Case Name: White v. Webby, et al.

Case No.: 18CV333877

Defendant Sean Webby (“Webby”) demurs to the complaint (“Complaint”) filed by plaintiff Stephen P. White (“Plaintiff”). Plaintiff moves for reconsideration of the Court’s November 6, 2019 order granting defendant Michelle Dauber’s (“Dauber”) anti-SLAPP motion.

I. Background
II.

A. Factual
B.

This is an action in which Plaintiff alleges that the defendants interfered with his free speech rights, defamed him and caused him emotional distress. According to the allegations of the Complaint, Dauber and Webby conspired to steal a sign possessed by Plaintiff which expressed disapproval of the campaign to recall then-judge Aaron Persky. (Complaint, ¶ 1.) Webby also allegedly suppressed Plaintiff’s free speech rights by ordering DA inspectors to surveille him at a public event- a press conference held by Webby’s superior, District Attorney Jeff Rosen. (Id.)

C. Procedural
D.

Based on the foregoing allegations, Plaintiff filed the Complaint on September 4, 2018, asserting the following causes of action: defamation; conversion; intentional infliction of emotional distress; and “interference with free speech rights.”

Dauber timely filed a special motion to strike all causes of action asserted against her in the Complaint. On November 6, 2019, the Court issued an order granting Dauber’s motion in its entirety, reasoning that she had established that Plaintiff’s claims arose out of protected activity. The motion was deemed unopposed due to the Court having stricken Plaintiff’s opposition for failure to properly serve Dauber with it. Consequently, Plaintiff was unable to establish a probability of prevailing on the merits of his claims. On November 15, 2019, Plaintiff filed the instant motion for reconsideration of the Court’s order. Dauber opposes the motion.

On November 13, 2019, Webby filed the instant demurrer to the Complaint, as well as the second, third and fourth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff opposes the motion.

III. Webby’s Demurrer
IV.

A. Webby’s Request for Judicial Notice
B.

In support of his demurrer, Webby requests that the Court take judicial notice of the following items: (1) a Request for Civil Harassment Restraining Orders filed by Plaintiff on September 27, 2016; and (2) a Response to Request for Civil Harassment Restraining Orders filed by Webby on November 23, 2016. While the Court can properly take judicial notice of the existence of these documents because they are court records (see Evid. Code, § 452, subd. (d)), it cannot take judicial notice of their contents. (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.) Subject to the foregoing limitation, Webby’s request for judicial notice is GRANTED.

C. Timeliness of Opposition
D.

As an initial procedural matter, the Court notes that Plaintiff’s opposition is untimely. Under the Code of Civil Procedure, “[a]ll papers opposing a [demurrer] shall be filed with the court and a copy served on each party at least nine court days … before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) With a hearing date of March 10, 2020, Plaintiff was therefore required to file and serve his opposition by February 26, 2020. However, it was not filed until March 2, 2020. While the Court could in its discretion refuse to consider Plaintiff’s brief due to its tardiness, and Webby urges it to do so, in the interests of judicial economy the Court will consider it. While Webby was surely deprived of the statutorily-mandated numbers of days to which he was entitled to review the opposition, he does not appear to have suffered any resulting prejudice as he has filed a substantive reply.

Although Plaintiff is self-represented, the rules of civil procedure apply with equal force to those who forgo attorney representation. (See Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 619, fn. 4; see also Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210 [explaining that a party’s self-represented status does not afford him or her any greater consideration than any other party that appears before the court].) The Court notes that in a preceding order, it highlighted Plaintiff’s failure to comply with applicable procedural rules. Plaintiff is admonished to comply with such rules in the future.

E. Substantive Merits
F.

Webby’s demurrer to the Complaint and the three claims asserted against him therein is predicated entirely on his assertion that the Complaint is fatally deficient as to him because Plaintiff fails to plead facts establishing his compliance with the Government Claims Act, or excuse therefrom.

“The Government Claims Act (“Gov. Code, § 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a public entity [or employee of a public entity]. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (Gov. Code, § 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (Gov. Code, § 945.4.) [T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action…. The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity.” (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591, internal citations and quotations omitted; see also Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374 [“the timely filing of a written claim with the proper officer or body is an element of a valid cause of action against a public entity” or employee].) A plaintiff is required to affirmatively plead compliance with the pre-litigation claim requirement to state a viable cause of action. (State v. Superior Ct. (Bodde) (2004) 32 Cal.4th 1234, 1240 [explaining a plaintiff who fails to do so risks dismissal upon “a general demurrer for failure to state facts sufficient to constitute a cause of action”].) A claim for money damages not related to personal injury or death or damages to property must be filed within one year of the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).)

Here, as Plaintiff alleges, Webby is an employee of the County of Santa Clara Office of the District Attorney. (Complaint, ¶ 1.) Yet Plaintiff fails to plead any facts which demonstrate or excuse his compliance with the claims presentation requirement of the Government Claims Act.

In his opposition, Plaintiff does not specifically address the question of his compliance with the claims presentation requirement, instead asserting additional factual allegations relating to the incidents discussed in the Complaint. Plaintiff also generally asserts that Webby was not acting in the scope of his employment with the County of Santa Clara, but his allegations in the Complaint that Webby utilized resources available to him in his position with the District Attorney’s Office to suppress Plaintiff’s free speech rights and commit other torts against him demonstrate to the contrary.

Thus, because compliance with the Government Claims Act is required based on what is alleged in the Complaint, and Plaintiff has not alleged compliance or excuse from compliance, Webby’s demurrer must be sustained. (See Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 938 [stating that “filing a claim with a public entity pursuant to the [Government] Claims Act is a jurisdictional element of any cause of action for damages against the public entity”].) Accordingly, Webby’s demurrer to the Complaint on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

V. Plaintiff’s Motion for Reconsideration
VI.

A. Dauber’s Request for Judicial Notice
B.

In support of her opposition to Plaintiff’s motion for reconsideration, Dauber requests that the Court take judicial notice of the following items: (1) Notice of Entry of Order on Defendant’s Special to Strike (Exhibit 1); (2) Notice of Appeal of Motion to Strike. As these items are both court records, they are proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (d). Accordingly, Dauber’s request for judicial notice is GRANTED.

C. Substantive Merits
D.

As set forth above, Plaintiff moves for reconsideration of the Court’s order granting Dauber’s special motion to strike all claims against her in the Complaint. In opposing the motion, Dauber makes the following arguments: (1) the Court has no jurisdiction to hear the instant motion because Plaintiff filed a notice of appeal of its order; and (2) Plaintiff fails to meet the standard provided by Code of Civil Procedure section 1008 (“Section 1008”) for modification of the Court’s order.

1. The Court’s Jurisdiction to Rule on Plaintiff’s Motion
2.

Dauber first argues that the Court lacks jurisdiction to hear the instant motion due to the notice of appeal filed by Plaintiff of the Court’s order granting her anti-SLAPP motion. It is undisputed that Plaintiff filed such notice on January 8, 2020. The motion for reconsideration was filed nearly two months prior on November 15, 2019.

The relevant statutory authority with regard to the issue of whether the Court can rule on Plaintiff’s motion is Code of Civil Procedure section 916 (“Section 916”), which provides in pertinent part:

Except as [otherwise] provided …, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon other matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.

(Code Civ. Proc., 916, subd. (a) [emphasis added].)

Thus, an appeal does not stay proceedings on “ancillary or collateral matters which do not affect the judgment [or order] on appeal,” even though the proceedings may render the appeal moot.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.) Therefore, the Court must determine whether the motion for reconsideration falls within the scope of matters “embraced” or “affected” by the order being appealed.

Dauber first cites to Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 for the proposition that an appeal from the granting of special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion under Section 916. Varian, however, clearly involved an appeal on an order denying an anti-SLAPP motion. What is the effect, if any, is the fact that the underlying order in this action was the granting of the special motion to strike?

Varian instructs that “[i]n determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relating to the proceeding and its possible results. [W]hether a matter is ‘embraced’ in or ‘affected’ by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted.” (Varian, 35 Cal.4th at 189, internal citations and quotations omitted.)

It seems clear that the instant motion for reconsideration would affect the effectiveness of the appeal and is not an “ancillary or collateral” matter, but rather, as the court concluded in Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 52, “part of the progression on the same anti-SLAPP issues.” In Young, a doctor petitioned for a writ of mandate challenging the decisions of a hospital board of directors to suspend him and terminate his privileges. The trial court granted the defendant healthcare district’s anti-SLAPP motion as to one cause of action, mistakenly ordered dismissal of the entire action, and then restricted the dismissal to the single cause of action. After a motion for reconsideration by the plaintiff concerning the court’s determination on whether he had exhausted his administrative remedies was granted, the healthcare district filed its own motion for reconsideration, contending that the prior dismissal of the entire action remained valid, or alternatively, the anti-SLAPP motion was well taken. While its motion was pending, the district filed its notice of appeal on the court’s ruling on the plaintiff’s successful motion for reconsideration. After the court granted the district’s motion and it abandoned its appeal, the plaintiff appealed.

Convoluted procedural record aside, the appellate court determined that the trial court lost subject matter jurisdiction over the second reconsideration motion because the filing and perfecting of the district’s own appeal caused it to lose its authority to resolve the district’s own reconsideration motion, which was still pending when its own appeal was filed. The Court reached this conclusion after, among other things, noting that the reconsideration statute, Code of Civil Procedure section 1008, subdivision (g), indicates that “an order denying a motion for reconsideration is not separately appealable, and any appellate rights concerning it will depend upon the appealable nature of the underlying order,” and “[l]ikewise, when the order grants reconsideration, the [reconsideration] statute does not indicate that it gains a collateral nature that would allow interim trial proceedings on the same subject matter to be conducted.” (Young, supra, 210 Cal.App.4th at 52.) The court explained that as the district’s motion for reconsideration was part of the progression on the same anti-SLAPP issues, the second reconsideration motion did not amount to any post order remedy that was expressly authorized to be heard as a collateral matter after the same subject matter ruling was appealed by the same moving party. (Id.)

Here, Plaintiff is in the same procedural posture as the district in Young, having elected to pursue an appeal of the Court’s order granting the anti-SLAPP motion while his motion for reconsideration of that same order was pending. As soon as he filed notice of his appeal, this Court similarly lost its authority to rule on his motion for reconsideration. Thus, the Court cannot reach the substantive merits of the motion for reconsideration and it is DENIED.