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WAN
SUPERIOR COURT OF CALIFORNIA
' COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Feb-19-2014 11:31 am
Case Number: CGC-13-533602
Filing Date: Feb-19-2014 11:30 am
Fited by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 04381547
EX PARTE APPLICATION FOR ORDER
YOSHABEL CLEMENTS VS. SOJOURN PROPERTIES INC. et al
001004381547
Instructions:
Please place this sheet on top of the document to be scanned._~
John G. Hanlin (S.B.N.: 104502)
YANLIN LAW FIRM
901 Market Street, Suite 455
San Francisco, CA 94103
Tel.: (415) 527-7227
E-Mail: Hanlinlaw@hkwlawoffices.com
Joseph K. Bravo (S.B.N.: 107646)
BRAVO & MARGULIES
901 Market Street, Suite 450
San Francisco, CA 94103
Tel: (415) 512-6700
E-Mail: jbravo@bravolaw.com
Attorneys for Plaintiff,
Yoshabel Clements
YOSHABEL CLEMENTS, an individual,
Plaintiff,
vs.
SOJOURN PROPERTIES INC., a California
corporation; STEVEN G. KING, an
individual; BRILLANT LAW FIRM, @
California professional corporation, DAVID
BRILLANT, an individual; BRIAN
CARIDEO, an individual; and DOES 1
through 50, inclusive,
Defendants.
CLERK OF THE COURT
BY. bbe
” Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE CITY AND COUNTY OF SAN FRANCISCO - - UNLIMITED JURISDICTION
Case No.: CGC-13-533602
PLAINTIEF’S EX PARTE APPLICATION
FOR ORDER ADVANCING HEARING
DATE FROM 2/28/2014 FOR HEARING
OF PLAINTIEF’S MOTION FOR
RECONSIDERATION PURSUANT TO
C.C.P. § 1008 AND PLAINTIFF'S
MOTION FOR RELIEF UNDER C.C.P. §
473(b) OF THE ORDER DATED
12/30/2013 GRANTING DEFENDANTS
SOJOURN PROPERTIES INC. AND
STEVEN G. KING’S ANTI-SLAPP
MOTION 5
cag
DATE: February 952014
TIME: 11:00 a.
DEPT. 501, Real Property/Housing
Complaint Filed: 8/16/2013
First Amended Complaint Filed: 11/15/2013
PLAINTIFF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFI’S MOTION FOR RECONSIDERATIONPlaintiff Yoshabel Clements (“Plaintiff”) hereby makes application for an order advancing
the date set for the hearing of Plaintiff's Motion for Reconsideration brought pursuant to CCP. §
1008 and Plaintiff's Motion for Relief brought under C.C.P. § 473(b) (“Motions”) of the Order
dated December 30, 2013, Granting Defendants Sojourn Properties Inc. and Steven G. King’s
Anti-Slapp Motion. The two Motions of the Plaintiff were continued from February 7, 2014, and
are currently set for hearing on February 28, 2014, before the Honorable Harry M. Dorfman at
2:00 p.m. Plaintiff seeks an earlier hearing date before Judge Dorman. during the week of
February 24, 2014, based upon the fact that the last day to file an appeal of the Order entered on
December 30, 2013, granting Defendants’ Anti-SLAPP Motion is February 28, 2014.
The undersigned counsel for the Plaintiff during the middle of last week placed calls to
counsel for the Defendants, attorneys Ramsey F. Kawar and also Michael T. Beuselinck,
requesting that the parties stipulate to advancing the hearing date of February 28, 2014, and
explaining the good cause therefore, i.e., the last day to file an appeal lies on February 28, 2014,
and the Plaintiffs Motion for Reconsideration does not extend the jurisdictional deadline for
filing of the appeal.
Having received no affirmative response from either of the above-referenced counsel for
the Defendants, yesterday before 10:00 a.m., Plaintiffs counsel called Mr. Kawar and Mr.
Beuselinck separately and advised them both that application for an order advancing the hearing
of Plaintiff's Motion for Reconsideration and Plaintiff's Motion for Relief under § 473(b), would
be made at 11:00 a.m. in Department 501 on today’s date. See, Declaration of John G. Hanlin Re:
Notice of Ex-patte Application. This Application is not made directly before Judge Dorfman
based upon information received from the Court that ex-parte relief for advancing the hearing
date of Plaintiff's Motions should be brought in Department 501.
PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 2Coe NY A nA FY HY
ye oN NY YY RN NY NY BF Ee Ee Be ee Be SS
So aA A FB Oe FF GCSE wD HN DH FY NH FS
With no communication from defense counsel as to suitable dates, Plaintiff proposes the
dates of either February 25, 26, or 27, for the hearing of Plaintiff's Motions before Judge
Dorfman.
Plaintiff maintains that there is good cause for advancing the hearing which is described in
more substantive detail in Plaintiff's Motions. In abbreviated form, the only issues that need be
addressed are limited: (1) Does the Plaintiff meet the jurisdiction requirements for granting a
motion for reconsideration pursuant to § 1008 “based upon a new or different facts, circumstances
or law” and (2) Does the case of JKC3H8 v. Colton, CO71010, decided by the California Court of
Appeal which only became available to Plaintiff's counsel on December 27, 2013, through the
California Official Reports: Electronic Advance Sheet of LexisNexis, constitute new or different
law warranting the Court granting reconsideration and recalling its Order of December 30, 2013.
The case of IKC3H8 v. Colton, CO71010, decided by the California Court of Appeal has
still not been published in the Official Reports of Opinions Certified for Publication upon last
inquiry, and it is Plaintiff's contention that the opinion is new, or at least, different law, not
presented at the hearing of Defendants’ Anti-SLAPP Motion on December 30, 2013. The holding
of the court in JKC3HB v. Colton, CO71010, is newly discovered controlling precedent and is
believed to justify the Court granting reconsideration. The opinion has its foundation and is based
upon the legal precedent enunciated by the California Supreme Court.
The decision of JKC3H8 v. Colton is dispositive of the issue that Plaintiff's First
Amended Complaint once filed on November 15, 2013, and not stricken, is the operative
pleading:
‘The only question is whether the first amended complaint
superseded the original complaint and rendered the anti-SLAPP
motion moot. This is a pure question of law. We may therefore
address the merits of this contention.
PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 3oom rw nw F&F BN
wR MY RP YN NNN SF Be Fe Se Be Be Se ee
oa Am Fk ON Se SC oe ADH BR YW NY KF
« «#7 Ajn amended pleading supersedes the original one,
which ceases to perform any function as a pleading.” ’ ” (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) “The amended
complaint furnishes the sole basis for the cause of action, and the
original complaint ceases to have any effect cither as a pleading or
as a basis for judgment. [Citation.] [{] Because there is but one
complaint in a civil action [citation], the filing of an amended
complaint moots a motion directed to a prior complaint. [Citation.]”
(State Compensation Ins. Fund v. Superior Court 201 0) 184 Cal.
App.4® 1124, 1130-1131.) Thus, the filing of an amended
complaint renders moot a demurrer to the original complaint.
(Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
(2004) 122 Cal.App.4" 1049, 1054.) Similarly, “once an amended,
complaint is filed, it is error to grant summary adjudication on a
cause of action contained in a previous complaint. [Citation.] ... ‘
_.. After a cause of action is amended, the court may rule in favor of
the defendant if, upon subsequent motion, or perhaps renewal of the
earlier motion if appropriately framed, if it is shown . . . there are
no triable material issues of fact which would permit recovery on
that theory.” [Citation.]” (State Compensation, supra, 184
Cal.App.4” at p. 1131.)
So too does an amended complaint render an anti-SLAPP
motion directed to a prior complaint, with the following caveat, a
plaintiff or cross-complainant, may not seek to subvert or avoid a
ruling on an anti-SLAPP motion by amending the challenged
complaint or cross-complaint in response to the motion. [citations]
(Emphasis added.) Jd. at pp.1 1-12.
The record before the Court establishes that Plaintiff did not file her First Amended
Complaint “in response to the motion” to strike brought by the Defendants under § 425.16.
Defendants elected to demurrer to Plaintiffs original complaint and filed their demurrer on
September 30, 2013. On October 28, 2013, Plaintiff filed and served her “Notice that Plaintiff
Intends to Exercise the Right Provided Under Section 472 of the Code Of Civil Procedure” to file
a First Amended Complaint. Defendants did not file their Anti-SLAPP Motion until October 29,
2013, a day subsequent and in response to Plaintiff's election to file a First Amended Complaint.
Furthermore, there is additional case authority that was not presented at the earlier hearing
held on December 30, 2013, which is also dispositive of the issue that Plaintiff's First Amended
PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 4-
om NDA FF WN
Complaint is the operative pleading. ‘This different law warrants reconsideration by the Court as
its holdings is directly on point and provides governing authority that Plaintiff had the right to
amend her complaint even though the Defendants’ Anti-SLAPP Motion was pending.
In People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal. App. 4" 487, the
defendants filed a demurrer and special motion to strike, but before the hearing on the motions,
plaintiff filed a first amended complaint. At the hearing, the trial court struck the amended
complaint on the ground that amendment was not. permitted in response to a special motion to
strike under the anti-SLAPP statute, The trial court then declined to rule on the demurrer
because granting the special motion to strike made the demurrer moot.
‘The appellate court held that the plaintiff had a statutory right to file an amended
complaint in response to the demurrer. The filing of the first amended complaint then rendered
defendants’ demurrer moot since an amended pleading supersedes the original one, which ceases
to perform any function as a pleading, and the hearing on the demurrer should have been taken off
calendar. The opinion in People ex rel. Strathmann holds as follows:
Before the hearing on the demurrer and special motion to
strike, Strathmann filed a first amended complaint. Af the hearing,
the trial court struck the amended complaint on the ground
amendment was not permitted in response in a special motion to
strike under the anti-SLAPP statute. The court then declined to
rule on the demurrer because granting the special motion to strike
made the demurrer moot.
The parties argue whether Strathmann could file an
amended complaint in response to the special motion to strike. In
any event, Strathmannn had a statutory right to file an amended
complaint in response to the demurrer. Code of Civil Procedure
section 472 grants a plaintiff the right to file an amended
complaint in response to a demurrer at any time before the
hearing on the demurrer. “[T]he purpose of the statute permitting
amendments as of right before an answer is filed or a demurrer is
ruled upon is to “ promote judicial efficiency and reduce the costs
of litigation.” (Barton v. Khan (2007) 157 Cal. App. 4” 1216, 1221
[69 Cal Rptr. 3d 238].) “The filing of the first amended complaint
PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFFS MOTION FOR RECONSIDERATION 5rendered [the defendant]’s demurrer moot since “an amendatory
pleading supersedes the original one, which ceases to perform any
function as a pleading [Citations.]” [Citation.]”” Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.
App. 4" 1049, 1054 118 Cal. Rptr 3d 882].) Id. at 505-506.
(Emphasis added.)
In the present case, Plaintiff did in fact file a First Amended Complaint on November 15,
2013. Based on this Court’s earlier ruling of December 5, 2012, that Defendants’ demurrer was
moot as a result of the Plaintiff filing a First Amended Complaint, the Court allowed Plaintiff's
First Amended Complaint to stand even though Defendants had filed their Anti-SLAPP motion
subsequent to the filing of their demurrer. Thus, the law of the case, or the status of the pleadings,
is that Plaintiff's First Amended Complaint is the operative pleading.
Defendants’ Anti-SLAPP Motion was directed only to Plaintiff's original complaint which
ceased to have any function as a pleading as of the date of November 15, 2013. This case is
governed by the decision of People ex rel. Strathmann which holds that the Plaintiff had the right
to amend her complaint as a matter of right under § 472. Furthermore, the Court having found
that the demurrer was moot on December 5, 2013, when Defendants’ Anti-SLAPP Motion was
pending, it follows as a matter of law that Plaintiff's First Amended Complaint is the only
operative pleading and “superseded the original complaint and rendered the anti-SLAPP motion
moot.” JKC3HB8 v. Colton, supra.
In accordance with the new or different law presented by Plaintiffs Motion for
Reconsideration as well as the other matters presented by said Motion, the Plaintiff should have
the opportunity to be heard regarding the issues presented by her motion. Plaintiff should not be
forced to file an appeal on the very same day that her Motion to Reconsideration is presently
scheduled.
PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 6Oo we YN DH eB WN
woN MY RP YN NNN Be Be Ee Se ee Re eB eS
Oo a AA KR OU Re se SO we IDR HH RF WN = OS
Furthermore, if the Motion for Reconsideration is heard even a day earlier and is denied
by the Court, Plaintiff may file an appeal pertaining to both the Order gtanting Defendants’ Anti-
SLAPP Motion on December 30, 2013, and the denial of Plaintiffs Motion for Reconsideration.
Judicial efficient of having one appeal will promote time efficiency and preserve judicial
resources in the higher court.
Defendants will suffer no prejudice by advancing the hearing date of Plaintiff's Motions
since if Plaintiff's Motion for Reconsideration is denied, all issues presented by Defendants’ Anti-
SLAPP Motion and also Plaintiff's Motion for Reconsideration will already have been combined
for hearing in the appellate court resulting in overall time effectiveness and judicial efficiency.
One complete appellate record, instead of two, will allow the parties to cite to the entire record
easier for appellate review.
If Plaintiff's Motion for Reconsideration is granted and, also, upon the Court granting
reconsideration it then decides to vacate its prior Order of December 30, 2013, and to enter a new
order denying Defendants Anti-SLAPP Motion, Defendants may appeal the order granting
reconsideration as it is an appealable order since it seeks reconsideration of an appealable order.
Defendants will have sixty (60) days to file their appeal in the event reconsideration is granted
providing them ample time to prepare an appeal. One record on appeal will result from the
Defendants filing a notice of appeal of an order granting reconsideration and further providing for
issuance of a new order denying Defendants’ Anti-SLAPP Motion.
For all the foregoing reasons and based upon proper notice having been given to defense
counsel of the date, time and place for the relief requested herein, it is requested that Plaintiff's ex
parte application be granted advancing the hearing date of Plaintiff's Motions.
Ww
PLAINTIFF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 7Dated: February 19, 2014
‘Attorneys for Plaintiff,
Yoshabel Clements
PLAINTIFF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFF’S MOTION FOR RECONSIDERATION 8Co ent A uM FF WN
mw oN RP MY RNR NY Ye SP Se Se Fe Be Be Se eS
co a aA AW kB PN SF SO wR AA HN FY N FF SO
PROOF OF SERVICE
I, John G. Hanlin, declare under penalty of perjury under the laws of the State of
California as follows: (1) lam a citizen of the United States of America; (2) Tam over the age of
eighteen years; (3) I am not a party to the within cause; (4) My business address is Hanlin Law
Firm, 901 Market Street, Suite 455, San Francisco, California, 94103 and (5) On February 19,
2014, I served a true and correct copy of the following document:
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR RECONSIDERATION PURSUANT TO C.C.P, § 1008 OF
ORDER DATED 12/13/2013 GRANTING DEFENDANTS SOJOURN PROPERTIES INC.
AND STEVEN G. KING’S ANTI-SLAPP MOTION UNDER C.C.P. § 425.16
to the following person(s) and/or the parties listed below:
RAMSEY F. KAWAR
MICHAEL T. BEUSELINCK
LOW, BALL & LYNCH
505 MONTGOMERY STREET
7° FLOOR
SAN FRANCISCO, CA 94111-2584
(ATTORNEYS FOR SOJOURN PROPERTIES INC. & STEVEN G. KING)
and in the following manner shown below:
q] BY MAIL: I caused true and correct copies of the above document(s), by following
ordinary business practices, to be placed and sealed in envelopes addressed to the addresses and
for collection and mailing with the United States Postal Service in the ordinary course of
business, correspondence placed for collection on a particular day, which is deposited with the
United States Postal Service that same day.
[X] _ BY PERSONAL HAND-DELIVERY SERVICE: | served true and correct copys) of
the above listed document(s) which were placed and sealed in envelope(s) addressed to the
erson(s) and/or party(s at the addressee(s) set forth above and personally served such envelope
ry personal delivery by hand on the persons and/or parties at the above listed addressee(s) above.
[| . BY AN EXPRESS SERVICE CARRIER: I served the above-captioned document(s)
which was served by an express service carrier and being the company of Federal Express and
deposited in a box or other facility regularly maintained by the express service carrier of Federal
Express, or delivered to an authorized courier or driver authorized by the express service carrier
of Federal Express to receive documents, in the envelope designated by the express service carrier
of Federal Express with delivery fees paid or provide for, addressed to the persons on whom it is
to be served, at the office addresses as last given by those persons on any document filed in the
cause and served on the party making service.
_I declare under penalty of perjury under the laws of the State of Calj
fore oing is true and correct. Executed on this day of February/)9, 20144
‘alifornia.
PLAINTIFF'S EX PARTE APPLICATION FO! ER ADVANCING HEARING DATE FROM 2/28/2014 FOR
HEARING OF PLAINTIFFS MOTION FOR RECONSIDERATION
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WAN SUPERIOR COURT OF CALIFORNIA ' COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Feb-19-2014 11:31 am Case Number: CGC-13-533602 Filing Date: Feb-19-2014 11:30 am Fited by: WESLEY G. RAMIREZ Juke Box: 001 Image: 04381547 EX PARTE APPLICATION FOR ORDER YOSHABEL CLEMENTS VS. SOJOURN PROPERTIES INC. et al 001004381547 Instructions: Please place this sheet on top of the document to be scanned._~ John G. Hanlin (S.B.N.: 104502) YANLIN LAW FIRM 901 Market Street, Suite 455 San Francisco, CA 94103 Tel.: (415) 527-7227 E-Mail: Hanlinlaw@hkwlawoffices.com Joseph K. Bravo (S.B.N.: 107646) BRAVO & MARGULIES 901 Market Street, Suite 450 San Francisco, CA 94103 Tel: (415) 512-6700 E-Mail: jbravo@bravolaw.com Attorneys for Plaintiff, Yoshabel Clements YOSHABEL CLEMENTS, an individual, Plaintiff, vs. SOJOURN PROPERTIES INC., a California corporation; STEVEN G. KING, an individual; BRILLANT LAW FIRM, @ California professional corporation, DAVID BRILLANT, an individual; BRIAN CARIDEO, an individual; and DOES 1 through 50, inclusive, Defendants. CLERK OF THE COURT BY. bbe ” Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE CITY AND COUNTY OF SAN FRANCISCO - - UNLIMITED JURISDICTION Case No.: CGC-13-533602 PLAINTIEF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIEF’S MOTION FOR RECONSIDERATION PURSUANT TO C.C.P. § 1008 AND PLAINTIFF'S MOTION FOR RELIEF UNDER C.C.P. § 473(b) OF THE ORDER DATED 12/30/2013 GRANTING DEFENDANTS SOJOURN PROPERTIES INC. AND STEVEN G. KING’S ANTI-SLAPP MOTION 5 cag DATE: February 952014 TIME: 11:00 a. DEPT. 501, Real Property/Housing Complaint Filed: 8/16/2013 First Amended Complaint Filed: 11/15/2013 PLAINTIFF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFI’S MOTION FOR RECONSIDERATIONPlaintiff Yoshabel Clements (“Plaintiff”) hereby makes application for an order advancing the date set for the hearing of Plaintiff's Motion for Reconsideration brought pursuant to CCP. § 1008 and Plaintiff's Motion for Relief brought under C.C.P. § 473(b) (“Motions”) of the Order dated December 30, 2013, Granting Defendants Sojourn Properties Inc. and Steven G. King’s Anti-Slapp Motion. The two Motions of the Plaintiff were continued from February 7, 2014, and are currently set for hearing on February 28, 2014, before the Honorable Harry M. Dorfman at 2:00 p.m. Plaintiff seeks an earlier hearing date before Judge Dorman. during the week of February 24, 2014, based upon the fact that the last day to file an appeal of the Order entered on December 30, 2013, granting Defendants’ Anti-SLAPP Motion is February 28, 2014. The undersigned counsel for the Plaintiff during the middle of last week placed calls to counsel for the Defendants, attorneys Ramsey F. Kawar and also Michael T. Beuselinck, requesting that the parties stipulate to advancing the hearing date of February 28, 2014, and explaining the good cause therefore, i.e., the last day to file an appeal lies on February 28, 2014, and the Plaintiffs Motion for Reconsideration does not extend the jurisdictional deadline for filing of the appeal. Having received no affirmative response from either of the above-referenced counsel for the Defendants, yesterday before 10:00 a.m., Plaintiffs counsel called Mr. Kawar and Mr. Beuselinck separately and advised them both that application for an order advancing the hearing of Plaintiff's Motion for Reconsideration and Plaintiff's Motion for Relief under § 473(b), would be made at 11:00 a.m. in Department 501 on today’s date. See, Declaration of John G. Hanlin Re: Notice of Ex-patte Application. This Application is not made directly before Judge Dorfman based upon information received from the Court that ex-parte relief for advancing the hearing date of Plaintiff's Motions should be brought in Department 501. PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 2Coe NY A nA FY HY ye oN NY YY RN NY NY BF Ee Ee Be ee Be SS So aA A FB Oe FF GCSE wD HN DH FY NH FS With no communication from defense counsel as to suitable dates, Plaintiff proposes the dates of either February 25, 26, or 27, for the hearing of Plaintiff's Motions before Judge Dorfman. Plaintiff maintains that there is good cause for advancing the hearing which is described in more substantive detail in Plaintiff's Motions. In abbreviated form, the only issues that need be addressed are limited: (1) Does the Plaintiff meet the jurisdiction requirements for granting a motion for reconsideration pursuant to § 1008 “based upon a new or different facts, circumstances or law” and (2) Does the case of JKC3H8 v. Colton, CO71010, decided by the California Court of Appeal which only became available to Plaintiff's counsel on December 27, 2013, through the California Official Reports: Electronic Advance Sheet of LexisNexis, constitute new or different law warranting the Court granting reconsideration and recalling its Order of December 30, 2013. The case of IKC3H8 v. Colton, CO71010, decided by the California Court of Appeal has still not been published in the Official Reports of Opinions Certified for Publication upon last inquiry, and it is Plaintiff's contention that the opinion is new, or at least, different law, not presented at the hearing of Defendants’ Anti-SLAPP Motion on December 30, 2013. The holding of the court in JKC3HB v. Colton, CO71010, is newly discovered controlling precedent and is believed to justify the Court granting reconsideration. The opinion has its foundation and is based upon the legal precedent enunciated by the California Supreme Court. The decision of JKC3H8 v. Colton is dispositive of the issue that Plaintiff's First Amended Complaint once filed on November 15, 2013, and not stricken, is the operative pleading: ‘The only question is whether the first amended complaint superseded the original complaint and rendered the anti-SLAPP motion moot. This is a pure question of law. We may therefore address the merits of this contention. PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 3oom rw nw F&F BN wR MY RP YN NNN SF Be Fe Se Be Be Se ee oa Am Fk ON Se SC oe ADH BR YW NY KF « «#7 Ajn amended pleading supersedes the original one, which ceases to perform any function as a pleading.” ’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) “The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect cither as a pleading or as a basis for judgment. [Citation.] [{] Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]” (State Compensation Ins. Fund v. Superior Court 201 0) 184 Cal. App.4® 1124, 1130-1131.) Thus, the filing of an amended complaint renders moot a demurrer to the original complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4" 1049, 1054.) Similarly, “once an amended, complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. [Citation.] ... ‘ _.. After a cause of action is amended, the court may rule in favor of the defendant if, upon subsequent motion, or perhaps renewal of the earlier motion if appropriately framed, if it is shown . . . there are no triable material issues of fact which would permit recovery on that theory.” [Citation.]” (State Compensation, supra, 184 Cal.App.4” at p. 1131.) So too does an amended complaint render an anti-SLAPP motion directed to a prior complaint, with the following caveat, a plaintiff or cross-complainant, may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion. [citations] (Emphasis added.) Jd. at pp.1 1-12. The record before the Court establishes that Plaintiff did not file her First Amended Complaint “in response to the motion” to strike brought by the Defendants under § 425.16. Defendants elected to demurrer to Plaintiffs original complaint and filed their demurrer on September 30, 2013. On October 28, 2013, Plaintiff filed and served her “Notice that Plaintiff Intends to Exercise the Right Provided Under Section 472 of the Code Of Civil Procedure” to file a First Amended Complaint. Defendants did not file their Anti-SLAPP Motion until October 29, 2013, a day subsequent and in response to Plaintiff's election to file a First Amended Complaint. Furthermore, there is additional case authority that was not presented at the earlier hearing held on December 30, 2013, which is also dispositive of the issue that Plaintiff's First Amended PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 4- om NDA FF WN Complaint is the operative pleading. ‘This different law warrants reconsideration by the Court as its holdings is directly on point and provides governing authority that Plaintiff had the right to amend her complaint even though the Defendants’ Anti-SLAPP Motion was pending. In People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal. App. 4" 487, the defendants filed a demurrer and special motion to strike, but before the hearing on the motions, plaintiff filed a first amended complaint. At the hearing, the trial court struck the amended complaint on the ground that amendment was not. permitted in response to a special motion to strike under the anti-SLAPP statute, The trial court then declined to rule on the demurrer because granting the special motion to strike made the demurrer moot. ‘The appellate court held that the plaintiff had a statutory right to file an amended complaint in response to the demurrer. The filing of the first amended complaint then rendered defendants’ demurrer moot since an amended pleading supersedes the original one, which ceases to perform any function as a pleading, and the hearing on the demurrer should have been taken off calendar. The opinion in People ex rel. Strathmann holds as follows: Before the hearing on the demurrer and special motion to strike, Strathmann filed a first amended complaint. Af the hearing, the trial court struck the amended complaint on the ground amendment was not permitted in response in a special motion to strike under the anti-SLAPP statute. The court then declined to rule on the demurrer because granting the special motion to strike made the demurrer moot. The parties argue whether Strathmann could file an amended complaint in response to the special motion to strike. In any event, Strathmannn had a statutory right to file an amended complaint in response to the demurrer. Code of Civil Procedure section 472 grants a plaintiff the right to file an amended complaint in response to a demurrer at any time before the hearing on the demurrer. “[T]he purpose of the statute permitting amendments as of right before an answer is filed or a demurrer is ruled upon is to “ promote judicial efficiency and reduce the costs of litigation.” (Barton v. Khan (2007) 157 Cal. App. 4” 1216, 1221 [69 Cal Rptr. 3d 238].) “The filing of the first amended complaint PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFFS MOTION FOR RECONSIDERATION 5rendered [the defendant]’s demurrer moot since “an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading [Citations.]” [Citation.]”” Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal. App. 4" 1049, 1054 118 Cal. Rptr 3d 882].) Id. at 505-506. (Emphasis added.) In the present case, Plaintiff did in fact file a First Amended Complaint on November 15, 2013. Based on this Court’s earlier ruling of December 5, 2012, that Defendants’ demurrer was moot as a result of the Plaintiff filing a First Amended Complaint, the Court allowed Plaintiff's First Amended Complaint to stand even though Defendants had filed their Anti-SLAPP motion subsequent to the filing of their demurrer. Thus, the law of the case, or the status of the pleadings, is that Plaintiff's First Amended Complaint is the operative pleading. Defendants’ Anti-SLAPP Motion was directed only to Plaintiff's original complaint which ceased to have any function as a pleading as of the date of November 15, 2013. This case is governed by the decision of People ex rel. Strathmann which holds that the Plaintiff had the right to amend her complaint as a matter of right under § 472. Furthermore, the Court having found that the demurrer was moot on December 5, 2013, when Defendants’ Anti-SLAPP Motion was pending, it follows as a matter of law that Plaintiff's First Amended Complaint is the only operative pleading and “superseded the original complaint and rendered the anti-SLAPP motion moot.” JKC3HB8 v. Colton, supra. In accordance with the new or different law presented by Plaintiffs Motion for Reconsideration as well as the other matters presented by said Motion, the Plaintiff should have the opportunity to be heard regarding the issues presented by her motion. Plaintiff should not be forced to file an appeal on the very same day that her Motion to Reconsideration is presently scheduled. PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 6Oo we YN DH eB WN woN MY RP YN NNN Be Be Ee Se ee Re eB eS Oo a AA KR OU Re se SO we IDR HH RF WN = OS Furthermore, if the Motion for Reconsideration is heard even a day earlier and is denied by the Court, Plaintiff may file an appeal pertaining to both the Order gtanting Defendants’ Anti- SLAPP Motion on December 30, 2013, and the denial of Plaintiffs Motion for Reconsideration. Judicial efficient of having one appeal will promote time efficiency and preserve judicial resources in the higher court. Defendants will suffer no prejudice by advancing the hearing date of Plaintiff's Motions since if Plaintiff's Motion for Reconsideration is denied, all issues presented by Defendants’ Anti- SLAPP Motion and also Plaintiff's Motion for Reconsideration will already have been combined for hearing in the appellate court resulting in overall time effectiveness and judicial efficiency. One complete appellate record, instead of two, will allow the parties to cite to the entire record easier for appellate review. If Plaintiff's Motion for Reconsideration is granted and, also, upon the Court granting reconsideration it then decides to vacate its prior Order of December 30, 2013, and to enter a new order denying Defendants Anti-SLAPP Motion, Defendants may appeal the order granting reconsideration as it is an appealable order since it seeks reconsideration of an appealable order. Defendants will have sixty (60) days to file their appeal in the event reconsideration is granted providing them ample time to prepare an appeal. One record on appeal will result from the Defendants filing a notice of appeal of an order granting reconsideration and further providing for issuance of a new order denying Defendants’ Anti-SLAPP Motion. For all the foregoing reasons and based upon proper notice having been given to defense counsel of the date, time and place for the relief requested herein, it is requested that Plaintiff's ex parte application be granted advancing the hearing date of Plaintiff's Motions. Ww PLAINTIFF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFF'S MOTION FOR RECONSIDERATION 7Dated: February 19, 2014 ‘Attorneys for Plaintiff, Yoshabel Clements PLAINTIFF’S EX PARTE APPLICATION FOR ORDER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFF’S MOTION FOR RECONSIDERATION 8Co ent A uM FF WN mw oN RP MY RNR NY Ye SP Se Se Fe Be Be Se eS co a aA AW kB PN SF SO wR AA HN FY N FF SO PROOF OF SERVICE I, John G. Hanlin, declare under penalty of perjury under the laws of the State of California as follows: (1) lam a citizen of the United States of America; (2) Tam over the age of eighteen years; (3) I am not a party to the within cause; (4) My business address is Hanlin Law Firm, 901 Market Street, Suite 455, San Francisco, California, 94103 and (5) On February 19, 2014, I served a true and correct copy of the following document: PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION PURSUANT TO C.C.P, § 1008 OF ORDER DATED 12/13/2013 GRANTING DEFENDANTS SOJOURN PROPERTIES INC. AND STEVEN G. KING’S ANTI-SLAPP MOTION UNDER C.C.P. § 425.16 to the following person(s) and/or the parties listed below: RAMSEY F. KAWAR MICHAEL T. BEUSELINCK LOW, BALL & LYNCH 505 MONTGOMERY STREET 7° FLOOR SAN FRANCISCO, CA 94111-2584 (ATTORNEYS FOR SOJOURN PROPERTIES INC. & STEVEN G. KING) and in the following manner shown below: q] BY MAIL: I caused true and correct copies of the above document(s), by following ordinary business practices, to be placed and sealed in envelopes addressed to the addresses and for collection and mailing with the United States Postal Service in the ordinary course of business, correspondence placed for collection on a particular day, which is deposited with the United States Postal Service that same day. [X] _ BY PERSONAL HAND-DELIVERY SERVICE: | served true and correct copys) of the above listed document(s) which were placed and sealed in envelope(s) addressed to the erson(s) and/or party(s at the addressee(s) set forth above and personally served such envelope ry personal delivery by hand on the persons and/or parties at the above listed addressee(s) above. [| . BY AN EXPRESS SERVICE CARRIER: I served the above-captioned document(s) which was served by an express service carrier and being the company of Federal Express and deposited in a box or other facility regularly maintained by the express service carrier of Federal Express, or delivered to an authorized courier or driver authorized by the express service carrier of Federal Express to receive documents, in the envelope designated by the express service carrier of Federal Express with delivery fees paid or provide for, addressed to the persons on whom it is to be served, at the office addresses as last given by those persons on any document filed in the cause and served on the party making service. _I declare under penalty of perjury under the laws of the State of Calj fore oing is true and correct. Executed on this day of February/)9, 20144 ‘alifornia. PLAINTIFF'S EX PARTE APPLICATION FO! ER ADVANCING HEARING DATE FROM 2/28/2014 FOR HEARING OF PLAINTIFFS MOTION FOR RECONSIDERATION