Case Number: BC604450 Hearing Date: July 21, 2016 Dept: 34

SUBJECT: Motion for new trial

Moving Party: Cross-defendants Mehdi Tizabgar and Elham Mesri

Resp. Party: Cross-complainant Avner Kadosh

The moving parties’ motion is DENIED.

PRELIMINARY COMMENTS:

Both plaintiff and defendant are currently self-represented. At the Case Management Conference on May 17, 2016, both parties said that they will try to get counsel. The Court believes it would be in both parties’ best interest if they were to be able to obtain counsel.

BACKGROUND:

Plaintiff Mehdi Tizabgar commenced this action on 12/18/15 against defendant Avner Kadosh for intentional infliction of emotional distress. Plaintiff alleges that he is a witness and party to litigation in Alabama against Kadosh. Plaintiff alleges that Kadosh has been making threats to plaintiff in order to dissuade plaintiff from attending or giving testimony in the trial.

On 1/21/16, Kadosh filed a cross-complaint against Tizabgar and Mesri (“moving parties”) for intentional infliction of emotional distress and battery. Kadosh alleges that the moving parties engaged in intimidation and harassment against Kadosh, and Tizabgar pushed and shoved Kadosh.

ANALYSIS:

The moving parties seek to vacate the Court’s order denying their anti-SLAPP motion. The moving parties bring the instant motion under Code of Civil Procedure section 663. CCP § 663 states:

“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:
1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.
2. A judgment or decree not consistent with or not supported by the special verdict.” (Code Civ. Proc., § 663.)

This statute allows the court to set aside a judgment in a non-jury trial “that would obviously be reversed on appeal, saving the time and expense of the appeal.” (Cal. Prac. Guide Civ. Trials & Ev. Ch. 18-C, ¶ 18:489.)

The moving parties provide no authority which suggests that section 663 applies to the denial of an anti-SLAPP motion; the Court does not believe § 663 is relevant here.

Rather, the instant motion appears instead to be a motion for reconsideration.

A motion for reconsideration must be made within 10 days of service of the written notice of the entry of the order. (Code Civ. Proc., § 1008(a).) The moving parties seek reconsideration of the Court’s 5/17/16 order. Notice of that order was waived. (See Minute Order dated 5/17/16.) The instant motion was not filed until 6/1/16 – more than ten days after the hearing.

Under California Code of Civil Procedure, section 1008, the burden on the moving party “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.)(2005) 135 Cal.App.4th 206, 212-13.) The moving party must present a “satisfactory explanation for failing to provide the [information] earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690 [emphasis added].)

The moving parties fail to provide any new or different law or evidence that could not have been produced prior to the hearing on the anti-SLAPP motion. Instead, the moving parties argue that the anti-SLAPP motion was made only as to the first cause of action in the cross-complaint, which is based on protected activity. The Court was aware of this; in fact, the first line of its “Analysis” of the anti-SLAPP motion states, “Defendants seek to strike the first cause of action in the cross-complaint pursuant to Code of Civil Procedure section 425.16.” (See 5/17/16 Minute Order.)

Further, as stated in the Court’s ruling, the moving parties failed to meet their burden on the anti-SLAPP motion:

Here, the moving parties fail to meet their burden of showing that the first cause of action is based on protected conduct. The MPA accompanying the anti-SLAPP motion consists of only one paragraph that makes the conclusory assertion that the first cause of action is based on litigation activity. (See Motion, p. 3.) The moving parties cite to a case, Bergstein v. Stroock & Stroock & Lavin (2015) 236 Cal.App.4th 793, in which the Court of Appeal upheld this trial court’s granting of an anti-SLAPP motion because the underlying statements were made in connection with litigation.

However, there is nothing in the cross-complaint that establishes that the claim is based on litigation conduct. Instead, the cross-complaint alleges that “cross-defendant Tizabgar assaulted and battered Kadosh.” (Cross-compl, ¶ 7.) The cross-complaint further alleges cross-defendants engaged in the following conduct: “fabricating stories about KADOSH, threatening KADOSH with litigation, threatening at his place of employment, stating he is ‘unstable’ and a ‘thief.’ (Cross-compl., ¶ 9.)

While “threatening . . . litigation” could be protected activity, there are no other allegations which would suggest that this claim is based on litigation activity, and the moving parties provide no evidence to suggest such.

(Minute Order dated 5/17/16, pp. 5-6.) The instant motion once again fails to provide any evidence or otherwise show that the alleged conduct constituted litigation activity.

Accordingly, the motion is DENIED.