Motion-Secondary: 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

Jan-17-2012 04:18 pm

Case Number: CGC-10-501168
Filing Date: Jan-17-2012 04:17
Juke Box: 001 Image: 03455307
DECLARATION OF

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

001003455307

Instructions:
Please place this sheet on top of the document to be scanned.nA vw BF WwW N

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PAUL L. KRANZ, ESQ., SBN 114999

LAW OFFICES OF PAUL L. KRANZ F I D
kranzlaw@sbcglobal.net b rior Court
760 Nia A Street, Suite +3 San Francisco ‘ounty Supe

erkeley, California
Telephone: (510) 549-5900 JAN 17 2012
Facsimile: (510) 549-5901 CLERK OF THE COURT
Attorneys for Named Plaintiffs BY. —— pet aa Ck
Johna Pecot, ef al., and all others similarly situated y

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

JOHNA PECOT, THOMAS ARATA, RICH Case No.: CGC-10-501168
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually and | DECLARATION OF PAUL L. KRANZ IN
on Behalf of All Others Similarly Situated, SUPPORT OF PLAINTIFFS’ OPPOSITION
Plaintiffs TO DEFENDANTS’ “MOTION TO
> STRIKE-SLAPP APPLICATION FOR
v. AWARD OF ATTORNEY FEES OF

$99,195.75 & MULTIPLIER OF TWO”
SAN FRANCISCO DEPUTY SHERIFF’S

ASSOCIATION, a California Nonprofit Date: January 31, 2012
Corporation, SAN FRANCISCO DEPUTY Time: 9:30 a.m.
SHERIFF’S FOUNDATION, a California Dept: 302
Corporation, DAVID WONG, an individual,

MICHAEL ZEHNER, an individual, BRIAN Trial Date: None

SAVAGE, an individual, SHEDRICK
McDANIELS, an individual, and DOES 1-100,

Defendants.

I, Paul L. Kranz, declare as follows in support of Plaintiffs’ Opposition to Defendants’ “Motion
to Strike-SLAPP Application for Award of Attorney Fees of $99,195.75 & Multiplier of Two”:

1. I am an attorney duly licensed to practice in all courts of the State of California, and am
the principal at the Law Offices of Paul L. Kranz, and am counsel of record for Plaintiffs JOHNA
PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR
TAYLOR (hereinafter collectively “Plaintiffs”). I have personal knowledge of the information set
forth herein, unless noted as based on information and belief, all of which is true and correct of my

own personal knowledge, and if called upon to testify, I could and would competently testify thereto.

-1-
DECLARATION OF PAUL L. KRANZ IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS"
“MOTION TO STRIKE-SLAPP APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 &
MULTIPLIER OF TWO”-—

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2. My office prepared the Opposition, related declarations and evidentiary objections to
Defendants DAVID WONG, MICHAEL ZEHNER, BRIAN SAVAGE, and SHEDRICK
McDANIELS?’ (hereinafter collectively “Defendants”) Anti-SLAPP motion, I also argued the motion
at the Anti-SLAPP hearing on July 7, 2011. My office billed less than 30 hours in total opposing the
Anti-SLAPP motion, which includes reviewing Defendants’ moving papers, reply, and exhibits,
researching and drafting the opposition, and arguing the motion at the hearing.

3. Attached hereto as Exhibit A is a true and correct copy of the Declaration of Lawrence
D. Murray in Support of Motion for Attorneys Fees. Mr. Murray’s Declaration includes numerous
typographical and grammatical errors and incomplete sentences, which are underlined in red in the
attached declaration.

4. Attached hereto as Exhibit B is a true and correct copy of the Declaration of David
Wong in Support of Motion for Attomeys Fees. Mr. Wong’s Declaration includes numerous
typographical and grammatical errors and incomplete sentences, which are underlined in red in the
attached declaration.

5. Attached hereto as Exhibit C is a true and correct copy of the Declaration of David
Wong in Support of Anti-SLAPP Motion. Mr. Wong’s Declaration includes numerous typographical
and grammatical errors and incomplete sentences, which are underlined in red in the attached
declaration.

6. Attached hereto as Exhibit D is a true and correct copy of the Declaration of Marcia A.
Pollioni in Support of Motion for Attorneys Fees.

7. Attached hereto as Exhibit E is a true and correct copy of the Defendants’ Notion of
Motion and Memorandum of Points in Support of Anti-SLAPP Motion.

8. Defendants’ counsel improperly seeks to recover a substantial amount of fees either
unrelated to the Anti-SLAPP motion or for ordinary litigation and administrative activities, which are
not a proper basis for attorney’s fees reimbursement under the Anti-SLAPP statue. The following is a
non-exhaustive list of activities that are not related to the Anti-SLAPP motion or the fee motion and
are, therefore, not recoverable:

-2-
DECLARATION OF PAUL L. KRANZ IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS:

“MOTION TO STRIKE-SLAPP APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 &
MULTIPLIER OF TWO”oO Om YN DH BB WB Ww

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© The Complaint in this action was not served on Defendants until March
21,2011. Thus, Defendants had not even received a copy of the state
court complaint when these entries were purportedly made:

o 7/1/2010: 07:00 phone call and email from David Ongaro that Wong has been
sued again, many of the same allegations and same theories with many of the
same plaintiffs, go to the court web site and pull it up, copy and read, 8:10 email
to David Wong, with a copy of the law suit, then check Civil Code Section
425.16 and cases on SLAPP, including EATON, since it was not an official
proceeding of a legislative or judicial nature, then call Ongaro and two calls to
Wong, re: Judicial Estoppel and SLAPP - will wait for suit to be served per
discussion with Wong 10:05. 3.08 hrs., $1,850.00

© 7/7/2010: receive communications from david to union attn, read and file for
possible use in the SLAPP motion. 0.17 hrs., $100.00

e These fees would have occurred in the ordinary course of litigation regardless of
whether or not Defendants filed the Anti-SLAPP motion (see Christian Research
Institute v. Alnor, supra, at 1325)!:

o 4/1/2011: meeting with client - apprised of the new suit and asked to protect
them - go over claims in the suit, call to Ongaro and get more information,
action plan prepared to get more information and to see if this is service of the
complaint by leaving it in his box at work. LDM to prepare letter to Paul
(plaintiff's attorney) once David makes further inquiry requesting dismissal.

2.33 hrs., $1,400.00

© 4/7/2011: 12:30 travel to meeting, 13:00 meeting with DSA president and the
attorneys for DSA, Ongaro and my client, joint defense meeting, discussion and
urge all to join ina SLAPP motion with me, since the claims are stale and we
have a “dismissal with prejudice” they cannot make their side of the SLAPP
when the burden shifts, then leave DSA hall and private meeting and discussion
with Ongaro 14:25. 1.92 hrs., $1,150.00

© 4/9/2011: 11:05 continue to research to find cases on point for this type of issue,
building forms for use in the case 16:35 then continue to diagram out the
complaint and the federal complaints to demonstrate that all of the allegations

' Several of these entries include the preparation of a chart comparing the federal and state court actions. Defendants’
counsel billed nearly 30 hours for the preparation of the chart and the related correspondence with Plaintiffs’ counsel.
Defendants’ counsel included the chart in a letter to Plaintiffs’ counsel on April 14, 2011. (See Murray Decl. in Support of
Anti-SLAPP Motion at Exhibit 15.) The April 14, 2011, letter did not include any reference at all an Anti-SLAPP motion.
The correspondence discussed Defendants’ intentions to seek sanctions in federal court and gives a deadline of twenty-one
(21) days to dismiss the state court action. Subsequently, on April 15, 2011, Defendants’ counsel sent Plaintiffs’ counsel
another brief one paragraph letter threatening an anti-SLAPP motion, with a five (5) day deadline. (Id, at Exhibit 16.)
Comparing the two letters, the anti-SLAPP motion was clearly an afterthought. Arguably, it evidences that Defendants’
counsel’s time records are either not contemporaneous or have been edited to reflect more work associated with the Anti-
SLAPP motion than actually occurred. The chart and corresponding April 14" letter were not related to the Anti-SLAPP
motion and, therefore, the fees incurred should not be recoverable,

-3-
DECLARATION OF PAUL L. KRANZ IN SUPPORT OF PLAINTIFFS” OPPOSITION TO DEFENDANTS”
“MOTION TO STRIKE-SLAPP APPLICATION FOR AWARD OF ATTORNEY FEES OF $99, 195.75 &
MULTIPLIER OF TWO”oD Oe I DH eB WY

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from Federal Court have been transferred over - chart to be ready for discussion
with David Wong 19:50. 8.75 hrs., $5,250.00

4/13/2011: ...complete the comparison chart and go through each of the Federal
Complaints, the State Complaint and exhibits for comparison of the Federal
court matter, the state court pleading, and the rulings by the Deputy Sheriffs
Board of Directors, pull and review transcripts of proceedings, print out and
continue... 10.83 hrs., $6,500.00

4/20/2011: 11:00 with david wong working on the declaration and getting
documents for it. (searching through discs with documents on them, printing as
we find them} 14:00. 3.00 hrs., $1,800.00

e Defendants’ counsel cannot charge fees to adversary that would not normally be
charged to client including travel time and administrative activities:

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5/24/2011: call to court and check tentative to check with court to see that the
case was continued. 0.17 hrs., $100.00

6/8/2011: received It to court continuing matter for hearing per our agreement,
calendar. 0.17 hrs., $100.00

W7/2011: ...8:50 leave for court, 9:20 arrive and sign in...11:10, leave and
return to office, 12:35... 1.75 hrs., $1,050

7/18/2011: receive phone call from the clerk, final ruling is on line, read the
ruling, only part of it is on line, then contact clerk, she will get Court’s web site
staff to post it all correctly. 0.25 hrs., $150.00

7/19/2011: receive phone call from the clerk, final ruling is on line correctly,
pull copy, prepare order per the court order, send to attorneys with request that
Paul Kranz sign and return. 0.92 brs., $550.00

* Defendants’ counsel’s fees not recoverable because they are completely unrelated to the
Anti-SLAPP motion:

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7/27/2011: 11:05 phone calls with David Ongaro, discussion of next steps, then
research on Mo for Security; secure section and cites, research mo for dismissal
per 425.15 for failure to secure court approval for claims against officers of
nonprofit, and then research sections and cases on motion for SLAPP fees,
prepare letter to attorney for Plaintiffs, send and copy all counsel and all clients,
mail also to the clients15:00. 3.92 hrs., $2,350.00

10/27/2011: research slapp stay and then prepare cover letter and opposition to
their request for PMK Depositions. 1.00 hrs., $600.00

-4-

DECLARATION OF PAUL L. KRANZ IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS”
“MOTION TO STRIKE-SLAPP APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 &
MULTIPLIER OF TWO”Bw N

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Seer set

Based on the foregoing, Defendants’ counsel improperly seeks fees for 38.51 hours ($23,106)
of work that was not directly related to the prosecution of the Anti-SLAPP motion. In addition to the
above block billing entries, Defendants’ counsel improperly seeks to recover fees paid to his office
manager ($2,750.00) and secretary ($555.00). The Anti-SLAPP statute provides for the
reimbursement of attorney's fees only, not administrative fees which are normally not chargeable to
the client in any event. Thus, at a minimum, Defendants’ fee demand should be reduced by 38.51
hours in attorney time, and $26,411 overall.

9. Attached hereto as Exhibit F is a true and correct copy of the Declaration of Robert
Trevizo.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct and that this Declaration was executed on this 17th day of January 2012, in San

Pout >

Paul L. Kranz

Francisco, California.

AJH.20350241 doc

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DECLARATION OF PAUL L. KRANZ IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS”
“MOTION TO STRIKE-SLAPP APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 &
MULTIPLIER OF TWO”EXH\OIT
Afy

Lawrence D. Murray (SBN 77536)
MURRAY & ASSOCIATES

1782 Union Street

San Francisco, CA 94123

Tel: (415) 673-0555 Fax: (415) 928-4084

Attomey 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,
ve

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.

I, Lawrence D. Murray, declare:

Case No. CGC — 10 -501168

DECLARATION OF LAWRENCE D.
MURRAY IN SUPPORT OF CONTINUED
SPECIAL MOTION TO STRIKE - SLAPP
APPLICATION FOR AWARD OF
ATTORNEY FEES OF $99,195.75 &
MULTIPLIER AGAINST JOHNA PECOT,
THOMAS ARATA, RICH OWYANG,
STEPHEN TILTON, JOSEPH LEAKE, and
OSCAR TAYLOR [CCP 425.16]

Date: December 19, 2011

Time: 9:30 a.m.

Dept: 302

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

Courts, including the US District Courts and the Ninth Circuit.

2. Ihave continuously been in the active practice of law since 1977.\

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Dernt eral we CECA atal: Can Geancicen Cnnesias MCauet Ma: COO If. H114e8

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My
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A. My Education, Background, Training and Experience

1 graduated from San Francisco State College in 1973 with a Bachelor of Arts degree in Speech
Communication.

While at San Francisco State College, I began my education on issues in labor and employment

law in addition to courses on Constitutional Law and General Civil Law.

B. Experience In Litigation

T graduated San Francisco Law School in 1977. I was first sworn in as an attorney in 1977 and
immediately went into private practice. As of December 28, 2011, I will have been in litigation
for the past 34 years.

On entering the practice of law I soon found that I needed to gain jury trial experience in order to
perform in a skillful manner to protect the interests of my clients in trial.

On leaving the San Francisco District Attorney’s office on June 23, 1983, I went into private
practice on my own.

Many, if not most, of the cases which I filed that were set for trial were protracted litigation. For
example, the first case | filed and went to trial on was on behalf of Debra Bailey in a matter
entitled Bailey v. Foodmaker, in Alameda County Superior Court, for a woman who was injured
by her employer in the course of serving food. Her claims included claims for discrimination,
retaliation, and deprivation of her right to consult counsel. Her injuries included systemic
methacellin resistant staphylococcus auras, which was debilitating at times, nearly fatal. The trial
occurred in about 1986 or 1987, and resulted in a jury award for plaintiff of approximately $1.6
million and many tens of thousands of dollars to her boyfriend for his associate injuries. The
motion for new trial resulted in a reduction of the award from about $1.6 million to $500,000.
The Court of Appeals increased the award to $750,000.

I have previously tried numerous cases to verdict involving protracted and difficult litigation
which required an extensive understanding of complex litigation procedures and tactics.

This case and the predecessor case with these same claims in Federal Court which was also

dismissed, required the same level of skill and experience.

Pecot. et al. vs. SEDSA. et al San Francicen Snnenar Cand Nine COOP In ealisg >.... Over the approximate last 20 years, I have previously filed approximately six Special Motions To|

. It is my experience that this area of the law is still developing and not necessarily decided with a

. Numerous cases required extensive litigation beyond the monetary value of the case simply

. This appears to be driven by anger at the plaintiff's not getting their way where Defendant Wong|

. With the filing of the prior case, the first Complaint, the US District Court matter, the plaintiffs

. The plaintiffs in this case, by in large, are the old guard management in the sheriff's office.

Cc. Experience With Protracted Litigation And SLAPP Motions

Strike, being successful on about half of those, and having gone up on appeal on at least two of
them. [ have prepared the briefs and, when necessary, argued the appeals in the Court of Appeals|
for the Third District (Fresno) and the Sixth District (Santa Clara).

great degree of certainty. Over the years some cases have taken an inordinate amount of time and
energy. And, Courts all over the state may have a tendency to take a totally different view of the

same factual pattern making the outcome anything but certain.

D. Hostility & Anger At The Union Officials Advocacy, the Membership and Board
Votes And Decisions Are Driving This Case In Federal Court And Here In Superior Court

because of the emotional hostility by one side or another. This is one of those cases.

and the Board of Directors of the Defendant organization found their prior complaints to be

meritless.

appeared at a news conference at the front of the US District Court building, which they called
and which was aired on bay area television, I believe ABC Channel 7, in which they referred to
these defendants akin to being thieves, thugs, and likened the defendant union for which they
were the union officials (the San Francisco Deputy Sheriff's Association) to the organized
crime. This after their complaints to the union and the vote of the membership and the vote of
the board of directors did not go they way they advocated. Their anger in not getting their way

in the various elections seems boundless.
E. Plaintiffs Are The Old Guard Of The Department Resistant To Change
There actions appear more than a personal vendetta against these Defendants and the union

itself. They represent the departments older generation of management of the in the Sheriff's

office are present in the form of the number three in command of the San Francisco Sheriff's

Pecot. etal ve SEDSA eral- San Prancieen Sunanar Caust Ne COC. 10. £91149 Denn td19.

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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 other in
the Sheriff's Department. They sue to have the U.S. District Court and this Court overtum
various elections, unseat various candidates, complain about political contributions to the

various elected positions in the State and or remove various directors of the SFDSA.

F, Plaintiffs Have Been Repeatedly Told They Have No Case

. These plaintiffs have had it repeatedly pointed out to them that their claims have no merit. They

jointly complained to the board of directors repeatedly. After an investigation, each complaint
was denied by an independent board. (See prior Declaration of Lawrence D. Murray In Support

of SLAPP Motion, the Complaint filed by these plaintiffs, Exhibit 1, sub exhibit G)

. Then they brought their claims to the US District Court. In going to court, the Board of

Directors appointed another committee, the “Special Litigation Committee.” which reviewed
each of the claims and again denied the validity of any and all of the claims. (See prior
Declaration of Lawrence D. Murray In Support of SLAPP Motion, the Complaint filed by these
plaintiffs, Exhibit 2)

Then the US District Court, on our motion, indicated it would likely dismiss these claims, and
Plaintiffs stipulated in writing to a dismissal of the claims with prejudice. Now they bring them
in this court again, for the fourth time by this order on the SLAPP motion. (See previously filed
Declaration of Lawrence D. Murray In Support of SLAPP Motion, the Complaint filed by these
plaintiffs, Exhibit 3)

. This case is about claims by plaintiffs against the words used, the advocacy and statements in

the various elections by defendant Union officials arising out of numerous membership and
board of director elections, most of them going back to 2002 and 2003. 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. Wong is sued for making various proposals and statements
during each of the membership elections and board elections , and the other individual
defendants as treasurer for making payments as directed by the board. Public advocacy, as well

as the results of the open election are protected under SLAPP.

Pecot. et al. vs. SFDSA. et al: San Francicen Sunenar Cand Ne COC 1A. 

3

.

G SLAPP Protected Activity Was Throughout The Complaint

. After reading the Complaint in this matter it was my professional belief that it was based in large
part on claims related to protected First Amendment activities covered by the SLAPP statute.
Specifically:

i. Protected Activity: Dues Election and Board Authorized Expenditures For Salary

22. 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 { 19-20) Wong
and other individual defendants were sued for the statements made by them in fliers during the

election and made to influence the vote. (previously filed Wong Dec # 19-24)

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

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

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”)
24. Wong and the other individual defendants were sued for statements made in relationship to
leaving Operating Engineers Local 3 (OE3) paragraph 46; “Defendant WONG disseminated a
bulletin to SFDSA members dated May 30, 2008 regarding the proposed increase in dues to
OE3.” (previously filed Wong Dec ] 38) and the decision to leave OE3 by vote of the board.
iv. Protected Activity: Vote & Board Decision to Lease or Purchase of A Building

25. Plaintiffs (¥ 38) that Wong leased for a headquarters for the SFDSA” without appropriate
NS at von

approval.” The decision of the Board of Directors, since it could not find a place it could buy,
was a decision to rent a location. (previously filed Wong Dec 43-44)

v. Protected Activity: Decision to Make Political Contributions

26. The plaintiffs sue because they disagree with the political contributions made by vote of the

board of directors. (Complaint, ] 74)

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

27. Plaintiffs Arata and Pecot were removed from the SEDSA by a vote of the membership (4 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).”
OT

Denne at al on COTMCA «ol.H. 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.

28. {n my assessment, this was not going to be an easy motion. And, this motion would not have a
probability of success because the complaint was (a) inflammatory about theft and misleading
statement and (b) not cloaked in normal “free speech” issues. Indeed, the tentative ruling by the
_—-
court was to deny the motion.

29, And, any endeavor to present a SLAPP motion would require a very detailed analysis and
supporting documents to prove that the origin of the complaints by plaintiff were protected
activities.

30, In Federal Court and in this court, plaintiff complain bitterly about theft and conduct amounting
to conspiracy to steal the union funds. They couched each of their complaints in a number of
compelling terms, including theft, RICO, and other various forms of illegal activity.

31. In order to expose the essence of these Complaints arising out of numerous protected activities,
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 thousand of dollars of union funds. What they did
not note was that the payments to Defendant Wong were his salary, 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 other activities and finally, 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.

32. And as to the claim that David Wong stole the money and was not due this money, another
investigation occurred by the Union's board of directors years ago and later during the federal
litigation going through many years of salary payments. The audit demonstrated a pittance of
overpayment, less than one percent of his total salary, which he immediately repaid years ago
when it was first discovered.

33. None of this was mentioned in the Superior Court Complaint, though defendants were made
aware of most of the accurate history prior to and again in Federal Court.

34. So the process of preparing the SLAPP motion and the declarations required many many hours

and numerous days of sitting with Mr. David Wong and sifting through boxes and discs of Union

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36.

I.

Burden of the Burden Shifting Analysis — Essential For A Successful Motion
37.

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documents from 2010 going back to 2000. It required viewing every form of board minutes,
correspondence, communications and notes, as well as the advocacy pieces which were the
subject of the suit, including the plaintiffs claims that by advocating for increased union dues,
plaintiffs had a “contract,” plaintiffs could sue on to enforce and make the subject of return of
funds to them in the Federal Court matter and here.

And the basis for the claims required extensive data research to find the documents to
demonstrate the true underpinnings of the case. In fact, at the hearing on the SLAPP motion,
Plaintiffs attorney Paul Kranz continued to argue that their case was about theft. I continued to
prepare to be able to demonstrate that this case is not about theft but that that the funds were
specifically authorized by votes, such as Wong’s salary or the change in union affiliation, that the|
votes were protected activities, and that the true history was that the votes and statements made
by the Union officials in the various votes were the source of the complaints, (eg. had Wong not
made a speech or sent a flyer upon which he demonstrated the need for a dues increase or a need
to exclude the management staff from the union, there would be no suit for breach of “contract”
or wrongful exclusion claims.) It was the decision from the various votes and the statements
during the voting process that was the basis for suit.

While the entire cases is covered with inflammatory materials about how these individual union
officials, each defendants, stole hundreds of thousands of dollars, and cheated the union and its
membership, included allegations of RICO and theft, much of the plaintiff's case is grounded in
claims that these officials did not live up to their alleged statements made in the heat of the
Union elections. The thrust of the suit is that David Wong should not have been paid a salary,
and that any payments were theft. Another claim was that Wong and the union should not have
voted to drop the affiliation from one union to another. Another claim was that various plaintiffs
should not have been excluded from the Union by way of a membership vote redefining who was
entitled to be a member. Getting past the inflammatory allegations to the root of the dispute and|

demonstrating that the root was protected activity was a challenge and a lot of work.
Substantial Work Was Needed To Demonstrate That Plaintiffs Could Not Meet Their

It was also incumbent on these individual defendants to demonstrate that plaintiffs had no likely

chance of sustaining their burden in the case to make sure that if the court found that the

Dean eptal we GSEICA atal: Gan TCennricen Ginanare Manet Ma (UO TN fnt1ZEe D...7y

individual defendants meet their burden, there was nothing to support a claim that plaintiffs
could 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 pains taking 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.

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

38. In an effort to stop this before it got started, on or about April 4, 2011, when the Complaint was
served on Mr. Wong and other individual defendants, I sent my letter to plaintiff's counsel asking)
the date that service was affected and requesting a dismissal as they had already stipulated to a
dismissal with prejudice for the individual defendants.

39. When I did not get a response to the request for a dismissal, and no return phone calls, on or
about April 14, 2011, I 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.

40. When I got no response and no return phone calls, on April 15, 2011, L wrote to the attorney for

plaintiffs specifically calling to his attention that. “Your complaint is an attempt to restrict

defendants’ First Amendment rights and punish them for having exercised those rights. Failure
to dismiss the action will be cause for a SLAPP motion pursuant to CCP $425.16. I will file suchl
motion if I do not have a filed Request for Dismissal within five days. There is no other choice,
because there is a response due to the Complaint shortly.”

41. On April 25, 2011, I received a call from counsel for plaintiff in which he wanted to debate the
issue and challenged me to lay out each of the First Amendment type claims. Further debating
was fruitless. Nothing I said seemed to create any understanding of the nature of the protected
activity. This motion followed.

42. Ultimately, these defendant's were successful in securing an order of the court granting the

SLAPP motion, only after the court took about eleven days to finalize and post its order.

Plaintiffs continue to dispute the basis for the order and have not, as of yet, signed the order.

ye oo - —k.

Order To Secure A Proper Dismissal For These Individual Defendants

43,

44.

45,

46.

47.

L.

Motion - No Other Defendant Or Office Was Interested In Working On This Motion
48.

ee we

This Series of Suits and Litigation Required Competent Diligent and Skillful Advocacy In

In order to prevail on this motion I started by investigating and research the various defenses in
order to properly represent the client. I have for 33+ years, been diligent in doing just that for my
clients. I routinely formulate unique strategies to successfully combat persistent, frivolous and
meritless claims, as is the case here. These kind of cases tend to exert a crippling effect on
targeted individuals and organizations 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.

Having had the experience of the Plaintiff's counsel in Federal Court, | was keenly aware of the
attempts that would be made to misconstrue the underpinnings of the motion and to prepare for

Just such an avalanche. I did so and at the same time attempted to keep this motion as direct and

to the point as possible.
My 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 my advocacy, motions filed and guidance. On behalf of my
individual defendants, | filed (and was the only defense counsel to file) a motion to dismiss. (See
Defendants David Wong, Michael Zehner, Brian Savage and Shedrick McDaniels’ Motion To
Dismiss, Filed November 19, 2009 Document Number 125) One month later, the Plaintiffs
stipulated to dismiss each of them with prejudice. As we put on the record, the purpose was to
put an end to the litigation. Within about six months Plaintiffs refilled the Complaint with

virtually identical allegations in the Superior Court.
From The First Defense Meeting, I Was Alone In Insisting We Go Forward With A SLAPP

In this case, at the first defense counsel meeting, | was the only attorney who suggested that we

prepare and file a SLAPP motion. I offered all defense counsel to join in. but none wanted to
ese Conse’ 10 join in.

join in the work for preparation of a SLAPP motion. At that meeting. before and since. | was the

Darnnt atal we CLOMCA walonly attorney who articulated a theory to support the SLAPP motion, specifically all of the
elections and advocacy attendant to such elections. My history of having filed numerous SLapP |
motions and my familiarity with this type of civil litigation made me more than qualified to draft
and present this SLAPP motion.

49. offer and did take the laboring oar for this motion and proceeded to the point that it was filed.
None of the other offices saw the benefit in preparing such a motion.

50. The posture of this case currently, as well as securing the dismissal in US District Court, are a
direct result of the litigation skills, strategy, determination and resourcefulness which | brought
to this litigation.

51. For have successfully prosecuted the SLAPP motion to ruling, | now seek the award of fees for
these services, including market rate and multiplier, 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.) It is based on this right that I now seek the award of

fees and costs to myself and my office.

M. As A Litigator A Market Rate For Services Provided In This Matter Should Be Set At

$600 Per Hour Before Any Multiplier

52. I believe that my services and the quality of these services are as a direct result of my past
experiences as a litigator.

53. In early 1978, I went to work in the San Francisco District Attomey’s Office as a trial lawyer for
the specific purpose of securing trial experience. I started in February 1978 and left June 23,
1983. In the five years I worked for the San Francisco District Attomey’s office, while assigned
to the trial teams, and as a leader of the trial team, I completed 50 criminal and one non-criminal
jury trial to verdicts. 1 also had countless court trials, preliminary hearings, motions to suppress,
sentencing and other evidentiary type hearings which would be useful in representation of
claimants in future litigation. Many of these trials were against competent and skillful attorneys
such as Willie Brown and F. Lee Bailey which required every once of skill I could present in
order to adequate meet the needs of my client.

54. Since leaving the District Attomey’s office on June 23, 1983, I have participated in another
approximately 50 jury trials to verdict where I was lead or sole counsel for one of the parties,

often the plaintiff, except in a few criminal cases where I represented the defendant.

Peent etal ve CECA etal: Can Benes55. The total number of jury trials I believe I have participated in as lead or sole counsel is
approaching, at, or beyond 100 jury trials to verdict.

56. The total number of SLAPP motions I have brought is at least six and likely more. I have won
about half of the SLAPP motions I have brought.

57.1 am 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.

N. The Market Rate For Similar Senior Counsel Is $600 Per Hour
58. With my experience in billing by firms where skillful senior counsel perform services similar to
those provided in this case with similar insight and determination as that demonstrated here,

those services would be billed out at $600.00 per hour.

89 my opinion his efforts and skills, as well as ability to see a si d carry it out when
Others, including myself, did not see it, demonstrate that with his 33+ years of practice, he is

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. | currently charge for similar services $550.00 per hour pursuant to
60. My experience here is consistent with the analysis of the billing rates for attorneys with my level

of experience, specifically in the range of $600 per hour.

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

61. As additionally set out in the Attachment One to the Points and Authorities, I have recorded and
incurred in the presentation of the defense in this matter, for myself 158.95 hours of work as the
attorney for these individuals (see Exhibit A, attached and incorporated here by reference), my
office manger, (see Exhibit B, attached and incorporated here by reference), who we routinely
bill out at $100 per hour 27.5 hours, and my secretary, (see Exhibit C, attached and incorporated
here by reference), who is normally billed out at $60.00 per hour, 9.25 hours.

62. My work began on first learning of this Superior Court action by preparing for, researching,
investigating, locating selective documents for, meeting with all defense counsel in an attempt to

reach aaccord on bringing the motion, researching the law applicable to SLAPP, preparing

precision declarations for, points and authorities, reviewing the opposition. preparation of the

ot hormone aN =nitsca mp... tt63.

65.

66.

69.

70.

reply materials and declarations, reviewing the tentative ruling and preparing for the appearances,

appearing draft court orders and this fee motion in the SLAPP suit.

There is substantial time spent in discussion with clients, drafting documents, reviewing
materials and repeated communications with others that did not make it into my office billing for
one reason or another, most likely that I was busy with other matters and never got the

information into our billing system.

. My office has incurred and or paid out costs for this SLAPP motion as shown in our billings for

the filing of the first papers for the individual defendants, the filing fee for the motion and copy
costs a total of $1965.75 (see Exhibit D, attached and incorporated here by reference),

Ihave incurred additional hours in the SLAPP motion and the fee motion which were not logged
in normake part of my office record because the work was done but the time was not recorded.

I estimate that at least 10 percent of the work was not recorded or otherwise billed for because I

got distracted and never got around to putting my time in the computer.

. A Multiplier of 2.0 Should Be Applied For Risk Involved In Carrying This Motion

67.
. Such a ruling is consistent with my experience that at least half the SLAPP motions that I have

After all this work, the tentative ruling was to deny the motion.

brought and that I have seen others bring have been lost, though they likely should have been
granted.

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.

At least one of the SLAPP awards has never been paid and will never be paid. Another SLAPP
fee award was ordered about 1999, and has as of yet never been paid. Even when there is an

award, it is a best a prayer that I might see payment from that professional endeavor.

. Without This Court’s Award, Much If Not All Of the Fees Will Never Be Recovered
7h.

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.

2. And, the Union has refused to pay for any of the defense of these defendants leaving it unlikely

that my office will be compensated without the order of this court. (See attached letter from the

union’s attorneys, marked Exhibit E)

Dannt atnl we CLMCA « a1. CLS. An Appropriate Multiplier For The Risk Inherent Should Be Set At 2.0
73. With the risk of loss in this instance being at least fifty percent (50%), the corresponding

multiplier should be at least 2.0, to mathematically correct for the risk of loss.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

was executed at San Francisco, California on November 9, 2011.

yoy ~
Qari defen
Lawrence D. Murray XC

"27

28

PROOF OF SERVICE

Tam employed in the City and County of San Francisco, State of California. | 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 DECLARATION OF LAWRENCE D.
MURRAY IN SUPPORT OF CONTINUED SPECIAL MOTION TO STRIKE - SLAPP
APPLICATION FOR AWARD OF ATTORNEY FEES OF $99,195.75 & MULTIPLIER
AGAINST JOHNA PECOT, THOMAS ARATA, RICH OWYANG, STEPHEN TILTON,
JOSEPH LEAKE, and OSCAR TAYLOR [CCP 425.16] 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 Stem, 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@rislawyers.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, 2011.
LOO

‘ge a LL
PA

Pecot, et al. vs. SFDSA. et al. San Francisco Superior Court No: CGC — 19 _ 501148 Pace ldEXHIBIT
Bfy

Lawrence D. Murray (SBN 77536)

MURRAY & ASSOCIATES

1781 Union Street

San Francisco, CA 94123

Tel: (415) 673-0555 Fax: (415) 928-4084

Attomey 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 DECLARATION OF DAVID WONG IN
and on behalf of all other similarly situated 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
MCcDANIELS, an individual, and DOES 1-100,
Defendants.

I, David Wong. , declare:

A. Introduction

1. Iam the defendant in this matter and make this declaration on my own personal knowledge unless

stated otherwise.

tw

I present this declaration in order to demonstrate that it took days of working with my attorney

going through boxes of documents and discs to identify the documents we needed, locate the

me a me IK oENIIZO DeanlCc

D.

11.

documents we needed, and to build our declarations in order to address the major allegations of

the Complaint on file here and to succeed in demonstrating that this suit violates the SLAPP law.

My Background & Ability To Pay My Own Legal Fees
I became a Deputy Sheriff in October 1990. Since that time I have remained a Deputy Sheriff.
Iran for Sheriff in 2007 and received 26 percent of the vote.
T announced that I would be running for Sheriff for the election in 2011. Having never been
written up or the subject of any prior discipline, within two weeks of my announcing I was
tunning, I was brought upon charges and shortly thereafter fired for an incident which never
happened.
Tam currently unemployed and have no means by which to pay my attorney.

While I might have sought and received the San Francisco Deputy Sheriff's Association (Union)

financial support for my representation, the Union, through their lawyer has abandoned my
defense and refuses to pay anything toward it. See Exhibit A, attached, a true and correct copy of
the letter from the Union's attorney of September 15, 2011.

As of today, from this suit ] owe about $100,000, and about $10,000 remaining from the Federal

Court suit. There is no way I have the capacity to pay any of this because ] am unemployed.

Election for Union President in 2002 and 2010

In 2002, I was elected President of the union, the SFDSA. From that time on until 2010, I was
and remained continuously the President of the San Francisco Deputy Sheriff's Union. I acted in
the capacity of president for a non-profit, as that role is defined under the Corporation’s Code. I

attended just about every meeting of the membership and the board of directors.

. Tran for President in 2010, and according to the committee, lost by 8 votes out of 864 potential

votes,

The Plaintiffs Here Can Not Succeed In Their Burden Of Proof Since Their Claims In
This Case Are Virtually Identical To Those Dismissed With Prejudice In Federal Court
I have read the Complaint in this matter (“Class Action Complaint For Breach of Contract etc..”*)

and reviewed the actions and inactions which forms the basis for the Complaint.12.

13.

I begin by noting that these same claims and identical factual allegations were made against me
and the other individual plaintiffs in the federal case, which was dismissed with prejudice two
years ago. I was present in the discussion in the corridor in the federal court proceeding where
these individual defendants agreed to a dismissal with prejudice so that the claims were finished
forever. The claims and allegations against me and the other four (4) union officials were
dismissed with prejudice by the federal judge in my presence. That was done with the expressed
discussion with the attorneys for plaintiffs that it would forever end the litigation between us.
Now, in addition to this state court proceeding, the same folks are preparing another claim against
me and others.

Mr. Murray represented me and the other three individuals defendants (each named in this suit
and in that suit) who acted in the capacity of treasurer for the union. We did nothing more than

abide by the elections of the board of directors and the membership and are sued for that.

. Extensive Research As Many of The Claims In This Complaint Relate To Events In 2002
14,

As I noted in my prior declaration, many of the claims were based on events from 2002, such as
the election for dues increase, referred to as the “scheme involved inducing the SFDSA members,
including the Named Plaintiffs, to approve an increase in their dues by nearly 50%,” as set out in
the Complaint, paragraph 2. This vote and approval by the SFDSA members occurred in 2002
was also a protected activity. The Complaint, paragraph 26, acknowledges that the