Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Yuan Shi  

 

RESPONDING PARTY: Plaintiff David Carter  

 

BACKGROUND 

This case arises from a dispute between two former partners in a venture capital business called Zuma Partners.  (Compl. ¶2.)  Plaintiff David Carter claims that Defendant Yuan Shi misappropriated his name, photograph and likeness to launch a new venture capital fund called AI List.  (Compl. ¶3.)  Defendant allegedly raised money for his new fund by using Plaintiff’s identity to raise money from many of the same investors who had invested with Zuma Partners.  (Compl. ¶3.)  The operative complaint alleges four claims for (1) violation of Civ. Code §3344, (2) invasion of privacy based on misappropriation of identity, (3) unjust enrichment and (4) injunctive relief.  

The Court issued two orders to compel: (1) a July 26, 2022 order compelling responses to Plaintiff’s first set of special interrogatories, without objection, within 10 days and ordering the payment of sanctions, and (2) an August 2, 2022 order compelling responses to Plaintiff’s first set of requests for production, without objection, within 20 days and ordering the payment of sanctions.  Plaintiff failed to comply with either order.   

As a result, the Court granted issue sanctions that (1) “the issue of whether [Defendant] sent Powerpoint decks containing Plaintiff’s name, photo and biography to all the investors in AI List Capital 1, LP is decided in favor of Plaintiff” and (2) “the issue of whether all of the investors in AI List Capital relied on the Powerpoint decks containing plaintiff’s name, photo and biography in making their investments in AI List Capital 1, LP is decided in favor of Plaintiff.”   

The order was based on (1) Defendant’s failure to respond within the time mandated in the July and August 2022 orders; (2) Defendant’s assertion of objections even though he had waived them; (3) his failure to identify the investors in AI List; (4) his failure to identify each WeChat address he used to communicate with the investors in AI List; (5) his failure to produce all powerpoint decks prepared for the AI List, and (6) his failure to pay sanctions.    

This hearing is on Defendant’s motion for reconsideration.  Defendant argues there are new facts showing that Plaintiff accessed Defendant’s email account at henry@zumavc.com and blocked Defendant’s access, thereby preventing Defendant from gathering and producing documents responsive to the discovery requests.   

LEGAL STANDARD 

  

Pursuant to¿Code of Civil Procedure Section 1008(a):¿ 

 

“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 of Civ. Proc., §1008(a).)¿ 

 

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.”¿ (Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499.)  There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence, different facts, or law earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.)¿ A motion for reconsideration is properly denied when it is 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;¿Hennigan v. White (2011) 199 Cal.App.4th 395, 406.)¿ 

DISCUSSION 

  Defendant’s motion for reconsideration is based on the sole, purportedly “new” fact that he recently discovered Plaintiff was accessing his email account at Zuma Partners (henry@zumavc.com) and had blocked Defendant’s ability to access the account.  As Plaintiff argues, however, Defendant was well aware Plaintiff was accessing Defendant’s email account at Zuma Partners because Plaintiff stated as much in two declarations, one of which was filed over three years ago.  In one declaration, Plaintiff stated “I conducted a search of [Defendant’s] email account for Zuma Partners.  Our email accounts for Zuma Partners are hosted by Google.  Shi’s email address is henry@zumavc.com.”  (Ex. 3 to Grivakes at ¶24.)  In another declaration, Plaintiff attested he “searched [Defendant’s] partnership email account (henry@zumavc.com) which I had set up for our business.”  (Ex. 4 to Grivakes Decl. at ¶19.)   

It also belies logic that Defendant did not know he was blocked from accessing his own email account.  Surely, Defendant would have discovered this fact had he conducted even minimal diligence in attempting to respond to the discovery requests.      

In any event, even assuming this fact was new, it does not address the grounds on which the Court granted the issue sanctions.  For example, it does not address why Defendant continued to assert objections that the Court had already ruled were waived.  It does not address why Defendant could not identify the investors in AI List.  Defendant does not contend that this list of investors was only accessible through his Zuma Partners email account.  It does not address why Defendant failed to identify all WeChat accounts he used to communicate with investors in AI List.  It does not address why Defendant failed to pay sanctions mandated in the July and August 2022 orders.     

Also, Defendant does not dispute he communicated with investors in AI List through accounts other than henry@zumavc.com.  The lack of access to the Zuma email account did not prevent Defendant from producing his WeChat communications with investors or his emails to investors using his henry@ailist.io and info@ailist.io email accounts. 

In sum, Defendant has not presented any “new” fact, and even assuming the fact that he did not have access to the henry@zumavc.com account was a new fact, it does not fully address the grounds on which the motion for issue sanctions was granted and it does not explain why Defendant failed to respond to the discovery in dispute by collecting documents from other email or WeChat accounts.      

CONCLUSION 

Based on the foregoing, the Court DENIES Defendant Yuan Shi’s motion for reconsideration.  

 

IT IS SO ORDERED. 

 

DATED: August 10, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court