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PEZZUTI v. BOORAS

United States District Court, S.D. California


September 2, 2005.

RONALD PEZZUTI and CANDACE PEZZUTI, Plaintiffs,
v.
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]
I. INTRODUCTION
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.

II. FACTS

  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).

  IV. DISCUSSION

  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.

  V. CONCLUSION

  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.

20050902

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