An employer that moves to compel arbitration on the wrong agreement may not get a second chance to move on the right one. In Hickenbottom v. Medical Solutions LLC, the Fourth District Court of Appeal held that a successive motion to compel arbitration is a renewed motion under Code of Civil Procedure section 1008(b), even when it relies on a different arbitration agreement, and must satisfy that section’s affidavit and diligence requirements. The employer in Hickenbottom failed to include an affidavit in its second motion to compel, and so the trial court had no jurisdiction to consider the motion. Because an order denying a renewed motion is not appealable, the Court of Appeal dismissed the appeal without reaching the merits.

Medical Solutions, a healthcare staffing company that places its employees in temporary assignments, hired Derek Hickenbottom as a travel nurse in May 2022. He signed an employee handbook acknowledgment and an Employee Agreement during onboarding, each containing a uniquely worded arbitration provision. The Employee Agreement provided that every placement would require a separate travel assignment agreement, and that those agreements could supersede its terms. Hickenbottom accepted a new assignment in February 2023 and signed a travel assignment agreement incorporating the company’s generally applicable policies, which included a yet third arbitration provision that differed from the first two.

One year later, Hickenbottom filed a wage and hour class action. In response, Medical Solutions moved to compel arbitration relying on the arbitration provision in the handbook. Hickenbottom opposed on the ground that the 2023 travel assignment agreement and its arbitration terms had superseded the agreement to arbitrate pursuant to the terms in the handbook, a point defense counsel conceded at the hearing while proposing to file a new motion on the operative agreement. Hickenbottom’s counsel objected that a second motion would amount to an improper motion for reconsideration. As a result, the trial court denied the motion, and Medical Solutions did not appeal.

Medical Solutions then filed a second motion to compel one month later, this time relying on the 2023 travel assignment agreement’s terms. The motion did not address section 1008 and was unaccompanied by an affidavit describing the prior motion, the decision that was made, and what new or different facts, circumstances, or law are claimed to be shown in support of the new motion. This reflected the company’s position that it was not renewing a prior motion but enforcing a different contract. The trial court found that the second motion sought the same order and the same relief as the first, and that it therefore lacked jurisdiction to hear it.

The Court of Appeal agreed. A renewed motion under section 1008(b) is defined by the relief it seeks, not by the legal theory advanced to support it. Both motions sought an identical order compelling arbitration of the individual claims and dismissing the class claims. That the second motion rested on a different contract did not change the analysis. The court distinguished validation actions, which ask a court to approve a particular contract, so that substituting a different contract changes the relief sought. A motion to compel arbitration asks a court to move claims from the public court system to a private one, and that relief is the same regardless of which agreement supplies the right.

The court also rejected the argument that its decision is preempted by the Federal Arbitration Act. Its rationale had nothing to do with arbitration and everything to do with the nature of the relief requested as distinguished from the basis for the request. Section 1008 does not single out arbitration agreements for different treatment; rather, it applies the same reasoning to all motions. 

With these findings, Medical Solutions was left with no right to proceed on the appeal. The denial of its first motion to compel had been an appealable order, but it did not appeal then. The denial of the renewed motion was not appealable. The court declined to treat the attempted appeal as a writ petition, reasoning that it could not direct a trial court to grant a motion the trial court had no power to consider, and that it could not confer jurisdiction where none existed.

For California employers and their counsel, Hickenbottom is an important reminder to base a motion to compel arbitration on any and all operative agreements, in the alternative, even if the terms differ. Every potentially applicable agreement belongs in front of the court in the motion. An employer that identifies the operative agreement only afterward is left to satisfy section 1008(b), and counsel’s own oversight will rarely satisfy the diligence requirement that section requires.

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