Untimely Appeal from Judgment Should Have Been Taken From Denial of Petition for Mandamus, Published Opinion Holds

Timothy Kowal, Esq.
May 2, 2022

Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did not enter judgment until nearly two months later. The officer appealed. The appeal was timely if it was from the judgment. But it was untimely if it was from the denial order.

The Court of Appeal held the signed denial order was the appealable order, even though it was not a formal judgment. The court 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.

Dhillon reasoned: “We have previously recognized that a judgment is final, and therefore appealable, ‘ “ ‘when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.’ ” ’ [Citations.] ‘ “It is not the form of the decree but the substance and effect of the adjudication which is determinative.” Dhillon concluded that the trial court's order was an appealable final judgment because “nothing remained to be done in that court; no issue was then left for the court's ‘ “future consideration except the fact of compliance or noncompliance with the terms of the first decree.” ’ ” (Id. at p. 1117.)

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.” But the court was not persuaded.

The officer also argued that the reason an “order” may be deemed appealable is to prevent appeals from being kicked in cases where a formal judgment does not follow. The court was not persuaded by this, either.

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.

Comment: But then again, so does 1094.5(f), so I am not sure where the court was going with that reasoning. I thought the officer made a valid argument here and would have liked to have seen the court make more effort to square the examples of orders sustaining demurrers, granting motion for judgment on the pleadings, and granting summary judgment.

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.

The Upshot: When the trial court enters an order that basically ends the case, carefully consider whether it is immediately appealable. Sometimes it will be, like for orders on petitions for writs of administrative mandamus. Other times, it won’t be. This may be a good time to inquire with an appellate specialist.

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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