Motion for Reconsideration Under CCP § 1008 in California Family Law Cases
Quick Answer: A motion for reconsideration under California Code of Civil Procedure § 1008 allows a party to ask the same judge to modify, amend, or revoke a prior order based on new facts, new evidence, or new law that was not available when the original ruling was made. The motion must be filed and served within 10 days of receiving written notice of the order. Courts rarely grant these motions, and filing one based on rehashed arguments risks sanctions. General dissatisfaction with the outcome is not a sufficient basis.
If you have received an unfavorable order in your California family law case and believe you have grounds for reconsideration, contact The Geller Firm at (415) 840-0570 for a confidential consultation.
What Is a Motion for Reconsideration?
A motion for reconsideration is a formal procedural request asking the judge who issued an order to take another look at their decision and, based on newly available information or law, modify, amend, or revoke that order. It is governed by California Code of Civil Procedure § 1008 and is available in family law proceedings as in other civil matters.
The motion exists to balance two competing values in the legal system. On one hand, there is a strong interest in the finality of court orders. Parties and courts need to be able to rely on decisions once made, and the legal system cannot function if every ruling is perpetually subject to re-argument. On the other hand, fairness sometimes requires that a judge be able to correct a ruling when genuinely new and material information comes to light that was not available at the time of the original decision.
Section 1008 seeks to honor both values by permitting reconsideration only when there is a legitimate new basis for it, strictly limiting the time within which it can be sought, and authorizing sanctions against parties who abuse the process.
When Can You File a Motion for Reconsideration?
The 10-Day Deadline
The single most important rule governing motions for reconsideration is the timing requirement. Under CCP § 1008(a), the motion must be filed and served within 10 days after service of written notice of entry of the order being challenged.
This is a strict deadline. Courts generally do not have discretion to accept late-filed reconsideration motions, and missing the 10-day window typically forfeits the right to seek reconsideration entirely. The clock begins running when written notice of entry of the order is served, not when the party subjectively learns of it, and not from the date of the hearing at which the order was announced.
In family law cases, where orders are sometimes issued at hearings with written notice following later, parties and their attorneys must track when formal written notice is served and act immediately if reconsideration is being considered.
Which Orders Can Be Reconsidered?
A motion for reconsideration may be directed at any order made in a California family law proceeding, including temporary custody and visitation orders, support orders, property division rulings, attorney's fees awards, and other interlocutory orders. However, as discussed below, the grounds for reconsideration are strictly limited, and the mere fact that an order is subject to the mechanism does not mean reconsideration will be granted.
What Are the Required Grounds for Reconsideration?
New Facts, New Evidence, or New Law
Section 1008(a) requires that the motion be based on one of three categories of new material:
New or different facts. The motion must present facts that were not known to the moving party and could not reasonably have been discovered with the exercise of reasonable diligence before the original hearing. This is a meaningful limitation. Courts distinguish between facts that were genuinely unavailable before the hearing and facts that the party simply failed to discover or present due to their own lack of preparation. The latter does not qualify.
Different circumstances. Material changes in the circumstances underlying the order since the time of the original ruling may support reconsideration in appropriate cases.
New law. A change in controlling legal authority, such as a new appellate decision or legislative amendment that directly affects the legal basis for the order, may support reconsideration. This ground is relatively rare in practice but can be significant when relevant new authority emerges shortly after a ruling.
What Does Not Qualify
General dissatisfaction with the outcome is not grounds for reconsideration. A party who simply disagrees with how the judge weighed the evidence, finds the ruling unfair, or believes the judge misunderstood the applicable law cannot use a motion for reconsideration as a vehicle for re-arguing the original motion with the same evidence and the same legal arguments.
Courts are particularly skeptical of reconsideration motions that present the same evidence in a slightly different framing, introduce witnesses or documents that existed before the hearing but were not used, or make legal arguments that could have been made at the original hearing. These approaches do not satisfy the statutory requirement of something new or different and risk being denied with sanctions.
What Must the Motion Contain?
Declaration Under Penalty of Perjury
Section 1008(a) requires that the motion be supported by a declaration under penalty of perjury. The declaration must specifically identify:
What motion or application was previously made
When it was made and to which judge
What order was issued as a result
What specific new or different facts, circumstances, or law the moving party now relies upon
Why the new information was not and could not reasonably have been presented at the time of the original hearing
The specificity requirement is enforced strictly. A declaration that states in general terms that the party has new information, without specifying precisely what that information is and why it was unavailable before, will not be sufficient to support a reconsideration motion. Courts read these declarations carefully to ensure that the motion is grounded in a genuine new basis rather than an attempt to re-litigate the same issues.
The Noticed Motion
A motion for reconsideration must be filed as a noticed motion, meaning the opposing party receives advance notice and an opportunity to file a written opposition before the court rules. The motion is heard by the same judge who issued the original order, not a different judicial officer.
What Are the Risks of Filing a Motion for Reconsideration?
Sanctions Under CCP § 1008(d)
Section 1008(d) expressly authorizes sanctions against parties and attorneys who file reconsideration motions that do not comply with the statute. Specifically, the court may impose sanctions when a party files a reconsideration motion that fails to present genuinely new facts, law, or circumstances and instead attempts to re-argue the original motion.
Sanctions may include an award of the opposing party's attorney's fees incurred in responding to the motion. In egregious cases, a court may treat misuse of the reconsideration mechanism as a basis for a contempt finding. The risk of sanctions is real and reinforces the importance of ensuring that any reconsideration motion is based on a genuinely new and material basis before it is filed.
Low Success Rate
Motions for reconsideration are granted in fewer than 10 percent of cases by most estimates. This low success rate reflects both the strictness of the statutory requirements and the natural judicial reluctance to revisit a decision that the judge has already carefully considered. Filing a reconsideration motion that is unlikely to succeed not only wastes resources but may also create an unfavorable impression with the judge who will continue to preside over the case.
Impact on Appellate Rights
A denial of a motion for reconsideration is not directly appealable as a separate order. However, the denial may be reviewed as part of an appeal from the underlying order. This means that filing an unsuccessful reconsideration motion does not necessarily foreclose appellate options, but the reconsideration process is not a substitute for a timely notice of appeal when the underlying order is itself appealable.
How Does CCP § 1008 Interact With Other Procedural Options?
Versus a Request for Order to Modify
In family law, a party who is unhappy with an existing custody, support, or visitation order typically has the option to file a Request for Order seeking modification based on a change of circumstances. This is the standard mechanism for adjusting ongoing family law orders and does not carry the strict 10-day deadline or new-evidence requirement of § 1008.
A motion for reconsideration under § 1008 is appropriate when the party believes the original order itself was wrongly decided based on information that was not before the court. A modification request under Family Code § 3651 or related provisions is appropriate when circumstances have materially changed since the order was entered. These are distinct procedural vehicles addressing different situations.
Versus a Notice of Appeal
A timely notice of appeal challenges the order in the Court of Appeal on the grounds that the trial court made a legal error. An appeal is available within 60 days of the date of service of notice of entry of judgment or order. A motion for reconsideration is addressed to the same trial court judge. The two mechanisms serve different purposes and have different standards of review.
Filing a motion for reconsideration does not extend the time to file a notice of appeal unless the motion results in a new or modified order, in which case the appeal period runs from that new order. Parties who may wish to appeal should consult with their attorney about how a reconsideration motion interacts with their appellate rights and timing.
Practical Applications in California Family Law
Temporary Custody Orders
If new evidence emerges shortly after a temporary custody order is issued that directly bears on the child's safety or the court's factual findings, a reconsideration motion may be appropriate. For example, if the court issued a temporary order based on representations about a parent's living situation that turn out to be materially false, and evidence of the falsity was not available at the hearing, this may support a § 1008 motion within the 10-day window.
Support Orders
If a support order was calculated based on income figures that are demonstrated to be materially incorrect by records that were unavailable at the time of the hearing, reconsideration may be appropriate. The critical question is whether the correct income information existed and was discoverable before the hearing or whether it genuinely came to light afterward.
Property Division Rulings
In cases where a property division order is based on a valuation that the moving party can demonstrate was materially incorrect based on information that was not available at the time of the hearing, a § 1008 motion may provide a pathway for correction. This situation might arise, for example, when business records or financial statements that were not produced in discovery and were not otherwise accessible are discovered after the hearing.
Best Practices for Filing a Motion for Reconsideration
Act within 10 days. The deadline is strict and unforgiving. As soon as you receive written notice of an order you wish to challenge, consult your attorney about whether reconsideration is appropriate and begin preparing the motion immediately.
Be honest about why the information is new. The declaration must explain not only what the new information is but why it was not and could not reasonably have been presented before. Courts scrutinize this explanation carefully. If the honest answer is that the information existed before the hearing but was simply overlooked, reconsideration is not the right mechanism.
Do not re-argue the original motion. The motion must present something new. It should not repeat the arguments that were made at the original hearing or present the same evidence in a slightly different form. Courts recognize this pattern and will deny the motion, potentially with sanctions.
Assess the realistic probability of success. Given the low overall success rate and the risk of sanctions, a motion for reconsideration should be filed only when there is a genuinely strong basis for it. Your attorney can help you assess whether the new information you have identified meets the statutory requirements and whether the motion is likely to be worth the investment and risk.
Consider all available alternatives. Depending on the nature of the order and your circumstances, a modification request, a notice of appeal, or another procedural vehicle may be more appropriate than a § 1008 reconsideration motion. Your attorney can advise on which approach best fits your situation.
Frequently Asked Questions
Can I file a motion for reconsideration if I simply disagree with how the judge ruled? No. Section 1008 requires new facts, new evidence, or new law as the basis for the motion. Disagreement with the judge's evaluation of the evidence or application of the law, without something new, does not satisfy the statutory requirement and may result in sanctions.
What if I missed the 10-day deadline? Once the 10-day window closes, reconsideration under § 1008 is generally no longer available. Depending on the type of order at issue, other options may remain available, including a modification request based on changed circumstances or a timely notice of appeal. Consult your attorney immediately.
Can I file a reconsideration motion about a discovery order? Yes. Section 1008 applies to any order in a civil or family law proceeding, including discovery orders. The same requirements of new facts, new law, or new circumstances apply, along with the 10-day deadline.
Does filing a reconsideration motion stop the order from taking effect? Generally no. Filing a reconsideration motion does not automatically stay the underlying order. You would need to separately seek a stay of the order, either from the trial court or from the Court of Appeal if an appeal is filed.
What happens at the reconsideration hearing? Both parties have the opportunity to present argument. Because the motion is based on written submissions, the hearing is typically brief. The judge reviews the new evidence and arguments and determines whether they are sufficient to warrant a modification of the original ruling.
Speak With a California Family Law Attorney
An unfavorable order in a family law case can feel devastating, particularly when it affects your children, your financial security, or your home. Understanding your options, including whether a motion for reconsideration is appropriate, requires careful legal analysis of both the substance of the order and the procedural framework that governs your ability to challenge it. The Geller Firm represents clients across California in all aspects of family law litigation, including post-order proceedings, reconsideration motions, appeals, and modification petitions.
We offer confidential virtual and in-person consultations from our Walnut Creek office.
Call (415) 840-0570 or contact us online to schedule your consultation.