Judge Audra Mori, Case 19STCV37719 2022-08-25 Tentative Ruling

Plaintiff Michael Eric Anderson (“Plaintiff”) filed this action against Defendant Hank Lachman (“Defendant”) for injuries Plaintiff sustained after Defendant intentionally discharged a firearm at Plaintiff. Plaintiff alleges he was shot twice in the arm.

On July 22, 2022, Plaintiff’s motion to deem request for admissions (“RFAs”), set one, admitted against Defendant was unopposed and granted. On August 2, 2022, Defendant filed the instant motion for reconsideration of the order deeming the RFAs admitted. Plaintiff opposes the motion.

Defendant’s Notice of Motion states that the grounds for the motion is that “a state of different facts exists.” (Mot. at p. 1:26-27.) While the notice of motion states that a memorandum was served and filed with the notice, no memorandum of points and authorities is attached to the notice of motion. Nonetheless, Defendant’s counsel states that the Court’s order was based on the claim that Defendant did not meet and confer with Plaintiff and had not provided responses to the discovery, but defense counsel contends this is incorrect because Defendant served responses on Plaintiff.

In opposition, Plaintiff argues that Defendant did not serve the moving papers on Plaintiff, and that Defendant’s counsel submitted on the Court’s tentative ruling on July 22, 2022, which was to grant the motion to deem RFAs admitted. Plaintiff argues that Defendant was aware of the alleged new facts at the time of the hearing on the motion to deem RFAs admitted, but Defendant did not raise them at the time of the hearing.

A party may make an application for reconsideration pursuant to CCP §1008. Pursuant to CCP §1005, all moving and supporting papers must be served and filed at least 16 court days prior to hearing. The moving papers shall include a memorandum of facts, law, evidence and argument. (Cal. Rules of Court 3.113.) The absence of a memorandum is cause for denial.

Here, the motion fails procedurally. There is no evidence that it was served on Plaintiff, and there is no memorandum. The motion could be denied for these reasons alone.

However, as Plaintiff was able to respond to the substance of the motion, the merits will also be addressed. CCP §1008 requires the Court to reconsider a prior ruling if it finds there are new or different facts, circumstances, or law than those before the Court at the time of the original ruling. Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

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, 150.) “[A] court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Id.) The burden under § 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. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213.) A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) A motion for reconsideration was properly denied where based on evidence that could have been presented in connection with the original motion. (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)

Here, Defendant asserts the Court’s order granting Plaintiff’s motion to deem RFAs admitted was based on the incorrect claims that Defendant did not meet and confer with Plaintiff and that Defendant had not provided responses. Defendant avers that Defendant’s counsel electronically served responses to the RFAs on Plaintiff. (Mot. Link Decl. ¶¶ 3.) Defendant, however, fails to provide when the alleged responses were served on Plaintiff- that is, whether they were served before or after the hearing on Plaintiff’s motion. Notably, defense counsel’s declaration states that a copy of an email showing service of the responses is attached to his declaration as Exhibit X, but there are no exhibits attached to the notice of motion or defense counsel’s declaration.

Furthermore, as Plaintiff argues, Defendant appeared at the hearing on Plaintiff’s motion to deem admitted and submitted on the tentative ruling, which was to grant Plaintiff’s motion to deem RFAs admitted. Defendant provides no explanation for why these alleged new facts could not have been offered at or prior to the July 22, 2022 hearing. Defendant fails to meet his burden to show the existence of new or different facts, circumstances, or law that could not have been presented at the prior hearing so as to justify reconsideration. Moreover, to the extent Defendant’s counsel asserts the July 22, 2022 ruling was incorrect, reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling, as opposed to a change in the law in the interim; that is not a “new” or “different” matter. (Gilberd v. AC Transit, 32 Cal.App.4th at 1500.)

Hon. Audra Mori

Judge of the Superior Court