Pacific Fertility Cases

Filed 5/11/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
A164472
PACIFIC FERTILITY CASES (San Francisco City & County
Super. Ct. No. CJC-19-005021;
JCCP No. 5021)
When one of multiple tortfeasor defendants intends to settle a case
before it is resolved against all defendants, the tortfeasor may petition the
trial court for a determination that the settlement was made in good faith.
(Code Civ. Proc.,1 § 877.6.) If the court makes such a determination, the
other defendants are barred from obtaining contribution or indemnification
from the settling tortfeasor based on the parties’ comparative negligence or
fault. (§ 877.6, subd. (c).) The court’s good faith determination is reviewable
by writ of mandate. (§ 877.6, subd. (e).)
In this case, we consider whether such a determination is also
reviewable in an appeal brought by a nonsettling defendant. Respondents
Pacific MSO, LLC (Pacific MSO), Prelude Fertility, Inc. (Prelude), Pacific
Fertility Center (PFC), Dr. Joseph Conaghan, and individual PFC
physicians—a group of defendants that settled the claims against them
All statutory references are to the Code of Civil Procedure unless
1
otherwise specified.
(settling defendants)—argue that it is not. Appellant Chart Inc. (Chart), a
nonsettling defendant, argues that it is. Addressing a split in the Courts of
Appeal on the issue, we reaffirm a decades-old decision of this division
summarily concluding that a good faith settlement determination is
reviewable only by a timely petition for writ of mandate in accordance with
section 877.6. (Housing Group v. Superior Court (1994) 24 Cal.App.4th 549,
552 (Housing Group).) We therefore dismiss the appeal.
I.
BACKGROUND
These coordinated proceedings arose following the failure in 2018 of a
cryogenic storage tank, which was manufactured by Chart and used by PFC,
a San Francisco fertility clinic, to store patients’ reproductive material.
During the failure, the tank’s nitrogen levels dropped, causing the
temperature to rise and potentially endangering the eggs and embryos stored
inside. PFC patients and others affected by the tank’s failure sought
recourse, resulting in hundreds of claims in federal and state courts and
arbitration proceedings.
A putative class action was first filed in federal court against PFC,
Prelude, Pacific MSO, and Chart.2 (See In re Pacific Fertility Center
Litigation (N.D.Cal., case No. 3:18-cv-01586) filed May 30, 2018.) As a result
of motions to compel arbitration, and an ensuing appeal to the Ninth Circuit
Court of Appeals, claims against Chart proceeded in federal court while
claims against the remaining defendants proceeded in arbitration. The
district court, however, denied the plaintiffs’ motion for class certification. As
2Pacific MSO provides operational services and administrative support
to PFC, operating its embryology laboratory and employing PFC’s
nonphysician staff, including Dr. Conaghan, the embryology lab director.
Prelude is a majority stakeholder in Pacific MSO.
2
a result, nearly 150 individual lawsuits against Chart were pending in
federal court.
The first federal bellwether trial was conducted in mid-2021, resulting
in a jury verdict against Chart.3 The jury found that the cryogenic storage
tank had a manufacturing defect and failed to perform as safely as expected.
It also concluded that the tank’s design was a substantial factor in causing
harm to the plaintiffs. The jury apportioned 90 percent of the liability to
Chart and 10 percent to PFC.
In the meantime, claimants not involved in the federal litigation filed
60 individual lawsuits in California state courts against PFC, Pacific MSO,
Prelude, and Chart, and those lawsuits were coordinated into these
proceedings. Arbitration was compelled for claims against PFC but not the
other defendants. All told, approximately 260 claims were pending in
arbitration proceedings.
After 18 months of settlement negotiations and mediation, extensive
written discovery, depositions, laboratory inspections, tests on the failed
cryogenic storage tank, and additional trials in federal court, the settling
defendants reached an agreement to resolve the claims against them in all
courts and arbitration proceedings. The agreement was expressly
conditioned on final court approval of the settlement’s good faith. The
settling defendants moved for a good faith settlement determination under
section 877.6, and the trial court granted the motion in November 2021. The
court also stated that it was dismissing with prejudice “[a]ll existing cross-
3The primary purpose of a “bellwether” trial is to educate the parties
and the court about the strengths and weaknesses of the many underlying
cases. (See 4 Newberg on Class Actions (5th ed. 2021) Selecting the
bellwether cases—Generally, § 11:13.)
3
complaints” for equitable indemnity or contribution against the settling
defendants.
In December 2021, Chart filed a petition for writ of mandate in this
court to challenge the trial court’s good faith settlement determination. The
following month, we denied the petition. In April 2022, our state Supreme
Court denied Chart’s petition for review of our denial of the writ petition.
(Chart Inc. v. Superior Court, review denied Apr. 13, 2022, S272985.)
Meanwhile, on January 21, 2022, two days after we denied its writ
petition, Chart filed a notice of appeal from the order determining the
settlement was in good faith. The settling defendants then moved to dismiss
the appeal.
II.
DISCUSSION
In arguing that the appeal must be dismissed, the settling defendants
cite this division’s conclusion that “[t]he determination of the good faith of a
settlement may only be reviewed by a timely petition for writ of mandate.”
(Housing Group, supra, 24 Cal.App.4th at p. 552.) And they point to
subsequent appellate decisions agreeing with that conclusion. (See O’Hearn
v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 499
(O’Hearn); Main Fiber Products, Inc. v. Morgan & Franz Ins. Agency (1999)
73 Cal.App.4th 1130, 1136 (Main Fiber).) Chart, in contrast, cites cases
holding that, while a good faith settlement determination may be reviewed by
writ of mandate in accordance with section 877.6, subdivision (e), it may also
be reviewed in an appeal from a final judgment. (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill); Wilshire Ins. Co. v. Tuff
Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 636 (Tuff Boy); Maryland
Casualty Co. v. Andreini & Co. (2001) 81 Cal.App.4th 1413, 1423 (Maryland
4
Casualty).)4 With these conflicting decisions in mind, we carefully reexamine
section 877.6, ultimately reaffirming the conclusion we reached in Housing
Group.5
A. Legal Framework and Standard of Review
“ ‘The fundamental rule of statutory construction is that a court should
ascertain the intent of the Legislature so as to effectuate the purpose of the
law.’ ” (Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th
1294, 1303 (Upland); see also Dyna-Med, Inc. v. Fair Employment & Housing
Com. (1987) 43 Cal.3d 1379, 1386–1387.) “Because the statutory language is
4 Although the parties do not raise the issue, we question whether the
November 2021 order is an appealable order. “ ‘[I]n a case involving multiple
parties, a judgment is final and appealable when it leaves no issues to be
determined as to one party.’ ” (Heshejin v. Rostami (2020) 54 Cal.App.5th
984, 991.) None of the authorities Chart cites held that “a determination of
good faith is directly appealable as an interlocutory decree.” (Maryland
Casualty, supra, 81 Cal.App.4th at p. 1419, fn. 8 [noting the issue was not
before it].) And Chart does not so argue, meaning the order must qualify as a
final judgment to be appealable. Yet Chart did not appeal from a final
judgment resolving the plaintiffs’ claims against it, and it is not clear on this
record that all plaintiffs have dismissed the settling defendants from this
action. The law is unsettled on whether an order making a good faith
settlement determination qualifies as a final judgment when it also dismisses
a nonsettling defendant’s counterclaims. (Compare Cahill, supra,
194 Cal.App.4th at pp. 945 & fn. 3, 946 [considering appeal from an order
approving good faith settlement and dismissing nonsettling defendant’s
cross-complaint for indemnity] with Oak Springs Villas Homeowners Assn. v.
Advanced Truss Systems, Inc. (2012) 206 Cal.App.4th 1304, 1307 [“The final
judgment rule cannot be interpreted to allow a party who remains in the
action to base its appeal on an order involving a different party.”].)
Ultimately, we need not decide whether the order is appealable as an
interlocutory decree or final judgment since we conclude that the good faith
determination is reviewable only by a writ petition filed in accordance with
section 877.6.
5In light of our holding, we need not decide the settling defendants’
claim that the appeal must be dismissed because it is frivolous.
5
generally the most reliable indicator of legislative intent, we first examine
the words themselves, giving them their usual and ordinary meaning and
construing them in context.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262,
268, superseded by statute on other grounds as stated in Bernard v. City of
Oakland (2012) 202 Cal.App.4th 1553, 1561 & fn. 5.) “The statute’s plain
meaning controls the court’s interpretation unless its words are ambiguous.”
(Green v. State of California (2007) 42 Cal.4th 254, 260.)
“If the words in the statute do not, by themselves, provide a reliable
indicator of legislative intent, ‘[s]tatutory ambiguities often may be resolved
by examining the context in which the language appears and adopting the
construction which best serves to harmonize the statute internally and with
related statutes.’ ” (People v. Arias (2008) 45 Cal.4th 169, 177.) Moreover,
“ ‘statutes must be construed so as to give a reasonable and common-sense
construction consistent with the apparent purpose and intention of the
lawmakers—a construction that is practical rather than technical, and will
lead to wise policy rather than mischief or absurdity. [Citation.] In
approaching this task, the courts may consider the consequences which might
flow from a particular interpretation and must construe the statute with a
view to promoting rather than defeating its general purpose and the policy
behind it.’ ” (Upland, supra, 111 Cal.App.4th at p. 1303.) When “ ‘the
language permits more than one reasonable interpretation, . . . the court
looks “to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of
which the statute is a part.” ’ ” (S. B. Beach Properties v. Berti (2006)
39 Cal.4th 374, 379.) Ultimately, “ ‘[i]f a statute is amenable to two
alternative interpretations, the one that leads to the more reasonable result
6
will be followed.’ ” (People v. Cornett (2012) 53 Cal.4th 1261, 1271, italics
added.)
“ ‘Statutory interpretation is a clear question of law for our
determination anew on appeal.’ ” (Daugherty v. City and County of San
Francisco (2018) 24 Cal.App.5th 928, 944; Breslin v. City and County of San
Francisco (2007) 146 Cal.App.4th 1064, 1077.) In addition, we are
“dutybound to consider” appealability. (Olson v. Cory (1983) 35 Cal.3d 390,
398.) If jurisdiction is lacking, we “must dismiss.” (Hollister Convalescent
Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
The statute at issue here, section 877.6, establishes procedures for
determining the good faith of a settlement between a plaintiff and one or
more joint tortfeasors in a case involving multiple tortfeasors. (§ 877.6,
subd. (a).) The party asserting a lack of good faith bears the burden of proof
on the issue. (Id., subd. (d).) A trial court’s determination that a settlement
was made in good faith bars “any other joint tortfeasor . . . from any further
claims against the settling tortfeasor . . . for equitable comparative
contribution, or partial or comparative indemnity, based on comparative
negligence or comparative fault.” (Id., subd. (c).)
Addressing appellate review of good faith settlement determinations,
subdivision (e) of section 877.6 provides: “When a determination of the good
faith or lack of good faith of a settlement is made, any party aggrieved by the
determination may petition the proper court to review the determination by
writ of mandate. The petition for writ of mandate shall be filed within 20
days after service of written notice of the determination, or within any
additional time not exceeding 20 days as the trial court may allow.” The
appellate court must, “within 30 days of the receipt of all materials to be filed
by the parties, determine whether or not the court will hear the writ and
7
notify the parties of its determination.” (Id., subd., (e)(1).) Moreover, “[i]f the
court grants a hearing on the writ, the hearing shall be given special
precedence over all other civil matters on the calendar of the court except
those matters to which equal or greater precedence on the calendar is
granted by law.” (Id., subd. (e)(2).) The time periods for dismissal for want of
diligent prosecution are tolled while the writ petition is pending. (Id.,
subd. (e)(3).)
B. The Statutory Language Is Ambiguous
In support of their varying positions, the parties make several
arguments based on the statute’s language. Chart contends that
section 877.6 does not expressly preclude appellate review and states only
that a writ petition “may” be filed, making such review optional rather than
mandatory. In contrast, the settling defendants contend that because
subdivision (e) of section 877.6 mentions no type of review except review by
writ of mandate and sets forth a specific procedure with short deadlines, the
statute evinces an intent to supplant other forms of review. None of these
contentions are entirely convincing.
To begin with, we reject Chart’s argument that the word “may”
necessarily makes the section 877.6 writ review procedure nonexclusive.
Obviously, no litigant is ever required to seek appellate review. The use of
“may” simply indicates that litigants have the expedited writ procedure
available to them should they wish to challenge a trial court’s good faith
determination. Other courts have concluded as much in similar contexts.
(See, e.g., McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 256, fn. 4 &
257 [holding that the “interlocutory appellate remedy” set forth in former
§ 416.3—which provided that a defendant “may” petition for a writ of
mandate after denial of a motion to quash service of summons—“preclude[d]
8
review of the order upon appeal from a judgment entered after trial on the
merits”]; West v. Arent Fox LLP (2015) 237 Cal.App.4th 1065, 1071–1072
[§ 425.18, subd. (g)—which states that “[u]pon entry of an order denying a
special motion to strike a SLAPPback claim, . . . an aggrieved party may,
within 20 days after service of a written notice of the entry of the order,
petition an appropriate reviewing court for a peremptory writ” (italics added)
—held to be the “sole remedy provided for review”].)
On the other hand, it is true that section 877.6 does not expressly state
that its articulated writ procedure must be followed in lieu of any subsequent
appeal. And the Legislature could easily have made any such intent express.
Indeed, it has done so in other statutes. (See, e.g., § 170.3, subd. (d)
[providing that “[t]he determination of the question of the disqualification of
a judge is not an appealable order and may be reviewed only by a writ of
mandate from the appropriate court of appeal sought only by the parties to
the proceeding”]; Gov. Code, § 6259, subd. (c) [providing that a superior court
decision in a Public Records Act case “is not a final judgment or order within
the meaning of [section 904.1] from which an appeal may be taken, but shall
be immediately reviewable by petition to the appellate court for the issuance
of an extraordinary writ”]; see also Tuff Boy, supra, 86 Cal.App.4th at
pp. 636–637 [citing § 170.3 to show “that the Legislature knows how to make
writ review the exclusive mode of review if it wants to”].)
While we disagree that section 877.6’s exclusive reference to review by
writ of mandate is definitive evidence precluding a subsequent appeal, we
agree that the statute’s specificity is some evidence that the Legislature
intended the statutory writ remedy to be the only avenue for appellate
review. As we have mentioned, under the statute, the petition for writ of
mandate must be filed within 20 days of notice of the good faith
9
determination, a timeframe that can only be extended by the trial court up to
an additional 20 days. (§ 877.6, subd. (e).) The appellate court must
determine within 30 days whether it will hear the writ petition, and if so, the
matter “shall be given special precedence over all other civil matters on the
calendar of the court except those matters to which equal or greater
precedence on the calendar is granted by law.” (Id., subd. (e)(1) & (2).) And
the time periods for dismissal for want of diligent prosecution with respect to
the underlying action are tolled while the writ petition is pending. (Id.,
subd. (e)(3).) In addition, subdivision (a)(1) of section 877.6 states that
“[u]pon a showing of good cause, the court may shorten the time for giving
the required notice to permit the determination of the issue [of the good faith
of a settlement] to be made before the commencement of the trial of the
action, or before the verdict or judgment if settlement is made after the trial
has commenced.” All of these provisions support the conclusion that the
Legislature wanted to provide settling tortfeasors with a swift and final
procedure for reviewing a trial court’s good faith settlement determination
before the verdict or judgment in the underlying trial. (See Main Fiber,
supra, 73 Cal.App.4th at p. 1136 [observing that “[t]he Legislature would not
have gone to such lengths to enable effective writ review if the aggrieved
party was equally free to wait for a final judgment” and pursue the issue by
appeal].)
In the end, we conclude that the absence of express language in
section 877.6 making a writ of mandate the exclusive means for securing
appellate review of a trial court’s good faith settlement determination is not
conclusive with respect to the Legislature’s intent on this point. Similarly,
while section 877.6, when read as a whole, supports the conclusion the writ
remedy provided is exclusive, the statute is not definitive. Since the
10
statutory language provides no clear guidance on the issue, section 877.6 is
ambiguous with respect to the availability of review by appeal from a
subsequent judgment. We thus look to the legislative history and underlying
purposes of the statute to aid us in discerning the Legislature’s intent.
C. Purposes and Legislative History of Assembly Bill No. 232
“The policies underlying the discharge of a good faith settling tortfeasor
under . . . section 877 include the promotion of settlement of disputes and the
finality of such settlements.” (Barth-Wittmore Ins. v. H. R. Murphy
Enterprises, Inc. (1985) 169 Cal.App.3d 124, 130.) However, “[w]here review
of a settlement must await conclusion of the entire case, the intended finality
is absent and promotion of settlement obviously thwarted.” (Ibid.)
Recognizing this problem, the Legislature added subdivision (e) to
section 877.6 in 1984. (Barth-Wittmore, at pp. 130–131; see Assembly Bill
No. 232 (1983–1984 Reg. Sess.) (Assembly Bill 232), Stats. 1984, ch. 311, § 1,
p. 1552; see also Sen. Com. on Judiciary, Analysis of Assem. Bill 232, as
amended May 19, 1984, p. 2 (Senate Judiciary Analysis) [“The purpose of this
bill is to provide specifically for an expeditious review of a trial court’s
determination of the good faith of a settlement in an action involving
multiple tortfeasors.”].)6 As the Legislative Counsel’s Digest for Assembly
Bill 232 notes, the legislation was necessary because “[e]xisting law [did] not
expressly provide for appellate review prior to trial of a determination by the
court of the good faith of a settlement.” (Legis. Counsel’s Dig., Assem.
6On our own motion, we take judicial notice of the legislative history
for Assembly Bill 232, as well as the legislative history for a predecessor bill,
Assembly Bill No. 3712 (1981–1982 Reg. Sess.) (Assembly Bill 3712). (See
Assem. Bill 3712, vetoed by Governor, Sept. 30, 1982, Assem. Final Hist.
(1981–1982 Reg. Sess.) p. 2264.) We gave the parties the opportunity to file
supplemental briefing with respect to this legislative history, and Chart did
so.
11
Bill 232, Stats. 1984, Summary Dig., p. 113.) The amendment therefore
provided “that any party aggrieved by such determination may file a petition
for review of the determination by writ of mandate, as specified.” (Ibid.)
The legislative history for Assembly Bill 232 is replete with references
to the need for early finality to encourage the settlement of disputes. For
example, one legislative staff analysis recites the reasoning of the State Bar,
the proponent of the amendment: “ ‘Under present law, a settling plaintiff
and settling defendant or cross defendant who are denied approval of the
settlement must undergo further discovery and trial against the [non]settling
tortfeasor, thus denying those parties the goals to be achieved by the
settlement. Likewise, if a settlement is approved but ultimately held, on
appeal after the judgment, to have been in bad faith, the case will have to be
re-tried to include the alleged tortfeasors who were improperly removed from
the case. Appellate review delayed until after the judgment thus thwarts the
policy of the law to encourage settlement.’ ” (Assem. Com. on Judiciary,
Analysis of Assem. Bill 232 as introduced, p. 2, italics added (Assembly
Judiciary Analysis).) The bill therefore provided for discretionary review
with a 20-day filing period from the settlement order, as opposed to the
mandatory review and 60-day filing period required for an appeal. (Ibid.)
Other staff reports further describe the proposed writ procedure as
superior to either pre- or postjudgment appellate review: “[S]ince many
settlements are made immediately before trial, it is imperative that the
review of the court’s determination occur expeditiously and before trial. The
writ of mandate procedures are well suited and preferable to a direct appeal
of the order which could result in an unacceptable risk of long trial delay. It
is also preferable to an appeal following judgment, since an immediate
reviewable writ [petition] could avoid the incurring of avoidable expenses if
12
the trial court’s determination of the good faith of an agreement was not
upheld.” (Senate Judiciary Analysis, supra, at p. 3, italics added; see also
Assem. Com. on Judiciary, Minority Analysis of Assem. Bill 232 as amended
Aug. 24, 1983, p. 1; Cal. Dept. of Transportation, Analysis of Assem. Bill 232
as amended March 9, 1983, p. 1; Sen. Republican Caucus, Rep. on Assem.
Bill 232 as amended Aug. 24, 1983, p. 2; Sen. Democratic Caucus, 3d reading
analysis of Assem. Bill 232 as amended Aug. 24, 1983, pp. 1–2; Sen.
Democratic Caucus, Conference Rep. on Assem. Bill 232 as amended Aug. 24,
1983, p. 2.)
In our view, both the legislative history of Assembly Bill 232 and the
underlying purposes of the legislation point to a construction of section 877.6,
subdivision (e) that would make the filing of a petition for writ of mandate
the exclusive means for obtaining appellate review of a trial court’s good faith
settlement determination. (See O’Hearn, supra, 115 Cal.App.4th at p. 498
[allowing an aggrieved litigant to challenge a good faith settlement
determination in a later appeal “would have a chilling effect on good faith
settlements”].) And, as we previously discussed, such a construction is
supported, if not mandated, by the statutory language. Indeed, several
courts have reached the same conclusion.
In Main Fiber, for instance, the Fourth District Court of Appeal
surveyed the language, purposes, and legislative history of Assembly Bill 232
and opined: “The same policy reasons which prompted the Legislature to
afford parties aggrieved by good faith determinations the right to review by
writ of mandate also militate in favor of a construction of the statute which
renders a pretrial petition for a writ of mandate the exclusive means of
review. A contrary construction, permitting an aggrieved party to postpone
review of the good faith determination until after the balance of the claims
13
were tried and a final judgment issued months or years later, would prevent
the very finality and certainty that writ review was intended to promote.
Years after the settlement, the settling tortfeasor could be dragged back into
the action, necessitating a retrial of the plaintiff’s claims.” (Main Fiber,
supra, 73 Cal.App.4th at p. 1135.) On this basis, the court held that “[a]ny
party wishing to challenge the merits of a ‘good faith settlement’
determination must do so via a petition for writ of mandate in the manner
and within the time prescribed by section 877.6, subdivision (e).” (Id. at
p. 1136; see also O’Hearn, supra, 115 Cal.App.4th at p. 499 [agreeing with
Main Fiber and concluding that “the strong policy of encouraging settlements
militates against an interpretation of section 877.6, subdivision (e) which
denies early finality to a good faith settlement determination”].)
D. Maryland Casualty and Its Progeny
The appellate courts that have reached the opposite conclusion largely
rely on Maryland Casualty. (See, e.g., Cahill, supra, 194 Cal.App.4th at
pp. 951–956; Tuff Boy, supra, 86 Cal.App.4th at pp. 634–636.) In Maryland
Casualty, the Second District Court of Appeal held that the availability of
writ relief did not preclude a subsequent appeal of a trial court’s good faith
settlement determination, at least when a writ petition had been filed and
summarily denied. (Maryland Casualty, supra, 81 Cal.App.4th at p. 1426.)
Maryland Casualty first considered the language of section 877.6,
subdivision (e), stating: “The use of the words ‘may petition,’ together with
‘shall be filed,’ suggests that a writ petition might not be the exclusive means
of reviewing a good faith settlement determination.” (Maryland Casualty,
supra, 81 Cal.App.4th at p. 1420.) As discussed above, we find this argument
unconvincing. Maryland Casualty then surveyed the legislative history of
subdivision (e), focusing on the legislative history for Assembly Bill 3712, a
14
predecessor bill, which was ultimately vetoed by Governor Brown. (Maryland
Casualty, at pp. 1420–1422.)
According to Maryland Casualty, in 1981 the Sacramento County Bar
Association proposed the following amendment to section 877.6: “ ‘An order
by the court determining that a settlement was or was not made in good faith
shall not be appealable. When such a determination is made, the party
aggrieved by such order may, within the time hereinafter provided, petition
the proper reviewing court to review such determination by writ of mandate.
Such petition for writ of mandate may be filed within 20 days after service of
written notice of the order, or within such additional time not exceeding 20
days as the trial court may allow.’ ” (Maryland Casualty, supra,
81 Cal.App.4th at pp. 1420,1421.) As introduced by Assemblyman Larry
Stirling in March 1982, Assembly Bill 3712’s proposed subdivision (e) did not
include a provision explicitly barring postjudgment appellate review.
(Maryland Casualty, at p. 1422; see Assem. Bill 3712, as introduced Mar. 22,
1982, proposed § 877.6, subd. (e).) Maryland Casualty also reports that a
copy of the State Bar proposal from Assemblyman Stirling’s legislative bill
file was edited as follows: “Handwritten parentheses were placed around the
proposed nonappealability provision, as were the handwritten notations,
‘strike according to author’ and ‘don’t want to preclude.’ ” (Maryland
Casualty, at p. 1422.) Furthermore, the Senate Judiciary Committee’s
analysis of Assembly Bill 3712 expressly provided: “No impact on ability to
appeal [¶] A non-settling defendant is presently free to appeal a
determination which dismissed a co-defendant pursuant to a settlement after
judgment is entered, and this bill would not affect that right of appeal.” (Sen.
Com. on Judiciary, Analysis of Assem. Bill 3712, at p. 4.)
15
Late in the legislative process, the Legislature amended Assembly
Bill 3712 to include a nonrelated provision involving the approval of certain
personnel assignments by the presiding judge of the superior court. (See
Maryland Casualty, supra, 81 Cal.App.4th at p. 1422.) Apparently, Governor
Brown vetoed Assembly Bill 3712 due the controversial nature of this
provision. (Maryland Casualty, at p. 1422, citing Governor’s veto message to
Assem. on Assem. Bill 3712 (Sept. 30, 1982) 10 Assem. J. (1981–1982 Reg.
Sess.) p. 18794 [noting that the issue of assignments for superior court clerks
“ ‘merits further legislative review’ ”].) Maryland Casualty relied on this
legislative history to conclude that “while the Legislature viewed a writ
petition before trial as a preferable means of reviewing good faith settlement
determinations, section 877.6[, subdivision] (e) does not foreclose
postjudgment review.” (Maryland Casualty, at p. 1423.)
We are less persuaded by this legislative history. First, although
Maryland Casualty found relevant the fact that the bill’s author “expressly
opposed the nonappealability language” (Maryland Casualty, supra,
81 Cal.App.4th at pp. 1423–1424), it is well established that “[i]n construing
a statute we do not consider the motives or understandings of individual
legislators who cast their votes in favor of it. [Citations.] Nor do we carve an
exception to this principle simply because the legislator whose motives are
proffered actually authored the bill in controversy [citation]; no guarantee
can issue that those who supported [the] proposal shared [the author’s] view
of its compass.” (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589–590;
accord, California Teachers Assn. v. Governing Board (1983) 144 Cal.App.3d
27, 35; see Kaufman & Broad Communities, Inc. v. Performance Plastering,
Inc. (2005) 133 Cal.App.4th 26, 30 [“as a general rule in order to be
cognizable, legislative history must shed light on the collegial view of the
16
Legislature as a whole”]; id. at p. 37 [rejecting authoring legislator’s files as a
permissible source of legislative history when there is no evidence the
documents were communicated to the Legislature as a whole].) Indeed,
Chart concedes as much.
Consequently, “[a] legislator’s statement is evidence of legislative
intent only if it provides the history of the legislation—events which occurred
or arguments made during its passage.” (California Teachers Assn. v.
Governing Board, supra, 144 Cal.App.3d at p. 35.) Moreover, “[t]hese
standards for consideration of legislators’ statements go to admissibility,
rather than weight, of the evidence offered. (Ibid.) If we were attempting to
discern the legislative intent animating Assembly Bill 3712, we might find
the statement of the bill’s author admissible as it reflected arguments made
in the Senate Judiciary Committee analysis for Assembly Bill 3712, which, as
mentioned above, clearly stated that the amendment would not preclude
postjudgment appellate review.
Here, however, we are concerned with the legislative intent underlying
Assembly Bill 232, enacted by a subsequent Legislature. Our review of the
legislative history for Assembly Bill 232 has not uncovered any express
discussion of the continued viability of postjudgment appellate review. In
addition, the only reference to Assembly Bill 3712 in the legislative history
for Assembly Bill 232 is a repeated comment that the prior legislation
contained nearly identical provisions and was vetoed for unrelated reasons.
(Assembly Judiciary Analysis, supra, at p. 2.; Senate Judiciary Analysis,
supra, at pp. 1, 7.) In these circumstances, the author’s statements about
Assembly Bill 3712 add little to our understanding of the intent underlying
Assembly Bill 232.
17
Nor do we find helpful the comment in the Senate Judiciary Committee
analysis of Assembly Bill 3712 regarding the continued viability of
postjudgment appeals. As many courts have noted, “it is difficult to rely on
vetoed legislation when determining Legislative intent.” (Union of American
Physicians & Dentists v. Brown (2011) 195 Cal.App.4th 691, 700, fn. 8; see,
e.g., Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1003, fn. 4;
California Labor Federation v. Industrial Welfare Com. (1998) 63 Cal.App.4th
982, 994–995 [“we may not take judicial notice of unenacted legislation for
the purpose of giving effect to that legislation in spite of the Governor’s
veto”]; Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 181, fn. 10
[consideration of vetoed precursor legislation improperly invites the court “to
read legislative history tea leaves”].) In a similar vein, “ ‘[u]npassed bills, as
evidences of legislative intent, have little value.’ ” (Granberry v. Islay
Investments (1995) 9 Cal.4th 738, 746; see also People v. Mendoza (2000)
23 Cal.4th 896, 921; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 29.) The reason
for these rules is apparent. A Legislature’s intent as to failed legislation
sheds little light on a subsequent Legislature’s intent regarding enacted
legislation. (See Mendoza, at p. 921 [failure to enact could be based on
political considerations]; Arnett, at p. 28 [proponents may withdraw a
provision on purely tactical grounds].)
In this case, the author of Assembly Bill 232 may have realized the
State Bar was correct that the proposed statutory writ procedure should be
exclusive, and he may therefore have decided against including a discussion
of postjudgment appeal in the arguments put forth for the bill. Or the author
may have initially excluded the nonappealability provision for tactical
reasons that were no longer relevant. We will never know.
18
What we do know is that the legislative history of Assembly Bill 232
does not mention postjudgment appeal as an alternative to the writ
procedure the bill creates.7 Instead, the history repeatedly stresses that
“ ‘[a]ppellate review delayed until after the judgment . . . thwarts the policy of
the law to encourage settlement.’ ” (Assem. Judiciary Analysis, supra, at
p. 2.) Moreover, the obvious impracticality of requiring a settling defendant
to continue to monitor or participate in further litigation, including a trial,
based on a concern that the good faith of its settlement might be overturned
on appeal from a later judgment, makes any other construction of
section 877.6 antithetical to the legislation’s purpose of providing swift and
final settlements. We therefore conclude that the statutory writ of mandate
procedure set forth in subdivision (e) of section 877.6 is the sole means of
obtaining appellate review of the good faith determination.
7 For this reason, we also reject the notion that use of the term
“preferable” in the legislative history for Assembly Bill 232 necessarily means
the more desirable but nonexclusive option. (See Cahill, supra,
194 Cal.App.4th at p. 953.) The most obvious understanding of “preferable”
in the context of the legislative analysis is simply “better.” (See Senate
Judiciary Analysis, supra, at p. 3.) But the proposed writ procedure can only
be better if it is exclusive. Allowing an additional postjudgment appeal
“ ‘thwarts the policy of the law to encourage settlements.’ ” (Assem. Judiciary
Analysis, supra, at p. 2.) While we might be forced to construe “preferable”
differently if we were addressing the legislative history for Assembly
Bill 3712—with its express statement regarding the nonexclusive nature of
the writ remedy it proposed—such a construction would be in clear tension
with the underlying purpose of the proposed legislation and the law of good
faith settlements generally. Perhaps that is why the proponent of Assembly
Bill 232 failed to include any mention of postjudgment appealability in the
successor legislation. Regardless, the legislative history for Assembly
Bill 232 contains no such statement.
19
***
Finally, we take a moment to address Chart’s concern that it has not
received effective appellate review of the good faith determination because its
writ petition was denied summarily. A similar concern can be found in the
legislative history for Assembly Bill 3712, which discloses that the Alameda
County Bar Association originally objected to the State Bar’s proposal
because “ ‘[d]iscretionary review of a party’s dismissal from an action
pursuant to [section 877.6] should not be the sole means of reviewing a trial
court’s order. . . . A party objecting to a settlement should have the absolute
right of a review on the merits to protect his or her interests.’ ” (Maryland
Casualty, supra, 81 Cal.App.4th at p. 1421.)
That writ review is discretionary, however, does not mean it is
ineffective. Even though “appellate review by extraordinary writ petition is
said to be discretionary, a court must exercise its discretion ‘within
reasonable bounds and for a proper reason.’ ” (Powers v. City of Richmond
(1995) 10 Cal.4th 85, 113.) In particular, “when writ review is the exclusive
means of appellate review of a final order or judgment, an appellate court
may not deny an apparently meritorious writ petition, timely presented in a
formally and procedurally sufficient manner, merely because, for example,
the petition presents no important issue of law or because the court considers
the case less worthy of its attention than other matters.” (Id. at p. 114.)
Thus, although appellate courts may decide writ petitions summarily—i.e.,
without issuing an alternative writ or order to show cause, without oral
argument, and without issuing a full written opinion—when a writ petition
constitutes the exclusive means of obtaining appellate review of an order, “an
appellate court must judge the petition on its procedural and substantive
merits, and a summary denial of the petition is necessarily on the merits.”
20
(Leone v. Medical Board (2000) 22 Cal.4th 660, 669–670; Powers, at p. 114,
fn. 19; see Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 415; cf.
James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1018, fn. 3.) Chart
can rest assured that we carefully considered its writ petition and denied it
on its substantive merits.
III.
DISPOSITION
The appeal is dismissed. Respondents are awarded their costs on
appeal.
21
HUMES, P. J.
WE CONCUR:
MARGULIES, J.
BANKE, J.
A164472
Pacific Fertility Cases
22
Trial Court: Superior Court of the City and County of San Francisco
Trial Judge: Andrew Y.S. Cheng, Judge
Counsel:
Horvitz & Levy, Julian W. Park, Frederic D. Cohen, Stephen E. Norris;
Swanson Martin & Bell, John J. Duffy, Kevin Ringel; Zenere Cowden &
Stoddard, Marc G. Cowden and Adam M. Stoddard for Defendant and
Appellant Chart Inc.
Galloway, Lucchese, Everson & Picchi, Joseph S. Picchi, Sukhwinder K.
Bajwa and Aaron T. Schultz for Defendants and Respondents Pacific Fertility
Center, Carl Herbert, Eldon Schriock, Philip Chenette, Carolyn Givens,
Liyun Li and Isabelle Ryan.
Morrison & Foerster, Erin M. Bosman, Julie Y. Park, William F. Tarantino
and James R. Sigel for Defendants and Respondents Pacific MSO, LLC,
Prelude Fertility, Inc. and Joseph Conaghan.
23