Filed 5/11/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

PACIFIC FERTILITY CASES

 A164472

 (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 

1 All statutory references are to the Code of Civil Procedure unless 

otherwise specified.
2

(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 

2 Pacific 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.
3

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 cross3 The 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.)
4

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 
5

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. 

5 In light of our holding, we need not decide the settling defendants’

claim that the appeal must be dismissed because it is frivolous. 
6

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 
7

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 
8

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]
9

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 
10

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 
11

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. 

6 On 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. 
12

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 
13

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 
14

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 
15

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.)
16

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 
17

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.
18

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. 
19

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. 
20

* * *

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.” 
21

(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.
22

HUMES, P. J.

WE CONCUR:

MARGULIES, J.

BANKE, J.

A164472

Pacific Fertility Cases
23

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.