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Raymond v. Pacific Chemical12/13/1999
ntly asserted that there were several problems with Terry's job performance, attire, reports to the company, and interaction with customers and co-workers. Terry later admitted in a deposition that he had complained to his Alaska clients that the reorganization of the sales territories was a mistake and would affect the company's ability to provide service and respond to customers' safety concerns.
After Terry was terminated, Wesmar offered to rehire him to solicit orders from his old Pacific Chemical accounts in Alaska. Although Terry's 1992 employment agreement contained a non-competition covenant, Terry initially received reassurances that Pacific Chemical would not prevent him from working for Wesmar. But after the Raymonds sought additional compensation for Terry's discharge, Pacific Chemical threatened both Terry and Wesmar with litigation to enforce the covenant.
The Raymonds sued Pacific Chemical and Richard Hunter, Glen Gay, William Boring, and Phil Ward, Terry's supervisors at Pacific Chemical and Pace, alleging that Terry's termination violated provisions in the employee handbook and was part of a plan to terminate older sales representatives. The Raymonds also contended that Pacific Chemical's threat to enforce the non-competition covenant constituted tortious interference with a business expectancy, and they sought a declaratory judgment finding that the restrictive covenant was invalid.
The defendants moved for summary judgment on all claims. The trial court granted the motion with respect to all claims except the Raymonds' age discrimination claim against Pacific Chemical, which the Raymonds later voluntarily nonsuited. The court further ruled that in light of its dismissal of the remaining claims, it need not reach the issue of the non-competition covenant's validity.
DISCUSSION
Nonconforming Declarations
At oral argument on the summary judgment motions, the Raymonds moved to strike all evidence submitted by the defendants in support of the motions, arguing in part that the declarations of Glen Gay, Richard Hunter, William Boring, and Phil Ward did not conform to RCW 9A.72.085 and the civil and general rules. None of the declarations were declared under penalty of perjury and under state law, and none stated the place of execution. The court declined to consider the motion, indicating that it was not timely. The Raymonds contend that the court erred in failing to strike the declarations.
A trial court may not consider inadmissible evidence when ruling on a summary judgment motion. King County Fire Protection Dists. Nos. 16, 36, & 40 v. Housing Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994). But if the documents supporting the motion do not conform to the requirements of the rules, the opposing party must file a timely motion to strike the documents. Burmeister v. State Farm Ins. Co., 92 Wn. App. 359, 365, 966 P.2d 921 (1998); Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 881, 431 P.2d 216 (1967). The court's ruling on a motion to strike is discretionary. Burmeister, 92 Wn. App. at 365.
Here, the Raymonds did not move to strike the nonconforming declarations until oral argument on the summary judgment motions. In addition, before judgment was entered, the defendants submitted amended declarations that were identical in content and that complied with the statutory requirements. Thus, there is no indication that the trial court improperly relied on inadmissible testimony in ruling on the summary judgment motions. We conclude that the trial court did not err in refusing to consider the motion to strike.
Employee Handbook Claim The Raymonds next contend tha
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