Thursday, July 6, 2017

Should Have Appealed the First Time

Chango Coffee, Inc. v. Applied Underwriters, Inc., No. BC267358 (D2d3, May 26, 2017) 
 
Defendant lost a motion to compel arbitration, but didn’t appeal. Six months later it filed a renewed motion under Code of Civil Procedure § 1008(b), claiming that a Plaintiff witness gave deposition testimony that further supported arbitration. The trial court denied that too, and this time Defendant appeals. 

One problem. The denial of a motion to compel arbitration is subject to an interlocutory appeal. But the denial of a renewed motion under § 1008(b) is not. Since it’s a non-appealable order, an appeal wasn’t properly taken. That’s the case even though § 1008(g) permits an appeal to be taken from a reconsideration or renewed motion when the underlying motion is appealed. By failing to appeal the original denial, Defendant lost any ability to use § 1008(g).

Appeal dismissed.

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