Filed 5/26/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION THREE

CHANGO COFFEE, INC.,                B267358

       Plaintiff and Respondent,    (Los Angeles County
                                    Super. Ct. No. BC591586)
       v.

APPLIED UNDERWRITERS,
INC.,

       Defendant and Appellant.


     APPEAL from an order of the Superior Court of Los
Angeles County, David Sotelo, Judge. Appeal Dismissed.

     Fine, Boggs & Perkins, Michael K. Perkins, Cory J. King
and William D. Wheelock for Defendant and Appellant.

      Law Office of Thomas M. Hall and Thomas Montague Hall
for Plaintiff and Respondent.
                    _________________________
                           INTRODUCTION
       Defendant Applied Underwriters, Inc. (Applied) purports to
appeal from the trial court’s order denying its renewed petition to
compel arbitration filed pursuant to Code of Civil Procedure
section 1008, subdivision (b).1 Because an order denying a
renewed motion or application under section 1008, subdivision (b)
is not appealable (see Tate v. Wilburn (2010) 184 Cal.App.4th
150, 160 (Tate)), we dismiss the appeal.
         FACTS AND PROCEDURAL BACKGROUND
       On January 2, 2014, plaintiff Chango Coffee, Inc. (Chango)
filed a three count complaint against Applied for breach of
contract, conversion and fraud. The complaint alleges the parties
entered a written agreement under which Chango granted
Applied access to its checking account for the purpose of
providing payroll processing and payment services, and Applied
improperly withdrew funds from Chango’s account “without
permission[,] . . . justification or purpose under the contract.”
       On April 23, 2014, Applied filed a petition to compel
arbitration pursuant to a written agreement to arbitrate.2 In a
supporting declaration, Applied’s accounts settlement manager,

1     Statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2      Concurrent with its petition to compel arbitration, Applied
filed a motion to change venue (styled as a motion to dismiss)
pursuant to a contractual forum selection clause. The trial court
denied the motion. Applied did not timely petition for review by
mandamus. (See Code Civ. Proc., § 400; Calhoun v. Vallejo City
Unified Sch. Dist. (1993) 20 Cal.App.4th 39, 41 [“Review of an
order granting or denying a motion for change of venue lies only
by petition for writ of mandate”].)




                                 2
Ed Karmazin, declared that, in July 2004, Applied and Chango
“entered into a written agreement,” under which Applied agreed
to provide Chango “payroll processing, human resource support,
training, workers’ compensation insurance, and employment-
related insurance from authorized insurance companies.” The
purported agreement had “two parts,” which Karmazin described
as follows: “First, the customer completes a document entitled,
‘SolutionOne Application and Agreement for Services.’ [sic] . . .
After reviewing the application document to ensure the customer
qualifies for participation in the SolutionOne program, [Applied]
will accept the customer into the SolutionOne program and the
Agreement is formed. When [Applied] accepts the customer’s
SolutionOne Application and Agreement, [Applied] delivers to the
customer a document entitled, ‘SolutionOne Services
Agreement.’ ”3
       Karmazin declared that Chango’s corporate secretary, Tad
Yenawine, signed the application on July 14, 2004. The signed
document, entitled “SolutionOne Application and Agreement for
Service,” contains provisions relating to Applied’s services,
payroll processing, billing and payment, and authorization to
access Chango’s banking account. The document concludes with
the clause, “I (we) accept [Applied’s] standard Service Agreement
Terms and Conditions.”




3     At times the relevant documents used the registered
trademark symbol when referencing SolutionOne®. For
consistency, we have omitted it in all instances.




                               3
       According to Karmazin, after receiving Chango’s signed
SolutionOne Application and Agreement for Service, Applied
delivered to Chango a document entitled “SolutionOne Services
Agreement.” The SolutionOne Services Agreement contains the
subject arbitration clause. Additionally, Karmazin declared that,
as part of the SolutionOne program, Chango periodically
submitted documents entitled “Weekly Reporting Form,” which
contained the following clause: “Each submission of payroll sent
to us for processing is ratification and confirmation of your
acceptance of all the terms and conditions of the current
Solution One Service Agreement.” (Italics omitted.)
       In its petition for arbitration, Applied argued the signed
SolutionOne Application and Agreement for Service incorporated
the terms of the SolutionOne Services Agreement, including the
latter document’s arbitration provision. Applied further argued
that Chango ratified the terms of the SolutionOne Services
Agreement when it signed and submitted its Weekly Reporting
Forms, commencing in April 2004.
       Chango opposed the petition to compel arbitration. In a
supporting declaration, Chango’s corporate secretary, Yenawine,
acknowledged signing the SolutionOne Application and
Agreement for Service. However, Yenawine declared that, apart
from the SolutionOne Application and Agreement for Service,
Chango was “not asked to agree to any additional terms.” He
specifically denied agreeing to arbitrate disputes on behalf of
Chango.




                                4
       On November 18, 2014, the trial court denied Applied’s
petition to compel arbitration. In a written order, the court
concluded that the critical final clause in the signed SolutionOne
Application and Agreement for Service referred to the terms
contained in the signed document itself, and not to the terms of
the separate SolutionOne Services Agreement. The court
observed that Applied had offered three documents in support of
its petition to compel arbitration: (1) the “ ‘Solution Application
And Agreement For Service’ (‘service’ is singular)”; (2) the
“ ‘SolutionOne Services Agreement’ (‘services’ is plural)”; and
(3) the “ ‘Weekly Payroll Form’ ” [which] refers to ‘the current
SolutionOne Service Agreement’ ” (service is singular). The
critical clause, the court explained, provided for Chango to be
bound by the “ ‘Service Agreement Terms and Conditions,’ ” with
the word “service” in the singular, as in the signed “ ‘SolutionOne
Application and Agreement for Service.’ ” Thus, the court
reasoned the signed document did not incorporate the terms of
the “ ‘SolutionOne Services Agreement,’ ” or the arbitration
provision stated therein. For the same reason, the court
concluded the Weekly Reporting Forms did not bind Chango to
the arbitration provision, because those forms referred to the
“ ‘terms and conditions of the current SolutionOne Service
Agreement,’ ” with “service” in the singular.
       On November 19, 2014, the clerk of the superior court gave
notice of the ruling denying Applied’s petition to compel
arbitration. Applied did not appeal from the ruling.
       On June 12, 2015, Applied filed a renewed motion to
compel arbitration pursuant to section 1008, subdivision (b). In
support of its renewed motion, Applied submitted an excerpt from
the May 5, 2015 deposition of Chango’s designated person most




                                5
knowledgeable, Yenawine, in which Yenawine testified over
Chango’s objection that he considered the SolutionOne Services
Agreement to be part of the contract that Chango claimed had
been breached. Applied argued the testimony constituted “ ‘new
or different’ ” facts under section 1008, subdivision (b), insofar as
Yenawine had “previously declared in opposition to the original
[petition to compel arbitration] that the SolutionOne Services
Agreement was not part of the contract between the parties.”
       On August 12, 2015, the trial court entered an order
denying the renewed motion. The court’s order explained, “The
alleged new or different facts, Mr. Yenawine’s deposition
testimony, does not in any manner alter the court’s legal analysis
of [the original order].” On October 2, 2015, Applied filed a notice
of appeal from the August 12, 2015 ruling.
                            DISCUSSION
       After reviewing the pertinent procedural history and
Applied’s notice of appeal, this court asked the parties to submit
supplemental briefs addressing the appealability of an order
denying a renewed motion filed pursuant to section 1008,
subdivision (b). For the reasons that follow, we conclude an order
denying a renewed motion is not appealable.
       Section 1008 provides, in pertinent part, as follows:
“(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




                                  6
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,
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.”
       The court in Tate addressed the very issue we confront in
this appeal, and concluded that orders on motions filed pursuant
to section 1008, subdivision (b), like those on motions filed
pursuant to section 1008, subdivision (a), are not appealable.
(Tate, supra, 184 Cal.App.4th at p. 160.) In reaching this
conclusion, the Tate court began by examining the purposes and
related nature of the two subdivisions, observing: “As indicated
by the text of section 1008, motions for reconsideration under
section 1008, subdivision (a), and renewed motions under section
1008, subdivision (b) are closely related. [Citation.] A party
filing either a motion under section 1008, subdivision (a) or (b) is
seeking a new result in the trial court based upon ‘new or
different facts, circumstances, or law.’ ” (Tate, at pp. 159-160.) In
view of the subdivisions’ essentially identical purposes, the Tate
court reasoned that the rationale for declining to grant separate
appealability to orders denying motions for reconsideration—i.e.,
“to eliminate the possibilities that (1) a nonappealable order or
judgment would be made appealable, (2) a party would have two
appeals from the same decision, and (3) a party would obtain an




                                 7
unwarranted extension of time to appeal”—applied with equal
force to an order denying a renewed motion pursuant to section
1008, subdivision (b). (Tate, at p. 160.) Indeed, the court
observed that “ the possibility that a party may obtain an
unwarranted extension of time to appeal is actually more of a
concern with respect to a renewed motion under section 1008,
subdivision (b), in light of the fact that such a motion may be
brought at any time, while a motion for reconsideration must be
brought ‘within 10 days after service upon the party of written
notice of entry of the [underlying] order.’ ” (Tate, at p. 160.)
Thus, finding no reason to depart from the established rationale,
the Tate court held that “an order denying a renewed motion
pursuant to section 1008, subdivision (b) is not appealable.”
(Tate, at p. 160.)
       In its supplemental brief, Applied argues Tate has been
abrogated by subsequent legislative action; specifically, the 2011
amendment to section 1008 that added subdivision (g). (Stats.
2011, ch. 78 (Assem. Bill 1067), § 1.) Section 1008, subdivision (g)
permits a party to include an appeal from a motion for
reconsideration with an existing appeal from the trial court’s
original ruling. The statute 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.” (§ 1008, subd. (g).) Because the amendment
did not likewise provide that an order denying a renewed motion
made pursuant to section 1008, subdivision (b) is not separately
appealable, Applied argues the amendment effectively abrogated
Tate. We disagree.




                                 8
        Our usual legislative intent analysis suggests the opposite
presumption concerning the amendment. “The Legislature is
presumed to have knowledge of existing judicial decisions when it
enacts and amends legislation. When the Legislature amends a
statute that has been the subject of judicial construction,
changing it only in part, the presumption is that the Legislature
intended to leave the law unchanged in the aspects not
amended.” (Flannery v. California Highway Patrol (1998)
61 Cal.App.4th 629, 642–643.) Thus, contrary to Applied’s
contention, the Legislature’s decision not to address the
appealability of orders denying renewed motions under section
1008, subdivision (b) suggests the Legislature intended the Tate
court’s construction to control.
        Moreover, as the Senate Judiciary Committee observed in
its analysis of the amending legislation, “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 reconsider.” ’ (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 1067 (2011-2012 Reg. Sess.) as
amended Apr. 25, 2011, p. 4.)” (Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th
830, 839-840.) That observation is consistent with the rationale
the Tate court relied upon in concluding an order denying a
renewed motion under section 1008, subdivision (b) is not
appealable. (See Tate, supra, 184 Cal.App.4th at p. 160.) We
find the subsequent legislative action supports the reasoning and
conclusion in Tate.




                                 9
      Because we agree with the reasoning in Tate, we conclude
that an order denying a renewed motion under section 1008,
subdivision (b) is nonappealable. We therefore have no
jurisdiction to entertain this appeal.4




4      Alternatively, Applied argues we should treat its notice of
appeal as a petition for writ of mandate and address the merits of
the court’s order in a proceeding for extraordinary relief. (See,
e.g., Tate, supra, 184 Cal.App.4th at pp. 160-161, fn. 10.) We
decline to do so. At a minimum, to obtain writ review a petitioner
must show there is no adequate remedy at law and that
irreparable injury will result if the writ is not granted. (O’Grady
v. Superior Court (2006) 139 Cal.App.4th 1423, 1439.) “ ‘[A] party
is not entitled to obtain review of an appealable judgment or
order by means of a petition for an extraordinary writ where he
or she failed to timely file an appeal from the ruling.’ ” (Annette
F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459 [declining to
treat appeal from an order denying motion for reconsideration as
a petition for writ relief].) Here, the trial court based its original
order on the text of the signed SolutionOne Application and
Agreement for Service—not the extrinsic statements made in
Yenawine’s declaration. Also, in ruling on Applied’s renewed
motion, the court sustained Chango’s objection and struck
Yenawine’s deposition testimony concerning the interplay of the
two agreements. For these reasons, the court denied the renewed
motion insofar as Allied relied upon Yenawine’s testimony,
which, as the court stated in its order, did “not in any manner
alter the court’s legal analysis” of the critical contract language.
(Italics added.) Having failed to timely appeal from the original
appealable order, Applied cannot obtain belated writ review by
raising extrinsic and dubious facts that did not factor into the
court’s legal analysis.




                                 10
                        DISPOSITION
      The appeal is dismissed. Chango Coffee is awarded its
costs on appeal.

      CERTIFIED FOR PUBLICATION




                                     JOHNSON (MICHAEL), J.*

We concur:



             EDMON, P. J.




             ALDRICH, J.




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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