Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. GIC 805629, Patricia Y. Cowett, Judge.
HUFFMAN, Acting P. J.
Plaintiff Ozzie Mancinelli (Mancinelli) appeals an order denying his motion to add Rustie's International, Inc. (RI) to a judgment he obtained against RI's owner, defendant Kathleen Siewak (Siewak), and another company owned by Siewak, defendant Rustie's Unique Designs, Inc. (RUDI). We hold Mancinelli's motion to amend his judgment, made approximately five months after the court denied an identical motion "without prejudice," must satisfy the jurisdictional requirements of Code of Civil Procedure section 1008, subdivision (b). We further hold the court did not abuse its discretion when it denied Mancinelli's renewed motion because he did not present new or different facts that did not exist before his original motion.
Statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. In 2001 Siewak and Ferdinand Barlow (Barlow) hired Mancinelli as CEO of RUDI, which sold collectible dolls. Mancinelli sued Siewak, Barlow, and RUDI in 2003 over an employment dispute. A jury awarded Mancinelli damages of approximately $962,000 and the court entered judgment in May 2004.
Siewak, Barlow, and RUDI are not parties to this appeal.
In October 2005 Mancinelli filed a motion to add RI to the judgment against Siewak and RUDI, but not Ferdinand, based on alter ego liability and the court's inherent equitable authority. In his reply to the opposition to add RI to the judgment, Mancinelli argued for the first time RI had purchased all the assets of RUDI and carried on the identical business of RUDI, and thus RI was liable for the judgment as the successor corporation of RUDI. In addition to this new theory of liability against RI, Mancinelli's reply also included additional evidence for the court to consider at the hearing.
Mancinelli previously had attempted by way of oral motion at trial to establish alter ego liability against one or more of the defendants. The record is silent, however, regarding any details of that oral motion, including the identity of defendants subject to the motion or why the court denied it.
On February 10, 2006, the court denied without prejudice Mancinelli's motion to add RI to the judgment. The court ruled Mancinelli's motion lacked sufficient evidence to support alter ego liability against RI, or to hold RI liable under a corporate successor theory. During oral argument the court confirmed its denial without prejudice meant Mancinelli could "renew" his motion later, based on an "augmented evidentiary showing."
Approximately five months later, Mancinelli filed a second motion to amend the judgment to add RI as a judgment debtor. In support of this second motion, Mancinelli submitted evidence he learned in late January 2006 while attending a trade show also attended by Siewak and Barlow. Mancinelli claimed the "trade show evidence" demonstrated that RI was the corporate successor of RUDI, and thus RI should be liable for the judgment against Siewak and RUDI. Mancinelli offered no explanation in his renewed motion why he did not proffer the trade show evidence for the court's consideration at the February 10, 2006 hearing, or why he did not move to continue that hearing so the court could consider such evidence.
The court denied Mancinelli's second motion to add RI to the judgment at a hearing on August 25, 2006. The court ruled section 1008, subdivision (b) applied to the second motion, and Mancinelli failed to meet the jurisdictional requirements of that section because he did not present any facts or information in his second motion not in existence before the February 10, 2006 hearing on his original motion.
DISCUSSION
I
A. Standard of Review
Matters presenting pure questions of law, not involving resolution of disputed facts, are subject to the appellate court's independent review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) Moreover, questions of statutory interpretation and the applicability of a statutory standard to undisputed facts, also present questions of law, which we review de novo. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)
B. Section 1008 Governed Mancinelli's Second Motion to Add RI to the Judgment
The principal issue before us is whether Mancinelli's second motion to add RI to the judgment was subject to the provisions of section 1008. Mancinelli argues section 1008 does not apply because the court denied his original motion "without prejudice." We disagree.
Section 1008 provides in part: "(b) A party who originally made an application for an order which was refused in whole or part . . . 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 . . . . [¶] . . . [¶] (e) This section specifies the court's jurisdiction . . . and applies to all applications to reconsider any order . . . 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, subds. (b) & (e), italics added.)
Section 1008 is jurisdictional. (§ 1008, subd. (e).) If a party moving for reconsideration does not show new or different facts, circumstances or legal authorities that were not previously presented in the original motion, the court lacks jurisdiction to entertain the request for reconsideration. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104, and 1108; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.)
If unable to meet the requirements of section 1008, a moving party alternatively may seek relief under section 473, subdivision (b), based on mistake, inadvertence, surprise, or excusable neglect. (See e.g., Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658.)
As interpreted, section 1008 applies only to a party's motion for reconsideration or renewal and not to a court's reconsideration of an order on its own motion. (Le Francois v. Goel, supra, 35 Cal.4th at pp. 1096-1097.) 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." (Id. at p. 1103.) The "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." (Id. at p. 1106.)
Although a party may not file a motion under section 1008 unless that party satisfies the reconsider or renewal statutory requirements, a party may ask the court to reconsider a prior ruling. (Le Francois v. Goel, supra, 35 Cal.4that pp. 1107-1108.) "The court need not rule on any suggestion [by a party] that it should reconsider a previous ruling and, without more, another party would not be expected to respond to such a suggestion." (Id. at p. 1108.) But "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." (Ibid.)
However, "[u]nless the requirements of . . . section 1008 are satisfied, any action to reconsider a prior 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." (Le Francois v. Goel, supra, 35 Cal.4that pp. 1108-1109, italics in original.)
Here, the court did not move sua sponte to reconsider Mancinelli's original motion to add RI to the judgment against Kathleen and RUDI. The second motion to amend the judgment came about solely because of the actions of Mancinelli, and not because of any action by the court. In fact, because the court denied Mancinelli's original motion for lack of sufficient evidence, the burden was on Mancinelli, and him alone, to proffer evidence, in this case new or different facts (as statutorily required under § 1008, subd. (b)) to show RI was the alter ego of defendants or the corporate successor of RUDI. Mancinelli, and not the court, initiated the procedure that led the court to reconsider whether RI should be added to the judgment.
The court's denial of Mancinelli's original motion without prejudice does not affect our conclusion Mancinelli's second motion was subject to the jurisdictional requirements of section 1008, subdivision (b). The case of Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007 (Farber), relied on by Mancinelli, is inapposite. In Farber, the trial court denied the moving party's original fee motion without prejudice because of a lack of sufficient detail. The moving party's original motion was supported by a declaration from counsel, which lacked specific billing information to enable the trial court to determine whether the fees were reasonable and necessary. (Id. at p. 1014.) Counsel for the moving party subsequently provided the additional billing information needed by the trial court to decide the fee motion. (Ibid.)
At the time of the original motion in Farber, the missing information was available to the moving party and could easily be provided to the trial court by moving party's counsel. Thus, whether the trial court dismissed without prejudice the original fee motion, or merely continued it to allow counsel to provide the missing information, was an "administrative matter" within the trial court's inherent power to manage its docket. (Farber v. Bay View Terrace Homeowners, supra, 141 Cal.App.4that p. 1015.)
Here, in contrast, the court's denial of Mancinelli's original motion and its decision to rehear it approximately six months later, was not the result of the court exercising its inherent power to manage its calendar, as was the case in Farber. When the court denied Mancinelli's original motion without prejudice, it was not because Mancinelli's counsel had neglected to provide information easily available to counsel or Mancinelli.Instead, the court denied Mancinelli's motion because he failed to proffer sufficient evidence for the relief sought in his motion, and it was unclear whether Mancinelli could ever satisfy his burden to provide new or additional facts in support of such relief. We therefore conclude the court's denial of Mancinelli's original motion without prejudice did not insulate his second renewed motion from the jurisdictional requirements of section 1008, subdivision (b).
C The Court Did Not Abuse Its Discretion When It Ruled Mancinelli Failed to Comply With Section 1008
To be entitled to reconsideration under section 1008, subdivision (b), a moving party must not only show new or different facts, circumstances or law, but also must give a satisfactory explanation for not producing such facts or information at the original hearing. (The New York Times Co. v. Superior Ct. (2005) 135 Cal.App.4th 206, 212-213; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Where evidence addressed in the motion for reconsideration is available to a party before the initial motion is heard, such evidence is not considered "new" for purposes of a motion for reconsideration. (Lucas v. Santa Monica Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028; Garcia v. Hejmadi, supra, 58 Cal.App.4th at pp. 689-690.)
We review the court's ruling on a motion for reconsideration under the abuse of discretion standard. (The New York Times Co. v. Superior Ct., supra, 135 Cal.App.4th at p. 212; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) Thus, whether Mancinelli proffered new or different facts sufficient to satisfy the jurisdictional requirements of section 1008, subdivision (b), is a "question confided to the sound discretion of the trial court, with the exercise of which [the appellate court] will not interfere absent an obvious showing of abuse." (Graham v. Hansen (1982) 128 Cal.App.3d 965, 971.)
Mancinelli concedes his second motion to amend the judgment did not include any new or different facts not in existence at the time of the original hearing in February 2006, inasmuch as the new and different facts (e.g., the trade show evidence) were based on events that occurred before the February 10, 2006 hearing. Mancinelli claims, however, he was unable to include the trade show evidence in his original motion because due process prevents a party from including new evidence in a reply brief.
We note Mancinelli did not raise this argument in the court below, which waives the issue on appeal. (See Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844; 9 Witkin, Cal. Procedure, Appeal, § 394, p. 444.) We conclude, however, Mancinelli's own conduct in this action belies his due process claim. Mancinelli waited until his reply brief in his original motion to raise the corporate successor theory of liability against RI and to assert new evidence in support of his motion. He also never sought to continue the February 2006 hearing in order to present the trade show evidence to the court. Thus, in addition to waiving the issue by failing to raise it in the court below, we conclude Mancinelli did not provide a satisfactory explanation for not producing the trade show evidence at the original hearing. (See The New York Times Co. v. Superior Ct., supra, 135 Cal.App.4th at p. 212; see also Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686 [an appellant may waive the right to attack error by expressly or impliedly agreeing to the ruling or procedure objected to on appeal].) We therefore hold the court did not abuse its discretion when it ruled Mancinelli's second motion to add RI to the judgment did not meet the jurisdictional requirements of section 1008, subdivision (b).
DISPOSITION
The order is affirmed. RI is entitled to costs on appeal.
WE CONCUR: NARES, J., O'ROURKE, J.