Renewing a motion in a California divorce case is the topic
of this blog post. Renewing a motion in
California is authorized to the pursuant to the provisions of Code of Civil
Procedure section 1008(b) and has one very useful advantage compared to a motion
for reconsideration in that it is not subject to the 10 day statutory time
limitation imposed on motions for reconsideration. However there is a disadvantage in renewing
motion in that they can ONLY by brought by the party who filed the original
motion.
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that “A party who originally made an application for an order which was refused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 judge, what order or decisions were made, and what new
or different facts, circumstances, or law are claimed to be shown.”
A renewal of a motion may be filed in a divorce, legal
separation or nullity case in California under the provisions of Family Code §
210 which states that, “Except to the extent that any other statute or rules
adopted by the Judicial Council provide applicable rules, the rules of practice
and procedure applicable to civil actions generally, including the provisions
of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil
Procedure, apply to, and constitute the rules of practice and procedure in,
proceedings under this code.”
Certain requirements must be met in order to successfully
renew a motion. The party renewing the motion must make a showing of new or
different facts, circumstances or law since the date of the original order that
the moving party was not aware of and could not have discovered with reasonable
diligence. Failure to comply with the statutory provisions may result in denial
of the renewed motion.
The California Courts of Appeal have stated in several
decisions that a ruling on a motion is not res judicata, and a trial court has
jurisdiction to consider a renewal of a previous motion.
Attorneys or parties
in California who would like to view a portion of a 10 page sample renewal of motion
for a California divorce sold by the author that contains brief instructions, a
memorandum of points and authorities with citations to case law and statutory
authority, a sample declaration and proof of service can use the link shown
below.
View over 300 sample legal documents
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
