Stanford Law School - Robert Crown Law Library

Filed 6/9/05 (reposted 6/10/05 to correct clerical error showing Kennard, J. as concurring in maj. opn.)

IN THE SUPREME COURT OF CALIFORNIA

PHILIP LE FRANCOIS et al.,
Plaintiffs
and
Appellants,
S126630
v.
) Ct.App.
6
H025213
PRABHU GOEL et al.,
Santa Clara County
Defendants and Respondents. )
Super. Ct. No. CV787632

In this lawsuit, defendants moved for summary judgment. The trial court
denied the motion. More than a year later, some of the defendants again moved
for summary judgment on the same grounds. The court granted the second
motion. We must decide whether the court had authority to consider the new
motion even though it was not based on either new facts or new law. Code of
Civil Procedure sections 437c, subdivision (f)(2), and 1008 seemingly prohibit a
party from making such a new motion.1 The Court of Appeal held that the trial
court had inherent power derived from the California Constitution to consider the
second motion notwithstanding any statutory limitation.
We conclude that sections 437c, subdivision (f)(2), and 1008 prohibit a
party from making renewed motions not based on new facts or law, but do not
limit a court’s ability to reconsider its previous interim orders on its own motion,

1
All further statutory citations are to the Code of Civil Procedure.
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as long as it gives the parties notice that it may do so and a reasonable opportunity
to litigate the question. So interpreted, the statutes are constitutional.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs Philip Le Francois and Eric Herald sued their former employer,
Duet Technologies, Inc., and three officers of that company, claiming that the
officers had made certain injurious misrepresentations and false promises. All
defendants moved for summary judgment or, in the alternative, summary
adjudication (hereafter simply summary judgment). The trial court denied the
motion, ruling that plaintiffs had raised a triable issue of material fact. Over a year
later, the individual defendants filed a new motion for summary judgment based
on the same grounds as the first motion. Plaintiffs opposed the motion on
substantially the same basis that they opposed the first motion. They also objected
that the second motion was impermissible under section 437c, subdivision (f)(2).
The second motion was originally scheduled to be heard by the judge who had
heard the first motion, but, without objection, it was transferred to another judge.
The second judge granted the new motion and later entered judgment in favor of
the individual defendants.2
Plaintiffs appealed. The Court of Appeal affirmed the judgment. It
concluded that because the second motion was based on the same law and
evidence as the first motion, the motion violated sections 437c, subdivision (f)(2),
and 1008. It also concluded, however, that the trial court had “inherent power to
rule upon the second motion even if it was not based upon new facts or law,” and
this “inherent power does not depend on statute, nor may a statute confine it.”

2
The Court of Appeal held that because the motion was transferred without
objection, plaintiffs could not challenge the propriety of that transfer on appeal.
This issue is not before us on review, and we express no opinion on when and
under what circumstances one judge may revisit a ruling of another judge.
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Accordingly, it held “that notwithstanding either section 1008 or section 437c
(f)(2), [the second judge] had inherent power to exercise his ‘constitutionally
derived authority to reconsider the prior interim ruling and correct an error of law
on a dispositive issue.’ ” (Quoting Scott Co. v. United States Fidelity & Guaranty
Ins. Co. (2003) 107 Cal.App.4th 197, 212.)
We granted plaintiffs’ petition for review to decide whether the trial court
had authority to consider and grant the individual defendants’ second motion for
summary judgment.
II. DISCUSSION
A. Background
Two statutes are relevant here: sections 437c, subdivision (f)(2), and 1008.
Section 437c contains detailed procedures governing motions for summary
judgment. Subdivision (f)(2) is merely a small part of that section. As relevant,
that subdivision provides that “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.” This language was added in 1990,
effective January 1, 1991, “to make the summary judgment process more efficient
and to reduce the opportunities for abuses of the procedure.” (Bagley v. TRW, Inc.
(1999) 73 Cal.App.4th 1092, 1096, fn. 3, citing Sen. Rules Com., Off. of Sen.
Floor Analyses, rev. of Sen. Bill No. 2594 (1989-1990 Reg. Sess.), Aug. 23, 1990;
see Stats. 1990, ch. 1561, § 2, p. 7332.)
Section 1008 more generally states procedures for applications to
reconsider any previous interim court order. It “applies to all applications for
interim orders” (§ 1008, subd. (g)) and provides time limits and other requirements
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for such applications. It contains several provisions relevant here. It generally
requires that any motion for reconsideration be based “upon new or different facts,
circumstances, or law . . . .” (§ 1008, subds. (a), (b).) It also provides: “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.” (§ 1008, subd. (c).) Finally, it provides: “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.” (§ 1008, subd. (e),
italics added.)
Subdivisions (c) and (e) of section 1008 were added in 1992, effective
January 1, 1993. (Stats. 1992, ch. 460, § 4, pp. 1832-1833.) Legislative findings
state that the 1992 amendment was intended to clarify that no motion to reconsider
may be heard unless it is based on new or different facts, circumstances, or law,
and that the Legislature found it desirable “to reduce the number of motions to
reconsider and renewals of previous motions heard by judges in this state.” (Stats.
1992, ch. 460, § 1, p. 1831; see Garcia v. Hejmadi (1997) 58 Cal.App.4th 674,
688; Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 491-492.)
Before these changes, section 1008 “purported to be neither jurisdictional nor
exclusive.” (Kollander Construction, Inc. v. Superior Court (2002) 98
Cal.App.4th 304, 310, and cases cited therein.)
One court has said that cases involving repeated summary judgment
motions “must be decided by the specific requirements of the summary judgment
statute [section 437c], not the general provisions of the reconsideration statute
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[section 1008].” (Bagley v. TRW, Inc., supra, 73 Cal.App.4th at p. 1096, fn. 3; see
also Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738.) This
conclusion certainly seems logical. But for present purposes it does not
particularly matter, for the two statutes say essentially the same thing: A repeated
motion or motion for reconsideration must be based on new facts or law. As we
discuss further in part II. C., post, any language differences between the statutes
do not warrant different treatment of the issue before us.
The Court of Appeal found that the second summary judgment motion at
issue here was based on the same law and evidence as the first motion and hence
violated sections 437c and 1008. We did not grant review on this question and,
accordingly, we accept the Court of Appeal’s finding in this regard. (See People
v. Weiss (1999) 20 Cal.4th 1073, 1076-1077.) The question we must decide is the
significance of this finding. Specifically, we must decide whether the trial court
had authority to consider, and then grant, the second summary judgment motion
notwithstanding the provisions of sections 437c and 1008.
At first, the cases interpreting these statutes as amended in the 1990’s
generally held that a trial court has no authority or, as some of the cases phrased it,
jurisdiction to consider a motion that violated section 437c or 1008. (Bagley v.
TRW, Inc., supra, 73 Cal.App.4th at pp. 1096-1097 [§ 437c]; Pazderka v.
Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 669-670 [§ 1008];
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1195-1201
[§ 1008]; Garcia v. Hejmadi, supra, 58 Cal.App.4th at pp. 690-691 [§ 1008];
Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1498-1502 [§ 1008]; Morite of
California v. Superior Court, supra, 19 Cal.App.4th at pp. 490-493 [§ 1008]; but
see Bernstein v. Consolidated American Ins. Co. (1995) 37 Cal.App.4th 763, 774
[finding the requirements of § 437c were met, but also noting that the court was
merely “correcting an erroneous ruling on its own motion”].) Only the most
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recent of these cases considered whether separation of powers principles prevent
the Legislature from imposing this limitation, and that case summarily rejected
that conclusion. (Bagley v. TRW, Inc., supra, 73 Cal.App.4th at p. 1097, fn. 5 [“a
court does not have the inherent power to act in a manner that is prohibited by
statute”].)
One of these decisions recognized problems with its conclusion that the
trial court could not correct its mistakes, but felt powerless to rule otherwise. “We
are not unmindful of the awkward consequences likely to flow from this holding,
which will in some instances bar trial judges from correcting rulings belatedly
shown to be erroneous. Judicial inefficiencies may also result from the need for
an appeal that would not have been required if correction could have been made
by a trial court willing to do so. These problems stem not from our holding,
however, but by the 1992 amendment to section 1008, which solved one set of
problems by possibly creating another. Given the jurisdictional nature of the
present statute, these new problems are not amenable to a judicial solution. The
answer, if there is one, will have to come from the Legislature.” (Baldwin v.
Home Savings of America, supra, 59 Cal.App.4th at p. 1200, fn. 10.)
More recent cases have taken different approaches and concluded that, to
some extent at least, sections 437c and 1008 violate separation of powers
principles, or would do so if interpreted to limit the trial court’s power to act.
These cases generally are of two types.
One line of cases concluded that the statutes limit only the parties’ ability to
bring renewed motions, and they do not limit the court’s power to reconsider its
rulings on its own motion. Typical is Darling, Hall & Rae v. Kritt (1999) 75
Cal.App.4th 1148, which found the “line of cases holding Code of Civil Procedure
section 1008 is jurisdictional to be inapplicable because section 1008 does not
govern the court’s ability, on its own motion, to reevaluate its own interim rulings.
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[Citation.] Instead, the trial court retains the inherent authority to change its
decision at any time prior to the entry of judgment. [Citation.] Section 1008 is
designed to conserve the court’s resources by constraining litigants who would
attempt to bring the same motion over and over. On the other hand, these same
judicial resources would be wasted if the court could not, on its own motion,
review and change its interim rulings.” (Id. at pp. 1156-1157; to similar effect see
also Schachter v. Citigroup, Inc., supra, 126 Cal.App.4th 726; Abassi v. Welke
(2004) 118 Cal.App.4th 1353, 1359-1360; Kerns v. CSE Ins. Group (2003) 106
Cal.App.4th 368, 380-391; Case v. Lazben Financial Co. (2002) 99 Cal.App.4th
172, 178-189; People v. Castello (1998) 65 Cal.App.4th 1242, 1248-1250 [dicta].)
Another line of cases rejected the distinction between a party’s motion and
the court’s ability to act on its own motion. These cases concluded that a trial
court has inherent power to reconsider its prior interim orders, either on its own
motion or on motion of a party, and the statutes violate separation of power
principles to the extent they limit this power. The first of these cases was Remsen
v. Lavacot (2001) 87 Cal.App.4th 421, which found that whether the court acted
sua sponte or in response to a litigant’s motion “to be a distinction without a
difference. Whether the trial judge has an unprovoked flash of understanding in
the middle of the night or is prompted to rethink an issue by the stimulus of a
motion is ‘constitutionally immaterial’ to the limitation on the power of the
Legislature to regulate the judiciary.” (Id. at p. 427.) Some of the most recent
decisions have followed this reasoning. (Scott Co. v. United States Fidelity &
Guaranty Ins. Co., supra, 107 Cal.App.4th at pp. 205-212; Wozniak v. Lucutz
(2002) 102 Cal.App.4th 1031, 1041-1042; Kollander Construction, Inc. v.
Superior Court, supra, 98 Cal.App.4th at pp. 310-314; Blake v. Ecker (2001) 93
Cal.App.4th 728, 739, fn. 10.) The Court of Appeal here agreed with these cases.
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Thus the questions are squarely presented: May a trial court reconsider
interim orders it has already made in the absence of new facts or new law? If so,
may it do so only on its own motion, or may a party move for reconsideration?
Because separation of power principles are pertinent to the question, we next
discuss the relevant principles as they have developed in California. Then, with
these principles in mind, we will turn to the correct interpretation and application
of sections 437c and 1008.
B. Separation of powers principles
In recent years, this court has had several occasions to consider principles
of separation of powers as they relate to the relationship between the legislative
and judicial branches. (E.g., People v. Bunn (2002) 27 Cal.4th 1, 14-17; Obrien v.
Jones (2000) 23 Cal.4th 40, 47-49; Superior Court v. County of Mendocino (1996)
13 Cal.4th 45, 52-59 (County of Mendocino).) The case most instructive here is
County of Mendocino, supra, 13 Cal.4th 45. There, the question was whether the
Legislature had impermissibly infringed on judicial powers when it enacted
legislation authorizing counties to designate unpaid furlough days on which the
courts must be closed. (Id. at p. 48.) We concluded the Legislature acted within
its power. Largely from this case, but also from the others, we can distill the basic
principles we must consider in deciding whether the Legislature impermissibly
infringed on judicial powers when it amended sections 437c and 1008 in the
1990’s.
“From its inception, the California Constitution has contained an explicit
provision embodying the separation of powers doctrine.” (County of Mendocino,
supra, 13 Cal.4th at p. 52.) That Constitution apportions the powers of state
government among the three branches familiar to all students of government in
this country—legislative, executive, and judicial—and states that “[p]ersons
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charged with the exercise of one power may not exercise either of the others
except as permitted by this Constitution.” (Cal. Const., art. III, § 3.) Despite the
apparent sharp division of powers among the governmental branches that the
California Constitution provides, in reality the branches are mutually dependent in
many respects, and the actions of one branch may significantly affect another
branch. (County of Mendocino, supra, at p. 52.) “Indeed, upon brief reflection,
the substantial interrelatedness of the three branches’ actions is apparent and
commonplace: the judiciary passes upon the constitutional validity of legislative
and executive actions, the Legislature enacts statutes that govern the procedures
and evidentiary rules applicable in judicial and executive proceedings, and the
Governor appoints judges and participates in the legislative process through the
veto power. Such interrelationship, of course, lies at the heart of the constitutional
theory of ‘checks and balances’ that the separation of powers doctrine is intended
to serve.” (Id. at pp. 52-53, italics added.)
“At the same time, this doctrine unquestionably places limits upon the
actions of each branch with respect to the other branches.” (County of Mendocino,
supra, 13 Cal.4th at p. 53.) The Constitution “vest[s] each branch with certain
‘core’ [citation] or ‘essential’ [citation] functions that may not be usurped by
another branch.” (People v. Bunn, supra, 27 Cal.4th at p. 14.) In County of
Mendocino, we discussed several earlier cases “that addressed the subject of
‘inherent judicial power’ and the validity of legislative actions relating to the
judicial branch.” (County of Mendocino, supra, at p. 53.) We quoted especially
pertinent language from one of those cases: “ ‘Of necessity, the judicial
department as well as the executive must in most matters yield to the power of
statutory enactments. [Citations.] The power of the legislature to regulate
criminal and civil proceedings and appeals is undisputed.’ ” (County of
Mendocino, supra, at p. 54, quoting Brydonjack v. State Bar (1929) 208 Cal. 439,
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442-443, italics added.) But this power has limitations. “ ‘The sum total of this
matter is that the legislature may put reasonable restrictions upon constitutional
functions of the courts provided they do not defeat or materially impair the
exercise of those functions. This power has been described as follows: “ . . . [T]he
mere procedure by which jurisdiction is to be exercised may be prescribed by the
Legislature, unless, indeed, such regulations should be found to substantially
impair the constitutional powers of the courts, or practically defeat their exercise.”
[Citations.]’ ” (County of Mendocino, supra, at p. 54, quoting Brydonjack v. State
Bar, supra, at p. 444, italics added in County of Mendocino.)
After reviewing these earlier decisions, we stated the basic test: “[T]he
Legislature generally may adopt reasonable regulations affecting a court’s inherent
powers or functions, so long as the legislation does not ‘defeat’ or ‘materially
impair’ a court’s exercise of its constitutional power or the fulfillment of its
constitutional function.” (County of Mendocino, supra, 13 Cal.4th at pp. 58-59;
see also People v. Bunn, supra, 27 Cal.4th at p. 16.)3 One of the core judicial
functions that the Legislature may regulate but not usurp is “the essential power of
the judiciary to resolve ‘specific controversies’ between parties.” (People v. Bunn,
supra, at p. 15; see also id. at p. 22.)

3
In County of Mendocino, we also noted that one of the earlier cases,
Millholen v. Riley (1930) 211 Cal. 29, 34, had said that the Legislature may
regulate the courts’ operation “so long as their efficiency is not thereby impaired.”
(County of Mendocino, supra, 13 Cal.4th at p. 59, fn. 6; see also Walker v.
Superior Court (1991) 53 Cal.3d 257, 267 [quoting the same language from
Millholen].) We explained, however, that this language did not mean that a statute
is unconstitutional whenever “it increases a court’s burden or makes the court less
‘efficient.’ ” (County of Mendocino, supra, at p. 59, fn. 6.) Instead, “[w]hen the
decisions discussed above are read as a whole, it is readily apparent that the
standard they have embraced is one that looks to whether the legislation ‘defeats’
or ‘materially impairs’ a court’s ability to perform its constitutional functions.”
(Ibid.)
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In sum, the separation of powers test applicable here can be stated quite
simply: The Legislature may regulate the courts’ inherent power to resolve
specific controversies between parties, but it may not defeat or materially impair
the courts’ exercise of that power. With this test in mind, we next consider how to
interpret and apply sections 437c and 1008 in this case.
C. Interpretation and application of sections 437c and 1008
Plaintiffs urge us to adopt the line of cases represented by Kerns v. CSE Ins.
Group, supra, 106 Cal.App.4th 368, which holds that sections 437c and 1008
validly limit the parties’ ability to make repetitive motions but do not limit the
court’s authority to act on its own motion. They argue that this line of cases
“strikes the right balance between permissible legislation affecting court
procedures and protection of the inherent power of the court to revisit a prior
interim ruling on its own.” Defendants urge us to adopt the view of the Court of
Appeal here and the cases it relies on, which hold that notwithstanding sections
437c and 1008, a trial court has the inherent authority to revisit its previous orders,
whether the court acts on its own motion or on motion of a party. They argue that
“the line plaintiffs draw between impermissible action by a court on a party’s
initiative and permissible action by a court on its own makes no constitutional
sense. What is determinative is whether there is error to correct, not who discerns
the error’s existence.” We agree with plaintiffs.
Sections 437c and 1008 clearly limit the parties’ ability to file repetitive
motions. To the extent they only do that, they come within the Legislature’s
authority to enact statutes affecting the judicial branch. As one recent case noted,
“one need only peruse the Code of Civil Procedure to be reminded that numerous
statutes govern the procedures litigants must follow in the courts of this state.”
(Case v. Lazben Financial Co., supra, 99 Cal.App.4th at p. 184.) The separation
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of powers limitation on the Legislature’s power to regulate procedure is narrow.
Chaos could ensue if courts were generally able to pick and choose which
provisions of the Code of Civil Procedure to follow and which to disregard as
infringing on their inherent powers. The same concern applies to the Evidence
Code, which, after all, generally limits a court’s ability to consider evidence. In
most matters, the judicial branch must necessarily yield to the legislative power to
enact statutes. (County of Mendocino, supra, 13 Cal.4th at p. 54, citing
Brydonjack v. State Bar, supra, 208 Cal. at pp. 442-443.) Only if a legislative
regulation truly defeats or materially impairs the courts’ core functions, including,
as relevant here, their ability to resolve controversies, may a court declare it
invalid.
We agree with the court in Kerns v. CSE Ins. Group, supra, 106
Cal.App.4th at page 389, that “by eliminating the distinction between a trial
court’s action taken sua sponte and that made in response to a litigant’s motion,
the more recent cases such as Remsen and Wosniak go too far toward eviscerating
the clear jurisdictional language of section 1008, essentially rendering the
provisions of the statute meaningless.” This discussion would also apply to
section 437c. These statutes serve a purpose. They are “designed to conserve the
court’s resources by constraining litigants who would attempt to bring the same
motion over and over.” (Darling, Hall & Rae v. Kritt, supra, 75 Cal.App.4th at p.
1157.) Limiting the parties’ ability to file repetitive motions does not defeat, or
even materially impair, the court’s power to resolve specific controversies
between parties. Indeed, such a limitation might increase the courts’ efficiency.
Accordingly, we uphold the statutes to the extent they apply to motions filed by
the parties.
Whether these statutes can validly limit the court’s authority to act on its
own motion to correct its own errors presents quite a different question. Such a
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limitation might go too far. If interpreted to limit the court’s ability to reconsider
its own rulings, these statutes might, as one court concluded, “emasculate the
judiciary’s core power to decide controversies between parties. The legislative
restriction of a court’s ability to sua sponte reconsider its own rulings is not merely
a reasonable regulation on judicial functions. Instead, such a restriction would
directly and materially impair and defeat the court’s most basic functions,
exercising its discretion to rule upon controversies between the parties and
ensuring the orderly administration of justice. Courts are empowered to decide
controversies, a power derived from the state constitution. We are hard pressed to
conceive of a restriction that goes more directly to the heart of a court’s
constitutionally mandated functions. Under [a strict] reading, if a court realizes it
has misunderstood or misapplied the law, it is prohibited from revisiting its ruling,
whether it realizes its mistake 10 minutes or 10 days later, and no matter how
obvious its error or how draconian the effects of its misstep. ‘A court could not
operate successfully under the requirement of infallibility in its interim rulings.
Miscarriage of justice results where a court is unable to correct its own perceived
legal errors . . . .’ ” (Case v. Lazben Financial Co., supra, 99 Cal.App.4th at p.
185.)
But we need not decide this constitutional question. Consistent with our
common practice of construing statutes, when reasonable, to avoid difficult
constitutional questions (see Myers v. Philip Morris Companies, Inc. (2002) 28
Cal.4th 828, 846-847), we interpret the statutes the way many Courts of Appeal
have done—as imposing a limitation on the parties’ ability to file repetitive
motions, but not on the court’s authority to reconsider its prior interim rulings on
its own motion.4 Section 437c, subdivision (f)(2), can easily be so interpreted. On

4
What we say about the court’s ability to reconsider interim orders does not
necessarily apply to final orders, which present quite different concerns.
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its face, that subdivision merely says that “a party may not” make a motion that
violates its provisions. (Italics added.) It says nothing limiting the court’s ability
to act.
The question is a bit more complex regarding section 1008. In two ways
that statute and its legislative history suggest that it has a broader meaning and
does restrict the court’s authority to act on its own. (See Case v. Lazben Financial
Co., supra, 99 Cal.App.4th at p. 188.) First, section 1008, subdivision (c), added
at the same time as subdivision (e), states that a court may reconsider a prior order
on its own motion if it determines the law has changed. This subdivision contains
a negative implication that the court may not reconsider such an order absent a
change in the law. (See Clark v. Burleigh (1992) 4 Cal.4th 474, 489.) “The
expression of some things in a statute necessarily means the exclusion of other
things not expressed.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 852.) Second, at one
stage of the legislative process, the bill was amended in the Senate to expressly
provide that section 1008 “shall not be construed to limit in any manner the right
of a judge to exercise his or her own discretion in reconsidering any order he or
she may have issued.” (Sen. Amend. to Sen. Bill No. 1805 (1991-1992 Reg.
Sess.) Apr. 21, 1992.) This amendment was later deleted in the Assembly,
suggesting the Legislature may have wanted to limit the right of judges to act on
their own. (Assem. Amend. to Sen. Bill No. 1805 (1991-1992 Reg. Sess.) July 9,
1992.)
But these circumstances are not conclusive. The deletion of the amendment
in the Assembly may have implied an intent to limit the court’s authority, but it
may instead merely have reflected “an assessment that the discretionary language
was superfluous.” (People v. Castello, supra, 65 Cal.App.4th at pp. 1249-1250,
fn. 7.) Moreover, if subdivision (c) of section 1008 contains a negative
implication, so, too, does subdivision (e) of that section, but one that points in the
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opposite direction as subdivision (c). Subdivision (e), the only part of section
1008 that expressly limits the court’s jurisdiction, speaks only of the court’s
reconsideration of a party’s motion and does not mention the court’s ability to act
on its own. Thus, its negative implication is that the Legislature did not intend any
greater limitation on the court’s jurisdiction. The maxim that the expression of
some things necessarily means the exclusion of things not expressed is not
immutable. (People v. Anzalone (1999) 19 Cal.4th 1074, 1078-1079.) Here, we
cannot give effect to both contradictory negative implications. Subdivision (e),
the one dealing with the scope of the court’s jurisdiction, supports a narrow
interpretation of the statute more strongly than subdivision (c) supports a broad
interpretation. As one court noted, “[t]he plain language of section 1008
consistently refers to ‘applications’ for reconsideration and ‘renewals’ of previous
motions.” (Case v. Lazben Financial Co., supra, 99 Cal.App.4th at p. 186.)
“Clearly, trial courts do not make applications, motions, or renewals of motions to
themselves.” (Id. at p. 187.)
Moreover, we see no hint that the Legislature wanted to hinder the courts’
ability to act rather than merely protect them from repetitive motions, or that it
intended, as one court phrased it, to “solve[] one set of problems by possibly
creating another.” (Baldwin v. Home Savings of America, supra, 59 Cal.App.4th
at p. 1200, fn. 10.) “[T]he stated legislative purpose behind the 1992 amendment
to section 1008 was to conserve judicial resources. . . . This legislative purpose is
advanced if section 1008 is understood to apply to the actions of the parties, not to
a court’s sua sponte reconsideration of its own interim order. When the court rules
upon a party’s motion, it is to be expected that the losing party will often feel the
court has erred, and therefore may be inclined to seek reconsideration if such a
procedure is readily available. Thus, absent section 1008, trial courts might find
themselves inundated with reconsideration motions requiring that they rehash
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issues upon which they have already ruled and about which they have no doubt.
Section 1008, properly construed, protects trial courts from being forced to
squander judicial time in this fashion. We think it would be a much less common
occurrence, however, that a trial court would sua sponte conclude that its prior
ruling was erroneous and seek to modify it. Forcing the parties to proceed where
there is recognized error in the case would result in an enormous waste of the
court’s and the parties’ resources.” (Case v. Lazben Financial Co., supra, 99
Cal.App.4th at p. 187.)
This construction of the statutes also reconciles the earlier cases that had
interpreted them as limiting the courts’ jurisdiction. “Significantly, all of these
cases involved situations in which the disputed reconsideration, modification or
reversal of a prior interim order was brought about upon the motion of a party
litigant, and not by the trial court acting on its own motion. [Citations.] None of
these cases addressed the specific question of whether and to what extent section
1008 may impair a trial court’s inherent constitutional power sua sponte to
reconsider, correct and change its own interim decisions.” (Kerns v. CSE Ins.
Group, supra, 106 Cal.App.4th at pp. 390-391, fn. omitted.)
For these reasons, we distinguish, but do not disapprove, the early cases,
beginning with Morite of California v. Superior Court, supra, 19 Cal.App.4th 485,
that held that sections 437c and 1008 limit the court’s power (or jurisdiction) to
reconsider motions by the parties. We agree with the later line of cases, beginning
with Darling, Hall & Rae v. Kritt, supra, 75 Cal.App.4th 1148 (and, in dicta,
People v. Costello, supra, 65 Cal.App.4th 1242), that interpreted the statutes as
limiting the parties’ power to file repetitive motions but not the court’s authority to
reconsider interim rulings on its own motion. Finally, we disapprove, to the extent
they are inconsistent with this opinion, the line of cases that found the statutes
unconstitutional even to the extent they limit the parties’ ability to file repetitive
16

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motions.5 We hold 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.
One court found the distinction between a court’s acting on its own motion
and its acting in response to a litigant’s motion “to be a distinction without a
difference.” (Remsen v. Lavacot, supra, 87 Cal.App.4th at p. 427.) One of the
commentaries is more specific: “This may be a distinction without a difference
because what if the losing party simply asks the court (e.g., at a status conference)
to reconsider the matter?” (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2004) § 9:327.8, p. 9(1)-107.) This concern is
legitimate. If all that results from this distinction is that parties merely change the
name of their motion from, as in this case, a motion for summary judgment to
something like, “motion for the court to reconsider on its own motion its previous
order denying summary judgment,” and the matter is otherwise litigated in routine
fashion, then nothing of substance will be accomplished, and sections 437c,
subdivision (f)(2), and 1008 will be rendered essentially meaningless. We believe,
however, that the Legislature intended this to be a distinction with a difference.
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” (Remsen v. Lavacot,
supra, 87 Cal.App.4th at p. 427) 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

5
Accordingly, we disapprove to this extent Scott Co. v. United States
Fidelity & Guaranty Ins. Co., supra, 107 Cal.App.4th 197; Wozniak v. Lucutz,
supra, 102 Cal.App.4th 1031; Kollander Construction, Inc. v. Superior Court,
supra, 98 Cal.App.4th 304; Blake v. Ecker, supra, 93 Cal.App.4th 728; and
Remsen v. Lavacot, supra, 87 Cal.App.4th 421.
17

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correct that error no matter how it came to acquire that belief. For example,
nothing would prevent the losing party from asking the court at a status conference
to reconsider a ruling. (See Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial, supra, § 9:327.8, p. 9(1)-107.) But a party may not file a written
motion to reconsider that has procedural significance if it does not satisfy the
requirements of section 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. As one court
explained, “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, Inc., supra, 126 Cal.App.4th at p. 739.)
Unless 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. (See Abassi v. Welke, supra, 118 Cal.App.4th at p.
1360 [“The trial court invited Welke to file a second summary judgment motion
indicating it wanted to reassess its prior ruling . . . . The parties had an
opportunity to brief the issue, and a hearing was held.”]; Schachter v. Citigroup,
Inc., supra, 126 Cal.App.4th at p. 739.) 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
18

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conflicting goals of limiting repetitive litigation and permitting a court to correct
its own erroneous interim orders.
III. CONCLUSION
In this case, the individual defendants filed a new motion for summary
judgment that did not satisfy the requirements of section 437c, subdivision (f)(2),
which they were not permitted to do. The trial court erred in granting that motion.
Plaintiffs argue that this circumstance means that we must order that the case go to
trial. We disagree. We merely hold that the court erred in granting an
impermissible motion. On remand, nothing prohibits the court from reconsidering
its previous ruling on its own motion, a point on which we express no opinion.6
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.

6
Justice Kennard argues that we should affirm the judgment on the basis of
harmless error. However, defendants have made no such harmless error argument,
and thus plaintiffs have had no chance to argue against it. Moreover, the trial
court did not inform the parties that it might change its previous ruling on its own
motion and give them an opportunity to be heard, as it should have done. We do
not know what would have occurred if it had done so. Under the circumstances,
we think it best to remand the matter for the court and parties to follow proper
procedure.
19

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CONCURRING AND DISSENTING OPINION BY KENNARD, J.

I agree with the majority’s holding that Code of Civil Procedure sections
437c, subdivision (f)(2), and 1008 prohibit only a party from renewing a motion or
moving for reconsideration without new facts or law, and that these provisions do
not limit a court’s ability to reconsider and correct error in a prior interim order. I
also agree generally with the majority’s analysis in support of that holding.
But I do not agree with the majority’s disposition reversing the Court of
Appeal’s judgment, which in turn had affirmed the trial court’s summary
judgment. As the majority holds, a trial court may properly reconsider an earlier
ruling denying summary judgment and make a new ruling granting summary
judgment. Although the trial court here erred insofar as it purported to act on a
party’s motion rather than on its own motion, this procedural error does not affect
the judgment’s validity. A legally correct ruling will not be reversed on appeal
merely because the trial court erred in its reasoning (People v. Smithey (1999) 20
Cal.4th 936, 972; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
19), and a trial court’s judgment may not be set aside for procedural error unless
the error has resulted in a miscarriage of justice (Cal. Const., art. VI, § 13).
Because no miscarriage of justice has been demonstrated here, I would affirm.
KENNARD,
J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion LeFrancois v. Goel
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 119 Cal.App.4th 425
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S126630
Date Filed: June 9, 2005
__________________________________________________________________________________

Court:

Supreme
County: Santa Clara
Judge: Robert A. Baines

__________________________________________________________________________________

Attorneys for Appellant:

Robinson & Wood, Jon B. Zimmerman, Helen E. Williams and Joanna L. Mishler for Plaintiffs and
Appellants.

Thomas M. Eells as Amicus Curiae on behalf of Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Reed Smith, Paul D. Fogel; Law Offices of Philip R. McCowan, Philip R. McCowan and John M. Ingle for
Defendants and Respondents.

Skadden, Arps, Slate, Meagher & Flom, Raoul D. Kennedy, Davidson M. Pattiz, Douglas B. Adler and
Seth M. Schwartz for Citigroup, Inc., and Salomon Smith Barney, Inc., as Amici Curiae on behalf of
Defendants and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jon B. Zimmerman
Robinson & Wood
227 North First Street
San Jose, CA 95113
(408) 298-7120

Paul D. Fogel
Reed Smith
Two Embarcadero Center, Suite 2000
San Francisco, CA 94111
(415) 543-8700

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Opinion Information

Date:	Docket Number:
Fri, 06/10/2005	S126630A

Disposition
Jun 9 2005	Opinion: Reversed

Dockets
Jul 27 2004	Petition for review filed   by counsel for appellants (Philip LeFrancois, Anil Gupta and Mark Goldman) (CRC40k/FedEx)
Jul 27 2004	Record requested
Jul 28 2004	Received Court of Appeal record   file jacket/briefs/accordian file
Aug 16 2004	Answer to petition for review filed   by counsel for resps. (Prabhakar Goel,et al.,)
Aug 27 2004	Reply to answer to petition filed   by counsel for aplt. (LeFrancois) (40k)
Sep 15 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 28 2004	Certification of interested entities or persons filed   by counsel for aplt (LeFrancois)
Oct 7 2004	Certification of interested entities or persons filed   by counsel for resp. (Goel)
Oct 15 2004	Request for judicial notice filed (granted case)   by counsel for aplt. (L. Francois, et al.) w/Legislative History Materials
Oct 18 2004	Opening brief on the merits filed   by counsel for ( P. LeFrancois, et al.,) (40k)
Nov 3 2004	Request for extension of time filed   by counsel for resps. (Goel and Gupta) requesting a 60-day extension of time to January 16, 2004 to file the answer brief on the merits.
Nov 3 2004	Association of attorneys filed for:   respondents (P. Goel and A. Gupta) by Law Offices of Philip R. McCowan
Nov 4 2004	Filed:   by counsel for resp. Supplemental Proof of Service re: Appl. for Extension of time.
Nov 8 2004	Extension of time granted   respondent's time to serve and file the answer brief on the merits is extended to and including December 17, 2004.
Nov 12 2004	Filed:   letter from counsel for Mark Goldman re; confirmation that plfs./aplts. Le Francois and Herald have abandoned their appeal as to deft. Mark Goldman filed on 11-13-02.
Nov 24 2004	Received application to file Amicus Curiae Brief   Thomas M. Eells (non-party) (brief under same cover)
Dec 3 2004	Amicus curiae brief filed   Thomas M. Eells (non-party) Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under Rule 29.1(f) (2).
Dec 3 2004	Permission to file amicus curiae brief granted   Thomas M. Eells (non-party)
Dec 8 2004	Request for extension of time filed   counsel for resps. requests extension of time to January 14, 2005, to file the answer brief on the merits.
Dec 10 2004	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including January 14, 2005. No further extensions of time are contemplated.
Jan 14 2005	Answer brief on the merits filed   by counsel for resps. (Goel and Gupta)
Feb 1 2005	Request for extension of time filed   counsel for aplts. (LeFrancois, et al.,) requests 30-day extension of time to March 5, 2005 to file the reply brief.
Feb 4 2005	Extension of time granted   Appellant's time to serve and file the reply brief is extended to and including March 7, 2005. No further extensions are contemplated.
Mar 8 2005	Reply brief filed (case fully briefed)   by counsel for (LeFrancois, et al.,) (40.1 b))
Apr 1 2005	Case ordered on calendar   5/5/05 @9am, S.F.
Apr 6 2005	Received application to file Amicus Curiae Brief   Citigroup, Inc. in support of respondents.(brief under same cover)
Apr 6 2005	Permission to file amicus curiae brief granted   Citigroup, Inc in support of respondents.
Apr 6 2005	Amicus curiae brief filed   Citigroup, Inc., An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 12 2005	Filed:   by counsel for resp. re: response to amicus brief.
Apr 13 2005	Request for judicial notice granted   The request for judicial notice filed on October 15, 2004, is hereby granted.
Apr 27 2005	Filed:   by counsel for aplt. letter re: response to Citigroup Inc. amicus brief.
May 5 2005	Cause argued and submitted
Jun 9 2005	Opinion filed: Judgment reversed   and remanded. OPINION BY: Chin, J --- joined by : George, C.J., Baxter, Werdegar, Brown, Moreno, JJ. CONCURRING AND DISSENTING OPINION BY: Kennard, J.
Jul 12 2005	Remittitur issued (civil case)
Jul 14 2005	Note:   records returned to CA 6
Jul 14 2005	Received:   receipt for remittitur from CA 6

Briefs
Oct 18 2004	Opening brief on the merits filed
Dec 3 2004	Amicus curiae brief filed
Jan 14 2005	Answer brief on the merits filed
Mar 8 2005	Reply brief filed (case fully briefed)
Apr 6 2005	Amicus curiae brief filed

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