Date: 06-28-2017

Case Style: Steve Ryan v. Mitchell Rosenfeld

Case Number: S232582

Judge: J. Cuellar

Court: Supreme Court of California

Plaintiff's Attorney: Robert Cooper

Defendant's Attorney: Daniel Lee Alexander

Description: Section 663 of the Code of Civil Procedure allows an aggrieved party in a
civil case to move the trial court to vacate its final judgment. The question in this
case is whether an order denying one of those motions is appealable even if it
raises issues that could have been litigated via an appeal of the judgment. We
answered yes to this question over a century ago. (See Bond v. United Railroads
(1911) 159 Cal. 270, 273 (Bond).) Bond held that the statute authorizing appeals
of postjudgment orders covered denials of section 663 motions. The current
version of that statute allows for the appeal of ―an order made after a[n appealable]
judgment.‖ (Code Civ. Proc., § 904.1, subd. (a)(2).) Orders denying motions to
vacate under section 663 fit that description, and this court has always interpreted
the language currently found in section 904.1, subdivision (a)(2), to make
appealable all section 663 denials. The Legislature has done nothing to undermine
or overturn that interpretation despite enacting over a dozen other changes to this
very statutory scheme. So the rule announced in Bond remains valid.
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I.
Stephen Ryan sued his former business partner Mitchell Rosenfeld in 2010.
Four years later, the trial court dismissed the action on the grounds that Ryan had
abandoned the case. Two months after that, Ryan moved to vacate the judgment,
claiming he was ill and hospitalized in Mexico when the judgment issued. The
motion cited and quoted from section 663. The trial court denied the motion.
Ryan later filed a notice of appeal for both the order dismissing the case and the
order denying his motion to vacate the judgment. The Court of Appeal dismissed
the appeal as untimely, observing that the deadline to appeal the order dismissing
the case had passed. And though the appeal may have been timely as to the later
order denying the motion to vacate, the court ruled that an order denying a section
663 motion ―is not appealable.‖ We granted Ryan‘s petition for review, asking the
parties to brief this question: ―Is the denial of a motion to vacate the judgment
under Code of Civil Procedure section 663 separately appealable?‖1
II.
To resolve this case we must analyze two sections of the Code of Civil
Procedure. The first lists scenarios in which the judgment in a civil case ―may,
upon motion of the party aggrieved, be set aside and vacated.‖ (§ 663.) The
second provides that an appeal ―may be taken from‖ ―an order made after a
judgment made appealable by paragraph (1).‖ (§ 904.1, subd. (a)(2).) The
―paragraph (1)‖ referred to here provides that ―a judgment‖ may be appealed so
long as it is neither ―an interlocutory judgment‖ (with certain exceptions listed

1 Rosenfeld has argued in this court that Ryan‘s motion to vacate was
improper because the motion did not seek entry of a judgment different from the
one that was entered. We do not address this question, which may bear on
whether Ryan filed a proper section 663 motion. The Court of Appeal may
address the question on remand.
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later in the statute) nor ―a judgment of contempt that is made final and conclusive
by Section 1222.‖ (Id., subd. (a)(1).)
As with all questions of statutory interpretation, our fundamental task is to
determine and effectuate the intended purpose of the statutory provisions at issue.
(See Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 [―In interpreting a statute,
our primary goal is to determine and give effect to the underlying purpose of the
law.‖].) Our analysis begins with the statutory text, which usually provides the
best indicator of the relevant legislation‘s purpose. We generally assign statutory
terms their ordinary meaning, while also considering the context — which
includes related provisions and the overall structure of the statutory scheme — to
further our understanding of the intended legislative purpose and guide our
interpretation. (See Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8
Cal.4th 361, 378 [―our primary task is to ascertain legislative intent, giving the
words of the statute their ordinary meaning‖]; id. at pp. 378-379 [―words . . . must
be read in context, considering the nature and purpose of the statutory
enactment‖].)
Our opinion follows several earlier efforts by this court to resolve questions
nearly identical to the one before us today. What complicates this case somewhat
is the tension between one of those past efforts — in Clemmer v. Hartford
Insurance Company (1978) 22 Cal.3d 865 (Clemmer) — and virtually all of our
other holdings on this question. As early as 1911, this court ruled that ―an order
authorized by section 663 of the Code of Civil Procedure‖ ―is clearly an
appealable order.‖ (Bond, supra, 159 Cal. at p. 273.) Bond pointed to two
statutory provisions justifying this conclusion. First, we noted that ―[b]y section
963 of the Code of Civil Procedure, an appeal may be taken from any special order
made after final judgment.‖ (Ibid.) We concluded that an order ―denying the
motion to vacate the judgment‖ pursuant to section 663 was an order ―of that
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kind.‖ (Ibid.) Former section 963 was repealed and replaced in 1968 by section
904.1, which as amended continues to provide that an appeal ―may be taken‖
―[f]rom an order made after a judgment‖ that was itself appealable. (§ 904.1,
subd. (a)(2).) Then as now, the denial of a statutory motion to vacate a judgment
is an ―order made after a judgment‖ that was appealable.
Bond next noted that ―[s]ection 663a of the Code of Civil Procedure
declares that an order ‗granting such motion may be reviewed on appeal in the
same manner as orders made on motions for a new trial.‘ ‖ (Bond, supra, 159 Cal.
at p. 273.) The quoted section 663a language has been reworded in two ways
since the decision in Bond. Both changes were slight. First, the phrase ―same
manner as orders made on motions for a new trial‖ from the 1911 version is now
―same manner as a special order made after a final judgment.‖ (See § 663a, subd.
(e).) Second, ―such motion may be reviewed‖ from the 1911 version is now ―a
motion may be reviewed.‖ (Ibid.) Neither of these changes affected the question
decided in Bond. What we said about section 663a in 1911 remains true today.
This statute ―should not be construed so as to affect the right given by section 963
[now 904.1] to appeal from an order denying the motion, as from an order made
after judgment.‖ (Bond, 159 Cal. at p. 273.)
We reiterated Bond‘s rule in the decades that followed. In 1927, for
example, we held that there ―should be no uncertainty‖: ―an order denying a
motion to vacate and to enter a different judgment is appealable as a special order
made after final judgment.‖ (Delta Farms v. Chinese American Farms (1927) 201
Cal. 201, 202 (Delta Farms).) Our opinion acknowledged ―the obvious fact‖ that
―the very same matters may be reviewed‖ in an appeal from the underlying
judgment and in an appeal from a denied 663 motion. (Delta Farms, at p. 203.)
But we declared that ―our law gives a separate appeal from an order made by the
court on the motion referred to in sections 663 and 663a.‖ (Ibid.) We also
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recognized what we described as a well-established, generally applicable rule: No
appeal is possible where ―an order refusing to vacate a judgment or order does not
present any facts for consideration other than those which are presented upon
appeal from the judgment itself.‖ (Id. at p. 204.) But we held that this rule has
―no application to the special motions authorized by section 663 of the Code of
Civil Procedure.‖ (Ibid.)
The language in Bond and Delta Farms is as clear as it is directly relevant
to the issue before us here. We consistently affirmed the same interpretation,
moreover, in the years that followed. (See, e.g., Funk v. Campbell (1940) 15
Cal.2d 250, 251 [―[a] specific and separate appeal from an order made on a motion
under [section 663] is accorded the aggrieved party‖]; Winslow v. Harold G.
Ferguson Corp. (1944) 25 Cal.2d 274, 282 [―In those cases where the law makes
express provision for a motion to vacate — as under sections 473, 473a and 663,
663a of the Code of Civil Procedure — an order denying such motion is regarded
as a ‗special order made after final judgment‘ and as such is appealable under
section 963 . . . .‖].) In Funk, a concurring opinion added that ―it was the obvious
intention of the legislature that an appeal should lie from an order granting or
denying a motion to vacate a judgment made pursuant to sections 663 and 663a of
the Code of Civil Procedure, regardless of whether the grounds upon which said
motion is made existed before the entry of judgment and are available on an
appeal from the judgment.‖ (Funk, at p. 254 (conc. opn. of Carter, J.).)
The annals of our cases affirming the appealability of orders denying
section 663 motions even includes a case dealing with a factual scenario quite
analogous to Ryan‘s appeal. (See Socol v. King (1949) 34 Cal.2d 292.) Like
Ryan, the losing party in Socol appealed both the underlying judgment and the
later denial of a section 663 motion to vacate that judgment. Also like Ryan, the
losing party filed both appeals together –– past the deadline to appeal the
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underlying judgment. We found the appeal of the underlying judgment untimely,
but we also observed that the expiration of this deadline ―does not . . . leave an
appellant who has failed to take a timely appeal from the judgment completely
remediless‖ because ―an order of denial of a motion to vacate under section 663 is
appealable, notwithstanding that the same grounds could be urged on an appeal
from the judgment.‖ (Id. at p. 296.) Section 663 provides a basis for vacating a
judgment in a limited set of circumstances — some that overlap with issues that
can be raised in an appeal, some that do not. The Legislature‘s authorization of
appeals of special postjudgment orders allows appellate courts to review whether a
case presents those circumstances. Some section 663 motions may raise issues
that could have been raised in an appeal. But the statutory basis for section 663
motions has a different purpose relative to appeals, and the statutory limits on the
scope of section 663 motions help ensure these motions are not used merely as a
routine substitute to the normal appeal process. The opposing party in Socol had
argued nonetheless that an order denying a section 663 motion was not a ―special
order made after final judgment,‖ but we wrote that ―he cites no cases and we have
found none that supports this contention.‖ (Ibid.) We thus held that the notice of
appeal ―was timely and valid‖ in relation to the denied section 663 motion. (Id. at
p. 297.)
A few decades later, we again reiterated that ―an order denying a motion to
vacate made pursuant to Code of Civil Procedure section 663 has been held to be
appealable.‖ (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660,
663.) Just three years after that opinion, we decided Clemmer. This 1978 case
arose from the killing of Hugh Clemmer by a former employee named Daniel
Lovelace. (Clemmer, supra, 22 Cal.3d at p. 871.) Clemmer‘s family won a
default judgment in a wrongful death action against Lovelace and then sued
Lovelace‘s insurer the Hartford Insurance Company to recover the money. (Ibid.)
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After the jury sided with the family, Hartford filed a motion for a new trial, a
motion for judgment notwithstanding the verdict, and a motion to vacate under
section 663. (Id. at p. 872.) The trial court denied the latter two motions, but it
granted the motion for a new trial on a partial issue. (Ibid.) Hartford appealed the
court‘s rulings on all three of the motions (the two that were denied in full, plus
the motion for a new trial that was denied in part). Hartford argued on appeal that
Lovelace‘s murder conviction collaterally estopped Clemmer‘s family from
asserting that the murder was not willful (the insurance policy apparently did not
cover willful homicides). We rejected this argument on the merits. (Id. at p. 877.)
Clemmer also referenced Hartford‘s section 663 motion. Our opinion said
a grand total of three things about this motion. First, the opening paragraph listed
the orders Hartford had appealed (―the orders of the trial court denying its motions
(1) for judgment notwithstanding the verdict, (2) to set aside and vacate the
judgment and enter a new and different judgment, and (3) for a new trial on all
issues‖) and stated that Hartford‘s ―appeal must be dismissed insofar as it purports
to be from the latter two orders, such orders being nonappealable.‖ (Clemmer,
supra, 22 Cal.3d at p. 871.) Second, a section labeled ―Other Contentions‖
observed that Hartford‘s ―final argument — that it was entitled to have the
judgment set aside and a new judgment entered pursuant to Code of Civil
Procedure section 663 because the findings of the trial court compel a
determination that plaintiffs are precluded from litigating the issue of willfulness
— is but a reassertion of its collateral estoppel argument couched in procedural
language, and we need not consider it further here.‖ (Id. at p. 888.) And third, the
opinion‘s ―Conclusion‖ section stated that the ―appeals from the orders denying
the motion to set aside and vacate the judgment and enter a new and different
judgment and the motion for a new trial on all issues must . . . be dismissed, said
orders being nonappealable.‖ (Id. at p. 890.) Our opinion provided no authority
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for these statements, nor did the opinion explain why it deemed the section 663
order ―nonappealable.‖
Perhaps because of these lacunae, Clemmer‘s unexplained treatment of the
section 663 order has –– for years –– puzzled observers. One Court of Appeal, for
example, did its best to harmonize the discord in our jurisprudence by observing
that ―the precedential value of Clemmer is doubtful,‖ since the opinion dealt with
the section 663 order ―without discussion of the established rule, and in a
statement superfluous to the opinion.‖ (Howard v. Lufkin (1988) 206 Cal.App.3d
297, 302.) Another opinion questioned Clemmer‘s implications because the case
―did not in terms purport to disapprove the consistent line of earlier cases.‖
(Forman v. Knapp Press (1985), 173 Cal.App.3d 200, 202.) Nonjudicial
authorities have similarly downplayed Clemmer‘s treatment of the section 663
order in the case. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 200, p.
277 [listing Clemmer as ―Contrary Dicta‖ and explaining that the opinion‘s
disposition of the section 663 appeal ―had no significant effect‖]; 1 Eisenberg et
al., Cal. Practice Guide: Civil Appeals and Writs (2014), p. 2-123 [―Clemmer
neither overruled nor, indeed, even mentioned the long line of precedent
establishing the ‗statutory motion exception,‘ and thus can be viewed as an
‗anomaly‘ not affecting that precedent.‖]; 4 Cal. Jur. (3rd ed. 2015) Appellate
Review, § 92 [noting that ―the courts have repeatedly ruled‖ that orders denying
section 663 motions ―may be appealed from, notwithstanding that the same
grounds could be urged on an appeal from the judgment‖].)
Whatever else is true of Clemmer, what we hold is that it did not overrule
our long-standing precedent. When this court departs from settled law, we seek to
explain the reasons for that departure. When an opinion defies our precedent with
no explanation, litigants and courts have no reliable way to discern whether that
departure was an oversight. This is especially true for an opinion like Clemmer,
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where the inconsistency with settled law was not a central issue in the case. We
thus treat Clemmer‘s statement with more skepticism than we treat Bond and the
other prior cases analyzing this statutory scheme in greater detail. (See McHugh v.
Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 358 [―When, as here, a
decision treats an issue in a ‗summary and conclusory‘ manner, and is ‗virtually
devoid of reasoning,‘ its authoritative status is undermined.‖].)
Our conclusion that Bond and its progeny offer the most reasonable
interpretation of this statutory scheme is also supported by decades of legislative
inaction in response to those opinions. Such acquiescence does not in all
circumstances imply the Legislature‘s embrace of a particular holding or doctrine.
(See People v. King (1993) 5 Cal.4th 59, 75.) But the question in this case
implicates a ―pattern of legislative inaction signaling acquiescence, as there exists
‗both a well-developed body of law interpreting a statutory provision and
numerous amendments to a statute without altering the interpreted provision.‘ ‖
(People v. Zambia (2011) 51 Cal.4th 965, 976, quoting Olson v. Automobile Club
of Southern California (2008) 42 Cal.4th 1142, 1156.) We observed 90 years ago
that ―it seems definitely settled that our law gives a separate appeal from an order
made by the court on the motion referred to in sections 663‖ ―notwithstanding the
obvious fact that . . . the very same matters may be reviewed‖ in motions to vacate
and in appeals of the underlying judgment. (Delta Farms, supra, 201 Cal. at p.
203, italics added.) That the Legislature has done nothing to question this
―definitely settled‖ view, despite making over a dozen changes to this statutory
scheme in the century since Bond, strengthens the basis for our conclusion.
A trip through the history of Code of Civil Procedure section 963 also
bolsters the inference that the Legislature accepted the interpretation we
articulated in Bond. At the time Bond was decided, the statute made both grants
and denials of motions for a new trial appealable. Four years after Bond, section
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963 was amended so that denials of these motions were no longer separately
appealable. Section 663a was also amended at this time. Back when Bond was
decided, that section allowed appeals of section 663 grants in the same ―manner as
orders made on motions for a new trial.‖ But along with the amendment to section
963, section 663a was amended to allow an appeal in the ―same manner as a
special order made after a final judgment.‖ This phrasing tracked the language
Bond had relied on to hold that denials of section 663 motion are appealable. (See
Bond, 159 Cal. at p. 273 [―By section 963 of the Code of Civil Procedure, an
appeal may be taken from any special order made after final judgment.‖].) These
parallel amendments to sections 963 and 663a add even more support to the
inference that the Legislature approved Bond‘s reading of the statutory scheme.
Rosenfeld nonetheless argues that we should change our view because
―[t]ime has passed and the law has evolved,‖ such that ― ‗[t]his order‘ is no longer
‗one of that kind,‘ as the Bond court called it.‖ Rosenfeld‘s ―no longer one of that
kind‖ argument here is based in part on our opinion in Lakin v. Watkins Associated
Industries (1993) 6 Cal.4th 644. Lakin ruled that orders denying attorney fees are
appealable. (See id. at p. 649.) In analyzing this question, we observed that ―not
every postjudgment order that follows a final appeal judgment is appealable‖
because one of the ―requirements‖ ―a postjudgment order must satisfy‖ ―[t]o be
appealable‖ ―is that the issues raised by the appeal from the order must be
different from those arising from an appeal from the judgment.‖ (Id. at p. 651.)
There was no question that the attorney fees order in Lakin met that requirement,
since an ―order denying attorney fees . . . plainly raises issues different from those
arising from the judgment itself.‖ (Ibid.) Rosenfeld argues that ―[d]enials of
motions to vacate judgments under 663 generally do not‖ meet this requirement,
so Lakin bars Ryan‘s appeal.
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Yet Lakin‘s holding creates no such bar. The case addressed an order
denying a motion for attorney fees. Although its analysis restated the general rule
that postjudgment motions should not substitute for appeals of the final judgment,
we had no reason to address the long-standing exception to this rule for statutory
motions to vacate. Despite Rosenfeld‘s contention that Lakin silently overruled
that exception, a statutory motion to vacate was not even at issue in Lakin. This
court has continued to apply the exception in the years since Lakin. (See People v.
Totari (2002) 28 Cal.4th 781, 886-887 [noting that ―the ‗no second appeal‘ rule
loses its urgency‖ ―[o]nce the Legislature . . . affords . . . a means to obtain relief
by way of a statutory postjudgment motion to vacate‖].) Totari held that criminal
defendants can appeal orders denying motions to vacate the judgment. A previous
opinion had deemed a similar order nonappealable, but we explained that the
previous case involved a nonstatutory postjudgment motion to vacate, rather than
a statutory one. (Id. at p. 887.) Though Totari was a criminal case, we confirmed
that the same rule also applied to civil cases. (See id. at p. 888 fn.5.) Totari is our
most recent case to address the appealability of orders denying motions to vacate
— and it stated the correct rule.2
Rosenfeld contends otherwise by quoting our statement that ― ‗exceptions
to the one final judgment rule should not be allowed unless clearly mandated.‘ ‖
(In re Baycol Cases I & II (2011), 51 Cal.4th 751, 757.) This statement is true as

2 This distinction between statutory and nonstatutory motions explains the
difference between Ryan‘s case and the three cases Rosenfeld cites to argue that
―the court‘s rulings have not been entirely consistent.‖ (See Southern Pac. R.R.
Co. v. Willett (1932) 216 Cal. 387, 390; Title Ins. & Trust Co. v. California Dev.
Co. (1911) 159 Cal. 484, 487; Kent v. Williams (1905) 146 Cal. 3, 11.) None of
those three cases referred to statutory motions, whereas Bond, Delta Farms, Funk,
Winslow, Socol, and Hollister all affirmed the appealability of orders denying
section 663 motions.
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far as it goes –– but does not get Rosenfeld far in this case. What we recognized
in Baycol was that section 904.1 ―codifies the common law one final judgment
rule‖ and ―lists various specific additional appealable orders that stand as
exceptions to the general rule.‖ (Id. at p. 756 & fn.3.) One of these specific
exceptions is ―an order made after a[n appealable] judgment.‖ (§ 904.1, subd.
(a)(2).) This is the ―clearly mandated‖ ― ‗exception[] to the one final judgment
rule‘ ‖ (Baycol, at p. 757) that makes the trial court‘s order in this case appealable.
The text and structure of section 904.1 show that the Legislature authorized
appeals of all orders granting or denying section 663 motions –– just as we long
held. Clemmer‘s suggestion to the contrary is overruled.3

3 We also disapprove the holdings of the following Court of Appeal cases to
the extent they are inconsistent with this opinion: Payne v. Rader (2008) 167
Cal.App.4th 1569; City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813;
Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471; and PitinoCapasso
Fruit Co. v. Hillside Packing Co. (1928) 90 Cal.App. 191.
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III.
By enacting section 663, the Legislature allowed litigants and other
aggrieved parties to secure postjudgment relief in some circumstances and to raise
certain issues that could not be raised in an appeal of the judgment. All our prior
cases have interpreted the statute authorizing appeals from postjudgment orders to
include appeals of rulings denying section 663 motions. A statutory appeal from a
ruling denying a section 663 motion is indeed distinct from an appeal of a trial
court judgment and is permissible without regard to whether the issues raised in
the appeal from the denial of the section 663 motion overlap with issues that were
or could have been raised in an appeal of the judgment. This approach is the most
reasonable in light of the text, structure, and context of the relevant statutes,
because the statute authorizing appeals from postjudgment motions provides for
appeals from postjudgment orders without reference to the substance of the issues
analyzed in an order. Clemmer‘s unexplained departure from this view was
mistaken.

Outcome: The Court of Appeal‘s order dismissing the appeal of the section 663 motion is vacated and the matter is transferred back to that court. On remand, the
Court of Appeal may choose to address aspects of Ryan‘s appeal that have not
been addressed yet, including the argument that Ryan did not properly file a
section 663 motion and the argument that Ryan‘s appeal of the section 663 order
was untimely

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