While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the denial of its motion in Armstrong Townhomes, LLC v. Milgard Mfg. (D1d2 Mar. 9, 2023 No. A164469) (nonpub. opn.).
The problem with the notice of appeal was it was filed 68 days after the notice of entry of order—too late. (Recall, however, that writ petitions are not subject to the jurisdictional filing deadlines—see here.)
So the Court of Appeal asked the defendant to file a letter brief explaining why the appeal should not be dismissed. An untimely appeal, for example, could be treated as a writ. Or here, the defendant had taken the position that the appeal was filed only after the Court of Appeal had summarily denied a writ petition—yet there was no writ petition in the record. What, the court wanted to know, was the defendant talking about?
But the defendant did not file the invited letter brief. Counsel sent the clerk an email indicating they “plan on submitting a letter brief,” but due to preparation for an upcoming trial, they needed an extension, which the court declined.
The requested brief having never been filed, the court dismissed the appeal as untimely.
(Note, however, that another recent case in CBM Investments, Inc. v. Royal Business Bank (D2d8 Mar. 6, 2023 No. B310205) 2023 WL 2365334 (nonpub. opn.) held that an appeal from on order on a motion for good faith settlement was a nonappealable order and dismissed the appeal on that basis. So if you are going to try to get review of an order on a motion for good faith settlement, be prepared to seek writ review, and seek direct review, and to do so timely.)
Thanks to Ben Shatz for citing this case.
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 firstname.lastname@example.org or (714) 641-1232.
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