George Ball Pacific, Inc. v. Coldwell Banker & Co.

This is an appeal by the lessee, George Ball Pacific, Inc. (Ball), from a summary judgment in favor of Coldwell Banker & Company (Coldwell Banker) and its salesperson, Fraser, Ball’s agents in the negotiations with the original lessor (Overmyer). For the reasons set forth below, we have concluded that there was a disputed-question of fact as to whether Coldwell Banker misrepresented to Ball that Overmyer had a sufficient interest in the property to enter into a 10-year lease; accordingly, the summary judgment must be reversed.

First, we turn to the parties’ procedural contentions pertaining to Ball’s motion for reconsideration, as the resolution of this issue determines whether the affidavits and declarations filed pursuant to that motion are properly part of the record on appeal. As Coldwell Banker correctly points out, former Code of Civil Procedure section 1008, at the time here pertinent, provided no statutory authority per mitting a nonmoving party action to file a motion for reconsideration. However, Coldwell Banker failed to note that prior to the enactment of the 1978 version of Code of Civil Procedure section 1008, case law recognized certain exceptions…