Rees v. Gardner

California Court of Appeal Oct 25, 1960 No. Civ. 6294Published

Before: Coughlin

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Holding. The court held that it lacks jurisdiction to dissolve a preliminary injunction pending appeal based on changed circumstances, and that the appeal is not moot because the injunction's broad prohibitions extend beyond the sold business and the underlying undertaking remains a live controversy.

Issues

Does an appellate court have jurisdiction to dissolve a preliminary injunction pending appeal due to changed circumstances?
Does the sale of a business render an appeal from a preliminary injunction moot when the injunction's terms are not limited to that specific business?
Does the existence of a statutory undertaking for damages prevent an appeal from being dismissed as moot?

Disposition. Motions denied.

Quotations verified verbatim against the opinion

“The statutory authority conferred upon an appellate court to “affirm, reverse or modify any judgment or order appealed from” (Code Civ. Proc., § 53) does not authorize it to dissolve an injunction”

“The subject of these parts of the injunction continues to exist; includes any business in which respondents may be engaged; and is not limited to the business which was sold.”

“If it should be determined on this appeal that respondents were not entitled to the injunction, then appellants may be entitled to recover upon this undertaking.”

COUGHLIN, J.

The respondents have moved this court to dissolve a preliminary injunction issued by the trial court and to dismiss appeals concerning that injunction upon the ground that they are moot.

The respondents, who are the cross-complainants herein, obtained a preliminary injunction prohibiting the appellants, who are the cross-defendants herein, from picketing respondents ’ business, placing them on an ‘1 unfair list, ’ ’ causing them to interfere with the rights of their employees to join or refuse to join a labor organization or causing any of their “past, present or prospective” customers or suppliers to refuse to do business with them “in any manner whatsoever.”

The prohibition against picketing was limited to respondents’ business and the premises upon which it was being conducted. The remaining prohibitions were unlimited either as to place or kind of business. Pursuant to court order fixing the amount, respondents posted the required statutory undertaking in the sum of $1,000. (Code Civ. Proc., § 529.) Shortly thereafter appellants moved to dissolve this injunction and their motion was denied. Thereupon they appealed from both the order granting the injunction and the order refusing to dissolve the same. Since the perfection of these appeals respondents have sold the business which was the subject of appellants’ picketing activities and, upon this ground, moved

[632]

this court to dissolve the injunction and dismiss the pending appeals as moot. In an affidavit supporting this application one of the respondents states that it will make no difference to him whether or not the preliminary injunction is dissolved.

A preliminary injunction may be dissolved when there has been a change of the controlling factors upon which it rests or where the ends of justice would be served thereby.

(Union Interchange, Inc.

Savage,

52 Cal.2d 601, 606 [342 P.2d 249];

Sontag Chain Stores Co.

Rees v. Gardner

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COUGHLIN, J.

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