Di Giorgio v. Lee

134 F.3d 971, 216 B.R. 971, 98 Cal. Daily Op. Serv. 547, 98 Daily Journal DAR 773, 1998 U.S. App. LEXIS 833, 1998 WL 19639
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 22, 1998
DocketNos. 96-56151, 96-56155
StatusPublished
Cited by7 cases

This text of 134 F.3d 971 (Di Giorgio v. Lee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Di Giorgio v. Lee, 134 F.3d 971, 216 B.R. 971, 98 Cal. Daily Op. Serv. 547, 98 Daily Journal DAR 773, 1998 U.S. App. LEXIS 833, 1998 WL 19639 (9th Cir. 1998).

Opinion

BEEZER, Circuit Judge:

Josephine Lee, Sheriff Sherman Block and the County of Los Angeles Sheriffs Department appeal a permanent injunction against the enforcement of California Code of Civil Procedure § 715.050. Because the action for injunctive relief became moot prior to entry of the injunction, we vacate and remand with instructions to dismiss.

I

Irene and Fred Di Giorgio and Josephine Lee were parties to a residential lease agreement. The lease expired in 1992, but was extended by agreement of the parties until 1995. The Di Giorgios failed to pay rent to Lee from August 1994 to January 1995. On January 6, 1995, Lee served the Di Giorgios with a three-day notice to pay rent or quit. When the Di Giorgios failed to pay the outstanding rent, Lee initiated an action for unlawful detainer pursuant to California’s statutory provisions for eviction.

The parties negotiated a Stipulation for Judgment (the “Judgment”), which was entered by the municipal court on February 15, 1995. According to the terms of the Judgment, the Di Giorgios forfeited the residential lease and agreed to pay Lee $10,224 in overdue rent. The Judgment also provided for the issuance of a writ of possession, but final lockout was delayed until March 6,1995. On February 16, 1995, the municipal court issued a writ of possession, which the Sheriffs Department subsequently served on the Di Giorgios with a notice to vacate.

On March 2, 1995, four days before the final lockout date, the Di Giorgios filed a voluntary chapter 7 petition for bankruptcy under Title 11 of the U.S. Code. The Di Giorgios concurrently filed an adversary proceeding in the bankruptcy court against Lee, Sheriff Block and the Sheriffs Department, seeking to permanently enjoin the use of California Code of Civil Procedure § 715.050 to enforce the writ of possession. The Di Giorgios were still in possession of the rental property at the commencement of the adversary proceeding.

[974]*974California Code of Civil Procedure § 715.050 provides that "a writ of possession issued pursuant to a judgment for possession in an unlawful detainer action shall be enforced ... without delay, notwithstanding receipt of notice of the [tenant's] filing . . . of a bankruptcy proceeding." Cal.Civ.Proc.Code. § 715.050. In the adversary proceeding, the Di Giorgios argued that § 715.050 was preempted by 11 U.S.C. § 362, which imposes an automatic stay on all proceedings, except as provided in the statute, involving property of the bankrupts' estate once a petition for bankruptcy has been filed. The Di Giorgios sought declaratory and injunctive relief prohibiting enforcement of § 715.050.

Before the hearing in bankruptcy court, the Di Giorgios voluntarily surrendered possession of the rental property to Lee. Even though the Di Giorgios had vacated the rental property, the bankruptcy court determined that an actual controversy existed between the parties. The bankruptcy court declared that § 715.050 was preempted by 11 U.S.C. § 362, and permanently enjoined the enforcement of § 715.050 against the Di Giorgios and all other debtors.

On appeal pursuant to 28 U.S.C. § 158(a), the district court observed that the bankruptcy court made no formal findings regarding the actual date on which the Di Giorgios vacated the rental property. Concluding that it would be inappropriate for a court exercising appellate jurisdiction to consider facts beyond the formal findings, the district court declined to hold that the Di Giorgios' action was moot. The district court then affirmed the declaratory and injunctive relief granted by the banluiiptcy court. Lee, Sheriff Block and the Sheriff's Department timely appealed.

II

The doctrine of mootness precludes federal court decision of "questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). We review the district court's determination regarding mootness de novo. In re Arnold & Baker Farms, 85 F.3d 1415, 1419 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 681, 136 L.Ed.2d 607 (1997). If a federal court lacked jurisdiction to decide an issue before it, we exercise appellate jurisdiction "merely for the purpose of correcting the error of the lower court in entertaining the suit." United States v. Corrick, 298 US. 435, 440, 56 S.Ct. 829, 832, 80 L.Ed. 1263 (1936). We have jurisdiction, and we vacate the judgment of the district court.

To qualify for adjudication ui federal court, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, - U.S. -, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975)) (internal quotation marks omitted). Whenever an action loses its "character as a present live controversy" during the course of litigation, federal courts are required to dismiss the action as moot. Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir.1989).

As debtors occupying rental property subject to a writ of possession, the Di Giorgios properly could challenge § 715.050 when they filed their bankruptcy petition. See Arizonans for Official English, - U.S. at -, 117 S.Ct. at 1069. However, the Di Giorgios' action ceased to be a "present live controversy" the moment the Di Giorgios vacated the rental property. See id. Because the Di Giorgios did not possess property subject to a writ of possession at the time of the hearing in bankruptcy court, they "lack[ed] a legally cognizable interest in the outcome" of the adversary proceeding. See Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). The bankruptcy court erred by not dismissing the Di Giorgios action as moot.

Lee and the Di Giorgios contend that an agreement (the "Agreement") reached before the bankruptcy hearing preserved the justiciabifity of the Di Giorgios' action. Under the Agreement, the Di Giorgios surrendered the rental property to Lee in exchange for Lee's promise to reinstate the Di Giorgios as tenants or pay the Di Giorgios a nominal sum if the Di Giorgios ultimately prevailed. At oral argument, counsel for the Di Giorgios [975]*975admitted that the Agreement was designed to permit judicial review of § 715.050 even though the Di Giorgios no longer possessed property subject to a writ of possession.

The bankruptcy court held that the Agreement sufficiently preserved the adversarial nature of the Di Giorgios’ action despite the Di Giorgios’ surrender of the rental property. We disagree. An action in federal court becomes moot if the personal interest required to initiate the action ceases to exist. See United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) (quoting Henry P.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tate v. UNIVERSITY MED. CENTER OF S. NEV.
606 F.3d 631 (Ninth Circuit, 2010)
Ellis v. Emery
109 F. App'x 153 (Ninth Circuit, 2004)
Wininger v. SI Management L.P.
301 F.3d 1115 (Ninth Circuit, 2002)
Bayliss v. Madden
204 F. Supp. 2d 1285 (D. Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
134 F.3d 971, 216 B.R. 971, 98 Cal. Daily Op. Serv. 547, 98 Daily Journal DAR 773, 1998 U.S. App. LEXIS 833, 1998 WL 19639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-giorgio-v-lee-ca9-1998.