Forman v. Knapp Press

Opinion

LUCAS, J.

Plaintiffs Leonard Forman (Forman) and Forman Publishing Co. appeal from a summary judgment in favor of defendants Knapp Communications Corporation and the Knapp Press (collectively Knapp) and from an order denying plaintiffs’ motion to vacate that judgment. We dismiss the latter phase of the appeal and affirm the judgment.

I

Preliminarily, we address the jurisdictional question whether the order denying plaintiffs’ motion to vacate the summary judgment is appeal-able. Although Code of Civil Procedure section 904.1 allows an appeal from “an order made after a judgment made appealable [herein]”

(id.,

subd. (b)), the general rule, subject to exceptions not here present, is that only denial of a

statutory

motion to vacate a judgment may so be appealed. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 91-94, pp. 4098-4102.)

Plaintiffs labelled their instant motion to vacate as one made under Code of Civil Procedure section 663. If that characterization were correct, we would face a perplexing question of stare decisis. The Supreme Court has long held that denial of a motion under section 663 is appealable. (E.g.,

Socol

v.

King

(1949) 34 Cal.2d 292, 296-297 [209 P.2d 577]; see 6 Witkin,

supra,

§ 94, pp. 4100-4102.) Witkin concurs

(ibid.),

and his recitation to that effect has been approvingly cited by the high court.

(Hollister Convalescent Hosp., Inc.

v.

Rico

(1975) 15 Cal.3d 660, 663-664 [125 Cal.Rptr. 757, 542 P.2d 1349].) But in its most recent decision on the subject, the court squarely held such an order not to be appealable, and dismissed an appeal therefrom.

(Clemmer