In light of split on appealability of orders on motions for good faith settlement, this appeal is dismissed as untimely

Tim Kowal March 20, 2023

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 CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

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— Rubin v. Green (1993) 4 Cal.4th 1187

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— H.L. Mencken

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— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

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—T.H. White, The Once and Future King

In light of split on appealability of orders on motions for good faith settlement, this appeal is dismissed as untimely

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers." — H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)