Cal. Code Civ. Proc. § 1008 Motion to Reconsider

The Truth News — Sun, 12 Dec 2021 00:31:47 +0000

Cal. Code Civ. Proc. § 1008 Section 1008

Motion to reconsider matter and modify, amend or revoke prior order

Motion for Reconsideration in California

Section 1008 - Motion to reconsider matter and modify, amend or revoke prior order

(a) When an application for an order has been made to a judge, or to a 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 upon the party of
written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the
same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party
making the application shall state 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decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or
on terms, 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. For a failure to comply with this
subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it
entered, it may do so on its own motion and enter a different order.(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition,
an order made contrary to this section 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.(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals
of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous
motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for
the renewal of a previous motion may be considered by any judge or court unless made according to this section.(f) For the purposes of this section, an alleged new or different law shall not include a later enacted statute without a
retroactive application.(g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the
order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable
as part of an appeal from that order.(h) This section applies to all applications for interim orders.

Ca. Civ. Proc. Code § 1008

Amended by Stats 2011 ch 78 (AB 1067),s 1, eff. 1/1/2012.

What Is a Motion for Reconsideration?

Section 1008 of the Code of Civil Procedure provides for reconsideration of court orders. A motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders. Morite of Calif. v. Super. Ct. (1993) 19 Cal.App.4th 485, 490.

The Court has inherent authority to reconsider any of its own rulings on its own motion provided that it gives the parties notice and a reasonable opportunity to litigate the issue. Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1109.

“The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.” Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶9:328, p.9(I)-148 citing Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (Gilberd), et al.

“A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” Code of Civ. Proc., § 1008(b).

To be entitled to reconsideration, a party must show new or different facts and a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.

“The burden under § 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. Case law after the 1992 amendments to § 1008 has relaxed the definition of ‘new or different facts,’ but it is still necessary that the party seeking that relief offer some fact or circumstance not previously considered by the court.” New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.

A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

“When an application for an order has been made to a judge, or to a 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 upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state 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.” Code of Civ. Proc., § 1008(a). cited https://trellis.law/ca/motion-type/motion-to-reconsider-california-45

What will a judge consider in a Motion for Reconsideration?

The exact factors a judge will consider when deciding whether to grant your Motion for Reconsideration will depend on your state’s laws. Generally, a judge will consider factors such as whether:

there is new evidence that is significant to the legal issue and was not available when the case ended, despite your best efforts to get that evidence;
the final decision was made after an incorrect interpretation of the law or the law has changed since the judge made his/her final decision; and
denying the Motion for Reconsideration will result in an obvious injustice.

California Code of Civil Procedure section 1008.

(a) When an application for an order has been made to a judge, or to a 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 upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state 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.

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section 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.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(f) For the purposes of this section, an alleged new or different law shall not include a later enacted statute without a retroactive application.

(g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.

(h) This section applies to all applications for interim orders. cited https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=1008.

(Amended by Stats. 2011, Ch. 78, Sec. 1. (AB 1067) Effective January 1, 2012.)

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