Friday, July 28, 2017


Ryan v. Rosenfeld, No. S232582 (Cal. Jun. 15, 2017)

Code of Civil Procedure § 663 permits a post-judgment motion to vacate a judgment, under certain specific circumstances. Generally, but without elaboration, a bunch of cases say that an order denying a § 663 motion is an order made after an appealable judgment, and thus appealable under § 904.1(a)(2). Problem is that a 1978 Supreme Court caseClemmer v. Hartford Insurance Company, 22 Cal.3d 865 (1976)—somewhat inexplicably says it isn’t, in tension with a bunch of earlier Supreme Court cases.

The Court of Appeal here felt bound by Clemmer, so it held that the appeal—timely based on the date of entry of the § 663 order but tardy if counted from the date the underlying judgment was entered—needed to be dismissed. The Supreme Court stepped in to clarify the situation. And so the Court unanimously clears the brush without much ado: Clemmer was wrong. An order denying a § 663 motion is separately appealable under § 904.1(a)(2). And Clemmer is disapproved.


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