Summary Judgments Reconsidered
California Supreme Court resolves a conundrum involving second motions for
summary judgment
By Phyllis W. Cheng
 |
Cheng |
The California Supreme Court’s recent decision in Le Francois v.
Goel (Le Francois v. Goel, 35 Cal. 4th 1094 (2005)) resolved the
question about reconsideration of failed motions for summary judgment. Specifically,
the court addressed this question: Does a trial court have the inherent power
to rule on a second motion for summary judgment or, in the alternative, for
summary adjudication, even though the second motion did not meet the requirements
of Cal. Code. Civ. Proc. § 1008(a) relating to applications for reconsideration,
or the requirements of § 437c (f)(2) relating to motions for summary judgment
following an unsuccessful motion for summary judgment? (All further statutory
references are to Cal. Code Civ. Proc. unless otherwise indicated.)
Section 437c(f)(2) limits a party’s ability to renew a motion for summary
judgment. It provides: “[A] party may not move for summary judgment based
on issues asserted in a prior motion for summary adjudication and denied by
the court, unless that party establishes to the satisfaction of the court,
newly discovered facts or circumstances or a change of law supporting the issues
reasserted in the summary judgment motion.”
“Section 1008, the general statute governing motions for reconsideration,
allows the trial court to reconsider and modify, amend, or revoke its prior
order upon new or different facts, circumstances or law, or when the court
determines that there has been a change of law that warrants reconsideration
on its own motion. Like section 437c(f)(2), ‘[§] 1008 is designed to
conserve the court’s resources by constraining litigants who would attempt
to bring the same motion over and over.’ [Citation.]” (Schachter
v. Citigroup, 126 Cal. App. 4th 726, 735 (2005), citing Darling, Hall & Rae
v. Kritt, 75 Cal.App.4th 1148, 1157 (1999).)
Section 1008 provides: “(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 re-consider 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 § 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) This section applies to all applications for interim orders.”
In Le Francois, the trial court denied the original motion for summary
judgment filed by an employer and three of its officers in former employees’ action
alleging certain injurious misrepresentations and false promises by the officers.
The next year, the officers again moved for summary judgment based on the same
law and evidence. The trial court granted the second motion for summary judgment.
The Court of Appeal held that, although the second motion violated §§437c(f)(2)
and 1008, the trial court had inherent power to exercise its constitutionally
derived authority to reconsider the prior ruling and correct an error of law.
The Supreme Court granted review and reversed. (Le Francois, 35 Cal.
4th at 1097.)
Until Le Francois, there was a split of opinion about reconsideration
of unsuccessful motions for summary judgment. The earlier line of cases, including
the leading case of Scott Co. v. United States Fidelity & Guaranty Ins.
Co., found the jurisdictional limitation of § 1008(e) to be an impermissible
interference with the core functions of the judiciary. (Scott Co. v. United
States Fidelity & Guaranty Ins. Co., 107 Cal.App.4th 197, 207
(2003); see also Remsen v. Lavacot, 87 Cal.App.4th 421, 426-427 (2001)
[order granting interest to beneficiaries of trust properly modified]; Kollander
Construction Inc. v. Superior Court, 98 Cal.App.4th 304, 311-314 (2002)
[agreeing with Remsen but finding satisfaction of § 1008 requirements
in any event]; accord Blake v. Ecker, 93 Cal.App.4th 728, 739, n. 10
(2001), [inherent power to reconsider exists even after end of 10-day period
to bring motion]; Wozniak v. Lucutz, 102 Cal.App.4th 1031, 1042 (2002)
[irrelevant whether the court acts sua sponte or pursuant to a party’s
motion.])
These cases held that a trial court always has the inherent power under the
California Constitution to reconsider an interim ruling, a power that is “neither
confined by nor dependent on statute.” (Kollander Construction Inc.
v. Superior Court, 98 Cal.App.4th at 311; accord, Scott Co. v. United
States Fidelity & Guaranty Ins. Co., 107 Cal.App.4th 207 [jurisdictional
limitation of subdivision (e) constitutes an impermissible interference with
the core functions of the judiciary].) Under this scenario, failed summary
motions can be renewed by parties and reviewed by the court even without new
law or facts.
The later line of cases also supported the view that a court has the jurisdiction
to reconsider its earlier decisions. However, they differentiated between sua
sponte action by the court and actions by the parties that fall under an express
legislative determination. (See Darling, Hall & Rae, 75 Cal.App.4th
1148 [§ 1008 does not govern the trial court’s ability, on its own motion,
to re-evaluate its own interim rulings]; Case v. Lazben Financial Co.,
99 Cal.App.4th 172 (2002) [§ 1008 restricts only litigants’ motions,
not court’s sua sponte reconsideration of its own orders]; Bernstein
v. Consolidated American Ins. Co., 37 Cal.App.4th 763, 774 (1995), disapproved
on another ground in Vandenberg v. Superior Court, 21 Cal.4th 815, 841,
n. 13 (1999) [upon request for clarification, correction of prior ruling denying
summary adjudication permissible on court’s own motion]; Kerns v.
CSE Ins. Group, 106 Cal.App.4th 368 (2003) [§ 1008 was jurisdictional and
controlling only when a party has renewed a motion or requested reconsideration,
not when the trial court reconsiders its ruling sua sponte]; Abassi v. Welke, 118
Cal.App.4th 1353 (2004) [the trial court may sua sponte invite a second
summary judgment motion following its denial of a previous summary judgment
motion notwithstanding § 1008].)
Darling, Hall & Rae v. Kritt, for example, found the line of cases
holding § 1008 jurisdictional to be inapplicable, because § 1008(a) applies
only to applications made to the court by parties, not only by its very terms,
but also because the intent of the Legislature was “to conserve the court’s
resources by constraining litigants who would attempt to bring the same motion
over and over.” (Darling, Hall & Rae, 75 Cal.App.4th at 1157.)
The only requirement is that the trial court exercise due consideration before
modifying, amending, or revoking its prior orders. (Id.) Similarly, reconsideration
was deemed proper in Abassi v. Welke, where the court expressly invited
the parties to file a second summary judgment motion because it wanted to reassess
its prior ruling. (Abassi v. Welke, 118 Cal.App.4th at 1358)
More recently, Schachter v. Citigroup Inc. further explained: “the
Legislature enacted a specific limitation on the parties out of a concern for
abuse of the summary adjudication process, and the burden such motions can
impose on a party’s resources. The Legislature did not, however, attempt
to limit the court’s sua sponte authority. Thus, for example, were a
party to suggest that the court reconsider a motion, the court would have every
right to do so, even if that required the party to bring a new motion. In that
circumstance, the responding party would not bear the burden of preparing opposition
unless the court indicated an interest in reconsideration.” (Schachter
v. Citigroup, 126 Cal. App. 4th at 739.)
The California Supreme Court adopted the latter view in Le Francois.
It held that “sections 437c and 1008 limit the parties’ ability
to file repetitive motions but do not limit the court’s ability, on its
own motion, to reconsider its prior interim orders so it may correct its own
errors.” (Le Francois, 35 Cal. 4th at 1107) The court further
explained: “We cannot prevent a party from communicating the view to
a court that it should reconsider a prior ruling (although any such communication
should never be ex parte). We agree that it should not matter whether the ‘judge
has an unprovoked flash of understanding in the middle of the night’ [citation]
or acts in response to a party’s suggestion. If a court believes one
of its prior interim orders was erroneous, it should be able to correct that
error no matter how it came to acquire that belief . . . But a party may not
file a written motion to reconsider that has procedural significance if it
does not satisfy the requirements of § 437c, subdivision (f)(2), or 1008. The
court need not rule on any suggestion that it should reconsider a previous
ruling and, without more, another party would not be expected to respond to
such a suggestion.” (Id. at 1108.)
Operationally, the Le Francois court makes clear that “[u]nless
the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied,
any action to reconsider a prior interim order must formally begin with the
court on its own motion. To be fair to the parties, if the court is seriously
concerned that one of its prior interim rulings might have been erroneous,
and thus that it might want to reconsider that ruling on its own motion — something
we think will happen rather rarely — it should inform the parties of
this concern, solicit briefing, and hold a hearing. [Citations.] Then, and
only then, would a party be expected to respond to another party’s suggestion
that the court should reconsider a previous ruling. This procedure provides
a reasonable balance between the conflicting goals of limiting repetitive litigation
and permitting a court to correct its own erroneous interim orders.” (Id.
at 1108-1109.)
The Le Francois court resolved the role of parties and the court on
the reconsideration of summary judgment motions under §§ 437c and 1008. Any
party wishing to have a motion reconsidered should carefully consult the procedures
outlined in the decision.
- Phyllis W. Cheng is a senior appellate court attorney in the Second District
Court of Appeal. Her column, “Cases Pending Before the California Supreme
Court,” appears regularly in the California Labor and Employment Law
Review, the official publication of the State Bar Labor and Employment Law
Section.
Certification
- This self-study activity has been approved for Minimum Continuing Legal
Education credit by the State Bar of California in the amount of one hour
of legal education.
- The State Bar of California certifies that this activity conforms to
the standards for approved education activities prescribed by the rules and
regulations of the State Bar of California governing minimum continuing legal
education.
Self-Assessment Test
Indicate whether the following statements are true or false after reading
the MCLE article. Use the answer
form provided to send
the test, along with a $25 processing fee, to the State Bar. If you do not
receive your certificate within four to six weeks, call 415-538-2504.
- Unsuccessful summary motions can be renewed by parties and reviewed by
the court even without new law or facts.
- Cal. Code Civ. Proc. § 1008 allows the trial court to reconsider and modify,
amend or revoke its prior order upon new or different facts, circumstances
or law, or when the court determines that there has been a change of law.
- Section 437c(f)(2) places no limits on a party’s ability to renew
a motion for summary judgment.
- Section 1008 encourages the renewal of unsuccessful motions for summary
judgment.
- Scott Co. v. United States Fidelity & Guaranty Ins. Co., found
the jurisdictional limitation of § 1008(e) to be a proper constraint on the
core functions of the judiciary.
- In the earlier line of case law, failed summary motions could be renewed
by parties and reviewed by the court even without new law or facts.
- The later line of case law differentiated between sua sponte action by
the court and actions by the parties that fall under an express legislative
determination.
- Section 1008 is the general statute governing motions for reconsideration.
- Section 1008 allows the trial court to reconsider and modify, amend or
revoke its prior order only upon new or different facts, circumstances or law.
- It is improper for a court to expressly invite the parties to file a second
summary judgment motion in order to reassess its prior ruling.
- In enacting §§ 437c(f)(2) and 1008, the Legislature attempted to limit
the court’s sua sponte authority.
- Were a party to suggest that the court reconsider a motion, the court
would have every right to do so, even if that required the party to bring a
new motion.
- In Le Francois v. Goel, the issue was whether a trial court has
the inherent power to rule on a second motion for summary judgment or, in the
alternative, for summary adjudication, even though the second motion did not
meet the requirements of § 1008 (a) relating to applications for reconsideration,
or the requirements of § 437c (f)(2) relating to motions for summary judgment
following an unsuccessful motion for summary judgment.
- Le Francois held that §§ 437c and 1008 do not limit either the
parties’ ability to file repetitive motions or the court’s ability,
on its own motion, to reconsider its prior interim orders so it may correct
its own errors.
- The Legislature attempted to limit the court’s sua sponte authority
in rehearing unsuccessful motions for summary judgment.
- Sections 437c and 1008 limit the parties’ ability to file repetitive
motions.
- A party may be prevented from communicating the view to a court that it
should reconsider a prior ruling.
- Unless the requirements of §§ 437c(f)(2) or 1008 are satisfied, any action
to reconsider a prior interim order must formally begin with the court on its
own motion.
- The opposing party is always expected to respond to another party’s
suggestion that the court should reconsider a previous ruling.
- A court must base its decision to reconsider its prior ruling on the summary
judgment motion on the parties’ objections.
|