Kowal Law Group Logo
legal complications

Move-Out Order Held Automatically Stayed on Appeal, But Sale Order Required a Bond, And Stipulation Mooted Appeal

Tim Kowal     October 19, 2021

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different order, then the appeals of both of those orders are moot.

That is the thumbnail of Tearse v. Tearse (D1d4 Sep. 22, 2021) 2021 WL 4304761 (no. A158582) (nonpub. opn.). The really unusual thing about this case is how the court treated the respondent's argument that the appeal was moot. The court agreed, but was also concerned that it would operate to affirm a trial court's order that was void because entered after an automatic stay. So the court reversed that order as moot. That, surely, is not how the respondent expected his mootness argument would be taken. Be cautious with mootness arguments.

The Tearse case has been a long and litigious affair. After the marital-property division trial here following five prior appeals, the court awarded the marital home to the respondent husband, conditioned on making an equalization payment within 60 days, or else sell the property. Upon receipt of the payment, the appellant wife was ordered to move out. The wife appealed.

After the appeal, the respondent moved for a different order. The respondent argued he couldn't get refinancing with the house the way it was, and wanted the wife to move out so he could make repairs. The court issued a writ of possession. The court denied the wife's ex parte application for a stay. The wife appealed that possession order as well.

Finally, the wife and husband entered into a stipulation extending her move-out date. The stipulation was entered as an order.

So now there are three orders. The Court of Appeal took them up in turn.

The Move-Out Order Is a Mandatory Injunction That Is Automatically Stayed on Appeal:

The appellant argued a move-out order is a mandatory injunction, and mandatory injunctions are automatically stayed on appeal. She is right about that. “[C]ommanding [a party] to vacate the family home ... is in the nature of a mandatory injunction” and “[i]n the absence of a statutory provision to the contrary, the enforcement of a mandatory injunction is stayed by the perfection of an appeal ....” (Smith v. Smith (1941) 18 Cal.2d 462, 465.) This is also supported under Code of Civil Procedure section 916, subdivision (a), which provides as follows: “Except as provided in Sections 917.1 to 917.9 ... the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.”

So the move-out order was automatically stayed.

But the Order to Sell Real Property Is Stayed on Appeal Only Upon Posting a Bond:

But the analysis went the other way when the court moved to the part of the order requiring the sale of the residence. There is a statutory exception under Code of Civil Procedure section 917.4. Section 917.4 applies to orders to sell or transfer real property, and in such cases, the appellant must post a bond to secure against waste. The statute provides “[t]he perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given ....” (Code Civ. Proc., § 917.4.)

Here, the appellant did not seek an order setting the amount of a bond, and did not post a bond. So the sale order was not stayed.

The Stipulated Order Mooted the Appeal of the Prior Orders:

During the pendency of the appeal, the appellant stipulated to extend the move-out date, and then in fact vacated the property and turned possession over to the respondent. This mooted the appeal.

“It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed.” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557.) “A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.)

But wait. The Court of Appeal has already held that the move-out order was automatically stayed. That means the court's subsequent orders were void. Once a stay under Code of Civil Procedure section 916, subdivision (a) goes into effect, any later order issued by the trial court is void because it has been “divested of power to act on matters ‘embraced in’ or ‘affected by’ the appealed judgment or order.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 7:2.) If an appeal of such an order is dismissed by an appellate court (through a finding of mootness, for instance), the dismissal would act as an affirmation of a void order. (Id., ¶ 5:48.)

That means, the appellant went on, that if the court were to dismiss the appeal as moot, it would in effect ratify a void order. That can't be right.

The appellant has a point, the court conceded, that "there is a potential problem here" with leaving void order standing. "But that is why we paused at the outset to point out the applicability of a statutory exception to the general rule under Code of Civil Procedure section 917.4. To the extent [the appellant's] concern is that an implied affirmance on the merits of a validly entered order might somehow prejudice her going forward, we will make clear in our disposition that we are reversing the trial court's possession-related orders as moot because they have been superseded by the stipulated findings and order.... (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134–135; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 942–947.)"

Comment: Note the unusual application of the mootness doctrine here. Typically, the subsequent events render the appeal moot. Here, the court held that the subsequent events rendered the appealed-from order moot. Surely this is not quite the outcome the respondent sought when raising the mootness argument. While the appealed-from order had been replaced by the stipulated order, the appealed-from order had been based on factual and legal findings by the trial court, and the Court of Appeal opinion here vacated them by reversing the order as moot. So to the extent the respondent might later seek to modify the stipulated order, his negotiating position has been materially affected by the appellate court's opinion here.

Mootness is a slippery doctrine. Sometimes it works. Sometimes it does not work. And sometimes, like here, it works the opposite of how you'd expect.

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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers."

— H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram