Channary Hor, V. City Of Seattle ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHANNARY HOR, individually,
No. 85018-1-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
THE CITY OF SEATTLE, a
Washington Municipal Corporation,
Respondent,
AARON GRANT, ADAM THORP,
and OMAR TAMMAM,
Defendants. †
DÍAZ, J. — In 2013, a jury found that the City of Seattle (City) was not liable
for injuries suffered by Channary Hor in a 2006 car accident involving the Seattle
Police Department (SPD). In 2017, a newspaper reported the suicide of one of the
SPD officers involved in the accident, Aaron Grant, and attributed it to his remorse
over the accuracy of his trial testimony. Hor subsequently twice moved the trial
court to vacate the 2013 judgment under CR 60(b)(4) and (11). In this appeal, we
are asked to resolve whether the court erred in denying the second, most recent
† These defendants are not participating in this appeal.
No. 85018-1-I/2
motion, which was brought after Hor conducted additional discovery. We conclude
the court did not abuse its discretion when it found Hor failed to establish by clear
and convincing evidence that Grant had committed misconduct or a
misrepresentation, and when it found that Hor had a fair opportunity to argue her
theory of liability at trial without this evidence. Thus, we affirm.
I. BACKGROUND
In May 2006, Hor was sitting in the passenger seat of Omar Tammam’s car
in Seward Park when SPD Officers Adam Thorp and Aaron Grant approached
them. Tammam fled and, shortly after exiting the park, crashed his car into a rock
wall at a high rate of speed. The crash inflicted severe injuries on Hor.
In September 2010, Hor filed suit for damages against Tammam and the
City, alleging Officers Thorp and Grant engaged in a negligent pursuit of Tammam
as he fled. In June 2013, a jury found Tammam alone was liable for negligence
and not the City. This court affirmed the verdict in an unpublished opinion. Hor v.
City of Seattle, 70761-2-I (Wash. Ct. App. Aug. 3, 2015) (unpublished),
https://www.courts.wa.gov/opinions/pdf/707612.pdf (“Hor I”).
In May 2017, the Tacoma News Tribune published an article reporting
Grant’s suicide. The article claimed Grant was “haunted by his testimony” given
at the 2013 trial and “believed he lied under pressure to aid the city’s case,
according to his boss and former co-workers” at the Lakewood Police Department
(LPD), where Grant had worked after the 2006 incident.
Following the publication of that article, Hor obtained sworn testimony from
three of Grant’s colleagues at LPD who claimed to have spoken to Grant about his
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trial testimony. Hor v. City of Seattle, 18 Wn. App. 2d 900, 904-06, 493 P.3d 151(2021) (“Hor II”). Hor then moved the court under CR 60(b)(4) to vacate the 2013
judgment. Id. at 902-03. The court denied the motion. Id. at 903. In Hor II, this
court reversed and remanded the matter to the trial court, holding it was “unclear”
whether the court conducted the entire CR 60(b)(4) “fraud, misrepresentation or
other misconduct” analysis, or whether it only considered Hor’s claim of fraud. Id.
at 912-13. This court also permitted the trial court to order additional discovery,
which it did and which the parties conducted. Id. at 913.
In December 2022, armed with a more comprehensive record, including six
deposition transcripts, Hor renewed her motion to vacate the judgment under CR
60(b)(4) and (11). After oral argument, the court denied Hor’s motion in February
2023. Hor now timely appeals.
II. ANALYSIS
1. Standard of Review
As a preliminary but important matter, Hor argues that this court should
review her motion to vacate de novo, for two overarching reasons. First, Hor
argues that we should not apply a more deferential standard because the judge
ruling on the CR 60 motion was not the same as the trial judge who presided over
the trial. Second, Hor argues that, because the court resolved the motion to vacate
solely on documentary evidence (as opposed to on live testimony), the court’s
findings deserve no deference. We disagree.
Hor made the first argument in Hor II and, as Hor recognizes, this court
expressly rejected it. Hor II, 18 Wn. App. 2d at 911. Per RAP 2.5(c)(2), we decline
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to exercise our discretion to “review the propriety of an earlier decision of the
appellate court in the same case.” More substantively, Hor offers no further
authority on point. Hor cites numerous cases that discuss the general benefits of
a court observing live testimony in certain distinguishable types of cases. 1
However, none of the cases Hor offers held that no deference is due a trial court
judge who resolved a motion to vacate but did not sit on the original trial. We
decline the invitation to make any such rule here.
As to the second argument, we begin by noting, as Hor acknowledges, that
this court generally reviews CR 60(b) motions to vacate for abuse of discretion. In
re Marriage of Bresnahan, 21 Wn. App. 2d 385, 406, 505 P.3d 1218 (2022). And
this court has previously considered the exact same argument Hor makes now in
Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990). That is, the
movant there argued that, because “the trial court heard no oral evidence when it
decided the motion to vacate, the standard of review on appeal should be de novo.”
Id. We recognized the appellant “correctly asserts that no deference must be given
to a trial court’s finding of fact with respect to documentary evidence.” Id.However, we also “note[d] that the discretionary judgment of a trial court of whether
to vacate a judgment is a decision upon which reasonable minds can sometimes
differ,” meaning that “if the discretionary judgment of the trial court is based upon
tenable grounds and is within the bounds of reasonableness, it must be upheld.”
1 For example, Hor cites to State v. Babcock, 145 Wn. App. 157, 163, 185 P.3d
1213 (2008), which discussed the standard of review for a motion for mistrial, and
to State v. Johnson, 185 Wn. App. 655, 670-71, 342 P.3d 338 (2015), which
discussed the standard of review for evidence admitted under ER 403.
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Id. In other words, the court still endorsed a deferential standard of review for a
motion to vacate based solely on documentary evidence, where there is an
exercise of discretion.
Most importantly, this approach is consistent with our Supreme Court’s later
important holding that, “where competing documentary evidence must be weighed
and issues of credibility resolved, the substantial evidence standard is
appropriate.” Dolan v. King County, 172 Wn.2d 299, 310, 258 P.3d 20 (2011).
Helpfully, our Supreme Court explained that
Appellate courts give deference to trial courts on a sliding scale
based on how much assessment of credibility is required; the less
the outcome depends on credibility, the less deference is given to
the trial court. Washington has thus applied a de novo standard in
the context of a purely written record where the trial court made no
determination of witness credibility. However, substantial evidence is
more appropriate, even if the credibility of witnesses is not
specifically at issue, in cases such as this where the trial court
reviewed an enormous amount of documentary evidence, weighed
that evidence, resolved inevitable evidentiary conflicts and
discrepancies, and issued statutorily mandated written findings.
Id. at 311 (internal citations omitted) (emphasis added).
Here, all six of the LPD witnesses supporting Hor’s motion to vacate
participated in video-taped depositions, generating over four hundred pages of
testimony. And the court reviewed, not only those depositions, but the record of
the entire trial, numbering nearly nine thousand pages, which both provided “the
context . . . at issue” and, which even Hor argues, was “require[d]” to conduct a
CR 60(b) analysis. In short, the superior court below reviewed an “enormous
amount of documentary evidence” from numerous witnesses. Dolan, 172 Wn.2d
at 311.
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The court then expressly “weighed that evidence, resolved . . . evidentiary
conflicts and discrepancies,” and–as Hor also acknowledges—made credibility
findings about the video-taped depositions. Id. In sum, within Dolan’s “sliding
scale,” the substantial evidence standard seems “more appropriate” in this case.
172 Wn.2d at 310-11.
In response, Hor points again to the fact that some Washington courts have
declined to use a deferential standard of review for proceedings based solely on
documentary evidence. Br. of Appellant at 51-52 (citing Davis v. Dep’t of Labor &
Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 (1980) (discussing an exception to
applying the substantial evidence rule where findings are based on “written,
graphic material and not oral testimony”); Nygaard v. Dep’t of Labor & Indus., 51
Wn.2d 659, 661, 321 P.2d 257 (1958) (“Where the trial court does not have the
advantage of seeing and listening to witnesses, its findings may be disregarded,
provided they are based upon a written record that is before us in its entirety.”)). 2
2 Hor submitted two Statements of Additional Authorities (SAA). In the first, Hor
offers additional caselaw supporting a de novo standard of review. SAA (Apr. 1,
2024) at 1. However, this court has explained that the RAP (10.8) addressing
SAAs was “intended to provide parties an opportunity to cite authority decided after
the completion of briefing. We do not view it as being intended to permit parties to
submit to the court cases that they failed to timely identify when preparing their
briefs.” O’Neill v. City of Shoreline, 183 Wn. App. 15, 23, 332 P.3d 1099 (2014)
(emphasis added). As none of the authority Hor offers were decided after the
completion of the briefing, we need not consider them. That said, we briefly
address the second SAA, submitted after oral argument, as it addressed Dolan
directly. Hor argues that the deferential standard of Dolan’s “sliding scale” is
appropriate only in matters involving statutorily mandated factual findings and,
because there is no such requirement for factual findings, no deference is due.
SAA (Apr. 19, 2024) at 1-3 (citing Dolan, 172 Wn.2d at 311). This argument
presents an overly narrow view of Dolan, which reviewed “cases such as this
where the trial court,” among other potential factors, “issued statutorily mandated
written findings.” 172 Wn.2d at 311. In other words, Dolan presented an
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No. 85018-1-I/7
Neither Davis nor Nygaard, however, involved motions to vacate. Davis, 94
Wn.2d at 122 (considering an appeal from a bench trial on a discrimination claim);
Nygaard, 51 Wn.2d at 660 (considering an appeal from a superior court’s review
of an administrative decision). And, as Hor conceded at oral argument, there is no
binding authority “directly on point” applying the de novo standard to any type of
CR 60 motion. Wash. Ct. of Appeals oral argument, Hor v. City of Seattle, No.
85018-1-I (April 18, 2024), at 2 min., 30 sec. through 2 min., 52 sec. video
recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-
2024041185/?eventID=2024041185.
Finally, we are wary of both reviewing appeals from motions to vacate de
novo and becoming de facto fact finders, and wary of implicitly requiring courts to
hold hearings with live testimony on such motions. These results would effectively
move decisions on motions to vacate to the appellate courts and have unintended
consequences on the operations of our trial courts, respectively. Moreover,
resisting both supports the important principle that, while “circumstances can arise
where finality must give way to the greater value that justice,” “[f]inality of
judgments is a central value in the legal system” and CR 60(b) provides a “balance
between finality and fairness by listing limited circumstances under which a
judgment may be vacated.” Shandola v. Henry, 198 Wn. App. 889, 895, 396 P.3d
395 (2017). If our Supreme Court or our legislature wishes to create a rule
illustrative, non-exclusive list of factors in its “sliding scale” framework, many of
which are present here, even if not all.
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No. 85018-1-I/8
requiring a trial court to hold an evidentiary hearing with each motion to vacate, or
be subject to de novo review, it may do so. We decline to create such a rule.
For the reasons above, we will review this matter under an abuse of
discretion standard, which directs that a “court abuses its discretion when its
decision is manifestly unreasonable, or exercised on untenable grounds or for
untenable reasons.” Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494, 145
P.3d 1196 (2006). Such an abuse occurs when the court “takes a view that no
reasonable person would take, applies the wrong legal standard, or bases its ruling
on an erroneous view of the law.” Id. (emphasis added).
We review findings of fact for substantial evidence, defined as a “‘quantum
of evidence sufficient to persuade a rational fair-minded person the premise is
true.’” In re Dependency of A.M.F., 23 Wn. App. 2d 135, 141, 514 P.3d 755 (2022)
(quoting Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369(2003)). “Unchallenged findings are verities on appeal.” Mueller v. Wells, 185
Wn.2d 1, 9, 367 P.3d 580 (2016). We then review de novo whether the trial court’s
findings of fact support its conclusions of law. Cantu v. Dep’t. of Labor & Indus.,
168 Wn. App. 14, 21, 277 P.3d 685 (2012).
2. CR 60(b)(4)
a. Overview of Relief under CR 60(b)(4)
Under CR 60(b)(4), a court may relieve a party from a judgment if it was
procured by “[f]raud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party.” At a high level, “[t]he
rule is aimed at judgments unfairly obtained, not factually incorrect judgments.”
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Sutey v. T26 Corp., 13 Wn. App. 2d 737, 756, 466 P.3d 1096 (2020). In other
words, an appeal addressing CR 60(b)(4) relief is “limited to the propriety of the
denial not the impropriety of the underlying judgment.” Bjurstrom v. Campbell, 27
Wn. App. 449, 450-51, 618 P.2d 533 (1980).
Fraud allegations under CR 60(b)(4) are distinct from allegations of
misconduct or misrepresentation, in that the party must establish the nine common
law elements for fraud. In re Marriage of Maddix, 41 Wn. App. 248, 252, 703 P.2d
1062 (1985). 3 A party alleging misrepresentation or misconduct need not show
the elements of fraud. Id. Still, while neither “misrepresentation” nor “misconduct”
is defined by CR 60, common law “misrepresentation” requires the moving party
have “reasonably relied” on the information provided. Dewar v. Smith, 185 Wn.
App. 544, 562-63, 342 P.3d 328 (2015). And, “misconduct” has been defined as
a “dereliction of duty; unlawful, dishonest, or improper behavior, esp. by someone
in a position of authority or trust.” BLACK’S LAW DICTIONARY, 1193 (12th ed. 2024).
Further, “[t]he trial court may grant relief under CR 60(b)(4) without
considering the probable effect of the misconduct on the trial’s outcome.” Mitchell
v. Wash. State Inst. of Pub. Policy, 153 Wn. App. 803, 825, 225 P.3d 280 (2009)
(emphasis added). In other words, CR 60(b)(4) relief “does not require a showing
the new evidence would have materially affected the outcome of the first trial”
which would be “little better than speculation.” Taylor v. Cessna Aircraft Co., Inc.,
3 While she references the fraud prong of CR 60(b)(4) indistinctly from
misrepresentation and misconduct prongs throughout her briefing, Hor does not
attempt to establish the nine common law elements, and thus we will not consider
this prong further.
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No. 85018-1-I/10
39 Wn. App. 828, 836-37, 696 P.2d 28 (1985).
That said, a party’s misrepresentations are irrelevant if “there is no
connection between the [adverse party’s] misrepresentation and” the case’s
outcome. People’s State Bank v. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1056(1989). After all, reasonable reliance is an element of negligent misrepresentation.
Dewar, 185 Wn. App. at 561-62. And the movant must show the offending party
“obtained” an “unfair judgment” by means of misconduct or misrepresentation to
receive relief under CR 60(b)(4). Sutey, 13 Wn. App. 2d at 756.
More specifically, “[t]o prevail on a CR 60(b)(4) motion, the moving party
‘must establish by clear and convincing evidence that the fraudulent conduct or
misrepresentation caused the entry of the judgment such that the losing party was
prevented from fully and fairly presenting its case or defense.’” Bresnahan, 21 Wn.
App. 2d at 406 (emphasis added) (quoting In re Vulnerable Adult Pet. for Winter,
12 Wn. App. 2d 815, 830, 460 P.3d 667 (2020)); Lindgren, 58 Wn. App. at 596(same). “‘Clear and convincing evidence exists when the evidence shows the
ultimate fact at issue to be highly probable.’” In re Pers. Restraint of Sargent, 20
Wn. App. 2d 186, 206, 499 P.3d 241 (2021) (quoting State v. K.A.B., 14 Wn. App.
2d 677, 696, 475 P.3d 216 (2020)) (emphasis added).
Tying these principles together, the overarching question on appeal, then,
is whether the trial court abused its discretion by making a mistake of law or by
making a finding of fact that “no reasonable person” would make, namely: in finding
that Hor failed to show it was “highly probable” that the allegedly improper
testimony “caused” the unfair judgment in such a way that Hor could not “fully or
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No. 85018-1-I/11
fairly” present her case. These overlapping standards present a series of high
hurdles for Hor, indeed.
b. Discussion
Hor principally argues that (i) “substantial evidence d[id] not support the trial
court’s findings” in a way that is (ii) “necessary to support its CR 60(b)(4)
conclusions of law,” i.e., that the court misapplied the law to the facts before it in
its conclusions of law. 4 We will address each argument in turn and principally
address only the findings and conclusions of law Hor challenges which are
necessary for our analysis.
i. Substantial evidence for the challenged findings of fact
We consider in turn the court’s (a) findings of fact related to Grant’s alleged
misrepresentations and (b) mixed findings of fact and conclusions of law as to
whether Hor could fully or fairly still present her case.
(a) Grant’s alleged misrepresentations
With her second motion to vacate, Hor presented testimony from six LPD
4 Hor does not flatly claim the court based its decision on an incorrect legal
standard, but instead she avers that an “incorrect legal standard infects the trial
court’s findings and conclusions,” in that “the trial court inherently couched its
analysis in terms of whether other evidence potentially supported Respondents’
theories of the case” when “viewed the evidence in the light most favorable” to the
City. This argument is belied by the fact that, as Hor acknowledged at oral
argument, the court expressly disclaimed the “incorrect” standard, and expressly
applied the standard stated in Hor II, 18 Wn. App. 2d at 911-12; Hor v. City of
Seattle, No. 85018-1-I (April 18, 2024), at 7 min., 20 sec. through 7 min., 35 sec.
video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-
2024041185/?eventID=2024041185 (“the trial court applied a legally incorrect
heightened standard to Ms. Hor’s request for CR 60(b)(4) relief, just as it did
previously in the case.”).
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No. 85018-1-I/12
witnesses, Anders Estes, Michael Wulff, Svea Pitts, John Unfred, Michael Zaro,
and Jeremy Vahle, who—according to Hor—collectively testified to three important
facts: [1] “that Grant had admitted . . . that he had been engaged in a pursuit of
[the car]; [2] did not recall at the time of trial whether he had deactivated his lights;
[3] lied in his trial testimony [about both facts, after being subjected to pressure by
the City’s attorneys]; and had betrayed his badge by doing so,” i.e., in all these
ways contradicted his trial testimony and, thus, committed misconduct or
misrepresentation. For the reasons below, we hold that the court did not abuse its
discretion in finding the evidence Hor presented fell short of presenting “clear and
convincing” evidence of misrepresentation or misconduct.
As to the first two officers, Estes and Wulff testified that Grant had told them
he had “lied” at trial and had used the term “pursuit” when discussing his testimony
with them. Even so, the court found:
Estes’ and Wulff’s testimony is suspect and less than credible. Both
officers were under investigation by the Lakewood Police
Department about misconduct, dishonesty, and insubordination
related to a vehicle pursuit they were both involved in. They were
close friends. And they had a motive to detract attention from their
own misconduct by alleging and complaining that Grant had
engaged in dishonesty and had not been investigated or disciplined.
In a June 2017 deposition in an unrelated lawsuit filed against [LPD]
in 2016, Police Chief Michael Zaro testified that Estes ‘was known
for making [Grant’s] life miserable by walking around saying [Grant]
should be fired.’
Hor now argues this finding is not supported by substantial evidence. We
disagree.
When deposed, Estes conceded that he had been “investigated for making
false statements” while at LPD. LPD notified Estes of this investigation in June
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No. 85018-1-I/13
2016. The investigation concerned a pursuit in which Estes was involved.
Specifically, LPD alleged he falsely stated over his patrol car radio that he was
rammed by the suspect’s vehicle. Estes retired before the investigation could be
completed. Due to this investigation, LPD added Estes to a list of officers, pursuant
to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), whom
they must disclose to future litigants as possibly untrustworthy. 5 Thus, there is
substantial evidence that Estes had been under investigation for “misconduct and
dishonesty,” as the court found.
Estes also repeatedly and expressly tied his testimony on Grant to his own
disciplinary issues. For example, Estes testified his investigation began “after the
Grant incident and after they really wanted me gone,” and that the investigation
was LPD “fishing for something.” Further, Estes claimed Grant was “an officer
favored by the administration,” which had “d[one] nothing to correct [Grant’s] false
testimony” despite Estes’ three letters to the City of Lakewood. Estes also claimed
he sent a letter “point[ing] out that the administration failed to investigate or act on
the fact that Officer Grant gave false testimony in the Seattle case.” Thus, there
is substantial evidence that Estes’ testimony on Grant was motivated by or
connected to Estes’ own disciplinary issues.
Wulff participated in and was investigated for the same pursuit for which
5 “In Brady, this Court held ‘that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.’” Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144
L. Ed. 2d 286 (1999) (quoting Brady, 373 U.S. at 87). “We have since held that
the duty to disclose . . . encompasses impeachment evidence as well as
exculpatory evidence.” Id.13
No. 85018-1-I/14
Estes was investigated. Specifically, Wulff pursued the suspect’s vehicle
alongside Estes, and Estes was acting as Wulff’s supervisor. Wulff further
described Estes as a “dear friend.” Thus, there was substantial evidence that
Wulff’s testimony was similarly motivated by his own disciplinary issues or other
personal bias.
Thus, we hold the court did not abuse its discretion because a reasonable
person could find that these first two officers were not credible.
As to the remaining four witnesses—Pitts, Unfred, Zaro, and Vahle—the
court additionally first found their testimony “describes a deeply troubled man” in
that “Grant’s anxiety and depression had roots in the Tammam/Hor incident and
his testimony in the Hor trial,” but “it does not appear that Grant’s testimony was
false or dishonest. . . . His subsequent tortured ruminations about that testimony
do not show that he had been dishonest.” The court additionally found their
testimony “about Grant’s use of the term ‘pursuit’ in his conversations with them
about the Tammam/Hor incident is not reliable evidence” as these “references to
‘pursuit’ are inconsistent, vague, and – as plaintiff uses them in her briefing –
conclusory” Lastly, the court found that “the totality of all the facts and
circumstances found in the trial record is much more important than a loose use of
the term ‘pursuit.’” Hor also challenges each of these findings for substantial
evidence. We again disagree.
Pitts answered “[n]o” when asked if she “recall[ed] anything about
emergency lights in [her] discussions with Officer Grant.” Further, Pitts’ testified
Grant “never said that he lied.” She also could not remember whether Grant used
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No. 85018-1-I/15
the word “pursuit.” Instead, Grant “never said he was told to answer a certain way
. . . [j]ust that he didn’t feel like he got to express himself fully” at trial.
Unfred’s testimony repeatedly indicated he was not confident in his memory
regarding Grant. Instead, Unfred generally stated that “I know Officer Grant told
me he was troubled by his testimony at some point in the original case, about his
truthfulness” but “[t]hat’s about as much as [he] recall[ed]” and he “d[idn’t] recall
specifics or wording.”
Similarly, Zaro’s testimony similarly flagged potential memory issues.
Initially, Zaro acknowledged his previous testimony where he was asked whether
“‘Grant c[a]me to [him] and sa[id] that he had given false testimony in a case where
he was asked to testify?’” and he responded “‘he believed so, yes.’” However,
Zaro then testified he could not remember the first time he discussed Hor’s case
with Grant, or how many times he discussed the subject with Grant. More notably,
Zaro also testified he didn’t remember anything about Grant being “browbeat by a
civil attorney” and had testified “I don’t know that” when asked if Grant committed
suicide because he felt pressured to lie at Hor’s trial. Further, when pressed to
quote specific words Grant used, he responded, “I can’t answer that. You’re asking
me to quote him, and I can’t do that.” Instead, Zaro testified he “do[esn’t]
remember it being specifically about [Hor] all the time. There was – just the general
topic of his anxiety.”
Vahle initially testified that Grant “thought and felt that he was not honest
during his testimony.” Further, he stated Hor’s incident “turned into a pursuit” in a
general sense, adding he “d[idn’t] remember where [Grant] got into the pursuit at,
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No. 85018-1-I/16
but he wasn’t the primary officer.” He also answered affirmatively when asked if
“Grant had talked to you about his lack of memory about certain details of the
pursuit.” Vahle later added the caveats that “I don’t remember [Grant] complaining
about being pressured,” and that “I don’t remember him saying [he] lied,” and
instead likened Grant’s conversation to “word vomit.”
From the above, we hold the court did not abuse its discretion in finding that
Hor had not established by clear and convincing evidence, based on these four
officers’ testimony, that Grant [1] stated he had been “in pursuit,” [2] stated that he
did not recall at the time of trial whether he had deactivated his lights; and [3] stated
that he lied in his trial testimony about both facts. That is, a reasonable person
could conclude, as the court did, that Grant’s statements to these four unbiased
officers were the musings of a “a deeply troubled man.” And, there was otherwise
no corroborating evidence of the City’s alleged pressure. In turn, there is
insufficient evidence, on our standard of review, to conclude that Grant or the City
engaged in misconduct or made misrepresentations at the time of trial.
(b) Whether Hor could fully or fairly still present her case.
Even if the foregoing conclusion is incorrect—i.e., “no reasonable person”
would conclude that none of the witnesses’ testimony established that Grant
committed misconduct or misrepresentations—Hor still fails to show it was “highly
probable” that his arguendo improper testimony “caused” the unfair judgment in
the sense that Hor could not “fully or fairly” present her case.
Here, the court found that Grant’s trial “testimony was consistent with the
declaration[s]” and that “Grant’s imperfect memories were thoroughly explored in
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No. 85018-1-I/17
plaintiff’s attorney’s examination of Grant.” Hor now challenges both of these
findings as lacking substantial evidence. We again disagree.
As Hor acknowledges, the parties “argued early and often” about whether
SPD Officers Grant and Thorp engaged in an unlawful pursuit preceding the 2006
crash. Hor does not challenge the court’s findings (and thus it is a verity) that the
jury considered all of Grant’s various sworn statements and testimony as to when
he turned off his emergency lights. Mueller, 185 Wn.2d at 9. As Hor also
acknowledges, the parties disputed at trial when the lights were deactivated as
part of a broader dispute on whether Tammam could have even seen Grant’s
vehicle after leaving the park.
More specifically, Grant’s testimony included a 2011 sworn declaration, a
2012 deposition, and his 2013 trial testimony.
In his 2011 declaration, Grant stated “[t]he vehicle accelerated out of the
park, in my direction. I activated my emergency lights, but had to swerve and break
in order to avoid being hit by the vehicle . . . I had to make a three point turn in
order to turn around, then proceeded out of the park westbound on South Juneau,
in the direction that I had seen the vehicle go” but he “did not see the vehicle on S.
Juneau.” As such, “[b]ecause [he] had lost a visual (sight) of the vehicle . . . I was
not going to be operating in emergency (pursuit) mode” and, “to the best of my
recollection, I turned off my emergency equipment (lights) at this point.” (Emphasis
added).
In his 2012 deposition, Grant was asked if he “had an opportunity to turn on
[his] emergency roller lights?” Grant responded that “I cannot recall if I did at that
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No. 85018-1-I/18
point or not.” (Emphasis added). Further, Grant was asked if he had “any
impression at all as to whether or not in the circumstances that is something you
would normally do as a routine habit?” Grant responded that “[i]t all depends on
the situation. I just can’t recall in this situation. It’s been too long.” (Emphasis
added).
At trial—again acknowledged by Hor—Grant testified that he had since
recalled when he turned on his lights, but he also admitted “that he had previously
testified at his deposition that he could not recall whether and when he deactivated
his emergency lights.” Hor argues that, because Grant’s trial testimony was
inconsistent with his later statements to colleagues, she was unable to fully present
her case. We hold it was not an abuse of discretion for the trial court to find the
record is more complicated.
As the court found, at the 2013 trial, Hor’s counsel spent two days
questioning Grant and made no secret of her suspicion of Grant’s memory in light
of Grant’s previous sworn declaration and deposition. For instance, Hor’s counsel
asked Grant whether he could “say, as a matter of fact, that [he] turned off [his]
emergency equipment lights; can you sir?” Grant responded that “[a]fter going
back down to the park and clarifying some things in my memory, I can.” Grant
elaborated that, roughly a month prior to the trial, he had gone “down and redrove
the park in the area and it brought back some memories of what had happened.”
Hor’s counsel persisted, repeatedly quoting from Grant’s past deposition
testimony, including the numerous times Grant said he could not “recall”
specifically when he activated his lights or other aspects of the incident. In the
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No. 85018-1-I/19
face of these inconsistencies, Grant himself acknowledged that the incident “was
seven years ago” and that there were “some things that I can remember, and some
things that I can’t.”
In sum, the jury heard Grant’s deposition testimony directly quoted and
compared with his trial testimony repeatedly and methodically. The jury had ample
evidence to look askance at his testimony and was free to accept or reject Grant’s
explanation that “redr[iving]” the area refreshed his memory. Westby v. Gorsuch,
112 Wn. App. 558, 570, 50 P.3d 284 (“it is the jury's role to make credibility
determinations”). Even if we were to credit one of the LPD’s officers’ testimony
that he told them he in fact did not know, e.g., when he turned off his lights, it is
not an abuse of discretion for the court to find that Hor’s defense was fairly (if not
fully) before the jury, where the defense is broadly that Grant was not credible on
that possibly important point.
In other words, Hor has not shown that it was manifestly unreasonable to
conclude that it was highly improbable that the absence of one additional way to
question Grant’s memory “caused” the judgment such that she was unable to fairly
present her case to the jury. We also cannot conclude that it was manifestly
unreasonable to conclude that Grant’s various statements were internally
consistent as he explained the evolution of his memory overtime.
In response, Hor relies heavily on Taylor, which held that 60(b)(4) relief
“does not require a showing the new evidence would have materially affected the
outcome of the first trial.” Taylor, 39 Wn. App. at 836. We agree, but Taylor,
nonetheless, is distinguishable as the defendant there entirely withheld
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No. 85018-1-I/20
discoverable information such that the plaintiff “could not litigate issues he did not
know existed” meaning the defendant’s actions “deprived [the plaintiff] of an
alternate theory upon which to argue liability.” Taylor, 39 Wn. App. at 837. The
present appeal is different in kind; a reasonable person could find that Hor explored
the credibility of Grant’s memory in depth, even if arguendo the jury was unaware
that Grant may have felt personally motivated to testify in a certain way. This
singular piece of evidence does not amount to an “alternate theory” of liability. The
theory is the same, namely, that two SPD officers engaged in a negligent pursuit
by, inter alia, turning on their lights at a certain time and not turning the lights off at
a certain time, causing the car to speed. It is not unreasonable to contextualize
Grant’s motivation for stating he remembered turning off the lights as simply one
data point in the same theory of the case.
For these reasons, we cannot hold that the omission of this arguendo
evidence “caused” the judgment such that she was unable to fairly present her
case to the jury.
ii. Conclusions of law
Hor also challenges numerous conclusions of law, including non-
duplicatively the court’s conclusion that, whether “Grant turned on or off his
emergency lights was not of controlling importance as to the determination of
liability in the Hor trial.” 6
6 Hor additionally challenges the court’s conclusions that failed to establish fraud,
misrepresentation, or other misconduct by clear and convincing evidence or that
“Hor was not prevented from fully and fairly presenting her case.” We have
addressed this mixed issue of law and fact above.
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No. 85018-1-I/21
Hor first challenges the conceptualization of the standard as requiring the
misconduct be of “controlling importance.” However, this court has already stated
in this very matter, “perjury alone does not necessarily rise to the level of fraud to
warrant vacation of a judgment . . . Even then, the perjury must be of “‘controlling
importance.’” Hor II, 18 Wn. App. 2d at 912 (quoting Doss v. Schuller, 47 Wn.2d
520, 526, 288 P.2d 475 (1955)). We again to decline, under RAP 2.5(a), to revisit
this decision. More substantively, Hor recognizes that the “controlling importance”
cannot “impose a requirement that a CR 60(b)(4) movant must prove that fraud,
misrepresentations, or misconduct were dispositive or could or would [have]
affected the verdict. Rather, all the movant must show is that it was material to
their liability arguments, rather than an immaterial incorrect fact.” We likewise do
not interpret Hor II to impose a new requirement on a movant, and will address her
claim as she presents it.
Even assuming arguendo that Grant’s trial testimony amounted to
misconduct, the jury had numerous other pieces of evidence to consider in the
nearly month long and multifaceted trial. Notably, this evidence included the
physical and objective evidence (e.g. the car’s “black box,” vehicle specifications,
and topography measurements), which supported the accident reconstructionist’s
conclusion that, regardless of whether Grant turned his lights on or off and when,
Tammam could not see them. This evidence also provides a tenable basis for the
court’s finding that Grant’s motivation for testifying as he did was not material to
Hor’s theory of liability.
Finally, it is also notable that Hor did not challenge various important
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No. 85018-1-I/22
findings on appeal. Mueller, 185 Wn.2d at 9 (“Unchallenged findings are verities
on appeal.”). For example, she did not challenge the trial court’s finding that Grant
witnessed Hor’s severe injuries, which could lead a reasonable person to believe
Grant was traumatized or otherwise emotionally affected by the scene. After all,
numerous witnesses alleged Grant was distressed and conflicted when discussing
the trial in some form. As stated by Zaro, “a 16-year-old girl was paralyzed. That’s
a lot to – that’s a lot to deal with.” Further, Zaro testified that Grant appeared to
“internalize[]” his experience with the 2006 incident and subsequent trial in a way
that seemed “irrational.” Further, Pitts described Grant’s broader mental health
outside of the context of Hor’s trial, including that it was “not like it was a secret
that he battled depression.” These facts, again, undermine the materiality to Hor’s
liability arguments of Grant’s later “tortured ruminations” about his testimony. We
cannot say it is unreasonable for the trial court to give little credit to a person
tragically struggling in this way.
Hor also did not challenge the court’s finding that the “six witnesses recently
deposed offered no testimony suggesting that Grant was conflicted about his trial
testimony about several key facts.” These facts included Grant needing to
completely turn around to leave Seward Park, Grant stopping at a stop sign before
leaving the park, where Grant last saw Tammam’s car before the collision, Grant
driving slowly enough to look down side streets, that Grant did not see the crash,
or what Grant later relayed over the radio to SPD dispatch. In other words, there
were numerous facts, beyond Grant’s testimony about the lights, for the jury to
consider when gauging his role in the incident and the effect on Hor’s theory of
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No. 85018-1-I/23
liability.
From the above, we hold that the court’s conclusions of law were supported
by its findings of fact, i.e., they were not manifestly unreasonably applied. As such,
the court did not abuse its discretion in denying Hor’s CR 60(b)(4) motion to vacate.
3. CR 60(b)(11)
A court can relieve a party from a judgment for “[a]ny other reason justifying
relief from the operation of the judgment.” CR 60(b)(11). However, CR 60(b)(11)
is “not a blanket provision authorizing reconsideration for all conceivable reasons.
State v. Keller, 32 Wn. App. 135, 141, 647 P.2d 35 (1982). Instead, it is narrowly
“intended to serve the ends of justice in extreme, unexpected situations” or in other
words “‘extraordinary circumstances,’ which constitute irregularities extraneous to
the proceeding.” In re Det. of Ward, 125 Wn. App. 374, 380, 104 P.3d 751 (2005)
(quoting In re Marriage of Knies, 96 Wn. App. 243, 248, 979 P.2d 482 (1999)).
For example, this court has granted CR 60(b)(11) “[i]n rare circumstances”
when there is “a change in the law.” Id. at 380; Shandola, 198 Wn. App. at 892(this case addressed “a subsequent court decision invalidating the statutory basis
of the judgment”). Another example includes correcting the “fundamental[] wrong”
of allowing the “voluntary relinquishment of parental rights” in a termination
proceeding. In re Marriage of Furrow, 115 Wn. App. 661, 664, 63 P.3d 821 (2003).
In other words, “‘[i]rregularities justify vacation [under CR 60(b)(11)]
whereas errors of law do not. For the latter the only remedy is by appeal from the
judgment.’” Id. at 674 (quoting Philip A. Trautman, Vacation and Correction of
Judgments in Washington, 35 WASH. L. REV. 505, 515 (1960)). In short,
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No. 85018-1-I/24
Washington courts have held that mere “unfairness” does not rise to the level of
CR 60(b)(11). In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367(1985).
Here, Hor argues that CR 60(b)(11) relief is warranted as “the evidence
does not support that Grant’s trial testimony was a routine matter of imperfect
memory” and that one “cannot imagine a more fundamental wrong or irregularity
in the proceedings than the key witness recanting his testimony on the trial’s key
issue.” This argument fails for two reasons.
First, CR 60(b)(11) relief applies only when no other section of CR 60(b) is
applicable. Shandola, 198 Wn. App. at 895. In other words, CR 60(b)(11) is not
a second chance for arguments presented under another CR 60(b) subsection. As
discussed above, Hor has already argued her misconduct and misrepresentation
claims at length, which squarely fit under CR 60(b)(4).
Second, it is not apparent how the irregularity here is similar to those
enumerated above: there is no substantial change in the law; there is no
fundamental right being implicated; and nothing here is “extraneous” to the
proceeding, such as an unqualified fact finder. Indeed, at trial, Hor did ask Grant
whether he had spoken with the City’s counsel prior to his testimony. This line of
inquiry was not extraneous to the suit, and perhaps could have revealed alleged
bias or lack of credibility, had this line of questioning been further explored.
Finally, Hor’s invocation of Henderson v. Thompson, 200 Wn.2d 417, 518
P.3d 1011 (2022), is also unpersuasive. This case held that if “racial bias is a
factor in the decision of a judge or jury, that decision does not achieve substantial
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No. 85018-1-I/25
justice, and it must be reversed.” Id. at 421-22. However, Henderson did not
discuss CR 60(b)(11) or even mention CR 60. Even if Henderson addressed CR
60 at any level, systemic biases are not comparable to a single witnesses’ alleged
regret with his prior testimony, in a trial comprised of numerous other witnesses
and voluminous evidence.
For these reasons, we hold CR 60(b)(11) relief is inapplicable.
III. CONCLUSION
We affirm the court’s denial of Hor’s motion to vacate.
WE CONCUR:
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