Kowal Law Group Logo
legal complications

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

Tim Kowal     June 23, 2021

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.

This opinion is surprising because in most cases, you can tell whether the order is appealable just by the title or nature of the order. In fact, the clerks at the Court of Appeal normally make an initial determination of appealability when reviewing your notice of appeal and Civil Case Information Statement.

In short, it should not require researching 100 years of precedent and the factual record to find out if an order is appealable. But that is what it took here.

The conservatorship action saw a son and daughter fighting over their mom's assets. Son had mom put in a conservatorship, and the conservator petitioned to recover several real properties from daughter. Before the conclusion of the evidentiary hearing, the conservator, son, and daughter reached a settlement, and put that settlement on the record. For some reason the conservator and daughter – but not the son – reduced part of that settlement – but not the entire settlement – to a written stipulation and proposed order.

The son then moved to enforce the oral settlement. The daughter opposed it, claiming she had cajoled into agreeing to it: her attorneys told her the judge "hated her" and warned her she "was on the road to perjury" and "jail" if she did not settle. She also argued her attorneys were in "cahoots" with opposing counsel. The daughter also moved to vacate the written settlement.

The probate court granted the son's motion to enforce the oral settlement, and denied the daughter's motion to vacate the written settlement. The daughter appealed.

"The Order Denying [Daughter's] Motion To Set Aside the Stipulated Order Is Appealable, but It's a Little Messy"

Concerning the oral settlement, the Court of Appeal easily found the order granting the son's motion to enforce it was appealable, because it was an order "directing or allowing payment of a cost" or "directing payment of compensation or expenses of an attorney" under Probate Code section 1300(d) & (e). The settlement had provided for payment of both mom's and son's attorney's fees, so it was appealable.

But the order denying the daughter's motion to vacate was "a closer question." The conservator and the son argued that Probate Code section 1300(k) allows an appeal from an order "adjudicating the merits of a claim made under" section 850, so the daughter could have appealed the August 2018 stipulation and order. (But stipulating to an order normally destroys appealability, so this commentator is not sure that argument is correct.) But the April 2019 order denying her motion to set aside the prior order, conservator and son argued, was not independently appealable. So the appeal should be dismissed.

The court noted "[t]here is authority supporting [this] position," because the right to appeal "is wholly statutory" (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5), and there is no "catch-all" provision akin to making postjudgment orders appealable in probate like there is in civil cases. (See Code Civ. Proc., § 904.1(a)(2).) " '[T]he Probate Code, and its provisions are exclusive.’ ” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126.)

So it looked like the order denying the motion to vacate was not appealable, and the daughter's appeal was moribund.

But wait! There is a 100-year-old California Supreme Court case that found an exception where the issues raised in the motion to vacate could not have been raised before the underlying order was issued. Here, the daughter argued the underlying stipulation and order were the product of extrinsic fraud: namely, that she had been under duress. "[S]he could not have challenged the order on either extrinsic fraud or duress because the facts she needed to support her challenge were not in the record. The only way for [daughter] to present her arguments based on extrinsic fraud and duress was to file the post-order motion she filed to set aside the stipulated order and present her evidence."

So the order denying the motion to vacate for extrinsic fraud was appealable because of appellant's claims of extrinsic fraud and duress raised in her motion. (But the court ultimately rejected her evidence of extrinsic fraud and duress on the merits.)

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.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"A judge is a law student who grades his own papers."

— H.L. Mencken

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram