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 Appellant s

.

Rob Bonta, Attorney General, Thomas S. Paterson

, Assistant Attorney General, Paul Stein and Anna Ferrari Deputy Attorneys General, for Defendants and Respondent s

.

__________________________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 Immigrant s Project

. 1. The Challenged Project On March 4, 2 020, Governor Gavin Newso m 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 additiona l disbursements not to exceed $1 billion in total, for any purpose related to the state of emergency upon order of the Director of Finance. (S tats. 2020,
ch. 2

. ) Funds could not be expended prior to 72 hours after the
Director of Finance notified the Joi nt Legislative Budge t Committee in writing of the p urpos e 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 explaine d : “Approximately 150,000 u ndocumented 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 stat e’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 t o immigrants and by an additional appropriation under the emergency amendment to the Budget Act. As to the latter, t he Director of Finance notified the Joint Legislative Budget Committee of the planned expenditure

, and t he 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 P roject was not itself specifically and directly authorized by statute. The Departme nt of Social Services administer ed the
P roject. 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 a nticipated administrative costs

.

1 I n March 2020 , the federal government enacted the so

called “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 P roject as an unlawful expenditure of public
funds. 2 (C ode Civ. Proc., § 526a.) The named defendants are Governor Newsom, in his official capacity, and Kim Johnson, in
he r 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
d ate 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 violate d the limitations of federal law, and its benefits
therefore constitute d 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 pend ing, California enacted legislation removing the word “alien” from our statutes

. ( Stats

. 2021, ch. 296, § 1.) W e follow the lead of our Legislature, and use “undocumented immigrant

. ”5

a preliminary injunction. Specifically, they sought to halt the
distribution of benefits under the P roject. 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 injunctiv e 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 t he opposition papers. The court finds that plaintiffs have not met their burden to support the requeste d 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 an d enjoining R eal
P arties 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 ac tion brought by
Petitioners in the lower court.” ( Cerletti v. Superior Court, No.
B305922

. ) On May 18, 2020, w e 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 petition6

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, 20 2 0, plaintiffs filed, in this appeal, a petition for writ of supersedeas, and sought an immediate stay of both the order denying t h e i r temporary restraining order and the Project
itself. In their supersedeas petition, they repeatedly argued that a writ of sup ersedeas 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 Suprem e Court case which state s that taxpayer harm is ordinarily insufficient to establish ir r eparab l e harm warranting preliminary injunctive relief.

7. The Money Is Spent While the parties were briefing the appeal, the P roject went
ahead. Defendants asked the court to take judicial notice of a n 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 th e 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’ expendi ture of all of the project funds.” 6 We sought additional briefing on w hether, 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 appella te 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 a cts 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 re cipients 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 t he 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.8

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 p roperty should be granted is moot when the property has been sold].) On the record before us, th e 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 p age 1032, plaintiffs suggest that the case is not moot because “[e]quity lie s t o 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, a t 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. Plaintiff s make no effort to explain how time can be rewound and the funds recaptured.9 A court may resolve an otherwise moot case if it raises an important issue likely to recur, but which regularly evade s timely appellate review. ( White v. Davis, supra, 30 Cal.4 th at p p. 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 L egislature; there is nothing in the record suggesting that it is likely to recur. 7
P laintiffs 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 se ssion, 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.) P laintiffs cannot reasonably argue that further payments to undocumented immigrants w ill be made in emergency circumstances without express statutory authorization

.10

funds spent in alleged contravention of fundamental
constituti onal 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 state d by our Supreme Court ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) , we reject plaintiffs’ premise that th is legal issue typically evades appellate review. Not every government expenditure is a one

- time payment on an emergency bas is; 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, t his is not an appropriate case in which to exercise

8 White v. Davis left open the possibility that an
ext raordinary case may exist in which the taxpayer’s interest is sufficient to justify injunctive relief. ( Id. at p. 557.)11

our discretion to reach the issue despite the mootness of the appeal.
DISPOSITION The appeal is dismissed as moot. Plaintif fs are to pay defendants’ costs on appeal.

RUBIN, P. J. WE CONCUR:

BAKER, J.

MOOR J.