23
“unusual circumstances” to treat the appeal as a petition for writ
of mandate because “the issue of appealability was far from clear
in advance”; the issues were thoroughly briefed and argued; and
“[t]o dismiss the appeal rather than exercising [the court’s] power
to reach the merits through a mandate proceeding would . . . be
‘“unnecessarily dilatory and circuitous.”’” (Olson, at p. 401.)
Three of the five Olson factors are present here. At the
time Cepeda filed his appeal, it was not clear whether a
possession-only judgment was appealable. Indeed, the appellate
division concluded the judgment was appealable, a decision we
now reverse. In addition, this matter is fully briefed; the record
is sufficient for a writ of mandate proceeding; and there is no
indication the trial court would elect to appear in a writ
proceeding. There is therefore no reason to require Cepeda to file
a writ petition and have the parties brief the same issues, further
delaying resolution of Cepeda’s challenge to the three-day notice
and whether Eshagian had a right to possession. (See Last v.
Superior Court (2023) 94 Cal.App.5th 30, 44 [treating appeal
from temporary support order as petition for writ of mandate
where the matter was full briefed and argued, the record was
sufficient for a writ proceeding, there was no indication the trial
court would appear as a party, and “judicial economy would not
be served by deferring resolution of the issues presented until
rendition of an appealable judgment or order”]; Curtis, supra,
62 Cal.App.5th at p. 467 [where appeal was fully briefed, the
record supported a writ proceeding, and there was no indication
the trial court would appear, “[i]t would serve no purpose at this
point to require Curtis to file a writ petition and have the parties
submit the identical briefing on the petition”]; Summers v.
Superior Court (2018) 24 Cal.App.5th 138, 142 [treating