HOA May Go Forward with Representative Action for Construction Defects

Timothy Kowal, Esq.
March 8, 2023

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule.

But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may be reviewed on a petition for writ of mandate.

But there was still one more problem with the homeowner’s association’s writ petition in River’s Side at Washington Square Homeowners Ass’n v. Superior Court (D3 Mar. 6, 2023 no. C095860) 2023 WL 2364423. After the trial court sustained the defendants’ demurrer on the HOA’s construction defects claims on standing grounds, the HOA filed an unsuccessful motion for reconsideration. By the time the HOA filed its writ petition, it had been 95 days since the notice of entry of the order, and 33 days after the order denying reconsideration.

The filing deadlines for writ petitions in the Court of Appeal are not jurisdictional.

So the writ petition was untimely, right? And appellate deadlines are jurisdictional, right?

No, not on writ petitions. Here is the authority to clip-and-save:

“Although there is no statutory time limit on a common law writ petition, appellate courts generally apply the same 60-day time limit applicable to appeals.” (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1100.) Defendants argue the petition is untimely because it was filed more than 60 days after notice of entry of the order sustaining the demurrer, which is the primary order that Plaintiff challenges. As Defendants acknowledge, however, the 60-day time limit for writ petitions “is not jurisdictional.” (Davis v. Superior Court (2020) 50 Cal.App.5th 607, 615.) “[U]nlike appeals, appellate courts have discretion to decide a writ petition filed after the 60-day period, and typically look to whether there is any prejudice to the opposing party in doing so.” (McDermott, supra, at p. 1100.) In addition to prejudice, appellate courts may deny a writ “where a party unreasonably delays in filing the petition.” (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.)”

The court noted that the defendants did not contend the delay resulted in any prejudice, and that the HOA’s delay was not unreasonable, particularly in light of its efforts in moving for reconsideration. The petition was not untimely.

Before seeking writ review of an interlocutory order, consider asking the Superior Court for certification under Code of Civil Procedure section 166.1.

Another reason the Court of Appeal readily granted writ review was that the Superior Court certified its order sustaining the demurrer under Code of Civil Procedure section 166.1. Section 166.1 states that a judge, upon motion by a party or on the court’s own motion, “may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.”

Here, the trial court issued a section 166.1 order indicating that the threshold standing issue “raises a controlling question of law as to which there are substantial grounds for difference of opinion, and there was virtually no chance the case would settle until that issue is resolved.”

This factored in the Court of Appeal’s analysis in granting writ review.

If a key question of law is involved in an interlocutory order denying a demurrer, motion for judgment on the pleadings, or motion for summary judgment, consider asking the trial court to certify the question for review. You might entice the trial judge further if resolution of the issue would facilitate a settlement.

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 summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.