One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, or even surprising, and these can give a glimpse into how the justices and their research attorneys are struggling through the issues in the case.
I got this impression reading San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126. It involves an appeal that seems clearly moot, and from an order that seems clearly nonappealable. But the court for some reason did not want to dismiss the appeal on either of those grounds – and in so doing suggests a possible loophole in the appealability doctrine that may be larger than typically advertised.
The court also noted the appellant had put its toes right on the line of its duty of candor.
The plaintiff is a farm operator who had a right of first refusal to purchase its farmland. The farm operator sued its landlord when it learned the landlord was planning to sell out from under the farmer to a secret buyer. Just before trial began, the secret buyer revealed itself and sought to intervene in the case via ex parte application. When that application was denied on grounds the buyer was really only the beneficiary of a land trust, the buyer got an assignment of rights, and filed a new application. That was denied too. The buyer appealed, but in the meantime the plaintiff farm operator obtained a judgment in its favor.
Did the Judgment Render the Intervention Appeal Moot?
The plaintiff, now the respondent on appeal, argued the judgment in its favor rendered the buyer's appeal moot. Now that the court had already decided the issues, there was nothing to be accomplished by reversing the order denying intervention. (No party had appealed the judgment.)
And there is case law to back up this mootness argument: “Where the judgment in a cause, rendered in the trial court, has become final, an appeal from an order denying intervention in such cause will be dismissed, as a reversal of such order would be of no avail. The appeal presents only a moot case.” (Hindman v. Owl Drug Co. (1935) 44 Cal.2d 451, 456.)
But appellate courts can be very slippery when it comes to mootness arguments. And so it proved here. The Fourth District Court of Appeal held that the intervention statute, Code of Civil Procedure section 387, was since amended to allow intervention "upon timely application," as opposed to "before trial" as it had been worded at the time of Hindman. This means intervention may be appropriate even after a judgment. (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267.)
(What relevance any of this has to the mootness of the appeal is not said. And in fact the court offers that "we make no holding regarding the range of actions or remedies available" at such a late stage in the proceedings. Which tends to underscore the plaintiff-respondent's point: given there was no appeal of the judgment and no other relief the court may provide, the appeal should be dismissed as moot.)
The Importance of Seeking Stays or Supersedeas:
The court also notes that there were several procedural remedies the appellant buyer should have considered to preserve its appellate rights. These remedies included:
Ultimately, the court concluded these were not strictly necessary to preserve the appellant's right to appeal. (But again, the court does not identify the salient issue on the mootness argument: whether there was any effective relief left for the court to grant.)
"Related" Appealable Orders May Be Reviewed on Appeal, Even If Not Appealed?
The most interesting part of the court's analysis relates to appealability. The analysis suggests a rather significant loophole in the otherwise narrow approach to determining appealability and timeliness of appeals.
First, recall that the appellant buyer filed not one but two applications to intervene. The first was denied on the grounds that the buyer was not actually a buyer but merely a beneficiary of the buyer. The buyer remedied that via assignment in the second application, which was also denied. The buyer only appealed from the second denial.
The respondent pounced on this fact. The appealable order, the respondent argued, was the first denial. The second application was really just a disguised motion for reconsideration under Code of Civil Procedure section 1008, and as we know, an order on a reconsideration motion is not independently appealable.
This seems a sound argument, and the court did not disagree. But the court still did not go for it. "Even if [respondent] is right, we nonetheless are permitted to construe an otherwise timely notice of appeal from a nonappealable order as being taken from the related appealable order, so long as the substance of the appeal is clear and no party is misled or prejudiced thereby."
The court cited two cases in support, In re Joshua S. (2007) 41 Cal.4th 261, 272, and Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14, fn. 1. But the court seems to stretch both of these cases beyond their doctrinal limitations. Joshua S. involved the situation where an appellant includes language in a notice of appeal that arguably could be deemed to limit the scope of the appeal. The Joshua S. court simply exercised its discretion to construe any ambiguity in conformity with the policy of liberally construing notices of appeal.
And the Kasparian court simply held that an appeal from an order granting summary judgment may be deemed to be an appeal from the judgment.
The situation in this case was rather different, because it did not involve an ambiguous notice of appeal, and it did not involve an appeal from an earlier nonappealable that was later entered as an appealable judgment. Instead, there were two different motions here, based on different facts or law, and opposed on different grounds as well. If a Court of Appeal has "discretion" to sweep into its jurisdiction orders from which an appeal must be taken but wasn't, on the basis the court finds them sufficiently "related" to the appeal, this seems rather a departure from the normal rules of appellate jurisdiction.
A Note on Candor to the Court:
One last point of note. On appeal, the respondent argued that the buyer had failed to file the required proposed answer with its motion to intervene. Not so, argued the appellant-buyer, who filed a request for judicial notice in the Court of Appeal attaching the proposed answer that he had filed in the trial court. The court granted the RJN over the appellant's opposition.
The appellant's factual statement about the record having been proved incorrect, the court had this to say:
"We are troubled Dobler's brief contains factual assertions not only that the record does not contain the proposed answer, but that “ERSB did not attach any such answer,” and “ERSB ... did not provide the Court with any answer in intervention.” It is, of course, wholly permissible to assert and rely upon the failure of an appellant to supply a sufficient record, but it is another thing entirely to knowingly make an incorrect factual assertion about what happened in the trial court.
"We note the attorney who signed the brief, although from the same firm, is not the same attorney who appeared at the hearing. We therefore give counsel the benefit of the doubt and presume an error was made. Nevertheless, we remind counsel of the importance of the duty of candor toward the tribunal imposed by rule 3.3 of the Rules of Professional Conduct."
This commentator does not see what "doubt" was left after the respondent produced the supposedly nonexistent answer, and the appellant opposed its inclusion in the record.
Tim Kowal 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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. 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 email@example.com or (714) 641-1232.