AMERICAN EXPRESS NATIONAL BANK VS YARON ASHER

Defendant’s request for a stay is DENIED however the Court notes his request for a later pleading date deadline. His responsive pleading is due within twenty (20) days after service of notice of entry of this order.

Background

Defendant Yaron Asher filed a motion to quash the underlying action on the basis that he was not personally served, and that plaintiff’s proof of service was defective and inaccurate.

In the instant motion Defendant requests the Court reconsider its denial pursuant to Code of Civil Procedure,

May 19, 2026 Law and Motion Calendar PAGE 21 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ section 1008, based on newly discovered facts and evidence and because he is a pro se litigant with no legal training.

Plaintiff opposes, contending that the evidence is not newly discovered, nor does defendant demonstrate that he could not have previously discovered such evidence if he were reasonably diligent.

Legal Standard

Code of Civil Procedure section 1008 provides, in part:

(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.

...

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(Emphasis added.)

The legislative intent behind this section was to restrict motions for reconsideration to circumstances where a party both (a) offers the court some fact or circumstance not previously considered, and (b) offers a valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.)

Motions for reconsideration require new facts, circumstances, or law, showing diligence “with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.)

“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. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–213.)” (Cradduck v. Hilton Domestic Operating Co., Inc. (2025) 112 Cal.App.5th 284, 304.)

Discussion

The instant motion contends the proof of service form is incorrect because defendant’s physical description does not match the description on the proof of service of summons form, he lives in a

May 19, 2026 Law and Motion Calendar PAGE 22 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ secured building without his name on the public call box therefore the process server could not have come inside and knocked on his door despite her declaration that she did so.

Defendant reiterates he was never personally served. These are nearly all the same arguments made in the motion to quash, he just elaborates that he does not look like the description on the form in age, height or weight and his hair is not brown. (Declaration of Yaron Asher iso motion, ¶¶ 3-8, 19 at “fifth layer”.)

These are not new facts because he knew when he filed the motion that he believed that the physical characteristics enumerated in the proof of service do not match his physical appearance and reiterates the person described in the proof of service is not him and facts regarding access to his building (Declaration of Yaron Asher iso motion for reconsideration ¶¶ 8, 17-18.) Yet he put none of these facts in his motion to quash.

Defendant cites Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690 to support his argument that his failure to understand the legal requirements of a motion to quash means that he can have reconsideration of the ruling and have the Court consider facts that he admits that he knew at the time that he filed his motion.

However, in Garcia v. Hejmadi, there was no explanation given as to why the claimed different facts were not provided earlier. (Id. at p. 690.)

To obtain reconsideration, there must be a showing that “the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at p. 213.)

The court has not found any case, nor does Defendant cite one where a mistake in law allows reconsideration. However, assuming that Code of Civil Procedure section 1008 did allow such showing, no such showing was made here.

Defendant argues that as a pro se litigant, he did not know what the law required because he had never litigated a motion to quash before. (Mot. at p. 11; Decl. ¶ 12.)

However, as a pro per litigant, it was his duty before his filed his motion to quash to research the law and determine the requirements for the motion. (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 984–985.)

Information about the form of declarations can be found in practice guides and other legal authorities. For instance, recognized practice guide, California Practice Guide Civil Procedure Before Trial § 9:46.1 (TRG May 2025 update) explains: Make sure your declarations include facts demonstrating the declarant’s personal observations or knowledge. For example, it is not enough for a declarant to state simply, ‘The light was green.’ The declaration must contain additional facts showing the declarant was in a position to see the light at the relevant time..”

Defendant’s declaration establishes a lack of diligence in looking for the correct law. As stated in another context: “Ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319 [cleaned up; motion under Code Civ. Proc., § 473].)

Accordingly, defendant’s motion to reconsider is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with this 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.