Opinion
A131441
02-07-2012
CITY OF EUREKA et al., Plaintiffs and Respondents, v. FLOYD SQUIRES et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. DR110040)
I. INTRODUCTION
Plaintiffs and respondents City of Eureka and the People of the State of California (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 trial court appointed a provisional 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[.]"
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).
The record in this appeal does not disclose whether the provisional receivership went into effect during the pendency of the appeal.
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). 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.
We conclude in part III.A below that it is appropriate to take judicial notice of the October 24 Order.
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 as well as the need for this appeal." (Italics added.)
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." 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]."
This court took the request for judicial notice of the September 28 ruling under submission, to "be decided with the merits of the appeal." Subsequently, at this court's invitation, the parties submitted supplemental letter briefs addressing whether this court should take judicial notice of the October 24 Order, and whether this appeal should be dismissed as moot.
City attached to its letter brief a copy of a purported news release relating to one of Squires' properties. City has not requested that this court take judicial notice of this document (which is not in the record for this appeal), and has suggested no basis for this court to do so. We therefore will not consider it.
This court has authority to take judicial notice of the October 24 Order and the accompanying September 28 ruling. 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 Giannuzzi v. State of California (1993) 17 Cal.App.4th 462, 464, fn. 2 [appellate court took judicial notice of superior court judgment entered during pendency of appeal].)
In their papers filed in this appeal, neither party has provided a copy of the October 24 Order. We will take judicial notice of the copy attached to City's writ petition in appeal No. A133587.
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. (Eye Dog Foundation v. State Bd. of Guide 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 "will immediately put the receiver back in place on a limited basis as to all 26 of [Squires'] properties" (Italics 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; Mailhes v. Investors' Syndicate, supra, 220 Cal. at p. 737.)
Finally, citing Estate of Joslyn (1967) 256 Cal.App.2d 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.
In light of our dismissal on mootness grounds, we deny as moot City's April 1, 2011, motion to dismiss the appeal on other grounds (which this court took under submission to decide with the merits of the appeal).
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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.
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Haerle, J.
We concur:
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Kline, P.J.
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Richman, J.