Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger.
Meinhardt held that the trial court’s order denying a police officer’s petition for a writ of mandamus was the appealable order, and by awaiting a formal judgment, he missed the deadline to appeal.
Meinhardt focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.
But the officer made some good arguments, too. The officer argued that, under Code of Civil Procedure section 1094.5, subdivision (f), governing proceedings involving writs of mandamus, the trial court “shall enter judgment.” And where further orders are contemplated, normally this undermines finality.
The officer also argued that the order here was no different from orders sustaining demurrers without leave to amend, and no different from orders granting summary judgment, and those are not appealable until a formal dismissal or judgment follows. But again, the court was not persuaded. Specifically, the court noted that section 437c(k) requires entry of a separate judgment. But then again, so does 1094.5(f). The court also did not distinguish why the denial order here was appealable, when orders sustaining demurrers and granting motions for judgment on the pleadings and summary judgment are not.
The officer also noted that another case, Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, had held that an appeal from a denial of a petition for administrative mandamus must be taken from the judgment and not the order. But the court declined to follow that holding.
Look for the Supreme Court to take up these questions.
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 www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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