Metropolitan News-Enterprise


Wednesday, May 31, 2017


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Order Denying Renewed Motion Not Appealable—C.A.




An order denying a renewed motion under the reconsideration statute, Code of Civil Procedure §1008(b), is not appealable, the Court of Appeal for this district has ruled.

Div. Three Friday dismissed the appeal of a renewed petition to compel arbitration brought pursuant to that statute. Los Angeles Superior Court Judge Michael Johnson, sitting on assignment, authored the opinion.

The petition arose from a suit by Chango Coffee, Inc. against Applied Underwriters, Inc. for breach of contract, conversion, and fraud. Chango claims Applied, after being granted access to Chango’s bank account for the purpose of providing payroll processing services, improperly withdrew funds from the account.

Los Angeles Superior Court Judge David Sotelo denied Applied’s petition to compel arbitration, holding that the signed contract between the parties did not incorporate the terms of an unsigned document containing the arbitration clause.

Notice of the trial judge’s ruling was served by the clerk in November 2014, and the order was not appealed. Applied renewed its petition in June 2015, citing deposition testimony by Chango’s corporate secretary, in which he testified that he considered the unsigned document to be part of the contract that plaintiff claimed was breached.

Trial Court Reasoning

Sotelo, denying the motion, said the “deposition testimony…does not in any manner alter the court’s legal analysis of [the original order].” 

Johnson, writing for the Court of Appeal, cited Tate v. Wilburn (2010) 184 Cal.App.4th 150, holding that the denial of a renewed motion under §1008(b), like the denial of a motion for reconsideration under §1008(a), cannot be appealed.

Johnson rejected the argument that the 2011 enactment of §1008(g) abrogated Tate. Section 1008 (g) permits a party to appeal from the denial of a motion for reconsideration, while appealing the denial of the original ruling, but specifies that the denial of the motion for reconsideration is not separately appealable.

Applied argued that because the amendment did not similarly bar a separate appeal from the denial of a renewed motion, the legislative intent must have been to allow such a separate appeal.

Johnson said the presumption regarding legislative intent was to the contrary.

He cited Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, in which the court held:

“The Legislature is presumed to have knowledge of existing judicial decisions when it enacts and amends legislation.  When the Legislature amends a statute that has been the subject of judicial construction, changing it only in part, the presumption is that the Legislature intended to leave the law unchanged in the aspects not amended.” 

Legislative History

The jurist also cited legislative history, in the form of the Senate Judiciary Committee analysis of the 2011 legislation, in which the committee said the statute’s purpose was “to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.”

Johnson wrote:

“That observation is consistent with the rationale the Tate court relied upon in concluding an order denying a renewed motion under section 1008, subdivision (b) is not appealable.…We find the subsequent legislative action supports the reasoning and conclusion in Tate.”

Attorneys on appeal in Chango Coffee, Inc. v. Applied Underwriters, Inc., B267358, were Michael K. Perkins, Cory J. King and William D. Wheelock of Fine, Boggs & Perkins for the defendant and Thomas Montague Hall for the plaintiff.


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