Judge: Daniel S. Murphy, Case: BC661793, Date: 2022-10-17 Tentative Ruling

Case Number: BC661793    Hearing Date: October 17, 2022    Dept: 32

BACKGROUND

            Plaintiffs initiated this action on May 19, 2017, alleging 12 causes of action relating to a purported EB-5 visa scam run by Defendants. Amended default judgments were entered against Defendants on May 15, 2018. On April 26, 2022, Defendant Fang Zeng filed a motion to set aside the default as against her for lack of personal jurisdiction, which was granted on May 20, 2022. On June 1, 2022, the Court set aside all default judgments against Defendant Zeng. On July 13, 2022, the Court dismissed Defendant Zeng without prejudice pursuant to Code of Civil Procedure section 583.210.

            On July 25, 2022, Plaintiffs filed the instant motion for reconsideration of the Court’s June 1 and July 13 orders. Plaintiffs contend that they discovered a discarded brochure containing evidence of Defendant Zeng’s contacts with California, thus impeaching the declaration Zeng filed in support of her motion to set aside.

LEGAL STANDARD

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall 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.” (Code Civ. Proc., § 1008(a).) Additionally, “the trial court retains the inherent authority to change its decision at any time prior to the entry of judgment.” (Darling v. Kritt (1999) 75 Cal.App.4th 1148, 1156.)

DISCUSSION

Reconsideration is not justified under Section 1008 merely because the moving party presents new facts. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Rather, the moving party must “show a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Ibid.) Reconsideration is properly denied where “knowledge was obviously always within [the party’s] possession, and no satisfactory explanation appeared for not bringing it out earlier.” (Ibid.)

Here, the purportedly new fact is the discovery of a discarded brochure containing photos of Defendant Zeng with local politicians and labeling her as the chairman of CIIF. (Wang Decl., Ex. A, B.) Plaintiffs contend that this impeaches Zeng’s prior declaration, wherein she disclaimed any relationship with “the Entities.” (Mtn. 5:10-21, citing Zeng Decl. ISO Mtn. to Set Aside ¶ 12.) Plaintiffs’ counsel avers that “[a]fter this Court’s order of July 13, 2022, I notified my clients of the Court’s order. Thereafter, one of my clients sent me an old discarded brochure of CIIF that had been retrieved.” (Wang Decl. ¶ 2.) Critically, no explanation, much less a satisfactory explanation, is provided for why this evidence was not produced earlier. (See Garcia, supra, 58 Cal.App.4th at p. 690.) Clearly, Plaintiffs were always in possession of this evidence.

Additionally, the Court had found that “plaintiff’s attorney did deliberately avoid giving Defendant Zeng actual notice of the lawsuit. If Plaintiff had exercised reasonable diligence in prosecuting its case, the invalidity of service on Defendant Zeng could have been discovered before the statutory period had run.” (July 13, 2022 Minute Order re OSC, p. 3.) The new evidence does not change this.

One month after filing this motion, on August 22, 2022, Plaintiffs also filed a request for judicial notice of their opposition papers filed in response to Defendant Zeng’s motion to set aside default in a federal case. Plaintiffs seek to admit this as evidence of Defendant Zeng’s contacts with California. The court, however, cannot take judicial notice of the truth of matters asserted in court filings. (See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [“although public documents may be proper subjects for judicial notice, the truth of the matters stated in such documents is not”].)

CONCLUSION

            Plaintiffs’ motion for reconsideration is DENIED. The Court declines to reconsider its prior rulings sua sponte.