Motion-Secondary: JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF'S ASSOCIATION, A et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                | LAW OFFICES OF PAUL L. KRANZ ELECTRONICALLY

PAUL L. KRANZ, ESQ.. SBN 114999
2 |] 499 14" Street, Suite 300 ee D
|| Oakland, CA 94612 Metal crads once e
3 | kranzlawédsbeglobal net 07/13/2015
< Clerk of the Court
Telephone: (510) 839-1200 BY:ROSSALY DELAVEGA
Facsimile: (510) 444-6698 Deputy Clerk

: | Attorneys for Named Plaintiffs Johna Pecot, ef al.

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOHNA PECOT, et al. Individually and on Behalf of CASE NO. CGC-10-501168
| All Others Similarly Situated,
PLAINTIFFS’ MEMORANDUM
Plaintiffs, OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR
v. ATTORNEY'S FEES

Date: August 4, 2015
Time: 9:30 a.m.
Dept.: 302

| SAN FRANCISCO DEPUTY SHERIFF'S
ASSOCIATION, a California Nonprofit
Corporation, ef al

ed et Ne a et

Defendants.

f}oer> © PE AAN LIFES’ MEMO. OF PTS. & AUTHS. IN SUPPORT OF MOTION FOR ATTORNEY'S FEES

(pattiemeDoanicad PEOTRODUCTION

The instant motion seeks to in effect have causes of action dismissed, which have already

| heen dismissed, to have dismissed a certain cause of action (the Sixth Cause of Action) with
respect to which this Court has twice denied two motions by defendants to dismiss, and to
| dismiss another cause of action (Fighth Cause of Action) with respect to which the Court

| previously denied defendants’ motion to dismiss, and subsequently also granted plaintiffs leave

toamend. Defendants’ motion violates Code of Civil Procedure sections 425.16(?) and 1008

(2)

because it is frivolous and in bad faith.
STATEMENT OF FACTS

Plaintiffs’ Afemorandum of Points and Authorities in Opposition to Defendants’ Second

Motion to Strike Claims in (First) Amended Complaint deseribed in detail numerous

4 | misrepresentations and omissions contained in Defendants’ Second Motion to Strike, as well as

voehtors!Domioad PEC

plaintiffs’ earnest attempts to have defendants withdraw their motion. Most of these facts are

| summarized in “outline” form as follows:

A. Defendants and/or Their Attorney Rejected Plaintiffs’ Multiple Attempts to Resolve
Any Legitimate Issues Defendants Had In Order to Avoid Having to Oppose the
Frivolous Motion.

— Plaintiffs” counsel called defendants’ counsel and told him that plaintiffs had dismissed
from the Second Amended Complaint all causes of action that the Court had dismissed.

— Defendants’ counsel responded with a letter insisting acknowledging that causes of
action numbered one through five and seven had been dismissed, but insisted that
plaintiffs dismiss their sixth cause of action, threatening Rule 11 and C.C.P. 128.7
sanctions, but made no mention of a 425.16 SLAPP motion. Nor did defendants include
a proposed 128.7 motion (in order to provide the requisite “safe harbor”).

— After defendants” counsel filed Defendants’ Second Motion to Strike, plaintiffs"

counsel wrote to defendants’ counsel and stated virtually every point and argument later

: Ee _.- | . 7
Foss ay PERN TIFFS’ MEMO, OF PTS. & AUTHS. IN SUPPORT OF MOTION FOR ATTORNEY'S FEESadvanced by plaintiffs in their opposition to the Defendants * Second Motion to Strike,
including that defendants’ motion was frivolous and would likely entitled to plaintiffs to
sanctions.

_ Defendants’ counsel never responded to plaintiffs” counsel's letter, despite numerous

6] affirmative attempts by plaintiffs’ counsel to obtain a response, in an attempt to avoid
7 having to file opposition.
8 | Defendants’ Motion Failed to Apprize the Court that Their Res Judicata Argument
9 Had Been Previously Rejected by the Court Several Times.
0 Defendants’ res judicata argument had been rejected as to all but the seventh cause of
ni action in the Court's written ruling on defendants’ initial anti-SLAPP motion.
D ~ Defendants’ res judicata argument had been rejected by the Court in its written ruling
I on defendants’ Motion for Judgement on the Pleadings.
Defendants’ Motion Failed to Apprize the Court that They Had Unsuccessfully
14 Moved Several Times to Dismiss the Sixth Cause of Action.
15 Defendants’ initial anti-SLAPP sought to dismiss the sixth cause of action.
16 | Defendants’ Motion for Judgment on the Pleadings sought to dismiss the sixth cause of
v7 action.
18 | — Despite the Court’s prior rulings rejecting defendants’ arguments to have the Sixth
19 | Cause of Action dismissed, defendants’ counsel submitted an order that dismissed the
20 Sixth Cause of Action, Inadvertently. the Court signed the order.
21 — After plaintiff's brought a Motion for a New Trial, the Court vacated its prior order and
22 ordered defendants’ counsel to prepare a proper order with regard to the Sixth Cause of
23 |

Action. Nevertheless, defendants’ counsel prepared an order misstating that the Sixth
Cause of Action had not been a subject of their anti-SLAPP motion. In response, the
Court struck that assertion and wrote by hand: “The Special Motion to Strike the oe
Cause of Action is denied.”

27 D. Defendants Argument that Plaintiffs Improperly Amended Their Complaint to Add

the Eighth Cause of Action Omitted The Fact that the Court Granted Plaintiffs
Leave to Do So.

2.
| Sno BE RENTIFFS MEMO. OF PTS. & ALITHS. IN SUPPORT OF MOTION FOR ATTORNEY'S FEES

FpshhiomeDowrieadstPECd_ The Court's written ruling on Defendants’ Motion for Judgment on the Pleadings
granted plaintiffs leave to amend to add a cause of action for concealment. Defendants
made no mention of this. Instead, defendants argued that plaintiffs had improperly
amended their complaint (misconstruing case law that holds that a plaintiff cannot amend

while a SLAPP motion is pending in order to plead around the SLAPP motion).

LEGAL ARGUMENT

y A. C.C.P. § 128.5 Applies to Anti-SLAPP Motions for the Purpose of Awarding
Attorneys’ Fees for Frivolous SLAPP Motions.

Under section 425.16, if a court finds a special motion to strike is “frivolous”, the court
must award attorney's fees and costs to the prevailing plaintiff. The Court found defendants”
< | anti-SLAPP motion “frivolous” and therefore must award attorney's fees and costs to the
plaintiffs herein.

Section 425.16 provides that sanctions be awarded “pursuant to Section 128.5.”
Therefore, the court “must use the procedures and apply the substantive standards of § 128.5 in
awarding attorney fees under the anti-SLAPP statute.“ Decker v. UD. Registry, Inc. (2003) 105
Cal. AppAth 1382 (cited with approval in Olmstead vy. Arthur J. Gallagher & Co., supra, 32
Cal-4th at 818); Doe v. Luster (2006) 145 Cal.App.4th 139, 143).

oy | B- The Multiple Misrepresentations and Omissions, As Well as Defendants’

20 Unreasonable Refusal to Withdraw their Motion, Was Patently Frivolous.

21 “Frivolous” has been defined to mean either “totally and completely without merit”; or
22 || “for the sole purpose of harassing an opposing party.” (C.C.P. § 128.5(b)(2); see Marriage of
23

Flaherty (1982) 31 Cal. 3d 637, 649-650.) Harassing” an opposing party includes vexatious
24 || tactics which, although literally authorized by statute or rule, go beyond that which is

25 || appropriate under any reasonable standard. (See West Coast Development v. Reed (1992) 2

26 || Cal. App.4th 693, 702.)

27 To evaluate whether a pleading or conduct is frivolous, an objective standard should be

28 |) used, i.e., whether the pleading or conduct was indisputably without merit, such that any

3.
Secthiome\DoncioadePECOH Sano Sy ERNTIFES MEMO. OF PTS. & AUTHS. IN SUPPORT OF MOTION FOR ATTORNEY'S FEESreasonable attorney would agree that the pleading or conduct is totally and completely without
| merit." (Finnie v. Town of Tiburon (1988) 199 Cal App.3d 1, 12; Chitsazzadeh v. Kramer &
Kaslow (2011) 199 Cal.App.4th 676, 683-684.) A lack of legal grounds or evidentiary support

for a motion have been held to be factors sufficient to support the finding that any reasonable

6 || attomey would agree that a motion is without merit, i.c., frivolous.

7 Defendants were afforded opportunities to withdraw their motion prior to filing and prior

8 || to the hearing. Plaintiffs counsel explained to defendants’ counsel why the motion was

9 | unnecessary, misleading and without merit. Plaintiffs" counsel provided a detailed evaluation of
10 || the motion by letter to defendants” counsel in which plaintiffs’ counsel identified the numerous

misrepresentations and omissions in the motion and defendants’ previous unsuccessful attempts
to cause the Sixth Cause of Action to be dismissed (by both motion and other means through
the submission of inaccurate orders to the Court); plaintiffs” counsel stated that if forced to

| oppose the motion, plaintiffs would seek sanctions under sections 425.16; plaintiffs” counsel
thereafter sought to contact defendants’ counsel for a response as to whether defendants would

|| withdraw their motion: defendants’ counsel never responded to plaintiffs, and plaintiffs were
forced to file opposition.

In this instance, there was both a plain lack of legal grounds and evidentiary support.
Plaintiffs even provided defendants’ counsel with a “road map”. The road map detailed
numerous material misrepresentations and omissions contained in his motion to the Court.
Plaintiffs identified to defendants’ counsel a history of the same conduct with respect to earlier
motions and representations to the Court. Plaintiffs explained that his arguments had been made
and even repeated in different earlier motions to the Court and thus had earlier been rejected,
| moreover, that defendants’ motion failed to admit this to the Court. Plaintiffs explained that it
was too late to bring a motion for reconsideration (although a motion would require defendants
to begin by acknowledging that they were seeking reconsideration of issues already decided
against them.) Defendants’ counsel had to know that it was virtually impossible for his twice or

thrice rejected arguments to prevail, for procedural, as well as substantive reasons, because

a
ae ty PEAENTIFFS’ MEMO. OF PTS, & AUTHS. IN SUPPORT OF MOTION FOR ATTORNEY'S FEES

agetHoreiDeneiad PES| plaintiffs’ counsel told him so. No reasonable attorney could have believed otherwise, that such

3] arguments, and even tactics, would finally prevail.
4
_ yc. Plaintiffs are Entitled to their Reasonable Attorney’s Fees, Incurred as a Result of
5] Having had to Oppose the Motion.
6 Sanctions may be awarded under C.C.P. § 128.5 for “reasonable expenses, including
7 || attorney's fees, incurred by another party as a result of” the sanctionable conduct. (C.C.P. §
8 }| 128.5(a). Indeed, these sanctions are intended both to compensate and to punish: “The statute
9} penmits the award of attorney fees, not simply as appropriate compensation to the prevailing
10 | party. but as a means of controlling burdensome and unnecessary legal tactics.” (Childs v.
11 || PaineWebher Inc. (1994) 29 CAAth 982, 995-996, (emphasis added). Plaintiffs should be
12 || awarded their reasonable attorney's fees as sanctions.
13 CONCLUSION
14 For the foregoing reasons, this motion should be granted.
15 } Dated: July 13, 2015 Respectfully submitted,
16 | LAW OFFICES OF PAUL L. KRANZ
17
18 “Pluk c d->-
See ea
19 Paul L. Kranz
20 |
21
22
23

5.
"sno PEAINTIFFS’ MEMO. OF PTS. & AUTHS. IN SUPPORT OF MOTION FOR ATTORNEY'S FEES

fpstHomeDoariuadssPECA