Judge: Lynne M. Hobbs, Case: 22STCV11431, Date: 2024-08-29 Tentative Ruling

Case Number: 22STCV11431    Hearing Date: August 29, 2024    Dept: 61

CHELSEA FLOWERS vs LA ORGANIC PHARMACY, INC., A CALIFORNIA CORPORATION, et al.

TENTATIVE

Defendants LA Organic Pharmacy, Inc. and Mecca Mid City’s Motion for Reconsideration of June 24, 2024 Order is DENIED.

Plaintiff to give notice.

DISCUSSION

Code Civ. Proc. § 1008 is the exclusive means for seeking reconsideration of an order or renewing a motion. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 384.) The application to reconsider the matter and modify, amend, or revoke the prior order must be made within 10 days after service upon the party of written notice of entry of the order to the same judge or court that made the order. (Code Civ. Proc. § 1008(a).) A motion for reconsideration may only be brought if the party moving for reconsideration can offer “new or different facts, circumstances, or law” which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Id.) There is a strict requirement of diligence - i.e., the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) “The burden under section 1008 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. Superior Court (2005) 135 Cal.App.4th 206, 212–13.)

Defendants LA Organic Pharmacy, Inc. and Mecca Mid City (Defendants) move for reconsideration of this court’s order of June 24, 2024, granting Plaintiff Chelsea Flowers’ anti-SLAPP motion against their cross-complaint for trade libel. This court granted the motion based on Defendants’ failure to present evidence that Plaintiffs’ publications were false or maliciously made, and Defendants now argue that they can present evidence on both counts. 

Defendants’ motion fails because this evidence could and should, with reasonable diligence, have been brought to bear upon the original motion. Falsity and malice are both elements of trade libel. (See ZF Micro Solutions, Inc. v. TAT Capital Partners, Ltd. (2022) 82 Cal.App.5th 992, 1002.) As noted in the court’s prior order, it was Defendants’ burden, upon Plaintiff’s showing that the claim arose from protected activity, to demonstrate the factual and legal sufficiency of its claims “ by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) Defendants could not have obtained a judgment on their claim without the proof of scienter.

Defendants argue that Plaintiff in its motion did not challenge scienter and thus “failed to provide notice” that these elements were at issue. (Motion at pp. 7–8.) Defendants are incorrect. Plaintiff notified Defendants that scienter was at issue when they filed an anti-SLAPP motion. As explained in the prior order, when a party bringing an anti-SLAPP motion shows that a challenged claim arises from protected activity, the court then “determines if there is sufficient evidence to show plaintiffs can satisfy each element of their claim.” (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336, italics added.) Plaintiff needn’t have challenged any elements of Defendants’ claims to put them at issue. And Defendants’ failure to support the elements of scienter in their claim is accountable solely to lack of diligence.

The motion is DENIED.