of various

news articles stand as extrajudicial statements of a party’s credibility, character,

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No. 78819-1 -1/15

and reputation in violation of RPC 3.6. Such comments are materially prejudicial

in light of the ongoing litigation.” “[W]hether a given set of facts establish an RPC

violation is a question of law.” LK Operating, LLC v. Collection Grp., LLC, 181

Wn.2d 48, 68, 331 P.3d 1147 (2014). This court reviews questions of law de novo.

Stone v. Sw. Suburban Sewer Dist., 116 Wn. App. 434, 438, 65 P.3d 1230 (2003).

RPC 3.6(a) provides,

A lawyer who is participating or has participated in the investigation
or litigation of a matter shall not make an extrajudicial statement that
the lawyer knows or reasonably should know will be disseminated by
means of public communication and will have a substantial likelihood
of materially prejudicing an adjudicative proceeding in the matter.
Under RPC 3.6(b),

Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved, and, except when
prohibited by law, the identity of the persons involved;

(2) information contained in the public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation.
The appellants argue that the information Koehler retweeted to the media

specifically falls under the safe harbor provisions of RPC 3.6(b). They note that

the “information was contained in a public record — in this case the court filings and

pleadings.” And, they state that “the trial court’s orders do not establish that there

is a substantial likelihood that the trial would be materially prejudiced, particularly

when the case is still in the discovery phase and trial is still months away.”

15
No. 78819-1-1/16

To support their argument that Koehler violated RPC 3.6, the respondents

cite comment 5 to the rule, which provides,

There are, on the other hand, certain subjects that are more likely
than not to have a material prejudicial effect on a proceeding,
particularly when they refer to a civil matter triable to a jury, a criminal
matter, or any other proceeding that could result in incarceration.
These subjects relate to:

(1) the character, credibility, reputation or criminal record of a
party, suspect in a criminal investigation or witness, or the identity of
a witness, or the expected testimony of a party or witness.
The perjury motion became a part of the court record when it was filed on

June 18 at 1:55 p.m. GR 31(c)(4). At this point, the public could access it. CR

31(d)(1). There is no evidence to suggest that the media had a copy of the motion

before it was filed. But, the deposition referenced in the motion was covered by a

protective order. Portions of the deposition transcript and video were released 10

days before the deadline to designate any portion as confidential. As a result,

Koehler’s tweets about the motion were not within the safe harbor of RPC 3.6(b)(2)

(allowing attorneys to state information in the public record).

Comment 5 to RPC 3.6 notes that statements about the character,

credibility, or reputation of a party in reference to a civil matter triable by a jury are

more likely than not to have a prejudicial effect on that proceeding. The plaintiffs

alleged in their motion that Anderson had committed perjury during a deposition.

They failed to serve the motion on the respondents before the media was provided

with a copy. Thus, the respondents were unable to prepare a response, let alone

have an opportunity to respond, before the media began posting about it.

16
No. 78819-1-1/17

Accordingly, Koehier reasonably should have known that her conduct would have

a substantial likelihood of materially prejudicing the proceedings in this case.

The trial court did not err in determining that Koehler’s interactions with the

media violated RPC 3.6. However, this court is not a disciplinary body, and we are

not concluding that Koehler violated RPC 3.6 in the context of a disciplinary

proceeding. Rather, this conclusion is relevant to whether Koehler filed the motion

for an improper purpose under CR 11.

C. CR11

The appellants argue that the trial court abused its discretion in granting the

respondents’ request for CR 11 sanctions. CR 11(a) states,

The signature of a party or of an attorney constitutes a certificate by
that party or attorney that the party or attorney has read the pleading,
motion, or legal memorandum, and that to the best of the party’s or
attorney’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances: (1) it is well grounded in fact;
(2) it is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law or the
establishment of new law; (3) it is not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation; and (4) the denials of
factual contentions are warranted on the evidence or, if specifically
so identified, are reasonably based on a lack of information or belief.
Where a party or attorney violates this rule, the court may impose appropriate

sanctions upon the party or person who signed the pleading, motion, or legal

memorandum, or both. k~.

CR 11 envisions two violations of the rule: filings that are not well grounded

in fact and warranted by law, and filings that are made for an improper purpose.

Bryant, 119 Wn.2d at 217. Before imposing CR11 sanctions fora baseless filing,

17
No. 78819-1-1/18

the court must find that the attorney failed to conduct a reasonable inquiry into the

factual and legal basis of the claim. j.ç~ at 220. Courts use an objective standard

in determining whether the attorney engaged in an appropriate inquiry. Stiles v.

Kearney, 168 Wn. App. 250, 261-62, 277 P.3d 9 (2012). The court must make

findings that specify the actionable conduct to impose CR 11 sanctions for a

baseless complaint. Id. at 262. Namely, the court must make a finding that either

(1) the claim was not grounded in fact or law and the attorney failed to perform a

reasonable inquiry into the law or facts, or (2) the filing was made for an improper

purpose. Biqgs v. Vail, 124 Wn.2d 193, 201, 876 P.2d 448 (1994).

1. Well Grounded in Fact or Law

The appellants argue first that the perjury motion was supported by the

factual record. The appellants alleged in the motion that “false statements made

by Jason Anderson in his deposition support a charge of first degree perjury under

RCW 9A.72.020.”

To prove perjury in a criminal case, the State must meet strict requirements

of proof. State v. Olson, 92 Wn.2d 134, 136, 594 P.2d 1337 (1979). First, it must

present “[t]he testimony of at least one credible witness which is positive and

directly contradictory of the defendant’s oath.” k~. Second, it must present

“[a]nother such direct witness or independent evidence of corroborating

circumstances of such a character as clearly to turn the scale and overcome the

oath of the defendant and the legal presumption of his innocence.” jçj. “[T]he

questions and answers which support the allegation must demonstrate both that

the defendant was fully aware of the actual meaning behind the examiner’s

18
No. 78819-1-1/19

questions and that the defendant knew his answers were not the truth.” State v.

Stump, 73 Wn. App. 625, 628, 870 P.2d 333 (1994).

The appellants point out that “Anderson consistently and repeatedly

testified that he shot Charleena Lyles while [he] was backed up against a closed

door.” The respondents do not dispute this. And, McNew’s deposition testimony

did not contradict Anderson’s testimony. Rather, he stated that he did not recall

seeing him before shooting Lyles.

The appellants note that the diagram prepared in the CSI investigation did

not show Anderson inside the apartment during the time of the shooting. This is

true, but the diagram did not show him outside the apartment either. It omitted him

entirely even though it is undisputed he was present at the scene. The CSI

diagram does not positively and directly contradict Anderson’s testimony that he

shot Lyles from the doorway of her apartment while the door was closed.

To determine where Anderson was at the time of the shooting, the

appellants hired Hayes to synchronize the hallway surveillance video and the audio

from the officers’ ICV systems. The synchronized video depicted “Anderson in the

open doorway and the hallway at the only time that gunshots can be heard.” In

light of this discovery, the appellants filed their perjury motion.

But, the only evidence the appellants cite that contradicts Anderson’s

testimony is the synchronized video. Even if the video constitutes evidence that is

“positive and directly contradictory” of Anderson’s oath, the appellants cite no

corroborating evidence “of such a character as clearly to turn the scale and

19
No. 78819-1-1120

overcome the oath of the defendant.” Olson, 92 Wn.2d at 136. This is required to

prove perjury. ~

Anderson’s consistent testimony suggests that he firmly believed that the

door was shut behind him during the shooting. Even if the synchronized video

contradicted this testimony, it does not show that Anderson knew his answers were

false. To prove perjury, the questions and answers supporting the allegation must

demonstrate that “the defendant knew his answers were not the truth.” Stump, 73

Wn. App. at 628. The video does not demonstrate this. Accordingly, the trial court

did not abuse its discretion in determining that the perjury motion was not well

grounded in fact, and the appellants failed to conduct a reasonable inquiry into its

factual basis.

The appellants argue second that the motion was supported by existing law.

They assert that they filed their motion “under a statute that is currently the law

and has never been overturned.” They also state that “[t]he absence of case law

on this statute does not lend credence to [respondents’] assertion that the

[appellants’] motion is legally unsupportable.” In fact, they argue that “seeking

sanctions based on unclear statutes or unsettled questions of law [is] inappropriate

precisely because the chilling effect is too severe.”

The appellants filed their motion under RCW 9.72.090. They argued that,

under this statute, the trial court could order Anderson to appear to answer a

perjury charge, and then refer the matter to a prosecuting attorney.

20
No. 78819-1 -1/21

RCW 9.72.090 provides,

Whenever it shall appear probable to a judge, magistrate, or other
officer lawfully authorized to conduct any hearing, proceeding or
investigation, that a person who has testified before such judge,
magistrate, or officer has committed perjury in any testimony so
given, or offered any false evidence, he or she may, by order or
process for that purpose, immediately commit such person to jail or
take a recognizance for such person’s appearance to answer such
charge. In such case such judge, magistrate, or officer may detain
any book, paper, document, record or other instrument produced
before him or her or direct it to be delivered to the prosecuting
attorney.
We review questions of statutory interpretation de novo. City of Spokane v.

Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006). Our fundamental

objective in interpreting a statute is to ascertain and carry out the legislature’s

intent. Smith v. Moran, Windes &Wonq, PLLC, 145Wn. App. 459, 463, 187 P.3d

275 (2008). Where the meaning of a statute is plain on its face, we give effect to

the plain meaning. Id. If a statute is ambiguous, we look to outside sources, such

as legislative history, to determine legislative intent. k~. at 463-64. We will not

interpret a statute in such a way as to render any portion meaningless or that

results in strained meanings or absurd consequences. k1. at 464.

It is apparent from the statute’s plain language that its purpose is to allow

the trial court to protect the integrity of proceedings before it. The statute

authorizes a judge or other officer to act upon evidence presented at a hearing that

a person has committed perjury or offered false evidence. RCW 9.72.090.

Anderson had not testified before the trial court or submitted other evidence at the

time the motion was made. The statute contemplates referral when the perjury

was committed in a hearing in a judicial officer’s presence. j~ (allowing a judge to

21
No. 78819-1-1/22

immediately commit to jail “a person who has testified before such judge [and] has

committed perjury in any testimony”). That was not the case here.

The appellants’ motion attempted to initiate a hearing and provide

competing evidence that would establish perjury in order to obtain a referral for

prosecution. Nothing in RCW 9.72.090 suggests that a party cannot call alleged

perjury to the trial court’s attention. But, it does not invite one party to set up

another to refer for prosecution. Rather, it allows a judicial officer to make a referral

of what that officer has witnessed as a means of deterring and sanctioning perjury.

Notably, the statute is not an evidentiary rule. If a party wishes to challenge

the introduction of certain evidence on the basis that it is perjured testimony, that

party may file a motion in limine to exclude that evidence. See Fenimore v. Donald

M. Drake Const. Co., 87 Wn.2d 85, 91, 549 P.2d 483 (1976) (Holding that a trial

court should grant a motion in limine if the motion “describes the evidence which

is sought to be excluded with sufficient specificity to enable the trial court to

determine that it is clearly inadmissible under the issues as drawn . . . and if the

evidence is so prejudicial in its nature that the moving party should be spared the

necessity of calling attention to it by objecting” to it at trial.). RCW 9.72.090 does

not contemplate a party bringing a motion under the statute as a means of

excluding evidence. Here, the appellants used RCW 9.72.090 as a sword to

exclude evidence not yet presented to the trial court. This was not a proper use of

the statute.

The appellants argue that they should not be sanctioned “for filing a novel

motion — and seeking involvement of the superior court — even under these

22
No. 78819-1-1123

unusual circumstances.” But, they fail to explain how their decision to file the

motion under ROW 9.72.090 aligns in any way with the clear language of the

statute. No authority supports their action. It was novel, but it was also meritless.

Accordingly, the trial court did not abuse its discretion in finding that the perjury

motion is not supported by existing law, and the appellants failed to conduct a

reasonable inquiry into the law.

2. Improper Purpose

The appellants argue next that the motion was not brought for an improper

purpose. They explain that “{njeither Ms. Koehler nor Mr. Moore sought the perjury

ruling for any other reason other than the belief that a crime had been committed.”

While they concede that the motion was a “novel use of the statute,” they assert

that “the unique or atypical nature of the motion does not suggest an improper

purpose.”

The appellants contend that a finding of improper purpose must be based

on “evidence of bad intent.” They rely on In re Cooke, 93 Wn. App. 526, 969 P.2d

127 (1999). There, this court affirmed the trial court’s finding that a statement of

issues was not well grounded in fact and was interposed for improper purposes,

including harassment of an opposing party. j4~. at 529. The court noted that

“Cooke failed to produce any evidence to support the assertions outlined in the

statement of issues, despite extensive discovery.” j.çj~ It also found that Cooke

“threatened to destroy Burgner and force her to incur substantial legal costs.” j4~

It held, “This evidence amply supports the court’s award of fees.” ki.

23
No. 78819-1-1124

Here, the trial court’s finding of an improper purpose included not just the

purpose of harassment, but of “generat[ing] media attention, inflam[ingj the public,

and materially prejudic[ingj these proceedings.” The perjury motion was filed on

June 18, 2018, the one year anniversary of Lyles’s death. The media had a copy

of the motion before it was served on the respondents. Koehler admits that she

provided a copy to the media. She retweeted a screen capture of the motion by a

member of the media with the hashtags “#sayhername” and “#CharleenaLyles.”

She retweeted news articles from three news outlets regarding the case. And, she

tweeted, “One year ago Charleena Lyles was shot to death in her own home by

the police. Today we honor her memory and children by relentlessly fighting to

uncover the truth of what happened.”

Also, as established above, the appellants filed the motion and provided it

to the media in violation of the stipulated protective order. They filed the motion

on June 18, even though Anderson’s counsel had until June 28 to make

confidential designations to the deposition video. Nowhere is there any

explanation why the credibility attack or perjury claim was so urgent that it could

not have been raised in due course at trial when the evidence was presented.

Under these facts, the trial court did not abuse its discretion in finding that the

motion was filed for an improper purpose.9

~ The appellants also contend that the trial court’s findings are insufficient
to impose sanctions. As stated above, the trial court must make findings that
specify the actionable conduct to impose CR 11 sanctions for a baseless
complaint. Stiles, 168 Wn. App. at 262. Namely, it must make a finding that either
(1) the claim was not grounded in fact or law and the attorney failed to perform a
reasonable inquiry into the law or facts, or (2) the filing was made for an improper
purpose. Biggs, 124 Wn.2d at 201. The trial found that “Ms. Koehler and Mr.

24
No. 78819-1-1/25

III. ER7O2andFrye

As noted above, even if Hayes’s declaration and video were improperly

excluded, the evidence was not necessary to evaluate the CR 11 sanctions. It is

nonetheless an issue that merits review, because the ruling has implications for

the trial.

The appellants argue that Hayes’s declaration respecting his synchronized

video of the shooting satisfied the requirements of ER 702 and Frye. The

respondents moved to strike Hayes’s synchronized video, along with his

declaration, under ER 702 and Frye.1° Hayes concluded in his declaration that

“[t]he synchronized video and audio accurately depict Officer Anderson in the open

doorway of the apartment and the hallway at the only time that gunshots can be

heard.” The trial court found that ‘Hayes’[s] synchronization video, Ex. 10 to Ms.

Koehler’s declaration, is not reliable or credible expert evidence meeting the

requirements of Frye or ER 702.” As a result, it granted the respondents’ motion

to strike.

Moore’s motion has no basis in existing law or the facts of this case,” and that the
motion “lacks good faith arguments and serves no purpose other than to harass
Defendants, generate media attention, inflame the public, and materially prejudice
these proceedings and defendant’s right to a fair trial.” These findings provide a
proper inference and are sufficient.
10 It is unclear if the respondents intended to strike this evidence only in the
context of the appellants’ perjury motion, or intended to strike it from the trial record
as a whole. The question of its admissibility is separate from the issue of CR 11
sanctions. Accordingly, we construe the respondents’ motion as a motion to strike
the evidence from the trial record.

25
No. 78819-1-1/26

“Under Frye, the primary goal is to determine whether the evidence offered

is based on established scientific methodology.” State v. DeJesus, 7 Wn. App. 2d

849, 859-60, 436 P.3d 834, review denied, 193 Wn.2d 1024 (2019). To do so, the

court considers “(1) whether the underlying theory is generally accepted in the

scientific community and (2) whether there are techniques, experiments, or studies

utilizing that theory which are capable of producing reliable results and are

generally accepted in the scientific community.” State v. Riker, 123 Wn.2d 351,

359, 869 P.2d 43(1994). This court reviews questions of admissibility under Frye

de novo. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d

857 (2011).

A trial court must exclude expert testimony involving scientific evidence

unless it satisfies ER 702. L.M. v. Hamilton, 193 Wn.2d 113, 134, 436 P.3d 803

(2019). “Expert testimony satisfies ER 702 if (1) ‘the witness qualifies as an

expert,’ and (2) ‘the testimony will assist the trier of fact.” j~ (quoting Lakey v.

Puget Sound Energy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013)). “Awitness

may qualify as an expert ‘by knowledge, skill, experience, training, or education.”

j~ at 135 (quoting ER 702). “An expert may not testify about information outside
his area of expertise.” In re Marriage of Katare, 175 Wn.2d 23, 38, 283 P.3d 546

(2012). This court reviews ER 702 challenges for abuse of discretion. L.M., 193

Wn.2d at 118.

In their motion, the respondents argued that Hayes is not a “video analysis

expert,” and “his own website fails to identify video analysis or synchronization as

an area of expertise.” They pointed out that Hayes did not use original footage in

26
No. 78819-1 -1/27

creating the video, “but conducted his analysis via the redacted and publicly

released video created by SPD.” They also cited a declaration by Travis Smith, a

video specialist employed by SPD. In his declaration, Smith explained the

problems with using a redacted video to conduct such a synchronization:

In simple terms, using the redacted video file for a forensic
comparison is similar to comparing a photocopy of a photocopy to
the original image. The original videos were processed for redaction
and conformed to fit one video format, which included changes in
frame size, frame rate, and file formats, converting or processing,
and then redacting, transcoding, and exporting for public release at
the request of our media relations unit, who in turn uploaded it to
[YouTube,J which includes another proprietary transcoding process.
Each of these steps is a figurative “photocopy” of the original video
file.
He further explained,

{T]he change in the fundamental traits of the original video through
the process of re-encoding multiple times (photocopies of
photocopies) alters the integrity of the video in terms of forensic
analysis, because of changes in frame rates, frame size, and the loss
or addition of video information created in the transcoding process
and encoding settings in general. A better way to analyze is to use
the original footage in the analysis and synchronization of video and
audio, even still with the existence of many variables.
In striking the video and declaration, the trial court found,

Mr. Hayes is not a video analyst. The synchronization authored by
Mr. Hayes and offered to this Court did not utilize original audio or
video files. Instead, Mr. Hayes used redacted video and audio files
from the publicly released video created by SPD. At this stage in the
proceedings, the court does not find Mr. Hayes’[s] methods to be
reasonable or reliable.
First, Hayes described his methodology in synchronizing the audio and

video files:

AVS Video Editor 7.4. was used to synchronize the video and
. .

audio clips that were produced by the City of Seattle in discovery.

27
No. 78819-1 -1/28

Specifically, audio and video files were manually synced by matching
the sound from the dash cam and the ICV microphones. The
frequency of the specific sound used to locate the synchronization
point can be graphically displayed and the “soundprint” can be
matched for each recording to be synchronized. Typically, we look
for additional sounds that match in frequency at other points in in [sic]
the recordings to verify the synchronization. That was done here.
The ICV microphone audio signal did not cover the full time period
that the dash cam covered (four minutes and seven minutes,
respectively). Thus, three separate clips from the ICV microphones
were isolated and matched to the dash cam audio. When syncing,
during the times the ICV microphones audio was used, dash cam
audio was turned off to avoid hearing the in-vehicle radio traffic. The
hallway surveillance video was also manually synced by coordinating
the act of the officer knocking on the door to the sound of the knock
in the dash cam video.
“The Frye test is implicated only where the opinion offered is based upon

novel science.” Anderson, 172 Wn.2d at 611. In their Frye challenge, the

respondents did not take issue with synchronization as novel science. Nor did they

argue that Hayes’s methodology, described above, is not generally accepted by

the relevant scientific community. Rather, they argued that Hayes should have

used original footage instead of “the redacted and publicly released video created

by SPD.” The respondents’ expert, Smith, stated that “the process Mr. Hayes

describes as ‘Careful observation of the recordings’ is an acceptable method to

create a rudimentary depiction of a chain of events.” We conclude that Frye was

not implicated in this case. The trial court erred in excluding the evidence on that

basis.

Second, Hayes’s testimony laid the necessary foundation for his expertise

in video synchronization. Hayes stated in his declaration that he is a

“biomechanical engineer with more than 40 years of combined academic and

28
No. 78819-1-1/29

forensic experience.” He explained, “It is reasonable and customary in my field to

synchronize files like the ones I reviewed here.” And, he stated,

Synchronization is defined as coordinating or matching two or more
activities, devices or processes in time. . Synchronization of
. .

multiple video recordings has been used for applications such as
object tracking, 3D scene rendering, and noise reduction. I have
performed numerous similar synchronizations or supervised my
staffers in doing so. Based upon this experience, my education, and
work as an engineer, I believe that I am qualified and able to
accurately conduct such synchronizations.
The respondents argue that Hayes is not a “video analysis expert,” citing

his failure to identify video analysis or synchronization as areas of expertise on his

website. But, the fact that Hayes’s website does not list video synchronization or

analysis as areas of expertise does not rebut or disprove the training and

experience to which he testified. The respondents’ argument that Hayes should

have used original footage goes to the weight of the evidence, not its admissibility.

Hayes qualifies as an expert under ER 702 on the basis of experience. The

trial court abused its discretion in excluding the evidence on that basis.

Accordingly, the trial court erred in excluding Hayes’s video and declaration under

ER 702 and Frye.

IV. First Amendment

The appellants argue last that the trial court’s orders violated their First

Amendment rights. Specifically, they argue that “[ut is a well-developed principle

of both state and federal constitutional law that efforts to restrict counsel’s

communication with the media violate First Amendment principles.” This court

29
No. 78819-1-1/30

reviews constitutional issues de novo. State v. Clark, 187 Wn.2d 641, 649, 389

P.3d 462 (2017).

The appellants rely on State v. Bassett, 128 Wn.2d 612, 911 P.2d 385

(1996). There, the State Supreme Court found that a trial court’s order forbidding

all counsel from publicly discussing an aggravated first degree murder case was a

“prior restraint on the exercise of free speech.” ki. at 613, 615. Because there

were several alternatives to the order, and there was no indication that the

alternatives would be inadequate, it held that the order was unnecessary. Id. at

618. It also determined that the order was “not narrowly tailored to proscribe only

those statements that threaten Bassett’s right to a fair trial or the administration of

justice.” ki. Therefore, the court vacated the order. ki.

Bassett is easily distinguishable. Here, the trial court did not enter an order

forbidding Koehler and Moore from publicly discussing the case. It approved a

stipulated protective order to prevent the public release of material designated as

confidential. As established above, the appellants violated this order in filing the

motion and providing a copy to the media. Thus, the trial court did not impose a

prior restraint on the appellants’ free speech. Rather, it sanctioned them under CR

11 for violating a stipulated court order, concluding in part that “Koehler’s

subsequent tweets/retweets of various news articles stand as extrajudicial

statements of a party’s credibility, character, and reputation in violation of RPC 3.6.

Such comments are materially prejudicial in light of the ongoing litigation.”

The appellants contend that “[d]espite the absence of [an order regarding

media contacts], the judge entered sanctions against Plaintiffs’ counsel which

30
No. 78819-1 -1/31

punished Ms. Koehler for media contacts, and violated her free speech rights.”

They cite no authority for this proposition. They further state that Koehler did not

violate RPC 3.6 “because her actions created no demonstrable substantial

likelihood that the trial of the case would be materially prejudiced.” In the absence

of such proof, they argue that “RPC 3.6 as applied to her was unconstitutional.”

But, the trial court found that Koehler’s comments were “materially prejudicial in

light of the ongoing litigation.” Substantial evidence supports that finding. The trial

court did not err in concluding that her actions violated RPC 3.6.

In light of the stipulated protective order, the trial court did not violate the

appellants’ First Amendment rights in imposing sanctions.

We affirm the imposition of sanctions, but reverse as to the trial court’s

evidentiary ruling excluding the expert.

WE CONCUR:

( ‘ AI6’.~~A4.A( /fj.1

31