Mulvihill v. Norway Maple Holdings











Filed 3/20/17 Mulvihill v. Norway Maple Holdings CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

APRIL MULVIHILL,

Plaintiff and Respondent,

v.

NORWAY MAPLE HOLDINGS, LLC et al.,

Defendants and Appellants.




G054010

(Super. Ct. No. 30-2016-00852768)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, James L. Crandall, Judge. Reversed and remanded.
Williams Iagmin and Jon R. Williams; Wilson Getty, William C. Wilson, and Mark A. Ginella for Defendants and Appellants.
Garcia, Artigliere & Medby & Faulkner, Stephen M. Garcia, and William M. Artigliere for Plaintiff and Respondent.

* * *


THE COURT:*
In May 2016, plaintiff April Mulvihill sued defendants Norway Maple Holdings, LLC and Plum Healthcare Group, LLC for elder abuse and negligence. Defendants filed a motion to compel arbitration shortly thereafter. Plaintiff then consented to arbitration and the petition to compel arbitration was granted.
Plaintiff, however, was dissatisfied with the contemplated pace of proceedings in arbitration. Citing her advanced age and health issues, she moved for calendar preference (see Code Civ. Proc., § 36)[1] in the arbitration. She was unsuccessful. She then applied ex parte to the court to set aside its prior order compelling arbitration and to set a trial date with calendar preference. The court granted plaintiff’s application, setting a jury trial for December 5, 2016.
Defendants appealed the court’s order. (§ 1294, subd. (a) [order denying petition to compel arbitration is appealable].) Their 31-page opening brief primarily argues that the court lacked jurisdiction to issue the challenged order. In other words, once arbitration was ordered, the court retained only limited powers (e.g., to confirm or deny the award, to decide whether the case should be dismissed). (See § 1281 et seq.; MKJA, Inc. v. 123 Fit Franchising, LLC (2001) 191 Cal.App.4th 643, 654; Titan/Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482, 487.)
Plaintiff did not file a respondent’s brief. The time for doing so has passed. (See Cal. Rules of Court, rules 8.212(a)(2), 8.220(a).) The matter is fully briefed and ready for oral argument.
On March 9, 2017, the parties filed a joint application and stipulation for a summary reversal of the order and immediate issuance of the remittitur. This document includes three pages of substantive text, basically a summary of the facts and the stipulation. No authority for the procedural request was cited in the application.
It appears this court has “inherent authority” to summarily reverse. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 5:82, p. 5-34.) This power may be exercised when the correct outcome of an appeal is clear, making further appellate proceedings a waste of time. (Melancon v. Walt Disney Productions (1954) 127 Cal.App.2d 213, 215 [motion granted because recent Supreme Court case on same issue compelled reversal].) Though the opening brief certainly argues that the court erred, neither the motion nor the opening brief contends that the error was so obvious that summary reversal is appropriate.
Instead, the parties’ application relies on the stipulation. Though the parties’ application does not mention it, stipulated reversals of judgments are specifically addressed by the Code of Civil Procedure. “An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for 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.” (§ 128, subd. (a)(8).) The parties certainly stipulated to a reversal. But the application does not address any of the factors included in section 128, subdivision (a)(8). Nor do the parties comply with our local rule requirements for stipulated requests for reversal. (See also Ct. App., Fourth Dist., Div. Three, Internal Practices and Proc., V C, Stipulated Requests for Reversal.)
Of course, this statute purports to apply to a “duly entered judgment”; no mention is made of appealable orders. (§ 128, subd. (a)(8).) The question implicitly raised by this application is whether section 128, subdivision (a)(8), should apply to a prejudgment order denying a petition to compel arbitration, given the text of the statute and policy considerations underlying this statute. (See Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 15 [final judgments belong to the public, not the parties].) There is no final judgment here. Nor is there a tentative settlement of the lawsuit, the typical impetus for a stipulated reversal of a judgment. The parties apparently intend to return to arbitration to settle their differences. There is no possible res judicata or precedential value of the court’s order for the public at large. (§ 128, subd. (a)(8)(A).) It is hard to imagine how “public trust” in the courts could be eroded by facilitating the prompt resolution of this fight over the forum for resolving the parties’ substantive dispute. (§ 128, subd. (a)(8)(B).)
In our view, the presumption against stipulated reversals should not apply to a prejudgment order denying a petition to compel arbitration. A stipulation to reverse the order is enough to justify a reversal of such an order; the pre-section 128, subdivision (a)(8), presumption in favor of stipulated reversals should apply. (See Neary v. University of California (1992) 3 Cal.4th 273, 277.) Indeed, it is unclear why reversal of the court’s order is even necessary to accomplish the parties’ goal. The parties could just as easily have agreed in writing to resubmit the matter to arbitration following the unilateral dismissal of this appeal by defendants. This court should not expend its resources addressing the merits of an issue that should be moot, in that the parties are apparently in agreement at this point that this matter should go back to arbitration.

DISPOSITION

The parties’ joint application is granted. The August 26, 2016 order denying arbitration and setting the matter for trial is reversed. On remand, the trial court is directed to enter an order consistent with this opinion. On stipulation of the parties, the court orders early finality of its decision by opinion as to this court. The clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).) The parties shall bear their own costs on appeal.


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* Before Moore, Acting P.J., Fybel, J., and Ikola, J.

[1] All statutory references are to the Code of Civil Procedure.