2017-00210406-CU-DF

Lambert Davis vs. Sacramento River Cats Baseball Club, LLC

Nature of Proceeding: Motion for Reconsideration

Filed By: Schaefer, Jean

Plaintiff’s Motion for Reconsideration is denied.

Defendants Sacramento River Cats Baseball Club, Jeffrey Savage, John Krivacic and Daniel Emmons’ (“Defendants”)’ Request for Judicial Notice is granted.

Defendants’ Objection to the timeliness of the Reply is overruled. The Court continued the matter, therefore Defendants had adequate time to review the Reply.

Defendant’s Evidentiary Objections to Nos. 5-18 are sustained for the reasons stated in the evidentiary objections filed on February 15, 2018. The evidentiary objections Nos. 1-4 are overruled.

Plaintiff’s Reply Request for Judicial Notice is denied. The Court cannot take judicial notice of the truth of a declaration filed in an unrelated case, Case No. 2016-202613, a case brought by plaintiff’s brother, Essex Wayne Brown, against defendants.

On April 3, 2017, Plaintiff Davis filed this action against Defendants Sacramento River Cats Baseball Club, LLC, President Jeff Savage, Baseball Operations Manager, Daniel Emmons, and former Box Office Manager, John Krivacic, alleging defamation, various invasion of privacy claims, violations of the Freedom of Information Act, Interference with Prospective Business; and Violations of the Unruh Civil Rights Act. (Exh. 1, 4/3/17 Complaint.) The individual defendants, at relevant times, were all employed by Defendant Sacramento River Cats Baseball Club, which operates a minor league baseball team in the Pacific Coast League. Plaintiffs allegations against the

Defendants relate to their alleged copying of Plaintiff’s driver’s license when he picked up complimentary tickets from the River Cats’ box office, and the subsequent use of that copy by Defendant’s to warn one another of suspicions that Plaintiff or someone he was associated with might be scalping complimentary tickets reserved per rules of the Pacific Coast League for visiting players to assign to friends and family.

Plaintiff alleged that his Company “To the Bay and Back Cheesecake” sells gourmet cheese cakes to visiting team players. River Cats opposing players sometimes left complimentary tickets for River Cats games for plaintiff to pick up at Will Call. Plaintiff’s name is included on a list of tickets at Will Call where he provides his driver’s license as identification to pick up tickets. Around June of 2015, the box office manager, John Krivacic, caused plaintiffs driver’s license

to be copied when picking up free tickets. Krivacic is alleged to have instructed defendant Emmons to post a sign [with an unredacted copy of the plaintiffs driver’s license] outside the door of the visiting team clubhouse on which plaintiffs driver’s license was copied with the following note: “This person goes by Wayne Davis and is a ticket scalper. Please do not request tickets for him. He scams people. Thanks.” Plaintiff alleges that he has never gone by the name Wayne Davis and that the statement that he was a ticket scalper was false.

In opposition to the anti-SLAPP motion, Plaintiff argued that (1) anti-SLAPP motions should not be filed on amended complaints (2) an anti-SLAPP motion should not be allowed because Plaintiffs complaint was purportedly based on “commercial” speech (which involves speech between competitors, though Plaintiff and the River Cats are not “competitors”); (3) an anti-SLAPP motion should not be allowed because the speech was “illegal” as allegedly Plaintiffs license was copied illegally; and (4) Defendant’s evidence of a defense to the claims could be stronger.

Importantly, Plaintiff did not offer any argument or evidence in his opposition to the anti -SLAPP motion to support his own burden to establish that Plaintiff could prevail at a trial on the merits.

In ruling on the anti-slapp motion, the Court tentatively found that all claims failed, primarily, because: (1) The communication falls within the common interest privilege;

(2) Plaintiff has no expectation of privacy as to his driver’s license; (3) Defendants did not know of Plaintiffs cheesecake business; and (4) Plaintiff presented no evidence that defendants’ conduct was motivated by race as opposed to Plaintiffs violation of ticketing policies. (Exh. 5, Tentative Ruling; Barnes Decl., 12.) Following oral arguments, the Court took the matter under submission and ultimately granted Defendants’ anti-SLAPP motion. On January 3, 2018 the Court signed an Order granting Defendants’ Anti-SLAPP Motion, and Defendants filed and served the Notice of Entry of Order on January 16, 2018. (Barnes Decl., TI 14, Exh.6, Notice of Entry & Order. Defendants filed their motion for attorneys fees on January 24, 2018. Plaintiff filed his motion for reconsideration on January 31, 2018.

What plaintiff seeks to do in this motion for reconsideration is present evidence in the form of deposition testimony from another case involving plaintiff’s brother, Wayne Davis, that plaintiff, with reasonable diligence, should have presented in opposition to the anti-SLAPP motion. Plaintiff has not provided a satisfactory explanation for the failure to produce the evidence at the time he filed his opposition to the anti-SLAPP motion. Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.

Defendant noticed the deposition of plaintiff’s brother, Wayne Essex Brown, in another case filed against defendants. That deposition did not take place until after the court ruled on the anti-SLAPP motion. The deposition testimony raises issues of fact as to, among other things, whether it was Lambert Davis or Wayne Brown who picked up the tickets that were scalped which gave rise to the alleged defamation. Plaintiff, among other things, contends this evidence shows malice to defeat the conditional privilege. Plaintiff has provided no persuasive evidence that he could not have obtained the evidence from his own brother before he filed his opposition to the anti-SLAPP motion. Moreover, although the code provides for a continuance of an anti-SLAPP motion to obtain evidence to oppose an anti-slapp motion, plaintiff never made such a motion to seek the evidence in this case. Rather, it appears plaintiff’s counsel made a tactical decision to offer no evidence to support prong two of the anti-SLAPP statute even though that evidence was readily available to plaintiff.

Code of Civil Procedure section 1008 imposes special requirements on renewed applications for orders a court has previously ruled upon. “This section specifies the court’s jurisdiction with regard to applications for reconsideration…” CCP 1008(e); Garcia v Hejmadi (1997) 58 Cal.App.4th 674, 691. A motion for reconsideration must be based on new or different facts, circumstances or law. “[F]acts of which the party seeking reconsideration was aware at the time of the original ruling are not “new or different.” (Garcia v. Hejmadi, supra, at p. 690.) In addition, a party must provide an explanation for failing to offer the evidence or law in the first instance. (See, In re Marriage of Herr (2009) 174 Cal.App.4th 1463,1468.) In this respect, a motion for reconsideration must be denied absent a strong showing of diligence. (Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183, 202, disapproved of on other grounds.) Indeed, the moving party must offer 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. Plaintiff was not diligent. In fact, the deposition testimony from the Brown case reveals plaintiff has always had access to his brother, Wayne Brown. Wayne Davis testified, in no uncertain terms, that he had been available to his brother for purposes of this case, and that they had even discussed the instant case no less than 3 times prior to his deposition. (Exh. 4, Wayne Davis Dep., pp. 16:6-24; 18:1-10; 19:2-7.)

Because plaintiff has not met the requirements of CCP 1008(b) to show new evidence that could not, with reasonable diligence, been presented at the time of the hearing on the anti-SLAPP motion, the motion for reconsideration is denied.