After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait until the court issues its tentative opinion, it’s probably going to be too late. (Court refuses to dismiss appeal to avoid unfavorable precedent.) My plea was: not many courts do litigants the favor of issuing tentatives, so please don’t abuse it. Requesting dismissal after an unfavorable tentative risks ruining it for the rest of us.
But the court in Northgate Gonzalez, LLC v. Realm Real Estate, LLC (D4d2 Jun. 16, 2023 No. E078106) 2023 WL 4042678 (nonpub. opn.) didn’t seem to mind. The City of Riverside permitted Realm to build a mixed-use commercial and apartment complex. But Northgate complained that the project violated an easement that required the use be commercial. The trial court agreed and issued a preliminary injunction.
After two-and-a-half years on appeal, the Court of Appeal issued a tentative opinion. But before oral argument, the trial court made its injunction permanent, thus mooting the appeal. So Realm requested dismissal, and the Court of Appeal granted it.
Realm already filed a new notice of appeal from the permanent injunction. (No indication which way the Court of Appeal’s tentative went, though.)
Takeaway: If you are appealing from a preliminary injunction, consider also file a petition for a writ of mandate. Otherwise, you might go through two years of briefing only to find your appeal is moot.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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