Move-Out Order Held Automatically Stayed on Appeal, But Sale Order Required a Bond, And Stipulation Mooted Appeal

Timothy Kowal, Esq.
October 19, 2021

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different order, then the appeals of both of those orders are moot.

That is the thumbnail of Tearse v. Tearse (D1d4 Sep. 22, 2021) 2021 WL 4304761 (no. A158582) (nonpub. opn.). The really unusual thing about this case is how the court treated the respondent's argument that the appeal was moot. The court agreed, but was also concerned that it would operate to affirm a trial court's order that was void because entered after an automatic stay. So the court reversed that order as moot. That, surely, is not how the respondent expected his mootness argument would be taken. Be cautious with mootness arguments.

The Tearse case has been a long and litigious affair. After the marital-property division trial here following five prior appeals, the court awarded the marital home to the respondent husband, conditioned on making an equalization payment within 60 days, or else sell the property. Upon receipt of the payment, the appellant wife was ordered to move out. The wife appealed.

After the appeal, the respondent moved for a different order. The respondent argued he couldn't get refinancing with the house the way it was, and wanted the wife to move out so he could make repairs. The court issued a writ of possession. The court denied the wife's ex parte application for a stay. The wife appealed that possession order as well.

Finally, the wife and husband entered into a stipulation extending her move-out date. The stipulation was entered as an order.

So now there are three orders. The Court of Appeal took them up in turn.

The Move-Out Order Is a Mandatory Injunction That Is Automatically Stayed on Appeal:

The appellant argued a move-out order is a mandatory injunction, and mandatory injunctions are automatically stayed on appeal. She is right about that. “[C]ommanding [a party] to vacate the family home ... is in the nature of a mandatory injunction” and “[i]n the absence of a statutory provision to the contrary, the enforcement of a mandatory injunction is stayed by the perfection of an appeal ....” (Smith v. Smith (1941) 18 Cal.2d 462, 465.) This is also supported under Code of Civil Procedure section 916, subdivision (a), which provides as follows: “Except as provided in Sections 917.1 to 917.9 ... the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.”

So the move-out order was automatically stayed.

But the Order to Sell Real Property Is Stayed on Appeal Only Upon Posting a Bond:

But the analysis went the other way when the court moved to the part of the order requiring the sale of the residence. There is a statutory exception under Code of Civil Procedure section 917.4. Section 917.4 applies to orders to sell or transfer real property, and in such cases, the appellant must post a bond to secure against waste. The statute provides “[t]he perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given ....” (Code Civ. Proc., § 917.4.)

Here, the appellant did not seek an order setting the amount of a bond, and did not post a bond. So the sale order was not stayed.

The Stipulated Order Mooted the Appeal of the Prior Orders:

During the pendency of the appeal, the appellant stipulated to extend the move-out date, and then in fact vacated the property and turned possession over to the respondent. This mooted the appeal.

“It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed.” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557.) “A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.)

But wait. The Court of Appeal has already held that the move-out order was automatically stayed. That means the court's subsequent orders were void. Once a stay under Code of Civil Procedure section 916, subdivision (a) goes into effect, any later order issued by the trial court is void because it has been “divested of power to act on matters ‘embraced in’ or ‘affected by’ the appealed judgment or order.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 7:2.) If an appeal of such an order is dismissed by an appellate court (through a finding of mootness, for instance), the dismissal would act as an affirmation of a void order. (Id., ¶ 5:48.)

That means, the appellant went on, that if the court were to dismiss the appeal as moot, it would in effect ratify a void order. That can't be right.

The appellant has a point, the court conceded, that "there is a potential problem here" with leaving void order standing. "But that is why we paused at the outset to point out the applicability of a statutory exception to the general rule under Code of Civil Procedure section 917.4. To the extent [the appellant's] concern is that an implied affirmance on the merits of a validly entered order might somehow prejudice her going forward, we will make clear in our disposition that we are reversing the trial court's possession-related orders as moot because they have been superseded by the stipulated findings and order.... (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134–135; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 942–947.)"

Comment: Note the unusual application of the mootness doctrine here. Typically, the subsequent events render the appeal moot. Here, the court held that the subsequent events rendered the appealed-from order moot. Surely this is not quite the outcome the respondent sought when raising the mootness argument. While the appealed-from order had been replaced by the stipulated order, the appealed-from order had been based on factual and legal findings by the trial court, and the Court of Appeal opinion here vacated them by reversing the order as moot. So to the extent the respondent might later seek to modify the stipulated order, his negotiating position has been materially affected by the appellate court's opinion here.

Mootness is a slippery doctrine. Sometimes it works. Sometimes it does not work. And sometimes, like here, it works the opposite of how you'd expect.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.