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

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Nov-10-2011 3:40 pm

Case Number: CGC-10-501168
Filing Date: Nov-10-2011 3:39
Juke Box: 001 Image: 03382958
MOTION (CIVIL GENERIC)

JOHNA PECOT et al VS. SAN FRANCISCO DEPUTY SHERIFF'S ASSOCIATION, A et

001C03382958

Instructions:
Please place this sheet on top of the document to be scanned.

LeLAWRENCE 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

KO

ior Court of California
Sep GP ean Francisee

nov 10 2a
CLERK OF THE GOURT
oe ~ SE

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,
Vv.

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

NOTICE OF MOTION AND MOTION FOR
CONTINUED SPECIAL MOTION TO
STRIKE - 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)}

(Declaration of Lawrence D. Murray, John Gulick.
David Wong, and Mathew Graham)

Date: December 19, 2011
Time: 9:30 a.m.
Dept: 302

To All Parties Of Record And To Their Attorneys: PLEASE TAKE NOTICE that on December

19, 2011, at the hour of 9:30 a.m. in Department 302 of the above entitled court, located at 400
McAllister Street, San Francisco, California, Defendants DAVID WONG, MICHAEL ZEHNER,
BRIAN SAVAGE, and SHEDRICK McDANIELS, will and hereby do move the Court, pursuant to

Code of Civil Procedure §425.16 (c) (fees for having successfully prosecuted a Strategic Litigation

Against Public Participation motion), based on the prior ruling of the Court striking the First, Second,

Third, Fourth, Fifth, and Seventh Causes of Action of the Complaint against them, for the award of

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168

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Notice of Motion and SLAPP Fee Motion, Points and Authorities27

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Ninety Nine Thousand One Hundred Ninety Five Dollars and 75/00 ($99,195.75) with a multiplier of 2.
as and for attorney fees and costs in favor of Defendants DAVID WONG, MICHAEL ZEHNER,
BRIAN SAVAGE, SHEDRICK McDANIELS, and the SAN FRANCISCO DEPUTY SHERIFF’S
FOUNDATION, against Plaintiffs JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN
TILTON, JOSEPH LEAKE, and OSCAR TAYLOR.

Defendants DAVID WONG, MICHAEL ZEHNER, BRIAN SAVAGE, SHEDRICK
McDANIELS, moves against Plaintiffs JOHNA PECOT, THOMAS ARATA, RICH OWYANG,
STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR for the court’s order awarding fees to
their attorney, Lawrence D. Murray, and for the expenses, fees and costs in bringing this motion. This
special motion to strike is made under Code of Civil Procedure §425.16, and will be based upon this
noticed motion, the attached memorandum of points and authorities, the attached declaration and
exhibits, the records and pleading in the court's file, and on any and all evidence and argument which

may be presented at the hearing of this matter.

Dated: November 9, 2011 Respectfully Submitted,

MURRAY & ASSOCIATES

By: LAWRENCE D. MURRAY
Attorneys for Defendants DAVID WQNG, MICHAEL
ZEHNER, BRIAN SAVAGE, SHEDRICK McDANIELS,

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

TABLE OF CONTENTS
Table of Authorities
I. INTRODUCTION
A. The Plaintiffs
B. The Defendants
Cc. The Claims In The Lawsuit
Dz. Same Claims & Same Parties Previously Dismissed With Prejudice
In Federal Court
E. The SFDS Foundation
F. Background
G. The Hearing: Tentative to Deny/ Ruling to Grant The SLAPP

Motion

Il ARGUMENT AND ANALYSIS

A.

B.

Background Of The Successful Attorney

Protected SLAPP Activity Was Throughout The Complaint

i.

ili.

Protected Activity: Dues Election and Board Authorized
Expenditures For Salary

Protected Activity: Members Vote Increasing Dues & A
President’s Salary

Protected Activity: Vote To Disaffiliate With Operating
Engineers Local 3 (“OE3”)

Protected Activity: Vote & Board Decision to Lease or
Purchase of A Building

Protected Activity: Decision to Make Political Contributions

iti

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N.

0.

vi. Protected Activity: Petition and Vote To Remove
Management From Union Ranks

Extensive Amounts of Time Needed To Locate Documents and
Materials To Demonstrate That This Case Was Not About Theft
But About Protective Activity, And Then Plead All Of These Facts
Intelligently So As To Secure A Favorable Result

Substantial Work Was Needed To Demonstrate That Plaintiffs
Could Not Meet Their Burden of the Burden Shifting
Analysis — Essential For A Successful SLAPP Motion

Efforts To Seek Dismissal Short of Filing And Serving A
SLAPP Motion

This Series of Suits and Litigation Required Competent Diligent
and Skillful Advocacy In Order To Secure A Proper Dismissal For
These Individual Defendants

From The First Defense Meeting, Murray Alone Insisting To Go
Forward With A SLAPP Motion - No Other Defendant Or Office
Was Interested In Working On This Motion

As An Accomplished Litigator With Extensive Experience, A
Market Rate For Services Provided In This Matter Should Be Set
At $600 Per Hour Before Any Multiplier

Hours Spend And Costs Incurred To Date For The SLAPP Motion
Award Of Fees For A Successful SLAPP Motion Is Mandatory
With The Goal Is To Fully Compensate The Attorney For His
Hours At Market Rate And A Multiplier For Risk Involved
Substantial Work Was Required To Secure A Successful Result
The Novelty And Difficulty Of The Questions Involved

The Skill Displayed In Representing The Litigants

The Contingent Nature Of The Fee Award

Significant Awards For SLAPP Motions Are Not Unusual

Ill. = CONCLUSION

PROOF OF SERVICE

11

12

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TABLE OF AUTHORITIES

STATE CASES
Beasley v. Wells Fargo Bank 235 Cal.App.3d 1407, 1419 (1991) 10
Church of Scientology v. Wollersheim 42 Cal.App.4th 628, (App. 2 Dist. 1996) 3,10
Club Members For An Honest Election v. Sierra Club 45 Cal.4th 309 (2008) 3
Flannery v. Prentice 26 Cal.4th $72 (2001) 8
Ketchum y. Moses 24 Cal.4th 1122, 1131 — 1132 (2001) 9
Macias v. Hartwell 55 Cal.App.4th 669 (1997) 3,10
Mallard v. Progressive Choice Ins. Co, 188 Cal.App.4th 531(App. 4 Dist. 2010) 9
Moreno vy. City of Sacramento 534 F.3d 1106 (9"" Cir. 2008) 9
Philipson & Simon v. Gulsvig 154 Cal.App.4th 347 (2007) 3
Premier Medical Management Systems, Inc. y. California Ins. Guarantee Ass'n

163 Cal.App.4th 550(App. 2 Dist. 2008) 6,9
Schroeder y. Irvine City Council 97 Cal.App.4th 174 (2002) 3
Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1172 10
STATE RULES AND STATUTES
Code of Civil Procedure § 425.16 8,11
Code of Civil Procedure § 425.16(c) 9
OTHER
S.Rep. No. 94-1011, at 2 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5910 9
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page iii

Notice of Motion and SLAPP Fee Motion, Points and AuthoritiesI. INTRODUCTION

A. The Plaintiffs: The plaintiffs are the number three in command of the San Francisco
Sheriff's Department, Chief Deputy Thomas Arata, (recently retired), lead plaintiff Johna Pecot, a
Captain in the San Francisco Sheriff's Department, and others, some of whom supervise others in the
Sheriff's Department. (Complaint §§ 6, 7) The other plaintiffs are similarly members of the older
regime of the SF Sheriff's Department. They sue to have this court overturn various Union elections,
unseat various candidates, and or remove various officers and directors of the SFDSA and for damages.

B. The Defendants: Defendant San Francisco Deputy Sheriffs Association (“SFDSA”) is al
mutual benefit nonprofit corporation. (Wong Previously Filed Dec {fj 6-7) Defendant Wong was
President of the SFDSA from 2002 through 2010. Wong is also President of the Defendant San
Francisco Deputy Sheriffs Foundation, (“Foundation”) which is a public benefit corporation. (Wong
Previously Filed Dec § 10) These individual defendants are sued for acting as President (Wong) and
for making multiple statements and “proposals” during elections (Complaint §{ 1-5) and treasurer
(Defendants Zehner, Savage and McDaniels) in making the payments as directed by the vote of the
members and the board of directors. (Complaint 4] 12-16)

Cc The Claims In The Lawsuit: This case was about claims by plaintiffs arising out of
numerous union elections, some of them going back to 2002. The plaintiffs sued defendants in 2010
saying that many of the statements made during the elections were “false,” “fraudulent” and “mislead”
causing the members and board to vote the wrong way. Wong was sued for making proposals and
statements during each of the membership elections and board decisions, and the other individual
defendants as treasurer for making payments as directed by the board. The protected activities are:

(1) 2002 Members Election for Dues Increase: The first in the series of elections was in
2002 by the membership to increase dues. President Wong sent out a statement to each member
explaining why additional money they needed. (Complaint {ff 2, 19-23) His statements in the 2002
election, referred to in the Complaint as a “proposal,” caused him to be sued for breach of contract,
fraud, and a scheme to defraud, the second and third causes of action, his proposal alleged as a binding
contract when the dues increase was approved, according to the complaint. The proposal is made a part|
of the first through fifth causes of action for breach of contract, interference, fraud and conspiracy.

(2) 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 is challenged in this suit.

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(3) 2003 Board Authorization for President’s Salary: With the membership voted
increasing dues, and funds available, in 2003 the Board of Directors voted to pay the president a salary.

(4) 2003-6 Board Decision Political Contributions To Candidates For State Elections -
The complaint is for 41 checks from 2003 to 2006 authorized by the board to support political races.

(5) 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.

(6) 2008 Members Election To Change Membership: In 2008 the members petitioned
and voted to remove the top manager (Chiefs and Captains) from the union as interfering with the
members actions For having held the election changing who can be a member, they are sued.

D. Same Claims & Same Parties Previously Dismissed With Prejudice In Federal Court

When the board votes on the president’s salary, they are sued. When the board votes to lease a
building, or choose a new union affiliate, they are sued. When union supports candidates for political
office, they are sued. When the membership votes to eliminate mangers from their ranks, they are sued.
All of these claims were made in each of the complaints in US District Court in Pecot et al v. SFDSA, et
al # CV 08-5125 CRB. On December 14, 2010, these claims were dismissed with prejudice against
these individual defendants. (Murray Previously Filed Dec Ex. 14) They now bring them again, here.

E. The SFDS Foundation: The San Francisco Deputy Sheriffs’ Foundation is sued because
of their association with Defendant David Wong, who is the president of the Foundation and was the
president of the union. (Prior Wong Dec § 8, 9) No conduct of wrongdoing is alleged against them.

F. Background Over the years the San Francisco Deputy Sheriffs’ Association,
(“SFDSA”) the Union for the Sheriffs Deputies, has experienced growing pains. The membership and
the board of directors have repeatedly participated in election after election, and board decision after
board decision which was contrary to the opinions, positions taken by, and vocal interests of the
plaintiffs. Plaintiffs sue here calling the elections, and the statements made by their opponents as
“fraudulent,” “misleading” and information given in the various votes by the members and board “false”
statements.

G. The Hearing: Tentative to Deny/ Ruling to Grant The SLAPP Motion.

The matter was called on July 7, 2011. The tentative ruling was to deny the motion. After
argument, the court took it under submission. About July 18, 2011, the court posted a ruling granting
the motion.

Ml

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i ARGUMENT AND ANALYSIS

This second half of the SLAPP Motion is for fees. Since the court ruled on July 18, 2011,
granting the motion, these defendants now seek the award of fees. The Court’s Order has not entered.

Here, plaintiffs filed suit over multiple protected activities, calling them a contract claim, a fraud
claim, a conspiracy claim and others. Again in oral argument plaintiff overlooked the protected nature of
the conduct. Club Members For An Honest Election v. Sierra Club 45 Cal.4th 309 (2008)

Though attempted here, 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, as in the US District
Court, extensive work was required to secure dismissal of the claims, though protected activities.

Plaintiffs could hardly suggest otherwise. The protections for a large union election is 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.” (See Church of Scientology v. Wollersheim 42 Cal.App.4th 628, 650, (1996)

Here the actions of 864 union members in voting, as well as their representatives, the board of
directors, and their support for candidates for public office, all qualify to bring them within the burden
shifting protections of SLAPP. (Voting is conduct qualifying for the protections afforded by the First
Amendment under SLAPP. Schroeder v. Irvine City Council 97 Cal.App.4th 174 (2002)) And, each
defendant, participating in these Union elections, enjoys the protections of First Amendment, including
the SLAPP analysis. Macias v. Hartwell 55 Cal.App.4th 669 (1997)

Having been successful on the first portion of the motion, this seeks to recover the fees and costs.

A. Background Of The Successful Attorney

Mr. Murray has been an attorney since 1977. He was a prosecutor in the District Attorney’s
Office until June 23, 1983. He has been in private practice since and completed about 100 jury trials to
verdict and hundreds of court trials, some with significant results. (Murray Dec {5 — 9, 53-6; Graham
30)

He represented the individual defendants on the identical factual allegations in US District Court
in San Francisco involving these identical plaintiffs and defendants. (Murray Dec § 30 — 34) He has

extensive experience in complex litigation as well as with SLAPP motions. He previously filed

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approximately six Special Motions To Strike, being successful on about half, and having gone on appeal
on at least two. With the law in this area developing, this motion was laborious. (Murray Dec § 10-12)

On filing of the prior case, the federal court matter, plaintiffs appeared at a news conference at
the US District Court building, which aired on bay area television. They referred to the defendants akin
to being thieves, thugs, and likened the defendant union for which they were the union officials to
organized crime. This after their complaints to the union, the vote of the membership and the vote of
the board of directors did not go their way. Their anger boundless and their speech protected. (Murray
Dec § 15)

These plaintiffs have had it repeatedly pointed out to them that their claims have no merit. After
an investigation by the Union board of directors, each complaint was denied. (See Murray Dec § 18;
prior Murray Dec. In Support of SLAPP Motion, Complaint filed, Exhibit 1, sub exhibit G)

In the US District Court matter, the Board of Directors appointed a “Special Litigation
Committee,” which reviewed each of the claims and again denied the validity of all of the claims.
(Murray Dec § 19, and prior Murray Dec. the Complaint, Exhibit 2) Then, Plaintiffs stipulated in
writing to a dismissal of the claims with prejudice as to these individuals. They filed them here, for the
fourth time, each now dismissed by the SLAPP ruling. (Murray Dec J 20 & previously Murray Dec.,
Complaint, Ex. 3)

This case is about claims by plaintiffs against the words used, the advocacy and statements in
the various numerous membership and board of director elections by defendant Union officials going
back to 2002 through 2005. The plaintiffs sued defendants in 2010 saying that many of the statements
made during the elections were “false,” “fraudulent” and “mislead” causing the members to vote the
wrong way. The individual defendants are the union officials. Public advocacy to a large union, such as

this, as well as the results of the open election are protected under SLAPP. (Murray Dec §/ 21)

B. Protected SLAPP Activity Was Throughout The Complaint
i. Protected Activity: Dues Election and Board Authorized Expenditures For Salary
Plaintiffs claimed that each of these defendants created a “scheme to... induce members ... to
increase their dues,” where they sent out information to all members, making observations and request
for which he is sued. (Complaint § 1,2, 19; previously filed Wong Dec {j 19-20)
ii. Protected Activity: Members Vote Increasing Dues & A President’s Salary

Plaintiffs alleged that “scheme” deceiving union members where they voted to approve an

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increase in deductions to pay for union dues for the president’s salary. (Complaint { 2, 3, 21)
iii. Protected Activity: Vote To Disaffiliate With Operating Engineers Local 3 (“OE3”)
Wong and the other individual defendants were sued for statements made in relationship to the
vote to leave Operating Engineers Local 3 (OE3) Complaint { 46; “Defendant WONG disseminated a
bulletin to SFDSA members dated May 30, 2008 regarding the proposed increase in dues to OE3.”
iv. Protected Activity: Vote & Board Decision to Lease or Purchase of A Building
Complaint § 38: Wong leased for a headquarters for the SFDSA” without appropriate approval.”
The decision of the Board of Directors, was to rent. (previously filed Wong Dec § 43-44)
v. Protected Activity: Decision to Make Political Contributions
The plaintiffs sue because they disagree with the political contributions made by vote of the
board of directors. (Complaint, { 74) Supporting a politician is a protected activity.
vi. Protected Activity: Petition and Vote To Remove Management From Union Ranks
Plaintiffs Arata and Pecot were removed from the Union by a membership vote (Complaint {J

81-2) and that it was done by means of an “illegal conspiracy by circulating a petition to amend the

Constitution and Bylaws to expel from SFDSA membership those members who had the same rank as
... Arata (Chief Deputy ) and ... Pecot (Captain).” (Murray Dec § 28) Again, it was protected activity.
c. Extensive Amounts of Time Needed To Locate Documents and Materials To

Demonstrate That This Case Was Not About Theft But About Protective Activity, And
Then Plead All Of These Facts Intelligently So As To Secure A Favorable Result.

With much of the events complained of and elections occurring beginning in 2002, this was not
going to be an easy motion for such historic events. This motion was challenging because the complaint
was (a) inflammatory (about theft and misleading statement harming a union) and (b) not cloaked in
normal “free speech” issues. [Indeed, the tentative ruling by the court was to deny the motion.]

Defendant Wong and his attorney sat for days going through boxes of documents and many discs
to find the documents needed to (a) support the motion and (b) remind the witness of the exact sequence
of events going back to 2002. (Wong Dec §§ 14-17; Murray Dec {[{j 20, 28-34)

Any endeavor to present a SLAPP motion would require a very detailed analysis and supporting
documents to prove that the origins of the complaints by plaintiff were protected activities not theft.

In order to expose the numerous protected activities, specifically advocacy during and the results
of union votes, it took looking behind the various allegations of theft and misappropriation to the real

root of the problem. For example, the plaintiffs complain that Defendant David Wong stole hundreds of |

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thousand of dollars of union funds. What they did note in passing was that the payments to Defendant
Wong were his salary. They failed to mention that his salary was voted on by the Board of Directors on
more than one occasions, then the vote of the members to increase their dues to fund this, and that the
claim of secretly using this money to pay the mortgage on his house was actually investigated and found
by the investigators to be payment of his salary to do so, and nothing more. (Murray Dec. {ff 31- 35)

Plaintiffs mentioned in Federal Court, but not here, that an investigation occurred by the Union’s
board of directors and later during the federal litigation regarding salary payments. The audit showed
the salary was approved by the board and there was an overpayment of less than one percent of his total
salary, which he immediately repaid years ago when it was first discovered. (Murray Dec. {| 32)

So the process of preparing the SLAPP motion and the declarations required many many hours
and numerous days of Mr. Wong sitting with his attorney sifting through boxes and discs of documents
from 2010 going back to 2002. It required checking each board minutes, correspondence,
communications and notes, as well as the advocacy pieces which were the subject of the suit, going back
to 2002, or nine years. (Wong Dec {J 14-17; Murray Dec §§ 20, 28-34) [Notably, Courts have found
that 345 hours for a SLAPP motion not excessive. Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Ass'n 163 Cal.App.4th 550(App. 2 Dist. 2008).] It is not uncommon for the
process of preparing an involved motion, such as a SLAPP motion, to take 150 hours or more. (Guilick
Dec. 434)

D. Substantial Work Was Needed To Demonstrate That Plaintiffs Could Not Meet

Their Burden of the Burden Shifting Analysis — Essential For A Successful SLAPP Motion

In order to win, it was also incumbent on these defendants to demonstrate that plaintiffs had no
likely chance to meet their burden. It therefore became incumbent in the evidence and analysis to
demonstrate that (a) all of the plaintiffs claims were barred by the Statute of Limitations given that most
of the events occurred in 2003 and 2004) and (b) that this Complaint had the exact allegations of the
Federal Complaint which was dismissed “with prejudice” to these plaintiffs, it took hours of painstaking
effort to find each sentence in the Federal Complaint and how it had been move to a new location in the
Superior Court Complaint. That chart was also introduced as part of the SLAPP motion. (Murray Dec

38) This was done successfully and part of the ruling published by the court.

E. Efforts To Seek Dismissal Short of Filing And Serving A SLAPP Motion.
To stop this case before it got started, on April 4, 2011, when the Complaint was first served on

Mr. Wong and other individual defendants, Murray wrote to plaintiff's counsel asking for a dismissal as

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they had already stipulated to a dismissal with prejudice for the individual defendants. (Murray Dec {j
39)

When there was no response to the request for a dismissal, and no return phone calls, on April
14, 2011, Murray sent a second letter, a ten page single spaced letter to the attorney for plaintiffs setting
out the details of why this complaint was virtually identical to the Federal Complaint which was
dismissed with prejudice. Another letter specifically set out the claim that a SLAPP motion would be
successful. (Murray Dec § 40) Attempts to discuss and seek resolution degenerated into a debate.
When there was no resolution, the SLAPP motion was filed. (Murray Dec { 41- 42) Even after the court
ruled, Plaintiffs continue to dispute the basis for the order and have not, as of yet, signed the order.
(Murray Dec § 43)

F. This Series of Suits and Litigation Required Competent Diligent and Skillful

Advocacy In Order To Secure A Proper Dismissal For These Individual Defendants

In order to prevail, Murray started by investigating and research the various defenses in order to
properly represent the client. These suits have a crippling effect on those who have their resources
depleted defending frivolous claims. It takes skillful lawful strategy to put an end to such litigation.

And the preparation of a SLAPP motion, much the same as a Motion For Summary Judgment,
requires the utmost in care and attention to detail. That was exactly what was done here.

Murray’s participation in these two cases has, at all times, been as the lead for the litigation
overall and the lead and sole advocate for the individual Union official defendants.

The dismissals with prejudice secured on behalf of the individual Union official defendants in
US District Court were as a result of Murray’s advocacy, motions filed and guidance. They were the onl
defendants to file a motion to dismiss. (See Motion To Dismiss, Filed 11/19/09 Doc. #125) One
month later, Plaintiffs stipulated to dismiss each individual with prejudice. Within seven months they
re-filed a new Complaint with virtually identical allegations in the Superior Court. (Murray Dec {| 48)

G. From The First Defense Meeting, Murray Alone Insisting To Go Forward With A

SLAPP Motion - No Other Defendant Or Office Was Interested In Working On This
Motion

In this case, at the first defense counsel meeting, Murray was the only attorney who suggested a
SLAPP motion. No one wanted to join in the work for preparation of a SLAPP motion. Murray was the
only attorney who articulated a theory to support the SLAPP motion, specifically all of the elections and

advocacy attendant to such elections. (Murray Dec § 49)

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For have successfully prosecuted the SLAPP motion to ruling, Murray now seeks the award of fees
for these services, including market rate and a multiplier of 2.0, as the property interest in this result.
(See Flannery v. Prentice 26 Cal.4th 572 (2001) The right to attorneys fees awarded in a case belong to
the attorneys who labored to earn them)

H. As An Accomplished Litigator With Extensive Experience, A Market Rate For

Services Provided In This Matter Should Be Set At $600 Per Hour Before Any Multiplier

The quality of these services are as a direct result of his past experiences as a litigator.

In 1978, Murray began work in the San Francisco District Attorney’s Office as a trial lawyer. He
left June 23, 1983. He completed 50 criminal and one non-criminal jury trials to verdicts. He had
countless court trials, preliminary hearings, motions to suppress, sentencing and evidentiary type
hearings. Many of these trials were against competent and skillful attorneys such as Willie Brown and
F. Lee Bailey. (Murray Dec § 54) Since leaving the District Attorney’s office on June 23, 1983, he
participated in about 50 jury trials to verdict where I was lead or sole counsel for one of the parties.
(Murray Dec § 55)

The total number of SLAPP motions he has brought is at least six and likely more, winning about}
half. He is quite familiar with the concepts embodied in Code of Civil Procedure Section 425.16
(SLAPP) and have been called on in this motion to demonstrate on paper and in oral presentation to the

court that this motion is in keeping with the parameters of this section.

I. Hours Spend And Costs Incurred To Date For The SLAPP Motion

Murray’s office incurred in the presentation of the SLAPP motion 158.95 hours of attorney
work (Murray Dec §/ 61-2Exhibit A) billed at market rate of $600 (Murray Dec {| 61-2, Guilick Dec ff
32-33; Graham Dec {§ 33-35;) (b) the office manager, (see Murray Dec 61-2, Exhibit B,) who bill out
at $100 per hour for 27.5 hours, and his secretary, (see Murray Dec 61-2 Exhibit C) who is normally
billed out at $60.00 per hour, 9.25 hours, for a total of $99,195.75 (Murray Dec 4 61-2)

J. Award Of Fees For A Successful SLAPP Motion Is Mandatory With The Goal Is To
Fully Compensate The Attorney For His Hours At Market Rate And A Multiplier For Risk
Involved

Lawyers must eat, so they generally won't take cases without a reasonable prospect of
getting paid. Congress thus recognized that private enforcement of civil rights legislation
relies on the availability of fee awards: "If private citizens are to be able to assert their civil
rights, and if those who violate the Nation['s] fundamental laws are not to proceed with
impunity, then citizens must have the opportunity to recover what it costs them to vindicate

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 8
Notice of Motion and SLAPP Fee Motion, Points and Authorities27

28

these rights in court." S.Rep. No. 94-1011, at 2 (1976), as reprinted in 1976 U.S.C.C.A.N.
5908, 5910 Moreno v. City of Sacramento 534 F.3d 1106 (9" Cir. 2008)

The same underpinnings related to SLAPP suits.

A fee award under the anti-SLAPP (strategic lawsuit against public participation) statute
should ordinarily include compensation for all the hours reasonably spent, including those
relating solely to the fee. Premier Medical Management Systems, Inc. v. California Ins.
Guarantee Ass'n 163 Cal.App.4th 550 (App. 2 Dist. 2008)

A defendant prevailing on a SLAPP motion must be awarded attorney’s fees and costs. (CCP
§425.16(c)) Such an award is mandatory, not discretionary. A prevailing defendant is entitled to a
reasonable amount of fees and costs to award, including an enhancement of the fees by a multiplier.
(See, e.g., Ketchum v. Moses 24 Cal.4th 1122, 1131 — 1132 (2001))

K. Substantial Work Was Required To Secure A Successful Result

Where, as here, the activity protected by SLAPP is not readily apparent, requiring extensive
work, the work of the attorney should be recognized. For example, the court recognized that a 345
hours spent on a SLAPP motion was not excessive, where issues in the anti-SLAPP motion were not
straightforward. Premier Medical Management Systems, Inc. v. California Ins. Guarantee Ass'n 163
Cal.App.4th 550(App. 2 Dist. 2008) Here, the attorney’s work was approximately 159 hour, given the
extensive nature of the documents and time frame involved. It should, none the less, be the subject of
proper, full and adequate compensation for the hours spent and the risk involved. An attorney fee
award under THE SLAPP statute will not be set aside absent a showing that it is manifestly excessive in
the circumstances. Mallard v. Progressive Choice Ins. Co. 188 Cal.App.4th 531(App. 4 Dist. 2010)

L. The Novelty And Difficulty Of The Questions Involved

In Ketchum v. Moses, the California Supreme Court approved a fee multiplier of 2.0 “based on
the contingent risk of nonpayment and the exceptional quality of representation.” Ketchum 24 Cal.4th
1122 In Ketchum, the lodestar is the basic fee for comparable legal services in the community; it may be
adjusted by the court based on factors, as listed here. For example, the tentative ruling demonstrates
that sifting through the claims to get to the essence of the matter was not an easy task. Getting the
understanding that all of the theft, conspiracy and embezzlement claims originate with advocacy and or
a vote, hence protected activity, was difficult.

i
Mt
Ml

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 9
Notice of Motion and SLAPP Fee Motion, Points and AuthoritiesM. The Skill Displayed In Representing The Litigants
After spending a hundred hours preparing papers to demonstrate the protected nature of the
defendants conduct, and having lost the tentative, Murray went forward at the hearing with oral

argument and convinced the Court of multiple protected activities involved, thus reversing the tentative.

N. The Contingent Nature Of The Fee Award.

With the historical risk of loss in this instance being at least fifty percent (50%), the
corresponding multiplier should be at least 2.0, to mathematically adjust for the risk of loss. (Murray
Dec 473) And even with a win, most of the awards for SLAPP suits have not been paid. (Murray Dec 4]
70)

The risk of loss for this type of motion is further increased, where, as here, the charges are
flamboyant and the protective activities hard to discern. (Murray Dec § 69)

Finally, the entity for which each of these individual defendants labored has refused to pay for
their defense in this matter. (Murray Dec § 72) Much of the billing for the US District Court matter has
never been paid. And, it appears likely that the same will result in the billing for this matter, absent an
award by this court. (Murray Dec § 67)

Fee enhancements are intended to compensate for the risk of loss generally in contingency cases
(Beasley v. Wells Fargo Bank 235 Cal.App.3d 1407, 1419 (1991)) In cases involving enforcement of
constitutional rights, but little or no damages, such fee enhancements may make such cases economical]

feasible to competent private attorneys. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1172

oO. Significant Awards For SLAPP Motions Are Not Unusual

An attorney fees award of $130,506.71 awarded for a SLAPP motion reasonable, where movant's|
counsel submitted declarations of their experience and expertise, information supportive of rates charged
by counsel, itemized accounting of attorney, and expert testimony that rates requested by counsel were
well within range of market rates charged by attorneys of equivalent experience, skill and expertise.
Church of Scientology v. Wollersheim 42 Cal.App.4th 628, (App. 2 Dist. 1996) In Ketchum, the trial
court awarded Moses fees of about $300,000, which was upheld by the Supreme Court.

Where, as here, the award is based on itemized billings and excluding fees for a related federal
district court proceeding, an award is proper. Macias v. Hartwell 55 Cal.App.4th 669, (1997)
Ml
Il

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 10
Notice of Motion and SLAPP Fee Motion, Points and Authorities27

28

Ill. CONCLUSION

For the foregoing reasons, this Complaint should be dismissed with prejudice, judgment should
enter for these defendants, and attorneys fees and costs should be 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, SHEDRICK McDANIELS, and the SAN FRANCISCO DEPUTY SHERIFF’S
FOUNDATION, against Plaintiffs JOHNA PECOT, THOMAS ARATA, RICH OWYANG,
STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR. pursuant to Code of Civil Procedure §
425.16.
Dated: November 9, 2011 Respectfully Submitted,

MURRAY & ASSOCIATES

CPiuceee Yh
By: LAWRENCE D. MURRA
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 11
Notice of Motion and SLAPP Fee Motion, Points and AuthoritiesATTACHMENT ONE

TOTAL FEES AND CHARGES CLAIMED

BY MURRAY & ASSOCIATES FOR
THE CCP 425.16 MOTION (SLAPP)
Lawrence D. Murray 158.95 @ $600 =$93,925.00
(Murray Dec Exhibit A)
Office Manger for Murray & 27.50 @ $100 = $2,750.00
Associates
(Murray Dec Exhibit B)
Secretary for Murray & 9.25 $555.00
Associates
(Murray Dec Exhibit C)
Costs / filing fees First doc & filing fee/ copy $1965.75
(Murray Dec Exhibit D) costs
TOTAL $99,195.75
Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 12

Notice of Motion and SLAPP Fee Motion, Points and Authorities27

28

PROOF OF SERVICE

1 am 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 NOTICE OF MOTION AND MOTION FOR
CONTINUED SPECIAL MOTION TO STRIKE - 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)] (Declaration of Lawrence D. Murray, John Gulick, David Wong, and
Mathew Graham) 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 S. Stern

2560 Ninth Street, Suite 213 Lara Cullinanae-Smith

Berkeley, CA 94710 Rains Lucia Stern, PC

Tel: (510) 549 5900 2300 Contra Costa Blvd., Suite 500

Fax: (510) 549 5901 Pleasant Hill, CA 94523

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

[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).

{ ] [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 November 9, 20] 1.

Veto Ma

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 13
Notice of Motion and SLAPP Fee Motion, Points and Authoritieste

Lawrence 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 ZEHNAR T

BRIAN SAVAGE and SHEDRICK McDANIELS Superior Cour: of Califomia

‘Sunty of San Francisco,

Now 10 2011
CLERK OF IME COURT (
BY: Sueverlenl Tes
ne ae Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC — 10 -501168
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually DECLARATION OF MATTHEW GRAHAM
and on behalf of all other similarly situated IN SUPPORT OF CONTINUED SPECIAL
MOTION TO STRIKE - SLAPP
Plaintiffs, APPLICATION FOR AWARD OF
v. ATTORNEY FEES OF $99,195.75 &
MULTIPLIER AGAINST JOHNA PECOT,
SAN FRANCISCO DEPUTY SHERIFF’S THOMAS ARATA, RICH OWYANG,
ASSOCIATION, a California Nonprofit STEPHEN TILTON, JOSEPH LEAKE, and
Corporation, SAN FRANCISCO DEPUTY OSCAR TAYLOR [CCP 425.16]
SHERIFF’S FOUNDATION, a California
Nonprofit Corporation, DAVID WONG, an Date: December 19, 2011
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. FAX

I, Matthew Graham, declare:
A. Introduction and Experience

1. Iam an attorney licensed to practice law in the Courts of California and in the United States

Courts, including the Ninth Circuit Court of Appeal.

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 1
Graham Declaration In Support of Award of Fees & Costs On SLAPP Motion2. T have continuously been in the active practice of law since 1980, for a total of thirty one
years as a litigator.

3. While in Law School, I became familiar with the staff and practices of the Law and
Motion department of the Superior Court of San Francisco having clerked for the Honorable Ira Brown.

4, Since having worked in the Law and Motion Department of the San Francisco Superior
Court, I have worked in no less than three major firms, and witnessed the billing practices, market rate
assessment and collection (to a lesser degree) for each of these firms.

5. And, I first became familiar with Mr. Murray as an active litigator in the practice of law
about 20 plus years ago. I have witnessed his work off and on as a litigator over this period of time.

B. Educational Background & Specialty

6. I received my B.S. Degree in 1977 and my J.D. in 1980, both from University of San
Francisco.
7. I am a member of the litigation section of the State Bar of California.

Cc. Litigation Experience In Complex and Involved Issues And Claims
8. I am currently an attorney doing litigation with Wendel Rosen Black & Dean LLP.

9. Currently, I am a member of the construction practice group. As such all of the claims
and issues which I come in contact with generally have a degree of sophistication to them not unlike a

SLAPP motion.

10. Thave a high degree of familiarity with the litigation of sophisticated issues and the
corresponding fees incurred by my firm and other firms in litigating claims. Because I have represented}
owners, contractors, design professionals and sureties in a wide array of construction litigation
throughout California and the western states I have witnessed the legal fees incurred and the

corresponding assessment of applicable market rates.

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 2
Graham Declaration In Support of Award of Fees & Costs On SLAPP Motion
014912.0010\2144028.227

28

u. lam familiar with the unique needs of clients in litigations, having litigated several
difficult, complex and sensitive matters for the City of Oakland.

12. From 1986 to 2002, I served as Chief Litigation Counsel in California for one of the five
largest general contractors in the United States.

13. Because of the breadth of litigation experience and successes I have represented clients in|

a wide range of industries including airline, banking, construction, health care, retail, software and

hardware, telecommunications, temporary labor, and trucking.

14, I supervised complex construction litigations involving issues of payment, licensing,
construction defects, design failures, mechanic’s liens, and stop notices, and have noticed the costs and
fees incurred in doing so.

15. Ihave advocated and defended claims for delays and extras involving damages in the
hundreds of millions of dollars, and have noticed the costs and fees incurred in doing so.

16. Ihave also attacked and defended numerous awards under Public Contract Code’s
“subletting and Subcontracting Fair Practice Act,” and have noticed the costs and fees incurred in doing
so.

17. My litigation has not been limited to just the Superior Court. I have tried or arbitrated
more than 30 construction disputes and successfully mediated or resolved countless more. And as part
of doing this job I have noticed the costs and fees incurred in doing so.

18. Ihave recovered $15.5 million in delay damages in extras from the City of Beverly Hills
for the general contractor who built the city’s new Civic Center.

19. I have recovered $1.8 million from one of the largest mechanical contractors in the U.S.

who abandoned a winery project in Northern California.

Pecot, et al. vs. SEDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 3
Graham Declaration In Support of Award of Fees & Costs On SLAPP Motion
014912.0010\2144028.220. As a litigator my job is not just to present a case in court but to also see if I can settle the
claim so that it does not need to get to court. I successfully negotiated contractor and subcontractor
claims in excess of $2.5 million on the State’s Pelican Bay Prison Project.

21. I successfully negotiated over $20 million of contractor and subcontractor claims on the
State Office Building in San Francisco.

22, I successfully negotiated a surety’s payment of more than $2.5 million from the City of
Los Angeles to a general contractor client and its surety for delays on several projects taken over by the
client after abandonment by the previous contractor.

23. I successfully negotiated the resolution of claims in excess of $1 million on AC Transit’s
Oakland headquarters building.

24, I successfully negotiated more than $4 million in subcontractor claims on the Theo Lacy
Jail in Orange County.

25, I recovered $950,000 (including attorneys’ fees) for a property owner after a three week
jury trial for damage to property caused by earth movement.

26. I recovered $875,000 (including attorneys’ fees) from a developer after a two week trial
for a local general contractor who had been unfairly back-charged by the developer.

21. I successfully negotiated on behalf of the owner and general contractor of a large hotel in
San Francisco the settlement of some twenty subcontractor claims for project acceleration in the total
amount of $7 million.

28. In all of my practice in these and other endeavors, I have more than a passing familiarity
with the costs and expense for such litigation, and more specifically, generally speaking the fees for suc!

litigation.

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC — 10 — 501168 Page 4
Graham Declaration In Support of Award of Fees & Costs On SLAPP Motion
014912.0010\2144028.2Cc. The Claims Brought By Plaintiffs Have A Tendency To Chill, Silence And Halt
Others From Seeking To Be Elevated

29. The use of a law suit has a tendency to cause those who might want to participate in
litigation to secure their rights to avoid seeking a recovery for their losses. This is also true in the
construction industry. The need to permit individuals to participate in public discussion is an important

public function which should be enforced in my field as with any other.

D. Familiar With Mr. Murray’s Stewarding In This Series of Suits and Litigation And
The Market Rate For Similar Competent Diligent and Skillful Advocacy

30. I am familiar with the need by competent and skillful counsel to thoroughly investigate
and research a claim or defense in order to properly represent the client. | have worked with Mr. Murra’
in one case in which he was lead trial counsel and did an outstanding job in presentation of the case,
cross examination, and securing a twelve million dollar result. His work demonstrated the effect of
competent counsel properly presenting such a claim.

31. Lam familiar with Mr. Murray’s unique strategies to successfully combat persistent,
frivolous and meritless claims. It takes skillful lawful strategy to put an end to such meritless litigation.

32. And, I am familiar with the unique difficulties presented by a SLAPP motion and the
analysis for such a motion, and have reviewed the underlying facts and motion filed in this case.

E. Mr. Murray’s Services Have A Market Rate Of $600 Per Hour

33. In my opinion his efforts and skills, as well as ability to see a strategy and carry it out
when others, including myself, did not see it, demonstrate that with his 33 years of practice, Mr. Murray}
has demonstrated that he is a wise and skillful attorney, and as good as they get in any office and would
have a value of $600 per hour for his services.

34, With my experience in billing by firms where skillful senior counsel perform in complex

matters involving services similar to those provided in preparing a complex SLAPP motion, it has been

Pecot, et al. vs. SFDSA, et al.; San Francisco Superior Court No: CGC - 10 ~ 50116