An appeal becomes moot when something happens so that nothing the Court of Appeal might do about the judgment will help. Like when a challenged law is repealed, or when a disputed real property is sold. When the appeal is moot, the appeal is dismissed.
Except every so often, when mootness means the appeal results in summary reversal. That is what happened in People v. Pickens (D2d7 Nov. 9, 2023 No. B320704) [nonpub. opn.]. The trial court ordered the defendant committed to a mental institution, so the defendant appealed. But during the appeal, the trial court ordered a diversion—that is, a postponement of prosecution to allow the defendant to undergo mental health treatment.
The diversion meant that the appeal of the commitment order was moot. That’s because, even if the trial court terminated the diversion and reinstated the proceedings, the court would have to conduct the determination of mental competency all over again. So the previous order was moot and ineffective, regardless of anything the Court of Appeal might do. So the court could not reach the merits of the moot order.
But the court reversed it anyway. The appellant correctly argued that it would be unfair to dismiss her appeal as moot because it would serve as an affirmance of the underlying commitment order. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 [because dismissal of an appeal "'is in effect an affirmance of the judgment or order appealed from,'" in some circumstances the appropriate remedy is to reverse the judgment instead of dismissing the appeal]; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 945, 947 [directing superior court to dismiss underlying action to avoid affirmance that would legitimize moot project].)
“Because our dismissal would constitute an affirmance of the commitment order, which we have not addressed on the merits, we reverse the order with directions for the trial court to vacate the order as moot.”
Always carefully consider what remedy makes sense for your appeal. If a mootness issue arises, most often the result will be dismissal. But every so often the right result—even in a moot appeal—is to reverse. (I argued Paul v. Milk Depots in one of my appeals of a collateral order (concerning ability to hire counsel) that became moot when the client passed away. The appeal had become moot, and I argued what the appellant argued here: dismissal would constitute affirmance of an order that had not been addressed on the merits. But the Second District, Division 5, summarily dismissed.)
