Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00107142, Robert D. Monarch, Judge (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Appeal dismissed.
Wu & Cheung, Mark H. Cheung; Roger Jon Diamond; Khiterer Law Office and Vladimir Khiterer, for Plaintiff and Appellant.
Best Best & Krieger, Scott C. Smith, Jeffrey V. Dunn and Marc S. Ehrlich for Defendant and Respondent.
OPINION
SILLS, P. J.
The City of Lake Forest revoked Julie Ho’s license to operate a massage establishment. Julie Ho then brought an action seeking a writ of mandate that would, if granted, reverse the decision. The city did not file a cross-complaint. The city did, however, in this same action, obtain a preliminary injunction restraining Ho from continuing to operate the establishment. Ho appealed, arguing, among other things, that the absence of a pleading by the city meant there was no basis for a preliminary injunction. This court granted a writ of supersedeas staying operation of the preliminary injunction. While the appeal was pending, Ho’s action came to trial, and the trial court denied Ho’s administrative mandate request. In the week before oral argument both sides then filed a written stipulation with this court to dismiss the appeal as moot. This court did not immediately accept the stipulation. Rather, we sent out an order saying that at oral argument the parties should be “prepared to provide authority for the proposition” that the trial court’s denial had, as a matter of law, “dissolved the Superior Court’s preliminary injunction.” At oral argument, however, Roger Jon Diamond, counsel for Ho, essentially retracted the stipulation: He first attempted to see if he could prompt the panel into divulging its views on the merits of the appeal, and, failing that and after some equivocation, basically stated he and his client wanted a decision on the merits.
We now accept the stipulation and dismiss the case as moot. The rule is that an intervening judgment on the merits dissolved the preliminary injunction as a matter of law. (See City of Oakland v. Superior Court (1982) 136 Cal.App.3d 565, 569 [“A preliminary injunction is a device to protect the rights of litigants pending a final determination of the merits of the action; it is but an adjunct to the action and its fate is hinged to the main action.”].) As Witkin states, “where the provisional remedy [of a preliminary injunction] is granted, and the defendant appeals, the action may be tried and decided while the appeal is pending. The preliminary injunction will then be merged in the permanent injunction or will terminate on denial of a permanent injunction. In either case, the appeal from the order granting the preliminary injunction is rendered moot and may be dismissed.” (6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 402, p. 344, italics added.)
The outstanding requests for judicial notice, going to the merits of the appeal, are likewise dismissed as moot.
To be sure, there is, as we write, no formal judgment denying Ho’s petition for administrative mandamus, only the trial court’s order. However, given that we have a stipulation to dismiss the appeal, we may logically assume that a formal judgment will soon follow in due course.
One more point, however, must be addressed. Our acceptance of the stipulation is independent of the question of whether the preliminary injunction was ever properly entered in the first place, which, after all, was the subject of this appeal. We express no opinion on the merits of that question.
However, it also follows from our acceptance of the stipulation based upon the authorities cited above that the preliminary injunction which was the subject of the appeal is now quite dead. For example, if -- as we were advised at oral argument -- Ho wishes to appeal from the (presumably soon forthcoming) judgment denying her request for a writ of mandate requiring the city to vacate its license revocation, her operation of the establishment during the pendency of the appeal will not be a violation of that preliminary injunction.
The appeal is dismissed. The writ of supersedeas is dissolved. Each side will bear its own costs on appeal.
WE CONCUR: FYBEL, J., IKOLA, J.