Foreman v. Au

Filed 6/21/06 Foreman v. Au CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

This action arises out of a long standing dispute between neighbors regarding landscaping and runoff issues. After a trial in the matter, the trial court entered a second amended judgment on November 16, 2005, providing for a mandatory injunction, a directed verdict on the cross-complaint, for monetary damages, and for attorney's fees. This appeal ensued. Subsequent to the filing of the notice of appeal, the parties attended a JAMS mediation and on January 13, 2006, entered into a written settlement agreement. The agreement provides that the second amended judgment be vacated in part. Specifically, the parties wish to vacate the mandatory injunction as well as the directed verdict on the cross-complaint, leaving only the monetary portions of the judgment viable.

The parties now jointly petition this court to partially vacate the judgment. The reasons that the parties seek a stipulated reversal, as outlined in the joint declaration in support of the motion for stipulated reversal, support the conclusion that a stipulated reversal is appropriate under the facts of this case and the law. (See Code Civ. Proc., § 128, subd. (a)(8).)

For the reasons stated in the joint declaration in support of the stipulation for reversal, including effectuating the parties' intent in the settlement agreement, the court finds that there is no possibility that the interests of nonparties or the public will be adversely affected by the reversal.

The court further finds that the reasons for the parties requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.

Disposition

The judgment is reversed pursuant to the stipulation of the parties. Each party to bear their own attorney fees and costs on appeal. The remittitur shall issue forthwith.

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PREMO, Acting P.J.

WE CONCUR:

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elia, J.

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MIHARA, J.

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