Whereas on February 29, 2020, Governor Inslee proclaimed a state of emergency within the State of Washington due to COVID-19;
Whereas on March 1, 2020, King County Executive Constantine proclaimed a state of emergency within King County due to COVID-19;
Whereas on March 11, 2020, Governor Inslee ordered that all events of over 250 people be halted in King, Snohomish and Pierce Counties due to COVID-19;
Whereas also on March 11, 2020, the Local Health Officer ordered that all events of over 250 people be halted in King County and that all events with 250 or fewer people be cancelled unless the organizer could implement social distancing and sanitation measures due to COVID-19;
Whereas on March 13, 2020, President Donald Trump declared a national emergency due to COVID-19;
Whereas on March 15, 2020, the Centers for Disease Control and Prevention issued interim guidance recommending the cancellation or postponement of in-person events consisting of 50 or more people due to COVID-19;
Whereas state law, RCW 70.05.070(2)-(3), requires and empowers the local health officer to take such action as is necessary to maintain health and to control and prevent the spread of any contagious or infectious diseases within the jurisdiction;
Whereas state regulation, WAC 246-100-036, requires the local health officer, when necessary, to institute disease control and containment control measures, including social distancing measures he or she deems necessary based on his or her professional judgment;
Whereas, there is evidence of increasing transmission of COVID-19 within King County, scientific evidence and national public health guidance support strategies to slow the transmission of COVID-19 and protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19;
Whereas, the age, condition, and health of a significant portion of the population of King County places it at risk for serious health complications, including death, from COVID-19.
Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the public at significant risk; whereas a large surge in the number of persons with serious infections can compromise the ability of the regional health care system to deliver necessary health care to the public;
Whereas, the implementation of limitations on events and social gatherings, and use of social distancing decreases the risk of COVID-19 transmission to our most vulnerable populations, and is especially important for people who are over 60 years old and those with underlying health conditions due to the higher risk of severe illness and death from COVID-19;
Whereas, this Order will further reduce the likelihood that many individuals will be exposed to COVID-19 at community events and gatherings and at certain retail establishments, and will thereby slow the spread of COVID-19 in our community;
Whereas, this Order will help preserve critical and limited health care capacity in the County by reducing the spread of COVID-19;
Whereas, this Order is issued in accordance with, and incorporates by reference, the March 11, 2020 Governor’s Executive Proclamation on COVID-19 Community Mitigation Strategies;
Whereas this Order is issued in light of the existence of 420 cases of COVID-19 (including 37 deaths) in King County, as of March 15, 2020, and a significant and increasing number of assumed cases of community transmission and at a time when implementation of large scale community mitigation measures are recommended by the Centers for Disease Control and Prevention;
Whereas, social distancing measures can reduce COVID-19 transmission by
decreasing the frequency and duration of social and other contact among persons of all ages.
Whereas, this Order is issued to prevent circumstances often present in bars, dance clubs, movie theatres, and other social and recreational venues that may exacerbate the spread of COVID-19, such as: (a) a physical environment in which people are in close proximity and have multiple opportunities for close contact with one another that facilitates the spread of COVID-19 and; (b) the difficulty in tracing exposure and implementing traditional public health containment measures;
Whereas, although many residents and businesses followed the voluntary retail guidance issued by Public Health – Seattle & King County on March 11, 2020, confirmed COVID-19 cases have nearly doubled, reflecting both greater testing capacity and also ongoing community transmission of COVID-29;
Whereas, this Order comes after the release of substantial guidance from Public Health— Seattle & King County, the Centers for Disease Control and Prevention, and other public health officials throughout the United States and around the world. The Local Health Officer will continue to assess this quickly evolving situation and may modify or extend this Order, or issue additional Orders, related to COVID-19;
Whereas, the Local Health Officer hereby finds it is necessary to institute additional social distancing measures within King County;
Therefore, as Local Health Officer, I hereby ORDER, that beginning today, March 16, 2020:
COVID -19 Prevention Requirements
Organizers of events of fewer than 50 people and all establishments that are not closed must ensure that the following COVID-19 prevention measures are taken:
Signed and ordered this 16th day of March 2020, in Seattle, Washington, by
Dr. Jeff Duchin Local Health Officer
Public Health – Seattle & King County
What follows is a lengthy quote from a Court of Appeals Opinion that does a nice job of explaining the issue:
Washington cases mention four recognized equitable grounds for awards of attorney fees: bad faith conduct of the losing party, preservation of a common fund, protection of constitutional principles, and private attorney general actions. Dempere v. Nelson, 76 Wn. App. 403, 407, 886 P.2d 219 (1994), abrogated on other grounds by Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). There are three types of bad faith conduct that warrant attorneys fees: (1) prelitigation misconduct, (2) procedural bad faith, and (3) substantive bad faith. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927, 982 P.2d 131 (1999).
Prelitigation misconduct refers to obdurate or obstinate conduct that necessitates legal action to enforce a clearly valid claim or right. Rogerson, 96 Wn. App. at 927. Procedural bad faith is unrelated to the merits of the case and refers to vexatious conduct during the course of litigation, such as delaying or disrupting proceedings. Rogerson, 96 Wn. App. at 928. Substantive bad faith occurs when a party intentionally brings a frivolous claim, counterclaim, or defense with improper motive. Rogerson, 96 Wn. App. at 929. In other words, simply bringing a frivolous claim is not enough; there must be evidence of an intentionally frivolous claim brought for the purpose of harassment. Rogerson, 96 Wn. App. at 929.
Quoted Source: Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758 (2012).
Online businesses like AIRBNB.com often make it impossible to find a mailing address for legal papers on their websites. In the hopes that this blog post is findable via online searches, here is the address for AIRBNB.com that I uncovered on one of my projects:
Thank you for reaching out to inform us of your client’s case.
Our legal team will act in response to a valid legal process. Pertinent documents can be sent to the following address:
CSC Lawyers Incorporating Service
2710 Gateway Oaks Drive, Suite 150N
Sacramento, CA 95833
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Contact Mark D. Walters
There are Big Changes Coming to Washington State Law on Non-Competition Agreements, and one of the changes is the requirement for employers to notify prospective new hires of the company's non-competition restrictive covenant before you hire them.
Here is draft language you can use; modify the red font to match the name of your company and the title of your Employment Agreement:
As a condition of Company Name making this offer of employment to you, on or before your date of hire, you are required to read and sign our Employee Non-Competition, Non-Solicitation, Confidentiality and Inventions Agreement (“Agreement’). A copy of the Agreement is provided with this offer letter. Please read this carefully. Please also note that, while the Agreement will be immediately enforceable in all respects should you accept our offer of employment by signing the Agreement and returning your signed copy to us, the non-competition covenant will only be enforced if, now or in the future, your annualized earnings, as reported in box one of your W-2, exceed $100,000.00, as adjusted annually based on CPI-U inflation after January 1, 2020.
Contact Mark D. Walters
When Governor Jay Inslee signs HB 1450, which is 100% expected, Washington State law governing non-competition agreements will shift significantly pro-employee and pro-independent contractor. Once signed by Governor Inslee, this law will become effective on January 1, 2020.
The very first section of HB 1450 sets the tone: "The legislature finds that workforce mobility is important to economic growth and development [and] that agreements limiting competition or hiring may be contracts of adhesion that may be unreasonable."
HB 1450 defines a non-competition covenant to include "every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind." (Note the inclusion of both written and oral agreements in this very broad definition; see exclusions at the Note below).
Under this upcoming law:
Under this new statute, employee non-competition agreements are void and unenforcible unless:
For Washington based employees and independent contractors, non-competition covenants are void if they require adjudication outside of Washington or deprive the person of the protections under the
This new law includes the following remedy provisions, which are very pro-employee and pro-independent contractor:
Thus, even in cases where the court or arbitrator modifies, or blue pencil's the agreement, the employer is still on the hook for paying statutory remedies.
Once signed, this law will become effective on January 1, 2020; however, it can be retroactively applied to non-competition agreements that were entered into before January 1, 2020, under two circumstances:
Note: The following are excluded from the definition of a non-competition covenant:
A plaintiff must prove the following five elements in a tortious interference with a business expectancy case: (1) the existence of a valid business expectancy; (2) that the defendant had knowledge of that business expectancy; (3) an intentional interference inducing or causing termination of the expectancy; (4) that the defendant interfered for an improper purpose or used improper means; and (5) resultant damage.
Element One: Existence of a Business Expectancy: This first element requires proof of something less than an enforceable contract, though a contract is often involved (i.e. non-competition or non-disclosure agreement). For instance, a prospective contractual or business relationship that would be of economic value such as an prospective customer, vendor or supplier. Here, you only have to show that the future business opportunity is a reasonable expectation and not merely wishful thinking.
Element Two: Knowledge of the Expectancy: The second element requires only for the defendant to have known of facts giving rise to the presence of the business expectancy, and the facts need to show the defendant had awareness of “some kind of business arrangement.”
Element Three: Intentional Interference Inducing or Causing a Breach or Termination of the Expectancy: For the third element, you need to show that the defendant desired to bring it about or that the defendant knew that the interference was certain or substantially certain to occur as a result of the defendant’s action.
Element Four: Interfered with Improper Means: On this forth element, you need to show that the defendant acted with improper motive, improper means, or both.” Improper means,” means the defendant had a duty not to interfere. To establish such a duty, the plaintiff may point to a restrictive covenant in a contract, a statute, regulation, recognized common law, or established standard of trade or profession.
Element Five: Resultant Damage: In all cases, the plaintiff must prove damages with reasonable certainty. This means you must produce evidence sufficient to support the claim that allows a reasonable basis for estimating the without mere speculation or conjecture.
For my lawyer and law student followers, here are a few cases on point:
Pac. Nw. Shooting Park Ass'n, 158 Wn.2d 342, 350, 144 P.3d 276 (2006).
Scymanski v. Dufault, 80 Wn.2d 77, 83, 491 P.2d 1050 (1971).
Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 52 P.3d 30 (2002).
Life Designs Ranch. Inc. v. Sommer, 191 Wn. App. 320, 364 P.3d 129 (2015)
Calbom v. Knudtzon, 65 Wn.2d 157, 165, 396 P.2d 148 (1964).
Pleas v. City of Seattle, 112 Wn.2d 794, 804-05, 774 P.2d 1158 (1989).
Contact Mark D. Walters
Commercial leases are typically very one sided; pro landlord with the landlord dictating the terms and conditions of the lease. Commercial leases often allow the tenant to renew the lease for an additional agreed upon term or terms, provided the tenant follows the notice of intent to renew process and deadlines in the commercial lease.
What happens if the tenant fails to follow the notice of intent to renew process and deadlines in the commercial lease? In most cases, the tenant will be out of luck and lose the lease because the general rule is that an option to renew commercial lease clause is strictly construed and must be exercised in a timely manner. Thus, this could result in eviction, or the landlord requiring the tenant to enter into a new commercial lease. However, there might be another option under the right circumstances if, in my experience, the landlord is attempting to evict the tenant: the tenant may be entitled to an equitable grace period, which (if successful) will save the tenant from its failure to follow the notice of intent to renew process and deadlines and reinstate the commercial lease.
There is a handful of cases on this in Washington State, and Washington State appears to be in the minority on the commercial lease equitable grace period/inequitable forfeiture doctrine. For my lawyer and law student readers, I list the lead cases below.
When presented with a commercial lease equitable grace period/inequitable forfeiture doctrine case, our Courts look to the following factors: (1) whether the failure to give timely notice was purely inadvertent or was the result of intentional, culpable, or grossly negligent conduct; (2) whether an inequitable forfeiture would result if equity does not intervene; (3) whether the tenant's failure to give timely notice resulted in the landlord changing its position in any way, and whether the landlord was prejudiced thereby; (4) whether the lease was for a long term, not a short term; and (5) whether there was undue delay in the tenant giving notice.
Commercial lease equitable grace period/inequitable forfeiture cases are factually dense and highly factually dependent. And, like all lawsuits, there will be a tremendous amount of uncertainty to manage. If you are a landlord considering eviction because your commercial tenant failed to exercise its option to renew the lease on time, or a tenant facing and eviction because you missed the deadlines, I would be happy to talk to you.
Washington State Commercial Lease Equitable Grace Period/Inequitable Forfeiture Cases:
Wharf Rest., Inc. v. Protective Order of Seattle, 24 Wn. App. 601, 605 P.2d 334 (1979)
Heckman Motors v. Gunn, 73 Wn.App. 84, 867 P.2d 683 (1994)
Recreational Equip., Inc. v. World Wrapps NW., Inc., 165 Wn. App. 553 (2011)
Contact Mark D. Walters
Strict Liability for Operators of Places of Public Accommodation Under the Washington Law Against Discrimination
In a landmark decision (01/31/2019), the Washington State Supreme Court held that employers are strictly liable under the Washington Law Against Discrimination for their employee's discriminatory conduct towards a customer in a place of public accommodation.
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