Metropolitan News-Enterprise


Friday, May 10, 2002


Page 3


Court of Appeal Skirts Issue of Constitutionality of Civil Procedure Sec. 1008


By a MetNews Staff Writer


Statutory language that purports to limit a trial court’s inherent power to reconsider interim rulings has been rejected again by this district’s Court of Appeal, which skirted the question of whether to strike the statute as unconstitutional.

In an original proceeding, Div. Four requested briefing on the issue of whether Code of Civil Procedure Sec. 1008 is unconstitutional to the extent that it prevents trial courts from reconsidering interim rulings on their own motion.

The statute, as amended in 1992, allows trial courts to entertain reconsideration of interim rulings only on new or different facts, circumstances or law, and purports to deprive courts of jurisdiction to hear motions for reconsideration on other grounds.

In an opinion filed Wednesday, the court appeared prepared to go beyond a 1999 Div. Seven ruling that construed Sec. 1008 as not affecting a trial court’s ability to reevaluate its own interim rulings on its own motion.

“If section 1008 can be said to create an unreasonable impediment to the orderly and effective administration of justice, it can make no difference whether the error is brought to the attention of the court by the parties or by the insight of the judge alone,” Justice J. Gary Hastings wrote.

But Hastings and his colleagues stopped short of declaring the statutory limitation unconstitutional, instead finding in the record enough “new circumstances” to support reconsideration of a Sec. 473 motion to set aside a dismissal because of mistake.

Sec. 1008 formerly allowed reconsideration on an “alleged different state of facts.” The amendment, which could appear to expand the court’s opportunity to entertain reconsideration motions, actually reduced it by removing the word “alleged” in an attempt to toughen the diligence requirements. It also added a section making the statutory procedure exclusive and jurisdictional.

The statute has been challenged as a violation of separation of powers principles. The Legislature, it has been argued, may not deprive the courts of their inherent power to hear motions for reconsideration.

In Darling, Hall & Rae v. Kritt in 1999, Div. Seven ruled that Sec. 1008 is not jurisdictional when the court reconsiders an interlocutory order on its own motions, finding that the statute applies only to “applications” for reconsideration.

Hastings expressed more satisfaction with dictum from a Fourth District case suggesting that language should be directory only to the extent it could be interpreted as unconstitutionally restricting anything more than applications made by the parties.

Still, the justice said, statutory language may not be disregarded in defiance of the clear intent of the Legislature.

He posed the question: did the Legislature articulate its judgment that the statute applies to all applications for interim orders? If so, Hastings said, the statute could not be construed to apply only to applications by the parties and would have to be invalidated as a violation of separation of powers.

But he said the court need not do that in this case, since Los Angeles Superior Court Judge Valerie Baker made a supportable finding of mistake under Sec. 473.

The case is Kollander Construction, Inc. v. Superior Court, 02 S.O.S. 2264.


Copyright 2002, Metropolitan News Company