BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1067 (Huber)
As Amended April 25, 2011
Hearing Date: June 14, 2011
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Procedure: Appeal of Orders
DESCRIPTION
This bill would provide that an order denying a motion for
reconsideration made as specified, is not itself separately
appealable. This bill would further provide that if the order
that was the subject of a motion for reconsideration is
appealable, then the denial of the motion for reconsideration is
reviewable as part of an appeal from that order.
BACKGROUND
As a general rule, the Code of Civil Procedure provides that
appeals may be taken only from such judgment or orders as are
made appealable by statute. Conversely, the existence of an
appealable judgment is a jurisdictional prerequisite to an
appeal. (Code Civ. Proc. Sec. 904.1; see also 4 Ca Jur
Appellate Review (3rd edition 2011) Appealability of Judgments
and Orders, Sec. 24.) A well-recognized reason for this rule is
the judiciary's interest in limiting the number of appeals
possible.
Likewise, Code of Civil Procedure Section 1008(a), seeks to
limit the appeals a court may hear by permitting a party who
made an application for an order to only make a motion for
reconsideration requesting that the same court or same judge
reconsider the matter and modify, amend or revoke the prior
order if the motion is made within 10 days of service of entry
of written notice of the original (underyling) order and if the
motion for reconsideration is based upon new facts,
(more)
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circumstances, or law not available to the party at the time of
the original order. As stated by the California Supreme Court,
Section 1008 "clearly limitİs] the parties' ability to file
repetitive motions." The purpose and design of the statute is
"to conserve the court's resources by constraining litigants who
would attempt to bring the same motion over and over." (Le
Francois v. Goel (2005) 35 Cal.4th 1094.) (Notably, however,
the California Supreme Court, in reviewing and upholding the
constitutionality of Section 1008 in Le Francois, clarified that
this section does not govern the court's ability, on its own
motion, as opposed to a party's motion, to reevaluate its own
interim rulings. Thus, a trial court retains the inherent
authority to change its decision at any time before entry of
judgment, and is not bound by the statute's requirement that
there be new fact or law. Id. at 1104.)
California case law reveals a split in authority as to whether
an order denying a motion for reconsideration itself is
appealable. (4 Ca Jur Appellate Review (3rd edition 2011)
Appealability of Judgments and Orders, Sec. 46.) Some courts
have allowed the appeal if the underlying order was appealable
and if, as required by the governing statute, the motion for
reconsideration was based on new or different facts, but not if
the motion was based on the same factual showing as in the
original order. (See, e.g., Santee v. Santa Clara Office of
Education (1990) 220 Cal.App.3d 702; Gill v. Hughes (1991) 227
Cal.App.3d 1299.)
Other courts, especially in recent years and now comprising the
majority in the split, have concluded that the better approach
is to treat an order denying reconsideration as nonappealable,
even if the new order states new facts, circumstances or laws,
in order to eliminate the possibilities that: (1) a
nonappealable order or judgment would be made appealable; (2) a
party would have two appeals from the same decision; and (3) a
party would obtain an unwarranted extension of time to appeal.
(In re Marriage of Burgard (1999) 72 Cal.App.4th 74; Crotty v.
Trader (1996) 50 Cal.App.4th 765; Annette v. Sharon (2005) 130
Cal.App.4th 1448.) At least one court has reversed its own
position on this issue, to adopt the "better ruling . . . that a
denial of a motion of reconsideration is a nonappealable order."
(Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d
1151.)
Observing this situation, a recent Advisory Committee Comment to
a California Rule of Court remarked that the added rule "takes
no position on whether a judgment is subject to a motion to
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reconsider or whether an order denying a motion to consider is
itself appealable (citations). Both these issues are
legislative matters." (CRC 8.108(e).)
This bill, sponsored by the Conference of California Bar
Associations (CCBA), would codify the majority viewpoint and
provide that an order denying a motion for reconsideration, made
as specified under existing law described above, is not itself
separately appealable (emphasis added). However, this bill
would also provide that if the order that was the subject of a
motion for reconsideration is appealable, then the denial of the
motion for reconsideration is reviewable as part of an appeal
from that order (emphasis added).
CHANGES TO EXISTING LAW
Existing law provides that an appeal, other than in a limited
civil case, may be taken from any of the following to the Court
of Appeal:
a judgment, except an interlocutory judgment or a judgment of
contempt that is made final and conclusive, as specified;
an order made after a judgment made appealable by the above;
an order granting a motion to quash service of summons or
granting a motion to stay the action, as specified;
an order granting a new trial or denying a motion for judgment
notwithstanding the verdict;
an order discharging or refusing to discharge an attachment or
granting a right to attach order;
an order granting or dissolving an injunction, or refusing to
grant or dissolve an injunction;
an order appointing a receiver;
an interlocutory judgment, order, or decree, made or entered
in an action to redeem real or personal property, as
specified;
an interlocutory judgment in an action for partition
determining the rights and interests of the respective parties
and directing partition to be made;
an order made appealable by Probate Code and Family Code
provisions.
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);
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); or
an order granting or denying a special motion to strike, as
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specified under the Anti-SLAPP law. (Code Civ. Proc. Sec.
940.1(a).)
Existing law provides that, when an application for an order has
been made to a judge or to a court and is refused, either in
whole or in part, or is granted, or granted conditionally or on
terms, any party may, within 10 days, based upon new or
different facts, circumstances, or law, make an application to
the same judge or court to reconsider the matter and modify,
amend or revoke the prior order. (Code Civ. Proc. Sec.
1008(a).) For purposes of this section, an alleged new or
different law does not include a later enacted statute without
retroactive application. (Code Civ. Proc. Sec. 1008(e).) In
addition, the party moving for reconsideration must show that
the party has a satisfactory explanation for failing to produce
the evidence at an earlier time. (New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 213.)
Existing law permits a party who originally made an application
for an order that was refused in whole or in part, or granted
conditionally or on terms, to make a subsequent application for
the same order upon new or different facts, circumstances, or
law. This is known as a renewed motion. (Code Civ. Proc. Sec.
1008(b).)
Existing law provides that if a court at any time determines
there has been a change of law that warrants reconsideration of
a prior order it entered, it may do so on its own motion and
enter a different order. (Code Civ. Proc. Sec. 1008(c).)
Existing law makes a violation of Section 1008 punishable as
contempt and subject to sanctions, as specified. In addition,
it permits an order made contrary to this section to be revoked
by a judge of the court in which the action or proceeding is
pending. (Code Civ. Proc. Sec. 1008(d).)
This bill would provide that an order denying a motion for
reconsideration made pursuant to Code of Civil Procedure Section
1008(a) (which permits any party, within 10 days after receiving
service of notice of entry of an order, to make an application
to the same judge or court issuing the order to reconsider the
matter and modify, amend or revoke the prior order based upon
new or different facts, circumstances or law) is not separately
appealable.
This bill would also provide, however, that if the order that
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was subject of a motion for reconsideration is appealable, then
the denial of the motion for reconsideration is reviewable as
part of an appeal from that order.
COMMENT
1. Stated need for the bill
According to the author:
Until recently, there İwas] a notable split of authority among
the California appellate courts on whether an order denying a
motion for reconsideration is separately 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 . .
. .) 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
notablyİ,] 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. . . . 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.
According to the bill's sponsor, the CCBA, "AB 1067 also
clarifies that, while a party cannot appeal the order denying
reconsideration by itself, the court can consider the issue in
connection with a timely appeal from the order that was the
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subject of the reconsideration motion. . . . Taken together,
these changes will provide clarity and consistency . . . ."
In support of the bill, the Judicial Council writes:
There is currently a split of authority in the appellate
courts on whether an order denying a motion for
reconsideration pursuant to İCode of Civil Procedure]
İS]ection 1008 is appealable. . . . AB 1067 would codify the
majority view that such orders are not appealable. The
Judicial Council supports this change since it will provide
clarity, eliminate confusion and reduce the number of appeals
in this area. AB 1607 promotes judicial economy, which is
particularly beneficial for the courts during the current
fiscal crisis.
2. This bill would resolve a split in authority on
appealability of motions to reconsider
This bill is intended to provide a measure of consistency in
California rules by codifying the majority rule among the
California courts adjudicating the issue of whether a denial of
a motion for reconsideration is itself appealable. Currently,
California courts are split as to what rule they apply to these
cases. This split on the issue of appealability goes to whether
the court has the necessary jurisdiction to hear the matter. It
is not an issue that has to be necessarily raised by either
party; a court has the duty to dismiss an appeal if the judgment
or order is not appealable. (4 Ca Jur Appellate Review (3rd
edition 2011) Appealability of Judgments and Orders, Sec. 24.)
As a result, in some California courts, there is jurisdiction to
hear an appeal on a denial of a motion for reconsideration where
there would be no jurisdiction for the exact same matter to be
heard in other California courts.
While California Code of Civil Procedure Section 904.1 generally
provides for the judgments and orders that are statutorily
appealable, it does not directly address this issue of
appealability of motions to reconsider. For many years, the
courts that allowed for a denial of a motion for reconsideration
to be appealed did so on the basis that while orders for
reconsideration motions were not specifically listed, they fell
under the category of an "order after a judgment." (See
discussion Rojes 203 Cal.App.3d at 1162.) At the same time,
Section 1008(a) imposes the requirements that the original
motion for reconsideration be timely made (within 10 days of
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service of written notice of order) and that it be based upon
new facts, circumstances, or law. In Blue Mountain Development
Co. v. Carville (1982), the court held that the order denying
reconsideration may be treated as "an order made after judgment"
and thus an appealable order, if the original ruling is an
appealable order and if the motion for reconsideration is based
upon new facts." (132 Cal.App.3d 1005, 1010.)
As discussed in the Background, and as recognized by recent
court decisions such as Tate v. Wilburn (2010) 184 Cal.App.4th
150, while many courts similarly believe that an appeal may be
made of a denial of motion for reconsideration under Section
904.1(b) so long as the appeal is timely and presents new facts,
circumstances, or law, as statutorily required by 1008(a), a
majority of the courts have come to reject that line of
reasoning and accept a rule that makes the denial of a motion
for reconsideration always nonappealable-including the court
that originally decided the Blue Mountain case. (Compare Santee
v. Santa Clara Office of Education (1990) 220 Cal.App.3d 702 and
Gill v. Hughes (1991) 227 Cal.App.3d 1299 with In re Marriage of
Burgard (1999) 72 Cal.App.4th 74; Crotty v. Trader (1996) 50
Cal.App.4th 765; Annette F. v. Sharon S. (2005) 130 Cal.App.4th
1448 and Rojes v. Riverside General Hospital (1988) 203
Cal.App.3d 1151.)
The courts comprising this majority by and large point to three
policy reasons that support a finding that motions for
reconsideration are nonappealable: (1) a nonappealable order or
judgment would be made appealable; (2) a party would have two
appeals from the same decision; and (3) a party would obtain an
unwarranted extension of time to appeal. (Rojes v. Riverside
General Hospital (1988) 203 Cal.App.3d 1151, 1161 (citations
omitted).)
As noted by the proponents of this bill, by codifying the
majority viewpoint, this bill would result in added clarity,
consistency, and a decrease in appeals, saving the state costs
and increasing the efficiency of courts, and overall promoting
judicial economy. It arguably ensures a basic level of fairness
as well, by further ensuring that the same matter brought in one
California court is not treated differently for jurisdictional
purposes if brought in another California court.
3. Allowing for reviewability in specified circumstances
While this bill provides that a denial of a motion for
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reconsideration is not itself independently appealable in any
California court, it does allow for California courts to review
the denial as part of an appeal of the order underlying the
motion for reconsideration if the underlying order is
appealable.
The distinction between matters that are reviewable, as opposed
to appealable, is a relatively simple, but not insignificant
difference. If a matter is appealable, it may be directly taken
before a higher court for review. A matter that is reviewable,
however, is only open to consideration by the appellate court on
the record as made up for appeal from judgment. (Ballentine's
Law Dictionary (2010) "Appealable," citing Collins v. Miller
(1952) 198 F2d 948.)
Therefore, only in a situation where the underlying order would
be appealable as statutorily provided by Code of Civil Procedure
Section 904.1, can a court review the denial of a motion for
reconsideration as part of the appeal of the underlying order.
Under this bill, the denial of the motion for reconsideration
itself, could not independently be appealed for review.
4. Potential appealability issues with renewed motions under
Section 1008(b)
In a court case filed April 28, 2010, Tate v. Wilburn, the Court
of Appeal reviewed the split in authority described above and
agreed with the majority view holding that orders denying
motions for reconsideration under Section 1008(a) were
nonappealable. The court, however, also faced a seemingly novel
issue: whether denials of renewed motions under Section 1008(b)
are appealable.
The court commented that "İn]either party has cited any case law
addressing whether an order denying a renewed motion to
İS]ection 1008, subdivision (b) is appealable, and our
independent research has not uncovered any such authority."
Noting, however, the extensive body of case law concerning the
appealability of an order denying a motion for reconsideration
under Section 1008(a) and that the text of motions for
reconsideration under that subdivision and renewed motions under
Section 1008(b) are closely related ("a party filing either a
motion under İS]ection 1008, subdivision (a) or (b) is seeking a
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new result in the trial court based upon 'new or different
facts, circumstances, or law"), the court held the same
appealability rule thereby applies to renewed motions. (Tate,
184 Cal.App.4th 158, 159-160.)
Explaining its reasons for analogizing the two sections, the
court stated that the policy reasons (see Comment 2) behind
holding an order denying a motion for reconsideration
nonappealable were as applicable, if not more applicable, to
renewed motions. Specifically, the court illuminated how the
possibility of a party obtaining an unwarranted extension of
time to appeal (the third policy consideration) is actually more
of a concern with respect to a renewed motion under Section
1008(b) than Section 1008(a), in light of the fact that such a
motion may be brought at any time, while a motion for
reconsideration must be brought "within 10 days after service
upon the party of written notice of entry of the İunderlying]
order." While it recognized that a motion to renew a prior
motion seeks to renew a motion (not reconsider an order), does
not have a time limit, and may be heard by a new judge, the
court did not find any argument as to how those differences
rendered the policy reasons behind the nonreviewability of
orders denying motions to reconsider inapplicable to renewed
motions.
Though the Tate court effectively highlights the potential for
the same issue to arise in the scenario of renewed motions being
appealed, this bill does not address the appealability of
renewed motions and appears to have reason to refrain from doing
so. Whereas this bill seeks to settle the issue of the
appealability of motions to reconsider where a split in
authority on the issue has caused incongruous rules to be
applied within California courts, in the case of the
appealability of renewed motions, courts have rarely reviewed
the issue and there does not appear to be a problem in with
current law. The Tate court decision itself commented on the
novelty of the issue in case law. Therefore, it would arguably
be premature for the Legislature to decide what the courts
should be allowed to resolve, absent a showing that a problem
exists.
Support : Judicial Council
Opposition : None Known
HISTORY
AB 1067 (Huber)
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Source : Conference of California Bar Associations (CCBA)
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 73, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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