Hickenbottom: A Second Arbitration Motion Required Compliance With Section 1008

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In Hickenbottom v. Medical Solutions LLC, a travel nurse brought wage-and-hour claims and his former employer filed two successive motions to compel arbitration. The Court of Appeal held that the second application sought the same relief and could not proceed without the affidavit and diligence showing required by Code of Civil Procedure section 1008.

The first motion relied on the wrong provision

Medical Solutions initially relied on an arbitration provision in an employee handbook. Hickenbottom argued that a later travel-assignment agreement had superseded that provision.

The superior court denied the first motion after concluding the employer had not relied on the operative agreement.

The employer filed a second motion

Medical Solutions returned with another motion to compel the same wage-and-hour claims, this time invoking the later agreement.

It did not submit the affidavit required for a renewed application or explain why the new basis had not been presented earlier.

Relief, not just the contract theory, controlled

Section 1008(b) applies when a party renews an application for the same order based on new or different facts, circumstances, or law. Both motions sought identical relief: moving the same claims from court to individual arbitration and dismissing the class claims.

Changing the contractual provision did not turn the second request into a different remedy.

The appeal was dismissed

Because the statutory requirements were jurisdictional and the employer did not comply, the trial court lacked jurisdiction to consider the second motion.

The order denying that renewed motion was not appealable, so the Court of Appeal dismissed the appeal and awarded Hickenbottom costs. The decision highlights the need to identify the operative agreement before the first motion is filed.