Legal News and Appellate Tips

Before oral argument in the cannabis-cultivator eviction case of 65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC (D4d2 May 5, 2023 No. E076654) --- Cal.Rptr.3d --- (2023) 2023 WL 3268852, the court issued a tentative opinion—partially certified for publication—against the tenant Coastal Harvest. Rather than have to face this unfavorable precedent in future cases, Coastal Harvest moved to dismiss the appeal.

But the court denied the motion. “Appellate courts are disinclined to grant such an “11th hour” request to dismiss an appeal,” the court said. This is especially the case when dismissal for strategic purposes, as seemed to be the case here: “And, appellate courts are generally loath to dismiss an appeal when it appears the dismissal is calculated to derail the creation of unfavorable precedent.”

What was the unfavorable precedent the cannabis-cultivator wanted so badly to avoid? Coastal Harvest argued that a statutory presumption of a one-year lease term applied to agricultural uses. (Civ. Code, §1943; Code Civ. Proc., §1161, subd. (2).) The trial court ruled that the cannabis-cultivation here was not agricultural.

Turns out, the Court of Appeal did not even reach this issue. Still, it appears that Coastal Harvest did not want a published opinion that suggested that “growing cannabis in moveable pots within a wooden floor warehouse was not “agricultural use” because Coastal Harvest was not “cultivating the ground.””

The Upshot:

The time to consider the potential risk of an unfavorable published appellate opinion is before the appellate record is filed. Once the record has been filed, “[a]n appellant may not dismiss an appeal as a matter of right, and we have discretion not to dismiss the appeal.” (Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. (2019) 33 Cal.App.5th 719, 728, fn. 10; see Cal. Rules of Court, rule 8.244(c)(2).) Use the time early in the appeal to carefully consider these risks.

Comment:

Many appellate practitioners, this writer included, support the appellate courts’ issuing tentative opinions. But when litigants use them to file strategic motions to dismiss as here, courts may second-guess the practice. Litigants should take care not to abuse tentative opinions—it risks spoiling it for the rest of us.

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.

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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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 […]