Judge Robert S. Draper, Case 22STCV10827 2023-05-18 Tentative Ruling

This is an action for defamation and harassment. Plaintiff Juliana Payne (“Plaintiff”) filed suit on March 30, 2022 against Naima Richardson (“Defendant”) and several Does. The First Amended Complaint (“FAC”) is the operative complaint here and was filed on April 14, 2022.

The FAC stems from an April 1, 2021 incident where Defendant hosted a Twitch Stream on which Defendant allegedly made numerous malicious statements of purported facts about Plaintiff that Defendant knew were false. (FAC, ¶ 17.) Defendant also began posting on social media that Plaintiff was stalking Defendant. (FAC, ¶ 20.) Plaintiff further alleges that after having been provided evidence that Defendant’s statements were false, Defendant refused to retract her defamatory statements and instead chose to continue publishing said statements. (FAC, ¶ 20.)

On November 14, 2022, the Court sustained, without leave to amend, Defendant’s demurrer to Plaintiff’s FAC. The Court’s order notes that Plaintiff failed to oppose the demurrer. (See 11/14/22 Minute Order.) Plaintiff appeared at the hearing, and the Court also noted that it would consider, and did consider, Plaintiff’s arguments she had vis-à-vis allowing leave to amend the FAC.

The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (See Code Civ. Proc., § 1008(a); see also¿Mink v. Superior Court¿(1992) 2 Cal.App.4th 1338, 1342.)¿ The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown.¿ (Code Civ. Proc., § 1008(a).)¿ Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade¿(1995) 38 Cal.App.4th 1441, 1457.)¿ The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd¿v. AC Transit¿(1995) 32 Cal.App.4th 1494, 1500.)¿¿¿

Code of Civil Procedure section 1005 requires that the notice of a motion and the motion shall be served on all the parties to the case. In addition, California Rules of Court rule 3.1300(c) requires that “[p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”

As a preliminary matter, Plaintiff failed to file a proof of service of the instant Motion on Defendant, and the lack of opposition indicates that Plaintiff failed to serve the Motion on Defendant.

Plaintiff moves the Court for reconsideration on the ground that she was not expecting Defendant to send the demurrer to Plaintiff’s P.O. Box. (Payne Decl., ¶¶ 9-10.) Plaintiff represents that she was unsure that Defendant had sent the demurrer (Payne Decl., ¶ 10.), and that she was too “fearful” to submit an opposition. Further, Plaintiff represents she was not able to address at the November 14 hearing the reasons why she was not able to submit an opposition.

The Court finds that Plaintiff has failed to present new facts or circumstances to support granting this Motion. Plaintiff does not contend that she did not receive the demurrer. Instead she contends that she did not expect to receive the demurrer at her P.O. Box. A review of Plaintiff’s FAC reveals that Plaintiff’s address is listed her P.O. Box as her address, and the address that the Court has on file at that time was Plaintiff’s P.O. Box. Accordingly, it was proper for Defendant to serve Plaintiff at her P.O. Box, and as acknowledged by Plaintiff, she did receive the demurrer at her P.O. Box and was aware of the same. Plaintiff was given the opportunity to present argument with regards to allowing leave to amend the FAC. The Court found Plaintiff’s arguments unconvincing, and sustained the demurrer, without leave to amend.

Plaintiff also presents authority to oppose the authorities cited by Defendant in the demurrer. Plaintiff cites to Sanders v. Walsh (2013) Cal.App.4th 855, 865 to oppose the authorities cited by Plaintiff. However, Plaintiff is not presenting new law, as required by Code of Civil Procedure section 1008, which would require the Court to reach a different conclusion in the demurrer. Instead, Plaintiff is presenting the Court with law that existed at the time the demurrer was decided. Plaintiff sat on her rights and failed to timely file an opposition. The Court gave Plaintiff an opportunity to present oral argument as to why leave to amend should be allowed, but the Court found Plaintiff’s arguments unconvincing.