Judge: Nathan R. Scott, Case: Thomas vs. Thomas, Date: 2022-10-07 Tentative Ruling

Plaintiffs Denise Thomas and Ernest Calhoon’s motion for reconsideration (ROA #157) is denied.

Plaintiffs fail to show any new or different fact, circumstance, or law that could not with reasonable diligence have been presented earlier.  (Code Civ. Proc. § 1008, subd. (a); Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.)

Defendant’s anti-SLAPP motion was originally set for hearing on 12/2/20.  (See 9/3/19 motion.)  It was continued to 3/23/20.  (See 10/24/19, 12/5/19, & 1/13/20 minute orders.)  Plaintiffs’ opposition was thus due on 3/10/22, but plaintiffs filed it on 3/16/20.

The court was still conducting business as usual when plaintiffs filed the opposition.  It had not yet issued any pandemic-related orders.

After plaintiffs filed their untimely opposition and two days after any reply brief was due, the court continued the hearing to 4/1/20 and then 6/15/20 due to the pandemic.  (See 3/18/20 minute order & 5/13/20 notice.)  It did not invite any additional briefing.

Nonetheless, plaintiffs filed a supplemental opposition on 6/2/20.

At the hearing, the court denied plaintiffs’ request for a continuance to conduct additional research.  (See 6/15/20 minute order.)  The court noted the time for briefing had already expired.  (Ibid.)  The court granted the anti-SLAPP motion as to the 2nd and 3rd causes of action for malicious prosecution and abuse of process, but otherwise denied it.  (Ibid.)

Plaintiffs timely sought seek reconsideration but then appealed, depriving this court of jurisdiction to hear the motion.  (See 9/14/20 notice.) 

Accordingly, the court continued the motion but, before the hearing, this case was reassigned to another judicial officer as part of court-wide calendar management.  (See 10/22/20 minute order; 12/22/20 notice.)

The Court of Appeal dismissed the appeal, restoring jurisdiction to the trial court.  (See 12/2/21 remittitur.)  Ultimately, the motion was referred back to this judicial officer.  (See 8/24/22 minute order.)

Having carefully reviewed the moving papers, the opposition, and the entire file, the court finds no grounds for reconsideration.

Plaintiffs had a fair chance to brief the anti-SLAPP motion in early March 2020, before the pandemic.  Plaintiffs have not corroborated their assertion they could not use the law library in June 2020 or otherwise research the tentative ruling.  Notably, the tentative ruling relied on older cases for the undisputed proposition that malicious prosecution and abuse of process claims satisfy the anti-SLAPP statute’s first prong.  Plaintiffs have not shown what additional research would have uncovered.

To the extent plaintiffs seek rehearing on the ground the anti-SLAPP order contained “several legal errors,” the proper remedy for judicial error is appeal.  (See Crotty v. Trader (1996) 50 Cal.App.4th 765, 770-771.)  Plaintiffs’ appeal has been dismissed.

Plaintiffs shall give notice.