June 17, 2020

A party appealing an adverse final judgment usually expects the appeal will stay enforcement of the judgment either automatically (see Code Civ. Proc., § 916) or upon posting a bond (see id., § 917.1 et seq.). However, a problem arises when the appeal is taken from the result in a “special proceeding” because the statutes governing stays of enforcement in civil appeals (id., pt. 2, tit. 13, ch. 2, § 916 et seq.) apply to “actions,” not special proceedings.

This was the unhappy surprise that the appellant encountered in Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146 (Veyna). Veyna involved the involuntary dissolution of a corporation. The corporation elected to buy out the parties seeking dissolution under Corporations Code section 2000, and the trial court issued a decree fixing the value of the buyout. (Veyna, at pp. 148-149.) Dissatisfied with the decree, the corporation filed a notice of appeal and claimed that the rules governing civil appeals automatically stayed its obligation to pay for the corporate shares. (Id. at p. 149.)

The Court of Appeal disagreed, explaining that the buyout procedure in Corporations Code section 2000 is a “ ‘special proceeding’ ” to which “the rules governing the application of stays and undertakings on appeal in a civil ‘action’ . . . do not apply.” (Veyna, supra, at pp. 154-155, citation omitted.) Because there was no provision in section 2000 either incorporating the appellate stay provisions for civil actions or otherwise providing for a stay of enforcement pending appeal, the trial court decree was not automatically stayed. (Id. at p. 155; accord, Kennedy v. Superior Court (2019) 36 Cal.App.5th 306, 308 (Kennedy) [no automatic stay of order in administrative subpoena proceeding].) In order to obtain a stay, the corporation in Veyna was obliged to seek a stay first from the trial court, and then, if necessary, from the Court of Appeal by petition for writ of supersedeas. (See Veyna, at pp. 156-158.)

So, how do you know whether or not a legal proceeding is “special”? Many of the special proceedings in California are collected in Part 3 of the Code of Civil Procedure, “Of Special Proceedings of a Civil Nature,” which includes, for example, writs, summary proceedings such as confession of judgment, enforcement of liens, contempt proceedings, eminent domain, and arbitration. (See Code Civ. Proc., §§ 1063-1822.60.) There are also special proceedings codified outside Part 3, such as the corporate dissolution proceeding in Veyna and the administrative subpoena proceeding addressed in Kennedy.

Aside from being listed in the code, special proceedings have been defined as remedies created by statute that did not exist at common law or in equity practice. (See Tide Water Associated Oil Co. v. Superior Court of Los Angeles (1955) 43 Cal.2d 815, 822-823 [“As a general rule, a special proceeding is confined to the type of case which was not, under the common law or equity practice, either an action at law or a suit in equity”]; Agricultural Labor Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 716 [“The defining sections of the Code of Civil Procedure speak in terms of the remedy sought and the structure of the litigation, not the underlying rights involved”].) This distinction is codified in the Code of Civil Procedure, which divides legal proceedings according to remedy into “actions” and “special proceedings.” Thus, section 22 defines a civil action as “an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Section 23 then declares that “[e]very other remedy is a special proceeding.”

Attorneys seeking a stay pending appeal in a special proceeding should plan to request a stay from the trial court and, if necessary, from the Court of Appeal unless the special proceeding statute makes an appellate stay otherwise available.