Appellate Jurisdiction,  Appellate Procedure

Long-derided Clemmer v. Hartford Insurance Co. clarified by Supreme Court: an order denying a motion to vacate under Code of Civil Procedure section 663 is appealable

In 2007, I wrote about the questionable rule of Clemmer v. Hartford Insurance Co. (1978) 28 Cal.3d 865, which concluded that an order denying a motion to vacate made under Code of Civil Procedure section 663 (a “section 663 motion to vacate”) is not appealable:

Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal. Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. [Citation.]

I suggested that the then-recent decision in City of Los Angles v. Glair (2007) 153 Cal.App.4th 813 might give the Supreme Court a good reason to revisit and clarify Clemmer, because the Glair court had bucked the trend of writing off Clemmer’s conclusion as dictum, and instead relied on Clemmer to dismiss an appeal. (I later expanded that blog post into an article, available here.)

The Supreme Court denied review in Glair, but this part of Clemmer, and confusion resulting from it, have finally met their doom in Ryan v. Rosenfeld (June 15, 2017, S232582) ___ Cal.5th ___. In Ryan, the Supreme Court unambiguously holds that an order denying a section 663 motion to vacate is appealable, even if it raises issues that could have been litigated in an appeal of the judgment.

The Supreme Court’s statement of the conflict between Clemmer and its other decisions on the issue is understated:

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 []— and virtually all of our other holdings on this question.

The Supreme Court takes us on a trip through history, starting with a 1911 Supreme Court decision holding that an order denying a section 663 motion to vacate [then codified elsewhere] is appealable, then tracks its subsequent consistent decisions and carefully recounts intervening amendments to the relevant statutes to demonstrate that they do not change the rule first announced in 1911.

The Supreme Court downplays the opposite conclusion reached in Clemmer by noting the appellant in that case had appealed from two post-judgment orders in addition to the order denying its section 663 motion to vacate — one granting its new trial motion only in part, and the other denying its motion for judgment notwithstanding the verdict — and that the opinion in Clemmer “said a grand total of three things” about the motion to vacate. Noting that its opinion in Clemmer offered no analysis of the issue or any authority supporting its conclusion that orders denying section 663 motions to vacate are not appealable, the Supreme Court explains that “Clemmer’s unexplained treatment of the section 663 order has — for years — puzzled observers.” Ryan solves that puzzle:

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, 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 . . . prior cases analyzing this statutory scheme in greater detail.

The issue decided in Ryan will give a second chance to some appellants. A party that failed to appeal (or untimely appealed) from the underlying judgment might can still obtain review of issues that could have been raised in an appeal from the judgment by timely appealing from the denial of a section 663 motion that raised those issues.