Party Notice: YOSHABEL CLEMENTS VS. SOJOURN PROPERTIES INC. et al

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                                eu A

CHARLES S. REDFIELD, SBN 136233
LOW, BALL & LYNCH

505 Montgomery Street, 7th Floor

San Francisco, California 94111
Telephone: (415) 981-6630
Facsimile: (415) 982-1634
rkawar@lowball.com

Attorneys for Defendants
SOJOURN PROPERTIES, INC.
and STEVEN G. KING

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

12/22/2015
Clerk of the Court
BY:ROMY RISK

Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

YOSHABEL CLEMENTS, an individual,
Plaintiff,
vs.

SOJOURN PROPERTIES INC., a California
corporation; STEVEN G. KING, an
individual; BRILLANT LAW FIRM, a
California professional corporation; DAVID
BRILLANT, an individual; BRIAN
CARIDEO, an individual; and DOES 1
through 50, inclusive,

Defendants.

No. CGC-13-533602
(Unlimited Jurisdiction)

REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANTS SOJOURN
PROPERTIES, INC. AND STEVEN G. KING’S
MOTION FOR RECOVERY OF ATTORNEY’S
FEES FROM PLAINTIFF YOSHABEL
CLEMENTS FOR PREPARATION OF
RESPONDENTS’ BRIEF

Date: January 29, 2016
Time: 9:30 a.m.
Dept.: 302

Reservation No. 12220129-02

Pursuant to Evidence Code § 452(d)(1), defendants Sojourn Properties, Inc. and Steven G.

King’s (hereafter referred to as “Defendants”) request that this court take judicial notice of the

following documents which were filed in courts of California. The attached documents support

defendants’ claim for the recovery of attorney’s fees in this motion.

Tab 1:

Order Granting Defendants Sojourn Properties, Inc. and Steven G. King’s motion

to strike pursuant to C.C.P. § 425.16, filed on December 30, 2013.

Tab 2:

Respondents’ Brief in First Appellate District of the Court of Appeal of the State

of California (the “Appellate Court”), case number A141288.

-I-

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS SOJOURN PROPERTIES, INC. AND STEVEN
G. KING’S MOTION FOR RECOVERY OF ATTORNEY'S FEES

481203\SFO730\Pleadings\Mot, Rec, Atty. Fees\M-RJN-Recovery.docxTab 3: Appellate Opinion in the

Appellate Court, case number A141288.

Tab 4: Remittitur Issued by Court of Appeal in case number A141288.

Dated: December 22, 2015

By.

LOW, BALL & LYNCH

CHARLES S. REDFIELD
Attorneys for Defendants
SOJOURN PROPERTIES, INC.
and STEVEN G. KING

-2-

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS SOJOURN PR OPERTIES, INC. AND STEVEN

G. KING'S MOTION FOR RECOVERY OF ATTORNEY’S FEES

¥\1203\SFO730\Pleadings\Mot. Rec. Atty. Fees\M-RJN-Recovery docxTAB 1Dn wA BF YB Ne

RAMSEY F. KAWAR, SBN 213497
‘KURT BRIDGMAN, SBN 145151

LOW, BALL & LYNCH PPLE D

505 Montgomery Street, 7th Floor Sen Francisco County Superior Court

San Francisco, California 94111

Telephone: (415) 981-6630 DEC 3 0 2013.

Facsimile: (415) 982-1634 :

tkawar@lowball.com CLERK OF THE COURT

kbridgman@lowbail.com gy: MARIA OLOPERNES-PENA _
7 Daputy Cierk

Attorneys for Defendants
SOJOURN PROPERTIES, INC.
and STEVEN G. KING

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

YOSHABEL CLEMENTS, an individual, No, CGC-13-533602
(Unlimited Jurisdiction)
Plaintiff, :
ORDER GRANTING
vs. DEFENDANTS SOJOURN PROPERTIES,

INC, AND STEVEN G. KING’S MOTION
SOJOURN PROPERTIES INC., a Califormia TO STRIKE PURSUANT TO C.C.P.

corporation; STEVEN G. KING, an SECTION 425.16 [Anti-SLAPP Statute];
individual; BRILLANT LAW FIRM, a ATTORNEY’S FEES. OF $3,400
California professional corporation; DAVID :
BRILLANT, an individual; BRIAN Hearing Date: December 30, 2013
CARIDEO, an individual; and DOES 1 Department: 501
through 50, inclusive, Time: 9:30 aan.

Defendants.

The motion to strike of defendants SOJOURN PROPERTIES, INC. and STEVEN G. KING to
plaintiff YOSHABEL CLEMENTS’ complaint for malicious prosecution came on Tegularly for hearing
on December 30, at 9:30 a.m., in Department 501 of this Court.

Having read and considered all papers submitted by the parties in tegard to the demurrer, and

having heard all oral argument presented by the parties relating thereto, this Court adopts its tentative

tuling as follows:

Mth
gy “le

APB.ORQSED] ORDER GRANTING DEFENDANTS SOJOURN PROPERTIES, INC. AND STEVEN G. KING'S
MOTION TO STRIKE PURSUANT TO C.CP. SECTION 425.16 [Anti-SLAPP Statute],ATTORNEY’S FEES OF $3.400Defendants SOJOURN PROPERTIES, INC. and STEVEN G. KING’s motion to strike
Plaintiff's Complaint for Malicious Prosecution is GRANTED. Defendants shifted their burden to show
that Plaintiff's complaint arises out of protected activity, i.e, filing and maintaining unlawful detainet
action CUD-11-639673.

Plaintiff failed to file a timely opposition on November 14, 2013. Instead, Plaintiff filed and
served by mail a First Amended Complaint on November 15, 2013. Plaintiff's piecemeal opposition
filed on December 16,-19, 23, and 27 2013 is stricken as untimely.

Even if the opposition was considered, Plaintiff fails to sustain her burden under the second
prong of C.C.P. § 425.16 and show a probability of prevailing on the merits on the Complaint.

Plaintiff may not amend the complaint before the hearing on-anti-SLAPP motion, Salma v,
Capon (2008) 161 Cal-App.4th 1275. Plaintiff's reliance on Lam v. Ngo (2001) 91 Cal.App.4th 832 for
the proposition that the First Amended Complaint is the operative pleading under the circumstances is
misplaced. In Lam, a First Amended Complaint was filed before an anti-SLAPP and the issue was
timeliness of the anti-SLAPP motion,

Attorneys’ fees and costs are ordered [payable by Plaintiff and/or her counsel within 14 days of
this order] in the amount of $3,400,

ITIS SO ORDERED.
HARRY DORFMAN
DEC 36 2013
Dated:
JUDGE OF THE SUPERIOR COURT
HARRY DORFMAN
V 2.Ce YN DH KR wD wD Ee

Ba
Dn wa FF BH EB GS

‘Yostisbei Clements y. Sojourn Properties, Inc,
County Superior Court Case Now: CGC 13 533602

PROOF OF SERVICE
Tam over the age of cighteen (18) years and not a party tothe within action. Iam employed at
Low, Ball & Lynch, 505 Montgomery Street, 7th Floor, San Francisco, California 94111.
On the date indicated below, I served the following documents enclosed in a sealed envelope on
the listed addresses:
DOCUMENT: NOTICE OF ENTRY OF ORDER GRANTING DEFENDANTS SOJOURN
PROPERTIES, INC. AND STEVEN G. KING’S MOTION TO STRIKE
PURSUANT TO C.C.P. SECTION 425.16 [Anti-SLAPP Statute] AND
_ AWARDING ATTORNEY’S FEES OF $3,400
ADDRESSES: :
Joseph K. Bravo David J. Brilliant
Bravo & Margulies - BRILLANT LAW FIRM
901 Market Strect, Suite 450 2540 Camino Diablo, Suite 200
San Francisco, CA 94103 Walnut Creek, CA 94597
Telephone: 415-512-6700 Telephone: (925) 274-1400
Facsimile: 415/512-6716 Facsimile: (925) 274-9696
Attys for Sojourn Properties, Inc, and Steven G. King
William E, Manning
Van De Poel, Levy & Allen, LLP
1600 S Main Plaza, Suite 325
Walnut Creek, CA 94596
Phone: (925) 934-6102
Facsimile: (925) 934-6060
wmanning@vanlevylaw.com
Attys for David Brillant and Brian Carideo

TX] (BY MAIL) I placed a true copy, enclosed in a scaled, postage paid envelope, and deposited
same for collection and mailing at San Francisco, California, following ordinary business
practices, addressed as set forth below.

[] (BY FACSIMILE) I caused the said document to be transmitted by Facsimile transmission to
the number indicated after the addresses noted above or on the attachment herein,

tl (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be
deposited in a box or other facility regularly maintained by the overnight courier or driver
authorized by the overnight courier to receive documents,

fl (BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED) I placed a true copy,
enclosed in a sealed, postage-paid envelope, and deposited same for collection and mailing at
San Francisco, California, foliowing ordinary business practices, addressed as set forth below.

t1 (BY E-MAIL/ELECTRONIC TRANSMISSION) I caused the said document(s) to be sent
to the person(s) at the e-mail address(es) indicated above or on the attachment herein.

PRONE OF SERVICRCc me YN HW kB wm. DY Ee

BoP BR Be RB Be oP BP eB oe
BBSRS&ERDARE RE RSE

24

27
28

I am readily familiar with this law firm’s practice for the collection and processing of documents
for regular and certified mailing, overnight mail, personal service, electronic transmission, and facsimile

transaction, and said document(s) are deposited with the United States Postal Service or overnight courier

‘|| depository on the same day in the ordinary course of business.

I declare under penalty of perjury that the foregoing is true and correct.

Executed at San Francisco, California on Dacember 30, 2013.

Ylrveray rll dan

"Patricia Milligan

2.
PROOF OF SERVICETAB 2IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA,
FIRST APPELLATE DISTRICT,
DEVISION 1

YOSHABEL CLEMENTS
Plaintiff and Appeliant

Vv.

SOJOURN PROPERTIES, INC. ET AL.

Defendants and Respondents

Appeal No. A141288, Div. I

‘The Honorable Harry Dorfman, Judge
San Francisco County Superior Court, Department 514
Superior Court Case No. CGC-i3-533602

RESPONDENTS’ BRIEF

Charles S. Redfield, State Bar No. 136233
LOW, BALL & LYNCH
505 Montgomery Street, 7th Floor
San Francisco, CA 94111-2584
Telephone: 415-981-6630; Fax: 415-982-1634
Attorneys for Defendants and Respondents
Sojourn Properties, inc. and Steven G. KingTO BE FILED IN THE COURT OF APPEAL APP-008

‘Court of Appeal Case Number:

COURT OF APPEAL, First APPELLATE DISTRICT, DIVISION One A141288
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): ‘Superior Court Case Number,
Charles S. Redfield, SBN 136233 CGC-13-533602

| LOW, BALL & LYNCH
505 Montgomery Street, 7th Floor
San Francisco, CA 94111-2584
TeepHone No. (415) 981-6630 FaXxNo. Optionay: (415) 982-1634
E-MAIL ADDRESS (Optional:
ATTORNEY FOR (Name): Respondents Sojourn Properties, Inc. and Steven G. King

FOR COURT USE ONLY

APPELLANT/PETITIONER: Yoshabel Clements

RESPONDENT/REAL PARTY IN INTEREST: Sojourn Properties, Inc. et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): [TX] INITIAL CERTIFICATE [[_] SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a
motion or application in.the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.

1. This form is being submitted on behalf of the following party (name):Sojourn Properties, Inc. and Steven G. King

2. a. (__] There are no interested entities or persons that must be listed in this certificate under rule 8.208.
b. [X] Interested entities or persons required to be listed under rule 8.208 are as follows:

Full name of interested Nature of interest
entity or person (Expiain):
(1) Scottsdale insurance Company Insurance company for Respondents.
(2)
(3)
(4)
6)

[""] Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

L
Date: February ©, 2015

Charles S. Redfield >
(TYPE OR PAINT NAME} (SIGNATURE OF PARTY OR ATTORNEY)
rage ot
"ol Cama ot Caton CERTIFICATE OF INTERESTED ENTITIES OF PERSONS eel Fu of Cour, es 5.88

APP-008 [Rev. January 1, 2009) lutions”
ta busIN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA,
FIRST APPELLATE DISTRICT,
DIVISION L

YOSHABEL CLEMENTS
Plaintiff and Appellant

Vv.

SOJOURN PROPERTIES, INC. ET AL.
Defendants and Respondents

Appeal No. A141288, Div. 1

The Honorable Harry Dorfman, Judge *
San Francisco County Superior Court, Department 514
Superior Court Case No. CGC-13-533602

ee En EET PED HSA
RESPONDENTS’ BRIEF
ee

Charles S. Redfield, State Bar No, 136233
LOW, BALL & LYNCH
. 505 Montgomery Street, 7th Floor
San Francisco, CA 94111-2584
Telephone: 415-981-6630; Fax: 415-982-1634
Attorneys for Defendants and Respondents
Sojourn Properties, Inc. and Steven G. KingTABLE OF CONTENTS

A. Background Facts... cccssesssssecsesserseesneesee
B. Procedural Chronology of Anti-SLAPP Motion to Strike ........... 10
Cc. Procedural Chronology of Clements’ Motion for
Reconsideration.........csesecsessescnsessesseesseeenseess
D. Procedural Chronology of Clements’ Motion for Section
© ATB(D) Relief oo... cseccseessssesesssecssseesssecseaduesarsusecaseusearsesensvesessee 16
ARGUMENT ...
A. — Clements’ Original Complaint was the Operative
oe eee to © Respondents’ Anti-SLAPP Motion to
Strike .. a bande dateededad sh andetebabeedela
B. The Trial Court did not Abuse its Discretion by Refusing
to Consider Ms. Clements’ Late-Submitted Written
Opposition to the Respondents’ Anti-SLAPP Motion to
Strike ..
Cc, The Trial Court’s Order is not Subject to Reversal Due to
the Trial Court’s Sua Sponte Continuance of the Hearing
Date on Respondents’ Motion...
D. The Trial Court’s Award of Respondents’ Attorney's
Fees as a Prevailing Party was Proper......sssssesssssssssessssssseeesssseeees 36
E. The Trial Court Properly Granted Respondents’ Anti-

SLAPP Motion to Strike Ms. Clements’ Complaint as a
Matter Of Law......ecssssssessccssscsssssessessaseseseesesecesersssessssssssssensesesaes 38

1, The Anti-SLAPP Statute — Two Step Analysis ...0....0..00 38TABLE OF CONTENTS

Page

Respondents Carried Their Burden to Establish That
Clements’ Complaint was Subject to an Anti-SLAPP
Motion to Strike .essccecseecsuecsnseessstessesesssessseessstescssunessunesevareese 41
1. The Anti-SLAPP Statute Applied to Clements’

Allegations of Malicious Prosecution ...........ceceseeeeeee 41
2. Respondents’ Unlawful Detainer Complaint was

not Prosecuted With Malice ......cccecssseessesssecesersseesseeaee 49
3. Respondents’ Unlawful Detainer Complaint was

not Based Upon Ulterior Motives .....ccccccssseesssesscsseseessees 50
4. Respondents’ Unlawful Detainer Complaint was

not Terminated in Clements’ Favor ......cesescssesssesssesneeeee 51

Clements did not Provide Sufficient Evidence to Rebut
Respondents’ Evidence and Demonstrate a Probability of
Prevailing ..

Clements Waived her Objection to Steven G. King’s
Declaration ...cescssseccceeecssscsssesustecseesneessnetessssasesesscesesvacssaees 55

Clements’ Failure to Address the Orders Denying

Clements’ Motions for Relief and Reconsideration in Her
Opening Brief is an Abandonment, Waiver and Forfeiture
of Her Appeal on the Orders ..

CONCLUSION ...ccsssssesessssessscssssnvessnsnesssssnnscsessuiseseeessunsessssasanaesecesanersesee 61

PROOF OF SERVICE...TABLE OF AUTHORITIES

Page
CASES
1100 Park Lane Associates v. Feldman
(2008) 160 Cal.App.4th 1467 v.ecseccseseeseseesteseeeeesnees 43-44 47, 48

Action Apartment Ass’n, Inc. v. City of Santa Monica
(2007) 41. Cal 4th’ 1232 cccccssccsssessesnseseeesesssesssssseesesessseesens 48, 53

Bank of America Nat’l Trust & Sav. Ass’n v. Giant Inland
Empire R.V. Ctr., Inc.
(2000) 78 Cal.App.4th 1267...

Barak v. Quisenberry Law Firm
(2006) 135 Cal. App. 4th 654 .

Behr v. Redmond (2011) 193 Cal.App.4th S27 .ccsscsssssesssesseeseessesneeneenees 58
Blank v. Kirwan (1985) 39 Cal.3d 311. cesseeeseesneesseesseeessenenees 6, 23
Briggs v. Eden Council for Hope and Opportunity
® (1999) 19 Cal.4th 1106” deLetataldedalebalelababshdabeldedelelaodataberdedeleta 44, 47-48

Cahill v. San Diego Gas & Elec. Co.

(2011) 194 Cal. App.4th 939 ..o.ceecesssssnesssessssueessecessseenmesssvseneasnes 38
Chauncey v. Niems

(1986) 182 Cal. App.3d 967....ssssessssssssesssecsetesessaseessneesseresesteseeesaes 41
Church of Scicatology of Calif. v. Wolletsheim

(1996) 42 Cal App.4th 628 ......csecssesssssessseeserssvessveceereeererssereres 39, 52

Clark v. Mazgani
(2009) 170 Cal-App.4th 1281 .

Conroy v. Spitzer
(1999) 70 Cal.App.4th 1446 ...

Denham v. Super.Ct. (Marsh & Kidder)
(1970) 2 Cal.3d 557 ..esscsssssssnsssosesssssesarenessssssenenesnnecsverneeeessaresee 6, 23

Dickens v. Provident Life & Acc. Ins. Co.
(2004) 117 Cal. App.4th 705 ......escessessesesceeseeseressseeeaetessseesesseesees 41

Drum v. Bleau, Fox & Associates

(2003) 107 Cal.App.4th 1009 .......ccessecssesssesseesseessresssenessiesseessesses 46
Dwight R. v. Christy B.
(2013) 212 Cal. App.4th 697 .oecesessesssseessnssseeessuecsssuessseess 39

-iii-TABLE OF AUTHORITIES
Estate of Cairns
(2010) 188 Cal. App.4th 937 v.eseesseseesssseecsssscssessesseneessenseesesarenessees 58

Farmers Ins. Exchange v. Super.Ct. (Wilson)
(2013) 218 Cal.App.4th 96 .

Fasuyi v. Permatex, Inc.

(2008) 167 Cal.App.4th 681 .c.cccecsecsssesseesesssesesesasesssssssessssenreesees 60
Garcia v. Hejmadi

(1997) 50 Cal App.4th 674 v..escesessesseessssesssessessensenesssssseseessenssneeneees 59
Gilberd v. AC Transit

(1995) 32 Cal. App.4th 1494. cesesssseseseessesreseenseesessessesnssensssnseneessees 59
Gilbert v. Sykes

(2007) 147 CalApp.Ath 13 ...ccesesssscssssesseressenssessessensseessenssereneenees 39
Gordon v. Nissan Motor Co., Ltd.

(2009) 170 Cal.App.4th 1103 oo. cecesscsessessesneeeeteerssccsesseeesesstenseess 6

Hupp v. Freedom Communications
(2013) 221 Cal. App.4th 398 .....csceescsseseessesseenesseestensssnseeesenessarereeess 29

Jacob B. v. County of Shasta
(2007) 40 Cal.4th 948...

Jarrow Formulas, Inc. v. LaMarche

(2003) 31 Cal. 4th 728 ...cscseccsssscssssessesesenssseeseaessecserenecsesresseresssesteases 41
JKC3H8 v. Colton

(2013) 221 Cal. App.4th 468 ......cceseesesseesestesnsessrecseneersssessseanssneneees 21
Kelly v. CB & I Constructors, Inc.

(2009) 179 Cal. App.4th 442 .r.scssesscrescersessssnssrseseesnecsnsnessesenseseenees 58
Lucas v. Santa Maria Pub. Airport Dist.

(1995) 39 Cal. App.4th 1017 w.ccescescecsssseeesessssesssseeeseseeneeseatenseceenenee 59
Lyons v. Chinese Hosp. Ass’n

(2006) 136 CalApp.4th 1331 v.ecsecsesssssesnessesnessessneessesaneaseneessnesnes 58
Marlin v. Aimco Venezia, LLC

(2007) 154 Cal. App.4th 154 w.ccecesseseesesseseesessnesnesnesesnaseesessneenseanees 48

Marriage of Falcone & Fyke
2012) 203 Cal.App.4th 964 ...

Miller v. Anson-Smith Construction Co.
(1960) 185 CaLApp.2d 161... ce ccseeesesesareasenesesssseseseteeanearesees 56TABLE OF AUTHORITIES

Page

Obregon v. Super.Ct. (Cimm’s, Inc.)

(1998) 67 Cal App.4th 424 oe ccccssecsscesseesseesnmtesseeestssesseecnesenes 6
Pannu v. Land Rover North America, Inc.

(2011) 191 Cal.App.4th 1298 v.cecessseeseestecessseecnessesssesseestesssessses 6
Peak-Las Positas Partners v. Bollag

(2009) 172 Cal.App-4tl 100 voces ceessecssssscsecssnsesessesssesneesseessecsees 5
People ex rel. Strathmann v. Acacia Research Corp. (2012) 210

Cal App.4th 487 .oesescssecesseessessssssenseseensecsnvessereesnesnanesseseenaeesseneess 20
People v. Kennedy

(2005) 36 Cal.4th 595 ..cessesesecsssssescneesseseesneesneesesssetsanessesneesscessee 56
People v. Partida

(2005) 37 Cal.4th 428

Personal Court Reporters, Inc, v. Rand
(2012) 205 Cal. App. 4th 182 .

Ramalingam v. Thompson
(2007) 151 Cal-App.4th 491 oc ccsseesseessecsseesecnsecsnessssneanesseeeses 53

Robinson v. Varela
(1977) 67 Cal App.3d 611... ccesceecsesssescsecnessneeceessaeesaeestecseesneeeaee 60

Rosenaur v. Scherer
(2001) 88 Cal. App.4th 260 w..cecsesssecsescssesssecsnscssssssasessesssuesseesssenses 40

Ruiz v. Harbor View Community Ass’n
(2006) 134 Cal.App.4th 1456 .....scsssesssecnecssersecereecaecerersesneesnteese 52

Salma v. Capon
(2008) 161 Cal. App.4th 1275 vicssesccsssesseseneeneeseens 14, 17-18, 20-21

San Lorenzo Valley Community Advocates for Responsible
Educ. v. San Lorenzo Valley Unified School Dist.
(2006) 139 Cal.App.4th 1356

Simmons v. Allstate Ins. Co.
(2001) 92 Cal.App.4th 1068 ...

Sonic Mfg. ata Inc. v. AAE Systems, Inc.

(2011) 196 Cah App.4th 456 vccccscssssssssssessssssesssssssssssusessssssesssesense 5
Soukup v, Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260 ooo eccecsceesceeccsstscssnsessnecssserenseccenescessntersnseesenses 41

“veTABLE OF AUTHORITIES

Varian Med. Systems, Inc. v. Delfino

(2005) 35 Cal. 4th 180 ...secsssessseenseseneensssnneetsnstsenn

Webb v. Youmans

(1967) 248 Cal-App.2d 85. sscssssesssenesesssnseeesssessseset

Willis v. State of Calif.

(1994) 22 Cal App.4th 287 seessessssssesesssesssseesssensseuesss

Zamora v. Clayborn Contracting Group, Inc.

(2002) 28 Cal 4th 249 v.eccccssssssssssessnssesssnsesesssssessessee

Zhou v. Unisource Worldwide, Inc.

(2007) 157 Cal. App.4th 1471 csssessssesssessssssseessssesn

STATUTES

California Civil Code

California Code of Civil Procedure

§ 425.16...
§ 425.16(b)..
§ 425.16(b)(1)
§ 425.16(b\(2)
§ 425.16(e)(1)(2)
§ 425.16(f)
§ 453...
$472.
§ 473.
§.473(b)
§ 1005...
§ 1005(b).
§ 1005(c).
§ 1008.

-vi-

10, 45, 54
, 44, 53, 54

25, 27, 33
..6, 30, 31
. 13, 18-19
5, 36-37, 58
. passim
24-25, 30
, 25, 28, 31TABLE OF AUTHORITIES

§ 1161...
§ 2015.5.

California Evidence Code

§ 353...
§ 354...
§ 451...
§ 452...

OTHER AUTHORITIES

Witkin, California Evidence, 5th Ed., Vol. 3,
$§ 390 and 391 (pp. 545-546). eecsecessesseeereseesneeseesnsenesseeseesacese 56L INTRODUCTION

The trial court properly granted an Anti-SLAPP motion to strike
Yoshabel Clements’ (“Appellant” or “Clements”) malicious prosecution
complaint against Sojourn Properties, Inc. (“Sojourn”) and Steven G. King
(“King” and collectively “Respondents”). Clements provides no basis for
reversal of the trial court’s orders.

The Harcourt Hotel is a single room occupancy (“SRO”) hotel
located at 1105 Larkin Street in San Francisco. Sojourn is the Harcourt
Hotel property manager. Steven G. King is the owner of Sojourn. Ms.
Clements lives in the Harcourt Hotel with her two children, and ex-husband
attorney John Hanlin.

Clements incorrectly applies the de novo standard of appellate
teview to all of the issues in her opening brief. However, only the grant of
Respondents’ Anti-SLAPP motion to strike is subject to de novo review.
For all other issues, the abuse of discretion standard applies. The de novo
standard does not apply to Clements’ discussion of issues related striking of
untimely opposition papers or admissibility of evidence. Failure to cite the
proper standard of review is a concession that her appeal lacks merit. The
trial court’s discretionary decision to strike Clements’ opposition papers

and evidence should not be disturbed.

-1-A threshold issue is the review of the trial court’s discretionary
rulings on Clements’ untimely opposition papers. Respondents respectfully
request this Court to make a determination on this issues based upon the
abuse of discretion standard to ascertain the record reviewable de novo for
the trial court’s order granting Respondents’ Anti-SLAPP motion to strike.
This Court should disregard the stricken evidence to which Ms. Clements
refers throughout her brief. Clements surreptitiously includes numerous
references to evidence not considered by the trial court.’ Ms. Clements fails
to establish why there was an abuse of discretion by the trial court striking
Clements’ untimely evidence in opposition. The stricken evidence should
therefore also be disregarded by this Court.

Even if this Court did consider Clements’ untimely opposition and
evidence on review, the opposition was not sufficient to sustain her burden
in opposing Respondents’ Anti-SLAPP motion. The undisputed facts are
that Ms. Clements failed to fill out an application to establish a long-term

tenancy at the Harcourt Hotel. Sojourn served Ms. Clements with a three-

* The documents stricken by the trial court are designated as CT 379-469;
CT 494-826; and CT 839-841. The documents that the court denied
Clements’ request for judicial notice for documents designated as CT 995-
1266; CT 1271-1897; CT 2019-2055; and CT 2068-2095. The trial court
also refused to consider deposition transcripts of Steven G. King and Galo
Dzib from Respondents’ unlawful detainer action against Clements. These
“deposition transcripts were lodged both in the trial court and this Court.
Citations to such evidence are included throughout Clements’ statement of
facts, including the entirety of section IT.A, pages 12 through 14, and pages
16 through 18.day notice, and subsequently filed an unlawful detainer complaint against
her. Sojourn voluntarily dismissed the unlawful detainer complaint without
prejudice shortly before trial.

Ms. Clements thereafter filed this malicious prosecution action and
claimed that the prosecution of the unlawful detainer complaint was illegal
conduct. However, the unlawful detainer complaint was protected conduct.
Pursuant to Code of Civil Procedure Section 425.16 (“Anti-SLAPP
statute”), a cause of action against a person arising from any act in
furtherance of the person’s constitutional “right of petition” or “free
speech” in connection with a “public issue” must be stricken (on motion)
unless the court finds that plaintiff has established a “probability” of
prevailing on the claim.

Tn her opening brief, Ms. Clements reiterates the same points made
in her opposition to the Anti-SLAPP motion to strike, her motion for relief
pursuant to Code of Civil Procedure Section 473(b), and her motion for
reconsideration pursuant to Code of Civil Procedure Section 1008. Yet
Clements did not provide sufficient and credible evidence to support that
Respondents’ prosecution of the unlawful detainer complaint was
malicious, without probable causc, based upon ulterior motives, and that
Clements obtained a favorable termination. She has provided no relevant
evidence beyond repeating the allegations in her complaint. No specific

facts regarding her failure to address the three-day notices was provided to

3+the trial court. In addition, the evidence presented by Clements was not
clear and convincing as required for her punitive damages allegations.
Rather, Clements offered two identical declarations reciting speculative
statements and generalized conclusions of law which were copied verbatim
from her complaint. As such, Clements had not established that her
complaint has even minimal merit or shown that she would prevail despite
Respondents’ affirmative defense of the Civil Code Section 47 litigation
privilege.

Clements’ complaint for malicious prosecution was properly stricken
by the trial court. In addition, the trial court’s decision to strike Clements’
untimely written opposition to Respondents’ motion was a proper exercise
of the trial court’s discretion. Respondents therefore respectfully request

this Court to affirm the orders of the trial court.

II. ISSUES PRESENTED

These issues and respective standards of review were not concisely
or properly presented by Appellant Yoshabel Clements’ opening brief.
Notwithstanding, Clements’ opening brief raised the following issues:

1. Was Ms. Clements’ initial complaint the operative pleading
subject to Respondents’ Anti-SLAPP Motion to Strike?

2. Did the trial court abuse its discretion by refusing to consider Ms.
Clements’ late-submitted opposition, evidence and requests for
judicial notice submitted in opposition to the Respondents’ Anti-
SLAPP Motion to Strike?3. Did the trial court’s sua sponte continuance of the hearing on
Respondents’ Anti-SLAPP Motion to Strike provide a second
opportunity for Clements to file and serve written opposition papers?
4. Is the trial court’s award of attornéy’s fees to Respondents as
prevailing party of Respondents’ Anti-SLAPP Motion to Strike a
basis for vacating the order granting the motion?

5. Did the trial court properly grant Respondents’ Anti-SLAPP
Motion to Strike Ms. Clements’ complaint?

Although Clements has appealed the orders denying Clements’ motions
pursuant to Code of Civil Procedure Sections 473 and 1008, Clements
presents no separate argument or substantive discussion of issues related to
the orders on these motions. Clements therefore concedes that her appeal of

the orders Jacks merit and the orders must be affirmed.

TH. STANDARDS OF REVIEW

Clements fails to provide the proper standards of review for all of
the appealed issues except for the de novo review of the Anti-SLAPP order.
Ascertaining the proper standard of review is thus fundamentally important
to the presentation of an effective appeal. Peak-Las Positas Partners v.
Bollag (2009) 172 Cal.App.4th 101, 105. “Arguments should be tailored to
the applicable standard of review . . . Failure to acknowledge the proper
scope of review is a concession of a lack of merit.” Sonic Mfg.
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465

(internal quotes and citation omitted). More than one standard may be

5.applicable in a single case. See Bank of America Nat'l Trust & Sav. Ass’n v.
Giant Inland Empire R.V. Ctr., Inc. (2000) 78 Cal.App.4th 1267, 1276;
Obregon v. Super.Ct. (Cimm’s, Inc.) (1998) 67 Cal.App.4th 424, 430.

Under the “abuse of discretion” standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of “a clear
case of abuse” and “a miscarriage of justice.” Blank v. Kirwan (1985) 39
Cal.3d 311, 331; Denham v. Super.Ct. (Marsh & Kidder) (1970) 2 Cal.3d
557, 566. The “abuse of discretion” standard is not met simply by arguing a
different ruling would have been “better.” Discretion is “abused” only
when, in its exercise, the trial court “exceeds the bounds of reason, all of
the circumstances before it being considered.” Denham, supra, 2 Cal.3d at
566 (internal quotes omitted).

Appellate courts generally apply the abuse of discretion standard of
review to any trial court ruling on the admissibility of evidence. Pannu v.
Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317;
Gordon v, Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111;
Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476. An
abuse of discretion standard shall also apply to a court’s refusal to take
judicial notice of proffered material that is subject to discretionary judicial
notice pursuant to Evidence Code Sections 452 and 453. See Willis v. State
of Calif. (1994) 22 Cal. App.4th 287, 291 [trial judge’s decision not to take

judicial notice “will be upheld on appeal unless the reviewing court

6-determines that the party furnished information to the judge that was so
persuasive that no reasonable judge would have refused to take judicial
notice of the matter” (internal quotes omitted)].

Abuse of discretion is the proper standard of review for the trial
court’s striking of Clements’ untimely opposition. The standard also applies
to refusal to take discretionary judicial notice of late-submitted evidence.
De novo review does not apply to the trial court’s refusal to consider
Clements’ untimely evidence in opposition, or its refusal to take permissive
judicial notice. Abuse of discretion is the proper standard of review for

these matters.

IV. STATEMENT OF THE FACTS

Clements provides an expansive statement of facts which includes
evidence and requests for judicial notice submitted but stricken from the
trial court’s records because it was not timely submitted. As further
explained below, whether the trial court properly disregarded evidence
cited throughout her statement of facts is subject to an abuse of discretion
standard of review. Respondents therefore provide the following concise

statement of facts for this Court’s review.

A. Background Facts

Sojourn Properties, Inc. (“Sojourn”) operates and manages the

Harcourt Hotel located at 1105 Larkin Street in San Francisco, California.

T+(CT 178.) Steven G. King (“King”) is a shareholder and the President of
Sojourn. (CT 178.)

Appellant Yoshabel Clements initially was to pay rent weekly to
Sojourn for a short-term tenancy at the Harcourt Hotel. (CT 178-9.) Her
tenancy was not intended to be long-term. (CT 179.) If her tenancy was to
extend past four weeks, Sojourn required Clements to also complete the
necessary applications for long term tenants that verified credit,
employment status, income, prior residences and references. (CT 179.)
After 28 days, on November 29, 2011, Sojourn properly served two three-
day notices to Clements. (CT 179.) Such notice is as a mandatory
prerequisite to filing an unlawful detainer action. Within three days,
Clements failed to submit a requisite rental application or provide
information necessary to establish a long-term tenancy. (CT 179.)
Clements’ tenancy was effectively terminated on December 2, 2011, by
failing to comply with the three day notice to perform or quit. (CT 179.)
However, Clements remained in the unit and has not paid any rent since
December 2, 2011. (CT 179.)

Respondents thereafter filed and served an unlawful detainer
complaint against Clements in San Francisco County Superior Court, Case
No. CUD-11-639673, on December 6, 2011. (CT 130-138.)

Within their constitutional right, Respondents filed an unlawful

detainer action on December 6, 2011, based on Clements’ failure to comply

-8-with the Three-Day Notice to Perform or Quit. (CT 182-183; CT 281-286.)
In the unlawful detainer action, Clements was represented by her present
counsel in this action. (CT 182-183; CT 305.) Clements demurred to the
unlawful detainer complaint. (CT 182-183; CT 289-291.) Sojourn opposed
the demurrer. (CT 182-183; CT 294-297.) The trial court overruled
Clements demurrer. (CT 182-183; CT 300.)

Multiple sessions of mediation and settlement conferences occurred
in the Unlawful Detainer action as reflected in the trial court’s register of
actions. (CT 182-183; CT 303-305.) However, therein Clements introduced
allegations of inhabitable conditions at the subject property. (CT 170.) In
addition, Clements’ counsel represented that they intended to file a
complaint alleging habitability violations at the Harcourt Hotel, but were
delayed because they were unable to secure guardians ad litem for
Clements’ two children who resided in the same unit. (CT 170.) The parties
therefore were unable to settle all of the issues before a trial on the
Respondents’ unlawful detainer action. Rather than expend resources on
two separate trials — (1) the unlawful detainer and (2) the anticipated
habitability action Clements was threatening to file - Respondents desired
to litigate and/or settle all of the issues in one action. (CT 170.)
Respondents therefore voluntarily dismissed the unlawful detainer
complaint without prejudice to facilitate an alternative dispute resolution

process to resolve all parties’ claims. (CT 170.)

-9-Clements thereafter filed a complaint including habitability
allegations against Respondents in San Francisco County Superior Court,
Case No. CGC-12-526503. (CT 182-183; CT 202-275.)

On August 16, 2013, Clements filed her initial complaint in this
action for malicious prosecution. (CT 12-25.) The complaint alleges that
Respondents commenced an unlawful detainer case and continued
prosecution of the unlawful detainer complaint against Clements. (CT 21.)
Clements’ complaint further alleges that the unlawful detainer action was
with malice and without probable cause. (CT 21.) Clements alleged that the
unlawful detainer action was instituted and prosecuted for ulterior motives.
(CT 21-22.)

B. Procedural Chronology of Anti-SLAPP Motion to Strike

In response to Clements’ complaint, Respondents’ filed a demurrer.
(CT 26-160.) Respondents set October 30, 2013 as the hearing date. (CT
26-27.) If Respondents were ordered to file an answer to the complaint,
Respondents intended to deny Clements’ allegations and assert completed
affirmative defenses to derivate tort actions based upon prior litigation,
including constitutional privileges and the litigation privilege codified in
Civil Code Section 47. (CT 171.) Two days before a hearing on the
demurrer, Clements filed and served (by mail) a document titled as a

“Notice that Plaintiff Intends to Exercise the Right Provided Under Section

-10-472 of the Code of Civil Procedure and File a FAC Prior to the Hearing of
the Demurrer to the Initial Complaint.” (CT 161-165.)

The morning of the next day, October 29, 2013, Respondents filed a
C.C.P. § 425.16 Anti-SLAPP Motion to Strike Plaintiff's Complaint for
Malicious Prosecution. (CT 166-308.) Respondents set the hearing on
November 27, 2013, in Department 302 of the trial court. (CT166-167.)
The afternoon of October 29, the trial court issued a tentative ruling stating
that Respondents’ demurrer was transferred from Department 302 to
Department 501 and the hearing was reset for December 5, 2013. (CT 1-2.)
The trial court issued mini-minutes on October 30, 2013, reiterating the
tentative ruling transferring the Demurrer to Department 501 and resetting
the hearing date. (CT 309.)

November 14, 2013, was nine court days before November 27, 2013.
Any opposition papers to Respondents’ Anti-SLAPP motion to strike were
due to be filed and served on November 14 pursuant to C.C.P § 1005(b).
No formal opposition papers were filed on or before November 14, 2013.
(CT 2.)

On November 15, 2013, Clements filed a First Amended Complaint
(“FAC”). (CT 310-369.) Having received no formal opposition to their
motion, Respondents filed a Notice In Lieu of Reply to Opposition to notify
Clements and the trial court that Respondents did not receive any

opposition to their motion. (CT 370-372.) Respondents requested that the

-li-trial court disregard any subsequent papers or oral argument as Clements
would present in opposition as untimely. (CT 371.)

On November 26, 2013, the trial court issued a tentative ruling that
Respondents’ Anti-SLAPP Motion to Strike was transferred from
Department 302 to Department 501 and the hearing was reset for December
30, 2013. (CT 2.) The trial court issued mini-minutes on November 27,
2013, reiterating the tentative ruling transferring Respondents’ Anti-SLAPP
Motion to Strike to Department 501 and sua sponte resetting the hearing
date. (CT 373.)

On December 5, 2013, the trial court issued its minutes following the
hearing on Respondents’ demurrer stating that the demurrer to Clements”
complaint was moot, and that an amended complaint had been filed. (CT
378.)

After the trial court’s continuance of the hearing date, and more than
one month after an opposition was originally due, Clements filed a
memorandum of points and authorities in opposition to Respondents’ Anti-
SLAPP motion. (CT 379-443.) In the following two weeks, including the
day of the motion hearing, Clements submitted additional untimely
declarations, requests for judicial notice, and deposition transcripts in
opposition to Respondents’ motion. (CT 444-469; CT 494-826; CT 839-

841.)

-12-Respondents filed written objections to Clements’ evidence in
support of her opposition to Respondents’ motion. (CT 470-482; CT 827-
838.) Respondents also filed a reply brief in an abundance of caution if the
trial court chose to consider Clements’ untimely opposition. (CT 483-493.)

On December 30, 2013, the trial court conducted a hearing on
Respondents’ motion. (CT 4.) The issues regarding timing of the filing of
Respondents’ Anti-SLAPP Motion to Strike and Clements’ “Notice that
Plaintiff Intends to Exercise the Right Provided Under Section 472 of the
Code of Civil Procedure and File a FAC Prior to the Hearing of the
Demurrer to the Initial Complaint” were argued at length at the hearing on
Defendants’ motion. (CT 2572-2580 / RT 12/30/13, 4:3-12:13.) Clements’
counsel argued that Respondents’ conduct was not protected pursuant to the
Anti-SLAPP statute because it was wrongful, citing to Clements’ requests
for judicial notice and deposition transcripts lodged the day of the hearing.
(CT 2582-2583 / RT 12/30/13, 14:24-15:3.) The trial court found that the
requests for judicial notice and transcripts were not timely filed. (CT 2583 /
RT 12/30/13, 15:4-10.) The trial court further found that Clements’ notice
that she “Intends to Exercise the Right Provided Under Section 472 of the
Code Of Civil Procedure” did not have a legal effect, that the original
complaint was the operative complaint for the purposes of Respondents’
Anti-SLAPP motion to strike, and that Respondents’ motion was timely

filed as related to the original complaint. (CT 2585 / RT 12/30/13, 17:4-18.)

-13-The trial court denied Clements’ requests for judicial notice. (CT
2593 / RT 12/30/13, 25:16-20.) The trial court adopted its tentative ruling
and granted Respondents’ motion to strike Clements’ Malicious
Prosecution Complaint with prejudice. (CT 2590 / RT 12/30/13, 22:5-24:1.)
The trial court entered a written order in open court consistent with the
tentative ruling. (CT 843-844.) The order states that:

“Defendant shifted its burden to show that Plaintiff's
complaint arises out of protected activity, ie. filing
and maintaining unlawful detainer action CUD-11-
639673. Plaintiff failed to file timely opposition on
November 14, 2013. Instead, Plaintiff filed and served
by mail FAC on November 15; 2013. Plaintiff's
piecemeal opposition filed on December 16, 19, 23
and 27, 2013, is stricken as untimely. Even if the
opposition was considered, Plaintiff fails to sustain her
burden under the second prong of C.C.P. § 425.16 and
show a probability of prevailing on the merits on the
Complaint. Plaintiff may not amend the complaint
before the hearing on Anti-SLAPP motion. Saima v.
Capon (2008) 161 Cal.App.4th 1275. Plaintiff's
reliance on Lam v. Ngo (2001) 91 Cal.App.4th 832 for
the proposition that the FAC is the operative pleading
under the circumstances is misplaced. In Lam, a FAC
was filed before an Anti-SLAPP and the issue was
timeliness of the Anti-SLAPP motion. Attorneys’ fees
and costs are ordered [payable by Plaintiff and/or her
counsel within 14 days of this order] in the amount of
$3,400.”

(CT 844.)Cc. Procedural Chronology of Clements’ Motion for
Reconsideration

On January 14, 2014, Clements filed a Notice of Motion and Motion
for Reconsideration Pursuant to C.C.P. § 1008 and supporting declarations.
(CT 853-946.) Clements thereafter filed two untimely Requests for Judicial
Notice (CT 995-1266), a declaration authenticating deposition transcripts
which were the same transcripts stricken by the trial court at the hearing on
December 30, 2014, a request for judicial notice of the transcripts, and a
notice of lodging the transcripts. (CT 1271-1857.) Clements also filed a
request for judicial notice of San Francisco Department of Building
Inspection records. (CT 1858-1897.)

On January 27, 2014, Respondents filed an opposition to Clements’
Motion for Reconsideration, including a declaration and request for judicial
notice in support of the opposition. (CT 1950-2018.)

On January 31, 2014, Clements filed a reply brief, additional
requests for judicial notice of excerpts of deposition transcript pages and
legislative history of C.C.P. § 1008, and an authentication declaration of the
deposition transcripts. (CT 2019-2098.)

Respondents filed written objections to Clements’ evidence in support of
her motion. (CT 2103-2106.)
On February 25, 2014, a hearing was held on Clements’ motion with

extensive argument. (CT 2604 / RT 2/25/2014, 4:21-34:14,) The trial courtruled that it was adopting its tentative to deny Clements’ motion to
reconsider its order striking Clements’ complaint. (CT 2640 / RT
2/25/2014, 40:13-21.) The trial court also ruled that it would not take
judicial notice as Clements requested. (CT 2640 / RT 2/25/2014, 40:22-23.)

On February 27, 2014, the trial court entered a written order denying
Clements’ motion for reconsideration and her requests for judicial notice.
(CT 2529-2530.) The trial court also granted the Respondents’ requests for
judicial notice. (CT 2529-2530.)

D. Procedural Chronology of Clements’ Motion for Section
473(b) Relief

On January 15, 2014, Clements filed a Notice of Motion and Motion
Pursuant to C.C.P, § 473(b) for Order Granting Relief and supporting
declarations. (CT 947-994.)

On January 27, 2014, Respondents filed an opposition to Clements’
Section 473(b) motion, including a declaration and request for judicial
notice in support of the opposition. (CT 1898-1949.)

The same day as the hearing on Clements Section 1008 motion, a
hearing was held on Clements’ Section 473(b) motion. (CT 2638-2640 / RT
2/25/2014, 38:22-40:12.) The trial court stated that the motion was “not
well taken” because Clements’ filing of the FAC was perceived as a
“procedural decision that did not trump the Anti-SLAPP motion{.]” (CT

2639 / RT 2/25/2014, 39:11-19.) The trial court ruled that it was denyingthe motion. (CT 2640 / RT 2/25/2014, 40:23-25.) On February 27, 2014,
the trial court entered a written order denying Clements’ motion for C.C.P.

§ 473(b) relief. (CT 2529-2530.)

Vv. ARGUMENT

A. Clements’ Original Complaint was the Operative
Pleading Subject to Respondents’ Anti-SLAPP Motion to
trike

Clements’ amended complaint was not the operative pleading in the
case at the time Respondents filed their Anti-SLAPP motion. Clements
improperly filed an amended complaint after Respondents’ motion was
already pending against her original complaint. Clements ignores Salma v.
Capon (2008) 161 Cal.App.4th 1275, 1280, which hold that plaintiffs may
not amend the complaint before a hearing on an Anti-SLAPP motion. The
rationale for restricting amendments is that amendments could frustrate the
Legislature’s objective of providing a “quick and inexpensive method of
unmasking and dismissing such suits.” Simmons v. Allstate Ins. Co. (2001)
92 Cal.App.4th 1068, 1073. Despite Respondents’ citation of these cases
numerous times in the trial court, Clements does not address or distinguish
them. There is no basis here to depart from this Court’s precedent, and
Clements’ failure to address the Salma case is a concession that her appeal

lacks merit.Clements was unable to make any amendment to her malicious
prosecution complaint which would “plead around” the Anti-SLAPP statute
and avoid a hearing Respondents’ motion. Yet Clements argues on appeal
that Respondents should have re-noticed their Anti-SLAPP motion or
directed it against the FAC. This argument is unsupported by any
authorities and lacks merit.

Respondents’ moving papers cited Sadma and made clear that no
amendment could be filed until a hearing on Respondents’ motion. (CT
174.) Despite the pending Anti-SLAPP motion to strike, Clements ignored
the authority of Salma and improperly filed the FAC on November 15,

* 2013. (CT 310-369.) In her untimely opposition papers, she argued that
Respondents’ Anti-SLAPP motion should be directed to her improperly-
filed amended complaint. (CT 384-386.) She did not argue that
Respondents’ motion was moot. In fact, Clements’ motion for
reconsideration was the first time that Clements’ counsel argued that
Respondents’ Anti-SLAPP motion was moot due to filing of an amended
complaint. (CT 857.)

Clements’ citation of C.C.P. § 472 is irrelevant because the statute
provides that “{a]ny pleading may be amended once by the party of course,
and without costs, . . . after demurrer and before the trial of the issue of law
thereon, by filing the same as amended and serving a copy on the adverse

party{.]” (Emphasis added.) In fact, no amended complaint had been filed

-18-at the time Respondents filed their motion to strike on October 29, 2013.
Clements’ “Notice that Plaintiff Intends to Exercise the Right Provided
Under Sec. 472 of C.C.P.” filed on October 28, 2013, did not comply with
the filing requirement of C.C.P. § 472 and was not cognizable pursuant to
statute. The only operative pleading at issue at the time Respondents filed
their motion to strike was Clements’ initial complaint for malicious
prosecution.

Clements would have had to file her FAC before Respondents filed
their Anti-SLAPP motion in order for the FAC to be the operative pleading.
Here, Clements filed a FAC after Respondents filed their Anti-SLAPP
motion. The only operative complaint to which Respondents’ motion to
strike could apply was Clements’ initial complaint. There is no authority to
support Clements’ argument that Respondents should have re-noticed or
amended their Anti-SLAPP motion to address Clements’ amended
complaint. Clements’ Notice filed October 28, 2013, had no cognizable
effect pursuant to Section 472 and was properly disregarded by the trial
court.

Clements’ primary argument in her opening brief is that when she
filed her FAC, Respondents’ Anti-SLAPP motion was moot. However, the
FAC was not “the only operative pleading in the case” as Clements
contends, and it had not “superseded Plaintiff's original Complaint{.]”

Clements provides no authority that the Respondents’ Anti-SLAPP motion

-19-was “rendered entirely moot” after she filed the FAC. Further, the trial
court did not “expressly [allow] Plaintiffs amended complaint for
Malicious Prosecution to stand as the Plaintiff's operative pleading in the
case” by deciding that Respondents demurrer was moot. Regardless of the
effect of the FAC on Respondents’ demurrer, the Salma case restricted
Clements’ filing of the FAC to subvert or evade Respondents’ Anti-SLAPP
motion. Her FAC had no effect upon the need for hearing on Respondents’
Anti-SLAPP motion. Consistent with Salma, Respondents were entitled to
have a determination on their Anti-SLAPP motion to strike Clements’
initial complaint.

Clements cited the case of People ex rel. Strathmann v. Acacia
Research Corp., (2012) 210 Cal.App.4th 487. However, Strathmann did
not contradict this Court’s decision in Salma. Specifically, the Strathmann
case did not address whether an amended complaint rendered an Anti-
SLAPP motion to strike moot. Moreover, the entire Strathmann opinion
regarding the merits of defendants’ motion is based upon an analysis of the
plaintiff's original complaint. The Strathmmann case is consistent with
Salma and supports the proposition that the defenda