Summary
In International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 784, 786 [72 Cal. Rptr. 2d 849], a plaintiff successfully obtained reconsideration of a trial court's grant of summary adjudication, based on a request for the court to find a change of law under Code of Civil Procedure section 1008, subdivision (c).
Summary of this case from Farmers Ins. Exch. v. Superior Court of Cal.Opinion
Docket No. B116901.
March 26, 1998.
Appeal from Superior Court of Los Angeles County, Nos. C594148 and C597389, Valerie Lynn Baker, Judge.
COUNSEL
Thelen, Marrin, Johnson Bridges, Gary L. Fontana, Christine C. Franklin, Mary E. Wilcox, Gayle I. Jenkins, Dennis M. Naish, Musick, Peeler Garrett, Steven J. Elie, Purcell Wardrope and Sandra Young for Petitioners.
No appearance for Respondent.
Spriggs Hollingsworth, Marc S. Mayerson, Donald R. McMinn, Munger, Tolles Olson, Cary B. Lerman and Charles D. Siegal for Real Party in Interest.
OPINION
International Insurance Company sold several liability insurance policies to Rhone-Poulenc Basic Chemicals Company. In 1986, Rhone-Poulenc sued International over a coverage dispute about several third party environmental actions. In 1988, the coverage action was assigned to the Honorable G. Keith Wisot (now retired). In 1990, International prevailed on a motion for summary adjudication of issues. In 1994, Judge Wisot retired and the coverage cases were assigned to the Honorable Valerie L. Baker. In 1996, Rhone-Poulenc moved for reconsideration of Judge Wisot's summary adjudication order on the ground that two recent cases ( Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645 [ 42 Cal.Rptr.2d 324, 913 P.2d 878]; Homestead Ins. Co. v. American Empire Surplus Lines Ins. Co. (1996) 44 Cal.App.4th 1297 [ 52 Cal.Rptr.2d 268]) constituted a "change of law" within the meaning of Code of Civil Procedure section 1008, subdivision (c). In 1997, Judge Baker granted reconsideration and vacated Judge Wisot's summary adjudication ruling.
All section references are to the Code of Civil Procedure. The parties' names and their claims are reduced to the lowest common denomination.
Although an order made by one judge ordinarily cannot be reconsidered by another judge of the same court, the unavailability of the first judge (such as by retirement) authorizes a new judge to entertain the reconsideration motion ( Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 [ 254 Cal.Rptr. 410]).
International filed a petition for a writ of mandate, contending Judge Baker had no jurisdiction to reconsider Judge Wisot's ruling because there had not been a "change of law" within the meaning of section 1008 International's artfully crafted writ petition suggested that a 1992 amendment to section 1008 raised a significant issue, and we therefore issued an order to show cause and set the matter for hearing.
This is the sixth time this case has been before us. In 1991, there was International Ins. Co. v. Montrose Chemical Corp. (June 28, 1991) B052280 (nonpub. opn.). In 1992, on its way to the Supreme Court, there was Montrose Chemical Corp. v. Admiral Ins. Co.[*] (Cal.App.) In 1993, there were two appeals, Montrose Chemical Corp. v. Home Ins. (Apr. 28, 1993) B049974 (nonpub. opn.), and Montrose Chemical Corp. v. American Motorists Ins. Co.[†] (Cal.App.) In 1994, there was Montrose Chemical Corp. v. Superior Court (June 8, 1994) B076530 (nonpub. opn.). In 1995 and 1996, we had two years off for good behavior.
[*] Reporter's Note: Review granted May 21, 1992 (S026013).
[†] Reporter's Note: Review granted April 29, 1993 (S031548).
DISCUSSION
As enacted in 1978, section 1008 did not include a "change of law" provision. As amended, it does: "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." (Stats. 1992, ch. 460, § 4, pp. 1832-1833; § 1008, subd. (c).) Whatever confusion there might have been about other incomprehensible aspects of the statute's original hieroglyphics ( Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1199 [ 69 Cal.Rptr.2d 592]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 685-686 [ 68 Cal.Rptr.2d 228] ), we do not share International's view that an appellate Rosetta Stone is required to decipher "change of law." To the contrary, we think subdivision (c) of section 1008 means exactly what it says — when a trial court concludes there has been a change of law that warrants reconsideration of a prior order, it has jurisdiction to reconsider and change its order. International's contention that a "change of law" occurs only when the "controlling rules of law have been altered or clarified [so that] adherence to the previous decision would result in [the defeat of] a just cause" is creative but unnecessarily convoluted and wholly unsupported by any relevant authority.We see no reason why, without more, a trial court's decision about what is or isn't a "change of law" ought to justify writ relief, and International does not address this issue. (See Lackner v. LaCroix (1979) 25 Cal.3d 747, 753 [ 159 Cal.Rptr. 693, 602 P.2d 393] [an order denying summary adjudication is reviewable on appeal from the final judgment].) We seldom use extraordinary writs to review interlocutory summary adjudication orders (grants or denials) and we see no reason why, absent other compelling facts, we ought to use the writ procedure to review orders that grant or deny reconsideration of a summary adjudication order based upon a "change of law."
DISPOSITION
The petition for a writ of mandate is denied. Rhone-Poulenc is awarded its costs of these writ proceedings.
Spencer, P.J., and Masterson, J., concurred.