Long v. Hultberg

Opinion

DRAPER, P. J.

The three original plaintiffs in this proceeding were elected city councilmen of San Bruno. Petition for their recall was filed and, on December 10, 1970, the city clerk filed with the city council his certificate of the sufficiency of the petitions. Plaintiffs, asserting insufficiency, sought injunctive relief or writ of mandate barring any further proceedings on the recall. The recall election had been noticed for March 2, 1971. On February 17, after hearing, the trial court denied the mandamus petition and denied preliminary injunction. Judgment and order was filed February 24, but not entered until April 23. Although plaintiffs Long and Griffith filed notice of appeal, only Long has filed briefs.

[608]

Respondents have moved to augment the record by a certified, copy of the resolution of the city council declaring the result of the election of March 2. This resolution recites that the votes have been canvassed, a majority voted against recall of Christal, but in favor of the recall of Griffith and Long, successor for each of whom was elected. Appellant opposes augmentation.

We have power to take additional evidence (Cal. Rules of Court, rule 23(b)). Although appellate courts are generally reluctant to take evidence, they should do so when it shows that events occurring after judgment and notice of appeal have rendered the appeal moot

(Millbrae Assn. for Residential Survival

v.

City of Millbrae,

262 Cal.App.2d 222, 232 [69 Cal.Rptr. 251]). We are enjoined to decide only actual controversies by a judgment which can be carried into effect. “ ‘[W]hen, pending an appeal ... an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal’ ”

(Mills

v.

Green,

159 U.S. 651, 653 [40 L.Ed. 293, 294, 16 S.Ct. 132], as quoted and applied in