CHARLES KING VS. ERIC STUART, ET AL.

On August 13, 2025, defendant Alex Rubashevsky propounded a first set of written discovery consisting of Form Interrogatories, Set One, Request for Production of Documents, Set One, Special Interrogatories, Set One, and Requests for Admissions, Set One, to Plaintiff. (Declaration of Eric T. Goodman ¶ 4.)

On that same date, August 13, 2025, defendant AVG Investment LLC propounded a second set of written discovery consisting of Form Interrogatories, Set Two, Request for Production of Documents, Set Two, Special Interrogatories, Set Two, and Requests for Admissions, Set One. (Goodman Decl. ¶ 5.) Plaintiff did not respond to defendants’ discovery motions and on March 4, 2026, defendants filed motions to compel and motions to deem the request for admissions admitted. (Goodman Decl. ¶ 6.)

On May 19, 2026, the motion to deem facts admitted was granted. (CMO May 19, 2026.)

On June 23, 2026, the Court ruled on the merits of plaintiff’s May 5, 2026 motion, and denied the motion for relief from deemed admission due to mistake, inadvertence or alleged excusable

July 28, 2026 Law and Motion Calendar PAGE 3 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ neglect. (Goodman Decl. Ex. C.) In that motion, plaintiff’s declaration in support stated that he reasonably believed that his former attorney had prepared and served responses, he believed that the responses applied to both defendants, and he did not intentionally failed to respond, but his failure was the result of mistake, inadvertence and excusable neglect.

The instant motion before the court is plaintiff’s motion for reconsideration of the Court’s June 23, 2026 order denying relief from deemed admissions also on the basis of alleged new and different facts with relief warranted under Code of Civil Procedure section 1008. For the first time plaintiff asserts that defendant prepared the requests for admission based on confidential materials received in mediation.

Defendants opposes contending in pertinent part that plaintiff’s renewed application for reconsideration should be denied because it fails to present a satisfactory explanation for not having raised the new or different information earlier under Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Ca1.4th 830, 839 [Code of Civil Procedure section 1008 requires a party filing an application for reconsideration or a renewed application to show diligence with a satisfactory explanation for not having presented the new or different information earlier.”].)

Moreover, defendants contend the deadline to raise objections to defendants’ August 2025 discovery requests have passed and the allegations of defense misuse of mediation materials is completely unsupported and the declaration in support of the current motion contradicts the earlier basis of his surprise/excusable neglect. The Court agrees with defendants.

B.

Legal Standard

Under Code of Civil Procedure section 1008, subdivision (a), a party may move for reconsideration of an order based on new or different facts, circumstances, or law. The motion must be filed within 10 days after service of notice of entry of the order and movant must also submit an affidavit stating (1) what application was previously made, (2) to what judge, (3) what order or decisions were made, and (4) what new or different facts, circumstances, or law are presented. “Such a motion requires new facts, circumstances, or law that, despite reasonable diligence, could not have accompanied the original motion. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839, 189 Cal.Rptr.3d 824, 352 P.3d 391.)” (Fettig v. Hilton Garden Inns Management LLC (2022) 78 Cal.App.5th 264, 269.)

C.

Discussion

The court has already reconsidered the motion to deem the request for admission and granting of sanctions on the basis of surprise, mistake and excusable neglect. (See CMO June 23, 2026, Declaration of Eric Goodman Ex. B.) At that time the court found plaintiff had been on notice of the discovery deadline “since September 2025” and that “his failure to provide responses prior to the hearing on the motion to deem facts admitted was not the result of mistake, inadvertence or excusable neglect.” (Id.)

July 28, 2026 Law and Motion Calendar PAGE 4 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ In the instant motion, plaintiff asserts that he was confused regarding “the discovery closure, the change in attorneys, the change in format, and the similarity between the [requests for admission] and [plaintiff’s] mediation materials.” (Reply ¶ 5.) The court notes the declaration included in plaintiff’s response filed July 21, 2026 is not properly before the court because it does not include the essential wording set forth in Code of Civil Procedure 2015.5 which requires the declaration to be made “under penalty of perjury of the laws of the State of California that the foregoing is true and correct.”

Regardless, the rejection of plaintiff’s documents which were improperly submitted and therefore not filed in time before the court’s ruling are not new facts. The matter of the discovery closure or deadline confusion as well as the change in attorneys was already addressed in the court’s June 23, 2026 order and will not be revisited.

Nor is the resemblance between the RFAs and the mediation materials a “new fact” because mediation concluded July 22, 2025 in non-agreement. (Statement of Non- Agreement filed August 22, 2025.) Plaintiff’s own declaration submitted with the motion states that plaintiff prepared and submitted his mediation paperwork on July 18, 2025. (Declaration Charles King, ¶¶ 2&3.) On August 13, 2025, plaintiff determined the RFAs were “derived directly from [his] confidential mediation.” (King Decl. ¶ 4.) “Facts of which a party seeking reconsideration was aware at the time of the original ruling are not ‘new or different facts,’ as would support a trial court’s grant of reconsideration. (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468, 95 Cal.Rptr.3d 464.)” (People v.

Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974.) Thus, plaintiff has been on notice of any alleged similarity between the RFAs served in August 2025 at the time he began seeking reconsideration and relief from the deemed admissions, which was on or around March 30, 2026. Moreover, there is no demonstration of diligence in presenting this information which would have been known as of the service date of the RFAs as is discussed in Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC, supra, 61 Cal.4th 830.

However, even if the similarity is considered a new fact, a resemblance between the RFAs and the mediation materials is not a violation of the Evidence Code because the RFAs are reasonably related to the operative complaint and defense counsel’s declaration makes clear that the RFAs were drafted based on the complaint’s allegations. (See Goodman Decl. ¶ 7, see also Ex. A.)

Accordingly, for all of the reasons stated above, plaintiff’s second motion for reconsideration of the Court’s ruling deeming facts admitted and directing sanctions against plaintiff is DENIED.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, counsel for defendants shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.