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Table of Contents     Cover     Featured Article

MCLE Test and Answer Sheet

Test No. 82: About Face  (March 2000 LA Lawyer)

Instructions for Obtaining MCLE Credits
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.


1.Study the CLE article in this issue.


2.Answer the test questions by marking the appropriate boxes. Each question has only one answer. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced.

3.Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:
Los Angeles Lawyer
MCLE Test
P.O. Box 55020
Los Angeles, CA 90055 
Make checks payable to Los Angeles Lawyer.

4.You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.

5.Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.

6.For future reference, please retain the CLE test materials returned to you.
Test Sheet 
Mark your answers to the test by clicking next to your choice.  All questions must be answered.  Each question has only one answer. This test is worth 1 hour of credit.*

1. Under Section 1008 of the Code of Civil Procedure, a party that loses a motion cannot bring a second motion requesting the same relief if more than 10 days have passed since the party received written notice of entry of the order denying the motion.
True.
False.

2. Section 1008 creates a jurisdictional bar for reconsideration of prior motions in the sense that it purports to remove a trial court's jurisdiction to reconsider unless the requirements set forth in the statute are satisfied.
True.
False.

3. The jurisdictional bar of Section 1008 arises from:
A. Case law construing the statute.
B. The separation of powers doctrine in the California Constitution.
C. Explicit language in subdivision (e) of Section 1008.
D. A and C.

4. It is settled case law that any jurisdictional bar created by Section 1008 does not apply when the trial court indicates that it is acting sua sponte.
True.
False.

5. The power to reconsider is deemed an "inherent" power of the trial court because:
A. The power is expressly granted to trial courts in the California Constitution.
B. The power is derived from the California Constitution
C. The power is necessary for the trial court to administer justice.
D. A and C.
E. B and C.

6. Under the separation of powers doctrine, inherent powers of the courts cannot be limited or otherwise regulated by the legislature.
True.
False.

7. In terms of settled case law, what can a trial court reconsider under Section 1008.
A. A trial court has the jurisdiction to change its mind at any time up to the entry of judgment.
B. A trial court cannot modify or reverse a prior ruling if a party, in seeking the modification or reversal, has not demonstrated "new or different facts, circumstances or law."
C. A trial court can modify or reverse a prior ruling at any time if it determines that there has been a change of law.
D. None of the above.

8. Notwithstanding the 1992 amendment to Section 1008, a trial court, upon a showing that its prior ruling was clearly erroneous, retains the jurisdiction to modify or reverse that ruling until the entry of judgment.
True.
False.

9. The purpose of the 1992 amendment to Section 1008, according to the legislature's stated reasons for doing so, was:
A. To reduce the number of motions for reconsideration being heard by the trial courts.
B. To limit the reconsideration of interim and final orders.
C. To prohibit trial courts from hearing motions for reconsideration unless the "new or different facts, circumstances, or law" requirements have been met.
D. All of the above.

10. An appellate court reviewing the grant or denial of a motion for reconsideration will always review the correctness of the order or ruling at issue in the motion for reconsideration.
True.
False.

11. In People v. Castello, a 1998 decision, the Fourth District held that Section 1008 is unconstitutional to the extent that:
A. It purports to limit the trial court's inherent power to reconsider.
B. It purports to remove the trial court's jurisdiction to exercise "due consideration" in reconsidering a prior ruling.
C. It purports to remove the trial court's inherent power to correct its own perceived errors.
D. B and C.

12. In Castello, the Fourth District affirmed the trial court's sua sponte reconsideration.
True.
False.

13. The Second District's recent decision in Darling, Hall & Rae v. Kritt appears to conflict with the Second District's earlier decision in Morite of California v. Superior Court because:
A. In Darling, Hall & Rae (but not in Morite), the court held that a trial court should exercise due consideration when determining whether to modify or reverse a prior ruling.
B. In Darling, Hall & Rae (but not in Morite), the court held that the trial court acted in excess of its jurisdiction.
C. In Morite (but not in Darling, Hall & Rae), the court held that Section 1008 limits the jurisdiction of the trial court to grant reconsideration sua sponte.
D. All of the above.

14. According to Darling, Hall & Rae, sua sponte reconsideration is materially distinguishable from reconsideration after motion or application insofar as the latter may result in a waste of judicial resources, while the former will not.
True.
False.

15. In an implicit comparison with the decisions of other appellate districts in California, the Second District in Darling, Hall & Rae:
A. Rejected the reasoning underlying the case law from the First District, which holds that Section 1008 is exclusive and jurisdictional.
B. Distinguished the case law in the First District, which holds that Section 1008 is exclusive and jurisdictional.
C. Expressly approved the constitutional analysis set forth in the Fourth District's decision in Castello.
D. All of the above.

16. If a motion is denied in whole or in part, a party has nothing to lose by moving for reconsideration-even if the prerequisites of Section 1008 cannot be met.
True.
False.

17. Cases construing Section 1008:
A. Have unanimously sanctioned a party that seeks reconsideration without showing that the prerequisites of the statute have been satisfied.
B. Have unanimously refused to sanction a party that seeks reconsideration without showing that the prerequisites of the statute have been satisfied.
C. Have unanimously refused to sanction a party that seeks reconsideration without showing that the prerequisites of the statute have been satisfied, absent a showing that the party acted in bad faith.
D. None of the above.

18. While no decision has explicitly held that the jurisdictional bar of Section 1008 is unconstitutional because it defeats or materially impairs the trial court's inherent power to reconsider, the Fourth District's decision in Castello comes close.
True.
False.

19. In analyzing whether the jurisdictional bar imposed by Section 1008 is unconstitutional, the distinction between reconsideration granted sua sponte and reconsideration granted after application or motion can be said to be immaterial because:
A. A trial court's inherent power to reconsider can be defeated or materially impaired by a reconsideration that is either initiated sua sponte or by application or motion.
B. Some action by a party affected by the prior ruling or order-whether styled as a motion for reconsideration, a motion for clarification, objections, or otherwise-often initiates reconsideration that the trial court deems to be sua sponte reconsideration.
C. Prohibiting a trial court from correcting what it perceives to be its own error undercuts its essential function in administering justice, whether the trial court has acquired this perception sua sponte or after application or motion.
D. All of the above.

20. For the same reasons that Section 1008's jurisdictional bar poses constitutional problems, Section 1008's limitation of a party's entitlement to reconsideration raises constitutional questions.
True.
False.

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*The Los Angeles County Bar Association has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by The State Bar of California. This self-assessment activity will qualify for Minimum Continuing Legal Education credit by The State Bar of California in the amount of one hour.

   
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