Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 10-16804.
RICHMAN, J.
California Fish and Game Code section 13100 provides for a county to establish a “county fish and wildlife propagation fund [to be] expended for the protection, conservation, propagation, and preservation of fish and wildlife, under the direction of the board of supervisors.” To implement distributions from the fund, the Mendocino County Board of Supervisors (Board) established the Mendocino County Fish & Game Commission (Commission), whose responsibilities included to “recommend to the Board... expenditures from the” fund.
Several applicants filed proposals in connection with the 2010 distributions, among whom was Rodney Jones, a Mendocino attorney, who sought funds for himself personally and on behalf of Mendocino Abalone Watch (MAW). The Commission did not recommend funds for Mr. Jones or MAW, and the Board followed the Commission’s recommendations, awarding funds to other applicants.
Represented by Mr. Jones, Residents Against Illegal Disbursements (RAID), a theretofore unidentified “grass roots” organization, filed a complaint against the Board, alleging six causes of action, including one for mandate. The trial court denied RAID’s motion for preliminary injunction, a ruling RAID appealed, which appeal it then requested we stay, which we did. The case then proceeded to court trial, where the court ruled against RAID on all causes of action—a ruling from which RAID did not file a notice of appeal. We affirm.
BACKGROUND
The General Statutory Scheme
Section 13100 of the State Fish and Game Code provides as follows: “The amounts paid to and retained in the county treasury pursuant to Sections 12009 and 13003 shall be deposited in a county fish and wildlife propagation fund and expended for the protection, conservation, propagation, and preservation of fish and wildlife, under the direction of the board of supervisors, pursuant to this chapter.”
Fish and Game Code section 13103 guides how expenditures from the fish and game propagation funds are to be made, setting forth 13 criteria as possible factors to evaluate.
In 1992 the Board established the Commission (Mendocino County Code (Code), § 2.50.10), whose responsibilities are expressly set forth in the Code, as follows: “The primary responsibility of the Commission is to advise the Board on fish, game and wildlife matters when those matters are referred to them. The Commission is further charged with keeping informed and from time to time reporting to the Board on the status of fish, game and wildlife in the County and to identify threats to their continued health and well-being. The Commission shall recommend to the Board of Supervisors expenditures from the Fish and Wildlife Propagation Fund. The Commission is also authorized to undertake the management of projects previously approved by the Board of Supervisors subject to ongoing oversight and project monitoring by the County Administrative Officer or that officer’s designee.” (Code, § 2.50.020.) The Commission consists of seven members who serve at the pleasure of the Board (Code, § 2.50.030), and it meets regularly, every two months. (Code, § 2.50.040.)
Of significance here, the Commission is not authorized to itself make any awards from the fund, but only recommendations to the Board. Also significantly, there are no specified standards governing such recommendations.
For the first years of its existence the Commission had no specific procedure for the submission or review of fund applicants. In 1997, Commission Chairman Craig Bell instituted a procedure whereby the Commission would solicit applications for projects once a year, review them, and make its recommendations to the Board. This was, Chairman Bell declared, a significant improvement over the previous approach, and produced a record “the County [could] be proud of in funding a wide variety of beneficial projects around the County and multiplying available funds with proponents matching efforts.”
The 2010 Funding Requests and Awards
By October 2009 the Commission had distributed the application materials for the 2009-2010 fish and game grant cycle. There was significant interest, and by its December 8, 2009 meeting the Commission had received requests on behalf of 10 projects. Written presentations were made in connection with most of the requests including, as pertinent here, by Rodney Jones, who had submitted two proposals: one proposal was on his own behalf, seeking $5,000 to “Enhance Warden Field Communication”; the other was on behalf of MAW, seeking $5,000 to “stem abalone poaching.” Mr. Jones’s proposals totaled some 40 pages.
According to Mr. Jones’s submission papers, he was a criminal defense attorney who had moved to Mendocino County in 1988. Over the years he developed an interest in the environment and environmental laws, and was instrumental in forming MAW in August 2009.
At its February 9, 2010 meeting, the Commission voted on the projects it would recommend, approving several of the ten projects earlier submitted as well as two additional projects that had been added. The recommendations were to be considered by the Board at its March 16, 2010 meeting. Neither Mr. Jones nor MAW was among those recommended, the Commission choosing instead to recommend funding to the Department of Fish and Game for the purchase of equipment to enhance the capture of abalone poachers.
On March 5, 2010, Mr. Jones sent to the Board vigorous correspondence which objected to the Commission procedures and also to various of the recommendations, including funding to support certain litigation.
The Commission presented its recommendations to the Board on March 16, 2010, at a properly-noticed public hearing. The Board heard extensive public comment, including from several commissioners, county residents, and State Fish & Game warden Dan Powers, all of whom spoke in favor of the recommendations. Mr. Jones spoke against some of the recommendations. The Board minutes record that, following all of the above, the Board agreed and approved most of the Commission’s recommendations, but not without some changes. In sum, the Board considered the Commission’s recommendations, amended two of them, voted separately on a third, and voted to award funds to the recommended applicants.
The next day, March 17, on MAW letterhead, Mr. Jones wrote to Mendocino County Counsel, seeking documents pursuant to the Public Records Act (Govt. Code, § 6250 et seq.) relating to the Commission’s “RFP process” (Request for Proposal) for grant funding. His request sought three categories of documents: (1) those pertaining to the ranking system or checklist used for the 2009/2010 funding cycle; (2) “complete files” of each of the projects listed in the Board packet funding, including “hand written notes, emails or correspondence” between and among the commissioners “at/during any commission meetings”; and (3) a complete set of minutes for commission meetings since January 1, 2009, including any handwritten notes.
Two days later, on March 19, the county counsel’s office responded, informing Mr. Jones that it would produce responsive documents as soon as they were obtained from the Commission secretary (who, it was represented, did not work on county premises). According to a declaration from Deputy County Counsel Nancy Gross all responsive documents in the secretary’s possession were made available to Mr. Jones on March 29.
Mr. Jones objected to the response on several bases, claiming that certain things were not provided, including “agenda packets, ” the December 2008 minutes, and grantee reports; he also claimed that certain meeting minutes were missing. County counsel’s office informed Mr. Jones that because the Commission met every two months, there were no minutes for certain months, and that one meeting had been cancelled for lack of a quorum. The office also agreed to provide Mr. Jones with the agenda packets, which had not been referenced in his original request. In the sworn declaration testimony of Ms. Gross, on “April 6, 2010 a complete set of agenda items and meeting minutes were again sent to Mr. Jones, completing the production of public records responsive to his request.”
The Legal Proceedings Below
Meanwhile, and despite the fact that Mr. Jones was still communicating with county counsel’s office in connection with the records, on March 22, 2010, he filed a verified complaint against the Board, on behalf of a plaintiff entity theretofore unidentified: “Residents Against Illegal Disbursements (R.A.I.D.).” R.A.I.D. was described as “an unincorporated grassroots association comprised of the individual residents of the county, including members of Mendocino Abalone Watch, who seek wish [sic] to protect the fiscal integrity of County government and halt distribution of public moneys for activities that do not legally qualify for funding.” The complaint was styled “for Declaratory and Injunctive Relief & Petition for Writ of Prohibition/ Mandamus” and, following three paragraphs of alleged “Relevant Facts, ” alleged six causes of action, labeled as follows: (1) violations of Fish & Game and Government Codes; (2) taxpayer action; (3) due process violations; (4) civil conspiracy; (5) writ of mandate; and (6) declaratory and injunctive relief.
The prayer of the complaint read in its entirety as follows: “Plaintiff requests that this Court: [¶] “1. Issue a temporary restraining order requiring defendant not disburse funds to the specified projects and issue an order to show cause for hearing on a preliminary injunction; [¶] “2. Issue a permanent injunction thereafter restraining disbursement of such funds prohibiting [sic]; [¶] “3. Issue a declaratory judgment determining the obligations of defendant with regard to its manner of future disbursements of such moneys; [¶] “4. Award petitioner attorneys fees and costs. [¶] “5. Order such other and further relief as may be appropriate.” Interestingly, despite the claims that the Brown Act and Public Records Act were (or were being) violated, no specific prayer referred to either claim.
On April 5, RAID filed a motion for preliminary injunction, set for hearing on April 16 before the Honorable John Behnke. The motion was accompanied by a 10-page memorandum of points and authorities, and a declaration of Mr. Jones to which were attached 10 exhibits which, he represented, were “obtained during [his] inspection of the records of the Commission” and contained information he obtained “on-line” as to the “background of the Marine Life Protection Act.”
On April 12, RAID moved ex parte for a temporary restraining order. (TRO) before Judge Behnke, who denied it in a written order which expressly provided that the matter would be set for hearing on a preliminary injunction on April 16.
On April 13, the Board filed its opposition to the motion for preliminary injunction. The opposition included three declarations, those of: Ms. Gross, which authenticated seven exhibits; Craig Bell, the long-time chairman of the Commission; and Dr. Jeanine Pfeiffer, the Marine Life Protection Act Program Outreach Facilitator for Mendocino County.
The motion for preliminary injunction came on for hearing on April 16 before Judge Behnke, who had not only been involved in the matter days earlier at the TRO hearing, but had thoroughly reviewed the extensive papers from the parties, as evidenced by his remarks as the hearing began:
“THE COURT: I’m satisfied that the parties have expressed their points fairly thoroughly in writing. I’m also satisfied that White v. Davis, the California Supreme Court case at 30 Cal.4th 528, probably sets forth the standards that the Court is supposed to apply. [¶] I really want to thank whoever it was that lodged the... Mr. Jones, you lodged it... Volunteers With a Vision.
“MR. JONES: Yes.
“THE COURT: You know, although I have to do a lot of reading with the requirements of this job, I really enjoyed reading that brochure.”
Volunteers With a Vision is a 225-page publication dealing with the funding of environmental projects in Mendocino County, which had been submitted by Mr. Jones as an exhibit. It is before us here, and we have reviewed it.
Following lengthy argument, Judge Behnke ruled from the bench, denying the preliminary injunction.
On April 19, 2010, RAID filed a notice of appeal, checking the box that the appeal was from “an order of judgment under Code of Civil Procedure section 904.1(a)(3) (13).” The order itself is not in the record.
Code of Civil Procedure section 904.1, subdivision (a)(6) provides that an order “refusing to grant... an injunction” is appealable.
Also on April 19, RAID filed in this court what it called “Petition for Writ of Supersedeas and for Mandamus—Emergency Stay Requested.” RAID’s papers were incomplete, however, which resulted in our order of April 22, which provided in pertinent part as follows:
“Petitioner has filed a document entitled ‘petition for writ of supersedeas and/or mandamus’ with an ‘emergency stay requested’ challenging grants award[ed] by real party in interest, the Mendocino County Board of Supervisors. Petitioner previously filed a notice of appeal from the trial court’s denial of his request for injunctive relief and ‘petition for writ of prohibition/mandamus.’ Thus, it is proper to ask this court to forestall the grant disbursement through a request for a stay, not supersedeas. (See Eisenberg et al. Civil Appeals and Writs, § 7:274, p. 7-56.) [¶] When seeking a stay in a reviewing court, the California Rules of Court, rule 8.112(a)(4)(B)(iii), requires the filing of either the reporter’s transcript ‘or, if a transcript is unavailable, a declaration fairly summarizing the proceedings, including the parties arguments and any statement by the court supporting its ruling.’ Here, petitioner filed neither. Nor did petitioner include the legal authorities filed below in support of the temporary restraining order, which set forth the legal arguments for both that request and the request for the preliminary injunction. Given the failure to include these necessary documents, the petition is denied without prejudice.”
On April 26, Mr. Jones filed a “Declaration... re Injunction Hearing and Request for Further Consideration of the Petition.”
Meanwhile, the county disbursed the funds as approved by the Board.
On May 10, RAID filed in this court a request to stay appeal and order for abeyance. On June 21, we granted RAID’s request, staying the appeal for 90 days, with leave to seek a further stay. When the trial date was continued, RAID sought a further extension of 45 days, which we granted.
The case proceeded to trial on September 20, before the Honorable Cindee Mayfield. Mr. Jones appeared on behalf of RAID, Deputy County Counsel Gross for the Board. Prior to trial both sides had filed trial briefs. The Board had also filed a motion for judgment on the pleadings, and Judge Mayfield began the matter with argument from Ms. Gross on the Board’s motion for judgment on the pleadings. Responding, Mr. Jones conceded that the motion was well-taken as to the fourth cause of action (for civil conspiracy), but opposed the motion as to the remaining five counts. Following further argument, Judge Mayfield granted the motion as to the second and third causes of action, (taxpayer and due process, respectively), but denied it as to the first, fifth, and sixth causes of action. Then, as Judge Mayfield put it, “We’ll proceed on those causes of action.”
Judge Mayfield turned to Mr. Jones, who began with some “housekeeping matters, ” the second of which is pertinent to the record before us. As Mr. Jones described it, the second item “concerns the record submitted by counsel [for the Board], ” as to which Mr. Jones stated that, with one minor exception, he was “not objecting to anything... with respect to the request for judicial notice.” The one small exception was “paragraph eight of [counsel’s] declaration.” What followed was this:
The first housekeeping item referred to a letter that was apparently not in the record which, over county counsel’s objection, Judge Mayfield ultimately admitted.
“THE COURT: The request for judicial notice... if there’s no objection to receiving it in connection with the trial on the merits of the complaint in the petition, the court would receive and take judicial notice of items one, two, three, and five, take judicial notice of item four with the exception of paragraph eight which doesn’t appear to be relevant to the subject matter of the complaint.
“MR. JONES: With that said, your Honor, I think we’re prepared to rest on the record as it exists presently, and I’d simply like to be heard with respect to oral argument, if I may.
“THE COURT: All right.”
With that being the record, Mr. Jones proceeded for several pages with what he called a “recap” of RAID’s position, culminating with this summation: “So our position remains that those grants we think as a matter of law are improper in this case, that the Brown Act was certainly violated by the lack of any agenda when the Commission decided to review and consider additional grants and that that was not corrected by the Board of Supervisors, and finally that the Public Records Act was not complied with, still has not been complied with in this case, and that a judgment should be entered for the plaintiff in that regard as well.”
Ms. Gross then proceeded, beginning with reference to a “couple of witnesses” who would “clarify... what the facts... are.” Then, after several pages addressing the Board’s position on the “evidence before this court, ” Ms. Gross concluded as follows: “Your Honor, ... the complaint is styled as a petition, but there’s no points and authorities here. There’s no evidence, there’s no declarations... there’s absolutely no evidence whatsoever before the court that any of these decisions were an abuse of discretion. And procedurally and on an evidentiary basis... I would move for a nonsuit at this point in time. There’s simply no evidence before this Court. If the judge believes that we should go forward, I will call my witnesses.”
Judge Mayfield asked Mr. Jones if he “wish[ed] to be heard on the motion for nonsuit, ” and the following colloquy ensued:
“MR. JONES: My understanding has always been that a writ of mandate proceeding moves forward largely and almost exclusively without the appearance of any witnesses based on the administrative record. That administrative record, I believe, has been submitted, is already part of the court file and
“THE COURT: That’s true for a mandate, but it’s not necessarily true for a complaint for declaratory and injunctive relief.
“MR. JONES: I think Your Honor’s absolutely correct in that regard. But with respect specifically to what Ms. Gross was talking about, the writ of mandate, I think that that cause of action stands and can proceed based on the record. And that certainly was largely my intent today moving forward on this record because as I indicated to the court in the beginning, I think the facts behind the grants are well established by the record that was used by both the Commission and also by the Board of Supervisors in giving the grants.
“And certainly the question of compliance with... section 13103 I think can be answered by looking at that administrative record, so I certainly saw not only no purpose for witnesses but probably they would be inappropriate for that issue. Certainly with respect to compliance with either the Brown Act or Public Records Act I think if Ms. Gross feels it’s appropriate to call witnesses and the Court allows it, that’s certainly something that can be done.
“But again, I think the record pretty clearly shows by its omission that there is no agenda that’s been presented, and maybe my eyes are deceiving me. I’ve looked through it a couple three or four times at this point to find such an agenda, and I think the unexplained minutes from that meeting also are troubling.
“So I think there’s certainly, for purposes of writ of mandate question, evidence of abuse of discretion if the court finds that the grants don’t fit the parameters of state law and the local code. I’m prepared otherwise to move either direction, but I think we’re dealing with a record that is relatively coherent at this point and would allow the court to make a decision in the case.”
Ms. Gross briefly responded, following which Mr. Jones replied even more briefly. Following that, Judge Mayfield made her ruling:
“THE COURT: Thank you. The motion for nonsuit is granted. It is true that it’s the petitioner’s or the plaintiff’s burden and duty to present to the court a complete record on which they wish to have the court decide whether a writ of mandate should issue.... [A] writ of mandate really is the only proper way to challenge a decision of the Board of Supervisors which is discretionary, and it’s uncontested in this case that how to allocate these Fish and Game Code funds was a discretionary decision by the Board of Supervisors and that the Board of Supervisors relied in part on recommendations of the Fish and Game Commission which they had appointed for that purpose. [¶] However, as noted by the County in its points and authorities, the Fish and Game Commission doesn’t have any decision-making authority. They are a body that reviews and basically does the initial read-through and analysis and recommendation to the supervisors about how they should use these certain funds, but it is ultimately the Board of Supervisor’s decision....”
Judge Mayfield went on for several more pages explaining why she ruled as she did, explanations accurately captured in the distillation in RAID’s brief: Judge Mayfield ruled that “subsection (m) of Fish & Game Code section 13103 is ‘very broad’ and a ‘catchall’ that [is itself very broad and] encompasses the grants awarded and renders them legal”; that the Brown Act violation is “just a vague general allegation that something didn’t show up on the agenda”; and that there was no Public Records Act violation because the “documents that were sought were ultimately provided.” Judge Mayfield then concluded her lengthy ruling as follows:
“With regard to the sixth cause of action for declaratory and injunctive relief, given that the court is going to deny the fifth cause of action for writ of mandate finding no violation of law, no violation of the Brown Act, that the Board made a discretionary decision in the manner it was entitled to do by law and it is supported by the portion of the administrative record that was presented, namely the agenda and the minutes of the meeting, I don’t find any reason to grant either declaratory or injunctive relief in favor of Petitioners.
“There was no violation that I can find of the Public Records Act. There were letters back and forth, inspection was allowed, and documents that were sought were ultimately provided. I just don’t see it. So for that reason I’m granting your motion for nonsuit. I don’t find they’ve presented sufficient evidence on their case in chief to warrant you putting on any further defense.”
In short, RAID was unsuccessful at trial. RAID did not file a notice of appeal after that trial, an omission nowhere mentioned in its briefs (or, for that matter, the brief of the Board). With that state of affairs—the only notice of appeal in the record being from the order denying a preliminary injunction—we asked the parties for supplemental briefing, which they have provided.
DISCUSSION
The Record Contains No Order From Judge Mayfield and No Notice of Appeal From Her Ruling
RAID’s “Statement of Nature of Action” in its opening brief concludes as follows: “This is an appeal from the granting of that motion for nonsuit and order dismissing the action. A written order dismissing a complaint pursuant to Code of Civil Procedure section 581d constitutes entry of judgment and is appealable. [Citations.]” (Fn. omitted.) The footnote says this: “Because the abeyance order makes time of the essence, appellant is filing an appendix record that contains only a draft order of dismissal, as appellant has not yet received a conformed copy. An approved copy was submitted for signature to the trial court. Additionally, the reporter’s transcript contains the trial court’s oral order of dismissal and that transcript is filed as part of the appellate record.”
We do not understand the claimed urgency described in the footnote as RAID’s opening brief was filed on November 23, 2010, two months after Judge Mayfield’s ruling. Regardless, RAID’s record is hardly a model of appellate advocacy. Specifically:
On April 19, 2010, RAID filed a notice of appeal on Judicial Council Form APP 002. By this document, RAID advises that it appeals from “An order of judgment under Code of Civil Procedure section 904.1(a)(3)-(13).” Attached to the form are the minutes of the Mendocino Superior Court for April 16, 2010, showing that on that date the court (Behnke, J.) denied RAID’s request for a preliminary injunction against the Board. “[A]n order granting... or refusing to grant... an injunction” is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).)
However, and as noted, in its opening brief, RAID states that on September 20, 2010, the trial court (Mayfield, J.) held a bench trial at which it “granted [the Board’s] oral motion for nonsuit and dismissed the case.... [¶] This is an appeal from the granting of that motion for nonsuit and order dismissing the action.”
Concerned about this discrepancy, we had the clerk of this court contact the clerk of the Mendocino Superior Court, who advised us that there is no other notice of appeal, and all that the court file has for September 20, 2010, is the court’s minutes. In other words, there is no “order dismissing” RAID’s action.
“All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes” (Code Civ. Proc., § 581d), including appeals (Code Civ. Proc., § 904.1, subd. (a)(1).) “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) If an appeal is purportedly taken from an order that is not statutorily authorized, dismissal is required. (E.g., Rossi v. Caire (1922) 189 Cal. 507, 508; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 86, p. 146.)
The minutes for September 20 also establish that the trial court granted in part the County’s motion for judgment on the pleadings. However, a minute order “is not appealable if treated as an order granting a motion for judgment on the pleadings. Only a formal judgment entered pursuant to such an order may be appealed.” (Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369.)
Here, there is neither a signed, written order of dismissal, nor a judgment. RAID did not submit either with the record on appeal, and our inquiry to the clerk of the Mendocino Superior Court disclosed that neither a written order nor judgment has ever been filed. This is only the first of RAID’s problems.
California Rules of Court, rule 8.100 provides in pertinent part as follows:
“(a)(1) to appeal from a superior court judgment or an appealable order of a superior court, ... an appellant must serve and file a notice of appeal in that superior court.... [¶] (2) The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed.” The notice of appeal from an appealable order must be filed no later than 180 days after the order is either entered in the minutes or a signed order is filed. (Cal. Rules of Court, rule 8.104.) Allowance is made for a premature notice of appeal being effective even if it filed in advance of an ensuing judgment or order. (Id., rule 8.104(d).)
Filing a timely notice of appeal is a jurisdictional prerequisite to appellate review. Without a timely notice, a reviewing court has no jurisdiction. “The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; accord, Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
RAID’s April 19 notice cannot commence a valid appeal from any appealable judgment or order generated by the proceedings on September 20. No construction of RAID’s notice can be sufficiently liberal to reach what it identifies in its opening brief as the “order dismissing the action” supposedly made more than seven months later. (See Cal. Rules of Court, rule 8.104(d) [notice of appeal valid if filed “after judgment is rendered but before it is entered” or “after the superior court has announced its intended ruling but before it has rendered judgment”].)
And there is no doubt that it is the nonsuit that led to the order of dismissal which RAID wishes to have overturned. In the “Standard of Review” portion of its opening brief, RAID sets out the principles governing review of a nonsuit—nothing about review of the denial of an application for a preliminary injunction.
In sum and in short, RAID’s purported appeal from Judge Mayfield’s ruling is deficient in a most fundamental way. Likewise in other ways.
The Record on Appeal
The entire record on RAID’s claimed appeal from Judge Mayfield’s ruling is labeled “Appendix in Lieu of Clerk’s Transcript (Supplemental to Appendix Exhibits re Writ of Supersedeas).” It begins at page number 210, and contains six items: RAID’s trial brief; declaration concerning letter to Board of Supervisors; the Board’s pretrial statement; the Board’s memorandum re judgment on pleadings; the Board’s request for judicial notice; and the “Order Granting Defendant’s Non-suit [draft submitted].”
This appendix also lists in its table of contents items that were exhibits submitted in connection with RAID’s unsuccessful petition for writ of supersedeas. And as best we can tell, counsel for RAID expects those exhibits to be part of the record on this appeal, though counsel has not expressly requested this, and we are aware of no such standard procedure. Notwithstanding that, we will on our own motion take judicial notice of the exhibits filed in the supersedeas petition.
With that by way of background, we turn first to the one matter that RAID has properly put before us—RAID’s appeal from the denial of a preliminary injunction.
Judge Behnke Properly Denied the Preliminary Injunction
It is a rarely invoked principle of appellate procedure that, as this court noted, “the failure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) The only appealable judgment or order properly before us is the order denying RAID’s application for a preliminary injunction, yet RAID makes no argument as to why that order is infected with reversible error. In these circumstances, summary dismissal would seem to be warranted. Yet we are reluctant to take such precipitate action, despite RAID’s woeful record here.
The principles governing Judge Behnke’s decision below are well settled, that in deciding whether to grant a preliminary injunction he must primarily evaluate (1) the likelihood that RAID, the party seeking such relief, will ultimately prevail on the merits of the action, and (2) the balance of harm to the parties, i.e., the comparative consequences of issuing versus not issuing an injunction. (See, e.g., Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442, and cases there collected.) As Justice Sullivan put it in the leading case of Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, “the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it;...” [Citations.] In making that determination the court will consider the probability of the plaintiff’s ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. [Citations.]”
Superimposed on the above is the principle noted almost a century ago, and repeated countless times since, that “ ‘[t]o issue an injunction is the exercise of a delicate power, requiring great caution and sound discretion, and rarely, if ever, should be exercised in a doubtful case. “The right must be clear, the injury impending and threatened, so as to be averted only by the protecting preventative process of injunction.” [Citation.]’ ” (Willis v. Lauridson (1911) 161 Cal. 106, 117; accord Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 148 [reversing grant of preliminary injunction]; West v. Lind (1960) 186 Cal.App.2d 563, 565 [affirming denial of preliminary injunction]; Almaden Vineyards Corp. v. Arrerich (1937) 21 Cal.App.2d 701, 705 [same].)
Applying these principles, Judge Behnke denied the preliminary injunction, a denial we review under an abuse of discretion standard. (Nyman v. Desert Club (1952) 109 Cal.App.2d 63, 66-67.) And we could easily conclude that Judge Behnke did not abuse his discretion here.
Any Appeal Is Moot
But we can even more easily dispose of RAID’s appeal on the basis that it is moot, as Judge Mayfield went on to actually hold that RAID’s claim failed on the merits—the fundamental criterion in deciding an injunction case. A clearer case of mootness cannot be found. Likewise is RAID’s appeal moot because the act RAID sought to enjoin—a distribution of the funds—was in fact made. Given that, RAID’s appeal from the denial of the preliminary injunction is moot. (See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10-11 [appeal from order denying an injunction may be dismissed as moot if the act sought to be enjoined is performed while the appeal is pending]; accord, County of Los Angeles v. Butcher (1957) 155 Cal.App.2d 744, 746.)
Indeed, the disbursement of the monies presents RAID with a mootness problem in connection with any appeal from Judge Mayfield’s ruling.
RAID’s opening brief concludes with the observation that by its appeal, its “members seek no more than what was sought from the trial court: judicial instruction that informs respondent that it and its Commission are not conducting business lawfully. Despite the fact that all the contested monies have been disbursed and will never be recovered, [RAID] hopes that an opinion from this Court will guide respondent in its next 2010/2011 Grant Cycle, obliging it to comply with state law and its own procedural standards within the framework of a fair, non-arbitrary grant processing system. [¶] [RAID] requests a favorable opinion with respect to the Public Record Act issues, one that tells respondent to comply in a timely manner, as instructed by that Act, and to do so thoroughly at the outset rather than parlaying delayed compliance into a litigation advantage in the trial court.”
Seizing on RAID’s acknowledgment, the Board’s first argument is that the appeal is moot. Seeking to avoid the problem, RAID’s reply asserts that “well established” law holds that “public issues capable of recurring without resolution may be addressed by appellate courts.” We assume by this that RAID attempts to rely on the public interest exception to the mootness doctrine, an exception manifest in legions of cases. (See generally 9 Witkin, Cal. Procedure, supra, Appeals, § 759, pp. 828-829.)
Such exception, we conclude, does not pertain here, as there is no indication that there will be, to use RAID’s words, a “recurring” pattern of conduct; there will be no “recurring question of public importance.” (See, e.g., Butt v. State of California (1992) 4 Cal.4th 668, 677, fn. 7.) To the contrary, what happened here was sui generis, with Judge Mayfield determining that no law was violated—not the Fish & Game rules, not the Brown Act, not the Public Records Act. What happened here, happened here. And what happens in the future will be the subject for another day.
For the same reason RAID’s appeal fails under the rule that courts do not generally provide “advisory opinions.” (See Ebensteiner Co. Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178-1179; see also Giles v. Horn (2002) 100 Cal.App.4th 206, 226-228.) Essentially what RAID seeks is advice about future facts, facts that will again be sui generis, by no means shown as likely to recur in the future.
In sum, RAID’s appeal fails as a matter of procedure. Likewise as a matter of substance, as Judge Mayfield’s ruling is supported by the settled rules of appellate review.
Substantial Evidence Supports Judge Mayfield’s Ruling
RAID’s brief on appeal asserts two arguments, that the Board: (1) “abused its discretion and violated state law in disbursing Fish and Game propagation funds to five project applicants”, and (2) “violated the Public Records Act.”
The second argument in RAID’s reply brief asserts that the Board violated the Public Records Act and the Brown Act. Arguments made for the first time in a reply brief are improper. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761 & fn. 4.)
As noted above, the Board moved for a “nonsuit, ” which Judge Mayfield granted. Such a motion is not available in nonjury trials, so the motion was technically incorrect. But this does not undercut the Board’s victory. Rather, as the Board accurately notes, its motion is to be treated as a motion for judgment under Code of Civil Procedure section 631.8. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 314, fn. 23; Commonwealth Memorial, Inc. v. Telophase Society of America (1976) 63 Cal.App.3d 867, 869, fn. 1.) A leading practical treatise describes the situation this way: “Terminology not controlling: A defense motion for ‘nonsuit’ at the close of plaintiff’s case in a nonjury trial is technically incorrect. The proper motion at that stage is a motion for judgment under CCP §631.8. But the defect is one of form not substance. If the motion is granted, the judgment will be treated on appeal as a judgment under CCP §631.8 and affirmed or reversed accordingly. [Citations.]” (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2010) § 16:26, p. 16-10.1.)
We thus review the matter as an appeal from a motion for judgment, the granting of which we review under the substantial evidence standard. (Kirk Corp. v. First American Title Co. (1990) 220 Cal.App.3d 785, 806; Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 302; see generally 7 Witkin, Cal. Procedure, supra, Trial, § 435, p. 507.)
Confronted with this rule, RAID’s reply brief argues as follows: “Finally, [the Board] seeks to create controversy over the standard of review. [Citation.] But there is none; rather it stems from respondent’s confusion. [¶] [RAID] proposed that this court independently review the trial court’s ruling and apply the same standard that governed the trial court. [Citation.] Such review is appropriate because this case fundamentally involves only questions of law and not a review of conflicting evidence. Were there such evidence, then [the Board’s] substantial evidence standard would apply. But there is little controversy about what these contested grants were for (the record being complete in such regard), rendering this court’s role as largely interpretative, i.e. determining whether the grants comply with the statutory mandate of the Fish and Game Code. The application of a statute to undisputed facts is a question of law, deserving de novo or independent review. [Citation.] [¶] There are no significant evidentiary conflicts because this is a document-driven case record.”
RAID may be correct that this was a “document-driven case record.” RAID is incorrect as to how that record is reviewed here.
To begin with, there were conflicting declarations as to just what was provided to Mr. Jones, so there were two sides of “documents” on the Public Records Act issue. And Judge Mayfield agreed that the production complied with the law, a factual determination binding here.
But even if there were not any conflicts in any documents, those documents still needed to be analyzed, especially to determine what inferences to draw from them. And those inferences, Judge Mayfield concluded, favored the Board. That conclusion, too, is binding here, under the rule of conflicting inferences. As Witkin describes it, in his typically picturesque fashion: “If the evidence is without conflict, and the decision depends on inferences, is the appellate court at liberty to draw its own legitimate inferences and decide the case accordingly? Under that part of the conflicting evidence rule that may be termed the rule of conflicting inferences, the answer is no. Where different inferences may reasonably be drawn from undisputed evidence, the conclusion of the jury or trial judge must be accepted by the appellate court.” (9 Witkin, Cal. Procedure, supra, Appeal, § 376, p. 434; see generally Estate of Bristol (1943) 23 Cal.2d 221, 223.)
In light of that standard of review, RAID’s appeal fails under the rule of implied findings, which applies here because RAID did not ask for a statement of decision when Judge Mayfield granted the motion. Since the 1969 amendment to Code of Civil Procedure section 632, a party losing a motion for judgment who does not request a statement of decision is met with the rule that there are “implied findings implicit in the order granting the motion.” (Stats. 1969, c. 339, p. 713; Elzey v. Metropolitan Builders, Inc. (1971) 16 Cal.App.3d 71, 73.)
Were all that not enough, RAID’s inappropriate treatment of the record—essentially ignoring all evidence favorable to the Board—would result in any substantial evidence argument being waived. As succintly put in Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 749, RAID is “ ‘ “required to set forth in [its] brief all the material evidence on the point and not merely [its] own evidence. Unless this is done the error is deemed to be waived” ’ [Citation.]” (See also Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
RAID’s brief also ignores the rule applicable to substantial evidence review, that all evidence must be viewed most favorably to the Board and in support of the order. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) As Justice Mosk well put it, such “factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.)
DISPOSITION
The order denying the motion for preliminary injunction is affirmed.
We concur: Kline, P.J., Haerle, J.