BILL ANALYSIS Ó
AB 1067
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1067 (Huber) - As Amended: April 25, 2011
PROPOSED CONSENT
SUBJECT : Civil Procedure: Appeal of Orders
KEY ISSUE : Should the Legislature codify a view of the majority
of the courts that an order denying a motion to reconsider a
prior order is not separately appealable?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill seeks to promote judicial efficiency
by codifying the view of the majority of California courts which
hold that the denial of a motion for reconsideration of a prior
court order is not itself independently appealable. Although
there is currently a split of authority on this issue, the
majority of the cases, and especially the most recent cases,
agree that a motion for reconsideration is not appealable.
There are at least two reasons for this. First, a motion for
reconsideration is not among the appealable orders listed in
Code of Civil Procedure Section 904.1, which is generally
presumed to be an exhaustive list. Second, the majority of the
courts contend that to permit an appeal of a motion for
reconsideration would permit a party to pursue two appeals at
the same time - i.e., an appeal of the denial of reconsideration
of the prior order, as well as an appeal of the prior order
itself. While codifying this majority view, this bill would, at
the same time, specify that an appellate court may review the
denial of a motion for reconsideration if the prior order that
was the subject of the motion for reconsideration is itself
independently appealable and is in fact appealed. The bill is
sponsored by the Conference of California Bar Associations and
supported by the Judicial Council of California. There is no
known opposition to this bill.
SUMMARY : Provides that an order denying a motion to reconsider
a prior order is not appealable. However, if the order that was
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the subject of a motion to reconsider is appealable, the denial
of the motion for reconsideration is reviewable as part of an
appeal from that order.
EXISTING LAW :
1)Provides that appeal, other than from a limited civil case,
may be taken to a Court of Appeal from any of the following:
a) From a judgment, other than certain interlocutory
judgments or a judgment of contempt that is made final
and conclusive.
b) From an order granting a motion to quash service of
summons or granting a motion to stay the action on the
ground of inconvenient forum, as specified.
c) From an order granting a new trial or denying a
motion for judgment notwithstanding the verdict.
d) From an order discharging or refusing to discharge
an attachment or granting a right to attach order.
e) From an order granting or dissolving an injunction,
or refusing to grant or dissolve an injunction.
f) From an order appointing a receiver.
g) From an interlocutory judgment, order, or decree,
made or entered in an action relating to the redemption
of real or personal property, as specified.
h) From an interlocutory judgment in an action for
partition determining the rights and interests of the
respective parties and directing partition to be made.
i) From an order made appealable by certain provisions
of the Probate Code or the Family Code.
j) From an interlocutory judgment directing payment of
monetary sanctions by a party or an attorney for a party
if the amount exceeds five thousand dollars ($5,000).
aa) From an order directing payment of monetary
sanctions by a party or an attorney for a party if the
amount exceeds five thousand dollars ($5,000).
bb) From an order granting or denying a special motion
to strike under the anti-SLAPP statute.
cc) Sanction orders or judgments of five thousand
dollars ($5,000) or less against a party or an attorney
for a party, as specified. (Code of Civil Procedure
Section 904.1.)
1)Provides that when an application for an order has been made
to a judge or court and refused or granted, in whole or in
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part, any party affected by the order may, based upon new or
different facts, circumstances, or law, bring a motion to the
same judge or court to reconsider the matter and modify,
amend, or revoke the prior order. (Code of Civil Procedure
Section 1008 (a).)
2)Provides that a party who originally made an application for
an order, which was refused in whole or part, or granted
conditionally, may make a subsequent application for the same
order upon new or different facts, circumstances, or law.
(Code of Civil Procedure Section 1008 (b).)
3)Provides that if a court at any time determines that there has
been a change of law that warrants it to reconsider a prior
order it entered, it may do so on its own motion and enter a
different order. (Code of Civil Procedure Section 1008 (c).)
COMMENTS : This non-controversial bill seeks to promote judicial
efficiency by codifying the view of the majority of California
courts which hold that the denial of a motion for
reconsideration of a prior court order is not itself
independently appealable. However, this bill would also specify
that an appellate court may review denials of reconsideration if
the underlying order that was the subject of the motion for
reconsideration is itself appealable. Existing law expressly
identifies the kinds of orders that can be appealed (Code of
Civil Procedure 904.1). Additionally, existing law stipulates
the grounds on which a party may move for reconsideration of a
prior order of the court, including, for example, when
reconsideration would be justified by new facts or new law.
(Code of Civil Procedure Section 1008.) These limitations -
both on the ability to appeal and on the ability to bring
motions for reconsideration - seek to promote judicial economy,
for without these limitations a vexatious party could
theoretically seek reconsideration of every interim court order
and then use denials for reconsideration as independent grounds
for appeal, even if the underlying order was not itself
appealable.
The Majority View: Morton v. Wagner : Until recently, there is a
notable split of authority among the California appellate courts
on whether an order denying a motion for reconsideration is
separately appealable. (For example, compare Santee v Santa
Clara County Office of Education (1990) 220 Cal. App. 3d 702
(holding that a denial of reconsideration is appealable if based
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on new facts) with Rojes v. Riverside General Hospital (1988)
203 Cal. App. 3d 1151 (holding that a denial of a motion to
reconsider is never appealable).) However, "the majority of
recent cases have concluded that orders denying motions for
reconsideration are not appealable, even when based on new facts
or new law." (Morton v. Wagner (2007) 156 Cal. App. 4th 963,
968-969, emphasis in original; see also Annette F. v. Sharon S.
(2005) 130 Cal. App. 4th 1448, 1458-1459.) The recent opinions
have reached this conclusion by noting that (1) Section 904.1 of
the Code of Civil Procedure does not authorize appeals from such
orders and (2) "to hold otherwise would permit, in effect, two
appeals for every appealable decision and promote the
manipulation of the time allowed for an appeal."
In addition to limiting appeals under Code of Civil Procedure
Section 904.1, existing law also limits a party's ability to
make motions for reconsideration under Section 1008. Most
notably Section 1008 prohibits a party from making the same
motion repeatedly or moving for reconsideration of a prior order
in the absence of new facts or new law. Some older appellate
court opinions questioned the constitutionality of Section 1008
- the section amended by this bill - on the grounds the statute
impermissibly infringed upon the court's inherent powers to
alter its own decisions. However, the California Supreme Court
resolved this issue in Le Francois v Goel (2005) 35 Cal. 4th
1094, by distinguishing between a limitation on a party's
ability to renew a motion or move for reconsideration (which the
Legislature can do) versus limiting a court's ability to
reconsider a prior order on its own motion (which a Legislature
cannot do). Section 1008 prohibits a party from making renewed
motions that are not based on new facts or new law, but it does
not prevent a court from reconsidering a prior decision on its
own motion. This line of cases, like the lines of cases
considering whether the denial of a motion for reconsideration
is an appealable order, support the overall conclusion that the
purpose of Section 1008 is to conserve judicial resources by
constraining litigants who would endlessly bring the same
motions over and over, or move for reconsideration of every
adverse order and then appeal the denial of the motion to
reconsider. (See e.g. Darling, Hall, & Rae v. Kritt (1999) 75
Cal. App. 4th 1148, 1157.)
In sum, the amendment to Section 1008 proposed by this bill
appears to be fully consistent with the majority view that
denials of motions for reconsideration are not independently
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appealable. It is also appears to be fully consistent with the
statute's overall policy goal of conserving judicial resources
by limiting endless appeals of reconsideration orders unless the
underlying order is also appealable. In addition, the bill also
appropriately provides for review of denials of motions for
reconsideration where the underlying order is itself appealable
and is appealed.
ARGUMENTS IN SUPPORT : The Judicial Council of California
contends that this measure will clarify existing case law by
expressly stating that the denial of a motion to reconsider a
prior order is not separately appealable. The Judicial Council
notes that there is currently a split of authority in the
appellate courts on whether an order denying a motion for
reconsideration pursuant to CCP section 1008 is appealable. By
codifying the majority view that such orders are not appealable,
the Judicial Council writes, this bill "will provide clarity,
eliminate confusion and reduce the number of appeals in this
area." Furthermore, the Judicial Council contends that this
bill "promotes judicial economy, which is particularly
beneficial for the courts during the current fiscal crisis."
Finally, the Judicial Council notes that, while this bill
prevents an appeal of the order denying reconsideration, it
appropriately allows an appellate court to review the
reconsideration motion in connection with a timely appeal from
the underlying order, if that order is itself appealable.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Judicial Council of California
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334