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IOUT
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jan-25-2012 12:54 pm
Case Number: CGC-10-501168
Filing Date: Jan-25-2012 12:54
Juke Box: 001 Image: 03466093
REPLY
JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF'S ASSOCIATION, A et.
001C03466093
Instructions:
Please place this sheet on top of the document to be scanned.FILED
Su .
LAWRENCE D. MURRAY (SBN 77536) CounTy 68/08 Court
on
MURRAY & ASSOCIATES 2017 FSA NFRANCSCO
1781 Union Street a
San Francisco, CA 94123 cle 25 PM I: 1h :
Tel: (415) 673-0555 RK OF T i
Fax: (415) 928-4084 ey: ME CourT
ER
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 Case No. CGC — 10 -501168
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually REPLY TO OPPOSITION TO SLAPP
and on behalf of all other similarly situated, APPLICATION FOR AWARD OF
ATTORNEY FEES OF $99,195.75 &
Plaintiffs, MULTIPLIER OF TWO AGAINST JOHNA
v. PECOT, THOMAS ARATA, RICH OWYANG,
STEPHEN TILTON, JOSEPH LEAKE, and
SAN FRANCISCO DEPUTY SHERIFF’S OSCAR TAYLOR [CCP 425.16 (c)]
ASSOCIATION, a California Nonprofit (Declaration of Lawrence D. Murray, John Gulick,
Corporation, SAN FRANCISCO DEPUTY David Wong, and Mathew Graham)
SHERIFF’S FOUNDATION, a California
Nonprofit Corporation, DAVID WONG, an Date: January 31, 2012
individual, MICHAEL ZEHNER, an individual, Time: 9:30 a.m.
BRIAN SAVAGE, an individual, SHEDRICK Dept: 302
McDANIELS, an individual, and DOES 1-100,
Defendants.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10-501168 Pagel
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27
28
I. INTRODUCTION
Plaintiffs claim this is an ordinary garden variety SLAPP Motion. Yet, suit was filed following a
press conference and media blitz by likening these sheriff's deputies to criminals running an operation
similar to the mafia. Plaintiffs filed in Federal Court, and these identical factual claims were dismissed
with prejudice on an agreement to end the dispute. The Federal Court matter was dismissed on the basis
that only the union board of directors had standing to go forward with claims against its own officers.
In disregard of the agreement ending litigation, the same factual allegations were brought here.
Notably, this time, the defense motion was not a standing issue under Rule 12 but about Free Speech.
And, for a SLAPP motion to be successful, it required an analysis with intense factual scrutiny to show
that “theft” was not at the heart of the Complaint but rather, elections and free speech in the various
elections. That scrutiny was presented to this court and by the tentative ruling, rejected. On argument
and further intense scrutiny, about 40 minutes at the hearing, did the court grant the SLAPP Motion, as
to each and every cause of action against these individual defendants and the Foundation.
At the hearing, the court started in disbelief of the merits of the motion. Through about 40 minutes
of going through each of the various union elections, what was said by the parties and the statements
made as part of the election process, a procedure authorized by law, did the trial court see through all of
the claims of fraud and theft to understand this is truly a dispute between insurgents seeking to take
command of the organization and those who revert to the ballot box to secure the will of the
organization, with little to do with fraud, theft of dues and the like.
This motion was successful as a result of painstaking efforts to demonstrate from document after
document that all claims arises from various union elections of over 870 members voting, and the
plaintiffs claims that the statements by the union officials, and their actions carrying out the result of the
voting, were protected activities. Plaintiffs claimed at the hearing that the elections had nothing to do
with it but rather it was the theft of union funds. Having lost, they now claim it was an easy win for the
defendants.
I ARGUMENT AND ANALYSIS
1. Defendants Are Prevailing Parties Since All Claims Against Them Are Dismissed
Plaintiff claims, in their opposition these defendants are not prevailing parties. Opp 2: 20-21
Plaintiffs Complaint on file has seven causes of action against the Union, the Foundation and these
individual officers of the union/ foundation. The Sixth Cause of Action is for failure to permit viewing
of documents against the union only, under the Corporation’s Code, to permit viewing of the books.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2
Reply To Opposition to SLAPP Motion for Fees, Points and AuthoritiesoN of
Plaintiffs opposition claims that “Defendants achieved only a relatively minor benefit from the
[SLAPP motion] ... all of the factual allegation and recoverable damages remain viable.” Opp. 1: 6-9
Plaintiffs contention is wrong. The order, filed January 13, 2012, dismisses all of the claims
against these defendants except the Sixth Cause of Action, viewing the books. (Order 2:5-13) That
claim is not even viable against these individual defendants. Hence there is no remaining claim against
the individual officers. And, contrary to the plaintiffs adamant assertion, not viewing the books does
not revive all of the other claims dismissed by the court’s SLAPP order, as suggested by plaintiffs.
Opp. 2: 10-12; 4:13-27
Defendants could not have achieved any greater success. Once this fee motion is decided,
Judgment should enter on the Plaintiff's Complaint for these individual defendants on the SLAPP order
and the fee order. There are no causes of action holding the individual defendants into the case.
B. Plaintiff’s Claim That Since The Federal Claims And State Court Claims Are Identical,
There Was No Need For Extensive Documentation Misses The Point
Plaintiffs claim that since the motion to dismiss under Rule 12 in Federal Court was successful,
there was no need to extensively prepare and search the documents for a SLAPP motion in state court.
Defendant fails to appreciate that the theories and factual assertions for each are very different. Opp 1:
21-28 In Federal Court, defendants could not and did not present a SLAPP motion, rather it was a Rule
12 motion based on a claim of lack of standing. Here, defendants needed to and did dig through
mounds of documents to find documents showing the exchange of free flow of ideas, argument and
advocacy which were at the core of the claims and which was needed to win the SLAPP motion. The
work was necessary to dig from the history of hundreds of documents the exercise of free speech as the
heart of the very elections which causes the exchange of information for which suit was brought.
C. The Method of Calculation of Fees Under Ketchum Is The Core Of This Motion
Plaintiff repeatedly misapplies the analysis offered by defendants’ for fees. There is no request for
$1200 per hour. The analysis is for market rate, $600 per hour, with a multiplier of two as was the
analysis in the lead case cited by Plaintiff of Ketchum v. Moses. The hours presented by defendants in
this motion are consistent with and pursuant to the Ketchum holding. Defendant presents the time
spent on each portion of the project, as the lode star, and then seeks a multiplier for the risk inherent in
this motion. (Interesting that the Declaration of the current union treasurer is presented but it lacks on
a specific point that the Union has paid for the fees in issue in this case, which they have not.)
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 3
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27
28
D. Plaintiffs Claim That Fee Enhancements Apply Only to Contingency Fee Agreements
Could Not Be More Wrong A nd Would Defeat The Public Policy To Encourage Taking
These Types Of Abusive Cases To Protect The Victim
Plaintiffs claim that there is no basis for an enhancement because the case was not on a contingency
fee agreement. Opp. 8:11-22 Plaintiffs claim that the Ketchum multiplier of 2.0 was not approved by
the Supreme Court. In fact, for those fees that were incurred prior to the granting of the motion, the
Supreme Court did approve a multiplier of 2.0. However, for the fees that incurred after the granting of
the SLAPP motion, and since there was no risk of loss of the motion at that point, the Supreme Court
sent in back stating that the post order multiplier had to be looked at again. (Ketchum )
E. Plaintiffs Attempt To Deny Responsibility For Work Associated With And Necessary By
This Motion Should Be Denied.
Plaintiffs would take and change the time spent on the SLAPP motion from work on defendant’s
burden of proving protected speech was the issue to the claims of Res Judicata.
That misses the point. The most time spent in factual research was to garner case for a union
election, free speech during elections, and the individual representations made during these elections.
Time was spent on the issue of Res Judicata, and other claims and defenses. However, the mounds
of documents needed for the case and which needed to be reviewed with the clients was that related to
elections. And it was the issue of elections which caused the shifting of the burden of proof under
SLAPP from defendants, proving it was a protected First Amendment activity, to the plaintiffs, to prove
they would succeed at trial.
The plaintiffs’ defense to the motion made it clear that the defendant’s burden to prove that First
Amendment Rights were impaired was at the core of the dispute. “This case is about embezzlement —
and retaliation against those who have sought to stop it. ... The essential subject matter of the
Complaint, from beginning to end, is defendant David Wong’s misappropriation of funds belonging to
the San Francisco Deputy Sheriff’s Association ... Plaintiffs have never sought to interfere with ...
anyone’s First Amendment Rights.” Opp to SLAPP Motion, 1:25-2:5 Defendant’s time was spent on
preparation for the argument that claims were barred by Res Judicata Opp 13:17
The central issue was not Res Judicata. And proving Res Judicata defeating at least the seventh
cause of action, according to the court’s order. Additionally, time that defeated the Plaintiffs burden to
show probability of success was the Statute of Limitations, also in the order.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 = 501168 Page 4
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27
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F. From The Inception Of This Matter, Preparation Of A SLAPP Motion and Presentation
Of The SLAPP Motion Was The Activity As Shown By The Billing
Plaintiff next claims that Defendant may be entitled to recover attorney fees for the SLAPP motion
but not other activities. Opp. 10: 3-8 However, there was no other motions or activity filed. From the
inception, the focus was to defeat this matter on a SLAPP Motion.
G. In Plaintiff’s Opinion Less Time Was Needed For The Motion
Plaintiff claims that there was nothing unique or difficult in this motion. Opp 11:3 However witha
very small community of interest, it was necessary to develop and demonstrate that it was none the less
of public interest. And, it was a loss prior to oral argument. Plaintiff's attorney, Kranz claims he
prepare for and responded to the motion in substantially less time. But he was not the one who poured
through hundreds of documents with the client to get what was needed for the motion. He did not
prepare objections to evidence which had any degree of success. He did not have a huge burden to
carry and in fact did not carry any burden in his portion of the motion. His time is not relevant.
Plaintiff claims that since Marci Polioni reviewed various documents, hence Murray did not need to
look for documents. Not only is Polioni in an unrelated firm, her review for a Rule 12 motion on
standing has nothing to do with a SLAPP motion due to First Amendment issues. (Girarde Dec § 4)
H. Plaintiff Has Failed To Prove That The “Market Rate” For Legal
Plaintiffs offer the opinion of an insurance company defense firm attorney for, Murphy, Pearson,
Bradley and Feeney retained by Kranz. They are his client. (Girarde Dec p.2 § 2) Note the opposition
is signed by Kranz as an attorney with “Murphy, Pearson, Bradley and Feeney.” (Opp. pp 15)
The attorney was admitted to practice in 1997 and charges $395. (§ 3, 4, 8) Mr. Murray has been an
attorney since 1977. Murray has been in public and private practice since and completed about 100 jury
trials to verdict and hundreds of court trials, some with significant results. (Murray Fee Dec {| 5 — 9,
53-6; Graham Fee Dec {/ 30) None of the declarants for Murray has any association with being retained
by or beholding to Murray. Each spoke to generally prevailing market rates from multiple experiences
in numerous firms and billing context, the test in this instance. Each had a vast array of experience in
the areas of fees, (Gulick in practice of law since January 1971, and Graham in practice since 1980, both
in various billing experience in a variety of large firms and small firms, and for charges from other firms
for specific work) both holding the opinion that billing was reasonable at $600 per hour.
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 5
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27
28
I. Kranz Work Is Not A Basis For Comparison To The Work Needed To Bring The Motion
Paul Kranz claims that he spent less than 30 hours in the preparation of the opposition to the SLAPP
motion. (Kranz dec 2) His work left something to be desired and hardly a comparison. For example,
plaintiff filed objections to evidence (declarations) all of which were denied at the hearing by the court
on the record as (a) lacking merit, (b) lack of proper format, and (c) being late. Murray prepared and
presented objections to the Plaintiffs’ Declarations, with many, if not most, of them being granted in a
written form consistent with the rules of court, each prepared by Murray.
Kranz did not have to search for any documents, analyze an entire mound of documents, nor set
them out, refer and establish the basis for their admission in multiple declarations. He did not have to
work through numerous clients. All he said was that the motion lacked merit, and it still took 30 hours.
Kranz opposition took a broad swipe at and continued to harp on misappropriations and
embezzlement. (e.g. “The Gravamen of Plaintiffs’ Complaint is a scheme to misappropriate [union]
funds ... retaliate against and expelling ... [those who complained.]” SLAPP Opp. 5:23-6:1 It won
the tentative ruling.
It took considerable effort to go beyond that and drill down into the actual statements at the election,
which lead to the vote authorizing Wong’s salary by the union and the payments made under that
authorization over and above the chant that they took money. Indeed his efforts were considerably less.
Kranz’s declaration misses the point. He points to work that needed to be done to represent
defendants and claims it would have had to be done anyhow. (Kranz Dec 3:1- 4:7) However, from the
inception of the first contact, those hours were spent looking at and preparing for a SLAPP motion as
this case was ripe for it. Simply put, early on Kranz by letter was put on notice of the SLAPP motion,
even before it was filed, but chose to debate it rather than dismiss.
Kranz claims travel and phone calls to the court clerk are not part of a SLAPP motion. (Kranz Dec
4:8-18) They are wrong. SLAPP fees cover all time reasonably spent on the motion.
Plaintiffs claim that discussions with cocounsel which included a reference to not only SLAPP but
also to a potential for a motion for security and a demand to halt discovery pursuant to the stay set out
in the SLAPP statute thus invalidates the application of the use of the letter for benefit for the SLAPP
motion. (Kranz Dec p. 4:19-25) Though other issues were discussed, it does not defeat the discussion
on SLAPP issues. And while Plaintiffs claim the fees of staff can not be considered, to the contrary,
paralegal and law clerk fees can be recovered. Guinn v. Dotson (1994) 23 CalApp 4th 262, 269
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 6
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27
28
IIL. CONCLUSION
Judgment should enter for these individual defendants, and attorneys fees and costs awarded in the
amount for the award of Ninety Nine Thousand One Hundred Ninety Five Dollars and 75/00
($99,195.75) with a multiplier of 2.0 as and for attorney fees and costs in favor of Defendants DAVID
WONG, MICHAEL ZEHNER, BRIAN SAVAGE, and SHEDRICK McDANIELS, against Plaintiffs
JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and
OSCAR TAYLOR. pursuant to Code of Civil Procedure § 425.16.
Dated: January 23, 2012 Respectfully Submitted,
MURRAY & ASSOCIATES
By: LAWRENCE D. MURRAY
Attorneys 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 7
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27
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PROOF OF SERVICE
Tam employed in the City and County of San Francisco, State of California. I am over the age of|
18 and not a party to the within action. My business address is 1781 Union Street, San Francisco,
California 94123; (415) 673-0555.
On this date, I served the following document REPLY TO OPPOSITION TO SLAPP
APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 & MULTIPLIER OF
TWO AGAINST JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON,
JOSEPH LEAKE, and OSCAR TAYLOR [CCP 425.16 (c)] on the interested parties in this action as
follows:
Attorney for Plaintiffs: Attorney for Defendant
Paul L. Kranz San Francisco Deputy Sheriffs’ Association
Law Office of Paul L. Kranz Harry 8. Stern, Lara Cullinanae-Smith
2560 Ninth Street, Suite 213 Rains Lucia Stern, PC
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
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.
[ ] [BY PERSONAL SERVICE] _ I caused such envelope(s) to be delivered by hand to the above
address(es).
[XX] [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 January 25, 2012.
Pecot, et al. vs. SFDSA, et al.; San Francisco Sdperior Court No: CGC — 10 — 501168 Page 8
Reply To Opposition to SLAPP Motion for Fees, Points and Authorities
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IOUT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jan-25-2012 12:54 pm Case Number: CGC-10-501168 Filing Date: Jan-25-2012 12:54 Juke Box: 001 Image: 03466093 REPLY JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF'S ASSOCIATION, A et. 001C03466093 Instructions: Please place this sheet on top of the document to be scanned.FILED Su . LAWRENCE D. MURRAY (SBN 77536) CounTy 68/08 Court on MURRAY & ASSOCIATES 2017 FSA NFRANCSCO 1781 Union Street a San Francisco, CA 94123 cle 25 PM I: 1h : Tel: (415) 673-0555 RK OF T i Fax: (415) 928-4084 ey: ME CourT ER 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 Case No. CGC — 10 -501168 OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR, Individually REPLY TO OPPOSITION TO SLAPP and on behalf of all other similarly situated, APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 & Plaintiffs, MULTIPLIER OF TWO AGAINST JOHNA v. PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and SAN FRANCISCO DEPUTY SHERIFF’S OSCAR TAYLOR [CCP 425.16 (c)] ASSOCIATION, a California Nonprofit (Declaration of Lawrence D. Murray, John Gulick, Corporation, SAN FRANCISCO DEPUTY David Wong, and Mathew Graham) SHERIFF’S FOUNDATION, a California Nonprofit Corporation, DAVID WONG, an Date: January 31, 2012 individual, MICHAEL ZEHNER, an individual, Time: 9:30 a.m. BRIAN SAVAGE, an individual, SHEDRICK Dept: 302 McDANIELS, an individual, and DOES 1-100, Defendants. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10-501168 Pagel Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27 28 I. INTRODUCTION Plaintiffs claim this is an ordinary garden variety SLAPP Motion. Yet, suit was filed following a press conference and media blitz by likening these sheriff's deputies to criminals running an operation similar to the mafia. Plaintiffs filed in Federal Court, and these identical factual claims were dismissed with prejudice on an agreement to end the dispute. The Federal Court matter was dismissed on the basis that only the union board of directors had standing to go forward with claims against its own officers. In disregard of the agreement ending litigation, the same factual allegations were brought here. Notably, this time, the defense motion was not a standing issue under Rule 12 but about Free Speech. And, for a SLAPP motion to be successful, it required an analysis with intense factual scrutiny to show that “theft” was not at the heart of the Complaint but rather, elections and free speech in the various elections. That scrutiny was presented to this court and by the tentative ruling, rejected. On argument and further intense scrutiny, about 40 minutes at the hearing, did the court grant the SLAPP Motion, as to each and every cause of action against these individual defendants and the Foundation. At the hearing, the court started in disbelief of the merits of the motion. Through about 40 minutes of going through each of the various union elections, what was said by the parties and the statements made as part of the election process, a procedure authorized by law, did the trial court see through all of the claims of fraud and theft to understand this is truly a dispute between insurgents seeking to take command of the organization and those who revert to the ballot box to secure the will of the organization, with little to do with fraud, theft of dues and the like. This motion was successful as a result of painstaking efforts to demonstrate from document after document that all claims arises from various union elections of over 870 members voting, and the plaintiffs claims that the statements by the union officials, and their actions carrying out the result of the voting, were protected activities. Plaintiffs claimed at the hearing that the elections had nothing to do with it but rather it was the theft of union funds. Having lost, they now claim it was an easy win for the defendants. I ARGUMENT AND ANALYSIS 1. Defendants Are Prevailing Parties Since All Claims Against Them Are Dismissed Plaintiff claims, in their opposition these defendants are not prevailing parties. Opp 2: 20-21 Plaintiffs Complaint on file has seven causes of action against the Union, the Foundation and these individual officers of the union/ foundation. The Sixth Cause of Action is for failure to permit viewing of documents against the union only, under the Corporation’s Code, to permit viewing of the books. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2 Reply To Opposition to SLAPP Motion for Fees, Points and AuthoritiesoN of Plaintiffs opposition claims that “Defendants achieved only a relatively minor benefit from the [SLAPP motion] ... all of the factual allegation and recoverable damages remain viable.” Opp. 1: 6-9 Plaintiffs contention is wrong. The order, filed January 13, 2012, dismisses all of the claims against these defendants except the Sixth Cause of Action, viewing the books. (Order 2:5-13) That claim is not even viable against these individual defendants. Hence there is no remaining claim against the individual officers. And, contrary to the plaintiffs adamant assertion, not viewing the books does not revive all of the other claims dismissed by the court’s SLAPP order, as suggested by plaintiffs. Opp. 2: 10-12; 4:13-27 Defendants could not have achieved any greater success. Once this fee motion is decided, Judgment should enter on the Plaintiff's Complaint for these individual defendants on the SLAPP order and the fee order. There are no causes of action holding the individual defendants into the case. B. Plaintiff’s Claim That Since The Federal Claims And State Court Claims Are Identical, There Was No Need For Extensive Documentation Misses The Point Plaintiffs claim that since the motion to dismiss under Rule 12 in Federal Court was successful, there was no need to extensively prepare and search the documents for a SLAPP motion in state court. Defendant fails to appreciate that the theories and factual assertions for each are very different. Opp 1: 21-28 In Federal Court, defendants could not and did not present a SLAPP motion, rather it was a Rule 12 motion based on a claim of lack of standing. Here, defendants needed to and did dig through mounds of documents to find documents showing the exchange of free flow of ideas, argument and advocacy which were at the core of the claims and which was needed to win the SLAPP motion. The work was necessary to dig from the history of hundreds of documents the exercise of free speech as the heart of the very elections which causes the exchange of information for which suit was brought. C. The Method of Calculation of Fees Under Ketchum Is The Core Of This Motion Plaintiff repeatedly misapplies the analysis offered by defendants’ for fees. There is no request for $1200 per hour. The analysis is for market rate, $600 per hour, with a multiplier of two as was the analysis in the lead case cited by Plaintiff of Ketchum v. Moses. The hours presented by defendants in this motion are consistent with and pursuant to the Ketchum holding. Defendant presents the time spent on each portion of the project, as the lode star, and then seeks a multiplier for the risk inherent in this motion. (Interesting that the Declaration of the current union treasurer is presented but it lacks on a specific point that the Union has paid for the fees in issue in this case, which they have not.) Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 3 Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27 28 D. Plaintiffs Claim That Fee Enhancements Apply Only to Contingency Fee Agreements Could Not Be More Wrong A nd Would Defeat The Public Policy To Encourage Taking These Types Of Abusive Cases To Protect The Victim Plaintiffs claim that there is no basis for an enhancement because the case was not on a contingency fee agreement. Opp. 8:11-22 Plaintiffs claim that the Ketchum multiplier of 2.0 was not approved by the Supreme Court. In fact, for those fees that were incurred prior to the granting of the motion, the Supreme Court did approve a multiplier of 2.0. However, for the fees that incurred after the granting of the SLAPP motion, and since there was no risk of loss of the motion at that point, the Supreme Court sent in back stating that the post order multiplier had to be looked at again. (Ketchum ) E. Plaintiffs Attempt To Deny Responsibility For Work Associated With And Necessary By This Motion Should Be Denied. Plaintiffs would take and change the time spent on the SLAPP motion from work on defendant’s burden of proving protected speech was the issue to the claims of Res Judicata. That misses the point. The most time spent in factual research was to garner case for a union election, free speech during elections, and the individual representations made during these elections. Time was spent on the issue of Res Judicata, and other claims and defenses. However, the mounds of documents needed for the case and which needed to be reviewed with the clients was that related to elections. And it was the issue of elections which caused the shifting of the burden of proof under SLAPP from defendants, proving it was a protected First Amendment activity, to the plaintiffs, to prove they would succeed at trial. The plaintiffs’ defense to the motion made it clear that the defendant’s burden to prove that First Amendment Rights were impaired was at the core of the dispute. “This case is about embezzlement — and retaliation against those who have sought to stop it. ... The essential subject matter of the Complaint, from beginning to end, is defendant David Wong’s misappropriation of funds belonging to the San Francisco Deputy Sheriff’s Association ... Plaintiffs have never sought to interfere with ... anyone’s First Amendment Rights.” Opp to SLAPP Motion, 1:25-2:5 Defendant’s time was spent on preparation for the argument that claims were barred by Res Judicata Opp 13:17 The central issue was not Res Judicata. And proving Res Judicata defeating at least the seventh cause of action, according to the court’s order. Additionally, time that defeated the Plaintiffs burden to show probability of success was the Statute of Limitations, also in the order. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 = 501168 Page 4 Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27 28 F. From The Inception Of This Matter, Preparation Of A SLAPP Motion and Presentation Of The SLAPP Motion Was The Activity As Shown By The Billing Plaintiff next claims that Defendant may be entitled to recover attorney fees for the SLAPP motion but not other activities. Opp. 10: 3-8 However, there was no other motions or activity filed. From the inception, the focus was to defeat this matter on a SLAPP Motion. G. In Plaintiff’s Opinion Less Time Was Needed For The Motion Plaintiff claims that there was nothing unique or difficult in this motion. Opp 11:3 However witha very small community of interest, it was necessary to develop and demonstrate that it was none the less of public interest. And, it was a loss prior to oral argument. Plaintiff's attorney, Kranz claims he prepare for and responded to the motion in substantially less time. But he was not the one who poured through hundreds of documents with the client to get what was needed for the motion. He did not prepare objections to evidence which had any degree of success. He did not have a huge burden to carry and in fact did not carry any burden in his portion of the motion. His time is not relevant. Plaintiff claims that since Marci Polioni reviewed various documents, hence Murray did not need to look for documents. Not only is Polioni in an unrelated firm, her review for a Rule 12 motion on standing has nothing to do with a SLAPP motion due to First Amendment issues. (Girarde Dec § 4) H. Plaintiff Has Failed To Prove That The “Market Rate” For Legal Plaintiffs offer the opinion of an insurance company defense firm attorney for, Murphy, Pearson, Bradley and Feeney retained by Kranz. They are his client. (Girarde Dec p.2 § 2) Note the opposition is signed by Kranz as an attorney with “Murphy, Pearson, Bradley and Feeney.” (Opp. pp 15) The attorney was admitted to practice in 1997 and charges $395. (§ 3, 4, 8) Mr. Murray has been an attorney since 1977. Murray has been in public and private practice since and completed about 100 jury trials to verdict and hundreds of court trials, some with significant results. (Murray Fee Dec {| 5 — 9, 53-6; Graham Fee Dec {/ 30) None of the declarants for Murray has any association with being retained by or beholding to Murray. Each spoke to generally prevailing market rates from multiple experiences in numerous firms and billing context, the test in this instance. Each had a vast array of experience in the areas of fees, (Gulick in practice of law since January 1971, and Graham in practice since 1980, both in various billing experience in a variety of large firms and small firms, and for charges from other firms for specific work) both holding the opinion that billing was reasonable at $600 per hour. Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 5 Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27 28 I. Kranz Work Is Not A Basis For Comparison To The Work Needed To Bring The Motion Paul Kranz claims that he spent less than 30 hours in the preparation of the opposition to the SLAPP motion. (Kranz dec 2) His work left something to be desired and hardly a comparison. For example, plaintiff filed objections to evidence (declarations) all of which were denied at the hearing by the court on the record as (a) lacking merit, (b) lack of proper format, and (c) being late. Murray prepared and presented objections to the Plaintiffs’ Declarations, with many, if not most, of them being granted in a written form consistent with the rules of court, each prepared by Murray. Kranz did not have to search for any documents, analyze an entire mound of documents, nor set them out, refer and establish the basis for their admission in multiple declarations. He did not have to work through numerous clients. All he said was that the motion lacked merit, and it still took 30 hours. Kranz opposition took a broad swipe at and continued to harp on misappropriations and embezzlement. (e.g. “The Gravamen of Plaintiffs’ Complaint is a scheme to misappropriate [union] funds ... retaliate against and expelling ... [those who complained.]” SLAPP Opp. 5:23-6:1 It won the tentative ruling. It took considerable effort to go beyond that and drill down into the actual statements at the election, which lead to the vote authorizing Wong’s salary by the union and the payments made under that authorization over and above the chant that they took money. Indeed his efforts were considerably less. Kranz’s declaration misses the point. He points to work that needed to be done to represent defendants and claims it would have had to be done anyhow. (Kranz Dec 3:1- 4:7) However, from the inception of the first contact, those hours were spent looking at and preparing for a SLAPP motion as this case was ripe for it. Simply put, early on Kranz by letter was put on notice of the SLAPP motion, even before it was filed, but chose to debate it rather than dismiss. Kranz claims travel and phone calls to the court clerk are not part of a SLAPP motion. (Kranz Dec 4:8-18) They are wrong. SLAPP fees cover all time reasonably spent on the motion. Plaintiffs claim that discussions with cocounsel which included a reference to not only SLAPP but also to a potential for a motion for security and a demand to halt discovery pursuant to the stay set out in the SLAPP statute thus invalidates the application of the use of the letter for benefit for the SLAPP motion. (Kranz Dec p. 4:19-25) Though other issues were discussed, it does not defeat the discussion on SLAPP issues. And while Plaintiffs claim the fees of staff can not be considered, to the contrary, paralegal and law clerk fees can be recovered. Guinn v. Dotson (1994) 23 CalApp 4th 262, 269 Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 6 Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27 28 IIL. CONCLUSION Judgment should enter for these individual defendants, and attorneys fees and costs awarded in the amount for the award of Ninety Nine Thousand One Hundred Ninety Five Dollars and 75/00 ($99,195.75) with a multiplier of 2.0 as and for attorney fees and costs in favor of Defendants DAVID WONG, MICHAEL ZEHNER, BRIAN SAVAGE, and SHEDRICK McDANIELS, against Plaintiffs JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR. pursuant to Code of Civil Procedure § 425.16. Dated: January 23, 2012 Respectfully Submitted, MURRAY & ASSOCIATES By: LAWRENCE D. MURRAY Attorneys 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 7 Reply To Opposition to SLAPP Motion for Fees, Points and Authorities27 28 PROOF OF SERVICE Tam employed in the City and County of San Francisco, State of California. I am over the age of| 18 and not a party to the within action. My business address is 1781 Union Street, San Francisco, California 94123; (415) 673-0555. On this date, I served the following document REPLY TO OPPOSITION TO SLAPP APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 & MULTIPLIER OF TWO AGAINST JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR [CCP 425.16 (c)] on the interested parties in this action as follows: Attorney for Plaintiffs: Attorney for Defendant Paul L. Kranz San Francisco Deputy Sheriffs’ Association Law Office of Paul L. Kranz Harry 8. Stern, Lara Cullinanae-Smith 2560 Ninth Street, Suite 213 Rains Lucia Stern, PC 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 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. [ ] [BY PERSONAL SERVICE] _ I caused such envelope(s) to be delivered by hand to the above address(es). [XX] [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 January 25, 2012. Pecot, et al. vs. SFDSA, et al.; San Francisco Sdperior Court No: CGC — 10 — 501168 Page 8 Reply To Opposition to SLAPP Motion for Fees, Points and Authorities