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Waiver of Right to Appeal

A Second Restraining Order Made Appeal of Earlier Restraining Order Moot

Tim Kowal     March 29, 2022

The appellant in Singh v. Bains (D5 Mar. 10, 2022 no. F082506) 2022 WL 714679 (nonpub. opn.) was in pro per, so don’t read too much into this, but something does not sit right about this memorandum opinion. (A memorandum opinion is a more abbreviated form of opinion when a cause raises “no substantial issues of law or fact.” Cal. Standards of Jud. Admin. 8.1.)

The trial court entered a civil harassment restraining order against Bains. Bains appealed the restraining order. But sometime later (the opinion doesn’t say when), the trial court entered another restraining order against Bains. The second restraining order, the Court of Appeal tells us, contains “no material difference” from the first. Exact same terms. They even expire on the exact same date. (You might be wondering: what, exactly, was the point of the second order, then?)

Noting that Bains did not appeal the second restraining order, the court denied the appeal from the first restraining order as moot: “If we reversed the challenged CHRO, defendant would still be subject to the second CHRO. Therefore, this appeal is moot and should be dismissed.”

As I said, this was an in pro per litigant, and he made some procedural missteps. Specifically, he did not respond to the respondent’s request for judicial notice attaching the second restraining order. He did not even file a reply brief. So he made no rebuttal to the mootness argument.

But here is why the court’s opinion does not sit right with me: Why is the trial court entering duplicate identical restraining orders? What was the point of a second, identical restraining order, other than to spring a procedural trap on the appellant on appeal? And doesn’t the appellate stay under Code of Civil Procedure section 916 render the second identical order void?

And while the court noted the appellant did not file a reply brief, the Court of Appeal had not ruled on the request for judicial notice by the time the reply brief was due. And the court did not hold oral argument, which is normally of right. So the rationale is a little thin that is based on the appellant’s failure to respond.

One more thing: Mootness is almost entirely in the eye of the beholder. Many appeals that seem to me entirely moot nonetheless get a pass from the Court of Appeal. So treating the mootness question here as “raising no substantial issues” struck me as rather doubtful.

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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