In Separate Merits Appeal, Appeal Was Cognizable Although Possession Returned To Landlords During Appeal Because Review Would Determine Landlord Liability For Fees/Costs.
In Lee v. Kotyluk, Case No. G058631 (4th Dist., Div. 3 Jan. 7, 2021) (published), landlords sought to evict a commercial tenant for selling marijuana without a license. The lower court found the 3-day notice to pay or quit was defective because the notice was sent by a predecessor in interest and the notice contained no precise directions to whom possession should be delivered (the “quit” component of the 3-day notice). A defense motion for judgment on the pleadings was granted, and plaintiffs’ request to amend the complaint was denied, triggering the first appeal by landlords. Later, the lower court granted $25,794 in attorney’s fees and $1,445 in costs against landlords, which prompted a separate appeal in Lee v. Kotyluk, Case No. G058768 (4th Dist., Div. 3 Jan. 7, 2021) (unpublished).
Landlords’ merits appeal resulted in a reversal of the judgment against landlords, because the motion for judgment was properly granted but landlords should have been given leave to file an amended pleading. That appeal was not rendered moot because tenant surrendered possession of the premises. The reason? Landlords’ liability for the trial level fees and costs awards presented a live controversy not mooted by the surrender. In the unpublished opinion, the merits reversal meant that the fees and costs awards went POOF! Acting Presiding Justice Moore authored both 3-0 opinions.
Comments