Preview
Filed at the Insistence of the Litigant
1 SCOTT A. FREEDMAN (SBN 240872)
LAURA F. STRAZZO (SBN 312593)
2 ZACKS & FREEDMAN, PC
ELECTRONICALLY
601 MONTGOMERY STREET, SUITE 400
3 SAN FRANCISCO, CA 94111 FILED
Superior Court of California,
Tel: (415) 956-8100 County of San Francisco
4 Fax: (415) 288-9755
05/18/2023
5 Email: scott@zfplaw.com Clerk of the Court
BY: SANDRA SCHIRO
6 JAMES B. KRAUS (SBN 184118) Deputy Clerk
816 ALVARADO STREET
7 SAN FRANCISCO, CA 94114
Tel: (415) 606-8535
8 Email: jbkrausesq@aol.com
9
SUPERIOR COURT – STATE OF CALIFORNIA
10
COUNTY OF FRANCISCO – UNLIMITED CIVIL JURISDICTION
11
12 PHUONG T. NGUYEN, Case No.: CGC-21-591803
13 Plaintiff, OPPOSITION TO PLAINTIFF PHUONG T.
NGUYEN’S MOTION FOR
14 v. RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON
15 LONDON BREED; DEFENDANT’S SPECIAL MOTION TO
MAYOR OF SAN FRANCISCO; STRIKE
16 CITY OF SAN FRANCISCO;
PG & E Corporation; Pacific Gas
17 and Electric Company, a Corporation; Date: June 1, 2023
RECOLOGY EAST BAY, a Corporation;
18 Recology Sunset Scavenger, a business Time: 9:30 a.m.
form unknown; SAN FRANCISCO PUBLIC Judge: Charles F. Haines
19 UTITLITIES COM:MISSION; PAUL M. Dept: 501
MIYAMOTO aka San Francisco County Trial Date: None set
20 Sheriff; Zameer Riaz Azam; Abdul Azam;
Jason Paul Voelker; Juan S. Ruiz aka Juan
21 Salvador Ruiz; SHARAD JAIN; CRASHP AD,
LLC; CRASHP ADZ INC; EXCALIBUR
22 TRADING LLC; SF CRASHPAD LLC; SF
CRASHP ADZ LLC; SFC CRASHP AD LLC;
23 SFO CRASHP AD LLC; DC CRASHPAD,
LLC; COREY A. TEAGUE;
24 RYAN JAMES PATTERSON;
JENNIFER EUNJIN CHOI;
25 TINA T. TAM;WILLIAM J. COAKER;
MICHAEL J. BOROVINA JR.; and DOES 1
26 through 100,
27 Defendants.
___________________________________________
28
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
1
1 I. INTRODUCTION
2
Plaintiff files this motion for reconsideration after Defendant Ryan Patterson’s Special Motion
3
to Strike (Defendant’s Motion) was granted by this Court. Plaintiff has the burden of showing that new
4
5 or different facts or law exist to support the Court’s reconsideration of its order. Yet, Plaintiff fails to
6 make any meaningful attempt to do so. Instead, Plaintiff simply rehashes arguments she made in
7
opposition to Defendant’s Motion and argues that the order was prematurely entered.
8
Facts known to Plaintiff and argued before the Court do not merit reconsideration under CCP
9
1008. Plaintiff’s argument concerning the Court’s entering of the order does not take into account the
10
11 Local Rules of Department 501, which request that the parties provide proposed orders at the hearing.
12 Defendant followed the local rules, submitted a proposed order that matched the tentative ruling, receipt
13
of which was acknowledged by the Court in the minutes from the hearing, and the Court signed his order.
14
Since Plaintiff has not met her burden, the Court should deny her unsupported motion for reconsideration.
15
16 In truth, Plaintiff brought this motion after realizing that she will likely have to pay Defendant’s
17 attorney’s fees under the SLAPP statute. She has filed this meritless motion in an odd attempt to delay
18 this inevitability. Since Plaintiff’s motion is brought in bad faith, and with the intent solely to cause
19
delay, the Court should issue and order to show cause pursuant to CCP §§ 128.5, 128.7, and 1008.
20
II. BACKGROUND
21
22 Plaintiff filed a Verified First Amended Complaint on July 15, 2021 naming Defendant as “Doe
23 2” but did not serve the amended complaint on Defendant. On March 13, 2023, Defendant filed
24 Defendant’s Motion, which was originally set to be heard on April 10, 2023. Plaintiff filed an untimely
25
opposition on April 7, 2023 and failed to serve Defendant with her opposition. (Request for Judicial
26
Notice (“RJN”), Exhibit 1, pp. 4-5; Exhibit 2, at 2:2-6.) The Court continued the hearing to April 14,
27
28 2023 so that Defendant’s Motion could be heard with other pending motions. (Exhibit 1, at p. 4.) When
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
2
checking the tentative ruling and upon discovering Plaintiff’s opposition on the Court’s record of action,
1
2 Defendant promptly filed his reply on April 10, 2023. (Id.; RJN, Exhibit 2.) Plaintiff then improperly
3 submitted a supplemental reply brief on April 13, 2023 arguing, in part, that Defendant’s reply was
4
untimely. (RJN, Exhibit 1, at p. 3, Exhibit 3, at 2:22-3:6.)
5
The Court issued a tentative ruling on April 13, 2023 in favor of Defendant. The tentative ruling
6
stated:
7
8 “DEFENDANT RYAN PATTERSON Defendant Ryan James Pattersons Notice Of
Special Motion And Special Motion To Strike is GRANTED. The motion is timely
9 filed and properly served by mail to Plaintiff's mailing address of record (See Proof of
Service filed on March 13, 2023). Moving party sustained its burden under the first
10
prong of Anti-SLAPP. Plaintiff failed to carry her burden under the second prong of
11 the Anti-Slapp to show a probability of prevailing on the merits. The Court notes that
Plaintiff appears to misread Patterson declaration. Mr. Patterson declares that he is a
12 shareholder of Zacks, Freedman and Patterson, not a shareholder of Crashpadz.” (RJN,
13 Exhibit 4, p. 2.)
14 Pursuant to Local Rule 8.10(E), Defendant submitted a proposed order at the hearing that tracked
15 the tentative ruling. After argument from both parties, the Court adopted its tentative ruling and noted
16
that a proposed order had been submitted for review. (RJN, Exhibit 1, p. 3.) On April 18, 2023, the
17
Court signed Defendant’s proposed order, which was made available to the parties via the Court’s
18
19 website on April 20, 2023. (Id. at p. 2.) On April 21, 2023, Defendant served Plaintiff with a Notice of
20 Entry of the Court’s Order. (Id. at p. 1.) Plaintiff filed this motion for reconsideration on May 1, 2023.
21 III. LEGAL ARGUMENT
22
A. Legal Standard for Motion to Reconsider
23
Plaintiff’s motion fails to cite to any legal authority to entitle her to reconsideration. Presumably,
24
25 she is moving for reconsideration under CCP § 1008(a). However, such motion must be “based upon
26 new or different facts, circumstances, or law . . . .” (Id.) “[F]acts of which the party seeking
27
reconsideration was aware at the time of the original ruling are not ‘new or different’. In addition, a
28
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
3
party must provide a satisfactory explanation for failing to offer the evidence in the first instance.” (In
1
2 re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469.) Plaintiff’s disagreement with the Court’s
3 ruling does not amount to new or different facts. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494,
4
1500.)
5
Plaintiff presents a list of alleged “new facts” discovered after the April 14, 2023 hearing.
6
However, all but one of Plaintiff’s alleged new facts were considered by the Court as part of the parties’
7
8 briefing or oral argument at the hearing. The only fact that arguably occurred after the Court adopted its
9 tentative ruling was the timing by which the order was entered by the Court. Even if the order was
10
prematurely entered by the Court, which it was not, Plaintiff fails to provide any legal authority that
11
would merit reconsideration since the Court made its ruling at the hearing. Therefore, the Court should
12
13 deny Plaintiff’s motion.
14 B. Plaintiff’s Motion Lacks New or Different Facts, Circumstances, or Law
15 a. Proposed Order
16
Plaintiff argues that Defendant did not comply with the procedural requirements of CRC 3.1312
17
in submitting his proposed order. This rule provides a process for prevailing parties to prepare proposed
18
19 orders “[u]nless . . . the court orders otherwise.” (CRC 3.1312(a).) San Francisco Superior Court Local
20 Rule 8.10(E) provides: “[w]ith the exception of proposed orders for motions for summary
21 judgment/adjudication, it is recommended that parties appear at the hearing with proposed orders even
22
if the hearing is uncontested to ensure timely processing of the order.”
23
In this case, Defendant appeared at the hearing with a proposed order that matched the tentative
24
25 ruling, which was submitted to the court as provided for in the Local Rules. Plaintiff also attended the
26 hearing. The minutes from the hearing note that a proposed order was submitted for review. (RJN,
27
Exhibit 1, at p. 2.) Even if Defendant had not complied with the rules for submitting proposed orders,
28
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
4
which is not the case, it would not allow the Court to reconsider its substantive ruling. Particularly when
1
2 the order signed by the Court matches the Court’s ruling. Plaintiff provides no legal authority to the
3 contrary.
4
b. 1st to 5th Causes of Action
5
Plaintiff again alleges that she did not plead her first through fifth causes of action against
6
Defendant. However, she fails to provide any new or different facts, circumstances, or law supporting
7
8 her claim. Plaintiff raised this issue in her opposition to Defendant’s Motion. (RJN, Exhibit 5, at 2:18-
9 26.) Defendant argued as to why she had in his reply. (RJN, Exhibit 2, at 3:19-4:2.) Plaintiff then again
10
raised the issue in her “supplemental brief.” (RJN, Exhibit 3, at 3:18-27.) Moreover, as Defendant
11
argued in his reply, Defendant only sought to have the claims brought against him adjudicated. (RJN,
12
13 Exhibit 2, at 3:19-4:2.) Therefore, even if Plaintiff did not intend to plead her first through fifth causes
14 of action against Defendant, at most, Defendant’s Motion was moot as to those remedies. The Court
15 considered these arguments and ruled accordingly. Plaintiff cannot seek reconsideration based on facts
16
that were before the Court in Defendant’s Motion.
17
c. Reply Brief
18
19 Plaintiff also again claims the Court should reconsider its ruling because Defendant allegedly
20 filed an untimely reply brief. Plaintiff raised this issue in her “supplemental brief” and had an
21 opportunity to argue her position in front of the Court at the hearing. As Defendant noted in his reply,
22
he did not have the opportunity to file a timely reply because Plaintiff filed a late opposition brief and
23
did not properly serve it. (RJN, Exhibit 2, p. 2 FN 1.) Even so, the Court considered her opposition in
24
25 ruling on Defendant’s Motion and found that Plaintiff failed to carry her burden under the second prong
26 of the Anti-SLAPP statute to show a probability of prevailing on the merits. (RJN, Exhibit 6, at 5:5-
27
11.) Therefore, Defendant’s arguments in reply were not dispositive to the Court’s ruling and are not
28
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
5
grounds for reconsideration.
1
2 d. Hearing Continuance
3 Plaintiff appears to be arguing that the Court’s decision to continue the hearing from April 10
4
to April 14 merits reconsideration of its later issued order. Again, these facts were known to Plaintiff
5
prior to the Court issuing its order and brought up by her in her briefing on Defendant’s Motion. (RJN,
6
Exhibits 3, 5.) Plaintiff also appears to misunderstand that the hearing was continued by the Court and
7
8 not upon Defendant’s request or the result of Defendant’s filings. (RJN, Exhibit 1, p. 4.) Plaintiff fails
9 to explain how a four-day delay in the hearing constitutes new facts under CCP 1008 meriting
10
reconsideration.
11
e. Plaintiff’s Legal Authority is Irrelevant to Her Request
12
13 In sections IV-VII of her brief, Plaintiff cites CCP § 128.5 and three cases that appear to have
14 no bearing on her request for reconsideration. CCP § 128.5 concerns a Court’s ability to impose various
15 sanctions on a party for actions made in bad faith. Plaintiff then cites a series of cases interpreting CCP
16
§ 128.5. The first case, Albion River, concerns sanctions imposed for failing to serve a petition for writ
17
of mandate, which has no bearing on the motion before the Court. (Albion River Watershed Protection
18
19 Assn. v. Department of Forestry & Fire Protection (1993) 20 Cal.App.4th 34.) Plaintiff then cites Bank
20 of America, which coincidentally involves the court imposing sanctions on a litigant who “persisted in
21 erroneously” arguing a point already ruled on by the Court and who filed a frivolous motion to vacate
22
the Court’s earlier ruling. (Bank of America v. Henkin (1986) 185 Cal.App.3d 919, 921.) Finally, the
23
last case cited by Plaintiff, Abandonato, was overruled by Musaelian v. Adams, which found that an
24
25 attorney representing himself could not be awarded attorney’s fees as a sanction. (See Musaelian v.
26 Adams (2009) 45 Cal.4th 512, 565.) It is unclear what relevance this case has on Plaintiff’s argument
27
but, in any event, it is no longer good law.
28
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
6
Plaintiff has failed to provide any legal authority to support her reconsideration request. The
1
2 authority she does cite is no longer good law or otherwise irrelevant. Her failure is fatal to her motion
3 and demonstrates that she had no grounds to bring the motion.
4
C. The Court Should Find that Plaintiff’s Motion is Frivolous, Filed in Bad Faith, with the
5 Intent to Cause Unnecessary Delay, and Issue an Order to Show Cause
6 Plaintiff has a right to act as her own attorney “but is entitled to the same, but no greater,
7
consideration than other litigants and attorneys.” (Nelson v. Grant (1981) 125 Cal.App.3d 623, 638.) A
8
violation of CCP 1008 “may be punished as a contempt and with sanctions as allowed by Section 128.7.”
9
Moreover, “[a] trial court may order a party . . .to pay the reasonable expenses, including attorney's fees,
10
11 incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely
12 intended to cause unnecessary delay.” (CCP § 128.5(a).) “Actions or tactics” include making motions.
13
(CCP § 128.5(b)(1).) As Plaintiff herself cited in her moving papers, persisting in erroneously making
14
legal arguments already ruled on by the Court and filing frivolous motions for reconsideration merit the
15
16 imposition of sanctions. (Bank of America v. Henkin (1986) 185 Cal.App.3d 919, 921.)
17 “If the alleged action or tactic is the making . . . of a written motion . . . that can be withdrawn
18 or appropriately corrected, the court on its own motion may enter an order describing the specific action
19
or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay, and direct an
20
attorney, law firm, or party to show cause why it has made an action or tactic as defined in subdivision
21
22 (b), unless, within 21 days of service of the order to show cause, the challenged action or tactic is
23 withdrawn or appropriately corrected.” (CCP § 128.5(f)(1)(D).)
24 Plaintiff’s motion fails to cite any relevant legal authority, new facts or law, or argument which
25
would merit reconsideration. Rather, Plaintiff has now realized that filling her complaint against
26
Defendant, and subsequently losing Defendant’s Motion, has exposed her to attorney’s fees. Although
27
28 ultimately fruitless, she filed this motion for reconsideration in an entirely bad faith attempt to delay
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
7
Defendant’s fee motion. Plaintiff even openly admits to this fact and cites Defendant’s upcoming fee
1
2 motion as a reason for her motion in her moving papers. (See, e.g., Plaintiff’s Motion for Reconsideration,
3 at 10:27-11:11.) Even though Plaintiff is in pro per, her deficient and bad faith motion is entitled to no
4
greater leeway than other litigants or attorneys. Thus, the Court should issue an order to show cause as
5
to why Plaintiff should not be sanctioned for her actions.
6
IV. Conclusion
7
8 This Court should deny Plaintiff’s motion for reconsideration, find that the motion was made in
9 bad faith with the intent to delay, and issue an Order to Show Cause pursuant to CCP §§ 128.5, 128.7,
10
and 1008.
11
12
13 Dated: May 18, 2023
14 By: Laura Strazzo
ZACKS & FREEDMAN, PC
15 Attorneys for Defendant
16 Ryan James Patterson
17
18
19
20
21
22
23
24
25
26
27
28
OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER
ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE
8
Preview
Filed at the Insistence of the Litigant 1 SCOTT A. FREEDMAN (SBN 240872) LAURA F. STRAZZO (SBN 312593) 2 ZACKS & FREEDMAN, PC ELECTRONICALLY 601 MONTGOMERY STREET, SUITE 400 3 SAN FRANCISCO, CA 94111 FILED Superior Court of California, Tel: (415) 956-8100 County of San Francisco 4 Fax: (415) 288-9755 05/18/2023 5 Email: scott@zfplaw.com Clerk of the Court BY: SANDRA SCHIRO 6 JAMES B. KRAUS (SBN 184118) Deputy Clerk 816 ALVARADO STREET 7 SAN FRANCISCO, CA 94114 Tel: (415) 606-8535 8 Email: jbkrausesq@aol.com 9 SUPERIOR COURT – STATE OF CALIFORNIA 10 COUNTY OF FRANCISCO – UNLIMITED CIVIL JURISDICTION 11 12 PHUONG T. NGUYEN, Case No.: CGC-21-591803 13 Plaintiff, OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR 14 v. RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON 15 LONDON BREED; DEFENDANT’S SPECIAL MOTION TO MAYOR OF SAN FRANCISCO; STRIKE 16 CITY OF SAN FRANCISCO; PG & E Corporation; Pacific Gas 17 and Electric Company, a Corporation; Date: June 1, 2023 RECOLOGY EAST BAY, a Corporation; 18 Recology Sunset Scavenger, a business Time: 9:30 a.m. form unknown; SAN FRANCISCO PUBLIC Judge: Charles F. Haines 19 UTITLITIES COM:MISSION; PAUL M. Dept: 501 MIYAMOTO aka San Francisco County Trial Date: None set 20 Sheriff; Zameer Riaz Azam; Abdul Azam; Jason Paul Voelker; Juan S. Ruiz aka Juan 21 Salvador Ruiz; SHARAD JAIN; CRASHP AD, LLC; CRASHP ADZ INC; EXCALIBUR 22 TRADING LLC; SF CRASHPAD LLC; SF CRASHP ADZ LLC; SFC CRASHP AD LLC; 23 SFO CRASHP AD LLC; DC CRASHPAD, LLC; COREY A. TEAGUE; 24 RYAN JAMES PATTERSON; JENNIFER EUNJIN CHOI; 25 TINA T. TAM;WILLIAM J. COAKER; MICHAEL J. BOROVINA JR.; and DOES 1 26 through 100, 27 Defendants. ___________________________________________ 28 OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 1 1 I. INTRODUCTION 2 Plaintiff files this motion for reconsideration after Defendant Ryan Patterson’s Special Motion 3 to Strike (Defendant’s Motion) was granted by this Court. Plaintiff has the burden of showing that new 4 5 or different facts or law exist to support the Court’s reconsideration of its order. Yet, Plaintiff fails to 6 make any meaningful attempt to do so. Instead, Plaintiff simply rehashes arguments she made in 7 opposition to Defendant’s Motion and argues that the order was prematurely entered. 8 Facts known to Plaintiff and argued before the Court do not merit reconsideration under CCP 9 1008. Plaintiff’s argument concerning the Court’s entering of the order does not take into account the 10 11 Local Rules of Department 501, which request that the parties provide proposed orders at the hearing. 12 Defendant followed the local rules, submitted a proposed order that matched the tentative ruling, receipt 13 of which was acknowledged by the Court in the minutes from the hearing, and the Court signed his order. 14 Since Plaintiff has not met her burden, the Court should deny her unsupported motion for reconsideration. 15 16 In truth, Plaintiff brought this motion after realizing that she will likely have to pay Defendant’s 17 attorney’s fees under the SLAPP statute. She has filed this meritless motion in an odd attempt to delay 18 this inevitability. Since Plaintiff’s motion is brought in bad faith, and with the intent solely to cause 19 delay, the Court should issue and order to show cause pursuant to CCP §§ 128.5, 128.7, and 1008. 20 II. BACKGROUND 21 22 Plaintiff filed a Verified First Amended Complaint on July 15, 2021 naming Defendant as “Doe 23 2” but did not serve the amended complaint on Defendant. On March 13, 2023, Defendant filed 24 Defendant’s Motion, which was originally set to be heard on April 10, 2023. Plaintiff filed an untimely 25 opposition on April 7, 2023 and failed to serve Defendant with her opposition. (Request for Judicial 26 Notice (“RJN”), Exhibit 1, pp. 4-5; Exhibit 2, at 2:2-6.) The Court continued the hearing to April 14, 27 28 2023 so that Defendant’s Motion could be heard with other pending motions. (Exhibit 1, at p. 4.) When OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 2 checking the tentative ruling and upon discovering Plaintiff’s opposition on the Court’s record of action, 1 2 Defendant promptly filed his reply on April 10, 2023. (Id.; RJN, Exhibit 2.) Plaintiff then improperly 3 submitted a supplemental reply brief on April 13, 2023 arguing, in part, that Defendant’s reply was 4 untimely. (RJN, Exhibit 1, at p. 3, Exhibit 3, at 2:22-3:6.) 5 The Court issued a tentative ruling on April 13, 2023 in favor of Defendant. The tentative ruling 6 stated: 7 8 “DEFENDANT RYAN PATTERSON Defendant Ryan James Pattersons Notice Of Special Motion And Special Motion To Strike is GRANTED. The motion is timely 9 filed and properly served by mail to Plaintiff's mailing address of record (See Proof of Service filed on March 13, 2023). Moving party sustained its burden under the first 10 prong of Anti-SLAPP. Plaintiff failed to carry her burden under the second prong of 11 the Anti-Slapp to show a probability of prevailing on the merits. The Court notes that Plaintiff appears to misread Patterson declaration. Mr. Patterson declares that he is a 12 shareholder of Zacks, Freedman and Patterson, not a shareholder of Crashpadz.” (RJN, 13 Exhibit 4, p. 2.) 14 Pursuant to Local Rule 8.10(E), Defendant submitted a proposed order at the hearing that tracked 15 the tentative ruling. After argument from both parties, the Court adopted its tentative ruling and noted 16 that a proposed order had been submitted for review. (RJN, Exhibit 1, p. 3.) On April 18, 2023, the 17 Court signed Defendant’s proposed order, which was made available to the parties via the Court’s 18 19 website on April 20, 2023. (Id. at p. 2.) On April 21, 2023, Defendant served Plaintiff with a Notice of 20 Entry of the Court’s Order. (Id. at p. 1.) Plaintiff filed this motion for reconsideration on May 1, 2023. 21 III. LEGAL ARGUMENT 22 A. Legal Standard for Motion to Reconsider 23 Plaintiff’s motion fails to cite to any legal authority to entitle her to reconsideration. Presumably, 24 25 she is moving for reconsideration under CCP § 1008(a). However, such motion must be “based upon 26 new or different facts, circumstances, or law . . . .” (Id.) “[F]acts of which the party seeking 27 reconsideration was aware at the time of the original ruling are not ‘new or different’. In addition, a 28 OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 3 party must provide a satisfactory explanation for failing to offer the evidence in the first instance.” (In 1 2 re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469.) Plaintiff’s disagreement with the Court’s 3 ruling does not amount to new or different facts. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 4 1500.) 5 Plaintiff presents a list of alleged “new facts” discovered after the April 14, 2023 hearing. 6 However, all but one of Plaintiff’s alleged new facts were considered by the Court as part of the parties’ 7 8 briefing or oral argument at the hearing. The only fact that arguably occurred after the Court adopted its 9 tentative ruling was the timing by which the order was entered by the Court. Even if the order was 10 prematurely entered by the Court, which it was not, Plaintiff fails to provide any legal authority that 11 would merit reconsideration since the Court made its ruling at the hearing. Therefore, the Court should 12 13 deny Plaintiff’s motion. 14 B. Plaintiff’s Motion Lacks New or Different Facts, Circumstances, or Law 15 a. Proposed Order 16 Plaintiff argues that Defendant did not comply with the procedural requirements of CRC 3.1312 17 in submitting his proposed order. This rule provides a process for prevailing parties to prepare proposed 18 19 orders “[u]nless . . . the court orders otherwise.” (CRC 3.1312(a).) San Francisco Superior Court Local 20 Rule 8.10(E) provides: “[w]ith the exception of proposed orders for motions for summary 21 judgment/adjudication, it is recommended that parties appear at the hearing with proposed orders even 22 if the hearing is uncontested to ensure timely processing of the order.” 23 In this case, Defendant appeared at the hearing with a proposed order that matched the tentative 24 25 ruling, which was submitted to the court as provided for in the Local Rules. Plaintiff also attended the 26 hearing. The minutes from the hearing note that a proposed order was submitted for review. (RJN, 27 Exhibit 1, at p. 2.) Even if Defendant had not complied with the rules for submitting proposed orders, 28 OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 4 which is not the case, it would not allow the Court to reconsider its substantive ruling. Particularly when 1 2 the order signed by the Court matches the Court’s ruling. Plaintiff provides no legal authority to the 3 contrary. 4 b. 1st to 5th Causes of Action 5 Plaintiff again alleges that she did not plead her first through fifth causes of action against 6 Defendant. However, she fails to provide any new or different facts, circumstances, or law supporting 7 8 her claim. Plaintiff raised this issue in her opposition to Defendant’s Motion. (RJN, Exhibit 5, at 2:18- 9 26.) Defendant argued as to why she had in his reply. (RJN, Exhibit 2, at 3:19-4:2.) Plaintiff then again 10 raised the issue in her “supplemental brief.” (RJN, Exhibit 3, at 3:18-27.) Moreover, as Defendant 11 argued in his reply, Defendant only sought to have the claims brought against him adjudicated. (RJN, 12 13 Exhibit 2, at 3:19-4:2.) Therefore, even if Plaintiff did not intend to plead her first through fifth causes 14 of action against Defendant, at most, Defendant’s Motion was moot as to those remedies. The Court 15 considered these arguments and ruled accordingly. Plaintiff cannot seek reconsideration based on facts 16 that were before the Court in Defendant’s Motion. 17 c. Reply Brief 18 19 Plaintiff also again claims the Court should reconsider its ruling because Defendant allegedly 20 filed an untimely reply brief. Plaintiff raised this issue in her “supplemental brief” and had an 21 opportunity to argue her position in front of the Court at the hearing. As Defendant noted in his reply, 22 he did not have the opportunity to file a timely reply because Plaintiff filed a late opposition brief and 23 did not properly serve it. (RJN, Exhibit 2, p. 2 FN 1.) Even so, the Court considered her opposition in 24 25 ruling on Defendant’s Motion and found that Plaintiff failed to carry her burden under the second prong 26 of the Anti-SLAPP statute to show a probability of prevailing on the merits. (RJN, Exhibit 6, at 5:5- 27 11.) Therefore, Defendant’s arguments in reply were not dispositive to the Court’s ruling and are not 28 OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 5 grounds for reconsideration. 1 2 d. Hearing Continuance 3 Plaintiff appears to be arguing that the Court’s decision to continue the hearing from April 10 4 to April 14 merits reconsideration of its later issued order. Again, these facts were known to Plaintiff 5 prior to the Court issuing its order and brought up by her in her briefing on Defendant’s Motion. (RJN, 6 Exhibits 3, 5.) Plaintiff also appears to misunderstand that the hearing was continued by the Court and 7 8 not upon Defendant’s request or the result of Defendant’s filings. (RJN, Exhibit 1, p. 4.) Plaintiff fails 9 to explain how a four-day delay in the hearing constitutes new facts under CCP 1008 meriting 10 reconsideration. 11 e. Plaintiff’s Legal Authority is Irrelevant to Her Request 12 13 In sections IV-VII of her brief, Plaintiff cites CCP § 128.5 and three cases that appear to have 14 no bearing on her request for reconsideration. CCP § 128.5 concerns a Court’s ability to impose various 15 sanctions on a party for actions made in bad faith. Plaintiff then cites a series of cases interpreting CCP 16 § 128.5. The first case, Albion River, concerns sanctions imposed for failing to serve a petition for writ 17 of mandate, which has no bearing on the motion before the Court. (Albion River Watershed Protection 18 19 Assn. v. Department of Forestry & Fire Protection (1993) 20 Cal.App.4th 34.) Plaintiff then cites Bank 20 of America, which coincidentally involves the court imposing sanctions on a litigant who “persisted in 21 erroneously” arguing a point already ruled on by the Court and who filed a frivolous motion to vacate 22 the Court’s earlier ruling. (Bank of America v. Henkin (1986) 185 Cal.App.3d 919, 921.) Finally, the 23 last case cited by Plaintiff, Abandonato, was overruled by Musaelian v. Adams, which found that an 24 25 attorney representing himself could not be awarded attorney’s fees as a sanction. (See Musaelian v. 26 Adams (2009) 45 Cal.4th 512, 565.) It is unclear what relevance this case has on Plaintiff’s argument 27 but, in any event, it is no longer good law. 28 OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 6 Plaintiff has failed to provide any legal authority to support her reconsideration request. The 1 2 authority she does cite is no longer good law or otherwise irrelevant. Her failure is fatal to her motion 3 and demonstrates that she had no grounds to bring the motion. 4 C. The Court Should Find that Plaintiff’s Motion is Frivolous, Filed in Bad Faith, with the 5 Intent to Cause Unnecessary Delay, and Issue an Order to Show Cause 6 Plaintiff has a right to act as her own attorney “but is entitled to the same, but no greater, 7 consideration than other litigants and attorneys.” (Nelson v. Grant (1981) 125 Cal.App.3d 623, 638.) A 8 violation of CCP 1008 “may be punished as a contempt and with sanctions as allowed by Section 128.7.” 9 Moreover, “[a] trial court may order a party . . .to pay the reasonable expenses, including attorney's fees, 10 11 incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely 12 intended to cause unnecessary delay.” (CCP § 128.5(a).) “Actions or tactics” include making motions. 13 (CCP § 128.5(b)(1).) As Plaintiff herself cited in her moving papers, persisting in erroneously making 14 legal arguments already ruled on by the Court and filing frivolous motions for reconsideration merit the 15 16 imposition of sanctions. (Bank of America v. Henkin (1986) 185 Cal.App.3d 919, 921.) 17 “If the alleged action or tactic is the making . . . of a written motion . . . that can be withdrawn 18 or appropriately corrected, the court on its own motion may enter an order describing the specific action 19 or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay, and direct an 20 attorney, law firm, or party to show cause why it has made an action or tactic as defined in subdivision 21 22 (b), unless, within 21 days of service of the order to show cause, the challenged action or tactic is 23 withdrawn or appropriately corrected.” (CCP § 128.5(f)(1)(D).) 24 Plaintiff’s motion fails to cite any relevant legal authority, new facts or law, or argument which 25 would merit reconsideration. Rather, Plaintiff has now realized that filling her complaint against 26 Defendant, and subsequently losing Defendant’s Motion, has exposed her to attorney’s fees. Although 27 28 ultimately fruitless, she filed this motion for reconsideration in an entirely bad faith attempt to delay OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 7 Defendant’s fee motion. Plaintiff even openly admits to this fact and cites Defendant’s upcoming fee 1 2 motion as a reason for her motion in her moving papers. (See, e.g., Plaintiff’s Motion for Reconsideration, 3 at 10:27-11:11.) Even though Plaintiff is in pro per, her deficient and bad faith motion is entitled to no 4 greater leeway than other litigants or attorneys. Thus, the Court should issue an order to show cause as 5 to why Plaintiff should not be sanctioned for her actions. 6 IV. Conclusion 7 8 This Court should deny Plaintiff’s motion for reconsideration, find that the motion was made in 9 bad faith with the intent to delay, and issue an Order to Show Cause pursuant to CCP §§ 128.5, 128.7, 10 and 1008. 11 12 13 Dated: May 18, 2023 14 By: Laura Strazzo ZACKS & FREEDMAN, PC 15 Attorneys for Defendant 16 Ryan James Patterson 17 18 19 20 21 22 23 24 25 26 27 28 OPPOSITION TO PLAINTIFF PHUONG T. NGUYEN’S MOTION FOR RECONSIDERATION AS TO THE ORDER ENTERED ON APRIL 20, 2023 ON DEFENDANT’S SPECIAL MOTION TO STRIKE 8