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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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Case Number: CGC-10-501168
Filing Date: Mar-16-2012 1:18
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OPPOSITION
JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF'S ASSOCIATION, A et
001003538168
Instructions:
Please place this sheet on top of the document to be scanned.
15LAWRENCE D. MURRAY (SBN 77536)
MURRAY & ASSOCIATES
1781 Union Street
San Francisco, CA 94123
Tel: (415) 673-0555
Fax: (415) 928-4084
Attorney for Defendants: DAVID WONG,
MICHAEL ZEHNER, BRIAN SAVAGE
and SHEDRICK McDANIELS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOHNA PECOT, THOMAS ARATA, RICH
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually
and on behalf of all other similarly situated,
Plaintiffs,
v.
SAN FRANCISCO DEPUTY SHERIFF’S
ASSOCIATION, a California Nonprofit
Corporation, SAN FRANCISCO DEPUTY
SHERIFF’S FOUNDATION, a California
Nonprofit Corporation, DAVID WONG, an
individual, MICHAEL ZEHNER, an
individual, BRIAN SAVAGE, an individual,
SHEDRICK McDANIELS, an individual, and
DOES 1-100,
Defendants.
Case No. CGC — 10 -501168
DEFENDANT WONG, ZEHNER, SAVAGE AND
McDANIELS’ OPPOSITION TO MOTION FOR
RECONSIDERATION OF ORDER ON SPECIAL
MOTION TO STRIKE CAUSES OF ACTION IN
THE COMPLAINT
(Declarations in Support by Wong, Zehner, Savage,
McDaniels, and Ongaro]
(CCP § 1008)
Date: March 29, 2012
Time: 9:30 a.m.
Dept: 302
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168
Page i
Notice of Motion and SLAPP Motion, Points and AuthoritiesTABLE OF CONTENTS
Table of Authorities
L INTRODUCTION
A. Numerous Elections Occurring in 2002 through 2005 Are The
iv
Basis For Plaintiff's Case 2
B. There Is No Evidence To Support A New Opposition To A SLAPP 3
IL. ARGUMENT AND ANALYSIS 4
A. SLAPP Applies To Contract And Fraud Claims As Stated In
This Complaint 4
B. The SLAPP Burden Shifting Analysis Requires Plaintiff To
Demonstrate Success 4
Cc. The SLAPP Burden Shifting Analysis Applies Whenever Any
Significant Part of The Complaint Involves A Protected Activity 5
Dz. Plaintiffs Can Not Avoid A SLAPP Motion By New Matters Not
In The Complaint 5
E. Defendant’s Advocacy Affecting All Union Members Is A
Protected Activity 6
F. Plaintiffs Were Put On Notice Of The Claim That Their Complaint
Was Barred By The Statute of Limitation, And, As Set Out In The
Order, Chose To Ignore It 6
G. Plaintiffs Have Failed To Secure Standing To Sue By Securing
Permission Of The Court Under CCP 425.15 to Sue Zehner, Savage
and McDaniels, As Officers Of A Non Profit Serving Without
Compensation 7
H. Plaintiffs Have Not And Can Not Demonstrate Diligence In Having
Sought The Evidence As Of The Hearing On the SLAPP Motion 7
I. Plaintiffs Have Not And Can Not Demonstrate Diligence In Having
Sought The Evidence As Of The Hearing On the SLAPP Motion 8
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page ii
Notice of Motion and SLAPP Motion, Points and AuthoritiesJ. The “New Evidence” In The Form Of A Declaration from Robert
Trevizo Adds Nothing As A Basis To Deny Grant A Motion For
Reconsideration 8
K. Wild Unsupported Speculation Without Any Foundation That The
Money Received By The Foundation Was Somehow Fraudulently
Taken Can Not Serve As A Basis To Set Aside The SLAPP Order 9
Ill. © CONCLUSION 9
PROOF OF SERVICE 10
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page iii
Notice of Motion and SLAPP Motion, Points and AuthoritiesTABLE OF AUTHORITIES
STATE CASES
Berman v. Health Net 80 Cal.App.4th 1359 (2000) 7
Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1113 (1999) 5
Church of Scientology v. Wollersheim 42 Cal.App.4th 628, 650, (1996) 6
Dixon v. Superior Court, Scientific Resource Surveys, Inc. 30 Cal. App. 4" 733, 741 (1994) 4
Forrest v. State Of California Dept. Of Corporations 150 Cal.App.4th 183 (2007) 8
Garcia v. Hejmadi 58 Cal.App.4th 674 (1997) 8
Gilberd v. AC Transit 32 Cal.App.4th 1494 (1995) 8
Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539 5
Hansen y. California Dept. of Corrections and Rehabilitation 171 Cal.App.4th 1537(2008) 5
Inre Marriage of Herr 174 Cal.App.4th 1463 (2009) 8
Kerns v. CSE Ins. Group 106 Cal.App.4th 368 (2003) 7
Lafayette Morehouse, Inc. v. Chronicle Publishing Company 37 Cal. App. 4" 855, 865 (1995) 4
Macias v. Hartwell 55 Cal.App.4th 669 (1997) 6
Neville v. Chudacoff 160 Cal.App.4th 1255, (2008) 4
New York Times Co. v. Superior Court 135 Cal.App.4th 206 (2005) 8
Nguyen-Lam vy. Cao 171 Cal.App.4th 858 (2009) 5
Philipson & Simon v. Gulsvig 154 Cal.App.4th 347 (2007) 5
PrediWave Corp. v. Simpson Thacher & Bartlett LLP 179 Cal.App.4th 1204 (2009) 5
Roberts v. Los Angeles County Bar Assn. 105 Cal.App.4th 604 (2003) 4
Salma v. Capon 161 Cal.App.4th 1275 (2008) 6
STATE RULES AND STATUTES
Civil Procedure Section 1008 8
Code of Civil Procedure Section 425.15 2,7
Code of Civil Procedure Section 425.16 4
Code of Civil Procedure Section 338, subd. (d)
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page iv
Notice of Motion and SLAPP Motion, Points and AuthoritiesMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO
MOTION FOR RECONSIDERATION OF ORDER ON SPECIAL MOTION TO STRIKE
L INTRODUCTION
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, which is the subject of a motion for judgment on the pleading to be heard shortly.
Plaintiffs comes to court now, eight (8) months after the July 7, 2011, hearing and order granting
the SLAPP motion, indicating they have, with due diligence, recently located evidence not previously
available to them that demonstrates the Court erred in granting the SLAPP order.
Their motion lacks in just about every respect. There is no diligence; in fact Plaintiffs admit
they chose to ignore the Statute of Limitation argument prior to and at the hearing, as was the finding of
the court at the time of the SLAPP order. (Order § 4)
And, the “new evidence” not previously available, the tax returns, were in fact publically
available to plaintiffs on the internet, but they chose not to seek it in June of 2011. (Kranz Dec pp 5,
12)
And, even if it was “new evidence,” it fails to demonstrate any wrong doing, is pure conjecture,
and fails to address and support any of the claims in the Complaint on file. Plaintiffs attach unverified,
unauthenticated tax returns then argue that all of the money referenced in the tax returns constitutes
theft, was done recently, hence they have events within the Statute of Limitation. That misses the point.
It does not demonstrate wrongdoing and, as with the first hearing, fails to demonstrate Plaintiffs’
burden that they can and will succeed on their complaint for the events dating back to 2002.
And, the declaration of the Union Treasurer does not aid in any way. The single check
deposited by the bank in the wrong account was immediately returned to the Association. (Wong Dec,
931-35) More importantly, in relation to the failure by the Association to provide documents, as
alleged in the Sixth Cause of Action, (a) all of the documents sought by Plaintiffs were provided prior
to this suit (Wong Dec {§ 20-23a; Ongaro Dec ¥ 5-11) (b) the documents sought recently by the
Association are not demands contained within the Complaint, and certainly not demands listed in the
Complaint by these plaintiffs, the Association has no claims against these individual officers in any
pleading, (c) the Association has demanded documents from the Foundation, which they have no right
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 1
Notice of Motion and SLAPP Motion, Points and Authoritiesto since the Foundation is an independent entity, and (d) the flaw of the Complaint is that it could not
sustain events occurring in 2002 though 2005, which is at the core of this Complaint.
Finally, these Plaintiffs have no standing to bring this suit. Code of Civil Procedure Section
425.15
A. Numerous Elections Occurring in 2002 through 2005 Are The Basis For Plaintiff's
Case
The factual basis in the first, second, third, fourth, and fifth causes of action are based on
statements, positions, and advocacy in elections by Wong as well as the union votes of the board of
directors which plaintiffs sues on as a “contract.” From that flow claims for Breach of Contract,
Interference with Contract, Fraud, Conspiracy,
2002 Members Election for Union Dues Increase: The first election, and largest cause of the
complaints, was to increase dues in 2002. In 2002, President Wong sent out a written statement to each
member “inducing them to pay” additional money they needed to keep the union going. (Complaint {ff 2,
19-23) He and the union are sued claiming the statements constituted a contract and were part of a
“scheme to defraud” to pay his salary. From that election, most of the claims for spending that money
flow. (See first through fifth causes of action for breach of contract, interference, fraud and conspiracy.)
The SLAPP motion was filed because the Complaint is basis on decisions made in various
elections and the payment of salary, spending, and obligations thereon these decisions. Specifically:
2002 Board Decision to Lease or Purchase of A Building: In 2002 the board decided to lease
a building so that the organization would have an office. Their vote to do so is challenged in this suit.
2003 Board Authorization for President’s Salary: Based on the membership voted increasing
dues, and with the funds available, in 2003 the Board of Directors voted to pay the president’s salary.
2003 — 2006 Board Decision Political Contributions To Candidates For State & Local
Elections: The complaint lists 41 checks from 2003 to 2006 to support political races supported by the
union.
2008 Election to Affiliate (Secure Services) From A Different Union: The board and
members voted to change union affiliations for services provided by the other union.
2008 Members Election To Change Membership In The Union: Under the bylaws, in 2008
the members voted to remove the top department managers (Chiefs and Captains) from the union.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2
Notice of Motion and SLAPP Motion, Points and Authorities27
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Same Claims & Same Parties Previously Dismissed With Prejudice In Federal Court:
When the membership voted to eliminate mangers from the rank and file, votes on the president’s salary,
to lease a building, or choose a new union affiliate, the Union officials and the Association were sued.
When union supports candidates for political office, they are sued. These identical claims were made in
US District Court in Pecot et al v. SFDSA, et al Case number CV 08-5125 CRB and on December 14,
2010, dismissed with prejudice against these individual defendants. (Ongaro Dec Ex.1)
B. There Is No Evidence To Support A New Opposition To A SLAPP
The evidence which was offered by Plaintiffs at the hearing was subject to objections which
were mostly sustained on the record, leaving Plaintiffs with little or nothing with which to carry a
burden. (See Defendant’s Objections To Evidence Filed and ruled on by the court in open court.) And
procedurally, nothing new is offered which changes the ruling.
Second, the “new evidence” does not relate to or support any of the claims in the Complaint.
The Complaint is for Breach of Contract, a contract claimed as starting in 2002, and associated frauds,
and conspiracy by the payment of Wong’s Salary starting in 2002. Notably, advocacy during an
election would hardly create a binding contract, so the contract claims, interference claims, fraud and
conspiracy claims lack any semblance of success, success necessary for Plaintiff's burden. On these
facts, there is not Contract or other claims which they can win on. Advocacy does not create a contract.
Third, this motion by Plaintiff is that they chose to ignore Defendants’ argument that the Statute
of Limitation barred Plaintiffs meeting their burden due. Plaintiffs then decided that was not important.
Now it is very important, but this destroys the essence of bringing this motion, Plaintiffs having been, at
all times, diligence. [Bringing the motion eight months after the ruling hardly demonstrates diligence,
especially where most of the proffered evidence comes right off the internet.]
Fourth, Plaintiffs now complain that the court got it wrong. Even though they did not, in their
moving papers or at hearing ever argue that conduct was within the Statute of Limitation, they now
wish to be heard on that point and claim the court got it wrong. (Order 4/4) They admit the claim that
Plaintiffs could not meet their burden of proof due to the statute of limitations was plead by defendants,
but they chose to ignore it. And, even if they are heard, the wrongful conduct which is repeatedly the
subject of Complaint, is the statements, argument and decisions of the electorate, which occurred from
2002 through 2005, well outside the limitations period.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 3
Notice of Motion and SLAPP Motion, Points and Authorities27
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Fifth, any and all claims against these individual defendants are barred as dismissed in federal
court with prejudice. (US District Court 2"! Amended Complaint, #CV 08-5125 CRB re vote to
increase dues, payment of a mortgage or lease, payment of presidents salary, and for payment of union
obligations fj 2, 4, 40, 41, 63, 65, 85, 86, 87, 88, 138, 139, 151, 155, 176, and 183)
Finally, these Plaintiffs lack any semblance of standing to bring this action and this motion
against three of the individual defendants. Absent specific application, and permission of the Court to
sue officers of a non-profit, who work without compensation, suit is barred. No permission was ever
sought. (Zehner, Savage and McDaniels Dec ff 5-9) Code of Civil Procedure Section 425.15.
Il. |. ARGUMENT _AND ANALYSIS
Code of Civil Procedure §425.16 (*SLAPP”) sets forth a statutory safeguard to protected rights,
including speech rights which was properly granted in this instance. That statute is applicable to any
claim which might impact on the right to free speech, petition, or association, including those based on
contract and fraud, such as here. Plaintiffs never demonstrated a likelihood of success on these claims as]
their motion is flawed (a) Plaintiffs lack standing, (b) is procedurally flawed and (c) without merit.
A. SLAPP Applies To Contract And Fraud Claims As Stated In This Complaint
Each of the causes of action starts with a contract claim and specifically the 2002 election in
which the union members voted to increase their dues. (First, Second, Third, Fourth, Fifth And Seventh
Cause of Action each have as the basis of their claim, allegations of a contract.) Plaintiffs’ motion
seems to accept that the burden shifted to Plaintiffs to prove they would succeed, as they should have.
Claims for breach of contract and fraud are subject to the same SLAPP scrutiny. (e.g. contract
and fraud claims against a constitutional right of free speech. Roberts v. Los Angeles County Bar Assn.
105 Cal.App.4th 604 (2003); Neville v. Chudacoff 160 Cal.App.4th 1255, (2008) (contract claims)
B. The SLAPP Burden Shifting Analysis Requires Plaintiff To Demonstrate Success
Plaintiff's, such as these here, who sue where others participate in protected activities must prove
their claim under SLAPP or face dismissal. Dixon v. Superior Court, Scientific Resource Surveys, Inc.
30 Cal. App. 4" 733, 741 (1994). It is a procedural remedy to dispose of suits affecting the rights of
others to participate in protected activities. Lafayette Morehouse, Inc. v. Chronicle Publishing Company
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 4
Notice of Motion and SLAPP Motion, Points and Authorities37 Cal. App. 4"" 855, 865 (1995). SLAPP is a procedural screening method to reduce claims which
infringe upon protected activity. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106,
1113 (1999).
Cc The SLAPP Burden Shifting Analysis Applies Whenever Any Significant Part of
The Complaint Involves A Protected Activity
When a pleading contains allegations regarding both protected and unprotected activity, it is the
principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP
(strategic lawsuit against public participation) statute applies. PrediWave Corp. v. Simpson Thacher &
Bartlett LLP 179 Cal.App.4th 1204 (2009) This court found “the gravamen of these causes of action is
based on nonincidental protected activity and well as unprotected activity, the first prong of the anti-
SLAPP analysis is satisfied.” Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539.
D. Plaintiffs Can Not Avoid A SLAPP Motion By New Matters Not In The Complaint
Now, Plaintiffs bring this motion based on numerous claims of events not remotely mentioned in
or related to the existing Complaint. Plaintiffs now claims events involving others (Union officials) not
getting to see records of the Foundation, though these Union officials are not pleading any complaint of
for such depravation. (And these union officials have no right to the records of the Foundation.)
A plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of
combining allegations of protected and unprotected activity under the label of one cause of action.
Philipson & Simon v. Gulsvig 154 Cal.App.4th 347 (2007) Here, there are numerous if not all of the
allegations involving protected activities which give rise to plaintiffs’ duty to show, by clear and
convincing evidence, that they can prevail or suffer dismissal.
De facto, Plaintiffs seek to amend the Complaint by adding allegations of harm done to others for
failures to provide documents to the Foundation and a mis-deposited check. Even if this was a wrong
done, which it is not and certainly not to these plaintiffs, a plaintiffs cannot avoid a motion to strike a
complaint under the SLAPP motion by amending the complaint, which is the effort here. Hansen v.
California Dept. of Corrections and Rehabilitation 171 Cal.App.4th 1537(2008); Nguyen-Lam v. Cao
171 Cal.App.4th 858 (2009)
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 5
Notice of Motion and SLAPP Motion, Points and AuthoritiesWhen a cause of action is dismissed pursuant to the SLAPP motion, which was done under the
court’s SLAPP ruling, the plaintiff has no right to amend the claim, yet by alleging facts not in the
complaint, they are attempting to do just that. Creating a new or amended Complaint by pleading
outside the Complaint would violate the purpose of a SLAPP motion. Salma v. Capon 161
Cal.App.4th 1275 (2008) The motion for reconsideration should be denied.
E. Defendant’s Advocacy Affecting All Union Members Is A Protected Activity
The protections for union activity are no less than for any other form of election. Macias v.
Hartwell 55 Cal.App.4th 669 (1997) “Although matters of public interest include legislative and
governmental activities, they may also include activities that involve private persons and entities,
especially when a large, powerful organization may impact the lives of many individuals.” (Church of
Scientology v. Wollersheim 42 Cal.App.4th 628, 650, (1996) As against a group of protected activity
where Plaintiff has neither the factual support or viable legal theories, the motion for reconsideration
should be denied and the SLAPP order permitted to stand.
F. Plaintiffs Were Put On Notice Of The Claim That Their Complaint Was Barred By
The Statute of Limitation, And, As Set Out In The Order, Chose To Ignore It
Plaintiffs claim that they were not given any opportunity to argue the implications of the Statute
of Limitations and more importantly, were not on notice of this as a basis for defendants’ motion.
(Points & Authority, pp 1:16) They claim that defendants never argued the Statute of Limitations. (pp
2:3-7) They should not be hearing as the claim of Statute of Limitation was set out in the moving
papers. As set out in the original Motion to Strike: pp. 6:
Also, there is no reason the statute of limitations of two years on an unwritten contract,
or even four years on a written contract does not apply. Many of the claims were based on
events from as far back as 2002, such as the election for dues increase, as set out in the
Complaint, 2. This vote and approval by the SFDSA members occurred in 2002. The
Complaint, 26, acknowledges that the new dues became effective in 2002. The Board
voted to pay Wong a salary in 2003. These claims are at best stale.
Additionally, the Complaint, J 17 alleges that in 2004, Wong committed an act of fraud
by forming the Foundation without the specific approval of the SEDSA Board of Director.
Both claims are stale and plaintiff could not carry a burden to prove they have a viable
complaint. (Wong Dec § 15)
Additionally, in the original motion it would be hard to miss further assertion of the Statute of
Limitations unless it was a tactical decision to ignore it: (Motion To Strike, pp. 11)
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 6
Notice of Motion and SLAPP Motion, Points and Authorities27
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G. Plaintiffs Can Not Meet Their Burden On The First, Second Third, Fourth and Fifth Cause Of
Action As They Lack Factual Support for These Claims, The Claims Are Barred By the
Statute of Limitations and Have Previously Been Dismissed With Prejudice
First, contrary to the allegations in the complaint, [“This contract became effective
immediately upon the vote by the members of the Class to approve the increase in their
biweekly dues.” (Complaint J 141) ] There was no contract. A proposal does not render any
terms binding. And a vote by a membership is not turn a proposal into a contract especially
when the power to determine salaries.
Second, the statute of limitation on these claims has long expired. (First, Second Causes
of Action, two or 4 years on a contract, long since expired for the acts in 2003 — Salary for
Wong. Third Cause of Action Fraud three years, for the Salary for Wong beginning in 2003
(Code Civ. Proc., § 338, subd. (d). Fourth and Fifth Causes of Action for Conspiracy, three
years for the payments to Wong which started in 2003.
It is a tactical decision to attack and argue the defendants have not shifted the burden over and
over and then to ignore the possibility that the could would disagree with the Plaintiffs. Having done so,
they should not now be heard to point the finger of blame at everyone else. Their bad choice should not
cause the granting of the motion for reconsideration. The SLAPP order permitted to stand.
G. Plaintiffs Have Failed To Secure Standing To Sue By Securing Permission Of The
Court Under CCP 425.15 to Sue Zehner, Savage and McDaniels, As Officers Of A
Non Profit Serving Without Compensation
Plaintiffs have no standing in this suit as it relates to three of the four individual defendants.
425.15 The Complaint acknowledges, and it is undisputed, that the SFDSA is a non-profit corporation.
Complaint {12 And it is beyond dispute that Zehner, Savage and McDaniels were officers of a non-
profit serving without compensation. (Zehner, Wong, Savage and McDaniels 49 5-9) As to Zehner,
Savage and McDaniels, Plaintiffs have no standing to sue and cannot meet their burden. The SLAPP
order should not be overturned as it relates to Zehner, Savage and McDaniels.
H. Plaintiffs Have Not And Can Not Demonstrate Diligence In Having Sought The
Evidence As Of The Hearing On the SLAPP Motion
The procedural prerequisites set forth by statute for reconsideration of orders and renewal of
motions previously denied are jurisdictional as applied to the actions of parties to civil litigation. Kerns
v. CSE Ins. Group 106 Cal.App.4th 368 (2003). Plaintiffs seeking reconsideration most provide both
newly discovered evidence, and an explanation for the failure to have produced such evidence earlier.
Berman v. Health Net 80 Cal.App.4th 1359 (2000). They have done neither. The tax returns were
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page7
Notice of Motion and SLAPP Motion, Points and Authoritiesavailable on line, yet only eight months after the ruling did they ever seek them. The claim of the
Foundations documents not being provided has nothing to do with this case. Plaintiffs ignored this
argument in their opposition and at the hearing. They cannot now complaint. It was in the papers. They
can hardly claim a satisfactory explanation for their failure to respond to the Statute of Limitations
argument.
I Plaintiffs Have Not And Can Not Demonstrate Diligence In Having Sought The
Evidence As Of The Hearing On the SLAPP Motion
Civil Procedure Section 1008, dealing with applications to reconsider prior orders, is an exclusive
avenue for reconsideration. A Court acts in excess of jurisdiction when it grants motion to reconsider
that is not based upon new facts, circumstances, or law as specified by statute. Gilberd v. AC Transit 32
Cal.App.4th 1494 (1995); Garcia v. Hejmadi 58 Cal.App.4th 674 (1997)
A Plaintiff seeking reconsideration based upon new facts must provide a satisfactory explanation
for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court 135
Cal.App.4th 206 (2005), In re Marriage of Herr 174 Cal.App.4th 1463 (2009) Here, after learning of
the ruling on the motion, Plaintiffs did nothing for eight months to address the problem. This hardly
demonstrates diligence by Plaintiffs. A motion for reconsideration, which requires the moving party to
offer new or different facts, circumstances, or law that could not, with reasonable diligence, have been
previously discovered, will be denied absent a strong showing of diligence. Forrest v. State Of
California Dept. Of Corporations 150 Cal.App.4th 183 (2007) This motion should be denied.
J. The “New Evidence” In The Form Of A Declaration from Robert Trevizo Adds
Nothing As A Basis To Deny Grant A Motion For Reconsideration
Plaintiffs offer the declaration of Robert Trevizo suggesting some irregularity in 2010 by Wong
not providing to the SFDSA or the Association, documents and records relating to the San Francisco
Deputy Sheriff's Foundation. There is nothing irregular or suspicious about the Foundation not
providing Foundation records to the Association. The Association has no right to the records of the
Foundation. They are two distinct entities, distinct boards, records and bank accounts. (Wong Dec {§
24-30)
More importantly, this claim of wrongdoing is not within the Complaint on file. Rather the
Complaint on file indicates that Plaintiffs were deprived records of the Association (Union), specifically
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 8
Notice of Motion and SLAPP Motion, Points and Authorities27
28
set out in the Sixth Cause of Action. (Indeed as to that Cause of Action, before this suit was filed they
were give access to all of the documents and provided thousands of pages of documents. (See Wong
Dec {ff 22-23a; and Ongaro Dec 4 5-11)
Finally, while Trevizo complains that a single deposit was made into the Foundation account
which was rightfully the money of the Association. He acknowledges that the money paid was
immediately returned to the Association and the error rectified. Wong went so far as to insure that it
does not happen again. None of this is within the Complaint nor a reason to set aside the SLAPP order.
kK. Wild Unsupported Speculation Without Any Foundation That The Money Received
By The Foundation Was Somehow Fraudulently Taken Can Not Serve As A Basis
To Set Aside The SLAPP Order
Plaintiffs and Kranz’ argument borders on the absurd and lacks any evidence to support it. To
attempt to follow the argument, Plaintiffs claims that a check wrongly deposited into the bank account
for the Foundation and immediately returned to the Association demonstrates about $1.2 million in theft
by “Defendants.” (Points and Authorities pp:3:19-4:12) All this of course well after any dates in the
Complaint, does not relate to the Contract, Interference, Fraud, or Conspiracy allegations which exist in
the Complaint, and with any logical or evidentiary tie in for this assertion. They looked at the tax returns|
and concluded Defendant must have taken some money, about $1.2 million dollars worth.
Il. _§ CONCLUSION
For the foregoing reasons, the motion for reconsideration should be denied, and the SLAPP order
upheld with the award of attorneys fees and costs for the efforts to uphold the SLAPP award.
Dated: March 16, 2012 Respectfully Submitted,
MU &A ATES
‘ /
/ LAA
Lg AWRENCE D. MURRAY
Attpfneys for Defendants DAVID WONG, MICHAEL
ZEHNER, BRIAN SAVAGE, SHEDRICK McDANIELS
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 9
Notice of Motion and SLAPP Motion, Points and AuthoritiesPROOF OF SERVICE
lam employed in the City and County of San Francisco, State of California. I am over the age of]
18 and not a party to the within action. My business address is 1781 Union Street, San Francisco,
California 94123; (415) 673-0555.
On this date, I served the following document DEFENDANT WONG, ZEHNER, SAVAGE
AND McDANIELS’ OPPOSITION TO MOTION FOR RECONSIDERATION OF ORDER ON
SPECIAL MOTION TO STRIKE CAUSES OF ACTION IN THE COMPLAINT on the interested
parties in this action as follows:
Attorney for Plaintiffs: Attorney for Defendant
PaulL. Kranz [BY PERSONAL SERVICE] San Francisco Deputy Sheriffs’ Association
Law Office of Paul L. Kranz Harry S. Stern, Lara Cullinanae-Smith
2560 Ninth Street, Suite 213 Rains Lucia Stern, PC [BY MAIL]
Berkeley, CA 94710 2300 Contra Costa Blvd., Suite 500
Tel: (510) 549 5900 Pleasant Hill, CA 94523
Fax: (510) 549 5901 Tel: (925) 609-1699 Fax: (925) 609-1690
Ismith@rlslawyers.com
Attorney for Defendant San Francisco Deputy
Sheriffs’ Foundation
David R. Ongaro [BY MAIL]
Ongaro Burtt & Louderback LLP
595 Market Street, Suite 610
San Francisco, CA 94105
Tel: (415) 433-3900 Fax: (415) 433-3950
[XX] [BY MAIL] _ I caused envelope(s) with postage thereon fully prepaid to be placed in the United
States mail at San Francisco, California, addressed as shown above.
[XX] [BY PERSONAL SERVICE] _ I caused such envelope(s) to be delivered by hand to the above
address(es).
[ ] [BY FAX] _ I caused the above entitled document(s) to be personally served on the above
shown parties by facsimile transmission on the date shown below by confirming the fax phone number
with the law office shown above then (a) transmitting it via the fax machine within this office, and (b)
receiving a receipt from the machine within this office confirming all documents sent were in fact
properly received.
I declare under penalty of perjury under the laws of the State of California that the above is true
and correct. Executed in San Francisco, California, on March 16, 2012.
Yop Me —
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 10
Notice of Motion and SLAPP Motion, Points and Authorities
Preview
IPT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-16-2012 1:19 pm Case Number: CGC-10-501168 Filing Date: Mar-16-2012 1:18 Juke Box: 001 Image: 03538168 OPPOSITION JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF'S ASSOCIATION, A et 001003538168 Instructions: Please place this sheet on top of the document to be scanned. 15LAWRENCE D. MURRAY (SBN 77536) MURRAY & ASSOCIATES 1781 Union Street San Francisco, CA 94123 Tel: (415) 673-0555 Fax: (415) 928-4084 Attorney for Defendants: DAVID WONG, MICHAEL ZEHNER, BRIAN SAVAGE and SHEDRICK McDANIELS SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR, Individually and on behalf of all other similarly situated, Plaintiffs, v. SAN FRANCISCO DEPUTY SHERIFF’S ASSOCIATION, a California Nonprofit Corporation, SAN FRANCISCO DEPUTY SHERIFF’S FOUNDATION, a California Nonprofit Corporation, DAVID WONG, an individual, MICHAEL ZEHNER, an individual, BRIAN SAVAGE, an individual, SHEDRICK McDANIELS, an individual, and DOES 1-100, Defendants. Case No. CGC — 10 -501168 DEFENDANT WONG, ZEHNER, SAVAGE AND McDANIELS’ OPPOSITION TO MOTION FOR RECONSIDERATION OF ORDER ON SPECIAL MOTION TO STRIKE CAUSES OF ACTION IN THE COMPLAINT (Declarations in Support by Wong, Zehner, Savage, McDaniels, and Ongaro] (CCP § 1008) Date: March 29, 2012 Time: 9:30 a.m. Dept: 302 Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page i Notice of Motion and SLAPP Motion, Points and AuthoritiesTABLE OF CONTENTS Table of Authorities L INTRODUCTION A. Numerous Elections Occurring in 2002 through 2005 Are The iv Basis For Plaintiff's Case 2 B. There Is No Evidence To Support A New Opposition To A SLAPP 3 IL. ARGUMENT AND ANALYSIS 4 A. SLAPP Applies To Contract And Fraud Claims As Stated In This Complaint 4 B. The SLAPP Burden Shifting Analysis Requires Plaintiff To Demonstrate Success 4 Cc. The SLAPP Burden Shifting Analysis Applies Whenever Any Significant Part of The Complaint Involves A Protected Activity 5 Dz. Plaintiffs Can Not Avoid A SLAPP Motion By New Matters Not In The Complaint 5 E. Defendant’s Advocacy Affecting All Union Members Is A Protected Activity 6 F. Plaintiffs Were Put On Notice Of The Claim That Their Complaint Was Barred By The Statute of Limitation, And, As Set Out In The Order, Chose To Ignore It 6 G. Plaintiffs Have Failed To Secure Standing To Sue By Securing Permission Of The Court Under CCP 425.15 to Sue Zehner, Savage and McDaniels, As Officers Of A Non Profit Serving Without Compensation 7 H. Plaintiffs Have Not And Can Not Demonstrate Diligence In Having Sought The Evidence As Of The Hearing On the SLAPP Motion 7 I. Plaintiffs Have Not And Can Not Demonstrate Diligence In Having Sought The Evidence As Of The Hearing On the SLAPP Motion 8 Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page ii Notice of Motion and SLAPP Motion, Points and AuthoritiesJ. The “New Evidence” In The Form Of A Declaration from Robert Trevizo Adds Nothing As A Basis To Deny Grant A Motion For Reconsideration 8 K. Wild Unsupported Speculation Without Any Foundation That The Money Received By The Foundation Was Somehow Fraudulently Taken Can Not Serve As A Basis To Set Aside The SLAPP Order 9 Ill. © CONCLUSION 9 PROOF OF SERVICE 10 Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page iii Notice of Motion and SLAPP Motion, Points and AuthoritiesTABLE OF AUTHORITIES STATE CASES Berman v. Health Net 80 Cal.App.4th 1359 (2000) 7 Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1113 (1999) 5 Church of Scientology v. Wollersheim 42 Cal.App.4th 628, 650, (1996) 6 Dixon v. Superior Court, Scientific Resource Surveys, Inc. 30 Cal. App. 4" 733, 741 (1994) 4 Forrest v. State Of California Dept. Of Corporations 150 Cal.App.4th 183 (2007) 8 Garcia v. Hejmadi 58 Cal.App.4th 674 (1997) 8 Gilberd v. AC Transit 32 Cal.App.4th 1494 (1995) 8 Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539 5 Hansen y. California Dept. of Corrections and Rehabilitation 171 Cal.App.4th 1537(2008) 5 Inre Marriage of Herr 174 Cal.App.4th 1463 (2009) 8 Kerns v. CSE Ins. Group 106 Cal.App.4th 368 (2003) 7 Lafayette Morehouse, Inc. v. Chronicle Publishing Company 37 Cal. App. 4" 855, 865 (1995) 4 Macias v. Hartwell 55 Cal.App.4th 669 (1997) 6 Neville v. Chudacoff 160 Cal.App.4th 1255, (2008) 4 New York Times Co. v. Superior Court 135 Cal.App.4th 206 (2005) 8 Nguyen-Lam vy. Cao 171 Cal.App.4th 858 (2009) 5 Philipson & Simon v. Gulsvig 154 Cal.App.4th 347 (2007) 5 PrediWave Corp. v. Simpson Thacher & Bartlett LLP 179 Cal.App.4th 1204 (2009) 5 Roberts v. Los Angeles County Bar Assn. 105 Cal.App.4th 604 (2003) 4 Salma v. Capon 161 Cal.App.4th 1275 (2008) 6 STATE RULES AND STATUTES Civil Procedure Section 1008 8 Code of Civil Procedure Section 425.15 2,7 Code of Civil Procedure Section 425.16 4 Code of Civil Procedure Section 338, subd. (d) Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page iv Notice of Motion and SLAPP Motion, Points and AuthoritiesMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO MOTION FOR RECONSIDERATION OF ORDER ON SPECIAL MOTION TO STRIKE L INTRODUCTION 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, which is the subject of a motion for judgment on the pleading to be heard shortly. Plaintiffs comes to court now, eight (8) months after the July 7, 2011, hearing and order granting the SLAPP motion, indicating they have, with due diligence, recently located evidence not previously available to them that demonstrates the Court erred in granting the SLAPP order. Their motion lacks in just about every respect. There is no diligence; in fact Plaintiffs admit they chose to ignore the Statute of Limitation argument prior to and at the hearing, as was the finding of the court at the time of the SLAPP order. (Order § 4) And, the “new evidence” not previously available, the tax returns, were in fact publically available to plaintiffs on the internet, but they chose not to seek it in June of 2011. (Kranz Dec pp 5, 12) And, even if it was “new evidence,” it fails to demonstrate any wrong doing, is pure conjecture, and fails to address and support any of the claims in the Complaint on file. Plaintiffs attach unverified, unauthenticated tax returns then argue that all of the money referenced in the tax returns constitutes theft, was done recently, hence they have events within the Statute of Limitation. That misses the point. It does not demonstrate wrongdoing and, as with the first hearing, fails to demonstrate Plaintiffs’ burden that they can and will succeed on their complaint for the events dating back to 2002. And, the declaration of the Union Treasurer does not aid in any way. The single check deposited by the bank in the wrong account was immediately returned to the Association. (Wong Dec, 931-35) More importantly, in relation to the failure by the Association to provide documents, as alleged in the Sixth Cause of Action, (a) all of the documents sought by Plaintiffs were provided prior to this suit (Wong Dec {§ 20-23a; Ongaro Dec ¥ 5-11) (b) the documents sought recently by the Association are not demands contained within the Complaint, and certainly not demands listed in the Complaint by these plaintiffs, the Association has no claims against these individual officers in any pleading, (c) the Association has demanded documents from the Foundation, which they have no right Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 1 Notice of Motion and SLAPP Motion, Points and Authoritiesto since the Foundation is an independent entity, and (d) the flaw of the Complaint is that it could not sustain events occurring in 2002 though 2005, which is at the core of this Complaint. Finally, these Plaintiffs have no standing to bring this suit. Code of Civil Procedure Section 425.15 A. Numerous Elections Occurring in 2002 through 2005 Are The Basis For Plaintiff's Case The factual basis in the first, second, third, fourth, and fifth causes of action are based on statements, positions, and advocacy in elections by Wong as well as the union votes of the board of directors which plaintiffs sues on as a “contract.” From that flow claims for Breach of Contract, Interference with Contract, Fraud, Conspiracy, 2002 Members Election for Union Dues Increase: The first election, and largest cause of the complaints, was to increase dues in 2002. In 2002, President Wong sent out a written statement to each member “inducing them to pay” additional money they needed to keep the union going. (Complaint {ff 2, 19-23) He and the union are sued claiming the statements constituted a contract and were part of a “scheme to defraud” to pay his salary. From that election, most of the claims for spending that money flow. (See first through fifth causes of action for breach of contract, interference, fraud and conspiracy.) The SLAPP motion was filed because the Complaint is basis on decisions made in various elections and the payment of salary, spending, and obligations thereon these decisions. Specifically: 2002 Board Decision to Lease or Purchase of A Building: In 2002 the board decided to lease a building so that the organization would have an office. Their vote to do so is challenged in this suit. 2003 Board Authorization for President’s Salary: Based on the membership voted increasing dues, and with the funds available, in 2003 the Board of Directors voted to pay the president’s salary. 2003 — 2006 Board Decision Political Contributions To Candidates For State & Local Elections: The complaint lists 41 checks from 2003 to 2006 to support political races supported by the union. 2008 Election to Affiliate (Secure Services) From A Different Union: The board and members voted to change union affiliations for services provided by the other union. 2008 Members Election To Change Membership In The Union: Under the bylaws, in 2008 the members voted to remove the top department managers (Chiefs and Captains) from the union. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2 Notice of Motion and SLAPP Motion, Points and Authorities27 28 Same Claims & Same Parties Previously Dismissed With Prejudice In Federal Court: When the membership voted to eliminate mangers from the rank and file, votes on the president’s salary, to lease a building, or choose a new union affiliate, the Union officials and the Association were sued. When union supports candidates for political office, they are sued. These identical claims were made in US District Court in Pecot et al v. SFDSA, et al Case number CV 08-5125 CRB and on December 14, 2010, dismissed with prejudice against these individual defendants. (Ongaro Dec Ex.1) B. There Is No Evidence To Support A New Opposition To A SLAPP The evidence which was offered by Plaintiffs at the hearing was subject to objections which were mostly sustained on the record, leaving Plaintiffs with little or nothing with which to carry a burden. (See Defendant’s Objections To Evidence Filed and ruled on by the court in open court.) And procedurally, nothing new is offered which changes the ruling. Second, the “new evidence” does not relate to or support any of the claims in the Complaint. The Complaint is for Breach of Contract, a contract claimed as starting in 2002, and associated frauds, and conspiracy by the payment of Wong’s Salary starting in 2002. Notably, advocacy during an election would hardly create a binding contract, so the contract claims, interference claims, fraud and conspiracy claims lack any semblance of success, success necessary for Plaintiff's burden. On these facts, there is not Contract or other claims which they can win on. Advocacy does not create a contract. Third, this motion by Plaintiff is that they chose to ignore Defendants’ argument that the Statute of Limitation barred Plaintiffs meeting their burden due. Plaintiffs then decided that was not important. Now it is very important, but this destroys the essence of bringing this motion, Plaintiffs having been, at all times, diligence. [Bringing the motion eight months after the ruling hardly demonstrates diligence, especially where most of the proffered evidence comes right off the internet.] Fourth, Plaintiffs now complain that the court got it wrong. Even though they did not, in their moving papers or at hearing ever argue that conduct was within the Statute of Limitation, they now wish to be heard on that point and claim the court got it wrong. (Order 4/4) They admit the claim that Plaintiffs could not meet their burden of proof due to the statute of limitations was plead by defendants, but they chose to ignore it. And, even if they are heard, the wrongful conduct which is repeatedly the subject of Complaint, is the statements, argument and decisions of the electorate, which occurred from 2002 through 2005, well outside the limitations period. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 3 Notice of Motion and SLAPP Motion, Points and Authorities27 28 Fifth, any and all claims against these individual defendants are barred as dismissed in federal court with prejudice. (US District Court 2"! Amended Complaint, #CV 08-5125 CRB re vote to increase dues, payment of a mortgage or lease, payment of presidents salary, and for payment of union obligations fj 2, 4, 40, 41, 63, 65, 85, 86, 87, 88, 138, 139, 151, 155, 176, and 183) Finally, these Plaintiffs lack any semblance of standing to bring this action and this motion against three of the individual defendants. Absent specific application, and permission of the Court to sue officers of a non-profit, who work without compensation, suit is barred. No permission was ever sought. (Zehner, Savage and McDaniels Dec ff 5-9) Code of Civil Procedure Section 425.15. Il. |. ARGUMENT _AND ANALYSIS Code of Civil Procedure §425.16 (*SLAPP”) sets forth a statutory safeguard to protected rights, including speech rights which was properly granted in this instance. That statute is applicable to any claim which might impact on the right to free speech, petition, or association, including those based on contract and fraud, such as here. Plaintiffs never demonstrated a likelihood of success on these claims as] their motion is flawed (a) Plaintiffs lack standing, (b) is procedurally flawed and (c) without merit. A. SLAPP Applies To Contract And Fraud Claims As Stated In This Complaint Each of the causes of action starts with a contract claim and specifically the 2002 election in which the union members voted to increase their dues. (First, Second, Third, Fourth, Fifth And Seventh Cause of Action each have as the basis of their claim, allegations of a contract.) Plaintiffs’ motion seems to accept that the burden shifted to Plaintiffs to prove they would succeed, as they should have. Claims for breach of contract and fraud are subject to the same SLAPP scrutiny. (e.g. contract and fraud claims against a constitutional right of free speech. Roberts v. Los Angeles County Bar Assn. 105 Cal.App.4th 604 (2003); Neville v. Chudacoff 160 Cal.App.4th 1255, (2008) (contract claims) B. The SLAPP Burden Shifting Analysis Requires Plaintiff To Demonstrate Success Plaintiff's, such as these here, who sue where others participate in protected activities must prove their claim under SLAPP or face dismissal. Dixon v. Superior Court, Scientific Resource Surveys, Inc. 30 Cal. App. 4" 733, 741 (1994). It is a procedural remedy to dispose of suits affecting the rights of others to participate in protected activities. Lafayette Morehouse, Inc. v. Chronicle Publishing Company Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 4 Notice of Motion and SLAPP Motion, Points and Authorities37 Cal. App. 4"" 855, 865 (1995). SLAPP is a procedural screening method to reduce claims which infringe upon protected activity. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1113 (1999). Cc The SLAPP Burden Shifting Analysis Applies Whenever Any Significant Part of The Complaint Involves A Protected Activity When a pleading contains allegations regarding both protected and unprotected activity, it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP (strategic lawsuit against public participation) statute applies. PrediWave Corp. v. Simpson Thacher & Bartlett LLP 179 Cal.App.4th 1204 (2009) This court found “the gravamen of these causes of action is based on nonincidental protected activity and well as unprotected activity, the first prong of the anti- SLAPP analysis is satisfied.” Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539. D. Plaintiffs Can Not Avoid A SLAPP Motion By New Matters Not In The Complaint Now, Plaintiffs bring this motion based on numerous claims of events not remotely mentioned in or related to the existing Complaint. Plaintiffs now claims events involving others (Union officials) not getting to see records of the Foundation, though these Union officials are not pleading any complaint of for such depravation. (And these union officials have no right to the records of the Foundation.) A plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and unprotected activity under the label of one cause of action. Philipson & Simon v. Gulsvig 154 Cal.App.4th 347 (2007) Here, there are numerous if not all of the allegations involving protected activities which give rise to plaintiffs’ duty to show, by clear and convincing evidence, that they can prevail or suffer dismissal. De facto, Plaintiffs seek to amend the Complaint by adding allegations of harm done to others for failures to provide documents to the Foundation and a mis-deposited check. Even if this was a wrong done, which it is not and certainly not to these plaintiffs, a plaintiffs cannot avoid a motion to strike a complaint under the SLAPP motion by amending the complaint, which is the effort here. Hansen v. California Dept. of Corrections and Rehabilitation 171 Cal.App.4th 1537(2008); Nguyen-Lam v. Cao 171 Cal.App.4th 858 (2009) Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 5 Notice of Motion and SLAPP Motion, Points and AuthoritiesWhen a cause of action is dismissed pursuant to the SLAPP motion, which was done under the court’s SLAPP ruling, the plaintiff has no right to amend the claim, yet by alleging facts not in the complaint, they are attempting to do just that. Creating a new or amended Complaint by pleading outside the Complaint would violate the purpose of a SLAPP motion. Salma v. Capon 161 Cal.App.4th 1275 (2008) The motion for reconsideration should be denied. E. Defendant’s Advocacy Affecting All Union Members Is A Protected Activity The protections for union activity are no less than for any other form of election. Macias v. Hartwell 55 Cal.App.4th 669 (1997) “Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.” (Church of Scientology v. Wollersheim 42 Cal.App.4th 628, 650, (1996) As against a group of protected activity where Plaintiff has neither the factual support or viable legal theories, the motion for reconsideration should be denied and the SLAPP order permitted to stand. F. Plaintiffs Were Put On Notice Of The Claim That Their Complaint Was Barred By The Statute of Limitation, And, As Set Out In The Order, Chose To Ignore It Plaintiffs claim that they were not given any opportunity to argue the implications of the Statute of Limitations and more importantly, were not on notice of this as a basis for defendants’ motion. (Points & Authority, pp 1:16) They claim that defendants never argued the Statute of Limitations. (pp 2:3-7) They should not be hearing as the claim of Statute of Limitation was set out in the moving papers. As set out in the original Motion to Strike: pp. 6: Also, there is no reason the statute of limitations of two years on an unwritten contract, or even four years on a written contract does not apply. Many of the claims were based on events from as far back as 2002, such as the election for dues increase, as set out in the Complaint, 2. This vote and approval by the SFDSA members occurred in 2002. The Complaint, 26, acknowledges that the new dues became effective in 2002. The Board voted to pay Wong a salary in 2003. These claims are at best stale. Additionally, the Complaint, J 17 alleges that in 2004, Wong committed an act of fraud by forming the Foundation without the specific approval of the SEDSA Board of Director. Both claims are stale and plaintiff could not carry a burden to prove they have a viable complaint. (Wong Dec § 15) Additionally, in the original motion it would be hard to miss further assertion of the Statute of Limitations unless it was a tactical decision to ignore it: (Motion To Strike, pp. 11) Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 6 Notice of Motion and SLAPP Motion, Points and Authorities27 28 G. Plaintiffs Can Not Meet Their Burden On The First, Second Third, Fourth and Fifth Cause Of Action As They Lack Factual Support for These Claims, The Claims Are Barred By the Statute of Limitations and Have Previously Been Dismissed With Prejudice First, contrary to the allegations in the complaint, [“This contract became effective immediately upon the vote by the members of the Class to approve the increase in their biweekly dues.” (Complaint J 141) ] There was no contract. A proposal does not render any terms binding. And a vote by a membership is not turn a proposal into a contract especially when the power to determine salaries. Second, the statute of limitation on these claims has long expired. (First, Second Causes of Action, two or 4 years on a contract, long since expired for the acts in 2003 — Salary for Wong. Third Cause of Action Fraud three years, for the Salary for Wong beginning in 2003 (Code Civ. Proc., § 338, subd. (d). Fourth and Fifth Causes of Action for Conspiracy, three years for the payments to Wong which started in 2003. It is a tactical decision to attack and argue the defendants have not shifted the burden over and over and then to ignore the possibility that the could would disagree with the Plaintiffs. Having done so, they should not now be heard to point the finger of blame at everyone else. Their bad choice should not cause the granting of the motion for reconsideration. The SLAPP order permitted to stand. G. Plaintiffs Have Failed To Secure Standing To Sue By Securing Permission Of The Court Under CCP 425.15 to Sue Zehner, Savage and McDaniels, As Officers Of A Non Profit Serving Without Compensation Plaintiffs have no standing in this suit as it relates to three of the four individual defendants. 425.15 The Complaint acknowledges, and it is undisputed, that the SFDSA is a non-profit corporation. Complaint {12 And it is beyond dispute that Zehner, Savage and McDaniels were officers of a non- profit serving without compensation. (Zehner, Wong, Savage and McDaniels 49 5-9) As to Zehner, Savage and McDaniels, Plaintiffs have no standing to sue and cannot meet their burden. The SLAPP order should not be overturned as it relates to Zehner, Savage and McDaniels. H. Plaintiffs Have Not And Can Not Demonstrate Diligence In Having Sought The Evidence As Of The Hearing On the SLAPP Motion The procedural prerequisites set forth by statute for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation. Kerns v. CSE Ins. Group 106 Cal.App.4th 368 (2003). Plaintiffs seeking reconsideration most provide both newly discovered evidence, and an explanation for the failure to have produced such evidence earlier. Berman v. Health Net 80 Cal.App.4th 1359 (2000). They have done neither. The tax returns were Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page7 Notice of Motion and SLAPP Motion, Points and Authoritiesavailable on line, yet only eight months after the ruling did they ever seek them. The claim of the Foundations documents not being provided has nothing to do with this case. Plaintiffs ignored this argument in their opposition and at the hearing. They cannot now complaint. It was in the papers. They can hardly claim a satisfactory explanation for their failure to respond to the Statute of Limitations argument. I Plaintiffs Have Not And Can Not Demonstrate Diligence In Having Sought The Evidence As Of The Hearing On the SLAPP Motion Civil Procedure Section 1008, dealing with applications to reconsider prior orders, is an exclusive avenue for reconsideration. A Court acts in excess of jurisdiction when it grants motion to reconsider that is not based upon new facts, circumstances, or law as specified by statute. Gilberd v. AC Transit 32 Cal.App.4th 1494 (1995); Garcia v. Hejmadi 58 Cal.App.4th 674 (1997) A Plaintiff seeking reconsideration based upon new facts must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court 135 Cal.App.4th 206 (2005), In re Marriage of Herr 174 Cal.App.4th 1463 (2009) Here, after learning of the ruling on the motion, Plaintiffs did nothing for eight months to address the problem. This hardly demonstrates diligence by Plaintiffs. A motion for reconsideration, which requires the moving party to offer new or different facts, circumstances, or law that could not, with reasonable diligence, have been previously discovered, will be denied absent a strong showing of diligence. Forrest v. State Of California Dept. Of Corporations 150 Cal.App.4th 183 (2007) This motion should be denied. J. The “New Evidence” In The Form Of A Declaration from Robert Trevizo Adds Nothing As A Basis To Deny Grant A Motion For Reconsideration Plaintiffs offer the declaration of Robert Trevizo suggesting some irregularity in 2010 by Wong not providing to the SFDSA or the Association, documents and records relating to the San Francisco Deputy Sheriff's Foundation. There is nothing irregular or suspicious about the Foundation not providing Foundation records to the Association. The Association has no right to the records of the Foundation. They are two distinct entities, distinct boards, records and bank accounts. (Wong Dec {§ 24-30) More importantly, this claim of wrongdoing is not within the Complaint on file. Rather the Complaint on file indicates that Plaintiffs were deprived records of the Association (Union), specifically Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 8 Notice of Motion and SLAPP Motion, Points and Authorities27 28 set out in the Sixth Cause of Action. (Indeed as to that Cause of Action, before this suit was filed they were give access to all of the documents and provided thousands of pages of documents. (See Wong Dec {ff 22-23a; and Ongaro Dec 4 5-11) Finally, while Trevizo complains that a single deposit was made into the Foundation account which was rightfully the money of the Association. He acknowledges that the money paid was immediately returned to the Association and the error rectified. Wong went so far as to insure that it does not happen again. None of this is within the Complaint nor a reason to set aside the SLAPP order. kK. Wild Unsupported Speculation Without Any Foundation That The Money Received By The Foundation Was Somehow Fraudulently Taken Can Not Serve As A Basis To Set Aside The SLAPP Order Plaintiffs and Kranz’ argument borders on the absurd and lacks any evidence to support it. To attempt to follow the argument, Plaintiffs claims that a check wrongly deposited into the bank account for the Foundation and immediately returned to the Association demonstrates about $1.2 million in theft by “Defendants.” (Points and Authorities pp:3:19-4:12) All this of course well after any dates in the Complaint, does not relate to the Contract, Interference, Fraud, or Conspiracy allegations which exist in the Complaint, and with any logical or evidentiary tie in for this assertion. They looked at the tax returns| and concluded Defendant must have taken some money, about $1.2 million dollars worth. Il. _§ CONCLUSION For the foregoing reasons, the motion for reconsideration should be denied, and the SLAPP order upheld with the award of attorneys fees and costs for the efforts to uphold the SLAPP award. Dated: March 16, 2012 Respectfully Submitted, MU &A ATES ‘ / / LAA Lg AWRENCE D. MURRAY Attpfneys for Defendants DAVID WONG, MICHAEL ZEHNER, BRIAN SAVAGE, SHEDRICK McDANIELS Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 9 Notice of Motion and SLAPP Motion, Points and AuthoritiesPROOF OF SERVICE lam employed in the City and County of San Francisco, State of California. I am over the age of] 18 and not a party to the within action. My business address is 1781 Union Street, San Francisco, California 94123; (415) 673-0555. On this date, I served the following document DEFENDANT WONG, ZEHNER, SAVAGE AND McDANIELS’ OPPOSITION TO MOTION FOR RECONSIDERATION OF ORDER ON SPECIAL MOTION TO STRIKE CAUSES OF ACTION IN THE COMPLAINT on the interested parties in this action as follows: Attorney for Plaintiffs: Attorney for Defendant PaulL. Kranz [BY PERSONAL SERVICE] San Francisco Deputy Sheriffs’ Association Law Office of Paul L. Kranz Harry S. Stern, Lara Cullinanae-Smith 2560 Ninth Street, Suite 213 Rains Lucia Stern, PC [BY MAIL] Berkeley, CA 94710 2300 Contra Costa Blvd., Suite 500 Tel: (510) 549 5900 Pleasant Hill, CA 94523 Fax: (510) 549 5901 Tel: (925) 609-1699 Fax: (925) 609-1690 Ismith@rlslawyers.com Attorney for Defendant San Francisco Deputy Sheriffs’ Foundation David R. Ongaro [BY MAIL] Ongaro Burtt & Louderback LLP 595 Market Street, Suite 610 San Francisco, CA 94105 Tel: (415) 433-3900 Fax: (415) 433-3950 [XX] [BY MAIL] _ I caused envelope(s) with postage thereon fully prepaid to be placed in the United States mail at San Francisco, California, addressed as shown above. [XX] [BY PERSONAL SERVICE] _ I caused such envelope(s) to be delivered by hand to the above address(es). [ ] [BY FAX] _ I caused the above entitled document(s) to be personally served on the above shown parties by facsimile transmission on the date shown below by confirming the fax phone number with the law office shown above then (a) transmitting it via the fax machine within this office, and (b) receiving a receipt from the machine within this office confirming all documents sent were in fact properly received. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed in San Francisco, California, on March 16, 2012. Yop Me — Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 10 Notice of Motion and SLAPP Motion, Points and Authorities