Mayday! M’aidez! You shall reconsider your thoughts about “may!”

It is a truth universally acknowledged that “may” is permissive and “shall” is mandatory. At least five statutes specifically so provide. (Gov. Code, § 14; Bus. & Prof. Code, § 19; Lab. Code, § 15; Prob. Code, § 12.) And, cases so holding are legion.

Like many other “universally acknowledged truths,” however, this is not universally applicable, and does not always play out as one might suspect. In Pacific Fertility Cases (May 11, 2022, A164472) 2022 WL 1496764, a decision that could only have come out in the month of May, “may” is construed to be permissive in one sense, as in “you are not required to do this.” But Pacific Fertility Cases also construes “may” to be mandatory in another sense, as in “if you do this you may only do it in this manner.” Even though there are plenty of cases that say adding a word to a statute is ordinarily forbidden as a matter of statutory construction. “In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.” (Code Civ. Proc., § 1858.)

The specific statute at issue here relates to appellate challenges to a determination of good-faith settlement under Code of Civil Procedure section 877.6. The statute provides that “any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate,” on an accelerated schedule.

In Pacific Fertility Cases, after such a petition was denied and a judgment entered, a non-settling defendant sought to appeal that order. Arguing that may means may and does not mean shall, the non-settling defendant contended it should be allowed to pursue an appeal as well as a writ petition. The Court of Appeal recognized a split of authority on just this issue. Cases holding “writ petition only” include Housing Group v. Superior Court (1994) 24 Cal.App.4th 549, 552; O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2d Dist. 2004) 115 Cal.App.4th 491, 499; and Main Fiber Products, Inc. v. Morgan & Franz Ins. Agency (4th Dist. Div. 2 1999) 73 Cal.App.4th 1130, 1136. Cases holding that, while a good faith settlement determination may be reviewed by writ petition, it may also be reviewed in an appeal from a final judgment include Cahill v. San Diego Gas & Electric Co. (4th Dist. Div. 1 2011) 194 Cal.App.4th 939, 956; Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (3rd Dist. 2001) 86 Cal.App.4th 627, 636; and most often cited, Maryland Casualty Co. v. Andreini & Co. (2d Dist. 2000) 81 Cal.App.4th 1413, 1423.

Pacific Fertility Cases arose in the 1st, which reaffirmed Housing Group in holding that may is both permissive and mandatory in this context. A non-settling defendant is not required to bring a writ petition, because whether to seek appellate relief is discretionary. At the same time, if a non-settling defendant wants the Court of Appeal to review a good faith settlement determination, it may only do so via writ petition.

Of course, because there is a split in authority and no horizontal stare decisis among Courts of Appeal, there is no guarantee what the next Court of Appeal will rule. Non-settling defendants have a good faith argument that they could, as in Pacific Fertility Cases, have two bites at the apple, a writ petition and then later an appeal after judgment. Non-settling defendants also have a good faith argument to just wait until the end of the case: the ruling would be just another “intermediate decision” that “substantially affects the rights of a party.” (Code Civ., Proc., § 906.)

How is this ruling possible? What about all those statutes defining may as permissive and only shall as mandatory? What makes may something other than may, as in “may only?” The answer is not in linguistics, but legislative history.

First, those statutes are in different codes. The good faith settlement statute is in the Code of Civil Procedure, which does not contain such a definitional statute.

Second and of more general interest, the legislative history and purpose of the statute. The decision rejects legislative history offered by the nonsettling defendant as ambiguous or otherwise unhelpful. “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. 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.”

This decision, while somewhat surprising given common wisdom about what these words mean, is not unprecedented. Prior cases have held that “in determining whether the Legislature intended a statute to be mandatory or permissive, use in the statute of ‘may’ or ‘shall’ is merely indicative, not dispositive or conclusive.” (Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542; accord People v. Ledesma (1997) 16 Cal.4th 90, 95.)