Motion for Reconsideration of Order Denying Motion to Quash Service of Summons
(20) Tentative Ruling
Re: Mitchell v. Channel et al. Superior Court Case No. 23CECG03748
Hearing Date: July 15, 2026 (Dept. 403)
Motion: By Defendant Ark of Safety Apostol Faith Temple, Inc. dba Paradigm Transport Services for Reconsideration of Order Denying Motion to Quash Service of Summons
Tentative Ruling:
To deny. (Code Civ. Proc., § 1008.)
If oral argument is timely requested, such argument will be heard on Thursday July 16, 2026 at 3:30 pm.
Explanation:
Defendant Ark of Safety Apostol Faith Temple, Inc. dba Paradigm Transport Services (“Ark”) moved to quash service of the summons and complaint. The motion to quash was denied as untimely. The opposition to the motion to quash raised the issue of timeliness of the motion, but it was not until the day of the hearing that Ark sought to present declarations explaining why the motion was filed late. Ark now seeks reconsideration of the motion to quash
A party may bring a motion to reconsider, and have a different order entered, if the motion is:
1. brought before the same judge that made the order; 2. made within 10 days after service upon the party of notice of the entry of the order; 3. based on new or different facts, circumstances, or law; and 4. made and decided before entry of judgment. (Code Civ. Proc., § 1008, subd. (a), (b).)
The order denying the motion to quash was served electronically on 4/9/26. Adding two days for mail service, the 4/17 motion for reconsideration was timely filed.
The main issue is whether the motion is based on new or different facts, circumstances or law, and whether this new information compels a different result.
The motion for reconsideration is based on declarations that Ark’s counsel attempted to present to the court at the hearing on the motion to quash, but which the court would not consider. Reply papers are due five court days before the hearing. (Code Civ. Proc., § 1005
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evidence to the hearing. The court should not be expected to consider new evidence brought to the hearing.
These new declarations do constitute new evidence that was not initially considered, but it is evidence that should have been submitted with the reply. “A motion for reconsideration is often an uphill battle because you have to persuade the judge that there has been a change in the law or there are new facts, not previously available, which require a different result.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (TRG 2026) ¶ 9:324a.) “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, 212.) “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 original hearing. (Id. at pp. 212–213.)
Ark maintains that it did not know that the motion to quash was filed on 3/17/26 until the court issued its tentative ruling on 4/7/26. That information was within Ark’s reach at all times. Timeliness of the motion was raised in the opposition, and Ark could easily have checked the file-stamped copy at any time after filing the motion. That is not information unavailable to Ark prior to the court’s tentative ruling.
Ark’s counsel states that after learning of the late filing, defense counsel and his assistant contacted One Legal to determine why the motion to quash was filed late. (Knaack Decl., ¶ 7.) After learning of the circumstances leading to the late filing described herein, counsel worked with One Legal to obtain a declaration from Ms. Rodriguez who filed the motion. (Knaack Decl., ¶ 8.) As soon as the declaration was completed and transmitted to counsel, counsel filed the declaration, along with a declaration from counsel’s assistant with the court to inform the court of the circumstances leading to the late filing of the motion. (Knaack Decl., ¶ 9.)
Again though, counsel could have obtained the declarations at any time once the opposition was filed raising the timelines objection. This is not information that was unavailable prior to filing the reply. With reasonable diligence Ark should have presented this information with the reply brief in response to the argument that the motion was not timely filed. Ark simply assumed that the motion was filed on 3/13/26, but apparently did not make any attempt to verify that prior to filing the reply brief. Ark acting with reasonable diligence could have discovered at any time discovered the filing date of the motion to quash, and discovered why the motion was not timely filed. Reconsideration is not warranted.
Ark also seeks relief under Code of Civil Procedure section 473, subdivision (b). While section 1008 deals with the general subject of motions to reconsider previous orders and renewals of previous motions, section 473(b) governs applications for relief from a default or default judgment entered as a result of “mistake, surprise, inadvertence or excusable neglect.” (Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) However, it is improper to seek relief available under 473(b) in a motion for reconsideration under section 1008. (Cradduck v. Hilton Domestic Operating Co., Inc. (2025) 112 Cal.App.5th 284, 304.) Accordingly, the motion is denied.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: SMC on July 14, 2026. (Judge’s initials) (Date)
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