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Sample California renewal of motion under Code of Civil Procedure section 1008(b)

Sample California renewal of motion under Code of Civil Procedure section 1008(b)

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Published by Stan Burman
This sample renewal of motion for California is made pursuant to Code of Civil Procedure section 1008(b) on the grounds that the renewed motion should be granted due to new or different facts, circumstances or law. This renewed motion is NOT subject to the same 10 day time limitation as a motion for reconsideration but it MUST be filed by the party who filed the original motion or their attorney. The sample includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proof of service by mail. The author is a freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Note that the author is NOT an attorney and no guarantee or warranty is provided.
This sample renewal of motion for California is made pursuant to Code of Civil Procedure section 1008(b) on the grounds that the renewed motion should be granted due to new or different facts, circumstances or law. This renewed motion is NOT subject to the same 10 day time limitation as a motion for reconsideration but it MUST be filed by the party who filed the original motion or their attorney. The sample includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proof of service by mail. The author is a freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Note that the author is NOT an attorney and no guarantee or warranty is provided.

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Published by: Stan Burman on Oct 27, 2013
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Any Attorney or Party Any Street Any Town, CA 55555 714-555-5555 Any Attorney or Party

Superior Court of the State of California For the County of _________________

Any Plaintiff, Plaintiff, vs. Any Defendant, and DOES 1-5 Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ________; EXHIBITS DATE: TIME: DEPT:

To subscribe to my FREE California weekly legal newsletter visit http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove this notice and all other notices before using this document.

- 1 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________

circumstances or law is authorized by statute and the new facts set forth in the declaration of __________ and Exhibits attached thereto show that the original motion to/for LIST TYPE OF MOTION SUCH AS MOTION FOR SUMMARY JUDGMENT. ETC. 1. New or different facts or circumstances have been discovered in that LIST THE NEW OR DIFFERENT FACTS OR CIRCUMSTANCES AND WHY THEY WERE NOT DISCOVERED BEFORE. Department ________ of the above-entitled court located at ______________________________.2 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . ETC. should be granted on the grounds that LIST HERE THE GROUNDS SUCH AS THERE IS NO MERIT TO THE ACTION FOR THE REASON THAT IT IS BARRED BY THE STATUTE OF LIMITATIONS.. ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on _______________ at _________M.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To view sample document packages for sale by LegalDocsPro visit http://www. .aspx TO THE COURT. __________ will and does move this Court pursuant to Code of Civil Procedure § 1008(b) for renewal of the motion TO/FOR _____________________ filed on LIST DATE OF ORIGINAL MOTION on the grounds that a renewed motion based on new or different facts. or as soon after that as the matter can be heard. USE EXAMPLE #1 BELOW IF YOU CLAIM NEW OR DIFFERENT FACTS OR CIRCUMSTANCES. USE EXAMPLE #2 BELOW IF YOU CLAIM NEW OR DIFFERENT LAW SUCH AS A REVISED STATUTE OR RECENT PUBLISHED CALIFORNIA COURT OF APPEAL OR SUPREME COURT CASE.com/downloads.legaldocspro.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________

2.

New or different law since the date of the order in that LIST HERE THE NEW OR

DIFFERENT LAW SUCH AS A RECENT REVISION TO A CODE OR STATUTE, OR A RECENT PUBLISHED CALIFORNIA COURT OF APPEAL OR SUPREME COURT CASE . The motion will be based on this notice of motion and the memorandum of points and authorities served and filed herewith, on the declaration of __________ and Exhibits attached thereto, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of the motion

Be sure to modify these paragraphs to suit your individual situation. Do NOT just use the wording here unless it definitely applies to your particular situation. Note that only a party who made the original motion can file this renewed motion and that you should file and serve this notice of motion and memorandum of points and authorities as soon as you become aware of the new or different facts, circumstances or law to avoid having the Judge deny your motion for lack of diligence.

Dated________________

_______________________________________________ ANY ATTORNEY OR PARTY

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION DESCRIBE THE CASE AND PROVIDE SOME RELEVANT INFORMATION SUCH AS TYPE OF CASE, DATE(S) OF TRIAL, DATE AND DETAILS OF ORDER, JUDGE, ETC. _____________ contends that LIST HERE THE SPECIFIC REASONS WHY THE MOTION TO/FOR __________________ SHOULD BE RENEWED AND DESCRIBE IN DETAILT THE NEW OR DIFFERENT FACTS OR CIRCUMSTANCES OR LAW THAT HAS BEEN DISCOVERED SINCE THE DATE OF THE HEARING ON THE ORIGINAL MOTION AND WHY IT WAS NOT DISCOVERED SOONER.

Be sure to modify these paragraphs to suit your individual situation. Do NOT just use the wording here unless it definitely applies to your particular situation.
II. LEGAL ARGUMENT A. THIS COURT HAS THE STATUTORY POWER TO CONSIDER THIS RENEWED

MOTION WHICH IS AUTHORIZED BY CODE OF CIVIL PROCEDURE § 1008(b) Code of Civil Procedure § 1008(b) states in pertinent part that “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, 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

- 4 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________

Hansen (1982) 128 Cal. 970-971 (prior law). 3d at 970 (prior law). 816. App. CIRCUMSTANCES OR LAW This Court should grant this renewed motion as _____________ has made a sufficient showing of new or different facts. Stephen v. 3d 1602. B. App. v. App. see also Graham v. circumstances or law in that LIST HERE THE SPECIFIC REASONS WHY THE COURT SHOULD GRANT THE RENEWED MOTION AND . and a trial court has jurisdiction to reconsider a prior ruling or to entertain a renewal of a previous motion. Koskey (1991) 231 Cal. 876 and Graham v. see also Graham v. Williams (1990) 225 Cal. 3d at 970-971 (prior law). See Stephen v. Hansen supra. 3d 806. 1608 n.” Renewed motions are authorized by and governed by Code of Civil Procedure § 1008(b). see also Curtin v. 128 Cal. Do NOT just use the wording here unless it definitely applies to your situation. Inc. App. App. criticized on another point in Passavanti v. Enterprise Rent-A-Car (1991) 235 Cal. 816. what order or decisions were made. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judge. 3d 965. 128 Cal. A decision on a motion is not res judicata. circumstances. Modify these paragraphs to suit your particular situation. THIS COURT SHOULD GRANT THIS RENEWED MOTION AS THE MOVING PARTY HAS MADE A SUFFICIENT SHOWING OF NEW OR DIFFERENT FACTS. 3d 826. 831. Hansen supra. Pogrebneak (1989) 210 Cal. and what new or different facts. or law are claimed to be shown. See Monsan Homes. (prior law.5 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . App.5. A renewed motion is not subject to the 10 day statutory time limitation imposed on a motion for reconsideration. 3d 873. App.

Do NOT just use the wording here unless it definitely applies to your situation. CIRCUMSTANCES OR LAW SUCH AS YOU REQUESTED SAID DOCUMENTS. The new or different facts. Reasonable diligence has been exercised in the discovery of the new or different facts. Whether the new facts alleged on a renewal motion are sufficient to satisfy the requirements of Code of Civil Procedure Section 1008(b) is a question confided to the sound discretion of the trial . ETC. THIS COURT SHOULD EXERCISE ITS BROAD DISCRETION AND GRANT THIS RENEWED MOTION This Court should exercise its discretion and grant this renewed motion as a trial Court has broad discretion in ruling on a renewed motion. ETC.6 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . circumstances or law are material in that LIST HERE THE REASONS WHY THE NEW OR DIFFERENT FACTS. IN THE DISCOVERY PHASE AND JUST RECEIVED THEM. C. Modify these paragraphs to suit your particular situation. CIRCUMSTANCES OR LAW ARE MATERAL AND WHY THEY WOULD HAVE BEEN LIKELY TO PRODUCE A DIFFERENT RESULT.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DESCRIBE IN DETAILT THE NEW OR DIFFERENT FACTS OR CIRCUMSTANCES OR LAW THAT HAS BEEN DISCOVERED SINCE THE DATE OF THE HEARING ON THE ORIGINAL MOTION AND WHY IT WAS NOT DISCOVERED SOONER. circumstances or law in LIST HERE THE STEPS YOU HAVE TAKEN THAT SHOW REASONABLE DILIGENCE IN DISCOVERING THE FACTS.

128 Cal. CONCLUSION Based on the foregoing. ETC. See Graham v. 3d at 971 (prior law). _________ requests that the court grant this renewed motion to/for LIST HERE THE TYPE OF RENEWED MOTION SUCH AS MOTION FOR SUMMARY JUDGMENT. Dated________________ _______________________________________________ ANY ATTORNEY OR PARTY .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court. the exercise of which the appellate court will not interfere with absent an obvious showing of abuse. III.7 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . App. Hansen supra.

4. 6. IN THE DISCOVERY PHASE AND JUST RECEIVED THEM.8 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . ETC. CIRCUMSTANCES OR LAW . and if called as a witness could and would testify competently to the truth of the facts stated herein. circumstances or law in LIST HERE THE STEPS YOU HAVE TAKEN THAT SHOW REASONABLE DILIGENCE IN DISCOVERING THE FACTS. I am a party to this action. circumstances or law are material in that LIST HERE THE REASONS WHY THE NEW OR DIFFERENT FACTS. On _____ filed a motion to/for LIST TYPE OF MOTION. ________________ declare as follows: 1.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ____________ IN SUPPORT OF RENEWED MOTION TO/FOR __________________________________________________________________________ I. The new or different facts. CIRCUMSTANCES OR LAW SUCH AS YOU REQUESTED SAID DOCUMENTS. On __________ the Honorable LIST NAME OF JUDGE ruled on said motion as follows: LIST DETAILS OF RULING ON ORIGINAL MOTION. I make this declaration in support of my renewed motion to/for _________. Reasonable diligence has been exercised in the discovery of the new or different facts. ETC. 5. 2. The renewed motion should be granted on the grounds that LIST HERE THE SPECIFIC REASONS WHY THE COURT SHOULD GRANT THE RENEWED MOTION AND DESCRIBE IN DETAILT THE NEW OR DIFFERENT FACTS OR CIRCUMSTANCES OR LAW THAT HAS BEEN DISCOVERED SINCE THE DATE OF THE ORDER AND WHY IT WAS NOT DISCOVERED SOONER. I am over the age of 18 years and have personal knowledge of the facts stated herein. 3.

Modify these paragraphs to suit your particular situation. Do NOT just use the wording here unless it definitely applies to your situation.9 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . My material rights were substantially affected by the grounds listed above in that LIST HERE BRIEFLY HOW THE GROUNDS YOU HAVE LISTED SUBSTANTIALLY AFFECTED YOUR MATERIAL RIGHTS. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ______________ at _______. The new or different facts. I respectfully request that the court grant this renewed motion. 9.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARE MATERAL AND WHY THEY WOULD HAVE BEEN LIKELY TO PRODUCE A DIFFERENT RESULT. 7. _____________________________________________ NAME OF PERSON SIGNING DECLARATION . circumstances or law are material in that they show that LIST HERE THE REASON WHY THEY ARE MATERIAL SUCH AS THEY SHOW THAT THE ACTION HAS NO MERIT BECAUSE IT IS BARRED BY THE STATUTE OF LIMITATIONS. 8. California. If any documents support your contentions be sure to attach them as Exhibit “1”. and so on.

Mail) I deposited such envelope in the mail at ______________. DECLARATION OF ____________. DATED: ______________ _______________________________________ NAME OF PERSON SERVING PAPERS . my business/residence address is: ADDRESS OF PERSON SERVING DOCUMENTS. I am aware that on motion of the party served. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXHIBITS to the following parties: NAME AND ADDRESS OF EACH ATTORNEY OR PLAINTIFF WITHOUT AN ATTORNEY [X] (By U.10 NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR ___________ . On ____________________ I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION FOR RENEWAL OF MOTION TO/FOR _____________________.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1PROOF OF SERVICE I am over the age of 18 and not a party to this action. MEMORANDUM OF POINTS AND AUTHORITIES. I am a resident of or employed in the county where the mailing occurred.S. California with postage thereon fully prepaid. service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

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