Wash. Court of Appeals published opinion — 726668.pdf

9 Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164Wn.2d 199,
215, 189 P.3d 139 (2008) (employee evaluations under the Public Records Act,
ch. 42.56 RCW); Morgan v. City of Federal Way, 166 Wn.2d 747, 756-57, 213
P.3d 596 (2009) (investigative report involving judge's conduct).
10 RCW 9.73.050; see Schonauer v. DCR Entm't, Inc.. 79 Wn. App. 808,
819, 905 P.2d 392 (1995).
-9-
             

No. 72666-8-1/10

that this court should reverse the sanction because the trial court erroneously

"applied CR 37 case law" to his counsel's violation of CR 26(g). Marin

acknowledges, though, that the standard for sanctions under CR 37 is higher

than under CR 26(g). And, in any case, the trial court considered CR 37

standards only in declining to sanction Marin with dismissal. Thus, the error that

Marin asserts, if it occurred, was harmless.

Finally, Marin contends that the trial court improperly considered Mann's

history of sanctions when deciding the appropriate sanction here. The trial court

"deem[ed] th[e] violation to be serious, particularly in light of Ms. Mann's history

of sanctions in previous cases." This is not, as Marin contends, an improper use

of character evidence to determine that Mann's conduct was "willful." A trial court

may consider an attorney's history of misconduct in determining appropriate

sanctions.11 The trial court did not err in doing so here.

Summary Judgment on WLAD Disparate Treatment Claim

Marin next challenges the trial court dismissal on summary judgment of

his disparate treatment claim. He based that claim on two theories:

discrimination against him as a member of a protected class and retaliation