Filed 9/9/26 Hundert v. Barazani CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KEVIN HUNDERT, B340225
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24VECV00997)
v.
SHARONE BARAZANI et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Eric Harmon, Judge. Dismissed.
Ablon, Lewis, Bass & Gale, Jerald E. Gale and Lawrence J.
Poteet for Defendants and Appellants.
Ross Legal Corp. and Polina L. Ross for Plaintiff and
Respondent.
________________________
INTRODUCTION
Sharone Barazani and CA Homes Fund, Inc. (collectively,
CA Homes) appeal from an order denying their second motion to
compel arbitration, which the trial court determined raised the
same issues as their first motion to compel arbitration.
CA Homes did not appeal from the court’s order denying the first
motion to compel arbitration. We conclude CA Homes appeals
from a nonappealable order and dismiss the appeal because we
lack jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Barazani is a licensed realtor for Coldwell Banker Real
Estate, LLC. He is an officer and principal of CA Homes
Fund, Inc. In 2020, CA Homes purchased a residential property
in Sherman Oaks, which it renovated and sold to Kevin Hundert
in 2021. Barazani was the listing agent.
In 2024, Hundert sued Barazani, CA Homes, and Coldwell
Banker for negligence, negligent misrepresentation, breach of
contract, fraud, construction defects and fraudulent business
practices.1 Hundert alleged CA Homes, as the seller, and
Barazani, as the seller’s agent, made multiple representations to
Hundert during the disclosure period, including that: the roof
was new; CA Homes obtained permits for the renovations to the
home; the renovations complied with applicable building codes;
there were no material defects; no one had died in the home
1 Coldwell Banker was not served nor did it appear in the
case. It is not a party to this appeal.
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within the last three years; and the electrical, plumbing, and
appliances were new. Hundert alleged these statements were
false and, among other things, he discovered various defects in
the home’s roof, retaining wall, and appliances.
A. The First Motion To Compel Arbitration
CA Homes moved to compel arbitration, relying on the
following provision in the form purchase contract signed by the
parties: “The Parties agree that any dispute or claim in Law or
equity arising between them out of this Agreement or any
resulting transaction, which is not settled through mediation,
shall be decided by neutral, binding arbitration. . . . Enforcement
of this agreement to arbitrate shall be governed by the Federal
Arbitration Act [FAA]. . . [¶] . . . ‘By initialing in the space below
you are agreeing to have any dispute arising out of the matters
included in the “arbitration of disputes” provision decided by
neutral arbitration as provided by California law and you are
giving up any rights you might possess to have the dispute
litigated in a court or jury trial.’ [Bold and capitalization
omitted.]” CA Homes advised the court the parties had
participated in mediation, as the contract required, but were
unsuccessful in resolving their dispute. CA Homes requested the
court order the action stayed pending the outcome of arbitration.
Although the arbitration provision stated enforcement would be
governed by the FAA, CA Homes did not rely on the FAA in its
motion, and it instead stated it moved to compel arbitration
“pursuant to California Code of Civil Procedure Sections 1281.2
and 1281.4” and cited only California case law.
Hundert opposed and argued the allegations in his
complaint did not fall within the scope of the arbitration
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provision because they were mainly premised on CA Homes’
negligent construction of the property rather than breach of the
purchase contract. Hundert further argued Barazani and
Coldwell Banker were not signatories to the purchase contract
and as a matter of law could not compel arbitration. Lastly,
Hundert asserted the arbitration provision was governed by the
FAA, which prohibited the court from staying the litigation.
CA Homes, in its reply brief, argued the arbitration
provision “clearly provides that California substantive state law
pertaining to arbitration is to be applied,” and it also argued the
FAA authorized the court to stay the proceedings pending
arbitration. CA Homes did not otherwise rely on the FAA as a
basis for its motion to compel arbitration.
On May 28, 2024, the trial court granted the motion to
compel arbitration of Hundert’s breach of contract claim but
stayed the matter as to the tort claims. The court reasoned that
although “any arbitration conducted pursuant to the Agreement’s
arbitration clause is to be done in accordance with the California
Arbitration Act [CAA], enforcement of the arbitration clause,
including a motion to compel arbitration, is to be governed by the
[FAA]. (See Victrola 89, LLC v. Jaman Properties 8 LLC (2020)
46 Cal.App.5th 337, 346 [(Victrola 89)] [‘[W]hen an agreement
provides that its “enforcement” shall be governed by the FAA, the
FAA governs a party’s motion to compel arbitration.’].)”
The court then interpreted the arbitration provision to
encompass only disputes relating to the interpretation and
performance of the purchase agreement because the arbitration
provision extended only to disputes “ ‘arising . . . out of this
Agreement.’ ” Citing California authorities, the court determined
the arbitration provision did not encompass Hundert’s tort causes
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of action. Specifically, the court followed Rice v. Downs (2016)
248 Cal.App.4th 175 (Rice), which addressed whether an
arbitration provision containing the phrase disputes “arising out
of” a contract could be interpreted to subject tort claims to
arbitration. Rice examined both federal and state authorities
that utilized the CAA and the FAA to consider the question and
concluded that the phrase “arising out of” was narrow in
application and “extended only to disputes relating to the
interpretation and performance of the agreement.” (Rice, at
pp. 189–190.) As a result, the court granted the motion only as to
the third cause of action for breach of contract, denied the motion
as to the remaining five tort causes of action, and stayed the
proceedings pending the outcome of arbitration. CA Homes did
not appeal this ruling.
B. The Second Motion To Compel Arbitration
On June 20, 2024, approximately three weeks after the
trial court issued its ruling on the first motion to compel
arbitration, CA Homes filed a second motion to compel
arbitration. CA Homes argued the trial court erroneously relied
on case law interpreting arbitration agreements pursuant to and
under the CAA even though the arbitration provision stated,
“ ‘Enforcement of this agreement to arbitrate shall be governed
by the Federal Arbitration Act. [Bold omitted.]’ ” CA Homes
cited Victrola 89, supra, 46 Cal.App.5th at page 337 to argue
that, “Pursuant to the Federal Arbitration Act, the parties are
required to arbitrate any and all disputes which arise out of the
‘Agreement or any resulting transaction.’ ” As stated, the trial
court had previously relied on Victrola 89 and California state
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cases addressing the FAA in its ruling denying the first motion to
compel arbitration.
Hundert opposed, arguing the second motion was a
defective motion for reconsideration or renewed motion (see Code
of Civil Procedure, section 1008, subdivisions (a) & (b)), and the
court lacked jurisdiction to rule on it. Hundert also argued the
court “ruled correctly the first time.” Hundert asserted the
second motion “belatedly” cited federal and state case law that
existed before the first motion was filed, including Victrola 89.
The trial court denied the second motion, reasoning that,
“Moving Parties move a second time to compel arbitration of the
same causes of action in the Complaint. They may not do so.
Their motion to compel arbitration has already been heard and
ruled upon. (5/28/24 Minute Order p. 9.) This court entered a
final order on Moving Parties’ motion to compel arbitration, and
Moving Parties are now estopped from relitigating the same
issues in a new motion. The court has reviewed both the First
Motion and the Second Motion to Compel Arbitration and both
involve the exact same issues. There has been no change in the
law nor the facts, only new arguments based on facts and law
that were all available at the time of the first motion and not
persuasive in any event.” The court also explained it did not
consider the second motion to be one for reconsideration and,
even if it were a motion for reconsideration, the court would deny
it for failure to comply with the requirements of Code of Civil
Procedure section 1008.2
CA Homes timely appealed from the second order.
2 Undesignated statutory references are to the Code of Civil
Procedure.
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DISCUSSION
As a threshold matter, we examine whether CA Homes
appeals from an appealable order. We conclude it did not. As a
result, we do not reach the merits of CA Homes’ appeal because
we lack appellate jurisdiction.
A. Governing Law and Standard of Review
“[A]n appellate court generally lacks jurisdiction to decide
an appeal from an order unless the order is one that is expressly
made appealable by statute.” (Meinhardt v. City of Sunnyvale
(2024) 16 Cal.5th 643, 652 (Meinhardt); accord Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 696.)
Section 1008 provides, in pertinent part: “(a) When an
application for an order has been made to a judge, or to a court,
and refused in whole or in part, or granted, or granted
conditionally, or on terms, any party affected by the order may,
within 10 days after service upon the party of written notice of
entry of the order and based upon new or different facts,
circumstances, or law, make application to the same judge or
court that made the order, to reconsider the matter and modify,
amend, or revoke the prior order. The party making the
application shall state 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. [¶] (b) 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,
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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.”
As relevant here, both a motion for reconsideration under
subdivision (a) of section 1008 and a renewed motion under
subdivision (b) must be based upon new or different facts,
circumstances, or law and must be accompanied by a supporting
affidavit. (California Correctional Peace Officers Assn. v. Virga
(2010) 181 Cal.App.4th 30, 43–44 (Virga).) A motion for
reconsideration under subdivision (a) must be filed within
10 days after service of written notice of entry of the order and
may seek modification, amendment, or revocation of the prior
order. (Virga, at p. 44.) A renewed motion under subdivision (b),
on the other hand, seeks an identical order and does not have the
same filing deadline. (Ibid.)
Subdivision (g) of section 1008 provides: “An order denying
a motion for reconsideration made pursuant to subdivision (a) is
not separately appealable. However, if the order that was the
subject of a motion for reconsideration is appealable, the denial of
the motion for reconsideration is reviewable as part of an appeal
from that order.” An order denying a renewed motion under
subdivision (b) of section 1008 is likewise not appealable.
(Westmoreland v. Kindercare Education LLC (2023)
90 Cal.App.5th 967, 970 (Westmoreland); Chango Coffee, Inc. v.
Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1249
(Chango); Tate v. Wilburn (2010) 184 Cal.App.4th 150, 160
(Tate).)
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B. The Order Denying the Second Motion To Compel
Arbitration Is Not an Appealable Order
Hundert argues the appeal should be dismissed because
CA Homes appeals from a nonappealable order. Hundert
contends the order denying CA Homes’s second motion to compel
arbitration is “not separately appealable” pursuant to
section 1008, subdivision (g).
CA Homes argues it appeals from an order denying a
“second and separate motion to compel arbitration” that “was
based on an entirely different statutory scheme.” CA Homes
bases its argument on the trial court’s statement that “[t]he
Moving Parties do not move for reconsideration nor is the court
treating the current Motion as a motion for reconsideration.”
Given the trial court’s characterization of its motion, CA Homes
argues an order denying an independent motion to compel
arbitration is directly appealable under Code of Civil Procedure
section 1294, subdivision (a). CA Homes’ arguments lack merit.
We are not bound by the trial court’s statement that it did
not consider the second motion to be one for reconsideration. (See
20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th
1247, 1261 [upon good cause, an appellate court may construe a
motion as something other than that which it was labeled]; see
also J.W. v. Watchtower Bible & Tract Society of New York, Inc.
(2018) 29 Cal.App.5th 1142, 1171 [“This court reviews the trial
court’s ruling, not its reasoning”].) Nor are we bound by
CA Homes’ characterization of its motion. “ ‘The name of a
motion is not controlling, and, regardless of the name, a motion
asking the trial court to decide the same matter previously ruled
on is a motion for reconsideration under Code of Civil Procedure
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section 1008.” (J.W., at p. 1171; Sole Energy Co. v. Petrominerals
Corp. (2005) 128 Cal.App.4th 187, 193.)
The second motion is more appropriately a motion to renew
under section 1008, subdivision (b), which authorizes a “party
who originally made an application for an order which was
refused in whole or part . . . [to] make a subsequent application
for the same order upon new or different facts, circumstances, or
law . . . .” Here, CA Homes originally moved to compel
arbitration of the causes of action alleged in Hundert’s complaint.
That motion was denied in part; the court granted it only as to
the contract cause of action and denied it as to the remaining tort
causes of action. CA Homes then made a subsequent motion for
the same order, purportedly based on different law (i.e., the FAA
rather than the CAA). Given these facts, CA Homes’ second
motion to compel arbitration was a renewed motion to compel
arbitration. (See Hickenbottom v. Medical Solutions LLC
(August 26, 2026, D086542) __ Cal.App.5th __ [2026 Cal.App.
Lexis 515] (Hickenbottom) [second motion to compel arbitration
based on different arbitration agreement was a motion for
renewal under section 1008, subdivision (b)]; Virga, supra,
181 Cal.App.4th at p. 43 [concluding motion seeking identical
relief was a renewed motion under section 1008, subdivision (b),
where the first motion was based on a federal statute and the
second was based on a state statute].)
In all events, whether the motion was one for
reconsideration or one for renewal, neither motion is appealable.3
3 At oral argument, counsel for CA Homes argued section
1008 is preempted by the FAA, relying on Viking River Cruises,
Inc. v. Moriana (2022) 596 U.S. 639, 650. CA Homes does not
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“An order denying a motion for reconsideration made pursuant to
subdivision (a) is not separately appealable.” (§ 1008, subd. (g).)
And “ ‘an order denying a renewed motion,’ including a renewed
motion to compel arbitration, ‘is not appealable.’ ”
(Westmoreland, supra, 90 Cal.App.5th at p. 970; accord, Chango,
supra, 11 Cal.App.5th at p. 1252; see also Tate, supra,
184 Cal.App.4th at p. 160 [examining legislative history of and
analyzing section 1008, subdivision (b) to hold that an order
denying a renewed motion is not appealable].) We therefore lack
jurisdiction to consider CA Homes’ appeal and dismiss it.
(Meinhardt, supra, 16 Cal.5th at p. 652.)
raise this preemption argument in its briefing and it is forfeited.
(See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6 [“An
appellate court is not required to consider any point made for the
first time at oral argument”]; Bonfigli v. Strachan (2011) 192
Cal.App.4th 1302, 1311, fn. 4 [“[C]ontentions raised on appeal for
the first time at oral argument are generally [forfeited].”].) But
even considering the argument on the merits, we are not
persuaded. Viking River Cruises held, “the FAA ‘preempts any
state rule discriminating on its face against arbitration—for
example, a law “prohibit[ing] outright the arbitration of a
particular type of claim.” ’ ” (Id. at p. 650.) Hickenbottom, supra,
__ Cal.App.5th at page *12 examined Viking Cruises and
section 1008 at length and rejected the argument. Hickenbottom
explained, the FAA does not preempt section 1008 because
“section 1008 does not single out arbitration agreements for
different treatment. Rather, [section 1008 applies] 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.” (Ibid.)
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DISPOSITION
The appeal is dismissed. Hundert may recover his costs on
appeal.
MARTINEZ, P. J.
We concur:
FEUER, J. STONE, J.
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