Opinion
A132713
09-21-2011
AMY LYNN BAILLIE et al., Plaintiffs and Appellants, v. PROCESSING SOLUTIONS, LLC et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG07-327031)
INTRODUCTION
Last year we issued an unpublished opinion, Baillie v. Processing Solutions, LLC (May 27, 2010, A125167) (WL 2127000) (Baillie I), affirming the trial court's denial of a motion to compel arbitration filed by defendants and respondents Processing Solutions, LLC, et al. (collectively, Processing Solutions). In Baillie I, relying principally on Discover Bank v. Superior Court (2005) 36 Cal.4th 148 (Discover Bank), abrogated by AT&T Mobility LLC v. Concepcion et ux. (2011) 131 S.Ct. 1740 (Concepcion), we affirmed the trial court's order on the grounds that the arbitration agreement at issue was unconscionable, in part because it was a contract of adhesion containing a class action waiver. (See Baillie I, supra, at pp. *5-7.) The California Supreme Court denied review in Baillie I on August 11, 2010. This court issued the remitittur on August 13, 2010. In January 2011, the United States Supreme Court denied Processing Solutions' petition for writ of certiorari. (Processing Solutions, LLC et al., v. Baillie (2011) 131 S.Ct. 1003, 2011 U.S. Lexis 726.) In April 2011, the United States Supreme Court issued Concepcion.
On June 2, 2011, Processing Solutions filed in the trial court a renewed motion to compel arbitration, pursuant to Code of Civil Procedure section 1008, subdivision (b).In its renewed motion, Processing Solutions argued the trial court should stay the action and compel arbitration pursuant to the high court's decision in Concepcion, supra. Subsequently, the trial court denied Processing Solutions' renewed motion to compel arbitration. The trial court determined that the appeal process had run its course on the issue of whether arbitration should be compelled, and the "finality rule," as discussed in Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160), barred Processing Solutions from seeking arbitration a second time. On July 26, 2011, Processing Solutions filed a timely notice of appeal from the trial court's order denying its renewed motion to compel arbitration.
Further statutory references are to the Code of Civil Procedure unless otherwise noted.
On July 29, 2011, plaintiff and respondent Amy Baillie (Baillie) filed a motion to dismiss the appeal. Processing Solutions filed an opposition on August 15, 2011. We now grant Baillie's motion, and dismiss the appeal.
The record on appeal was filed in this court on July 27, 2011. A briefing schedule has not yet issued.
DISCUSSION
Baillie contends the appeal should be dismissed because the order at issue is not an appealable order under Code of Civil Procedure, section 904.1. According to Baillie, under prevailing case law trial court orders denying reconsideration are not appealable under any circumstances. Processing Solutions, on the other hand, asserts that such case authority only governs motions for reconsideration under section 1008, subdivision (a), and does not control the issue we confront here — whether orders denying renewed motions under section 1008, subdivision (b) are appealable. We find Processing Solutions' argument on this point unpersuasive.
Section 1008 provides in part: "(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." (Ibid.)
The weight of appellate authority in this state favors the rule that an order denying a motion for reconsideration is not appealable, even when the motion is based on new facts or law. In Powell v. County of Orange (2011) 197 Cal.App.4th 1573 (Powell), our colleagues in the Court of Appeal, Fourth District observed: "The majority of courts addressing the issue have concluded an order denying a motion for reconsideration is not appealable, even when based on new facts or law. (Citations) 'These courts have concluded that orders denying reconsideration are not appealable because 'Section 904.1 of the Code of Civil Procedure does not authorize appeals from such orders, and to hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal.' (Citation.)" (Powell, supra, 197 Cal.App.4th at pp. 1576-1577.) Indeed, Division Two of this court adhered to this view in Crotty v. Trader (1996) 50 Cal.App.4th 765. There, the court concluded reconsideration orders are non-appealable because otherwise a "party would have two appeals from the same decision." (Id. at p. 769.) We agree and conclude "an order denying a motion for reconsideration is not appealable, even when based on new facts or law." (Powell, supra, 197 Cal.App.4th at p. 1576.)
Moreover, in another recent decision, Tate v. Wilburn (2010) 184 Cal.App.4th 150 (Tate), the appellate court addressed the specific issue before us, concluding that reconsideration orders on motions filed pursuant to section 1008, subdivision (b), like those filed pursuant to section 1008, subdivision (a), are nonappealable. The court stated: "As indicated by the text of section 1008, motions for reconsideration under section 1008, subdivision (a), and renewed motions under section 1008, subdivision (b) are closely related. (Citation.) A party filing either a motion under section 1008, subdivision (a) or (b) is seeking a new result in the trial court based upon 'new or different facts, circumstances, or law.' (Citation.)" (Tate, supra, 184 Cal.App.4th at pp. 159-160.) The court further stated the policy underlying the rule that orders denying motions for reconsideration under section 1008, subdivision (a) are non-appealable — i.e., "to eliminate the possibilities that (1) a nonappealable order or judgment would be made appealable, (2) a party would have two appeals from the same decision, and (3) a party would obtain an unwarranted extension of time to appeal — apply with equal force to an order denying a renewed motion pursuant to section 1008, subdivision (b)." (Id. at p. 160 [italics added].) "Indeed," the court noted, "the possibility that a party may obtain an unwarranted extension of time to appeal is actually more of a concern with respect to a renewed motion under section 1008, subdivision (b), in light of the fact that such a motion may be brought at any time, while a motion for reconsideration [under subdivision (a)] must be brought 'within 10 days after service upon the party of written notice of entry of the [underlying] order.' (Citation.)" (Ibid.) We agree with the rationale expressed in the Tate decision and adopt it here.
Processing Solutions argues Tate does not control because Tate did not specifically address an appeal from a renewed motion to compel arbitration. However, the express language of section 1008 does not support Processing Solutions' assertion.
Based on the authorities discussed above, we conclude the trial court's order denying Processing Solutions' renewed motion to compel arbitration, filed pursuant to section 1008, subdivision (b), is a nonappealable order. Accordingly, Baillie's motion to dismiss is hereby granted.
We also reject Processing Solutions' subsidiary contentions. In this regard, Processing Solutions contends the trial court's order is appealable on its face under section 1294, subdivision (a). Whereas the trial court's original arbitration order was appealable under section 1294, the current appeal arises from a renewed motion filed pursuant to section 1008, subdivision (b). Thus, the trial court's order denying reconsideration is not appealable under section 1294. Processing Solutions also asserts Hayes Children Leasing Co. v. NCR Corp. (1995) 37 Cal.App.4th 775 (Hayes) is controlling law in this District and permits appeal from an order denying a renewed motion to compel arbitration. We disagree. Hayes did not address the question of whether a renewed motion to compel arbitration under section 1008(b) is appealable, (see Hayes, supra, 37 Cal.App.4th at pp. 779-780). Therefore, Hayes is inapposite on the question before us.
DISPOSITION
The appeal is dismissed. The parties shall each bear their costs on appeal.
Jenkins, J.
We concur:
McGuiness, P. J.
Siggins, J.