2013-00146665-CU-DF

Brian Detrick vs. Constance V. Conley

Nature of Proceeding:      Motion to Strike

Filed By:   Stouder, Daniel S.

Plaintiff Brian Detrick’s Motion to Strike Defendant’s Renewed Anti-SLAPP Motion, or
in the alternative, for Limited Discovery is DENIED.

Procedural posture

On June 17, 2013, Plaintiff filed his complaint against defendant Constance V. Conley
st            nd
for damages and injunctive relief, alleging three causes of action: the 1   for libel, 2
for intentional interference with prospective economic advantage and 3rd for negligent
interference with prospective economic advantage.

Conley filed her Answer including affirmative defenses to the Complaint on Aug. 28,
2013.

On Sept. 13, 2013, defendant Conley filed her anti-SLAPP motion, calendared for
hearing on Oct. 11, 2013. Plaintiff opposed the anti-SLAPP motion, and on Oct. 11,
2013 this Court denied the special motion to strike anti-SLAPP motion, finding that
although Defendant had demonstrated that this action arises out of her protected
activity under the first prong of the anti-SLAPP analysis, Plaintiff had presented  sufficient evidence to demonstrate a probability of prevailing on the claims.

The Court’s determination of the second prong of the prior anti-SLAPP motion was
based upon its interpretation of a June 19, 2012 letter from the Attorney General’s
office (“AG”) to Brian Detrick entitled “Notice To Register As A Commercial Fundraiser
For Charitable Purposes” that he “may be providing services” in California as a
Commercial Fundraiser for Charitable Purposes, as defined in Government Code
section 12599. All such fundraising professionals are required to register and file
annual reports with the Registry. As the AG wrote “may be providing services”, the
Court could not conclude that Brian Detrick was required to register or had violated the
Government Code, or that he could not prevail on his complaint in this action. The anti-
SLAPP motion was therefore denied.

On Nov. 12, 2013, defendant’s ex parte application for leave to file a Renewed Anti-
SLAPP motion was heard by this Court. Moving party declared that on November 4,
2013, the Attorney General of the State of California issued a second “Notice To
Register As A Fundraising Professional For Charitable Purposes-Second Request-
Certified Mail” to Brian Detrick.

Unlike the previous letter from the Attorney General that this Court deemed to only be
a suggestion that Detrick “may be providing services”, this letter explicitly states that
Detrick “is providing services” [emphasis added]. Moving party defendant asserted that
the new fact that the Attorney General has determined that Detrick is required to
register as a Commercial Fundraiser is a complete defense to the allegation in the
complaint that Conley defamed Detrick by saying that he needed to register.

On Nov. 12, 2013, this Court granted defendant’s ex parte application to file a renewed
anti-SLAPP motion after the deadline, “based on the [Attorney General’s] letter of Nov.
4, 2013.”  The ex parte order granted leave to file the renewed motion by Dec. 15,
2013.

On Dec. 10, 2013, defendant filed her Renewed Anti-SLAPP motion, which plaintiff
now asserts contains more new evidence than solely the Nov. 12, 2013 AG letter that
was previously disclosed at the ex parte hearing. Plaintiff asserts that no explanation is
provided by defendant why the additional evidence was not provided at the time of the
original Anti-SLAPP motion.

On Dec. 19, 2013, plaintiff submitted an ex parte application for an Order Shortening
Time for hearing of this motion and a Continuance of the hearing date of the
defendant’s Renewed Anti-SLAPP motion so that they could be heard concurrently.
That ex parte application was granted by J. Loncke.

Application of Law to Facts

C.C.P., sec. 1008(b) permits a party who originally made an application for an order
which was refused in whole or part, to make a subsequent application for the same
order upon new or different facts, circumstances, or law.  Moving party must show by
affidavit what new or different facts, circumstances, or law are claimed to be shown.
For a failure to comply with this subdivision, any order made on a subsequent
application may be revoked or set aside on ex parte motion.

Here, plaintiff asserts that defendant has exceeded the scope of the Court’s ex parte
leave to renew her Anti-SLAPP motion, under C.C.P., sec. 1008, by including facts
and evidence which were available to her at the time of the initial motion and which
were not presented to the Court at the time of the ex parte as the basis for a renewed
special motion to strike.

Moving party plaintiff asserts that defendant has simply taken another bite of the apple,
ignoring the limitation on the renewed motion imposed by the Court. In the alternative,
if the Court does not strike the renewed anti-SLAPP motion, plaintiff requests leave to
conduct discovery as to the facts and legal significance of the Nov. 4, 2013 letter
addressed to him from the Attorney General.

In opposition the defense asserts that plaintiff has failed to cite any authority for this
motion to strike, instead of simply opposing the Renewed Anti-SLAPP motion on the
same procedural grounds.  Plaintiff has further failed to cite any case law permitting
the Renewed Anti-SLAPP motion to be denied because some, but not all, the evidence
relied upon is not new. Conversely, it is clear some of the evidence is new. C.C.P.,
sec. 1008(a) provides, in part, “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 after
service upon the party of written notice of entry of the order and based upon new or
different facts, circumstances, or law,..” The code section requires “new or different
facts” but does not restrict the court from reconsidering “old” facts in light of the new
facts.

Defendant explains the addition of the three pieces of evidence objected to by plaintiff,
which were in existence but were not in her possession at the time of the filing of the
original Anti-SLAPP motion. The Court is satisfied with this explanation, as that
evidence has additional significance in the context of the new letter from the Attorney
General.

The Court does not finds that it is deprived of jurisdiction by C.C.P., sec. 1008 to hear
the renewed anti-SLAPP motion.

On Nov. 12, 2013, the Court granted defendant’s ex parte application to file a
Renewed Anti-SLAPP motion (based upon new evidence) in the exercise of the
Court’s discretion, beyond the expiration of 60 days following the service of the
complaint.  The delay in scheduling the Renewed Anti-SLAPP hearing date has been
caused by the request for continuance of the hearing date from the opposing party
plaintiff, thus a hearing later than 30 days after the service of the motion may also be
permitted. C.C.P., sec.  425.16(f).

The Court denies the plaintiff’s request to conduct discovery.  The discovery sought is
from the office of the Attorney General, and plaintiff must already know the extent and
content of his communications with that office.

The Court therefore denies this motion in its entirety, and reschedules the hearing of
the defendant’s Renewed Anti-SLAPP motion for Thursday, March 6, 2014. Further
briefing shall be pursuant to C.C.P., sec. 1005.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.