I think we can all agree that lawyers are pretty good at finding loopholes. That's their job, after all. Or at least part of it. So, on this front, anyway, I think everyone can agree that lawyers are pretty creative. Which is what at least partially dooms the California Supreme Court's attempt to achieve an Aristotelian mean here.
Finally resolving an important issue that has split the Courts of Appeal for quite a while now, the California Supreme Court holds in this case that Sections 437c and 1008 of the CCP preclude a party from seeking reconsideration of a prior summary judgment motion (on grounds other than new facts or new law) but don't prohibit a court from reconsidering such a motion. This holding is a middle ground on a bunch of different levels, and (1) interprets the relevant statutes in a way that avoids striking them down -- as several Courts of Appeal have -- as unconstitutional violations of the judicial power, and (2) rejects the view that both parties and the court may seek reconsideration while simultaneously rejecting the view that neither the parties nor the court may seek reconsideration. And all of the Justices can agree on this middle ground. So everyone's happy, right?
Well, yes. At least as long as you're willing to ignore the fact that the middle ground isn't really tenable. Since it takes about 10 seconds to get around it. Or at least that's precisely how long it took me to find the loophole, and I'm quite sure that it will not only take more sophisticated practitioners even less time, but that they'll also find quite a few other ways around the rule as well.
Here's the problem. Justice Chin recognizes that there's a fine line between a court reconsidering the motion "on its own" -- which the Supreme Court holds is permissible -- and a party filing a motion that asks the court to reconsider the motion, which isn't. And he expressly recognizes that "[i]f all that results from this distinction is that parties merely change the motion from, as in this case, a motion for summary judgment to something like 'motion for court to reconsider on its own motion its previous order denying summary judgment,' and the matter is otherwise litigated in routine fashion, then nothing of substance is accomplished, and sections 437c [] and 1008 will be rendered essentially meaningless." But, he responds, this result is avoided by the Supreme Court's holding because a party "may not file a written motion to reconsider that has procedural significance if it does not satisfy that requirements of sections 437c [] or 1008" (emphasis in original), and hence the trick that Justice Chin identifies, he argues, won't work, since that's a motion to reconsider.
But Justice Chin simultaneously concedes that "[w]e cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling," and also admits that even under the Supreme Court's holding, "nothing would prevent the losing party from asking the court at a status conference to reconsider a ruling." So what's to stop a party, then, from filing the following motion: "Motion to Set Up Status Conference So That Defendant May Request Reconsideration of Prior Denial of Summary Judgment Motion," with 25 pages of argument about why the prior ruling was wrong? Seems like that's perfectly fine as well, even though (1) it's indeed a written motion, (2) the court will be forced to rule on the motion, and (3) the opposing party will include in its opposition whatever (potentially lengthy) arguments on the merits it considers necessary to stop the court from getting it into its head that its prior ruling might be wrong. Which is precisely the result that Justice Chin argued would render Sections 437c and 1008 "essentially meaningless."
So I'm not sure that the attempt to strike a balance here really works in the manner suggested by the Court, or that the loophole that its attempt to close in fact remains closed. It looks to me more like what Justice Chin thought might happen -- but attempted to stop -- will still happen.
That's the problem with smart lawyers. They're always getting in the way of what you're trying to do.
