Remedies for Adverse Orders

What are the remedies for adverse rulings?

• Parties can request an appellate court review of the ruling. When this occurs, the appellate court examines the record to ensure that substantial evidence exists to support the court’s decision. This court review could take several forms, including:
• An appeal from the final judgment

• A writ petition

• An immediate direct appeal

• Statutory rights to restore specific motions that are not governed by section 1008 of the Code of Civil Procedure

• Parties can request reassessment of the order by the trial court’s motion.

• Pursuant to Code of Civil Procedure Section 1008, Parties can attempt to renew the original motion.

In summary, trial lawyers who find themselves on the losing side of a motion have options that are still evolving and being explored.

What are the different types of orders?

Typically, a judge or court makes or enters an order in writing. Orders, or “directions,” are usually not incorporated into the judgment.

Many directions are interlocutory and therefore are not dispositive of the action, for example, discovery orders.

However, other orders are dispositive and act as the judgment’s functional equivalent, effectively disposing of the action, for example, an order of dismissal.

Still, other orders come before the entry of a judgment, for example, an order sustaining an objection to a complaint without leave to amend. Based on this, some courts have decided that a motion can optimally address orders such as those permitting summary judgment for a new trial instead of a motion for reconsideration.

Some orders can be appealed instantly, which adds to the complex nature of dealing with adverse orders. For example, anti-SLAPP orders can be appealed immediately. The anti-SLAPP statute lets defendants try to dismiss a complaint at the start of a lawsuit before the discovery process begins.

Orders not immediately appealable can only be examined by a writ petition sent to the Court of Appeal, such as orders denying a motion to void the service of a summons.

Many orders can only be assessed through an appeal from the final judgment. Therefore, it is vital to one’s litigation practice to understand how to deal with an adverse order in appellate and trial courts.

What is a California 1008 motion for consideration?

The Code of Civil Procedure Section 1008 is a motion for reconsideration that attorneys must bring within a narrow timeframe: 10 days after notice of the order’s entry.

Section 1008 allows for three unique motions, and the Supreme Court has extended one motion into a more general, common-law request that allows trial courts to modify, reconsider or change its ruling at nearly any time, arguably without justification.

In summary, the Code of Civil Procedure 1008 can be used by attorneys as an important tool. Therefore, all trial lawyers should study and use Section 1008 while being aware that this vital section’s misuse can create sanctions.

How does one make a CCP 1008 motion for reconsideration of adverse orders?

The Code of Civil Procedure 1008 contains the procedures and standards for a motion for reconsideration. The motion may be brought by any party impacted by the order, regardless of whether or not the original motion was denied, granted, or granted conditionally.

In addition, the common motion of consideration must be:

• Filed within ten days of notice of entry of the order

• Accompanied by a declaration that states: “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.” (§ 1008, subd. (a)).

• Based on new or different laws, facts, or circumstances

• Brought before the same judge who made the initial order

Lastly, the courts also require that the motion reasonably explain the failure to deliver the evidence earlier.

How does a party apply to renew the prior motion?

Civil Procedure section 1008 allows the party that brought a motion that was completely refused, refused in part, or granted conditionally, depending on certain terms, to renew the motion for the same order. This renewed motion is in contrast to the standard motion for consideration.

The renewed motion must illustrate different or new facts, findings, circumstances, and laws, and it also needs to be accompanied by an affidavit that:

• Identifies the prior application

• Identifies the judge from the prior motion

• Includes what decisions or orders resulted from the first motion

• Includes what different facts, laws, and circumstances are now claimed in the new motion

In contrast to motions for reconsideration, renewed motions do not request that the court amend, revoke or change the prior order or decision. Instead, renewed motions are purely meant to renew the failed initial motion.

Importantly, even if the moving party accepts that the court’s first ruling was right, the moving party can file for renewal based on the fact that the initial ruling is shown to be flawed based on new and different facts or circumstances.

An additional contrasting point between a motion for reconsideration and a motion for renewal is that the party can only raise the motion for renewal if their original motion was partially or completely denied.

No time limit exists for a motion for renewal, and the new motion does not need to go before the same judge as the initial motion. Therefore, if new facts surface during the litigation process, a party can bring a motion for renewal at “any time” before the judgment is entered, even if the motion goes before a new judge and not the judge who denied the initial motion.

However, the phrase “any time” does have some caveats. If jurisdictional deadlines, for example, are attached to the motion, then the party must abide by those deadlines. Similarly, if statutory deadlines exist regarding the underlying motions, the party bringing a motion for renewal must abide by those deadlines.

Comparably, the court cannot reassess an order rejecting a motion for a new trial after the sixty-day jurisdictional period that allows the court to grant or deny that the motion has already passed.

Can a Trial Court Reconsider its Initial Ruling?

A trial court can reconsider its initial decision on its own motion and enter a new, different order. When a court reconsiders its ruling, it can do so whether it denied the initial ruling in whole or in part. The court has two sources of authority to use for such a reconsideration; one statutory and one created through case law, and each source has its own attributes.

The court’s statutory authority allows it to reassess the initial order and enter a new order if the court determines that a law or series of laws have changed, and these new laws alter the outcome of the decision.

More broadly, if the court decides its initial order was erroneous, it can reassess the initial decision and enter a new order based on its own motion.

However, when the court moves sua sponte—an action not requested by the prosecution or defense—to reconsider a prior order, it remains unresolved whether the court is limited to the facts established in the initial moving papers or if the court may rely on new information.

Past court decisions, such as Le Francois v. Goel, have shown that a trial court can grant reconsideration based on its motion only if it presumes its earlier ruling was erroneous. After that, the court may only change the ruling based on the original evidence.

However, since Le Francois, additional courts have widened the trial court’s authority to reassess its motions, deducing that a trial court can reassess an order of its motion when, for example, a party files a motion to consider improperly.

Can a party file a motion for reconsideration without using Section 1008?

Some statutory motions possess renewal rights established in the statute that authorize the motion, going beyond the opportunities provided by section Code of Civil Procedure 1008.

Suppose the court denies a party their motion for summary judgment, for example. In that case, the party may file for a summary adjudication based on new circumstances, facts, or a modification to the existing law.

What are appellate court remedies?

Appellate court remedies exist outside trial court remedies and can be used for adverse orders. However, it is key to note the differences between reviewing the initial order and reassessing the order rejecting a motion to reconsider the renewed motion.

In 2011, after years of conjecture in appellate courts, Section 1008 of the Code of Civil Procedure was revised to state that an order rejecting a motion for reconsideration is not independently appealable. However, the amendment also states that if the original order is appealable, the rejection of the reconsideration can be reassessed based on an appeal from that first order.

However, this 2011 amendment failed to solve all of Section 1008’s problems. The amendment does not apply to renewed motions, perhaps alluding to the fact that the Legislature sought to permit appeals from orders found in renewed motions.

In 2010, Tate v. Wilburn, the court maintained that orders rejecting motions could not be appealed for the same reasons that orders rejecting motions for reconsideration could not be appealed. However, that opinion arose before the 2011 amendment, and currently, no published opinion states whether direct appeals for or against renewals of orders are allowed.

Additionally, the 2011 amendment is ambiguous in suggesting that an appellate court can only reassess an order rejecting a motion to reassess an appealable order by appeal. If the statute says the order is appealable, then as a result, the order granting renewal or reconsideration; and entering a new order, is appealable.

If the court denied an anti-SLAPP motion, which is appealable, and then granted the motion, that new order would also be appealable. The scale of the review would involve the question of whether or not the renewal or reconsideration was correctly granted.

What is an appellate review of orders?

Another question that arises is how and when an original order can be reassessed. Many court orders are instantly appealable; therefore, the court cannot review the appeal from a terminal judgment. These include:

• Granting motion to void service of summons
• Denying certification of the entire class
• Denying or granting an anti-SLAPP motion
• Granting motion based on inconvenient forum to stay or dismiss
• Denying the motion to require arbitration
• Granting, dissolving, or denying any injunction
• Any order necessitating an instant monetary payment, including sanctions over $5,000
• Granting or denying a motion to disallow an attorney

Trial counsel must decide if the client can appeal an adverse order and then base their strategy on that decision. If the order cannot be appealed directly, the order can typically be reassessed by appeal of the final intermediate rulings until the case is resolved.

This reassessment can determine whether the trial court correctly granted or rejected the renewal under its own motion or in reference to section 1008.

When trial counsel is debating an appeal, reviewing the pre-trial orders for errors is wise since some orders may be prejudicial. For example, perhaps the court sustained an objection that was ultimately shown to be viable.

When can parties use a review by writ petition?

Numerous orders can only be reviewed with a writ petition to appellate court. These orders commonly include:

• Removing a Lis Pendens
• Approving a change of venue
• Deciding on a good faith settlement
• Approving a venue change

An order that is not instantly appealable and does not correspond to writ conditions can theoretically be reviewed by a writ of mandate.

While a trial court’s decision is highly prejudicial and can prevent a fair trial, the Court of Appeal might be disposed to intervene at the court’s discretion. Despite some difficulty, writs do happen, and the hope of winning a writ should not be abandoned without thorough consideration.

Do Remedies for Adverse Orders Exist?

Trial counsel must remember that an order is not the final word on the decision. In addition, there are many unique opportunities to challenge a trial court’s ruling on a motion. Thus, trial counsel should prudently evaluate and design a strategy to seize victory.