Filed 11/17/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CYNTHIA CERLETTI et al.,

Plaintiffs and Appellants,

v.

GAVIN NEWSOM, as Governor, etc.,

et al.,

Defendants and Respondents.

 B306122

 (Los Angeles County Super.

 Ct. No. 20STCV16321)

APPEAL from orders of the Superior Court of Los Angeles 

County, Samantha P. Jessner, Judge. Dismissed.

Judicial Watch Inc. and Robert Patrick Sticht for Plaintiffs

and Appellants.

Rob Bonta, Attorney General, Thomas S. Paterson,

Assistant Attorney General, Paul Stein and Anna Ferrari Deputy 

Attorneys General, for Defendants and Respondents.

__________________________
2

Plaintiffs appeal from the trial court’s denial of a 

temporary restraining order to stay government spending in 

connection with a particular one-time benefit program. The 

spending has already occurred, and there is no indication it will 

be reauthorized. We therefore dismiss the appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Cynthia Cerletti and Howard A. Myers brought 

this taxpayer action to declare as illegal, and permanently enjoin, 

spending under the Disaster Relief for Immigrants Project.

1. The Challenged Project

On March 4, 2020, Governor Gavin Newsom declared a 

state of emergency due to the worldwide spread of COVID-19. 

On March 16, 2020, the California Legislature enacted an 

emergency amendment to the Budget Act of 2019, appropriating 

$500 million, and authorizing additional disbursements not to 

exceed $1 billion in total, for any purpose related to the state of 

emergency upon order of the Director of Finance. (Stats. 2020, 

ch. 2.) Funds could not be expended prior to 72 hours after the 

Director of Finance notified the Joint Legislative Budget

Committee in writing of the purpose of the planned expenditure. 

(Ibid.) In other words, the Legislature allowed for expenditure on 

emergency projects on the approval of the Director of Finance, 

with notice to the Legislature, but without requiring statutory 

approval of each individual project.

On April 15, 2020, Governor Newsom announced the 

Disaster Relief Assistance for Immigrants Project (the Project).

which established a $75 million Disaster Relief Fund to “support 

undocumented Californians impacted by COVID-19 who are 

ineligible for unemployment insurance and disaster relief, 
3

including the CARES Act,[

1] due to their immigration status.” 

The Governor’s press release explained:

“Approximately 150,000 undocumented adult Californians 

will receive a one-time cash benefit of $500 per adult with a cap 

of $1,000 per household to deal with specific needs arising from 

the COVID-19 pandemic. Individuals can apply for support 

beginning next month. [¶] The state’s Disaster Relief Fund will 

be dispersed through a community-based model of regional 

nonprofits with expertise and experience serving undocumented 

communities.” 

This was to be funded both by reappropriating some funds 

already allocated for assistance to immigrants and by an 

additional appropriation under the emergency amendment to the 

Budget Act. As to the latter, the Director of Finance notified the 

Joint Legislative Budget Committee of the planned expenditure, 

and the Joint Legislative Budget Committee concurred with it.

We need not discuss the funding sources in detail; what is 

relevant for an understanding of the case is that the Project was 

not itself specifically and directly authorized by statute.

The Department of Social Services administered the 

Project. On April 17, 2020, it issued a fact sheet, which stated

the $79.8 million funding would be allocated $75 million in 

benefits and $4.8 million in anticipated administrative costs.

1 In March 2020, the federal government enacted the socalled “CARES Act,” (the Coronavirus Aid, Relief, and Economic 

Security Act) which, among other things, provided for direct 

economic assistance payments to certain Americans. (Pub.L. No. 

116-136, § 2201 (Mar. 27, 2020) 134 Stat. 281.) 
4

2. Plaintiffs’ Complaint

On April 29, 2020, plaintiffs, as taxpayers, filed suit

challenging the Project as an unlawful expenditure of public 

funds.2 (Code Civ. Proc., § 526a.) The named defendants are 

Governor Newsom, in his official capacity, and Kim Johnson, in 

her official capacity as Director of the Department of Social 

Services. The complaint’s rationale was this: Federal law 

provides that undocumented immigrants are not eligible for State 

public benefits, with certain exceptions.3 (8 U.S.C. § 1621(a).) “A 

State may provide that an alien who is not lawfully present in 

the United States is eligible for any State or local public benefit 

for which such alien would otherwise be ineligible under 

subsection (a) only through the enactment of a State law after the 

date of the enactment of this Act [Aug. 22, 1996] which 

affirmatively provides for such eligibility.” (8 U.S.C. § 1621(d).) 

Plaintiffs alleged that, as the Project was not enacted by a State 

law, it violated the limitations of federal law, and its benefits 

therefore constituted the illegal expenditure of public funds.

3. Plaintiffs’ Ex Parte Application for a Temporary 

Restraining Order

On May 4, 2020, plaintiffs filed an ex parte application for 

a temporary restraining order, and order to show cause regarding 

2 The action was initially pursued in the name of a different 

plaintiff, Robin Crest. An amended complaint was later filed, 

replacing Crest with Cerletti. 

3 The federal statute uses the term “alien.” While this 

appeal was pending, California enacted legislation removing the 

word “alien” from our statutes. (Stats. 2021, ch. 296, § 1.) We

follow the lead of our Legislature, and use “undocumented 

immigrant.”
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a preliminary injunction. Specifically, they sought to halt the 

distribution of benefits under the Project. They argued, “Without 

a restraining order, those funds will be spent, and there is no way 

of recovering them after they are distributed.” Plaintiffs added, 

“Once the direct cash benefits are distributed to unlawfully 

present aliens in violation of federal law, the injury cannot be 

remedied.” 

Defendants opposed the application on a number of 

grounds, including that prejudgment injunctive relief is not 

ordinarily available to remedy an alleged harm based on 

taxpayer standing. (E.g., White v. Davis (2003) 30 Cal.4th 528, 

556-557.)

On May 5, 2020, the court heard argument and denied the 

ex parte application “for the reasons set forth in the opposition 

papers. The court finds that plaintiffs have not met their burden 

to support the requested relief.” 

4. Plaintiffs Sought Immediate Relief Via Mandate

On May 14, 2020, plaintiffs filed a petition for writ of 

mandate, seeking a writ “commanding Respondent to issue a 

temporary restraining order restraining and enjoining Real 

Parties in Interest from making an imminent, May 18, 2020

illegal expenditure of $79.8 million of taxpayers’ funds pending 

the final determination of a taxpayer action brought by 

Petitioners in the lower court.” (Cerletti v. Superior Court, No. 

B305922.) On May 18, 2020, we denied the petition, indicating 

that a ruling on a temporary restraining order is appealable and 

plaintiffs had made an inadequate showing to justify relief by 

way of mandate.4

4 We also observed the sole argument in the petition had 

already been presented by means of an emergency writ petition 
6

5. Plaintiffs’ Appeal

On May 21, 2020, plaintiffs filed a timely notice of appeal 

from the denial of the temporary restraining order. (Code Civ. 

Proc., § 904.1, subd. (a)(6) [an appeal may be taken from an order 

refusing to grant an injunction].) 

6. Plaintiffs Petitioned for Supersedeas

On May 29, 2020, plaintiffs filed, in this appeal, a petition 

for writ of supersedeas, and sought an immediate stay of both the 

order denying their temporary restraining order and the Project 

itself. In their supersedeas petition, they repeatedly argued that 

a writ of supersedeas was necessary to preserve their appellate 

rights. For example, “Because this appeal is from an order 

denying a temporary restraining order, a writ of supersedeas is 

Petitioners’ only remedy to preserve that right. See People ex rel. 

S.F. Bay etc. [(1968)] 69 Cal.2d [533,] 536-537 (once trial court

had dissolved its restraining order, writ was required to prevent 

town from resuming its fill operations and rendering appeal 

moot).” On June 12, 2020, we denied the petition for writ of 

supersedeas, citing to White v. Davis, supra, the California 

Supreme Court case which states that taxpayer harm is 

ordinarily insufficient to establish irreparable harm warranting

preliminary injunctive relief.

7. The Money Is Spent

While the parties were briefing the appeal, the Project went 

ahead. Defendants asked the court to take judicial notice of an 

exhibit demonstrating that all $75 million in project benefits 

to our Supreme Court, which had summarily denied it. (Benitez 

v. Newsom, S261804.)
7

were distributed as of August 17, 2020.5 In their reply brief, 

plaintiffs did not challenge that representation, and made an 

argument based on the premise that “according to Respondents’ 

brief, the cash benefits were not fully distributed until as late as 

August 17, 2020.” In its supplemental letter brief to this court, 

plaintiffs wrote, “The present appeal is not moot despite 

Respondents’ expenditure of all of the project funds.”6

We sought additional briefing on whether, now that the 

funds have been disbursed, plaintiffs’ appeal of the trial court’s 

failure to restrain that disbursement is moot.

DISCUSSION

“It is well settled that an appellate court will decide only 

actual controversies. Consistent therewith, it has been said that 

an action which originally was based upon a justiciable 

controversy cannot be maintained on appeal if the questions 

raised therein have become moot by subsequent acts or events.” 

(Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) These 

principles apply to appeals of orders denying preliminary 

5 Defendants’ request for judicial notice is granted. 

6 In reply to defendants’ letter brief, however, plaintiffs now

suggest that, in some ways, the Department of Social Services “is 

continuing to spend taxpayer funds and resources on the project” 

– including, for example, obtaining the return of some funds that 

were distributed to recipients on debit cards which the recipients 

failed to timely activate. We reject plaintiff’s attempt to reverse 

course. Plaintiffs sought a temporary restraining order to enjoin 

the government from distributing one-time emergency benefits 

under the Project; that money has been spent. Plaintiffs cannot 

now avoid mootness by claiming they sought to enjoin the 

government from cleaning up the Project after the benefits have 

been distributed.
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injunctions. (Ibid.) “An appeal from an order denying an 

injunction may be dismissed as moot if the act sought to be 

enjoined is performed while the appeal is pending. [Citation.]” 

(City of Cerritos v. State of California (2015) 239 Cal.App.4th 

1020, 1031; see also Disenhouse v. Peevey (2014) 226 Cal.App.4th 

1096, 1103 [courts will not consider the merits of an application 

to enjoin a meeting that already occurred]; County of Los Angeles 

v. Butcher (1957) 155 Cal.App.2d 744, 746 [whether an injunction 

restraining the sale of property should be granted is moot when 

the property has been sold].)

On the record before us, the Project provided for “one-time” 

payments, and the payments were made more than a year ago. 

The issue of whether the trial court should temporarily restrain 

the distribution of payments pending litigation is moot.

Relying on City of Cerritos, supra, 239 Cal.App.4th at page 

1032, plaintiffs suggest that the case is not moot because 

“[e]quity lies to reinstate the status quo ante, meaning before 

Respondents’ expenditure.” That authority is distinguishable. In 

City of Cerritos, plaintiffs had sought to enjoin a law which 

required the dissolution of redevelopment agencies. The court 

reasoned that the case was not moot, because, even though the 

lengthy winding-down process had commenced, a remedy could 

theoretically be crafted which would reactivate the agencies and 

restore their powers before the winding-down was complete. 

(City of Cerritos, supra, at pp. 1031-1032.) Redevelopment 

agencies in the process of dissolution can be reinstated and 

funded in the future; thus, a remedy was possible. But, here, 

plaintiffs are challenging a one-time expenditure of funds that

have already been spent. Plaintiffs make no effort to explain how 

time can be rewound and the funds recaptured.
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A court may resolve an otherwise moot case if it raises an

important issue likely to recur, but which regularly evades timely 

appellate review. (White v. Davis, supra, 30 Cal.4th at pp. 537, 

563.) That is not this case. The Project was an emergency 

project to provide one-time payments during an extraordinary 

pandemic, which caused a state of emergency and a temporary 

pause in the operation of the Legislature; there is nothing in the 

record suggesting that it is likely to recur.7

Plaintiffs do not argue that this particular project could 

recur, but argue that the legal issue raised by their appeal does. 

Specifically, plaintiffs suggest we should address the issue, of

public interest, of whether taxpayer harm should be considered 

sufficient to justify preliminary injunctive relief. “To obtain a 

preliminary injunction, a plaintiff ordinarily is required to 

present evidence of the irreparable injury or interim harm that it 

will suffer if an injunction is not issued pending an adjudication 

of the merits. [Citation.]” (White v. Davis, supra, 30 Cal.4th at 

p. 554.) In White v. Davis, the California Supreme Court 

reviewed a number of cases addressing the issue, and noted they 

all came to the same conclusion: “Under the Court of Appeal 

decisions discussed above, a taxpayer’s general interest in not 

having public funds spent unlawfully (including not having such 

7 We observe that in July 2021, after the Legislature 

returned to session, it enacted further stimulus payments for 

Californians, including undocumented immigrants. That 

enactment contained the specific statutory language required by 

8 U.S.C. § 1621(d), which plaintiffs contend was lacking from the 

Project. (Sen. Bill No. 139 (2021-2022 Reg. Sess.) § 5.) Plaintiffs 

cannot reasonably argue that further payments to undocumented

immigrants will be made in emergency circumstances without 

express statutory authorization.
10

funds spent in alleged contravention of fundamental 

constitutional restrictions), while sufficient to afford standing to 

bring a taxpayer action under Code of Civil Procedure section 

526a and to obtain a permanent injunction after a full 

adjudication on the merits, ordinarily does not in itself constitute 

the type of irreparable harm that warrants the granting of 

preliminary injunctive relief.”8 (White v. Davis, supra, at pp. 556-

557.) 

Plaintiffs ask that we bypass the mootness doctrine in 

order to disagree with White v. Davis, “depart from a rule that 

does not work, and begin a new way forward by recognizing that 

an illegal expenditure of public funds does more than just 

monetary harm to a taxpayer.” Setting to one side whether we 

have jurisdiction to depart from a rule stated by our Supreme 

Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 455), we reject plaintiffs’ premise that this legal issue 

typically evades appellate review. Not every government 

expenditure is a one-time payment on an emergency basis; 

whether taxpayers allege sufficient harm from allegedly illegal 

expenditures has, in fact, repeatedly been addressed in non-moot 

cases. (See, e.g., Loder v. City of Glendale (1989) 216 Cal.App.3d 

777, 783-784 [challenging a city’s employee drug testing 

program]; Leach v. City of San Marcos (1989) 213 Cal.App.3d 

648, 660-663 [challenging a city’s redevelopment plan], Cohen v. 

Bd. of Supervisors (1986) 178 Cal.App.3d 447, 454 [challenging 

an ordinance regulating escort services].) As the issue does not 

evade review, this is not an appropriate case in which to exercise 

8 White v. Davis left open the possibility that an 

extraordinary case may exist in which the taxpayer’s interest is 

sufficient to justify injunctive relief. (Id. at p. 557.)
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our discretion to reach the issue despite the mootness of the 

appeal.

DISPOSITION

The appeal is dismissed as moot. Plaintiffs are to pay 

defendants’ costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR J.