Volume 33: Motions After Trial thru Negotiable Instruments-Chs. 371-385

Chapter 374 MOTIONS TO RECONSIDER AND RENEWED MOTIONS

Part I SCOPE
§ 374.01 Scope of Chapter
This part discusses renewed motions and motions to reconsider orders granting or denying a prior motion. For a discussion of notices of motion generally and procedure, see Ch. 372, Motions and Orders.

The chapter includes the following forms:

· Notices of motion for a renewed motion [see § 374.60] and for a motion to reconsider [see § 374.62].

· A supporting declaration for a renewed motion that may be adapted for use with a motion to reconsider [see § 374.61]

· An order granting or denying either type of motion [see § 374.63].

· Ex parte motion to set aside order obtained in violation of the requirements of Code Civ. Proc. § 1008[Deering's] [see § 374.64] and an order granting that motion [see § 374.65].
§§ 374.02-374.09 [Reserved]

Part II LEGAL BACKGROUND
§ 374.10 Governing Law
Renewed motions and motions to reconsider are governed by Code Civ. Proc. § 1008[Deering's] , case law, and local court rules.

The original Code Civ. Proc. § 1008[Deering's] , which was based on prior law, was added to the code in 1933 [ Stats. 1933, ch. 744, § 177 ] and repealed in 1978 [ Stats. 1978, ch. 631 ], at which time a new Code Civ. Proc. § 1008[Deering's] , operative January 1, 1979, was concurrently added. The 1978 version had wider applications, and broadened somewhat the case law on the subject [see George Ball Pacific, Inc. v. Coldwell Banker & Co. (1981) 117 Cal. App. 3d 248, 253, 172 Cal. Rptr. 597 ]. In 1992, the Legislature further amended Code Civ. Proc. § 1008[Deering's] , and, among other things, explicitly overturned case law that found that the section did not apply to interim orders [ Stats. 1992, ch. 460, § 1(b)-(d) ]. In 1998, the Legislature again amended Section 1008 to add subsection (g) to state expressly that the section applies to all applications for interim orders [ Stats. 1998, ch. 200, § 2 ],
§ 374.11 ``Motion to Reconsider'' and ``Renewed Motion'' Distinguished
The term ``motion to reconsider'' is ordinarily used to describe a motion seeking to reopen consideration of a previous motion that the court either granted or denied [see Code Civ. Proc. § 1008(a)[Deering's] ]. The purpose of this motion appears to be to allow the trial court to correct an erroneous ruling.

The term ``renewed motion'' is used to describe a new motion by the same party who made the prior motion, based on new or different facts, circumstances, or law, but seeking the same relief sought by the prior motion, which the trial court denied [see Code Civ. Proc. § 1008(b)[Deering's] ]. Nevertheless, the term ``motion to reconsider'' is often applied collectively to both kinds 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)].
§ 374.12 Jurisdiction Limited to Code Civ. Proc. § 1008 Motions
Code Civ. Proc. § 1008[Deering's] curtails the availability of applications for reconsideration of orders and renewals of previous motions. The section explicitly limits the courts' jurisdiction regarding motions for reconsideration and renewed motions to those made in accordance with 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)].

This limitation expressly applies to reconsideration or renewal of both interim and final orders [ Code Civ. Proc. § 1008(e)[Deering's], (g)[Deering's] ]. It applies to all applications for interim orders [ Code Civ. Proc. § 1008(g)[Deering's] ].

Code Civ. Proc. § 1008(e)[Deering's] also implicitly overturns the holdings of cases regarding the courts's power to grant a party's reconsideration motion based on the court's inherent jurisdiction [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 party's reconsideration motion not based on new facts)]. It also means that 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'' [see Gilbert v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499, 38 Cal. Rptr. 2d 626 ; accord Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242 ; see also Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 685-691, 691 n.*, 68 Cal. Rptr. 2d 228 (error under Section 1008 is jurisdictional, depriving court of power to proceed)].

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 Code Civ. Proc. § 1008[Deering's] provisions are not jurisdictional or which state, without qualification, that court may reconsider any judgment before it is final, independent of statute; error under Section 1008 is jurisdictional, depriving court of power to proceed)].

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. The line of cases holding Code Civ. Proc. § 1008[Deering's] is jurisdictional do not apply in this situation. Instead, the trial court retains inherent authority to change its decision at any time before entry of judgment. The only requirement of the court is that it 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 (Second Dist., Div. Seven; court properly exercised its inherent powers 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; distinguishing Gilbert and Garcia cases 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 (court agreed with Darling line of cases holding that Code Civ. Proc. § 1008[Deering's] does not preclude trial courts from reconsidering and correcting their own interim decisions; statute may be reasonably construed as intended to regulate the actions of parties to litigation and not the inherent powers of the trial court)].

One decision has held that while there is no question that the legislature intended the procedural requirements of Code Civ. Proc. § 1008[Deering's] to be exclusive and jurisdictional regardless of whether reconsideration is initiated by the court or by the parties, such a limitation constitutes an "impermissible interference with the core functions of the judiciary" [ Scott Co. of California v. U.S. Fid. & Guar. Ins. Co. (2003) 107 Cal. App. 4th 197, 206-212, 132 Cal. Rptr. 2d 89 (Sixth Dist.)]. However, the court stated that reforming the statute was a preferable alternative to declaring the statute unconstitutional. The court thus held that while the requirements of Code Civ. Proc. § 1008(e)[Deering's] were not met in this instance, the judge nevertheless had properly exercised his constitutionally derived authority to reconsider the prior ruling and therefore it was proper despite the provisions of Code Civ. Proc. § 1008(e)[Deering's] . The court's rationale was that reforming Code Civ. Proc. § 1008(e)[Deering's] achieved the legislature's goal of discouraging repetitious litigation and conserving the court's resources [ Scott Co. of California v. U.S. Fid. & Guar. Ins. Co. (2003) 107 Cal.App.4th 197, 206-212, 132 Cal.Rptr.2d 89 (Sixth Dist.)].

A court cannot circumvent the jurisdictional limits of Section 1008(e) by consciously ignoring an interim order entered by another judge of the same court [see Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 492-493, 23 Cal. Rptr. 2d 666 (improper for judge to declare that he or she is not reconsidering a prior order staying case and then to set case for trial, which, by implication lifts the stay)].
§ 374.13 Sanctions for Failure to Comply With Code Civ. Proc. § 1008
A violation of Code Civ. Proc. § 1008[Deering's] may be punished as a contempt and with sanctions as allowed under Code Civ. Proc. § 128.7[Deering's] [ Code Civ. Proc. § 1008(d)[Deering's] ; for discussion of Section 128.7 sanctions, see Ch. 510, Sanctions ]. In addition, an order made contrary to Section 1008 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 also People v. Silva (1981) 114 Cal. App. 3d 538, 554-555, 170 Cal. Rptr. 713 (discretion of trial court to impose contempt sanctions for noncompliance with Section 1008)].

If an original moving party fails to comply with the affidavit requirement for renewed motions under Code Civ. Proc. § 1008(b)[Deering's] , any order made on the subsequent application may be revoked or set aside on ex parte motion [ Code Civ. Proc. § 1008(b)[Deering's] ].
§ 374.14 Availability of Motion
[1]--Motion to Reconsider
When an application for an order has been made to a judge or to the court and refused in whole or in part, or granted, or granted conditionally or on terms, any party affected by the order 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 to modify, amend, or revoke the prior order [see Code Civ. Proc. § 1008(a)[Deering's] ; for a form of notice of motion, see § 374.62].

The applying party must state 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, and what new or different facts, circumstances, or law are claimed to be shown [ Code Civ. Proc. § 1008(a)[Deering's] ; for a form of declaration, see § 374.61].

The facts asserted on the motion for reconsideration need not be newly discovered; they need only be different from those asserted on the original motion [ Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1386-1387 n.9, 272 Cal. Rptr. 387 (applying Section 1008(a) as enacted, Stats. 1978, ch. 631)]. To be entitled to reconsideration, however, in addition to showing that evidence of new or different facts exist, the applying party should show that the party has a satisfactory explanation for failing to produce such evidence at the original hearing [ McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 4th 1252, 1265, 93 Cal. Rptr. 2d 725 ; Kalivas v. Barry Controls Corp. (1996) 49 Cal. App. 4th 1152, 1160-1161, 57 Cal. Rptr. 2d 200 ; see Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242 (must not only provide new evidence, but also satisfactory explanation for failure to produce at earlier time); Lucus v. Santa Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 1027-1028, 46 Cal. Rptr. 2d 177 (moving party must provide trial court with satisfactory explanation why he or she failed to produce evidence at earlier time); accord, Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342, 4 Cal. Rptr. 2d 195 ].

In addition, the court may, on its own motion, reconsider 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] ].
[2]--Renewed Motion
When a party whose original application for an order was refused in whole or in part, or granted conditionally or on terms, subsequently applies 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, and what new or different facts, circumstances, or law are claimed to be shown [ Code Civ. Proc. § 1008(b)[Deering's] ; for a form of notice of motion, see § 374.60, and for the supporting declaration, see § 374.61].

Whether the ``new'' facts alleged 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, with which the appellate court will not interfere absent an obvious showing of abuse [ Graham v. Hansen (1982) 128 Cal. App. 3d 965, 971, 180 Cal. Rptr. 604 (prior law)]. Code Civ. Proc. § 1008(b)[Deering's] does not, however, permit a party to relitigate as a special defense a law and order motion that was previously denied [ Stewart v. Superior Court (1985) 163 Cal. App. 3d 915, 916, 208 Cal. Rptr. 870 ].
§ 374.15 Time Limitations on Motions
[1]--Motion to Reconsider
An application to reconsider must be made within 10 days after the party making the application is served written notice of entry of the order [ Code Civ. Proc. § 1008(a)[Deering's] ; see Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal. App. 4th 1388, 1392, 57 Cal. Rptr. 2d 310 (motion untimely when filed on October 31, 1994, because amended notice of ruling on demurrer and motion to strike was served on October 12, 1994, and motion for reconsideration should have been filed by October 22, 1994)]. This time limit is jurisdictional [see Code Civ. Proc. § 1008(e)[Deering's] ]. However, the statute sets no time limit for ruling on the motion.

The 1992 addition of subsection (e) to Section 1008, abrogates prior case law that held that the 10-day limit was not jurisdictional [see Stats. 1992, ch. 460, § 1(b) ; see also, e.g., Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal. App. 3d 1222, 1231, 254 Cal. Rptr. 410 ].

Under prior law, the time limitations on a motion to reconsider were affected by whether the motion involved an interim order, a final order, or an order granting judgment [see Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1012-1013, 183 Cal. Rptr. 594 (disapproved on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 ]. In amending Section 1008 in 1992, the Legislature noted that some California courts had found that the section does not apply to interim orders, expressly stated its intent that Section 1008 applies to both interim and final orders, and stated that inclusion of interim orders within the application of the section is desirable in order to reduce the number of motions to reconsider and renewals of previous motions heard by judges in California [ Stats. 1992, ch. 460, § 1 ]. In view of this express intent, counsel should use prior case law construing various provisions of Code Civ. Proc. § 1008[Deering's] with caution.
[2]--Renewed 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. However, the motion must be based upon new or different facts, circumstances, or law, and supported by a declaration showing 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 [ Code Civ. Proc. § 1008(b)[Deering's] ]. Thus, presumably the motion should be made as soon as reasonable after the new or different information becomes available.
[3]--Appealable Orders
A second motion, decided after an appealable order denying the first motion has become final, cannot be considered as a renewal of, or as an amendment to, the first motion [ Rambush v. Rambush (1968) 267 Cal. App. 2d 734, 741, 73 Cal. Rptr. 268 ]. It would be error to grant a motion for reconsideration of a final order absent a showing of newly discovered evidence because a trial court has no jurisdiction to correct judicial error in the making of a final order except as provided by statute [ Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1013, 183 Cal. Rptr. 594 (disapproved on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 ); see also [4], below]. Thus, for example, 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, 816-818, 1 Cal. Rptr. 2d 130 ].

Recourse in this situation might be, for example, to a motion for relief from the order on the basis of mistake, inadvertence, surprise, or excusable neglect under Code Civ. Proc. § 473(b)[Deering's] , if the more rigorous requirements of that section can be established [see Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 818, 1 Cal. Rptr. 2d 130 ; Rambush v. Rambush (1968) 267 Cal. App. 2d 734, 742, 73 Cal. Rptr. 268 ]. For discussion and forms of that and other methods of seeking relief from orders, see Ch. 489, Relief From Judgments and Orders.
[4]--Orders Granting Judgment
[a]--Limitation on Reconsideration After Judgment Is Entered
Some final appealable orders are actually judgments [see [3], above] and may not be reconsidered by the court after they are entered. Although a court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as the 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 [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605-1606, 275 Cal. Rptr. 887 (prior law; involving motion to reconsider order granting summary judgment after judgment had been entered); see Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1236-1238, 58 Cal. Rptr. 2d 217 (Passavanti followed; after entry of judgment, trial court loses its power to rule on reconsideration motion)]. 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 ].

Nonetheless, a minute order granting a motion for summary judgment is an interim order subject to a motion to reconsider [see George Ball Pacific, Inc. v. Coldwell Banker & Co. (1981) 117 Cal. App. 3d 248, 252-253, 172 Cal. Rptr. 597 (prior law); see also Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal. App. 3d 1071, 1081-1082, 258 Cal. Rptr. 721 (prior law; criticized on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1608 n.5, 275 Cal. Rptr. 887) ].

Also, an order granting a motion for discretionary dismissal of an action for failure to effect service 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, 1091-1092, 281 Cal. Rptr. 813 (prior law; motion based on Code Civ. Proc. § 1008(a)[Deering's] )].
[b]--Limitations Regarding Specific Orders
Additional 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, 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 the 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 ]. To the extent Stephen may suggest 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 appears to be inconsistent with the holding in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 272 Cal. Rptr. 887 , that a court cannot reconsider an order granting a judgment after the judgment has been entered [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606, 275 Cal. Rptr. 887 ].

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 motion within whatever time limit 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 ].
§ 374.16 Grounds for Motion
[1]--New or Different Facts, Circumstances, or Law
Both motions to reconsider and renewed motions are required to be based on new or different facts, circumstances, or law [ Code Civ. Proc. § 1008(a)[Deering's], (b)[Deering's] ]. In both cases, a moving party must provide a supporting affidavit (or declaration under Code Civ. Proc. § 2015.5[Deering's] ) setting forth what new or different facts, circumstances, or law are claimed to be shown. [ Code Civ. Proc. § 1008(a)[Deering's], (b)[Deering's] ; see e.g., Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242 (counsel's declaration that counsel mistakenly believed Code Civ. Proc. § 998[Deering's] offer included issue of attorney's fees and costs did not disclose new facts but merely counsel's mistake; mistake based on ignorance of law or imprecision in drafting offer is not proper basis for reconsideration)].

In addition to showing that evidence of new or different facts, circumstances, or law exist, the party moving for reconsideration must show that the party has a satisfactory explanation for failing to produce the evidence at an earlier time [ McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 4th 1252, 1265, 93 Cal. Rptr. 2d 725 ; Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242 ; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 685-691, 68 Cal. Rptr. 2d 228 (threshold showing of diligence required, i.e., an explanation is required of why the newly discovered matter was not presented earlier); Lucus v. Santa Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 1027-1028, 46 Cal. Rptr. 2d 177 (moving party must provide trial court with satisfactory explanation why he or she failed to produce evidence at earlier time); accord Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342, 4 Cal. Rptr. 2d 195 ; see also Kalivas v. Barry Controls Corp. (1996) 49 Cal. App. 4th 1152, 1160-1161, 57 Cal. Rptr. 2d 200 (party should show that new or different facts exist, and party has satisfactory explanation for failure to produce such evidence at an earlier time)]. Moreover, when the basis for a motion for reconsideration 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 ].

A similar showing under former Code Civ. Proc. § 1008(a) and (b), a motion to reconsider was to be based on an alleged ``different state of facts'' and a renewed motion was to be based on ``new'' facts. Therefore, cases distinguishing between the two standards should be used with caution [see, e.g., Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 944, 198 Cal. Rptr. 149 (prior law; involving a motion to reconsider a ruling sustaining a demurrer to the complaint without leave to amend); Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1013, 183 Cal. Rptr. 594 (prior law; involving a motion to reconsider a denial of an application for a writ of execution; disapproved on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 )].

One court has stated that it could comfortably assume that the (current) 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 ].

An alleged new or different law does not include a later enacted statute without a retroactive application [ Code Civ. Proc. § 1008(f)[Deering's] ].

If the court at any time determines that there has been a change of law that warrants the court to reconsider a prior order it entered, it may do so on its own motion and enter a different order [ Code Civ. Proc. § 1008(c)[Deering's] ]. Section 1008(c) means exactly what it says. When a trial court concludes that there has been a change of law that warrants reconsideration of a prior order, it has jurisdiction to reconsider and change its order [ International Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 784, 788, 73 Cal. Rptr. 2d 849 (based on two recently decided appellate opinions, judge reconsidered and vacated earlier ruling granting summary adjudication of issues)].

Moreover, Code Civ. Proc. § 1008[Deering's] does not govern the court's ability, on its own motion, to reevaluate its own interim rulings. The trial court retains inherent authority to change its decision at any time before entry of judgment and thus in exercising its inherent authority is not bound by the new fact or law requirement in Code Civ. Proc. § 1008[Deering's] [ Darling, Hall & Rae v. Kritt (1999) 75 Cal. App. 4th 1148, 1155-1157, 89 Cal. Rptr. 2d 676 ; for further discussion, see § 374.12].
[2]--No New or Different Facts, Circumstances, or Law
If no new or different facts, circumstances, or law exist, counsel should ascertain whether the order made is one that is subject to attack by a statutory procedure, for example, a motion for relief from mistake, inadvertence, surprise, excusable neglect under Code Civ. Proc. § 473(b)[Deering's] [for discussion and forms, see Ch. 489, Relief From Judgments and Orders], or for correction of clerical error under Code Civ. Proc. § 473(d)[Deering's] [for discussion and forms, see Ch. 489, Relief From Judgments and Orders], a motion for new trial on the ground of error in law under Code Civ. Proc. § 657(7)[Deering's] [see Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1013, 183 Cal. Rptr. 594 (dictum; disapproved on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 ); for discussion and forms, see Ch. 372, Motions After Trial, Pt. II], or subject to attack by an established nonstatutory motion to vacate the prior order on the ground of extrinsic fraud or mistake [for discussion and forms, see Ch. 489, Relief From Judgments and Orders]. If it is, counsel should proceed by such a motion. However, motions brought under these statutes cannot be used to circumvent the provisions of Code Civ. Proc. § 1008[Deering's] by merely raising the same issues on which the court previously ruled [see Gilbert v. AC Transit (1995) 32 Cal. App. 4th 1494, 1502, 38 Cal. Rptr. 2d 626 (rejecting general relief mechanism of Code Civ. Proc. § 473[Deering's] and motion for new trial under Code Civ. Proc. § 657[Deering's] used merely to circumvent jurisdictional effect of motion for reconsideration); but see Community Memorial Hospital v. County of Ventura (1996) 50 Cal. App. 4th 199, 204-205, 56 Cal. Rptr. 2d 732 (declining to follow Gilbert to extent it might be read to preclude a motion for summary judgment based on issues similar to those argued and lost on demurrer)].

If no alternative motion is available, counsel should determine whether the renewed motion or motion to reconsider is authorized under, or recognized by, case law. If the prior order was an appealable order, or subject to review by extraordinary writ, counsel should determine what impact the granting or denial of the motion for reconsideration will have on the time to appeal, or to seek review by extraordinary writ [see §§ 374.23, 374.24].
§ 374.17 Ruling on Demurrer
For the purposes of Code Civ. Proc. § 1008(a)[Deering's] , a demurrer, in addition to being a pleading, is ``an application for an order'' and will support an application to reconsider the court's ruling sustaining a demurrer without leave to amend when supported by a proposed pleading containing new allegations of different facts not previously included by the pleader, and it is not necessary that the different facts be ``newly discovered'' or that the proposed pleading be verified [ Rains v. Superior Court (1984) 150 Cal. App. 3d 933, 943-944, 198 Cal. Rptr. 249 (prior law)].
§ 374.18 Res Judicata
The plea of res judicata does not deprive a court of jurisdiction to pass on and decide a motion after it has previously decided a like motion. Although its action on the second motion may be erroneous, it is not in excess of jurisdiction [ Imperial Beverage Co. v. Superior Court (1944) 24 Cal. 2d 627, 634, 150 P.2d 881 (prior law); see also Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 876-877, 282 Cal. Rptr. 706 ; Hennigan v. United Pacific Ins. Co. (1975) 53 Cal. App. 3d 1, 7, 125 Cal. Rptr. 408 (prior law)]. However, failure to appeal from two prior orders, each denying a motion to vacate a summary judgment of bail forfeiture [see Penal Code § 1308[Deering's] ], has been held to bar, on the ground of res judicata, a third motion seeking the same relief [see People v. Silva (1981) 114 Cal. App. 3d 538, 549-552, 170 Cal. Rptr. 713 ].
§ 374.19 Motion to Be Made Before Same Judge or Court
[1]--Requirement
A motion to reconsider an order must be made to the same judge or court that made the order [ Code Civ. Proc. § 1008(a)[Deering's] ]. Formerly, a motion to reconsider had to be made before the same judge who made the prior order [see former Code Civ. Proc. § 1008(a)[Deering's]; see also Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 877, 282 Cal. Rptr 706 (applying Section 1008(a) as enacted by Stats. 1978, ch. 631)].

No express limitation is made on who may hear a renewed motion [see Code Civ. Proc. § 1008(b)[Deering's] ].

When either type of motion is directed to a judge other than the one who decided the original motion, the proper procedure is for the second judge to direct the moving party to the judge who ruled on the first motion. If the original judge is unavailable, the second judge may hear the reconsideration motion [ Scott Co. of California v. U.S. Fid. & Guar. Ins. Co. (2003) 107 Cal. App. 4th 197, 132 Cal. Rptr. 2d 89 (different judge authorized to entertain reconsideration motion when original judge was unavailable); Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal. App. 3d 1222, 1232, 254 Cal. Rptr. 410 (abrogated on other grounds by 1992 amendment of Code Civ. Proc. § 1008[Deering's] )]. Unavailability of the first judge that authorizes a new judge to entertain the reconsideration motion, includes unavailability due to retirement [see International Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 784, 786 n.2, 73 Cal. Rptr. 2d 849 ].

Even though Section 1008 now allows the motion to be made to the court, rather than just the judge, that made the prior order, this preferred procedure is not inconsistent with the statute, and may continue to be preferred. The attorney may wish to verify local practice.
[2]--Order by Court Commissioner
If the prior order was made by a court commissioner sitting as a temporary judge under the parties' stipulation, the stipulation allowing the commissioner to hear the matter in which the order was made confers authority on the commissioner to rule on the motion to reconsider the ruling, and a second stipulation is not required [ McCartney v. Superior Court (1990) 223 Cal. App. 3d 1334, 1339, 273 Cal. Rptr. 250 (prior law)].
§ 374.20 Opposition to Motion
Because the nature of a motion is determined by the nature of the relief sought and not by the label attached to it [ City & County of S. F. v. Muller (1960) 177 Cal. App. 2d 600, 603, 2 Cal. Rptr. 383 ], in opposing a renewed motion or motion to reconsider, counsel should not necessarily limit his or her opposition to the propriety of that motion. Rather, counsel should carefully examine both the grounds stated in the notice of motion and the supporting papers to determine if the gravamen of the motion is something other than what it purports to be. For example, the motion might in reality be one seeking relief under Code Civ. Proc. § 473(b)[Deering's] or (d)[Deering's] , or under some other statute [see, e.g., Robinson v. Varela (1977) 67 Cal. App. 3d 611, 617, 136 Cal. Rptr. 783 (gravamen of motion to reconsider was a motion for relief under former Code Civ. Proc. § 556, relating to writ of attachment, and so treated by appellate court)].

If the gravamen is something other than simply a renewed motion or motion to reconsider, counsel, in his or her opposing memorandum of points and authorities, should include any points and authorities in opposition to the motion actually made.
§ 374.21 Ruling on Motion
If it is apparent to the court that a subsequent motion, after denial of the first, is based on substantially the same grounds and seeks substantially the same relief as the preceding motion, the court may summarily deny it without further reconsideration. The court may also reconsider the prior matter and deny the motion to reconsider or it may reconsider the prior matter and reverse the prior decisions but it should not ignore the notice of motion for reconsideration [see Muller v. Tanner (1969) 2 Cal. App. 3d 445, 460-461, 82 Cal. Rptr. 738 ].

On reconsideration, the court's power to weigh the conflicts is the same as on its first consideration of the motion. In other words, the power of the court to resolve the conflicts is not exhausted by its conclusions of the first order. Rather, it has power to reexamine the evidence on reconsideration and arrive at a different conclusion if it thinks the ends of justice will be served thereby [see Harth v. Ten Eyck (1941) 16 Cal. 2d 829, 833-834, 108 P.2d 675 ; Lopez v. Larson (1979) 91 Cal. App. 3d 383, 393, 153 Cal. Rptr. 912 ]. There is no impropriety or error by the judge in reversing the prior order on later concluding it was wrong [ Hover v. MacKenzie (1954) 122 Cal. App. 2d 852, 857, 266 P.2d 60 ; see also Rambush v. Rambush (1968) 267 Cal. App. 2d 734, 740 n.3, 73 Cal. Rptr. 268 ].

Also, 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 (disapproved on another ground in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 )].
§ 374.22 Review of Order on Motion to Reconsider
Appealable orders in civil actions and proceedings are listed in Code Civ. Proc. § 904.1[Deering's] and 904.2[Deering's] , and these statutes do not include an order granting or denying a motion to reconsider [see Code Civ. Proc. §§ 904.1[Deering's] and 904.2[Deering's] ]. If the order being reconsidered is nonappealable, then the order denying reconsideration is also nonappealable [ Ghanooni v. Super Shuttle (1992) 2 Cal. App. 4th 380, 381 n.2, 3 Cal. Rptr. 2d 43 (criticized on other grounds in Greene v. Amante (1992) 3 Cal. App. 4th 684, 689, 4 Cal. Rptr. 2d 571 )]. However, if the original order is appealable, the courts of appeal are in conflict as to whether, or under what circumstances, the denial of a motion to reconsider is appealable.

In Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 1310 n.3, 278 Cal. Rptr. 306 , the court noted that when a motion for reconsideration raises new facts, the appellate courts have reached different conclusions regarding the appealability of the denial of that motion. The Gill court cited a comparison of Santee v. Santa Clara County Office of Education (1990) 220 Cal. App. 3d 702, 269 Cal. Rptr. 605 (Sixth Appellate District; order denying motion for reconsideration that raises new facts is appealable), with Rojes v. Riverside General Hospital (1988) 203 Cal. App. 3d 1151, 250 Cal. Rptr. 435 (Fourth Appellate District; order denying motion for reconsideration is always nonappealable; overruled on another ground by the same district and division in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605, 275 Cal. Rptr. 887 ) [ Gill v. Hughes (1991) 227 Cal. App. 3d 1299, 1310 n.3, 278 Cal. Rptr. 306 ; see Crotty v. Trader (1996) 50 Cal. App. 4th 765, 768-769, 57 Cal. Rptr. 2d 818 (First Dist., Div. Two; court followed Rojes in holding reconsideration order nonappealable even if court granted reconsideration and subsequently denied motion on its merits)].

Denial of a motion to reconsider may be challenged by peremptory writ [ Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1344, 4 Cal. Rptr. 2d 195 (ordering reconsideration of grant of summary adjudication dismissing claims as untimely after discovering that complaint was timely filed because of an intervening weekend and court holiday); cf. International Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 784, 786 n.2, 73 Cal. Rptr. 2d 849 (order denying summary adjudication is reviewable on appeal from final judgment; appellate court saw no reason why, absent other compelling facts, it ought to use writ procedure to review orders to grant or deny reconsideration of a summary adjudication order and denied petition for writ of mandate)].
§ 374.23 Effect of Filing Valid Motion to Reconsider on Time to Appeal Original Order
[1]--When Time Is Extended
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] .

Effective January 1, 2002, California Rules of Ct., Rule 3[Deering's] provides for an extension of time when a motion for reconsideration of an appealable order is made. Specifically, Rule 3 provides that if a ``valid'' motion to reconsider an appealable order is made, the time to appeal that order is the earliest of: (1) 30 days after the clerk or a party served an order denying the motion or a notice of entry of that order; (2) 90 days after the first motion to reconsider is filed; or (3) 180 days after entry of the appealable order [ California Rules of Ct., Rule 3(d)[Deering's] ].

The Fourth Appellate District held that while a motion for reconsideration of an appealable order will extend the time to file a notice of appeal from the order, a motion for reconsideration (of the order granting or constituting the judgment) 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 ]. That is because a trial court loses its power to rule on a reconsideration motion after entry of judgment and thus a reconsideration motion made after entry of judgment cannot extend the time to file a notice of appeal under Cal. Rules of Ct., Rule 2[Deering's] [ Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1236-1238, 58 Cal. Rptr. 2d 217 (Second Dist., Div. Three; Passavanti followed); see Crotty v. Trader (1996) 50 Cal. App. 4th 765, 771, 57 Cal. Rptr. 2d 818 (First Dist., Div. Two; Cal. Rules of Ct., Rule 3[Deering's] , which extends time to file a notice of appeal when a motion for new trial is served, filed and denied, does not apply to a postjudgment motion for reconsideration); but see Fyer v. Kaiser Foundation Health Plan (1963) 221 Cal. App. 2d 674, 676-677, 34 Cal. Rptr. 688 (Second Dist., Div. Four; reconsideration motion made after entry of judgment of dismissal which was granted and thereafter trial court reaffirmed its judgment of dismissal construed as new judgment which began period for filing notice of appeal under Cal. Rules of Ct., Rule 2[Deering's] )].

Thus, to determine whether the time for appeal is extended by a motion to reconsider, orders must first of all be distinguished from judgments, and, secondly, 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 ].

When a reconsideration motion has been made before entry of judgment and thereafter judgment is entered without a ruling on the motion, it has been held that the entry of the judgment has the effect of denying the motion by implication. A motion for reconsideration refiled thereafter is an invalid motion. Rather, the judgment may be attacked in one of three ways, that is, by a motion for a new trial, by a motion to vacate, or by filing a timely notice of appeal [ Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1238, 58 Cal. Rptr. 2d 217 ].
[2]--``Orders'' and ``Judgments'' 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'' [ Code Civ. Proc. § 1003[Deering's] ]. Despite the use of the word ``direction'' in this 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], (10)[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 [ Code Civ. Proc. § 577[Deering's] ] or proceeding [ Code Civ. Proc. § 1064[Deering's] ]. Although 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 ].

Nevertheless, some determinations, though characterized as orders, are in effect final judgments for purposes of appeal, and orders of dismissal are considered judgments under Code Civ. Proc. § 581d[Deering's] [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1607-1608 n.5, 275 Cal. Rptr. 887 ; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 181, 90 Cal. Rptr. 2d 171 (entry of order in ``Civil Register Report'' satisfies requirement of Code Civ. Proc. § 581d[Deering's] so as to constitute entry of judgment).] 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, which is the final determination in the action, is the judgment [ Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606, 275 Cal. Rptr. 887 ].
§ 374.24 Effect of Motion to Reconsider on Review by Extraordinary Writ
The delay resulting from the making of a motion to reconsider might also result in loss of a right to review by extraordinary writ. For example, Code Civ. Proc. § 400[Deering's] authorizes review by mandate of a superior court order granting or denying a motion for change of venue, provided the petition for the writ is filed within 20 days after service of a written notice of the order, or within up to 30 days if the superior court grants an extension for good cause prior to expiration of the initial 20-day period. (Although a superior court order, other than in a limited civil case, granting or denying a motion for change of venue is not appealable [see Code Civ. Proc. § 904.1 ], a superior court order in a limited civil case granting or denying such a motion is [ Code Civ. Proc. § 904.2(c)[Deering's] ].) In Dunas v. Superior Court (1970) 9 Cal. App. 3d 236, 87 Cal. Rptr. 719 , the trial court granted defendants' motion for change of venue on December 9, 1969, and notice of the ruling was mailed to plaintiff's counsel on December 19, 1969. On December 30, 1969, plaintiff filed a notice of motion for reconsideration. The trial court granted the motion to reconsider on February 20, 1970, and, on reconsideration, again ruled that the case be transferred. Notice of the ruling was mailed to plaintiff's counsel on February 27, 1970, and plaintiff filed a petition for writ of mandate under Code Civ. Proc. § 400[Deering's] on March 6, 1970. The court of appeal held, under the circumstances of the case, that there was no recognized procedure for plaintiff's motion to reconsider and, accordingly, the trial court acted in excess of its jurisdiction in entertaining and ruling on the motion. It denied the petition for writ of mandate on the ground that, since plaintiff did not seek appropriate and timely relief from the only effective order made, that is, the order of December 9, granting the motion for change of venue, he lost the right to a review on the merits [ Dunas v. Superior Court (1970) 9 Cal. App. 3d 236, 239, 240, 87 Cal. Rptr. 719 (prior law)].

On the other hand, it has been held that an order denying a renewed motion to quash service of summons on the ground of lack of personal jurisdiction after denial of the original motion [former Code Civ. Proc. § 416.1 (now see Code Civ. Proc. § 418.10(a)(1)[Deering's] )] is reviewable by mandate under former Code Civ. Proc. § 416.3 [now see Code Civ. Proc. § 418.10(c)[Deering's] ] if the petition was filed within 10 days after service on the petitioning party of a written notice of entry of the order denying the second motion although filed more than 10 days after service of written notice of entry of the order denying the first motion [ Josephson v. Superior Court (1963) 219 Cal. App. 2d 354, 360, 33 Cal. Rptr. 196 (prior law; issuing a peremptory writ of mandate to the superior court requiring it to enter its order quashing service of summons on petitioner); see also Amparan v. Superior Court (1966) 246 Cal. App. 2d 41, 43, 54 Cal. Rptr. 501 ].
§§ 374.25-374.39 [Reserved]

Part III RESEARCH GUIDE
§ 374.40 State Statutes
Renewed motions and motions to reconsider. Code Civ. Proc. § 1008[Deering's]
§ 374.41 California Rules of Court
Civil law and motion rules. Cal. Rules of Ct., Rule 301[Deering's] et seq.
§ 374.42 Local Court Rules
Requirement that motion for reconsideration be presented to judge who made order; alternatives if judge is not available. Los Angeles Co. Super. Ct. Rules, Rule 3.3
§ 374.43 Decisions
NOTE

CAUTION: Code Civ. Proc. § 1008[Deering's] was amended in 1992, effective January 1, 1993, for the following purposes, among other things:

(1) To apply to interim orders [ Code Civ. Proc. § 1008(e)[Deering's] ],

(2) To provide that the 10-day limitation period for motions to reconsider runs from receipt of the written notice of entry of order [ Code Civ. Proc. § 1008(a)[Deering's] ],

(3) To provide that a motion to reconsider should be made to the same judge or court that made the order [ Code Civ. Proc. § 1008(a)[Deering's] ],

(4) To make the grounds for a motion to reconsider the same as for a renewed motion (i.e., based on new or different facts, circumstances, or law) [ Code Civ. Proc. § 1008(a)[Deering's], (b)[Deering's] ], and

(5) To limit jurisdiction to hear motions to reconsider and renewed motions to the provisions of the section [ Code Civ. Proc. § 1008(f)[Deering's] ].

An additional amendment in 1998 further clarified that Seciton 1008 applies to all applications for interim orders [ Code Civ. Proc. § 1008(g)[Deering's] ].

The decisions discussed below, many of which were decided under prior law, are cited as persuasive rather than controlling authority on points of law that are arguably still valid under Code Civ. Proc. § 1008[Deering's] .
[1]--Appeal
[a]--Appealability
Reconsideration order nonappealable even if court granted reconsideration and subsequently denied motion on its merits. Crotty v. Trader (1996) 50 Cal. App. 4th 765, 768-769, 57 Cal. Rptr. 2d 818

Order denying reconsideration of nonappealable order as itself nonappealable. Ghanooni v. Super Shuttle (1992) 2 Cal. App. 4th 380, 381, 3 Cal. Rptr. 2d 43 (criticized on other grounds in Greene v. Amante (1992) 3 Cal. App. 4th 684, 689, 4 Cal. Rptr. 2d 571 )

When order for which reconsideration is sought is not final and appealable in its own right, order denying reconsideration as not appealable. Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1466, 258 Cal. Rptr. 907

Order denying reconsideration as appealable as order made after judgment if order as to which reconsideration is sought is appealable. Rabbit v. Vincente (1987) 195 Cal. App. 3d 170, 174, 240 Cal. Rptr. 524

Court's ruling on motion for reconsideration of summary judgment based on new facts [ Code Civ. Proc. § 1008[Deering's] ] as appealable order. Bartschi v. Chico Community Memorial Hospital (1982) 137 Cal. App. 3d 502, 508, 187 Cal. Rptr. 61 (prior law)

Appealability of order denying reconsideration. Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1010-1012, 183 Cal. Rptr. 594 (prior law)
[b]--Time for Filing
Trial court loses its power to rule on reconsideration motion after entry of judgment; thus a motion for reconsideration made after entry of judgment cannot extend time to file notice of appeal under Cal. Rules of Ct., Rule 2[Deering's] . Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1236-1238, 58 Cal. Rptr. 2d 217 ; Fyer v. Kaiser Foundation Health Plan (1963) 221 Cal. App. 2d 674, 676-677, 34 Cal. Rptr. 688 (reconsideration motion made after entry of judgment of dismissal which was granted and thereafter trial court reaffirmed its judgment of dismissal construed as new judgment which began period for filing notice of appeal under Cal. Rules of Ct., Rule 2[Deering's] )

Cal. Rules of Ct., Rule 3[Deering's] , which extends time to file notice of appeal when motion for new trial is served, filed and denied, does not apply to postjudgment motion for reconsideration. Crotty v. Trader (1996) 50 Cal. App. 4th 765, 771, 57 Cal. Rptr. 2d 818

For purposes of Cal. Rules of Ct., Rule 3[Deering's] (extension of time to appeal), motion for reconsideration under Code Civ. Proc. § 1008[Deering's] as treated in same manner as motion for new trial or motion to vacate; timely filing of motion to reconsider as generally extending time for filing notice of appeal until 30 days after entry of order denying reconsideration. Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1467, 258 Cal. Rptr. 907 (prior law)
[2]--Applicability
Code Civ. Proc. § 1008[Deering's] only operates to regulate the actions of the parties to civil litigation rather than the inherent powers of the trial court itself; the procedural prerequisites set forth for reconsideration of orders and renewal of motions previously denied are jurisdictional only as applied to the actions of parties to litigation and not to the actions of the trial courts themselves. Kerns v. CSE Insurance Group (2003) 106 Cal. App. 4th 368, 389-391, 130 Cal. Rptr. 2d 754 (reconciling Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 68 Cal. Rptr. 2d 197 , Gilbert v. AC Transit (1995) 32 Cal. App. 4th 1494, 38 Cal. Rptr. 2d 626 , and Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 23 Cal. Rptr. 2d 666 )

Code Civ. Proc. § 1008[Deering's] does not govern court's ability, on its own motion, to reevaluate its own interim rulings; cases holding section 1008 to be jurisdictional do not apply in this situation; instead, trial court retains inherent authority to change its decision at any time before entry of judgment; only requirement is that 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 (distinguishing Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 685, 68 Cal. Rptr. 2d 197 and Gilbert v. AC Transit (1995) 32 Cal. App. 4th 1494, 38 Cal. Rptr. 2d 626 )

Code Civ. Proc. § 1008[Deering's] not applicable to motion for summary adjudication by insurer seeking to terminate earlier summary adjudication that insurers had a duty to defend; because insurer's duty to defend endures only so long as possibility of duty to indemnify remains alive, trial court must evaluate duty to defend based on showing before it at time of a particular motion; thus, although subsequent motion by insurer might theoretically constitute impermissible motion for reconsideration if supporting facts were precisely same as presented on earlier motion, in instant case insurer had presented argument about trigger of coverage in earlier motion, while on present motion insurer contended that New York law applied and precluded existence of duty to defend. Liberty Mutual Ins. Co. v. Superior Court (1997) 58 Cal. App. 4th 617, 619, 623, 68 Cal. Rptr. 2d 219

Code Civ. Proc. § 1008[Deering's] as not applying to criminal cases. Smith v. Superior Court (1981) 115 Cal. App. 3d 285, 291 n.2, 171 Cal. Rptr. 387
[3]--Discretion of Court
Leave to renew motion as addressed to sound discretion of court. Josephson v. Superior Court (1963) 219 Cal. App. 2d 354, 358, 33 Cal. Rptr. 196

One of court's rights as not to have administration of justice impeded and burdened by repeated motions raising questions on which court has already ruled. City & County of San Francisco v. Muller (1960) 177 Cal. App. 2d 600, 604, 2 Cal. Rptr. 383
[4]--Jurisdiction to Reconsider
Once trial court has entered judgment it is without power to grant reconsideration; thus, court is without jurisdiction to grant motion for reconsideration even if motion was brought before judgment was entered and is still pending at time of entry of judgment. APRI Ins. Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 180-182, 90 Cal. Rptr. 2d 171

Court acts in excess of jurisdiction when it grants motion to reconsider that is not based on new or different facts, circumstances, or law. Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242

Trial court loses its power to rule on motion for reconsideration after entry of judgment; final judgment terminates litigation and leaves nothing in nature of judicial action to be done other than questions of enforcement or compliance; after judgment, trial court can only correct judicial error in accordance with statutory proceedings, and motion for reconsideration is not such a motion. Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1237-1238, 58 Cal. Rptr. 2d 217

By making Code Civ. Proc. § 1008(e)[Deering's] expressly jurisdictional, legislature intended to prevent courts from modifying, amending or revoking prior orders without due reconsideration. Morite of California v. Superior Court (1993) 19 Cal. App. 4th 485, 492-493, 23 Cal. Rptr. 2d 666

Although decision on motion is not res judicata and trial court has jurisdiction to reconsider prior ruling or to entertain renewal of previous motion, one trial court judge as not permitted to reconsider and overrule ruling of another judge, absent showing that first judge is unavailable. Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 876-878, 282 Cal. Rptr. 706 (prior law)
[5]--Oral Argument on Motion to Reconsider
Court's denial of motion for reconsideration without oral argument as harmless error, if error at all, when moving papers did not set forth different facts as required under Code Civ. Proc. § 1008[Deering's] , and, on appeal, no statement was made of what evidence or argument not raised in moving papers would have been asserted at argument. M.E. Gray Co. v. Gray (1985) 163 Cal. App. 3d 1025, 1036-1037, 210 Cal. Rptr. 285
[6]--Requirements
[a]--New Facts
Where defendants had opportunity at original hearing to present evidence concerning defendant city's interpretation of municipal code provision involved in land use decision, declaration of city planning employee setting forth that interpretation submitted after hearing was not ``new'' evidence; motion for reconsideration was properly denied because defendants were not able to give satisfactory explanation of why they were unable to present the evidence at original hearing. McPherson v. City of Manhattan Beach (2000) 78 Cal. App. 1252, 1258, 1265-1266, 93 Cal. Rptr. 2d 725 (also noting evidence would have been irrelevant)

When one defendant failed to comply with discovery request for documents and court granted another defendant's petition to compel arbitration although plaintiff asked court to delay ruling on petition until documents were received, and court also tentatively ruled to stay remainder of lawsuit pending completion of arbitration, plaintiff's motion for reconsideration did not fail to set forth any new or different facts, circumstances, or law as required by Code Civ. Proc. § 1008[Deering's] when discovery documents were not produced until hearing of plaintiff's reconsideration motion; court did not exceed its jurisdiction in granting plaintiff's motion to reconsider as it had authority to consider motion and correctly realized this new evidence warranted second look at its previous ruling. Hollister v. Benzl (1999) 71 Cal. App. 4th 582, 584-585, 83 Cal. Rptr. 2d 903

Counsel's declaration that counsel mistakenly believed Code Civ. Proc. § 998[Deering's] offer included issue of attorney fees and costs did not disclose new facts but merely counsel's mistake; mistake based on ignorance of law or imprecision in drafting the offer is not proper basis for reconsideration. Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal. App. 4th 658, 670, 73 Cal. Rptr. 2d 242

1992 amendment to Code Civ. Proc. § 1008(a)[Deering's] , requiring ``new or different facts, circumstances, or law'' does not mean that any facts not previously presented to a court now qualify as ``different'' (if not ``new'') facts or circumstances justifying reconsideration; amendment's reference to ``new or different'' facts did not make prerequisites less restrictive; threshold showing of diligence is required, i.e., explanation of why newly discovered matter was not presented earlier; although court could comfortably assume that amended language ``new or different facts, circumstances, or law'' was designed to approve generally, case law relaxation of what constitutes new or different acts justifying reconsideration, that does not mean that all facts not previously presented now suffice. Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 685-691, 68 Cal. Rptr. 2d 228

To be entitled to reconsideration, party should show that (1) evidence of new or different facts exist and (2) party has satisfactory explanation for failing to produce such evidence at earlier time. Kalivas v. Barry Controls Corp. (1996) 49 Cal. App. 4th 1152, 1160-1161, 57 Cal. Rptr. 2d 200

Error to deny motion to reconsider interim order on ground of no new facts since requirement only applies to final order; error as not, however, warranting reversal in absence of showing of injury. Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal. App. 4th 313, 318, 4 Cal. Rptr. 2d 649 (prior law)

Discovery of timely filing of complaint due to intervening weekend and court holiday as sufficient to warrant reconsideration of grant of summary adjudication dismissing claims as untimely; relief under Code Civ. Proc. § 473(b)[Deering's] , also appropriate. Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1434, 4 Cal. Rptr. 2d 195

Party seeking reconsideration under Code Civ. Proc. § 1008[Deering's] as required to provide not only new evidence but also satisfactory explanation for failure to produce that evidence at an earlier time; moving party's burden as same as that of party seeking new trial on ground of newly discovered evidence, material for party making application that he or she could not, with reasonable diligence, have discovered and produced at trial (see Code Civ. Proc. § 657(4)[Deering's] ). Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1467, 258 Cal. Rptr. 907 (prior law)

Code Civ. Proc. § 1008(a)[Deering's] as permitting any affected party to seek reconsideration of court's order, regardless of how court rules on motion, provided motion is based on alleged ``different'' set of facts and is made within 10 days of knowledge of court's order. Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970, 180 Cal. Rptr. 604

Code Civ. Proc. § 1008(b)[Deering's] as applying to renewed motions based on ``new'' facts and as imposing no time limitations on such motions. Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970-971, 180 Cal. Rptr. 604
[b]--Prior Ruling Erroneous
Order denying motion for reconsideration as determination that requirements of Code Civ. Proc. § 1008[Deering's] are not met; if requirements are met to reviewing court's satisfaction but it is unconvinced that earlier ruling was erroneous, proper course as granting reconsideration and reaffirming earlier ruling. Corns v. Miller (1986) 181 Cal. App. 3d 195, 202, 226 Cal. Rptr. 247
[c]--Refusal of Application for Order
Compliance with Code Civ. Proc. § 1008[Deering's] , relating to renewal of application for order, on filing of second motion to compel satisfaction of judgment as required only if first motion is refused and not if first motion is denied without prejudice with permission to refile motion to be heard by judge before whom stipulation for judgment was made. Chambreau v. Coughlan (1968) 263 Cal. App. 2d 712, 717-718, 69 Cal. Rptr. 783
[7]--Timing of Motion to Reconsider
Court is without jurisdiction to grant motion for reconsideration brought before judgment was entered if motion is still pending at time of entry of judgment. APRI Ins. Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 180-182, 90 Cal. Rptr. 2d 171

Trial court loses its power to rule on reconsideration motion after entry of judgment. Ramon v. Aerospace Corp. (1996) 50 Cal. App. 4th 1233, 1236-1238, 58 Cal. Rptr. 2d 217

Motion for reconsideration under Code Civ. Proc. § 1008(a)[Deering's] must be made within 10 days after service of written notice of entry of order; motion for reconsideration filed on October 31, 1994, held untimely because amended notice of ruling on demurrer and motion to strike served on October 12, 1994, and motion for reconsideration should have been filed by October 22, 1994. Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal. App. 4th 1388, 1392, 57 Cal. Rptr. 2d 310

Practical time limitation on motion to reconsider an appealable order as within 60-day jurisdictional time frame for court to rule on motion. Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 818, 1 Cal. Rptr. 2d 130

Motion for reconsideration as properly considered only before entry of judgment; after summary judgment, proper method of attacking judgment as motion for new trial and appeal, and not motion for reconsideration; but court as free to consider motion regardless of label put on it by moving party. Eddy v. Sharp (1988) 199 Cal. App. 3d 858, 863 n.3, 245 Cal. Rptr. 211 (prior law)

Ten-day period for seeking reconsideration of order under Code Civ. Proc. § 1008[Deering's] as not terminating court's jurisdiction to vacate its declaration of mistrial, provided relief from mistrial order is sought within reasonable time not to exceed six months pursuant to Code Civ. Proc. § 473(b)[Deering's] . Phelps v. Superior Court (1982) 136 Cal. App. 3d 802, 815-816, 186 Cal. Rptr. 626 (prior law)
§ 374.44 Text References
Witkin, California Procedure, vol. 6, Proceedings Without Trial, §§ 44-50 (4th ed. 1997)
§§ 374.45-374.59 [Reserved]

Part IV FORMS
§ 374.60 Renewed Motion for Order After Prior Motion Was Denied in Whole or in Part, Granted Conditionally, or Granted on Terms [Code Civ. Proc. § 1008(b)]--Notice of Motion
[1]--FORM
Renewed Motion for Order After Prior Motion Was Denied in Whole or in Part, Granted Conditionally, or Granted on Terms [Code Civ. Proc. § 1008(b)]--Notice of Motion

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



)NO. _______________
_________________________ [name], )NOTICE OF RENEWED
)MOTION AND RENEWED
)MOTION __________
)[e.g., FOR SUMMARY
)JUDGMENT][, SUPPORTING
)DECLARATION OF ________
)__ (name), AND
)MEMORANDUM OF POINTS
)AND AUTHORITIES
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [specify party, e.g., plaintiff] _________________ [name] and to _________________ [name], his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________[date], at _________________ [time], or as soon thereafter as the matter may be heard, in the courtroom of [_________________(Department or Division) _________________ of] this court, located at _________________ [address], _________________ [city], _________________ [party, e.g., defendant] will, and hereby does, move the court for _________________ [specify, e.g., summary judgment]. The motion is made on the grounds that _________________ [new _________________(facts or circumstances or law) exist than did or different _________________ (facts or circumstances or law) are presented than were] at the time _________________ [party, e.g., defendant's] prior motion for _________________ [specify, e.g., summary judgment] was _________________ [refused in _________________ (whole or part) or granted conditionally or granted on terms] by this court, and that _________________ [specify, e.g., the action is without merit in that it is barred by the statute of limitations].

The motion is based on this notice of motion, on the declaration(s) of _________________ [name(s)], [refer to any additional papers, e.g., the attached statement of undisputed material facts,] the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [moving party]
[2]--Use of Form
The form of notice of motion in [1], above, is for use by a party to renew a prior motion refused in whole or in part or granted conditionally or on terms when new or different facts, circumstances, or law exist to support the renewed motion [ Code Civ. Proc. § 1008(b)[Deering's] ].
[3]--Accompanying Papers
A form of supporting declaration must accompany the notice of motion [see Code Civ. Proc. §§ 1008(b)[Deering's], 1010[Deering's] ; for a form, see § 374.61].

A memorandum of points and authorities must be filed and a copy served with the notice of motion [ Cal. Rules of Ct., Rule 313(a)[Deering's] ; see Code Civ. Proc. §§ 1005(b)[Deering's], 1010[Deering's] ; see Ch. 417, Points and Authorities].
[4]--Time of Motion
No time limit is specified for bringing a renewed motion [see Code Civ. Proc. § 1008(b)[Deering's] ]. A renewed motion on the ground of newly discovered evidence after denial of a motion under Code Civ. Proc. § 473(b)[Deering's] , to vacate and set aside a default and default judgment is authorized by Code Civ. Proc. § 1008(b)[Deering's] , providing for renewal of an earlier motion based on ``new facts,'' and the motion is not subject to the 10-day limitation governing applications under Code Civ. Proc. § 1008(a)[Deering's] [ Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal. App. 3d 826, 831, 258 Cal. Rptr. 676 (criticized on other grounds in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606 n.5, 275 Cal. Rptr. 887 ].
[5]--Cross References
For a forms of order that may be used in granting or denying the motion, see § 374.63

For discussion of the format requirements for law and motion papers, see Ch. 372, Motions and Orders

Witkin, California Procedure, vol. 6, Proceedings Without Trial, § 44; vol. 7, Trial, § 208 (4th ed. 1997)
§ 374.61 Renewed Motion for Order After Prior Motion Was Denied in Whole or in Part, Granted Conditionally, or Granted on Terms [Code Civ. Proc. § 1008(b)]--Supporting Declaration [Code Civ. Proc. §§ 1008(b); Cal. Rules of Ct., Rule 315(a)]
[1]--FORM
Renewed Motion for Order After Prior Motion Was Denied in Whole or in Part, Granted Conditionally, or Granted on Terms [Code Civ. Proc. § 1008(b)]--Supporting Declaration [Code Civ. Proc. §§ 1008(b); Cal. Rules of Ct., Rule 315(a)]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



)NO. _______________
_________________________ [name], )DECLARATION OF ________
)__ [name] IN SUPPORT
)OF RENEWED MOTION _____
)__________ [e.g., FOR
)SUMMARY JUDGMENT]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

I, _________________ [name], declare:

1. I am _________________ [identify declarant, e.g., an attorney at law duly admitted to practice before all the courts of California and the attorney of record herein for _________________ (specify moving party, e.g., defendant) or other statement as appropriate] and make this declaration in support of _________________ [specify moving party, e.g., defendant's] renewed motion _________________ [specify, e.g., for summary judgment].

2. On _________________ [date], _________________ [I or, on behalf of _________________ (specify party, e.g., defendant) I], filed in this court a notice of motion _________________ [specify relief sought by prior motion, e.g., for summary judgment]. The motion was heard on _________________[date], by the Honorable _________________ [name]. By [minute] order made [and entered] on _________________ [the same date or specify date], the motion was _________________ [denied in _________________ (whole or part) or granted conditionally or granted on terms]. _________________ [A conformed copy of the order is attached hereto as Exhibit A and made a part hereof or The court is requested to take judicial notice of its order].

3. As shown by the papers submitted in support of and in opposition to the prior motion _________________ [specify, e.g., for summary judgment], which are in the court's file of this case, the court's order was based on the following _________________ [facts or circumstances or law]: _________________ [specify, e.g., The action, based on medical malpractice, was filed within three years as required by the Code of Civil Procedure Section 340.5[Deering's] , and there was no showing that plaintiff had not discovered his/her injury and its cause more than one year before the complaint was filed].

4. A _________________ [new or different] state of _________________ [facts or circumstances or law] is now presented than was presented at the time the prior motion was heard and ruled on in that _________________ [Set forth new facts, circumstances or law within personal knowledge of declarant or facts or circumstances of which court must take judicial notice, or facts or circumstances of which court may take judicial notice with request that it do so, e.g., subsequent to the ruling on the prior motion, plaintiff answered defendant's interrogatories. In reply to the question When did you first become aware of your injury and its cause?, plaintiff replied ``On _________________'' (specify date). Thereafter, on _________________ (date), defendant caused plaintiff's deposition to be taken at which plaintiff testified that on _________________ (same date as given in answer to interrogatories ) he/she discovered the nature and extent of his/her injury and ``knew at that time that it was caused by defendant.'' As shown by the record herein, the complaint was filed _________________ (date), which is more than one year after plaintiff's admitted discovery. The action is, therefore, barred under the provisions of Code of Civil Procedure Section 340.5[Deering's] ].

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: _________________.

_________________ [signature]
[2]--Use of Form
The form of declaration in [1], above, is for use in support of a renewed motion by a party whose prior motion for an order was refused in whole or in part or granted conditionally or on terms where the subsequent motion is based on new or different facts, circumstances, or law [ Code Civ. Proc. § 1008(b)[Deering's] ].

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 based on new or different facts, circumstances, or law, the application must be supported by an affidavit [ Code Civ. Proc. § 1008(b)[Deering's] ]. A declaration under penalty of perjury may be submitted in lieu of an affidavit [ Code Civ. Proc. § 2015.5[Deering's] ].
[3]--Content of Declaration
The supporting affidavit or declaration must show what application was made before, when and to what judge, what order or decisions were made on it, and what new different facts, circumstances, or law are claimed to be shown [ Code Civ. Proc. § 1008(b)[Deering's] ].
[4]--Cross References
For the related form of notice of motion, and discussion of renewed motions, see § 372.60

For a declaration in support of a motion for new trial on the ground of newly discovered evidence, see Ch. 371, Motions After Trial, Pt. II
§ 374.62 Notice of Motion for Reconsideration [Code Civ. Proc. § 1008(a)] of Order Granting Adverse Party's Prior Motion
[1]--FORM
Notice of Motion for Reconsideration [Code Civ. Proc. § 1008(a)] of Order Granting Adverse Party's Prior Motion

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



)NO. _______________
_________________________ [name], )NOTICE OF MOTION AND
)MOTION FOR
)RECONSIDERATION OF
)ORDER __________
)[specify, e.g.,
)DENYING] MOTION _______
)________ [e.g., FOR
)SUMMARY JUDGMENT][,
)SUPPORTING DECLARATION
)OF __________ (name),
)AND MEMORANDUM OF
)POINTS AND
)AUTHORITIES]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [specify party, e.g., Plaintiff] _________________ [name] and to _________________ [name] his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________ [date], at _________________ [time], or as soon thereafter as the matter may be heard, in the courtroom of [_________________ (Department or Division) _________________ of] this court, located at _________________ [address], _________________ [city], _________________ [specify party, e.g., defendant] will, and hereby does, move for reconsideration of _________________ [his/her motion or the motion of _________________ (specify party, e.g., plaintiff )], which the court by [minute] order made [and entered] on _________________ [date] _________________ [denied or denied in part or granted or granted conditionally or granted on terms], and for _________________ [modification or amendment or revocation] of that order. The motion is made on the ground that a state of _________________ [new or different] _________________ [facts or circumstances or law] exists.

The motion is based on this notice of motion, on the declaration(s) of _________________ [name(s)], the memorandum of points and authorities served and filed herewith, on the records and file herein, [on such supplemental affidavits or declarations and memoranda of points and authorities as may subsequently be filed herein,] and on such evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [moving party]
[2]--Use of Form
The form of notice of motion in [1], above, is for use by any party affected by an order that was refused in whole or in part, or granted, or granted conditionally, or on terms, who seeks reconsideration of the order. The motion must be based upon new or different facts, circumstances, or law [see Code Civ. Proc. § 1008(a)[Deering's] ].
[3]--Accompanying Papers
For a form of declaration that may be adapted for use to support the motion for reconsideration, see § 374.61.

A memorandum of points and authorities must be filed and a copy served with the notice of motion [ Cal. Rules of Ct., Rule 313(a)[Deering's] ; see Code Civ. Proc. §§ 1005(b)[Deering's], 1010[Deering's] ; for discussion and forms, see Ch. 417, Points and Authorities].
[4]--Motion Made to Same Judge or Court
The application to reconsider may be made by a party to the same judge or court that made the order [ Code Civ. Proc. § 1008(a)[Deering's] , as amended by Stats. 1992, ch. 460, § 4 (formerly requiring application to the same judge)]. For further discussion, see § 374.19.
[5]--Time of Motion
The motion for reconsideration must be made within 10 days after the moving party has been served with written notice of entry of the prior order [ Code Civ. Proc. § 1008(a)[Deering's] ].
§ 374.63 Order Granting or Denying Renewed Motion or Motion for Reconsideration
[1]--FORM
Order Granting or Denying Renewed Motion or Motion for Reconsideration

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________


)NO. __________
_________________________ [name], )ORDER ON ______________
)_ [RENEWED MOTION or
)MOTION TO RECONSIDER] _
)______________
)[specify subject of
)order]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

The _________________ [renewed motion or motion to reconsider] brought by _________________ [identify party, e.g., defendant] _________________ [name] for an order _________________ [specify nature of underlying motion] came on regularly for hearing by the court on _________________ [date]. Plaintiff appeared by counsel _________________ [name]; defendant appeared by counsel _________________ [name].

On proof made to the satisfaction of the court that the motion ought to be _________________ [granted or denied],

[EITHER ]

IT IS ORDERED that the motion be, and hereby is, granted and _________________ [set out the particular order sought ].

[OR ]

IT IS ORDERED that the motion be, and hereby is, denied.

Dated: _________________.

_________________ [signature]
Judge of the _________________ Court
[2]--Use of Form
The form of order set out in [1], above, outlines the format requirements of an order granting or denying a renewed motion or motion for reconsideration [see Code Civ. Proc. §§ 1003[Deering's], 1064[Deering's] (order defined)].
[3]--Content
The form contains a caption [see Cal. Rules of Ct., Rules 201(f)[Deering's] ]. It identifies the moving party, the order sought, the date of the hearing, and the names of counsel for the appearing parties, and sets forth the particular order granted or the court's ruling denying the motion. The order is also dated and contains the judge's signature.

The order does not include findings in accordance with the general rule that, unless required by statute or case law with respect to a specific order, findings have no place in an order granting or denying a motion [see Ch. 372, Motions and Orders, § 372.21[18]].

Depending on the underlying motion, there may be particular requirements for the order. For illustrative forms of orders granting or denying specific motions, see appropriate chapters in this publication.
§ 374.64 Ex Parte Motion for Order and Order Revoking or Setting Aside Prior Order--Prior Order Obtained on Reapplication of Party Failing to Comply With Statutory Requirements [Code Civ. Proc. § 1008(a), (b), (d)]
[1]--FORM
Ex Parte Motion for Order and Order Revoking or Setting Aside Prior Order--Prior Order Obtained on Reapplication of Party Failing to Comply With Statutory Requirements [Code Civ. Proc. § 1008(a), (b), (d)]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



)NO. __________
_________________________ [name], )EX PARTE MOTION FOR
)ORDER REVOKING OR
)SETTING ASIDE PRIOR
)ORDER ON A ____________
)___ [RENEWED MOTION or
)MOTION TO RECONSIDER]
)AND ORDER
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

_________________ [Specify party, e.g., Defendant] in this matter hereby moves for an order revoking or setting aside the order of this court made herein by the Honorable _________________ [name] on _________________ [date]. This motion is made on the ground that _________________ [specify adverse party, e.g., plaintiff] in moving for the prior order failed to comply with the provisions of _________________ [ Code of Civil Procedure Section 1008(a)[Deering's] or Code of Civil Procedure Section 1008(b)[Deering's] ] and that, therefore, the order may, under the provisions of that section, be revoked or set aside. This motion is based on the following facts:

1. On _________________ [date], after hearing, the Honorable _________________ presiding, this court made an order _________________ [denying or denying in part or granting or granting conditionally or granting on terms] the motion of _________________ [specify adverse party, e.g., plaintiff] for an order _________________ [specify].

2. Thereafter, on or about _________________ [date], _________________ [specify adverse party, e.g., plaintiff] made a subsequent motion in this court for the same order sought by the prior motion based on an alleged _________________ [new or different] _________________ [facts or circumstances or law]. This motion was _________________ [e.g., granted] by the Honorable _________________, who ordered _________________ [specify]. It is this order which is sought to be revoked or set aside.

3. In making the subsequent motion for the same order, _________________ [specify adverse party, e.g., plaintiff] failed to comply with the requirements of _________________ [ Code of Civil Procedure Section 1008(a)[Deering's] or Code of Civil Procedure Section 1008(b)[Deering's] ] in that _________________ [specify, e.g., he/she/it failed to show by affidavit, declaration, or otherwise what application was made before, or when the application was made and to what judge, or what order or decisions were made on the application, or what new or different facts, circumstances, or law were claimed to be shown or all or any combination of these].

4. _________________ [Set forth, in as many separately numbered paragraphs as necessary, facts within personal knowledge of applicant establishing irreparable harm, immediate danger, or any other statutory basis for granting ex parte relief rather than setting the matter for hearing on noticed motion.]

5. The name, address and telephone number of the _________________ [attorney for the opposing party or opposing party], as known to me, is _________________ [set out name, address, and telephone number].

[EITHER]

6. On _________________ [date], at _________________ [time], I informed _________________ [name], _________________ [name of opposing party or attorney person to whom notice was given], the opposing _________________ [party or party's attorney], of the date, time and place that the above application for an order _________________ [specify order sought] would be made.

6. _________________ [Name of opposing party or attorney person to whom notice was given] informed me that _________________ [describe response to notice, including whether or not opposition is expected].

[OR]

6. I attempted, in good faith, to inform _________________[name], the opposing _________________ [party or party's attorney], of the time and place that the above application for an order _________________ [specify order sought] would be made. I was unable to do so even though _________________ [describe efforts made].

[OR]

6. Notice to the _________________ [name], the opposing _________________ [party or party's attorney], of the above application for an order _________________ [specify order sought] should not be required because _________________ [specify reason].

[CONTINUE]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: _________________.

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

[Add, if separate written order (see § 374.65) is not required by local court rule]

ORDER

On proof made to the satisfaction of the court, it is hereby ordered that the order of this court made by the undersigned on _________________ [date], _________________ [e.g., granting] the motion of _________________ [specify adverse party, e.g., plaintiff], and ordering that _________________ [specify], be, and hereby is, revoked and set aside.

Dated: _________________.

_________________ [signature]
Judge of the Superior Court
[2]--Use of Form
The form of ex parte motion in [1], above, is for use to secure an order revoking or setting aside a prior order secured by the adverse party on a renewed motion or motion for reconsideration that failed to comply with the requirements of Code Civ. Proc. § 1008[Deering's] [ Code Civ. Proc. § 1008(d)[Deering's] ].

For the format to follow when the facts supporting the granting of the order revoking or setting aside are set forth in a declaration separate from the motion itself, see Ch. 372, Motions and Orders, § 372.68. For a form of order granting the ex parte motion for use where local court rules require a separate written formal order, see § 374.65.

The moving party must generally give notify all parties no later than 10:00 a.m. the court day before to the ex parte appearance, and the application for the ex parte order must be accompanied by a declaration regarding notice [see Cal. Rules of Ct., Rule 379(b)[Deering's] ]. For discussion of the notice requirements and contents of an application for an ex parte order, see Ch. 372, Motions and Orders, § 372.19.
[3]--Power to Revoke, Set Aside, or Vacate Order for Noncompliance
The failure of a party who made a renewed motion based on an alleged different state of facts to make the showing by affidavit (or declaration) required by Code Civ. Proc. § 1008(b)[Deering's] is declared by that section to be a ground for revoking or setting aside, on ex parte motion, the order made on the renewed motion.

An order made contrary to any of the requirements of Code Civ. Proc. § 1008[Deering's] 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] ].
[4]--Cross References
Witkin, California Procedure, vol. 6, Proceedings Without Trial, §§ 44-50 (4th ed. 1997)
§ 374.65 Order Granting Ex Parte Motion to Revoke or Set Aside Prior Order Obtained on Reapplication of Party Failing to Comply With Statutory Requirements [Code Civ. Proc. § 1008(d)]
[1]--FORM
Order Granting Ex Parte Motion to Revoke or Set Aside Prior Order Obtained on Reapplication of Party Failing to Comply With Statutory Requirements [Code Civ. Proc. § 1008(d)]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



)NO. __________
_________________________ [name], )ORDER __________
)[REVOKING or SETTING
)ASIDE] PRIOR ORDER ON
)A __________[RENEWED
)MOTION or MOTION TO
)RECONSIDER]
Plaintiff,)Date: __________
vs. )Time: __________
_________________________ [name], )Location: __________
Defendant.)Judge: __________
)Date Action Filed: ____
)Trial Date: __________
)

Application having been made by _________________[specify moving party, e.g., plaintiff], and good cause appearing therefor,

IT IS ORDERED that the order of this court made by the undersigned on _________________ [date], _________________ [e.g., granting] the motion of _________________ [adverse party, e.g., defendant], and ordering _________________ [specify], be, and hereby is, revoked and set aside.

Dated: _________________.

_________________ [signature]
Judge of the Superior Court
[2]--Use of Form
The form of order in [1], above, is for use when the court grants the ex parte motion to revoke and set aside a prior order made on the reapplication of a party who failed to comply with the requirements of Code Civ. Proc. § 1008[Deering's] [see Code Civ. Proc. § 1008(d)[Deering's] ].

Unless a separate written order is required by local court rule, the order will normally appear at the end of the ex parte motion, as indicated in the form in § 374.64.
[3]--Filing and Service
If the judge signs the order, the originals of the ex parte motion and order will be filed. Counsel should have a clerk conform the copies, serve a copy of each on the adverse party, and prepare and file a proof of service.