Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Mootness

"Related"​ Appealable Orders May Be Reviewed Even If Appellant Fails to Appeal Them

One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses.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, 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.

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Anti-Foreclosure Advocate Loses Appeal Due to Mootness After Bank Terminates Foreclosure Proceedings

As time passes in litigation, counsel should give a care to changes that may render their client's cases moot. This is particularly common when equitable relief is sought, such as injunctions. And it tends to be more common on appeal.

That is what happened in Brown v. U.S. Bank, N.A. (D5 May 4, 2021) no. F079568 (nonpub. opn.). Plaintiff sued to enjoin a foreclosure, lost, and appealed, but meanwhile the bank terminated foreclosure. Held: appeal of the injunction denial was moot, because the whole point was to stop the foreclosure, which was no longer in play.

In my experience, your mileage will vary greatly in establishing mootness, or an exception to mootness, depending on the circumstances of your case. So do not be misled by this case into thinking mootness is always a straightforward analysis.

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

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 […]

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