Armstrong Townhomes v. Milgard Manufacturing CA1/2

Filed 3/9/23 Armstrong Townhomes v. Milgard Manufacturing CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ARMSTRONG
TOWNHOMES, LLC et al.,
Plaintiffs and Appellants, A164469
v. (San Francisco County
MILGARD Super. Ct. No. CGC-18-
MANUFACTURING, INC. et 568770)
al.,
Defendants and Respondents.
Plaintiffs and appellants Armstrong Townhomes, LLC and James E.
Roberts-Obayashi Corporation (appellants) appeal from the trial court order
granting the motion of respondent Brasscraft Manufacturing Company
(Brasscraft) determining a settlement was made in good faith. (Code Civ.
Proc., § 877.6.) Without reaching the issue of whether an appeal is available
to appellants,1 for the reasons set forth below we shall dismiss this appeal as
untimely.
1 Code of Civil Procedure section 877.6, subdivision (e) provides that a
determination that a settlement was in good faith is reviewable by writ of
mandate, in light of which Courts of Appeal are divided as to whether a writ
is the sole remedy available. The issue is currently before our Supreme
Court, which granted review of the decision in In re Pacific Fertility Cases
1
On October 26, 2021, Brasscraft filed a motion for determination of
good faith settlement. It was accompanied by a declaration of Paul Viau, its
general contractor, that with its attachments totaled over 200 pages, a
declaration that set forth in comprehensive detail the factual setting involved
in the settlement.
Appellants filed opposition that hardly addressed those facts, and on
November 12, 2021, the trial court filed its order determining that the
settlement was made in good faith.
That same day, November 12, Brasscraft filed and served on appellants
a notice of entry of order.
On January 19, 2022, 68 days after the notice of entry, appellants filed
a notice of appeal, filing it electronically with the trial court and serving it by
electronic filing via File and Serve Express e-Service.
On May 16, 2022, appellants filed their opening brief, represented by
the firm of Sellar Hazard & Lucia (Sellar firm), the same firm that
represented them below. Appellants’ opening brief lists Christopher Karic of
that firm on the cover, and he wrote the brief. Appellants’ reply brief lists
Peter Pritchard on the cover, and he wrote that brief. For some reason, both
briefs were served on Christian Lucia, a third lawyer at the Sellar firm.
On December 2, Brasscraft filed its respondent’s brief. That brief had
an argument contending that appellants’ brief failed to comply in several
particulars with the Rules of Court, and cited to various cases in which
appellate courts held appellants accountable for such non-compliance, to the
(2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134.
Pursuant to the order granting review, “the opinion of the Court of Appeal,
which is currently published at 78 Cal.App.5th 568, may be cited, not only for
its persuasive value, but also for the limited purpose of establishing the
existence of a conflict in authority” in the state’s Courts of Appeal.
2
point that some courts struck the appellant’s brief. (See e.g., C.J.A. Corp. v.
Trans-Action Fin. Corp. (2001) 86 Cal.App.4th 664, 673; Ojavan Investors v.
Cal. Coastal Com. (1997) 54 Cal.App.4th 373, 391.)
Mr. Pritchard’s appellants’ reply brief did not even mention, much less
come to grips with, respondent’s contention. He simply ignored it. Bad
enough. Worse, appellants’ reply brief also ignored Brasscraft’s separate
argument contending that appellants’ appeal was time-barred—a
jurisdictional defect.2
In light of this, on February 9, 2023, our clerk’s office sent to counsel,
including all three lawyers at the Sellar firm, a letter requesting briefing on
the question of why the appeal should not be dismissed as untimely, citing to
California Rules of Court, rule 8.104(a)(1)(B).
The letter directed that appellants’ brief be filed by February 21. We
received no brief from appellants, and on February 24 our clerk’s office sent
counsel an email advising of that.
On February 28, our clerk’s office received an email from the Sellar
firm, sent by yet a fourth attorney there, Justin M. Graham. That email,
2 Appellants’ reply brief does have an argument that asserts
“appellants properly brought their appeal after their writ of mandate was
denied.” This addresses a different argument than untimeliness, specifically
the issue referred to in footnote 1 ante.
But not only does the argument miss the point, it is based on a
representation that finds no support in the record, which representation is
this: “Assuming, arguendo, that [Code of Civil Procedure] Section 877.6[,
subdivision] (e) does import a mandatory obligation to first petition the court
via writ petition, Appellants have already done so, and its petition was
summarily denied. Upon such a denial, the courts have held that a good faith
settlement determination could be challenged on appeal despite the filing of
an earlier writ petition, which petition was summarily denied.” No record
reference is cited in support of that statement, and we have found no writ in
our records involving the order for Brasscraft.
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which was not even copied to opposing counsel, reads in its entirety as
follows: “We plan on submitting a letter brief in the above-captioned matter.
Due to our office’s work in an ongoing trial, we were unable to file this before
the February 21 deadline. As such, we respectfully request an extension of
time for which to file our letter brief. Thank you.”
Our clerk’s office responded: “I have checked with the court regarding
an extension of time request. The court will not grant an extension of time.
You may proceed as you feel is necessary.”
We heard nothing since. We now dismiss the appeal.
Rule 8.104 of the California Rules of Court sets forth the “time to
appeal.” And it provides as follows:
“(a) Normal time
“(1) Unless a statute or rules 8.108, 8.702, or 8.712 provide otherwise,
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; or . . . .”
The appeal here was, as noted, filed 68 days after notice of entry. It is
thus untimely. It must be dismissed.
Rule 8.104(b) of the Rules of Court provides that “no court may extend
the time to file a notice of appeal. If a notice of appeal is filed [beyond the
statutory appeal period], the reviewing court must dismiss the appeal.” (Cal.
Rules of Court, rule 8.104(b).) Similarly, Rule 8.406(c) provides in relevant
part, “Except as provided in rule 8.66” (which applies only in public
4
emergencies), “no court may extend the time to file a notice of appeal. . . .” In
short, “if it appears that the appeal was not taken within the 60-day period,
the court has no discretion but must dismiss the appeal of its own motion
even if no objection is made.” (Estate of Hanely (1943) 23 Cal.2d 120, 123.)
We have no jurisdiction to entertain it. (Hollister Convalescent Hosp., Inc. v.
Rico (1970) 15 Cal.3d 660, 670 [“[T]he timely filing of an appropriate notice of
appeal or its legal equivalent is an absolute prerequisite to the exercise of
appellate jurisdiction”]; also see In re G.C. (2020) 8 Cal.5th 1119, 1127;
K.J. v. L.A. Unified Sch. Dist. (2020) 8 Cal.5th 875, 881; People v. Mendez
(1999) 19 Cal.4th 1084, 1094.)
The appeal is dismissed. Brasscraft shall recover its costs on appeal.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Miller, J.
Armstrong Townhomes, LLC v. Milgard Manufacturing, Inc.
(A164469)
6