Filed 7/20/15

IN THE SUPREME COURT OF CALIFORNIA

EVEN ZOHAR CONSTRUCTION & )

REMODELING, INC., )

)

Plaintiff and Appellant, ) S210804

)

v. ) Ct.App. 2/4 B239928

)

BELLAIRE TOWNHOUSES, LLC, et al., ) Los Angeles County

) Super. Ct. No. BC458347

Defendants and Respondents. )

____________________________________)

Code of Civil Procedure1 section 1008 imposes special requirements on 

renewed applications for orders a court has previously refused. A party filing a 

renewed application must, among other things, submit an affidavit showing what 

―new or different facts, circumstances, or law are claimed‖ (id., subd. (b)) to 

justify the renewed application, and show diligence with a satisfactory explanation 

for not presenting the new or different information earlier (California Correctional 

Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 45–46, & fns. 14–15; 

see Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 688–690). Section 1008 by its 

terms ―applies to all applications . . . for the renewal of a previous motion‖ and 

―specifies the court‘s jurisdiction with regard to [such] applications.‖

2 (§ 1008, 

 

1 All further statutory citations are to the Code of Civil Procedure, except as 

noted. 

2 In the present context, the terms ―motion‖ and ―application‖ are 

interchangeable. (See § 1003 [―An application for an order is a motion.‖].) 
2

subd. (e).) This case raises the question whether section 1008 governs renewed 

applications under section 473, subdivision (b) (section 473(b)), for relief from 

default based on an attorney‘s ―sworn affidavit attesting to his or her mistake, 

inadvertence, surprise, or neglect‖ (ibid.). We conclude section 1008 does govern

such applications. Because defendants concede their renewed application did not 

satisfy section 1008, we affirm the Court of Appeal‘s decision vacating the 

superior court‘s order granting relief from default. 

I. BACKGROUND

Plaintiff Even Zohar Construction & Remodeling, Inc., sued defendants 

Bellaire Townhouses, LLC, Samuel N. Fersht and the Fersht Family Living Trust 

for breach of contract and related claims arising out of a project to develop a 

condominium in North Hollywood. Defendants unsuccessfully petitioned to 

compel arbitration and then failed to file a responsive pleading to the complaint. 

Thereafter, the clerk entered defendants‘ default, and the court entered a default 

judgment in the amount of $1,701,116.70. 

Defendants subsequently filed an application under section 473(b) for relief 

from default. Defendants titled their application one for ―mandatory relief,‖ 

thereby invoking the aspect of section 473(b) that requires a court to grant relief 

when the application is ―accompanied by an attorney‘s sworn affidavit attesting to 

his or her mistake, inadvertence, surprise, or neglect, . . . unless the court finds that 

the default . . . was not in fact [so] caused . . . .‖ The same provision authorizes 

discretionary relief when ―a judgment, dismissal, order, or other proceeding‖ is 

taken against a party or a party‘s legal representative ―through his or her mistake, 

inadvertence, surprise, or excusable neglect.‖ (Ibid.) 

Accompanying the application was the affidavit of defendants‘ attorney, 

Daniel Gibalevich. In that sworn statement, Attorney Gibalevich attributed the 

default primarily to errors by his staff. He declared that, at the time defendants‘ 
3

responsive pleading was due, he ―had to spend substantial amounts of time away 

from the office‖ on personal matters. ―I believed,‖ he continued, ―that I had 

sufficient staff to assure competent handling of client files. My associates were 

instructed to notify me immediately of issues that would require my personal 

attention. It appears that my staff failed to maintain this file in accordance with 

this firm‘s policies and procedures. [¶] Due to my frequent absences, I failed to 

file and serve the responsive pleading. . . . It is clear that my mistake and 

excusable neglect resulted in the entry of defaults and default judgments against 

the Defendants.‖ Plaintiff opposed the motion with evidence that its attorney had 

repeatedly informed Gibalevich, by mail, e-mail and fax, of the impending default. 

Plaintiff also contended that Gibalevich and defendant Fersht had allowed the 

default to be taken as part of a practice of avoiding defendants‘ obligations to 

contractors by delaying payment and driving up legal fees and costs. 

The superior court denied defendants‘ motion for relief from default, 

expressly finding Gibalevich‘s declaration ―not credible.‖ At the hearing on the 

motion, the court had criticized the declaration as ―too vague and conclusory‖ and 

as ―fuzz[ing] up the issue‖ of Gibalevich‘s own responsibility. The court repeated 

this criticism in its order, describing the declaration as ―entirely too general‖ in 

light of plaintiff‘s showing, and as failing to show that ―Gibalevich is solely at 

fault in not filing a timely responsive pleading.‖ ―Moreover,‖ the court continued, 

―attorney Gibalevich tries to have it both ways‖ by speaking vaguely of his own 

fault while also claiming excusable neglect. ―He has not demonstrated excusable 

neglect.‖ 

Thirty-three days later defendants filed a second ―Notice of Motion for 

Mandatory Relief under [section] 473 to Vacate Defaults and Default 

[Judgments].‖ Accompanying the renewed motion was a second affidavit by 

Gibalevich, in which he offered a different explanation for his failure to file a 
4

responsive pleading. That failure, he now asserted, had resulted from 

preoccupation with efforts to secure the return of other clients‘ files seized from 

his office as part of a criminal investigation. ―[I]nvestigators with the Los Angeles 

District Attorney‘s Office,‖ Gibalevich declared, had served a search warrant at 

his office as part of an ―investigation focused on medical providers and not on me 

or my practice.‖ ―[O]ne of my associates, Mr. Savransky, resigned his position 

right after the search. That left me and Ms. Gina Akselrud as [the] only attorneys

shouldering this heavy load.‖ Gibalevich continued: ―In my effort to secure the 

return of my client files, I engaged Mr. Shkolnikov, a criminal defense attorney. I 

volunteered to assist him in his research and drafting efforts.‖ ―I spent all of my 

time on efforts to return my client‘s files. I researched and wrote many drafts of 

the motions that were filed. This consumed me. I was working on this most of the 

day, every day. When I wasn‘t in front of the computer, I thought of nothing else. 

[¶] I began to obsess over my reputation and the disclosures that I had to make to 

Judges and opposing counsel alike.‖ ―I have to confess,‖ Gibalevich concluded, 

―that this feeling of embarrassment is the reason why I failed to set out these facts 

in the declaration previously filed.‖ 

Gibalevich‘s associate attorney Akselrud submitted a declaration confirming 

the search, Gibalevich‘s and her own frequent absences from the office to make 

court appearances to continue hearings and trials, and Gibalevich‘s obsession with 

securing the return of his clients‘ files. Akselrud did not, however, confirm or 

mention Gibalevich‘s earlier sworn statement that his staff had failed to maintain 

the file in the instant case. Attorney Shkolnikov also submitted an affidavit stating

that Gibalevich had devoted ―all of his time and effort‖ to assisting Shkolnikov in 

recovering the seized files. 

The superior court stayed execution of the default judgment to allow time to 

consider defendants‘ renewed motion for relief from default. In the hearing on 
5

that motion, the court stated: ―Mr. Gibalevich, you are presenting an entirely 

different story with this application than you have presented to the court 

originally.‖ ―You tried to blame it on a miscalendaring when the evidence is that 

your office received multiple, multiple notices before the defaults were entered in 

all different kinds of ways. [¶] And frankly, your story about being obsessed with 

this search warrant for the entire period of time is just not credible. You originally 

told the court you had to be out of the office for substantial periods of time. Now 

you say you‘re conducting all kinds of research on your computer in your office. 

[¶] You‘re not credible, Mr. Gibalevich.‖ ―You could have presented all of that 

with your original [affidavit]—these are not new facts.‖ In response, Gibalevich 

argued that the facts supporting a renewed motion ―don‘t have to be new facts. 

Under [section] 1008(b), they have to be different facts. They don‘t have to be 

new facts.‖

3 

Ruling on defendants‘ second application under section 473(b), the superior 

court once again rejected Gibalevich‘s explanations. ―Attorney Gibalevich,‖ the 

court observed, ―first blamed the default and default judgment entered against 

defendants . . . on the lawyers he employed in his office.‖ ―When he lost the first 

motion,‖ the court continued, ―Gibalevich filed another motion. The second 

motion fails to comply with the requirements of section 1008(b). In this motion, 

attorney Gibalevich changed his story and blamed the default and default 

 

3 Defendants have abandoned this argument. As courts have explained, to 

permit a party to satisfy section 1008‘s requirement of showing ―new or different 

facts‖ simply by offering ―anything not previously  ̳presented‘ to the court‖ would 

have ―[t]he miserable result . . . [of] defeat[ing] the Legislature‘s stated goal of 

reducing the number of reconsideration motions and would remove an important 

incentive for parties to efficiently marshall their evidence.‖ (Garcia v. Hejmadi, 

supra, 58 Cal.App.4th at pp. 688–689; see California Correctional Peace Officers 

Assn. v. Virga, supra, 181 Cal.App.4th at p. 47, fn. 15 [same].) 
6

judgment on his having become obsessed with the consequences of a search 

warrant executed on his office by the Los Angeles County District Attorney. 

(Neither the search warrant nor its consequences concerned the files of the 

defendants in this action.)‖ Moreover, ―[t]he associate in Mr. Gibalevich‘s office 

did not support the claim in attorney Gibalevich‘s [first] declaration that she failed 

to maintain the [defendants‘] file or notify Mr. Gibalevich of the entry of default 

and default judgment against [defendants].‖ 

Even while concluding defendants had not satisfied the requirements of 

section 1008, the superior court nevertheless granted their renewed application for 

relief from default. The court explained that it felt ―bound to follow‖ Standard 

Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868

(Standard Microsystems), which the court understood as holding that section 

473(b) takes precedence over section 1008, and that relief under section 473(b) 

based on an attorney‘s affidavit of fault is mandatory where no part of the fault is 

shown to be attributable to the attorney‘s clients. (Cf. Standard Microsystems, at 

pp. 894–904.) On this basis the court vacated the defaults and default judgment

and directed the clerk to file defendants‘ answer to the complaint. 

Plaintiff appealed, and the Court of Appeal reversed. The court declined to 

follow Standard Microsystems, supra, 179 Cal.App.4th 868, criticizing that 

decision as ―undermin[ing] the Legislature‘s goal to limit repetitive motions and to 

provide  ̳an important incentive for parties to efficiently marshall their evidence‘

in the first instance.‖ (Quoting Garcia v. Hejmadi, supra, 58 Cal.App.4th at 

p. 689.) ―In this instance,‖ the Court of Appeal observed, ―Gibalevich‘s 

declaration failed to adequately explain why he had not included the facts about 

the search warrant execution and his response thereto in his first declaration. . . . 

Information about [those events] was obviously in Gibalevich‘s possession when 

he filed the first motion [for relief from default] and the relevance of the events (if 
7

true) was patent. Gibalevich‘s only explanation for not having presented this 

information earlier was that he was embarrassed. The trial court did not find this 

explanation credible. That finding—a finding defendants do not contest—is 

binding upon us. [Citation.] Given the inadequacy of the defense showing, the 

trial court did not abuse its discretion in finding that defendants had failed to 

establish the predicates for relief under section 1008, subdivision (b).‖ ―Based 

upon that finding,‖ the Court of Appeal concluded, ―the trial court should have 

denied defendants‘ renewal motion for lack of jurisdiction.‖ Accordingly, the 

Court of Appeal reversed the superior court‘s order granting relief from default 

and directed the court to reinstate the defaults and the default judgment. 

We granted defendants‘ petition for review. 

II. DISCUSSION

As noted, the Court of Appeal held defendants‘ failure to comply with 

section 1008 required the trial court to reject their renewed application for relief 

from default. The Court of Appeal was correct. 

The question whether section 1008 governs applications under section 473(b) 

for relief from default is one of law. We answer such questions through de novo 

review. (American Nurses Assn. v. Torlakson (2013) 57 Cal.4th 570, 575.) 

Although defendants argued in the superior court that their renewed application 

satisfied section 1008, they have abandoned that position. Now defendants simply 

contend section 1008 does not apply, and for that reason they had ―no obligation 

to present new or different facts, circumstances, [or] law, as section 1008(b) 

provides.‖ 

―Our fundamental task in construing‖ sections 473 and 1008, or any 

legislative enactment, ―is to ascertain the intent of the lawmakers so as to 

effectuate the purpose of the statute.‖ (Day v. City of Fontana (2001) 25 Cal.4th 

268, 272.) We begin as always with the statute‘s actual words, the ―most reliable 
8

indicator‖ of legislative intent, ―assigning them their usual and ordinary meanings, 

and construing them in context. If the words themselves are not ambiguous, we 

presume the Legislature meant what it said, and the statute‘s plain meaning 

governs. On the other hand, if the language allows more than one reasonable 

construction, we may look to such aids as the legislative history of the measure 

and maxims of statutory construction. In cases of uncertain meaning, we may also 

consider the consequences of a particular interpretation, including its impact on 

public policy.‖ (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 

1190.) 

In this case, the parties disagree less over what sections 473 and 1008 mean 

than over how the two statutes interact. While plaintiff contends section 1008 

governs all renewed applications for relief from default, including applications

under section 473(b), defendants contend the two statutes conflict and that section 

473(b) takes precedence. Under these circumstances, two principles of statutory 

construction are especially relevant. First, ―  ̳[a] court must, where reasonably 

possible, harmonize statutes, reconcile seeming inconsistences in them, and 

construe them to give force and effect to all of their provisions. . . .‘ ‖ (Pacific 

Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 

805.) Second, all ―  ̳ ―  ̳presumptions are against a repeal by implication‘ ‖ ‘ ‖

(ibid.), including partial repeals that occur when one statute implicitly limits 

another statute‘s scope of operation (Schatz v. Allen Matkins Leck Gamble & 

Mallory LLP (2009) 45 Cal.4th 557, 573). Thus, ―  ̳ ―we will find an implied 

repeal  ̳only when there is no rational basis for harmonizing . . . two potentially 

conflicting statutes [citation], and the statutes are ―irreconcilable, clearly 

repugnant, and so inconsistent that the two cannot have concurrent 

operation.‖ ‘ ‖ ‘ ‖ (Ibid.) Applied to the case before us, these principles require us 
9

to favor a reasonable construction that gives full effect to both sections 473(b) and 

1008. With that cautionary preface we turn to the statutory language. 

Section 473(b) contains two distinct provisions for relief from default. The 

first provision, presented here only for context, is discretionary and broad in 

scope: ―The court may, upon any terms as may be just, relieve a party or his or 

her legal representative from a judgment, dismissal, order, or other proceeding 

taken against him or her through his or her mistake, inadvertence, surprise, or 

excusable neglect.‖ (§ 473(b).) The second provision is mandatory, at least for 

purposes of section 473, and narrowly covers only default judgments and defaults 

that will result in the entry of judgments. This provision, the one here at issue, 

declares as follows: ―Notwithstanding any other requirements of this section, the 

court shall, whenever an application for relief is made no more than six months 

after entry of judgment, is in proper form, and is accompanied by an attorney‘s 

sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, 

vacate any (1) resulting default entered by the clerk against his or her client, and 

which will result in entry of a default judgment, or (2) resulting default judgment

or dismissal entered against his or her client, unless the court finds that the default 

or dismissal was not in fact caused by the attorney‘s mistake, inadvertence, 

surprise, or neglect.‖ (§ 473(b).) 

The general underlying purpose of section 473(b) is to promote the 

determination of actions on their merits. (See Zamora v. Clayborn Contracting 

Group, Inc. (2002) 28 Cal.4th 249, 255–256.) The additional, more specific 

purposes of section 473(b)‘s provision for relief based on attorney fault is to 

―relieve the innocent client of the burden of the attorney‘s fault, to impose the 

burden on the erring attorney, and to avoid precipitating more litigation in the 

form of malpractice suits.‖ (Metropolitan Service Corp. v. Casa de Palms, Ltd.

(1995) 31 Cal.App.4th 1481, 1487; see Assem. Com. on Judiciary, Analysis of 
10

Sen. Bill No. 1975 (1987–1988 Reg. Sess.), as amended Aug. 1, 1988, p. 2.) To 

protect the opposing party, a court that grants relief based on an attorney‘s 

affidavit of fault must ―direct the attorney to pay reasonable compensatory legal 

fees and costs to opposing counsel or parties.‖ (§ 473(b).) The court may also 

order the offending attorney to pay a penalty of no more than $1,000 and a similar 

amount to the State Bar of California‘s Client Security Fund. (§ 473, subd. 

(c)(1)(A), (B).) 

Section 1008, which governs applications for reconsideration and renewed 

applications, appears in a chapter of the Code of Civil Procedure (pt. 2, tit. 14, ch. 

4, §§ 1003–1008) setting out rules generally applicable to motions and orders. 

One of those rules, section 1008, subdivision (b), provides: ―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. For a failure to comply with this 

subdivision, any order made on a subsequent application may be revoked or set 

aside on ex parte motion.‖ Courts have construed section 1008 to require a party 

filing an application for reconsideration or a renewed application to show 

diligence with a satisfactory explanation for not having presented the new or 

different information earlier. (California Correctional Peace Officers Assn. v. 

Virga, supra, 181 Cal.App.4th at pp. 46–47 & fns. 14–15; see Garcia v. Hejmadi, 

supra, 58 Cal.App.4th at pp. 688–690.)

Section 1008‘s purpose is ―  ̳to conserve judicial resources by constraining 

litigants who would endlessly bring the same motions over and over, or move for 

reconsideration of every adverse order and then appeal the denial of the motion to 
11

reconsider.‘ ‖ (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1067 (2011–

2012 Reg. Sess.), as amended Apr. 25, 2011, p. 4.) To state that purpose strongly, 

the Legislature made section 1008 expressly jurisdictional, as subdivision (e) 

explains: ―This section specifies the court‘s jurisdiction with regard to 

applications for reconsideration of its orders and renewals of previous motions, 

and applies to all applications to reconsider any order of a judge or court, or for 

the renewal of a previous motion, whether the order deciding the previous matter 

or motion is interim or final. No 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, subd. (e).) To deter parties from filing 

noncompliant renewed applications, the Legislature provided that ―[a] violation of 

this section may be punished as a contempt and with sanctions as allowed by 

Section 128.7.‖ (§ 1008, subd. (d).) 

We have recognized only one exception to section 1008‘s ―jurisdiction[al]‖ 

(id., subd. (e)) exclusivity. In Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096–

1097 (Le Francois), we held the statute ―do[es] not limit a court’s ability to 

reconsider its previous interim orders on its own motion,‖ even while it 

―prohibit[s] a party from making renewed motions not based on new facts or law

. . . .‖ We construed section 1008 in this manner to avoid serious doubts about its 

validity under the California Constitution‘s separation of powers clause. (Cal. 

Const., art. III, § 3.) ―  ̳[T]he Legislature,‘ ‖ we explained, ―  ̳generally may adopt 

reasonable regulations affecting a court‘s inherent powers or functions, so long as 

the legislation does not ―defeat‖ or  ̳materially impair‖ a court‘s exercise of its 

constitutional power or the fulfillment of its constitutional function.‘ ‖ (Le 

Francois, at p. 1103, quoting Superior Court v. County of Mendocino (1996) 13

Cal.4th 45, 58–59.) ―One of the core judicial functions that the Legislature may 

regulate but not usurp is  ̳the essential power of the judiciary to resolve ―specific 
12

controversies‖ between parties.‘ ‖ (Le Francois, at p. 1103, quoting People v. 

Bunn (2002) 27 Cal.4th 1, 15.) To limit a court‘s ability to correct its own rulings, 

we reasoned, ―  ̳would directly and materially impair and defeat‘ ‖ that ―  ̳core 

power.‘ ‖ (Le Francois, at p. 1104.) 

We perceive no conflict between sections 473(b) and 1008. Section 1008 

expressly applies to all renewed applications for orders the court has previously 

refused. Section 1008 by its terms ―specifies the court’s jurisdiction with regard 

to . . . renewals of previous motions, and applies to all applications . . . for the

renewal of a previous motion, whether the order deciding the previous matter or 

motion is interim or final. No application . . . for the renewal of a previous motion 

may be considered by any judge or court unless made according to this section.‖ 

(Id., subd. (e), italics added.) In contrast, no language in section 473(b) purports 

to exempt applications for relief from default from the requirements of section 

1008. In other words, section 1008 does not restrict initial applications for relief 

from default under section 473(b) in any way, nor does section 473(b) purport to 

authorize unlimited repetitions of the same motion. To interpret the two statutes in 

this way gives full effect to all provisions of both. Such an interpretation is 

strongly preferred, as we have explained. (See ante, at pp. 8-9; Pacific Palisades 

Bowl Mobile Estates, LLC v. City of Los Angeles, supra, 55 Cal.4th at p. 805.) 

Defendants argue that sections 473(b) and 1008 do conflict because section 

473(b), as they read it, literally permits repetitious and renewed motions for relief 

from default. This interpretation, defendants claim, follows from the Legislature‘s 

direction that the court ―shall‖ grant relief from default ―whenever an application 

for relief is made‖ in accordance with the statutory requirements. (§ 473(b), italics 

added.) Observing that ―whenever‖ can mean ―  ̳as often as‘ ‖ (e.g., Morse v. 

Custis (1940) 38 Cal.App.2d 573, 576), defendants assert in their brief to this 

court that a motion under section 473(b) must be granted ―  ̳whenever’ it is 
13

made—initially or on renewal — as long as it is timely and in proper form and 

contains the requisite affidavit of fault‖ (italics added). While acknowledging 

their proposed interpretation would permit a defaulting party to file innumerable 

motions for relief during the six-month period after a default judgment is entered, 

defendants suggest the statute‘s threat of penalties and sanctions (§ 473, subd. (c)) 

will adequately deter abusively repetitious motions. 

Defendants misread the statute. Read in the context of the full sentence in 

which it appears, the direction that the court shall grant relief ―whenever an 

application for relief is made‖ (§ 473(b)) applies only ―[n]otwithstanding any 

other requirements of this section‖ (ibid., italics added), that is, notwithstanding

the requirements of section 473. Had the Legislature intended section 473(b) to 

mandate relief from default ―notwithstanding section 1008‖ or ―notwithstanding 

any other law,‖ the Legislature knew well how to express that intention.4 Just as 

importantly, the term ―whenever‖ does not necessarily mean ―as often as‖ or, as 

defendants would have it, ―as many times as it takes, without limitation.‖ Read in 

context, the term is more naturally understood to mean simply ―when,‖ and thus to 

indicate the necessary preconditions for judicial action (e.g., ―the court must grant 

relief when the statutory conditions have been satisfied‖). 

In summary, sections 473(b) and 1008 do not conflict. Nothing in the 

language or legislative history of those statutes suggests the Legislature has ever 

understood that motions for relief from default (§ 473(b)) are exempt from the 

requirements generally applicable to renewed motions (§ 1008). 

 

4 The phrase ―[n]otwithstanding any other law‖ occurs 12 times in the Code 

of Civil Procedure alone. (E.g., §§ 129, subd. (a), 354.45, subd. (b), 415.21, subd. 

(a), 581.5, 631.3, subd. (a), 1219, subds. (b), (c), 1279.5, subds. (b), (d), 1282.4, 

subd. (b), 1447, 1531.5, subd. (c)(1).) 
14

To recognize that section 1008‘s requirements apply to renewed applications 

for relief from default based on an attorney‘s affidavit of fault does not 

significantly impair the policies underlying section 473(b). Those policies, as 

mentioned, are ―to relieve the innocent client of the burden of the attorney‘s fault, 

to impose the burden on the erring attorney, and to avoid precipitating more 

litigation in the form of malpractice suits.‖ (Metropolitan Service Corp. v. Casa 

de Palms, Ltd., supra, 31 Cal.App.4th at p. 1487.) An attorney who candidly and 

fully acknowledges under oath the errors that have led a client into default will 

rarely have anything to add in a renewed motion. In the rare case in which ―new 

or different facts, circumstances, or law‖ (§ 1008, subd. (b)) justifying a different 

outcome do come to light after a motion for relief has been denied, then that new 

information will support a renewed application that satisfies section 1008. 

Because sections 473(b) and 1008 do not conflict, we need not apply the 

various tie-breaking rules of statutory construction that defendants claim favor the 

former statute over the latter. When no conflict between two statutes exists, it 

does not matter whether one is more specific and the other more general (see 

Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 

942–943), or whether one was adopted earlier and the other later (ibid.; cf. State 

Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 956 [those canons 

of construction ―do[] not authorize courts to rewrite statutes‖]). For the same 

reason, to characterize section 473(b) as having a remedial purpose also does not 

justify giving it a nonliteral interpretation. The rule that a remedial statute is 

construed broadly does not permit a court to ignore the statute‘s plain language 

(see Quarry v. Doe I (2012) 53 Cal.4th 945, 988), especially on the flawed

premise that broad construction is necessary to resolve a nonexistent conflict. 

This is not to say that section 1008 could never conceivably conflict with 

another statute or that in the event of a conflict section 1008 would inevitably take 
15

precedence. For example, the court in In re Marriage of Hobdy (2004) 123 

Cal.App.4th 360 (Hobdy) interpreted section 1008 as conflicting with former 

section 2030 of the Family Code (added by Stats. 1993, ch. 219, § 106.1, 

pp. 1607–1608), which permitted a court to award attorney fees and costs during 

the pendency of proceedings for marital dissolution. While Code of Civil 

Procedure section 1008 required applications for reconsideration of orders to be 

brought within 10 days (id., subd. (a)), the former Family Code provision allowed 

the court, ―[f]rom time to time and before entry of judgment, [to] augment or 

modify the original award for attorney‘s fees and costs as may be reasonably 

necessary for the prosecution or defense of the proceeding or any proceeding 

related thereto‖ (Fam. Code, former § 2030, subd. (a)). As the Hobdy court 

concluded, ―[t]he only reasonable interpretation of the  ̳from time to time‘

language is that application to augment or modify an attorney‘s fees award in a 

family law matter may be brought at any time, not just within 10 days of the 

original order.‖ (Hobdy, at p. 367.) Section 1008, the court further held, also 

conflicted with the former Family Code provision in requiring that renewed 

applications and applications for reconsideration show ―new or different facts, 

circumstances, or law‖ (Code Civ. Proc., § 1008, subd. (b)). The former Family 

Code provision, which contained no such requirement, permitted courts to award 

fees as they became ―reasonably necessary‖ (id., subd. (a)), even without a change 

in circumstances (Hobdy, at p. 367). Having identified these objective conflicts

between the two statutes, the Hobdy court resolved them by giving former section 

2030 of the Family Code precedence over section 1008 as the more specific 

statute. (Hobdy, at p. 369.) The Hobdy court‘s resolution of those conflicts does 

not inform the interaction between sections 473(b) and 1008, which do not 

conflict.
16

In three decisions, lower courts have expressed the view that motions for 

relief from default under section 473(b) need not comply with section 1008. None 

of these decisions offers a persuasive justification for its conclusion on that point. 

The first decision is Standard Microsystems, supra, 179 Cal.App.4th 868, 

which the superior court below (see ante, at p. 6) understood as compelling it to 

grant defendants‘ motion for relief from default despite their failure to comply 

with section 1008. In Standard Microsystems, however, the Court of Appeal‘s 

statement that motions under section 473(b) need not comply with section 1008 

was dictum or at most an alternative ground of decision. The court‘s only clear 

holding was that section 1008 did not apply to the defendant‘s application for 

mandatory relief under section 473(b) because the application did not seek 

reconsideration or renewal of the defendant‘s earlier, failed application for 

discretionary relief. (See Standard Microsystems, at pp. 889–893; cf. id. at p. 895 

[―this is not a case where a party invokes the mandatory provisions of section 

473(b) unsuccessfully, and then seeks to invoke them again‖].) After announcing 

that holding, the court went on unnecessarily to suggest that, ―[i]nsofar as . . . a 

conflict actually exists [between sections 473(b) and 1008], it must be resolved in 

favor of allowing relief under section 473(b), not denying it under section 1008.‖ 

(Standard Microsystems, at p. 894.) The court proposed to resolve the posited 

conflict by giving preference to section 473(b) as more specific than section 1008, 

and also as remedial and thus entitled to broad interpretation. (Standard 

Microsystems, at pp. 894–895.) To apply these tie-breaking principles of statutory 

construction was unnecessary, as we have explained, because no conflict between 

section 473(b) and section 1008 exists. 

The second decision holding that repeated applications for relief under 

section 473(b) need not comply with section 1008 is Ron Burns Construction Co., 

Inc. v. Moore (2010) 184 Cal.App.4th 1406 (Ron Burns Construction). In that 
17

case, the Court of Appeal simply reiterated the reasoning of Standard 

Microsystems, supra, 179 Cal.App.4th 868, as an alternative basis for holding that 

section 1008 did not apply to an application for discretionary relief under section 

473(b) from an order denying a motion for attorney fees. (Ron Burns 

Construction, at pp. 1418–1419, 1420.) 

Third and finally, the court in Wozniak v. Lucutz (2002) 102 Cal.App.4th 

1031 (Wozniak), held a party‘s failure to comply with section 1008 did not prevent 

a superior court from reconsidering an erroneous order granting a new trial—an 

order the court treated as a motion under section 473. (See Wozniak, at pp. 1038, 

1043.) In reaching this conclusion, the Wozniak court relied in part on the 

understanding, which we later confirmed in Le Francois, supra, 35 Cal.4th 1094, 

1103–1105, that section 1008 does not impair a court‘s inherent constitutional 

power to correct its own interim rulings. (Wozniak, at p. 1042; see ante, at p. 11.) 

The Wozniak court, however, also incorrectly stated that ―it is irrelevant whether 

the court acts sua sponte or pursuant to a party‘s motion:  ̳We find this to be a 

distinction without a difference.‘ ‖ (Id. at p. 1042.) We subsequently disapproved 

Wozniak to that extent in Le Francois (at p. 1107, fn. 5), explaining that the 

Legislature intended section 1008 to embody ―a distinction with a difference. [¶] 

. . . [A] party may not file a written motion to reconsider that has procedural 

significance if it does not satisfy the requirements of section . . . 1008,‖ and 

―[u]nless the requirements of section . . . 1008 are satisfied, any action to 

reconsider a prior interim order must formally begin with the court on its own 

motion.‖ (Le Francois, at p. 1108.)

We disapprove Standard Microsystems Corp. v. Winbond Electronics Corp., 

supra, 179 Cal.App.4th 868, Ron Burns Construction Co., Inc. v. Moore, supra, 
18

184 Cal.App.4th 1406, and Wozniak v. Lucutz, supra, 102 Cal.App.4th 1031, to 

the extent those decisions are inconsistent with the views set out in this opinion.

5 

III. DISPOSITION

The judgment of the Court of Appeal is affirmed. 

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

 

5 Defendants have belatedly asked us to review the trial court‘s ruling 

denying their first application for relief from default. The validity of that ruling is 

not properly before us. 
1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 215 Cal.App.4th 277

Rehearing Granted

__________________________________________________________________________________

Opinion No. S210804

Date Filed: July 20, 2015

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Ralph M. Dau

__________________________________________________________________________________

Counsel:

Daniel B. Harris; Crowell& Moring, Ethan P. Schulman and J. Daniel Sharp for Plaintiff and Appellant.

James S. Link; Reed Smith, Paul D. Fogel, Dennis Peter Maio; Gibalevich & Associates and Daniel 

Andrew Gibalevich for Defendants and Respondents.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Daniel Sharp 

Crowell & Moring

275 Battery Street, 23rd Floor

San Francisco, CA 94111

(415) 986-2800

Paul D. Fogel

Reed Smith

101 Second Street, Suite 1800

San Francisco, CA 94105-3659

(415) 543-8700