Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Jane Doe v. Peter Searle Clark
Case No: 19CV05332
Hearing Date: Mon Feb 10, 2020 9:30

Nature of Proceedings: Motion to Reconsider Court’s Decision to Convert Plaintiff’s Voluntary Dismissal from Without to With Prejudice and Request for Sanctions

CASE: Jane Doe v. Peter Searle Clark, Case No. 19CV05332 (Judge Sterne)

HEARING DATE: February 10, 2020

MATTER: Motion to Reconsider Court’s Decision to Convert Plaintiff’s Voluntary Dismissal of Second and Fifth Causes of Action without Prejudice to a Dismissal with Prejudice and Motion for Sanctions against Defendant’s Attorney for Purposely Violating California Rules of Court, Rule 3.1308, subdivision (a)(1).

ATTORNEYS:

Angelina R. Lane for Plaintiff Jane Doe

Daniella T. Felix for Defendant Peter Searle Clark

TENTATIVE RULING: Plaintiff’s motion for reconsideration of the court’s order dismissing her second and fifth causes of action with prejudice is denied. Plaintiff’s motion for sanctions against defendant’s attorney is denied.

BACKGROUND:

This action stems from a sexual relationship between plaintiff Jane Doe (fictitious name) and defendant Peter Searle Clark. Plaintiff alleges that defendant intentionally and surreptitiously video and tape recorded their sexual encounters and confidential communications. On October 4, 2019, plaintiff filed her complaint against defendant for (1) unlawful recording of confidential communications, (2) violation of Civil Code Section 1708.85, (3) invasion of privacy, (4) intentional infliction of emotional distress, and (5) civil extortion. Defendant answered the complaint and also filed a special motion to strike plaintiff’s second and fifth causes of action. Plaintiff did not file opposition to the special motion to strike, but instead, voluntarily dismissed her second and fifth causes of action without prejudice.

Although plaintiff had voluntarily dismissed her second and fifth causes of action, defendant’s special motion to strike proceeded to hearing for purposes of determining whether defendant was entitled to an award of attorney’s fees associated with the motion. At the hearing, defendant argued, over plaintiff’s objection, that if the court agreed that defendant would have prevailed on his special motion to strike the second and fifth causes of action, then both claims should be dismissed with prejudice because the anti-SLAPP statute did not allow amendments of causes of action subject to a special motion to strike. At the conclusion of the hearing, the court found that defendant would have prevailed on his special motion to strike plaintiff’s second and fifth causes of action and awarded attorney’s fees to defendant. The court also ordered the second and fifth causes of action dismissed with prejudice.

Plaintiff now moves for reconsideration of the court’s order dismissing her second and fifth causes of action with prejudice. Plaintiff also requests monetary sanctions against defendant’s attorney for failing to notify plaintiff’s attorney prior to the hearing on the special motion to strike that she intended to argue that plaintiff’s second and fifth causes of action should be dismissed with prejudice. Defendant opposes plaintiff’s motion for reconsideration and the motion for sanctions.

ANALYSIS:

A motion for reconsideration may be brought pursuant to Code of Civil Procedure Section 1008, subdivision (a), which provides:

“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, 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.”

Thus, under Section 1008, after an order is granted by the court, any party affected by the order may seek reconsideration, but only upon a showing of “new or different facts, circumstances, or law.” Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. The motion for reconsideration must also be made within 10 days after service of written notice of entry of the underlying order, unless notice is waived by all parties. Advanced Building Maintenance v. State Compensation Insurance Fund (1996) 49 Cal.App.4th 1388, 1392.

Plaintiff argues that her motion for reconsideration is based on new law not considered at the hearing on defendant’s special motion to strike and is timely because it was filed on January 15, 2020, just nine days after the court issued its order dismissing plaintiff’s second and fifth causes of action with prejudice. At the hearing, plaintiff’s attorney was surprised by the court’s ruling because she had not been provided any notice by defense counsel (other than in the hallway of the courthouse immediately prior to the hearing) that defendant intended to argue that plaintiff’s second and fifth causes of action, which plaintiff had voluntarily dismissed without prejudice, should be dismissed with prejudice. (Lane Dec., ¶8.) As a result, plaintiff’s attorney was not prepared for oral argument and had not researched the issue. (Lane Dec., ¶11.) Since then, plaintiff’s attorney has researched the law further and believes the court lacked jurisdiction to dismiss the two claims with prejudice.

Plaintiff’s motion for reconsideration will be denied. The court’s decision to dismiss plaintiff’s second and fifth causes of action with prejudice is supported by the anti-SLAPP statute itself, which prohibits amendments of claims subject to a special motion to strike. Code of Civil Procedure Section 425.16, the anti-SLAPP statute, requires a court to strike a lawsuit or cause of action if it has been filed against a person based on that person’s conduct in furtherance of his or her constitutional right to petition or free speech, unless the plaintiff can prove a probability of prevailing on the merits of the claim. Section 425.16 provides:

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

Section 425.16 was enacted by the legislature to provide a procedural remedy to dispose of lawsuits or claims that are brought to chill the valid exercise of constitutional rights. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see also, Okorie v. Los Angeles Unified School District (2017) 14 Cal.App.5th 574, 598 (“The anti-SLAPP statute was enacted to purge meritless lawsuits and to do so at an early stage of the litigation.”). Because the anti-SLAPP statute was intended to dispose of unmeritorious claims by early dismissal, if a defendant’s special motion to strike is granted, the trial court may not grant leave to amend to allege new facts demonstrating that the complaint is not subject to the anti-SLAPP statute. Simmons v. Allstate Insurance Company (2001) 92 Cal.App.4th 1068, 1073. In fact, the trial court cannot even allow an amendment after the defendant has shown that the claim arises from a protected activity (the first prong of the anti-SLAPP analysis) or before the hearing on the motion because this would undermine the purpose of the statute, which is to provide a “quick and inexpensive method of unmasking and dismissing [meritless] suits.” Okorie, supra, at 599.

In Simmons, the court foresaw the procedural problems that could result if a plaintiff were allowed to amend its pleading to defeat the legislative purpose of Section 425.16. As the court stated:

“[T]he anti-SLAPP statute makes no provision for amending the complaint once the court finds the requisite connection to First Amendment speech. And, for the following reasons, we reject the notion that such a right should be implied.

“In enacting the anti-SLAPP statute, the Legislature set up a mechanism through which complaints that arise from the exercise of free speech rights ‘can be evaluated at an early stage of the litigation process’ and resolved expeditiously. [Citation.] Section 425.16 is just one of several California statutes that provide ‘a procedure for exposing and dismissing certain causes of action lacking merit.’ [Citation.]

“Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.

“By the time the moving party would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. [Citation.] Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. [Citation.] This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits.”

Id., at 1073-1074.

In this case, plaintiff voluntarily dismissed her second and fifth causes of action without prejudice prior to the hearing on defendant’s special motion to strike, but this left open the opportunity for plaintiff to amend her complaint to plead around the protected activity and thus avoid the consequences of Section 425.16. Such a result would be contrary to the statute’s legislative intent and the above case law and why the court ordered the two claims dismissed with prejudice. Once a defendant’s special motion to strike has been filed revealing facts which would result in a dismissal of the challenged causes of action, the plaintiff cannot be allowed for tactical reasons to simply dismiss the claims in order to avoid the consequences of a determination on the merits. “The right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute.” Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402. As stated in Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 176, a plaintiff cannot defeat a defendant’s right to obtain a determination on the merits by simply filing a dismissal when statutory authority entitles the defendant to a judgment on the disputed claim.

Plaintiff cites Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869 for the proposition that the court lacked jurisdiction to order her second and fifth causes of action dismissed with prejudice after she had previously dismissed the claims without prejudice. Ellis, however, is distinguishable from this case. In Ellis, a law firm brought an action against former clients for breach of contract, fraud, and intentional interference with prospective economic relations. After the clients filed a special motion to strike the complaint under Code of Civil Procedure Section 425.16, the law firm voluntarily dismissed the action without prejudice. On appeal, the issue was whether the trial court had jurisdiction to consider the defendants’ anti-SLAPP motion notwithstanding that the plaintiff had dismissed the action. The court held that, because the plaintiff had dismissed the entire action while the defendants’ anti-SLAPP motion was pending, the trial court lost jurisdiction in the case, except for the limited purpose of awarding statutory attorney’s fees and costs. Id., at 879.

Here, unlike in Ellis, plaintiff did not dismiss her entire complaint, but only two causes of action. Accordingly, the court did not lose jurisdiction of the matter and the two claims at issue were properly dismissed with prejudice.

Plaintiff argues that defendant’s attorney should be sanctioned for failure to give proper notice of her intent to present oral argument at the hearing on defendant’s special motion to strike. California Rules of Court, Rule 3.1308 and Santa Barbara Local Rule 1301 provide that all parties must give notice of their intent to make oral argument by 4:00 p.m. on the court day before the hearing on a matter. “[T]he court may order a [party], after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.” Cal. Rules of Court, Rule. 2.30, subd. (b).

Defense counsel acknowledges that she failed to provide notice of her intent to make oral argument until just prior to the hearing, but, as detailed in the opposition, the failure to give notice was inadvertent and not intentional. (Felix Dec., ¶10.) Immediately upon seeing plaintiff’s attorney at the courthouse, defendant’s attorney informed plaintiff’s attorney of her intention to argue that the two causes of action should be dismissed with prejudice as opposed to without prejudice. (Felix Dec., ¶11.) Plaintiff’s motion for monetary sanctions will therefore be denied.