Kowal Law Group Logo
Order Denying Motion to Vacate

Order Denying Motion to Vacate Held Appealable "Under the Circumstances"

Tim Kowal     October 22, 2021

Appealability is a jurisdictional question. A jurisdictional question is one that the law answers either one way or the other, and there is nothing the court can do about it. So when a court answers a jurisdictional question with, "under the circumstances," that is a clue that something strange is going on.

That is how the court answered the question whether an order denying a motion to vacate a conservator's final account in Hudson v. Foster (D2d5 Sep. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4059808. While the order settling an account of a fiduciary is appealable under Probate Code section 1300(b), an order denying a motion to vacate on equitable grounds generally is not appealable. (Kalenian v. Insen (2014) 225 Cal.App.4th 569, 575–576 (Kalenian); Estate of Baker (1915) 170 Cal. 578, 581–582 (Baker).) (Already the word "generally" is problematic.)

But in this case, the appellant-conservatee urged that his conservator had concealed information. Owing to that concealment, the appellant effectively was deprived of the opportunity to appeal directly from the order approving the account.

The Second District Court of Appeal agreed. "Under limited circumstances, however, a probate court order denying a motion to vacate on equitable grounds is appealable. (Kalenian, supra, 225 Cal.App.4th at p. 577.) If the judgment or decree was final and appealable, then an order refusing to vacate the judgment or decree is appealable “when, for reasons involving no fault of the appealing party, he has never been given an opportunity to appeal directly from the judgment or decree.” (Baker, supra, 170 Cal. at p. 582.)

The Hudson court did not mention this, but there is authority that holds an order denying a motion to vacate is appealable where the circumstances wrongfully deprived the appellant of the right to appeal from the underlying order. Such as, where, due to duress, the record did not disclose the grounds for appeal. (Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1043; Cope v. Cope (1964) 230 Cal.App.2d 218, 228-229.)

The probate court had concluded, incorrectly, that the appellant's access to information meant he ought to have discovered the alleged concealment. The Court of Appeal held this was the wrong standard because he conservatee is entitled to rely on information in a conservator's report as being accurate. A conservatee's "mere access-to-information did not trigger an obligation to comb through the records to verify the truth of [the fiduciary's] representations."

Comment: The large number of exceptions to the nonappealability of orders denying motions to vacate undermine the notion that appealability is jurisdictional. Perhaps the Supreme Court or the legislature should consider offering clarification.

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!

"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

"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

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


“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

"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

"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.)

"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

"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

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

— H.L. Mencken

"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

"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

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