2017-00215260-CU-BC

Aaron Timm vs. Quicklegal Practice Management, Inc.

Nature of Proceeding: Motion for Reconsideration

Filed By: Salama, Joseph

Plaintiff’s Motion for Reconsideration of the Court’s 2/9/2018 order granting defendants’ special anti-SLAPP motion to strike the 10th Cause of Action for

“Deceptive Business Practices” from plaintiff’s First Amended Complaint (“1AC”) is DENIED.

Plaintiff failed to file or serve with the moving papers any notice of motion and thus, did not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a). For this reason alone, the present motion is fatally defective.

Plaintiff also failed to provide notice of the court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.

Plaintiff again failed to comply with CRC Rule 3.1110(b)(3)-(4).

Factual Background

This action arises from plaintiff’s prior investment in a legal services business. Suit was commenced on 7/10/2017 and the 1AC filed on 10/25/2017 purports to assert ten causes of action including but not limited to breach of contract, misrepresentation, “fraud,” conspiracy to commit fraud, conversion, negligence and “Deceptive Business Practices” under Business & Professions Code §17500 [relating to “false or misleading statements”].

Defendants previously moved to strike just the 10th cause of action on the grounds that it arises from defendants’ constitutional right to free speech and in connection with a public issue so as to fall within the protections afforded by the provisions of Code of Civil Procedure §425.16(e), thereby requiring plaintiff to establish a “probability of prevailing” on this cause of action in order to prevent it from being stricken under §425.16(b). Defendants further asserted that plaintiff cannot establish a “probability of prevailing” on the 10th cause of action because it is not adequately pled and plaintiff cannot present admissible evidence sufficient to establish each of the prima facie elements of the claim.

Although plaintiff opposed the earlier motion, this court granted defendants’ motion not only because the 10th cause of action was not adequately pled and therefore not “legally sufficient” to defeat the anti-SLAPP motion but also because plaintiff offered no evidence whatsoever in an attempt to satisfy his substantive burden of establishing a prima facie case against any of the defendants for a violation of Business & Professions Code §17500.

Moving Papers. Plaintiff now requests reconsideration of the 2/9/2018 order granting defendants’ special anti-SLAPP motion on the ground that plaintiff’s counsel on 2/16/2018 first became aware of an indictment of one of the defendants in this case, Mr. Bluford, for violations of federal law. Plaintiff contends the allegations in this indictment of Mr. Bluford are very similar to the allegations in the present case and thus, the court should reconsider its 2/9/2018 order. Alternatively, plaintiff asks that this order be vacated so he can pursue discovery over the next 60 days.

Opposition. Defendants oppose, arguing first that this court lacks jurisdiction to entertain plaintiff’s motion because it was filed after Code of Civil Procedure §1008’s

10-day deadline for seeking reconsideration expired even if this period was extended by 5 days for the clerk’s mailing of the court’s 2/9/2018 order. Second, the opposition contends plaintiff’s failure to file and serve a proper notice of this motion renders the motion fatally defective. Third, even if the court entertains this motion to reconsider, plaintiff still cannot cure the defective pleading of the 10th cause of action which was targeted by the earlier anti-SLAPP motion and fourth, plaintiff has still failed to offer any admissible evidence to support the 10th cause of action given that the court cannot take judicial notice of the inadmissible hearsay allegations found in the indictment upon which the present motion is expressly premised. Fifth, plaintiff is precluded from presenting any “old” evidence by the explicit terms of §1008, which requires new or different facts, circumstances or law and plaintiff has still not provided evidence to establish each of the prima facie elements for his false advertising cause of action. Finally, pursuant to §425.16, defendants request an award of attorney fees of just over $5,500.

Request for Judicial Notice

Plaintiff’s request for judicial notice of the federal indictment of defendant Bluford is granted but only as to the indictment’s existence since the court cannot take judicial notice of its contents or the truth of the allegations therein, given the hearsay rule in Evidence Code §1200 et seq. (See also, Professional Engineers v. Dept. of Transp. (1997) 15 Cal.4th 543, 590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865.)

Analysis

The present motion for reconsideration must be denied. Code of Civil Procedure §1008 states that a motion for reconsideration must be brought within 10 days of the service of the order for which reconsideration is sought. In the case at bar, the 2/9/2018 order granting defendants’ anti-SLAPP motion was mailed by the court clerk on the same day and even assuming this 10-day period were extended by 5 days for mailing, plaintiff’s motion for reconsideration was not filed until 18 days later on 2/27/2018. As this 10-day period is jurisdictional, plaintiff’s failure to timely file and serve the present motion precludes the court from now reconsidering the earlier 2/9/2018 order.

Additionally, while plaintiff’s failure to file and serve a proper notice for this motion raises additional jurisdictional and due process issues, defendants have correctly pointed out that the earlier anti-SLAPP motion was granted in part because the 10th cause of action was not sufficiently pled and thus, regardless of the purported evidence now being offered by plaintiff, the outcome of the earlier motion would necessarily be the same given the previously-cited defects appearing on the face of the 1AC.

Likewise, as explained above, this court can take judicial notice of neither the allegations contained in the indictment nor the truth thereof, particularly when the Constitution creates a presumption of innocence which remains unless and until guilt has been determined after due process of law. Moreover, even if this court could take judicial notice of the contents of the proffered indictment, such contents would be legally insufficient to establish each of the prima facie elements needed to demonstrate plaintiff’s probability of prevailing against any of the defendants on the 10 th cause of action, especially since the court cannot in connection with a motion under

§1008 consider facts or evidence which reasonably could have been offered in the earlier proceedings.

Conclusion

For the reasons explained above, plaintiff’s motion for reconsideration must be and hereby is denied.

The court finds that defendants are entitled to an award of attorney fees pursuant to the Third District Court of Appeal’s decision in Wanland v. Law Offices of Mastagni, Holstedt (2006) 141 Cal.App.4th 15, which found that attorney fees were properly awarded when a successful SLAPP defendant challenged the undertaking posted by a plaintiff pending appealing of the trial court’s granting of an anti-SLAPP motion. However, this Court finds that no more than 5 hours of time was reasonably required by defendants to oppose reconsideration and will therefore award defendants attorney fees in the amount of $2,250, based on the stated hourly rate of $450.