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