City of
Filed 2/7/12 City of Eureka v. Squires CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
CITY OF
EUREKA et al.,
Plaintiffs and Respondents,
v.
FLOYD
SQUIRES et al.,
Defendants and Appellants.
A131441
(Humboldt
County
Super. Ct.
No. DR110040)
INTRODUCTION
Plaintiffs and
respondents City of Eureka and the People of the State of
(collectively, City) filed suit to abate alleged nuisances and other
substandard conditions at 26 properties owned by defendants and appellants
Floyd Squires, Floyd E. Squires, Floyd E. Squires III, Betty J. Squires, FB
Squires Family Trust, and Betty J’s Building, Inc. (collectively,
Squires). After the
receiver for the properties, Squires filed this appeal. We offered the parties the opportunity to
submit supplemental letter briefs addressing (1) whether this court should
take judicial notice of a subsequent trial court order appointing a receiver as
to six of the properties, but declining to appoint one as to the other 20
properties, and (2) whether this appeal should be dismissed as moot. After considering the parties’ supplemental
letter briefs, we take judicial notice
of the trial court’s subsequent receivership order and dismiss this appeal as
moot. We also deny as moot a motion by
City to dismiss this appeal on other grounds.
II. FACTUAL AND
PROCEDURAL BACKGROUND
A. The March 10 Orders Appointing a
Provisional Receiver
City filed the
underlying complaint against Squires in January 2011, alleging numerous
substandard and unsafe conditions at 26 of Squires’ properties. City also filed motion papers seeking
(1) the emergency appointment of a receiver for the properties and a
temporary restraining order, and (2) an order to show cause regarding the
issuance of a preliminary injunction and the appointment of a receiver. City proposed the appointment of Mark Adams
as the receiver. On February 3, 2011,
the trial court denied the ex parte application for a temporary restraining
order and for the immediate appointment of a receiver. The court scheduled a hearing on the “Order
to Show Cause Re: Appointment of a Receiver and Issuance of a Preliminary
Injunction[.]â€
After the court
had conducted (over several days) a portion of the hearings on City’s request
for appointment of a receiver and issuance of a preliminary injunction, City
filed a “Renewed Motion for Provisional Appointment of Receiver and Request for
Stay of Trial Proceedings†(renewed motion).
In the renewed motion, City again sought the appointment of Adams as the
temporary receiver. City stated that
“[a] provisional receiver is sought solely to allow for the obtaining of
information useful to the Court for its determination on the issue of the
potential permanent appointment of a receiver,†including inspecting the
properties and informing the court of any violations. City argued that such “an independent third
party neutral evaluation of the properties†would be beneficial to the parties
and the court. At oral argument on the
renewed motion, City’s counsel emphasized that the renewed motion did not seek
the permanent appointment of a receiver or the issuance of a preliminary
injunction, but only an “interim,†“provisional,†and “limited†remedy.
On March 10, 2011,
the trial court entered two orders (the March 10 Orders) that together
appointed Adams as the provisional receiver for the 26 properties identified in
City’s complaint. In the March 10
Orders, the trial court found that, in light of the parties’ disputes as to the
existence and severity of violations at the properties, “an order appointing a
receiver, on a provisional basis, is a necessary measure for the Court to
evaluate†the alleged violations. The
court specified the provisional receiver’s powers, including the authority to
investigate the alleged violations and to submit a report within 30 days of
appointment. The court enjoined Squires
from interfering with the receiver in the performance of his duties, and from
encumbering or transferring any of the properties covered by the provisional
receivership. In the March 10 Orders,
the court did not expressly specify a date on which the provisional receivership
would terminate.
On March 11, 2011,
Squires filed a notice of appeal (see Code Civ. Proc., § 904.1,
subds. (a)(6)-(7)), initiating the present appeal of the March 10 Orders
(No. A131441).
title="">[1]
B. The October 24 Order Appointing a
Receiver
On October 24,
2011, after completing the hearings on the “Order to Show Cause regarding
Appointment of a Receiver and/or Preliminary Injunctive Relief,†the trial
court issued an Order Appointing Receiver and Granting Preliminary Injunction
(October 24 Order).
title="">[2] In the October 24 Order, the court found that
six of the properties identified in the complaint (the receivership properties)
“are being maintained by [Squires] in conditions which constitute a substantial
endangerment to residents and members of the general public, due to lack of
egress, light, ventilation and/or general dilapidation[.]†The court found that, as to the receivership
properties, City was likely to prevail on the merits of its claims at
trial. The court also found that, as to
the receivership properties, the interim harm likely to be suffered by City,
residents and members of the general public in the absence of a receivership
and a preliminary injunction outweighed “the harm [Squires] will suffer if an
interim receiver is appointed and a preliminary injunction is issued.†As to the remaining properties identified in
the complaint, the court stated it “did
not find based on the evidence presented and pending a hearing on the Petition
for Permanent Injunction, that there was sufficient evidence to appoint an
interim receiver or issue a preliminary injunction[.]†(Italics added.) The court therefore appointed Adams as
receiver for the six receivership properties.
The court preliminarily enjoined Squires from interfering with the
receiver in the operation of the receivership properties, encumbering or
transferring the receivership properties, and collecting rents for those
properties.
Squires appealed
the October 24 Order (No. A134002). That
appeal is pending in this court. City
filed a related petition for extraordinary
writ relief (No. A133587), which this court denied.
III. DISCUSSION
A. Judicial Notice
On October 24,
2011, Squires filed a request for judicial notice of a September 28, 2011,
trial court ruling on the receivership issue (September 28 ruling) that
preceded the court’s formal October 24 Order.
Squires argued that the September 28 ruling (granting relief only as to
six properties) was relevant because it showed Squires had valid defenses as to
the other properties. Squires also
stated the September 28 ruling “invalidates a great deal of [City’s] arguments
City filed an
opposition, contending judicial notice of the September 28 ruling was
inappropriate because it was not the court’s final order. City stated that, if this court were to take
judicial notice of trial court actions after the March 10 Orders, it should
notice the October 24 Order rather than the September 28 ruling. City also argued, however, that it was not
necessary or appropriate to take judicial notice of either document, because
“the legal issues in the order are separate and distinct from the issues to be
considered by this Court on this appeal.â€
City stated it was requesting this court “to deny [Squires’ request for
judicial notice of the September 28 ruling], or in the alternative, to take
judicial notice of [the October 24 Order].â€
This court took
the request for judicial notice of the September 28 ruling under submission, to
“be decided with the merits of the appeal.â€
Subsequently, at this court’s invitation, the parties submitted
whether this court should take judicial notice of the October 24 Order, and
whether this appeal should be dismissed as moot.
This court has
authority to take judicial notice of the October 24 Order and the accompanying
September 28 ruling.
name="_ftnref4" title="">[4] Under Evidence Code section 459, a reviewing
court may take judicial notice of any matter that is subject to permissive
judicial notice under Evidence Code section 452. (Evid. Code, § 459,
subd. (a).) The matters subject to
discretionary judicial notice include court records. (Evid. Code, § 452, subd. (d); see
Cal.App.4th 462, 464, fn. 2 [appellate court took judicial notice of superior
court judgment entered during pendency of appeal].)
Squires agrees
judicial notice is appropriate. City
contends that judicial notice is inappropriate because the trial court’s ruling
and order are not relevant in determining the merits of this appeal, i.e., the
propriety of the March 10 Orders. We
will take judicial notice of the documents because, as we discuss in part III.B
below, they are relevant to whether the appeal is moot.
B. Mootness
In its
supplemental brief, Squires (the appellant) argues that, in light of the
October 24 Order, this appeal of the March 10 Orders should be dismissed as
moot. City, although it is the
respondent, opposes dismissal and urges this court to issue a ruling on the
merits.
In general, an
appeal will be dismissed as moot when, through no fault of the respondent, an
event occurs that renders it impossible for the appellate court to grant the
appellant any effective relief. (
Dogs for the Blind (1967) 67 Cal.2d 536, 541; Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) [¶] 5:22,
p. 5-6 (rev. # 1, 2009).) When an
order appointing a receiver on an interim basis is superseded by a permanent
appointment or by a final judgment, an appeal from the interim order is
moot. (Mayo v. Mayo (1936) 8 Cal.2d 9, 10; People ex rel. Kenny v. Christ’s Church of the Golden Rule (1947)
79 Cal.App.2d 858, 862; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,
§ 177, p. 254.) Similarly, as
to injunctive relief, “[a] TRO [temporary restraining order] . . .
terminates automatically when a preliminary injunction is issued or denied.†(Landmark
Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d 525, 529.) Accordingly, the grant or denial of an
injunction normally moots an appeal from a TRO.
(O’Kane v. Irvine (1996) 47
Cal.App.4th 207, 210, fn. 4; People v.
Gordon (1951) 105 Cal.App.2d 711, 725; Mailhes
v. Investors’ Syndicate (1934) 220 Cal. 735, 737.)
City asserts,
without elaboration, that “it is not clear that the [October 24 Order] replaces
the [March 10 Orders].†We
disagree. In the March 10 Orders (issued
during the proceedings on City’s request for appointment of a receiver and for
a preliminary injunction), the court appointed a “provisional receiver†(and
issued accompanying injunctive relief) as to all 26 properties identified in
the complaint. As reflected in City’s
request for a provisional receiver and the trial court’s order appointing one,
the purpose of the provisional receivership was to assist the trial court in
evaluating the alleged violations and determining whether appointment of a
receiver was appropriate. In the October
24 Order (issued after the completion of the receivership/preliminary
injunction hearings), the trial court made its decision as to the need for an
interim receiver and a preliminary injunction pending a hearing on City’s
request for a permanent injunction. The
court appointed a receiver and granted preliminary injunctive relief as to six
properties, and expressly concluded that there was not sufficient evidence to do so for the remaining properties.
The October 24
Order thus disposes of City’s request for an interim receiver and for preliminary
injunctive relief as to all
properties identified in the complaint.
Accordingly, although the October 24 Order does not expressly state that
it supersedes the March 10 Orders, we conclude that it has that effect. The provisional receivership established by
the March 10 Orders did not continue as to either (1) the six receivership
properties, which are instead covered by the specific receivership terms in the
October 24 Order, or (2) the remaining properties, for which the trial
court concluded an interim receivership was not warranted. The appeal from the March 10 Orders is
therefore moot.
City next contends
that, even if the appeal is moot, this court should exercise its discretion to
decide the appeal. There are
“ ‘three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of
broad public interest that is likely to recur [citation]; (2) when there
may be a recurrence of the controversy between the parties [citation]; and
(3) when a material question remains for the court’s determination
[citation].’ [Citation.]†(Environmental
Charter High School v. Centinela Valley Union High School Dist. (2004) 122
Cal.App.4th 139, 144.) City contends
these exceptions apply, arguing principally that the scope of the trial court’s
authority to establish limited receivership remedies is an important question
that will continue to arise in this and future cases. In the circumstances of this case, we decline
to exercise our discretion to hear the appeal.
The trial court
has made a determination (in the October 24 Order) as to whether and to what
extent an interim receivership is now appropriate in this case, and Squires has
appealed that decision. An appellate
ruling as to the validity of the superseded March 10 Orders would not assist
the resolution of that issue, nor would it resolve the parties’ underlying
factual disputes as to ongoing conditions at Squires’ properties, which will be
the subject of further trial court proceedings. City also has not shown that the issues
raised in Squires’ appeal of the March 10 Orders are likely to recur frequently
in other cases.
City’s remaining
arguments are unpersuasive. City asserts
that an order from this court affirming the March 10 Orders “
immediately put the receiver back in place on a limited basis as to all 26 of [
and bolding in original.) City cites no authority in support of this claim and,
as noted above, the law is to the contrary.
When an order imposing a temporary receivership or granting temporary
injunctive relief is superseded by a subsequent trial court order, an appeal
from the first order is not a mechanism to reinstate that order; instead, an
appeal from the first order should be dismissed as moot. (Mayo
v. Mayo, supra, 8 Cal.2d at p. 10; People
ex rel. Kenny v. Christ’s Church of the Golden Rule, supra, 79 Cal.App.2d
at p. 862; 9 Witkin, Cal. Procedure, supra,
§ 177, p. 254; O’Kane v.
Irvine, supra, 47 Cal.App.4th at p. 210, fn. 4; People v. Gordon, supra, 105 Cal.App.2d at p. 725;
220 Cal. at p. 737.)
Finally, citing
671 (Joslyn), City contends that the
validity of actions taken by the provisional receiver pursuant to the March 10
Orders “could be at issue†if the March 10 Orders are not affirmed on
appeal. In Joslyn, the appellate court held that a probate court order
appointing a trustee was void because the statutory requirements for jurisdiction
had not been met. (Id. at pp. 676-677.)
The Joslyn court further
concluded that the appeal was not mooted by subsequent trial court orders
relating to the trusteeship, because whether the trustee was acting de jure or
de facto could affect the resolution of issues relating to its performance of
duties. (Id. at p. 677.) This
concern does not apply here. Squires
does not contend the March 10 Orders are void for lack of jurisdiction; Squires
contends only that the trial court abused its discretion and erred in
interpreting applicable statutes.
Moreover, Squires no longer seeks to pursue even those challenges, and
agrees that dismissal is appropriate.
Finally, contrary to City’s apparent concern, neither the October 24
Order nor the dismissal of this appeal establish that the March 10 Orders were
incorrect (much less void) during the period of time (if any) they were in
effect.
For the foregoing
reasons, we will dismiss the appeal as moot.
IV. DISPOSITION
The court, on its
own motion, takes judicial notice of the trial court’s October 24, 2011, Order
Appointing Receiver and Granting Preliminary Injunction. Squires’ motion for judicial notice of the
trial court’s September 28, 2011, ruling is granted.
The appeal is
dismissed as moot. City’s April 1, 2011,
motion to dismiss this appeal on other grounds is denied as moot.
The parties shall
bear their own costs on appeal.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
The record in this appeal does not disclose whether the provisional
receivership went into effect during the pendency of the appeal.
We conclude in part III.A below that it is appropriate to take judicial notice
of the October 24 Order.
