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: Motions to Dismiss

Dismissing an Appeal Means the Judgment Is Affirmed—But Not in This Unusual Case

When I first read Art Works Studio & Classroom, LLC v. Leonian (D2d7 Apr. 12, 2022 no. B304461) 2022 WL 1090984 (nonpub. opn.), something seemed odd about it. I had to read it again to be sure: it is definitely odd.

In this commercial lease dispute, there is an appeal of an anti-SLAPP order against the tenant. The tenant claims on appeal that there was at least minimal merit for its interpretation of the estoppel certificates. But there was a subsequent judgment in a UD action that ultimately rejected tenant’s interpretation.

So you can guess what the landlord did next: The landlord moved to dismiss the appeal as barred by res judicata based on the UD judgment. And the Court of Appeal agreed. “Because these issues were fully litigated in the unlawful detainer actions, appellants are barred from relitigating these issues.”

Now here is the odd part. The Court of Appeal has granted the landlord’s motion to dismiss the appeal. So that means what happens next is the appeal is dismissed and the anti-SLAPP order is affirmed, right?

But that’s not what happened. The court did not want to affirm the judgment. So it did not dismiss the appeal. The court reversed the SLAPP order and the fee order. In other words: The respondent landlord loses.

How did this happen? In the post, I explain why I think the landlord’s mootness argument was technically wrong: the tenant’s appeal was not moot, but its case was. Also, the court apparently did not want landlord getting its fees against tenant in two cases. One was enough.

Still, this was a really weird way for the court to go about it.

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Motion to Dismiss Appeal Denied? Give It Another Shot in the Merits Briefing

I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief?

The answer is: You may re-argue your motion to dismiss in your respondent's brief. And, as was the case in Casey v. Sacramento Public Law Library (D3 Jul. 12, 2021) no. C089936 (nonpub. opn.), the court may re-deny your motion.

But even though you may raise your motion to dismiss again in your merits briefing, should you? Or will you just annoy the court? You might consider having an appellate attorney review your motion first.

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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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