BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 1067|
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                                 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;

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          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 

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          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.

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           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."


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          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


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