Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Motions to Vacate

Denial of Motion to Vacate Default Was Res Judicata, Not Subject to a Second Challenge

When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment.

Technically, you can do both. But don’t. That is what the defendant tried in HFL Law Group v. Schermer (D2d3 Feb. 10, 2022 no. B309020) 2022 WL 406947 (nonpub. opn.). The defendant moved to vacate the prejudgment entry of default, lost that motion, and then when default judgment was entered, moved to vacate that, too.

The Upshot: Don’t make the same argument in successive motions to vacate. When the defendant lost the first motion to vacate, and the judgment was entered, the issues were fully and finally adjudicated. At that point, the defendant’s remaining move was to appeal the judgment. The defendant did not appeal, and instead filed a motion to vacate the judgment, arguing the same grounds as before.

Her appeal of the denial of her second motion was timely, and the order was appealable, but to no avail: the issues were already final and the Court of Appeal lacked jurisdiction to disturb them.

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Are Denials of New Trial Motions Appealable or Not?

Answer: Denials of new trial motions are not appealable.

But these things are never quite that simple, are they?
Here are a few buts:
1.Denials of new trial motions are reviewable on appeal.
2.Orders that only partially deny a new trial motion are appealable.
3.Orders denying statutory motions to vacate and set aside a judgment (e.g., Code Civ. Proc., §§ 473, 663) are appealable. In the article, I offer a strategic consideration in choosing between filing a motion for new trial or a motion to vacate and set aside the judgment.

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Is This Probate Order Appealable? Yes, But "It's Messy,"​ Says Appellate Court

When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old Supreme Court precedent, to determine that, though it is a "close call," the order denying a motion to vacate an order confirming a settlement was appealable.

You can usually tell whether the order is appealable just by the title or nature of the order. It should not require researching 100 years of precedent to find out if an order is appealable. But that is what it took here.

The Upshot: If you plan to challenge an order or judgment in a motion to vacate in probate court, try to raise issues and evidence that were not available at the time the underlying order or judgment was issued. That will help ensure an order denying your motion is independently appealable.

But if you do not need to raise new issues or evidence, make sure to timely appeal the underlying order or judgment. (In fact, you might timely appeal it regardless. You should consult an appellate attorney in this situation.)

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