Charles Kagay, of California Appellate Law Group in San Francisco, CA. (Courtesy photo)
Frank Lloyd Wright famously once said: “A doctor can bury his mistakes, but an architect can only advise his clients to plant vines.” What about a Supreme Court, whose stock in trade is words, albeit words that often wind up written in stone? A recent California Supreme Court decision, Ryan v. Rosenfeld, had to confront this question.
Ryan illustrates that a good place to look for judicial mistakes is in California’s labyrinth of post-trial motions, which can be a source of vexation for trial practitioners. It is bad enough to lose a judgment; now you have to choose, often quickly, whether to file a motion for new trial, motion for judgment notwithstanding the verdict, motion to vacate the judgment, motion to correct the judgment, motion to set aside a judgment, motion for relief from judgment, some combination of motions, or perhaps some creative non-statutory motion.
For an appellate practitioner, the key question is often whether it is possible to appeal the grant or denial of such a motion. Ryan shows that even the Supreme Court can get the answer to such a seemingly fundamental question wrong.
Superficially, whether a post-judgment order can be appealed ought to be a simple proposition. The California Supreme Court, in a 2010 case called Dana Point Safe Harbor Collective v. Superior Court, made clear the right to appeal is wholly statutory. Code of Civil Procedure section 904.1 lists appealable judgments and orders, and section 904.1(a)(1) makes final judgments appealable. Section 904.1(a)(4) allows an appeal from an order granting a new trial or denying a motion for judgment notwithstanding the verdict, so those two are easy. More broadly, section 904.1(a)(2) makes appealable “an order made after a judgment made appealable by paragraph (1).”
Section 904.1(a)(2) on its face appears to answer the question of whether you can appeal the grant or denial of a post-judgment motion, since these are orders made after an appealable judgment. But the answer is not always so simple
The Supreme Court has set out two other hurdles an order after judgment must clear before it is deemed appealable. In Lakin v. Watkins Associated Industries, the court held issues raised by the appeal from the order must be different from those raised by an appeal from the judgment—otherwise, appellant would be getting a second chance to appeal—and the order must either affect the judgment or relate to it by enforcing it or staying its execution.
This test is not as clear as one might like, and so it sometimes is hard to say whether an order on a given post-judgment motion is appealable. For example, in San Bernardino County Flood Control Dist. v. Grabowski, the court determined an order denying a motion to correct a judgment is not appealable. Or perhaps it is, as the court decided in Bowden v. Green.
The denial of a motion for new trial, the court has held since 1919’s Marsh v. Lapp, is not appealable. With the passage of time, the Supreme Court thought the non-appealability of such an order ought to be apparent. In Rodriguez v. Barnett, the “appeal [of the denial of the new trial motion] was dismissed from the bench with an admonition from the Chief Justice to counsel and to members of the bar generally to cease appealing from such an obviously nonappealable order.”
But Ryan shows that perhaps the court should not be so quick to scold attorneys who take on precedent dictating the appealability of a post-judgment order. The Ryan appellant had appealed both the dismissal of his action and the denial of his subsequent Code of Civil Procedure section 663 motion to vacate the judgment. The Court of Appeal affirmed, holding that the appeal of the judgment was untimely and that denial of the motion to vacate was “not appealable.” The Supreme Court granted review on the latter issue.
The thrust of the Ryan decision was that the court had, more than a century earlier in Bond v. United Railroads of San Francisco, held the denial of a motion to vacate a judgment appealable; that it had repeatedly so held thereafter; that the Legislature had enacted section 904.1 without taking exception to this holding; that such an order was plainly “an order made after a[n appealable] judgment,” for which section 904.1 permits an appeal; and so of course the order was appealable.
The one difficulty with this scenario was that the court’s most recent direct statement on the issue, in 1978’s Clemmer v. Hartford Insurance Company, had held just the opposite. That decision lumped together appeals from the denial of a motion to vacate a judgment and from the denial of a motion for new trial, and then dismissed them both, “said orders being nonappealable.” Ever since, the courts of appeal had been left scratching their collective heads over this unexplained departure from precedent, with inconsistent results. The Ryan court attributed this bewilderment to Clemmer’s “lacunae”—which is to say, the decision stated its conclusion but did not give any reasons at all.
To its credit, the Supreme Court tried neither to bury this mistake in a footnote nor to obscure it with jurisprudential vines. It reaffirmed that the denial of a motion to vacate a judgment can be appealed, holding in Ryan that “Clemmer’s unexplained departure from this view was mistaken.”
The lesson for lawyers trying to work their way through the post-judgment motion maze is that the appealability of the trial court’s order is often worth a second or even a third look, perhaps by an appellate specialist. Certainly, Mr. Ryan advanced his cause by confronting the Supreme Court with a mistake it proved willing to address head-on.