How to snatch defeat from the jaws of victory

An odd development yesterday in Shapell Industries, Inc. v. Superior Court, ___ Cal.App.4th ___ (Sept. 19, 2005). My original post on Shapell is here.

As you may recall, this case was decided in the context of a petition for a writ of mandate. Yesterday, the Court of Appeal issued a modification order explaining that after it issued its alternative writ, the trial court vacated the challenged order, thereby complying with the alternative writ. Unfortunately, nobody told the Court of Appeal about this. If the petitioners had done so, the Court of Appeal would have dismissed the proceeding as moot, and the petitioners would have achieved their goal. Instead, the Court of Appeal went on to fully analyze the merits. Ultimately, it issued an opinion discharging the alternative writ and denying the petition. In other words, the petitioners lost, and the trial court's original order was, in effect, affirmed. The Court of Appeal chastized the petitioners for not advising it of the trial court's action sooner:

We strongly caution petitioners against engaging in such conduct in the future, which would justify an award of sanctions against them were we inclined to impose them.

Ordinarily, we would dismiss a petition as moot if the trial court complies with the terms of the alternative writ. However, when a pending case involves a question of public interest that is likely to recur between the parties or others, “the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.” (In re William M. (1970) 3 Cal.3d 16, 23.) We find the issues in this case warrant our consideration. Further, given the conclusion that we reach, our failure to resolve the issue would result in a miscarriage of justice, since the outcome would be inconsistent with the conclusion we reach on the specified legal issue before us.

Modification Order, slip op. at 2-3 (emphasis added). If I were a trial judge, I would also take away this important lesson: An interim order granting an alternative writ—even one that stays all trial-level proceedings—doesn't necessarily indicate where the Court of Appeal is going. (The one part of this that's not entirely clear is how the trial court could have vacated its prior order after the alternative writ was issued if the Court of Appeal also stayed all proceedings.)