BILL ANALYSIS Ó
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1067|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 1067
Author: Huber (D)
Amended: 4/25/11 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/14/11
AYES: Evans, Harman, Blakeslee, Corbett, Leno
ASSEMBLY FLOOR : 73-0, 5/2/11 - See last page for vote
SUBJECT : Civil procedure: appeal of orders
SOURCE : Conference of California Bar Associations
DIGEST : This bill provides that an order denying a
motion for reconsideration made as specified, is not itself
separately appealable. This bill further provides 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.
ANALYSIS : 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:
1. A judgment, except an interlocutory judgment or a
judgment of contempt that is made final and conclusive,
as specified;
CONTINUED
AB 1067
Page
2
2. An order made after a judgment made appealable by the
above;
3. An order granting a motion to quash service of summons
or granting a motion to stay the action, as specified;
4. An order granting a new trial or denying a motion for
judgment notwithstanding the verdict;
5. An order discharging or refusing to discharge an
attachment or granting a right to attach order;
6. An order granting or dissolving an injunction, or
refusing to grant or dissolve an injunction;
7. An order appointing a receiver;
8. An interlocutory judgment, order, or decree, made or
entered in an action to redeem real or personal
property, as specified;
9. An interlocutory judgment in an action for partition
determining the rights and interests of the respective
parties and directing partition to be made;
10.An order made appealable by Probate Code and Family Code
provisions.
11.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);
12.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
13.An order granting or denying a special motion to strike,
as specified under the Anti-SLAPP law. (Code Civil
Procedure ÝCCP] Section 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
CONTINUED
AB 1067
Page
3
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. (CCP Section 1008(a).) For purposes of this
section, an alleged new or different law does not include a
later enacted statute without retroactive application.
(CCP Section 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. (CCP Section 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. (CCP
Section 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. (CCP Section 1008(d))
This bill provides that an order denying a motion for
reconsideration made pursuant to CCP 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 also provides, however, that if the order that
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.
CONTINUED
AB 1067
Page
4
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/15/11)
Conference of California Bar Associations (source)
Judicial Council
ARGUMENTS IN SUPPORT : According to the author:
"Until recently, there Ýwas] 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 notablyÝ,] 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."
CONTINUED
AB 1067
Page
5
According to this bill's sponsor, the Conference of
California Bar Associations, "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 subject of the reconsideration motion. . . . Taken
together, these changes will provide clarity and
consistency . . . ."
In support of this 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 ÝCode of Civil Procedure]
ÝS]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."
ASSEMBLY FLOOR : 73-0, 5/2/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Campos, Carter, Cedillo,
Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng,
Feuer, Fletcher, Fong, Furutani, Garrick, Gatto, Gordon,
Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill,
Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara,
Logue, Bonnie Lowenthal, Ma, Mansoor, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel Pérez, Portantino, Silva, Skinner,
Smyth, Solorio, Swanson, Torres, Valadao, Wagner,
Wieckowski, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Charles Calderon, Fuentes, Galgiani,
Gorell, Roger Hernández, Mendoza, Vacancy
RJG:kc 6/15/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
CONTINUED
AB 1067
Page
6
**** END ****
CONTINUED