Filed 3/9/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID MEINHARDT, D079451
Plaintiff and Appellant,
v. (Super. Ct. No. 19CV346911)
CITY OF SUNNYVALE,
Defendant and Respondent;
SUNNYVALE DEPARTMENT OF
PUBLIC SAFETY,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Santa Clara County,
Peter H. Kirwan, Judge. Appeal dismissed.
Messing Adam & Jasmine and Gregg McLean Adam for Plaintiff and
Appellant.
Liebert Cassidy Whitmore, Suzanne Solomon and David A. Urban for
Defendant and Respondent.
No appearance for Real Party in Interest and Respondent.
I.
INTRODUCTION
“California cases have uniformly held that a trial court’s complete
denial of a petition for administrative mandamus is a final judgment that
may be appealed by the petitioner.” (Dhillon v. John Muir Health (2017)
2 Cal.5th 1109, 1113 (Dhillon).) And, as the Supreme Court in Dhillon
explained, a ruling nominally denominated as an “order” on a petition for
writ of administrative mandate1 may, in fact, constitute a “final judgment”
when such order has the effect of a final judgment. (Id. at p. 1115.) That is
because it is “ ‘ “not the form of the decree but the substance and effect of the
adjudication which is determinative.” ’ ” (Ibid.)
In addressing whether a ruling has sufficient finality to constitute a
judgment, the Dhillon court stated, “ ‘ “As a general test, which must be
adapted to the particular circumstances of the individual case, it may be said
that where no issue is left for future consideration except the fact of
compliance or noncompliance with the terms of the first decree, that decree is
final, but where anything further in the nature of judicial action on the part
of the court is essential to a final determination of the rights of the parties,
the decree is interlocutory.” ’ ” (Dhillon, supra, 2 Cal.5th at p. 1115.) The
Dhillon court applied this test in concluding that the trial court’s “order” on
the plaintiff’s petition for writ of administrative mandate in that case “was an
appealable final judgment.” (Id. a p. 1116.)
1 “[A] writ of mandamus may be denominated a writ of mandate.” (Code
Civ. Proc., § 1084.) We use the term writ of administrative mandate
throughout this opinion, except for quotations.
All subsequent statutory references are to the Code of Civil Procedure,
unless otherwise specified.
2
Dhillon is consistent with numerous published cases that have
concluded that an order denying a petition for writ of mandate is a final
judgment for purposes of an appeal. (See, e.g., Sandlin v. McLaughlin (2020)
50 Cal.App.5th 805, 820 (Sandlin) [“Although the trial court never entered a
formal judgment on the petition for writ of mandate, its order denying the
petition in its entirety ‘constitutes a final judgment for purposes of an
appeal’ ”]; Molloy v. Vu (2019) 42 Cal.App.5th 746, 753 (Molloy) [“ ‘[A]n order
granting or denying a petition for an extraordinary writ constitutes a final
judgment for purposes of an appeal, even if the order is not accompanied by a
separate formal judgment,’ ” quoting Public Defenders’ Organization v.
County of Riverside (2003) 106 Cal.App.4th 1403, 1409 (Public Defenders’
Organization)]; Tomra Pacific, Inc. v. Chiang (2011) 199 Cal.App.4th 463,
481–482 (Tomra Pacific, Inc.) [“We note that the order denying the petitions
for a writ of mandate is not termed a judgment and does not explicitly
address the declaratory relief causes of action. Nevertheless, we are satisfied
that the order before us constitutes an appealable final judgment as it left no
issue for further consideration”].)
Published authority also reveals an important consequence that follows
from this case law. In a case in which a court has entered a ruling on a writ
petition that constitutes a final judgment, any party seeking appellate review
of that ruling must timely appeal from that final judgment—and the time to
file a notice of appeal is not restarted by the trial court’s subsequent entry of
a document styled as a “judgment” that merely reiterates the prior final
judgment. (See City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 182–
183 (City of Calexico) [dismissing cross-appeal where party failed to timely
appeal from September 24 ruling denying two petitions for writ of mandate
that constituted a final judgment and stating, “[t]he mere fact that the trial
3
court entered a subsequent judgment after issuing the September 24 ruling is
irrelevant, because the September 24 ruling was itself a final judgment” (id.
at p. 192)]; Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th
579, 582–583 (Laraway) [concluding that an order that “completely resolved
all issues between all parties” on petitioner’s writ petition was a final
judgment from which no timely appeal was taken and stating that the
“[r]ules of [c]ourt do not provide, once a judgment . . . has been entered, . . .
the time to appeal can be restarted or extended by the filing of a subsequent
judgment . . . making the same decision”]; accord Valero Refining Co.—
California v. Bay Area Air Quality Management Dist. Hearing Bd. (2020)
49 Cal.App.5th 618, 633, fn. 10 (Valero) [“Contrary to the suggestion by the
[defendants], the appealable judgment was the court’s order granting a writ
of mandate, not a ‘judgment’ that it subsequently entered”].)
In this case, plaintiff Officer David Meinhardt failed to timely appeal
from a trial court ruling that denied his petition for writ of administrative
mandate in its entirety, completely resolved all of the issues in the matter,
and contemplated no further judicial action. Although the ruling was
denominated an “order,” (boldface & capitalization omitted) it was, under the
case law outlined above, a final judgment. Instead, Meinhardt filed a notice
of appeal from a document that the trial court subsequently entered, which
was styled as a “judgment,” but merely restated the prior judgment.
In light of the case law described above, we solicited supplemental
briefing from the parties on the timeliness of Officer Meinhardt’s appeal. In
his supplemental brief, Meinhardt contends that to dismiss his appeal would
contravene applicable statutory language, conflict with certain case law, and
be “patently inequitable.” (Boldface & italics omitted.) He further contends
4
that City of Calexico is distinguishable and that this court “should resist the
impulse to extend Laraway’s questionable logic further.”
While we have carefully considered Officer Meinhardt’s arguments,
Laraway and City of Calexico are directly on point and mandate dismissal of
his appeal. We publish our opinion to explain how Dhillon supports the
conclusion that Laraway and City of Calexico were correctly decided, and to
reiterate the critical importance of determining whether a ruling on a
petition for writ of mandate is a final judgment in seeking appellate review of
such a ruling.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Officer Meinhardt’s petition for writ of administrative mandate
In May 2019, Officer Meinhardt filed a petition for writ of
administrative mandate pursuant to section 1094.5, 2 naming the City of
Sunnyvale, Sunnyvale Personnel Board (Board) as a defendant and the
Sunnyvale Department of Public Safety as the real party in interest.
In his petition, Officer Meinhardt sought “to rectify the . . . Board’s
abuse of discretion and misapplication of law in upholding a forty-four (44)
hour suspension against [him] for engaging in speech that was critical of
policies implemented by the new Department Chief . . . .”
After the Board filed an answer to the petition and lodged the
administrative record, the parties filed briefs on the petition.
2 We discuss section 1094.5 in section III.A.2.a, post.
5
B. The trial court’s August 6, 2020 ruling denying Officer Meinhardt’s writ
petition and the clerk’s service of that ruling
In May 2020, the trial court held a telephonic hearing on Officer
Meinhardt’s writ petition.3 On August 6, 2020, the trial court issued a signed
ruling titled “ORDER” denying Meinhardt’s petition for writ of
administrative mandate in its entirety.
At the outset of the ruling, the trial court described the telephonic
hearing on the petition and stated, “After consideration of the pleadings, the
exhibits (including the administrative record), the authorities cited by
counsel in their briefs and the arguments made by counsel at the hearing,
and no party having requested a statement of decision, the Court issues the
following order.” The court proceeded to address the merits of the petition for
several pages, and concluded its ruling by stating, “Accordingly, the Petition
for Writ of Administrative Mandamus is DENIED.”
That same day, the clerk of court served the August 6 ruling denying
the petition for writ of mandate on the parties by mail. The clerk’s service of
the ruling is memorialized in the record by a proof of service. 4
3 The record does not contain a reporter’s transcript of the hearing.
4 The proof of service document lists the case name and number and
states, “re: Order Denying Petition for Writ of Administrative
Mandamus was delivered to the parties listed below the above entitled case
as set forth in the sworn declaration below.” The declaration states:
“DECLARATION OF SERVICE BY MAIL: I declare
that I served this notice by enclosing a true copy in a sealed
envelope, addressed to each person whose name is shown
below, and by depositing the envelope with postage fully
prepaid, in the United States Mail at San Jose, CA on
August 06, 2020. CLERK OF THE COURT, by [clerk’s
name], Deputy.”
6
C. The Board’s August 14 notice of entry
On August 14, the Board electronically served Officer Meinhardt with a
document titled “Notice of Entry of Judgment or Order,” together with a file-
stamped copy of the August 6 order.
D. The September 25 “judgment”
On September 25, 2020, the clerk filed a document signed by the trial
court on September 17 titled “JUDGMENT,” that states:
“On August 6, 2020, the Court issued an Order Denying
Petitioner David Meinhardt’s Petition for Writ of
Administrative Mandamus pursuant to California Code of
Civil Procedure 1094.5, which is attached hereto as
Exhibit A. For the reasons set forth in the Order, the Court
hereby enters Judgment for Respondents City of
Sunnyvale, et al., and against Petitioner David Meinhardt,
who shall take nothing by this action.
“IT IS SO ORDERED, ADJUDGED AND DECREED.”
The August 6 ruling denying Officer Meinhardt’s petition for writ of
administrative mandate was attached to the September 25 “judgment.” 5
Following the declaration are the names of the parties’ counsel and
their addresses.
5 Officer Meinhardt served a notice of entry of this judgment on
September 22. In his supplemental brief, Officer Meinhardt states that he
“attach[ed] [the] signed Judgment found online, though [the] court file-
stamp[ed] Judgment [was] not entered until [September] 25.”
7
E. Officer Meinhardt’s appeal
On October 15, 2020, Officer Meinhardt filed a notice of appeal that
stated that he was appealing from the September 17, 2020 6 “judgment”
denying his petition for writ of administrative mandate.
F. The parties’ supplemental briefs
While this appeal was pending, this court sent the parties a letter
soliciting supplemental briefing. The letter stated in relevant part:
“The parties are directed to file simultaneous supplemental
letter briefs, no longer than five single-spaced pages,
answering the following question:
“Was [Officer Meinhardt’s] October 15, 2020 notice of
appeal timely filed in this case?
“In answering this question, the parties are directed to
discuss [City of Calexico, supra,] 64 Cal.App.5th 180. (See
id. at pp. 185–195 [explaining that “[a]n order granting or
denying a petition for writ of mandate that disposes of all of
the claims between the parties is an immediately
appealable final judgment,” (id. at p. 190) and concluding
that a clerk’s service of a file-endorsed ruling denying
petitions for writ of mandate and an accompanying dated
declaration of service triggered the 60-day period to appeal
set forth in California Rules of Court, rule 8.104(a)(1)].)”
Officer Meinhardt and the Board each filed a supplemental brief
responsive to our request.
6 As noted in part II.D, ante, the trial court signed a document titled
“judgment” on September 17, 2020, and the clerk filed this document on
September 25, 2020.
8
III.
DISCUSSION
Officer Meinhardt’s appeal is untimely and must be dismissed
We must consider, sua sponte, whether we have appellate jurisdiction
over Officer Meinhardt’s appeal. (E.g., Drum v. Superior Court (2006)
139 Cal.App.4th 845, 849 [“because the timeliness of an appeal poses a
jurisdictional issue, we must raise the point sua sponte”].)
A. Governing law
1. The time within which a party must file a notice of appeal
California Rules of Court, rule 8.104(a)7 specifies the time within which
a party must file a notice of appeal and provides in relevant part:
“(a) Normal time
“(1) . . . [A] notice of appeal must be filed on or before the
earliest of:
“(A) 60 days after the superior court clerk serves on the
party filing the notice of appeal a document entitled
‘Notice of Entry’ of judgment or a filed-endorsed copy of
the judgment, showing the date either was served;
“(B) 60 days after the party filing the notice of appeal
serves or is served by a party with a document entitled
‘Notice of Entry’ of judgment or a filed-endorsed copy of
the judgment, accompanied by proof of service;”
Rule 8.104(b) specifies that a court may not extend the deadline for
filing a notice of appeal and must dismiss any late-filed appeal, providing in
relevant part:
“. . . [N]o court may extend the time to file a notice of
appeal. If a notice of appeal is filed late, the reviewing
court must dismiss the appeal.”
7 All subsequent rule references are to the California Rules of Court.
9
2. Determining the existence of a final judgment in the context of a
petition for writ of mandate
a. The statutory scheme
An application for a writ of mandate is a “special proceeding[ ] of a civil
nature” (capitalization omitted) governed by the provisions of part 3 of the
Code of Civil Procedure. (§ 1063 et seq.)
Section 1064 defines “judgment” for purposes of such special
proceedings, and provides in relevant part:
“A judgment in a special proceeding is the final
determination of the rights of the parties therein.”
Chapter 2 of title 1 of part 3 of the Code of Civil Procedure governs
writs of mandate. “The administrative mandamus statute, . . . section
1094.5, authorizes judicial review of final administrative decisions resulting
from hearings that are required by law. In determining whether to grant a
writ of administrative mandamus, the trial court is instructed to consider
‘whether the respondent has proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any prejudicial abuse
of discretion.’ ([§ 1094.5], subd. (b).)” (Dhillon, supra, 2 Cal.5th at p. 1115.)8
8 “[A]n administrative decision that does not require a hearing or a
response to public input is generally not reviewable under Code of Civil
Procedure section 1094.5 but by traditional mandamus pursuant to Code of
Civil Procedure section 1085 . . . .” (Environmental Protection Information
Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459,
521, italics added.)
Section 1085, subdivision (a) provides, “A writ of mandate may be
issued by any court to any inferior tribunal, corporation, board, or person, to
compel the performance of an act which the law specially enjoins, as a duty
resulting from an office, trust, or station, or to compel the admission of a
party to the use and enjoyment of a right or office to which the party is
10
Section 1094.5, subdivision (f) specifies how a trial court shall enter
judgment on a petition for writ of administrative mandate and provides:
“The court shall enter judgment either commanding
respondent to set aside the order or decision, or denying the
writ. Where the judgment commands that the order or
decision be set aside, it may order the reconsideration of
the case in light of the court’s opinion and judgment and
may order respondent to take such further action as is
specially enjoined upon it by law, but the judgment shall
not limit or control in any way the discretion legally vested
in the respondent.”
In outlining the law governing the issuance of stays of administrative
orders in the context of administrative mandate, section 1094.5, subdivision
(g) refers to a “notice of appeal from the judgment.” The statute provides in
relevant part:
“(g) . . . [T]he court in which proceedings under this section
are instituted may stay the operation of the administrative
order or decision pending the judgment of the court, or
until the filing of a notice of appeal from the judgment or
until the expiration of the time for filing the notice,
whichever occurs first.”
Section 1110 specifies that the rules of the Code of Civil Procedure that
apply to an appeal in a civil action also are ordinarily applicable to an appeal
in a special proceeding of a civil nature. The statute provides:
“The provisions of Part II of this Code relative to new trials
and appeals, except in so far as they are inconsistent with
the provisions of this Title, apply to the proceedings
mentioned in this Title.”
entitled, and from which the party is unlawfully precluded by that inferior
tribunal, corporation, board, or person.”
11
Among the provisions of “Part II” of the Code of Civil Procedure are
sections 901 and 904.1. Section 901 provides in relevant part:
“A judgment . . . in a civil action or proceeding may be
reviewed as prescribed in this title.”
Section 904.1 in turn provides in relevant part:
“(a) An appeal . . . is to the court of appeal. An appeal . . .
may be taken from any of the following:
“(1) From a judgment, except an interlocutory
judgment . . . .”
Thus, as the Dhillon court succinctly summarized, “A final judgment in
a special proceeding is appealable . . . .” (Dhillon, supra, 2 Cal.5th at
p. 1115.)
b. Dhillon
In Dhillon, the Supreme Court considered whether a trial court’s order
granting, in part, a surgeon’s petition for writ of administrative mandate and
remanding the matter for further administrative proceedings was an
appealable final judgment. (Dhillon, supra, 2 Cal.5th at p. 1116.) Dhillon
involved a surgeon who filed a petition for writ of administrative mandate
related to the suspension of his clinical privileges by the owner of the
hospitals at which he practiced. (Id. at pp. 1112–1113.) The trial court
granted the surgeon’s writ petition in part. (Id. at p. 1113.) Specifically, the
trial court determined that the surgeon was entitled to an administrative
hearing prior to the suspension of his clinical privileges and ordered the
hospital owner to conduct such a hearing. (Ibid.) The hospital owner
appealed the ruling. The Court of Appeal dismissed the appeal, stating,
“ ‘The superior court’s order remanding the matter to [the hospital owner] is
not a final, appealable order.’ ” (Ibid.)
12
The Dhillon court granted review and noted the division of authority
with respect to whether such an order was an appealable final judgment:
“The Court of Appeal’s dismissal order deepened a long-
standing conflict concerning the appealability of a trial
court’s order, on a petition for writ of administrative
mandamus, remanding the matter for further proceedings
before the administrative body. California cases have
uniformly held that a trial court’s complete denial of a
petition for administrative mandamus is a final judgment
that may be appealed by the petitioner. [Citations.] The
cases have also held that a trial court’s judgment granting
administrative mandamus, and ordering the substantive
relief sought by the petitioner, is a final judgment that may
be appealed by the respondent agency. [Citations.] In each
of these situations, it is clear that “ ‘no issue is left for
future consideration except the fact of compliance or
noncompliance with the terms of’ ” the court’s decree.
(Griset v. Fair Political Practices Com. (2001) 25 Cal.4th
688, 698 (Griset), quoting Lyon v. Goss (1942) 19 Cal.2d
659, 670.) California courts have, however, divided over
whether the same is true of a trial court’s order that does
not grant substantive relief, but instead remands the cause
for further proceedings before the administrative agency.”
(Dhillon, supra, 2 Cal.5th at pp. 1113–1114.)
The Dhillon court explained that it had granted review to resolve this
division of authority. (Dhillon, supra, 2 Cal.5th at p. 1114.) In order to do so,
the Dhillon court stated that it was required to determine “whether the trial
court’s order in this case was a final judgment.” (Id. at p. 1115.) The Dhillon
court recounted the following general principles for determining whether a
ruling of the trial court constitutes a final judgment:
“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
13
which is determinative. As a general test, which must be
adapted to the particular circumstances of the individual
case, it may be said that where no issue is left for future
consideration except the fact of compliance or
noncompliance with the terms of the first decree, that
decree is final, but where anything further in the nature of
judicial action on the part of the court is essential to a final
determination of the rights of the parties, the decree is
interlocutory.” ’ [Citations.] ‘We long have recognized a
“well-established policy, based upon the remedial character
of the right of appeal, of according that right in doubtful
cases ‘when such can be accomplished without doing
violence to applicable rules.’ ” ’ ” (Ibid.)
Applying these principles, the Dhillon court concluded that the trial
court’s order was an appealable final judgment because it granted or denied
each of the surgeon’s claims and “did not reserve jurisdiction to consider any
issues.” (Dhillon, supra, 2 Cal.5th at pp. 1116–1117.) The Dhillon court
reasoned, “once the trial court issued the writ, 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, quoting Griset, supra, 25 Cal.4th at p. 698.)
In reaching this conclusion, the Dhillon court considered the surgeon’s
contention that “the trial court’s order . . . was not a final judgment because it
was not a ‘judgment’ as that term is defined by subdivision (f) . . . section
1094.5.” (Dhillon, supra, 2 Cal.5th at p. 1117, fn. 3.) Specifically, the
surgeon contended that under section 1094.5, subdivision (f), “a court
adjudicating an administrative mandamus petition may issue only three
kinds of judgments: (1) it may command the respondent to set aside the
order or decision; (2) it may deny the writ, or (3) it may command the
respondent to set aside the order or decision and reconsider the case, taking
14
further action as required.”9 (Dhillon, supra, at p. 1117, fn. 3.) According to
the surgeon, “the trial court’s order fell into none of these categories.” (Ibid.)
The Dhillon court rejected this argument, reasoning:
“Assuming that subdivision (f) of Code of Civil Procedure
section 1094.5 defines a ‘judgment’ for the purposes of
determining whether an order in an administrative
mandamus proceeding is an appealable final judgment, [the
surgeon’s] argument nevertheless lacks merit. Although
the order did not explicitly set aside the discipline imposed
on [the surgeon], that consequence was implicit in the trial
court’s determination that [the surgeon] was entitled to
further administrative proceedings before he could be
disciplined. By commanding [the hospital owner] to
conduct those proceedings, the trial court necessarily set
aside [the hospital owner’s] order imposing the discipline.
(See Griset, supra, 25 Cal.4th at p. 698 [‘ “It is not the form
of the decree but the substance and effect of the
adjudication which is determinative” ’].)” (Ibid.)
c. Case law in which courts have concluded that a ruling
granting or denying a petition for writ of mandate is a
judgment
As stated in part I, ante, Dhillon is consistent with numerous cases in
which courts have stated that a ruling granting or denying a petition for a
writ of mandate is in “effect” a final judgment (Griset, supra, 25 Cal.4th at
9 As noted in part III.A.2.a, ante, section 1094.5, subdivision (f) provides:
“The court shall enter judgment either commanding
respondent to set aside the order or decision, or denying the
writ. Where the judgment commands that the order or
decision be set aside, it may order the reconsideration of
the case in light of the court’s opinion and judgment and
may order respondent to take such further action as is
specially enjoined upon it by law, but the judgment shall
not limit or control in any way the discretion legally vested
in the respondent.”
15
p. 698) because the ruling finally determines the rights of the parties, and is
therefore appealable, even if it is in the “form” of an order. (Ibid.; see, e.g.,
Sandlin, supra, 50 Cal.App.5th at p. 820; Molloy, supra, 42 Cal.App.5th at
p. 753; Tomra Pacific, Inc., supra, 199 Cal.App.4th at pp. 481–482; Public
Defenders’ Organization, supra, 106 Cal.App.4th at p. 1409; Townsel v. San
Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 944,
fn. 1 (Townsel); Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 416,
fn. 3 (Haight).)
In Public Defenders’ Organization, the trial court granted an
organization’s petition for writ of mandate directing an employer “to
recognize the organization as the majority representative of certain
employees and to conduct an election to determine whether those employees
wished to designate the organization as their exclusive representative.”
(Public Defenders’ Organization, supra, 106 Cal.App.4th at p. 1405.) The
employer appealed. (Id. at p. 1409.) On appeal, the organization “argue[d]
that the order granting the petition for writ of mandate is not final, and thus
not appealable, because it does not finally determine the rights of the
parties.” (Ibid.) The Public Defenders’ Organization court rejected this
argument, reasoning:
“Generally, only judgments may be appealed. [Citation.] ‘A
judgment is the final determination of the rights of the
parties in an action or proceeding.’ [Citation.] Petitions for
extraordinary writs, such as petitions for writs of mandate,
are special proceedings. [Citation.] Accordingly, an order
granting or denying a petition for an extraordinary writ
constitutes a final judgment for purposes of an appeal, even
if the order is not accompanied by a separate formal
judgment. [Citations.]” (Ibid.)10
10 In both Sandlin, supra, 50 Cal.App.5th 805 and Molloy, supra,
42 Cal.App.5th 746, the Court of Appeal relied on Public Defenders’
16
Similarly, in Tomra Pacific, Inc., supra, 199 Cal.App.4th 463, two
plaintiffs filed notices of appeal from an “order denying petitions for a writ of
mandate” (id. at p. 469, italics added) that sought to compel repayment of
certain loans between state funds. The Tomra Pacific, Inc. court stated that
the order was in fact an appealable final judgment:
“We note that the order denying the petitions for a writ of
mandate is not termed a judgment and does not explicitly
address the declaratory relief causes of action.
Nevertheless, we are satisfied that the order before us
constitutes an appealable final judgment as it left no issue
for further consideration.” (Id. at pp. 481–482.)
Similarly, in Townsel, supra, 65 Cal.App.4th 940, the petitioner
appealed the denial of his petition for a writ of mandate requesting that an
entity vacate its decision upholding the termination of his employment. The
Townsel court concluded that the trial court’s order denying the petition was
properly treated as a final judgment, reasoning in relevant part:
“The record does not show that judgment was entered on
the order. However, even if a separate formal judgment
has not been entered on an order denying a petition for writ
of mandate, the order is properly treated as a final
judgment in a special proceeding for purposes of appeal.
(Haight, [supra, 228 Cal.App.3d at p. 416, fn. 3].)” (Id. at
p. 944, fn. 1.)
In Haight, supra, 228 Cal.App.3d 413, this court concluded that an
“order denying [a] petition for writ of mandate” was “properly treated as a
Organization in concluding that an order denying a petition for writ of
mandate in its entirety “ ‘constitutes a final judgment for purposes of an
appeal.’ ” (Sandlin, supra, 50 Cal.App.5th at p. 820; Molloy, supra,
42 Cal.App.5th at p. 753, fn. 6 [both quoting Public Defenders’ Organization,
supra, 106 Cal.App.4th at p. 1409].)
17
final judgment in a special proceeding for purposes of appeal.” (Id. at p. 416,
fn. 3.)
d. Laraway and its progeny
In Laraway, the petitioner “sought certain public records” from a school
district. (Laraway, supra, 98 Cal.App.4th at p. 580.) The petitioner filed a
petition for a writ of mandate and prohibition and sought injunctive and
declaratory relief from the school district and several of its employees
(collectively “District”). (Id. at pp. 580–581.) On August 23, 2000, the trial
court entered an “ ‘order regarding petitioner’s motion for writ of mandamus,
prohibition, injunctive and declaratory relief.’ ” (Id. at p. 581, italics added in
Laraway.) The August 2000 order “completely resolved all issues between all
parties” and did not “contemplate nor direct the preparation of any further
order or judgment.” (Id. at p. 582.)
On January 29, 2001, the trial court in Laraway filed a “judgment” that
“simply reiterated that the court had ‘ruled by Order dated August 23, 2000’
on the petition, set forth the same rulings as contained in the order denying
the petition, added a provision that judgment was entered in favor of
respondent and against petitioner, and awarded respondent $0 in costs
against petitioner.” (Laraway, supra, 98 Cal.App.4th at p. 582.)
In late March or early April 2001,11 the petitioner filed a notice of
appeal from the January 2001 “judgment.” (Laraway, supra, 98 Cal.App.4th
at p. 582.) On April 19, 2001, the District filed a cross-appeal from the
January 2001 “judgment.” (Ibid.)
11 The Laraway court noted that the notice of appeal contained in the
record was not file stamped, but was dated March 28. (Laraway, supra,
98 Cal.App.4th at p. 582, fn. 4.)
18
On appeal, the Laraway court “sua sponte raise[d] the jurisdictional
and dispositive issue of whether the prerequisite to appellate jurisdiction, a
timely notice of appeal, was ever filed in this case.” (Laraway, supra,
98 Cal.App.4th at p. 582.) In considering this issue, the Laraway court noted
that the August 23, 2000 order “contemplated no further action, such as the
preparation of another order or judgment [citation], and disposed of all issues
between all parties.” (Id. at p. 583.) The Laraway court concluded that the
August 2000 order “was properly treated as a final judgment.” (Ibid., citing
Townsel, supra, 65 Cal.App.4th at p. 944, fn. 1; Haight, supra,
228 Cal.App.3d at p. 416, fn. 3.)
The Laraway court added that “the subsequent judgment entered on
January 29, 2001 was simply a repetition of the August 23, 2000 order.”
(Laraway, supra, 98 Cal.App.4th at p. 583.) The Laraway court concluded
that the Court of Appeal lacked jurisdiction over the appeal and the cross-
appeal from the January 2001 “subsequent judgment” (ibid.), reasoning:
“Once a final, appealable order or judgment has been
entered, the time to appeal begins to run. The [r]ules of
[c]ourt do not provide, once a judgment or appealable order
has been entered, that the time to appeal can be restarted
or extended by the filing of a subsequent judgment or
appealable order making the same decision. Thus, once the
August 23, 2000 order was entered, the time within which
to file a notice of appeal therefrom began to run, and could
not be restarted by the relabeling of the trial court’s earlier
decision and then entering such ‘judgment’ at a later date.
“Because the parties failed to file timely notice of appeal
from the August 23, 2000 order, the petitioner’s appeal and
respondent’s cross-appeal, filed more than 180 days after
entry of the August 23, 2000 order, were untimely, and
both such appeals must be dismissed.” (Ibid.)
19
In City of Calexico, supra, 64 Cal.App.5th 180, this court relied on
Laraway12 in concluding that a party had failed to timely file a cross-appeal
from a September 24 ruling denying two petitions for writ of administrative
mandate because the ruling was a final judgment.13 (City of Calexico, supra,
at p. 183.) The City of Calexico court reasoned in part:
“In the September 24 ruling, the trial court denied all of the
parties’ claims for relief in their entirety, and did not
contemplate any further action in the case. Thus, as in
Laraway, the September 24 ruling is ‘properly treated as a
final judgment’ because it ‘contemplated no further action,
such as the preparation of another order or judgment
[citation], and disposed of all issues between all parties.’
(Laraway, supra, 98 Cal.App.4th at p. 583.)
“While the City correctly notes in its letter brief that ‘the
City filed a proposed judgment with the superior court,
which the superior court signed on November 21, 2019,’ as
in Laraway, this second judgment ‘simply reiterated’ that
the court had ruled on the petition and ‘set forth the same
rulings as contained in the order denying the petition.’
12 The City of Calexico court also stated that “Laraway is in accord with
well-established law.” (City of Calexico, supra, 64 Cal.App.5th at p. 191,
citing Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th
1064, 1073–1074; Nerhan v. Stinson Beach County Water Dist. (1994)
27 Cal.App.4th 536, 539; and Griset, supra, 25 Cal.4th at p. 699.) The City of
Calexico court also noted that commentators have cited Laraway for the
proposition that “ ‘even a seemingly nonappealable “order” may be an
appealable final judgment,’ ” if the order is “ ‘a final judgment in legal
effect.’ ” (City of Calexico, supra, at p. 192, quoting Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) (“Civil
Appeals and Writs”) ¶ 2:38 [citing, inter alia, Laraway, supra, 98 Cal.App.4th
at p. 583].)
13 The City of Calexico court noted that the trial court in that case had
indicated that the petitions for writ of mandate had been filed pursuant to
section 1094.5, the administrative mandate statute. (City of Calexico, supra,
64 Cal.App.5th at p. 186.)
20
(Laraway, supra, 98 Cal.App.4th at p. 582.) There is
nothing in the September 24 ruling itself, nor anything else
in the record, demonstrating that the trial court
contemplated that the court or the parties would take
further action in the case such that the September 24
ruling was not final and therefore, appealable. The mere
fact that the trial court entered a subsequent judgment
after issuing the September 24 ruling is irrelevant, because
the September 24 ruling was itself a final judgment. (See
Laraway, supra, at p. 583.)”14 (City of Calexico, at p. 192.)
In Valero, supra, 49 Cal.App.5th 618, the plaintiff filed a petition for
writ of mandate pursuant to section 1094.5. (Valero, supra, at p. 632.) The
trial court “issued a writ of mandate,” vacated an administrative decision,
and remanded for further administrative proceedings. (Ibid.) The
14 Officer Meinhardt contends that City of Calexico can be distinguished
because, according to Meinhardt, the City of Calexico court’s holding rested
on the City’s failure to timely file a cross-appeal, within the time limits of
rule 8.108(g). City of Calexico cannot be so distinguished.
The City of Calexico court expressly concluded that the City’s appeal
was not filed within the “ ‘normal time’ ” (City of Calexico, supra,
64 Cal.App.5th at p. 195) for the City to appeal under rule 8.104(a) which
expired on November 25, 2019, or before December 23, 2019, the latest time
within which the City could have filed its cross-appeal under the extension
provided in rule 8.108(g)(1). (City of Calexico, supra, at pp. 195–196.) The
City of Calexico court also noted that rule 8.108(a) provides, “This rule
operates only to extend the time to appeal otherwise prescribed in rule
8.104(a); it does not shorten the time to appeal. If the normal time to appeal
stated in rule 8.104(a) is longer than the time provided in this rule, the time
to appeal stated in rule 8.104(a) governs.” (City of Calexico, at p. 190.) Thus,
the City of Calexico court expressly concluded, as required under the
applicable rules of court in order to conclude that the City’s appeal was
untimely, that the City’s notice of appeal was not timely filed under either the
normal time for filing an appeal under rule 8.104(a) or under the extended
time for filing a cross-appeal under rule 8.108(g)(1). We therefore reject
Officer Meinhardt’s contention that “the holding in City of Calexico does not
apply to this case because [r]ule . . . 8.108(g) is not implicated here.”
21
defendants, referred to by the Valero court as the “air district parties” (ibid.),
filed an appeal. (Id. at p. 633.)
The Valero court considered whether it had appellate jurisdiction over
the matter, explaining, “In this case, the air district parties filed their notice
of appeal more than 60 days after the superior court clerk mailed the parties
a file-stamped copy of the appealable judgment accompanied by a proof of
service, and so we requested supplemental briefing concerning the appeal’s
timeliness.” (Valero, supra, 49 Cal.App.5th at p. 633.) In a footnote
immediately following this statement, the Valero court stated, “Contrary to
the suggestion by the air district parties, the appealable judgment was the
court’s order granting a writ of mandate, not a ‘judgment’ that it
subsequently entered. (See Molloy[, supra, 42 Cal.App.5th at p.] 753, fn. 6.)”
(Id. at p. 633, fn. 10.) Notwithstanding that the air district parties’ notice of
appeal was filed more than 60 days after the filing of the appealable
judgment (i.e., the court’s order granting a writ of mandate), the Valero court
concluded that it had jurisdiction over the appeal because the superior court
clerk’s service was improper15 and thus did not commence the time to file a
notice of appeal under rule 8.104. (Valero, supra, at p. 633.)
B. The August 6 ruling is a final judgment
The trial court’s August 6 ruling denied Officer Meinhardt’s petition for
writ of administrative mandate in its entirety and did not contemplate any
further action in the case. (See pt. II.B, ante.) Although the August 6 ruling
is denominated an “Order,” the law is well established in this context that,
“ ‘ “[i]t is not the form of the decree but the substance and effect of the
15 The Valero court explained that “supplemental briefing disclosed that
the superior court clerk’s mailing was sent to an incorrect address.” (Valero,
supra, 49 Cal.App.5th at p. 633.)
22
adjudication which is determinative.” ’ ” (Dhillon, supra, 2 Cal.5th at p. 1115,
quoting Griset, supra, 25 Cal.4th at p. 698.)
Applying that test here, and consistent with Laraway and City of
Calexico as well as the cases cited in part III.A.2.c, ante, the August 6 ruling
is “ ‘properly treated as a final judgment’ because it ‘contemplated no further
action, such as the preparation of another order or judgment [citation], and
disposed of all issues between all parties.’ ” (City of Calexico, supra,
64 Cal.App.5th at p. 192, quoting Laraway, supra, 98 Cal.App.4th at p. 583.)
Further, the fact that the trial court entered a document denominated
as a “judgment” on September 25 (see pt. II.D, ante) after having issued the
August 6 ruling is irrelevant, because the August 6 ruling was itself a final
judgment. Thus, Officer Meinhardt’s period within which to appeal was not
restarted by the trial court’s filing of the September 25 document styled as a
“judgment” that merely reiterated the rulings contained in the court’s August
6 ruling. (See Laraway, supra, 98 Cal.App.4th at p. 583; City of Calexico,
supra, 64 Cal.App.5th at p. 195; accord Valero, supra, 49 Cal.App.5th at
p. 633, fn. 10.)
C. Officer Meinhardt’s arguments to the contrary are ultimately
unpersuasive
Officer Meinhardt’s supplemental letter brief on appealability contends
that the August 6 ruling was not a final judgment. Although he makes
several arguments that are worthy of consideration, for the reasons described
below, we conclude that none is persuasive.
1. A ruling on a petition for writ of administrative mandate that is
denominated an “order” constitutes a judgment when such order has
the effect of a final judgment
Officer Meinhardt properly notes that “[t]he right to appeal is ‘entirely
statutory and subject to complete legislative control.’ ([Quoting,] Trede v.
23
Superior Court (1943) 21 Cal.2d 630, 634.)” He further notes that section
1094.5, subdivision (f) provides that the “ ‘court shall enter judgment,’ ”
(italics added by Officer Meinhardt) and that section 1094.5, subdivision (g)
refers to the taking of a notice of appeal, “ ‘from the judgment.’ ” Thus, he
contends “[e]ntering judgment is not optional; the court must do so before an
appeal can proceed.”
This argument is ultimately unpersuasive because, as stated in part
III.A.2.a, ante, section 1064 defines a judgment as “the final determination of
the rights of the parties therein,” and case law is clear that a ruling issued in
the form of an order constitutes a judgment if it is a judgment in effect.
Indeed, in Dhillon, our Supreme Court relied on this principle in rejecting a
party’s argument that “the trial court’s order here was not a final judgment
because it was not a ‘judgment’ as that term is defined by subdivision (f) of
Code of Civil Procedure section 1094.5.” (Dhillon, supra, 2 Cal.5th at p. 1117,
fn. 3, italics added.)16
16 In his supplemental brief, Officer Meinhardt also contends that the
requirement that a document denominated as a judgment be filed is
supported by the “procedures issued by the Sacramento County Superior
Court for the conduct of writ proceedings,” which he contends is “the only
superior court that issues clearly defined writ procedures.” He maintains
that such rules provide in relevant part: “ ‘[I]f the court denies the writ
petition, the party designated by the court shall . . . prepare, serve on all
parties, and present to the court a judgment denying the petition.’ ”
(Emphasis omitted.)
We question the relevance of the Sacramento County Superior Court
rules to this matter arising in Santa Clara County. However, even assuming
the potential relevance of such rules, the fact that the only “superior court
that issues clearly defined writ procedures,” provides for the entry of a
“judgment,” does not establish that the August 6 ruling in this case is not a
judgment. Again, “ ‘ “[i]t is not the form of the decree but the substance and
effect of the adjudication which is determinative.” ’ ” (Dhillon, supra,
2 Cal.5th at p. 1115.)
24
2. Officer Meinhardt’s “premature” appeal theory is unpersuasive
Officer Meinhardt argues that an order granting or denying a writ
petition is not a judgment, but that it may be deemed a judgment in order to
permit a “premature” appeal from such an order to proceed. He contends
that the “equitable sentiments” that underlie “Griset and other cases[17]” is
“to preserve, not deny, parties’ appeal rights by preventing premature appeals
from being kicked out for the technicality that no judgment was entered.” In
support of this contention, he cites to cases in which courts have deemed a
nonappealable order to be a “premature but valid [notice of] appeal from the
subsequently entered judgment,” (italics omitted) in other contexts. (Citing,
inter alia, In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249,
1262 [“Although the appeal was taken from the nonappealable order
sustaining the demurrer, we treat the notice of appeal as a premature but
valid notice of appeal from the subsequently entered judgment,” citing former
rule 8.104(e)(2), current rule 8.104(d)(2)].)18
According to Officer Meinhardt, he was not required to appeal from the
purportedly nonappealable August 6 ruling denying his petition for writ of
mandate. He argues, “[t]he takeaway is that because appellant correctly filed
17 Although Officer Meinhardt does not refer to the cases by name, we
understand his argument to be an attempt to distinguish the vast number of
cases, several of which are discussed in part III.A.2.c, ante, in which courts
have determined that an order granting or denying a petition for writ of
mandate was a final judgment.
18 Former rule 8.104(e)(2) provided, “The reviewing court may treat a
notice of appeal filed after the superior court has announced its intended
ruling, but before it has rendered judgment, as filed immediately after entry
of judgment.” This provision is currently contained in rule 8.104(d)(2).
25
his appeal within 60 days after notice of entry of judgment[19] he required
neither application of the safe harbor rule nor [r]ule 8.104(d) [pertaining to
premature appeals] to make his appeal valid.” (Boldface omitted.)
We acknowledge that there is language in some case law that is
arguably consistent with such a theory. For example, the Public Defenders’
Organization court stated, “[A]n order granting or denying a petition for an
extraordinary writ constitutes a final judgment for purposes of an appeal,
even if the order is not accompanied by a separate formal judgment,” thereby
potentially suggesting the legal relevance of a “separate formal judgment.”
(Public Defenders’ Organization, supra, 106 Cal.App.4th at p. 1409.) We
reject this argument for several reasons.
To begin with, unlike in In re Social Services Payment Cases, supra,
166 Cal.App.4th 1249, in none of the cases cited in part III.A.2.c, ante, did the
reviewing court state that an order granting or denying a petition for an
extraordinary writ is nonappealable. Nor did any of these cases cite to the
rule of court pertaining to premature appeals.20
19 Officer Meinhardt intends to refer here to the “judgment” signed on
September 17 and filed on September 25.
20 We are not aware of any commentators that have viewed these cases as
involving a premature appeal. One treatise refers to several types of such
orders in its discussion of premature appeals from nonappealable orders, but
does not list an appeal from an order granting or denying a petition for writ
of mandamus. (See Civil Appeals and Writs, supra, ¶ 2:262 [“[S]ome appeals
erroneously taken from a nonappealable order may be ‘saved’ by the court of
appeal if the defect is really only one in formality. Usually, this ‘saving’
power is invoked only where the appeal is mistakenly taken from an order
preliminary to rendition of a final judgment (e.g., sustaining a demurrer,
granting summary judgment, or granting judgment on the pleadings) when it
should have been taken from the subsequent judgment on such order” (italics
altered)].)
26
Further, orders such as those sustaining a demurrer, granting
summary judgment, or granting judgment on the pleadings do not necessarily
completely resolve all of the causes of action in a case. For example, in the
summary judgment context, “[t]here are two steps: an order granting the
motion (nonappealable preliminary order), and a judgment entered
thereunder (final judgment, appealable as in other cases).” (9 Witkin, Cal.
Proc. 5th Appeal § 145 (2020); see § 437c, subd. (m) [distinguishing between a
“summary judgment” that is an “appealable judgment,” and a “order
pursuant to this section”].) The summary judgment statute makes clear that
an order granting summary judgment does not conclusively resolve the
action. (See § 437c, subd. (k) [“Unless a separate judgment may properly be
awarded in the action, a final judgment shall not be entered on a motion for
summary judgment before the termination of the action, but the final
judgment shall, in addition to any matters determined in the action, award
judgment as established by the summary proceeding provided for in this
section”].)
In contrast, an order granting or denying a petition for writ of mandate
in its entirety, when such order contemplates the taking of no further action
in the case, concludes the special proceeding of a civil nature. As such, it is
properly considered a final judgment. (See Dhillon, supra, 2 Cal.5th at
Rather, the treatise characterizes an order granting or denying a writ
petition as an example of a “[f]inal [j]udgment[ ].” (Civil Appeals and Writs,
supra, heading before ¶ 2:21; see id. at p. ¶ 2:111 [“A petition to the superior
court for a writ of certiorari, mandamus or prohibition initiates a ‘special
proceeding’ [citation]. As such, a judgment or order granting or denying the
petition is generally appealable. (Citing cases, inter alia, Public Defenders’
Organization, supra, 106 Cal.App.4th at p. 1409 and quoting Valero, supra,
49 Cal.App.5th at p. 633, fn. 10 [“ ‘the appealable judgment was the court’s
order granting a writ of mandate, not a “judgment” that it subsequently
entered’ ”].)
27
p. 1115.) Thus, Dhillon supports the principle that an order that finally
resolves a petition for writ of mandate is itself a final judgment, rather than
the theory that such order may be deemed a final judgment if an appeal is
taken therefrom.
Griset, which Officer Meinhardt properly notes did refer to a
“ ‘premature but valid appeal from the judgment,’ ” (Griset, supra, 25 Cal.4th
at p. 700, quoting Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725,
740 (Moreheart))21 is distinguishable because the order at issue in Griset
disposed of both a petition for writ of mandate and several other causes of
action. (Id. at pp. 699–700.) It was in this context that the Supreme Court
stated, “When, as here, a trial court’s order from which an appeal has been
taken disposes of the entire action, the order ‘may be amended so as to
convert it into a judgment encompassing actual determinations of all
remaining issues by the trial court or, if determinable as a matter of law, by
the appellate court, and the notice of appeal may then be treated as a
premature but valid appeal from the judgment.’ ” (Id. at p. 700.)
3. None of the case law that Officer Meinhardt cites demonstrates that
his appeal was timely filed
Officer Meinhardt also cites two cases in support of his contention that
his appeal was timely filed. He notes that in Protect Our Water v. County of
21 In Morehart, the California Supreme Court referred to the premature
appeal doctrine as a “judicially created exception[ ]” to the one final judgment
rule. (Morehart, supra, 7 Cal.4th at p. 740.) The Morehart court concluded
that the doctrine provided an insufficient justification for a court of appeal’s
decision that a judgment disposing of fewer than all of the causes of action in
a matter was appealable. (See id. at p. 741, discussing Schonfeld v. City of
Vallejo (1975) 50 Cal.App.3d 401, 418.) Morehart offers no support for Officer
Meinhardt’s contention that an order granting or denying a petition for writ
of mandate in its entirety is appealable pursuant to the premature appeal
doctrine.
28
Merced (2003) 110 Cal.App.4th 362 (Protect Our Water), in an appeal from a
judgment denying a petition for writ of mandate, the Court of Appeal stated
the following in a footnote:
“[Respondent] filed a motion to dismiss the appeal as
untimely, arguing the appeal was filed more than 60 days
after service of the order denying the writ of mandate.
However, the appeal was filed within 60 days after entry of
the judgment, and the judgment is appealable. (See
Catalina Investments, Inc. v. Jones (2002) 98 Cal.App.4th 1,
5, fn. 3; MCM Construction, Inc. v. City and County of San
Francisco (1998) 66 Cal.App.4th 359, 367, fn. 3.)”
We respectfully decline to follow this footnote of Protect Our Water to
the extent that it may be read to suggest that an order that fully resolves a
petition for writ of mandate and contemplates no further action in this case is
not a judgment.22 The court’s analysis is cursory, and fails to address
Laraway, supra, 98 Cal.App.4th 579 or discuss the cases on which it relies.
Further, the two cases that the Protect Our Water court cites do not, in our
view, persuasively support the Protect Our Water court’s denial of the motion
to dismiss. Catalina Investments, Inc. v. Jones, supra, 98 Cal.App.4th 1,
states merely that “a judgment denying a petition for writ of mandate is
appealable,” without discussing the type of ruling that constitutes a
judgment. (Id. at p. 5, fn. 3.) In MCM Construction, Inc., the court stated,
“both the order denying its writ petition and the final judgment are
appealable orders where no issues remain to be determined.” (MCM
Construction, Inc. v. City and County of San Francisco, supra, 66 Cal.App.4th
at p. 367, fn. 3.) However, in our view, neither an order denying a writ
22 The Protect our Water court did not discuss whether the order in that
case completely resolved all of the issues in the case and contemplated no
further action in the matter.
29
petition, nor a final judgment, is an “appealable order[ ].” (Ibid., italics
added.)23 For the reasons set forth in this opinion, an order that finally
resolves a petition for writ of mandate is a final judgment, and there can be
only one judgment in any given special proceeding or action. (See, e.g.,
Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605–1606 [discussing
the distinction between an order and a judgment and stating “while there
may be numerous orders made throughout a proceeding, there is only one
judgment” (id. at p. 1605)].)
Officer Meinhardt also cites Hadley v. Superior Court (1972)
29 Cal.App.3d 389 (Hadley). In Hadley, a court clerk entered a minute order
denying a petition for writ of mandate. (Id. at p. 392.) Contending that no
final judgment had been entered, the petitioner subsequently filed a motion
for entry of judgment. (Ibid.) After the trial court denied the motion, the
petitioner filed an application for writ of mandate in the Court of Appeal
directing the trial court “to render and enter judgment in [the action] pending
in respondent court . . . .” (Id. at p. 391.) The Hadley court issued a
peremptory writ requiring respondent court to enter judgment. (Id. at
p. 396.) The Hadley court reasoned that “a minute order signed by the clerk
and entered in the minutes,” does not constitute a “final judgment in a
proceeding for administrative mandamus after the issuance of an alternative
writ and trial on the merits.” (Id. at p. 393, italics altered.)
23 No case of which we are aware has identified a statute making an order
granting or denying a petition for writ of mandate an appealable order.
Because all orders are nonappealable unless identified by statute (see, e.g.,
Draus v. Alfred M. Lewis, Inc. (1968) 261 Cal.App.2d 485, 489), an order
granting or denying a petition for writ of mandate is not an appealable order.
Although, as stated throughout this opinion, an order granting or denying a
petition for writ of mandate that is a final judgment in effect is a final
judgment.
30
It is well established that a minute order dismissing a case that is not
signed by a judge is not a judgment. (See Katzenstein v. Chabad of Poway
(2015) 237 Cal.App.4th 759, 765; see § 581d.) Thus, we agree with the
Hadley court to the extent that it concluded that an unsigned minute order
denying a petition for writ of mandate is not a judgment. 24 However, to the
extent that Hadley may be read to suggest that a formal document titled
“judgment” must be filed in order for there to be a final judgment on a
petition for writ of mandate, we decline to follow such reasoning, which we
consider to be inconsistent with that espoused in Dhillon and the case law
discussed in part III.A.2.c, ante. (See also Cal. Civil Writ Practice
(Cont.Ed.Bar) § 11.8 No Formal Judgment Necessary [stating that Hadley
“has not been followed and seems to be an anomaly based on the [C]ourt of
[A]ppeal’s determination that formal entry of judgment was contemplated”];
9 Witkin, Cal. Proc. 6th Appeal § 165 (Order Granting or Denying Writ) [“a
superior court order either granting or denying the petition [for writ of
mandate] is appealable, and this rule applies even if the order is not
accompanied by a separate, formal judgment”].)
4. We continue to follow Laraway
Finally, Officer Meinhardt offers “seven reasons,” why this court should
not follow Laraway. While the bulk of these arguments are addressed by our
analysis above, in the interests of fairness and completeness, we discuss each
contention here. We also note that Officer Meinhardt does not contend that
any cases have questioned the reasoning of Laraway since its publication in
2002, and we are not aware of any such cases.
24 In this case, as noted in part II.B, ante, the August 6 order is a formal
order signed by a judge.
31
First, Officer Meinhardt notes that Laraway was not brought pursuant
to section 1094.5, and contends that the trial court in that case “was not
obligated to ‘enter judgment’ as [section 1094.5, subdivision (f)] requires in an
administrative mandamus action.” Yet, as explained in pt. III.A.2.b, ante,
under Dhillon, an order on a petition for writ of administrative mandate
brought pursuant to section 1094.5 is a judgment if “no issue is left for future
consideration except the fact of compliance or noncompliance with the terms
of the first decree.” (Dhillon, supra, 2 Cal.5th at p. 1115.)
Second, Officer Meinhardt states that Laraway “appears to be the only
published case in California that has dismissed an appeal as untimely,” for
failure to timely appeal in this context. The Laraway and the City of Calexico
courts both dismissed appeals in this context, and, for the reasons stated in
this opinion, we find the reasons for these dismissals to be persuasive. Thus,
we also reject Officer Meinhardt’s third argument that Laraway takes
“laudable efforts to preserve appellate rights and transforms them into a
mandate to extinguish appellate rights,” his fourth argument that City of
Calexico should not be “applied retroactively to appellant,” and his fifth
argument that Laraway and City of Calexico fail to “account” for the fact that
an appeal from an order denying a petition for writ of mandate is, according
to Officer Meinhardt, a “premature” appeal.
We also reject Officer Meinhardt’s sixth argument that application of
the holdings in the Laraway / City of Calexico line of cases is undesirable
because it would force “litigants to appeal every conceivable final order.” The
law is well established that, as the Dhillon court stated, a judgment is
determined by its “effect” rather than its “form.” (Dhillon, supra, 2 Cal.5th at
p. 1115.) Consequently, litigants seeking appellate review of a ruling that is,
in effect, a judgment are required to timely appeal from such judgment.
32
Finally, Officer Meinhardt argues that there “is an overwhelming
fairness and equity issue,” (boldface omitted) and contends that the “rules are
clear and appellant followed them.” In our view, Officer Meinhardt’s
“fairness” argument is unpersuasive given that Laraway has been the law for
nearly 20 years and has recently been applied by this court in City of
Calexico, and numerous courts have repeatedly held that “an order granting
or denying a petition for an extraordinary writ constitutes a final judgment
for purposes of an appeal . . . .” (Public Defenders’ Organization, supra,
106 Cal.App.4th at p. 1409; see cases cited in pt. III.A.2.c, ante.)
D. Officer Meinhardt’s appeal must be dismissed
We concluded in part III.B, ante, that the August 6, 2020 ruling is a
final appealable judgment. That same day, the clerk of court served the
parties with the August 6 ruling and filed a proof of service showing the date
that the ruling was served. (See pt. II.B, ante.) Pursuant to rule
8.104(a)(1)(A), the 60-day period for filing a notice of appeal began August 6,
2020 and ended on October 5, 2020. Thus, Officer Meinhardt’s October 15
notice of appeal, even if liberally construed as seeking to appeal the August 6
ruling,25 was not timely filed and his appeal must be dismissed. 26 (Laraway,
25 As noted in pt. II.E, ante, Officer Meinhardt’s notice of appeal indicated
that he was appealing from the September 17, 2020 “judgment.”
26 In addition, the Board served notice of entry of the August 6, 2020
judgment on August 14, 2020 (see pt. II.C, ante), thereby triggering the 60-
day period under rule 8.104(a)(1)(B). Because 60 days from August 14, 2020
was October 13, 2020, Officer Meinhardt’s October 15, 2020 notice of appeal
also is not timely filed under rule 8.104(a)(1)(B).
The sole argument that Officer Meinhardt offers in his supplemental
brief on appeal is that the August 6 ruling is not a final judgment. Officer
Meinhardt presents no argument that his appeal was timely filed, assuming
that the August 6 ruling is a final judgment.
33
supra, 98 Cal.App.4th at p. 582; City of Calexico, supra, 64 Cal.App.5th at
p. 196; rule 8.104(b).)
IV.
DISPOSITION
The appeal is dismissed. Officer Meinhardt is to bear costs on appeal.
AARON, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
34