Hickenbottom v. Medical Solutions LLC

Procedural Issue

Renewed motions — a second motion to compel arbitration based on a different contract is still a "renewal" under § 1008(b), and denial of a noncompliant renewed motion is not appealable

Holding

The Fourth District held that a party's second motion to compel arbitration — filed after an identical first motion was denied — was a "renewed" motion under Code of Civil Procedure section 1008(b), even though the second motion relied on a different arbitration agreement in a different contract. The test under section 1008(b) turns on whether the two motions sought the same relief, not on whether they rested on the same factual or legal basis; here, both motions sought the identical order (compelling arbitration of the same wage-and-hour claims and dismissing class claims), so the change in the underlying contract did not take the second motion outside section 1008(b). Because the moving party filed no affidavit showing diligence and new facts, the trial court lacked jurisdiction to consider the renewed motion, and — because the denial of a jurisdictionally noncompliant renewed motion is not an appealable order — the court dismissed the appeal outright. The court also rejected the argument that this reading of section 1008 discriminates against arbitration in violation of the FAA, since the renewal rule applies identically regardless of the subject matter of the motion.

Why It Matters

This is a serious trap for anyone bringing a second motion for the same order after a change in the supporting contract, agreement, or legal theory. If your first motion for a given order is denied, any subsequent motion asking for the same order — even one resting on an entirely different contract, statute, or legal theory — is a "renewed motion" under section 1008(b), not a fresh motion, and it must be accompanied by an affidavit showing diligence and explaining what new or different facts, circumstances, or law justify a second attempt. Skipping that affidavit doesn't just risk denial on the merits — it deprives the trial court of jurisdiction to even hear the motion, and a denial on that jurisdictional basis is not independently appealable, so getting this wrong can cost both the motion and any appellate review of it in one stroke. Before filing any second motion for relief a court has already refused, run section 1008(b) as a checklist item regardless of how different the new basis feels — and don't assume arbitration motions get special treatment, since the court expressly held they don't.

About This Entry

Court: California Court of Appeal, Fourth Appellate District, Division One
Topic: Civil Procedure
Month: September 2026
Publication status: Published
Last verified: 2026-09-02

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