Filed 9/9/26 Hundert v. Barazani CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.