Judge: Gail Killefer, Case: 21STCV40483, Date: 2023-04-13 Tentative Ruling
Case Number: 21STCV40483 Hearing Date: April 13, 2023 Dept: 37
HEARING DATE: April 13, 2023
CASE NUMBER: 21STCV40483
CASE NAME: Cherie Broussard v. Sally Beauty Supply, LLC.
TRIAL
DATE: None—Matter
stayed pending Texas litigation.
MOTION: Plaintiff’s Motion for Reconsideration
of February 23, 2023 Order
MOVING PARTY: Plaintiff, Cherie Broussard
OPPOSING PARTY: Defendant, Sally Beauty Supply,
LLC.
PROOF OF SERVICE: OK
OPPOSITION: March 30, 2023
REPLY: April 6, 2023
TENTATIVE: Plaintiff’s
motion for reconsideration is denied. Defendant is to give notice.
This action arises in connection with the work of Cherie
Broussard (“Plaintiff”) as a model for television commercials and print
advertisements. The Complaint alleges in June 2015, Sally Beauty Supply, LLC.
(“Defendant”) hired Plaintiff to be photographed for commercial purposes. Plaintiff and Defendant entered into an agreement
whereby Defendant would use Plaintiff’s image through June 12, 2020 (“Rights
Agreement”). The Complaint alleges that within the last two years of filing
this Complaint, Defendant has used, re-used, published, and republished
Plaintiff’s image without her consent and after the Rights Agreement had
expired.
Plaintiff’s operative Complaint alleges: (1) common law
misappropriation of likeness, and (2) statutory misappropriation of likeness in
violation of Civil Code §3344.
On February 23, 2023, the court granted Defendant’s motion
for forum non conveniens and stayed this action pending litigation in Texas “on
the condition that Defendant: 1) formally appear and consent to jurisdiction in
Texas; 2) agree to waive any applicable statute of limitations; and 3)
stipulate to a special setting for an early trial date.” (September 23, 2023
Order (the “Order”), 1.)
Plaintiff now moves for reconsideration of the court’s February
23 Order granting Defendant’s motion for inconvenient forum. Defendant opposes
the motion.
Discussion
I.
Timeliness
CCP
§ 1008 allows a party to move for reconsideration of an order within 10 days
after service upon the party of written notice of entry of the order, based on
new or different facts, circumstances, or law.
On February
23, 2023, Defendant gave notice of the court’s Order regarding their motion for
by email. Plaintiff’s motion was filed on March 6, 2023, ten days later. Thus, Plaintiff’s
motion is timely.
I.
Analysis
CCP
§ 1008 requires the party moving for reconsideration to “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.” However, a party moving for reconsideration under CCP § 1008
must demonstrate that “new or different facts” in support of the motion could
not have been discovered or produced with “reasonable diligence” at the time of
the original hearing. (New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212-13 (“the information must be such that the
moving party could not, with reasonable diligence, have discovered or produced
it at the [original hearing]”).
Plaintiff argues that recent actions by Defendant
have revealed their “true intentions” in that “(1) Sally Beauty denies
liability and (2) will “immediately” move to dismiss a Civil Code § 3344 claim,
which has been heavily litigated here in California for almost 18 months, if
Mrs. Broussard files a case in Texas.” (Motion, 3.) Plaintiff also contends “it
appears that the Court based its ruling on the understanding that Sally Beauty
did not deny liability and that, if Mrs. Broussard filed a case identical to
this one in Texas, then she would not be prejudiced or disadvantaged in any way
– an understanding the Court had based on representations of Sally Beauty’s
counsel at the hearing.” (Id.) While Plaintiff consistently contends
that this court “seemed to have the understanding that [Defendant] was not
denying liability,” Plaintiff fails to point to how the court relied on such
contention, whether that contention colored this court’s reasoning, and whether
any new facts or changes in law have changed such a supposed contention.
(Motion, 4.)
Plaintiff further explains that public policy asks this
court to maintain jurisdiction to protect Plaintiff’s Civil Code § 3344 claim.
(Motion, 5-7.) This court has already found Texas to be a more suitable forum,
and further understands it is Defendant’s right to put forth a well-executed
defense contesting liability—which has not been conceded as Plaintiff contends.
Plaintiff provides little in terms of support for both contentions, that
Defendant has not changed its representations about liability and that the
survival of the section 3344 claim is pivotal here, other than statements to
that effect. Because Plaintiff’s motion includes only references to prior
facts and arguments, it is difficult to determine what exactly Plaintiff
contends constitutes a new fact or law for purposes of this motion.
In opposition, Defendant argues liability was
never conceded, Defendant will honor its representation of forgoing a statute
of limitations defense once the Texas litigation is filed, and that the laws
regarding publicity in Texas have always been different than California and
provide their own remedy. (Opposition, 2-5.) The court agrees.
To the extent Plaintiff argues that Defendant
not conceding liability constitutes new law for purposes of the instant motion,
Plaintiff’s argument fails. As Defendant notes, the litigation in Texas has yet
to be filed and thus, no representations have been reneged. Thus, Defendant’s
conduct is not “new law” for purposes of a motion for reconsideration.
For these reasons, the court does not reconsider its February
23, 2023 ruling. Thus, Plaintiff’s motion for reconsideration is denied.
Conclusion
Plaintiff’s motion for reconsideration is denied. Defendant
is to give notice.