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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-17-2013 03:57 pm
Case Number: CGC-10-501168
Filing Date: Jul-17-2013 03:52 pm
Filed by: ANNA TORRES
Juke Box: 001 Image: 04130118
GENERIC CIVIL FILING (NO FEE)
JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF’S ASSOCIATION,
Aetal
001004130118
Instructions:
Please place this sheet on top of the document to be scanned.cA BRAND, ESQ. SBN 114995 San Francisco County Superior Court
WILLIAM A. BARNES, SBN 114635 JUL 17 2043
499 14" Street, Suite 300
Oakland, CA 94612 CLERK OF HE, COURT
Telephone: (510) 839-1200 BY: Deputy Clem
Facsimile: (510) 444-6698 .
Attorneys for Named Plaintiffs Johna Pecot, et al.,
and all others similarly situated
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CASE NO. CGC-10-501168
AMENDED MOTION FOR NEW
TRIAL
JOHNA PECOT, THOMAS ARATA,
RICH OWYANG, STEPHEN TILTON,
JOSEPH LEAKE, and OSCAR TAYLOR,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
Vv.
ASSOCIATION, a California Nonprofit
Corporation, SAN FRANCISCO DEPUTY
SHERIFF’S FOUNDATION, a California
Corporation, DAVID WONG, an
individual, MICHAEL ZEHNER, an
individual, BRIAN SAVAGE, an
individual, SHEDRICK McDANIELS, an
individual, and DOES 1-100,
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SAN FRANCISCO DEPUTY SHERIFF’S )
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Defendants. )
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AMENDED MOTION FOR NEW TRIALTABLE OF CONTENTS
PAGE
INTRODUCTION .... 2.0.60 cnn cece ene n eee n ence eee 1
STATEMENT OF FACTS AND PROCEDURAL HISTORY ...........0. 00000 e cece eee 3
I. The Hearing on Defendant’s SLAPP Motion and the Court’s Ruling .......... 3
Il. Plaintiff's Motion for Reconsideration ........ 2.00.00 eee eee eee eee eee 4
Ill. | Defendant’s Motion for Judgement on the Pleadings And Defendants’ Fraudulent
Judgement 2.0... cece eect nent een eee en eens 4
ARGUMENT .... 000 ccc ene e nen n tence nee eeeeeeeeee 5
L The Standard for Granting a New Trial»... 2.000.002 5
Il. The Final Judgement Drafted by Defendants’ Counsel and Signed by the Court on
June 17, 2013, Is Improper and Invalid . 2.2.02... eee eee eee 5
Ill. The Court’s Rulings Have Been Based, in Important Part, on a Failure to
Appreciate and Apply Relevant Supreme Court Authority as to Plaintiff's burden
on the second prong of anti-SLAPP Litigation ....................0.0000% 6
A. Plaintiffs Easily Met the Standard for the Second Prong.............. 7
1. Defendants Admitted that They Continued to Collect Dues to be
Paid to Another Organization for Affiliation Even After that
Affiliation No Longer Existed ...........0...0.0.00.0 00000 7
2. After Previously Representing that the Foundation, Its Assets and
Records, was Part of SFDSA, Defendants Admitted that They took
the Foundation, Without Any Authorization, Permission or
Knowledge of the SFDSA, and Have Since Refused to Provide the
SFDSA any Access to Foundation, Assets and Records, Past or
Present ... 0.0... e cece eee ene eee 8
IV. The California Supreme Court’s New Decision in Aryeh v. Canon Business
Solutions, Inc. Confirms the Correctness of Plantiffs’ Argument on the Statute of
Limitations Issue... 20... n ete een ene eee ene 10
V. Counsel’s Repeated Misrepresentations of Fact, of Court Records and of
Pleadings Constitute Irregularities in the Proceedings Mandating a New Trial . 12
A. Counsel Submitted a False Judgement for the Court’s signature ...... 12
B Counsel Repeatedly Misrepresented to the Court that He Had Served an
Order on Defendant’s Anti-SLAPP Motion and that the Court’s File
Contained a Record of Service of the Order ................00.0008 12VI.
Counsel Repeatedly Urged the Fact Not in Evidence of a Certain SFDSA
Board of Director’s Vote, When None Had Taken Place, There Was No
Evidence of Any Such Vote, and also Urged the Court to Consider False,
Doctored Evidence ..... 0.0... c scence eee eee eee ee 13
Counsel Urged the Court to Rely on Evidence, i.e., Testimony of “People
Who Participated in an Election to Disaffiliate from OE3, When There
Was No Such Testimony .......... 0.0 c cece eee eee eee eee eee 13
Counsel Urged and Insinuated Matters That Were Not Supported By and
Were Contradicted by the Record 2.0.0... 0.000 e cece eee e eee eee 14
C.C.P. 425.16 Is Not Applicable to Class Actions ...........0.00ec ee eaee 15
iiwe N
0 em IN DW
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TABLE OF AUTHORITIES
CASES
Aryeh vy, Canon Business Solutions, Inc., 55 Cal.4th 1185 2.0.2... c eee eee eee 3,10, 11
Hecimovich y. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450
Sen en enn ee een eden ede dE n ene tence tree eet nent eens 12
Soukup v. Law Offices of Herbert Half (2006) 39 Cal.4th 260, 269 ......... 0.6. e cece eens 6
Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-22 ...............0.00. 3,7
Taus v. Loftus (2007) 40 Cal.4th 683 20... cece nee e eee e ene 3,7
Yarrow v. State of California (1960) 53 Cal.2d 427, 437 2.00... c cece cece cece eee 5
iiiINTRODUCTION
On July 5, 2013, Plaintiffs filed and served a Notice of Intention To File Motion for New
Trial on the grounds referenced in C.C.P. §657 subsections (1), (3) (4), (6), and (7). Plaintiffs’
primary grounds fall under subsections (1), (6), and (7):
(1) Irregularity in the proceedings, in the conduct of the adverse party, and in the orders
and the judgment of the court.
(6) Insufficiency of the evidence to justify the Court’s findings and judgment as to either
the facts or the law.
(7) Errors of law by the Court, at various points in the proceedings, which errors were
pointed out to the Court in subsequent filings and proceedings, prior to the Court’s final
decision. :
Defendants’ most egregious conduct mandating a new trial falls under subsection (1):
Defendants’ counsel perpetrated a fraud on the Court. He submitted a final judgment (which was
never submitted to Plaintiffs’ counsel for approval as to form), and obtained the Court’s
signature thereon, which judgment dismissed defendant David Wong from the entire action.
This result was accomplished by misrepresenting that the Sixth Cause of Action “is a claim
against the San Francisco Deputy Sheriff's Association...and not against any individual
defendant.” (See Judgment of Dismissal, at page 2, lines 17-19, emphasis added.) In fact, the
Sixth Cause of Action is expressly brought against Wong. In addition, the Honorable James J.
McBride had specifically denied defendants’ prior attempt to dismiss that cause of action against
Wong when Judge McBride ruled on defendants’ Motion for Judgement on the Pleadings in
April 2012. Defendants’ counsel thus perpetrated a fraud on the Court when he submitted a
purported judgement that he knew was false.’ By including the above-quoted sentence in the
'On April 11, 2012, Defendants’ Motion for Judgment on the Pleadings, seeking to
dismiss defendant Wong from the Sixth Cause of Action, failed entirely. The tentative ruling
was against defendants; defendants’ counsel then argued the motion and lost. In fact, not only
did the Sixth Cause of Action survive but Judge McBride granted plaintiffs leave to amend to
add an additional cause of action for concealment. Judge McBride’s ruling ordered Mr. Murray
to prepare the order, but Mr. Murray has since refused to do so. (See Exhibit B to the Kranz
Declaration, filed herewith, the Court’s docket entry for April 11, 2012 as to the ruling of Judge
James J. McBride.) Prior to the instant motion, this Court had no occasion to review defense
counsel’s March 2012 pleadings and argument in Defendants’ Motion for Judgment on the
Pleadings. Nor was this Court familiar with Judge McBride’s ruling on that motion. This Court
1
AMENDED MOTION FOR NEW TRIALpurported judgment, in the form of a parenthetical buried in the middle of a dense full-page
recital, defense counsel manipulated the Court into signing a false judgment, thus successfully
perpetrating a fraud on the Court.
This kind of bad faith conduct by defense counsel has pervaded this litigation. The Court
must take counsel’s other derelictions seriously, consisting of knowing misrepresentations, and
submission of unreliable, grossly misleading, and, on occasion, knowingly false evidence and
argument, such that there is insufficient evidence to justify the Court’s findings and judgement.
These constitute additional irregularities in the proceedings that mandate a new trial. For
example, by defendants’ own admissions, they misappropriated SFDSA’s assets. They admitted
that the Foundation was part of the SFDSA, including its assets and financial records.” They
admitted that in 2010 they took possession of the Foundation’s assets, that they removed its
records from the SFDSA office, and that they have since refused the SFDSA access to the
Foundation’s records, past and present. They changed bank records to deny SFDSA officials
access to Foundation accounts. They present not one shred of evidence that their taking
possession of Foundation assets and records was authorized or approved by the SFDSA or that
the SFDSA even knew of their plan to do so. Instead, they brazenly represent that the Foundation
is none of the SFDSA’s business, an incomprehensible representation in light of the Foundation’s
history and operations, the history of SFDSA’s maintenance of the Foundation’s records and
funds, as well as the Foundation’s physical location in the SFDSA office.? There can be no
should note that despite Judge McBride’s explicit instructions, Defendants have persistently
refused to prepare and submit a formal order as to Judge McBride’s ruling, preferring to pretend
that it does not exist. But Defendants and their counsel cannot possibly actually believe that their
March 2012 motion papers and Judge McBride’s April 11, 2012 ruling never happened. Had this
Court been aware of those pleadings and argument, and that ruling, this Court, obviously, would
not have signed the judgment drafted by defense counsel.
Foundation financial records were part of SFDSA’s financial statements. Foundation
contributions were deposited into SFDSA bank accounts.
*It is also undisputed that charitable contributions were included on the SFDSA tax filings
and were not included on the Foundation tax returns. Nor is the amount insignificant: $400,000.
Defendants explanation that it is “wild speculation” that there is any relationship between a
2
AMENDED MOTION FOR NEW TRIALNoe
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question that defendants’ admissions and their failure to offer any comprehensible explanation
for their taking possession of the Foundation constitutes a prima facie case of misappropriation.
It is more than sufficient to meet the standard of proof required on the second prong of analysis
on an anti-SLAPP motion. Thus, there is insufficient evidence to support the judgment or the
rulings for purposes of the anti-SLAPP analyses.
A new trial is also mandated by errors of law. For example, the Court’s apparent
unwillingness to follow recent California Supreme Court cases as to the nature of Plaintiff's
burden on the second prong of anti-SLAPP litigation,‘ and as to the law of accrual of statutes of
limitations.> As to the statutes of limitations, each of the first five causes of action specifically
allege distinct conduct not only in 2008 (well within the statutory period) but also in 2010, the
year the Complaint was filed.
The Court should grant the instant motion for new trial on the grounds of the irregularity
of the proceedings resulting from misconduct of defendants’ counsel, consisting of submission of
a purported judgement to the Court that contained a gross and material misstatement of fact, thus
perpetrating a fraud on the court, as well as numerous mischaracterizations of evidence and
decrease from more than $400,000 annually to zero in contributions on the SFDSA tax returns
with a simultaneous increase from $1,000 to more than $400,000 annually on the Foundation tax
retums is an insult to the Court.
4 As explained infra, the California Supreme Court has held that a plaintiff's burden on
the second prong of an anti-SLAPP motion is light, equivalent to the burden of the non-moving
party on summary judgment to show some admissible evidence of a triable issue of fact. The
court does not evaluate the credibility or probative force of plaintiff's admissible evidence, but
accepts that evidence as true and considers defendant’s evidence only to determine if it prevails
as a matter of law. The showing required of plaintiff is “not high”; plaintiff need show only a
case of “minimal merit,” a “minimum level of legal sufficiency and triability.” The purpose of
the anti-Slapp statute is simply to give defendants, in a particular class of cases, an early shot at
standard summary judgment. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-
22; Taus v. Loftus (2007) 40 Cal.4th 683, Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450.
5 The California Supreme Court’s January 24, 2013 unanimous decision in Aryeh v.
Canon Business Solutions, Inc., 55 Cal.4th 1185, confirms Plaintiffs’ arguments on the statute of
limitations issue.
3
AMENDED MOTION FOR NEW TRIALseemingly deliberately misleading arguments, especially in the June 2013 final hearing, including
as to the allegations of the complaint. The foregoing renders the judgment irregular and invalid,
and justifies the Court in granting the instant motion for new trial under C.C.P. §657. Oakland
Raiders v. National Football League (2007) 41 Cal.4th 624, 633-35, Sanchez-Co9rea v. Bank of
America (1985) 38 Cal.3d 892, 906-07; Yarrow v. State of California (1960) 53 Cal.2d 427, 437-
39; Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 738-39. Defendants’
counsel numerous mischaracterizations of the evidence and seemingly deliberately misleading
arguments also lead to the conclusion that the Court should grant a new trial on the question of
whether Plaintiffs have carried their burden to show a prima facie likelihood of prevailing on the
second prong of anti-SLAPP litigation. Such is especially justified in light of a proper
appreciation and application of the California Supreme Court’s recent decisions on that issue and
on the continuing accrual of statutes of limitation doctrine.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
IL The Hearing on Defendants’ SLAPP Motion and the Court’s Ruling
The individual Defendants’ Anti-SLAPP motion was heard in Department 302 on July 7,
2011. The Court’s tentative ruling was to deny the motion on the grounds that the Complaint
was based on misappropriation. After hearing lengthy oral argument, the Court took the matter
under submission, stating that it wanted to closely examine each cause of action as to the relative
weight of protected versus unprotected activity referenced therein. The Court did not mention
any other issue as being taken under submission. The Court subsequently issued an electronic
ruling reversing its pre-hearing tentative ruling, granting Defendants’ motion as to Plaintiffs’ first
five causes of action, based on on statute of limitations, an issue barely mentioned in Defendants’
moving papers, entirely unmentioned in Defendants’ reply papers and in the Court’s tentative
ruling, and never raised at all at the hearing, by either party or by the Court. The Court instructed
individual Defendants’ counsel to prepare a proposed order based on the Court’s minute order.
Il. Plaintiffs’ Motion for Reconsideration
Despite never being served with a formal order or any notice of entry of order, Plaintiffs
filed a motion for reconsideration on March 7, 2012, based on the procedural anomalies
4
AMENDED MOTION FOR NEW TRIAL19
surrounding the hearing on Defendants’ SLAPP motion and the Court’s ruling thereon, including
that the Court had apparently failed to read the part of Plaintiffs’ opposition papers addressing
statute of limitations, resulting in denying Plaintiffs a fair opportunity to be heard on the statute
of limitations issue. Plaintiffs argued that, in effect, the court, after taking the SLAPP motion
under submission avowedly for the sole purpose of reviewing the presence-of-protected-activity
issue, ruled summarily on the statute of limitations, without analysis or citation to authority, and
without giving Plaintiffs any notice or allowing them any post-hearing opportunity to be heard,
effectively denying Plaintiffs due process. In fact, Defendants’ moving papers had included only
a minimal, pro forma argument on statute of limitations, and Plaintiffs’ opposition papers
responded with a section of argument plus a paragraph of Plaintiffs’ counsel’s accompanying
declaration. Defendants’ Reply papers said nothing on statute of limitations.
Ill. Defendants’ Motion for Judgment on the Pleadings And Defendants’
Fraudulent Judgment.
The individual defendants filed a motion for Judgment on the Pleadings in March 2012.
The “Preface” of the moving Points and Authorities reads as follows:
This motion follows the court having already granted a SLAPP motion dismissing
with prejudice all plaintiffs’ claims against all individual defendants except one claim
against one individual defendant. A review of the remaining claim demonstrates that all
individual defendants are entitled to judgment on the pleadings as the remaining claim is
not viable against an individual. CCP § 438. The remaining claim asserted is against
Defendant David Wong on the “Sixth Cause of Action” for failure of thecorporation to
permit review of the documents and records of the non-profit corporation.
.... Hence, there is no viable cause of action even against Defendant and former SFDSA
President David Wong.
Page 3, lines 5-14.
Judge James J. McBride’s April 11, 2012 ruling on the motion reads as follows:
... Defendants David Wong,.. Motion for Judgment on the Pleadings is granted with leave
to amend. Plaintiff has properly pled a cause of action under Cal. Corp. Code § § 6333
and 6334 and the Court grants leave to amend to allow Plaintiff the opportunity to
separately state a cause of action for concealment. The Court cannot look outside the face
of the pleadings in ruling on a motion for Judgment on the Pleadings. The Sixth Cause of
action is not res judicata of the U.S. District Court case. The prevailing party is required
to prepare a proposed order repeating verbatim the substantive portion of the tentative
ruling.
5
AMENDED MOTION FOR NEW TRIALom ND HW PF WH
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(Kranz Dec., Exhibit B)
Defense counsel has never submitted an order of any kind in response to Judge McBride’s
ruling. Notwithstanding that the Sixth Cause of Action had not been dismissed by any anti-
SLAPP ruling or Judge McBride’s ruling, defendants’ counsel submitted the purported judgment
misrepresenting that the Sixth Cause of Action “is a claim against the San Francisco Deputy
Sheriff’s Association...and not against any individual defendant,” and obtained the Court’s
signature thereon.
ARGUMENT
I. The Standard for Granting a New Trial
On motion for new trial, the Court is called upon to reexamine the entire record and is not
bound by its prior rulings. Yarrow v. State of California (1960) 53 Cal.2d 427, 437.
Il. The Final Judgment Drafted by Defendants’ Counsel and Signed
by the Court on June 17, 2013, Is Improper and Invalid.
It is simply indisputable that by including in the judgement that the Sixth Cause of Action
is “not against any individual defendant” in the form of a parenthetical buried in the middle of a
dense full-page recital, defense counsel has committed a deliberate fraud on the Court and
successfully manipulated the Court into signing a false judgment. After his failed Motion for
Judgment on the Pleadings before Judge McBride , and his refusal to prepare that order denying
his motion, to resort this kind of tactic is absolutely improper and unethical.
This kind of bad faith conduct by defense counsel provides a further context for defense
counsel’s other misconduct. The Court should not ignore the gravity of his other knowing
misrepresentations, his other instances of submitting unreliable, misleading, and, on occasion,
knowingly false evidence and argument, detailed below, including doctored evidence and
misrepresentations of the Court’s records. To permit such conduct to be successful would
constitute a profound and prejudicial denial of fair process to Plaintiffs, and a serious miscarriage
of justice, as well as a successful corruption of the integrity of the Court and its processes.
///
//1
6
AMENDED MOTION FOR NEW TRIALIll. The Court’s Rulings Have Been Based, in Important Part, on a Failure to
Appreciate and Apply Relevant Supreme Court Authority as to Plaintiff's
Burden on the Second Prong of Anti-SLAPP Litigation.
The California Supreme Court has repeatedly held that a plaintiff's burden on the second
prong of an anti-SLAPP motion is light, equivalent to the burden of the non-moving party on
summary judgment to show some admissible evidence of a triable issue of fact. Courts looking
at the evidence submitted by plaintiff,
“do not weigh credibility, nor do we evaluate the weight of the evidence. Instead we
accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence
only to determine if it defeats the plaintiff's submission as a matter of law.’ (Citation.)
That is the setting in which we determine whether plaintiff has met the required showing,
a showing that is ‘not high’ (Citation.) In the words of the Supreme Court, plaintiff needs
to show only a ‘minimum level of legal sufficiency and triability.’ (Citation) In the words
of other courts, plaintiff needs to show only a case of ‘minimal merit.’ (Citation).”
Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450.
Soukup v. Law Offices of Herbert Half (2006) 39 Cal.4th 260, 269, note 3 (“In reviewing an
order granting an anti-SLAPP motion to strike, we accept as true the evidence favorable to
plaintiff and evaluate defendant's evidence only to determine if it defeats plaintiff's as a matter
of law”;emphasis added.)
The showing required of plaintiff is “not high”; plaintiff need show only a case of
“minimal merit,” a “minimum level of legal sufficiency and triability.” Oasis West Realty, LLC
v. Goldman (2011) 51 Cal.4th 811, 820-22; Taus v. Lofius (2007) 40 Cal.4th 683; Hecimovich v.
Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450.
The purpose of the anti-Slapp statute is simply to give defendants, in a particular class of
cases, an early shot at standard summary judgment. In Oasis West, the Court held that if plaintiff
shows, as to a cause of action, prima facie merit on any theory of recovery, the entire cause of
action must be upheld against an anti-SLAPP motion to strike. Id at 822.
Our task is solely to determine whether any portion of [Plaintiff's] causes of action
have even minimal merit within the meaning of the anti-SLAPP statute. A claim that
(Defendant attorney] used confidential information acquired during his representation
of [Plaintiff] in active and overt support of a referendum to overtum the city council’s
approval of [the development project as to which Defendant had earlier represented
Plaintiff], meets that low standard.
(51 Cal.4th at 825; emphasis added.).
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AMENDED MOTION FOR NEW TRIAL0 wm ND
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A. Plaintiffs Easily Met the Standard for the Second Prong.
1. Defendants Admitted that They Continued to Collect Dues to be Paid to
Another Organization for Affiliation Even After that Affiliation No
Longer Existed.
It is undisputed that in May 2008, SFDSA’s affiliation with another organization was
terminated, but that the SFDSA continued to collect dues from its membership to pay that
organization for that affiliation. It is also undisputed that SFDSA’s bylaws require a vote of the
SFDSA membership. Plaintiffs allege Defendant Wong unilaterally terminated the affiliation.
Wong claims there was a vote of the Board of Directors (BOD) even though such a BOD vote
would not meet the requirements of the SFDSA bylaws). But there is no evidence of any BOD
vote either. The minutes Wong submitted evidencing such a vote do not say there was a vote.
Those minutes are also not genuine and were altered to include a reference to OE3 (but do not
reference a vote). (Kranz Dec., Exhibit E: Letter of Lara C. Smith to the Court that the minutes
defendants submitted to the Court are not genuine SFDSA minutes, including Exhibits A and B,
thereto (copies of the genuine minutes and of the altered minutes.) The genuine minutes say
nothing about OE3, much less a vote about OE3. And there is evidence that there was no vote
from a BOD member who was present at the subject BOD meeting. (Kranz Dec., Exhibit G
(2:21): Declaration of Rich Owyang, 2008 BOD member who was present at the subject BOD
meeting.) As for defendants’ bogus statute of limitations defense, the Complaint alleges that
this conduct occurred in 2008 (Kranz Dec., Exhibit A: Complaint §{ 44-51.) Defendants admit
to the 2008 date. Plaintiffs further allege that the misappropriation of the OE3 dues was
occurring as late as 2010. (Id.). Defendants also do not deny that the collection of dues for OE3
was occurring as late as 2010. Further, this separate course of conduct is specifically identified
as a separate and distinct illegal act in each of the first five causes of actions (Kranz Dec., Exhibit
H: Complaint {J 140, 146, 148, 149, 150, 155, 157, 160, 162 Thus, it is impossible for any of
the first five causes of action to be beyond a statute of limitations.
Given the Supreme Court’s holdings that plaintiffs’ burden of proof is “light”and that the
Court must accepts plaintiffs’ evidence as true, that the bylaws required a membership vote, that
defendants’ failed to provide evidence of a membership vote, that plaintiff provided evidence
8
AMENDED MOTION FOR NEW TRIALoem NY DH RF WN |
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that there was no vote (of the membership or even of the BOD), that defendants submitted
“doctored” evidence (which in itself did not state there was vote), that the genuine BOD minutes
evidence that there was no vote, therefore there can be no question that plaintiffs must prevail on
the second prong. Moreover, it remained undisputed that dues continued to be collected for the
purpose of payment to an organization with whom there was no longer an affiliation. And the
Complaint alleges that these moneys have never been accounted for. It defies logic to conclude
that plaintiffs have not met their “light” burden and that defendants’ evidence prevails as a matter
of law. .
2. After Previously Representing that the Foundation, Its Assets and
Records, was Part of the SFDSA, Defendants Admitted that They took
the Foundation, Without Any Authorization, Permission or Knowledge
of the SFDSA, and Have Since Refused to Provide the SFDSA any
Access to Foundation, Assets and Records, Past or Present.
Defendants’ own admissions are sufficient to establish their misappropriation of
SFDSA’s Foundation. In 2009, Defendants Wong and McDaniels admitted that the Foundation
was part of the SFDSA, including its assets and financial records,° when they made a report to
SFDSA’s financial auditors. (Kranz Dec., Exhibit D : Trevizo Dec, Exhibit A: Wong’s and
McDaniels’ letter 2009 letter to SFDSA’s auditors.) Wong and McDaniels then testified in this
case that in 2010 they took possession of the Foundation’s assets, removing the Foundations
records from the SFDSA office, and that they have since refused the SFDSA access to any
Foundation’s records, including changing bank records to deny SFDSA officials access.
Defendant Wong testified that “there is nothing irregular or suspicious about their refusal to
provide Foundation records to the Association,” that the Association has no right to such
documents, and that the Foundation “is an entirely separate organization . . . functions with
separate bank accounts and at a totally separate location.” (Wong Declaration, 11, 15, 28.)
They explained to the Court: Foundation records are “none of the their [SFDSA’s] business
((Wong Declaration, 19.) Of course this is in a patent contradiction with their representations
five months before they took the Foundation that the Foundation, its records and assets, were a
‘Foundation financial records were part of SFDSA’s financial statements. Foundation
contributions were deposited into SFDSA bank accounts.
9
AMENDED MOTION FOR NEW TRIALOo eo YN DW BF WY
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part of the SFDSA. In fact, before Wong left the SFDSA Presidency, charitable contributions
received by the Foundation were deposited into SFDSA’s Project Fund account, an account with
SFDSA’s tax identification number. (Exhibit D to the Kranz Declaration: Declaration of Robert
Trevizo, J 8 and Exhibit B to Trevizo Declaration, SFDSA “Summary of Bank accounts”, stating
that the Project Fund has the SFDSA tax identification number and that its source of funds are
“Business Community and Individuals”.) Further, Foundation fund raising employees were also
paid from that SFDSA account. Defendants’ testimony that the Foundation was always a
separate organization, that the SFDSA was not involved in its operation, that it maintained
separate bank accounts; and a separate location, is knowingly false.
Also, defendants did not offer a shred of evidence that their taking possession of
Foundation assets and records was authorized or approved by the SFDSA or that the SFDSA
even knew of their plan to do so. Instead, they brazenly represented that the Foundation is none
of the SFDSA’s business, an incomprehensible representation in light of their prior opposite
representations to the SFDSA’s auditors, and in light of the Foundation’s history and operations,
that history including SFDSA’s maintenance of the Foundation’s records and funds, as well as
the Foundation’s physical location in the SFDSA office.’ Defendants’ admissions, their failure
to offer any plausible explanation for taking possession of the Foundation, their denial to the
SFDSA of the Foundation records, previously maintained by the SFDSA, easily meets plaintiffs’
the light standard of proof on the second prong. Plaintiffs’ allegations were further supported by
years of tax returns for the SFDSA and the Foundation, showing the clear misappropriation of
more than $400,000 annually. Defendants’ explanation to this Court that there is no relationship
between the $400,000 annual decrease in contributions reflected on the SFDSA tax returns and a
simultaneous $400,000 increase in contributions on the Foundation tax returns is as brazen as
7It is also undisputed that charitable contributions were included on the SFDSA tax filings
and were not included on the Foundation tax returns. Nor is the amount insignificant: $400,000.
Defendants explanation that it is “wild speculation” that there is any relationship between a
decrease from more than $400,000 annually to zero in contributions on the SFDSA tax returns
with a simultaneous increase from $1,000 to more than $400,000 annually on the Foundation tax
returns is an insult to the Court.
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their statement that the Foundation’s records are now “none of their [SFDSA’s] business.
On this record, it is impossible to reasonably maintain that plaintiffs have not met their
light burden on the second prong or that defendants have proven as a matter of law that plaintiffs
cannot prevail.
IV. The California Supreme Court’s New Decision in Aryeh v. Canon Business
Solutions, Inc. Confirms the Correctness of Plaintiffs’ Argument on the
Statute of Limitations Issue
The California Supreme Court’s January 24, 2013 unanimous decision in Aryeh v. Canon
Business Solutions, Inc., 55 Cal.4th 1185, erases any doubt that might have existed as to the
likelihood of plaintiffs prevailing on the statute of limitations issue. Thus, plaintiffs have easily
met their burden on the second prong of defendants’ anti-SLAPP challenge.
The Aryeh opinion confirms plaintiffs’ arguments that their claims are well within any
statutory period.* Defendants have never offered any legal argument or authority effectively
contradicting this. And now the California Supreme Court has confirmed that Plaintiffs have
been correct all along.
The first sentence of the Court’s Aryeh opinion states: “The common law theory of
continuous accrual posits that a cause of action challenging a recurring wrong may accrue not
once but each time a new wrong is committed.” 55 Cal.4th 1185, . After reviewing a variety
of exceptions to the “last element” rule of accrual, the Court concludes its introductory section:
Finally, under the theory of continuous accrual, a series of wrongs or injuries may be
viewed as each triggering its own limitations period, such that a suit for relief may be
partially time-barred as to older events but timely as to those within the applicable
limitations period. {Citation.]
The Aryeh case concerns defendant photo-copier manufacturer’s lease of two machines to
plaintiff in 2001 and 2002. Beginning in February 2002, defendant began imposing excess
monthly charges on plaintiff. Plaintiff did not bring suit until 2008. Defendant demurred on
statute of limitations grounds. The trial court sustained the demurrer, apparently on the ground
8See Plaintiffs’ March 7, 2012 Pts. and Auths., at 9:12 through 13:7, in particular 12:1-
13:7 (the Supreme Court’s then-pending review in Aryeh is noted in fn. 4); Plaintiffs’ March 22,
2012 Reply, at 1:15-22, factually supported at 5:4-8:16; Plaintiffs’ July 20, 2012 Reply at pp. 8-
9 (further supported in Plaintiffs’ July 27, 2012 Supplemental Reply at 2: 9 through 3: 5).
AMENDED MOTION FOR NEW TRIALthat common law exceptions to the standard rule of accrual do not apply to unfair business
practices (UCL) claims. A divided Court of Appeal affirmed. The Supreme Court disagreed.
The Court agreed that under the standard “last element” rule of accrual, plaintiff's claim
had accrued in February 2002, and, “[a]ccordingly, in the absence of an exception, the four-year
statute of limitations would have run no later than 2006, barring Aryeh’s 2008 suit.” The Court
then provides a thorough analysis of the two common law exceptions to the standard accrual rule
that might apply, the “‘continuing-wrong doctrine and the theory of continuous accrual,” finding
that the first does not apply under the Aryeh facts but the second does. The Court explains:
The theory [of continuous accrual] is a response to the inequities that would arise if the
expiration of the limitations period following a first breach of duty or instance of
misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct;
parties engaged in long-standing misfeasance would thereby obtain immunity in
perpetuity from suit even for recent and ongoing misfeasance. In addition, where
misfeasance is ongoing, a defendant’s claim to repose, the principal justification
underlying the limitations defense, is vitiated.
Generally speaking, continuous accrual applies whenever there is a continuing or
recurring obligation: “When an obligation or liability arises on a recurring basis, a cause
of action accrues each time a wrongful act occurs, triggering a new limitations period.”
(Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th
1288, 1295.) Because each new breach of such an obligation provides all the elements of
a claim — wrongdoing, harm, and causation [Citation]— each may be treated as an
independently actionable wrong with its own time limit for recovery. [emphasis added.)]
Given the Supreme Court’s Aryeh reasoning and holding, Plaintiffs herein have clearly
met their burden of production on the second prong of Defendants’ anti-SLAPP motion,
establishing a substantial probability that Plaintiffs will prevail on the statute of limitations issue.
Vv. Counsel’s Repeated Misrepresentations of Fact, of Court Records and of
Pleadings Constitute Irregularities in the Proceedings Mandating a New
Trial.
A. Counsel Submitted a False Judgement for the Court’s signature.
Defendants’ counsel perpetrated a fraud on the Court by submitting a judgment
containing a significant, material discrepancy with respect to two prior Court rulings, concealing
the discrepancy in the form of a parenthetical buried in the middle of a dense full-page recital,
thus successfully manipulating, and successfully perpetrating a fraud on, the Court.
//1
12
AMENDED MOTION FOR NEW TRIALB. Counsel repeatedly misrepresented to the Court that he had served an
order on defendants’ anti-SLAPP motion and that the Court’s file
contained a record of service of the order.
Defendants’ counsel repeatedly misrepresented to the Court at the hearing that he had
served the order granting defendants’ anti-SLAPP motion and had filed proof of this with the
Court. On one occasion, the Court asked:
THE COURT: Did you serve the final order on Mr. Kranz?
MR. MURRAY: I sure think I did, and it would be reflected in the Court’s file. I thought
I cited to that in our papers. As I said from that date on, he had ten days, and he took
three months, four months, after that.
Off the top, I came with the expectation that this was getting continued. Be that as it
may, I know that I cited in my papers about the notice that we sent out, and the Court will
find it in its file because when we send out a notice, we also file it, so it would be unusual
to say the least that we didn’t file it. The jurisdictional basis is .. right to.
The truth is that the order has never been served; there is also no notice of entry of order
or any other record in the Court’s file evidencing that defendants’ counsel served the order.
Counsel also knew this because he had objected in writing to discovery sought by plaintiffs on
the stated grounds that the order had not been served. (Kranz Dec., Exhibit .). Moreover,
defense counsel’s written objections were exhibits to the motion for reconsideration.
Cc. Counsel Repeatedly Urged the Fact Not in Evidence of a Certain
SFDSA Board of Directors’ Vote, When None Had Taken Place, There
Was No Evidence of Any Such Vote, and Also Urged the Court to
Consider False, Doctored Evidence.
As explained above, defendants’ counsel repeatedly misrepresented evidence to the Court
that certain SFDSA Board of Director (BOD) meeting minutes evidenced a SFDSA directors’
vote to disaffiliate with OE3 and that while those minutes do not evidence any actual BOD vote,
the purported minutes were not genuine BOD minutes but had been altered to include reference
to OE3 because genuine minutes do not reference OE3 at all. (Kranz Dec., Exhibit E : April 24,
2103 Letter of Lara Cullinane-Smith to the Court.) SFDSA counsel agreed that the minutes
defendants’ counsel had submitted were fake and told the Court:
MS. CULLINANE-SMITH: But the only copy of the minute we have, and this is why I
submitted them to you, frankly, I was really shocked to find this altered document. It is
not -- it is very much -- I called the legal expert on my behalf about whether I need to
alert the Court to that, about my ethical obligation to that. I don't know why there is an
altered copy. It appears that this is false, but I believe that the Court needs to know that
13 }
AMENDED MOTION FOR NEW TRIALyuo
oO NIN DH BF WwW
= Ss
there are two copies, and the only copy that appears to be the official version for my client
does not have the OE3 paragraph in it.
Faced with the accusation that false evidence had been presented, incredibly defendants’ counsel
responded by continuing to misrepresent evidence::
MR. MURRAY: “... there’s one thing that’s abundantly clear that the board voted to
remove themselves from OE3, whether it was under one document or another, whether
one is fraudulent, one is good. Either one of them show that the board made a decision to
remove themselves from OE3.” ... So why are we going into well ,we have a fraudulent
document? Both of them say the same thing, that we are no longer going to be part of
OE3.” Transcript, 20:3-7.)
Neither document showed a BOD decision to disaffiliate with OE3. The genuine minutes did not
even mention OE3.
D. Counsel Urged the Court to Rely on Evidence, i.e., Testimony, of
“People Who Participated in an Election to Disaffiliate From OE3,
When There Was No Such Testimony.
Defendants’ counsel also falsely represented to the Court that there was “testimony”
about an election with regard to the affiliation with OE3.
MR. MURRAY: Even if that wasn’t true, we didn’t have the document, the bottom line is
we have the testimony of the people who participated in the election and said were
removing ourselves from OE3.” (Kranz Dec., Exhibit I: Transcript, 20:12-13.)
However, there was no testimony from anyone who participated in any such election to
disaffiliate with OE3.°
E. Counsel Urged and Insinuated Matters That Were Not Supported By
and Were Contradicted By the Record.
In response to the Court’s inquiry, Defendants’ counsel falsely stated that the Complaint
contained no allegations of conduct any later than 2004.
COURT: What about his [Plaintiffs’ counsel’s] argument that there’s been continuing
conduct?
MR. MURRAY: You have to prove that as to those acts that you allege in the complaint,
2002, 2003, 2004, that you can make your case, independent of trying to amend the
complaint orally as they have done now. Oh, now, they’re confined to the four corners of
that complaint, say specifically in 2002, .[.](Kranz Dec., Exhibit I: Transcript, 11:14-19.)
In fact, the Complaint contains allegations of wrongful conduct occurring in 2008 (e.g.,
°There was a declaration from a 2008 BOD member that there had never been a vote.
(Kranz Dec., Exhibit F.)
14
AMENDED MOTION FOR NEW TRIAL0 ON DHA RF BN &
Nw oN NY KR KY NK NK KH KY S| SF KF Bee ee Be Be
ond A A BB NH KF SOD OM IY DH BB WN HY
disaffiliation with OE3) and the continued misappropriation of dues continuing “as of the date of
the filing of the Complaint [in 2010]”,which allegations are separately and specifically alleged in
support of the first, second, third, fourth and fifth causes of action. (Kranz Dec., Exhibit H;
Complaint, {44 through 51, 140, 146, 148, 149, 150, 155, 157, 160 and 162.'°) It is thus
impossible for the any of these first five causes of action to be time barred."!
VI. C.C.P. 425.16 Is Not Applicable to Class Actions.
Code of Civil Procedure section 425.16 does not apply to the Complaint pursuant to the
public interest litigation exemption to the anti-SLAPP law in C.C.P. § 425.17(b), because this is
a class action brought solely in the public interest, and (1) plaintiffs do not seek any relief greater
than or different from the relief sought for the class, (2) the action, if successful, would enforce
an important right affecting the public interest, and would confer a significant benefit on a large
class of persons, and (3) private enforcement is necessary and places a disproportionate
financial burden on the plaintiffs in relation to their stake in the matter. (Kranz Dec., Exhibit H:
Complaint, {J 131-132, 147, 151, 156, 159, 163, 167 and168 [relief sought not any greater than
that sought for the class]. Accordingly, this action meets the conditions of C.C.P. § 425.17.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion should be granted.
Dated: July 15, 2013 Respectfully submitted,
LAW OFFICES OF PAUL L.
te
Yi
Paul L. Kranz
‘©The Complaint alleges that the amount of such dues were at least $304,000 as of the
date of the filing of the Complaint, and that the funds were misappropriated for the personal
benefit of Defendant Wong and the Foundation. (Kranz Dec., Exhibit H: Complaint, { 51)
Defendants never denied that they collected monthly dues for that affiliation after the
affiliation had ended, until at least 2010, the year the Complaint was filed.
"There was uncontradicted evidence of conduct continuing after 2010. SFDSA treasurer
Robert Trevizo testified that after Defendant Dave Wong left the SFDSA Presidency in January
2010, all SFDSA funds could not be accounted for and bank records for accounts into which
SEDSA were deposited during Wong’s Presidency were “missing” and could not be located.
15
AMENDED MOTION FOR NEW TRIALw
oOo nN a
PROOF OF SERVICE
SUPERIOR COURT )
STATE OF CALIFORNIA } CASE NO. CCC-10-501168
COUNTY OF SAN FRANCISCO }
I, the undersigned, certify and attest as follows:
lam over the age of eighteen years and am not a party to the cause within. My business
address is 499 14" Street, Suite 300, Oakland, California 94612.
On July 15, 2013, I caused the within:
AMENDED MOTION FOR A NEW TRIAL
to be served on counsel for each of the other parties in this action by personal service to the
following addresses:
Lara Cullinane-Smith
Law Office of Lara C. Smith
1086 Arlington Blvd.
El Cerrito, California 94530
Lawrence D. Murray, Esq.
Murray & Associates
1781 Union Street
San Francisco, CA 94123-4426
Executed July 15, 2013 at Oakland, California.
I declare under penalty of perjury that the foregoing is true and correct.
Here Depry
Gloria Reynolds
Preview
ICU SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-17-2013 03:57 pm Case Number: CGC-10-501168 Filing Date: Jul-17-2013 03:52 pm Filed by: ANNA TORRES Juke Box: 001 Image: 04130118 GENERIC CIVIL FILING (NO FEE) JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF’S ASSOCIATION, Aetal 001004130118 Instructions: Please place this sheet on top of the document to be scanned.cA BRAND, ESQ. SBN 114995 San Francisco County Superior Court WILLIAM A. BARNES, SBN 114635 JUL 17 2043 499 14" Street, Suite 300 Oakland, CA 94612 CLERK OF HE, COURT Telephone: (510) 839-1200 BY: Deputy Clem Facsimile: (510) 444-6698 . Attorneys for Named Plaintiffs Johna Pecot, et al., and all others similarly situated SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO CASE NO. CGC-10-501168 AMENDED MOTION FOR NEW TRIAL JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, Vv. ASSOCIATION, a California Nonprofit Corporation, SAN FRANCISCO DEPUTY SHERIFF’S FOUNDATION, a California Corporation, DAVID WONG, an individual, MICHAEL ZEHNER, an individual, BRIAN SAVAGE, an individual, SHEDRICK McDANIELS, an individual, and DOES 1-100, ) ) ) ) ) ) ) ) } SAN FRANCISCO DEPUTY SHERIFF’S ) ) ) ) ) ) ) ) } Defendants. ) ) AMENDED MOTION FOR NEW TRIALTABLE OF CONTENTS PAGE INTRODUCTION .... 2.0.60 cnn cece ene n eee n ence eee 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY ...........0. 00000 e cece eee 3 I. The Hearing on Defendant’s SLAPP Motion and the Court’s Ruling .......... 3 Il. Plaintiff's Motion for Reconsideration ........ 2.00.00 eee eee eee eee eee 4 Ill. | Defendant’s Motion for Judgement on the Pleadings And Defendants’ Fraudulent Judgement 2.0... cece eect nent een eee en eens 4 ARGUMENT .... 000 ccc ene e nen n tence nee eeeeeeeeee 5 L The Standard for Granting a New Trial»... 2.000.002 5 Il. The Final Judgement Drafted by Defendants’ Counsel and Signed by the Court on June 17, 2013, Is Improper and Invalid . 2.2.02... eee eee eee 5 Ill. The Court’s Rulings Have Been Based, in Important Part, on a Failure to Appreciate and Apply Relevant Supreme Court Authority as to Plaintiff's burden on the second prong of anti-SLAPP Litigation ....................0.0000% 6 A. Plaintiffs Easily Met the Standard for the Second Prong.............. 7 1. Defendants Admitted that They Continued to Collect Dues to be Paid to Another Organization for Affiliation Even After that Affiliation No Longer Existed ...........0...0.0.00.0 00000 7 2. After Previously Representing that the Foundation, Its Assets and Records, was Part of SFDSA, Defendants Admitted that They took the Foundation, Without Any Authorization, Permission or Knowledge of the SFDSA, and Have Since Refused to Provide the SFDSA any Access to Foundation, Assets and Records, Past or Present ... 0.0... e cece eee ene eee 8 IV. The California Supreme Court’s New Decision in Aryeh v. Canon Business Solutions, Inc. Confirms the Correctness of Plantiffs’ Argument on the Statute of Limitations Issue... 20... n ete een ene eee ene 10 V. Counsel’s Repeated Misrepresentations of Fact, of Court Records and of Pleadings Constitute Irregularities in the Proceedings Mandating a New Trial . 12 A. Counsel Submitted a False Judgement for the Court’s signature ...... 12 B Counsel Repeatedly Misrepresented to the Court that He Had Served an Order on Defendant’s Anti-SLAPP Motion and that the Court’s File Contained a Record of Service of the Order ................00.0008 12VI. Counsel Repeatedly Urged the Fact Not in Evidence of a Certain SFDSA Board of Director’s Vote, When None Had Taken Place, There Was No Evidence of Any Such Vote, and also Urged the Court to Consider False, Doctored Evidence ..... 0.0... c scence eee eee eee ee 13 Counsel Urged the Court to Rely on Evidence, i.e., Testimony of “People Who Participated in an Election to Disaffiliate from OE3, When There Was No Such Testimony .......... 0.0 c cece eee eee eee eee eee 13 Counsel Urged and Insinuated Matters That Were Not Supported By and Were Contradicted by the Record 2.0.0... 0.000 e cece eee e eee eee 14 C.C.P. 425.16 Is Not Applicable to Class Actions ...........0.00ec ee eaee 15 iiwe N 0 em IN DW 10 Hl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Aryeh vy, Canon Business Solutions, Inc., 55 Cal.4th 1185 2.0.2... c eee eee eee 3,10, 11 Hecimovich y. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450 Sen en enn ee een eden ede dE n ene tence tree eet nent eens 12 Soukup v. Law Offices of Herbert Half (2006) 39 Cal.4th 260, 269 ......... 0.6. e cece eens 6 Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-22 ...............0.00. 3,7 Taus v. Loftus (2007) 40 Cal.4th 683 20... cece nee e eee e ene 3,7 Yarrow v. State of California (1960) 53 Cal.2d 427, 437 2.00... c cece cece cece eee 5 iiiINTRODUCTION On July 5, 2013, Plaintiffs filed and served a Notice of Intention To File Motion for New Trial on the grounds referenced in C.C.P. §657 subsections (1), (3) (4), (6), and (7). Plaintiffs’ primary grounds fall under subsections (1), (6), and (7): (1) Irregularity in the proceedings, in the conduct of the adverse party, and in the orders and the judgment of the court. (6) Insufficiency of the evidence to justify the Court’s findings and judgment as to either the facts or the law. (7) Errors of law by the Court, at various points in the proceedings, which errors were pointed out to the Court in subsequent filings and proceedings, prior to the Court’s final decision. : Defendants’ most egregious conduct mandating a new trial falls under subsection (1): Defendants’ counsel perpetrated a fraud on the Court. He submitted a final judgment (which was never submitted to Plaintiffs’ counsel for approval as to form), and obtained the Court’s signature thereon, which judgment dismissed defendant David Wong from the entire action. This result was accomplished by misrepresenting that the Sixth Cause of Action “is a claim against the San Francisco Deputy Sheriff's Association...and not against any individual defendant.” (See Judgment of Dismissal, at page 2, lines 17-19, emphasis added.) In fact, the Sixth Cause of Action is expressly brought against Wong. In addition, the Honorable James J. McBride had specifically denied defendants’ prior attempt to dismiss that cause of action against Wong when Judge McBride ruled on defendants’ Motion for Judgement on the Pleadings in April 2012. Defendants’ counsel thus perpetrated a fraud on the Court when he submitted a purported judgement that he knew was false.’ By including the above-quoted sentence in the 'On April 11, 2012, Defendants’ Motion for Judgment on the Pleadings, seeking to dismiss defendant Wong from the Sixth Cause of Action, failed entirely. The tentative ruling was against defendants; defendants’ counsel then argued the motion and lost. In fact, not only did the Sixth Cause of Action survive but Judge McBride granted plaintiffs leave to amend to add an additional cause of action for concealment. Judge McBride’s ruling ordered Mr. Murray to prepare the order, but Mr. Murray has since refused to do so. (See Exhibit B to the Kranz Declaration, filed herewith, the Court’s docket entry for April 11, 2012 as to the ruling of Judge James J. McBride.) Prior to the instant motion, this Court had no occasion to review defense counsel’s March 2012 pleadings and argument in Defendants’ Motion for Judgment on the Pleadings. Nor was this Court familiar with Judge McBride’s ruling on that motion. This Court 1 AMENDED MOTION FOR NEW TRIALpurported judgment, in the form of a parenthetical buried in the middle of a dense full-page recital, defense counsel manipulated the Court into signing a false judgment, thus successfully perpetrating a fraud on the Court. This kind of bad faith conduct by defense counsel has pervaded this litigation. The Court must take counsel’s other derelictions seriously, consisting of knowing misrepresentations, and submission of unreliable, grossly misleading, and, on occasion, knowingly false evidence and argument, such that there is insufficient evidence to justify the Court’s findings and judgement. These constitute additional irregularities in the proceedings that mandate a new trial. For example, by defendants’ own admissions, they misappropriated SFDSA’s assets. They admitted that the Foundation was part of the SFDSA, including its assets and financial records.” They admitted that in 2010 they took possession of the Foundation’s assets, that they removed its records from the SFDSA office, and that they have since refused the SFDSA access to the Foundation’s records, past and present. They changed bank records to deny SFDSA officials access to Foundation accounts. They present not one shred of evidence that their taking possession of Foundation assets and records was authorized or approved by the SFDSA or that the SFDSA even knew of their plan to do so. Instead, they brazenly represent that the Foundation is none of the SFDSA’s business, an incomprehensible representation in light of the Foundation’s history and operations, the history of SFDSA’s maintenance of the Foundation’s records and funds, as well as the Foundation’s physical location in the SFDSA office.? There can be no should note that despite Judge McBride’s explicit instructions, Defendants have persistently refused to prepare and submit a formal order as to Judge McBride’s ruling, preferring to pretend that it does not exist. But Defendants and their counsel cannot possibly actually believe that their March 2012 motion papers and Judge McBride’s April 11, 2012 ruling never happened. Had this Court been aware of those pleadings and argument, and that ruling, this Court, obviously, would not have signed the judgment drafted by defense counsel. Foundation financial records were part of SFDSA’s financial statements. Foundation contributions were deposited into SFDSA bank accounts. *It is also undisputed that charitable contributions were included on the SFDSA tax filings and were not included on the Foundation tax returns. Nor is the amount insignificant: $400,000. Defendants explanation that it is “wild speculation” that there is any relationship between a 2 AMENDED MOTION FOR NEW TRIALNoe Co ON DH BF WwW question that defendants’ admissions and their failure to offer any comprehensible explanation for their taking possession of the Foundation constitutes a prima facie case of misappropriation. It is more than sufficient to meet the standard of proof required on the second prong of analysis on an anti-SLAPP motion. Thus, there is insufficient evidence to support the judgment or the rulings for purposes of the anti-SLAPP analyses. A new trial is also mandated by errors of law. For example, the Court’s apparent unwillingness to follow recent California Supreme Court cases as to the nature of Plaintiff's burden on the second prong of anti-SLAPP litigation,‘ and as to the law of accrual of statutes of limitations.> As to the statutes of limitations, each of the first five causes of action specifically allege distinct conduct not only in 2008 (well within the statutory period) but also in 2010, the year the Complaint was filed. The Court should grant the instant motion for new trial on the grounds of the irregularity of the proceedings resulting from misconduct of defendants’ counsel, consisting of submission of a purported judgement to the Court that contained a gross and material misstatement of fact, thus perpetrating a fraud on the court, as well as numerous mischaracterizations of evidence and decrease from more than $400,000 annually to zero in contributions on the SFDSA tax returns with a simultaneous increase from $1,000 to more than $400,000 annually on the Foundation tax retums is an insult to the Court. 4 As explained infra, the California Supreme Court has held that a plaintiff's burden on the second prong of an anti-SLAPP motion is light, equivalent to the burden of the non-moving party on summary judgment to show some admissible evidence of a triable issue of fact. The court does not evaluate the credibility or probative force of plaintiff's admissible evidence, but accepts that evidence as true and considers defendant’s evidence only to determine if it prevails as a matter of law. The showing required of plaintiff is “not high”; plaintiff need show only a case of “minimal merit,” a “minimum level of legal sufficiency and triability.” The purpose of the anti-Slapp statute is simply to give defendants, in a particular class of cases, an early shot at standard summary judgment. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820- 22; Taus v. Loftus (2007) 40 Cal.4th 683, Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450. 5 The California Supreme Court’s January 24, 2013 unanimous decision in Aryeh v. Canon Business Solutions, Inc., 55 Cal.4th 1185, confirms Plaintiffs’ arguments on the statute of limitations issue. 3 AMENDED MOTION FOR NEW TRIALseemingly deliberately misleading arguments, especially in the June 2013 final hearing, including as to the allegations of the complaint. The foregoing renders the judgment irregular and invalid, and justifies the Court in granting the instant motion for new trial under C.C.P. §657. Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633-35, Sanchez-Co9rea v. Bank of America (1985) 38 Cal.3d 892, 906-07; Yarrow v. State of California (1960) 53 Cal.2d 427, 437- 39; Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 738-39. Defendants’ counsel numerous mischaracterizations of the evidence and seemingly deliberately misleading arguments also lead to the conclusion that the Court should grant a new trial on the question of whether Plaintiffs have carried their burden to show a prima facie likelihood of prevailing on the second prong of anti-SLAPP litigation. Such is especially justified in light of a proper appreciation and application of the California Supreme Court’s recent decisions on that issue and on the continuing accrual of statutes of limitation doctrine. STATEMENT OF FACTS AND PROCEDURAL HISTORY IL The Hearing on Defendants’ SLAPP Motion and the Court’s Ruling The individual Defendants’ Anti-SLAPP motion was heard in Department 302 on July 7, 2011. The Court’s tentative ruling was to deny the motion on the grounds that the Complaint was based on misappropriation. After hearing lengthy oral argument, the Court took the matter under submission, stating that it wanted to closely examine each cause of action as to the relative weight of protected versus unprotected activity referenced therein. The Court did not mention any other issue as being taken under submission. The Court subsequently issued an electronic ruling reversing its pre-hearing tentative ruling, granting Defendants’ motion as to Plaintiffs’ first five causes of action, based on on statute of limitations, an issue barely mentioned in Defendants’ moving papers, entirely unmentioned in Defendants’ reply papers and in the Court’s tentative ruling, and never raised at all at the hearing, by either party or by the Court. The Court instructed individual Defendants’ counsel to prepare a proposed order based on the Court’s minute order. Il. Plaintiffs’ Motion for Reconsideration Despite never being served with a formal order or any notice of entry of order, Plaintiffs filed a motion for reconsideration on March 7, 2012, based on the procedural anomalies 4 AMENDED MOTION FOR NEW TRIAL19 surrounding the hearing on Defendants’ SLAPP motion and the Court’s ruling thereon, including that the Court had apparently failed to read the part of Plaintiffs’ opposition papers addressing statute of limitations, resulting in denying Plaintiffs a fair opportunity to be heard on the statute of limitations issue. Plaintiffs argued that, in effect, the court, after taking the SLAPP motion under submission avowedly for the sole purpose of reviewing the presence-of-protected-activity issue, ruled summarily on the statute of limitations, without analysis or citation to authority, and without giving Plaintiffs any notice or allowing them any post-hearing opportunity to be heard, effectively denying Plaintiffs due process. In fact, Defendants’ moving papers had included only a minimal, pro forma argument on statute of limitations, and Plaintiffs’ opposition papers responded with a section of argument plus a paragraph of Plaintiffs’ counsel’s accompanying declaration. Defendants’ Reply papers said nothing on statute of limitations. Ill. Defendants’ Motion for Judgment on the Pleadings And Defendants’ Fraudulent Judgment. The individual defendants filed a motion for Judgment on the Pleadings in March 2012. The “Preface” of the moving Points and Authorities reads as follows: This motion follows the court having already granted a SLAPP motion dismissing with prejudice all plaintiffs’ claims against all individual defendants except one claim against one individual defendant. A review of the remaining claim demonstrates that all individual defendants are entitled to judgment on the pleadings as the remaining claim is not viable against an individual. CCP § 438. The remaining claim asserted is against Defendant David Wong on the “Sixth Cause of Action” for failure of thecorporation to permit review of the documents and records of the non-profit corporation. .... Hence, there is no viable cause of action even against Defendant and former SFDSA President David Wong. Page 3, lines 5-14. Judge James J. McBride’s April 11, 2012 ruling on the motion reads as follows: ... Defendants David Wong,.. Motion for Judgment on the Pleadings is granted with leave to amend. Plaintiff has properly pled a cause of action under Cal. Corp. Code § § 6333 and 6334 and the Court grants leave to amend to allow Plaintiff the opportunity to separately state a cause of action for concealment. The Court cannot look outside the face of the pleadings in ruling on a motion for Judgment on the Pleadings. The Sixth Cause of action is not res judicata of the U.S. District Court case. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling. 5 AMENDED MOTION FOR NEW TRIALom ND HW PF WH RYN YN KY NY N KN KY ]— &— Be Be Bee Be Se we oI A A BF BH = SO ww NY DAH BF BW NH KF DO (Kranz Dec., Exhibit B) Defense counsel has never submitted an order of any kind in response to Judge McBride’s ruling. Notwithstanding that the Sixth Cause of Action had not been dismissed by any anti- SLAPP ruling or Judge McBride’s ruling, defendants’ counsel submitted the purported judgment misrepresenting that the Sixth Cause of Action “is a claim against the San Francisco Deputy Sheriff’s Association...and not against any individual defendant,” and obtained the Court’s signature thereon. ARGUMENT I. The Standard for Granting a New Trial On motion for new trial, the Court is called upon to reexamine the entire record and is not bound by its prior rulings. Yarrow v. State of California (1960) 53 Cal.2d 427, 437. Il. The Final Judgment Drafted by Defendants’ Counsel and Signed by the Court on June 17, 2013, Is Improper and Invalid. It is simply indisputable that by including in the judgement that the Sixth Cause of Action is “not against any individual defendant” in the form of a parenthetical buried in the middle of a dense full-page recital, defense counsel has committed a deliberate fraud on the Court and successfully manipulated the Court into signing a false judgment. After his failed Motion for Judgment on the Pleadings before Judge McBride , and his refusal to prepare that order denying his motion, to resort this kind of tactic is absolutely improper and unethical. This kind of bad faith conduct by defense counsel provides a further context for defense counsel’s other misconduct. The Court should not ignore the gravity of his other knowing misrepresentations, his other instances of submitting unreliable, misleading, and, on occasion, knowingly false evidence and argument, detailed below, including doctored evidence and misrepresentations of the Court’s records. To permit such conduct to be successful would constitute a profound and prejudicial denial of fair process to Plaintiffs, and a serious miscarriage of justice, as well as a successful corruption of the integrity of the Court and its processes. /// //1 6 AMENDED MOTION FOR NEW TRIALIll. The Court’s Rulings Have Been Based, in Important Part, on a Failure to Appreciate and Apply Relevant Supreme Court Authority as to Plaintiff's Burden on the Second Prong of Anti-SLAPP Litigation. The California Supreme Court has repeatedly held that a plaintiff's burden on the second prong of an anti-SLAPP motion is light, equivalent to the burden of the non-moving party on summary judgment to show some admissible evidence of a triable issue of fact. Courts looking at the evidence submitted by plaintiff, “do not weigh credibility, nor do we evaluate the weight of the evidence. Instead we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff's submission as a matter of law.’ (Citation.) That is the setting in which we determine whether plaintiff has met the required showing, a showing that is ‘not high’ (Citation.) In the words of the Supreme Court, plaintiff needs to show only a ‘minimum level of legal sufficiency and triability.’ (Citation) In the words of other courts, plaintiff needs to show only a case of ‘minimal merit.’ (Citation).” Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450. Soukup v. Law Offices of Herbert Half (2006) 39 Cal.4th 260, 269, note 3 (“In reviewing an order granting an anti-SLAPP motion to strike, we accept as true the evidence favorable to plaintiff and evaluate defendant's evidence only to determine if it defeats plaintiff's as a matter of law”;emphasis added.) The showing required of plaintiff is “not high”; plaintiff need show only a case of “minimal merit,” a “minimum level of legal sufficiency and triability.” Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-22; Taus v. Lofius (2007) 40 Cal.4th 683; Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450. The purpose of the anti-Slapp statute is simply to give defendants, in a particular class of cases, an early shot at standard summary judgment. In Oasis West, the Court held that if plaintiff shows, as to a cause of action, prima facie merit on any theory of recovery, the entire cause of action must be upheld against an anti-SLAPP motion to strike. Id at 822. Our task is solely to determine whether any portion of [Plaintiff's] causes of action have even minimal merit within the meaning of the anti-SLAPP statute. A claim that (Defendant attorney] used confidential information acquired during his representation of [Plaintiff] in active and overt support of a referendum to overtum the city council’s approval of [the development project as to which Defendant had earlier represented Plaintiff], meets that low standard. (51 Cal.4th at 825; emphasis added.). 7 AMENDED MOTION FOR NEW TRIAL0 wm ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Plaintiffs Easily Met the Standard for the Second Prong. 1. Defendants Admitted that They Continued to Collect Dues to be Paid to Another Organization for Affiliation Even After that Affiliation No Longer Existed. It is undisputed that in May 2008, SFDSA’s affiliation with another organization was terminated, but that the SFDSA continued to collect dues from its membership to pay that organization for that affiliation. It is also undisputed that SFDSA’s bylaws require a vote of the SFDSA membership. Plaintiffs allege Defendant Wong unilaterally terminated the affiliation. Wong claims there was a vote of the Board of Directors (BOD) even though such a BOD vote would not meet the requirements of the SFDSA bylaws). But there is no evidence of any BOD vote either. The minutes Wong submitted evidencing such a vote do not say there was a vote. Those minutes are also not genuine and were altered to include a reference to OE3 (but do not reference a vote). (Kranz Dec., Exhibit E: Letter of Lara C. Smith to the Court that the minutes defendants submitted to the Court are not genuine SFDSA minutes, including Exhibits A and B, thereto (copies of the genuine minutes and of the altered minutes.) The genuine minutes say nothing about OE3, much less a vote about OE3. And there is evidence that there was no vote from a BOD member who was present at the subject BOD meeting. (Kranz Dec., Exhibit G (2:21): Declaration of Rich Owyang, 2008 BOD member who was present at the subject BOD meeting.) As for defendants’ bogus statute of limitations defense, the Complaint alleges that this conduct occurred in 2008 (Kranz Dec., Exhibit A: Complaint §{ 44-51.) Defendants admit to the 2008 date. Plaintiffs further allege that the misappropriation of the OE3 dues was occurring as late as 2010. (Id.). Defendants also do not deny that the collection of dues for OE3 was occurring as late as 2010. Further, this separate course of conduct is specifically identified as a separate and distinct illegal act in each of the first five causes of actions (Kranz Dec., Exhibit H: Complaint {J 140, 146, 148, 149, 150, 155, 157, 160, 162 Thus, it is impossible for any of the first five causes of action to be beyond a statute of limitations. Given the Supreme Court’s holdings that plaintiffs’ burden of proof is “light”and that the Court must accepts plaintiffs’ evidence as true, that the bylaws required a membership vote, that defendants’ failed to provide evidence of a membership vote, that plaintiff provided evidence 8 AMENDED MOTION FOR NEW TRIALoem NY DH RF WN | Bw NR NN NY NY NY KN KN — Be Be we we ew Be Be oN DA A RF WBN K& SOD ONIN DH BW NH KH that there was no vote (of the membership or even of the BOD), that defendants submitted “doctored” evidence (which in itself did not state there was vote), that the genuine BOD minutes evidence that there was no vote, therefore there can be no question that plaintiffs must prevail on the second prong. Moreover, it remained undisputed that dues continued to be collected for the purpose of payment to an organization with whom there was no longer an affiliation. And the Complaint alleges that these moneys have never been accounted for. It defies logic to conclude that plaintiffs have not met their “light” burden and that defendants’ evidence prevails as a matter of law. . 2. After Previously Representing that the Foundation, Its Assets and Records, was Part of the SFDSA, Defendants Admitted that They took the Foundation, Without Any Authorization, Permission or Knowledge of the SFDSA, and Have Since Refused to Provide the SFDSA any Access to Foundation, Assets and Records, Past or Present. Defendants’ own admissions are sufficient to establish their misappropriation of SFDSA’s Foundation. In 2009, Defendants Wong and McDaniels admitted that the Foundation was part of the SFDSA, including its assets and financial records,° when they made a report to SFDSA’s financial auditors. (Kranz Dec., Exhibit D : Trevizo Dec, Exhibit A: Wong’s and McDaniels’ letter 2009 letter to SFDSA’s auditors.) Wong and McDaniels then testified in this case that in 2010 they took possession of the Foundation’s assets, removing the Foundations records from the SFDSA office, and that they have since refused the SFDSA access to any Foundation’s records, including changing bank records to deny SFDSA officials access. Defendant Wong testified that “there is nothing irregular or suspicious about their refusal to provide Foundation records to the Association,” that the Association has no right to such documents, and that the Foundation “is an entirely separate organization . . . functions with separate bank accounts and at a totally separate location.” (Wong Declaration, 11, 15, 28.) They explained to the Court: Foundation records are “none of the their [SFDSA’s] business ((Wong Declaration, 19.) Of course this is in a patent contradiction with their representations five months before they took the Foundation that the Foundation, its records and assets, were a ‘Foundation financial records were part of SFDSA’s financial statements. Foundation contributions were deposited into SFDSA bank accounts. 9 AMENDED MOTION FOR NEW TRIALOo eo YN DW BF WY NN YW NY KY NY KN KY NY — eK Be ee Be Be Be ont aA A BF YwNH fF Se wea NHN DH B WH KH OO part of the SFDSA. In fact, before Wong left the SFDSA Presidency, charitable contributions received by the Foundation were deposited into SFDSA’s Project Fund account, an account with SFDSA’s tax identification number. (Exhibit D to the Kranz Declaration: Declaration of Robert Trevizo, J 8 and Exhibit B to Trevizo Declaration, SFDSA “Summary of Bank accounts”, stating that the Project Fund has the SFDSA tax identification number and that its source of funds are “Business Community and Individuals”.) Further, Foundation fund raising employees were also paid from that SFDSA account. Defendants’ testimony that the Foundation was always a separate organization, that the SFDSA was not involved in its operation, that it maintained separate bank accounts; and a separate location, is knowingly false. Also, defendants did not offer a shred of evidence that their taking possession of Foundation assets and records was authorized or approved by the SFDSA or that the SFDSA even knew of their plan to do so. Instead, they brazenly represented that the Foundation is none of the SFDSA’s business, an incomprehensible representation in light of their prior opposite representations to the SFDSA’s auditors, and in light of the Foundation’s history and operations, that history including SFDSA’s maintenance of the Foundation’s records and funds, as well as the Foundation’s physical location in the SFDSA office.’ Defendants’ admissions, their failure to offer any plausible explanation for taking possession of the Foundation, their denial to the SFDSA of the Foundation records, previously maintained by the SFDSA, easily meets plaintiffs’ the light standard of proof on the second prong. Plaintiffs’ allegations were further supported by years of tax returns for the SFDSA and the Foundation, showing the clear misappropriation of more than $400,000 annually. Defendants’ explanation to this Court that there is no relationship between the $400,000 annual decrease in contributions reflected on the SFDSA tax returns and a simultaneous $400,000 increase in contributions on the Foundation tax returns is as brazen as 7It is also undisputed that charitable contributions were included on the SFDSA tax filings and were not included on the Foundation tax returns. Nor is the amount insignificant: $400,000. Defendants explanation that it is “wild speculation” that there is any relationship between a decrease from more than $400,000 annually to zero in contributions on the SFDSA tax returns with a simultaneous increase from $1,000 to more than $400,000 annually on the Foundation tax returns is an insult to the Court. 10 AMENDED MOTION FOR NEW TRIAL0 Oo IND 10 i 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 their statement that the Foundation’s records are now “none of their [SFDSA’s] business. On this record, it is impossible to reasonably maintain that plaintiffs have not met their light burden on the second prong or that defendants have proven as a matter of law that plaintiffs cannot prevail. IV. The California Supreme Court’s New Decision in Aryeh v. Canon Business Solutions, Inc. Confirms the Correctness of Plaintiffs’ Argument on the Statute of Limitations Issue The California Supreme Court’s January 24, 2013 unanimous decision in Aryeh v. Canon Business Solutions, Inc., 55 Cal.4th 1185, erases any doubt that might have existed as to the likelihood of plaintiffs prevailing on the statute of limitations issue. Thus, plaintiffs have easily met their burden on the second prong of defendants’ anti-SLAPP challenge. The Aryeh opinion confirms plaintiffs’ arguments that their claims are well within any statutory period.* Defendants have never offered any legal argument or authority effectively contradicting this. And now the California Supreme Court has confirmed that Plaintiffs have been correct all along. The first sentence of the Court’s Aryeh opinion states: “The common law theory of continuous accrual posits that a cause of action challenging a recurring wrong may accrue not once but each time a new wrong is committed.” 55 Cal.4th 1185, . After reviewing a variety of exceptions to the “last element” rule of accrual, the Court concludes its introductory section: Finally, under the theory of continuous accrual, a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period. {Citation.] The Aryeh case concerns defendant photo-copier manufacturer’s lease of two machines to plaintiff in 2001 and 2002. Beginning in February 2002, defendant began imposing excess monthly charges on plaintiff. Plaintiff did not bring suit until 2008. Defendant demurred on statute of limitations grounds. The trial court sustained the demurrer, apparently on the ground 8See Plaintiffs’ March 7, 2012 Pts. and Auths., at 9:12 through 13:7, in particular 12:1- 13:7 (the Supreme Court’s then-pending review in Aryeh is noted in fn. 4); Plaintiffs’ March 22, 2012 Reply, at 1:15-22, factually supported at 5:4-8:16; Plaintiffs’ July 20, 2012 Reply at pp. 8- 9 (further supported in Plaintiffs’ July 27, 2012 Supplemental Reply at 2: 9 through 3: 5). AMENDED MOTION FOR NEW TRIALthat common law exceptions to the standard rule of accrual do not apply to unfair business practices (UCL) claims. A divided Court of Appeal affirmed. The Supreme Court disagreed. The Court agreed that under the standard “last element” rule of accrual, plaintiff's claim had accrued in February 2002, and, “[a]ccordingly, in the absence of an exception, the four-year statute of limitations would have run no later than 2006, barring Aryeh’s 2008 suit.” The Court then provides a thorough analysis of the two common law exceptions to the standard accrual rule that might apply, the “‘continuing-wrong doctrine and the theory of continuous accrual,” finding that the first does not apply under the Aryeh facts but the second does. The Court explains: The theory [of continuous accrual] is a response to the inequities that would arise if the expiration of the limitations period following a first breach of duty or instance of misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct; parties engaged in long-standing misfeasance would thereby obtain immunity in perpetuity from suit even for recent and ongoing misfeasance. In addition, where misfeasance is ongoing, a defendant’s claim to repose, the principal justification underlying the limitations defense, is vitiated. Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: “When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.” (Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288, 1295.) Because each new breach of such an obligation provides all the elements of a claim — wrongdoing, harm, and causation [Citation]— each may be treated as an independently actionable wrong with its own time limit for recovery. [emphasis added.)] Given the Supreme Court’s Aryeh reasoning and holding, Plaintiffs herein have clearly met their burden of production on the second prong of Defendants’ anti-SLAPP motion, establishing a substantial probability that Plaintiffs will prevail on the statute of limitations issue. Vv. Counsel’s Repeated Misrepresentations of Fact, of Court Records and of Pleadings Constitute Irregularities in the Proceedings Mandating a New Trial. A. Counsel Submitted a False Judgement for the Court’s signature. Defendants’ counsel perpetrated a fraud on the Court by submitting a judgment containing a significant, material discrepancy with respect to two prior Court rulings, concealing the discrepancy in the form of a parenthetical buried in the middle of a dense full-page recital, thus successfully manipulating, and successfully perpetrating a fraud on, the Court. //1 12 AMENDED MOTION FOR NEW TRIALB. Counsel repeatedly misrepresented to the Court that he had served an order on defendants’ anti-SLAPP motion and that the Court’s file contained a record of service of the order. Defendants’ counsel repeatedly misrepresented to the Court at the hearing that he had served the order granting defendants’ anti-SLAPP motion and had filed proof of this with the Court. On one occasion, the Court asked: THE COURT: Did you serve the final order on Mr. Kranz? MR. MURRAY: I sure think I did, and it would be reflected in the Court’s file. I thought I cited to that in our papers. As I said from that date on, he had ten days, and he took three months, four months, after that. Off the top, I came with the expectation that this was getting continued. Be that as it may, I know that I cited in my papers about the notice that we sent out, and the Court will find it in its file because when we send out a notice, we also file it, so it would be unusual to say the least that we didn’t file it. The jurisdictional basis is .. right to. The truth is that the order has never been served; there is also no notice of entry of order or any other record in the Court’s file evidencing that defendants’ counsel served the order. Counsel also knew this because he had objected in writing to discovery sought by plaintiffs on the stated grounds that the order had not been served. (Kranz Dec., Exhibit .). Moreover, defense counsel’s written objections were exhibits to the motion for reconsideration. Cc. Counsel Repeatedly Urged the Fact Not in Evidence of a Certain SFDSA Board of Directors’ Vote, When None Had Taken Place, There Was No Evidence of Any Such Vote, and Also Urged the Court to Consider False, Doctored Evidence. As explained above, defendants’ counsel repeatedly misrepresented evidence to the Court that certain SFDSA Board of Director (BOD) meeting minutes evidenced a SFDSA directors’ vote to disaffiliate with OE3 and that while those minutes do not evidence any actual BOD vote, the purported minutes were not genuine BOD minutes but had been altered to include reference to OE3 because genuine minutes do not reference OE3 at all. (Kranz Dec., Exhibit E : April 24, 2103 Letter of Lara Cullinane-Smith to the Court.) SFDSA counsel agreed that the minutes defendants’ counsel had submitted were fake and told the Court: MS. CULLINANE-SMITH: But the only copy of the minute we have, and this is why I submitted them to you, frankly, I was really shocked to find this altered document. It is not -- it is very much -- I called the legal expert on my behalf about whether I need to alert the Court to that, about my ethical obligation to that. I don't know why there is an altered copy. It appears that this is false, but I believe that the Court needs to know that 13 } AMENDED MOTION FOR NEW TRIALyuo oO NIN DH BF WwW = Ss there are two copies, and the only copy that appears to be the official version for my client does not have the OE3 paragraph in it. Faced with the accusation that false evidence had been presented, incredibly defendants’ counsel responded by continuing to misrepresent evidence:: MR. MURRAY: “... there’s one thing that’s abundantly clear that the board voted to remove themselves from OE3, whether it was under one document or another, whether one is fraudulent, one is good. Either one of them show that the board made a decision to remove themselves from OE3.” ... So why are we going into well ,we have a fraudulent document? Both of them say the same thing, that we are no longer going to be part of OE3.” Transcript, 20:3-7.) Neither document showed a BOD decision to disaffiliate with OE3. The genuine minutes did not even mention OE3. D. Counsel Urged the Court to Rely on Evidence, i.e., Testimony, of “People Who Participated in an Election to Disaffiliate From OE3, When There Was No Such Testimony. Defendants’ counsel also falsely represented to the Court that there was “testimony” about an election with regard to the affiliation with OE3. MR. MURRAY: Even if that wasn’t true, we didn’t have the document, the bottom line is we have the testimony of the people who participated in the election and said were removing ourselves from OE3.” (Kranz Dec., Exhibit I: Transcript, 20:12-13.) However, there was no testimony from anyone who participated in any such election to disaffiliate with OE3.° E. Counsel Urged and Insinuated Matters That Were Not Supported By and Were Contradicted By the Record. In response to the Court’s inquiry, Defendants’ counsel falsely stated that the Complaint contained no allegations of conduct any later than 2004. COURT: What about his [Plaintiffs’ counsel’s] argument that there’s been continuing conduct? MR. MURRAY: You have to prove that as to those acts that you allege in the complaint, 2002, 2003, 2004, that you can make your case, independent of trying to amend the complaint orally as they have done now. Oh, now, they’re confined to the four corners of that complaint, say specifically in 2002, .[.](Kranz Dec., Exhibit I: Transcript, 11:14-19.) In fact, the Complaint contains allegations of wrongful conduct occurring in 2008 (e.g., °There was a declaration from a 2008 BOD member that there had never been a vote. (Kranz Dec., Exhibit F.) 14 AMENDED MOTION FOR NEW TRIAL0 ON DHA RF BN & Nw oN NY KR KY NK NK KH KY S| SF KF Bee ee Be Be ond A A BB NH KF SOD OM IY DH BB WN HY disaffiliation with OE3) and the continued misappropriation of dues continuing “as of the date of the filing of the Complaint [in 2010]”,which allegations are separately and specifically alleged in support of the first, second, third, fourth and fifth causes of action. (Kranz Dec., Exhibit H; Complaint, {44 through 51, 140, 146, 148, 149, 150, 155, 157, 160 and 162.'°) It is thus impossible for the any of these first five causes of action to be time barred."! VI. C.C.P. 425.16 Is Not Applicable to Class Actions. Code of Civil Procedure section 425.16 does not apply to the Complaint pursuant to the public interest litigation exemption to the anti-SLAPP law in C.C.P. § 425.17(b), because this is a class action brought solely in the public interest, and (1) plaintiffs do not seek any relief greater than or different from the relief sought for the class, (2) the action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit on a large class of persons, and (3) private enforcement is necessary and places a disproportionate financial burden on the plaintiffs in relation to their stake in the matter. (Kranz Dec., Exhibit H: Complaint, {J 131-132, 147, 151, 156, 159, 163, 167 and168 [relief sought not any greater than that sought for the class]. Accordingly, this action meets the conditions of C.C.P. § 425.17. CONCLUSION For the foregoing reasons, Plaintiffs’ motion should be granted. Dated: July 15, 2013 Respectfully submitted, LAW OFFICES OF PAUL L. te Yi Paul L. Kranz ‘©The Complaint alleges that the amount of such dues were at least $304,000 as of the date of the filing of the Complaint, and that the funds were misappropriated for the personal benefit of Defendant Wong and the Foundation. (Kranz Dec., Exhibit H: Complaint, { 51) Defendants never denied that they collected monthly dues for that affiliation after the affiliation had ended, until at least 2010, the year the Complaint was filed. "There was uncontradicted evidence of conduct continuing after 2010. SFDSA treasurer Robert Trevizo testified that after Defendant Dave Wong left the SFDSA Presidency in January 2010, all SFDSA funds could not be accounted for and bank records for accounts into which SEDSA were deposited during Wong’s Presidency were “missing” and could not be located. 15 AMENDED MOTION FOR NEW TRIALw oOo nN a PROOF OF SERVICE SUPERIOR COURT ) STATE OF CALIFORNIA } CASE NO. CCC-10-501168 COUNTY OF SAN FRANCISCO } I, the undersigned, certify and attest as follows: lam over the age of eighteen years and am not a party to the cause within. My business address is 499 14" Street, Suite 300, Oakland, California 94612. On July 15, 2013, I caused the within: AMENDED MOTION FOR A NEW TRIAL to be served on counsel for each of the other parties in this action by personal service to the following addresses: Lara Cullinane-Smith Law Office of Lara C. Smith 1086 Arlington Blvd. El Cerrito, California 94530 Lawrence D. Murray, Esq. Murray & Associates 1781 Union Street San Francisco, CA 94123-4426 Executed July 15, 2013 at Oakland, California. I declare under penalty of perjury that the foregoing is true and correct. Here Depry Gloria Reynolds