Preview
Lawrence D. Murray (SBN 77536)
MURRAY & ASSOCIATES
1781 Union Street ELECTRONICALLY
San Francisco, CA 94123 FILED
Tel: (415) 673-0555 Fax: (415) 928-4084 Superior Court of Caltfomia,
Attomey for Defendants: DAVID WONG, MICHAEL ZEHNER, 06/0: 4/2015
BRIAN SAVAGE SHEDRICK McDANIELS, and the SAN Clerk of the Court
FRANCISCO DEPUTY SHERIFF’S FOUNDATION BY:RONNIE OTERO
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC — 10 -501168
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually MEMORANDUM OF POINTS AND
and on behalf of all other similarly situated, AUTHORITIES IN SUPPORT OF MOTION
PURSUANT TO CODE OF CIVIL
Plaintiffs, PROCEDURE SECTION 473 (d) TO
v. CORRECT CLERICAL ERROR IN ORDER
AFTER DEMURRER & SLAPP HEARING
SAN FRANCISCO DEPUTY SHERIFF’S (Supporting Doc: Murray Dec, w Exhibits)
ASSOCIATION, DAVID WONG, MICHAEL
ZEHNER, BRIAN SAVAGE, HEARING: June 18, 2015
SHEDRICK McDANIELS, and the SAN TIME: 9:30 A.M.
FRANCISCO DEPUTY SHERIFF’S DEPT: 302
FOUNDATION et al.,
Reservation No. 05290804-14
Defendants.
A. Introduction
By mistake and clerical error, after a tentative ruling on a SLAPP motion, the court modified the
order removing the finding of a frivolous motion and award of attorneys fees. The court dictated changes
to the tentative ruling, which were put in the order offered by counsel for the individual Defendants, but
not in the form of order offered by Plaintiff's attorney. The wrong form of order was ultimately entered,
It is now the basis for a motion for sanctions, though entered in error. This motion to correct the record
due to clerical error follows.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 1
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingB. The Court Is Empowered To Correct Orders Entered In Error
California Code of Civil Procedure Section 473(d) states:
The court may, upon motion of the injured party, or its own motion, correct clerical
inistakes in its judgment or orders as entered, so as to conform to the judgment or order
directed, and may, on motion of either party after notice to the other party, set aside any
void judgment or order.
This motior is made pursuant to Code of Civil Procedure Section 473 (d) to correct the error.
CG History Leading Up To The Demurrer and SLAPP Motion Of December 18, 2014
These moving defendants filed their first SLAPP motion, which was granted on July 7, 2011. It
struck all allegations against the individual Defendants Michael Zehner, Brian Savage, Shedrick
McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation. It also struck
all but one cause of action against Defendant David Wong. The only remaining claim was for a
violation of Corporate Code Section 6333, the failure to provide books and records to the members of
the corporation, The final judgment was entered on June 18, 2013, and appealed by plaintiffs by their
Notice of Appeal filed August 13, 2013. The appeal was dismissed and remittiture issued on July 18,
2014, hence the dismissal of Defendants Michael Zehner, Brian Savage, Shedrick McDaniels and the
Foundation had became a final judgment as to each of these defendants. (Murray Dec f 2)
Having won all claims against four defendants and all but one claim against the fifth defendant
David Wong, which had gone to final judgment, it was shocking to see that the First Amended
Complaint contained claims against the same defendants. Plaintiffs refused to drop these defendants
from the suit. Hence these defendants Demurrer to and filed a SLAPP Motion against their being named
in the First Amended Complaint. The Demurrer and SLAPP motion which was heard on December 18,
2014. The intent was to remove the individual defendants, Michael Zehner, Brian Savage, Shedrick
MeDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation, to secure a
dismissal of the remaining claims against Wong save and except the failure to produce books and
records. (Murray Dec { 3)
And, it seemed obvious that in addition to removing the four other defendants and the remaining
claims against Defendant Wong “relate to” the original SLAPP order and judgment already entered and
final in this case. By definition, since the first SLAPP motion ordered dismissal of the individual
defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San
Francisco Deputy Sheriff's Foundation for exactly what they were alleged to have done in the First
Amended Complaint, and they were still in the pleading, a SLAPP motion would apply to remove them
Pecot, et al, vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearingasecond time. (Murray Dec 44) The protections of SLAPP had not evaporated just because they were
named again in the same proceedings on the same facts.
In addition, the individual defendants filed their demurrer because three of the individual defendants,
Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco
Deputy Sheriff's Foundation, have been dismissed completely by way of prior court orders, and a
judgment entered in their favor in this action as to all claims, there was no claim that could be plead
against them, yet they were still in the action. The First Amended Complaint failed to state a cause of
action against them. (Murray Dec {| 5)
Regardless of the prior rulings and the final judgment, Michael Zehner, Brian Savage, Shedrick
MeDanicls, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation, remain named
defendants in the lawsuit in the First Amended Complaint. The first SLAPP order having become final
by way of the Appeal and dismissal of the Appeal, the second SLAPP motion should have been
automatic. The same facts being alleged, it should have been res judicata.(Murray Dec ]6) These
Defendants moved by way of SLAPP and Demurrer to eliminate themselves completely and all of the
claims against David Wong except the Sixth Cause of Action (Corporations Code Section 6333 for
records) and the Eighth Cause of Action, (for Concealment.) (Murray Dec 47) Yet, in the tentative,
these defendants and their attorney were sanctioned for attempting to seek elimination from the case.
An award of sanctions requires that the Plaintiff demonstrate that the motion is totally devoid of
merit and that no reasonable attorney would have brought it. Gerbosi v. Gaims, Weil, West & Epstein,
LLP (2011) 193 Cal-App.4th 435. In this case, the Demurrer and SLAPP motion to remove Michael
Zebner, Brian Savage, Shedrick McDaniels, and the San Francisco Deputy Sheriff's Foundation as
defendants was successful as they were removed in the Second Amended Complaint pursuant to the oral
order from the bench by Judge Goldsmith. As Judge Goldsmith ruled at the hearing, the order to
remove them was to be included in the order applicable to both the SLAPP and the demurrer. (RT 20:15-
21:4) (Murray Dee { 8)
D. Objection To The Tentative And Objection To Sanctions Caused A Hearing
The tentative ruling found that the motion was ftivolous and permitted granting of attorncy fees.
The granting of sanctions was due to (a) a delay of more than 60 days to hear the SLAPP motion, and (b)
the claims do not relate to the prior SLAPP order. (Murray Dec ]9) On December 18, 2015, these
defendants contested the tentative ruling and requested an opportunity be heard because the tentative was
for sanctions for (a) the delay in bringing this SLAPP to hearing, which was done specifically at the
Pecoi, et al, vs, SFDSA, et al.; San Francisco Superior Court No: CGC — 10-501 168 Page 3
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearing27
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direction of the Clerk of the Court, and (b) because contesting the two remaining claims in the
underlying action and claims that were dismissed. It was contested on the basis that there was a good
faith basis to bring the motion, hence no fees should be considered. (Murray Dec {| 10)
E, The Finding of A Frivolous Motion Based On Selection of The Hearing Date Must Fail
The first basis for the finding the motion was frivolous, due to the date for the hearing on the
renewed SLAPP motion should fail because the date was set by the clerk and not chosen by the
individual defendants or his firm. (Declaration of Jonathan Wong, Exhibit 2, filed December 17, 2014
containing the emails showing that the date for hearing was sclected by the clerk, that is December 9 or
December 12, and then continued by the Court because Mr. Kranz failed to file a courtesy copy in 302)
This was not the fault of these individual defendants or their attorneys. (Murray Dec { 11) Yet these
defendants were sanctioned for accepting the date directed by the clerk.
FE. The Finding of A Frivolous Motion Based On Lack Of Relation To Protected Activity Was
Also Demonstrated As False At The Hearing
On the record in open court, defendants again explained that the motion to strike the claims for
failure to deliver records was related to the protected activity, use of these documents in the elections
which were already ruled as being protected activities in the SLAPP motions: (Murray Dec 12)
THE COURT: Just a minute. Just a second. |
Six and eight are Corporation Code and concealment. |
MR. MURRAY: Right. They both go to concealing records of
the corporation that occurred during an election procedure.
The election procedures, there was six election procedures
that we alleged in the SLAPP motion that were protected
activities. The six alleged things go to voting how much the
dues are, voting who -- having the Board of Directors direct on
Wong's salary, having the members vote on Wong's salary. i
They came back and allege in their complaint originally and
in federal court that Wong's salary was fraudulent, that he was
thieving money from the company, et cetera. That's why we
have -- we have the documents of the investigation, the
documents of the Sheriff's Association, in which they go through
it in great detail.
They say his money-taking was not that. This was approved
by the Board in advance. It was a salary. He was the
President. He had to be paid a salary. Otherwise, we violate
the Labor Code. So he was paid a salary. It's not theft.
They alieged that in federal court. It was thrown out.
Pecot, et al. vs. SFDSA, et al; San Francisco Superior Court No: CGC — 10 — 501168 Page 4
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingThey allege it over here. It was thrown out. All of these
elections, these six or seven elections that are in issue, they
wanted documents under 6333 of the Corporations Code, and the
failure to produce these documents, they say, is concealment,
but it’s the documents that go right to the election.
(emphasis added RT: 12.18.2015 3:4-28)
THE COURT: How do you establish that by denying plaintiffs
the right to inspect books they engaged in protected activity?
MR. MURRAY: Well, okay. We need to back up a little
because they did get to inspect the books. Their first amended
complaint says they got to read the documents, but not all of
the documents, and that there's some still that they wanted.
So the documents that they wanted and that they have relate
to the six elections that I have gone through in detail, and
that's why I have the declarations of people like Heuer and the
other members of the DSA in the context of what we have right here.
All these documents and declarations go to what was going on
and their complaints, Johna Pecot's complaint, that she didn't
get these documents. The Union ruled on them already, the US
District Court ruled, and this Court ruled that the underlying
activities were out.
So if the underlying activities are out, this would tie into
the protected activity. It has to. | mean, you're going after
documents that you want to use in an election. You didn't get
them. Then you did get them. (emphasis added RT 12.18.2015 6:25-7: 16) (Murray Dec §j 12)
Notably, the court on the record ultimately ordered what these defendants were seeking in their
SLAPP motion, specifically that the three individual defendants and the corporate defendant be struck
frora the First Amended Complaint. (Murray Dec 13)
G. Ultimately, Plaintiff's Were Forced To Concede There Was NO BASIS To Include These
Individual Defendants In This Amended Complaint Stating They Would Strike Them
From The Complaint “Immediately,” The Very Point Of The Motion
Ultimately, and only as a result of bringing this motion, Mr. Kranz acknowledged that he had no
basis whatsoever to proceed against the individual defendants, Michael Zehner, Brian Savage, Shedrick
McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation. Not only did
he admit he had no basis, in the hearing he stated that he would immediately strike these defendants
from the Complaint. Plaintiff was give 10 days to do so, which would have expired on December 28,
2014. Notably, if timing was so important to be sanctioned for it, though the Second Amended
Complain was ordered to be filed in December 2014, it was not filed until April 2015.) (Murray Dec 4]
14) The transcript is clear:
Pecot, et al. vs. SEDSA, et al; San Francisco Superior Court No: CGC -. 10 — 501168 Page 5
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingTHE COURT: Well, if their names are there,[ON THE COMPLAINT] you're going after those
defendants, right?
MR. KRANZ: Well, we're not intending to do so, Your Honor.
THE COURT: Maybe you ought to do something about it.
MR. KRANZ: Okay.
THE COURT: What are you going to do?
MR. KRANZ: Well, we can strike those defendants’ names.
THE COURT: When?
MR. KRANZ: Immediately.
MR. MURRAY: Ten days?
THE COURT: Do you want to make a statement now?
MR. KRANZ: Ten days is fine, Your Honor.
THE COURT: You want to make that part of the order?
MR. MURRAY: Yes.
THE COURT: Okay. Then do it. (emphasis added, RT 17:17-18:3)
When Mr. Kranz stated in open court on defendants motion to strike that he would strike the
names of these defendants voluntarily, though he had refused previously, he conceded the merits of the
motion. Defendants having won the motion to strike as to the individual defendants by stipulation of
plaintiff's counsel, there is no justification for attempting to sanction these defendants or their attorney.
H. Defiant, Though He Stipulated To The Basis Of The Special Motion to Strike, That Is
Striking The Individual Defendants, Plaintiff’s Attorney Insisted On Securing The
Tentative As The Order Of The Court, With the Provisions for Sanctions Against
Defendants And Their Attorney Regardless Of His Stipulation To Strike The Defendants,
The Very Essence Of The SLAPP Motion
MR. KRANZ: So I have a proposed order based on the motion
to strike and the Court's tentative ruling?
THE COURT: Well, I think you're going to have a new order.
MR. MURRAY: Yes. I'll draft it, I'll send it to him, and
he can take a look at it. (RT 18:23-25) (Murray Dec {] 15)
As to the sanctions award, that was modified also. The court on no less than two occasions
indicated that he was going to think about it. There was no order for sanctions and nothing
demonstrating the claims were “totally devoid of merit and that no reasonable attorney would have
brougat it,” especially when the motion was successful in finally getting the removal of the individual
defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San
Francisco Deputy Sheriff's: (Murray Dec { 15)
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 6
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingL In Dictating The New Form of Order, The Court Reserved Any Order For Sanctions, It
Was Not The Tentative Ruling Order But A New Order
MR. MURRAY: | will draft it. [the form of order]
Is the sanctions issue really something that we need to speak to?
THE COURT: I'll think about it. (RT: 18:4-7)
THE COURT: Okay. Let's cut it out. You're going to give
me an order that's going to take care of that problem.
MR. MURRAY: Thank you so much. Yes.
THE COURT: Okay.
MR. KRANZ: On the order with respect to the sanctions, Your Honor --
THE COURT: I'll figure it out. (RT 19:6-12)
As to the content of the Order, MR. KRANZ made various requests which were denied with Mr
Murray being directed to prepare the order: (Murray Dec { 15)
MR. KRANZ: -- I would like -- well, I would like, in terms
of the proposed order that the Court asked me to bring, I would
ask that the proposed order also include reference to the fact
that these arguments were made, res judicata argument and the
argument as to 6333.
THE COURT: If I was to include everything that underlies
and forms the background of this case, you'd have an order
bigger than this. So I'm not going to do that.
MR. KRANZ: I'm just asking for two lines, Your Honor.
THE COURT: Well, just add what I mentioned.
MR. MURRAY: I will. Thank you. Submitted.
MR. KRANZ: So I have a proposed order based on the motion
to strike and the Court's tentative ruling?
THE COURT: Well, I think you're going to have a new order.
MR. MURRAY: Yes. I'll draft it, I'll send it to him, and
he can take a look at it. (emphasis added RT 19:12-28)
Mr. Kranz sought to present his proposed order based on the Court’s Tentative Ruling which the
court denied. Mr. Murray was ordered to prepare the order on both the demurrer and the SLAPP
motion,
THE COURT: Well, wait a minute. Wait a minute.
I thought timing may be an issue, but I thought I ought to
go ahead and decide it on the merits.
MR. MURRAY: Thank you. We'll put the merits in.
THE COURT: Okay.
MR. MURRAY: Yes.
MR. KRANZ: So I have a proposed order based on the Court's
tentative ruling.
MR. MURRAY: I'm going to have to take and draft what he
Pecot, et al, vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 7
Points & Authorities - Motion Under CCP 473 (4) Mo To Correct Clerical Error In Order After Hearingsuggested today, what the Judge ordered today. So I will put --
THE COURT: That's a demurrer, though.
MR. KRANZ: That's a demurrer.
MR. MURRAY: Well, it's both.
THE COURT: It is both. You know, Mr. Kranz, it is both. [Striking claims as to individual
defendants]
MR. KRANZ: There were two separate tentative rulings, Your Honor.
THE COURT: I know. But based on the argument, it goes to both.
MR. MURRAY: Thank you, Your Honor.
(emphasis added RT 20:15-21:5)
Notably, though the court stated that the striking of the individual defendants goes to both orders, Mr.
Kranz never included it in his proposed form of order.
J. When Murray Submitted A Form Of Order As Directed, It Was Not Entered By The Clerk
Additionally, the clerk originally noted in the minutes for the hearing acknowledged that Mr.
Murray was directed to submit the order as discussed at the hearing. The clerk’s notes of the hearing of
December 18, 2014, from the court’s web page read that, “The Court modified its tentative ruling as
stated on the record. Defense Counsel, Mr. Murray, shall submitted a proposed order to include the
language striking certain defendants as discussed at the hearing.” (Murray Dec { 16) And when Murray
complied with the directive to submit an order as dictated by the Court, it was not entered by the Clerk.
K. Sanctions for Selection Of The SLAPP Hearing Date Are In Error
On December 19, 2014, Murray emailed the form of order which he drafted to opposing counsel.
(Murray Dec J 17 Email enclosed as Exhibit 3)
On December 24, 2014, Murray received a letter objecting to the order Murray drafted, and
presenting multiple forms of order from opposing counsel, Mr. Kranz. (Murray Dec Exhibit 4) It was
in fact contrary to the court’s ruling. Though the motions were successful under both SLAPP and the
Demurrer in removing the individual defendants from the case, under the order by Kranz which was
entered, the motion was found to be frivolous and no reasonable attorney would have filed them. Based
on having filed the motions and won, defendants and the attomey had an award of attorney fees order
against them, in an amount to be determined, to Mr. Kranz. (Murray Dec j 18)
On December 29, 2015, Mr. Murray prepare and sent, as well as hand carried to the clerk in the Law
and Motion department, the specific forms of order as dictated by the court with a letter explaining that
the form of orders submitted by Mr. Kranz is in error and contrary to the court’s instructions in a number,
of meaningful areas: (Murray Dec { 19)
Pecot, et al. vs. SEDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 8
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearing27
28
(a) First, while the tentative ruling found the motion frivolous, after hearing and the explanation
offered at hearing, the court modified its tentative ruling to say that the award of fees, if any,
were taken under submission. Judge Goldsmith repeatedly stated he would think about it.
Murray submitted a correct expressed in the form of order which he presented to Mr. Kranz
and then to the court;
(b) Mr. Murray noted that the court ordered that he prepare correctly expressing the rulings for
both motions, was rejected by the clerk.
(c) In all respects the order which Mr. Murray prepared is consistent with the tentative and the
modifications made at the hearing in this matter. He offer it then to the court with the forms
of order drafted by Mr. Kranz.
With Mr. Murray’s December 29, 2014 letter he included the orders as dictated by the statements of
Judge Goldsmith in our hearing on December 18, 2014. He assumed that the correct order would be
entered. (Murray Dec { 20)
On January 12, 2015, a clerical error occurred where the order presented by Mr. Kranz, with the
errors of finding a frivolous motion and awarding fees, was entered contrary to the reservation of such
findings by Judge Goldsmith, and the directive that Mr. Murray prepare and present the order, occurred.
(A copy of the order as filed is attached as Murray Dec 21, Exhibit 6)
L. Conclusion:
The individual defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the
corporate defendant, the San Francisco Deputy Sheriff's Foundation therefore request that the error in
the form of orders be corrected, that the court order stricken the order filed January 12, 2015, and that
the proper order, as submitted, be entered into the court’s file. (Murray Dec 22) It is respectfully
requested that the order previously filed on January 12, 2015, be ordered stricken and a new order
entered consistent with the statements of Judge Goldsmith.
April 2, 2015 Respectfully submitted
Murray & Associates
awrghce D, Murray
Attofney for Defendants Michael Zehrier, Brian Savage, Shedrick
McDaniels, and the corporate defendant, the San Francisco Deputy
Sheriff's Foundation
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 9
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingPROOF OF SERVICE
Tam employed in the City and County of San Francisco, State of California. I am over the age of|
18 and not a party to the within action. My business address is 1781 Union Street, San Francisco,
California 94123; (415) 673-0555. On this date, I served the following document(s):
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION PURSUANT
TO CODE OF CIVIL PROCEDURE SECTION 473 (d) TO CORRECT CLERICAL ERROR IN
ORDER AFTER DEMURRER & SLAPP HEARING (Supporting Doc: Murray Dec. w
Exhibits) on the interested parties in this action as follows:
Attorney for Plaintiffs:
Paul L. Kranz
Law Office of Paul L. Kranz
499 14" Street, Suite 300
Oakland, CA 94516
Tel: (510) 839-1200
Fax: (510) 444-6698
Attorneys for Defendant San Francisco Deputy Sheriffs’ Association
Lara Cullinane-Smith
Shrem & Smith
11720 San Pablo Avenue #C
El Cerrito, CA 94530
Tel; (510) 919-3214
Fax: (510) 705-1854
lara@shremlaw.com
[XX] [BY MAIL] _ I caused envelope(s) with postage thereon fully prepaid to be placed in the United
States mail at San Francisco, California, addressed as shown above.
{x % [BY PERSONAL SERVICE BY EMAIL] _ | caused such envelope(s) to be delivered by hand
to the above address(es).
[ ] [BY FAX] I caused the above entitled document(s) to be personally served on the above
shown parties by facsimile transmission on the date shown below by confirming the fax phone number
with the law office shown above then (a) transmitting it via the fax machine within this office, and (b)
receiving a receipt from the machine within this office confirming all documents sent were in fact
properly received.
I declare under penalty of perjury under the laws of the State of California that the above is true
and correct. Executed in San Francisco, California, on June 2, 2015.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 10
Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearing
Preview
Lawrence D. Murray (SBN 77536) MURRAY & ASSOCIATES 1781 Union Street ELECTRONICALLY San Francisco, CA 94123 FILED Tel: (415) 673-0555 Fax: (415) 928-4084 Superior Court of Caltfomia, Attomey for Defendants: DAVID WONG, MICHAEL ZEHNER, 06/0: 4/2015 BRIAN SAVAGE SHEDRICK McDANIELS, and the SAN Clerk of the Court FRANCISCO DEPUTY SHERIFF’S FOUNDATION BY:RONNIE OTERO Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC — 10 -501168 OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR, Individually MEMORANDUM OF POINTS AND and on behalf of all other similarly situated, AUTHORITIES IN SUPPORT OF MOTION PURSUANT TO CODE OF CIVIL Plaintiffs, PROCEDURE SECTION 473 (d) TO v. CORRECT CLERICAL ERROR IN ORDER AFTER DEMURRER & SLAPP HEARING SAN FRANCISCO DEPUTY SHERIFF’S (Supporting Doc: Murray Dec, w Exhibits) ASSOCIATION, DAVID WONG, MICHAEL ZEHNER, BRIAN SAVAGE, HEARING: June 18, 2015 SHEDRICK McDANIELS, and the SAN TIME: 9:30 A.M. FRANCISCO DEPUTY SHERIFF’S DEPT: 302 FOUNDATION et al., Reservation No. 05290804-14 Defendants. A. Introduction By mistake and clerical error, after a tentative ruling on a SLAPP motion, the court modified the order removing the finding of a frivolous motion and award of attorneys fees. The court dictated changes to the tentative ruling, which were put in the order offered by counsel for the individual Defendants, but not in the form of order offered by Plaintiff's attorney. The wrong form of order was ultimately entered, It is now the basis for a motion for sanctions, though entered in error. This motion to correct the record due to clerical error follows. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 1 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingB. The Court Is Empowered To Correct Orders Entered In Error California Code of Civil Procedure Section 473(d) states: The court may, upon motion of the injured party, or its own motion, correct clerical inistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. This motior is made pursuant to Code of Civil Procedure Section 473 (d) to correct the error. CG History Leading Up To The Demurrer and SLAPP Motion Of December 18, 2014 These moving defendants filed their first SLAPP motion, which was granted on July 7, 2011. It struck all allegations against the individual Defendants Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation. It also struck all but one cause of action against Defendant David Wong. The only remaining claim was for a violation of Corporate Code Section 6333, the failure to provide books and records to the members of the corporation, The final judgment was entered on June 18, 2013, and appealed by plaintiffs by their Notice of Appeal filed August 13, 2013. The appeal was dismissed and remittiture issued on July 18, 2014, hence the dismissal of Defendants Michael Zehner, Brian Savage, Shedrick McDaniels and the Foundation had became a final judgment as to each of these defendants. (Murray Dec f 2) Having won all claims against four defendants and all but one claim against the fifth defendant David Wong, which had gone to final judgment, it was shocking to see that the First Amended Complaint contained claims against the same defendants. Plaintiffs refused to drop these defendants from the suit. Hence these defendants Demurrer to and filed a SLAPP Motion against their being named in the First Amended Complaint. The Demurrer and SLAPP motion which was heard on December 18, 2014. The intent was to remove the individual defendants, Michael Zehner, Brian Savage, Shedrick MeDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation, to secure a dismissal of the remaining claims against Wong save and except the failure to produce books and records. (Murray Dec { 3) And, it seemed obvious that in addition to removing the four other defendants and the remaining claims against Defendant Wong “relate to” the original SLAPP order and judgment already entered and final in this case. By definition, since the first SLAPP motion ordered dismissal of the individual defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation for exactly what they were alleged to have done in the First Amended Complaint, and they were still in the pleading, a SLAPP motion would apply to remove them Pecot, et al, vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearingasecond time. (Murray Dec 44) The protections of SLAPP had not evaporated just because they were named again in the same proceedings on the same facts. In addition, the individual defendants filed their demurrer because three of the individual defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation, have been dismissed completely by way of prior court orders, and a judgment entered in their favor in this action as to all claims, there was no claim that could be plead against them, yet they were still in the action. The First Amended Complaint failed to state a cause of action against them. (Murray Dec {| 5) Regardless of the prior rulings and the final judgment, Michael Zehner, Brian Savage, Shedrick MeDanicls, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation, remain named defendants in the lawsuit in the First Amended Complaint. The first SLAPP order having become final by way of the Appeal and dismissal of the Appeal, the second SLAPP motion should have been automatic. The same facts being alleged, it should have been res judicata.(Murray Dec ]6) These Defendants moved by way of SLAPP and Demurrer to eliminate themselves completely and all of the claims against David Wong except the Sixth Cause of Action (Corporations Code Section 6333 for records) and the Eighth Cause of Action, (for Concealment.) (Murray Dec 47) Yet, in the tentative, these defendants and their attorney were sanctioned for attempting to seek elimination from the case. An award of sanctions requires that the Plaintiff demonstrate that the motion is totally devoid of merit and that no reasonable attorney would have brought it. Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal-App.4th 435. In this case, the Demurrer and SLAPP motion to remove Michael Zebner, Brian Savage, Shedrick McDaniels, and the San Francisco Deputy Sheriff's Foundation as defendants was successful as they were removed in the Second Amended Complaint pursuant to the oral order from the bench by Judge Goldsmith. As Judge Goldsmith ruled at the hearing, the order to remove them was to be included in the order applicable to both the SLAPP and the demurrer. (RT 20:15- 21:4) (Murray Dee { 8) D. Objection To The Tentative And Objection To Sanctions Caused A Hearing The tentative ruling found that the motion was ftivolous and permitted granting of attorncy fees. The granting of sanctions was due to (a) a delay of more than 60 days to hear the SLAPP motion, and (b) the claims do not relate to the prior SLAPP order. (Murray Dec ]9) On December 18, 2015, these defendants contested the tentative ruling and requested an opportunity be heard because the tentative was for sanctions for (a) the delay in bringing this SLAPP to hearing, which was done specifically at the Pecoi, et al, vs, SFDSA, et al.; San Francisco Superior Court No: CGC — 10-501 168 Page 3 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearing27 28 direction of the Clerk of the Court, and (b) because contesting the two remaining claims in the underlying action and claims that were dismissed. It was contested on the basis that there was a good faith basis to bring the motion, hence no fees should be considered. (Murray Dec {| 10) E, The Finding of A Frivolous Motion Based On Selection of The Hearing Date Must Fail The first basis for the finding the motion was frivolous, due to the date for the hearing on the renewed SLAPP motion should fail because the date was set by the clerk and not chosen by the individual defendants or his firm. (Declaration of Jonathan Wong, Exhibit 2, filed December 17, 2014 containing the emails showing that the date for hearing was sclected by the clerk, that is December 9 or December 12, and then continued by the Court because Mr. Kranz failed to file a courtesy copy in 302) This was not the fault of these individual defendants or their attorneys. (Murray Dec { 11) Yet these defendants were sanctioned for accepting the date directed by the clerk. FE. The Finding of A Frivolous Motion Based On Lack Of Relation To Protected Activity Was Also Demonstrated As False At The Hearing On the record in open court, defendants again explained that the motion to strike the claims for failure to deliver records was related to the protected activity, use of these documents in the elections which were already ruled as being protected activities in the SLAPP motions: (Murray Dec 12) THE COURT: Just a minute. Just a second. | Six and eight are Corporation Code and concealment. | MR. MURRAY: Right. They both go to concealing records of the corporation that occurred during an election procedure. The election procedures, there was six election procedures that we alleged in the SLAPP motion that were protected activities. The six alleged things go to voting how much the dues are, voting who -- having the Board of Directors direct on Wong's salary, having the members vote on Wong's salary. i They came back and allege in their complaint originally and in federal court that Wong's salary was fraudulent, that he was thieving money from the company, et cetera. That's why we have -- we have the documents of the investigation, the documents of the Sheriff's Association, in which they go through it in great detail. They say his money-taking was not that. This was approved by the Board in advance. It was a salary. He was the President. He had to be paid a salary. Otherwise, we violate the Labor Code. So he was paid a salary. It's not theft. They alieged that in federal court. It was thrown out. Pecot, et al. vs. SFDSA, et al; San Francisco Superior Court No: CGC — 10 — 501168 Page 4 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingThey allege it over here. It was thrown out. All of these elections, these six or seven elections that are in issue, they wanted documents under 6333 of the Corporations Code, and the failure to produce these documents, they say, is concealment, but it’s the documents that go right to the election. (emphasis added RT: 12.18.2015 3:4-28) THE COURT: How do you establish that by denying plaintiffs the right to inspect books they engaged in protected activity? MR. MURRAY: Well, okay. We need to back up a little because they did get to inspect the books. Their first amended complaint says they got to read the documents, but not all of the documents, and that there's some still that they wanted. So the documents that they wanted and that they have relate to the six elections that I have gone through in detail, and that's why I have the declarations of people like Heuer and the other members of the DSA in the context of what we have right here. All these documents and declarations go to what was going on and their complaints, Johna Pecot's complaint, that she didn't get these documents. The Union ruled on them already, the US District Court ruled, and this Court ruled that the underlying activities were out. So if the underlying activities are out, this would tie into the protected activity. It has to. | mean, you're going after documents that you want to use in an election. You didn't get them. Then you did get them. (emphasis added RT 12.18.2015 6:25-7: 16) (Murray Dec §j 12) Notably, the court on the record ultimately ordered what these defendants were seeking in their SLAPP motion, specifically that the three individual defendants and the corporate defendant be struck frora the First Amended Complaint. (Murray Dec 13) G. Ultimately, Plaintiff's Were Forced To Concede There Was NO BASIS To Include These Individual Defendants In This Amended Complaint Stating They Would Strike Them From The Complaint “Immediately,” The Very Point Of The Motion Ultimately, and only as a result of bringing this motion, Mr. Kranz acknowledged that he had no basis whatsoever to proceed against the individual defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation. Not only did he admit he had no basis, in the hearing he stated that he would immediately strike these defendants from the Complaint. Plaintiff was give 10 days to do so, which would have expired on December 28, 2014. Notably, if timing was so important to be sanctioned for it, though the Second Amended Complain was ordered to be filed in December 2014, it was not filed until April 2015.) (Murray Dec 4] 14) The transcript is clear: Pecot, et al. vs. SEDSA, et al; San Francisco Superior Court No: CGC -. 10 — 501168 Page 5 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingTHE COURT: Well, if their names are there,[ON THE COMPLAINT] you're going after those defendants, right? MR. KRANZ: Well, we're not intending to do so, Your Honor. THE COURT: Maybe you ought to do something about it. MR. KRANZ: Okay. THE COURT: What are you going to do? MR. KRANZ: Well, we can strike those defendants’ names. THE COURT: When? MR. KRANZ: Immediately. MR. MURRAY: Ten days? THE COURT: Do you want to make a statement now? MR. KRANZ: Ten days is fine, Your Honor. THE COURT: You want to make that part of the order? MR. MURRAY: Yes. THE COURT: Okay. Then do it. (emphasis added, RT 17:17-18:3) When Mr. Kranz stated in open court on defendants motion to strike that he would strike the names of these defendants voluntarily, though he had refused previously, he conceded the merits of the motion. Defendants having won the motion to strike as to the individual defendants by stipulation of plaintiff's counsel, there is no justification for attempting to sanction these defendants or their attorney. H. Defiant, Though He Stipulated To The Basis Of The Special Motion to Strike, That Is Striking The Individual Defendants, Plaintiff’s Attorney Insisted On Securing The Tentative As The Order Of The Court, With the Provisions for Sanctions Against Defendants And Their Attorney Regardless Of His Stipulation To Strike The Defendants, The Very Essence Of The SLAPP Motion MR. KRANZ: So I have a proposed order based on the motion to strike and the Court's tentative ruling? THE COURT: Well, I think you're going to have a new order. MR. MURRAY: Yes. I'll draft it, I'll send it to him, and he can take a look at it. (RT 18:23-25) (Murray Dec {] 15) As to the sanctions award, that was modified also. The court on no less than two occasions indicated that he was going to think about it. There was no order for sanctions and nothing demonstrating the claims were “totally devoid of merit and that no reasonable attorney would have brougat it,” especially when the motion was successful in finally getting the removal of the individual defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's: (Murray Dec { 15) Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 6 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingL In Dictating The New Form of Order, The Court Reserved Any Order For Sanctions, It Was Not The Tentative Ruling Order But A New Order MR. MURRAY: | will draft it. [the form of order] Is the sanctions issue really something that we need to speak to? THE COURT: I'll think about it. (RT: 18:4-7) THE COURT: Okay. Let's cut it out. You're going to give me an order that's going to take care of that problem. MR. MURRAY: Thank you so much. Yes. THE COURT: Okay. MR. KRANZ: On the order with respect to the sanctions, Your Honor -- THE COURT: I'll figure it out. (RT 19:6-12) As to the content of the Order, MR. KRANZ made various requests which were denied with Mr Murray being directed to prepare the order: (Murray Dec { 15) MR. KRANZ: -- I would like -- well, I would like, in terms of the proposed order that the Court asked me to bring, I would ask that the proposed order also include reference to the fact that these arguments were made, res judicata argument and the argument as to 6333. THE COURT: If I was to include everything that underlies and forms the background of this case, you'd have an order bigger than this. So I'm not going to do that. MR. KRANZ: I'm just asking for two lines, Your Honor. THE COURT: Well, just add what I mentioned. MR. MURRAY: I will. Thank you. Submitted. MR. KRANZ: So I have a proposed order based on the motion to strike and the Court's tentative ruling? THE COURT: Well, I think you're going to have a new order. MR. MURRAY: Yes. I'll draft it, I'll send it to him, and he can take a look at it. (emphasis added RT 19:12-28) Mr. Kranz sought to present his proposed order based on the Court’s Tentative Ruling which the court denied. Mr. Murray was ordered to prepare the order on both the demurrer and the SLAPP motion, THE COURT: Well, wait a minute. Wait a minute. I thought timing may be an issue, but I thought I ought to go ahead and decide it on the merits. MR. MURRAY: Thank you. We'll put the merits in. THE COURT: Okay. MR. MURRAY: Yes. MR. KRANZ: So I have a proposed order based on the Court's tentative ruling. MR. MURRAY: I'm going to have to take and draft what he Pecot, et al, vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 7 Points & Authorities - Motion Under CCP 473 (4) Mo To Correct Clerical Error In Order After Hearingsuggested today, what the Judge ordered today. So I will put -- THE COURT: That's a demurrer, though. MR. KRANZ: That's a demurrer. MR. MURRAY: Well, it's both. THE COURT: It is both. You know, Mr. Kranz, it is both. [Striking claims as to individual defendants] MR. KRANZ: There were two separate tentative rulings, Your Honor. THE COURT: I know. But based on the argument, it goes to both. MR. MURRAY: Thank you, Your Honor. (emphasis added RT 20:15-21:5) Notably, though the court stated that the striking of the individual defendants goes to both orders, Mr. Kranz never included it in his proposed form of order. J. When Murray Submitted A Form Of Order As Directed, It Was Not Entered By The Clerk Additionally, the clerk originally noted in the minutes for the hearing acknowledged that Mr. Murray was directed to submit the order as discussed at the hearing. The clerk’s notes of the hearing of December 18, 2014, from the court’s web page read that, “The Court modified its tentative ruling as stated on the record. Defense Counsel, Mr. Murray, shall submitted a proposed order to include the language striking certain defendants as discussed at the hearing.” (Murray Dec { 16) And when Murray complied with the directive to submit an order as dictated by the Court, it was not entered by the Clerk. K. Sanctions for Selection Of The SLAPP Hearing Date Are In Error On December 19, 2014, Murray emailed the form of order which he drafted to opposing counsel. (Murray Dec J 17 Email enclosed as Exhibit 3) On December 24, 2014, Murray received a letter objecting to the order Murray drafted, and presenting multiple forms of order from opposing counsel, Mr. Kranz. (Murray Dec Exhibit 4) It was in fact contrary to the court’s ruling. Though the motions were successful under both SLAPP and the Demurrer in removing the individual defendants from the case, under the order by Kranz which was entered, the motion was found to be frivolous and no reasonable attorney would have filed them. Based on having filed the motions and won, defendants and the attomey had an award of attorney fees order against them, in an amount to be determined, to Mr. Kranz. (Murray Dec j 18) On December 29, 2015, Mr. Murray prepare and sent, as well as hand carried to the clerk in the Law and Motion department, the specific forms of order as dictated by the court with a letter explaining that the form of orders submitted by Mr. Kranz is in error and contrary to the court’s instructions in a number, of meaningful areas: (Murray Dec { 19) Pecot, et al. vs. SEDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 8 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearing27 28 (a) First, while the tentative ruling found the motion frivolous, after hearing and the explanation offered at hearing, the court modified its tentative ruling to say that the award of fees, if any, were taken under submission. Judge Goldsmith repeatedly stated he would think about it. Murray submitted a correct expressed in the form of order which he presented to Mr. Kranz and then to the court; (b) Mr. Murray noted that the court ordered that he prepare correctly expressing the rulings for both motions, was rejected by the clerk. (c) In all respects the order which Mr. Murray prepared is consistent with the tentative and the modifications made at the hearing in this matter. He offer it then to the court with the forms of order drafted by Mr. Kranz. With Mr. Murray’s December 29, 2014 letter he included the orders as dictated by the statements of Judge Goldsmith in our hearing on December 18, 2014. He assumed that the correct order would be entered. (Murray Dec { 20) On January 12, 2015, a clerical error occurred where the order presented by Mr. Kranz, with the errors of finding a frivolous motion and awarding fees, was entered contrary to the reservation of such findings by Judge Goldsmith, and the directive that Mr. Murray prepare and present the order, occurred. (A copy of the order as filed is attached as Murray Dec 21, Exhibit 6) L. Conclusion: The individual defendants, Michael Zehner, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation therefore request that the error in the form of orders be corrected, that the court order stricken the order filed January 12, 2015, and that the proper order, as submitted, be entered into the court’s file. (Murray Dec 22) It is respectfully requested that the order previously filed on January 12, 2015, be ordered stricken and a new order entered consistent with the statements of Judge Goldsmith. April 2, 2015 Respectfully submitted Murray & Associates awrghce D, Murray Attofney for Defendants Michael Zehrier, Brian Savage, Shedrick McDaniels, and the corporate defendant, the San Francisco Deputy Sheriff's Foundation Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 9 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After HearingPROOF OF SERVICE Tam employed in the City and County of San Francisco, State of California. I am over the age of| 18 and not a party to the within action. My business address is 1781 Union Street, San Francisco, California 94123; (415) 673-0555. On this date, I served the following document(s): MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 473 (d) TO CORRECT CLERICAL ERROR IN ORDER AFTER DEMURRER & SLAPP HEARING (Supporting Doc: Murray Dec. w Exhibits) on the interested parties in this action as follows: Attorney for Plaintiffs: Paul L. Kranz Law Office of Paul L. Kranz 499 14" Street, Suite 300 Oakland, CA 94516 Tel: (510) 839-1200 Fax: (510) 444-6698 Attorneys for Defendant San Francisco Deputy Sheriffs’ Association Lara Cullinane-Smith Shrem & Smith 11720 San Pablo Avenue #C El Cerrito, CA 94530 Tel; (510) 919-3214 Fax: (510) 705-1854 lara@shremlaw.com [XX] [BY MAIL] _ I caused envelope(s) with postage thereon fully prepaid to be placed in the United States mail at San Francisco, California, addressed as shown above. {x % [BY PERSONAL SERVICE BY EMAIL] _ | caused such envelope(s) to be delivered by hand to the above address(es). [ ] [BY FAX] I caused the above entitled document(s) to be personally served on the above shown parties by facsimile transmission on the date shown below by confirming the fax phone number with the law office shown above then (a) transmitting it via the fax machine within this office, and (b) receiving a receipt from the machine within this office confirming all documents sent were in fact properly received. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed in San Francisco, California, on June 2, 2015. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 10 Points & Authorities - Motion Under CCP 473 (d) Mo To Correct Clerical Error In Order After Hearing