Chapter 158 MOTIONS TO RECONSIDER AND RENEWED MOTIONS

Introduction

Scope of Chapter

This chapter discusses motions to reconsider and renewed motions and contains forms of memoranda of points and authorities for use in supporting [Form 1] and opposing [Forms 10, 11] a motion to reconsider, supporting [Form 2] and opposing [Form 12] a renewed motion, supporting an ex parte motion to revoke an order made on a renewed motion without compliance with statutory requirements [Form 20], and supporting a motion to dismiss an appeal as untimely [Forms 30-32]. It also includes a form of contention to oppose any type of motion that does not expressly seek reconsideration but would implicitly result in the reconsideration of a prior motion [Form 13].
Governing Law
Motions to reconsider and renewed motions are governed by Code Civ. Proc. 1008[Deering's] , case law, and local court rules.
Page Limitation on Points and Authorities
Generally, a memorandum of points and authorities must not exceed 15 pages in length, or, in the case of a motion for summary judgment or summary adjudication, 20 pages in length. A reply or closing memorandum may not exceed 10 pages in length [ Cal. Rules of Ct., Rule 313(d)[Deering's] ]. Any party desiring to file a longer memorandum must obtain leave of court [ Cal. Rules of Ct., Rule 313(d)[Deering's] ]. For further discussion of this and other basic requirements governing memoranda of points and authorities imposed under Cal. Rules of Ct., Rule 313[Deering's] and local court rules, see Ch. 1, Writing Legal Memoranda and Briefs, 1.05.
Motion to Reconsider
Any party affected by an order made on application and refused in whole or in part, or granted, or granted conditionally, or on terms, may, within 10 days after service on the party of written notice of entry of the order and based on new or different facts, circumstances, or law, apply to the same judge who made the order to reconsider the matter and modify, amend, or revoke the prior order [ Code Civ. Proc. 1008(a)[Deering's] ; see Form 1]. Code Civ. Proc. 1008(a)[Deering's] on its face authorizes a motion to reconsider [see, e.g., Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 816, 1 Cal. Rptr. 2d 130 ; Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970, 180 Cal. Rptr. 604 ]. Code Civ. Proc. 1008[Deering's] applies to all applications for interim orders [ Code Civ. Proc. 1008(g)[Deering's] ].
Renewed Motion
Renewed motions are governed by Code Civ. Proc. 1008(b)[Deering's] [ Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 816, 1 Cal. Rptr. 2d 130 ; Graham v. Hansen (1982) 128 Cal. App. 3d 965, 971, 180 Cal. Rptr. 604 ]. That statute provides that when the party who originally made an application for an order which was refused in whole or in part, or granted conditionally, or on terms, makes a subsequent application for the same order on new or different facts, circumstances, or law, it shall be shown by affidavit (or declaration under Code Civ. Proc. 2015.5[Deering's] ) what application was made before, when and to what judge, what order or decisions were made on it, and what new or different facts, circumstances, or law are claimed to be shown [see Form 2]. For a failure to comply with this requirement, any order made on such subsequent application may be revoked or set aside on ex parte motion [ Code Civ. Proc. 1008(b)[Deering's] ; see Form 20]. This provision is substantially the same as former Code Civ. Proc. 1008 [see discussion under Use of Case Law, below ].

Code Civ. Proc. 1008(b)[Deering's] does not on its face authorize the filing of a renewed motion; rather, it assumes that such motions supported by new facts are proper and merely imposes requirements on what must be shown and a penalty for failure to comply [see Code Civ. Proc. 1008(b)[Deering's], (d)[Deering's] ].

Code Civ. Proc. 1008[Deering's] applies to all applications for interim orders [ Code Civ. Proc. 1008(g)[Deering's] ].
Sanctions
A violation of Code Civ. Proc. 1008[Deering's] may be punished as a contempt, and an order made contrary to it may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending [ Code Civ. Proc. 1008(d)[Deering's] ; see Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 1028, 46 Cal. Rptr. 2d 177 (order imposing sanctions reversed for insufficient findings even though motion for reconsideration improperly relied on matters that could have been previously presented)].
Use of Case Law
Case law must be used with caution because there have been significant changes in Code Civ. Proc. 1008[Deering's] over the years. The present version of the statute was enacted in 1978 and amended by Stats. 1992, ch. 460, operative January 1, 1993 and by Stats 1998, ch. 200, 2, operative January 1, 1999. It relates to two distinct remedies, a motion to reconsider, which was formerly governed by case law, and a renewed motion [ Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 816, 1 Cal. Rptr. 2d 130 ; Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 943-944, 198 Cal. Rptr. 249 (construing the 1978 version of the statute)]. The 1978 version of Code Civ. Proc. 1008(a)[Deering's] (discussed under Motion to Reconsider, above) broadened the case law by permitting any party affected by the proceeding to file a motion for reconsideration; under former case law, the motion normally could be made only by the original moving party [see Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 816, 1 Cal. Rptr. 2d 130 ; George Ball Pacific, Inc. v. Coldwell Banker & Co. (1981) 117 Cal. App. 3d 248, 253, 172 Cal. Rptr. 597 ]. In former Code Civ. Proc. 1008(b) (discussed under Renewed Motion, above), the Legislature left the prior law virtually unchanged with respect to subsequent applications by the moving party for the same order.

In 1992, the Legislature further amended Code Civ. Proc. 1008[Deering's] , and, among other things, explicitly limited jurisdiction to reconsider orders, whether interim or final, to the provisions of Code Civ. Proc. 1008[Deering's] [ Code Civ. Proc. 1008(e)[Deering's] (implicitly overturning holdings of contrary cases; see, e.g., Ziller Electronics Lab GMBH v. Superior Court (1988) 206 Cal. App. 3d 1222, 1231, 254 Cal. Rptr. 410 (motion to reconsider may not be subject to 10-day limit of Section 1008(a) if made under court's inherent jurisdiction))]. The current statute also explicitly limits jurisdiction with regard to renewals of previous motions, whether the order deciding the previous motion is interim or final, to the provisions of Code Civ. Proc. 1008[Deering's] [ Code Civ. Proc. 1008(e)[Deering's] ].

The current statute also permits the court to reconsider on its own motion a prior order it entered and enter a different order any time it determines that there has been a change of law, not including a later enacted statute without retroactive application, that warrants reconsideration of the prior order [ Code Civ. Proc. 1008(c)[Deering's] ; see Code Civ. Proc. 1008(f)[Deering's] ].

In 1998, subsection (g) was added to the current statute. It provides that Code Civ. Proc. 1008[Deering's] applies to all applications for interim orders [ Code Civ. Proc. 1008(g)[Deering's] ].

Code Civ. Proc. 1008[Deering's] has been said to govern reconsideration of court orders whether initiated by a party or the court itself. It is the exclusive means for modifying, amending or revoking an order and that limitation is expressly jurisdictional [ Gilbert v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499, 38 Cal. Rptr. 2d 626 ; see Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 685, 691 n.* (disagreeing with decisions that continue to state that section 1008 is not jurisdictional or which state, without qualification, that court may reconsider any judgment before it is final, independent of statute)].

On the other hand, it has been held that Code Civ. Proc. 1008[Deering's] does not govern the court's ability, on its own motion, to reevaluate its own interim rulings, and that the line of cases holding section 1008 is jurisdictional is not applicable in this situation. Instead, the trial court retains inherent authority to change its decision at any time before entry of judgment. The only requirement is that the court exercise ``due consideration'' before modifying, amending, or revoking its prior orders [ Darling, Hall & Rae v. Kritt (1999) 75 Cal. App. 4th 1148, 1156-1157, 89 Cal. Rptr. 2d 676 (court properly exercised inherent power to correct its own ruling by sua sponte reconsideration of motions for summary judgment, basing reconsideration only on papers previously filed in connection with motions; Gilbert and Garcia distinguished as involving reconsideration motions brought by a party); see also Kerns v. CSE Insurance Group (2003) 106 Cal. App. 4th 368, 388-390, 130 Cal. Rptr. 2d 754 (agreeing with Darling line of cases in holding that CCP 1008[Deering's] does not preclude trial courts from reconsidering and correcting their own interim decisions)].
Motion to Reconsider and Renewed Motion Distinguished
A ``motion to reconsider'' seeks to reopen consideration of a previous motion that the court either granted in whole, in part, or on conditions, or denied. It may be brought by any party; it is not limited to the original moving party. The motion is subject to a 10-day time limit [see Code Civ. Proc. 1008(a)[Deering's] ].

A ``renewed motion'' may be brought only by the party who made the prior motion which was denied in whole or in part, or granted conditionally or on terms. It is normally based on new or different facts, circumstances, or law, but seeks the same relief sought by the prior motion [see Code Civ. Proc. 1008(b)[Deering's] ]. Unlike a motion to reconsider, a renewed motion is not subject to the 10-day time limitation set forth in Code Civ. Proc. 1008(a)[Deering's] [see Code Civ. Proc. 1008(b)[Deering's] ; Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970-971, 180 Cal. Rptr. 604 ].

Notwithstanding the distinction between the two kinds of motion, the term ``motion to reconsider'' is often applied mistakenly to both kind of motions [see, e.g., Stewart v. Superior Court (1985) 163 Cal. App. 3d 915, 916, 209 Cal. Rptr. 870 (court describing motion under Code Civ. Proc. 1008(b)[Deering's] , which governs renewed motions, as motion for reconsideration); Graham v. Hansen (1982) 128 Cal. App. 3d 965, 969-970, 180 Cal. Rptr. 604 (renewed motion entitled motion for reconsideration)].
Order on Motion to Reconsider
Care should be taken to distinguish a court's decision for or against reconsideration from its decision after reconsideration. If a litigant seeks reconsideration of an order denying a motion, such as a motion to intervene, the trial court may sometimes enter an order ``denying reconsideration'' when it is plain from the record that the first motion was denied without prejudice and the second ruling was intended to be a ruling on the merits of the motion for intervention rather than simply a denial of reconsideration [ Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1011, 183 Cal. Rptr. 594 (prior law; disapproved on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 , discussed in Form 11, Discussion of Authorities, under Unavailability After Judgment of Motion to Reconsider Order Granting Judgment, and Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment)].
Mistitled Motion
An otherwise sufficient motion improperly entitled as one for reconsideration made after judgment which is actually a motion for some other authorized form of judicial relief may be treated by the trial court for what it actually is [see, e.g., City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal. App. 3d 543, 553-554, 133 Cal. Rptr. 212 (decided prior to the enactment of the 1978 version of Code Civ. Proc. 1008[Deering's] )]. Thus, in City of Los Angeles, a motion, filed pursuant to Code Civ. Proc. 473[Deering's] , to reconsider an order dismissing the action for want of prosecution (which order, when signed by the court and filed, constitutes the judgment [see Code Civ. Proc. 581d[Deering's] ]) was treated as a motion for relief under Code Civ. Proc. 473(b)[Deering's] , based on mistake, inadvertence, surprise, or excusable neglect [ City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal. App. 3d 543, 552-554, 133 Cal. Rptr. 212 ]. In addition, an appellate court in unusual circumstances may apparently do likewise [see Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1608, 275 Cal. Rptr. 887 (prior law; treating motion for reconsideration as motion for new trial in accordance with prior decisions that it was overruling, but adding that, generally, appellate courts should not construe a motion expressly identified as being a particular motion to be an entirely different motion when it was not so treated in the trial court)].

However, a party may not circumvent the jurisdictional prerequisites to a motion for reconsideration under Code Civ. Proc. 1008[Deering's] , by mistitling the motion as a motion for relief under Code Civ. Proc. 473[Deering's] [see Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1501, 38 Cal. Rptr. 2d 626 ].
Time Limitations
Code Civ. Proc. 1008(a)[Deering's] imposes a limit of 10 days after service on the party of written notice of entry of the order in which to file a motion to reconsider; it does not, however, set a time limit for ruling on the motion. Code Civ. Proc. 1008(b)[Deering's] sets no time limit on either the making of a renewed motion or for ruling on it.

Nevertheless, time limits may be imposed because of the nature of the order sought on the motion to reconsider or renewed motion. For example, the Court of Appeal of the First Appellate District, Division Two, citing cases, has pointed out that a timely motion to reconsider an appealable order granting a new trial, in order to be consistent with the jurisdictional 60-day limit for acting on new trial motions [see Code Civ. Proc. 660[Deering's] ], must be ruled on within that 60 days or is deemed denied by operation of law, and that, by parallel reasoning, an order denying a timely motion to reconsider an appealable dismissal order must be entered within the jurisdictional 60 days following entry of judgment or it will not extend the time under Cal. Rules of Ct., Rule 3(a)[Deering's] , in which to file a notice of appeal from the dismissal order [ Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 818, 1 Cal. Rptr. 2d 130 (discussed in Form 12, Discussion of Authorities)]. (To the extent Stephen suggests that a motion to reconsider a properly entered written order of dismissal, which constitutes the judgment [see Code Civ. Proc. 581d[Deering's] ], is permissible, it is inconsistent with the holding in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 275 Cal. Rptr. 887 , that a court cannot reconsider an order granting a judgment after the judgment has been entered and that judicial error may be corrected only through certain limited procedures such as motions for new trial and motions to vacate the judgment [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606, 275 Cal. Rptr. 887 (prior law); see Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1236-1238, 58 Cal. Rptr. 2d 217 (following Passavanti, both cases discussed in Form 11, Discussion of Authorities, under Unavailablity After Judgment of Motion to Reconsider Order Granting Judgment, and Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment)].)

The Stephen court further pointed out that if jurisdictional considerations compel implying time limits on motions under Code Civ. Proc. 1008(a)[Deering's] , they must in some cases also limit Code Civ. Proc. 1008(b)[Deering's] . Thus, for example, an open ended time for ``renewed'' motions is incompatible with California law deeming death-knell class certification denials final and binding when not timely appealed. The onus is thus on a plaintiff to bring such a motion within whatever time limit [ Cal. Rules of Ct., Rule 2[Deering's] ] applies for fixing the finality of the order [ Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 818, 1 Cal. Rptr. 2d 130 (discussed in Form 12, Discussion of Authorities)].

Once a trial court has entered judgment, the court lacks jurisdiction to grant a motion for reconsideration even if the motion was brought before the judgment was entered and is still pending at the time of entry of judgment [ APRI Ins. Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 180-182, 90 Cal. Rptr. 2d 171 ].
Related Pleading and Practice Chapters
For discussion and forms of ex parte motions, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 372, Motions and Orders (Matthew Bender).

For discussion and forms of notices of motion to reconsider and notices of renewed motions, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 374, Motions to Reconsider and Renewed Motions (Matthew Bender).
Forms
Form 1 Supporting Motion to Reconsider Prior Order
[Code Civ. Proc. 1008(a)]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF MOTION FOR
)RECONSIDERATION OF
)ORDER _______________
)[e.g., DENYING] MOTION
)__________ [FOR or TO]
_________________________ [name ],)_______________
)[specify]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name ],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)Discovery Cut-Off: ____
)Motion Cut-Off: _______
)[Trial Date: __________
)]
)

THE MOTION BY _________________ [specify party, e.g., PLAINTIFF] FOR RECONSIDERATION OF THE ORDER MADE HEREIN ON _________________ [date] BY THE HONORABLE _________________ [name of judge] _________________ [DENYING IN _________________ (WHOLE or PART) or GRANTING or GRANTING _________________ (CONDITIONALLY or ON TERMS)] THE MOTION OF _________________ [specify party, e.g., DEFENDANT] FOR _________________ [specify relief sought by prior motion] SHOULD BE GRANTED AND, ON RECONSIDERATION, THE ORDER SHOULD BE _________________ [specify, e.g., AMENDED TO PROVIDE THAT _________________ (specify)] FOR THE REASON(S) THAT _________________ [specify].

A. Jurisdiction of Trial Court. A decision on a motion is not res judicata, and a trial court has jurisdiction to reconsider a prior ruling or to entertain a renewal of a previous motion ( Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 876, 282 Cal. Rptr. 706 ).

B. Statutory Authority for Motion to Reconsider. Any party affected by an order made on application and refused in whole or in part, or granted, or granted conditionally, or on terms, may, within 10 days after service upon the party of written notice of entry of the order and based on new or different facts, circumstances, or law, make application to the same judge who made the order to reconsider the matter and modify, amend, or revoke the prior order ( Code Civ. Proc. 1008(a)[Deering's] ; see also Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970, 180 Cal. Rptr. 604 .

C. Statute Applies to All Applications For Interim Orders. Code Civ. Proc. 1008[Deering's] applies to all applications for interim orders ( Code Civ. Proc. 1008(g)[Deering's] ).

[Optional ] D. Reconsideration of Order Granting Motion to Dismiss Action for Failure to Effect Service Within Two Years. An order granting a motion for discretionary dismissal of an action for failure to serve process within two years after the action was commenced is subject to reconsideration on motion ( Ladd v. Dart Equipment Corp. (1991) 230 Cal. App. 3d 1088, 1092, 1104-1107, 281 Cal. Rptr. 813 ).

[Optional ] E. Motion to Reconsider Ruling on Demurrer. A demurrer is ``an application for an order'' within the meaning of Code of Civil Procedure Section 1008(a)[Deering's] and will support an application to reconsider an order sustaining a demurrer without leave to amend ( Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 943, 198 Cal. Rptr. 249 ; see also Careau & Co. v. Security Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1386, 272 Cal. Rptr. 387 ).

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[moving party ]

COMMENTS

Use of Form

This memorandum of points and authorities may be submitted in support of a motion to reconsider a prior order denying in whole or in part, or granting, or granting conditionally, or on terms, a motion [see Code Civ. Proc. 1008(a)[Deering's] ] or an order sustaining or overruling a demurrer. Optional Paragraph D should be included when the motion to be reconsidered is one dismissing the action under Code Civ. Proc. 583.420(a)(1)[Deering's] . Paragraph E is for inclusion when the motion seeks reconsideration of the court's ruling on a demurrer. Any of the points and authorities set out in the optional paragraphs may, instead of being presented in the supporting memorandum of points and authorities, be included in a memorandum of points and authorities in reply to the opposing party's memorandum of points and authorities raising the issues [see Form 10].

Counsel should insert argument in this form, showing the relationship between the facts of the case and the points of law stated.

Ruling on Motion

An order denying a motion for reconsideration is interpreted as a determination that the application for reconsideration does not meet the requirements of Code Civ. Proc. 1008(a)[Deering's] . If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling [ Corns v. Miller (1986) 181 Cal. App. 3d 195, 226 Cal. Rptr. 247 ].

Opposing Points and Authorities

In an appropriate case, the points and authorities set out in Forms 10 and 11 may be used to oppose this memorandum of points and authorities.

Related Pleading and Practice Forms

For discussion and a form of notice of motion for reconsideration, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 372, Motions and Orders, Pt. II (Matthew Bender).

DISCUSSION OF AUTHORITIES

Jurisdiction of Trial Court

Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 282 Cal. Rptr. 706 , was an action for damages for breach of contract and fraud by the purchasers of a used mobilehome against the sellers and the sellers' real estate agent. The mandatory dismissal statute for failure to bring the action to trial within five years [see Code Civ. Proc. 583.310[Deering's], 583.360[Deering's] ] was about to expire. Plaintiffs' original attorney had withdrawn from the case, and plaintiffs had experienced difficulty in finding another attorney. The new attorney promptly moved the trial court for a preferential trial date, which was granted. The same day defendants filed a motion to dismiss for failure to bring the action to trial within three years [see Code Civ. Proc. 583.410[Deering's], 583.420(a)(2)(A)[Deering's] ], now two years [see Code Civ. Proc. 583.410[Deering's], 583.410(a)(2)(B)[Deering's] ]. Six weeks later another judge heard and granted the motion to dismiss and vacated the trial date. Plaintiff appealed from the subsequent judgment of dismissal.

The court of appeal reversed. The court indicated that the issue presented was whether the second judge was empowered to issue a ruling contrary to the first judge. Determining this issue required reconciliation of two established rules: (1) a decision on a motion is not res judicata, and the trial court has jurisdiction to reconsider a prior ruling or to entertain a renewal of a previous motion; and (2) one trial court judge may not reconsider and overrule a ruling of another judge (231 Cal. App. 3d 873, 876-877). The court explained that the conflicting principles were reconciled in Ziller Electronics Lab GMBH v. Superior Court (1988) 206 Cal. App. 3d 1222, 1232, 254 Cal. Rptr. 410 , which concluded that on a renewed motion or motion for reconsideration, the second judge must direct the moving party to the first judge and that only if the first judge is unavailable may the second judge hear the reconsideration motion (231 Cal. App. 3d 873, 877). The court said that the considerations in a motion for preferential trial setting are the same as the considerations in a motion to dismiss, both of which are addressed to the discretion of the trial court and governed by the factors set forth in Cal. Rules of Ct., Rule 373(e)[Deering's] (231 Cal. App. 3d 873, 877). Unable to discern in the record on appeal the basis for the first judge's ruling, that is whether the issue of plaintiff's diligence in prosecuting their action was left to be decided later in a motion to dismiss, the court of appeal reversed the dismissal with directions to the trial court to refer the subsequent motion to dismiss to the first judge who had granted the preferential trial setting (231 Cal. App. 3d 873, 877-878).

Statutory Authority for Motion to Reconsider

The procedural background of Graham v. Hansen (1982) 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 (construing the 1978 version of the statute), is discussed in Form 2, Discussion of Authorities, under Governing Statute. In affirming the summary judgment, the appellate court said that then newly enacted Code Civ. Proc. 1008[Deering's] contains provisions relating both to motions for reconsideration and for subsequent applications for the same order, and that former Code Civ. Proc. 1008(a) now permits any affected party to seek reconsideration of a court's order, regardless of how the court ruled on the motion, provided the motion is based on an alleged ``different'' set of facts and is made within 10 days of knowledge of the court's order (128 Cal. App. 3d 965, 970).

Reconsideration of Order Granting Motion to Dismiss Action for Failure to Effect Service Within Two Years

Ladd v. Dart Equipment Corp. (1991) 230 Cal. App. 3d 1088, 281 Cal. Rptr. 813 , was an action filed on November 21, 1986, by an injured employee against his employer and two of the employer's closely related but legally separate business entities for damages for injuries resulting from a work-related accident. Two of the defendants were not served with the summons and complaint until April 13, 1989, nearly 29 months after the action was filed. The third defendant was not served until June 14, 1989, nearly 31 months after the filing. On July 7, 1989, plaintiff voluntarily dismissed the complaint as to his employer. The remaining defendants moved to dismiss the action for failure to serve the summons and complaint within two years after the action was commenced [see Code Civ. Proc. 583.420(a)(1)[Deering's] ]. The motion was granted on October 10, 1989. Plaintiff's subsequent motion for reconsideration, filed on October 20, 1989, was also granted. On reconsideration, the trial court again ordered the action dismissed, feeling it was bound by a prior court of appeal decision to do so. Plaintiff appealed. The court of appeal concluded that the trial court acted within its discretion in granting the original dismissal motion and in granting the reconsideration request, and affirmed those orders (230 Cal. App. 3d 1088, 1091-1092, 1095). However, the appellate court reversed the second dismissal order on the ground the trial court failed to exercise its discretion in ruling on the dismissal motion after granting reconsideration (230 Cal. App. 3d 1088, 1092, 1104-1107).

Note that the appellate court's decision does not clearly show whether a judgment of dismissal had been entered on the motion to dismiss when the motion to reconsider was filed; that is, whether the court's order granting the motion to dismiss was in writing (as opposed to a minute order), signed, and filed before the motion to reconsider was filed. Code Civ. Proc. 581d[Deering's] provides that all dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action, and such orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case. If the trial court in Ladd followed this procedure, then it would appear that the judgment of dismissal had been entered before the motion to reconsider was filed. If this is so, then the appellate court's holding that the motion to reconsider was properly granted would appear to be contrary to the holding of the Fourth Appellate District, Division Two, in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 275 Cal. Rptr. 887 , which was not discussed in Ladd. The Ladd court did cite for another point Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1013, 183 Cal. Rptr. 594 (230 Cal. App. 3d 1088, 1102), which also was decided by the the Fourth Appellate District, Division Two, and which was disapproved in part in Passavanti (Passavanti is discussed in Form 11, Discussion of Authorities, under Unavailability After Judgment of Motion to Reconsider Order Granting Judgment; Form 30, Comments; and Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment).

Motion to Reconsider Ruling on Demurrer

Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 198 Cal. Rptr. 249 , was a mandate proceeding arising out of an action for battery occurring as an aspect of an in-patient psychiatric treatment program in which plaintiffs participated and consented to defendants using physical violence on them as a therapeutic measure. The trial court (1) sustained defendants' demurrer without leave to amend; (2) denied plaintiffs' motions for new trial and for reconsideration and for leave to file a proposed amended complaint; and (3) imposed monetary sanctions against plaintiffs and their attorney for bringing (a) a reconsideration motion without alleging a new and different state of facts as required by former Code Civ. Proc. 1008(a) , and (b) a wholly inappropriate motion for new trial. In granting the writ, the reviewing court pointed out, with respect to the motion for reconsideration, that under Code Civ. Proc. 1003[Deering's] , an application for an order is a motion, and held that a demurrer, which is a pleading ( Code Civ. Proc. 422.10[Deering's] ), is also an application for an order within the meaning of Code Civ. Proc. 1008(a)[Deering's] and will support an application to reconsider the matter when supported by a proposed pleading containing new allegations not previously included by the pleader (150 Cal. App. 3d 933, 943).

Careau & Co. v. Security Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 272 Cal. Rptr. 387 , involved consolidated actions arising out of a dispute as to whether the bank defendants had made a binding commitment to provide debt financing to the plaintiffs for a leveraged buyout, and whether the plaintiffs justifiably relied on it. The court sustained without leave to amend defendants' demurrers to 16 of the 22 causes of action alleged in the consolidated complaints. Plaintiffs moved for reconsideration of the ``without leave to amend'' portion of the order, submitting with their motion proposed second amended complaints for both of the actions. The court denied the motion on the ground no ``new'' facts were presented. The court further granted defendants' subsequent motion for judgment on the pleadings as to five additional counts. Plaintiffs voluntarily dismissed without prejudice the remaining count, and appealed from the subsequent judgment.

The court of appeal, citing Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 943-944, 198 Cal. Rptr. 249 (discussed above ), said plaintiffs were entitled to submit proposed second amended complaints by way of a motion for reconsideration, and that if those amended complaints stated any causes of action the trial court was obligated to (1) vacate its order which had sustained the demurrers without leave to amend and (2) make a different order granting plaintiffs leave to file an amended complaint, which would include the causes of action which the trial court, in deciding the merits of the motion for reconsideration, determined were valid (222 Cal. App. 3d 1371, 1386). The court noted that the trial court denied the motion for reconsideration because ``there were no new facts.'' The appellate court said that this was not correct, that former Code Civ. Proc. 1008(a) does not require that a motion to reconsider be based on ``new facts,'' but only that the motion be based on an alleged different state of facts than the original motion, and that the trial court should have specifically examined the proposed pleadings attached to the reconsideration motion to determine whether the added allegations were sufficient to state one or more valid causes of action (222 Cal. App. 3d 1371, 1387, n.9). The court examined the proposed amended complaints and held that the trial court should have overruled the demurrers as to two causes of action and granted plaintiffs the right to amend as to certain other causes of action, and reversed the dismissal orders to that extent, affirming them in all other respects (222 Cal. App. 3d 1371, 1379, 1388-1405).

ADDITIONAL AUTHORITIES

Statutory Authority for Motion to Reconsider

In Glade v. Glade (1995) 38 Cal. App. 4th 1441, 45 Cal. Rptr. 2d 695 , plaintiff, the trustee of a revocable family trust, obtained a summary judgment in a foreclosure action against defendant after defendant had obtained an order from a family law court which had consolidated the foreclosure action with a marital dissolution action and had stayed the foreclosure action. However, the trial court for the foreclosure action did not receive notice of the stay, and entered the summary judgment. Later, the trial court for the foreclosure action then denied defendant's motion for reconsideration for the stated reason that the stay was ineffective because the courts were of equal jurisdiction.

The court of appeal concluded that the family law court had priority of jurisdiction, and addressed the issue of whether the motion for reconsideration should have been granted. The court noted the requirement that the party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time (38 Cal. App. 4th 1441, 1457). The record indicated that the family law court's stay order was issued just two days before the summary judgment motion was set to be heard. The attorneys for both parties tried unsuccessfully to contact the trial court to inform the court of the stay prior to the hearing although the plaintiff's attorney was taking the position that the order was invalid. However, when defendant's attorney arrived five minutes late for the summary judgment hearing, apparently due to construction work which concealed the courthouse as he drove past, plaintiff's attorney failed to inform the court of the stay order. When defendant's attorney's presence was called to the court's attention as the matter was being submitted, the trial court did not permit him to speak. The court concluded that on these facts there was a reasonable and credible explanation for defendant's failure to apprise the trial court of the stay order (38 Cal. App. 4th 1441, 1457).
Form 2 Supporting Renewed Motion [Code Civ. Proc. 1008(b)]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF MOTION
)__________ [TO or FOR]
_________________________ [name ],)_______________
)[specify ]
Plaintiff, )[Code Civ. Proc.
)1008(b);
vs. )Cal. Rules of Ct.,
)Rule 313]
_________________________ [name ],)Date: _______________
Defendant. )Time: _______________
)Judge: _______________
)Location: _____________
)Date Action Filed: ____
)Trial Date: ___________
)


THIS RENEWED MOTION SHOULD BE GRANTED BECAUSE A RENEWED MOTION BASED ON NEW OR DIFFERENT FACTS, CIRCUMSTANCES, OR LAW IS AUTHORIZED BY STATUTE, AND THE NEW FACTS SET FORTH IN THE _________________ [AFFIDAVIT or DECLARATION UNDER PENALTY OF PERJURY] ATTACHED TO THE NOTICE OF MOTION SHOW THAT THE MOTION _________________ [specify, e.g., FOR SUMMARY JUDGMENT] SHOULD BE GRANTED ON THE GROUND(S) THAT _________________ [specify, e.g., THERE IS NO MERIT TO THE ACTION] FOR THE REASON THAT _________________ [specify, e.g., THE ACTION IS BARRED BY THE STATUTE OF LIMITATIONS].

A. Jurisdiction of Trial Court. [See Form 1, Paragraph A. ]

B. Governing Statute. Renewed motions are governed by Code of Civil Procedure Section 1008(b)[Deering's] ( Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970-971, 180 Cal. Rptr. 604 ).

C. Statute Applies to All Applications For Interim Orders. [See Form 1, Paragraph C.]

D. Statutory Requirements. When the party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, makes a subsequent application for the same order on new or different facts, circumstances, or law, it shall be shown by affidavit (or declaration under penalty of perjury [ Code Civ. Proc. 2015.5[Deering's] ]) what application was made before, when and to what judge, what order or decisions were made thereon, and what new or different facts, circumstances, or law, are claimed to be shown ( Code Civ. Proc. 1008(b)[Deering's] ).

[Optional ] E. Inapplicability of 10-Day Limitation Period. The provision in Code of Civil Procedure Section 1008(a)[Deering's] requiring that a motion for reconsideration be made within 10 days after service upon the party of written notice of entry of the order does not apply to a renewed motion under Code of Civil Procedure Section 1008(b)[Deering's] , which is not subject to any time limitation ( Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal. App. 3d 826, 831, 258 Cal. Rptr. 676 (prior law; criticized on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1608 n.5, 275 Cal. Rptr. 887 ); Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970-971, 180 Cal. Rptr. 604 ).

[Optional ] F. Sufficiency of New Facts to Support Motion. Whether the ``new'' facts alleged on a renewal motion are sufficient to satisfy the requirements of Code of Civil Procedure Section 1008(b)[Deering's] is a question confided to the sound discretion of the trial court, the exercise of which the appellate court will not interfere with absent an obvious showing of abuse ( Graham v. Hansen (1982) 128 Cal. App. 3d 965, 971, 180 Cal. Rptr. 604 (prior law)).

[Add points and authorities establishing the ground for the particular substantive order sought. ]

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[party ]

COMMENTS

Use of Form

This memorandum of points and authorities is for use in support of a renewed motion. The facts required to be shown by affidavit (Paragraph D) should be set forth in the affidavit, or declaration under penalty of perjury [ Code Civ. Proc. 2015.5[Deering's] ], accompanying the notice of motion. Optional Paragraph E should be included if more than 10 days have elapsed between the time the moving party was served with written notice of entry of the original order and the date the renewed motion is filed. Optional Paragraph F should be included if counsel anticipates that opposing counsel will challenge the sufficiency of the new or different facts, circumstances, or law; however, to avoid focusing opposing counsel's attention on the sufficiency of the new or different facts, circumstances, or law, counsel may wish to omit the point here and include it in a reply memorandum of points and authorities after the issue has first been raised by opposing counsel.

Additional points and authorities should be included to establish the ground for the order sought. For points and authorities that may be incorporated in the form, see the specific chapter in this set. For example, for points and authorities supporting a motion for summary judgment, see Ch. 221, Summary Judgments.

Counsel should insert argument in this form, showing the relationship between the facts of the case and the points of law stated.

Opposing Points and Authorities

In an appropriate case, the points and authorities set out in Form 12 may be used to oppose the points and authorities set out in this form.

Related Pleading and Practice Forms

For a form of notice of renewed motion, see Ch. 372, Motions and Orders, Pt. II, in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).

DISCUSSION OF AUTHORITIES

Governing Statute

Graham v. Hansen (1982) 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 , was a medical malpractice action in which the trial court originally denied defendants' motion for summary judgment on the ground the action was barred by the statute of limitations, but granted defendants' renewed motion for summary judgment made about a year later on the same ground. Plaintiff contended the second motion was untimely because it was not made within 10 days after defendants received notice that their first motion had been denied, as required by former Code Civ. Proc. 1008(a). In affirming the summary judgment for defendants, the court of appeal said a renewed motion is not governed by Code Civ. Proc. 1008(a)[Deering's] , but that the statutory provisions relating to motions for renewal (i.e., subsequent applications for the same order) are found in Code Civ. Proc. 1008(b)[Deering's] (128 Cal. App. 3d 965, 969-970).

Inapplicability of 10-Day Limitation Period

Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal. App. 3d 826, 258 Cal. Rptr. 676 (Sixth Appellate District), was an appeal from a denial of relief from a default and default judgment. The court of appeal affirmed. Defendant had also filed a motion asking the appellate court to take evidence and to make factual determinations contrary to those made by the trial court, as authorized by Code Civ. Proc. 909[Deering's] , based on new evidence presented to the appellate court. The appellate court ordered that the motion be considered with the appeal (210 Cal. App. 3d 826, 829), but concluded that relief could not be granted under Code Civ. Proc. 909[Deering's] (210 Cal. App. 3d 826, 830-831). The court then considered whether to treat the motion as a petition for writ of error coram vobis, but rejected this remedy on the ground that plaintiff had a remedy under Code Civ. Proc. 1008(b)[Deering's] . The court pointed out that former Code Civ. Proc. 1008(b) provides for renewal of an earlier motion based on ``new facts,'' and, citing Graham v. Hansen (1982) 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 , below, added that the motion is not subject to the 10-day limitation governing applications under Code Civ. Proc. 1008(a)[Deering's] (210 Cal. App. 3d 826, 831).

Note that in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1608 n.5, 275 Cal. Rptr. 887 (discussed in Form 11, Discussion of Authorities, under Unavailability After Judgment of Motion to Reconsider Order Granting Judgment, and Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment), the Court of Appeal of the Fourth Appellate District, Division Two, disagreed with Monsan to the extent Monsan apparently approved of ``postjudgment motions for reconsideration'' of a judgment.

The procedural background of Graham v. Hansen (1982) 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 , is discussed under Governing Statute, above. Plaintiff contended the second motion was untimely because it was not made within 10 days after defendants received notice that their first motion had been denied. In rejecting this argument and affirming the summary judgment for defendants, the court of appeal said that Code Civ. Proc. 1008(b)[Deering's] contains no requirement that a motion for renewal be made within the 10-day time period as required for motions for reconsideration under Code Civ. Proc. 1008(a)[Deering's] (128 Cal. App. 3d 965, 970). The court explained that in Code Civ. Proc. 1008(b)[Deering's] , the Legislature left the prior law [former Code Civ. Proc. 1008, repealed by Stats. 1978, ch. 631 , operative January 1, 1979] virtually unchanged with respect to subsequent applications by the moving party for the same order, that the 1978 version of Code Civ. Proc. 1008(b)[Deering's] , as did its predecessor section, applies to renewals based on ``new'' facts and imposes no time limitations on such motions, and that the appellate court had found nothing in the legislative history to indicate any such limitation was intended (128 Cal. App. 3d 965, 970-971). The court said that to place a time limitation on motions for renewal would produce a result inimical to the efficient administration of justice, and that, when ``new'' facts come to the attention of the moving party sufficient to justify renewal of a motion previously made, it would be nonsensical to disallow the later motion simply because discovery of the ``new'' facts was not made within the 10 day limit of 1008(a). Trial courts should be allowed to review, reweigh, and modify an order when new facts are presented which demonstrate the need to do so. To apply a time limitation beyond which the court lacks power to so act would needlessly burden the courts and the litigants with plenary trials that were otherwise capble of summay resolution. The court said it could not conceive that the Legislature intended such a result and that it was apparent to it that the 10-day limitations period for motions for reconsideration based on ``different'' facts [ Code Civ. Proc. 1008(a)[Deering's] ] describes a remedy wholly discrete from the motion for renewal based on ``new'' facts long provided by statute and presently found in the then recently enacted Code Civ. Proc. 1008(b)[Deering's] (128 Cal. App. 3d 965, 971).

Sufficiency of New Facts to Support Motion

The procedural background of Graham v. Hansen (1982) 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 , is discussed under Governing Statute, above. In response to plaintiff's argument that the claimed ``new'' facts (plaintiff's answer to an interrogatory and a declaration by plaintiff's counsel) were insufficient to support a motion for renewal, the appellate court, in affirming the summary judgment for defendants, said that whether the ``new'' facts alleged on a motion for renewal are sufficient to satisfy the requirements of Code Civ. Proc. 1008(b)[Deering's] is a question confided to the sound discretion of the trial court, the exercise of which the appellate court would not interfere with absent an obvious showing of abuse, and that the record manifested no such abuse (128 Cal. App. 3d 965, 971). Turning to the merits of the trial court's ruling under review, the appellate court was satisfied that the trial court correctly determined that the action was barred by the statute of limitations as a matter of law (128 Cal. App. 3d 965, 971).

ADDITIONAL AUTHORITIES

Inapplicability of 10-Day Limitation Period

The facts and procedural background of Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 1 Cal. Rptr. 2d 130 , are discussed in Form 12, Discussion of Authorities. In discussing Code Civ. Proc. 1008(b)[Deering's] , the appellate court said that the Legislature left the prior law [former Code Civ. Proc. 1008] virtually unchanged with respect to subsequent applications by the moving party for the same order. As its predecessor section, Code Civ. Proc. 1008(b)[Deering's] applies to renewals based on ``new'' facts and imposes no time limitations on such motions (235 Cal. App. 3d 806, 816).

Sufficiency of New Facts to Support Motion

In Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 4 Cal. Rptr. 2d 195 , plaintiffs sued a residential property developer, who filed a motion for summary adjudication on the ground that the 10-year statute of limitations ran on January 17, 1987, three days before the complaint was filed. After the motion was granted, plaintiffs' attorney discovered January 17, 1987, was a Saturday, and the following Monday was a court holiday in celebration of Martin Luther King, Jr.'s birthday. Thus, the last day to file suit was Tuesday, January 20, 1987, the day the complaint was filed (p. 1341). The court of appeals held that the trial court abused its discretion in denying the motion to reconsider. The appellate court found that the new facts presented were sufficient to require reconsideration of the summary adjudication ruling. The court assumed defendant's counsel had brought the summary adjudication motion in good faith and had inadvertently overlooked the weekend and court holiday. Thus, defendant was in no position to argue that the same mistake, when made by his adversary, was inexcusable (2 Cal. App. 4th 1338, 1343).
Forms 3-9 [Reserved]

Form 10 Opposing Motion to Reconsider--Statutory Requirements [Code Civ. Proc. 1008(a)] Not Complied With
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)OPPOSITION TO MOTION
)FOR RECONSIDERATION OF
)ORDER __________
)[e.g., DENYING] MOTION
_________________________ [name],)__________ [FOR or TO]
Plaintiff, )__________ [specify
)motion ]
vs. )Date: _______________
_________________________ [name],)Time: _______________
Defendant. )Dept.: _______________
)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

THE MOTION FOR RECONSIDERATION SHOULD BE DENIED BECAUSE THE STATUTORY REQUIREMENTS HAVE NOT BEEN MET, IN THAT THE _________________ [MOVING PARTY IS NOT AFFECTED BY THE PRIOR ORDER or MOTION IS NOT TIMELY or MOTION IS NOT BASED ON NEW OR DIFFERENT FACTS, CIRCUMSTANCES, OR LAW or all or any combination of these].

[EITHER ]

A. Moving Party Not Affected by Prior Order. Only a party affected by an order refusing in whole or in part, or granting, or granting on condition an application for an order may seek reconsideration of the order ( Code Civ. Proc. 1008(a)[Deering's] ).

[AND/OR ]

B. Motion to Reconsider Is Not Timely. A motion for reconsideration must be made within 10 days after the party is served with written notice of entry of the order ( Code Civ. Proc. 1008(a)[Deering's] ).

[AND/OR ]

C. Not Based on New or Different Facts, Circumstances, or Law. A motion for reconsideration is authorized only when the motion is based on new or different facts, circumstances, or law ( Code Civ. Proc. 1008(a)[Deering's] ; McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 4th 1252, 1265, 93 Cal. Rptr. 2d 725 ; Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1500-1501, 38 Cal. Rptr. 2d 626 ).

[Optional ] D. Adequate Explanation For Failure to Provide Evidence Earlier Lacking. The party moving for reconsideration on the basis of new or different facts must make a threshold showing of diligence which requires a satisfactory explanation for failing to provide the evidence earlier ( McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 4th 1252, 1265, 93 Cal. Rptr. 2d 725 ; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 688-691, 68 Cal. Rptr. 2d 228 ).

[Optional ] E. Adequate Explanation For Failure to Provide Different Law Earlier Lacking. The party moving for reconsideration on the basis of different law must make the same showing of diligence required of those seeking reconsideration on the basis of different facts, i.e., provide a satisfactory explanation for failure to present this information earlier ( Baldwin v. Home Savings of America (1997) 59 Cal. App. 4th 1192, 1193, 1198-1200, 69 Cal. Rptr. 2d 592 ).

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]

COMMENTS

Use of Form

These points and authorities are for use in opposition to a motion to reconsider when the moving party has failed to comply with the requirements of Code Civ. Proc. 1008(a)[Deering's] , set out in Form 1, Paragraph B.

Counsel should insert argument in the form showing the relationship between the facts of the case and the points of law stated.

In an appropriate case, these points and authorities may be used to oppose a motion supported by the points and authorities set out in Form 1.

Jurisdictional Provisions of Statute

Under former case law, the requirements of Code Civ. Proc. 1008(a)[Deering's] did not apply to motions to reconsider interim orders. In 1992, the Legislature amended Code Civ. Proc. 1008[Deering's] , and, among other things, explicitly overturned case law which had found that the section did not apply to interim orders [ Stats. 1992, ch. 460, 1(b)-(d) ]. One court has stated that it could comfortably assume that the substitute language ``new or different facts, circumstances, or law,'' was designed to approve generally, the case law relaxation of what constitutes new or different facts justifying reconsideration. This does not mean, however, that all facts not previously presented to a court now suffice [ Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690, 68 Cal. Rptr. 2d 228 ]. In any event, a showing must be made that there is a satisfactory explanation for failing to provide the evidence earlier [ Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 689-690, 68 Cal. Rptr. 2d 228 (case discussed in this form under Discussion of Authorities, Adequate Explanation For Failure to Provide Evidence Earlier Lacking, below)]. Similarly, when the basis for the motion is ``different law,'' a showing must be made that there is a satisfactory explanation for failing to provide this information earlier [ Baldwin v. Home Savings of America (1997) 59 Cal. App. 4th 1192, 1193, 1198-1200, 69 Cal. Rptr. 2d 592 (case discussed in this form under Discussion of Authorities, Adequate Explanation For Failure to Provide Different Law Earlier Lacking, below)].

The current statute also curtails the availability of reconsideration by explicitly limiting jurisdiction to reconsider to the procedures set forth in Code Civ. Proc. 1008[Deering's] [ Code Civ. Proc. 1008(e)[Deering's] (overturning holding of Ziller Electronics Lab GMBH v. Superior Court (1988) 206 Cal. App. 3d 1222, 1231, 254 Cal. Rptr. 410 (motion to reconsider may not be subject to 10-day limit of Section 1008(a) if made under court's inherent jurisdiction)]. Code Civ. Proc. 1008(e)[Deering's] also implicitly overturns the holdings of cases regarding the inherent jurisdiction of the court to reconsider certain rulings [see, e.g., Tutor-Saliba-Perini Joint Venture v. Superior Court (1991) 233 Cal. App. 3d 736, 745, 285 Cal. Rptr. 1 (inherent power of trial court to reconsider venue even though reconsideration motion not based on new facts)].

New or Different Facts, Circumstances or Law

The 1992 amendment of Code Civ. Proc. 1008(a)[Deering's] changes the basis for a motion to reconsider from ``an alleged different state of facts'' to ``new or different facts, circumstances, or law.'' Since the terms ``new'' and ``different'' presumably have unique meanings, a reconsideration motion may be based on material that is either new (or newly discovered) or different (but previously known). Under former Section 1008(a), it was unclear whether ``different'' facts were required to be ``new'' or ``newly discovered'' [see Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1014, 183 Cal. Rptr. 594 (prior law; requiring newly discovered evidence and satisfactory explanation for failure to produce earlier); but see Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 944, 198 Cal. Rptr. 249 (prior law; in contrast to renewed motions, no requirement that ``alleged different state of facts'' supporting reconsideration motion be ``new'' or newly discovered)].

In 1998, the Legislature again amended Code Civ. Proc. 1008[Deering's] to add subsection (g) which explicitly provides that Code Civ. Proc. 1008[Deering's] applies to all applications for interim orders [ Stats 1998, ch 200, 2 ].

DISCUSSION OF AUTHORITIES

Not Based on New or Different Facts, Circumstances, or Law

McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 4th 1252, 93 Cal. Rptr. 2d 725 , involved an action for a writ of mandate against the City of Manhattan Beach to compel it to rescind a land use permit granted to a developer allowing construction exceeding the city's legislated height limitations. In 1990, the city approved the developer's application for a vesting tentative parcel map and a corresponding use permit for its planned condominium project. The project then stalled due to the developer's inaction. During this time, in 1991, new municipal code provisions took effect, lowering the maximum height limitations that applied to the project. The final parcel map was not recorded until 1996, and the city granted the developer a new conditional use permit in 1997.

The plaintiff sought a writ of mandate compelling the city to rescind the 1997 permit because the project would violate the municipal code's height limitations. The defendants city and developer argued that the right to proceed with the project vested prior to the change in height limitations. The plaintiff countered with section 11.24.020 of the city's municipal code, which provided that the failure to record a parcel map within thirty-six months of approval or conditional approval shall terminate all proceedings. The defendants argued that section 11.24.020 was preempted by California's Subdivision Map Act (``the Act''). The trial court rejected the defendants' preemption argument and granted the plaintiff's petition. The defendants brought a motion for reconsideration,, attaching as ``new evidence'' a declaration from a city planning employee stating that the city had interpreted section 11.24.020 to be preempted by the Act. The trial court denied the motion for reconsideration, and the defendants appealed.

The court of appeal, in affirming, noted that to merit reconsideration a party must give a satisfactory reason why it was unable to present its ``new'' evidence at the original hearing. The court rejected the appellants' claim that they had been unable to present evidence of their interpretation of section 11.24.020 because it was not part of the administrative record before the trial court. The court of appeal reasoned that the plaintiff had raised the issue of untimely recording and expiration of the tentative parcel map throughout the administrative proceedings. The court also noted that section 11.24.020 had figured prominently in the trial court briefs and hearing, and that the appellants had waited until after the trial court ruled to submit the declaration regarding its interpretation of 11.24.020 and the Act. Thus, the city employee's declaration could not qualify as ``new'' evidence (78 Cal. App. 4th 1252, 1265-1266).

Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 38 Cal. Rptr. 2d 626 , involved a personal injury action against a public transit agency under the Tort Claims Act, Gov. Code 810[Deering's] et seq. Plaintiff presented a claim, which named both the county and the transit agency, to the county but not to the agency. The county denied the claim and the plaintiff filed a complaint naming both the county and the agency. The county then informed plaintff that it had no liability and that the transit agency was a separate public entity. The plaintiff then presented a petition to file a late claim against the agency, which the agency denied.

Following a motion for summary judgment filed by both the county and the agency, the plaintiff filed a petition, pursuant to Gov. Code 946.6[Deering's] for relief from the claim filing requirements and a motion for leave to file an amended complaint alleging facts supporting the petition. The petition was based on counsel's inability to locate the County's Roster of Public Agencies, notwithstanding repeated inquiries to the County Clerk on the subject and subsequent reliance on the clerk's advice that a claim against defendant agency should be presented to the County Clerk in triplicate on a form provided by the County Clerk.

The trial court granted plaintiff's motions and dismissed the summary judgment motion as moot. Defendant agency filed a notice of motion for reconsideration of all of the court's rulings and, alternatively, requested a new trial or relief from the rulings under Code Civ. Proc. 473[Deering's] on the ground that defendant's counsel's error in failing to comply with a local rule by neglecting to timely call the trial court to schedule a hearing on the tentative rulings in plaintiff's favor was due to mistake, inadvertence, and excusable neglect, and filed a demurrer to the first amended complaint, incorporating its arguments from its summary judgment motion. The trial court granted the motion for reconsideration, vacated its order granting relief pursuant to Gov. Code 946.6[Deering's] , denied plaintiff's petition under Gov. Code 946.6[Deering's] , sustained the demurrer without leave to amend, and entered a judgment of dismissal.

The court of appeal reversed, finding that the exclusive avenue for reconsideration of the trial court's orders was under Code Civ. Proc. 1008[Deering's] and that the provisions of Section 1008 are jurisdictional (32 Cal. App. 4th 1494, 1498-1499). The court stated that according to the plain language of the statute a court acts in excess of its jurisdiction when it grants a motion to reconsider that is not based on ``new or different facts, circumstances, or law.'' The court rejected as utterly specious defendant's contention that the trial court misinterpreted California law in its initial decision that therefore defendant relied on ``different'' law when it reiterated its prior reasoning and authorities. The court also rejected the argument that defense counsel's failure to request oral argument constituted a new fact or circumstance sufficient to comply with the statute. It noted that issues collateral to the merits of the initial motion, such as a failure to request oral argument, do not constitute a new or different facts or circumstances (32 Cal. App. 4th 1494, 1500).

The court further rejected defendant's contention that relief was appropriately ordered under Code Civ. Proc. 473[Deering's] , since it was used in this instance as a means of circumventing the jurisdictional requirements for a motion for reconsideration (32 Cal. App. 4th 1494, 1501). Furthermore, the court rejected defendant's meritless that the trial court's ruling could be appropriate as a motion for new trial (32 Cal. App. 4th 1494, 1501-1502).

Adequate Explanation For Failure to Provide Evidence Earlier Lacking

McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 4th 1252, 93 Cal. Rptr. 2d 725 , is discussed under Not Based on New or Different Facts, Circumstances or Law, above.

In Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 68 Cal. Rptr. 2d 228 , about 10 months before trial defendants moved for summary judgment or summary adjudication and the matter was assigned to a judge who issued a tentative ruling to grant the motion on November 4, but was unavailable the next morning when the matter was to be argued. Plaintiff declined to stipulate to a commissioner presiding in the judge's place and the matter was assigned to another judge for review and decision. On November 12, reacting to the first judge's tentative ruling, plaintiff filed a supplemental brief in opposition to summary judgment providing further argument and cited, as creating triable issues, the first paragraph of plaintiff previously filed declaration with plaintiff's original opposition and second, a new declaration by plaintiff further elaborating on the subject. Meanwhile, the second judge had on November 10 signed an order granting summary judgment and finding, as had the first judge, no triable issue and the judge's order was filed on November 16. On November 29, plaintiff filed a motion to reconsider and revoke the summary judgment under Code Civ. Proc. 1008(a)[Deering's] and/or set it aside under Code Civ. Proc. 473[Deering's] as taken through mistake, inadvertence or excusable neglect. The second judge heard the motion and acknowledging the two grounds for relief ruled only on one granting plaintiff relief under Code Civ. Proc. 473[Deering's] . Thereafter, the matter was tried resulting in judgment in favor of the plaintiff. Defendants appealed (58 Cal. App.4th 674, 678-679).

The court of appeal reversed. The defendants claimed that the pretrial grant of summary judgment in their favor was vacated without jurisdiction, thus nullifying the subsequent trial. The court found the jurisdictional point dispositive (58 Cal. App.4th 674, 679). First the court addressed the issue of the superior court's discretion under Code Civ. Proc. 473[Deering's] to vacate the summary judgment. The court concluded that the trial abused its discretion in vacating summary judgment under Code Civ. Proc. 473[Deering's] . The type of mistake, inadvertence, surprise or excusable neglect that might have permitted the original order to have been vacated was simply not present in the record (58 Cal. App.4th 674, 685). Next the court considered whether the ruling could be affirmed by resort to Code Civ. Proc. 1008[Deering's] . Plaintiff had argued in plaintiff's motion that while Code Civ. Proc. 1008[Deering's]'s former call for a ``different state of facts'' had been judicially construed as requiring both newly discovered evidence and an explanation for not producing it earlier, the 1992 amendment to Code Civ. Proc. 1008(a)[Deering's] requiring ``new and different facts, circumstance, or law'' signaled legislative conformance with certain cases that had construed ``different'' as not necessarily requiring ``newly discovered facts.'' Thus, plaintiff reasoned any fact not previously ``presented'' to a court now qualified as ``different'' (if not ``new'') facts or circumstances justifying reconsideration (58 Cal. App. 4th 674, 688). The court rejected this argument concluding that the amendment's reference to ``new or different'' facts did not make the section's prerequisites less restrictive. Plaintiff's argument, if accepted, would effectively eviscerate the threshold showing of diligence which has long required an explanation of why the ``newly discovered'' matter ws not presented earlier. Plaintiff would have the court say this requirement is met merely by anything not previously ``presented'' to the court. This miserable result would be to defeat the Legislature's stated goal of reducing the number of reconsideration motions and would remove all incentive for parties to efficiently marshall their evidence (58 Cal. App. 4th 674, 689). Moreover, the court noted that it could comfortably assume that the substitute language ``new or different facts, circumstances, or law,'' was designed to approve generally, the case law relaxation of what constitutes new or different facts justifying reconsideration. This does not mean, however, that all facts not previously presented to a court now suffice; nor does it mean the Legislature dispensed with the court-declared need to show a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence (58 Cal. App. 4th 674, 690). Under the circumstances of the case, plaintiff's showing failed to satisfy Code Civ. Proc. 1008[Deering's] as a matter of law. The information consisting of plaintiff's own declared knowledge was always in plaintiff's possession, and no satisfactory explanation appeared for not bring it out earlier. Similarly, the tardy supplemental brief filed on November 12, between the order's signing and filing, contained none of the claimed different facts later submitted with the motions for relief, and absolutely no explanation for this was offered (58 Cal. App. 4th 674, 690-691). The court concluded that the superior court lacked jurisdiction to reconsider the grant of summary judgment, enter a new order and proceed with trial, and remanded the case back to the superior court to consider solely an issue of attorney fees under an earlier settlement agreement (58 Cal. App.4th 674, 692).

Adequate Explanation For Failure to Provide Different Law Earlier Lacking

In Baldwin v. Home Savings of America (1997) 59 Cal. App. 4th 1192, 69 Cal. Rptr. 2d 592 , a jury awarded plaintiffs compensatory damages. Plaintiffs thereafter moved for attorney fees and costs and defendant filed a motion to tax costs. Ultimately, plaintiffs were awarded attorney fees and defendant filed a motion for reconsideration pursuant to Code Civ. Proc. 1008[Deering's] and to vacated the judgment as it relates to attorney fees pursuant to Code Civ. Proc. 663[Deering's] . The court granted the motion for reconsideration and vacated the judgment as to the award of attorney fees. An appeal followed.

The court of appeal reversed. The court noted that defendant's motion for reconsideration was accompanied by an affidavit of its counsel which declared that a case cited in it was not considered at the initial hearing and provided the ``new or different law'' that justifies reconsideration. The declaration explained that at the initial hearing defendant believed that the more relevant issue was plaintiff's tort recovery as opposed to recovery under contract. The court based its award of attorney fees on reciprocity under Civ. Code 1717[Deering's] . In considering further options following the initial hearing to tax costs, the cited case was found. Since it appeared relevant to the facts of the case, defendant requested that it be considered in connection with the motion for reconsideration (59 Cal. App. 4th 1192, 1196). The court concluded, however, that the cited case clearly does not provide the ``new'' law that authorizes trial court reconsideration of a prior order, because the opinion issued in 1994 and could therefore have been provided prior to its ruling on the motion for attorney fees. On the other hand, the opinion does present ``law,'' or at least a legal principle, different from that originally produced defendant when it opposed plaintiffs' motion for attorney fees (59 Cal. App. 4th 1192, 1196). Although, the fact that defendant presented ``different law'' in support of it motion for reconsideration does not mean the motion fully complied with all applicable requirements, however, as there remains the question whether defendant also had to provide a satisfactory explanation for its failure to present this information earlier (59 Cal. App. 4th 1192, 1197-1198). The court answered this in the affirmative holding that parties applying for reconsideration must make that same showing of diligence required of those seeking reconsideration on the basis of ``different facts'' (59 Cal. App. 4th 1192, 1193, 1200). Moreover, the prevailing view is that Code Civ. Proc. 1008[Deering's] now imposes a jurisdictional constraint. If a trial court has no jurisdiction to reconsider a prior order on the basis of ``different facts'' in the absence of a satisfactory explanation for the failure to present them earlier, it cannot have jurisdiction to reconsider on the basis of ``different law'' absent the same showing of diligence, because there is no basis for any distinction either in the statute or in reason (59 Cal. App. 4th 1192, 1200). Absolutely no showing of diligence was made in the case as counsel made no effort to explain whatsoever the failure to previously present the case, then two years old, or the principle for which it stands, as an alternative basis for denial of plaintiffs' motion for attorney fees (59 Cal. App. 4th 1192, 1200-1201). It should be noted that the court in discussing its holding, that the diligence requirement applicable to motions to reconsider on the basis of different facts is also applicable to motions to reconsider on the basis of different law, pointed out that the court was not unmindful of the awkward consequences likely to flow from its holding, which in some instances will bar trial judges from correcting rulings belatedly shwn to be erroneous. Judicial inefficiencies may also result from the need for an appeal that would not have been required if correction could have been made by a trial court willing to do so. These problems do not stem from the holding, however, but from the 1992 amendment to 1008. Given the jurisdictional nature of the present statute, the answer, if there is one, must come from the Legislature ((59 Cal. App. 4th 1192, 1200 n.10).

ADDITIONAL AUTHORITIES

Not Based on New or Different Facts, Circumstances, or Law

In Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242 , defendant made a Code Civ. Proc. 998[Deering's] offer which was accepted by plaintiffs. Plaintiffs presented the signed agreement to the superior court clerk who entered judgment pursuant to Code Civ. Proc. 998[Deering's] . Thereafter plaintiffs successfully moved for an award of attorneys' fees. Defendant filed a motion, which among other things, requested reconsideration of the award of attorneys' fees. The trial court granted reconsideration, vacated the judgment and the plaintiffs appealed (62 Cal. App. 4th 658, 662-663). The court of appeal reversed. In so doing the court noted that a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based on new or different facts, circumstances, or law. The possible ``new facts'' offered were presented in defendant counsel's declaration wherein counsel stated that counsel mistakenly believed the section 998 offer included the issues of attorneys' fees and costs. The court held that this statement did not disclose new facts, but merely asserted counsel's mistake. A mistake based on ignorance of the law or imprecision in drafting the offer is not a proper basis for reconsideration (62 Cal. App. 4th 658, 670).

See Baldwin v. Home Savings of America (1997) 59 Cal. App. 4th 1192, 69 Cal. Rptr. 2d 592 , discussed in this form under Discussion of Authorities, Adequate Explanation For Failure to Provide Different Law Earlier Lacking, above.

See Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 685-691, 68 Cal. Rptr. 2d 228 , discussed in this form under Discussion of Authorities, Adequate Explanation For Failure to Provide Evidence Earlier Lacking, above.

In Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 46 Cal. Rptr. 2d 177 , plaintiff alleged that an Airport District violated law and the public trust by entering into a multiyear employment contract with its general manager. The trial court granted the District s demurrer and denied plaintiff s motion for reconsideration. In affirming the denial of the motion for reconsideration, the court of appeal noted that a motion for reconsideration must be based on new or different facts, circumstances or law. Since the only significant statements relied on by plaintiff in his declaration in support of the motion were dated prior to the filing of his original complaint, and there was no explanation as to why he had not brought the matter to the attention of the trial court earlier, the trial court did not abuse its discretion in denying the motion (39 Cal. App. 4th 1017, 1027-1028).
Form 11 Opposing Motion to Reconsider--Order Granted Judgment Which Has Been Entered
[Caption. See Form 10. ]

THE MOTION TO RECONSIDER THE ORDER OF THIS COURT GRANTING _________________ [specify, e.g., DEFENDANT'S MOTION FOR SUMMARY JUDGMENT] MADE AND ENTERED ON _________________ [date ] SHOULD BE DENIED BECAUSE THE JUDGMENT IN THIS ACTION HAS ALREADY BEEN ENTERED.

Unavailability After Judgment of Motion to Reconsider Order Granting Judgment. Although a court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered, once judgment has been entered, the court may not reconsider it and loses its unrestricted power to change the judgment. The court may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment ( Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1236-1238, 58 Cal. Rptr. 2d 217 (Second App. Dist., Div. Three) Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606, 275 Cal. Rptr. 887 (Fourth App. Dist., Div. Two)). [Once a trial court has entered judgment, the court is without jurisdiction to grant a motion for reconsideration even if the motion was brought before the judgment was entered and is still pending at the time of entry of judgment ( APRI Ins. Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 180-182, 90 Cal. Rptr. 2d 171 (Second Dist., Div. Four))].

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]

COMMENTS

Use of Form

These points and authorities may be submitted in opposition to a motion to reconsider an order granting a motion for judgment, or an order that is in effect a judgment, for example, an order dismissing an action [see Code Civ. Proc. 581d[Deering's] ], when the judgment has already been entered. The form is based on the holding in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 275 Cal. Rptr. 887 (Fourth App. Dist., Div. Two), which overruled or disapproved certain of its prior decisions and criticized decisions of other courts of appeal which stated or suggested a contrary rule. For a listing of these cases, see Form 32, Discussion of Authorities, under Motion to Reconsider Filed After Entry of Judgment. Some cases handed down after Passavanti continue to cite cases overruled or disapproved by Passavanti and do not cite or discuss Passavanti [see, e.g., Ladd v. Dart Equipment Corp. 230 Cal. App. 3d 1088, 1102, 281 Cal. Rptr. 813 , discussed in Form 1, Discussion of Authorities, under Reconsideration of Order Granting Motion to Dismiss Action for Failure to Effect Service Within Two Years]. For a case raising, but not deciding, the issue of whether Passavanti applies to renewed motions, see Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 817 n.6, 1 Cal. Rptr. 2d 130 , discussed in Form 12, Discussion of Authorities.

The optional language in the form is for use when a judgment has been entered before the court has ruled on the motion.

Counsel should insert argument in this form, showing the relationship between the facts of the case and the point of law stated.

Counsel should also request the court to take judicial notice under Evid. Code 452(d)[Deering's] of the appropriate papers and entries in its file and records [see Evid. Code 453[Deering's] ].

In an appropriate case, the points and authorities set out in this form may be used to oppose a motion supported by the points and authorities set out in Form 1.

DISCUSSION OF AUTHORITIES

Unavailability After Judgment of Motion to Reconsider Order Granting Judgment

In Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 58 Cal. Rptr. 2d 217 (Second App. Dist., Div. Three), the trial court granted defendant's motion for summary judgment on March 22, 1993. A notice of ruling was filed on March 26, 1993. Plaintiff moved for reconsideration pursuant to Code Civ. Proc. 1008[Deering's] on April 5, 1993, but the trial court did not rule on the motion. Judgment was entered and filed on April 29, 1993, and plaintiff refiled plaintiff's motion for reconsideration on May 21, 1993. Notice of entry of judgment was filed and served on June 10, 1993, and on July 20, 1993, the trial court granted plaintiff's motion for reconsideration, but on reconsideration reaffirmed the grant of summary judgment. Plaintiff filed a notice of appeal on September 16, 1993.

The court of appeal dismissed the appeal because the requirements for appellate jurisdiction had not been satisfied. The court held that plaintiff's notice of appeal was not timely filed pursuant to Cal. Rules of Ct., Rule 2[Deering's] . After entry of judgment, a motion for reconsideration pursuant to Code Civ. Proc. 1008[Deering's] does not extend the time in which to file a notice of appeal under Cal. Rules of Ct., Rule 2[Deering's] (50 Cal. App. 4th 1233, 1235). Thus, plaintiff's motion for reconsideration filed after entry of judgment and the trial court's ruling on July 20, 1993, on that motion had no effect on the time period for filing a notice of appeal under Rule 2. The reason for this is that a trial court has no further power to rule on a motion for reconsideration after entry of judgment (50 Cal. App. 4th 1233, 1236).

The court also pointed out that the entry of judgment had other effects. With regard to the April 5 motion for reconsideration that was never ruled on, entry of judgment had the effect of denying that motion by implication. Furthermore, after entry of judgment, plaintiff should have abandoned the invalid motion for reconsideration filed thereafter and attacked the judgment in one of three ways, i.e., by a motion for new trial, by a motion to vacate, or by filing a timely notice of appeal (50 Cal. App. 4th 1233, 1238).

The court further held that although entry of judgment has the above legal effects, service of notice of entry of judgment on June 10, 1993, established the crucial date for determining if plaintiff's appeal was timely filed, i.e., service of notice of entry of judgment triggered the 60-day limitation period in which a notice of appeal must be filed under Cal. Rules of Ct., Rule 2(a)[Deering's] (50 Cal. App. 4th 1233, 1238-1239). Plaintiff's notice of appeal was not filed within 60 days of June 10, 1993 (50 Cal. App. 4th 1233, 1239).

In reaching the conclusion that a motion for reconsideration filed after entry of judgment can have no effect on the period in which to file a notice of appeal, the court of appeal rejected the argument that the grant of reconsideration was a new judgment that commenced the time period specified Cal. Rules of Ct., Rule 2(a)[Deering's] and rejected that portion of Fryer v. Kaiser Foundation Health Plan (1963) 221 Cal. App. 2d 674, 676-677, 34 Cal. Rptr. 688 , that so held (50 Cal. App. 4th 1233, 1238 n.4).

In Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 275 Cal. Rptr. 887 (Fourth App. Dist., Div. Two), the trial court granted defendant's third motion for summary judgment on June 14, 1989; the judge signed the order granting the motion for summary judgment and judgment on June 19, 1989; and on the same day the order was entered and filed. A conformed copy of the order and judgment was served on plaintiff on June 22, 1989. On July 5, 1989, plaintiff filed a motion for reconsideration of the order granting the motion (``Notice of Motion and Motion for an Order Revoking Order Granting Defendant's Third Motion for Summary Judgment Made Pursuant to CCP Section 1008[Deering's]''). The motion for reconsideration was denied on August 16, 1989. On August 29, 1989, more than 60 days after service of the conformed copy of the judgment but within 30 days after the court denied the motion for reconsideration, plaintiff filed a notice of appeal from the judgment entered on June 19, 1989 [see Cal. Rules of Ct., Rule 2[Deering's] , set out in Form 31, first alternative Paragraph A]. Although the court of appeal treated the motion to reconsider as a motion for new trial or to vacate the judgment and reversed the judgment on the merits, it held that a trial court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered, but that once judgment has been entered, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment ( 225 Cal. App. 3d 1602, 1606 ).

For further discussion of Passavanti and a listing of the cases it overruled, disapproved, or criticized, see Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment.

In APRI Ins. Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 90 Cal. Rptr. 2d 171 , the trial court granted defendant's motion to quash and defendant lodged a proposed order granting the motion for signature by the court. Plaintiff then filed a motion for reconsideration. Thereafter the court signed and entered the order granting the motion to quash and dismissing defendant from the action, and defendant served and filed a notice of entry of the order. Defendant thereafter filed opposition to plaintiff's motion to reconsider. The court granted the reconsideration motion, vacated and set aside its order quashing service of summons and dismissing all claims against defendant, and denied the motion to quash. Defendant filed a petition for a writ of mandate.

The court of appeal granted the petition for mandate directing the trial court to vacate its order granting the motion for reconsideration and denying the motion to quash (76 Cal. App. 4th 176, 186). Initially, the court noted that under Code Civ. Proc. 581d[Deering's] a written order of dismissal is a judgment. The trial court failed to observe the critical distinction between an order of dismissal, which is a judgment, and other orders (76 Cal. App. 4th 176, 181). Rejecting plaintiff's argument that there was no judgement entered in the register of action, and hence there was no judgment within the meaning of Code Civ. Proc. 581d[Deering's] , the court noted that the ``Civil Register Report'' for the case reflected entry of the order which satisfied the requirement of Code Civ. Proc. 581d[Deering's] (76 Cal. App. 4th 176, 181). The court held that once a trial court has entered a judgment it is without power to grant reconsideration. Thus, a court is without jurisdiction to grant a motion for reconsideration even if the motion was brought before judgment was entered and is still pending at the time of entry of judgment (76 Cal. App. 4th 176, 180-182). Furthermore, the court rejected plaintiff's argument that the trial court could have treated plaintiff's motion for reconsideration as a motion to vacate or for a new trial, agreeing with the reasoning of Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1610, 275 Cal. Rptr. 887 so as not to construe the motion for reconsideration as something that it was not (76 Cal. App. 4th 176, 182-184).
Form 12 Opposing Renewed Motion--Prior Class Certification Motion Was Denied by Order Which Has Become Final
[Caption. See Form 10 ]

THE RENEWED MOTION FOR CLASS CERTIFICATION SHOULD BE DENIED BECAUSE THE ORDER DENYING THE ORIGINAL MOTION WAS NOT APPEALED AND HAS BECOME FINAL.

Unavailability of Renewed Motion to Certify Class Action After Time to Appeal Has Expired. An order denying a motion for class certification is an appealable order and is not subject to renewal after the time to appeal has expired ( Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 811-812, 1 Cal. Rptr. 2d 130 ).

Respectfully submitted,
_________________ [signature ]
Attorney for _________________ [party ]

COMMENTS

Use of Form

The foregoing memorandum of points and authorities may be submitted in opposition to a renewed motion to certify an action as a class action, when the order denying the first motion was not appealed and has become final.

Counsel should insert argument in the foregoing form, showing the relationship between the facts of the case and the point of law stated.

Counsel should also request the court to take judicial notice under Evid. Code 452(d)[Deering's] of the appropriate papers and entries in its file and records [see Evid. Code 453[Deering's] ].

In an appropriate case the foregoing points and authorities may be used to oppose a motion supported by the points and authorities set out in Form 2.

DISCUSSION OF AUTHORITIES

Unavailability of Renewed Motion to Certify Class Action After Time to Appeal Has Expired

Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 1 Cal. Rptr. 2d 130 , was an action brought by an individual as a purported class action seeking relief against defendant, on various theories, for alleged unconscionably high rates charged by defendant for a risk-allocation option called collision damage waiver in its rental contracts. Plaintiff's motion for class certification in March 1989 was ordered off calendar for failure to comply with local rules. Plaintiff filed a second motion in September 1989 after intervening discovery, and the motion, after hearing, was denied on the merits by minute order on January 11, 1990. A formal, signed order was filed January 23, 1990. Notice of entry of the order was mailed on January 24th. Plaintiff did not appeal, and the order became final on March 26, 1990. On July 7, 1990, plaintiff filed a ``Renewed Motion for Class Certification'' pursuant to Code Civ. Proc. 1008(b)[Deering's] on the basis of new facts. The motion was denied as untimely, and plaintiff appealed, contending that, although the prior order denying certification was final, a renewed motion was authorized (1) on new evidence ( Code Civ. Proc. 1008(b)[Deering's] ) regardless of the lapse of time, and (2) under class action policy assertedly allowing successive certification motions to be brought up until the time of final judgment.

The court of appeal affirmed, holding first that no policy in the law allowed plaintiff to renew a class certification motion which had been denied on the merits by a final, appealable order (p. 811). The court acknowledged that an order denying class certification does not finally dispose of an action since it leaves it intact as to the individual plaintiff, but the order is appealable because it effectively terminates the entire action as to the class, in legal effect being tantamount to a dismissal of the action as to all members of the class other than plaintiff. The appeal is allowed, as a matter of state law policy, because the order has the death knell effect of making further proceedings in the action impractical. Because California allows direct appeals of death-knell orders, a plaintiff who fails to appeal from one loses forever the right to attack it. The order becomes final and binding (p. 811). The court said the order denying the certification motion was a death knell order precluding maintenance of a class action on any cause of action, it was on the merits, was never appealed, and became final (p. 812). The court acknowledged that the rule in federal courts is different (pp. 811-812, 814) and that it is different in California courts when the motion to certify is granted; in this latter event successive motions based on new evidence to decertify the action are allowed (235 Cal. App. 3d 806, 812-813). The court concluded that, because no appeal was taken from the order denying certification, the ruling became final and binding; the court said that state law policy did not allow plaintiff a ``renewed'' opportunity to seek certification (235 Cal. App. 3d 806, 816).

Note that the court, for the sake of discussion, assumed that a renewed motion could be brought. The court pointed out that the Court of the Appeal of the Fourth Appellate District, Division Two, in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 175 Cal. Rptr. 887 (discussed in Form 11, Discussion of Authorities, under Unavailability After Judgment of Motion to Reconsider Order Granting Judgment, and Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment), had recently disapproved several of its own and other published opinions to the extent they held or implied that Code Civ. Proc. 1008[Deering's] authorizes motions to reconsider entered ``judgments'' as opposed to mere ``orders.'' Passavanti reasoned that true ``judgments'' may be attacked for judicial error only by prescribed procedures such as motions for new trial or to vacate once they are signed and entered; and held that a postjudgment motion for reconsideration does not lie. The court said that, using this analysis, defendant urged it to hold that a death-knell ``order'' is in effect a ``judgment'' and that, since plaintiff's motion under Code Civ. Proc. 1008[Deering's] came long after an entry of judgment, the motion was improper. Plaintiff countered that the Passavanti rationale only applies to motions to ``reconsider'' brought under Code Civ. Proc. 1008(a)[Deering's] because a motion under Code Civ. Proc. 1008(b)[Deering's] involves a completely new application for relief, not an attack on the prior order. The Stephen court found it unnecessary to resolve the issue, because even if plaintiff were correct, his motion was late because it came after the earlier order (or judgment) was final, and held that this was a sufficient basis for affirmation (235 Cal. App. 3d 806, 817 n.6).
Form 13 Supporting Contention That Court Cannot Avoid Jurisdictional Limits of Code Civ. Proc. 1008(e) by Ignoring Prior Order
[The following may be included in a memorandum of points and authorities, or in a trial or appellate brief. ]

CODE OF CIVIL PROCEDURE SECTION 1008[Deering's] PLACES JURISDICTIONAL LIMITATIONS ON MOTIONS TO RECONSIDER AND ON RENEWED MOTIONS. THE COURT CANNOT AVOID THE REQUIREMENTS OF SECTION 1008 BY IGNORING A PRIOR ORDER AND GRANTING A MOTION THAT IMPLICITLY MODIFIES, AMENDS, OR REVOKES THAT ORDER.

A. Code Civ. Proc. 1008[Deering's] Applies to Interim Orders and Is Jurisdictional. Code of Civil Procedure Section 1008[Deering's] is the exclusive means for modifying, amending, or revoking an order. That limitation is expressly jurisdictional and applies to interim orders ( Code Civ. Proc. 1008(e)[Deering's], (g)[Deering's] ; Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 490-492, 23 Cal. Rptr. 2d 666 ).

B. Prior Order Cannot Be Ignored. If courts may simply ignore interim orders instead of modifying, amending, or revoking them after due consideration, then the procedural, substantive, and jurisdictional requirements of Code of Civil Procedure Section 1008[Deering's] are meaningless. A court cannot avoid the jurisdictional limits of Section 1008 by consciously ignoring a prior order and implicitly revoking it by a later order ( Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 492-493, 23 Cal. Rptr. 2d 666 ).

COMMENTS

Use of Form

This form of contention may be used in a memorandum of points and authorities to oppose a motion, that, although not made as a motion to reconsider or as a renewed motion, will implicitly have that effect. It may also be used in proceedings to review an order granting such a motion.

Counsel should insert argument in the form, showing the relationship between the facts of the case and the points of law stated. Specifically, counsel should show how the motion being opposed will of necessity implicitly modify or revoke the earlier order.

DISCUSSION OF AUTHORITIES

Code Civ. Proc. 1008[Deering's] Applies to Interim Orders and Is Jurisdictional

In Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 23 Cal. Rptr. 2d 666 , a judge in 1991 ordered trial of a declaratory relief action stayed pending disposition of a related case. In 1993, the case was assigned as a directly calendared matter to another judge, who ordered a status conference. In a footnote to the status conference questionnaire, the plaintiff stated that it believed the stay should be lifted to allow a motion for summary judgment. The defendant objected to plaintiff's use of a footnote to raise the issue rather than a motion for reconsideration. At the status conference the judge stated that the court was not reconsidering any prior motions, but was managing its own calendar, and set the matter for trial. Defendants petitioned for writ relief.

The court of appeal issued a peremptory writ of mandate directing the court to vacate the order setting the matter for trial. In deciding to issue the writ, the court first held that Code Civ. Proc. 1008[Deering's] governs motions for reconsideration and under Section 1008(e) is the exclusive means for modifying, amending or revoking interim orders (19 Cal. App. 4th 485, 490). The court found that the trial court proceedings had failed to comply with the requirements of Section 1008 (19 Cal. App. 4th 485, 492). The court also found that the court's refusal to recognize that its ruling amounted to a reconsideration of the stay order deprived the petitioners of a meaningful opportunity to argue the provisions of Section 1008 or to argue that the stay order should not be modified, amended, or revoked expressly or by implication (19 Cal. App. 4th 485, 492).

Prior Order Cannot Be Ignored

The facts and procedural background of Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 23 Cal. Rptr. 2d 666 , are discussed under Code Civ. Proc. 1008[Deering's] Applies to Interim Orders and Is Jurisdictional, above. In issuing the writ, the court held that a court could not circumvent the jurisdictional limits of Code Civ. Proc. 1008(e)[Deering's] by consciously ignoring the stay order that had been entered by a different judge of the same court. Even though the judge stated that he was not reconsidering the prior order, and the order setting for trial did not specifically lift the stay, it by implication had the same effect (19 Cal. App. 4th 485, 492). Allowing courts so to ignore interim orders rather than modifying, amending, or revoking them after due consideration would render the jurisdictional requirements of Section 1008 meaningless and would undermine the Legislature's intent that courts should not modify, amend, or revoke prior orders without due reconsideration (19 Cal. App. 4th 485, 492-493). The court also noted that the order undermined the general rule that one judge of a trial court may not reconsider an interim ruling of another (19 Cal. App. 4th 485, 493).
Forms 14-19 [Reserved]

Form 20 Supporting Ex Parte Motion to Revoke or Set Aside Order Obtained on Renewed Motion--Party Failed to Comply With Statutory Requirements [Code Civ. Proc. 1008(a), (b), (d)].
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


_________________________ [name ],)NO. _______________
Plaintiff, )MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF EX PARTE
)MOTION FOR ORDER
)SETTING ASIDE ORDER OF
)THIS COURT ____________
vs. )[specify order, e.g.,
_________________________ [name ],)GRANTING DEFENDANT'S
)RENEWED MOTION FOR
)SUMMARY JUDGMENT] MADE
)AND ENTERED ON
Defendant. )_______________ [date
)].
)

THE EX PARTE MOTION OF _________________ [party, e.g., PLAINTIFF], _________________ [name ], FOR AN ORDER REVOKING THE ORDER OF THIS COURT MADE ON _________________ [date ] GRANTING THE RENEWED MOTION OF _________________ [party, e.g., DEFENDANT] FOR _________________ [specify, e.g., SUMMARY JUDGMENT] SHOULD BE GRANTED BECAUSE _________________ [party, e.g., DEFENDANT] FAILED TO COMPLY WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION _________________ [1008(a) or 1008(b) or both ], IN THAT _________________ [party, e.g., DEFENDANT] FAILED TO SHOW BY AFFIDAVIT OR DECLARATION [OR OTHERWISE] WHAT APPLICATION WAS PREVIOUSLY MADE FOR THE SAME ORDER, WHEN IT WAS MADE AND TO WHAT JUDGE, WHAT ORDER OR DECISIONS WERE MADE ON IT, AND WHAT NEW OR DIFFERENT FACTS, CIRCUMSTANCES, OR LAW WERE CLAIMED TO BE SHOWN.

[EITHER, relating to order on motion to reconsider ]

A. Requirements of Motion to Reconsider. When the party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, makes an application within 10 days after service upon the party of written notice of entry of the order and based on new or different facts, circumstances, or law, to reconsider the matter and modify, amend, or revoke the prior order, it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made thereon, and what new or different facts, circumstances, or law are claimed to be shown ( Code Civ. Proc. 1008(a)[Deering's] ).

[OR, relating to order on renewed motion ]

A. Requirements of Renewed Motion. When the party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, makes a subsequent application for the same order on new or different facts, circumstances, or law, it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made thereon, and what new or different facts, circumstances, or law are claimed to be shown ( Code Civ. Proc. 1008(b)[Deering's] ).

[CONTINUE ]

B. Order Obtained by Noncompliance With Foregoing Requirements Is Subject to Revocation. For a failure to comply with the above requirement, any order made on such subsequent application may be revoked or set aside on ex parte motion ( Code Civ. Proc. 1008(b)[Deering's], (d)[Deering's] ).

[Optional ] C. Penalty for Violating Code of Civil Procedure Section 1008[Deering's] . A violation of Code of Civil Procedure Section 1008[Deering's] may be punished as a contempt and with sanctions as allowed by Code of Civil Procedure Section 128.7[Deering's]; and an order made contrary thereto may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending ( Code Civ. Proc. 1008(d)[Deering's] ).

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[party ]

COMMENTS

Use of Form

These memorandum of points and authorities may be submitted in support of an ex parte motion to revoke an order granting a renewed motion by a party who failed to comply with the requirements of Code Civ. Proc. 1008(a)[Deering's] or (b)[Deering's] .

The penalty provisions in Code Civ. Proc. 1008(b)[Deering's] and (d)[Deering's] (Paragraphs B and C, respectively) are permissive and not mandatory. Hence, in the ex parte motion, the moving party should aver any facts that would show that the party's failure to comply with the statute was prejudicial to the party seeking revocation or sanctions, or to the court [see Moore v. Moore (1955) 133 Cal. App. 2d 56, 60-61, 283 P.2d 338 (construing identical provisions in former Code Civ. Proc. 1008[Deering's])].
Forms 21-29 [Reserved]

Form 30 Supporting Motion to Dismiss Appeal as Untimely [Cal. Rules of Ct., Rules 2, 3, 41, 104, 122, 123]--Order Denying Motion to Reconsider Appealable Order Based on Same Facts Is Nonappealable
MEMORANDUM OF POINTS AND AUTHORITIES

THIS MOTION TO DISMISS THE APPEAL FROM THE ORDER OF THE _________________ [e.g., SUPERIOR] COURT OF _________________ [county ] DENYING THE MOTION OF _________________ [party, e.g., PLAINTIFF] TO RECONSIDER ITS ORDER _________________ [specify, e.g., TAXING COSTS] SHOULD BE GRANTED BECAUSE AN ORDER DENYING A MOTION TO RECONSIDER AN APPEALABLE ORDER BASED ON THE SAME FACTS IS NONAPPEALABLE; ANY APPEAL MUST BE TAKEN FROM THE ORIGINAL ORDER, AND THE TIME TO APPEAL FROM THE ORIGINAL ORDER HEREIN INVOLVED HAS EXPIRED.

A. Order Made After Judgment Is Appealable. _________________ [Cite statutory and/or case authority, as appropriate, authorizing appeal from original order, e.g., In other than a limited civil case, an appeal may be taken to the court of appeal from an order made after an appealable judgment ( Code Civ. Proc. 904.1(a)(2)[Deering's] , or In a limited civil case, an appeal may be taken to the appellate division of the superior court from an order made after an appealable judgment ( Code Civ. Proc. 904.2(b)[Deering's] )]. An order denying a motion to tax costs, made after the judgment has been entered, is appealable ( Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 1310, 278 Cal. Rptr. 306 )].

B. Order Denying Motion to Reconsider Appealable Order on Same Facts Is Nonappealable. An order denying a motion for reconsideration of an appealable order based on exactly the same factual showing as was offered in support of the original motion is nonappealable. Any appeal would have to be taken from the original order ( Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 1310, 278 Cal. Rptr. 306 ).

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[party's status and name ]

COMMENTS

Use of Form

These points and authorities may be included in a memorandum of points and authorities submitted in support of a formal written motion to dismiss an appeal from an order denying a motion to reconsider a prior appealable order based on the same facts as the original motion.

Counsel should insert argument in this form, showing the relationship between the facts of the case and the points of law stated.

Caption

A memorandum of points and authorities in support of a motion to dismiss an appeal will not normally have a separate caption. The fact that points and authorities are included in the papers filed will normally appear from the caption of the Motion to Dismiss. With respect to appeals to the superior court, local court rules should be checked for any requirements that might be imposed by the specific court to which the appeal is taken. For further discussion of format of papers, see Ch. 1, Writing Legal Memoranda and Briefs at the beginning of Volume 1 in this publication.

``Order'' and ``Judgment'' Distinguished

Orders may be made before trial, during trial, after trial, or after entry of a final judgment. An order is any ``direction of a court or judge, made or entered in writing, and not included in a judgment''; an application for an order is a motion [ Code Civ. Proc. 1003[Deering's] ]. Notwithstanding use of the word ``direction'' in the foregoing statutory definition, not every order need include a direction to do anything but may, for example, simply deny a motion and yet be an appealable order [see Code Civ. Proc. 904.1(a)(2)[Deering's], (4)-(6)[Deering's], 904.2(b)[Deering's], (c)[Deering's], (e)-(g)[Deering's] ; see also Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605 n.3, 275 Cal. Rptr. 887 ].

A judgment, on the other hand, is the final determination of the rights of the parties in an action or proceeding [ Code Civ. Proc. 577[Deering's], 1064[Deering's] ]. While there may be numerous orders made throughout an action or proceeding, there is only one judgment [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605, 275 Cal. Rptr. 887 ].

However, some determinations, although characterized as orders, are in effect final judgments for purposes of appeal, and orders of dismissal, when properly signed and filed, are considered judgments under Code Civ. Proc. 581d[Deering's] . Moreover, judgments are sometimes mislabeled as orders. Nevertheless, a judgment, no matter how designated, is the final determination of the rights of the parties in an action, and an order that acts as the final determination in the action is the judgment [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606, 275 Cal. Rptr. 887 ].

Time to Appeal and ``Judgment'' Defined

The time for filing a notice of appeal from a superior court judgment or appealable order is set forth in Cal. Rules of Ct., Rule 2[Deering's] [see Form 31, first alternative Paragraph A]. The term ``judgment,'' as used in the rule, is defined in Cal. Rules of Ct., Rule 40(g)[Deering's] as including any judgment, order, or decree from which an appeal lies. The time for filing an appeal from a municipal or justice court judgment is set forth in Cal. Rules of Ct., Rule 122[Deering's] [see Form 31, second alternative Paragraph A], and the term ``judgment'' is likewise defined as including any judgment, order, or decree from which an appeal lies [ Cal. Rules of Ct., Rule 136(g)[Deering's] ].

Appealability of Orders on Motions for Reconsideration--In General

Most orders are not appealable [see Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606, 275 Cal. Rptr. 887 ]. Appealable orders in civil actions and proceedings generally [see Code Civ. Proc. 904[Deering's] ] are listed in Code Civ. Proc. 904.1[Deering's] (other than a limited civil case) and 904.2[Deering's] (limited civil case) . These statutes do not specifically list an order granting or denying a motion to reconsider as an appealable order.

--When Original Order Is Not Appealable

All courts seem to agree that an order denying reconsideration is not appealable if the original ruling is not final and appealable in its own right. For example, in Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1010, 183 Cal. Rptr. 594 (prior law; disapproved on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 , discussed in Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment), the court of appeal, citing Litvinuk v. Litvinuk (1945) 27 Cal. 2d 38, 43-44, 162 P.2d 8 , said that an appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion [see also Rogers v. Silverman (1989) 216 Cal. App. 3d 1114, 1127, 265 Cal. Rptr. 286 ; Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1466, 258 Cal. Rptr. 907 (criticized on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607 n.5, 275 Cal. Rptr. 887 , discussed in Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment)].

--When Original Order Is Appealable

The courts of appeal seem divided as to whether the denial of a motion to reconsider an appealable order is appealable.

In Rojes Riverside General Hospital (1988) 203 Cal. App. 3d 1151, 250 Cal. Rptr. 435 (overruled on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607, 275 Cal. Rptr. 887 , discussed in Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment), the Court of Appeal of the Fourth Appellate District, Division Two, held that the denial of a motion for reconsideration, whether based on the same facts or new facts, is nonappealable. Rojes rejected the earlier ruling in Blue Mountain (discussed under When Original Order Is Not Appealable, above ), to the extent Blue Mountain held that an order for 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 on new and different facts [ Rojes Riverside General Hospital (1988) 203 Cal. App. 3d 1151, 1160, 250 Cal. Rptr. 435 (overruled on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607, 275 Cal. Rptr. 887 ]. Rojes has been followed by the Court of Appeal of the First Appellate District, Division Four [see In re Jeffrey P. (1990) 218 Cal. App. 3d 1548, 1550 n.2, 267 Cal. Rptr. 764 (stating that an order denying a motion for reconsideration is not an appealable order, and holding denial of a motion for reconsideration of a juvenile court's dependency order was not appealable)]; and the Court of Appeal of the First Appellate District, Division Three [see Estate of Simoncini (1991) 229 Cal. App. 3d 881, 891, 280 Cal. Rptr. 393 (stating that orders denying reconsideration are not generally appealable, and holding meritless appellant's contention that the probate court erred in denying her application for reconsideration of the preliminary distribution decree because her application purportedly met the requirements of Code Civ. Proc. 1008[Deering's] , dealing with applications for reconsideration based on an allegedly different state of facts)].

In Santee v. Santa Clara County Office of Education (1990) 220 Cal. App. 3d 702, 710, 269 Cal. Rptr. 605 , the Court of Appeal of the Sixth Appellate District held that an order denying a motion for reconsideration of an order denying a petition for relief from the claim presentation requirements of the Tort Claims Act [ Gov. Code 900[Deering's] et seq. ] is an appealable order if the motion raised new facts. Note, however, that, because the order denying a petition for relief is in effect a judgment, a motion to reconsider it would not be proper under the holding in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608, 275 Cal. Rptr. 887 (discussed in Form 11, Discussion of Authorities, Unavailability After Judgment of Motion to Reconsider Order Granting Judgment).

Conversely, in Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 1310, 278 Cal. 306 (discussed in Discussion of Authorities under Order Denying Motion to Reconsider Appealable Order on Same Facts Is Nonappealable, below ), the Court of Appeal of the Fifth Appellate District held that the denial of a motion for reconsideration based on exactly the same factual showing as was offered in support of the original motion is not appealable. At page 1310 n.3, the court acknowledged the conflict between Santee and Rojes.

Related Pleading and Practice Forms

For a form of motion to dismiss an appeal in an unlimited civil case, see Ch. 48, Appeal: Abandonment, Dismissal, and Stipulated Reversal, in CALIFORNIA FORMS OF PLEADING AND PRACTICE. For a form of motion to dismiss an appeal in a limited civil case to the superior court appellate division, see Ch. 345A, Limited Civil Cases, in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).

DISCUSSION OF AUTHORITIES

Order Made After Judgment Is Appealable

The facts and procedural background of Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 278 Cal. Rptr. 306 , are discussed under Order Denying Motion to Reconsider Appealable Order on Same Facts Is Nonappealable, below. In affirming the summary judgment for defendants, the court of appeal said that an order denying a motion to tax costs, made after the judgment has been entered, is appealable (227 Cal. App. 3d 1299, 1310).

Order Denying Motion to Reconsider Appealable Order on Same Facts Is Nonappealable

In Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 278 Cal. Rptr. 306 , a physician who had been denied full surgical staff privileges at a hospital in administrative proceedings sought writ review of the denial. He appealed for denial of the writ. While the appeal was pending, he filed a complaint for damages for alleged violation of his constitutional rights, violations of California's antitrust statute (Cartwright Act), interference with existing business relations, interference with prospective business advantage, intentional and negligent infliction of emotional distress, and slander per se. The trial court sustained defendants' demurrer to the first three causes of action and stayed those causes of action on the ground they were based on the same subject matter as the relief sought in the writ proceeding which was then pending on appeal. After the appellate court affirmed the trial court's denial of the writ petition, the trial court granted summary judgment to the defendants on the remaining causes of action. Defendants submitted memoranda of costs requesting attorney fees on the civil rights causes of action; plaintiff moved to tax costs, and the motion was denied on December 16, 1988. Plaintiff filed a motion for reconsideration of the order on December 22, 1988. The judgment awarding attorney's fees and costs was entered on December 27, 1988. The hearing on the motion for reconsideration was held on January 30, 1989, but the court did not rule on the motion until April 26, 1989. The court granted plaintiff's motion at that time and ordered defendants to resubmit their itemized statements of attorney fees. On June 14, 1989, the court denied the motion for reconsideration. In addition to appealing from the judgment, plaintiff also appealed from the order denying the motion for reconsideration and order denying motion to tax costs on July 13, 1989.

Among other things, plaintiff argued that the June 14 order awarding attorney's fees should be reversed. The court of appeal rejected the argument on the ground that the June 14 order denied the motion for reconsideration and that the order awarding attorney fees was entered on December 27, 1988. The court said that an order denying a motion to tax costs, made after the judgment has been entered, is appealable and that when, as in the case before it, the motion for reconsideration of an appealable order is based on exactly the same factual showing as was offered in support of the original motion, the order denying the motion for reconsideration is not appealable (227 Cal. App. 3d 1299, 1310). Thus, plaintiff could not appeal from the order of June 14, 1989, denying his motion for reconsideration. Rather the appeal had to be taken from the order entered December 27, 1988 (227 Cal. App. 3d 1299, 1310-1311).
Form 31 Supporting Motion to Dismiss Appeal as Untimely [Cal. Rules of Ct., Rules 2, 41, 104, 122]--Appeal From Original Appealable Order After Denial of Motion for Reconsideration Is Untimely When Not Filed Within Extended Times Specified in Cal. Rules of Ct., Rule 3 or 123
MEMORANDUM OF POINTS AND AUTHORITIES

THE MOTION OF _________________ [party, e.g., DEFENDANT] TO DISMISS THE APPEAL FROM THE ORIGINAL APPEALABLE ORDER OF THE _________________ [e.g., SUPERIOR] COURT OF _________________ [county ] _________________ [specify, e.g., DENYING] THE MOTION OF _________________ [party, e.g., PLAINTIFF] TO _________________ [specify, e.g., TAX COSTS] AFTER DENYING THE MOTION OF _________________ [party, e.g., PLAINTIFF] FOR RECONSIDERATION SHOULD BE GRANTED BECAUSE THE APPEAL WAS UNTIMELY FILED.

[EITHER ]

A. Time to Appeal From Superior Court Other Than In Limited Civil Case. In an appeal, other than in a limited civil case, except as otherwise provided by Code of Civil Procedure Section 870[Deering's] or other statute or California Rules of Court, Rule 3[Deering's] (relating to extension of time to appeal), a notice of appeal shall be filed on or before the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a document entitled ``notice of entry'' of judgment or appealable order; (2) 60 days after the date of service of a document entitled ``notice of entry'' of judgment or appealable order by any party on the party filing the notice of appeal, or by the party filing the notice of appeal, or (3) 180 days after the date of entry of the judgment. For the purposes of this provision, a file-stamped copy of the judgment or appealable order may be used in place of the document entitled ``notice of entry'' ( Code Civ. Proc. 904.1(a)[Deering's] ; Cal. Rules of Ct., Rule 2(a)[Deering's] ).

[OR ]

A. Time to Appeal From Superior Court Limited Civil Case. Although California Rules of Court, Rules 121[Deering's], 122[Deering's] dealing with the filing of a notice of appeal concerning a municipal court case are silent concerning a superior court limited civil case, because Code of Civil Procedure Section 904.2[Deering's] provides that an appeal in a limited civil case is to the appellate division of the superior court, the time limits for filing a notice of appeal in California Rules of Court, Rule 122(a)[Deering's] should also apply to an appeal concerning a superior court limited civil case. Thus, except as otherwise specifically provided by law, a notice of appeal shall be filed within 30 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to Code of Civil Procedure Section 664.5[Deering's] , or within 30 days after the date of service of written notice of entry of judgment by any party on the party filing the notice of appeal, or within 90 days after the date of entry of the judgment, whichever is earliest, unless the time is extended by California Rules of Court, Rule 123[Deering's] (relating to motions for new trial, motions to vacate, and cross appeals) ( Cal. Rules of Ct., Rule 122(a)[Deering's] ).

[OR ]

A. Time to Appeal From Municipal Court. Except as otherwise specifically provided by law, a notice of appeal shall be filed within 30 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to Code of Civil Procedure Section 664.5[Deering's] , or within 30 days after the date of service of written notice of entry of judgment by any party on the party filing the notice of appeal, or within 90 days after the date of entry of the judgment, whichever is earliest, unless the time is extended by California Rules of Court, Rule 123[Deering's] (relating to motions for new trial, motions to vacate, and cross appeals) ( Cal. Rules of Ct., Rule 122(a)[Deering's] ).

[EITHER ]

B. Entry of Judgment in Superior Court. The date of entry of a judgment is the date of its entry in the judgment book, or in a county following the procedure specified in Code of Civil Procedure Section 668.5[Deering's] (relating to date of entry in counties in which clerk places individual judgments in file of actions and either a microfilm copy is made, or judgment is entered in register of actions, or judgment is entered in court's electronic data-processing system) in lieu of maintaining a judgment book, the date of filing the judgment with the clerk pursuant to that section ( Cal. Rules of Ct., Rule 2(b)(1)[Deering's] ). In a county following Code of Civil Procedure Section 668.5[Deering's] , Rule 2(b)(1) requires only that the judgment be signed by the judge and file stamped by the clerk; it does not require entry of the judgment in the register of actions or entry of the judgment in the court's electronic data-processing system, or microfilming the judgment ( Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal. App. 3d 540, 544-545, 265 Cal. Rptr. 29 ).

[OR ]

B. Entry of Order in Superior Court. The date of entry of an appealable order which is entered in the minutes is the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed, and filed, in which case the date of entry is the date of filing of the signed order ( Cal. Rules of Ct., Rule 2(b)(2)[Deering's] ). The fact that a written order is to be prepared under California Rules of Court, Rule 391[Deering's] , or a similar local rule[, such as _________________ (specify relevant local rule),] does not constitute an express direction in the minute order that a written order be ``prepared, signed, and filed'' for the context of Rule 2(b)(2) ( Cal. Rules of Ct., Rule 2(b)[Deering's] ). The date of entry of an appealable order which is not entered in the minutes is the date of filing of the order signed by the court ( Cal. Rules of Ct., Rule 2(b)(3)[Deering's] ).

[OR ]

B. Entry of Decree of Distribution in Probate Proceeding. The date of entry of a decree of distribution in a probate proceeding is the date of its entry at length in the judgment book or other permanent record of the court ( Cal. Rules of Ct., Rule 2(b)(4)[Deering's] ).

[OR ]

B. Entry of Judgment or Order in Municipal Court. (1) The date of entry of a judgment is the date of its entry in the minute book or in the docket unless the entry expressly directs that a written order be prepared, signed, and filed, in which case the date of entry is the date of filing of the signed order ( Cal. Rules of Ct., Rule 122(b)(1)[Deering's] ). The date of entry of an order which is not entered in the minutes or docket is the date of filing of the order signed by the court ( Cal. Rules of Ct., Rule 122(b)(2)[Deering's] ).

[CONTINUE ]

C. Appeal From Original Order Is Untimely. Although a motion to reconsider under Code of Civil Procedure Section 1008(a)[Deering's] is treated for purposes of California Rules of Court, Rule 3[Deering's] (relating to extension of time to appeal) in the same manner as a motion for new trial or a motion to vacate, that is, it extends the time to appeal from the original order, the appeal is untimely if not filed within the extended period ( Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 1311-1312, 278 Cal. Rptr. 306 ). [This rule should also apply to California Rules of Court, Rule 123[Deering's] with regard to a _________________ (superior court limited civil case or municipal court case).]

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[party ]

COMMENTS

Use of Form

These points and authorities may be included in a memorandum of points and authorities submitted in support of a formal written motion to dismiss an appeal from an original appealable order taken after a motion for reconsideration was denied when the appeal was not filed within the time authorized under Cal. Rules of Ct., Rules 3[Deering's] or 123[Deering's] . With regard to the date of entry of a judgment or order discussed in paragraph B, however, neither Cal. Rules of Ct., Rule 2[Deering's] nor Cal. Rules of Ct., Rule 122[Deering's] have as of yet been amended to explicitly address this point with regard to a superior court limited civil case. For the absence of a caption from the form, the distinction between orders and judgments, the time to appeal, and appealable orders, see discussion in Form 30, Comments.

Counsel should insert argument in this form, showing the relationship between the facts of the case and the points of law stated.

When Motion to Reconsider Extends Time to Appeal

The California Rules of Court provide for an extension of time to appeal from the judgment (defined in Form 30, Comments, under Time to Appeal and ``Judgment'' Defined) after denial of a motion for new trial or motion to vacate [ Cal. Rules of Ct., Rules 3(a)[Deering's], (b)[Deering's] and 123(a)[Deering's], (b)[Deering's] ].

Although a motion to reconsider is not expressly listed in Cal. Rules of Ct., Rule 3[Deering's] or 123[Deering's] , as a motion that extends the time to appeal from an appealable order, it has been held that a motion for reconsideration of an appealable order is treated in the same manner as a motion for new trial or motion to vacate, for purposes of Rule 3. Thus, subject to the qualifications stated in that rule, the timely filing of a motion to reconsider would normally extend the time for filing a notice of appeal from the original appealable order until 30 days (or 15 days if the appeal is from a municipal court [see Cal. Rules of Ct., Rule 123(a)[Deering's], (b)[Deering's] ]) after entry of the order denying reconsideration [ Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1009-1010, 183 Cal. Rptr. 594 (Fourth Appellate District, Division Two) (disapproved on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 (Fourth Appellate District, Division Two), discussed in Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment].

However, this rule applies only to appealable orders that are not judgments and not to appealable orders that are in effect judgments [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605, 275 Cal. Rptr. 887 ]. While a motion for reconsideration of an appealable order will extend the time to file a notice of appeal from the appealable order, a motion for reconsideration filed after judgment has been entered will not extend the time to appeal from the judgment [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605-1608, 275 Cal. Rptr. 887 ; see Form 32].

Thus, to determine whether the time for appeal is extended by a motion to reconsider, orders must first of all be distinguished from judgments [see discussion in Form 30, Comments, under ``Order'' and ``Judgment'' Distinguished], and, second, it must be determined whether the order for which reconsideration is sought is appealable [see Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605, 275 Cal. Rptr. 887 ; see also discussion in Form 30, Comments, under Appealability of Orders on Motions for Reconsideration--In General].

DISCUSSION OF AUTHORITIES

Entry of Judgment in Superior Court

Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal. App. 3d 540, 265 Cal. Rptr. 29 , was an action for personal injuries in which the defendant's motion for summary judgment was granted on October 28, 1988. The judgment was signed by the court and file stamped on November 2, 1988. Defendant served plaintiff with a notice of entry of judgment on November 8, 1988. On November 7, 1988, plaintiff filed a motion for reconsideration of the order granting summary judgment, which was not heard or ruled on until January 6, 1989, on which date the court affirmed the order granting summary judgment. The 60-day period within which to appeal expired January 9, 1989. On January 10, 1989, plaintiff appealed from the October 28th minute order granting summary judgment. The judgment was entered in the register of actions on September 8, 1989. The court of appeal rejected plaintiff's argument that because the judgment was not entered in the register of actions until September 1989, the November 8, 1988 notice of entry of judgment was ineffectual for purposes of Cal. Rules of Ct., Rule 2[Deering's] (p. 543), and dismissed the appeal. The court pointed out that Cal. Rules of Ct., Rule 2(b)(1)[Deering's] requires only that the judgment be signed by the judge and file stamped by the clerk, and does not require that the judgment be entered in the register of actions (216 Cal. App. 3d 540, 544). The court held that the use of the word ``filing'' by Code Civ. Proc. 668.5[Deering's] and Cal. Rules of Ct., Rule 2(b)[Deering's] does not include or require entry of the judgment in the register of actions or entry of the judgment in the court's electronic data-processing system, or microfilming the judgment and, hence, the fact that judgment was not entered in the register of actions until September 1989 is of no consequence to the issue of the timeliness of the appeal (216 Cal. App. 3d 540, 545).

Appeal From Original Order Is Untimely

The facts and procedural background of Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 278 Cal. Rptr. 306 , are discussed in Form 30, Discussion of Authorities, under Order Denying Motion to Reconsider Appealable Order on Same Facts Is Nonappealable. In affirming the judgment, the court of appeal said that Cal. Rules of Ct., Rule 2(a)[Deering's] requires that the notice of appeal be filed within 60 days of the mailing of the notice of entry of judgment or appealable order except as otherwise provided by statute or by Cal. Rules of Ct., Rule 3[Deering's] (relating to extension of time to appeal), and that because the notice of entry of the order was mailed January 9, 1989, to be timely, the notice of appeal must come within Cal. Rules of Ct., Rule 3[Deering's] (227 Cal. App. 3d 1299, 1311). The court said that this rule applies when a party seeks postjudgment relief in the trial court. Cal. Rules of Ct., Rule 3(a)[Deering's] pertains to a new trial motion and states that when such a motion is filed and denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after entry of the order denying the motion or denial thereof by operation of law, but in no event may such notice of appeal be filed later than 180 days after the date of entry of the judgment whether or not the motion for new trial has been determined. Cal. Rules of Ct., Rule 3(b)[Deering's] applies to motions to vacate and again extends the time for filing the notice of appeal until the earliest of 30 days after entry of the order denying the motion to vacate; or 90 days after filing the first notice of intention to move to vacate the judgment; or 180 days after entry of the judgment (227 Cal. App. 3d 1299, 1311). The court, quoting Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1009, 183 Cal. Rptr. 594 (disappoved on anoher point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 , discussed in Form 11, Discussion of Authorities, under Unavailability After Judgmnt of Motion to Reconsider Order Granting Judgment, and Form 32, Discussion of Authorities, under Motion to Reconsider After Entry of Judgment), said that a motion for reconsideration under Code Civ. Proc. 1008(a)[Deering's] is treated for purposes of Cal. Rules of Ct., Rule 3[Deering's] in the same manner as a motion for a new trial or a motion to vacate (227 Cal. App. 3d 1299, 1311). Although the court found it unclear from prior case law which of the two rules applies, it held that the time limits of either rule precluded the appeal (227 Cal. App. 3d 1299, 1311). The court pointed out that in Miller v. United Services Automobile Assn. (1989) 213 Cal. App. 3d 222, 226, 261 Cal. Rptr. 515 , the court held that Code Civ. Proc. 660[Deering's] , which denies a new trial motion by operation of law 60 days after the notice of entry of judgment, applies to a motion for reconsideration, and said that thus, the 30-day appeal extension following denial of the motion plus the 60 days for denial of the motion by operation of law indicates the maximum extension of time to appeal under Cal. Rules of Ct., Rule 3(a)[Deering's] is 90 days after notice of entry of judgment (227 Cal. App. 3d 1299, 1311). The court pointed out that in the present case the order awarding attorney fees was entered December 27, 1988, and notice of entry of the order was mailed on January 9, 1989. Under Code Civ. Proc. 660[Deering's] , the trial court lost the power to rule on plaintiff's motion for reconsideration 60 days after notice of entry of the order was mailed on January 9, 1989, i.e., March 10, 1989. The court did not make its first ruling until April 26, 1989. Since the court had already lost jurisdiction, this order was a nullity. Plaintiff's notice of appeal was due 30 days after March 10, i.e., April 9, 1989 (227 Cal. App. 3d 1299, 1311-1312).

Similarly, Cal. Rules of Ct., Rule 3(b)[Deering's] extends time for filing the notice of appeal only until 90 days after filing the first notice of intention to move to vacate the judgment. Plaintiff's motion for reconsideration was filed on December 22, 1988. Thus, the last day for filing the notice of appeal under this rule was March 22, 1989 (227 Cal. App. 3d 1299, 1312).

The court added that, additionally, both Cal. Rules of Ct., Rules 3(a)[Deering's] and 3(b)[Deering's] provide an absolute outer limit for extensions. The notice of appeal cannot be filed later than 180 days after entry of judgment. Here, judgment was entered December 27, 1988. Thus, the notice of appeal could not be filed after June 25, 1989. Having been filed on July 13, 1989, the notice of appeal was untimely (227 Cal. App. 3d 1299, 1311).
Form 32 Supporting Motion to Dismiss Appeal as Untimely [Cal. Rules of Ct., Rules 2, 41, 104, 122]--Time to Appeal Is Not Extended Under Cal. Rules of Ct., Rules 2, 3, 123, by Motion to Reconsider Order Granting Judgment Filed After Judgment Has Been Entered
MEMORANDUM OF POINTS AND AUTHORITIES

THE MOTION TO DISMISS THE APPEAL SHOULD BE GRANTED BECAUSE THE APPEAL WAS NOT TIMELY FILED.

[EITHER ]

A. Time to Appeal From Superior Court In Limited Civil Case. [See Form 31, first alternative Paragraph A. ]

B. Entry of Judgment, Order, or Decree in Superior Court. [See Form 31, first, second, or third alternative Paragraph B. ]

[OR]

A. Time to Appeal From Superior Court Limited Civil Case. [See Form 31, second alternative Paragraph A.]

[OR ]

A. Time to Appeal From Municipal Court. [See Form 31, third alternative Paragraph A. ]

B. Entry of Judgment or Order In Municipal Court. [See Form 31, fourth alternative Paragraph B. ]

[CONTINUE ]

C. Motion to Reconsider After Entry of Judgment. A motion to reconsider an order granting a judgment after the judgment has been entered does not extend the time to appeal under Cal. Rules of Ct., Rules 2[Deering's], 3[Deering's] or 123[Deering's] (see Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1235-1238, 58 Cal. Rptr. 2d 217 (Second App. Dist., Div. Three); Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608, 275 Cal. Rptr. 887 (Fourth App. Dist., Div. Two); see also Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal. App. 3d 540, 545, 265 Cal. Rptr. 29 (Second Appellate District, Division Three)).

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[party ]

COMMENTS

Use of Form

These memorandum of points and authorities is for use in supporting a motion to dismiss an appeal from a judgment as untimely when the appeal was not filed within the periods specified in Cal. Rules of Ct., Rule 2[Deering's] or 122[Deering's] . The point of the motion is that the motion to reconsider the granting of a judgment made after the judgment was entered was improper [see Form 11] and did not extend the time to appeal from the judgment under Cal. Rules of Ct., Rule 3[Deering's] or 123[Deering's] (discussed in Form 31, Comments, under Extension of Time to Appeal). For the distinction between judgments and orders, see discussion in Form 30, Comments, under ``Order'' and ``Judgment'' Distinguished. For discussion of the absence of a caption to the form, see Form 30, Comments, under Caption.

With regard to the date of entry of a judgment or order, neither Cal. Rules of Ct., Rule 2[Deering's] nor Cal. Rules of Ct., Rule 122[Deering's] have as of yet been amended to explicitly address this point with regard to a superior court limited civil case. Counsel will have to determine the applicable rule concerning a superior court limited civil case.

Counsel should insert argument in this form, showing the relationship between the facts of the case and the points of law stated.

Related Pleading and Practice Forms

For a form of motion to dismiss an appeal in an unlimited civil case, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 48, Appeal: Abandonment, Dismissal, and Stipulated Reversal. For a form of motion to dismiss an appeal in a limited civil case to the superior court appellate division, see Ch. 345A, Limited Civil Cases, in that publication.

DISCUSSION OF AUTHORITIES

Motion to Reconsider After Entry of Judgment

Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 58 Cal. Rptr. 2d 217 (Second App. Dist., Div. Three) is discussed in Form 11, Discussion of Authorities, under Unavailability After Judgment of Motion to Reconsider Order Granting Judgment.

The facts and procedural background of Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 275 Cal. Rptr. 887 , are discussed in Form 11, Discussion of Authorities, under Unavailability After Judgment of Motion to Reconsider Order Granting Judgment. The court of appeal held that a postjudgment motion for reconsideration will not extend the time to appeal from the judgment ( 225 Cal. App. 3d 1602, 1607-1608 ). The court pointed out that in its prior decisions it had held that a motion for reconsideration of an appealable order would extend the time to file a notice of appeal from the order (citing Rojes v. Riverside General Hospital (1988) 203 Cal. App. 3d 1151, 250 Cal. Rptr. 435 (Fourth App. Dist., Div. Two); Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 183 Cal. Rptr. 594 (Fourth App. Dist., Div. Two); and Dockter v. City of Santa Ana (1968) 261 Cal. App. 2d 69, 67 Cal. Rptr. 686 (Fourth App. Dist., Div. Two) ( 225 Cal. App. 3d 1602, 1605 ). The court explained that in reviewing these cases, it found they made no distinction between final orders, which are actually judgments, and orders which clearly are not judgments but nonetheless are appealable. The court said that, on further consideration, it now recognized that, while Blue Mountain was correctly decided, Rojes and Dockter were incorrect to the extent that they suggested that a postjudgment motion for reconsideration will extend the time to file a notice of appeal ( 225 Cal. App. 3d 1602, 1607-1608 ).

Thus, the court overruled Dockter and Rojes to the extent they held that a postjudgment motion for reconsideration will extend the time within which to file a notice of appeal from the judgment ( 225 Cal. App. 3d 1602, 1607 ). The court noted that in Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 183 Cal. Rptr. 594 , it reaffirmed the rule that a valid motion for reconsideration brought under Code Civ. Proc. 1008(a)[Deering's] is treated, for purposes of Cal. Rules of Ct., Rule 3[Deering's] , in the same manner as a motion for new trial or a motion to vacate, but disapproved language in that case that might be interpreted as approving the filing of postjudgment motions for reconsideration ( 225 Cal. App. 3d 1602, 1607-1608 n.5 ).

However, because of its prior decisions, the court felt compelled out of fairness to treat the motion for reconsideration in the case before it as a motion for new trial or a motion to vacate the judgment under Cal. Rules of Ct., Rule 3[Deering's] , and, accordingly, held that the filing of the motion extended the time to file the notice of appeal, that the notice of appeal was filed within 30 days after the court denied the motion for reconsideration, and that the appeal was therefore timely, and reversed the judgment on the merits ( 225 Cal. App. 3d 1602, 1610-1611 ).

The Passavanti court criticized contrary language or holdings relating to postjudgment motions to reconsider in the following appellate cases: Miller v. United States Automobile Assn. (1989) 213 Cal. App. 3d 222, 261 Cal. Rptr. 515 (Fourth App. Dist., Div. Three); Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1467, 258 Cal. Rptr. 907 (Fourth App. Dist., Div. One); Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal. App. 3d 1071, 1082, 258 Cal. Rptr. 721 (Second App. Dist., Div. One); and Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal. App. 3d 826, 831, 258 Cal. Rptr. 676 (Sixth Appellate District) ( 225 Cal. App. 3d 1602, 1607-1608 n.5 ).

The Passavanti court agreed with the statement in Eddy v. Sharp (1988) 199 Cal. App. 3d 858, 863 n.3, 245 Cal. Rptr. 211 (Third App. Dist.) that a motion for reconsideration may only be considered before the entry of judgment, but questioned the Eddy court's further statement that the court is free to consider a motion regardless of the label put on it by the moving party (suggesting a postjudgment motion) on the ground the opinion in Eddy does not state when the judgment was entered or when the order denying reconsideration was made ( 225 Cal. App. 3d 1602, 1608-1609 ). Moreover, the case cited by Eddy in support of the quoted statement, Graham v. Hansen (1982) 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 (Third App. Dist.), did not involve a motion for reconsideration made after entry of judgment, but, rather, a motion for reconsideration of the court's prior order denying a motion for summary judgment and for summary judgment, which the appellate court characterized as a renewed motion for summary judgment under Code Civ. Proc. 1008(b)[Deering's] , which imposes no time limitation on when the motion must be made [ Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970-971, 180 Cal. Rptr. 604 ; see Form 2].

The procedural background of Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal. App. 3d 540, 265 Cal. Rptr. 29 , is discussed in Form 31, Discussion of Authorities, under Entry of Judgment in Superior Court. In affirming the summary judgment, the court of appeal said that the fact that plaintiff had filed a motion for reconsideration was of no consequence ( 216 Cal. App. 3d 540, 545 ). Citing Rojes v. Riverside General Hospital (1988) 203 Cal. App. 3d 1151, 1158-1160, 250 Cal. Rptr. 435 (overruled on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607, 275 Cal. Rptr. 887 , discussed above), the court said that, under Cal. Rules of Ct., Rule 3[Deering's] , a valid motion for reconsideration, like a valid motion for new trial or a valid motion to vacate a judgment, will extend the time for filing a notice of appeal, but that plaintiff's motion for reconsideration did not have that effect because it was filed after the judgment was signed and was therefore invalid and did not extend the January 9th deadline for filing the notice of appeal. The court said that once plaintiff received the notice of entry of judgment, he should have abandoned the motion for reconsideration and filed a notice of appeal ( 216 Cal. App. 3d 540, 545 ).

ADDITIONAL AUTHORITIES

Motion to Reconsider After Entry of Judgment

In Crotty v. Trader (1996) 50 Cal. App 4th 765, 57 Cal. Rptr. 2d 818 , in partially dismissing an appeal the court noted that a motion for reconsideration is not to be equated with a motion for a new trial. The court when deciding a motion for reconsideration, under Code Civ. Proc. 1008[Deering's] has no authority to reanalyze or reevaluate facts or authority that has been presented in the earlier motion. Rather, the court may only grant reconsideration if the court is presented with new or different facts, circumstances, or law. On the other hand, the court on a motion for new trial does not examine new or different facts, but instead looks to determine if any error has been committed. Thus, the court held that Cal. Rules of Ct., Rule 3[Deering's] does not apply to a postjudgment motion for reconsideration (50 Cal. App 4th 765, 771).


Chapter 159 [Reserved]

Volume 16: Chapters 160-169 MOTIONS TO STRIKE---to---PARTITION

Chapter 160 MOTIONS TO STRIKE