Judge: Serena R. Murillo, Case: 22STCV27255, Date: 2023-08-08 Tentative Ruling

Case Number: 22STCV27255    Hearing Date: August 8, 2023    Dept: 31

TENTATIVE

Plaintiff’s motion for reconsideration is DENIED.

Legal Standard

Code of Civil Procedure Section 1008(a) provides that “[w]hen 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 . . . [may] 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).) A trial court has discretion with respect to granting a motion for reconsideration.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) 

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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.)¿Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.¿ (Id.)¿¿¿¿ 

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Moreover, there is a strict requirement of diligence, which means the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)¿ The burden under Cal. Code Civ. Proc. § 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 trial.¿ (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)¿¿ 

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New circumstances can be shown by evidence that the court failed to consider a timely-filed memorandum of points and authorities in its prior ruling.¿ (Johnston v. Corrigan (2005) 127 Cal.App.4th 553, 556.)¿¿¿¿ 

Discussion

Plaintiff moves for reconsideration of the Court’s June 23, 2023 ruling sustaining Defendant’s unopposed demurrer without leave to amend as to the first, second, and fourth causes of action.

Plaintiff has not shown new or different facts, circumstances or law. “[F]acts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690].) Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration.  (Gilberd v.  AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Additionally, there is no legitimate excuse for counsel determining not to oppose the demurrer, nor has counsel attempted to satisfy the strong showing of diligence.

Conclusion

Based on the foregoing, Plaintiff’s motion for reconsideration is DENIED.

Moving party is ordered to give notice.