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

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

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.

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

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 fairness, the appellant did seek a stay in the trial court, which was the right move. But when the trial court denied that stay, the appellant waited too long to seek a writ of supersedeas (the appellate court's fancy word for stay) in the Court of Appeal. In this case, she had only four days to seek supersedeas before escrow closed. A good reason to have appellate counsel at the ready!

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One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses.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