Sale of Property Rendered Appeal Moot; Bond and Stay Were Required to Preserve the Appeal

Timothy Kowal, Esq.
October 6, 2021

It is not enough to appeal your case. You have to keep your case alive until the Court of Appeal has a chance to get to it.

That is the lesson of Badea-Mic v. Detres (D3 Nov. 23, 2020) **no. C085459 (nonpub. opn.). The appellant appealed an order authorizing the sale of the property, but the property was sold to a third party before the appeal concluded. Thus, the appeal was moot.

In a dissolution proceeding, following an order under Family Code section 2556 concerning a real property held by the community, the parties stipulated that the appellant would refinance the property and catch up on mortgage payments. When the appellant filed to do so, and then failed to comply with a second stipulation, the respondent got an order authorizing the sale of the property using the county clerk as an elisor to effectuate the sale.

The appellant filed her appeal.

In the meantime, the appellant also immediately moved the trial court to stay the sale. This was a good move. But the trial court denied the motion. By this time, it appears the property was already in escrow, which would close four days later. The appellant filed a petition for a writ of supersedeas in the Court of Appeal. Another good move. But alas, too late: the appellant had waited a month to file the petition for supersedeas, by which time the escrow had already been closed, and the new grant deed recorded.

The appeal was dismissed as moot. Here is a good statement of the legal standard on mootness to bookmark for your file:

" ' " '[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' " (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 848-849.) If, because of subsequent events, an appellate decision can have no practical impact or provide any effectual relief, the appeal should be dismissed as moot. (Id. at p. 848.)

The court noted that the appellant never posted a bond under Code of Civil Procedure section 917.4, or otherwise obtained a stay pending appeal. (While this is true, it may seem a little callous of the fact that the appellant did move for a stay in the trial court, but the court denied it. [The amount of the bond under section 917.4 must be fixed by the trial court — the appellant cannot unilaterally post a bond to effect the stay as in money judgments under section 917.1.] But such denials are reviewed for abuse of discretion, and in any event, the mootness doctrine renders even an abuse of discretion effectively unreviewable. Instead, you must be prepared to immediately seek supersedeas in the Court of Appeal if the trial court denies a discretionary stay — and you should always assume the trial court will deny a discretionary stay. This is an important reason to consult appellate counsel early.)

The intervening sale of the property rendered the appeal moot. "Our decision on the propriety of the court's order can have no practical effect because it will not reverse the sale. (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 682-683, 685 [receiver's sale of property rendered appeal moot]; First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, 800-801 [creditor's sale of property under enforcement of judgments law rendered appeal moot].)"

Also, while the appellant conceivably could have pursued a money claim against the respondent based on her allegation that he failed to get full value for the property in the sale, the appellant did not perfect this claim, and did not offer authority for it in her appellate briefs. So the court deemed it forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Fernandes v. Singh (2017) 16 Cal.App.5th 932, 942-943.)

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.