Thursday, August 27, 2026
Page 3
Court of Appeal:
Second Motion to Compel Is ‘Renewed’ Bid Even if New Basis
Opinion Rejects View That Request Is Not ‘Subsequent Application for Same Order’ Subject to Heightened Filing Criteria if Different Contracts at Issue, Says Relief, Not Grounds, Governs
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal yesterday held that a second motion to compel arbitration, which points to language in an additional agreement not cited in the first request, qualifies as a renewal of an earlier bid under a Civil Code section requiring “subsequent applications for the same order” to be accompanied by an affidavit, highlighting that it is the relief sought, and not the ground asserted, that governs.
Acting Presiding Justice William Dato authored yesterday’s decision, joined in by Justices Martin N. Buchanan and Jose S. Castillo, noting that no affidavit accompanied the defendant’s second request to compel arbitration in the case before the court and declaring:
“We conclude that both motions to compel arbitration…sought identical relief—a court order forcing [the plaintiff] to arbitrate rather than litigate his wage and hour claims. The fact that the two motions were based on different provisions in different contracts does not change the fact that both asked the court for the same thing. As a result, the trial court properly determined it lacked jurisdiction to consider [the defendant’s] second motion.”
Civil Code Section
At issue is Civil Code §1008, which provides:
“A party who originally made an application for an order which was refused in whole or part…may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”
Subdivision (e) further specifies:
“No application…for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
Seeking to compel arbitration was Medical Solutions LLC (“MedSol”), a staffing business that places healthcare professionals in temporary assignments. In May 2022, the company hired Derek Hickenbottom to work as a travel nurse for the company.
As part of his onboarding, Hickenbottom signed an employee handbook acknowledgment form as well as an employment agreement, both of which include arbitration clauses.
The employment contract provides that Hickenbottom would be required to sign a separate “Travel Assignment Agreement” for each new position, which “may include” superseding terms. In February 2023, Hickenbottom accepted a temporary job at Palomar Medical Center and signed a new arbitration agreement.
Complaint Filed
In March 2024, Hickenbottom filed a putative-class-action complaint alleging a host of wage and hour claims against MedSol. The employer responded by filing a motion to compel arbitration as to the plaintiff’s individual claims based on language in the handbook.
The plaintiff opposed the request, arguing that the clause had been superseded by the 2023 agreement. MedSol acknowledged in its reply that there were a series of agreements to arbitrate with “immaterial” differences but asserted that the court should still grant the motion.
At a hearing on the request, counsel for the defendant proposed to “file another motion to compel moving on the correct arbitration agreement.” An attorney acting for the plaintiff objected to the suggested course of action, saying it would amount to an improper bid for reconsideration.
Caietti ultimately denied the motion based on a finding that the clause in the handbook had been superseded, commenting to MedSol that “it sounds like you are going to attempt to file another motion,” which the defendant did one month later, citing the 2023 agreement. The filing did not address §1008 and no affidavit was provided.
In May of last year, Caietti agreed with Hickenbottom that the request was precluded by §1008 and ruled that the court lacked jurisdiction over the renewed motion.
Compliance With Section
Dato wrote:
“MedSol makes no effort to argue that it complied with section 1008. Rather, it contests Hickenbottom’s characterization of the second motion to compel as a renewed motion for the same relief. It suggests that the relief it sought in the second motion was an order enforcing a different contract, i.e., the 2023 Arbitration Agreement made part of Hickenbottom’s Palomar Medical Travel Assignment Agreement.”
Unpersuaded by the defendant’s characterization, he opined:
“But MedSol did not file a motion to enforce a contract….Instead, Hickenbottom filed an action asserting various wage and hour claims, and MedSol responded with two successive motions to compel arbitration of ‘the individual claims alleged in’ his complaint….Both motions sought an identical order ‘(1) compelling arbitration of Plaintiff’s individual claims, and (2) dismissing Plaintiff’s class claims.’ By its terms, MedSol’s second motion was governed by section 1008(b) because it was a ‘renewed application[] for [an] order [the] court has previously refused.’ ”
The jurist cited a 2010 decision by Div. One, in which the court concluded that a second motion for attorney fees qualified as a renewed application subject to the terms of §1008 even if the subsequent request relied on a federal statute not highlighted in the earlier bid, and said:
“Here, both of MedSol’s motions sought the same relief—an order compelling arbitration of the same claims. The second motion was, accordingly, a renewal of the first and subject to the requirements of section 1008(b).”
Preemption Challenges
MedSol asserted that the court’s interpretation opens §1008 to preemption challenges because the reading would “single[] out arbitration agreements” for adverse treatment in a manner that “disfavors arbitration” in violation of the edicts of the Federal Arbitration Act. Rejecting this argument as a “last-ditch assault on the trial court’s ruling,” Dato said:
“[Ou]r construction of section 1008 does not single out arbitration agreements for different treatment. Rather, it applies a reasoned interpretation of the statute to motions to compel arbitration in the same way as it is applied to all other motions. Indeed, our rationale has nothing to do with arbitration and everything to do with the nature of the requested relief as distinguished from the basis for the request.”
He added:
“Because MedSol failed to comply with section 1008(b)—in particular the requirement that a renewed motion be accompanied by an affidavit…—the trial court had no jurisdiction to entertain its second motion to compel arbitration….As a result, the court’s order denying the second motion is not appealable and we have no choice but to dismiss the appeal.”
The case is Hickenbottom v. Medical Solutions LLC, D086542.
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