Preview
| LAW OFFICES OF PAUL L. KRANZ
| PAUL L. KRANZ, ESQ., SBN 114999
499 14" Street, Suite 300
| Oakland, CA 94612 ELECTRONICALLY
3] kranzlaw@sbeglobal.net FILED
Supertor Court of California,
4 Telephone: (510) 839-1200 ‘County of San Francisco
_ || Faesimile: (510) 444-6698 07/23/2015
> Clerk of the Court
Attomeys for Named Plaintifls Johna Pecot, et al., BYR A REMIRES
6 - Deputy Clerk
7 |
s|
9]
10 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
ul COUNTY OF SAN FRANCISCO
12
13
14) JOHNA PECOT, et al. Individually and on Behalf of ) CASE NO. CGC-10-501168
_ {| All Others Similarly Situated, )
15] ) PLAINTIFFS’ MEMORANDUM
| Plaintiffs. ) OF POINTS AND AUTHORITIES
16 | ) IN OPPOSITION TO MOTION
| v. ) PURSUANT TO CODE OF CIVIL
17] } PROCEDURE SECTION 473(d) to
|| SAN FRANCISCO DEPUTY SHERIFF'S ) CORRECT CLERICAL ERROR
18 | ASSOCIATION, a California Nonprofit ) IN ORDER AFTER DEMURRER
19 | Corporation, et al. ) & SLAPP HEARING
i )
\ Defendants. ) Date: August 4.2015
20 | Time: 9:30 am.
” Dept.: 302
22 INTRODUCTION
237 Defendants move under Code of Civil Procedure section 473(d) to contest the Court's
24 |) order denying their December 18, 2014 anti-SLAPP motion. To prevail on a C.C.P. § 473
25 || motion, defendants must demonstrate that the Court did not intend to issue the contested order,
26 || and that it did so only as a result ofa clerical mistake or in ignorance of some material fact of
27 | record.
28 | The contention that subject order was the result of a clerical mistake or the result of the
-l-
SEMO“GrPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C.P. $473(0)]
© MiserstupsigisDowniosdsy1 | Court’s ignorance of some material fact of record is belied by the record. The Court's tentative
ruling was that defendants’ pleadings had failed to engage in a meaningful C.C.P. § 425.16
the Court’s tentative ruling was incorrect. Obviously unconvinced, the Court queried
us
defendants’ counsel several times throughout the hearing for such an analysis. The Court finally
stated to defendants’ counsel that it remained unconvinced that the defendants had provided a
Om
meaningful C.C.P. § 425.16 analysis. (“I told you what I thought about your pleading here.”)
3 |, analysis. Defendants contested the tentative ruling and argued exhaustively at the hearing that
4
| Nor is there evidence from which to conclude otherwise. Defendants’ argument relies
9 |) upon the thin reed that the Court was willing to take the issue as to whether their anti-SLAPP
motion was frivolous under submission. This clearly did not mean-as defendants’ motion
i repeatedly suggests—that the Court had decided defendants had offered a meaningful C.C.P. §
2 || 425.16 analysis, and that therefore the Court must have signed the order ruling that defendants”
motion was frivolous as the result of some clerical error or because of ignorance on the part of
the Court with respect to the record. ‘The law is also that if the Court’s order was nor the result
| of such an error by the Court, the Court is without jurisdiction under C.C.P. § 473(d) to consider
defendants’ motion.
Defendants’ motion re-argues their C.C.P. § 425.16 motion for why the Court should
| modify its order, and for this reason, defendants’ motion is in effect an attempt to have the Court
| reconsider their C.C.P. § 425.16 motion. Such a motion is a motion for reconsideration and is
| governed by Code of Civil Procedure section 1008. As such a motion, defendants’ motion is
wholly improper because defendants make no attempt whatsoever to comply with any of the
requirements for such a motion. Nor can they. Defendants have no new and/or different facts or
Jaws which is what is required to bring and prevail on such a motion. ‘The law is clear that
| without new facts or law the Court lacks jurisdiction to hear their motion. . There is also case
law specifically holding that the Court has no jurisdiction to reconsider its prior anti-SLAPP
| ruling where no new or different facts, circumstances or law have been provided.
2
-2-
WEMOMOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C-P. §473(a)]
CAtsosupstersDownssSTATEMENT OF FACTS
The Court's tentative ruling on the subject order that defendants are contesting stated in
| part:
_.. Defendants engage in na meaningful analysis as to how the causes of action for
violation of the Corporations Code and concealment (causes of action nos. 6 and 8) arise
from protected activity. As such the first prong of C.C.P. sec. 425.16 is not met.
(Exhibit A to the Declaration of Paul L. Kranz in Support of Plaintiffs’ Opposition to Motion to
Correct Clerical Error Pursuant to Cade of Civil Procedure Section 473(d) in Order Afier
Demurrer & SLAPP Hearing (“Kranz Dec.)
Defendants contested the tentative ruling. At the hearing on the following day,
| exchanges between the Court and defendants’ counsel specifically about whether defendants’
| motion was [rivolous included the following:
THE COURT: Your analysis on the issue [| in your moving papers - -
MR. MURRAY: Right.
‘THE COURT: ~as to whether this is protected activity is that - - and I believe I'm
quoting from you or dam near - - the documents sought related to Wong's protected
activity, dues, increases, and payment of his salary, hence the burden has shifted. That's
all you argued.
THE COURT: How do you establish that by denying plaintiffs the right to inspect
16
: books they engaged in protected activity ?
17 | MR. MURRAY: [Lengthy purported explanation offered]
18 THE COURT: {don’t really think you dealt with this.
19
(Exhibit 1 to the Declaration of Lawrence D. Murray Declaration in Support of Motion to
20 | Correct Clerical Error Pursuant to Code of Civil Procedure Section 473(d) in Order After
21 | Demurrer & SLAPP Hearing (“Murray Dec.”), 6:13-7:17; emphasis added.)
THE COURT: We have a pretty narrow issue here.
24 | Ud, at 8:9.)
e THE COURT: Just a second.
26 Mr. Murray, I tried to get to the heart of things and now I'm kind of shifting gears here. |
7 tried to get to the heart of things in my tentative, and T said in my tentative. defendants
28 engage in no meaningful analysis as to how the causes of action arise from protected
3.
o teetupssisioarbal REO OPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C.P. $473(d)]activity. It's prong number one.
MR. MURRAY:
THE COURT: — [just don't see the analysis. You re telling me a bunch of stuff, but
papers didn’t tie any of that together.
5 || Ud, at 12:6-14; emphasis added.)
1 UisersupstarsiDonninads|
THE COURT: Well, you're asking me to try the case.
MR. MURRAY: No’ I'm not.
THE COURT: You don’t try the case here. It’s such a narrow issue. That's why I - -
MR. MURRAY: The first prong - -
THE COURT: That's why I put that, what I just mentioned, in the tentative.
MR. MURRAY: You're talking first prong ?
THE COURT: Yes.
Ud, at 13:6-14,)
THE COURT: It's a statutory right [referencing plaintiffs’ rights to inspect corporate
records].
Ud., at 14:18.)
THE COURT: Well, maybe I'm taking it very - - Mr. Murray, maybe I'm taking a very
simplistic point of view or analysis here, but Ttold you what I think.
MR. MURRAY: Okay, What about the demurrer ? .. .
(/d., at 15:13-16; emphasis added.)
Mr. KRANZ: Well, I would like to be heard on the sanctions some, your Honor.
THE COURT: Well, you know, I'm not going to make a career out of the sanctions
issue. The statute provides for it. / fold you, there was a shortfuil in the pleading, Mr.
Murray - -
MR. MURRAY: Okay.
THE COURT: I told you what 1 thought about your pleading here.
| Ud. at 18:8-22; emphasis added.)
-4-
:MPROFOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C-P. $4734¢)|1
| Thus, in at least five of the above instances from the hearing, the Court unambiguously
communicated to defendants’ counsel that defendants had failed to engage in a meaningful
analysis under the first prong of C.C.P. § 425.16.
to
cena
There are also no parts of the record that can reasonably be construed to prov ide grounds
to conclude that the Court did not intend to sign the subject order and that the Court had changed
a
You don’t try the case here. It’s such a narrow issue. . . That's why I put that,
what I just mentioned. in the tentative. .. You're talking first prong. . . Yes.
(Ud, 13:8-14.)
= Mr. Murray, maybe I’m taking a very simplistic point of view or analysis here,
but I told you what I think. (/d., 15:13-15.)
, I told you, there was a shortfall in th pleading, Mr. Murray - - I told you what I
thought about your pleading here. (/d., 18:11-22.)
There is not a single example from the transcript of the hearing time indicating that the
) Court was satisfied that defendants’ counsel had offered a meaningful C.C.P. § 425.16 analysis.
| Defendants’ contention that the Court's order reflected a “clerical error” is more than
speculation; it contradicts the record. It is incomprehensible how defendants, especially after
-6-
SEMOAOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C.P. $473(d)}]CUsardepstenstoanine:
reading transcript, can assert that the Court’s written order contradicted a ruling at the hearing.
Rather, the Court’s written order is entirely consistent with the Court’s numerous statements
throughout the hearing, with the Court’s queries to defendants’ counsel, with the Court's
responses to defendants’ counsel's answers, with the Court's refusal to agree with defendants’
i counsel’s arguments, and with the Court’s tentative ruling.
Defendants’ instant motion largely argues that the Court's error was “judicial”, not
clerical; defendants re-argue the same arguments made in their C.C.P. § 425.16 motion. They
disagree with the Court’s application of the law to the facts that resulted in the ruling their
instant motion contests. This is an improper application of C.C.P. § 473(d); under C.C.P. §
473(d), the Court does not have the power to amend a judicial decision.
B. Motions For A Court To Reconsider Its Prior Orders Must Demonstrate New Facts
or Law, as Required by C.C.P. § 1008, Without Which the Court Lacks
Jurisdiction to Reconsider a Prior Order.
The name of the motion is not controlling. Code of Civil Procedure section 1008
requirements apply to any motion that asks the judge to decide the same matter previously ruled
on, (Powell v. County of Orange (2011) 197 Cal. App. 4th 1573, 1377.)
Code of Civil Procedure section 1008(a) provides:
{a) When an application for an order has been made to a judge, or to a court, and refused
in whole or in part, or granted, or granted conditionally, or on terms, any party affected
by the order may, within 10 days afler service upon the party of written notice of entry of
the order and based upon new or different facts, cireumstances, or law, make application
to the same judge or court that made the order, to reconsider the matter and modify,
amend, or revoke the prior order. The party making the application shall state by
affidavit what application was made before, when and to what judge, what order or
decisions were made, and what new or different facts, circumstances, or law are claimed
to be shown. (Emphasis added.)
Code of Civil Procedure section 1008(e) provides:
(e) This section specifies the court's jurisdiction with regard to applications for
reconsideration of its orders and renewals of previous motions, and applies to all
applications to reconsider any order of a judge or court, or for the renewal of a previous
motion, whether the order deciding the previous matter or motion is interim or final. No
application to reconsider any order or for the renewal of a previous motion may be
considered by any judge or court unless made according to this section. (Emphasis
added.)
By making C.C.P. § 1008(e) expressly jurisdictional, the legislature intended to prevent
-7-
“MEMOMGEPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR IC.C.P. 47a)1H courts from modifying, amending or revoking prior orders without due reconsideration. (Morite
2 of California v. Superior Court (1993) 19 Cal. App. 4th 485, 492-493.) A court acts in excess of
3 jurisdiction when it grants motion to reconsider that is not based on new or different facts,
41) circumstances, or law. Pazderka v, Cabatleros Dimas Alang. Inc. (1998) 62 Cal. App. 4th 658,
3 }} 670.
6 This policy has also been expressly applied in the context of anti-SLAPP motions. (A
7H trial court had no jurisdiction to consider plaintiff's defective motion to reconsider granting of
8 |] defendant's anti-SLAPP motion, where motion to reconsider provided no indication that motion
9
was based upon new or different facts, circumstances, or law. as required by C.C.P. § 1008(a):
10 | where plaintif’s affidavit in support of motion failed to articulate any new or different facts,
11} circumstances. or law for court's consideration. G.R. v. Intelligator (2010) 185 Cal. App. 4th
12 | 606, 621-622. (“The motion clearly did not satisfy the requirements of section 1008. subdivision
13 | (a) and the court had no jurisdiction to consider the defective motion. (Code Civ. Proc., § 1008,
14 | subd. (e).)" Ud, at 622.)
15 The instant motion requests the Court to reconsider its written order. The motion plainly
| re-argues the merits of the anti-SLAPP motion. ‘There is nothing “new” in those arguments.
| There is no affidavit attesting to what new or different facts, circumstances, or law are being
| claimed. Defendants have thus [uiled to satisfy the requirements of section L008, subdivision (a)
| and the court has no jurisdiction to consider the defective motion.
Cc. Pursuant to C.C.P. $1008, Plaintiffs Should Be Entitled to Sanctions for Having to
Oppose this Motion.
Code of Civil Procedure section 1008(d) provides in relevant part:
(d) A violation of this section may be punished as a contempt and with sanctions as
allowed by Section 128.7. In addition, an order made contrary to this section may be
revoked by the judge or commissioner who made it, or vacated by a judge of the court in
which the action or proceeding is pending.
Defendants made no attempt to comply with the required provisions of C.C.P. §1008.
Therefore, plaintiffs should be entitled to sanctions for having had to oppose the instant motion.
| -
fcRPMOAGEPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.CP. $473(4)}
Ctlserstopetsis'Dowrioscs1 | CONCLUSION
For the foregoing reasons, this motion should be granted.
3 |) Dated: July 23, 2015 Respectfully submitted,
4 LAW OFFICES OF PAUL L. KRANZ
wy, Vote L Faery
“paul L. Kranz
-9-
Chhesuptaritoeoste oR ENOMOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.CP. $473(4)]
Preview
| LAW OFFICES OF PAUL L. KRANZ | PAUL L. KRANZ, ESQ., SBN 114999 499 14" Street, Suite 300 | Oakland, CA 94612 ELECTRONICALLY 3] kranzlaw@sbeglobal.net FILED Supertor Court of California, 4 Telephone: (510) 839-1200 ‘County of San Francisco _ || Faesimile: (510) 444-6698 07/23/2015 > Clerk of the Court Attomeys for Named Plaintifls Johna Pecot, et al., BYR A REMIRES 6 - Deputy Clerk 7 | s| 9] 10 SUPERIOR COURT FOR THE STATE OF CALIFORNIA ul COUNTY OF SAN FRANCISCO 12 13 14) JOHNA PECOT, et al. Individually and on Behalf of ) CASE NO. CGC-10-501168 _ {| All Others Similarly Situated, ) 15] ) PLAINTIFFS’ MEMORANDUM | Plaintiffs. ) OF POINTS AND AUTHORITIES 16 | ) IN OPPOSITION TO MOTION | v. ) PURSUANT TO CODE OF CIVIL 17] } PROCEDURE SECTION 473(d) to || SAN FRANCISCO DEPUTY SHERIFF'S ) CORRECT CLERICAL ERROR 18 | ASSOCIATION, a California Nonprofit ) IN ORDER AFTER DEMURRER 19 | Corporation, et al. ) & SLAPP HEARING i ) \ Defendants. ) Date: August 4.2015 20 | Time: 9:30 am. ” Dept.: 302 22 INTRODUCTION 237 Defendants move under Code of Civil Procedure section 473(d) to contest the Court's 24 |) order denying their December 18, 2014 anti-SLAPP motion. To prevail on a C.C.P. § 473 25 || motion, defendants must demonstrate that the Court did not intend to issue the contested order, 26 || and that it did so only as a result ofa clerical mistake or in ignorance of some material fact of 27 | record. 28 | The contention that subject order was the result of a clerical mistake or the result of the -l- SEMO“GrPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C.P. $473(0)] © MiserstupsigisDowniosdsy1 | Court’s ignorance of some material fact of record is belied by the record. The Court's tentative ruling was that defendants’ pleadings had failed to engage in a meaningful C.C.P. § 425.16 the Court’s tentative ruling was incorrect. Obviously unconvinced, the Court queried us defendants’ counsel several times throughout the hearing for such an analysis. The Court finally stated to defendants’ counsel that it remained unconvinced that the defendants had provided a Om meaningful C.C.P. § 425.16 analysis. (“I told you what I thought about your pleading here.”) 3 |, analysis. Defendants contested the tentative ruling and argued exhaustively at the hearing that 4 | Nor is there evidence from which to conclude otherwise. Defendants’ argument relies 9 |) upon the thin reed that the Court was willing to take the issue as to whether their anti-SLAPP motion was frivolous under submission. This clearly did not mean-as defendants’ motion i repeatedly suggests—that the Court had decided defendants had offered a meaningful C.C.P. § 2 || 425.16 analysis, and that therefore the Court must have signed the order ruling that defendants” motion was frivolous as the result of some clerical error or because of ignorance on the part of the Court with respect to the record. ‘The law is also that if the Court’s order was nor the result | of such an error by the Court, the Court is without jurisdiction under C.C.P. § 473(d) to consider defendants’ motion. Defendants’ motion re-argues their C.C.P. § 425.16 motion for why the Court should | modify its order, and for this reason, defendants’ motion is in effect an attempt to have the Court | reconsider their C.C.P. § 425.16 motion. Such a motion is a motion for reconsideration and is | governed by Code of Civil Procedure section 1008. As such a motion, defendants’ motion is wholly improper because defendants make no attempt whatsoever to comply with any of the requirements for such a motion. Nor can they. Defendants have no new and/or different facts or Jaws which is what is required to bring and prevail on such a motion. ‘The law is clear that | without new facts or law the Court lacks jurisdiction to hear their motion. . There is also case law specifically holding that the Court has no jurisdiction to reconsider its prior anti-SLAPP | ruling where no new or different facts, circumstances or law have been provided. 2 -2- WEMOMOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C-P. §473(a)] CAtsosupstersDownssSTATEMENT OF FACTS The Court's tentative ruling on the subject order that defendants are contesting stated in | part: _.. Defendants engage in na meaningful analysis as to how the causes of action for violation of the Corporations Code and concealment (causes of action nos. 6 and 8) arise from protected activity. As such the first prong of C.C.P. sec. 425.16 is not met. (Exhibit A to the Declaration of Paul L. Kranz in Support of Plaintiffs’ Opposition to Motion to Correct Clerical Error Pursuant to Cade of Civil Procedure Section 473(d) in Order Afier Demurrer & SLAPP Hearing (“Kranz Dec.) Defendants contested the tentative ruling. At the hearing on the following day, | exchanges between the Court and defendants’ counsel specifically about whether defendants’ | motion was [rivolous included the following: THE COURT: Your analysis on the issue [| in your moving papers - - MR. MURRAY: Right. ‘THE COURT: ~as to whether this is protected activity is that - - and I believe I'm quoting from you or dam near - - the documents sought related to Wong's protected activity, dues, increases, and payment of his salary, hence the burden has shifted. That's all you argued. THE COURT: How do you establish that by denying plaintiffs the right to inspect 16 : books they engaged in protected activity ? 17 | MR. MURRAY: [Lengthy purported explanation offered] 18 THE COURT: {don’t really think you dealt with this. 19 (Exhibit 1 to the Declaration of Lawrence D. Murray Declaration in Support of Motion to 20 | Correct Clerical Error Pursuant to Code of Civil Procedure Section 473(d) in Order After 21 | Demurrer & SLAPP Hearing (“Murray Dec.”), 6:13-7:17; emphasis added.) THE COURT: We have a pretty narrow issue here. 24 | Ud, at 8:9.) e THE COURT: Just a second. 26 Mr. Murray, I tried to get to the heart of things and now I'm kind of shifting gears here. | 7 tried to get to the heart of things in my tentative, and T said in my tentative. defendants 28 engage in no meaningful analysis as to how the causes of action arise from protected 3. o teetupssisioarbal REO OPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C.P. $473(d)]activity. It's prong number one. MR. MURRAY: THE COURT: — [just don't see the analysis. You re telling me a bunch of stuff, but papers didn’t tie any of that together. 5 || Ud, at 12:6-14; emphasis added.) 1 UisersupstarsiDonninads| THE COURT: Well, you're asking me to try the case. MR. MURRAY: No’ I'm not. THE COURT: You don’t try the case here. It’s such a narrow issue. That's why I - - MR. MURRAY: The first prong - - THE COURT: That's why I put that, what I just mentioned, in the tentative. MR. MURRAY: You're talking first prong ? THE COURT: Yes. Ud, at 13:6-14,) THE COURT: It's a statutory right [referencing plaintiffs’ rights to inspect corporate records]. Ud., at 14:18.) THE COURT: Well, maybe I'm taking it very - - Mr. Murray, maybe I'm taking a very simplistic point of view or analysis here, but Ttold you what I think. MR. MURRAY: Okay, What about the demurrer ? .. . (/d., at 15:13-16; emphasis added.) Mr. KRANZ: Well, I would like to be heard on the sanctions some, your Honor. THE COURT: Well, you know, I'm not going to make a career out of the sanctions issue. The statute provides for it. / fold you, there was a shortfuil in the pleading, Mr. Murray - - MR. MURRAY: Okay. THE COURT: I told you what 1 thought about your pleading here. | Ud. at 18:8-22; emphasis added.) -4- :MPROFOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C-P. $4734¢)|1 | Thus, in at least five of the above instances from the hearing, the Court unambiguously communicated to defendants’ counsel that defendants had failed to engage in a meaningful analysis under the first prong of C.C.P. § 425.16. to cena There are also no parts of the record that can reasonably be construed to prov ide grounds to conclude that the Court did not intend to sign the subject order and that the Court had changed a You don’t try the case here. It’s such a narrow issue. . . That's why I put that, what I just mentioned. in the tentative. .. You're talking first prong. . . Yes. (Ud, 13:8-14.) = Mr. Murray, maybe I’m taking a very simplistic point of view or analysis here, but I told you what I think. (/d., 15:13-15.) , I told you, there was a shortfall in th pleading, Mr. Murray - - I told you what I thought about your pleading here. (/d., 18:11-22.) There is not a single example from the transcript of the hearing time indicating that the ) Court was satisfied that defendants’ counsel had offered a meaningful C.C.P. § 425.16 analysis. | Defendants’ contention that the Court's order reflected a “clerical error” is more than speculation; it contradicts the record. It is incomprehensible how defendants, especially after -6- SEMOAOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.C.P. $473(d)}]CUsardepstenstoanine: reading transcript, can assert that the Court’s written order contradicted a ruling at the hearing. Rather, the Court’s written order is entirely consistent with the Court’s numerous statements throughout the hearing, with the Court’s queries to defendants’ counsel, with the Court's responses to defendants’ counsel's answers, with the Court's refusal to agree with defendants’ i counsel’s arguments, and with the Court’s tentative ruling. Defendants’ instant motion largely argues that the Court's error was “judicial”, not clerical; defendants re-argue the same arguments made in their C.C.P. § 425.16 motion. They disagree with the Court’s application of the law to the facts that resulted in the ruling their instant motion contests. This is an improper application of C.C.P. § 473(d); under C.C.P. § 473(d), the Court does not have the power to amend a judicial decision. B. Motions For A Court To Reconsider Its Prior Orders Must Demonstrate New Facts or Law, as Required by C.C.P. § 1008, Without Which the Court Lacks Jurisdiction to Reconsider a Prior Order. The name of the motion is not controlling. Code of Civil Procedure section 1008 requirements apply to any motion that asks the judge to decide the same matter previously ruled on, (Powell v. County of Orange (2011) 197 Cal. App. 4th 1573, 1377.) Code of Civil Procedure section 1008(a) provides: {a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days afler service upon the party of written notice of entry of the order and based upon new or different facts, cireumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Emphasis added.) Code of Civil Procedure section 1008(e) provides: (e) This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section. (Emphasis added.) By making C.C.P. § 1008(e) expressly jurisdictional, the legislature intended to prevent -7- “MEMOMGEPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR IC.C.P. 47a)1H courts from modifying, amending or revoking prior orders without due reconsideration. (Morite 2 of California v. Superior Court (1993) 19 Cal. App. 4th 485, 492-493.) A court acts in excess of 3 jurisdiction when it grants motion to reconsider that is not based on new or different facts, 41) circumstances, or law. Pazderka v, Cabatleros Dimas Alang. Inc. (1998) 62 Cal. App. 4th 658, 3 }} 670. 6 This policy has also been expressly applied in the context of anti-SLAPP motions. (A 7H trial court had no jurisdiction to consider plaintiff's defective motion to reconsider granting of 8 |] defendant's anti-SLAPP motion, where motion to reconsider provided no indication that motion 9 was based upon new or different facts, circumstances, or law. as required by C.C.P. § 1008(a): 10 | where plaintif’s affidavit in support of motion failed to articulate any new or different facts, 11} circumstances. or law for court's consideration. G.R. v. Intelligator (2010) 185 Cal. App. 4th 12 | 606, 621-622. (“The motion clearly did not satisfy the requirements of section 1008. subdivision 13 | (a) and the court had no jurisdiction to consider the defective motion. (Code Civ. Proc., § 1008, 14 | subd. (e).)" Ud, at 622.) 15 The instant motion requests the Court to reconsider its written order. The motion plainly | re-argues the merits of the anti-SLAPP motion. ‘There is nothing “new” in those arguments. | There is no affidavit attesting to what new or different facts, circumstances, or law are being | claimed. Defendants have thus [uiled to satisfy the requirements of section L008, subdivision (a) | and the court has no jurisdiction to consider the defective motion. Cc. Pursuant to C.C.P. $1008, Plaintiffs Should Be Entitled to Sanctions for Having to Oppose this Motion. Code of Civil Procedure section 1008(d) provides in relevant part: (d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending. Defendants made no attempt to comply with the required provisions of C.C.P. §1008. Therefore, plaintiffs should be entitled to sanctions for having had to oppose the instant motion. | - fcRPMOAGEPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.CP. $473(4)} Ctlserstopetsis'Dowrioscs1 | CONCLUSION For the foregoing reasons, this motion should be granted. 3 |) Dated: July 23, 2015 Respectfully submitted, 4 LAW OFFICES OF PAUL L. KRANZ wy, Vote L Faery “paul L. Kranz -9- Chhesuptaritoeoste oR ENOMOPPTS. & AUTHS. IN OPPOSITION TO MOTION TO CORRECT CLERICAL ERROR [C.CP. $473(4)]