Filed 8/26/26
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DEREK HICKENBOTTOM, D086542
Plaintiff and Respondent,
(San Diego Super. Ct. No.
v. 37-2023-00046181-CU-OE-CTL)
MEDICAL SOLUTIONS LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Appeal dismissed.
Grove Law, Sarah Kroll-Rosenbaum, Anthony D. Sbardellati and
Jade T. White, for Defendant and Appellant.
Aegis Law Firm, Samuel A. Wong, Jessica L. Cambell and Ali S.
Carlsen, for Plaintiff and Respondent.
Code of Civil Procedure1 section 1008, which governs both motions for
reconsideration and renewed motions, was “ ‘designed to conserve the court’s
resources by constraining litigants who would attempt to bring the same
motion over and over.’ ” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1100,
quoting Darling v. Kritt (1999) 75 Cal.App.4th 1148, 1157.) Accordingly, any
such motion filed by a party must be accompanied by an affidavit “show[ing]
diligence with a satisfactory explanation for not having presented the new or
different information earlier.” (Even Zohar Construction & Remodeling, Inc.
v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 (Zohar).) Indeed,
the Legislature felt so strongly about this purpose that it made the statute
jurisdictional, specifying that “[n]o application to reconsider any order or for
the renewal of a previous motion may be considered by any judge or court
unless made according to this section.” (§ 1008(e).)
In this case, defendant Medical Solutions LLC (MedSol) filed successive
motions to compel arbitration of wage and hour claims brought by plaintiff
and former employee Derek Hickenbottom. Each was based on a different
arbitration provision in a different agreement. After the first motion was
denied, MedSol admittedly made no attempt to comply with section 1008.
It submitted no affidavit and made no showing of diligence because it did not
believe its second motion qualified as a “renewal” of its first motion to compel
arbitration. When the trial court concluded that the second motion was
indeed a renewed motion governed by section 1008, and that it lacked
jurisdiction to entertain the motion, MedSol filed this appeal.
1 Subsequent undesignated statutory references are to the Code of Civil
Procedure. For brevity, we omit the word “subdivision” when referring to any
subdivision of section 1008.
2
We conclude that both motions to compel arbitration filed by MedSol
sought identical relief—a court order forcing Hickenbottom to arbitrate
rather than litigate his wage and hour claims. The fact that the two motions
were based on different provisions in different contracts does not change the
fact that both asked the court for the same thing. As a result, the trial court
properly determined it lacked jurisdiction to consider MedSol’s second
motion. And because the denial of a renewed motion is not an appealable
order, we must dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
MedSol is a healthcare staffing business that places its employees—
healthcare professionals—in temporary assignments at healthcare facilities.
In May 2022, MedSol hired Hickenbottom as a travel nurse. As part of the
initial onboarding process, Hickenbottom signed various documents including
an employee handbook acknowledgment (Handbook) and an Employee
Agreement. Both the Handbook and the Employee Agreement included
arbitration provisions, although the language of each was different. The
Employee Agreement explained that the employee would be required to sign
a separate Travel Assignment Agreement for each temporary assignment,
which “may include provisions, terms and/or conditions that supersede
specific provisions, terms and/or conditions contained within this agreement.”
In February 2023, Hickenbottom accepted a temporary assignment
at Palomar Medical Center, for which he signed a Travel Assignment
Agreement. This agreement incorporated by reference the “Generally
Applicable Policies” of MedSol, which included what the parties refer to
as the “2023 Arbitration Agreement.” Again, the specific terms of this
agreement differed in certain respects from the language of the earlier
arbitration provisions.
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A. The Lawsuit and the First Motion to Compel Arbitration
The Palomar Medical assignment was Hickenbottom’s last with
MedSol. In March 2024, he filed a class action lawsuit alleging a variety of
wage and hour claims against his former employer. MedSol responded with
a motion to compel arbitration of Hickenbottom’s claims, relying on the
arbitration provision contained in the Handbook. In opposition to the
motion, Hickenbottom pointed out that the general arbitration provision
in the Handbook had been superseded by the 2023 Arbitration Agreement
incorporated into the Travel Assignment Agreement for his Palomar Medical
assignment. MedSol’s reply acknowledged there were a series of agreements
to arbitrate, suggested that the differences were largely “immaterial,” and
contended that “irrespective of which arbitration agreement applies,” the
motion to compel arbitration should be granted.
The trial court provided the parties with a tentative ruling to deny the
motion to compel. Arguing at the hearing, counsel for MedSol conceded that
“the opposition makes helpful points” and “the tentative is well-taken in
the sense that the Court identifies that the arbitration agreement that we
submitted with the motion was superceded [sic] by subsequent agreements.”
Counsel proposed “to file another motion to compel moving on the correct
arbitration agreement.”
Hickenbottom’s lawyer foresaw problems with that approach: “Any
subsequent motion would be just an improper motion for reconsideration.
This arbitration agreement obviously was known to defendant. They’ve had
months and months to do this. It should have been filed at the time. I don’t
know why they’re bringing this up.” The court responded, “Because they
realize they made a mistake, it sounds like. They said it was an omission.”
The court then confirmed the tentative to deny the motion, noting that
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MedSol “moved to compel on an arbitration agreement that has been
superceded [sic] without question.” Commenting to defense counsel, the
judge added, “[I]t sounds like you are going to attempt to file another motion.”
(Italics added.)
B. The Second Motion to Compel Arbitration
Roughly one month later, MedSol filed a second motion to compel
arbitration of the claims alleged in the complaint, this time relying on the
2023 Arbitration Agreement incorporated by reference into Hickenbottom’s
Palomar Medical Travel Assignment Agreement.2 Despite the comments of
Hickenbottom’s counsel at the prior hearing, this new filing did not address
whether it was either a motion for reconsideration or a renewed motion under
section 1008(a) and (b). Nor did it attach an affidavit explaining any “new or
different facts, circumstances, or law” that would justify a second motion.
(§ 1008(a) & (b).)
In response, Hickenbottom maintained that the motion was “properly
considered a renewed motion and subject to the provisions of ... [section]
1008(b)” because it sought “the same relief as [the] prior motion—to compel
Plaintiff to individually arbitrate his claims and dismiss his class claims.”
He argued the court lacked jurisdiction to entertain the motion because
MedSol “[did] not comply in any respect with the provisions of Section 1008.”
Not surprisingly, MedSol disagreed, asserting that section 1008 was simply
“inapplicable.” In its view, it was “not renewi[ng] a prior motion.” Rather,
it was “seek[ing] to enforce an entirely different contract than the motion to
compel arbitration filed earlier in [the] case.” (Italics omitted.)
2 Needless to say, perhaps, MedSol did not appeal from the denial of its
first motion.
5
The trial court agreed with Hickenbottom, concluding that it lacked
jurisdiction to rule on the renewed motion because MedSol made no attempt
to comply with section 1008(b). It found that MedSol’s second motion sought
“ ‘the same order and relief’ ” as the first—to compel Hickenbottom to
arbitrate his claims. As a result, absent adequate justification presented in
an accompanying affidavit (which MedSol did not provide), it was limited to
“asking for the same relief only one time.”
MedSol has attempted to appeal from the order denying its second
motion to compel arbitration.
DISCUSSION
The resolution of this appeal turns largely on the proper interpretation
of section 1008, which “limit[s] the parties’ ability to file repetitive motions.”
(Le Francois, supra, 35 Cal.4th at p. 1104.) The statute has two related
but independent components. Section 1008(a) applies to motions for
“reconsideration” that “seek … to ‘modify, amend, or revoke [a] previous
order.’ ” (California Correctional Peace Officers Assn. v. Virga (2010) 181
Cal.App.4th 30, 43 (Virga).) Section 1008(b) concerns the “renewal” of a prior
motion that requests the same relief previously denied but asserts a different
factual or legal basis for that relief. (Virga, at p. 42; accord Zohar, supra, 61
Cal.4th at p. 833 [section 1008(b) “imposes special requirements on renewed
applications for orders a court has previously refused”].) If either subdivision
applies, the motion must be accompanied by an affidavit stating “what new
or different facts, circumstances, or law are claimed to be shown” that justify
the motion. (§ 1008(a) & (b).) Both types of motions require a showing of
diligence “with a satisfactory explanation for not having presented the new
or different information earlier.” (Zohar, at p. 839.) Failure to comply with
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the requirements of the statute means the court has no jurisdiction to
consider the motion. (See § 1008(e); Zohar, at p. 840.)
Hickenbottom contends that MedSol’s second motion to compel
arbitration was a “renewal” of a motion within the meaning of section
1008(b).3 In his view, both motions requested the same relief—an order
compelling him to arbitrate the claims alleged in his complaint.
MedSol makes no effort to argue that it complied with section 1008.
Rather, it contests Hickenbottom’s characterization of the second motion to
compel as a renewed motion for the same relief. It suggests that the relief it
sought in the second motion was an order enforcing a different contract, i.e.,
the 2023 Arbitration Agreement made part of Hickenbottom’s Palomar
Medical Travel Assignment Agreement.4
3 Section 1008(b) provides in relevant part: “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.”
4 Although there is no developed argument to this effect, one line of the
opening brief suggests that in response to its request at the hearing on the
first motion, the trial court “permitted” MedSol to file a second motion,
rejecting Hickenbottom’s argument that “[a]ny subsequent motion would
[just be] an improper motion for reconsideration.” Although the court did not
have the benefit of a transcript, the trial judge did not recall the first hearing
in the same way, commenting that she “[did] not have an independent
recollection of that.” Having reviewed the transcript, we see nothing to
indicate the trial court did anything other than acknowledge that MedSol
would “attempt to file” a second motion, and it certainly said nothing to
imply that such a motion would not require compliance with section 1008.
7
But MedSol did not file a motion to enforce a contract. Indeed, there is
no such thing in California legal procedure.5 Instead, Hickenbottom filed an
action asserting various wage and hour claims, and MedSol responded with
two successive motions to compel arbitration of “the individual claims alleged
in” his complaint pursuant to both section 1281.2 and the Federal Arbitration
Act (FAA). Both motions sought an identical order “(1) compelling
arbitration of Plaintiff’s individual claims, and (2) dismissing Plaintiff’s
class claims.” By its terms, MedSol’s second motion was governed by section
1008(b) because it was a “renewed application[] for [an] order [the] court
has previously refused.” (Zohar, supra, 61 Cal.4th at p. 833; see Deauville
Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843, 849 [“second
application ... based on additional evidence and new circumstances not
presented in connection with the first application” was a renewed motion
within the meaning of section 1008].)
The court reached a similar conclusion in Virga, supra, 181 Cal.App.4th
30, which involved successive motions for attorney’s fees by the plaintiffs in
that case. The first motion relied on a state statute, section 1038, whereas
the second was based on a federal statute, section 1988 of title 42 of the
United States Code. (Virga, at p. 35.) After denying the first motion, the
5 On occasion, a request for the court’s assistance in enforcing an
arbitration agreement can be the basis for an independent action. In this
limited context, the Supreme Court has explained that “[a]n action to compel
arbitration ‘is in essence a suit in equity to compel specific performance of a
contract.’ ” (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040
[independent action by insured against insurer to compel arbitration of an
uninsured motorist claim].) This case does not involve any such independent
action.
8
trial court denied the second as well, finding that the plaintiffs failed to
comply with section 1008. (Virga, at p. 36.)
The Virga court concluded that the second motion for attorney’s
fees was a renewed motion subject to the requirements of section 1008(b).
Like MedSol, the plaintiffs in Virga argued that section 1008 did not apply
because the basis for their second motion (a federal statute) was different
than that of their first motion (a state statute).6 (Virga, supra, 181
Cal.App.4th at p. 43.) The appellate court disagreed, finding it “beyond
dispute” that both motions “sought identical relief.” (Ibid.) The court
explained that regardless “[w]hether [plaintiffs’] motions relied on two
different grounds, the fact remains that both sought an order from the
court directing respondents to pay their attorney fees.” (Ibid.) As a result,
plaintiffs were obligated to comply with the requirements of section 1008(b).
Absent adequate justification, it was their responsibility “to advance all
correct legal theories for an award of attorney fees in their original motion,
so as not to burden the trial court with repeated motions for the same relief.”
(Virga, at p. 47.)
In an attempt to distinguish Virga, MedSol relies on the Virga court’s
observation that the plaintiffs in that case “sought the identical amount[s]”
of attorney’s fees in each of the two motions. (Virga, supra, 181 Cal.App.4th
at p. 43.) It points to another attorney’s fee case in which different amounts
were claimed—Doe v. Westmont College (2021) 60 Cal.App.5th 753, 761
(Westmont)—as support for the proposition that any variation in the relief
6 To frame the argument in the same terms MedSol employs, the first
motion in Virga sought to enforce a right created by a state statute whereas
the second attempted to enforce a federal statutory right.
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requested renders section 1008 inapplicable.7 The short answer is that the
relief requested in MedSol’s two motions is identical: an order compelling
arbitration of the individual claims in Hickenbottom’s complaint and
dismissing his class claims. Even if Virga and Westmont are read to mean
that a second attorney’s fee motion is not a “renewal” unless it requests the
identical amount of fees, it would in no way suggest that the second motion
to compel arbitration in this case is not a renewed motion.8
MedSol also cites Westlands Water Dist. v. All Persons Interested (2023)
95 Cal.App.5th 98 (Westlands) but it, likewise, arises in a very different
procedural context and does not suggest, let alone compel, a different result.
Indeed, the decision in the case did not really turn on whether section 1008(b)
applied. Westlands was a special validation action (§ 860 et seq.; Gov. Code,
§ 53511; Water Code, § 35855) filed by a water district that sought to validate
a public water contract. (Westlands, at p. 113.) The district first filed a
“ ‘Motion for Validation of Contract’ ” based on an unexecuted draft of an
7 Westmont also involves a significantly different procedural context.
In an administrative mandate proceeding, the trial court granted the petition
but denied the petitioner’s request for attorney’s fees. The respondent
appealed; the petitioner did not. The appellate court affirmed the granting
of the petition in a published opinion. On remand, the petitioner made a
new request for attorney’s fees under section 1021.5 based on the published
appellate opinion that had not been written at the time of the original fee
motion.
8 To see why we have difficulty accepting MedSol’s expansive
interpretation of Virga and Westmont, consider the following: A party brings
a motion for attorney’s fees based on a provision in a contract. The motion
is denied. The same party then files a second attorney’s fee motion based
on a different contract, but also includes an additional hour of attorney time
inadvertently omitted from the first motion. MedSol would apparently assert
that the second motion was not a renewal of the first, and subject to section
1008(b), simply because the amount of fees requested was not identical.
10
“anticipated” contract, and that motion was denied. (Id. at pp. 114; see
id. at p. 118.) It later filed a “Renewed Motion for Validation Judgment,”
accompanied by an affidavit pursuant to section 1008(b) that attached a
later-executed contract with material differences. (Westlands, at p. 120; see
id. pp. 113, 133–134.) The second motion was also denied (id. at p. 133), and
the Court of Appeal affirmed the resulting judgment. In doing so, it cited
both Virga and Westmont in concluding that the district’s second “motion”
was not really a renewed motion because it sought fundamentally different
relief—the validation of a different contract than was the subject of the first
motion. (Westmont, at p. 134.)
The nature of the relief requested in a motion to compel arbitration is
fundamentally different from that sought in a validation action. A validation
action asks that a particular contract be approved. If the contract changes,
the request for relief changes as well. In contrast, a motion to compel
arbitration seeks to transfer a set of legal claims from the public court system
to a private arbitration system. Here, both of MedSol’s motions sought the
same relief—an order compelling arbitration of the same claims. The
second motion was, accordingly, a renewal of the first and subject to the
requirements of section 1008(b).
In a last-ditch assault on the trial court’s ruling, MedSol suggests that
if section 1008 is interpreted as applying to the second and renewed motion
to compel, it is preempted by the FAA because such an interpretation would
“single[] out arbitration agreements” for special adverse treatment that
operates to “disfavor[] arbitration.” (See, e.g., Kindred Nursing Centers Ltd.
Partnership v. Clark (2017) 581 U.S. 246, 248 [FAA “requires courts to place
arbitration agreements ‘on equal footing with all other contracts’ ”]; Viking
River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 650 [“FAA ‘preempts any
11
state rule discriminating on its face against arbitration’ ”].) But as we have
explained, our construction of section 1008 does not single out arbitration
agreements for different treatment. Rather, it applies a reasoned
interpretation of the statute to motions to compel arbitration in the same
way as it is applied to all other motions. Indeed, our rationale has nothing
to do with arbitration and everything to do with the nature of the requested
relief as distinguished from the basis for the request.
Our reliance on the attorney’s fee motions in Virga sufficiently
illustrates the point. Assume that instead of a motion for attorney’s fees
based on a statute, the plaintiff in Virga filed the first motion relying on a fee
provision in a contract. After that motion was denied, the plaintiff filed a
second motion seeking the same fees but relying on a different fee clause in a
different contract. The second motion would be a renewal of the first motion
and subject to the requirements of section 1008(b) notwithstanding that it
had nothing to do with arbitration. In short, not only does the FAA not
require that we create an exception to the general application of section 1008;
it would prohibit us from doing so. (Morgan v. Sundance, Inc. (2022) 596
U.S. 411, 418 [“federal policy is about treating arbitration contracts like all
others”]; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951,
972 [“arbitration agreement[s] must be enforced on the basis of state law
standards that apply to contracts in general”].)
Because MedSol failed to comply with section 1008(b)—in particular
the requirement that a renewed motion be accompanied by an affidavit
explaining “what new or different facts, circumstances, or law” are claimed to
justify the motion—the trial court had no jurisdiction to entertain its second
motion to compel arbitration. (Ibid.; § 1008(e).) As a result, the court’s order
denying the second motion is not appealable and we have no choice but to
12
dismiss the appeal.9 (Chango Coffee, Inc. v. Applied Underwriters, Inc.
(2017) 11 Cal.App.5th 1247, 1249.)
DISPOSITION
The appeal is dismissed. Hickenbottom shall recover his costs on
appeal.
DATO, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
9 MedSol suggests we should exercise our discretion to treat its
purported appeal as a petition for writ of mandate and address the merits
of the underlying motion to compel arbitration. That might be possible had
MedSol followed the dictates of section 1008 in filing its renewed motion and
merely argued that the court erred in denying it. But MedSol’s suggestion
that we treat the faulty appeal as a writ petition ignores the fact that its
failure to comply with section 1008 deprived the trial court of jurisdiction to
entertain the second motion. If we issued a peremptory writ directing the
trial court to grant the motion to compel arbitration, as MedSol would have
us do, we would be directing something the trial court had no power to order.
Although we may have the discretion to treat an attempted appeal as a
mandate petition in appropriate circumstances, we cannot confer jurisdiction
where it does not exist.
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