Metropolitan News-Enterprise


Monday, March 9, 2020


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Justice Raphael Sees No Reason to Decide Moot Appeal Lacking Public Interest


By a MetNews Staff Writer


Court of Appeal Justice Michael J. Raphael of the Fourth District’s Div. Two has questioned his colleagues’ decision to file an opinion expressing approval of the sustaining of a demurrer without leave to amend in a case that was rendered moot by the plaintiff’s death.

The 18-page majority opinion, by Presiding Justice Manuel A. Ramirez, joined in by Justice Carol D. Codrington, says:

“We have been informed that, after oral argument, Tybout passed away. Accordingly, the appeal is moot and must be dismissed. Otherwise, we would have affirmed.”

Ramirez proceeded, in his opinion filed on Thursday, to set forth the allegations put forth by the plaintiff concerning the refusal of all board certified cardiologists in his “locality” to treat him because he refused to be the patient of a particular cardiologist, and discussed why his allegations did not add up to a cause of action.

Concurring Opinion

Raphael, a former Los Angeles Superior Court judge, wrote:

“I agree that we must dismiss this appeal because plaintiff Frederick Alton Tybout passed away. In my view, however, we should not explain how we would have decided the case had he lived. As our Supreme Court has stated, we have a duty not to opine on moot issues.”

He quoted the California Supreme Court’s 1964 opinion in Paul v. Milk Depots, Inc. as saying (quoting a 1946 opinion):

“[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”

No Exception Applies

The concurring justice observed:

“There are exceptions that occasionally permit us to opine on moot issues, such as on an issue of continuing public interest or on an issue that may recur between the parties. But I can find no exception that fits here. Tybout sought an injunction to obtain medical treatment for himself, an issue that no longer has applicability. For the general rule against opining on moot issues to be meaningful, it seems to me that we should follow it in a case such as this one.”

Ramirez apparently did not discern public interest in his discussion; the opinion was not certified for publication. The presiding justice gave no indication as to why the opinion was filed, notwithstanding mootness, rather than dismissal of the appeal being effected by a brief order.

The case is Tybout v. Desert Cardiology Consultants’ Medical Group Inc., E072623.


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