Motion for Reconsideration
25CV125300: OBAD vs TESTFASILASIE 06/08/2026 Hearing on Motion for Reconsideration filed by ALI OBAD (Plaintiff) CRS# 275701404321 in Department 511
Tentative Ruling - 06/05/2026 Lupe Garcia
The Motion for Reconsideration filed by ALI OBAD on 05/01/2026 is Denied.
NOTICE: All attorneys and unrepresented parties who contest the tentative ruling and request an opportunity to present their arguments at the hearing must notify all other parties of their intention to appear by telephone or in person no later than the day before the hearing, by 4:00 p.m. PT. Parties and attorneys must also formally indicate their objection on eCourt and by sending an email message to the Department 511 clerk at Dept511@alameda.courts.ca.gov. The parties and attorneys must clearly indicate in their email messages the name of the case and the case number. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of a partys intent to appear is not received by the deadline. See California Rule of Court 3.1308(a)(1) and Alameda County Superior Court Local Rule 3.30(d).
The motion of Plaintiff and Judgment Creditor Ali Obad for reconsideration of the order granting the motion to strike memorandum of costs filed by Defendant and Judgment Debtor Nega Testfasilasie, pursuant to CCP § 1008(a), is DENIED.
The Court granted Defendants motion to strike the verified memorandum of costs filed by Plaintiff on April 8, 2026. The Court took the motion under submission after counsel appeared and presented their arguments on February 19, 2026. The Court granted the motion to strike because Plaintiff filed and served his verified memorandum of costs on January 9, 2026, one week after the deadline of January 2, 2026. See Rule of Court 3.1700(a)(1). The court clerk delivered a copy of the order to counsel for Plaintiff and Defendant by electronic mail on April 22, 2026. Plaintiff timely filed and served his motion for reconsideration on May 1, 2026.
Plaintiffs motion for reconsideration is denied because it is merely a request for the Court to make a different determination based on his asserted belief that the Court erred when it granted the motion to strike. Plaintiff contends that the Court did not give due weight to his argument that he was not able to obtain all of the necessary vendor invoices in December 2025 due to the holidays and the fact that the memorandum was filed only one week late. Plaintiff also claims that he is entitled to relief because Defendant does not have a valid argument that the costs set forth in his memorandum are inappropriate or excessive.
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Plaintiff is required to support his motion by identifying new or different facts, circumstances, or law and demonstrate why the new or different facts, circumstances or law could not have been presented earlier despite reasonable diligence. See Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198 (moving party must show that the facts, circumstances or law could not have been presented earlier despite reasonable diligence); and Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (same).
Plaintiffs only new fact in his motion is attorney Yosef Peretzs vacation outside the country from December 21, 2025 to January 4, 2026. The Court declines to grant reconsideration 25CV125300: OBAD vs TESTFASILASIE 06/08/2026 Hearing on Motion for Reconsideration filed by ALI OBAD (Plaintiff) CRS# 275701404321 in Department 511 because Plaintiff failed to explain why this fact was not disclosed when he filed his opposition to the motion to strike or tax costs on February 2, 2026, or when counsel appeared for the hearing.
The Court notes that attorney Peretz had several attorneys and paralegal staff assisting him in this case who could have timely filed the memorandum of costs or sought leave of the court for a continuance. The late filing was by choice.
Plaintiff also claims that he is entitled to relief because his attorneys failure to file and serve the memorandum of costs timely was due to their mistake, inadvertence, surprise and/or excusable neglect. See CCP § 473(b). Plaintiff, however, has not cited any facts to support his contention that he or his attorneys made a mistake or that their failure to file the memorandum timely was due to their excusable neglect. See Milton v. Perceptual Develop. Corp. (1997) 53 Cal.App.4th 861, 866-867 (court may scrutinize counsels declaration to determine whether the order was issued due to counsels fault); and Jackson v.
Bank of America (1983) 141 Cal.App.3d 55, 58 (motion must be supported by a declaration showing that the neglect was excusable). In fact, attorney Peretz acknowledges that his office was aware of the filing deadline and their right to seek an extension of the deadline by fifteen days, but they decided to file one week late to await receipt of invoices. See Rule of Court 3.1700(b)(3). This is not the type of mistake or neglect referenced in CCP § 473(b). See Bumete v. La Casa Dana Apts. (2007) 148 Cal.App.4th 1262, 1264 (defendant who decided not to hire an attorney to represent him is not entitled to relief under section 473(b)); and English v.
IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148-149 (attorney affidavit of fault does not support an order setting aside summary judgment entered after he failed to file an opposition). When evaluating an attorneys mistake, the Court of Appeal found that the lower court should determine whether a reasonable prudent person under the same or similar circumstances might have made the same error. Henderson v. Pacific Gas & Electric (2010) 187 Cal.App.4th 215, 229. In Henderson, the appellate court held it was not an abuse of discretion to deny relief pursuant to CCP 473(b) where a reasonably prudent person would not fail to timely request a continuance on a motion for summary judgment.
Id at 232. Similarly, the Court does not find that a reasonably prudent attorney would fail to seek an extension under the circumstances alleged and simply ignore the deadline to seek relief after the fact.
Plaintiff reliance on Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1148-1149 is misplaced. In Shapiro, the defendant, who was served in Florida, had until September 7, 2005 to file a response to the Complaint. Id. at 1133-1134. Plaintiff and Defendant attempted to settle the dispute before Defendants filing of a response by September 7, 2025. Id. To facilitate settlement discussions, the plaintiffs attorney advised defendants attorney that he would wait until September 15, 2005 to file a request for entry of default.
Id. The parties did not settle prior to September 15, 2005, though the defendants attorney expressed optimism that a settlement could be made on September 14, 2005. Id. at 1134-1135. Counsel for defendant Clark suggested that the plaintiff should give his client additional time to respond because a settlement could be had. Id. The attorney for Clark advised Shapiros attorney that her son passed away on September 8, 2005, and so she had been unable to devote much time or energy to the lawsuit.
Id. Plaintiff did not cite any facts in this case that are analogous to those before the court of appeal in the Shapiro case.
SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA
25CV125300: OBAD vs TESTFASILASIE 06/08/2026 Hearing on Motion for Reconsideration filed by ALI OBAD (Plaintiff) CRS# 275701404321 in Department 511
The Court will prepare the order. The court clerk will send a copy of the order to the parties. Defense counsel Higginbotham shall file and serve the notice of entry of order no later than June 12, 2026. The Court notes that attorney Higginbotham did not file and serve the notice of entry of the April 8, 2026 order despite the fact that he was ordered to do so.