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A Dismissed Appeal Is Not “On the Merits” If the Dismissal Was for Mootness

Tim Kowal     August 31, 2022

Ever had an appeal dismissed? It hurts. But there may be a silver lining: the underlying judgment may no longer have any preclusive value. That’s what happened in the published opinion in Parkford Owners for a Better Community v. Windeshausen (D3 Jul. 14, 2022 No. C094419) 81 Cal.App.5th 216.

In that case, a neighborhood group challenged the expansion of a storage facility on CEQA grounds. The trial court rejected the challenge, and the neighborhood group appealed. But pending the appeal, the expansion project went forward, rendering the appeal moot, leading the Court of Appeal to dismiss.

So then the neighborhood group challenged the issuance of a business license to the storage facility, this time on zoning grounds.

The storage company filed a motion for judgment on the pleadings on res judicata and preclusion grounds, arguing the issues in the new lawsuit were encompassed in the final judgment. The trial court granted the motion.

But the Court of Appeal reversed. Res judicata and claim preclusion require a final judgment. But here, the prior judgment, though challenged on appeal, was dismissed on mootness grounds. A dismissal solely on mootness grounds does not result in a final judgment “on the merits” as required to apply the doctrine of res judicata.

An appeal dismissed on mootness grounds does not result in a “final judgment” for purposes of res judicata or preclusion.

Claim preclusion requires a final judgment on the merits, while issue preclusion requires a final adjudication of an issue. (Samara v. Matar (2018) 5 Cal.5th 322, 324.) Here, the court held that an appeal challenging the trial court's conclusions, and then decided by the Court of Appeal, but decided on appeal solely on “a purely procedural or technical ground distinct from an actual determination of the merits,” does not result in a judgment on the merits for purposes of res judicata or preclusion.

The storage company raised procedural arguments against this result. It argued that, if the Court of Appeal had intended its prior dismissal to result in a judgment with no preclusive effect, then it could have reversed the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions for that court to dismiss the action. That approach “disposes of the case, not merely the proceeding that brought it to the appellate court.” (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005, 78 Cal.Rptr.2d 272, citing Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134, 41 Cal.Rptr. 468, 396 P.2d 924 (Paul) [describing limited reversal procedure].)

But the Court of Appeal did not agree that that approach was required to remove the preclusive effect of the judgment via a dismissal on mootness grounds.

The court reasoned that its holding was consistent with the Supreme Court of California decision in Samara. There, the Court held that, for purposes of the law of preclusion, “a ground reached by the trial court and properly challenged on appeal, but not embraced by the appellate court's decision, should not affect the judgment's preclusive effect.” (Samara, supra, 5 Cal.5th at p. 334.) Instead, the preclusive effect of the judgment should be evaluated as though the trial court had not reached the issue that the appellate court did not reach. (Id. at pp. 326, 334, 338.)

(In a footnote, the court reminds that Samara did not decide what would happen to issues the trial court decided by that the appellant did not raise on appeal. Can the appellant excise the preclusive effect of a judgment by strategically not raising them on appeal? “We caution ... that we take no position on the significance of an independently sufficient alternative ground reached by the trial court and not challenged on appeal.” (Samara, supra, 5 Cal.5th at p. 337, 234 Cal.Rptr.3d 446, 419 P.3d 924.))

There is no need to request a statement of decision at a law-and-motion hearing.

The storage company argued that the neighborhood group forfeited its appellate arguments by failing to request a statement of decision or challenge the trial court's tentative ruling on the motion for judgment on the pleadings. Recall that, under California Rules of Court rule 3.1590, a statement of decision must be requested within 10 days of the trial court’s tentative decision.

But don’t be misled: rule 3.1590 refers to a tentative after a bench trial. Here, the court analyzes a tentative ruling on a motion differently: A party's “[s]ubmission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis.” (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406, 138 Cal.Rptr.3d 464.)

“We find no merit in real parties’ suggestion that a party must object to a tentative ruling and reiterate every rejected argument in order to preserve those arguments on appeal. (See Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1179-1180, 238 Cal.Rptr.3d 737 [finding no such requirement with regard to a statement of decision].) Further, we find real parties’ reliance on Old East Davis Neighborhood Assn. v. City of Davis (2021) 73 Cal.App.5th 895, 288 Cal.Rptr.3d 573 and Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 69 Cal.Rptr.3d 105, misplaced. Both of those cases are clearly distinguishable. (See Old East Davis, at pp. 911-912, 288 Cal.Rptr.3d 573 [failure to request a ruling on contentions the trial court expressly declined to reach in tentative ruling results in forfeiture of contentions on appeal]; Porterville, at pp. 911-912, 69 Cal.Rptr.3d 105 [failure to object to tentative ruling or otherwise alert trial court of its failure to expressly rule on an issue results in forfeiture of issue on appeal].)”


I am not sure about this holding. When the trial court entered the judgment here, it had preclusive effect. Had the appellant not appealed, it would have retained its preclusive effect. But the court held that merely taking a notice of appeal, but then failing to get a decision before the corpus of the appeal was destroyed (thus rendering the appeal moot), had the result of eliminating the preclusive effect of the judgment. So the appellant gets a free do-over.

Could an appellant get the same result via a dismissal on other technical or procedural grounds other than mootness? What if the appellant files the notice of appeal, but then fails to pay the filing fee? Or fails to designate the record?

I find this outcome so confusing that I wonder that I may be missing something.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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