On Appealablity

Donohue v. AMN Servs. Inc., No. D071865 (D4d1 Dec. 10, 2018)

The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.

But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.

First, it recognizes that an order denying a post-judgment order is appealable under Code of Civil Procedure § 904.1(a)(2). But since Plaintiff’s notice of appeal only claimed to appeal the judgment, not a post-judgment order, the court says Plaintiff didn’t properly appeal the order.

Second, the Court says that the motion is potentially a motion to vacate the judgment on equitable grounds, which is not independently appealable at all. 

And third, the Court addresses Defendant’s argument that the trial court had actually denied a motion for reconsideration. That brings to bear Code of Civil Procedure § 1008(g): “if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.” The Court rejects this on two grounds. It says the appeal is from the judgment, not the order granting summary judgment, so the motion to reconsider did not actually seek reconsideration of an appealable order. And even if it did, the trial court didn’t deny the reconsideration motion, it vacated it. So § 1008(g) doesn’t facially apply. 

None of this really matters, however, because in addressing the appeal of the judgment itself, the court considers, and rejects, the arguments raised in the post-trial motion. 

That said, even if this stuff is dicta, it’s worth exploring. Because appealability issues can lead to case-killing jurisdictional mistakes, it’s important that these rules are clear. Indeed, with these kinds of rules clarity is more important than anything else. It would be better to have a set of perfectly clear, but arbitrary rules with no policy rationale than policy-driven rules whose application in any particular case results in a gray area.

Appealability in California is addressed by § 904.1. Its prime rule—the “one final judgment rule”—is relatively easy. Final judgments are appealable. § 904.1(a)(1). Except for codified exceptions, non-final or interlocutory judgments are not. Id. 

Then there are a bunch of pre-final judgment orders that are made appealable by statute, presumably based on a legislative determination that they are of sufficient import to merit interlocutory review. These include orders granting or denying injunctions or other prejudgment relief (§ 904.1(a)(5) (attachment), (a)(6) (injunction), (a)(7) (receivers), (a)(8) (redemptions of personal property), (a)(9) (partition)), stays on forum nonconveniens grounds (§ 904.1(a)(3)), certain Family and Probate Court orders (§ 904.1(a)(10), (a)(14)), orders granting significant amounts of sanctions (§ 904.1(a)(11), (a)(12)), and orders on anti-SLAPP motions (§ 904.1(a)(13)). Elsewhere in the Code, orders denying motions to compel arbitration get similar treatment. § 1294.

Similar rationales support permitting an appeal to be taken from an order granting a motion for new trial. § 904.1(a)(4). Even though a new trial motion can be a post-judgment motion, see § 659(a)(2), an order granting a new trial motion vacates the judgment and wipes the slate clean as if no trial had ever occurred. There’s thus no judgment to appeal from. But the order is considered to be of sufficient moment that the appellate courts get to weigh in before the re-do can occur.

So far, so good. But then things start to get a little confusing. First, § 904.1(a)(3) includes lists some orders that would seem to be, effectively, final judgments, so it’s not clear why they needed to be listed. See § 904.1(a)(3) (order granting motion to quash, order dismissing on non-conveniens grounds when dismissal rendered into a judgment under § 581d.)

But where it really gets tricky is what to do with post-judgment orders like the one in this case. The Code makes it seem simple—§ 904.1(a)(2) says an “order made after” an appealable final judgment is an appealable order. That would seem to include, for instance, denied post-judgment new trial motions (§ 657), orders on jnovs (§ 629), and orders on the various statutory and non-statutory motions to correct, vacate or set aside judgments (§§ 473(b), 473(d), 663) It would seem at first also to apply to a post-judgment reconsideration motion, but § 1008(g) specifically says that is “not separately appealable.” 

The case law, however, is a complete mess. There are cases that say that orders deciding certain of these post-trial motions are not independently appealable, but can be reviewed on an appeal from the the judgment itself. See Scognamillo v. Herrick, 106 Cal. App. 4th 1139 (2003) (appeal of order on § 473(b) motion could be taken only by appeal of the underlying judgment); Adoption of Matthew B., 232 Cal. App. 3d 1239, 1267 (1991) (“Ordinarily, an order denying a nonstatutory motion to vacate such as Nancy’s is not appealable.”). The rationale for the non-appealability of these orders is that “to allow the appeal from the order of denial would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.” Rooney v. Vermont Inv. Corp., 10 Cal. 3d 351, 358 (1973). These cases are particularly concerned with the use of a posttrial motion to save an appeal on the merits when a party failed to file a timely notice of appeal of the underlying judgment.

In these types of cases courts often hold that post-judgment orders are generally appealable when the “two appeals” rationale does not hold. Thus, a post-judgment order is often appealable if its resolution “raises issues which are not disclosed or could not be disposed of on appeal from the judgment itself.” Id. Similarly, even cases recognizing the non-appealability of certain types of attacks on a judgment recognize exceptions for when the party was unable to take an appeal from the judgment upon entry. See Kalenian v. Insen, 225 Cal. App. 4th 569, 576 (2014) (permitting party to appeal a denied motion to vacate on equitable grounds when the party was not aware of the underlying judgment).

On the other hand, there are cases that simply take § 904.1(a)(2) at face value. See Younessi v. Woolf, 244 Cal. App. 4th 1137, 1143 (2016) (§ 473(b) motion appealable under § 904.1(a)(2)); Ryan v. Rosenfeld, 3 Cal. 5th 124, 128 (2017) (same for § 663 order); Carr v. Kamins, 151 Cal. App. 4th 929, 933 (2007) (same for nonstatutory motion to vacate judgment).

And then there’s denials of new trial motions. Notwithstanding any of the above discussion, it “has long been settled that an order denying a motion for new trial is not independently appealable and may be reviewed only on appeal from the underlying judgment.” Walker v. Los Angeles Cty. Metro. Transportation Auth., 35 Cal. 4th 15, 19 (2005). That’s even the case when the new trial addresses developments in the record that did not exist when judgment was entered. Id. at 18 (motion addressed jury misconduct). The rationale appears to be that since new trial grants are listed in § 904.1(a)(4), but denials aren’t, denials aren’t independently appealable. Of course, that ignores § 904.1(a)(2). And it fails to recognize the specific reason why a granted new trial motion needs to be independently appealable—because there’s no longer any judgment to appeal from. At least one Court of Appeal case—post-Walker—has nonetheless held that an “order denying a new trial is appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2).” Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 567, 624 (2008).

Finally, the Supreme Court has also held that certain post-judgment orders are not appealable, notwithstanding § 904.1(a)(2) (or prior enactments of it) because they are “preliminary to future proceedings and will not become subject to appeal after a future judgment.” Lakin v. Watkins Associated Indus., 6 Cal. 4th 644, 654 (1993). So, to make an extreme example, although an order setting a hearing date for a new trial motion under § 660 is, literally, an “order made after judgment,” it would be too preliminary the ultimate motion to permit an immediate appeal. (Disputes over the application of this rule are the basis of the Fox Johns/Macaluso paradox that I wrote about a few weeks ago.)

Confused yet?

Perhaps there’s hope. The Supreme Court’s most recent take on § 904.1(a)(2) seemed inclined to take the statute at face value. It held that the plain meaning of § 904.1(a)(2) created a statutory exception to the “one final judgment” rule stated in 904.1(a)(1). Ryan, 3 Cal. 5th at 134–35. Thus, 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.” Id. at 135. 

That logic would seem to make all final orders addressed to post-trial motions appealable. That said, it’s not clear how much this more textual take is catching on outside the context of § 663 motions. And as this case shows, the decks aren’t clear yet. 

Anyhow, getting back to the court’s three reasons why the post-judgment order wasn’t appealable:

First, notices of appeal are liberally construed. Rules of Court 8.100(a)(2). Given the above mess of case law, it would not be crazy for Plaintiff to believe that that her motion to vacate or strike or whatever it was called was not separately appealable and thus could only be appealed on an appeal from the underlying judgment. So it seems pretty harsh that her failure to cite the post-judgment ruling in her notice of appeal dooms her appeal on that issue. Notably, in Walker, the Supreme Court construed a notice of appeal from a denial of a new trial motion to be a notice of appeal from the underlying judgment. 35 Cal. 4th at 22. This is basically just the same in reverse. None of the cases cited by the Court address the situation where there’s any overlap between the merits of the judgment and the post-judgment order.

Second, as noted, it is by no means clear that a non-statutory motion to vacate is not appealable under § 904.1(a)(2). And even if isn’t, the merits of the motion likely could be addressed by appealing the underlying judgment, which is just what Plaintiff did.

Finally, on the reconsideration issue, both of the Court’s rationales seem a little off. Section 1008(g) doesn’t require the order subject to reconsideration to be “independently appealable” or “separately appealable,” just “appealable.” While an order granting summary judgment order is not appealable on its own, its merits can be addressed on an appeal taken from a subsequent judgment. It thus seems like hairsplitting to say that the order wasn’t appealable as the term is used in the statute. Indeed, in a similar case, a plaintiff’s appeal raised both an order sustaining a demurrer and a motion to reconsider the order. Like a granted summary judgment, an order sustaining a demurrer is not independently appealable. But it can be reviewed by an appeal taken from a subsequent judgment of dismissal. That was sufficient to permit review of the reconsideration order on an appeal of the judgment under § 1008(g). See Reynolds v. City of Calistoga, 223 Cal. App. 4th 865, 871 (2014).

As to the argument that a vacated motion isn’t denied, that too puts form over substance. Plaintiff sought reconsideration and did not receive it. To have the appealability of that decision subject to the trial court’s choice of words in refusing the relief would be completely arbitrary.

Affirmed.