Gilberd v. AC Transit

• Decision Date: 03 March 1995
• Docket Number: No. A065497,A065497
• Citation: 38 Cal.Rptr.2d 626,32 Cal.App.4th 1494
• Court: California Court of Appeals Court of Appeals
• Parties: Philip GILBERD, Plaintiff and Appellant, v. AC TRANSIT, et al., Defendant and Respondent.

Page 626

38 Cal.Rptr.2d 626

32 Cal.App.4th 1494

Philip GILBERD, Plaintiff and Appellant, v. AC TRANSIT, et al., Defendant and Respondent.

No. A065497.

Court of Appeal, First District, Division 2, California.

March 3, 1995.

As Modified on Denial of Rehearing April 3, 1995.

Review Denied June 14, 1995.

Thomas Steel, Steel, Clarence & Buckley, Stuary Buckley, John Beattie, San Francisco, for appellant Philip Gilberd.

Paul M. Sluis, Alameda-Contra Costa Transit Dist., Office of the Gen. Counsel, Oakland, for respondent AC Transit.

HAERLE, Associate Justice.

I. INTRODUCTION

Appellant appeals from a judgment of dismissal, based upon the sustaining of a demurrer without leave to amend, which was entered after the trial court granted respondent's motion to reconsider its initial order granting appellant relief, pursuant to Government Code section 946.6, from the claims filing requirements of the Tort Claims Act. (Gov.Code §§ 810 et seq.) We conclude that the trial court lacked jurisdiction over respondent's motion to reconsider. We further conclude that the alternative bases of respondent's motion, requests for a new trial and for relief pursuant to Code of Civil Procedure section 473, also cannot support the challenged order. Because the trial court exceeded its jurisdiction, we must vacate the judgment and order entered as a result of the motion for reconsideration.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was seriously injured on April 24, 1992, while allegedly a passenger on one of respondent's buses. Respondent is a public entity, created pursuant to Public Utilities Code sections 24501 et seq. For this reason, the requirements of the Tort Claims Act (Gov.Code §§ 810 et seq.) apply.

Appellant retained counsel to prosecute his claim. On October 23, 1992, one day prior to the expiration of the six-month deadline for filing a claim with a public entity (Gov.Code § 945.6), appellant presented a claim which named both the County of Alameda (hereinafter County) and respondent, to the County, and not to respondent.

That claim was rejected by operation of law on December 8, 1992. (See Gov.Code § 912.4, subd. (b).) The County served a formal rejection of the claim on January 13, 1993. The notice did not state the reason for denying the claim, but did advise appellant that he had six months within which to sue.

Appellant filed suit on April 28, 1993, more than one year after the date of the accident, but within six months of receiving the notice. Appellant served respondent on May 11, 1993.

On May 18, 1993, after receiving the complaint, the County contacted appellant's counsel advising that it (1) was a separate public entity from respondent; (2) did not process or accept claims for respondent; and (3) was not liable for appellant's damages.

On June 10, 1993, appellant presented respondent a petition to file a late claim. On June 17, 1993, respondent denied that petition and answered the lawsuit, asserting that it was time barred.

On November 3, 1993, following discovery by both parties, respondent moved for summary judgment on two alternative grounds: (1) the action was barred by appellant's failure to submit a timely claim to respondent in accordance with the procedures set forth in the Government Code and (2) if the appellant was not required to comply with the claims procedure due to inaccuracies in respondent's entry in the Alameda County Clerk's Roster of Public Agencies (see Gov.Code §§ 946.4, 53051), the action was barred by the one-year statute of limitations for personal injuries.

On November 8, 1993, appellant filed (1) a petition, pursuant to Government Code section 946.6, for relief from the claim filing requirements of that code and (2) a motion for leave to file an amended complaint alleging facts supporting the petition. The petition was based upon appellant's counsel's alleged inability to locate the County's Roster of Public Agencies, notwithstanding repeated inquiries to the County Clerk on this subject, and his subsequent reliance upon the clerk's advice that a claim against respondent should be presented to the County Clerk in triplicate on a form provided by the County Clerk.

On November 23, 1993, the trial court granted appellant's motions and dismissed respondent's summary judgment motion as moot.

On December 3, 1993, respondent filed a notice of motion for reconsideration of all of the November 23, 1993 rulings. In the alternative, respondent requested a new trial. As a further alternative, respondent sought relief from the rulings under Code of Civil Procedure section 473 on the ground that respondent's counsel's error in failing to comply with a local rule by neglecting to timely call the trial court to schedule a hearing on the tentative rulings in appellant's favor was due to mistake, inadvertence, and excusable neglect. ¹ Together with the motion requesting relief from the initial rulings, respondent filed a demurrer to the first amended complaint; the demurrer incorporated respondent's earlier summary judgment motion.

Respondent's motions were heard on January 7, 1994. The trial court issued an order (1) granting reconsideration; (2) vacating its November 23 order granting relief pursuant to Government Code section 946.6; (3) denying appellant's Government Code section 946.6 petition; and (4) sustaining respondent's demurrer to the First Amended Complaint without leave to amend. A judgment of dismissal was entered on January 31, 1994. Appellant's timely notice of appeal followed.

III. DISCUSSION

The threshold issue is whether the trial court had the power to reconsider its November 23 orders. We conclude that the exclusive avenue for reconsideration of those orders was that set forth in Code of Civil Procedure section 1008 (hereafter section 1008) and that respondent's motion did not meet the prerequisites for relief under that statute. We further conclude that section 1008 is jurisdictional. Therefore, the trial court lacked power to grant the relief that it did. For this reason, the trial court's order of January 24 and the subsequent judgment of dismissal resulting therefrom must be vacated.

Section 1008 governs reconsideration of court orders whether initiated by a party or the court itself. "It is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional." (Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490, 23 Cal.Rptr.2d 666.)

The statute provides in pertinent part:

"(a) When an application for an order has been made to a judge, or to a court, and ... granted ... 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.

"......

"(c) 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.

"(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.5. In addition, an order made contrary to this section may be revoked....

"(e) 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 ... 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." (Morite of California v. Superior Court, supra, 19 Cal.App.4th at pp. 490-491, 23 Cal.Rptr.2d 666, italics added.)

According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon "new or different facts, circumstances, or law." Respondent urges that this jurisdictional prerequisite was satisfied in one of two ways: First, respondent argues that the trial court misinterpreted California law in its initial decision and, therefore, the respondent relied upon "different" law when it reiterated its prior reasoning and authorities for rejecting appellant's Government Code section 946.6 petition. Second, respondent urges that the fact that it had not intended to waive oral argument on the initial motions constitutes a "new" fact or circumstance sufficient to satisfy the statute. We find both of respondent's contentions meritless. ²

Respondent's first contention is utterly specious. What respondent essentially argues is that section 1008 does not apply when the litigant disagrees with the trial court's ruling. Since in almost all instances, the losing party will believe that the trial court's "different" interpretation of the law or facts was erroneous, to interpret the statute as the respondent urges would be contrary to the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it.

Second, we cannot accept respondent's implicit interpretation of section 1008 that a "new" or "different" fact or circumstance wholly collateral to the merits of the initial motion is sufficient to warrant reconsideration. While not denigrating the assistance that oral argument can provide to a court, the fact that respondent intended to request that the court entertain oral argument with respect to the initial motions is clearly collateral to the merits of the motions. ³ Aga...