Judge: Donald F. Gaffney, Case: Miller v. Cox, Date: 2022-08-24 Tentative Ruling

TENTATIVE RULING:

Motion for Reconsideration.

Plaintiff Marion Franklin Miller, Jr.  moves for reconsideration of the Court’s June 1, 2022, Order granting Defendant William Cox’s motion for summary judgment.  For the following reasons, the motion is DENIED.

Defendant contends the motion is untimely.  A motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. (Code Civ. Proc. § 1008(a).)  The 10-day deadline for seeking reconsideration is extended under Code Civ. Proc. § 1013 for service by mail, fax, electronic service or overnight delivery.  Here, notice of the Court’s ruling on the motion for summary judgment was sent by mail and by email on June 1, 2022.  (ROA 59.)  However, the proof of service of email delivery is insufficient because it does not state the sender’s email address.  (Code Civ. Proc., § 1013b(b)(1).)  Thus, the notice of ruling was sent by mail on June 1, 2022, so the motion for reconsideration was due by June 16, 2022, because of the extra 5 days for service by mail.  (Code Civ. Proc. § 1013.)  The motion for reconsideration was filed on June 15, 2022, and is thus timely.

A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. (Code Civ. Proc. § 1008(a).) The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213.)

The burden under section 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. Superior Court, 135 Cal.App.4th at 212–13.) 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, 1500.) 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.) The court cannot consider matters presented at the earlier hearing.  (Code Civ. Proc. §1008(f).) Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling. (Gilberd, 32 Cal.App.4th at 1500.)

Here, Plaintiff did not provide the affidavit required by Section 1008.  (Code Civ. Proc. § 1008(a).)  Further, Plaintiff’s motion for reconsideration is not based on any new or different facts, circumstances, or law than those before the court at the time of the original ruling. (Code Civ. Proc. § 1008(a).)  Plaintiff has not provided any basis to reconsider the granting of the summary judgment motion, which was based in part on Plaintiff’s failure to provide an expert declaration to contradict that of Defendant’s expert, Edward Moon, D.D.S.  Because Plaintiff does not provide a sufficient basis to grant reconsideration, the motion is DENIED.

Defendant to give notice.