United States District Court, S.D. California
September 2, 2005.
RONALD PEZZUTI and CANDACE PEZZUTI, Plaintiffs,
STAVROS BOORAS, et al., Defendants.
The opinion of the court was delivered by: ROGER BENITEZ, District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF ORDER
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [doc. # 61]
This Court has previously granted summary judgment in favor of
Defendants Stavros Booras ("Booras") and San Diego County Canary
Club ("the Club," collectively "Defendants"). (Order Granting
Defendants' Motion for Summary Judgment, dated August 9, 2005,
Case No. 03CV2495 BEN (POR)). The Court ruled that the allegedly
defamatory statement made by Defendants about Plaintiffs Ronald
Pezzuti and Candace Pezzuti (collectively "Plaintiffs" or "the
Pezzutis") was privileged. Id. Plaintiffs move for
reconsideration of the Order granting summary judgment. For the
reasons that follow, Plaintiffs' motion is denied.
Plaintiffs breed, trade and show birds with third parties and
at trade shows both nationally and internationally. (Complaint, ¶
6). The Club is a San Diego-based non-profit entity, apparently
engaged in the same business. (Id., ¶ 3). Booras is a member
and the president of the Club. (Defendants' Motion for Summary
Judgment ("Motion"), Ex. B). In September, 2003, the Club's newsletter published the
following statement: "Ronald and Candy Pezzuti have been
determined by the executive board, per club bylaws, as not
acceptable as club members." (Complaint, ¶ 7). Plaintiffs allege
that the publication was directed by Booras, the Club's
president. Id. Plaintiffs claim that this statement was harmful
to their "overall character, self-esteem and standing . . . in
the aviary breeding and trading industry." (Id., ¶ 8).
Plaintiffs filed the present action for defamation, negligence,
intentional infliction of emotional distress, and intentional
interference with a business relationship, based on diversity
jurisdiction. (Id., ¶ 5). On Defendants' motion, this Court
dismissed the last two claims with leave to amend. (Order Denying
in Part and Granting in Part Defendants' Motion to Dismiss
Claims, dated June 1, 2004, Case No. 03CV2495 BTM (POR),
8:23-25). The Complaint was never amended. Thus the two remaining
causes of action are defamation and negligence. (Order, 5:12-16;
6:7-11). The defamation claim is based on the statement in the
newsletter. (Complaint, ¶¶ 10-13). The negligence claim is based
on alleged breach of Defendants' duty "to protect Plaintiffs from
false statements communicated to third parties." (Id., ¶ 15).
Plaintiffs have previously moved for partial summary judgment
to establish Defendants' liability on both claims. The motion was
denied. This Court found a genuine issue of material fact as to
the truth or falsity of the statement. (Order Denying Plaintiffs'
Motion for Partial Summary Judgment, dated June 28, 2005, Case
No. 03cv BEN (POR), 5:17-18). The Court also found a genuine
issue of material fact as to Defendants' alleged breach of duty
to protect Plaintiffs from false statements. (Id., 7:14-19).
III. APPLICABLE LAW
"Reconsideration is appropriate if the district court (1) is
presented with newly discovered evidence, (2) committed clear
error or the initial decision was manifestly unjust, or (3) if
there is an intervening change in controlling law." School Dist.
No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993).
Plaintiffs have not shown a proper basis for reconsideration of
the previous Court Order. A motion for reconsideration "may not
be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the
litigation." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003) (internal citation omitted).
Plaintiffs now raise arguments and point to evidence which were
available at the time of their opposition to Defendants' motion
for summary judgment. If an argument is not timely discovered and
properly presented to the court, the court is not required to
search for it. See 389 Orange Street Partners v. Arnold,
179 F.3d 656, 664 (9th Cir. 1999) ("If Robinson's attorneys did not
discover this argument until now, the district court should not
be expected to have done so for them."). The Pezzutis argue that
Defendants' publication of the defamatory statement was motivated
by malice. Such motivation can defeat the privilege under
California Civil Code § 47(c). See Institute of Athletic
Motivation v. University of Illinois, 114 Cal.App.3d 1, 12
(1980) (internal citation omitted) ("[T]he privilege is lost if
the publication is motivated by hatred or ill will toward
plaintiff."). Plaintiffs, however, did not argue or rely on
evidence of malice in their opposition to Defendants' motion.
Therefore Plaintiffs cannot now present an argument they could
have raised before. Id. Next, Plaintiffs now claim that the
application of the privilege trumps their privacy rights. This
argument was never raised in their opposition and also cannot be
considered for the first time in this motion. Carroll,
342 F.3d 945.
Further, the new evidence presented by Plaintiffs in their
attempt to prove malice is not "newly discovered evidence."
School Dist. No. 1J, Multnomah County, Or., 5 F.3d at 1263.
"[T]he failure to file documents in an original motion or
opposition does not turn the late filed documents into `newly
discovered evidence.'" Id.; see also Christie v. Iopa,
176 F.3d 1231, 1239 (9th Cir. 1999) (internal citation omitted) ("[A]
motion for reconsideration is an improper vehicle to introduce
evidence previously available. . . ."). The Pezzutis assert that
Defendants' improper motivation came from the results of a prior
bird show which were perceived as unfair and bred personal
animosity. (Plaintiffs' Memorandum of Points and Authorities in
Support of Plaintiffs' Motion for Reconsideration of Order
Granting Defendants' Motion for Summary Judgment ("Motion"), Ex.
1). In support of their assertion, Plaintiffs offer a new
affidavit. Id. Plaintiffs do not argue that the evidence
described in the affidavit was not available to them before. In
fact, because the evidence describes the events at a prior bird
show which involved the Pezzutis personally, it is apparent that they had this information all
along. Therefore this evidence is not newly discovered and does
not warrant reconsideration. Christie, 176 F.3d at 1239;
School Dist. No. 1J, Multnomah County, Or., 5 F. 3d at 1263.
Plaintiffs have not presented any newly discovered evidence,
pointed out a clear error of law, or shown a change in the
existing law. Therefore reconsideration of this Court's previous
Order is not justified. School Dist. No. 1J, Multnomah County,
Or., 5 F. 3d at 1263.
Plaintiffs have not provided a proper basis for reconsideration
of this Court's previous Order Granting Defendants' Motion for
Summary Judgement. Accordingly, Plaintiffs' Motion for
Reconsideration of Order Granting Defendants' Motion for Summary
Judgment is DENIED.
IT IS SO ORDERED.
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