Strategic Opportunity Missed: Appeal of Judgment Would Have Been Dismissed as Moot But For Respondent's Fee Award

Timothy Kowal, Esq.
January 11, 2021

In this commercial eviction case in Lee v. Kotyluk (D4d3 Jan. 7, 2021) No. G058631, defendant-tenant filed a motion in limine for judgment on the pleadings, asserting a defect in landlord's three-day notice to quit. The trial court granted the motion and entered judgment for the tenant. Plaintiff-landlord appealed the judgment. The prevailing defendant-tenant then obtained an award of costs and contractual fees of just over $27,000. Landlord appealed that award, too.

And good thing it did. Had it not appealed the fee award, plaintiff-landlord would have lost its underlying appeal.

Conversely, had defendant-tenant not obtained the fee award, it could have killed the appeal and won the case.

I will explain.

After plaintiff appealed the judgment, defendant moved to dismiss the appeal. The grounds: somewhere along the way, tenant had tendered possession back to landlord. This meant the appeal was moot, because even were the Court to reverse on the judgment concerning possession, the issue of possession was now resolved, so there was nothing left to fight over. "'Generally, an appeal will be dismissed as "moot" when, through no fault of respondent, the occurrence of an event renders it impossible for the appellate court to grant appellant any effective relief.'" (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77-78.)

Defendant would have been correct. Except for one thing: there was still one thing left to fight over: defendant's $27,000 fee award. So although an appellate decision favorable to plaintiff would make no difference on the only substantive issue in the lawsuit – possession – it would eliminate defendant's fee award. So, the appeal was not moot.

(In the separate appeal on the fee award, defendant argued that that appeal was "frivolous" because its fate hung in the balance of the first appeal. In fact, defendant had it backward: the fate of the first appeal hung on the balance of the fee appeal because, had plaintiff not appealed the fees, the first appeal would have been dismissed as moot.)

The Fourth District went on to hold that, although the trial court was correct in granting the motion for judgment on the pleadings, it abused its discretion by not granting plaintiff leave to amend its pleading defect. "If there is a reasonable possibility the defect in the pleading can be cured by amendment, denial of leave to amend is an abuse of discretion." (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 209.)

The upshot: Close to 5% of appeals are dismissed on procedural grounds. Had the respondent walked away from its right to in attorney fees, it would have established the appeal was moot and obtained dismissal of the appeal. Instead, respondent stood on its $27,000 fee award, the appeal was decided on the merits against respondent, thus automatically reversing its fee award. And insult to injury: respondent was stuck with the bill for appellant's costs on appeal.

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 Contact Tim at or (714) 641-1232.

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