Kozano v. Schlager

Filed 10/3/06 Kozano v. Schlager CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kevin Enright, Judge. Joint application and stipulation for reversal of judgment and remand for dismissal with prejudice denied.

INTRODUCTION

This is a personal injury action brought by plaintiff Terri Kozano, through her guardian ad litem, against various defendants, including Norma Schlager. On October 11, 2005, the superior court entered judgment in favor of Schlager after sustaining without leave to amend her demurrer to Kozano's third amended complaint. On October 21, Kozano filed a notice of appeal.

On July 14, 2006, Kozano and Schlager filed a joint application and stipulation for reversal of judgment. The joint application and stipulation requests that we reverse the judgment, remand the case to the superior court for dismissal of the action with prejudice, order each party to bear her own costs, and order the remittitur issued forthwith. We decline to accept the stipulation and deny the application. (Code Civ. Proc.,^[1] § 128, subd. (a)(8).)

THE APPLICATION AND STIPULATION

The joint application and stipulation recites that its purpose "is to place the parties in the same position they would be if the . . . appeal were prosecuted to successful completion and resulted in a reversal, followed by a dismissal of the action with prejudice, all in accordance with and in furtherance of a settlement agreement between the parties . . . ." It further recites: "Appellant contends that the judgment below was the result of various prejudicial errors and that the judgment should, therefore, be reversed. Among other things, appellant contends that the trial court erroneously refused to apply the relation back doctrine to her claims against respondent. Therefore, the trial court concluded that appellant's claims against this respondent were barred by the applicable statute of limitations. On June 2, 2006, in an earlier appeal prosecuted by appellant against other defendants in this action, this Court agreed with appellant that the trial court erred by refusing to apply the relation back doctrine as to those defendants, for reasons that appellant intends to also urge in this appeal." (Kozano v. Scripps Clinic Medical Group, Inc. (June 2, 2006), D045887) [nonpub. opn.].) All parties agree that reversal of the judgment is appropriate and should be granted pursuant to this stipulation. Respondent continues to assert, however, "that in the event of remand, she would prevail on any claims brought by appellant."

Attached to the joint application and stipulation is a memorandum of points and authorities that quotes a portion of section 128, subdivision (a)(8) and claims that "[t]he stipulated reversal will not adversely affect the interests of nonparties or the public interest" and "there are sound legal grounds for reversal; thus, there is no danger of erosion of public trust or reduction of the incentive for pretrial settlement." The joint application and stipulation itself argues, "[t]he need for briefing by the parties and review of the record by this Court will be obviated, thus avoiding needless expenditure of private and judicial resources," but offers to furnish further briefing. The memorandum of points and authorities contains no citations to the appellate record. Although reporter's transcripts have been filed, no appellant's appendix or briefs have been filed. The settlement agreement is not part of the record. There are no declarations or other documentary evidence.DISCUSSION

Section 128, subdivision (a)(8) provides: "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."

"The parties must . . . submit memoranda of points and authorities and declarations and other documentary evidence persuasively demonstrating that reversal of the judgment in question will not adversely affect nonparties or the public, erode public trust, or reduce the incentive for pretrial settlement . . . ." (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999, 1007.) Counsel have a duty "to affirmatively demonstrate a basis for each of the three findings required to be made by the statute. The absence of a reasonable possibility that the interests of nonparties or the public will be adversely affected by stipulated reversal cannot be demonstrated without a complete description of the legal claims advanced at trial, the rulings on those claims, and the practical consequences of those rulings, if any, for nonparties or the public. The reasons the parties request reversal cannot be shown to outweigh the erosion of public trust that may result from the nullification of a judgment unless the reasons are fully revealed. Finally, the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement cannot be discounted unless it is shown that the parties seriously pursued settlement prior to trial or that the delay in seeking or reaching settlement is explained by a posttrial development that could not reasonably have been anticipated prior to trial." (Id. at p. 1008.)

Here, the parties have not provided a "complete description of the legal claims advanced at trial, the rulings on those claims, and the practical consequences of those rulings, if any, for nonparties or the public," required to show "[t]he absence of a reasonable possibility that the interests of nonparties or the public will be adversely affected by stipulated reversal." (Hardisty v. Hinton & Alfert, supra, 124 Cal.App.4th at p. 1008.) Moreover, a declaration by Kozano's appellate counsel, filed in support of his request for an extension of time in which to file the appellant's opening brief, states "[t]his action concerns the serious injuries plaintiff sustained in an automobile accident that was caused in part because these health care professional defendants failed to fulfill their duties regarding restrictions on a patient's driving privileges." The reporter's transcript shows Kozano's trial counsel characterized Schlager as a "health care provider." These circumstances appear to give rise to public safety concerns, and possibly collateral licensing, discipline, or insurance ramifications. (Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 21.) Thus, there is a "reasonable possibility that the interests of nonparties or the public will be adversely affected by [stipulated] reversal" and remand for dismissal with prejudice. (§ 128, subd. (a)(8)(A).)

Nor have the parties fully revealed the reasons they request reversal and remand for dismissal with prejudice, and thus have not shown those reasons "outweigh the erosion of public trust that may result . . . ." (§ 128, subd. (a)(8)(B).) Furthermore, the public trust could be undermined by a judicially-sanctioned reversal of a defense judgment and remand for dismissal of the action with prejudice where the defendant contends she would prevail on remand and the plaintiff contends the judgment against her was erroneous. (Muccianti v. Willow Creek Care Center, supra, 108 Cal.App.4th at p. 22.)

Finally, this appeal is before this court after a demurrer to the third amended complaint was sustained without leave to amend, and hence no trial on the merits has occurred. Nevertheless, there has been considerable litigation in the trial court, and parties have not shown they pursued settlement before the case reached this court. (Cf. Hardisty v. Hinton & Alfert, supra, 124 Cal.App.4th at p. 1008.) "Promoting settlement during the appellate phase of a case has its virtues, but encouraging settlement prior to trial - when it is most salutary, and which the Legislature wanted to encourage - is not among them. Moreover, the idea that stipulated reversal should be made available whenever it would assist parties in resolving their disputes is the very idea repudiated by the 1999 amendment to section 128." (Id. at p. 1010.)

DISPOSITION

The joint application and stipulation for reversal of judgment and remand for dismissal with prejudice is DENIED. Appellant's opening and appellant's appendix are due 30 days from the date of this opinion.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

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