Legal News and Appellate Tips

After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait until the court issues its tentative opinion, it’s probably going to be too late. My plea was: not many courts do litigants the favor of issuing tentatives, so please don’t abuse it. Requesting dismissal after an unfavorable tentative risks ruining it for the rest of us.

But the court in Northgate Gonzalez, LLC v. Realm Real Estate, LLC (D4d2 Jun. 16, 2023 No. E078106) 2023 WL 4042678 (nonpub. opn.) didn’t seem to mind. The trial court entered a preliminary injunction of a development project. After two-and-a-half years on appeal, the Court of Appeal issued a tentative opinion. But before oral argument, the trial court made its injunction permanent, thus mooting the appeal. So Realm requested dismissal, and the Court of Appeal granted it.

Realm already filed a new notice of appeal from the permanent injunction. (No indication which way the Court of Appeal’s tentative went, though.)

Takeaway: If you are appealing from a preliminary injunction, consider also file a petition for a writ of mandate. Otherwise, you might go through two years of briefing only to find your appeal is moot.

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.

Trial judges issue tentative decisions, why don’t appellate justices? Justice Thompson draws from his positive experience as a trial judge enjoying improved oral arguments after issuing tentative decisions, and suggests that the Court of Appeal might enjoy the same improvement. But we might have to wait for a “changing of the guard” as younger justices take the bench before seeing a